Lawton, J. (dissenting). I must dissent. Defendant was improperly indicted and convicted of two separate counts of felony murder. A person cannot be indicted, tried or convicted *1033twice for the same crime. The corpus of the crime of felony murder is the killing of another (see, People v Berzups, 49 NY2d 417, 428). Whether one or more of the enumerated felonies under Penal Law § 125.25 (3) is committed at the time of the killing, if there is but one victim, there is but one crime. The commission of more than one of the underlying felonies does not result in multiple felony murders. Where there is but one crime, there can be but one indictment (CPL 200.30). By indicting defendant twice for the same crime, defendant was placed in jeopardy twice in violation of US Constitution 5th Amendment; NY Constitution, article I, §6; and CPL 40.20 (see, People v Santiago, 51 AD2d 1, 8). The failure of defendant to object to the indictments or to the prosecution on both counts is of no moment (see, Menna v New York, 423 US 61; People v Michael, 48 NY2d 1).
Consequently, I would reverse the convictions for felony murder, dismiss the indictments with respect to that charge, with leave to the People to re-present to another Grand Jury, if they so choose. In all other respects, I concur with the majority and would affirm the conviction. (Appeal from judgment of Oneida County Court, Murad, J.—murder, second degree.) Present—Denman, J. P., Boomer, Pine, Balio and Lawton, JJ.