While I concur in the reversal of defendant’s conviction of attempted robbery in the second degree, I would do so for a different reason, and further I would affirm the conviction for conspiracy in the second degree.
The primary evidence against the defendant was obtained through a wiretap at Jimmy’s Lounge, a tavern on Avenue A on the lower East Side of Manhattan. The defendant was not the target, and by chance his criminal plans were legally overheard. (See People v. Gnozzo, 31 N Y 2d 134.) He, together with others, was preparing to hold up a messenger collecting receipts from various ticket desks at New Yofk hotels from the sale of theatre and sightseeing tickets, etc. It was obvious from the intercepted conversation that when the defendant and his cohort arrived at the front of the Commodore Hotel at Grand Central for the purpose of committing the robbery, they had missed the messenger. Accordingly, while they intended to commit that crime, they had not come “ very near to the accomplishment ”. *63(People v. Rizzo, 246 N. Y. 334, 337.) However, the conspiracy was clearly proven, and the jury finding should be affirmed, unless the evidence obtained by electronic eavesdropping is suppressed, as the majority would do.
The initial wiretap, which was in furtherance of an investigation regarding organized crime figures operating in New York County, was pursuant to a valid warrant, as renewed and extended (CPL 700.40). The warrant, however, did not have this defendant or the crime of robbery within its scope. The intercepted April 6 conversation, while suspicious, did not at all indicate that a crime was necessarily in the offing, merely having a ticket agency employee at the Boyal Manhattan Hotel telling the defendant to watch the messenger. The April 17 conversations had the nub of the proposed crime. On May 5, the application for amendment of the warrant to cover the situation was made. The statute states that an application to cover and retroactively legitimatize the interception be made ‘ ‘ as soon as practicable ’ ’ CPL 700.65 (subd. 4). In my opinion, the formal application, after the event, “ becomes a ministerial act ” and it cannot be said as a matter of law that a delay of some two weeks (or even one month) has sufficient significance to require suppression of the evidence. (Cf. People v. Hueston, 34 N Y 2d 116, 122.) In any event, the defendant did not raise the issue of the timeliness of the application to amend at the suppression hearing, and, therefore, the issue should be precluded on this appeal. (See People v. Pobliner, 32 N Y 2d 356.)
Accordingly, the judgment should be modified to reverse and dismiss the attempted robbery count, and otherwise affirmed.
Nunez, J. P., Murphy and Lynch, JJ., concur with Tilzer, J.; Kupferman, J., concurs in part and dissents in part in an opinion.
Judgment, Supreme Court, New York County, rendered on August 31, 1973, reversed, on the law, the motion to suppress granted and the indictment dismissed.