Yesawich Jr., J. (concurring in part and dissenting in part). We respectfully disagree with the majority insofar as they affirm defendant’s conviction of attempted manslaughter in the first degree, a nonexistent crime (see, People v Campbell, 72 NY2d 602, 606; People v McDavis, 97 AD2d 302, 303-304).
Concededly, a defendant who fails to object to the submission to the jury of a lesser crime arising from the same transaction which is not in fact a "lesser included” offense (see, People v Ford, 62 NY2d 275, 282-283; People v Dunavin, 173 AD2d 1032, lv denied 78 NY2d 965) or who, as part of a *937plea bargain, pleads guilty to a nonexistent crime in satisfaction of an indictment carrying a heavier penalty (see, People v Foster, 19 NY2d 150, 153; People v King, 175 AD2d 411, lv denied 78 NY2d 1078) waives the right to later complain about the resulting judgment. Here, however, we are dealing not with an appeal from a conviction based upon a negotiated plea or a jury verdict convicting defendant of a crime which, though not a lesser included offense of the indicted crime, is nonetheless legally cognizable (see, People v Ford, supra, at 282-283), but rather with an appeal from a jury verdict convicting defendant of a crime which does not exist and is impossible to commit. This is an entirely different situation and makes irrelevant the issue of whether defendant objected to the court’s charge, for the failure to do so cannot transform what is not a crime into a crime. To conclude otherwise is "logically repugnant” (People v Brown, 21 AD2d 738, 739; see, People v Foster, supra, at 152-153; see also, People v Zimmerman, 46 AD2d 725).
Accordingly, we would affirm the judgment finding defendant guilty of criminal possession of a weapon in the third degree and, as a matter of discretion in the interest of justice, reverse the judgment for attempted manslaughter in the first degree (see, People v Jackson, 49 AD2d 680).
Mahoney, J., concurs. Ordered that the judgment is affirmed.