The relator was indicted for common-law murder, felony murder and possession of a weapon as a felony, following the homicide of a taxi driver during a holdup. He was convicted of manslaughter in the first degree, robbery in the first degree and possession of a weapon as a felony. He was sentenced on April 10, 1969 to consecutive terms of imprisonment of 25 years on the robbery count and 15 years on the manslaughter count, and to a concurrent term of imprisonment of 7 years on the weapon count.
In this habeas corpus proceeding brought in 1972, the relator claims that his conviction for robbery in the first degree must be vacated, because he was not indicted for that crime and robbery is not a lesser included offense within the crime of felony murder for which he was indicted. His petition was denied by the Criminal Term. We affirm.
After his conviction the relator appealed to this court and his conviction was affirmed (People v. Tanner, 36 A D 2d 690). He did not raise on that appeal the claim which he now pursues by habeas corpus. Indeed, the record is clear that he did not raise the claim at his trial.1 He then appealed to the Court of Appeals, which affirmed his conviction (People v. Tanner, 30 N Y 2d 102). Although he contended in the Court of Appeals that the charge of the trial court with respect to robbery was erroneous, he again did not raise the point of this proceeding (id., p. 107).
*172If the relator had made his claim at the .trial and on appeal, the claim would have been supported by authority (People v. Nichols, 230 N. Y. 221; People v. Lytton, 257 N. Y. 310; People v. Dennis, 40 A D 2d 959) and a reversal of his conviction for robbery would have been in order. That, however, is not the question here.
The question before us is whether the jurisdiction of the court rendering the judgment of conviction for robbery was so deficient that habeas corpus will lie to vacate the conviction. Concededly, the court had jurisdiction of the person of the relator. Whether it had jurisdiction of the subject matter of the crime is another matter, to which we must address ourselves.
The problem, as seen by the relator, is put in terms of indictment and conviction based on the crimes alleged in the indictment. He argues- that he may not be constitutionally convicted for a crime not stated in an indictment (People ex rel. Battista v. Christian, 249 N. Y. 314, 319). Hence, he says that his conviction for robbery is a nullity. We do not believe that the problem can be encased Avithin such a simple, black-and-white framework.
In People ex rel. Wachowicz v. Martin (293 N. Y., 361), for example, the relator in a habeas corpus proceeding had been indicted for burglary in the third degree and for receiving stolen property. He pleaded guilty to the crime -of attempted grand larceny in the second degree on the second count of the indictment. He challenged his conviction by habeas corpus on the ground that the court lacked jurisdiction to convict him on his plea, since it was not for a crime necessarily included in those charged in the indictment. The County Court held the conviction to be invalid and the Appellate Division affirmed (id., 267 App. Div. 803). The Court of Appeals reversed and dismissed the writ. The opinion of Chief Judge Lehman states (pp. 366-367): “ The relator was properly held to answer for the crime charged in the indictment. He sought and obtained the benefit that might accrue to him from a finding of guilt of a crime connected with the same transaction, - though not necessarily included in the crime charged in the indictment. The court had jurisdiction to determine whether in those particular circumstances it was authorized to render a judgment which it was certainly competent to render in some 'circumstances. Its judgment was not a nullity and the defendant who asked the court to render an erroneous judgment in a pending judicial proceeding may not thereafter, when it suits his convenience, challenge the judgment by habeas corpus.”
*173Though in this ease the relator did not plead guilty, the facts in Wachowicz are otherwise similar. Faced with the serious charge of felony murder, the relator might well have decided, as a course of strategy, that he anight be ¡benefited if the jury were presented with a choice of a lesser crime for which it might find him guilty in preference to felony murder. Even though the decision might not have been made with the knowledge that the relator obtained later that the choice was not open to the jury in strict legal terms, yet the decision was ¡surely pragmátic and advantageous to the relator, for it turned out that the jury chose to hold him on the lesser charge.
It is true that ill People v. Englese (7 N Y 2d 83, 87) Wachowicz was said to be limited to cases in which pleas of guilty had been taken. Englese did not, however, consider the point raised here, but rather whether the defendant’s plea could stand to a defective indictment which mistakenly labeled as a felony facts which constituted nothing more than a misdemeanor.
It is instructive to bear in mind that an appeal is ordinarily the method by which errors relating to trials of offenses not found by the Grand Jury in its indictment áre corrected, rather than by the extraordinary means of habeas corpus. The difference may readily be seen by contrasting People v. Miles (289 N. Y. 360) with People ex rel. Prince v. Brophy (273 N. Y. 90). In Miles, a direct appeal, it was held that the defendant’s counsel could not consent to the amendment of the indictment to add an independent offense. On the other hand, in Primee, a habeas corpus proceeding, the court sanctioned an amendment charging án included offense not objected to by counsel. Indeed, in People ex rel. Harrison v. Jackson (298 N. Y. 219) it was said that habeas corpus was not the proper vehicle to contest the validity of a conviction on the ground that the defendant could not have been constitutionally tried, since he had been under the age of 16 (cf. People v. Foster, 19 N Y 2d 150).2
Having gained the advantage of instructions from the Trial Judge tempering the charge in the indictment.— even though the instructions were erroneous — and having failed to raise any objection to these instructions in either of his two appeals, the relator should not be in a position to employ habeas corpus on the theory that the trial court’s jurisdiction came to an end when it delivered the erroneous instructions and the jury followed them. This does not mean, that we depreciate order by *174making a supreme virtue of finality (but cf. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441). We think, instead, that in this case the trial court did not lose jurisdiction by making an error which the defendant'could have corrected on appeal and elected npt tb attempt."
The judgment accordingly should be affirmed, without costs.
. The record indicates that the trial court charged, without exception, that robbery was a lesser included crime of felony murder, and that all counsel were under the impression that the charge was proper.
. In People v. Brown (21 A D 2d 738) it will be observed that the defendant raised the objection on appeal that he could not be legally convicted of attempted manslaughter in the first degree on an indictment charging murder.