The trial court failed to instruct the jury, as requested by the defendant, that if she was in custody at the time of the homicide, then she would not be guilty of felony murder, or that if she could no longer participate in the course of the burglary or in flight therefrom because she was in custody, then she would not be guilty of felony murder. The defendant’s counsel excepted to the failure so to charge. Moreover, it is clear that the Trial Judge did not instruct the jury concerning the application of the elements of felony murder to the facts; nor to the effect of the detention or custody of the defendant on the charge of felony murder. Again, defendant’s counsel took exception to the failure to instruct the jury in these respects.
The significance of this neglect becomes obvious when the request of the jury during deliberation for additional instruction concerning felony murder was followed by the court’s mere repetition of the bare charge originally given, consisting in substance of a description of the indictment and the statutory definition of the crime. For a third time, the defendant’s counsel excepted to the failure to charge more fully.
It is preeminently a jury question whether the conduct of the defendant and the action of the police in questioning her *403at the time of the homicide constituted a termination or a suspension of the underlying felony so that the defendant might not be culpable of felony murder. "If anything, past history demonstrates the fruitlessness of attempting to apply rigid rules to virtually limitless factual variations. No single factor is necessarily controlling; it is the combination of several factors that leads to a justifiable inference” (People v Gladman, 41 NY2d 123, 129). Only rarely may the trial court remove the issue from the jury (People v Carter, 50 AD2d 174, 176). In many instances it is the defendant who claims that he is entitled, as a matter of law, to be exculpated from a charge of felony murder because of the circumstances. Here, on the contrary, it was the defendant who sought an instruction that the jury should consider whether the circumstances as a matter of fact could be found to represent a termination of the underlying felony.
True it is that the present Penal Law extends felony murder both to homicide in the commission of the felony and homicide occurring during immediate flight (Penal Law, § 125.25, subd 3). But the extension did not change the rule that the jury must usually determine as a question of fact whether the felony was terminated when the killing took place. Especially is this applicable when, as here, the person charged is not the killer, but an accomplice of the killer (see, e.g., People v Donovan, 53 AD2d 27, 33-34).
Certainly, the detention and questioning of the defendant by the police prior to the homicide were factual issues which the jury should have appraised. Custody of the defendant is properly a factor to be considered by the jury in determining whether the defendant wag still engaged in the commission of the burglary at the time of the murder (see, e.g., People v Smith, 232 NY 239, 243; cf. People v Walsh, 262 NY 140, 147-149; Coleman v United States, 295 F2d 555, cert den, reh den 369 US 813, 842; Commonwealth v Kelly, 333 Pa 280). "Where, however, the felon kills someone during the felony, but in a separate and distinct act and to satisfy his own end, his accomplice in the felony is not guilty of murder in the first degree (People v. Sobieskoda, 235 N. Y. 411, 416, supra)” (People v Wood, 8 NY2d 48, 52).
We cannot at our position as appellate Judges make a judgment as a matter of law that the- circumstances of the crime in this case compel the conclusion that the defendant was still engaged in the commission of the burglary when her *404accomplice, attempting to escape from the front of the building, whether with or without the knowledge that the defendant was being detained and questioned by police in the rear, shot and killed the policeman. At the least, there are many inferences of fact which must be settled by the jury, and the defendant was entitled to a charge that the jury should consider the circumstances of her detention and questioning in determining whether she was at that time engaged in the course of the underlying felony.
I therefore dissent and vote for a new trial.
Mollen, P. J., and Latham, J., concur with Shapiro, J.; Hopkins, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.
Judgment of the County Court, Nassau County, rendered December 6, 1976, affirmed.