In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect.  Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:

The basic moral issue regarding the insanity defense is whether it is just to hold responsible and punish a person who was extremely crazy at the time of the offense.4 Those who believe that the insanity defense should be abolished must claim either that no defendant is extremely crazy at the time of the offense or that it is morally proper to convict and punish such people. Neither claim is easy to justify.

In all societies some people at some times behave crazily—that is, the behavior at those times is recognizably, aberrantly irrational. A small number of these people behave extremely crazily on occasion, including those times when an offense is committed. A hypothetical defendant with a delusional belief that he is the object of a murderous plot, who kills one of the alleged plotters after hallucinating that he hears the plotter's foul threats, is crazy. Such cases are rare, but clearly exist; the influence of extreme craziness on some criminal behavior cannot be denied.

 For hundreds of years the common law has recognized the unfairness of holding some crazy persons responsible for their criminal behavior.5 The legal test for insanity, designed to identify the appropriate persons to be excused, has changed over the years. Whether the test seeks to excuse only those akin to wild beasts or also those who lack substantial capacity to conform their conduct to the requirements of law, the moral perception has remained constant: at least some crazy persons should be excused. Those who would abolish the defense must argue that no sound principles underlie the law's consistent retention of the defense. That most past discussions of the issue have failed clearly to identify such principles6 is hardly an argument that they do not exist. I maintain that such sound principles do exist; some persons whose craziness influences their criminal behavior cannot fairly be held responsible and thus do not deserve punishment.

To justify the moral necessity of the insanity defense, I must set forth some assumptions I make about our system of criminal justice. Conviction and punishment are justified only if the defendant deserves them. The basic precondition for desert in all contexts, legal and otherwise, is the actor's responsibility as a moral agent. Any condition or circumstance that sufficiently compromises responsibility must therefore negate desert; a just criminal law will incorporate such conditions and circumstances in its doctrines of excuse. A coherent, purely consequentialist theory of criminal justice, while conceivable, is so unattractive morally that few persons, including most critics of the insanity defense, adhere to such a position.7 Moreover, our present system clearly rests on a much different basis:8 our system of criminal justice accepts desert, whether viewed as a defining or limiting principle,9 as fundamental to guilt and punishment.

...

The insanity defense is rooted in moral principles of excuse that are accepted in both ordinary human interaction and criminal law. Our intuition is that minimal rationality (a cognitive capacity) and minimal self-control or lack of compulsion (a volitional capacity) are the essential preconditions for responsibility.10 Young children are not considered responsible for the harms they cause precisely because they lack these capacities.11 Similarly, adults who cause harm while terrifically distraught because of a personal tragedy, for instance, will typically be thought less responsible and culpable for the harm than if they had been normally rational and in control.12 Aristotle recognized these fundamental requirements for responsibility by noting that persons may be less blameworthy for actions committed under the influence of mistake (a cognitive problem) or compulsion (a so-called volitional problem).13

Criminal law defenses that focus on the moral attributes of the defendant are based on these same intuitions and principles. Even if the defendant's conduct fulfills the usual requirements for prima facie guilt—that is, act, mental state, causation, result—the defendant will be found not guilty, not culpable, if the acts committed were the products of cognitive (e.g., infancy) or volitional (e.g., duress) circumstances that were not under the defendant's control. These defenses are considered relevant at the time of guilt determination as well as at the time of sentencing. It would be indeed illogical in a criminal justice system based partly on desert to hold that a defendant with a valid claim of duress is culpable (because he or she intended to do the compelled act), but then to decide to release the defendant because he or she does not deserve punishment. To convict a person with a meritorious defense would offend our conception of the relationship between legal guilt and blameworthiness. A person acting under duress is not culpable, although it is unfortunate that a prohibited act has been committed.

In sum, the moral basis of the insanity defense is that there is no just punishment without desert and no desert without responsibility. Responsibility is, in turn, based on minimal cognitive and volitional competence. Thus, an actor who lacks such competence is not responsible, does not deserve punishment, and cannot justly be punished.

Nancy Carley, Edward H. Potter, Abraham Schwartz and Estelle Herman for appellant.

Frank D. O'Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.

Judges DYE, BURKE and FOSTER concur with Judge FROESSEL; Chief Judge DESMOND and Judge VAN VOORHIS dissent and vote to reverse and to dismiss the indictment upon the ground that by the clear weight of evidence this defendant is insane under the rule of section 1120 of the Penal Law in which connection we express our strong disapproval of the prosecutor's inexcusable ridicule of the court-appointed psychiatrists; Judge FULD dissents in an opinion.

70*70FROESSEL, J.

On July 4, 1960 the bodies of John Rescigno and Frederick Sess, aged 62 and about 77 respectively, were discovered in the "little house" they shared in Astoria, Queens County. In addition to other wounds, Sess had sustained multiple skull fractures. On Rescigno's body were about 16 wounds; his jugular vein had been severed. Defendant, Frederick Charles Wood, aged 50, was convicted of murder first degree (two counts) and sentenced to death.

Wood was taken into custody on July 5th. During the automobile trip to the station house, he told a detective that he had received the cut on his right thumb during a barroom altercation, but when asked the same question later at the police station, he replied that he had been cut by glass fragments while striking Rescigno with a bottle. He thereupon admitted having killed Sess and Rescigno on June 30, 1960, and gave a particularized account of how and why he did so. This statement, recorded in 71*71 shorthand, transcribed, and signed by defendant, was admitted in evidence at trial without objection.

Defendant made no attempt to controvert the evidence which overwhelmingly established that he killed Rescigno and Sess. His sole defense was insanity. Ordinarily, under these circumstances, we would say little more about the evidence relating to the commission of the crimes. Here, however, since it is indicative of Wood's state of mind on June 30th, we set forth in some detail his statement made to an Assistant District Attorney on July 5th.

Almost at the outset of the interrogation, Wood was asked if he had done something "wrong" in Astoria on the night of June 30th. He replied that he had, that he "knocked off those two guys", "did them in", "killed two men". Defendant then related that at about 3:00 P.M. on June 30th, while he was panhandling on Broadway, New York City, he saw John Rescigno, whom he had never met before, leaving a tavern. Wood had panhandled two dollars, but "was looking for more". He "figured" Rescigno was a "lush" and "might be good for a score". Rescigno purchased a bottle of wine. Defendant obtained an invitation from Rescigno to stay at the latter's house that night. He "figured" he "could make a score" because Rescigno "had been drinking like hell", and defendant "knew what the score was and he didn't".

During the subway ride to Astoria, Rescigno said he was a "pensioner", showed Wood his social security card, and "intimate[d] he has quite a bit of money", at which point defendant "developed an idea I would try to take [rob] him during the evening sometime". When they arrived at the house between 7:00 and 8:00 P.M., the "apartment" was dark, and Rescigno did not turn on the lights. At the time, defendant saw Sess in bed in a bedroom.

They drank some beer; Rescigno took a drink of muscatel "and he gets silly drunk", "mumbles unintelligibly", but Wood finally understood that he suggested they "go to bed together". Continuing: "* * * I don't like degenerates. I always had a distaste for them. * * * I knew right then he sealed his fate. I know I'm going to knock him off that night. Not only for his money but for the satisfaction of knocking off a degenerate". But he could not "knock him off right away 72*72 because [he had] to figure out the angles". Therefore Wood went "along with the gag", gave Rescigno "a mushy kiss", suggested they take it easy, have some more drinks, and told him he was going to stay all night.

Defendant went to the kitchen to find a weapon. Because it was dark and he did not want to turn on the lights, the only weapon he could find was an empty beer bottle. He took the bottle and a package of cigarettes to Rescigno's bedroom, offered Rescigno a cigarette because "just as soon as he reached for the cigarette I had the intention of knocking his brains out, which I did". After rendering the victim unconscious, Wood severed his jugular vein with a piece of jagged glass from the broken bottle. Blood was spurting out, but Wood stood to one side in order to keep from soiling his clothes.

After taking two or three dollars from Rescigno's clothes, Wood remembered a man sleeping in the other room, whom he "figured" he "might as well finish * * * off just on the grounds he might be a degenerate also". Defendant returned to the kitchen "figuring out the best weapon to use on this guy". He found a heavy coal shovel, lifted it "to see if it had the right amount of heft", beat Sess on the head with the shovel, then "flailed him unmercifully" with a chair. Wood, in his own language, "was satisfied in my mind he couldn't recover".

Thereupon defendant went to the kitchen, where he washed, and combed his hair — "I could pass for a Sunday school teacher any place on the face of the earth". He then returned to the bedroom, searched Sess' pockets looking for money but "unfortunately" found none. Defendant did not wish to remain long because he felt that Sess' "loud [dying] noise" and the barking of a dog "would tip off the neighbors that something was wrong" (emphasis supplied).

Before departing, however, Wood wrote two notes which were found under a cigarette holder on a table in the kitchen. One reads: "And God bless the Parole Board. They're real intelligent people"; the other states: "Now, aren't these two murders a dirty shame. I'm so — o sorry." Wood engaged in this "little caper" to "dress the two knock offs up a bit", and because he has "a flair for the dramatics at times".

The first witness for the defense was the Assistant District Attorney, who had testified for the People regarding Wood's 73*73 statement. He now related what Wood told him during the time the statement was being transcribed. Defendant spoke, among other things, about three murders he had committed in the past. He subsequently described them orally and in writing to the psychiatrists who examined him at Bellevue Hospital prior to trial, and who testified with reference thereto. In 1925 when he was about 15 years old, and because "he couldn't have her", Wood injected arsenic into some cream puffs which he sent to a girl, Cynthia Longo, who died as a result thereof. Thereafter, when he was about 21 years old, he bludgeoned 140 times and stabbed to death a woman he encountered one night. Having contracted syphilis and gonorrhea from another woman, thus becoming angry at women generally, he picked this stranger to kill.

In 1942 defendant murdered John Loman because the latter made a disparaging remark about Wood's girl friend. Wood caused Loman to become very drunk, attempted to asphyxiate him with gas, and when this failed to achieve the desired result, he bashed in Loman's head. With the help of his girl friend, Wood hid the body, planning to dismember it later and dispose of the parts. When arrested, he denied his guilt, and the authorities had a "`hell of a time'" attempting to prove premeditation. Though convicted of murder second degree, defendant said he was "`actually guilty of Murder in the First Degree'". He was sentenced to from 20 years to life, only to be paroled less than a month before the present homicides.

Defendant further told the Assistant District Attorney that after the jury's verdict in the Loman case, but prior to sentence, he slashed his wrists in a suicide "attempt", because he did not want to spend a lot of time in prison, and felt he could obtain better treatment in a hospital. He was sent to Dannemora State Hospital, where he enjoyed himself and was allowed to play cards, but when certain privileges were withdrawn, he became dissatisfied and felt it was time to tell the psychiatrist he was not insane. Defendant boasted that "Anytime I wanted to, I knew I could get out of there because I wasn't insane"; he "could fool anybody", he was "fooling the psychiatrist all along" and "could do it anytime". He succeeded.

After the hospital released him, Wood was transferred to prison, where he determined to and did become a model prisoner 74*74 as he sorely wanted to gain freedom. Paroled and assigned to Albany district, Wood obtained employment in a laundry. He was not happy there, however, knew that eventually he would begin drinking again, in which event he would lose his job and be returned to prison, and, therefore, decided to lose himself in New York City.

Although the four defense psychiatrists testified in answer to hypothetical questions that on June 30th defendant was laboring under such defect of reason as to know neither the nature nor the quality of his acts nor that they were wrong, their conclusions were largely weakened by lengthy and vigorous cross-examinations. By contrast, the People's two psychiatric experts, who testified that Wood was legally sane, were together asked but six questions on cross-examination, to two of which objections were sustained.

When the defense psychiatrists had testified, defendant, against the advice of his attorneys, took the stand, after having been duly cautioned, and stated that, although he was "very sick" while at Bellevue for examination, "at the time I committed the crime, the two murders, I knew the nature and I knew the quality of my act. I was sane then, perfectly sane, and I am perfectly sane now". He made this statement, he testified, because he had "been living on borrowed time" since 1926, and furthermore he did not "relish the prospect of going back to prison for the rest of my life or to any insane asylum". He was not cross-examined.

Defendant now merely urges that the People failed to establish beyond a reasonable doubt that he knew the acts were wrong. We now consider this contention. In substance, the expert testimony for the defense was that Wood had schizophrenic reaction, an illness from which he had suffered since about 1926, though "not probably an organic illness". In this connection, the defense psychiatrists stated that although defendant's memory was good, his sensorium clear, he was unaware of the full significance and consequences of his acts, though he knew their physical nature and quality, and that his judgment was impaired, his reasoning defective. Further, defendant told the psychiatrists at Bellevue that he considered himself to be "God's emissary" to take and to save life, and that he was presently charged with the duty of seeking out and killing those 75*75 whom he believed were degenerates. Their cross-examination established beyond peradventure that Wood knew it was against the law to kill a human being.

One of the People's psychiatrists, Dr. Winkler, who first examined Wood in July, 1960 at Kings County Hospital and interviewed him in April, 1961, testified that defendant had a "highly pathological personality * * * a severe personality disorder", which manifested itself early in his life, but had not "deteriorated" since. Dr. Winkler noted that though defendant had been subjected to extensive hospital observation during the course of his lifetime, the diagnosis of schizophrenic reaction was made for the first time at Bellevue in the Fall of 1960. The witness further stated that Wood cannot be called "mentally ill or psychotic", and that his moral judgment was not distorted by illness or disease, but had "never developed". Another "peculiarity", Dr. Winkler testified, was defendant's "inability to control his impulses", a pathological sign but not "legal insanity". During three weeks' observation at the hospital in July, 1960, Wood had not shown any evidence of a psychotic condition.

Regarding the "God's emissary" delusion, Dr. Winkler entertained "definite doubts" that this was "a firm, fixed belief" and gave his reasons therefor. It is of some significance that Wood made this assertion for the first time in a psychiatric examination during the latter part of January or in February, 1961, seven months after the homicides with which he was charged, and following the administration of sodium amytal, a drug which, according to Dr. Winkler, might induce delusions. The Kings County Hospital report of July, 1960 does not contain a reference to this delusion. Most significant is the fact that Wood did not mention the delusion in his July 5th statement, but admitted he did something "wrong" on June 30th, namely, killed two men. Indeed, he stated then that he "always had a distaste" for degenerates, and had killed Rescigno partly "for the satisfaction of" killing a degenerate, and partly to steal money. It may also be noted that the "God's emissary" delusion and degeneracy had nothing to do with his previous three murders.

Moreover, he did not just kill Rescigno when he ascertained the latter was a degenerate, but first had to "figure out the 76*76 angles", made sure his intended victim was drunk, and then distracted him by offering a cigarette. After the killings, defendant did not tarry long, being apprehensive that Sess' dying noises and the barking of a dog would alert neighbors to the fact "that something was wrong" (emphasis supplied). The People's psychiatrist, Dr. D'Angelo, supported Dr. Winkler in his view that defendant knew the nature and quality of his acts and that they were wrong.

In People v. Schmidt (216 N.Y. 324, 339-340) Judge CARDOZO, discussing the meaning of the word "wrong" as used in section 1120 of the Penal Law, held that there are certain circumstances in which the word "ought not to be limited to legal wrong". Continuing: "Knowledge that an act is forbidden by law will in most cases permit the inference of knowledge that, according to the accepted standards of mankind, it is also condemned as an offense against good morals. Obedience to the law is itself a moral duty. If, however, there is an insane delusion that God has appeared to the defendant and ordained the commission of a crime, we think it cannot be said of the offender that he knows the act to be wrong. It is not enough, to relieve from criminal liability, that the prisoner is morally depraved [citation]. It is not enough that he has views of right and wrong at variance with those that find expression in the law. The variance must have its origin in some disease of the mind (People v. Carlin, 194 N.Y. 448, 455). * * * Cases will doubtless arise where criminals will take shelter behind a professed belief that their crime was ordained by God * * *. We can safely leave such fabrications to the common sense of juries." (See, also, People v. Ferraro, 161 N.Y. 365, 376-377.)

As defendant concedes in his brief, the Trial Judge correctly charged the jury on the meaning of the word "wrong" when he stated: "When it speaks of the defendant's ignorance of his act as wrong, the law does not mean to permit the individual to be his own judge of what is right or wrong. It says that the individual has sufficient knowledge that an act was wrong if its perpetrator knows that his act is against the law and against the commonly accepted standards of morality and conduct which prevail in the community of mankind. He must know that his act was contrary to the laws of God and man." The Trial Judge then stated an example which is so strikingly parallel to defendant's claim that the jury could not have failed to see the point.

77*77Of course the question as to whether Wood knew it was wrong to kill when he killed Sess and Rescigno was a question of fact for the jury, and, as we stated in People v. Horton (308 N.Y. 1, 12), "* * * if the record in its entirety presents a fair conflict in the evidence, or if conflicting inferences can properly be drawn from it, `* * * the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption.' (People v. Taylor, 138 N.Y. 398, 405.)" We see nothing in the record to take the instant case out of this general rule. Of course the fact that a defendant was suffering from some type of mental disorder (People v. Browne, 2 N Y 2d 842), or that he had a psychopathic personality (People v. Papa, 297 N.Y. 974), or that his "moral perceptions were of a low order" (People v. Farmer, 194 N.Y. 251, 265), or that he had an irresistible impulse to commit the crime (People v. Liss, 9 N Y 2d 999), does not immunize him from criminal responsibility under section 1120 of the Penal Law.

There was abundant evidence here upon which the jury reasonably could have rejected entirely the defense that Wood considered himself to be "God's emissary". Moreover, the jury, having been properly instructed, could reasonably have found that defendant was operating under a standard of morality he had set up for himself and which applied only to him. The law does not excuse for such moral depravity or "views of right and wrong at variance with those that find expression in the law" (People v. Schmidt, 216 N.Y. 324, 340, supra). While the very nature and circumstances of the present homicides, as well as the expert testimony on both sides, make clear that Wood was not well balanced mentally, the weight of evidence clearly supports the determination, implicit in the verdict, that he knew not only the nature and quality of his acts, but also that they were wrong, as that term was correctly defined and exemplified by the trial court. Under these circumstances we have no right to interfere with the verdict (People v. Horton, 308 N.Y. 1, 12, supra).

Defendant also contends that he was denied a fair trial on the issue of insanity by reason of various rulings of the court and certain conduct and comment of the prosecutor. One of these contentions relates to the remarks of the prosecutor in his 78*78 summation concerning two of the defense psychiatrists. Specifically, he referred to them as "the two happiness boys", as "those two idiots — I am sorry, those two psychiatrists"; he "charged" them with being "ignorant, stupid, incompetent", and scoffed at their titles of "Diplomate". These remarks were clearly improper, and cannot be justified or excused by anything that transpired earlier in the trial. Although we have been disturbed by this aspect of the case, we have concluded that these remarks, now complained of, did not deprive defendant of a fair trial. Only the first of these comments was objected to at the trial, and it was stricken. Counsel did not object to the summation upon the ground that it or any part thereof was inflammatory, nor make a motion for a mistrial. While objection need not be voiced in a capital case to preserve a question for our review, we are of the opinion, on the present record, that the prosecutor's remarks had no influence upon the jury.

We have examined the other contentions of the defendant and find no merit to them.

The judgment appealed from should be affirmed.

FULD, J. (dissenting).

I agree with the court that, upon the record before us, the People have established that the defendant was legally sane under the law of this State as it now stands (see, e.g., People v. Reade, 1 N Y 2d 459; People v. Horton, 308 N.Y. 1), but I cannot refrain from observing that the result demonstrates the unreality, if not the invalidity, of our present standards for determining criminal responsibility. This case serves to confirm the view, frequently expressed over the years, that section 1120 of the Penal Law should be amended and the "right-wrong" test which now controls our decisions changed.

However, since the issue of the defendant's insanity under section 1120 seems to me so extremely close, I do not believe that we may disregard the prosecutor's concededly inexcusable and improper remarks, relating to the defense psychiatrists, as technical error under section 542 of the Code of Criminal Procedure.

Judgment of conviction affirmed.

Eugene G. Lamb and Nathan P. Zablow for appellant.

William Cahn, District Attorney (Henry P. DeVine of counsel), for respondent.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL and GIBSON concur.

132*132JASEN, J.

This appeal involves several issues raised by an insanity defense to the charge of murder in the first degree.

133*133On March 20, 1965, the defendant fed butterscotch pudding heavily laced with sleeping pills to her husband. When he had fallen asleep, she bludgeoned him to death with a hammer and stabbed him repeatedly with a kitchen knife. Following the crime, she ingested a quantity of sleeping pills, and called her cousin to say that she had killed her husband and was about to take more pills. The police officers who responded to the cousin's call prevented the defendant from consuming any more pills and received several admissions from the defendant. She stated that she had killed her husband because of an extramarital affair and to provide her daughter with the proceeds of an insurance policy. The defendant was then removed to a hospital for treatment of a possible drug overdose where she again admitted that she had killed her husband because of her romantic involvement with a psychiatrist.

Indicted for murder in the first degree on March 23, 1965, defendant pleaded not guilty by reason of insanity. At her trial the admissions, which had earlier been ruled voluntary in a pretrial hearing (People v. Huntley, 15 N Y 2d 72), were received in evidence against her. On March 8, 1966, the jury found defendant guilty of murder in the first degree, and she was subsequently sentenced to imprisonment for life. The Appellate Division unanimously affirmed, without opinion.

Initially, defendant argues that the court failed to adequately charge the jury under the then-recently amended section 1120 of the former Penal Law dealing with insanity.

Prior to the amendment of section 1120 of the former Penal Law in 1965, the standard of criminal responsibility in this State was the M'Naghten Rule, which provided that a criminal would not be excused from criminal liability as an insane person unless "at the time of committing the alleged criminal act, he was laboring under such a defect of reason, as either (1) Not to know the nature and quality of the act he was doing; or (2) Not to know that the act was wrong." (L. 1881, ch. 676, § 21, repealed, eff. July 1, 1965, L. 1965, ch. 593, § 1.) Although commentators and textwriters for a number of years criticized this standard as being out of touch with the realities of modern thought on mental illness (see, e.g., Glueck, Mental Disorder and the Criminal Law, 264-266 [1925], comment, 26 Albany L. Rev. 305, 306-308), the Legislature did not see fit to cause the statute 134*134 to be amended for many years. (See People v. Taylor, 138 N.Y. 398, 407-408; People v. Horton, 308 N.Y. 1, at p. 13.) The Governor became aware of the shortcomings of M'Naghten as a result of a clemency hearing following our affirmance in People v. Horton (supra) and appointed a commission to recommend possible improvements which could be made to New York's criminal responsibility statute. (See Gutman, People v. Horton: Is the M'Naghten Rule Adequate?, 7 N. Y. L. F. 320.)

This commission reported in 1958 (Governor's Conference on the Defense of Insanity, Interim Report of the Study Committee [hereinafter referred to as the Foster Report]) that the then-current statute containing the M'Naghten Rule should be amended to overcome three major objections. First, it was reported that a difficulty arose in the use of the word "know" in M'Naghten because a defendant might be able to verbalize that some act is wrong and yet have no depth of understanding as to what this means. Another defect with M'Naghten was said to be its emphasis on the actor's cognitive capacity. The commission noted that the M'Naghten test disregarded the notion that an individual might have minimal awareness of some fact and at the same time lack the ability to control his conduct in light of this. Finally, the commission stated that M'Naghten taken on its face called for a total impairment of ability to know, whereas in even the most extreme psychoses it is impossible to say that the actor was totally bereft of knowledge or control.

The Foster Report suggested an adaptation of section 4.01 of the Model Penal Code (see A.L.I., Tentative Draft No. 4 [1955], p. 27, Comments at pp. 156-159) as a replacement for the M'Naghten Rule. In 1963, the Temporary Commission on Revision of the Penal Law and Criminal Code issued an interim report recommending a new insanity statute. This interim report embraced the conclusions and recommendations of the Foster Report. However, this proposal met with strong opposition from various groups, particularly the District Attorneys, and it was not until 1965 that section 1120 of the former Penal Law was amended to provide: "A person is not criminally responsible for conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to know or appreciate either:

"(a) The nature and consequence of such conduct; or

135*135"(b) That such conduct was wrong."

As noted in the Practice Commentary to section 30.05 of the revised Penal Law (successor to former Penal Law, § 1120, as amd.) in Volume 39 (pt. 1) of McKinney's Consolidated Laws of New York, "The new or changed formula, while more limited than the original proposal, expands the old McNaghton Rule. Lack of `substantial capacity' is a more realistic measure than the total impairment required for exculpation under McNaghton. Further, by relating the test to the defendant's mental `capacity,' the standard is clarified, for, indeed, it is the defendant's power or capacity to know or appreciate about which the psychiatric witness actually testifies.

"A new dimension is accorded the word `know' by following it with `or appreciate.' This is designed to permit the defendant possessed of mere surface knowledge or cognition to be excused, and to require that he have some understanding of the legal and moral import of the conduct involved if he is to be held criminally responsible."

In this case, the trial court instructed the jury that the law would absolve the defendant only if she suffered a defect of reason as the result of a mental disease or defect which prevented her from having the substantial capacity to know or appreciate either the nature and consequences of the charged conduct or that such conduct was wrong. The court added that the People must prove both elements — i.e., that at the time of the killing the defendant knew she was hurting the decedent and that she knew this act was wrong. The court explained that mere surface knowledge is not sufficient to meet this requirement, and described surface knowledge as the type of knowledge children have of propositions which they can state, but cannot understand. Such knowledge, the court charged, has no depth and is divorced from comprehension. The Judge added, that the law intends to impose criminal responsibility upon the defendant only when and if it is proven beyond a reasonble doubt that she has some understanding, as opposed to surface understanding of the legal and moral import of the conduct involved.

In regard to the requirement that the defendant must know that the act was wrong, the court instructed the jury that to be held responsible the defendant must have realized that the act 136*136 was against the law and against the commonly accepted standards of morality. A mere opinion contrary to the general morality, or a substantial propensity to commit crimes, the Judge noted, is not sufficient to indicate the defendant did not understand the act was wrong. As an example, the court explained that a man who kills because he is under the impression that he is a messenger of God sent to kill all the atheists, may understand the nature and consequences of his act, but does not know or appreciate that such conduct is wrong.

It is argued by the defendant that the use of the term "defect of reason" in the instruction misled the jury into believing that they were not permitted to acquit the defendant unless they found she was suffering from a mental defect. We do not agree. The use of the term "defect of reason" by the court, when read in the context of the entire charge, is clearly not misleading. In marshaling defendant's psychiatric evidence, the Judge in his charge carefully pointed to testimony that she "was not suffering from any mental defect, but a mental disease". Moreover, as previously mentioned, the court specifically instructed the jury that defendant would be relieved of criminal responsibility if they found she was suffering from a defect of reason as a result of mental defect or disease which prevented her from having the substantial capacity to know or appreciate either the nature and consequences of the charged conduct or that such conduct was wrong. From this, it is apparent that the jury would not have been misled as the defendant suggests.

Defendant also challenges the court's instruction in regard to "surface knowledge". Reading the charge with regard to "surface knowledge" indicates that it is substantially the same as the discussion of the subject in the Foster Report and the 1963 Interim Report of the Temporary Commission on Revision of the Penal Law and Criminal Code.

Equally specious is the objection to the charge relating to "substantial capacity to know or appreciate", as the terms are used in section 1120 of the former Penal Law.

As mentioned above, the jury was charged that the defendant should not be found guilty if she lacked the substantial capacity to know or appreciate either the nature and consequences of her act or that it was wrong. Explaining the meaning of "surface knowledge", as stated before, the court went on to say that 137*137defendant could be held criminally responsible only if it were proven beyond a reasonable doubt that she had "some understanding as opposed to surface understanding" of the legal and moral import of the conduct involved. We conclude that the trial court adequately charged the degree of understanding required to comply with the apparent intention of the Legislature in changing the M'Naghten Rule.

In reference to her oral and written statements made to the police, defendant alleges error because (1) she was not advised of her right to counsel before making the statements, and (2) the statements were involuntary since she was under the influence of drugs (sleeping pills) and was suffering from a mental disease at the time.

There is no support in law for the first claim inasmuch as the lack of such advice does not render confessions inadmissible in trials begun before the date of the decision in Miranda v. Arizona (384 U. S. 436). (See People v. McQueen, 18 N Y 2d 337.) With respect to defendant's argument that her alleged drug intoxication made the statements involuntary, we have held that self-induced intoxication does not ipso facto render a confession invalid (People v. Schompert, 19 N Y 2d 300). It is only when the defendant's will has been overborne by interrogation (Townsend v. Sain, 372 U. S. 293, 307) or the state of intoxication has risen to the degree of mania, or the statements are shown by reference to other evidence to be unreliable, that a confession is rendered inadmissible (People v. Schompert, supra, at p. 305). The same criteria are applicable to admissions made by a defendant suffering from a mental disease. (Blackburn v. Alabama, 361 U. S. 199; People v. Howard, 27 A D 2d 796.)

The evidence adduced at the pretrial confession hearing reveals that "Mrs. Adams was not interrogated" but had "talked freely with the witnesses." While there is testimony that the defendant appeared drowsy and that she was taken to a hospital for treatment of a drug overdose, it appears that the defendant did "know what she was doing when she gave statements" to the police. Her comment that she would deny her admissions in court and her concern about receiving the death penalty clearly indicate that she was well aware of the import of her statements. Moreover, the reliability of the admissions is 138*138 further indicated when the defendant's description of the crime is compared with the physical evidence at the scene.

The trial court found that the defendant, at the time she made the statements, was not under the influence of drugs so as to impair her ability and power to resist interrogation. The record clearly supports this conclusion and, moreover, indicates that the admissions were not the result of mania or police suggestions.

Defendant also contends that prejudicial error was committed because the Trial Judge refused to instruct the jury that if they found defendant not guilty by reason of insanity, she would be turned over to the Commissioner of Mental Health for further processing in accordance with the laws of this State.

There is conflict amongst the courts throughout the country on this issue. In a few jurisdictions it has been held that the instruction is proper and should be given. (Lyles v. United States, 254 F.2d 725; Kuk v. State, 80 Nev. 291; State v. Shoffner, 31 Wis. 2d 412.) In approving the charge in question, the Supreme Court of Nevada noted, "The purpose of the instruction is to inform the jurors that if they find the defendant insane, and acquit, he will not walk out a free man, but will be confined for medical treatment." (Kuk v. State, supra, at p. 300.) However, in a majority of the jurisdictions, the courts have held that such an instruction should not be given. (See Pope v. United States, 298 F.2d 507; Campbell v. State, 216 Ark. 878; State v. Park, 159 Me. 328; State v. Garrett, 391 S. W. 2d 235 [Mo.]; State v. Bracy, 215 N. C. 248; State v. Daley, 54 Ore. 514; State v. Hood, 123 Vt. 273.) Two basic reasons are given for the majority position: first, it is considered that to inform the jury about posttrial disposition of the defendant might confuse the issue or issues to be decided, thereby drawing the attention of the jury away from their chief function of judging the facts. (Pope v. United States, supra; State v. Park, supra.) Another reason given is that such an instruction might tend to influence the jury to find the existence of mental irresponsibility by deviating from the strict confines of the evidence on mental disorders. In fact, it has been said that such an instruction actually amounts to an invitation for the jury to reach a compromise verdict and find the defendant mentally 139*139 irresponsible because he will be confined anyway. (State v. Garrett, supra.)

Aside from People v. Nagle (26 N Y 2d 707), it appears that the only other instance in which this court has dealt with the question was in People v. Newman (1 N Y 2d 875), where the trial court declined to give the requested instruction and we affirmed the conviction without opinion. It was, and is, our view that it would be improper for the court to give the instruction requested by the defendant. Consideration of punishment or disposition of the defendant is beyond the province of the jury. While it might be argued that the jury presently tends to consider possible punishment even though it is beyond their province, we conclude that to permit the instruction requested would only tend to exacerbate this problem. Such instruction might, as some of the majority jurisdictions have noted, prompt a jury to find insanity where the evidence might not otherwise have warranted such a finding.

The remaining contentions raised by the defendant have been fully considered by us and found to be without merit.

The order and judgment of conviction should be affirmed.

Judgment affirmed.

Ralph Popkin for defendant. Robert T. Johnson, District Attorney of Bronx County (Bryanne Hamill of counsel), for plaintiff.

330*330GERALD SHEINDLIN, J.

The defendant was indicted for sodomy in the second degree and other related crimes. During the nonjury trial before this court, the defense interposed the defense of not responsible by reason of mental disease or defect. This written decision supplements the oral decision and verdict rendered after trial.

FINDINGS OF FACT

Between August 1, 1992 and September 9, 1992, the defendant solicited two 12-year-old boys in an arcade in Coney Island and offered them $6 for oral sex. Thereafter, the defendant again sought out the two boys and offered each of them $10 if each would accompany him to his apartment in Bronx County for the purpose of engaging in oral sex. The boys agreed and the three traveled by train to the Bronx. The defendant engaged in oral sex with each of the boys. Pursuant to a police investigation, the defendant was identified in a lineup by each of the complainants, and subsequently arrested.

At trial, the defense proffered the testimony of Dr. Stephen Teich, an expert in forensic psychiatry, to support the defense of not responsible by reason of mental disease or defect. Dr. Teich testified that he interviewed the defendant three times and reviewed the defendant's previous medical reports, including the report of Dr. Robert Berger, the prosecution's expert witness.

Dr. Teich diagnosed the defendant as suffering from a depressive disorder NOS (Not Otherwise Specified), posttraumatic stress disorder, pedophilia and a personality disorder which contained aspects of antisocial personality and borderline personality. Dr. Teich classified the depression and posttraumatic stress disorder as mental diseases. He described the defendant's 46-year history of same sex pedophilia as merely a symptom of the noted underlying diseases. He further noted that the DSM-IV classified pedophilia as a mental disorder and not a mental disease. Although the suffered depression and posttraumatic stress disorder were not of psychotic proportions, Dr. Teich believed that the depressive disorder could rise to the level of a psychosis. Most significantly, however, Dr. Teich did not find that the defendant's depression to be of psychotic proportions at the time of the incident.

Dr. Teich believed that the defendant, at five years of age, 331*331 had been sexually traumatized by an uncle. This incident was revealed to the defendant some 40 years later in a nonspecific dream which was now being interpreted by Dr. Teich. According to Dr. Teich, this interpretation was supported by the defendant's conduct as a baby when he repeatedly placed objects into his mouth and thereafter as a young man when he pursued prepubescent boys for the purpose of engaging in oral sex. Dr. Teich believed that the defendant was avoiding the larger adult penis and pubic hair that was reminiscent of his early trauma. Each sodomy of a young boy, Dr. Teich opined, is a result of the mental disease of depression which thereafter triggers the mental disease of posttraumatic stress syndrome. Dr. Teich was unaware of any studies discussing pedophilia as a symptom of the mental diseases of depression and posttraumatic stress disorder.

Dr. Teich conceded that the defendant knew and appreciated the nature of his conduct and that he knew it was against the law. However, he stated that the defendant possessed only a superficial knowledge that his conduct was wrong and had a diluted appreciation of its wrongfulness. Dr. Teich defined "appreciation" as a full emotional understanding that is greater than cognitive knowledge. Dr. Teich advanced the opinion that the defendant's inability to "appreciate" was a product of mental illness, although not pedophilia. According to Dr. Teich, the defendant periodically loses cognitive functioning, thereby becoming unable to appreciate the consequences of his conduct and that it is wrong. Dr. Teich concluded that at the time of the incidents in question the defendant suffered from a combination of mental diseases which caused him to lack substantial capacity to appreciate the consequences of his conduct or that it was wrong.

The defense also introduced into evidence a massive number of medical records dating back to 1949 concerning the prior psychiatric examinations of the defendant. However, no other doctor in any hospital or jail facility offered the same analysis and diagnosis as Dr. Teich. In addition, the defense presented a 1992 study of pedophiles in support of Dr. Teich's diagnosis of posttraumatic stress syndrome resulting in same sex pedophilia.^[1]

On the prosecution's rebuttal case, Dr. Robert Berger testified as an expert in forensic psychiatry. He twice met with the 332*332 defendant and reviewed all the medical records, including the reports of Dr. Teich. Dr. Berger noted that a mental disease is one which affects cognitive functions, behavior and emotions, which disease can improve or deteriorate. A mental defect, however, is a major psychiatric disturbance, primarily organic in nature, which cannot improve. Dr. Berger noted that he does not rely on nomenclature but instead focuses on the symptoms observed to determine whether the defendant's mental capacity is legally impaired. It was noted that nonpsychotic diseases and defects could exacerbate and rise to the level of a psychosis and thereupon be the basis of an opinion of lack of legal responsibility. Dr. Berger diagnosed the defendant as suffering from pedophilia and character and personality disorders with antisocial, borderline and narcissistic elements. Dr. Berger opined that pedophilia was not a mental disease or defect because it does not impair one's ability to reason or perceive reality. Further, he noted that pedophilia is not classified as a mental defect, as it is not considered an organic or a major psychiatric disturbance.

Dr. Berger offered the opinion that the defendant did "know or appreciate the nature and consequences of his conduct" and that it was wrong. Dr. Berger defined "appreciate" as a deeper or more complex understanding than knowing. He explained that the defendant both knows and deeply understands that his conduct causes an effect. As an example, Dr. Berger pointed to the medical records and his examination which noted that the defendant recognizes that a potential pattern of harm for future generations may be created if those he abused eventually abuse others. Additionally, the said evidence also illustrates that the defendant has an awareness which allows him to make choices and exercise judgments concerning his behavior. The medical evidence and statements of the defendant show that he chooses boys of 11 years of age or older because he believes that boys are less likely to notify the police than girls. Further, the evidence notes his awareness that the criminal offenses are of a lesser degree if he chooses children over the age of 11. The defendant knows that what he does is illegal but he chooses to ignore the law. Dr. Berger concluded that the medical records and his examination clearly demonstrates the defendant's understanding of the consequences and wrongfulness of his conduct.

During the trial, evidence was also presented that the defendant was aware that he had previously been convicted of 333*333 numerous sexual offenses against children and that he had been sentenced to various terms of imprisonment for these convictions.

CONCLUSIONS OF LAW

This court finds that the People have proven the elements of two counts of sodomy in the second degree beyond a reasonable doubt. The court must thereafter consider the offered defense of not responsible by reason of mental disease or defect. Penal Law § 40.15 provides that

"In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:

"1. The nature and consequences of such conduct; or

"2. That such conduct was wrong."

The defendant must prove the defense by a preponderance of the evidence. (Penal Law § 25.00.)^[2] The fact finder has the discretion to accept or reject the opinion of any expert and must determine whether the defendant is legally sane. (See, People v Wood, 12 N.Y.2d 69, 76 [1962]; People v Robertson, 123 AD2d 795, 796 [2d Dept 1986].)

Penal Law § 40.15 involves a cognitive rather than a volitional test to determine criminal responsibility.^[3] The defendant must prove that at the time of the sodomies (1) he suffered from a mental disease or defect and (2) that the mental disease or defect caused him to lack substantial capacity to know or appreciate the nature and consequences of his 334*334 conduct or that it was wrong.^[4] The defendant need not establish the lack of both knowledge and appreciation; the lack of either may suffice. Whether the defendant proves either lack of knowledge or lack of appreciation, however, he must prove that it relates to both the nature and consequences of the conduct. "Know or appreciate" is in the disjunctive while "nature and consequences" is in the conjunctive. (Emphasis added.) Therefore, the defendant must demonstrate either his lack of substantial capacity to know the nature and consequences of his conduct or to appreciate the nature and consequences of his conduct.

To know something is to state it without necessarily understanding it, without depth and divorced from comprehension; knowledge plus appreciation is verbalization combined with deeper comprehension. (See, Interim Report, op. cit., at 18, 20.) As explained in the pattern jury instructions, "`know or appreciate'" is "to mean knowing coupled with intellectual understanding." (1 CJI[NY] 40.15, at 965R.) Addition of the phrase "`or appreciate'" following "`know'" was "designed to permit the defendant possessed of mere surface knowledge or cognition to be excused, and to require that he have same understanding of the legal and moral import of the conduct involved if he is to be held criminally responsible." (See, Denzer and McQuillan, Practice Commentary, op. cit., at 49; see also, People v Adams, 26 N.Y.2d 129, 135 [1970] [criminal responsibility only intended to be imposed on a defendant who has some understanding greater than the surface knowledge children have of propositions which they can state, but cannot understand].) "Nature" is defined in the pattern jury instructions as "the physical nature of the conduct" while "`consequences'" is defined as "the potential for harm of the conduct." (1 CJI[NY] 40.15, at 965S.)

Dr. Teich diagnosed two of the defendant's illnesses as mental diseases, namely the depression and posttraumatic stress disorders, but defined pedophilia as a mental disorder. In both his testimony and report, Dr. Teich was extremely cautious in rendering his opinion. He suggested, without explanation or analysis, that these mental diseases and disorders 335*335 caused the requisite lack of mental capacity. However, his opinion omitted an explanation of how any of these diseases or disorders caused the defendant's lack of mental capacity.

Dr. Teich failed to note that the defendant lacked substantial capacity to know both the nature and consequences of his conduct. He testified that the defendant both knew and appreciated that he was engaging in oral sex. Dr. Teich noted that even when the defendant is depressed, he knows that he is engaging in oral sex and understands the physical nature of his actions. Although Dr. Teich found that the defendant lacked substantial capacity to appreciate the consequences of his behavior, Dr. Teich failed to conclude that the defendant lacked substantial capacity to appreciate the nature of his conduct.

Dr. Teich was unable to cite any studies or authorities to support his diagnosis or conclusions. In fact, no other doctor whose reports were introduced into evidence ever rendered the same diagnosis as Dr. Teich. The defense attempted to explain this omission by noting that the doctors who previously examined the defendant could not have been aware of a diagnosis of posttraumatic stress disorder because the syndrome was not widely known until after the Vietnam War. However, the 1992 study introduced in evidence by the defense in support of Dr. Teich's conclusion actually undercuts their position. This study of pedophiles noted that many of the patients had suffered sexual abuse as children. However, the authors neither mentioned nor considered a diagnosis of posttraumatic stress disorder.^[5] This study tends to significantly dilute the defense's argument. However, it does tend to support the diagnosis and conclusion of Dr. Berger who rejected the diagnosis of depression and posttraumatic stress disorder. He found that the defendant suffered from same sex pedophilia and that this form of pedophilia caused the defendant to sodomize young boys. However, his pedophilia did not cause him to lack the requisite legal mental capacity. The defendant both knew and appreciated the nature and consequences of his conduct. He knew he was engaging in oral sex and understood that his illegal conduct could create future pedophiles. The defendant admitted remorse for being the origin of generations 336*336 of future pedophiles. He knew and understood that his conduct was illegal. However, he actively chose to disregard the law.^[6]

Even if the court chose to accept Dr. Teich's testimony in its entirety, without the persuasive contrasting testimony of Dr. Berger, the defendant has nonetheless failed to establish the offered defense. Dr. Teich testified that the defendant knew "the nature and consequences of his conduct" but that he lacked "substantial capacity to appreciate" only the consequences of his conduct. However, the language of the statute is in the conjunctive. Dr. Teich's testimony, therefore, fails to establish both prongs of the statutory criteria. In contrast, Dr. Berger found that the defendant both knew and appreciated the nature and consequences of his conduct. Significantly, as previously noted, Dr. Berger's diagnosis and opinion are supported by the documentary evidence introduced by the defense.

Having considered all of the documentary evidence, the reports of both forensic experts and all of the testimony, this court finds that the defendant has failed to meet his burden by a preponderance of the evidence. Whatever diseases the defendant suffers from, none are of such proportion as to cause the defendant to lack substantial capacity to know or appreciate the nature and consequences of his conduct or that it was wrong. Although the defendant clearly suffers from pedophilia, it does not cause the requisite mental incapacity.

This court finds that the People have proven the defendant's guilt beyond a reasonable doubt. Further, the court concludes that the defendant both knew and appreciated the nature and consequences of his conduct and that it was wrong. Accordingly, the defense of lack of legal responsibility by reason of mental disease or defect is rejected. Therefore, the defendant is found guilty of two counts of sodomy in the second degree.

[1] See, Meyer, Depo Provera Treatment for Sex Offending Behavior: An Evaluation of Outcome, 20 Bull Am Acad Psychiatry & L 249 (1992).

[2] The affirmative nature of the defense does not impermissibly shift the burden of proof. (People v Kohl, 72 N.Y.2d 191, 193-194 [1988].)

[3] A cognitive test focuses on the defendant's awareness of his conduct while a volitional test involves the ability to conform conduct, i.e., irresistible impulse. (Compare, State v Rodriguez, 67 Haw 70, 679 P2d 615, 617 [1984], cert denied 469 US 1078 [1984] [statute on insanity requires proof of defendant's substantial incapacity to appreciate wrongfulness of conduct or to conform conduct to the requirements of the law], with People v Hakner, 34 N.Y.2d 822, 823 [1974] [New York's purely cognitive statute on insanity specifically rejects a defendant's inability to conform conduct as a basis for relief of criminal responsibility]; see also, Denzer and McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law former § 30.05, at 48-49 [1967].)

[4] The defendant need not be totally incapacitated. This is a change from the former Penal Law provision which provided that only a totally incapacitated person could be excused from criminal liability. (See, former Penal Law § 1120 [1944]; see also, Interim Report of Temporary Commn on Rev of Penal Law and Criminal Code, 1963 NY Legis Doc No. 8, at 19-21; People v Wofford, 59 AD2d 562, 567 [2d Dept 1977], affd 46 N.Y.2d 962 [1979].)

[5] Neither side requested a Frye hearing on this issue, which appears to be novel. (See, People v Burton, 153 Misc 2d 681 [Sup Ct, Bronx County 1992].)

[6] See, supra, at 332.