Kupferman and Eager, JJ., concur in memorandum; Nunez, J. P., and Capozzoli, J., concur in a separate memorandum by Capozzoli, J.; Murphy, J., dissents in a memorandum. Capozzoli, J. (concurring). In my view the trial court erred in not specifically instructing the jury on the elements which constitute the crime of robbery. The ease was tried on the theory of felony homicide, the underlying felony being robbery. Surely the definition of the. underlying crime should have been given to the jury. However, the defendant took no exception to the failure of the court to define robbery and made no request for an additional charge. In
People v.
Adams (
21 N Y 2d 397 , 403) the court said: “No exception or objection was taken to the charge and no request was made to charge differently. Thus, any-question relating,to error in the chárge is not available on this appeal (Code Crim. Pro., § 420-a;
People v. Feld, 305 N. Y. 322 , 332).” Murphy, J. (dissenting). Defendant was convicted of two counts of murder and possession of a weapon as a felony, resulting from his alleged involvement with another in the commission, or attempted commission, of a robbery. Each defendant, tried separately, was originally charged with two counts of murder of the intentional type, two counts of murder perpetrated in the commission of a completed or attempted robbery, robbery, grand larceny and possession of a weapon as a felony. 'The codefendant, who was the actual perpetrator of the two homicides, was convicted of all crimes charged. At appellant’s trial, the Trial Justice dismissed the two intentional murder counts after the prosecutor’s opening statement and the robbery and larceny counts at the end of the People’s case. Appellant was then convicted of the three remaining charges. While there appears to have been sufficient evidence adduced to sustain the verdict, I cannot affirm this conviction because I believe a fundamental error was committed, in the charge to the jury. After the Trial Judge dismissed the robbery and larceny counts for insufficient evidence, he charged the jury on the felony murder counts, in pertinent part, as follows: “Your first function here with respect to these two counts of murder is to determine on the basis of the evidence, are you satisfied beyond a reasonable doubt, that the defendant Edward Dennis did participate in a robbery or an attempt at a robbery at the premises 1489 Southern Boulevard in the early morning hours of February 7th, 1970. If you find from the evidence that he did not, that he was not involved in the commission or attempted commission of any robbery on the premises then you go no further, you acquit him. If you find that he did in fact participate in a robbery and if you find that Dolores Slade and Wilfredo Hernandez were killed during the commission of that crime while this defendant was acting in concert with Eugene Robert White, then there would be a basis for finding him guilty under the first and third counts charging felony murder.” Nowhere, however, was the jury charged on the law of robbery or attempted robbery. For the jury to determine whether the defendant participated in a robbery or attempted robbery before they consider whether there was a killing during the commission of that crime, they must be charged on the legal elements and definitions of these crimes or else there can be no conviction under the law. If there was no underlying crime there can be no felony murder, and if the jury is not told what constitutes commission of the underlying crime they cannot apply the proven facts to the law, as they must, to reach a valid verdict. It has, of course, been established that the underlying felony in a felony murder indictment is not a necessary ingredient thereof and that the crimes of murder and robbery are substantively separate and disconnected offenses. (Cf.
People v.
Nichols, 230 N. Y. 221 .) Accordingly, there was no error in dismissing the robbery count. But in order to sustain the conviction it is still necessary to prove the required malice or felonious intent, which may be established by showing that