
    The People of the State of New York, Respondent, v. Michael Blake, Appellant.
   Appeal by defendant from a judgment of the Supreme Court,. Queens County, rendered August 20, 1969; convicting defendant of murder, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and in the interests of justice, and new trial ordered. Defendant was convicted of felony murder, arising out of the death of an elderly woman during an alleged robbery in Queens County on January 30, 1968. The sole evidence linking him with the crime was his own written “confession” (in question and answer form), plus several oral admissions. These statements relate that defendant and one Palmieri (who was tried separately) saw the victim walking down the street and decided to steal her poeketbook; that Palmieri grabed the victim around the neck and dragged her down some steps into an alleyway while defendant remained on the street as a lookout; and that, when Palmieri did not quickly return, defendant went down to investigate. What he found, as confirmed by several police witnesses and an associate medical examiner, was that the victim had apparently been the subject of an attempted sexual attack and had been brutally beaten about the head with a rock. By his own account, defendant was shocked, panicked and immediately ran from the scene. Defendant initially requested and was granted a charge that the jury should acquit of felony murder if it found that the actual killing was not done in furtherance of the alleged commonly planned robbery but rather in furtherance of Palmieri’s own private purpose. However, when the jury subsequently requested further instructions on the law, the trial court refused to reiterate this portion of its initial charge. In our view, this refusal constituted prejudicial error. On the evidence presented, the jury was entitled to acquit defendant of felony murder if it believed the exculpatory portions of his statements. Gulotta, P. J., Hopkins, Martuscello and Brennan, JJ., concur; Munder, J., dissents and votes tó affirm (cf. People v. Bornholdt; People v. Victory, 33 N Y 2d 75).  