[404 N.E.2d 770] Anne C. Feigus and Ronald P. Fischetti, New York City, for appellant.

Denis Dillon, Dist. Atty. (Judith Rubinstein Sternberg and William C. Donnino, Mineola, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

The significant issue on this appeal is whether the defendant, in a murder prosecution, established the affirmative defense of "extreme emotional disturbance" which would have reduced the crime to manslaughter in the first degree.

On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter's tragic death. They met in August, 1976 as a result of their residence in the [404 N.E.2d 771] same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not "falling in love" with him. Defendant claims that Miss Lo Consolo's candid statement of her feelings "devastated him."

Miss Lo Consolo's rejection of defendant's advances also precipitated a bizarre series of actions on the part of defendant which, he asserts, demonstrate the existence of extreme emotional disturbance upon which he predicates his affirmative defense. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo's on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo's apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo's bed. During this break-in, defendant was armed with a knife which, he later told police, he carried "because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide."

Defendant's final visit to his victim's apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo's rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to "make sure she was dead."

The following day the police investigation of Miss Lo Consolo' death began. On the evening of March 1, 1977, Nassau County Police detectives came to the apartment building in which the crime had occurred. They were in the process of questioning several of the residents of the building when defendant presented himself to the police and volunteered that he had been in the victim's apartment on the night of the murder. While denying any involvement in the murder of Miss Lo Consolo, he professed a willingness to co-operate in the investigation.

The police accepted his offer of co-operation and requested that he accompany them to the Nassau County police headquarters in Mineola to discuss the matter further. On the way to Mineola, defendant was informed of his constitutional rights. He indicated that he understood his rights and that he nonetheless wished to co-operate. Defendant was interrogated by police for some nine and one-half hours thereafter and at 5:00 a. m. on the morning of March 2, 1977, he fully confessed to the murder of Victoria Lo Consolo, giving the police several oral and written statements detailing his involvement in the crime.

During the course of defendant's interrogation, his mother, worried because her son had not appeared at a planned social gathering, telephoned the Hempstead police to report her son as a missing person. She made several calls to the Hempstead Police Department and at least one to the Nassau County Police Department's seventh precinct in Manhasset between the hours of 11:00 p. m. on March 1, 1977 and 3:00 a. m. on March 2, 1977, and was informed by the officers at these stations that her son's whereabouts were unknown. She then telephoned the apartment of Victoria Lo Consolo. The officer on duty there told her of the murder and gave her no further information, but said that the police would return her call. At 4:00 a. m., having received no further information, she called the apartment again. This time another officer gave her a telephone number to call to seek further information about her son. A call to this number at 5:00 a. m. was also unavailing. However, a subsequent call to the Hempstead police yielded yet another number at the Nassau County Police Department. [404 N.E.2d 772] When Mrs. Casassa called this number, she was accurately informed that her son was held for questioning as a suspect in the Lo Consolo homicide. Thereafter, she came to the station and arranged to have counsel provided for her son.

On March 8, 1977, defendant was indicted and charged with murder in the second degree. Defendant made several pretrial motions seeking to suppress his statements to police and several pieces of real evidence which had been given to police during questioning. After a hearing, the motions were denied.

Defendant waived a jury and proceeded to trial before the County Court. The minutes of the suppression hearing were incorporated into the trial transcript and defendant's confessions were received into evidence. The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of "extreme emotional disturbance". (Penal Law, § 125.25, subd. 1, par. (a).) The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Consolo and that the course which their relationship had taken, combined with several personality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.

In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of "extreme emotional disturbance" within the meaning of section 125.25 (subd. 1, par. (a)) of the Penal Law because his disturbed state was not the product of external factors but rather was "a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation."

The trial court in resolving this issue noted that the affirmative defense of extreme emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defense, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant's emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant's emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime of murder in the second degree. The Appellate Division affirmed, without opinion.

On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of "extreme emotional disturbance". It is argued that the defendant established that he suffered from a mental infirmity not arising to the level of insanity which disoriented his reason to the extent that his emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25 (subd. 1, par. (a)) of the Penal Law. We cannot agree.

Section 125.25 (subd. 1, par. (a)) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." This defense allows a defendant charged with the commission of acts which would otherwise constitute [404 N.E.2d 773] murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to manslaughter in the first degree. (Penal Law, § 125.25, subd. 1, par. (a); People v. Patterson, 39 N.Y.2d 288, 302, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. sub nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; see, also, Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)

In enacting section 125.25 (subd. 1, par. (a)) of the Penal Law, the Legislature adopted the language of the manslaughter provisions of the Model Penal Code (see § 201.3, subd. (1), par. (b) (Tent Draft No. 9)). The only substantial distinction between the New York statute and the Model Penal Code is the designation by the Legislature of "extreme emotional disturbance" as an "affirmative defense", thus placing the burden of proof on this issue upon defendant. (Penal Law, § 25.00, subd. 2; People v. Patterson, 39 N.Y.2d 288, 301, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra.) The Model Penal Code formulation, however, as enacted by the Legislature, represented a significant departure from the prior law of this State.

The "extreme emotional disturbance" defense is an outgrowth of the "heat of passion" doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder. (See 1829 Rev.Stat. of New York, Part IV, ch. I, tit. II, §§ 10, 12, 18; L.1881, ch. 676, § 189, subd. 2; § 193, subd. 2; Penal Law of 1909, § 1052, subd. 2.) However, the new formulation is significantly broader in scope than the "heat of passion" doctrine which it replaced. (People v. Patterson, 39 N.Y.2d 288, 302-303, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra; People v. Shelton, 88 Misc.2d 136, 141-142, 385 N.Y.S.2d 708; Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp. 1C-61-62; Model Penal Code, § 201.3, Comment, pp. 46-47 (Tent Draft No. 9).)

For example, the "heat of passion" doctrine required that a defendant's action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. (See, e. g., People v. Ferraro, 161 N.Y. 365, 375, 55 N.E. 931.) Moreover, such reaction had to be immediate. The existence of a "cooling off" period completely negated any mitigating effect which the provocation might otherwise have had. (See, e. g., People v. Fiorentino, 197 N.Y. 560, 563, 91 N.E. 195.) In Patterson, however, this court recognized that "(a)n action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore." (39 N.Y.2d, at p. 303, 383 N.Y.S.2d at p. 582, 347 N.E.2d, at p. 908.) This distinction between the past and present law of mitigation, enunciated in Patterson, was expressly adopted by the trial court and properly applied in this case.

The thrust of defendant's claim, however, concerns a question arising out of another perceived distinction between "heat of passion" and "extreme emotional disturbance" which was not directly addressed in Patterson, to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant's emotional reaction is to be tested must be an entirely subjective one. Defendant relies principally upon our decision in Patterson and upon the language of the statute to support his claim that the reasonableness of his "explanation or excuse" should be determined solely with reference to his own subjective viewpoint. Such reliance is misplaced.

In Patterson, this court was concerned with the question of whether the defendant [404 N.E.2d 774] could properly be charged with the burden of proving the affirmative defense of "extreme emotional disturbance". In deciding that the defendant could constitutionally be required to carry such a burden, we noted that "(t) he purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them." (39 N.Y.2d, at p. 302, 383 N.Y.S.2d, at p. 582, 347 N.E.2d, at p. 907.) We also noted that "(t)he differences between the present New York statute and its predecessor * * * can be explained by the tremendous advances made in psychology since 1881 and a willingness on the part of the courts, legislators, and the public to reduce the level of responsibility imposed on those whose capacity has been diminished by mental trauma." (Id., at p. 303, 383 N.Y.S.2d, at p. 908, 347 N.E.2d, at p. 582.) These comments, however, were relevant to our decision only insofar as they demonstrated that the affirmative defense of "extreme emotional disturbance" is a mitigating factor which the defendant must prove as opposed to a substantive element of the crime of murder which the People must prove.

Defendant, however, would read Patterson as holding that all mental infirmity, short of insanity, must constitute "extreme emotional disturbance" if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse. While it is true that the court in Patterson recognized that "extreme emotional disturbance" as contemplated by the statute is a lesser form of mental infirmity than insanity, ^[1] the court did not hold that all mental infirmities not arising to the level of insanity constitute "extreme emotional disturbance" within the meaning of the statute. This question was not presented to us in Patterson and we did not decide it. Defendant's attempt to further extend our holding in Patterson to support the proposition that the reasonableness of the explanation or excuse for defendant's emotional disturbance must be tested from the subjective viewpoint of defendant is completely unavailing, for that case had nothing whatever to do with this issue.

Having determined that our decision in Patterson does not require that reasonableness be tested with a completely subjective standard, we must now determine whether the language of the statute or the legislative history of the statute indicates that such a standard is required.

Section 125.25 (subd. 1, par. (a)) of the Penal Law states it is an affirmative defense to the crime of murder that "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." Whether the language of this statute requires a completely subjective evaluation of reasonableness is a question that has never been decided by this court, although it has been raised in our lower courts with diverse results. (Compare People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra, with People v. Lyttle, 95 Misc.2d 879, 884, 408 N.Y.S.2d 578.) Moreover, although several States have enacted identical or substantially [404 N.E.2d 775] similar statutes (see Conn.Gen.Stat.Ann., § 53a-54, subd. (a), par. (1); Del.Code Ann., tit. 11, § 641; Hawaii Penal Code, § 707-702, subd. (2); Ky.Rev.Stat., § 507.020, subd. (1), par. (a); Rev.Codes of Mont., § 94-5-103; N.D. Century Code, § 12.1-16-02; Ore.Rev.Stat., § 163.115; Utah Code Ann., § 76-5-205), only one decision of the highest court of any of our sister States which has addressed this question has been called to our attention (State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979)) and that court expressly followed Justice Bentley Kassal's well-reasoned opinion in People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra.

Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. (Model Penal Code, § 201.3, Comment (Tent Draft No. 9 (1959)).) The defense of "extreme emotional disturbance" has two principal components (1) the particular defendant must have "acted under the influence of extreme emotional disturbance", and (2) there must have been "a reasonable explanation or excuse" for such extreme emotional disturbance, "the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be". The first requirement is wholly subjective i. e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.

The second component is more difficult to describe i. e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away "the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be enough" (id., at pp. 46-47), and "avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation" (id.). "The ultimate test, however, is objective; there must be 'reasonable' explanation or excuse for the actor's disturbance" (id., at p. 41). In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree. ^[2] We recognize that even such a description of the defense provides no precise guidelines and necessarily leaves room for the exercise of judgmental evaluation by the jury. This, however, appears to have been the intent of the draftsmen. "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can." (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)

By suggesting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the "heat of passion" doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process. The result of their draftsmanship is a statute which offers the defendant a fair opportunity to [404 N.E.2d 776] seek mitigation without requiring that the trier of fact find mitigation in each case where an emotional disturbance is shown or as the drafters put it, to offer "room for argument as to the reasonableness of the explanations or excuses offered."

We note also that this interpretation comports with what has long been recognized as the underlying purpose of any mitigation statute. In the words of Mr. Justice Cardozo, referring to an earlier statute: "What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistibly for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words." (Cardozo, Law and Literature, pp. 100-101.) In the end, we believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the "mystifying cloud of words" which Mr. Justice Cardozo abhorred.

We conclude that the trial court, in this case, properly applied the statute. The court apparently accepted, as a factual matter, that defendant killed Miss Lo Consolo while under the influence of "extreme emotional disturbance", a threshold question which must be answered in the affirmative before any test of reasonableness is required. The court, however, also recognized that in exercising its function as trier of fact, it must make a further inquiry into the reasonableness of that disturbance. In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant's "situation" and "the circumstances as defendant believed them to be", but concluded that the murder in this case was the result of defendant's malevolence rather than an understandable human response deserving of mercy. We cannot say, as a matter of law, that the court erred in so concluding. Indeed, to do so would subvert the purpose of the statute.

In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified. Since the trier of fact found that defendant failed to establish that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse", defendant's conviction of murder in the second degree should not be reduced to the crime of manslaughter in the first degree.

Defendant also urges in support of reversal that the confessions upon which his conviction was predicated were involuntarily given to the police. However, the trial court examined the " 'totality of the circumstances' " of defendant's arrest and subsequent confession (see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318) and found, as a factual matter, that defendant's oral and written statements were given to the police voluntarily. The Appellate Division affirmed this finding. Having carefully examined the record, we find nothing in the circumstances of this case which would lead us to conclude that [404 N.E.2d 777] defendant's confession was involuntarily obtained as a matter of law.

Finally, defendant contends that his mother's unsuccessful effort to contact him, aggravated in part by an apparently accidental dissemination of misinformation by the police, ^[3] denied defendant his right to counsel. While it is true that when an attorney attempts to intercede in a criminal defendant's behalf and is prevented from doing so by police misinformation, that defendant's right to counsel is infringed (see, e. g., People v. Garofolo, 46 N.Y.2d 592, 600-601, 415 N.Y.S.2d 810, 389 N.E.2d 123), no such infringement is present where, as here, a family member contacts police to report that her son was a "missing person". Nor is there any evidence in the record to suggest that this is a case such as People v. Bevilacqua, 45 N.Y.2d 508, 410 N.Y.S.2d 549, 382 N.E.2d 1326, where the record supported the inference that the police intentionally deprived the defendant of access to his family in an effort to obtain a confession. It is clear from the record that the defendant, a man of 27 years, consciously chose to confront his interrogators alone. Indeed, it is undisputed that defendant, after being informed of his constitutional rights, did not ever ask to speak with either counsel or any member of his family. Under these circumstances, we cannot say that defendant's right to counsel has been infringed.

We have examined defendant's remaining contentions and find them to be without merit.

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

COOKE, C. J., and GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

Order affirmed.

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[1] Defendant also notes that the People's expert witness stated that a mental disease not arising to the level of insanity could not be considered to be "extreme emotional disturbance" within the meaning of the statute. Of course, to the extent that the witness' comments can be interpreted as being in conflict with our decision in Patterson, the witness is in error. However, the trial court did not fully adopt this view and, in fact, predicated its decision upon a finding that the emotional disturbance which defendant experienced had no reasonable explanation or excuse. We would note that the trial court could have completely disregarded the witness' testimony and still have denied the defendant the benefit of the defense. (People v. Solari, 43 A.D.2d 610, 612, 349 N.Y.S.2d 31, affd. 35 N.Y.2d 876, 363 N.Y.S.2d 953, 323 N.E.2d 191.)

[2] We emphasize that this test is to be applied to determine whether defendant's emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse.

[3] We are informed that the Nassau County police have instituted a system for monitoring the whereabouts of all people in their custody, which should help to avoid the possibility that such misinformation will be given out in the future.

[71] Robert M. Morgenthau, District Attorney, New York City (Sheryl Feldman and Mark Dwyer of counsel), for appellant.

Office of the Appellate Defender, New York City (Eunice C. Lee, Richard M. Greenberg and Daniel A. Warshawsky of counsel), for respondent.

Salans Hertzfeld Heilbronn Christy & Viener, New York City [72] (Jane E. Manning and Maria T. Galeno of counsel), for Sanctuary for Families' Center for Battered Women's Legal Services and another, amici curiae.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

GRAFFEO, J.

In this prosecution stemming from the brutal stabbing by defendant of his common-law wife, the Appellate Division reversed defendant's conviction of murder in the second degree based on the trial court's failure to charge the jury concerning the affirmative defense of extreme emotional disturbance. Because the evidence at trial was insufficient to support the defense of extreme emotional disturbance, we reverse the Appellate Division order and reinstate defendant's conviction.

Defendant was charged with murder in the second degree based on the December 1991 stabbing death of Lillian Rivera in the Manhattan apartment they shared. He was convicted of murder in the second degree at his first trial, at which he neither requested nor received an extreme emotional disturbance charge. The conviction was reversed on appeal due to an improper Allen charge and the case was remitted for retrial (see 239 AD2d 270).

At the second trial, the People offered proof that the victim was stabbed 12 to 14 times in the face, back and chest. She was discovered lying face up on the kitchen floor of the blood-spattered apartment. A trail of blood on the furniture, walls and floors throughout the living room, hallway and kitchen suggested a violent struggle. Forensic evidence indicated the two deep, and ultimately fatal, stab wounds to the victim's chest had been inflicted last, after she had collapsed on the kitchen floor. The murder weapon was never found.

Gilberto Franco and Norma Ruiz, tenants in the apartment building who were acquainted with defendant and the victim, testified at trial that they had seen the couple arguing in the building lobby earlier that day. Franco recounted that in a conversation he had with defendant two weeks before the stabbing, [73] defendant confided that his wife was crazy and hooked on drugs, that he was tired and wanted to leave but that he couldn't live at his sister's house. At around 4:00 P.M. on the day of the crime, while in his bedroom, Franco heard defendant and the victim engaged in a loud argument inside their apartment, which was connected to his by an airshaft. When Franco heard the sound of glass breaking, he stopped listening and turned on some music.

About 40 or 50 minutes later, Franco and Ruiz heard defendant yelling in the hallway outside their apartment. They opened their door and saw defendant running down the stairs, exclaiming that his wife had killed herself and that someone should call the police. Defendant was carrying a small brown bag under his arm. After Franco contacted the police from a nearby store, he and a friend went to defendant's apartment. Franco testified that he did not enter the apartment but pushed the door open wide enough to view the interior from the hallway. The apartment was in disarray and there was blood smeared on the walls. Franco saw defendant emerge carrying a duffle bag. When asked where he was going, defendant replied: "I have to take everything out of here because the police is going to check it out." Defendant stated that he was taking the bag to his sister's house but would return to talk to the police. He then left the building with the duffle bag.

According to the testimony of Phillip Bell, defendant soon arrived at an apartment in the adjacent building. Bell had no prior acquaintance with defendant but was visiting the tenant. When defendant first arrived, he removed two sweaters that he was wearing and carefully inspected them. He then ingested crack and heroin. Defendant told Bell that "Mama" was dead and he had killed her. He explained that she had been "going crazy" and "tearing up the place" and that he had been "going back and forth upstairs [and] checking on her" all day. After socializing with Bell in a back room for a while, defendant indicated that he had to leave but did not want to be seen by another visitor who had since arrived. Defendant instructed Bell to usher the guest into the bathroom and, once this was accomplished, he departed.

Defendant went to his sister's apartment where he was greeted by Pedro Malave, her son-in-law. Defendant told Malave that his wife was dead and that she had tried to kill herself two days before. Defendant changed his socks after requesting a clean pair and threw the pair he had been wearing in the garbage. When defendant's sister arrived, he had a private [74] conversation with her in which he revealed that, in the course of an argument, he had hit his wife and believed that she was dead. She advised him to go to the police.

Thereafter, defendant appeared at the police station and announced: "My wife killed herself. I want to find out who did this. That's why I'm here." Defendant was issued Miranda warnings and he agreed to make a written statement, which the People introduced in evidence at trial. Defendant told the police that his wife had been out the night before and had not come home until 6:00 A.M. She had slept most of the morning but then sent him on a series of errands that afternoon, first requesting that he retrieve some items she had thrown out of the window, then asking him to purchase pain reliever, and later sending him to buy cigarettes. Defendant indicated he had complied with these requests.

Defendant further recounted that at around 4:00 P.M. he left the apartment to buy his wife some soup and talked to a neighbor for a while. Upon returning home, he alleged the door was open and there was blood in the living room. He called out to his wife but did not see her until he found her body in the kitchen. He then stated that he ran through the apartment building screaming that "Mama killed herself." He asked a woman to call the police and then ran down the street to his aunt's apartment. When his aunt did not answer the door, he proceeded to his sister's home. He stated that he spoke with Malave and his sister, but indicated only that he told them "what had happened" at his house. After briefly returning to his aunt's residence, he contended he went to the police. The statement does not contain any reference to a visit with Bell.

Defendant did not testify at trial and presented one witness in his defense, a forensic pathologist, who opined that the wounds the victim suffered were consistent with an attack by a stranger because there was no mutilation or disfigurement. The thrust of the defense was that the police had the "wrong man" and had rushed to judgment in charging defendant with the crime without searching for the true killer. The defense emphasized the absence of physical evidence linking defendant to the stabbing, his lack of a motive to kill his wife and the failure of the police to conduct various tests which the defense contended might have revealed the identity of the actual perpetrator.

At a charge conference conducted prior to the summations, defendant requested that the lesser included offense of extreme [75] emotional disturbance manslaughter be submitted to the jury, but made no reference to a charge on the affirmative defense of extreme emotional disturbance. Defense counsel stated that a manslaughter charge "may not in fact be supported by the evidence objectively" but indicated the request was based on "what we anticipate the Prosecution's closing argument to encompass" given that the People had apparently argued at the first trial that defendant committed the murder after being provoked into a fit of rage. The People objected to the manslaughter charge, asserting there was no evidence of extreme emotional disturbance. Supreme Court denied the charge-down request. The jury convicted defendant of murder in the second degree and he was sentenced to 25 years to life in prison.

The Appellate Division reversed, concluding Supreme Court erred in failing to charge extreme emotional disturbance as an affirmative defense. One Justice dissented and granted the People leave to appeal to this Court.

The affirmative defense of extreme emotional disturbance is addressed in Penal Law § 125.25 (1) (a) and § 125.20 (2), which define the elements of murder in the second degree and manslaughter in the first degree. Read in tandem, these statutes provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse" is guilty of manslaughter and not murder. The "defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although [] not free from responsibility for [the] crime, [defendant] ought to be punished less severely" (People v Casassa, 49 NY2d 668, 675, cert denied 449 US 842 [1980]). As we recently observed in People v Harris (95 NY2d 316, 318 [2000] [quoting Casassa, 49 NY2d at 680-681] [internal quotations omitted]), the Legislature recognized when it created the extreme emotional disturbance defense that some homicides are worthy of mitigation because they "result from an understandable human response deserving of mercy."

A defendant cannot establish an extreme emotional disturbance defense without evidence that he or she suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control. And not all mental infirmities merit a manslaughter charge based on extreme emotional disturbance (Casassa, 49 NY2d at 677). To prove such an affirmative defense, a defendant must [76] demonstrate, first, that he or she acted under the influence of an extreme emotional disturbance and, second, that there was a reasonable explanation or excuse for that disturbance. The first, subjective element is met if there is evidence that defendant's conduct at the time of the incident was actually influenced by an extreme emotional disturbance. The second is an objective element and requires proof that defendant's emotional disturbance was supported by a reasonable explanation or excuse. This is "determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the] emotional disturbance was reasonable" (Harris, 95 NY2d at 319 [quoting Casassa, 49 NY2d at 679] [internal quotations omitted]).

A defendant who pursues an inconsistent defense at trial, such as outright denial of involvement in the crime, may nevertheless be entitled to a manslaughter charge based on extreme emotional disturbance (see People v White, 79 NY2d 900, 903 [1992]). And it is possible for a defendant to establish the presence of such a disturbance without psychiatric testimony (People v Moye, 66 NY2d 887, 890 [1985]). These circumstances do, however, impact whether sufficient evidence to support the defense has been presented at trial (see White, 79 NY2d at 903). In the absence of the requisite proof, an extreme emotional disturbance charge should not be given because it would invite the jury to engage in impermissible speculation concerning defendant's state of mind at the time of the homicide (People v Walker, 64 NY2d 741, 743 [1984]).

Applying these principles to this case, we conclude that defendant was not entitled to a manslaughter charge-down based on extreme emotional disturbance because the proof was insufficient to support either element of the defense.^[*] Beginning with the subjective element, the record is devoid of evidence that he actually suffered from a mental infirmity at the time of [77] the stabbing. Defendant cannot rely on his statements to the police to establish the presence of an extreme emotional disturbance since he asserted that he had not harmed his wife in any respect. Evidence of mental infirmity is not discernible from defendant's remarks to Bell and his sister because he neither claimed that he suffered a loss of self-control nor used any other language suggesting that he killed the victim while under the influence of a mental disability. Similarly, defendant's behavior prior to and immediately after the crime was not indicative of extreme emotional disturbance. Soon after the killing, defendant contrived a false explanation for the victim's wounds, telling his neighbors that she had committed suicide. Moments later, defendant had the presence of mind to gather items in a duffle bag and remove them from the apartment so they would not be discovered by the police—conduct inconsistent with the loss of self-control associated with the defense. Bell's testimony regarding defendant's conversations and drug consumption, particularly his attempt to evade detection by another guest at the apartment, also do not indicate a disturbed state of mind.

This case is similar to People v White (79 NY2d 900) which also involved a defendant who killed his wife in the apartment they shared. Like this defendant, White claimed that he had no involvement in the incident but had discovered his wife dead in their apartment. As in this case, no psychiatric evidence was proffered to support an extreme emotional disturbance defense, nor did defendant tell the police or any other witness that he had experienced a loss of self-control or other mental disturbance which caused him to stab his wife. There we held that defendant was not entitled to the charge-down, observing that the record was barren of any statement of defendant or other evidence offered by any witness which suggested defendant actually suffered from an extreme emotional disturbance at the time of the homicide.

Defendant contends that the brutal nature of the stabbing constituted evidence that he acted under the influence of a mental infirmity. While proof concerning the nature of the wounds defendant inflicted is relevant (see generally, People v Wood, 79 NY2d 958 [1992]), we have never held that a jury may infer the presence of an extreme emotional disturbance based solely on proof that the crime was especially violent or brutal. This is so because violence and brutality are not necessarily indicative of a loss of self-control or similar mental infirmity, nor is brutality generally more deserving of mercy. Where [78] we have referenced the nature or severity of the wounds, the probative value of such evidence has been linked to other compelling evidence of extreme emotional disturbance. For example, we observed in People v Moye (66 NY2d at 890) that "[d]efendant's savage acts of mutilating and decapitating his victim, coupled with his statements to the police and District Attorney that `something snapped' inside him when [the victim] mocked and taunted him, that he went `bananas' and he needed help, were evidence of a loss of self-control." The approach defendant suggests would subvert the purpose of the affirmative defense by automatically providing the benefit of a manslaughter charge-down to every defendant who commits a particularly brutal or violent homicide—a result the Legislature certainly did not intend.

Even if sufficient evidence of the subjective element of extreme emotional disturbance were present in this case, proof of the objective element is lacking. Defendant points to the fact that he and the victim had been seen arguing and that the victim apparently sent him on a number of errands on the afternoon of the murder, causing him to climb the stairs to the fifth-floor apartment numerous times. This falls far short of the type of tumultuous relationship that might meet the objective component when coupled with other provocation (see White, 79 NY2d at 903). In the absence of proof that defendant's history or mental status rendered him unusually sensitive to these verbal exchanges and demands, no reasonable jury could have concluded that a resulting loss of self-control or similar disability constituted "an understandable human response deserving of mercy" under these circumstances (see Casassa, 49 NY2d at 680-681).

Finally, we note that the People's closing argument does not provide an evidentiary basis for an extreme emotional disturbance charge. As cogently stated by the dissenting Justice at the Appellate Division, statements in a summation are not evidence and may not supply proof supporting a charge request. Although certain words and phrases used by the prosecutor may be suggestive of extreme emotional disturbance, when viewed in context it is evident the remarks were consistent with the People's theory of intentional murder. The clear import of the summation was that defendant's actions were motivated by intense anger—not that they resulted from a loss of self-control or other mental infirmity.

We have considered defendant's contentions relating to this Court's jurisdiction over this appeal and find them to be without merit.

[79] Accordingly, the order of the Appellate Division should be reversed and the conviction reinstated.

Order reversed and judgment of Supreme Court, New York County, reinstated.

[*] Defendant did not characterize his request for the manslaughter charge-down as seeking a charge on the affirmative defense of extreme emotional disturbance. However, due to the interplay between Penal Law § 125.20 (2) and § 125.25 (1) (a), a request for an extreme emotional disturbance manslaughter charge amounts to a request that the jury be instructed concerning the affirmative defense of extreme emotional disturbance. Given the People's comments in opposition to the defendant's request and Supreme Court's stated rationale in denying the charge, the issue is preserved as a question of law for this Court's review (see CPL 470.05 [2]).

Stephen J. Pittari (David B. Weisfuse of counsel), for appellant.

Carl A. Vergari, District Attorney (Lois A. Cullen and Gerald D. Reilly of counsel), for respondent.

MOLLEN, P. J., and BRACKEN, J., concur with GIBBONS, J.; LAWRENCE, J., concurs in the affirmance of the convictions of robbery in the first degree and criminal possession of a weapon in the third degree, but dissents as to the reversal of the conviction of attempted murder in the first degree and votes to affirm said conviction, in an opinion, in which WEINSTEIN, J., concurs.

[462] GIBBONS, J.

Defendant was convicted, following a jury trial, of attempted murder in the first degree, robbery in the first degree and criminal possession of a weapon in the third degree. On this appeal, the principal issue is whether the County Court erred in refusing his request to instruct the jury on the affirmative defense of "extreme emotional disturbance" set forth in Penal Law § 125.27 (2) (a), which would have had the effect of permitting the jury to find him guilty of attempted manslaughter in the first degree (Penal Law §§ 110.00, 125.20 [2]) rather than attempted murder in the first degree in connection with a shooting incident in the City of New Rochelle on the evening of February 18, 1981. In our view, this question must be answered in the affirmative. Here, the "threshold" requirement entitling defendant to the charge was met, i.e., there was "sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense [were] established" (see, People v Moye, 66 N.Y.2d 887, 890, [463] n). Accordingly, the ensuing conviction of attempted murder in the first degree should be reversed and the case remitted for a new trial on that count of the indictment. As so modified, the judgment should be affirmed.

Penal Law § 125.27 (2) (a) pertinently provides as follows:

"In any prosecution [for murder in the first degree], it is an affirmative defense that:

"(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree" (cf. Penal Law § 125.25 [1] [a]).

Initially, we note that the language of Penal Law § 125.27 (2) (a) specifically indicates that the defense is applicable only to murder in the first and second degrees. Nevertheless, we find that the defense is applicable to attempted murder in the first degree even in the absence of statutory language so indicating. Based upon rules of construction applicable to the Penal Law, i.e., it is not to be strictly construed, but rather construed "according to the fair import of [its] terms to promote justice and effect the objects of the law" (Penal Law § 5.00; People v Teicher, 52 N.Y.2d 638, 647), we conclude that a defendant, acting under the influence of extreme emotional disturbance, who shoots at a police officer and misses, should not be convicted of a class A-1 felony, while he would be subject only to conviction for a class B felony had his bullet found its mark and killed the officer (see, Penal Law §§ 125.20, 125.25, 125.27, 110.05; cf. People v Lanzot, 67 AD2d 864, appeal dismissed 49 N.Y.2d 796). Such a construction would defeat both the manifest purpose of section 125.27 to protect police officers, by inadvertently rewarding completed attempts resulting in death, and the purpose of the defense which is "to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows" (People v Casassa, 49 N.Y.2d 668, 680, cert denied 449 US 842).

Turning to the evidence, and viewing it most favorably to the accused (see, People v Moye, supra; People v Watts, 57 N.Y.2d 299, 301; [464] People v Vera, 94 AD2d 728, 729), it appears that defendant left his home on February 18, 1981 with no intention of committing a crime, boarded a train, got off at an unknown location (apparently in New Rochelle), and just started walking about aimlessly. Upon coming to a liquor store, the defendant entered and pulled out a gun and demanded money. The owner offered no resistance. After taking the money, the defendant "just stayed there" in the liquor store for a few more minutes, and then exited, turned to the left and walked (not ran) down Main Street toward Beachwood Avenue. A couple of minutes later, the defendant walked back past the liquor store, this time in the direction of the New England Thruway.

Shortly after the incident was reported to the police, the defendant, walking west on Main Street, was observed by New Rochelle Police Officer Douglas Burrell. The latter exited his vehicle, carrying a shotgun, and shouted to defendant to stop. Defendant continued walking and "sort of looked around". Officer Burrell then shouted, "Yeah, you, come here, police." As defendant turned, he fired in Officer Burrell's direction. Officer Burrell returned fire with the shotgun. At this point, and notwithstanding the fact that his bullets had injured no one, the defendant simply turned again and resumed walking (albeit, at a quickened pace), seemingly oblivious to whatever additional action the officer might have deemed it advisable to take. Other officers soon arrived, but even when confronted with several armed police officers and told to halt, the defendant initially failed to respond, and only later threw down his weapon. In his statement to the police, the defendant indicated that he had been out of work for approximately nine months. He had fired upon the police officer because "he was scared * * * just scared", and added that "a long time ago" in Santo Domingo, he had eaten a local fruit which not only made him extremely ill, but left residual effects, causing him on occasion to "act irrational[ly] or do things that he does not quite control".

In addition, the defendant was able to adduce expert psychiatric testimony to the effect that he had an IQ of 66, in the borderline retarded category; has several pronounced personality disorders, including schizophrenia; had become "increasingly depressed [and] * * * immobilized" during the period immediately preceding the shooting; and had fired upon the officer in an "isolated explosive episode", "spontaneously" and "automatically", i.e., "emotionally" and "without thinking", [465] which "invariably occurs" when a person is under "great emotional stress". In fact, on re-cross-examination, one of the defendant's experts (Dr. Tuckman) effectively indicated that, in his opinion, the defendant was acting under "extreme emotional disturbance" at the time of the instant shooting. This opinion, elicited by the prosecutor, bore directly on the nature and extent of defendant's emotional strain.

Taking the foregoing view of the evidence, it is clear that there exists on the peculiar facts and circumstances of this case sufficient evidence which could support a defendant's verdict on at least the first requirement of the statutory affirmative defense, to wit, that at the time of the instant shooting the defendant was acting under the influence of "extreme emotional disturbance" (Penal Law § 125.27 [2] [a]; People v Casassa, 49 N.Y.2d 668, cert denied 449 US 842, supra). As the Court of Appeals noted in People v Casassa (supra, at pp 678, 679), the test to be applied to this element of the statutory defense is "wholly subjective" in nature, and requires a factual determination that, at the operative moment, "the particular defendant did in fact act under extreme emotional disturbance". Accordingly, no question as to the "reasonableness" of that disturbance is presented at this juncture, and, thus viewed, there was ample objective and opinion evidence from which a jury might have concluded that at the time that he turned and fired, this defendant, for whatever reason or combination of reasons, was suffering from extreme emotional disturbance.

A closer question is presented with regard to the second element of the statutory defense, for here the Court of Appeals has decreed an "objective" standard, pursuant to which the determination as to whether or not there exists a "reasonable explanation or excuse" for the proffered emotional disturbance (Penal Law § 125.27 [2] [a]) is to be made "by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable" (People v Casassa, 49 N.Y.2d 668, 679, supra; People v Moye, 66 N.Y.2d 887, supra; see also, ALI Model Penal Code § 210.3). When making a determination of reasonableness, the critical element in the Model Penal Code formulation is the clause requiring that reasonableness be assessed "from the viewpoint of a person in the actor's situation" (ALI Model Penal Code § 210.3 [1] [b]; [466] cf. Penal Law § 125.27 [2] [a]). As noted in the Model Penal Code Commentaries, "[t]he word `situation' is designedly ambiguous * * * it is clear that personal handicaps and some external circumstances must be taken into account * * * for it would be morally obtuse to appraise a crime for mitigation of punishment without reference to these factors" (ALI Model Penal Code and Commentaries § 210.3, at 62 [Official Draft and Revised Comments, 1980]).

Since the ultimate question of whether the affirmative defense has been established rests largely within the discretionary power of the jury (see, People v Morrison, 95 AD2d 868, 869), it is our belief that the delivery of the charge in this case was required in order to give effect to the salutary purpose underlying enactment of the statutory defense in the form suggested in the Model Penal Code (see, § 210.3 [1] [b]). As the Court of Appeals stated in People v Casassa (49 N.Y.2d 668, 681, supra): "In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified."

And, as noted in the Commentaries to the Model Penal Code: "In the end, the question is whether the actor's loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen. Section 210.3 [of the Model Penal Code] faces this issue squarely and leaves the ultimate judgment to the ordinary citizen in the function of a juror assigned to resolve the specific case" (ALI Model Penal Code and Commentaries § 210.3, at 63 [Official Draft and Revised Comments, 1980]).

In this regard we consider most significant an inquiry by the jurors in the case at bar whether they could recommend leniency to the court.

We agree with our dissenting colleagues that the robbery itself could not, as a matter of law, constitute a reasonable explanation or excuse for defendant's extreme emotional disturbance (see, ALI Model Penal Code and Commentaries § 210.3, at 64-65 [Official Draft and Revised Comments, 1980]), for an emotional disturbance is excusable only "`if it is [467] occasioned by [a] provocation, event or situation for which the offender was not culpably responsible'" (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980], quoting from the Final Report of the National Commission on Reform of Federal Criminal Laws — Proposed New Federal Criminal Code [18 USC] [Jan. 7, 1971]).

In our view, the evidence supports a conclusion that the explanation or excuse offered by this defendant was "objectively" reasonable, and not attributable to the robbery. Dr. Tuckman, a psychiatrist, diagnosed defendant's reaction as an "isolated explosive episode" triggered by increasing depression and immobilization. In his opinion, the tremendous strain affecting defendant flowed from "more than" the robbery. It was also caused by his prolonged unemployment and his inadequate fragile personality. Dr. Goldstein, a certified clinical psychologist, agreed that defendant's adjustment and explosive disorder predated the robbery by six months. Furthermore, in his opinion, defendant's residual type schizophrenia probably dated back to his childhood and first hospitalization at age 14 (from the toxic fruit).

In sum, the evidence on this record indicates that defendant's disturbance could have predated the robbery, and, taking into account his inadequate personality and borderline retardation, could have been triggered by the stress of his prolonged unemployment, as well as the residual effects of his ingestion of toxic fruit as a youngster in Santo Domingo. Whether the culpable or nonculpable situations and events were responsible for defendant's disturbance was a factual question to be resolved by the jury, upon proper instructions.

To reach its conclusion that there is insufficient credible evidence to support the defense of extreme emotional disturbance, the dissent emphasizes unfavorable portions of the testimony, in abrogation of the rule that the evidence must be viewed in a light most favorable to defendant (see, People v Moye, 66 N.Y.2d 887, supra; People v Watts, supra, at p 301; People v Vera, 94 AD2d 728, 729, supra). That defendant was not psychotic or insane is irrelevant. The issue is whether there was sufficient evidence to create a question for the trier of fact that defendant was acting under the influence of extreme emotional disturbance, for which there was a reasonable explanation or excuse. Contrary to the position adopted by the dissent, the evidence permits a conclusion that defendant's overwhelming emotional stress arose prior to and was [468] triggered by factors other than his commission of the robbery. The dissent, rather than acknowledging the factual issue raised, resolves it, concluding that defendant brought about his own mental disturbance by involving himself in a crime. The cause and reasonableness of defendant's extreme emotional disturbance was properly a factual question to be resolved by the jury, for once the threshold requirement is met, i.e., once "there is sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense are established", it is "then for the jury to resolve inconsistencies in testimony and reach conclusions as to the `volitional, deliberate and calculated' nature of defendant's acts" (People v Moye, 66 N.Y.2d 887, 890, n, supra).

We are persuaded in reaching this conclusion by the peculiar facts and circumstances of this case, particularly the uncontroverted testimony of prosecution witnesses concerning defendant's strange behavior on the date of the robbery, his hesitation, aimless wandering and seeming incomprehension of his situation. We acknowledge that it will be a rare case where the defense of extreme emotional disturbance will be applicable when a homicide or attempted homicide follows commission of another crime.

Accordingly, since, under the facts and circumstances of this case, there was sufficient credible evidence which would support a finding of extreme emotional disturbance, and inasmuch as an explanation had been offered by the defendant and his psychiatric experts, "which a rational jury might have accepted or rejected" (see, People v Moye, 66 N.Y.2d 887, 890, supra), the County Court erred in refusing to honor the defendant's request to charge on the affirmative defense of "extreme emotional disturbance" (Penal Law § 125.27 [2] [a]; see, People v Lanzot, 67 AD2d 864, appeal dismissed 49 N.Y.2d 796, supra). Under such circumstances, the failure of the trial court to deliver the requested charge constituted reversible error (see, People v Moye, supra; People v Watts, 57 N.Y.2d 299, 301, supra; People v Vera, 94 AD2d 728, 729, supra).

We finally note that harmless error analysis has no place on the facts and circumstances of this case, given the jurors' request concerning leniency. While they found that defendant possessed the requisite intent for attempted murder, they nevertheless evidenced precisely the sort of understanding to which the defense is directed, i.e., "whether the actor's loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen" (ALI Model Penal Code and Commentaries [469] § 210.3, at 63 [Official Draft and Revised Comments, 1980]). Contrary to the contention of the dissent, the jury was not permitted "to consider lesser degrees of the crime of attempted murder in the first degree and thereby exercise an appropriate degree of leniency, if it had been so inclined". The trial court properly instructed the jurors that they could consider the lesser included offenses only if they found defendant not guilty of attempted murder. The jurors did find defendant guilty of attempted murder, and, therefore, pursuant to the court's instruction, could not exercise leniency with respect to that crime because the mitigating factor of extreme emotional disturbance was not presented to them. The jury could have exercised leniency and followed the court's instruction only if the defense of extreme emotional disturbance had been charged.

LAWRENCE, J. (concurring in part and dissenting in part).

We are unanimous in affirming the convictions for robbery in the first degree and criminal possession of a weapon in the third degree and the sentences imposed thereon. We also agree that the affirmative defense of extreme emotional disturbance is available, in a proper case, where the charge is attempted murder of a police officer (Penal Law §§ 110.00, 125.27 [2] [a]; People v Lanzot, 67 AD2d 864, 866, appeal dismissed 49 N.Y.2d 796). The issue which divides us is simply whether in this case the evidence presented was such as to warrant submitting the affirmative defense to the jury. In my view, based on the law and the facts, the trial court properly declined defendant's request to so charge the jury.

As noted by the Court of Appeals in People v Moye (66 N.Y.2d 887, 890, n), "[i]n determining whether to submit the affirmative defense of extreme emotional disturbance to the jury, it is for the court initially to decide if there is sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense are established".

Reviewing the evidence in the light most favorable to defendant, as we must on this issue (see, People v Watts, 57 N.Y.2d 299), certain facts were nevertheless clearly established.

On February 18, 1981, a Wednesday, at about 6:30 P.M., defendant walked into a liquor store located on Main Street in New Rochelle. After inspecting the wine rack and appearing to be interested in the price of the wine on display, he pulled out a gun and said, "Give me money". The proprietor told him [470] to take the money and defendant proceeded to clean out the cash register. He then examined a wallet on a nearby desk, which was empty, and asked, "Is that all?" Then he "turned around and walked out [of the store] very calmly". The proprietor testified that during the robbery defendant was calm and did not appear agitated or excited.

A short time later, a police officer responding to a radio report of the robbery, spotted defendant approximately a quarter of a mile from the liquor store. The officer exited his police car armed with a shotgun, and directed defendant to halt. Defendant looked over his shoulder, then turned and fired four shots at the police officer. The officer returned the fire. Each missed the other. Moments later, surrounded by several police officers, defendant dropped his weapon and surrendered.

The next day, upon questioning by a Spanish-speaking police officer,^[1] who first gave defendant his Miranda rights, defendant confessed to the robbery and shooting. He disclosed that he had stolen the gun from a grocery store in his neighborhood. He further stated that he had fired at the police officer because "he was just scared".

Prior to his trial, defendant served a notice pursuant to CPL 250.10 that he intended to rely on an insanity defense and would offer psychiatric evidence in support thereof. Subsequently, the insanity defense was withdrawn before the presentation of the defendant's case,^[2] and the court indicated to the jury that the psychiatric testimony that the defense would present would be received on the limited issue of intent.

The court specifically instructed the jury as follows:

"Before we begin the defendant's case, I would like to offer a word of explanation to you.

"As I understand it, the defendant's witness, or the next two witnesses, will be a psychologist and a psychiatrist.

"The defendant in this case has not interposed a defense of not guilty by reason of insanity. There was no claim he was insane at the time this happened as provided by law. It's being offered on the question of intent and may be considered for that purpose.

[471] "In addition, some of these witnesses will be permitted to testify to some hearsay, that is, what other people said to them, probably for the most part what the defendant said to them during this examination, and this is permitted for the purpose of the fact that the person said it, not for the purpose that what they said is true."

No objection was taken to the limiting instructions, which thus became the law of the case. Based upon the limiting instructions, the trial court ruled that the expert psychiatric testimony upon which defendant now relies was simply not available to support the affirmative defense of extreme emotional disturbance.

Even if we consider the psychiatric testimony on this appeal despite the limiting instructions, it is clear that the expert testimony was not sufficient to establish the elements of the affirmative defense.

It is an affirmative defense to the crime of attempted murder that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse (Penal Law §§ 110.00, 125.27; People v Patterson, 39 N.Y.2d 288, 302, affd 432 US 197), and the defendant is required to establish such defense by a preponderance of the credible evidence (Penal Law § 25.00 [2]; People v Patterson, supra).

The Court of Appeals has indicated that the defense of extreme emotional disturbance has two principal elements (People v Casassa, 49 N.Y.2d 668, 678-679, cert denied 449 US 842). The first one, that the defendant acted under extreme emotional disturbance, is "wholly subjective — i.e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham" (People v Casassa, supra, at pp 678-679). The second component requires that there be a reasonable explanation or excuse for the particular emotional disturbance (People v Casassa, supra, at p 679).

It is clear that the affirmative defense of extreme emotional disturbance was intended to replace "the traditional language of `heat of passion', with a new formulation", and thus avoid "so arbitrary a limit on the nature of circumstances that might justify a mitigation" (People v Patterson, supra, at pp 300-301). Nevertheless, implicit in the Model Penal Code formulation of the defense, from which our statute is derived, [472] is the concept that an extreme emotional disturbance is excusable only "`if it is occasioned by any provocation * * * for which the offender was not culpably responsible'" (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980], quoting from the Final Report of the National Commission on Reform of Federal Criminal Laws — Proposed New Federal Criminal Code [18 USC] [Jan. 7, 1971]). "Under this formulation, extreme emotional disturbance will not reduce murder to manslaughter if the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as by involving himself in a crime" (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980]; emphasis added).

Thus, it must be concluded that in enacting the affirmative defense, the Legislature did not intend it to apply where the emotional stress arises out of and is directly related to the commission of an armed violent felony, such as robbery in the first degree. Obviously, a person committing an armed robbery may be acting under extreme emotional stress which might overwhelm him and cause him to lose self-control. According to the psychiatric testimony, that is precisely what happened in this case.

The defense psychiatrist described defendant as mildly retarded with several pronounced personality disorders, including schizophrenia. However, the defense psychiatrist testified that defendant was not psychotic on the day of the robbery and shooting. He further testified that defendant was not "legally insane", "[b]ecause * * * up until the firing of the gun, he knew what he was doing". The defense psychiatrist opined: "[W]hat I saw, was a man who knew what he was doing, but was overwhelmed by tremendous strain, and the reaction was automatic, but he knew what he was doing up until the time he started firing the weapon" (emphasis added).

The psychiatrist gave the following further responses on redirect examination:

"Q. You have referred to emotional strain and stress and pressure. Can you be specific as to your opinion of what those pressures were at the moment that [defendant] shot the gun? What were the pressures confronting him?

"A. The pressures of being out of work, of knowing that he had done something bad, something wrong.

"Q. When you say, `done something wrong' —

[473] "A. The robbery, not knowing what to do about it, and being confronted with a police officer, I believe it was overwhelming to him."

The testimony does not describe a significant mental trauma that has affected the defendant's mind for a substantial period of time, simmering in the unknown subconscious and then coming to the fore (see, People v Patterson, 39 N.Y.2d 288, 303, supra). Nor can such a result properly be achieved, in my view, by linking the situation which led to the commission of the armed robbery with the alleged "detached, isolated explosive episode" which according to the defense psychiatrist prevented defendant from reflecting upon his actions at the time of the shooting.

Defendant's actions at the time of the robbery and his subsequent shooting at the police officer were not bizarre so as to add credible support to the claim of extreme emotional disturbance, unrelated to defendant's own culpable conduct (cf. People v Moye, supra). Once defendant had decided to rob the liquor store (assuming it was a spur of the moment decision), it is not disputed that he calmly committed the crime. Afterwards, he walked from the store, turned left, but upon changing his mind, he turned around and walked back past the store, motioning to the store owner, apparently to stay inside the store. Defendant then proceeded for a distance of about one-quarter mile before he was stopped by the police. Any hesitation by the defendant during his shooting encounter with the police was clearly associated by the defense psychiatrist with the situation in which defendant found himself, knowing he had "done something bad, something wrong". Moreover, I cannot see any significance in defendant's statement, made to the Spanish-speaking police officer the day after the shooting, in substance, that he still suffered some residual effects from eating some toxic fruit as a youngster in Santo Domingo. The defense psychologist testified concerning this long past incident, allegedly involving some unknown fruit with hallucinogenic properties, as related to him, not by the defendant, but by defendant's brother; but there was no documentation of such an alleged event. Nor did the experts proffered by defendant link the alleged incident with the robbery or the shooting. The defense psychiatrist never attempted to relate this "fruit of a poisoned tree" to defendant's mental state at the time of the shooting. In fact, the psychiatrist never mentioned the toxic fruit incident at all in his testimony. Further, I simply cannot agree with my colleagues [474] in the majority that defendant, who engaged in a shoot-out with the police officer after he had committed an armed robbery, was entitled to a charge as to extreme emotional disturbance because he had been unemployed for a period of nine months prior to the crime and allegedly suffered from an "inadequate fragile personality".

Accordingly, it cannot be said that there was sufficient credible evidence which would warrant a charge to the jury on the affirmative defense of extreme emotional disturbance (compare, People v Walker, 64 N.Y.2d 741, with People v Moye, 66 N.Y.2d 887, supra).

Finally, it is noteworthy that as a result of the testimony of the defense psychiatrist that defendant "could not formulate an intent to harm the officer" and that his behavior in shooting at the officer was "a detached, isolated explosive episode * * * having no purpose or prethinking at all", the trial court charged the jury with respect to the count of attempted murder, as to the lesser included offenses of attempted aggravated assault upon a police officer, attempted assault in the first degree, and reckless endangerment in the first degree. Thus, the jury was permitted to consider lesser degrees of the crime of attempted murder in the first degree and thereby exercise an appropriate degree of leniency, if it had been so inclined, in accord with the facts as presented in this case.

Judgment of the County Court, Westchester County, rendered December 12, 1981, modified, on the law, by reversing the conviction of attempted murder in the first degree, and the sentence imposed thereon is vacated. As so modified, judgment affirmed and new trial ordered as to the count of attempted murder in the first degree.

[1] Defendant came to this country in 1979 from Santo Domingo and could speak very little English.

[2] The record does not disclose precisely when the insanity defense was withdrawn, but following the court's charge to the jury, defense counsel indicated that the insanity defense was withdrawn "long ago".

[4 Wn.App. 910] [484 P.2d 1169] Kempton, Savage & Gossard, Anthony Savage, Jr., Seattle, Court-appointed for appellant.

Christopher T. Bayley, King County Pros. Atty., Michael P. Ruark, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendants, husband and wife, were charged by information filed October 3, 1968, with the crime of manslaughter for negligently failing to supply their 17-month child with necessary medical attention, as a result of which he died on September 12, 1968. Upon entry of findings, conclusions and judgment of guilty, sentences were imposed on April 22, 1969. Defendants appeal.

The defendant husband, Walter Williams, is a 24-year old full-blooded Sheshont Indian with a sixth-grade education. His sole occupation is that of laborer. The defendant wife, Bernice Williams, is a [484 P.2d 1170] 20-year-old part Indian with an 11th grade education. At the time of the marriage, the wife had two children, the younger of whom was a 14-month son. Both parents worked and the children were cared for by the 85-year-old mother of the defendant husband. The defendant husband assumed parental responsibility with the defendant wife to provide clothing, care and medical attention for the child. Both defendants possessed a great deal of love and affection for the defendant wife's young son.

The court expressly found:

That both defendants were aware that William Joseph [4 Wn.App. 911] Tabafunda was ill during the period September 1, 1968 to September 12, 1968. The defendants were ignorant. They did not realize how sick the baby was. They thought that the baby had a toothache and no layman regards a toothache as dangerous to life. They loved the baby and gave it aspirin in hopes of improving its condition. They did not take the baby to a doctor because of fear that the Welfare Department would take the baby away from them. They knew that medical help was available because of previous experience. They had no excuse that the law will recognize for not taking the baby to a doctor.

The defendants Walter L. Williams and Bernice J. Williams were negligent in not seeking medical attention for William Joseph Tabafunda.

That as a proximate result of this negligence, William Joseph Tabafunda died.

Findings 5, 6 and 7. From these and other findings, the court concluded that the defendants were each guilty of the crime of manslaughter as charged.

Defendants take no exception to findings but contend that the findings do not support the conclusions that the defendants are guilty of manslaughter as charged. The contentions raise tow basic issues, (1) the existence of the duty to furnish medical aid charged by the information to be violated ^[1] and the seriousness of the breach required; and (2) the issue of proximate cause, I.e., whether defendants were put on notice, in time to save the child's life, that medical care was required. Because the nature of the duty and the quality or seriousness of the breach are closely interrelated, our discussion of the first issue involved will embrace both matters.

[4 Wn.App. 912] Parental duty to provide medical care for a dependent minor child was recognized at common law and characterized as a natural duty. In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942); White v. McDowell, 74 Wash. 44, 132 P. 734 (1913); See Commonwealth v. Breth, 44 Pa.Co.Ct.R. 56 (1915); Annot., 100 A.L.R.2d 483, §§ 6, 15(a), 15(b) (1965). In Washington, the existence of the duty is commonly assumed and is stated at times without reference to any particular statute. See, e.g., In re Adoption of Lybbert, 75 Wash.2d 671, 453 P.2d 650 (1969); In re Hudson, 13 Wash.2d 673, 693, 126 P.2d 765 (1942); In re Guardianship of Rudonick, 76 Wash.2d 117, 125, 456 P.2d 96 (1969). The existence of the duty also is assumed, but not always defined, in statutes that provide special criminal and civil sanctions for the performance of that duty. These include RCW 26.16.205, 26.20.030, 26.24.090, 26.32.140, 26.37.050 and chapter 26.21. See State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966). Thus, RCW 26.16.205 imposes civil liability on parental property [484 P.2d 1171] for the 'expenses of the family and education of the children.' The quoted language is broad enough to include 'necessaries,' and necessaries include necessary medical expense of dependent minor children which it is the duty of a parent to provide. On the question of the quality or seriousness of breach of the duty, at common law, in the case of involuntary manslaughter, the breach had to amount to more than mere ordinary or simple negligence--gross negligence was essential. See 1 O. Warren, Homicide § 86 at 424 (Permanent ed. 1938); R. Perkins, Criminal Law 60--61 (1957). In Washington, however, RCW 9.48.060 ^[2] (since amended by Laws of 1970, ch. 49, § 2) and RCW 9.48.150 ^[3] supersede both voluntary and [4 Wn.App. 913] involuntary manslaughter as those crimes were defined at common law. Under these statutes the crime is deemed committed even though the death of the victim is the proximate result of only simple or ordinary negligence. State v. Brubaker, 62 Wash.2d 964, 385 P.2d 318 (1963); State v. Ramser, 17 Wash.2d 581, 136 P.2d 1013 (1943); State v. Hedges, 8 Wash.2d 652, 113 P.2d 530 (1941).

The concept of simple or ordinary negligence describes a failure to exercise the 'ordinary caution' necessary to make out the defense of excusable homicide. RCW 9.48.150. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use 'ordinary caution.' See State v. Hedges, Supra. If such negligence proximately causes the death of the victim, the defendant, as pointed out above, is guilty of statutory manslaughter.

In the instant case, defendants contend that the only duty to provide medical care for the infant child is the statutory duty set forth in RCW 26.20.030; that the court having concluded that the defendants were not guilty of 'willful * * * misconduct,' that no duty to furnish medical care was violated and that, accordingly, defendants are not guilty of the crime of statutory manslaughter charged in the information.

RCW 26.20.030(1)(b) makes it a felony for a person who 'willfully omits, without lawful excuse, to furnish necessary * * * medical attendance for his or her child * * *.' The words 'willfully omits' are, as pointed out in State v. Russell, 73 Wash.2d 903, 907--908, 442 P.2d 988 (1968), used in two senses, namely, (1) 'an act or omission done intentionally * * *' or (2) when used in statutes making nonsupport a crime, 'an absence of lawful excuse or justification on the part of the accused parent.' It was further pointed out that, by reason of RCW 26.20.080, the state [4 Wn.App. 914] meets its burden of proving willfulness and absence of lawful excuse on a prima facie basis when the evidence, directly or circumstantially, reveals a failure on the part of a physically or vocationally able parent to furnish the required medical attendance. Hence, RCW 26.20.030 is presumptively violated either because a defendant intentionally omits to furnish necessary medical care, or omits so to do without lawful excuse.

Defendants' contention misconceives the significance of the words 'willful * * * misconduct' contained in the conclusions because of defendants' failure to recognize that 'willful' is a phrase of double meaning. The presumption of correctness that attends judgments of the trial court is necessarily predicated upon the subordinate presumption of the correctness of findings and conclusions. To give proper[484 P.2d 1172] effect to this presumption requires that findings, whether or not containing a conclusion of law, and conclusions of law be reconciled if reasonably possible. Such a reconciliation is entirely possible in the instant case by a proper interpretation of the phrase 'willful * * * misconduct.' Since the trial court expressly found that the defendants 'had no excuse that the law will recognize for not taking the baby to a doctor,' it is reasonable to conclude that the phrase 'willful * * * misconduct,' contained in the conclusion, merely means intentional misconduct. The conclusion, in light of the findings, means merely that the conduct, although not intentional, was without lawful excuse and therefore willful in the second sense. State v. Russell, 73 Wash.2d 903, 442 P.2d 988 (1968); State v. McCarty, 76 Wash.2d 328, 456 P.2d 350 (1969); State v. Ozanne, 75 Wash.2d 546, 452 P.2d 745 (1969). Even if it is assumed that the information charging the crime of manslaughter relied upon a violation of RCW 26.20.030(1)(b), the conviction must stand since the findings and supporting evidence are sufficient to support the conclusion that, in the second sense of the term, the defendants willfully violated the duty owing their deceased child.

Furthermore, the significance of the words 'willful [4 Wn.App. 915] * * * misconduct' contained in the conclusion is overstated. If it be assumed that RCW 26.20.030(1)(b) can be said to create a duty to furnish medical care otherwise not existing, as distinguished from a mere statement of a condition precedent to the imposition of a criminal sanction, then a duty may be said to exist even if the conditions permitting imposition of the criminal sanction do not. See State v. Parmenter, 74 Wash.2d 343, 444 P.2d 680 (1968). Hence, a conclusion that defendants' conduct was not willful does not mean that the duty has not been violated. It merely means that the special sanction of RCW 26.20.030(1) (b) cannot be invoked.

We need not, however, rest our decision solely on the above mentioned grounds. The information charging statutory manslaughter made no mention of and did not purport to restrict itself to the violation of the duty set forth in RCW 26.20.030(1)(b). The information charged the violation of 'the legal duty of providing necessary * * * medical attention to said * * * minor child * * *' This general language permits reliance upon the existence of the legal duty no matter from what source derived. We have already pointed out that such a parental duty is recognized in the decisions of this state and has been characterized as a natural duty existing independently of statutes. In re Hudson, Supra. RCW 26.20.030(1)(b) is consistent with and therefore does not supersede the common law natural duty of parents to provide medical care for their minor dependent children. Thus, should RCW 26.20.030(1)(b) be repealed, it could not reasonably be claimed that parents were thereby absolved from their natural duty to provide necessary medical care for their minor dependent children. We therefore hold that the violation of the parental duty to furnish medical care to a minor dependent child, the other elements of manslaughter being present, is a sufficient basis on which to rest a conviction of the crime of manslaughter under RCW 9.48.060 and 9.48.150. State v. Parmenter, Supra. See Commonwealth v. [4 Wn.App. 916] Breth, Supra. See also State v. Brubaker, Supra; State v. Ramser, Supra; State v. Hedges, Supra.

In the instant case, however, the defendant husband is not the father of the minor child, nor has he adopted that child. Nevertheless, the evidence shows that he had assumed responsibility with his wife for the care and maintenance of the child, whom he greatly loved. Such assumption of responsibility, characterized in the information as that required of a 'guardian and custodian,' is sufficient to impose upon him the duty to furnish necessary medical care. See State v. Parmenter, Supra; White v. McDowell, Supra. See generally, Annot., 10 A.L.R. 1137, 1143 (1921); 39 Am.Jur. Parent and Child § [484 P.2d 1173] 105 (1942); State v. Noakes, 70 Vt. 247, 40 A. 249 (1897); State v. Sandford, 99 Me. 441, 59 A. 597 (1905). See also RCW 9.01.030.

The remaining issue of proximate cause requires consideration of the question of when the duty to furnish medical care became activated. If the duty to furnish such care was not activated until after it was too late to save the life of the child, failure to furnish medical care could not be said to have proximately caused the child's death. Timeliness in the furnishing of medical care also must be considered in terms of 'ordinary caution.' The law does not mandatorily require that a doctor be called for a child at the first sign of any indisposition or illness. The indisposition or illness may appear to be of a minor or very temporary kind, such as a toothache or cold. If one in the exercise of ordinary caution fails to recognize that his child's symptoms require medical attention, it cannot be said that the failure to obtain such medical attention is a breach of the duty owed. In our opinion, the duty as formulated in People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903), although involving a statute similar to RCW 26.20.030(1)(b), properly defines the duty contemplated by our manslaughter statutes RCW 9.48.060 and RCW 9.48.150. The court there said:

We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household [4 Wn.App. 917] nursing by members of the family; that a reasonable amount of discretion is vested in parents, charged with the duty of maintaining and bringing up infant children; and that the standard is at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it necessary to call in the services of a physician.

People v. Pierson, Supra at 205, 68 N.E. at 244. Accord, Beck v. State, 29 Okl.Cr. 240, 233 P. 495 (1925).

It remains to apply the law discussed to the facts of the instant case.

Defendants have not assigned error to the findings either on the ground that the evidence is insufficient to prove negligence or proximate cause, or that the state has failed to prove the facts found by failing to apply the required standard of proof beyond a reasonable doubt. See People v. Robillard, 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086 (1960), cert. denied, 365 U.S. 886, 81 S.Ct. 1043, 6 L.Ed.2d 199 (1961); United States v. Eichberg, 439 F.2d 620 (D.C.Cir.1971). They contended below and on appeal that they are not guilty of the crime charged. Because of the serious nature of the charge against the parent and step-parent of a well-loved child, and out of our concern for the protection of the constitutional rights of the defendants, we have made an independent examination of the evidence to determine whether it substantially supports the court's express finding on proximate cause and its implied finding that the duty to furnish medical care became activated in time to prevent death of the child. See State v. Moore, 194 Or. 232, 241 P.2d 455 (1952).

Dr. Gale Wilson, the autopsy surgeon and chief pathologist for the King County Coroner, testified that the child died because an abscessed tooth had been allowed to develop into an infection of the mouth and cheeks, eventually becoming gangrenous. This condition, accompanied by the child's inability to eat, brought about malnutrition, lowering the child's resistance and eventually producing pneumonia, causing the death. Dr. Wilson testified that in his opinion [4 Wn.App. 918] the infection had lasted for approximately 2 weeks, and that the odor generally associated with gangrene would have been present for approximately 10 days before death. He also expressed the opinion that had medical care been first obtained in the last week before the baby's [484 P.2d 1174] death, such care would have been obtained too late to have saved the baby's life. Accordingly, the baby's apparent condition between September 1 and September 5, 1968 became the critical period for the purpose of determining whether in the exercise of ordinary caution defendants should have provided medical care for the minor child.

The testimony concerning the child's apparent condition during the critical period is not crystal clear, but is sufficient to warrant the following statement of the matter. The defendant husband testified that he noticed the baby was sick about 2 weeks before the baby died. The defendant wife testified that she noticed the baby was ill about a week and a half or 2 weeks before the baby died. The evidence showed that in the critical period the baby was fussy; that he could not keep his food down; and that a cheek started swelling up. The swelling went up and down, but did not disappear. In that same period, the cheek turned 'a bluish color like.' The defendants, not realizing that the baby was as ill as it was or that the baby was in danger of dying, attempted to provide some relief to the baby by giving the baby aspirin during the critical period and continued to do so until the night before the baby died. The defendants thought the swelling would go down and were waiting for it to do so; and defendant husband testified, that from what he had heard, neither doctors nor dentists pull out a tooth 'when it's all swollen up like that.' There was an additional explanation for not calling a doctor given by each defendant. Defendant husband testified that 'the way the cheek looked, * * * and that stuff on his hair, they would think we were neglecting him and take him away from us and not give him back.' Defendant wife testified that the defendants were 'waiting for the swelling to go down,' and also that they were afraid to [4 Wn.App. 919] take the child to a doctor for fear that the doctor would report them to the welfare department, who, in turn, would take the child away. 'It's just that I was so scared of losing him.' They testified that they had heard that the defendant husband's cousin lost a child that way. The evidence showed that the defendants did not understand the significance or seriousness of the baby's symptoms. However, there is no evidence that the defendants were physically or financially unable to obtain a doctor, or that they did not know an available doctor, or that the symptoms did not continue to be a matter of concern during the critical period. Indeed, the evidence shows that in April 1968 defendant husband had taken the child to a doctor for medical attention.

In our opinion, there is sufficient evidence from which the court could find, as it necessarily did, that applying the standard of ordinary caution, I.e., the caution exercisable by a man of reasonable prudence under the same or similar conditions, defendants were sufficiently put on notice concerning the symptoms of the baby's illness and lack of improvement in the baby's apparent condition in the period from September 1 to September 5, 1968 to have required them to have obtained medical care for the child. The failure so to do in this case is ordinary or simple negligence, and such negligence is sufficient to support a conviction of statutory manslaughter.

The judgment is affirmed.

UTTER and WILLIAMS, JJ., concur.

---------------

[1] The information, in charging the violation of the duty owed, alleged:

(T)hey, the said defendants, then and there being the father, mother, guardian and custodian of one William Joseph Tabafunda, and being then and there under the legal duty of providing necessary food, clothing, care and medical attention to said William Joseph Tabafunds (sic), a minor child under the age of sixteen years, to-wit: of the age of seventeen (17) months, did then and there unlawfully and feloniously fail and neglect, without lawful excuse, to provide said * * * child * * * with necessary food, clothing, care and medical attention * * *

[2] RCW 9.48.060 provided in part:

'In any case other than those specified in RCW 9.48.030, 9.48.040 and 9.48.050, homicide, not being excusable or justifiable, is manslaughter.'

[3] RCW 9.48.150 provides:

'Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, with ordinary caution and without any unlawful intent.'

[203] Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant in the first above-entitled action.

[204] Robert T. Johnson, District Attorney, Bronx (Jonathan Zucker, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent in the first above-entitled action.

Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant in the second above-entitled action.

Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Anne C. Feigus of counsel), for respondent in the second above-entitled action.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and R.S. SMITH concur in per curiam opinion; Judges G.B. SMITH, ROSENBLATT and R.S. SMITH concur in a separate concurring opinion; Judge READ concurs in result in a separate opinion; Judge GRAFFEO dissents and votes to affirm in another opinion.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and R.S. SMITH concur in per curiam opinion; Judges G.B. SMITH, ROSENBLATT and R.S. SMITH concur in a separate concurring opinion; Judge GRAFFEO concurs in result in a separate opinion; Judge READ concurs in result in another opinion. [231]

[205] OPINION OF THE COURT

Per Curiam.

These two appeals call upon the Court, once again, to differentiate depraved indifference murder from other categories of homicide. We begin with the facts.

People v Suarez. On February 22, 2000, in their Bronx apartment, defendant Santos Suarez stabbed his girlfriend, Jovanna Gonzalez, three times — once in the throat, once in the chest and once in the abdomen. Suarez fled without summoning assistance, and Gonzalez eventually bled to death.

When Suarez was arrested six days later in Rhode Island, he told police that he had slapped Gonzalez in the face during an argument, and that she had then lunged at him with a knife, scratching him in the chest. Suarez wrested the knife away and, "outraged" that Gonzalez had called for her son, lunged back at her. According to Suarez's account, when he pulled back, he saw that Gonzalez was bleeding from the neck. He claimed, however, that he could not remember what happened next. Suarez was indicted for intentional murder, depraved indifference murder, intentional manslaughter and criminal possession of a weapon in the fourth degree. At his trial, he testified that he never intended to kill Gonzalez. Charged on the defense of justification and the affirmative defense of extreme emotional disturbance, the jury acquitted Suarez of intentional murder but convicted him of depraved indifference murder. The Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

People v McPherson. On February 12, 2000, defendant Trisha McPherson went to the Brooklyn home of Kirk Wright, her former boyfriend and the father of her child. According to McPherson, [206] after she and Wright argued over child support, Wright pushed her. When Wright then raised his hand as if to hit her, McPherson unzipped her purse, pulled out a knife, opened the knife and swung it at Wright, stabbing him once in the chest. When she saw that Wright was bleeding, McPherson immediately called 911 and requested an ambulance. Before the ambulance arrived, McPherson left the scene. Wright was transported to a hospital, where he bled to death from the stab wound. At her nonjury trial for depraved indifference murder, first-degree manslaughter and fourth-degree weapon possession, McPherson testified that she had been a long-suffering victim of domestic violence at the hands of Wright, and that she was acting in self-defense when she killed him. The court, however, rejected her justification defense and found her guilty of depraved indifference murder. Again the Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

In each case — McPherson by a unanimous court, Suarez by a six-Judge majority — we conclude that there was no depraved indifference murder, and therefore reverse both convictions.

The Statutory Categories of Homicide

With the adoption of the revised Penal Law in 1965, the Legislature codified five basic categories of homicide, which have remained essentially unchanged since that time: intentional murder in the second degree (Penal Law § 125.25 [1]),^[1] depraved indifference murder in the second degree (Penal Law § 125.25 [2]), intentional manslaughter in the first degree (Penal Law § 125.20 [1]), reckless manslaughter in the second degree (Penal Law § 125.15 [1]) and criminally negligent homicide (Penal Law § 125.10). Although the culpable acts in each case culminate in the same tragic result — the death of another — these crimes, each necessarily meant to proscribe different conduct, are distinguished by the level of blameworthiness attributable to the actor who commits them. Intentional murder and depraved indifference murder are equivalent in that both are classified at the highest grade and carry the same penalty; other categories of homicide, lesser in grade, are punished less severely. In so classifying the range of unlawful killings [207] condemned by the criminal law, the Legislature has enacted a statutory system in which each category of homicide is defined uniquely and distinctly from every other, thus ensuring that a killer's punishment is commensurate with the degree of criminal culpability established by the Penal Law.

What precisely distinguishes depraved indifference murder from other homicides has of late generated significant discussion,^[2] as the number of indictments for depraved indifference murder — often charged in conjunction with intentional murder — has increased dramatically. Whether because jurors conclude that anyone who would intentionally take a life is depraved, or because they mistakenly believe that depraved indifference murder is a lesser offense than intentional murder and are reluctant to convict of the "most serious" charge, the availability of a depraved indifference murder count has led juries to convict of that charge even though the evidence did not support it (see e.g. People v Hafeez, 100 NY2d 253 [2003]; People v Gonzalez, 1 NY3d 464 [2004]; People v Payne, 3 NY3d 266 [2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]).

The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved indifference murder statute. "[D]epraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York" (Payne, 3 NY3d at 270). Rather, because the statute requires "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25 [2]), depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder. The cases now before us, two additional examples of the misapplication of the depraved indifference murder statute, compel us — for now and for the future — to revisit what is unique and distinctive about [208] that crime as defined by the Legislature. The purpose here is not to take anything away from juries (see concurring/dissenting op at 227) — a valued and essential element of our justice system — but rather to provide the guidance that will enable prosecutors, juries, trial courts and reviewing courts to function without risk of reversal.

Distinction from Intentional Murder

According to Penal Law § 125.25 (2), a person commits depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."

That taking the life of another can itself, in a sense, be considered a "depraved" act does not, however, turn every killing into depraved indifference murder as proscribed by the Penal Law. We thus begin by once again underscoring that the "use of a weapon can never result in depraved indifference murder when . . . there is a manifest intent to kill" (Payne, 3 NY3d at 271 [2004] [point-blank shooting insufficient to establish depraved indifference murder]). That is so because "[i]ndifference to the victim's life . . . contrasts with the intent to take it" (id. at 270). The People concede this proposition, but seek to distinguish Suarez from Payne, and from Gonzalez (1 NY3d 464 [2004] [10 shots fired at close range]), because in those cases the defendant used a gun, whereas here he used a knife. Thus, despite Payne's plain statement that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 NY3d at 272 [emphasis added]), the People maintain that a jury could reasonably have concluded that Suarez's infliction of stab wounds to the throat, chest and abdomen of his victim reflected not an intent to kill but merely an intent to seriously injure her.

If the prosecution meant by this nothing more than that the evidence would have supported defendant's conviction for intentional murder — despite the jury's acquittal of that charge — as well as his conviction for intentional manslaughter in the first degree, we would agree. However, the People contend further that the evidence here also established depraved indifference murder, on the theory that Suarez's actions in stabbing the victim created a grave risk of her death — a risk that he consciously disregarded when he failed to seek medical assistance for the injuries he intentionally inflicted and instead left her there to die.

[209] "That is not the law. If it were, every homicide, particularly intentional ones, would be converted into depraved indifference murder" (Payne, 3 NY3d at 270; see also People v Hafeez, 100 NY2d 253, 259 [2003] [where defendant's conscious objective was to "intentionally injur(e)" the victim, there was "no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder"]).

Indeed, the flaw in the People's argument is perhaps best demonstrated by comparing Suarez with McPherson. In Suarez, the People maintain that depraved indifference is established by the defendant's intentional infliction of a mortal wound, followed by his flight from the scene of the killing. Because the defendant left the bleeding victim still alive without "finishing her off," we are told, he must not have intended her death (which in turn exempts the case from the "manifest intent to kill" rule of Payne). But since he did nothing to save her, his actions, we are further told, reflected a depraved indifference to her life.^[3] In McPherson, by contrast, we are told that the defendant's conduct in calling for an ambulance after discovering that her victim had been wounded in itself reflected depraved indifference. For, the argument goes, her very actions in summoning assistance show that she did not intend for the victim to die. That being so, her crime (the People assert) must have been one of indifference, not of intentionality; and since the risk of death created by a chest wound is a grave one, the depraved indifference murder statute is satisfied.

When the People can make, and courts can accept, arguments in which both the rendering of assistance and the failure to render assistance serve to establish depraved indifference, there must be a fundamental misapprehension of the concept of the crime.

[210] The People's argument is flawed on two grounds. First, a killing (whether intentional or unintentional) is not transformed into depraved indifference murder simply because the killer does not summon aid for the victim. Otherwise, homicides would be routinely and improperly converted into depraved indifference murders whenever — as is often the case — the killer leaves the scene. Even more obviously, a killing does not become a depraved indifference murder merely because the killer summons aid and thus reveals an intent that the victim not die. Surely, a killer does not commit depraved indifference murder just because he or she wants the victim to live. Second, and irrespective of what the actor does or does not do after inflicting the fatal injury, depraved indifference murder is not made out unless the core statutory requirement of depraved indifference is established.

"Depraved indifference murder does not mean an extremely, even heinously, intentional killing. . . .

"When a defendant's conscious objective is to cause death, the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant. Nor can the wanton disregard for human life inherent in every intentional homicide convert such a killing"

into depraved indifference murder (Gonzalez, 1 NY3d at 468).

Distinction from Intentional Manslaughter

Historically, depraved indifference murder had no application at all to one-on-one killings (see generally Bernard E. Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417 [1974]). Accordingly, in Darry v People (10 NY 120 [1854]), this Court held that a conviction for "depraved mind"^[4] murder required conduct that endangered many people indiscriminately, reflecting cases in which the defendant did not wish to kill or injure any particular individual, but had no care for whether the life of any particular person was lost or not.

Since the enactment of the revised Penal Law, however, we have recognized that in rare circumstances, depraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those [211] in which — although the intent to kill is absent — the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. Such cases will arise only when the acts of the defendant are "marked by uncommon brutality — coupled not with an intent to kill . . . but with depraved indifference to the victim's plight" (Payne, 3 NY3d at 271). To constitute depraved indifference, the defendant's

"conduct must be `"so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another"'" (People v Russell, 91 NY2d 280, 287-288 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]).

The vast majority of killings simply do not meet this standard. They are suitably punished by statutes defining intentional murder or manslaughter in the first or second degree or criminally negligent homicide.

Depraved indifference murder is not a lesser degree of intentional murder.^[5] Moreover, someone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "[s]erious physical injury" includes injury "which creates a substantial risk of death, or which causes death" (Penal Law § 10.00 [10]). Thus, one who acts with the conscious intent to cause serious injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder — a result plainly at odds with the discrete classifications set forth in the statute. Since a defendant who intends to injure or kill a particular person cannot generally be said to be "indifferent" — depravedly or otherwise — to the fate of that person, we underscore what we said in Payne: "a one-on-one shooting or [212] knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 NY3d at 272).^[6]

A defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances. Two fact patterns have recurred over the past four decades of experience under the revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's mortal plight — arising from a situation created by the defendant — properly establishes depraved indifference murder. Thus, in People v Kibbe (35 NY2d 407 [1974]), the defendants were properly convicted of depraved indifference murder after they robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed. Similarly, in People v Mills (1 NY3d 269 [2003]), the defendant, without intent to harm or kill his victim, pushed a young boy into the water, watched him submerge without resurfacing (either because the boy had accidentally struck his head or because of an epileptic seizure), falsely informed his friends in response to their cries to help the victim that he was in fact swimming away, and abandoned the drowning boy to die.

Second, although we have reversed depraved indifference murder convictions in most cases involving isolated attacks, we have held that the crime is nevertheless established when a defendant — acting with a conscious objective not to kill but to harm — engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. When a defendant's actions serve to intensify or prolong a victim's suffering, they bespeak a level of cruelty that establishes [213] the depravity mandated by statute. Thus, in People v Poplis (30 NY2d 85 [1972]), the defendant committed depraved indifference murder when, albeit without any intent to kill, he caused the death of a 3½-year-old infant as a result of continually beating the child over a period of five days (see also People v Best, 85 NY2d 826 [1995], affg 202 AD2d 1015 [4th Dept 1994] [defendant's repeated severe beatings of her nine-year-old son caused large open wounds resulting in blood poisoning and ultimately death by asphyxiation; depraved indifference murder established since defendant continued beatings though aware of child's condition]).

Both of these categories of cases reflect wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator's inexcusable acts. We have also upheld convictions for depraved indifference murder in a few other extraordinary cases involving conduct that endangered only one person, where the evidence showed not just recklessness, but depraved indifference to human life (see e.g. People v Roe, 74 NY2d 20 [1989] [defendant fired at point-blank range without knowing whether the bullet was a "live" or "dummy" round]). Where comparable facts are not shown, however, a jury is foreclosed, as a matter of law, from considering a depraved indifference murder charge whenever death is the result of a one-on-one confrontation.^[7]

Distinction from Reckless Manslaughter

Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Otherwise, manslaughter in the second degree would routinely and automatically become depraved indifference murder inasmuch as the victim (who was, after all, killed) was necessarily exposed to a grave or substantial risk of death. The critical [214] statutory language that separates second-degree manslaughter from depraved indifference murder is the defendant's underlying depraved indifference. "[C]ircumstances evincing a depraved indifference to human life" are not established by recklessness coupled only with actions that carry even an inevitable risk of death.

We therefore make clear that depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not. Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy" as to render the actor as culpable as one whose conscious objective is to kill (Russell, 91 NY2d at 287 [internal quotation marks omitted]).^[8] Quintessential examples are firing into a crowd (see e.g. People v Jernatowski, 238 NY 188 [1924]); driving an automobile along a crowded sidewalk at high speed (see People v Gomez, 65 NY2d 9 [1985]); opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway.

Oftentimes it will not be easy to determine whether a defendant's conscious objective was to kill or merely to injure a victim. But those are the hard choices to be weighed by the trier of fact. Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions. We therefore make clear that the statutory provision that a defendant act "[u]nder circumstances evincing a depraved indifference to human life" constitutes an additional requirement of the crime — beyond mere recklessness and risk — which in turn comprises both depravity and indifference, and that a jury considering a charge of depraved indifference murder should be so instructed (see People v Register, 60 NY2d 270, 276 [1983] [depraved indifference murder statute "requires in [215] addition not only that the conduct which results in death present a grave risk of death but that it also occur `(u)nder circumstances evincing a depraved indifference to human life'"]).

We depart slightly from the Register formulation, however, in that we make clear that the additional requirement of depraved indifference has meaning independent of the gravity of the risk. As the present cases illustrate, to focus, as the dissent does, on only the degree of risk presented by a defendant's reckless actions gives insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes. For with the critical inquiry thus cast, it becomes difficult for trial and appellate courts to determine as a matter of law whether given conduct has established a very substantial or merely substantial risk of death, particularly because this determination must, by definition, always be made with the hindsight that the endangered victim did in fact die. That being so, it is hard for a court exercising meaningful review ever to deny that the jury could reasonably have concluded that the defendant's conduct must have created a very substantial (i.e., grave) risk of death, since it actually succeeded in causing death.

Although the dissent proclaims its faith in the ability of jurors to make the fine distinction between "a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction" (dissenting/concurring op at 227), it also concludes that there was no rational view of the evidence to support the conclusion that McPherson demonstrated a depraved indifference to the victim's life. But of course, the trial judge found otherwise, and was affirmed by the Appellate Division.

When depraved indifference murder is properly understood, "twin-count" indictments — charging both intentional homicide and depraved indifference murder — should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes "an intentional [killing] or no other" (People v Wall, 29 NY2d 863, 864 [1971]). Thus, where twin-count indictments are lodged, trial courts should presume "that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts" (Abramovsky and Edelstein, 55 Syracuse L Rev at 491).

In sum, whether a small, finite or rare category, depraved indifference murder should not be routinely charged to a jury. [216] Focus on the three statutory factors that distinguish depraved indifference murder — "circumstances evincing a depraved indifference to human life," recklessness and "a grave risk of death to another person" — should again make clear that the statute properly applies only to the unusual case.

Application of the Law to the Facts

In Suarez, defendant's acts in stabbing his victim in the throat, chest and abdomen did not, as a matter of law, constitute depraved indifference murder. Whether he intended to kill her or merely to cause her serious injury — and either of these findings, supported by sufficient evidence, might have been properly made by the jury — defendant's actions in no way reflected a depraved indifference to her fate.^[9] In McPherson, defendant's conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder. We reject defendant McPherson's further contention that she was denied the effective assistance of counsel at her trial.

Remittitur

In their briefs to this Court, the parties focused their arguments on the merits, and not on the question of remedy in the event of a reversal. Inasmuch as the Appellate Division, in affirming in each case, had no occasion to address the significant legal arguments bearing on the appropriate remedy, we remit to the Appellate Division for full briefing and consideration and for that Court to exercise its corrective action powers under CPL 470.20.

[217] Accordingly, in each case, the order of the Appellate Division affirming the judgment of conviction and sentence should be reversed and the case remitted to that Court for further proceedings in accordance with this opinion. Additionally, in McPherson, the order of the Appellate Division affirming the denial of defendant's CPL 440.10 motion should be affirmed.

G.B. SMITH, ROSENBLATT and R.S. SMITH, JJ. (concurring).

We are full participants in the Court's per curiam decision, but write separately to add some views of our own.

The Court's earlier decisions in People v Register (60 NY2d 270 [1983]) and in People v Sanchez (98 NY2d 373 [2002]), which was based in significant part on Register, gave too expansive a definition to depraved indifference murder. The Court has properly limited the force of those decisions in People v Hafeez (100 NY2d 253 [2003]), People v Gonzalez (1 NY3d 464 [2004]) and People v Payne (3 NY3d 266 [2004]), and has limited them even further today. We would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled.

Notwithstanding this difference, we welcome the Court's return to a more restrictive, and we believe more sound, interpretation of the depraved indifference murder statute. But there is, as all members of this Court are painfully aware, a price to be paid for this needed revision in the Court's approach. At least in Gonzalez, Payne and Suarez, defendants' convictions have been reversed despite — indeed, in part because of — strong evidence that they intended to kill their victims. But juries acquitted Gonzalez, Payne and Suarez of intentional murder, and we think the Court has rightly concluded that a correct interpretation of the depraved indifference murder statute does not permit their convictions of that crime to stand.

In overturning convictions in such cases, the Court, in our view, performs an unpleasant but necessary duty, and by doing so will make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime. We expect, or at least hope, that the rule embodied in this and our other recent decisions will be applied prospectively, and that any impact on already completed prosecutions can be avoided. Defendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive [218] candidates for collateral relief after their convictions have become final.^[1]

A defendant who commits intentional murder should be convicted and punished for that crime, not for a crime that he or she did not commit and that a jury may mistakenly believe is less serious. Where intentional murder is not made out, the lesser degrees of homicide, including first and second degree manslaughter, can fully serve the function they served for decades before the relatively recent, seismic expansion in depraved indifference murder prosecutions.^[2] Continuing to countenance the routine use of depraved indifference murder charges, as the dissent would have us do, will ultimately cause more trouble than the course the Court has taken today.

Further, and contrary to the dissent, the Court does not hold that a person who stabs another with a knife may never be guilty of depraved indifference murder. It is better to say "almost never," as the Court does. Though we have held that a point-blank shooting may almost never qualify as depraved indifference murder, we have recognized that a variation on Russian roulette (a point-blank shooting) may be an exception (see People v Roe, 74 NY2d 20 [1989]). Similarly, if one person kills another by throwing a knife to see how close it can get to the victim's head, a depraved indifference murder charge may be justified. But law school-type hypotheticals are not the stuff of the day-to-day criminal courts; and the per curiam opinion, by saying "almost never," avoids taking an absolutist position that would wholly foreclose depraved indifference murder, in a one-on-one situation, by the use of a knife or any other means.

We appreciate our dissenting colleague's desire to affirm in Suarez and reverse in McPherson. But, as the per curiam opinion demonstrates, to reach that result while applying Register and Sanchez requires overlooking the fact that both [219] defendants created at least a grave risk of death by fatally stabbing their victims in the chest. It may well be that justice would call for convicting Suarez of murder and McPherson of manslaughter, but the degree of risk created is not a sufficient basis for distinguishing between cases like these. The distinction can be properly made only by requiring that the prosecution, to obtain a murder conviction, must prove intent to kill or, in the rare cases where it is present, depraved indifference to human life. That is what the Legislature plainly intended, and we welcome the Court's decision today to adhere to that original intention.

READ, J. (concurring).

On constraint of our decision in People v Payne (3 NY3d 266 [2004]), I concur with the result in People v Suarez. On constraint of our decisions in People v Hafeez (100 NY2d 253 [2003]) and Payne, I concur with the result in People v McPherson. For all the reasons expressed by Judge Graffeo, I find the majority's rationale for deviating from our longstanding precedent and reinterpreting Penal Law article 125 to be unconvincing. As Judge Graffeo further points out, our jurisprudence in this area now raises a significant public policy issue that only the Legislature can resolve.

GRAFFEO, J. (concurring in McPherson and dissenting in Suarez).

The majority concludes that a person who stabs someone with a knife cannot act with "a depraved indifference to human life" (Penal Law § 125.25 [2]). To reach this conclusion and limit the applicability of the depraved indifference murder statute, the majority employs reasoning that is inconsistent with the language of the statute as well as the carefully drawn legislative distinctions between intentional murder, depraved indifference murder and manslaughter. Its rationale deviates from our precedent in People v Sanchez (98 NY2d 373 [2002]), People v Register (60 NY2d 270 [1983]) and other cases decided by this Court. Today's decision also fails to recognize and respect the ability of our jury system to reliably differentiate between different types of homicide. For these reasons, I respectfully disagree with the majority's interpretation of the depraved indifference murder statute.

Depraved Indifference Murder

The Legislature codified distinct categories of homicide in the Penal Law that became effective in 1967. Murder in the second degree is committed by intentionally causing the death of another [220] (see Penal Law § 125.25 [1]). An intentional killing may also be classified as first-degree murder if certain aggravating circumstances concerning the crime, the victim or the defendant are present (see Penal Law § 125.27 [1] [a]). A murder is intentional when the accused acts with the "conscious objective" to kill (Penal Law § 15.05 [1]). A lesser offense, manslaughter in the first degree, is committed when a person who intended to cause serious physical injury, causes death (see Penal Law § 125.20 [1]).

Recognizing that not all criminal conduct is intentional, the Legislature created several categories of nonintentional homicide, reflecting differing degrees of criminal culpability. A distinct type of murder, referred to as "depraved mind murder," had previously been codified in New York, but the earlier statute had been interpreted to apply only to deaths that occurred when a defendant's conduct had endangered more than one person and was not directed at harming any particular person (see Darry v People, 10 NY 120, 147 [1854]). In order to expand the reach of the offense, the Legislature redesignated this category of homicide as "depraved indifference murder," classified it as second-degree murder and provided that the crime is committed when a person, "[u]nder circumstances evincing a depraved indifference to human life, [] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). To kill recklessly, as opposed to intentionally, one must be "aware of and consciously disregard[]" a risk that conduct will result in death (Penal Law § 15.05 [3]). Both of these forms of second-degree murder — intentional and depraved indifference — carry the same penalties and are class A-I felonies. This underscores the Legislature's desire to enact a category of homicide that, although not the result of a conscious intent to kill, is the result of circumstances, coupled with a grave disregard for life, comparable in severity and blameworthiness to intentional murder.^[1]

Another category of homicide, manslaughter in the second degree, a crime of lesser grade and severity, is also premised on reckless conduct (see Penal Law § 125.15 [1]). There is, however, a critical difference between second-degree manslaughter and depraved indifference murder. Depraved indifference murder requires that the actor create a "grave" risk of death (Penal [221] Law § 125.25 [2]), whereas the manslaughter statute employs a lesser, "substantial" risk of death standard (Penal Law § 15.05 [3]). When a jury concludes that the lesser degree of risk was created and convicts a defendant of manslaughter, a class C felony, the sentencing options are far less onerous than the penalties authorized for a depraved indifference murder conviction (see generally Penal Law art 70).

Thus, in delineating between these types of homicide, the Legislature clearly indicated that the important factors that distinguish these crimes are whether a person acts intentionally with respect to a particular result (for intentional murder and first-degree manslaughter) or recklessly with regard to whether death will result (for depraved indifference and second-degree manslaughter), and if the person was reckless, whether that conduct created a grave risk of death (for depraved indifference) as opposed to only a substantial risk of death (for manslaughter). The determination of the accused's state of mind and the degree of risk created by his or her conduct has traditionally and almost exclusively been reserved to a jury of the accused's peers.

This Court on a number of occasions has discussed the meaning of the depraved indifference requirement in the second-degree murder statute. In People v Register, we explained that depraved indifference "refers to neither the mens rea nor the actus reus" of the crime (60 NY2d at 276). Rather, it is "a definition of the factual setting in which the risk creating conduct must occur" (id.). This is consistent with the carefully chosen statutory condition that depraved indifference second-degree murder is available only in "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25 [2] [emphasis added]). The Legislature inserted the word "circumstances" for a reason. As we emphasized in People v Sanchez, the "requirement of circumstances evincing a depraved indifference to human life . . . focuses not on the subjective intent of the defendant, `but rather upon an objective assessment of the degree of risk presented by [the] defendant's reckless conduct'" (98 NY2d at 379-380, quoting Register, 60 NY2d at 277). And it is the "exceptionally high, unjustified risk of death [that] constitute[s] the primary means by which the Legislature differentiated between the reckless state of mind sufficient to establish the mental culpability of manslaughter and the extreme recklessness of [depraved indifference] murder" (Sanchez, 98 NY2d at 380).

[222] From the viewpoint of statutory analysis, the majority's restrictive application of depraved indifference murder is inconsistent with the specific language of Penal Law § 125.25 (2) and our long established precedent construing that statute. According to the majority, the depraved indifference provision allows an individual to be prosecuted for second-degree murder if that person recklessly engages in conduct that creates a grave risk of death to another person and thereby causes the death of another person in the following situations: (1) where only one individual is put at risk of death and the accused "abandons [the] helpless and vulnerable victim in circumstances where the victim is highly likely to die" (majority op at 212) or "engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (majority op at 212) and (2) where more than one person is put at risk of death, regardless of the "helpless[ness]" and "vulnerab[ility]" of the victim (majority op at 212), or whether the defendant "engages in torture or a brutal, prolonged and ultimately fatal course of conduct" (majority op at 212).

This limited construction of the statute is unjustified. The language of Penal Law § 125.25 (2) does not remotely suggest that the extent of helplessness and vulnerability of the victim, or the length and nature of an attack, are prerequisites to a determination of depraved indifference. And the statute cannot plausibly be read to suggest that the Legislature intended the phrase "depraved indifference" to carry one definition in the context of a one-on-one altercation, yet mean something completely different when more than one person is endangered by the conduct of another. Furthermore, the legislative amendments to the second-degree murder statute in 1967 were meant to broaden the application of depraved indifference murder, not restrict it to cases like shooting into a crowd, opening a lion's cage or detonating a bomb in a public place, examples cited by the majority.

Aside from the problems inherent in the majority's inability to reconcile its interpretation with the plain language of the depraved indifference murder statute, today's decision signals a fundamental shift in our homicide jurisprudence. Although it purports to maintain the objective circumstances rule (see majority op at 214-215), the majority acknowledges that it is departing somewhat from the standard articulated in Register (see majority op at 215). Rather than focusing on the grave risk of death, the majority speaks in terms of the "wickedness, evil or [223] inhumanity" of the killer (majority op at 214). A majority of our Court clearly rejected this type of heightened mens rea just three years ago in Sanchez.

"Nowhere in the[] modern formulations of depraved mind or depraved indifference murder is there a requirement that, in addition to the extremely reckless nature of the homicidal conduct, there must also be proof in some other sense of an `uncommonly evil and morally perverse frame of mind'" (Sanchez, 98 NY2d at 383).

We also noted that to adopt the position now taken by the majority — to add "further mens rea elements or substantive requirements of subjectively defined characteristics of the defendant's acts" (id. at 384) — "will only confuse rather than clarify" the distinction between intentional and depraved indifference murder (id.). And in the two cases that followed Sanchez, People v Hafeez (100 NY2d 253 [2003]) and People v Gonzalez (1 NY3d 464 [2004]), we continued to apply the objective circumstances rule to determine whether there was legally sufficient evidence of depraved indifference murder, and concluded that the planned, premeditated nature of those two killings was consistent only with an intent to kill, not a reckless state of mind.

In this Court's most recent depraved indifference decision, People v Payne (3 NY3d 266 [2004]), a majority held that the point-blank shooting of a person in the chest with a shotgun should not be classified as depraved indifference murder because "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (id. at 272), regardless of other objective circumstances that may be present in a particular case, since murders of this nature demonstrate an inherent "manifest intent to kill" that does not constitute an indifference to human life (id. at 271). In my view, both Payne and the rule enunciated by the majority here conflict with our statement in Sanchez that "purposeful homicide itself is the ultimate manifestation of indifference to the value of human life" (98 NY2d at 384). Put another way, we recognized in Sanchez that there can be an act that creates "such a high risk of death that it could also lead to the conclusion that it was intentional[, which] supports rather than detracts from characterizing it as evincing depraved indifference to human [224] life" (id.).^[2] In fact, in Sanchez, where the defendant unjustifiably shot another person at close range in the chest, we affirmed the depraved indifference murder conviction precisely because "the likelihood of causing death . . . was so obviously severe that it evinced a depraved indifference to human life" (id.).^[3]

The majority attempts to reconcile its decision with the principles articulated in Sanchez by stating that the depraved indifference murder conviction in that case was upheld only "because `others were endangered'" (majority op at 213 n 7, quoting People v Payne, 3 NY3d at 272). But the Sanchez opinion neither relied on danger to multiple individuals as a decisive factor supporting a finding of depraved indifference, nor suggested that such a fact was crucial to its reasoning. To perpetuate this thin distinction further confuses the state of the law in New York.

I expect that the impact of the majority's decision will not be limited to undermining the principles espoused in Register and Sanchez. For example, in People v Roe (74 NY2d 20 [1989]) we concluded that the death of the victim, who was shot during a game of "Polish roulette," was properly classified as depraved indifference murder. Roe had loaded a shotgun with a combination of live and dummy shells, aimed it at the victim and pulled the trigger not knowing which type of round had been chambered. In that one-on-one, close-range shooting, the defendant neither "abandon[ed] a helpless and vulnerable victim" (majority op at 212) nor engaged in a "prolonged and ultimately fatal course of conduct" (majority op at 212), yet we nevertheless upheld the conviction for depraved indifference murder. Although the majority indicates that Roe was properly convicted of depraved indifference murder because it was "extraordinary" (majority op at 213), the majority does not explain how or why that is so in light of the new limitations imposed on depraved indifference murder.

[225] There are other troubling ramifications of this ruling that will not be limited to the second-degree murder statute. The crimes of assault in the first degree and reckless endangerment in the first degree also require that the defendant, "[u]nder circumstances evincing a depraved indifference to human life, [] recklessly engage[] in conduct which creates a grave risk of death to another person" (Penal Law § 120.10 [3]; see Penal Law § 120.25). Presumably, the majority's new interpretation of "depraved indifference" in the context of second-degree murder will apply with equal force to these two offenses since identically worded phrases in the same chapter of laws are usually accorded the same meaning. In light of this assumption, substantial case law from this Court will have dubious precedential value, including cases where we concluded that the requirement of "depraved indifference" is satisfied when a single gunshot was fired at point-blank range into the victim's temple (see People v Tuck, 87 NY2d 828 [1995]), a loaded and cocked handgun was placed against the temple but was not fired (see People v Chrysler, 85 NY2d 413 [1995]) and the victim was beaten and had a metal object plunged into his spinal cord (see People v Lynch, 95 NY2d 243 [2000]). Despite the fact that these circumstances do not fit into either of the two categories of "one-on-one" depraved indifference that the majority identifies (the defendants neither "abandon[ed] a helpless and vulnerable victim in circumstances where the victim is highly likely to die" [majority op at 212] nor "engage[d] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" [majority op at 212]) before today it was generally accepted that juries could consider the circumstances surrounding such conduct in evaluating the requirements of depraved indifference.^[4]

The majority's primary justification for altering our approach to depraved indifference murder centers on a concern that prosecutors and juries have been conflating this crime with intentional murder in the second degree. Contrary to the majority's belief, recognition of the long-standing rule of law expressed in Sanchez and Register does not convert "`every homicide, particularly intentional ones . . . into depraved indifference [226] murder'" (majority op at 209, quoting People v Payne, 3 NY3d at 270). There is a readily understandable distinction between intentional and depraved indifference murders — the killer's state of mind. As we have recognized, a person can act intentionally by having the conscious objective to cause death, or recklessly by disregarding a known risk of death, but cannot act with both mental states simultaneously with regard to the same result (see People v Trappier, 87 NY2d 55, 58-59 [1995]; People v Gallagher, 69 NY2d 525, 529 [1987]). Thus, simultaneous convictions for both intentional murder and depraved indifference murder cannot stand. But it does not follow that both counts may not be submitted to a jury in the alternative, with the jury to decide which offense, if any, occurred. Since direct evidence of the inner workings of a person's mind is often unavailable, the determination of the actual mens rea of a killer has traditionally remained in most situations a question of fact for the jury based on all the evidence and the entire circumstances (see People v Smith, 79 NY2d 309, 315 [1992]). The majority effectively takes that decision away from the jury, requiring a judge to preemptively choose between these alternative states of mind, even where it is the defendant who raises a factual dispute concerning mens rea by asserting that he or she did not intend to kill.

Intentional and depraved indifference murder are also distinguishable because once the jury determines that a homicide was committed purposefully, "the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant" (People v Gonzalez, 1 NY3d at 468). This is so because an intentional killing is, by its very nature, "`"wanton . . . deficient in [] moral sense . . . [and] devoid of regard of the life or lives of others"'" (People v Russell, 91 NY2d 280, 287 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]). It is only when a jury determines that a defendant did not consciously intend to cause death, but acted recklessly, that the jury must further decide whether the objective circumstances of the crime evince a depraved indifference to human life that "equals in blameworthiness intentional conduct purposefully designed to cause death" (CJI 2d [NY] Penal Law § 125.25 [2] ["Depraved Indifference Murder and Reckless Manslaughter Explained"] [revised Aug. 2, 2004]). The purpose of this inquiry is not to differentiate between intentional and depraved indifference murder but to decide whether the defendant created such a grave, "exceptionally high" risk of death that murder, as opposed to [227] manslaughter, has been committed (People v Sanchez, 98 NY2d at 380; see People v Register, 60 NY2d at 279).

Certainly depraved indifference murder should not be used as a "fallback crime" by prosecutors or juries (majority op at 214). As the distinctions between the intentional murder and depraved indifference murder provisions clearly indicate, this was not the intent of the Legislature and, therefore, is not what courts should charge juries as the law of this State. Rather, depraved indifference murder is a viable, morally equivalent crime, equal in both classification and severity of punishment to intentional murder, yet sufficiently distinguishable both legally and factually. It should be charged and considered by the jury when the facts, as viewed in the light most favorable to the People, could permit a rational jury to conclude that a defendant acted recklessly with a depraved indifference to life.

To presume that conflation is widespread, one must necessarily believe that juries are incapable of distinguishing between intentional and reckless states of mind, and are similarly unable to determine whether the circumstances of the defendant's actions created a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction. I have faith in the jury system — jurors are perfectly capable of making these determinations and it is therefore unnecessary for this Court to create artificial categories of depraved indifference murder that are not supported by the language of Penal Law § 125.25 (2). The majority recognizes that "[o]ftentimes it will not be easy to determine whether a defendant's conscious objective was to kill or merely to injure" but, nonetheless, "those are the hard choices to be weighed by the trier of fact" (majority op at 214). The majority then inexplicably fails to appreciate that the same is true with respect to distinguishing between an intentional and reckless state of mind — a determination that, although sometimes difficult, nevertheless traditionally has been and should remain the responsibility of a jury (see People v Sanchez, 98 NY2d at 384-385).

Ultimately, the majority's reasoning will not likely clarify this issue for courts and prosecutors, who continue to struggle to determine what this Court's view on depraved indifference will be on the facts presented in a particular homicide case. Although the majority has left open the possibility that additional categories of one-on-one homicides, other than the two explicitly identified in today's decision, may qualify for treatment as [228] depraved indifference murder if the circumstances are "extraordinary" (a term it does not define), trial courts and prosecutors are well advised to tread carefully when dealing with depraved indifference murder in the future, lest further injustices occur.

One thing is certain. We no longer have a category of reckless homicide that is comparable in grade and penalty to intentional murder, except in the rare situations authorized by the majority. There is an urgent need for the Legislature to reexamine article 125 of the Penal Law in the aftermath of today's decision. Undoubtedly, there will be future killings that juries may decide were not committed with an intent to kill, but were the result of reckless acts committed with a grave disregard for life. The policy issue is whether this type of criminal conduct should expose these offenders to criminal penalties more severe than those available for a class C felony conviction of manslaughter in the second degree. The Legislature should explore what societal objectives need to be preserved in article 125 and restructure New York's homicide statutes to meet those objectives.

The Cases Before Us

Based on the facts presented in these two cases, and applying our established principles of depraved indifference murder as articulated in Register and Sanchez, I conclude that there was legally sufficient evidence to support the second-degree murder conviction of defendant Santos Suarez. Viewed in the light most favorable to the People, the jury could have rationally determined that Suarez did not consciously intend to kill the victim when he became embroiled in a dispute with her, but rather acted recklessly by disregarding the grave risk that his conduct would result in the death of the victim. Suarez testified that he did not intend to kill the victim. Surely jurors are allowed to credit this testimony. Suarez also alleged that it was his girlfriend who produced the knife during their verbal confrontation. If found to be a credible claim by the jury, this was an indication that the attack by defendant was not premeditated (cf. People v Gonzalez, 1 NY3d 464 [2004] [after seeing the victim, the defendant departed and later returned with the murder weapon]; People v Hafeez, 100 NY2d 253 [2003] [retaliatory attack was plotted in advance]). There was also ample evidence that defendant's actions created such an exceptionally high, grave risk of death that they were properly classified as depraved indifference murder rather than manslaughter. The [229] victim received three stab wounds in her torso, two of which perforated a major vein and caused half of the blood in the victim's body to pour into her chest cavity. Under these circumstances, the jury's determination that Suarez was guilty of depraved indifference murder was rational as it was supported by record evidence.

As for defendant Trisha McPherson, I concur with the majority that the evidence was insufficient to justify a depraved indifference murder conviction. Unlike in Suarez, McPherson was not charged with both depraved indifference murder and intentional murder and the People did not assert at trial that she possessed an intent to kill. The only issue was whether there were objective circumstances evincing a depraved indifference to human life. The proof, even viewed in the People's favor, was that McPherson carried the knife to the scene and during an escalating argument with the victim, inflicted a single stab wound. McPherson then immediately called 911 for help and remained with the victim until she heard sirens indicating that assistance was on the way before departing, demonstrating her efforts to minimize the possibility that the wound she inflicted would prove to be fatal.

Accordingly, in People v Suarez, I would affirm defendant's conviction; in People v McPherson, I would modify by dismissing the depraved indifference murder conviction. In light of the majority's decision to remit McPherson for consideration of the proper remedy, it is unnecessary for me to address the proper corrective action that should be taken and I therefore express no view on the propriety of remittal.

In People v Suarez: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

[230] In People v McPherson: On defendant's appeal from the order of the Appellate Division affirming the judgment of conviction and sentence as to murder in the second degree, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. On defendant's appeal from the order of the Appellate Division affirming the order of Supreme Court denying defendant's CPL 440.10 motion, order affirmed.

[1] Certain enumerated aggravating factors elevate intentional murder in the second degree to murder in the first degree (Penal Law § 125.27 [1]).

[2] See e.g. Abraham Abramovsky and Jonathan I. Edelstein, Depraved Indifference Murder Prosecutions in New York: Time for Substantive and Procedural Clarification, 55 Syracuse L Rev 455 (2005); Paul Shechtman, Outside Counsel, The Meaning of Depraved-Indifference Murder: New Legislation?, NYLJ, Apr. 4, 2005, at 4, col 4; Brian F. Allen, A Step in the Right Direction: People v. Hafeez, Stopping the Expansion of Depraved Indifference Murder in New York State, 18 St John's J Legal Comment 875 (2004); Peter Dunne, Is There Life Left in Depraved Indifference Murder?, 2 NY Crim L Newsl [No. 4] 5 [NY St Bar Assn, Fall 2004]; see also Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of Mens Rea, 64 St John's L Rev 429 (1990).

[3] Thus, under the People's theory, a defendant who plainly intended to kill the victim, and who succeeded, may be prosecuted only for intentional murder. But an inept defendant, who commits precisely the same acts with the intent to kill, but who fails to kill the victim right away and instead flees the scene of the attempted intentional homicide, will — despite having engaged in identical conduct with an identical mental state — have committed depraved indifference murder when the victim later dies. We cannot agree with this proposition. It is the rare killer indeed who, after inflicting a mortal wound intended at a minimum to cause serious physical injury, lingers at the scene of the crime or summons aid. "The People's tautology, if accepted, would improperly convert every intentional homicide" that does not succeed in bringing about the victim's immediate death into depraved indifference murder (Gonzalez, 1 NY3d at 468).

[4] We note that the statute no longer refers to depraved "mind" murder. Continuing to describe the crime in those terms improperly detracts from the current statute's requirement of indifference.

[5] It was therefore misleading for the prosecutor in Suarez to request in summation that the jury "find [defendant] guilty of Intentional Murder, or at the very least, that he acted with such depraved indifference that he disregarded her human life" (emphasis added).

[6] Of course, a one-on-one dispute will not always reflect a manifest intent to kill or injure. Rather, we make clear only that whether the infliction of serious or fatal injury was intended or not, such a confrontation can almost never support a finding of depraved indifference. It is up to the jury to decide in a particular case whether the defendant acted intentionally, or recklessly, or negligently (or not at all). Indeed, in McPherson — a one-on-one confrontation — the evidence was certainly sufficient to support a finding of reckless manslaughter, although not of depraved indifference murder. Nor do we make any absolute pronouncement "that a person who stabs someone with a knife cannot act with `a depraved indifference to human life'" (concurring/dissenting op at 219).

[7] Moreover, the mere presence of third persons at the scene of a killing does not convert an intentional homicide directed at a particular victim into depraved indifference murder unless others are actually endangered. Thus, in Gonzalez, although the defendant, after shooting the victim, "waved the gun at the only eyewitness — the barber — warned him not to say anything and walked out the door" (1 NY3d at 466), the evidence was legally insufficient to establish depraved indifference murder despite the presence of the barber in the shop at the time of the shooting (see also People v Sanchez, 98 NY2d 373 [2002] [depraved indifference murder conviction upheld because "others were endangered" (Payne, 3 NY3d at 272)]).

[8] By contrast, in authorizing lesser punishment for the crime of manslaughter in the first degree, the Legislature specifically determined that the intentional infliction of serious injury resulting in death is not so blameworthy "as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another" (id. at 287-288 [internal quotation marks and citations omitted]).

[9] Nor could Suarez's claims that he was acting in self-defense or that he could not remember what happened when he stabbed his girlfriend support his conviction for depraved indifference murder. Depraved indifference murder entails depraved indifference, not a mere loss of memory or actions performed without conscious focus (see also Gonzalez, 1 NY3d at 469 ["In arguing that the jury might have concluded that defendant acted out of fear and anger, and therefore without intent, the People confuse recklessness with extreme emotional disturbance. A defendant who commits murder because of uncontrollable emotion may be entitled to raise an affirmative defense to murder, but the extreme emotional disturbance defense does not negate intent. The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intentional. Indeed, when there is a finding that the defendant acted under extreme emotional disturbance, the offense is reduced from intentional murder in the second degree to intentional — not reckless — manslaughter in the first degree" (internal quotation marks and citations omitted)]).

[1] Adherence to the Register/Sanchez analysis may have adverse consequences for the stability of previous convictions. Some federal court decisions indicate that the statute as interpreted according to Register and Sanchez raises constitutional problems that should result in the release of some defendants on federal collateral review (see Jones v Keane, 2002 US Dist LEXIS 27418 [SD NY, May 22, 2002, 02 Civ 1804 (CLB)], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [SD NY, Sept. 19, 2003, 02 Civ 10248 (CLB)], revd on other grounds 374 F3d 181 [2d Cir 2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]). Today's decision should alleviate those concerns.

[2] This view was expressed in the dissenting opinions of G.B. Smith, Ciparick and Rosenblatt, JJ. in Sanchez (98 NY2d 373, 401-402, 416 [2002]).

[1] There are two other categories of nonintentional murder in the second degree, including felony murder (see Penal Law § 125.25 [3], [4]).

[2] We also observed that the commentary to the Model Penal Code, which influenced our depraved indifference murder statute, was consistent with this view (see Sanchez, 98 NY2d at 384; Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 21-22 [1980]).

[3] Additionally, the rule announced by the majority in this case and Payne essentially creates a mandatory legal presumption that a person intends the ordinary consequences of his or her voluntary acts, which "reliev[es] the State of the burden of proof enunciated in Winship on the critical question of [the defendant's] state of mind" (Sandstrom v Montana, 442 US 510, 521 [1979]; see In re Winship, 397 US 358 [1970]).

[4] See Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 22 (1980) ("[i]t must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter").