(dissenting). We respectfully dissent. In our view, reversal is required because the crime of which defendant was convicted was barred by the statute of limitations. Contrary to the conclusion of the majority, defendant did not waive the statute of limitations defense, either explicitly or by *146requesting that criminally negligent homicide (Penal Law § 125.10), the crime of which he was convicted, be charged to the jury as a lesser included offense of murder in the second degree (§ 125.25 [2] [depraved indifference murder]).
It is well established that, in this state, the failure to commence a prosecution within the statute of limitations is not a jurisdictional defect and is therefore waivable (see People v Kohut, 30 NY2d 183; People v Verkey, 185 AD2d 622, 624; People v Dickson, 133 AD2d 492, 494-495). Here, County Court advised defendant that, if it charged the lesser included offense of criminally negligent homicide, a charge requested by defendant, it would proceed with sentencing if defendant were convicted of that crime. The court further advised defendant that, in the event of a conviction of that crime, it would refuse to entertain a postjudgment motion to dismiss the count or to set aside the verdict on the ground that the conviction is barred by the statute of limitations. Defense counsel stated that, although defendant understood the manner in which the court intended to proceed, defendant was not waiving the statute of limitations defense and, indeed, was explicitly reserving his right to raise that defense on appeal in the event of a conviction of criminally negligent homicide. The court thereupon proceeded to instruct the jury on the lesser included offense (cf. People v Le Grand, 61 AD2d 815, 816, cert denied 439 US 835). Thus, in our view, although defendant could have waived the defense of the statute of limitations, he did not do so here.
We cannot agree with the majority’s conclusion that defendant’s request for the charge on the lesser included offense constituted a waiver of the statute of limitations defense. Because criminally negligent homicide is a lesser included offense of depraved indifference murder, and a reasonable view of the evidence supports a finding that defendant committed the lesser offense and not the greater offense (see CPL 300.50 [1]), the court was required by CPL 300.50 (2) to charge the lesser included offense once it was requested by defendant (cf. Le Grand, 61 AD2d at 816). The majority in effect concludes that, because the court complied with CPL 300.50 (2) by charging the lesser included offense requested by defendant, defendant thereby waived his right to raise the statute of limitations defense. The majority bases its conclusion on the premise that defendant “benefitted” from having the jury consider the lesser charge. In our view, the case law relied upon by the majority does not support its position and is not dispositive of the issue.
The majority correctly notes that a defendant waives his *147right to contest the sufficiency of the proof if he requests a charge to a lesser included offense and is convicted of that offense (see People v Holliday, 74 AD2d 993, 994; People v Legacy, 4 AD2d 453, 455); by requesting the charge, defendant concedes that there is sufficient evidence to support the conviction of the lesser included offense. The majority also correctly notes that a defendant waives his right to contest a conviction by failing to object when the court charges an offense that is not in fact a lesser included offense (see People v Simpson, 175 AD2d 851, 852, lv denied 79 NY2d 832; see also People v Ford, 62 NY2d 275, 281). The rationale for that principle is that a court should be advised of its error while it has an opportunity to correct it (see generally People v Gray, 86 NY2d 10, 19). We further note that the Court of Appeals in People v Foster (19 NY2d 150, 153), relied upon by the majority, held that defendant waived his right to appeal from a judgment convicting him upon a knowing and voluntary plea to the nonexistent crime of attempted manslaughter in the second degree where the plea was in satisfaction of an indictment charging defendant with manslaughter in the first degree. In Foster, “the range of sentence which the court could impose was cut in half’ (id.) and the defendant was no longer subject to prosecution for the higher crime. Here, however, defendant does not object to the sufficiency of the evidence; he does not contend that criminally negligent homicide is not in fact a lesser included offense of depraved indifference murder; and he did not plead guilty to a lesser included offense or a nonexistent crime. Thus, we conclude that the cases upon which the majority relies do not support the majority’s conclusion that defendant waived the statute of limitations defense by virtue of the fact that he “benefitted” from the court’s charge to the jury on the lesser included offense. Certainly defendant’s request for the court to do what it is required by statute to do cannot be deemed to result in defendant’s waiver of the statute of limitations. We therefore conclude that on these facts defendant did not waive the statute of limitations defense.
Because we conclude that the statute of limitations defense was not waived by defendant, we further conclude that the judgment of conviction must be reversed. The jury found that in 1978 defendant engaged in conduct that constituted the offense of criminally negligent homicide. It is undisputed that defendant could not be charged with that offense because of the expiration of the statute of limitations. Moreover, the People properly concede that, absent a waiver of the statute of limitations defense by defendant, they could not request a *148charge to the lesser included offense of criminally negligent homicide because defendant’s conviction of that lesser included offense would be subject to the statute of limitations defense.
Although there is a dearth of case law on this issue, it has long been the law in this state that “[a] conviction cannot rest on time-barred charges” (People v Hughes, 220 AD2d 529, 532; see People v Di Pasquale, 161 App Div 196, 196-197; see also Le Grand, 61 AD2d at 816; People v Gulston, 181 Misc 2d 644, 648). In 1914 the Third Department reversed a judgment convicting defendant of the lesser included offense of attempted murder, for which the statute of limitations had expired, concluding that “defendant is absolved from prosecution for the attempt to commit” the murder and thus “the lapse of time prevents a conviction for any other crime in connection with the death” except murder (Di Pasquale, 161 App Div at 198). We agree with the eloquent discussion of Justice Jenks, in his 1901 concurring opinion in People v Austin (63 App Div 382, 389-391, affd 170 NY 585), wherein he wrote:
“Why should the State enact a statute of limitations upon direct procedure, and thereby afford immunity for a crime, and yet permit punishment for the same crime by the indirect procedure of an accusation of a different crime? I can see no reason in the public policy that permits punishment for a crime when proven upon the trial of an indictment for a different crime, and yet prohibits punishment for that crime when sought by a direct indictment therefor. * * *
“ ‘[T]he State is * * * surrendering by act of grace its right to prosecute, and declaring the offen[s]e to be no longer the subject of prosecution. The statute [of limitations] is not a statute of process, to be scantily and grudgingly applied, but an amnesty declaring that after a certain time oblivion shall be cast over the offen[s]e * * *. Hence it is that statutes of limitation [s] are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys *149proofs of guilt. * * * [The statutes of limitations] are not merely acts of grace, but checks imposed by . the State upon itself to exact vigilant activity from its subalterns, and to secure for criminal trials the best evidence that can be obtained.’ ”
The purpose of the statute of limitations has not changed with time (see generally People v Seda, 93 NY2d 307, 311).
Accordingly, because defendant did not waive the statute of limitations defense and a “conviction cannot rest on time-barred charges” (Hughes, 220 AD2d at 532), we conclude that the judgment of conviction should be reversed.
Wisner and Burns, JJ., concur with Gorski, J.; Scudder, J., and Pigott, Jr., P.J., dissent and vote to reverse in a separate opinion by Scudder, J.
It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed.