OPINION OF THE COURT
Gorski, J.The principal issue on this appeal is whether defendant waived the statute of limitations applicable to criminally negligent homicide (Penal Law § 125.10) by"requesting that County Court charge that crime as a lesser included offense of murder in the second degree (§ 125.25 [2] [depraved indifference murder]), for which there is no statute of limitations. We conclude that, by requesting that the lesser included offense be charged, defendant thereby waived any statute of limitations defense with respect to that crime.
In 2000, defendant was indicted for murder in the second degree arising from the drowning death of the 12-year-old victim in 1978. According to the indictment, defendant pushed the victim off a pier, causing him to hit his head on the concrete pier before falling into the water and submerging, and thereafter abandoned him under circumstances creating a grave risk *143of death. Defendant contended at trial that the victim had emerged from the water after defendant had pushed him off the pier and that the victim, who was an epileptic and on seizure medication, had later drowned because of a seizure. The victim’s death was ruled an accident by the Coroner in 1978 but in 1999 defendant’s brother caused an investigation into the victim’s death by informing the police of what he believed had actually occurred in 1978. As a result of that investigation, defendant was indicted in 2000 for murder in the second degree. However, following the jury trial, defendant was. convicted of criminally negligent homicide as a lesser included offense of murder in the second degree.
Defendant contends that, inasmuch as the alleged crime occurred in 1978, he was charged with murder in the second degree in order to circumvent the statute of limitations applicable to criminally negligent homicide. In New York, there is no statute of limitations for depraved indifference murder, a class A-I felony (see CPL 30.10 [2] [a]), while there is a five-year statute of limitations for criminally negligent homicide, a class E felony, which commences from the date of commission of the crime (see 30.10 [2] [b]). Defendant was indicted in 2000, long after the statute of limitations had run on criminally negligent homicide. During the final charge conference, defendant requested a charge-down to the lesser included offense of criminally negligent homicide, and the court granted that request.
In a case decided in 1901, it was determined that, “upon an indictment for any offense consisting of different degrees, the jury may find the accused guilty of any degree of such offense inferior to that charged” (People v Austin, 63 App Div 382, 385, affd on op below 170 NY 585), and the statute of limitations applied to “the indictment on which the defendant was arraigned and tried, and not to the minor grade of offence for which he might be found guilty on the trial for the higher grade of crime for which the grand jury accused him” (id. at 386). Later, in People v Legacy (4 AD2d 453, 455), it was determined that where defendant accepted the benefit of “instructions to a jury allowing it to find lesser degrees of crime * * * [h]e ought not be allowed to take the benefit of the favorable charge and complain about it on appeal.” In People v Holliday (74 AD2d 993, 994), this Court wrote that, where “defendant has requested a charge down” from murder in the second degree to criminally negligent homicide, he may not “on appeal, complain that the evidence will not sustain a conviction of the lesser *144charge.” In addition, where a defendant requests a lesser charge or acquiesces in it, he is deemed to have waived the right to contend on appeal that the court erred in charging that lesser offense although it is not in fact a lesser included offense (see People v Simpson, 175 AD2d 851, 852, lv denied 79 NY2d 832).
Here, we conclude that, by requesting that the court charge criminally negligent homicide, defendant waived any statute of limitations defense applicable to that crime, defendant having accepted “the benefit of general instructions to a jury allowing it to find lesser degrees of crime” (Legacy, 4 AD2d at 455) and thereby substantially reducing “the range of sentence which the court could impose” (People v Foster, 19 NY2d 150, 153). A “Statute of Limitations defense is not a nonwaivable constitutional or jurisdictional right, for unless the defense is asserted the People are not put to their burden of demonstrating that the action is timely” (People v Dickson, 133 AD2d 492, 495; see also People v Kohut, 30 NY2d 183, 186; People v Verkey, 185 AD2d 622, 624; People v De Pillo, 168 AD2d 899, lv denied 78 NY2d 965). The fact that defendant attempted to reserve his statute of limitations defense while at the same time affirmatively requesting the lesser charge is of no moment. Having requested the lesser charge, he thereby waived his right to challenge the timeliness of that lesser charge on appeal (see generally People v Richardson, 88 NY2d 1049, 1051; People v Orengo, 283 AD2d 377).
Moreover, contrary to defendant’s contention, the evidence before the grand jury was sufficient to support the charge of depraved indifference murder (see People v Mayo, 36 NY2d 1002, 1005), and the evidence before the jury at trial was legally sufficient to have sustained a conviction of that charge (see Holliday, 74 AD2d at 993-994). At the grand jury, there was testimony that defendant, who was then 17 years old, pushed the 12-year-old victim from a pier into a lake, that the victim hit his head and did not surface, that defendant knew the victim had not surfaced, and that defendant did nothing to attempt to save the victim. In addition, there was testimony that defendant lied to others who were present so that they would not attempt to save the victim. Essentially identical testimony was presented at trial. Because the evidence may be viewed as establishing that defendant appreciated the risk to the victim of his actions and inaction, defendant was properly indicted for depraved indifference murder, and the evidence at trial was legally sufficient to have sustained a conviction of that crime.
*145Defendant’s remaining contentions are similarly lacking in merit. The court properly determined that the inculpatory statements made by defendant to his wife in 1999 were not protected by the spousal privilege set forth in CPLR 4502 (b). In making statements to his wife concerning the crime and in stating to her, “I’ve killed before, and I’ll do it again,” defendant was physically and verbally threatening her. Those inculpatory communications, therefore, cannot be said to have been made in absolute confidence “induced by [ ] the marital relationship” (People v Melski, 10 NY2d 78, 80), nor were they “prompted by the affection, confidence and loyalty engendered by such relationship” (People v Edwards, 151 AD2d 987, 987 [internal quotation marks omitted], lv denied 74 NY2d 808).
Also contrary to defendant’s contention, no court order was required to compel the grand jury testimony of defendant’s wife. She was given an opportunity prior to her testimony to consult with counsel (see People v Ianniello, 21 NY2d 418, 424-425, rearg denied 20 NY2d 1040, cert denied 393 US 827) and she thereafter did not refuse to testify (see Matter of Beach v Shanley, 62 NY2d 241, 248). At trial, when defendant’s wife refused to testify and “could not recall” some of the details of her prior testimony regarding defendant’s inculpatory statements, the court properly permitted the People to treat her as a hostile witness (see People v Davis, 163 AD2d 826, 826-827, lv denied 76 NY2d 939) and to question her with respect to those prior sworn statements (see CPL 60.35 [1]). In addition, the court properly admonished the jury that such questioning was for the “sole purpose of evaluating credibility” and that the prior testimony of defendant’s wife was not to be considered “legal evidence in this case” (see 60.35 [2]; cf. People v Patterson, 203 AD2d 597, 598).
We reject defendant’s contention that the sentence of lVs to 4 years is unduly harsh or severe. Lastly, we conclude that the court did not abuse its discretion in declining to grant defendant the youthful offender status for which he was eligible when the crime was committed in 1978 (cf. People v Torres, 238 AD2d 933, 934).
Accordingly, we conclude that the judgment should be affirmed.