Per Curiam.

Any error by the trial court in considering or submitting to the jury a lesser crime arising out of the same criminal transaction as an indicted crime, that is not in fact a lesser included offense, is waived unless defendant makes timely objection.

The relevant facts in each case are not in dispute. Defendant Raymond Ford was indicted for robbery in the first and second degrees (Penal Law, § 160.10, 160.15). After the close of evidence in his bench trial, the court announced that it would consider grand larceny in the third degree (Penal Law, § 155.30) as a lesser included offense, and neither defendant nor the People objected. The court found Ford guilty of grand larceny in the third degree. The Appellate Division reversed the conviction and dismissed the indictment, concluding that grand larceny in the third degree was not a lesser included offense of the indicted crimes and that, the defect being one of subject matter jurisdiction, defendant did not waive his right to complain of that error.

Defendant Gordon Simpson was indicted for manslaughter in the second degree (Penal Law, § 125.15). At his nonjury trial, the People requested that assault in the second degree (Penal Law, § 120.05) also be considered by the court as a lesser included offense, and defendant did not object. The court found Simpson guilty of assault in the second degree, and the Appellate Division affirmed his conviction.

Defendant James Williams was indicted for robbery in the second degree (Penal Law, § 160.10). At trial, Williams requested that the court also submit to the jury as lesser included offenses the crimes of assault in the third degree (Penal Law, § 120.00) and grand larceny in the third degree (Penal Law, § 155.30), and the court did so. The jury found Williams guilty of assault in the third degree, and his conviction was affirmed by the Appellate Division.

In each of these appeals, the People concede that the offense of which the defendant was convicted was neither one for which he was indicted nor a lesser included offense meeting the criteria set forth in People v Glover ( 57 N.Y.2d 61), but argue that the defendant, by pursuing the strategic tactic of acquiescing in, or even affirmatively requesting, the lesser charge, waived his right to complain of the trial court's error. Defendants each contend that the error was a violation of his rights under section 6 of article I of the New York Constitution, and constituted a nonwaivable jurisdictional defect.

Section 6 of article I of the New York Constitution provides in pertinent part that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury". In addition to crimes for which a defendant has been indicted, a court has authority to consider or submit to the jury lesser included offenses. ( People v Henderson, 41 N.Y.2d 233, 235.) The court's authority to do so is set forth in CPL 300.50 (subd 1) (made applicable to bench trials by CPL 320.20, subd 4): "In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate." "Lesser included offense" is in turn defined by CPL 1.20 (subd 37) as follows: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.' In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto."

Accordingly, for a crime to be submitted or considered as a lesser included offense of a crime for which a defendant has been indicted, it must be theoretically impossible to commit the greater crime without at the same time, by the same conduct, committing the lesser, and the evidence must be sufficient to support a finding that the defendant committed the lesser but not the greater crime. ( People v Glover, supra.) If there is any error in the submission or consideration of lesser included offenses — including specifically the failure of the crime to meet the "theoretical impossibility" test of Glover — CPL 300.50 (subd 1) provides that it is waived by the defendant unless timely objection is made.

The Supreme Court, where each of the actions was tried, had both personal and subject matter jurisdiction. Section 7 of article VI of the New York Constitution grants that court general jurisdiction — indeed exclusive jurisdiction — of crimes prosecuted by indictment in the City of New York. The crimes of which the defendants were convicted fall within that category.

While it is true that, under section 6 of article I of the New York Constitution, a "valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v Harper, 37 N.Y.2d 96, 99), and "[u]ntil the grand jury shall act, no court can acquire jurisdiction to try" ( People ex rel. Battista v Christian, 249 N.Y. 314, 319), in each action before us the Grand Jury returned a valid indictment sufficient to require the defendant to proceed to trial with respect to an identified criminal transaction out of which his subsequent conviction arose. These are not cases where the trial court lacked subject matter jurisdiction because no indictment was returned (see Matter of Simonson v Cahn, 27 N.Y.2d 1, 4; People ex rel. Battista v Christian, 249 N.Y. 314, supra), or the indictment or information was inherently defective in that it failed to allege the elements of the crime charged (see People v Scott, 3 N.Y.2d 148, 152-153; People v McGuire, 5 N.Y.2d 523, 526), or the trial court had no jurisdiction under article VI of the Constitution to try the offenses of which defendant was convicted (see People v Nicometi, 12 N.Y.2d 428; People v Johnson, 20 N.Y.2d 220).

The prohibition of section 6 of article I of the Constitution that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury" is not a limitation directed to the courts, but rather to the State, and its function is to prevent prosecutorial excess by ensuring that "before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused's peers that there exists sufficient evidence and legal reason to believe the accused guilty." ( People v Iannone, 45 N.Y.2d 589, 594.) That function was fulfilled here, as the People's case against each defendant with respect to a particular transaction was presented to a Grand Jury and indictments were returned against all three.

Here, defendants were indicted and brought to trial in a court that had jurisdiction over offenses of which the defendants were accused. That court in turn had authority, pursuant to CPL 300.50, to consider or submit to the jury any lesser included offenses of the indicted crimes which could be supported by a reasonable view of the evidence. ( People v Henderson, 41 N.Y.2d 233, supra.) An error by the trial court in submitting or considering a lesser crime arising out of the same transaction that is not a lesser included offense does not affect that court's competence to entertain the action or to convict of that crime, but only its authority to enter a judgment on the merits against defendant on that specific charge in particular facts of that case. Such an error is not jurisdictional ( Thrasher v United States Liab. Ins. Co., 19 N.Y.2d 159, 166; Lacks v Lacks, 41 N.Y.2d 71, 75; Nuernberger v State of New York, 41 N.Y.2d 111, 115-116), and, pursuant to CPL 300.50, may be waived if timely objection is not made. We have in the past held that such a defect, where not objected to, did not require vacatur of conviction in a habeas corpus proceeding ( People ex rel. Wachowicz v Martin, 293 N.Y. 361; People ex rel. Tanner v Vincent, 44 A.D.2d 170, affd 36 N.Y.2d 773), or — under a predecessor to CPL 300.50 — reversal on direct appeal ( People v Stevenson, 31 N.Y.2d 108, 109, n 1). Similarly, we have upheld a plea to a nonexistent crime in satisfaction of an indictment charging a crime carrying a heavier penalty, defendant having "induced the proceeding of which he now complains" by a failure to object. ( People v Foster, 19 N.Y.2d 150, 153; see, also, People v Adams, 57 N.Y.2d 1035, 1038.)

While the Legislature has defined the scope of lesser included offenses (CPL 1.20, subd 37) and has provided that only such lesser included offenses may be considered or submitted to the jury along with indicted offenses (CPL 300.50, subd 1), it has also made provision for defendants to be convicted of lesser crimes that do not fall within the definition of lesser included offenses, either by plea (CPL 220.10, 220.20) or by a submission or consideration made without objection (CPL 300.50, subd 1). There is no jurisdictional or constitutional infirmity in that scheme.

In each instance, the defendant by acquiescing in or affirmatively requesting a lesser charge waived his right to complain of the trial court's error. The additional objections raised by defendant Ford were not preserved. Accordingly, in People v Simpson and People v Williams the orders of the Appellate Division should be affirmed. In People v Ford, the order of the Appellate Division should be reversed, the indictment reinstated, and the case remitted to that court for determination of the facts. (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b].)