Robbery is forcible stealing.  A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

A person is guilty of murder in the second degree when:

Stephen Ross (Donald Morenstein on the brief), for appellant.

Eugene Gold, District Attorney (Beth S. Lasky of counsel), for respondent.

SUOZZI, J. P., and HAWKINS, J., concur with MARGETT, J.; SHAPIRO, J., dissents and votes to reverse the judgment and dismiss the indictment, with an opinion, in which COHALAN, J., concurs.

573*573MARGETT, J.

Defendant was convicted of the murder of a 20-year-old girl who was pinned between a moving subway train and the subway platform as a result of his unsuccessful attempt to snatch her purse from his position between cars of the moving train. In convicting the defendant of felony murder, the jury necessarily found that he had attempted to rob his victim. On appeal defendant argues, inter alia, that purse snatching cannot be considered anything more than a larceny, which is not one of the felonies enumerated in the felony murder statute (Penal Law, § 125.25, subd 3). We reject this contention and hold that the method of purse snatching here employed did constitute the crime of robbery.^[1]

The facts adduced at the trial may be briefly summarized. The victim, Regina Graham, left her Brooklyn home on the morning of November 30, 1970 to buy a birthday present for her brother. That same morning defendant met a friend named Samaniego, who was about to travel from Brooklyn into Manhattan by subway to pick up his girlfriend. Defendant told Samaniego that he intended to "snatch one on the way uptown." Samaniego understood defendant to mean that he intended to snatch a pocketbook. Defendant and Samaniego boarded a subway train at Utica Avenue.

Defendant and his friend changed trains at Nevins Street. Samaniego sat down in the forward end of one of the cars toward the rear of the train. Shortly before the subway train pulled out of the station, defendant left Samaniego, ran toward the rear of the car, opened the door leading to the next car and disappeared from view. A passenger seated across from Samaniego observed Regina Graham standing on the platform in front of the door which was about to close.

The train started to move and the conductor, who was looking toward the rear of the train, saw an arm stick out from between two cars. The arm had Regina Graham by the pocketbook or the coat and was pulling her down. With the momentum of the train, she "started to move forward" and the arm was "still on her person" as she started to stumble. The conductor pulled the emergency cord to stop the train, but the girl's leg had already become wedged between the train and the platform.

574*574Within seconds after the train had stopped, defendant reentered the car in which Samaniego was seated and sat down next to him. He told Samaniego he had "missed the pocketbook" and that the "lady went down." He then told Samaniego to switch jackets with him and the exchange was made. The two of them then walked through several cars heading towards the forward end of the train. The conventional entrance-exit doors of the train were all closed, so defendant and Samaniego exited the train by going between two cars and lifting the chain safety gate between the cars. They boarded another train, re-exchanged jackets and rode into Manhattan, where Samaniego got off to meet his girlfriend.

Regina Graham suffered extensive "crushing injuries" of the pelvic area and both legs; three-quarters of the last car had apparently passed over her body before the train was stopped. She died 11 days later as a result of her injuries.

The sole defense was insanity. Defendant told one psychiatrist that he had learned to snatch purses from subway trains at the age of six and that he had been using this technique for 12 years. On an average day he might steal as many as seven or eight purses during rush hour. Defendant also told the psychiatrist that he feels depressed when he does not rob. In addition, the expert witness testified that he had learned, from defense counsel, that defendant used to bring pocketbooks home to his mother and that she would take part of the money and let him keep the rest. It was the conclusion of this expert, as well as that of a second psychiatrist called by the defense, that defendant has a compulsion to steal purses and that he lacked substantial capacity to appreciate the nature and consequences of what he was doing on November 30, 1970.

The expert called by the People in rebuttal testified, in essence, that defendant had a bad habit, not a compulsion. He described defendant as a sociopath with chronic delinquent urges, who knew the danger and quality of the act and that it was wrong.

Following this testimony, defendant moved to dismiss the indictment on the ground that the People had failed to prove that he used "physical force" and that, therefore, he could not be guilty of attempted robbery (see Penal Law, § 160.00) or of felony murder (see Penal Law, § 125.25, subd 3). Defendant's mode of operation was likened to that of a pickpocket. The motion was denied; the trial court indicated that the question 575*575 of whether robbery had been proven beyond a reasonable doubt would be submitted to the jury. The elements of robbery were charged to the jury, which returned a verdict of guilty of felony murder.

On appeal defendant again likens his actions to those of a pickpocket and contends that the proof was insufficient to establish felony murder. Viewed in a light most favorable to the People's case (see People v Monaco, 14 N.Y.2d 43; People v Fidler, 280 App Div 698), the evidence was sufficient to establish, under any generally accepted standard, that Regina Graham's death was the result of an attempted robbery. Moreover, we hold, as a matter of law, that the modus operandi here employed constitutes "physical force" within the meaning of the robbery statute (see Penal Law, § 160.00).

Those few New York cases which have discussed "purse snatching" are generally in accord with the rule followed by most jurisdictions, viz., a snatching unaccompanied by any resistance is not sufficient to constitute a robbery (McCloskey v People, 5 Parker Cr Rep 299; see, also, People v Hall, 6 Parker Cr Rep 642; People v McGinty, 24 Hun 62; Purse Snatching as Robbery or Theft, Ann. 42 ALR3d 1381). The rule in New York was formulated against the backdrop of a 10-year mandatory minimum sentence of imprisonment for robbery in the first degree (Rev Stat of NY, part IV, ch I, tit III § 71 [1875 ed], § 57 [1852 ed])^[2] and was enunciated in cases which involved the most innocuous of fact patterns. Thus, in McCloskey v People (supra), the defendant met the complainant in a bar and both had been drinking. They left the bar and, as they were walking along the street "in a friendly manner", the defendant reached into the complainant's pocket and took some coins. "No more force was used than sufficient to pull the money out of the pocket of the [complaining] witness" (5 Parker Cr Rep, at p 307). The complainant "evidently considered and treated the * * * [defendant's] conduct as a joke." He made no resistance "and yielded neither to force or fear" (5 Parker Cr Rep, at p 308). At the trial the court charged that if the force used were sufficient to make out an assault and battery, there would be a robbery. It further charged that if the jurors believed the complainant, they must find the defendant guilty of robbery. On appeal it 576*576 was held that "[t]he mere snatching anything from the hand or the person of any one, without any struggle or resistance by the owner, or any force or violence on the part of the thief, will not constitute robbery" (5 Parker Cr Rep, at p 306). It was further held that it was error to equate a simple assault and battery with robbery and that a greater degree of violence is necessary to make out a robbery. Examples of such a greater degree of violence, taken from English cases, were used — e.g., it is a robbery when an earring is taken with such violence as to lacerate the ear of the wearer, or where a diamond hair ornament is pulled with such force as to tear a part of a lady's hair from her head.

People v Hall (6 Parker Cr Rep 642, supra) involved an apparent misunderstanding about a watch between two men who knew each other. The defendant complained to a constable, who told the complainant to stop and that he had better return defendant's watch if he had it. The complainant told the constable to search him. The constable took a watch out of the complainant's pocket and showed it to the defendant, who said it was not his watch. Nonetheless, defendant asked the constable if he could hold it. The constable complied and then asked the complainant whether he had another watch. The complainant took another one out of his pocket — this one was attached to a chain. The defendant said that it was not his either, but yanked the watch loose from the chain and said: "`Damn him, I've got two for one — let him go'" (6 Parker Cr Rep, at p 644). Defendant was convicted of robbery, but a new trial was ordered because the court had charged that the degree of violence used was sufficient to warrant finding the defendant guilty of the offense. The court stated (p 652): The especial heinousness of the offense of robbery over simple larceny, consists in the terror and fear inspired, and in the apprehension and danger of injury to the person involved in the commission of the offense * * * There must be such force employed, or such degree of force, as shall overcome the free agency or power of resistance of the person despoiled" (emphasis supplied).

Finally, in People v McGinty (24 Hun 62, 63, supra), defendant was charged with robbery after he knocked a man's pockebook out of his hand in a bar and then physically threw him out of the door. The charge to the jury was that "if the force which was used was sufficient to deprive complainant of his property against his will, that would be sufficient to 577*577 constitute the violence to the person" necessary to prove robbery (p 63). The court held that to be error, noting that a pickpocket who steals a handkerchief uses sufficient force to deprive the owner of his property. The court further held (p 64) that the violence necessary to make out robbery "generally implied the overcoming, or attempting to overcome, an actual resistance".

These cases have limited precedential value because of the harsh sentencing laws at the time they were decided and their peculiar facts. No District Attorney would now seek a robbery indictment on the facts of McCloskey or Hall — the courts therein were obviously grappling with hypertechnical definitions of force. Thus, McCloskey involved the question whether a simple "unpermitted touching" — a technical assault — constituted sufficient force, while it appears that the defendant in Hall was faced with a robbery conviction principally because the "second" watch was yanked from a chain, a number of English cases having held that where a chain or pendant was broken during the course of a snatching, the act constituted robbery. As for McGinty, the result would probably be different today since, by statute, the element of physical force may be satisfied by the use of physical force "immediately after the taking" for the purpose of retaining the stolen property (see Penal Law, § 160.00, subd 1; see, also, People v Beebe, 70 Mich App 154, for a full discussion of the law with respect to when the element of force must occur — most jurisdictions now consider the totality of a "transaction" in deciding whether an actor's conduct may be termed a robbery). Even in the early cases it was recognized that the overcoming of any resistance would be sufficient force to constitute a robbery.

In a majority of the other jurisdictions, the same general rules apply. Thus, "a sudden taking or snatching may be accompanied by sufficient force to constitute robbery" (Ann. 42 ALR3d 1381, 1385, § 5[a]; Adams v State, 295 So 2d 114 [Fla App] [resistance in any degree is sufficient]; State v Houston, 451 SW2d 37 [Mo] [the victim's assailants grabbed her, knocked her down and snatched her purse with sufficient force to tear the straps thereof — held, no error not to charge stealing]; Williams v State, 7 Md App 683 [sufficient evidence for the trier of facts to conclude that the victim resisted — such a degree of violence was employed that the pocketbook fell to the ground]; Bauer v State, 45 Ariz 358 [even though a 578*578 snatching is not looked upon as a taking by force, it is otherwise where there is a struggle to keep the property]).

The "majority rule" has been criticized on the ground that it "put[s] a premium on criminal skill and adroitness", since the thief who is clumsy or slow enough to enable his victim to resist faces a more severe penalty than the more "professional" snatcher (Note, 23 J Crim Law 113, 115). A few jurisdictions have held that a snatching of property from the victim is sufficient to constitute a robbery regardless of the victim's resistance or lack thereof (Jones v Commonwealth, 112 Ky 689; State v Carr, 43 Iowa 418). In Jones v Commonwealth (supra, p 695), the court concluded from the evidence that the grabbing of the pocketbook from the complainant's hand "was probably done so quickly that he had no chance to actively resist". Nevertheless, it held that this constituted sufficient force to make out the elements of robbery. (See, also, Commonwealth v Davis, 23 Ky L Rep 1717, where it was held that larceny is accomplished secretly or by surprise or fraud and that any force which is sufficient to take the property against the owner's will makes out a robbery; Snyder v Commonwealth, 21 Ky L Rep 1538, where the victim was pushed and shoved about by defendant and his accomplice for the purpose of diverting his attention — it was held to be a robbery even though the victim was unaware of his loss at the time; Williams v Commonwealth, 20 Ky L Rep 1850, where the defendant wrenched a pocketbook from the hand of the complainant, who gave it up because defendant was stronger.) The "minority" rule was most recently adopted by the Massachusetts Supreme Court in Commonwealth v Jones (362 Mass 83, 88-89), wherein the following observations were made: "We prefer the Kentucky rule on purse snatching. The majority jurisdiction rule, in looking to whether or not the victim resists * * * wrongly emphasizes the victim's opportunity to defend himself over the willingness of the purse snatcher to use violence if necessary. See Note, 23 J. Cr. Law, 111, 115. Historically, however, the law has singled out the robber from other thieves because of his readiness to inflict bodily injury upon his victims. [Citing Am. Law Inst., Model Penal Code, § 222.1, Comment (Tent. Draft No. 11, 1960).] * * * Clearly, more is involved than in a mere stealthy taking where the victim has no present realization of the theft. See Anderson, Wharton's Criminal Law & Procedure, § 560."

On this record, it is unnecessary for this court to make a 579*579 determination as to whether purse snatching, per se, constitutes a robbery. Suffice it to say that there was sufficient evidence to support a jury finding that the victim resisted by clinging to her purse and that the overcoming of this resistance, through the use of the overwhelming momentum of the train, constituted a robbery by any definition of that term.^[3]

Even assuming that there was no resistance, the extreme danger created by defendant's method of operation must be classified as such an aggravated form of theft as would constitute a robbery. A robbery is committed "when, in the course of committing a larceny * * * [one] uses or threatens the immediate use of physical force upon another person for the purpose of * * * [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking" (Penal Law, § 160.00, subd 1). In considering what degree of physical force is sufficient to constitute a robbery, it should be borne in mind that the law of robbery, and indeed other forms of aggravated theft, developed "to protect not only against misappropriation [of property] but also against injuries which may result from peculiarly dangerous means devised for accomplishing misappropriation" (Note, 54 Col L Rev 84). "Regardless of the success of the misappropriation, aggravated theft is always accompanied by the possibility of physical or psychic injury to the victim * * * To the extent that the method of perpetration increases the likelihood of the misappropriation or of physical and mental harm to the victim, severer punishments must be meted out" (Note, 54 Col L Rev 84, 109).

Defendant's method not only increased his chances of a successful "misappropriation" of property, it was accompanied, as well, by the possibility of severe physical injury to the victim. It could not be predicted whether a bag would be plucked with ease or whether, as here, the victim would resist and be dragged along with the train; nor should it make any difference for the purposes of penal classification. We conclude that the defendant used physical force, by means of the forward momentum of a moving train, to prevent or overcome 580*580 resistance to the taking of Regina Graham's pocketbook (see Penal Law, § 160.00). As a result thereof, his victim suffered injuries which resulted in her death. Accordingly, the judgment convicting defendant of murder should be affirmed (see Penal Law, § 125.25, subd 3).

We have considered the other points raised by defendant on this appeal and have found them to be without merit.

SHAPIRO, J. (dissenting).

Defendant has been sentenced to a term of 15 years to life upon a jury verdict convicting him of felony murder.

Upon this appeal he raises four issues. Only one of them, in my opinion, merits discussion, and that is whether, as a matter of fact, the proof was sufficient to establish the underlying felony — attempted robbery — as a predicate for defendant's conviction of felony murder. I do not believe it was.

Felony murder is defined in section 125.25 of the Penal Law, in relevant part, as follows: "3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants" (emphasis supplied). (At the time the crime was committed, there was only one degree of "murder" in the New York Penal Law. At the present time, section 125.25 of the Penal Law is entitled murder in the second degree.)

Robbery is defined in section 160.00 of the Penal Law. That statute provides:

"Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

"1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

"2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny."

The facts, briefly stated, show that one Regina Graham, 581*581 aged 20, fell off a subway platform and was injured by a moving train at about 12:45 P.M. on November 30, 1970. She died of her injuries 11 days later. The train conductor, Robert Simmons, had just closed the train doors, after looking in both directions of the platform from his cab in the sixth car of the train to make sure the doors were clear. As the train began to move and Simmons glanced to the rear of the train once more, he saw a forearm extended from the train (from between two cars, because the doors were closed), pulling at a young woman, either by her pocketbook or her arm. The thief missed his quarry, but the woman began to stumble toward the edge of the platform. Simmons, inside his cab, pulled the emergency cord. One of the passengers on the train, Steven Wiley, gave his name and address to the police. What Wiley had seen was two young men in a rear car of the train. One of the young men (identified by him as the defendant) raced through the car just as the train started to move, opened the door between the cars and closed it behind him. When the train stopped suddenly, he returned and exchanged jackets with his companion. There is no doubt that the defendant is the person who attempted, unsuccessfully, to snatch the decedent's pocketbook.

Although, unfortunately, a death resulted from what defendant did, the undisputed facts in this record reveal no more than an attempted snatch of a pocketbook and not an attempted robbery, as that term is defined in the applicable statutes. Pocketbook snatching constitutes a larceny (McCloskey v People, 5 Parker Cr Rep 299), which is not by statutory definition a crime upon which a felony murder charge can be predicated (cf. People v Woods, 41 N.Y.2d 279).

I am not persuaded by the ruling of the trial court that the moving train became an element of the physical force applied by the offender so as to bring the defendant's conduct within the statutory definition of an attempted robbery, or of the contention of the People in their brief that the appellant, in relying on the forward momentum of the train to create physical force to assist his theft, was guilty of a robbery. In my opinion, the majority, by sustaining the conviction in this case, is making bad law in a hard case. I would reverse and dismiss the indictment.^[*]

Judgment of the Supreme Court, Kings County, rendered May 5, 1972, affirmed.

Feldman and Feldman, Hauppauge (Steven A. Feldman and Arza R. Feldman of counsel), for David Hernandez, appellant.

Barry Stendig, New York City, and Philip L. Weinstein for Oswaldo Santana, appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Paula Milazzo, Amyjane Rettew and Phyllis A. Monroe of counsel), for respondent.

Chief Judge KAYE and Judges TITONE, HANCOCK, JR., BELLACOSA, SMITH and LEVINE concur.

311*311SIMONS, J.

This appeal raises the question whether a conviction of felony murder under Penal Law § 125.25 (3) should be sustained where the homicide victim, a police officer, was shot not by one of the defendants but by a fellow officer during a gun battle following defendants' attempted robbery. Under the 312*312 circumstances presented, we conclude that it should, and we therefore affirm.

I

Defendants Santana and Hernandez conspired to ambush and rob a man who was coming to a New York City apartment building to buy drugs. The plan was to have Santana lure him into the building stairwell where Hernandez waited with a gun. In fact, the man was an undercover State Trooper, wearing a transmitter, and backed up by fellow officers.

Once the Trooper was inside the building, Hernandez accosted him and pointed a gun at his head. A fight ensued during which the officer announced that he was a policeman, pulled out his service revolver and began firing. In the confusion, Hernandez, still armed, ran from the building into a courtyard where he encountered members of the police backup unit. They ordered him to halt. Instead, he aimed his gun at one of the officers and moved toward him. The officers began firing, and one, Trooper Joseph Aversa, was fatally shot in the head. His body was found near the area where Hernandez was apprehended after being wounded. Santana was arrested inside the building.

The evidence at trial did not establish who killed Aversa, but the People concede that it effectively eliminated the possibility that either defendant was the shooter. Separate juries were empaneled for the two cases, and both defendants were convicted of felony murder and other charges.

On appeal, defendants contend that the felony murder charges should have been dismissed because neither one of them fired the fatal shot. The Appellate Division rejected that argument. Even though a fellow officer shot Aversa, the Court concluded that defendants were properly held responsible for felony murder because their conduct "unquestionably `forged' a critical link in the chain of events that led to Trooper Aversa's death" (186 AD2d 471, 473).

II

Some 30 years ago, this Court affirmed the dismissal of a felony murder charge on the grounds that neither the defendant nor a cofelon had fired the weapon that caused the deaths (People v Wood, 8 N.Y.2d 48). In Wood, the defendant and his companions were escaping from a fight outside a 313*313 tavern when the tavern owner, attempting to aid police, fatally shot a bystander and one of defendant's companions. Defendant was charged with assault and felony murder. At the time, the relevant provision of section 1044 of the former Penal Law defined murder in the first degree as "[t]he killing of a human being * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony" (§ 1044 [2]). We concluded that by the plain terms of the statute defendant could not be liable for murder, for the killing of the two men was not committed by a person "engaged in the commission of" a felony or a felony attempt. Relying on the statute's "peculiar wording", we decided the case without addressing whether a similar result would be required as a matter of common law (8 NY2d, at 53; see, Commonwealth v Redline, 391 Pa 486, 137 A2d 472). The Wood case acknowledged that other jurisdictions differed on whether to apply a proximate cause theory under which felons could be held responsible for homicides committed by nonparticipants or an agency theory under which felons would be responsible only if they committed the final, fatal act (People v Wood, supra, at 51-53; see, Annotation, Criminal Liability Where Act of Killing is Done by One Resisting Felony or Other Unlawful Act Committed by Defendant, 56 ALR3d 239, 249-261, §§ 4, 5).

In 1965, the Legislature revised the felony murder statute by removing the language that had been dispositive in Wood and replacing it with a provision holding a person culpable for felony murder when, during the commission of an enumerated felony or attempt, either the defendant or an accomplice "causes the death of a person other than one of the participants" (Penal Law § 125.25 [3]). Thus, this appeal raises the question of whether Wood remains good law despite the recasting of the Penal Law. The question is one of first impression for this Court, although some Appellate Division panels have continued to adhere to the Wood rule that the shooter must be a participant in the underlying felony (see, e.g., People v Castro, 141 AD2d 658, lv denied 72 N.Y.2d 1044; People v Ramos, 116 AD2d 462).

The People believe those Appellate Division decisions to be in error. They premise their argument on the established construction of the term "causes the death", which is now the operative language in the Penal Law. That term is used consistently throughout article 125 and has been construed to mean that homicide is properly charged when the defendant's 314*314 culpable act is "a sufficiently direct cause" of the death so that the fatal result was reasonably foreseeable (People v Kibbe, 35 N.Y.2d 407, 412; accord, Matter of Anthony M., 63 N.Y.2d 270, 280; People v Stewart, 40 N.Y.2d 692, 697). In the People's view the evidence here meets that standard. They contend that it was highly foreseeable that someone would be killed in a shootout when Hernandez refused to put down his gun and instead persisted in threatening the life of one of the back-up officers. Thus, under the People's theory, Hernandez "caused the death" of Aversa. Because his attempt to avoid arrest was in furtherance of a common criminal objective shared with Santana, the People contend that the murder was properly attributed to Santana as well as under principles of accomplice liability (see, People v Friedman, 205 N.Y. 161; accord, People v Wood, supra, at 52).

In response, defendants assert that People v Wood, though decided on narrow statutory grounds, states a rule that was followed for centuries at common law and one that has been embraced by a significant number of jurisdictions.^[*] The rationale for requiring that one of the cofelons be the shooter (or, more broadly, the person who commits the final, fatal act) has been framed in several ways. Some courts have held that when the victim or a police officer or a bystander shoots and kills, it cannot be said that the killing was in furtherance of a common criminal objective (State v Severs, 759 SW2d 935, 938 [Tenn Crim App]). Others have concluded that under such 315*315 circumstances the necessary malice or intent is missing (Wooden v Commonwealth, 222 Va 758, 284 SE2d 811). Under the traditional felony murder doctrine, the malice necessary to make the killing murder was constructively imputed from the mens rea incidental to perpetration of the underlying felony (Commonwealth v Redline, 391 Pa 486, 493-494, 137 A2d 472, 475,supra; IV Blackstone, Commentaries, at 200-201). Thus, in Wooden, the Virginia Supreme Court concluded that where a nonparticipant in the felony is the shooter, there can be no imputation of the necessary malice to him, and no party in the causal chain has both the requisite mens rea and culpability for the actus reus. Still other courts have expressed policy concerns about extending felony murder liability. They have asserted that no deterrence value attaches when the felon is not the person immediately responsible for the death, or have contended that an expansive felony murder rule might unreasonably hold the felons responsible for the acts of others — for instance, when an unarmed felon is fleeing the scene and a bystander is hit by the bad aim of the armed victim (see, People v Washington, 62 Cal 2d 777, 781-782, 402 P2d 130, 134; State v Bonner, 330 NC 536, 541-542, 411 SE2d 598, 601).

III

Analysis begins with the statute. The causal language used in our felony murder provision and elsewhere in the homicide statutes has consistently been construed by this Court according to the rule in People v Kibbe (35 N.Y.2d 407, supra), where we held that the accused need not commit the final, fatal act to be culpable for causing death. To accept defendants' analysis would require that we hold that the phrase "causes the death" in subdivision (3), the felony murder paragraph of section 125.25, means something entirely different than it does in subdivisions (1) and (2) of the very same section. That is contrary to the normal rules of statutory construction (see, People v Bolden, 81 N.Y.2d 146, 151).

That rule of construction must bend, of course, if in fact the Legislature intended the language to have a unique meaning within the context of the felony murder provision, but the legislative history of the 1965 revision reveals nothing about whether the Legislature intended to overturn People v Wood. Defendants read that silence to mean that no such substantive change in the law was envisioned by the Legislature, and they 316*316 urge us to reaffirm the common law as it applied to felony murder to limit liability when a nonparticipant is the killer.

Defendants' position is problematic for several reasons. First, it asks us to find in the ambiguous silence of the legislative record grounds for contradicting the unambiguous language of the statute. Second, it assumes that the Legislature intended an unusually narrow construction of the word "causes" even though New York homicide decisions had defined causality more expansively (see, e.g., People v Kane, 213 N.Y. 260, 270 [error in medical treatment provided to victim does not relieve attacker of liability]). It assumes also that in choosing the statutory language the Legislature and the Temporary State Commission on Revision of the Penal Law and Criminal Code, which drafted the amended provision, disregarded the well-defined debate over the difference between "causing" a homicide and "committing" a homicide (see, e.g., Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U Pa L Rev 50 [1956]). The Legislature could easily have written into subdivision (3) the limitation endorsed by defendants — as it did with the limitation applying to the death of a cofelon — but it chose not to do so.

Third and more serious, defendants' argument is premised on the assumption that the relevant common law pertaining to felony murder was uniform and unambiguous at the time the Legislature acted in 1965. In fact, the leading American case for limiting felony murder liability, Commonwealth v Redline (391 Pa 486, 137 A2d 472, supra), which was decided shortly before People v Wood, overturned prior case law in Pennsylvania. Variations on the felony murder doctrine were widespread in American jurisprudence, with liability turning on such factors as whether the victim was one of the felons, whether the felons initiated the gun battle and whether the deceased had been used as a shield by defendant (see, People v Washington, 62 Cal 2d 777, 402 P2d 130, supra; Commonwealth v Redline, supra).

Nor can it be contended that the limited view of felony murder liability was clearly the law in New York at the time the Legislature acted. In People v Wood, we noted that two of our decisions had incidentally endorsed the idea that the felon must be the killer (see, People v Giro, 197 N.Y. 152; and People v Udwin, 254 N.Y. 255), but we expressly left open questions concerning "the application of the rules of causation and foreseeability" (People v Wood, supra, at 53). Earlier, in People v Keshner (304 N.Y. 968), 317*317 we had let stand a felony murder conviction though defendants did not commit the final, fatal act. In Keshner, defendants had plotted to burn down a building and had spread gasoline in the structure but were apprehended by police before they could proceed further. Moments later, an independent force caused the gasoline to ignite, and defendants were held liable for the deaths of those caught in the blaze.

In light of the statutory language and the case law prior to the revision, we conclude that the Legislature intended what appears obvious from the face of the statute: that "causes" in the felony murder provision should be accorded the same meaning it is given in subdivisions (1) and (2) of section 125.25 of the Penal Law.

Unlike defendants and those courts adopting the so-called agency theory, we believe New York's view of causality, based on a proximate cause theory, to be consistent with fundamental principles of criminal law. Advocates of the agency theory suggest that no culpable party has the requisite mens rea when a nonparticipant is the shooter. We disagree. The basic tenet of felony murder liability is that the mens rea of the underlying felony is imputed to the participant responsible for the killing (People v Wood, 8 N.Y.2d 48, 51, supra). By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though unintended and not in the common design of the felons, as an intentional killing (id.). Thus, the presence or absence of the requisite mens rea is an issue turning on whether the felon is acting in furtherance of the underlying crime at the time of the homicide, not on the proximity or attenuation of the death resulting from the felon's acts. Whether the death is an immediate result or an attenuated one, the necessary mens rea is present if the causal act is part of the felonious conduct.

No more persuasive is the argument that the proximate cause view will extend criminal liability unreasonably. First, New York law is clear that felony murder does not embrace any killing that is coincidental with the felony but instead is limited to those deaths caused by one of the felons in furtherance of their crime (People v Ryan, 263 N.Y. 298). More than civil tort liability must be established; criminal liability will adhere only when the felons' acts are a sufficiently direct cause of the death (People v Kibbe, 35 N.Y.2d 407, 412-413, supra). When the intervening acts of another party are supervening 318*318or unforeseeable, the necessary causal chain is broken, and there is no liability for the felons (People v Kern, 75 N.Y.2d 638, 658, cert denied 498 US 824; Matter of Anthony M., 63 N.Y.2d 270, 280, supra; People v Kane, 213 N.Y. 260, 270, supra; State v Baker, 607 SW2d 153, 156 [Mo]). Where a victim, a police officer or other third party shoots and kills, the prosecution faces a significant obstacle in proving beyond a reasonable doubt to a jury that the felons should be held responsible for causing the death.

Second, the New York felony murder statute spells out the affirmative defense available to the accomplice who does not cause the death (see, Penal Law § 125.25 [3] [a]-[d]). Defendants assert that our construction of the statute's causality language will mean that an accomplice whose partner is the shooter will have a defense but one whose unarmed partner causes the death will not. The plain language of the statute does not support that proposition. The statutory defense is available to the accomplice who (a) does not cause the death, (b) is unarmed, (c) has no reason to believe that the cofelon is armed and (d) has no reason to believe that the cofelon will "engage in conduct likely to result in death or serious physical injury". Thus, by its terms, the defense is not limited to situations where the cofelon kills with a weapon; it applies as well to instances where some other "conduct likely to result in death" is not within the contemplation of the accomplice.

In short, our established common-law rules governing determinations of causality and the availability of the statutory defense provide adequate boundaries to felony murder liability. The language of Penal Law § 125.25 (3) evinces the Legislature's desire to extend liability broadly to those who commit serious crimes in ways that endanger the lives of others. That other States choose more narrow approaches is of no moment to our statutory scheme. Our Legislature has chosen not to write those limitations into our law, and we are bound by that legislative determination.

IV

Finally, we conclude that there was no error in the court's instructions on defendant Santana's culpability. The jury was properly charged that more than "but for" causation was required; that it must find the fatal result was the sufficiently direct and foreseeable result of Hernandez's acts (see, People v Kibbe, 35 N.Y.2d 407, 413, supra).

319*319The evidence established that Hernandez, when confronted by the officers in the courtyard, refused to surrender and continued to move toward one officer with his gun drawn. Immediate flight and attempts to thwart apprehension are patently within the furtherance of the cofelons' criminal objective (People v Gladman, 41 N.Y.2d 123, 129; People v Donovan, 53 AD2d 27). Moreover, it was highly foreseeable that when Hernandez continued toward the officer with his gun drawn that shots would be fired and someone might be hit. Foreseeability does not mean that the result must be the most likely event. Undoubtedly, in planning the robbery, defendants did not anticipate that their victim would be a State Trooper or that a back-up unit would be on the scene. Yet, it was foreseeable that police would try to thwart crime (People v Irby, 47 N.Y.2d 894), and Hernandez was aware that police were on the scene at the point he resisted arrest and remained armed. As the Appellate Division concluded, it is simply implausible for defendants to claim that defendants could not have foreseen a bullet going astray when Hernandez provoked a gun battle outside a residential building in an urban area.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

535*535 The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone and Emilee B. Davenport of counsel), for respondent.

542*542 Chief Judge LIPPMAN and Judges READ, PIGOTT, RIVERA, STEIN and FAHEY concur.

536*536 OPINION OF THE COURT

ABDUS-SALAAM, J.

The primary issue presented on this appeal is whether there was sufficient proof to support defendant's conviction for felony murder, based upon the underlying predicate felony of burglary. Because legally sufficient evidence exists, the order of the Appellate Division should be affirmed.

I

Defendant William Henderson, his cousin and a friend broke into an apartment looking for two individuals who the men suspected had robbed them of drugs and money that were kept in an associate's nearby apartment. When defendant broke down the door to the apartment, the suspected thieves were not inside. Rather, the victim and his girlfriend were in an upstairs bedroom. When the victim heard the downstairs door being kicked in, he opened the door to the bedroom and saw the men coming up the stairs. Defendant was screaming and asking for the whereabouts of the individuals he believed had stolen the drugs. The victim told defendant to leave. Defendant then punched the victim in the face and a fistfight ensued. The 537*537 victim's girlfriend hit defendant over the head with a bottle. At some point, she heard sirens and stated that the police were coming. Defendant and the other men ran out of the apartment, returning to their associate's apartment.

Defendant took a knife out of the knife block in his associate's kitchen, telling his associate that he was "going to kill him," presumably referring to the victim. Defendant returned to the victim's apartment holding the knife in his hand. The victim told his girlfriend to run, and she ran out of the back door to a neighbor's apartment and called 911. As she ran out of the apartment, she heard glass shattering. A bottle had apparently been broken over the victim's head. The victim's girlfriend then ran back to the apartment and saw the victim exit the door and slump down on the stoop with shards of glass protruding from his scalp and blood pouring from his back. The victim told his girlfriend that he thought he had been stabbed, and he thereafter lost consciousness. Defendant fled the apartment, got into a vehicle with his friend and sped off just as the police arrived. After the police pursued the vehicle, defendant and his friend were arrested. Defendant's cousin, who was still in the associate's apartment when defendant stabbed the victim, was also arrested. EMTs tried but failed to resuscitate the victim, and he was pronounced dead.

Defendant was indicted for murder in the second degree (Penal Law § 125.25 [1] [intentional murder]), murder in the second degree (Penal Law § 125.25 [3] [felony murder]), assault in the second degree (Penal Law § 120.05 [1] [intentional assault]), assault in the second degree (Penal Law § 120.05 [6] [felony assault]), burglary in the first degree (Penal Law § 140.30 [2]), burglary in the second degree (Penal Law § 140.25 [1] [b] [burglary resulting in physical injury]), and burglary in the second degree (Penal Law § 140.25 [2] [burglarizing a dwelling]).^[*] During trial, the associate testified for the People, stating that defendant, defendant's cousin and their friend had 538*538 left her apartment for a period of time, and when they returned, defendant appeared upset, was "pacing back and forth . . . and then . . . took a kitchen knife." She heard defendant say that he was "going to kill him." The associate asked defendant to put the knife back, but he did not comply. The victim's girlfriend also testified for the People. She stated that defendant and other men broke into the apartment and described the ensuing fight between defendant and the victim. She testified that the victim told her that he had been stabbed. The medical examiner who conducted the victim's autopsy also testified for the People. He concluded that the victim's cause of death was a hemorrhage as a result of a stab wound to his left back which perforated his aorta.

Defendant did not testify; however, his testimony from his first trial was read into the record. In that statement, defendant testified that while he was going to his associate's apartment, the victim made a racial slur and threw a bottle at him. He admitted to breaking into the victim's apartment, fighting with him, and returning with a knife. Defendant testified that he did not intend to kill the victim, but he "wanted to hurt him like he hurt me with the bottle."

Defendant was convicted of felony murder, first-degree manslaughter, first-degree burglary, two counts of second-degree burglary, and second-degree assault. On appeal, the Appellate Division rejected defendant's argument that "the evidence of felony murder [wa]s legally insufficient because the predicate burglary is based upon his conceded intent to commit an assault" (110 AD3d 1353, 1354 [3d Dept 2013]). The Court affirmed, holding that defendant's felony murder conviction "may properly be based on a burglary as the predicate felony where the intent at the time of entry is to commit an assault" (id. at 1354). A Judge of this Court granted defendant leave to appeal (see 23 NY3d 963 [2014]), and we now affirm.

II

There is legally sufficient evidence in this record to support defendant's conviction for felony murder.

539*539 Penal Law § 125.25 (3) provides that a person is guilty of murder in the second degree if he or she commits or attempts to commit one of 10 enumerated felonies, "and, in the course of and in furtherance of such crime . . . causes the death of [another]." The felony murder statute includes, in its list of predicate felonies, the crime of burglary. To establish the crime of burglary, it must be shown that the defendant "knowingly enters or remains unlawfully in a building with intent to commit a crime therein" (Penal Law § 140.20).

Defendant presently argues that the evidence adduced at trial demonstrates that the second time he entered the victim's apartment, he did so with the intent to kill. As support, defendant relies on his associate's testimony that after he took the knife, he stated he was "going to kill" the victim. He asserts that a felony murder conviction cannot be predicated on burglary when the intended crime underlying the burglary is murder, because to do so would double-count a single mens rea of intent to kill. There was evidence at trial, however, that defendant's intent when he reentered the victim's apartment was to commit assault, not kill the victim. Defendant testified that he initially retrieved the knife because "[he] was mad [he] got assaulted" by the victim "and [he] wanted to even the odds." He admitted that upon his reentry, he immediately began to fight with the victim. He denied returning to the apartment to kill the victim, but admitted he intended to "hurt" him. Defendant stabbed the victim only after the victim "swung" at him. Although defendant told his associate that he wanted to kill the victim, viewing the evidence, as we must, in the light most favorable to the People (see People v Delamota, 18 NY3d 107, 113 [2011]; People v Conway, 6 NY3d 869, 872 [2006]), a rational trier of fact could conclude that, based upon defendant's own statements, defendant committed the crime of burglary when he entered the apartment with the intent to assault the victim and during that burglary defendant caused the victim's death.

We now consider the question of whether there was legally sufficient evidence of felony murder. We conclude legally sufficient evidence exists here. As we held in People v Miller (32 NY2d 157 [1973]), a felony murder conviction may be predicated upon the commission of a burglary where the defendant's underlying intent is to assault the victim. In that case, the defendant broke into an apartment intending to assault one of 540*540 the occupants, Fennell. The defendant entered the apartment and stabbed Fennell in the arm while spraying a chemical in Fennell's face. Aleem, Fennell's roommate, came to Fennell's aid, and the defendant killed Aleem by stabbing him in the chest. This Court held that a felony murder charge predicated on burglary was sufficient for conviction of felony murder on those facts, despite the defendant's argument that the intent to commit assault underlying the burglary merged with the homicide (id. at 159).

Noting the legislature's inclusion of burglary of all degrees, without qualification, as a predicate felony for felony murder, we observed

"that persons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street" (id. at 160).

It is clear that the legislature chose to treat burglary differently than other crimes. Therefore, an individual who approaches another on the street with an intent to assault but causes the death of that person could be convicted of manslaughter, but not felony murder. It is entirely reasonable, however, that a person—like defendant—who unlawfully enters a building with the intent to commit an assault therein, but causes the death of another, may be convicted of felony murder, in recognition that the homicide occurs in the context of other criminal activity that enhances the seriousness of the offense.

Although Miller involved two victims, our rationale in Miller is applicable here. The defendant's intent in Miller to assault one victim when unlawfully entering the apartment, combined with the murder that resulted in the course of and in furtherance of the burglary, was sufficient to support a felony murder conviction. This Court's holding in Miller was not limited to circumstances where a defendant killed a victim other than the one he or she intended to harm. Here, defendant unlawfully entered the victim's apartment with the singular intent to assault him, but caused his death. Defendant's felony murder conviction, therefore, is supported by legally sufficient evidence.

541*541 Although defendant urges this Court to answer a question we expressly left open in People v Cahill (2 NY3d 14 [2003]), this case does not present us with an occasion to do so. In People v Cahill, involving the capital murder statute, we did not address whether a person who enters a building with the intent to kill may properly be convicted of felony murder. Likewise, we need not answer that question here because there is sufficient evidence from which a rational jury could conclude that defendant entered the victim's apartment with the sole intent to commit assault. Furthermore, in Cahill this Court repeatedly explained that the holding in that case was consistent with, and had no impact on, the holding of Miller.

Defendant also argues that his felony murder conviction rests on legally insufficient evidence because there is no evidence that he committed the murder "in furtherance of" a burglary. He asserts that the statutory language "in furtherance of" requires that the death be caused in order to advance or promote the underlying felony. We have not interpreted "in furtherance of" so narrowly. The felony murder statute is intended to punish a perpetrator for a death he or she caused during the commission of a felony, but not a death that is coincidental to the felony (see People v Hernandez, 82 NY2d 309, 317 [1993]). The "in furtherance of" element requires "a logical nexus between a murder and a felony" (Cahill, 2 NY3d at 101-102 [Graffeo, J., concurring in part and dissenting in part], citing People v Lewis, 111 Misc 2d 682 [Sup Ct, NY County 1981]). Here, there is a clear logical nexus between defendant's felony of unlawfully entering the victim's apartment to assault him and the homicide, which was certainly not coincidental. Limiting the "in furtherance of" element to murders that promote or advance the felony, as defendant suggests, would exclude from felony murder a large class of murders. Given that the purpose of the felony murder statute was to broaden liability for deaths that occur during the commission of certain enumerated felonies, the legislature could not have possibly intended such a result (see Cahill, 2 NY3d at 66-68). Thus, defendant's conviction for felony murder is based upon legally sufficient evidence.

III

Defendant's remaining contentions do not warrant reversal. Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.