[464] Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), for appellant.

Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent.

Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

[465] OPINION OF THE COURT

Chief Judge LIPPMAN.

Defendant was convicted of second degree murder upon evidence that he killed Tyffany Porter, his fiancée and paramour of some two years, by inflicting numerous knife wounds. Although he had sought to interpose the affirmative defense that his homicidal acts had been committed under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse (see Penal Law § 125.25 [1] [a]), and upon that theory to afford the jury the option of returning a verdict of manslaughter in the first degree instead of murder (see id.), the trial court refused to charge the defense. While acknowledging that the evidence of the homicide's manner of commission was indicative of a loss of self control on defendant's part, the court deemed the charge unwarranted absent proof that defendant suffered from an underlying "mental infirmity." Thereafter, in affirming defendant's conviction, the Appellate Division found the denial of the charge proper, concluding that defendant's "conduct before, during and after the offense [was] inconsistent with the loss of self-control associated with the defense" (81 AD3d 1375 [2011] [internal quotation marks and citation omitted]). A Judge of this Court granted defendant's application for permission to appeal (17 NY3d 819 [2011]), and we now reverse.

Defendant did not testify or otherwise present evidence. His request for an extreme emotional disturbance charge was based entirely on proof elicited during the People's case. That proof was that there had been a heated argument between defendant and Ms. Porter secondary to Ms. Porter's refusal to engage in sexual relations with defendant and her closely ensuing disclosure that she, in retaliation for what she believed had been similar conduct on defendant's part, had been unfaithful to defendant with one of his friends. During the argument, defendant retrieved a knife from the kitchen of the couple's apartment, returned to the bedroom, and, as the mutually abusive exchange escalated from words to blows, stabbed Ms. Porter some 47 times, killing her. There was further evidence that, from the scene of the homicide, defendant drove to the home of [466] a friend, Latonya Whitfield, to whom he eventually admitted the stabbing, claiming that he "just snapped." Whitfield testified that, at the time, defendant appeared "spaced out" and "out of it." A short time later, defendant called 911 to surrender. In explaining what had happened, he told the dispatcher that he "just lost it" and had "blacked out."

Defendant made no attempt to conceal what he had done. He left the homicide weapon in open view and when he was taken into custody still had blood on his clothing and shoes. On the way to the police station he admitted that he had "f ... d up." He confessed to the stabbing in station house interviews, at one point apparently overcome with emotion, and executed a written statement in which he admitted that he had used the kitchen knife against Ms. Porter. He explained that he was scared, panicked and lost control; Ms. Porter, he said, enraged by suspicions of infidelity, had previously pulled knives on him, slept with a razor under her pillow, and had caused him to lose sight in his left eye when, during a prior altercation, she shattered a window of a car in which he was sitting.

In judging whether to accede to a defendant's request to charge an affirmative defense, a court is bound to view the evidence in the light most favorable to the defendant (People v Butts, 72 NY2d 746, 750 [1988]), an exercise understood to be incompatible with weighing the evidence to resolve competing inferences (see id.). The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it (id.). We have repeatedly recognized that these general principles are applicable where the defense sought to be charged is that of extreme emotional disturbance (see People v Moye, 66 NY2d 887, 889 [1985]; accord People v Harris, 95 NY2d 316, 320 [2000]; People v White, 79 NY2d 900, 903 [1992]). If, then, the evidence would have permitted defendant's jury reasonably to conclude by a preponderance (Penal Law § 25.00 [2]) that, at the time of the homicide, he was affected by an extreme emotional disturbance, and that that disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it (see People v Casassa, 49 NY2d 668, 678-680 [1980], cert denied 449 US 842 [1980]),^[*] the charge should have been given. Although, it is true, as the Appellate Division evidently found, [467] that the evidence in the aggregate would have permitted the jury to reject defendant's claim of emotional disturbance and loss of control, it was instead the viability of the alternative, contrary inference — that defendant in fact experienced an emotional break which caused him to "snap" — that should have guided the trial court's determination of the charge request.

As the trial court recognized, the sheer number and redundancy of the knife wounds inflicted on Ms. Porter was indicative of defendant's loss of control. The court denied the charge instead upon the ground that there was no proof that defendant had a "mental infirmity that r[ose] short of a mental disease or defect." But the purpose of this quoted language, as it has been used in our decisions to describe the predicate for an extreme emotional disturbance defense (see People v Patterson, 39 NY2d 288, 302 [1976], affd 432 US 197 [1977]; see also People v Roche, 98 NY2d 70, 75 [2002]), patently was not to tether the defense to proof of an underlying psychiatric disorder; "mental infirmity" in the presently relevant context refers more broadly to any reasonably explicable emotional disturbance so extreme as to result in and become manifest as a profound loss of self-control. We have in fact recognized that the subjective element of the extreme emotional disturbance defense may be inferred simply from circumstances indicative of a loss of control and, concomitantly, that it may be established without psychiatric evidence (People v Roche, 98 NY2d at 76; Moye, 66 NY2d 887, 890 [1985]). In Moye, for example, extreme emotional disturbance was deemed inferable simply from evidence of an uncommonly savage assault together with the victim's initial sexual taunting and the assailant's closely following admissions, in the course of which he stated that he "snapped" and "went bananas" (66 NY2d at 890 [internal quotation marks omitted]). It is true that in Roche we said that a brutal assault would not itself suffice to demonstrate extreme emotional disturbance (98 NY2d at 77-78). Here, however, as in Moye, the evidentiary predicate for the defense was augmented by inculpatory admissions to third parties, including the police, in which defendant stated that he had "snapped" after the victim rejected his overtures and disclosed her infidelity. There were also reports of defendant's appearance and demeanor consistent with his having been affectively [468] disturbed in the assault's near aftermath. Under the circumstances of record, then, the first prong of the defense — that defendant at the time of the assault was subjectively overtaken by an extreme emotional disturbance — was sufficiently made out to support defendant's charge request.

Whether the evidence also was adequate to support the additionally requisite inference that the situation, as defendant perceived it, reasonably occasioned the emotional response he claims to have experienced, might well be understood to pose a closer question. On the one hand, taunting over sexual matters and disclosures of sexual infidelity in the context of established intimate relationships are historically the most commonly accepted mitigating circumstances for otherwise murderous behavior. On the other hand, this was not a situation in which defendant was ridiculed about impotence or some other potentially humiliating sexual deficit (cf. Moye, 66 NY2d at 888-889) or in which he reacted to the sight of his paramour in flagrante (see e.g. Patterson, 39 NY2d at 291); here, the claimed provocation was perhaps somewhat less obviously volatile. Inasmuch, however, as the relevant inquiry was whether the evidence, viewed most favorably to defendant, presented a triable question, we believe that the issue of the reasonableness of defendant's explanation should have been put to the jury. Although it did not require it, the evidence plausibly allowed the conclusion that Ms. Porter's sexual rejection of defendant, together with her closely following abrupt and apparently vengeful disclosure of her infidelity with his friend, precipitated not just ordinary anger or even rage, but an onrush of emotion leaving defendant bereft of self-control. Whether that explanation ultimately was worthy of credit was for the jury to decide based on its appreciation of the entire body of evidence.

A claim of extreme emotional disturbance must, of course, be credibly supported if the defense upon which it rests is to be submitted to the jury (see People v White, 79 NY2d 900, 902-903 [1992], citing Moye, 66 NY2d at 890 n), but that requirement was not intended to cast the trial court in the fact-finding role properly reserved to the jury (see id.). The court's contemplated gate-keeper function is under our cases limited to excluding claims that are patently insufficient, either by reason of the absence of evidence from which the claimed disturbance might be reliably inferred (see e.g. Roche, 98 NY2d at 77) or for lack of proof of any but a speculative relation between the alleged disturbance and a plausible triggering circumstance (see e.g. id. at [469] 78; People v Walker, 64 NY2d 741, 743 [1984]) or between the disturbance and the defendant's homicidal acts (see People v White, 79 NY2d at 902-904). This case involved none of these objectively discernible deficiencies. Nor was it one in which the assertion of the defense was an obvious afterthought to avoid a murder conviction, and in that light "incredible." Here, as noted, the defense was significantly — and a jury might have found authentically — rooted in inculpatory statements closely following the homicide and in third-party observations of defendant's conduct, appearance and demeanor during that same period.

"The purpose [of the extreme emotional disturbance defense] was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions" (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1446 [1968]; see Casassa, 49 NY2d at 679). The consonant claim made by this defendant was not that his admitted homicidal conduct was excusable, only that it should not be penalized as murder because he acted under the influence of an understandable, traumatically induced emotional disturbance. The question thus framed by defendant's charge request was not whether defendant should be held criminally responsible for killing Ms. Porter, but whether instead of a conviction for murder, there should be one for first degree manslaughter based on what was for all intents and purposes, a plea in mitigation. Given the evidence in the case, we perceive little danger that a jury in choosing between the highly punitive options occasioned by the proposed defense would have been reduced to speculation. That being so, it was the jury, and not the court, that should in the end have determined the defense's merit.

The People's argument that defendant's failure to afford them CPL 250.10 (2) notice should be preclusive of an extreme emotional disturbance defense, raised for the first time at the Appellate Division, is not preserved for our review (see People v Jones, 85 NY2d 998, 999 [1995]).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Order reversed, etc.

[*] As is here pertinent, Penal Law § 125.25 (1) (a) provides that it is an affirmative defense to 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" (emphasis supplied).

[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]).

[76] The Sarcone Law Firm, PLLC, White Plains (John A. Sarcone III and Clement S. Patti, Jr., of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains (Lois Cullen Valerio, Richard Longworth Hecht and Laurie Sapakoff of counsel), for respondent.

DICKERSON and AUSTIN, JJ., concur with COHEN, J.; ANGIOLILLO, J.P., dissents in a separate opinion in which BALKIN, J., concurs.

OPINION OF THE COURT

COHEN, J.

During the early morning hours of March 22, 2008, the defendant beat his girlfriend to death with a baseball bat inside the home they shared in Croton-on-Hudson, New York. At trial, the defendant relied on the affirmative defense of extreme emotional disturbance, presenting evidence that he had a long history of psychiatric illness, and that in the months leading up to the homicide, his mental state deteriorated as his once successful business faced financial setbacks, and anxiety kept him from sleep. The defendant was also experiencing a great deal of [77] stress over the prospect of hosting a large family dinner for the upcoming Easter holiday, and he claims that he reached his breaking point and lost control of his actions when his girlfriend rebuffed his suggestion that they cancel the planned gathering. There is no indication that the defendant had ever committed any prior acts of violence against his girlfriend, and his girlfriend's teenaged daughter testified that the defendant and her mother loved each other and were discussing marriage. At the conclusion of the trial, the jury rejected the proffered extreme emotional disturbance defense, and convicted the defendant of murder in the second degree. The defendant appeals, arguing that the jury's failure to accept his defense of extreme emotional disturbance in mitigation of his conduct in killing his girlfriend, and accordingly reduce the degree of his conviction to manslaughter in the first degree, was against the weight of the evidence.

For the reasons that follow, we conclude that the defendant sustained his burden of proving, by a preponderance of the evidence, that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse" (Penal Law §§ 125.27 [2] [a]; 125.25 [1] [a]) when he killed his girlfriend, and that the jury's failure to reduce the degree of his conviction to manslaughter in the first degree was against the weight of the evidence.

During the course of the jury trial conducted in the spring of 2009, the defendant presented extensive evidence of his background, his history of treatment for depression and anxiety, and his mental state prior to and at the time of the homicide through his own testimony, the testimony of his treating psychiatrist, and the testimony of several family members. According to the accounts of the defendant's background given at trial, he took his first steps toward becoming a successful entrepreneur as a young man. In May 1976, when the defendant was just 21 years old, he started his own business, selling health products in a local gymnasium in the Bronx. After making a modest sum of money, he opened a small health food store. In 1978, the defendant married, and he and his wife had three children. Eventually, the defendant sold his health food store and started a health products distribution business in the Bronx. As the business grew more successful, the defendant moved the company to a larger facility and increased the product line. During the early 1980s, the company's distribution and sales increased to about $500,000 a year, and at its peak, in the late 1980s and early 1990s, the company grossed approximately $1.5 million annually.

[78] In 1993, 15 years before the tragic incident, the defendant began weekly psychotherapy sessions with a psychiatrist. His treating psychiatrist testified that the defendant presented with a history of depression and a long history of anxiety and panic disorder that would manifest itself in panic attacks, an extreme form of anxiety during which the patient experiences an inability to breathe and heart palpitations. Although the defendant initially wanted to avoid taking medication for his mental health problems, he eventually agreed to take an antidepressant prescribed by the psychiatrist. The psychiatrist testified that the defendant was "insecure" and that his defense against "massive insecurity" was to be "perfect," which made it hard to ever admit that he was wrong.

By 2003, the defendant and his wife were "separated," but still living in the same house. The defendant met Jeanette Carlucci, the victim, online in May 2003, and they eventually started dating. In April 2005, the defendant and Carlucci took a seven-month "hiatus" from their relationship. During that period, the defendant's wife moved out of the marital home. The defendant's relationship with Carlucci then progressed, and they started talking about marriage and even placed a deposit on an engagement ring. Carlucci's teenaged daughter, who split her time between her mother's home and her biological father's home, never saw her mother and the defendant fight, and believed that her mother and the defendant loved each other.

The defendant's business suffered a downturn in 2006, when two raw ingredients used in two of his best-selling products started to increase in cost. The defendant did not raise prices, hoping the cost would go back down. As a result, the defendant's business began to have cash flow problems.

The defendant's divorce from his wife was finalized in August 2007. Later that year, in October 2007, Carlucci woke the defendant up from a nap because he was gasping for air. The defendant noticed that his heart was racing. After engaging in research on the internet, the defendant diagnosed himself as suffering from sleep apnea.

In the months leading up to Carlucci's death, the defendant faced additional pressure stemming from business difficulties, and continued to experience problems with sleeping. During this period, his mental health also markedly deteriorated. In December 2007, the possibility of a potential lawsuit against the defendant and his company was looming. The defendant had conversations with the principal of the other company involved [79] about a possible settlement, but the claim eventually led to litigation. Somehow, the defendant became convinced that the principal of the plaintiff company was involved in organized crime, and he became "fixated" on the idea that his earlier conversations with the principal had been tape-recorded. The defendant became highly distressed about the litigation. At a Christmas party later that month, the defendant talked to many people, including his sister and brother-in-law, both physicians, about his lack of sleep.

Shortly thereafter, in January 2008, Carlucci moved into the defendant's house in Croton-on-Hudson. However, the defendant slept in the master bedroom upstairs, and Carlucci slept in a separate bedroom downstairs, because they were not married and wanted "to set a good example" for their children. At about this same time, the defendant began seeing his psychiatrist twice weekly due to his increased anxiety, including his fear that he would choke and die in his sleep. He was also anxious due to the pending litigation and because his cash flow was poor. The defendant's psychiatrist believed that his sleeping difficulties were the result of panic attacks and adjusted the defendant's medication. Although the psychiatrist noted that sleep disturbance was "one of the cardinal symptoms of depression," he nevertheless referred the defendant to another doctor for a sleep evaluation. According to the defendant, the doctor he was referred to did not believe that he suffered from sleep apnea, but wanted to conduct a sleep study to be certain. However, the defendant injured his back while lifting weights on January 7, 2008, and could not participate in the sleep study because he was unable to lie on his back.

The defendant's adult children noticed changes in his behavior during the early part of 2008. The defendant's son, who worked with the defendant at the company, noticed a decline in both the amount of work the defendant was performing for the company, and the quality of the work performed. The son also noticed that the defendant was depressed, often tired, was having sleeping problems, and was "obsessed" about the lawsuit. The defendant's daughter noticed that her father was more tired and emotional than usual. The defendant would cry and tell her that he loved her.

The defendant testified that in February 2008, he was still having trouble sleeping and was still concerned that the principal of the plaintiff company in the lawsuit was involved in organized crime. Despite the fact that Carlucci had moved in [80] with him, he also approached his now former wife and asked her to take him back.

The defendant's downward spiral continued throughout the month of February 2008. On February 29, 2008, the defendant was very distressed, and he called his sister and expressed to her that he could not "take this anymore, ... the anxiety is intolerable. I can't think, I can't sleep, I can't do anything. I am in bed most of the time ... please help me." Following this call, the defendant met with his sister, and told her about his anxiety, depression, obsession about organized crime invading his business concerns, money problems, and medication.

The next morning, March 1, 2008, approximately three weeks before the homicide, Carlucci, the defendant's sister, and the defendant's brother-in-law took the defendant to the Westchester Medical Center's psychiatric emergency center. He was admitted and spent the night, sleeping five straight hours, but insisted on going home the next day. He continued to attend sessions with his psychiatrist. The defendant would talk to his sister two or three times a day.

On March 7, 2008, the defendant advised the attorney representing him in the litigation by fax to "Please end this, we pay them" and "Thank you so very, very much, I owe you the world, God bless you." The faxed note also said,

"I must end this case since I have had health problems since October and as discussed with my physician, this is a big contributor to my health problems ... Once you settle it, it will take the weight of the world off my shoulders and let me rest and sleep better and come back to life."

Although the attorney settled the case, the defendant remained anxious about making the settlement payments.

Shortly thereafter, approximately one week before Easter, Carlucci raised the idea of hosting Easter dinner that year. Carlucci's daughter suggested that "both sides of the family" be invited to the gathering, which would be unusual, as "it was only always the Sepes." While initially hesitant, telling Carlucci he would prefer to go to his mother's house so he "wouldn't have to do anything at all," the defendant "got on board" because he "didn't want to disappoint" Carlucci, as she wanted to have her family over and he "hadn't been doing so many things." Thus, the defendant and Carlucci started to plan an Easter dinner for about 20 people. They decided to order food from a restaurant. Although the defendant usually did the ordering, Carlucci ordered the food for the planned gathering [81] because the defendant could not figure out how much to get. As the holiday approached, Carlucci began making all the preparations, including "cleaning the whole house," because the defendant "wasn't able to help her."

The defendant's anxiety about hosting the Easter dinner increased. However, the defendant continued to express excitement to his children and sister about hosting the dinner, while simultaneously feeling that if he canceled the party, he would disappoint Carlucci. The defendant testified that during this time, he "felt like [he] was just losing everyone." The defendant told his psychiatrist about his Easter plans and his feeling that he was "totally incapable of relating to people," and that it was causing him a "lot of stress." The psychiatrist suggested to the defendant that he cancel the Easter plans if he did not feel up to it. Even so, the psychiatrist thought that the defendant was "slightly better" and had "increased energy." The defendant testified that the next day, he discussed canceling the party with Carlucci. He explained that he was not only "worked up about the Easter dinner," but also "about everything; about the Mafia, about money, about so many different things. I am losing myself. Where is my personality? I felt like I was ... losing [Carlucci], my children," but he didn't want to disappoint Carlucci.

On Good Friday, March 21, 2008, the defendant called his sons to remind them about Easter dinner and also to discuss business. One of the sons testified that this was "one of the better days" for his father.

The defendant himself felt "a little bit better," that day, but experienced anxiety after some "light exercise." He and Carlucci decided to stay in for the night. At about 10:00 p.m., Carlucci got into her pajamas, and they laid down in her bed in her downstairs bedroom. The defendant fell asleep for a short while, but woke up when Carlucci's phone rang. At that point, he went upstairs to his bedroom and fell asleep.

Describing his actions immediately before and after the homicide, the defendant testified that he was woken from his sleep by a noise in the house. He grabbed the bat he kept under his bed for protection and went downstairs to look around. Certain that there were no intruders in the house, the defendant put down the bat and started pacing in the kitchen. He paced for "a couple of hours maybe, an hour and a half." He was "worked up" over hosting Easter dinner, the settlement of the lawsuit, and money.

At some point, Carlucci called out from her bedroom, "[W]hat are you doing." He went into the bedroom, with the bat, and [82] said, "I think we have to cancel the party." Carlucci replied, "in a normal tone," "are you crazy?" The defendant yelled, "[W]e can't do this anymore, I can't do this anymore, I can't do it anymore." It was then that he started hitting Carlucci with the bat. Carlucci jumped off the bed and ran out of the room. She said, "Robert, it's me." The defendant ran after her, then followed her back into the bedroom, where he hit her again.

The defendant's violent assault upon Carlucci is undisputed. Evidence presented by the People established that Carlucci's face, hands, left elbow, right forearm, right buttocks, left knee, and both feet bore evidence of blunt force trauma consistent with being struck multiple times by an aluminum baseball bat. The middle finger of her left hand was fractured and the tip of the finger was missing. One of the blows had been "severe enough to cut the fingertip off." The upper left arm area had "grab marks," and there were injuries to her palms which indicated that Carlucci had tried to defend herself. These injuries were sustained while Carlucci was still alive.

Carlucci had sustained a minimum of four blows to the skull consistent with being struck by an aluminum bat with "tremendous force." There were four lacerations to the back of the head, the "entire skull" was fractured, and the brain matter was eviscerated. There was no brain tissue left in the skull. She also sustained a broken nose, fractured jaw, multiple lacerations to her forehead, ears, and eyelids, and abrasions to her cheeks, chin, and mouth. These injuries were consistent with "bone matter from being struck in the back of the head" and with being struck while face down on the bedroom floor.

The testimony of the People's blood spatter expert confirmed that the attack began in Carlucci's bedroom, continued down the hall into the laundry room and bathroom, and then back into the bedroom. There were clumps of hair in the hallway and the bedroom. The bat found next to Carlucci was dented and covered in blood, and the blood spatter was consistent with her having been struck by the bat many times while being pursued. Aside from one bloody dent in the hallway wall, nothing was broken or out of place in the hallway, bathroom, laundry room, or bedroom.

After the attack, the defendant stood over Carlucci's body for a long time, "[t]hen [he] wanted to kill himself." He searched the term "jugular vein" on the internet and grabbed a knife, intending to cut his throat, but he could not go through with it. He put plastic bags over his head to suffocate himself, but it did [83] not work. He thought about dropping a weightlifting weight on his neck, but he was not sure it would be fatal. The defendant then went into the kitchen and put his bloody socks and shirt in the garbage can "and buried them down." He urinated into the garbage can and, because he was worried about priapism as a side effect of his medication, he masturbated into the garbage can. He got a drink from the refrigerator and took some pills.

The defendant put on a clean sweatshirt and left the house with a knife and $2,300 in cash. He started driving toward his time share property in upstate New York. One of the things he "was thinking of tremendously" was that his children would get to the house and see what had happened, but he did not turn the car around; rather, he threw his cell phone out the window.

After about three hours of driving, he got out of the car at an overpass. He stood on the overpass for a couple of hours, still contemplating suicide, before New York State Troopers arrived. He "wanted time to stand still," so he told the police that he was from the Bronx and had hitchhiked there. He talked to the Troopers about Italian food, the Bronx, weightlifting, and vitamins. He never mentioned Carlucci.

When asked "why [he] did what [he] did" to Carlucci, the defendant testified:

"The pressure of the party, I couldn't live anymore. It was an irrational, impossible event. The party was looming on my mind: How am I going to deal with these people, how am I going to handle all these people, I can't do it. As I am pacing back and forth, I am thinking of all my problems, all my stuff, and it's ridiculous.

"I just lost—I don't know, I don't know how to explain it. I lost control. I don't know how to explain it. It's just so, so, so surreal. Anyone that knows me, anyone that knows me—it haunts me every single day. I don't understand it. I don't understand it.

"It's just—I couldn't do this party, I couldn't do it. It was a party. Under normal circumstances, I could do 50 parties. I just couldn't talk to one person at that time, how am I going to talk to all these people? How am I going to do it? I am going to die. I can't do it, I will die. I can't, it's impossible."

[84] The Testimony of the Psychiatric Experts

Both the defendant and the People offered the testimony of psychiatric experts at trial. The psychiatric experts differed as to the clinical significance of the defendant's psychiatric background and the defendant's actions during and immediately after the homicide.

The defendant's expert, Dr. Alan Tuckman, confirmed that the defendant's psychiatric history revealed that he had been treated for depression and anxiety for many years. Four to six months before the murder, the defendant's condition began deteriorating, and he became more and more depressed and anxious, withdrawn, obsessed that he would die from sleep apnea, and obsessed that there was an organized crime component to the lawsuit that had been brought against him and his company. Tuckman opined that the defendant was suffering from extreme emotional disturbance when he killed Carlucci. Tuckman testified that the defendant had no violent history but had serious psychiatric problems which weakened him, and that as the defendant became weaker emotionally and sicker, he felt guilty about divorcing his first wife, the mother of his children, and became unable to function. Tuckman opined that the defendant's emotionally weakened state probably triggered his explosion when Carlucci suggested that they could not cancel the Easter Sunday party.

Tuckman testified that the fact that after the homicide, the defendant went through the house, contemplating various ways to commit suicide, meant "nothing." "People after a murder do either obsessional things or disorganized things." The extreme emotional disturbance occurs at the time of the crime; what somebody does afterwards does not have any bearing on the crime. Tuckman also testified:

"[W]hat I have seen most of the time is people racing around afterwards going, oh, my God, oh, my God, oh, my God, oh, my God. That's what I have mostly seen. Oh, my God, what did I do, what happened, what did I do. They are no[w] exhausted with the adrenalin gone and just sitting down slumped."

According to Tuckman, a reflection of remorse for commission of the crime accompanies extreme emotional disturbance, and he believed that the defendant felt intense remorse. The defendant expressed his remorse by saying that the murder was an "impossible event." In Tuckman's opinion, remorse and denial were "the same thing."

[85] Tuckman acknowledged that the defendant "was lying" when he told the New York State Troopers that he had hitchhiked to the overpass. However, by that point the defendant was not under the influence of an extreme emotional disturbance.

In contrast, the People's expert, Dr. Angela Hegarty, found that the defendant's actions during and after the murder did not evince a loss of control. Opining that the defendant's mental state was "highly consistent with an anxiety disorder and highly consistent with a severe personality disorder, narcis[sis]tic personality disorder," Hegarty testified that there was no evidence of mania or psychosis. While the defendant was being treated for anxiety and panic, Hegarty concluded that at the time of the crime, the defendant was not suffering the effects of an extreme emotional disturbance to such extent that it would serve as a reasonable explanation or excuse for his crime. According to Hegarty, at the time of the crime, the defendant appreciated the nature and consequences of his actions and knew that his conduct was wrong.

As noted, at the conclusion of the trial, the jury rejected the defendant's extreme emotional disturbance defense, and convicted him of murder in the second degree.

Analysis

At the outset, we note that the trial court, in addition to charging murder in the second degree, properly charged the affirmative defense of extreme emotional disturbance, affording the jury the option of returning a verdict of manslaughter in the first degree instead of murder (see People v McKenzie, 19 NY3d 463 [2012]). We further note that the defendant does not challenge the legal sufficiency of the evidence presented at trial (see CPL 470.05). Rather, by seeking only to reduce his conviction from murder in the second degree to manslaughter in the first degree, he essentially concedes that he intended to cause Carlucci's death. However, he takes the position that his deadly actions, while intended, were less culpable because they were the product of an extreme emotional disturbance, and that the jury's failure to accept his defense in mitigation of his conduct in killing Carlucci was against the weight of the evidence (see Penal Law §§ 125.25 [1] [a]; 125.20 [2]).

We begin our analysis by examining the nature and scope of the affirmative defense of extreme emotional disturbance. Penal Law §§ 125.25 (1) (a) and 125.20 (2), "[r]ead in tandem," together "provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while [86] `under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse' is guilty of manslaughter and not murder" (People v Roche, 98 NY2d 70, 75 [2002] [internal quotation marks omitted]). The defense of extreme emotional disturbance does not negate intent (see Penal Law § 125.20 [2]; see also People v Gonzalez, 1 NY3d 464, 469 [2004]; People v Patterson, 39 NY2d 288, 302 [1976]; People v Liebman, 179 AD2d 245 [1992]). Instead, 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 Roche, 98 NY2d at 75 [internal quotation marks omitted], quoting People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842 [1980]). Although the defense of extreme emotional disturbance 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," the defense is broader than the "heat of passion" doctrine, and was intended to apply to a "wider range of circumstances" (People v Casassa, 49 NY2d at 675-676, 679-680).

The defense of extreme emotional disturbance comprises two elements. The first element is "wholly subjective" and "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" (id. at 678-679). The subjective element "focuses on the defendant's state of mind at the time of the crime and requires sufficient evidence that the defendant's conduct was actually influenced by an extreme emotional disturbance" (People v Harris, 95 NY2d 316, 319 [2000]). The subjective element is generally associated with a loss of self-control (see id. at 319). The second element, which the Court of Appeals has acknowledged to be "more difficult to describe," requires that an objective determination be made as to whether there was a reasonable explanation or excuse for the emotional disturbance (People v Casassa, 49 NY2d at 679; see People v Harris, 95 NY2d at 319). "Whether such a reasonable explanation or excuse exists must be 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'" (People v Harris, 95 NY2d at 319 [emphasis added], [87] quoting People v Casassa, 49 NY2d at 679; see People v Cass, 18 NY3d 553, 561 [2012]).

An appellate court has authority to set aside a verdict as against the weight of the evidence, but it must do so only when, after examining all of the credible evidence, it finds that a different verdict would not have been unreasonable (see People v Danielson, 9 NY3d 342, 348 [2007]). Upon such a finding, it must then weigh "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" and decide whether "the trier of fact has failed to give the evidence the weight it should be accorded" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks omitted]; see People v Romero, 7 NY3d 633, 644-645 [2006]). Based on the weight of the credible evidence, this Court then must decide whether the jury was justified in rejecting the extreme emotional disturbance defense (see People v Danielson, 9 NY3d at 348; People v Bleakley, 69 NY2d 490 [1987]; People v Bornhoeft, 53 AD3d 666 [2008]). We accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d at 495). However, "[e]ssentially, the court sits as a thirteenth juror and decides which facts were proven at trial" (People v Danielson, 9 NY3d at 348-349).

In our view, a different verdict would not have been unreasonable in this case. Accordingly, we must proceed to weigh the evidence presented at trial, and determine whether the jury gave the evidence the weight it should be accorded. A conscientious discharge of this duty compels us to conclude that the jury verdict convicting the defendant of murder in the second degree, thus rejecting his extreme emotional disturbance defense, was against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d at 644-645; People v Haney, 85 AD3d 816, 818 [2011]; People v Pickens, 60 AD3d 699, 702 [2009]). Indeed, we find that the evidence supporting the defendant's claim of extreme emotional disturbance was overwhelmingly preponderant (see Penal Law § 25.00 [2]; People v Bleakley, 69 NY2d at 495; People v Liebman, 179 AD2d 245, 258 [1992]).

As our dissenting colleagues do, we approach the proffered extreme emotional disturbance defense by examining both of its elements: the subjective, wherein a determination must be made as to whether the defendant suffered from a lesser form of "mental infirmity" than "insanity," typically manifested by a [88] loss of self-control (People v Roche, 98 NY2d at 75; People v Harris, 95 NY2d at 319), and then the objective, when we determine whether the defendant's emotional disturbance was supported by a reasonable explanation by assessing the defendant's conduct from his viewpoint under the circumstances as the defendant perceived them to be (see People v Casassa, 49 NY2d at 678-679).

With respect to the subjective element, the evidence overwhelmingly demonstrates that the defendant, who was in a fragile mental state, was actually influenced by an extreme emotional disturbance when he attacked Carlucci, with whom he had previously shared a loving relationship. The defendant's assault upon Carlucci was unquestionably brutal, with the defendant striking her repeatedly with an aluminum baseball bat to a point beyond redundancy. Indeed, Westchester County Medical Examiner Kunjlata Ashar testified that Carlucci was struck a minimum of 18 times, with enough force to cut her fingertip off, fracture her entire skull, and leave her brain matter entirely eviscerated from her skull. Most of her injuries occurred as the defendant continued to strike her while she was already on the ground. In our opinion, as described by the forensic experts, the attack was nothing short of a barbaric frenzy, and thus indicative of the defendant's loss of self-control.

We are mindful of the fact that the brutal nature of the attack does not itself prove, with nothing more, that the defendant acted under an extreme emotional disturbance. Indeed, in concluding that a defendant was not entitled to a jury charge on the affirmative defense of extreme emotional disturbance in People v Roche, the Court of Appeals cautioned that "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" (People v Roche, 98 NY2d at 77-78). However, in Roche, the sole evidentiary predicate for the defendant's requested charge on the defense of extreme emotional disturbance was the sheer brutality of the attack (see id. at 75; see also People v McKenzie, 19 NY3d 463 [2012]). In contrast, in People v McKenzie (19 NY3d 463 [2012]), the Court of Appeals concluded that it was error to fail to instruct the jury on the defense where, among other things, "the sheer number and redundancy of the knife wounds" the defendant inflicted on the victim was indicative of his loss of control (id. at 467). In McKenzie, "the evidentiary predicate for the defense was augmented by inculpatory admissions to third parties, including [89] the police, in which defendant stated that he had `snapped'" and there "were also reports of defendant's appearance and demeanor consistent with his having been affectively disturbed in the assault's near aftermath" (id. at 467-468, citing People v Moye, 66 NY2d 887, 888-890 [1985]).

The defendant's conduct in the aftermath of the homicide supports the conclusion that he was overtaken by an extreme emotional disturbance when he attacked Carlucci. As in McKenzie, the defendant made no real effort to conceal his actions, leaving the murder weapon beside Carlucci's body, and leaving physical evidence connecting him to the crime throughout the house. The defendant made no effort to evade capture. While he started driving to his upstate time share property, a place where he could easily be found, after a few hours he stopped his car and stood at an overpass until New York State Troopers arrived. He truthfully identified himself to the Troopers and gave his true address, a location where Carlucci's body, so brutally slain, would be found. While the defendant did not immediately disclose to the Troopers the circumstances that brought him to the overpass, he made comments that implied there was much more to his story and a willingness to confess. One of the Troopers concluded that the defendant was "mentally disordered," i.e., somebody who would have intent to harm themselves, an emotionally disturbed person. The defendant exhibited extreme remorse, albeit in a manner that was consistent with his own coping skills.

The evidence further established that the defendant suffered from "significant mental trauma," i.e., a condition that manifested in depression and anxiety for which he had been treated for many years, but which in the six months immediately preceding the attack had caused the defendant's condition to deteriorate. During that six-month period, he became even more depressed and anxious, withdrawn, obsessed, sleep-deprived, and paranoid. This was mental trauma which affected the "defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore" (People v Patterson, 39 NY2d 288, 303 [1976]). Subjectively, he was under the influence of an extreme emotional disturbance at the time of the homicide.

Turning to the objective element of the defense, we find that the evidence further supports a finding that, from the defendant's perspective, there was a reasonable explanation for the emotional disturbance. While it is difficult to stand in the [90] defendant's shoes, and understand his actions at the time of the homicide, what made him "snap," and even his actions immediately after, it is the factfinder's obligation to assess the reasonableness of the extreme emotional disturbance from "the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be" (Penal Law § 125.25 [1] [a] [emphasis added]; see People v McKenzie, 19 NY3d at 466). Indeed, "[a]pplication of the statute governing the availability of the defense of extreme emotional disturbance entails in each case an understanding of the situation as it would have been perceived, not by a perfectly sensible individual but by the particular defendant at bar" (People v Liebman, 179 AD2d at 255-256). Clearly, the situation that provoked this defendant to such heinous action was less apparently provocative, incendiary, and volatile than the classic cases where the extreme emotional disturbance defense is invoked, e.g., where a lover is found in a compromising position with another, or where a loved one is in danger, such situations that a "perfectly sensible" person (id. at 255) would more easily find provocative. However, limiting the defense to such situations ignores the mandate that the trier of fact is not to evaluate the reasonableness of the explanation for the extreme emotional disturbance from his or her personal viewpoint, but from the defendant's unique perspective.

We cannot assess the reasonableness of the defendant's response in a vacuum. We approach it from his position, which he arrived at after years marked by significant mental infirmity and a lengthy psychiatric history for which he received professional assistance, including hospitalization. He was sleep-deprived. Subjectively, he was in a fragile mental state, which did not arise from the spontaneous situation our dissenting colleagues point to, i.e., the "brief conversation about an upcoming family Easter dinner party" (infra at 92).

We "emphasize," as did the Court of Appeals, that the objective 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" (People v Casassa, 49 NY2d at 679 n 2). While the defendant's own perceptions were inaccurate, we accept that the defendant's emotionally disturbed actions, amidst his seriously weakened psychiatric state and given his long history of mental illness, were triggered when Carlucci rebuffed his suggestion that they cancel the Easter dinner party. As the Appellate Division, First Department, [91] recognized in concluding that the defendant was entitled to a reduction of his conviction from murder in the second degree to manslaughter in the first degree in People v Liebman (179 AD2d 245 [1992]), the issue is not whether the defendant's act of killing "was a reasonable response under the circumstances for, clearly, it was not. Rather, the issue is the reasonableness of the explanation offered for the defendant's extreme emotional reaction" (id. at 256). That it was the prospect of an upcoming family dinner party that triggered the extreme emotional response is difficult for an individual who is not emotionally disturbed to fathom. However, when we step into this defendant's perspective, objectively, it is not outside the bounds of reasonableness. This defendant's unique feeling during the six-month period of overwhelming pressure of "all [his] problems, all [his] stuff," was compounded by the pressure of having to host "all these people," his fear that he couldn't "talk to all these people" when he "couldn't talk to one," and then, albeit innocently, by being asked by his loving companion if he was "crazy." We are of the opinion that this defendant did in fact act under an extreme and uncontrived emotional disturbance, for which there was a reasonable explanation (see People v Casassa, 49 NY2d at 679).

We do not believe that our conclusion impermissibly intrudes on the jury's province to assess the credibility of expert testimony. The basic facts are undisputed. The relevant difference in the psychiatric testimony is reduced to two opposite opinions as to the reasonableness of the explanation for the defendant's emotional disturbance in the early morning hours of March 22, 2008. Certainly, the jury as the trier of fact could accept or reject the expert opinion with respect to whether the defendant acted under an extreme emotional disturbance for which there was a reasonable explanation (see People v Kwas, 96 AD3d 877 [2012]). However, we, "like the trier of fact [in the trial court], [must] `weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" (People v Bleakley, 69 NY2d at 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). Thus, we must be certain that the evidence is of such weight and credibility as to convince us that the jury was justified in rejecting the affirmative defense of extreme emotional disturbance (see People v Cahill, 2 NY3d 14, 58 [2003]). We are convinced that the jury was not justified in concluding that the defendant was not under the influence of [92] an extreme emotional disturbance, for which there was a reasonable explanation, when he attacked and killed Jeanette Carlucci.

Therefore, we reduce the defendant's conviction of murder in the second degree to manslaughter in the first degree.

The defendant's remaining arguments are without merit or need not be addressed in light of our determination.

Accordingly, the judgment is modified, on the facts, by reducing the defendant's conviction of murder in the second degree to manslaughter in the first degree, and vacating the sentence imposed thereon, and as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing.

ANGIOLILLO, J.P. (dissenting).

Following a brief conversation about an upcoming family Easter dinner party, the defendant brutally bludgeoned Jeanette Carlucci multiple times with a baseball bat, causing her death. By the defendant's own sworn account at trial, immediately before he delivered the first blow, Carlucci responded to his plea that they cancel the dinner party with a single question, "are you crazy?," uttered "in a normal tone" of voice. A jury of 12 determined that the defendant's homicidal act was not "an understandable human response deserving of mercy" (People v Casassa, 49 NY2d 668, 680-681 [1980]) and rejected his affirmative defense of extreme emotional disturbance. We would uphold the jury's verdict as not against the weight of the evidence and affirm the conviction. Accordingly, we respectfully dissent.

Under the statutory scheme, a defendant who proves the elements of the affirmative defense of extreme emotional disturbance by a preponderance of the evidence establishes a mitigating circumstance reducing murder to manslaughter in the first degree (see Penal Law §§ 25.00 [2]; 125.20 [2]; 125.25 [1] [a]; People v Diaz, 15 NY3d 40, 44-45 [2010]; People v Patterson, 39 NY2d 288, 303 [1976]). "The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intentional" (People v Patterson, 39 NY2d at 302; see Penal Law § 125.20 [2]; People v Gonzalez, 1 NY3d 464, 469 [2004]). The defense "does not absolve the defendant of criminal responsibility, but allows him/her to demonstrate the existence of mitigating factors which indicate that he/she should be punished less severely" (People v Cass, 18 NY3d 553, 561 n 4 [2012] [internal quotation marks omitted]; [93] see People v Roche, 98 NY2d 70, 75 [2002]; People v Harris, 95 NY2d 316, 318 [2000]; People v Casassa, 49 NY2d at 680-681).

To establish this affirmative defense, a defendant is required to prove two elements by a preponderance of the evidence (see People v Roche, 98 NY2d at 75).

"First, it must be determined that the defendant actually acted under the influence of extreme emotional disturbance, a subjective determination. Second, there must be a reasonable explanation for the defendant's emotional disturbance, determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, an objective determination which 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" (People v Cass, 18 NY3d at 561 [internal quotation marks and citation omitted]; see People v Casassa, 49 NY2d at 678-679).

The first, subjective element, is established with evidence that a defendant actually suffered from "a mental infirmity not rising to the level of insanity at the time of the homicide" (People v Roche, 98 NY2d at 75; see People v Patterson, 39 NY2d at 302) which was "not contrived or [a] sham" (People v Casassa, 49 NY2d at 679). Here, the defendant's expert witness, Dr. Alan Tuckman, and the People's expert witness in rebuttal, Dr. Angela Hegarty, both testified that the defendant had suffered from a longstanding anxiety disorder in the years prior to the homicide. However, these experts advanced opposite opinions as to whether the defendant, at the time he committed the homicide, was actually suffering from, and acting under the influence of, an extreme emotional disturbance which was not contrived or a sham, and the experts each stated the evidentiary basis for their respective opinions. Under the circumstances, the jury was free to accept or reject the opinion of either expert in determining whether the defendant proved the first, subjective element of his defense (see e.g. People v Kwas, 96 AD3d 877 [2012]).

However, even assuming that the defendant proved the first, subjective element of his defense, in our view, the evidence preponderated against establishment of the second element, which required an "objective determination" that there was a [94] "reasonable explanation" for the defendant's extreme emotional disturbance at the time he committed the homicide, determined from the viewpoint of a person in his situation (People v Cass, 18 NY3d at 561 [internal quotation marks omitted]; see People v Roche, 98 NY2d at 76; People v Harris, 95 NY2d at 319; People v Casassa, 49 NY2d at 679).

With respect to the events immediately preceding the homicide, the defendant testified that he was awakened by a noise in the house and went to check on it, taking a baseball bat with him for protection. When he found that the house was secure, he put the bat down and paced around the kitchen for an hour-and-a-half because he was "worked up" about hosting the Easter dinner party and other things, including money problems. Carlucci, who was in the bedroom next to the kitchen, asked, "[W]hat are you doing? You have to get ready for the party." The defendant replied, "I think we have to cancel the party." Carlucci responded, "[A]re you crazy?" She spoke "in a normal tone, not a mean tone or anything else." The defendant thereupon repeatedly yelled, "I can't do this anymore," grabbed the bat, and started beating her. In further explanation, the defendant testified that he had been thinking of all his problems, he "couldn't do this party," it was "impossible," and he "lost control." Dr. Tuckman opined that the defendant's emotionally weakened state from his anxiety disorder "probably" triggered his explosion when Carlucci suggested that they could not cancel the party.

Whether the defendant's explanation or excuse was objectively reasonable must be determined by viewing it from the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them (see People v Cass, 18 NY3d at 561), including the evidence of his serious emotional problems, anxiety disorder, money and business problems, guilt about the breakup of his marriage and cohabitation with the victim, and emotional difficulty in facing family members at the upcoming party. Fully crediting this evidence and viewing the circumstances as the defendant perceived them, the jury was entitled to reject the defendant's proffered excuse for his extreme emotional disturbance at the time of the murder as unreasonable and not warranting mitigation (see People v White, 79 NY2d 900, 903 [1992]; People v Casassa, 49 NY2d at 680; People v Ludwigsen, 48 AD3d 484 [2008]; People v Yong Ho Han, 200 AD2d 780, 781 [1994]; People v Murden, 190 AD2d 822, 822-823 [1993]). "Sitting as the thirteenth juror" in this [95] appeal (People v Danielson, 9 NY3d 342, 349 [2007]), we find that the jury properly gave the evidence the weight it should be accorded and that the verdict is supported by the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495 [1987]).

Under the second element, it is the reasonableness of the "explanation or excuse" for the defendant's extreme emotional disturbance (People v McKenzie, 19 NY3d 463, 466 [2012]; see People v Casassa, 49 NY2d at 679), not the reasonableness of the emotional disturbance itself, which must be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, however inaccurate his perception may have been (see People v Cass, 18 NY3d at 561). Here, our colleagues in the majority posit that the defendant's long-standing emotional disorder culminated in a fragile mental state which did not arise from the spontaneous situation involving the brief conversation about the upcoming dinner party, while they acknowledge the undisputed fact that the defendant's emotionally disturbed response was "triggered when Carlucci rebuffed his suggestion that they cancel the Easter dinner party" (supra at 90). Fully accepting that formulation, we cannot subscribe to the next step in the majority's analysis which is essential to the establishment of the objective element, namely, that the defendant's testimony regarding the Easter dinner party established an objectively reasonable excuse for his extreme emotional disturbance from the viewpoint of a person in his position. An objectively reasonable excuse for the extreme emotional disturbance is not one which is "so peculiar to [the defendant] that it was unworthy of mitigation" (People v Casassa, 49 NY2d at 680), or one which merely involved an argument between parties in a difficult relationship (see People v Murden, 190 AD2d at 822-823). Rather, an objectively reasonable excuse determined from the defendant's viewpoint is one involving an immediately preceding event which provokes "an understandable human response deserving of mercy" (People v Harris, 95 NY2d at 318 [internal quotation marks omitted] [the male victim taunted the defendant about the victim's past and potential future infidelities with the defendant's girlfriend]; see People v Moye, 66 NY2d 887, 888-890 [1985] [the female victim mocked and taunted the defendant about his impotence]; compare People v White, 79 NY2d at 903 [objective element not established with proof of a temporally remote provocative act]).

[96] Our colleagues in the majority rely on People v Liebman (179 AD2d 245 [1992]), a case involving a defendant with longstanding mental illness, in which the Appellate Division, First Department, with one Justice dissenting, modified the conviction of murder in the second degree, after a nonjury trial, by reducing it to manslaughter in the first degree. However, that case is distinguishable for its markedly compelling evidence in support of the objective element. While the lengthy opinion in Liebman will not be repeated here, in essence, the defendant was utterly dependent emotionally and financially upon the victim, his wife, who controlled his money. At a time when the defendant's "sanity hung in the balance," he pleaded with her for inpatient hospitalization, and their argument reached such a pitch that the victim told the defendant his problems would be solved by taking an overdose of his medication (id. at 258). From the defendant Liebman's perspective, his response was an understandable one, deserving of mercy. Here, by contrast, a jury of 12 rejected the defendant's excuse that his emotional disturbance was triggered when his loving companion asked him, in a normal tone, if he was "crazy" for wanting to cancel the dinner party. Even considering this excuse in the context of the defendant's months of problems, pressure, sleep deprivation, medication, depression, and anxiety, including the circumstances as the defendant believed them to be, we do not find this excuse or explanation to be a reasonable one from the viewpoint of a person in the defendant's situation.

Nor does the holding in People v McKenzie (19 NY3d at 463) suggest that the defendant here met his burden of proof. In McKenzie, the Court of Appeals determined the significantly different issue of whether the trial court erred as a matter of law in denying the defendant's request to charge the affirmative defense of extreme emotional disturbance. "In judging whether to accede to a defendant's request to charge an affirmative defense, a court is bound to view the evidence in the light most favorable to the defendant, an exercise understood to be incompatible with weighing the evidence to resolve competing inferences" (id. at 466 [citation omitted]). Thus, "[t]he charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it" (id.). In McKenzie, the evidence with respect to the first, subjective element included "the sheer number and redundancy of the knife wounds" inflicted on the decedent, the defendant's "inculpatory admissions to third parties, including [97] the police," in which he stated that he had "`snapped,'" and evidence of the "defendant's appearance and demeanor consistent with his having been affectively disturbed in the assault's near aftermath" (id. at 467-468). The evidence in support of the second, objective element presented a "closer question" (id. at 468) and included a heated argument in which the victim refused to have sexual relations with the defendant and told him she had been unfaithful with one of his friends in retaliation for the defendant's similar conduct. The Court's determination that this evidence, viewed in the light most favorable to the defendant, warranted submission of the affirmative defense to the jury does not control our determination here, which is based upon a full review of the record and the weighing of competing evidence and reasonable inferences flowing from the evidence.

Upon this full review, we find that the defendant failed to satisfy his burden of establishing by a preponderance of the evidence the second element of the affirmative defense of extreme emotional disturbance. In our view, the holding of the majority encroaches upon the jury's function in making this "objective determination" (People v Cass, 18 NY3d at 561) by transforming the second element into a wholly subjective determination encompassing an excuse or triggering event peculiar to this defendant. Accordingly, we would hold that the jury's verdict was not against the weight of the evidence and, as the defendant's remaining contentions are without merit, affirm the defendant's conviction of murder in the second degree (see People v Reynart, 71 AD3d 1057, 1057-1058 [2010]; People v Pallonetti, 62 AD3d 1027, 1028 [2009]; People v Ludwigsen, 48 AD3d 484 [2008]; People v Yong Ho Han, 200 AD2d at 781).

Ordered that the judgment is modified, on the facts, by reducing the defendant's conviction of murder in the second degree to manslaughter in the first degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing.

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".

[200] Lawrence Fleischer, New York City (Daniel J. Gotlin and David S. Delbaum of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Gina Mignola and Hilary Hassler of counsel), for respondent.

GONZALEZ, P.J., SWEENY and CLARK, JJ., concur.

OPINION OF THE COURT

RICHTER, J.

The facts of this case are largely undisputed. On the morning of July 16, 2009, the decedent was found stabbed to death in his car in upper Manhattan. Although the police initially believed he had fallen prey to a violent robbery, they later discovered that he had traveled to Manhattan for the express purpose of finding someone to kill him. Because of mounting financial troubles, the decedent had devised a plan to end his life so that his family could receive his life insurance proceeds.

The evidence at trial consisted primarily of defendant's statement to the police made after his arrest. Defendant told the police that he met the decedent on a street in upper Manhattan. The decedent invited defendant into his car, told defendant about his financial problems and asked defendant to kill him. The decedent explained that it needed to look like a robbery so his family could get the life insurance benefits. The decedent told defendant to open up the glove compartment where defendant saw a knife. The decedent instructed defendant to hold the knife against the steering wheel with the blade facing the decedent. The decedent then leaned forward into the knife several [201] times, told defendant to move the knife over, and the decedent leaned forward into the knife a couple of more times. At that point, the decedent was alive, and defendant left the car.

At trial, both the People and the defense agreed that the decedent sought defendant's assistance to help him accomplish his goal of ending his life and making it look like he was killed. The only real dispute involved the manner in which the knife wounds were inflicted. The People's medical expert testified that the nature of the decedent's wounds was inconsistent with defendant's account, and that it was defendant who stabbed the decedent. To counter this evidence, the defense presented expert testimony from a forensic pathologist who testified that he could not rule out the possibility that the decedent had impaled himself on a knife held by defendant against the steering wheel.

Prior to deliberations, the trial court instructed the jury on the elements of murder in the second degree. With no objection from the People, the court also charged the affirmative defense of assisted suicide.^[1] A person is guilty of murder in the second degree when "[w]ith intent to cause the death of another person, he causes the death of such person" (Penal Law § 125.25 [1]). The statute further provides that "it is an affirmative defense that ... defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide" (Penal Law § 125.25 [1] [b]). The standard criminal jury instruction (CJI) mirrors the words of the statute (see CJI2d[NY] Penal Law § 125.25 [1] [b]).

In its final instructions, the court went substantially beyond the statutory language and the CJI charge, telling the jury that:

"If the defendant intentionally aided [the decedent] in taking his own life or if the defendant encouraged or advised [the decedent] to take his own life, that's assisted suicide.

"However, if the defendant actively caused [the decedent's] death even with [the decedent's] consent, then that's not assisted suicide because the consent of the victim is not a defense to murder" (emphasis added).

[202] During deliberations, the jury sent out a note asking for the definition of the word "active." Defendant, who had objected to the wording of the original charge, and in particular to the passive-active distinction created by the court, objected to further defining the term. Defendant instead asked the court to simply read the standard CJI charge, which had been defendant's position when the charge was first given. The court rejected defendant's request, and instructed the jury that "active" means "[d]oing something, carrying out an actual process, or carrying out by involvement, energy or action."

On appeal, defendant's principal argument is that the court's initial and supplemental charges misstated the law on the assisted suicide affirmative defense. "In considering a challenge to a jury instruction, the `crucial question is whether the charge, in its entirety, conveys an appropriate legal standard and does not engender any possible confusion'" (People v Hill, 52 AD3d 380, 382 [1st Dept 2008], quoting People v Wise, 204 AD2d 133, 135 [1st Dept 1994], lv denied 83 NY2d 973 [1994]). Where the court's charge creates undue confusion in the minds of the jurors, reversal is warranted (Hill, 52 AD3d at 382; People v Rogers, 166 AD2d 23 [1st Dept 1991], lv denied 78 NY2d 1129 [1991]). Moreover, "each time a judge declines to employ the carefully thought-out measured tone of the standard jury charge in favor of improvised language, an additional risk of reversal and a new trial is created" (Hill, 52 AD3d at 382 [internal quotation marks omitted]). Thus, "the better practice for the trial courts is, when feasible, to utilize the charges contained in the Criminal Jury Instructions" (People v King, 85 AD3d 412, 413 [1st Dept 2011], lv denied 18 NY3d 925 [2012]).

Guided by these principles, we believe that the court's charge was error. The trial presented two starkly different scenarios of the decedent's death. Under the People's version, defendant stabbed the decedent as he lay prone in the seat of his car. Under defendant's version, the decedent impaled himself on a knife held by defendant. We agree with the People that their version, if accepted, would constitute murder, not assisted suicide. If the decedent took no part whatsoever in the ultimate act that led to his death, it cannot be characterized as suicide, even if the record shows the decedent wanted to die. In this regard, we find that the jury's verdict convicting defendant of murder was based on legally sufficient evidence and was not [203] against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The testimony of the People's medical expert provided ample proof that defendant repeatedly stabbed the decedent. Based on this evidence, the jury was entitled to reject defendant's claim that he merely held the knife.

But the jury was also free to accept defendant's account of events. Under that version, a jury could have found that the decedent committed suicide because he committed the final overt act that caused his death, i.e., thrusting himself into the knife. Notably, the People did not argue below that defendant's version, if believed, would not satisfy the affirmative defense to murder. In fact, the record shows that the People acquiesced to the defense being charged, and they do not argue otherwise on appeal. The People made no objection to the charge, and in fact offered their own proposed language to the court. The trial court determined that defendant's version supported the assisted suicide defense because it decided to give the charge (see People v Taylor, 80 NY2d 1, 12 [1992] ["court must charge the jury on any claimed defense that is supported by a reasonable view of the evidence"]).

Under these circumstances, the portion of the court's instruction that the assisted suicide defense is not made out if defendant "actively" caused the decedent's death, along with the expansive definition of the word "active" given in the supplemental charge, was confusing and conveyed the wrong standard. Neither the word "active," nor its antonym "passive," appears in the statutory language and thus, by giving this charge, the court added an element that is not part of the defense. Moreover, although sparse, the legislative history of the current statute supports the view that the assisted suicide defense allows for at least some "active" assistance to one who commits suicide. The affirmative defense of assisted suicide was added as part of the 1965 overhaul of the Penal Law. As originally proposed by the Commission on Revision of the Penal Law and Criminal Code, the statute defined the assisted suicide defense as "causing or aiding a suicide ... [without the use of] force, duress or deception" (Staff Notes of Temp St Commn on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal Law [Study Bill, 1964 Senate Intro 3918, Assembly Intro 5376] § 130.25 [1] [b] at 76-77 [emphasis added]). Thus, under the proposed law, a person who used force, duress or deception in aiding a suicide could still be prosecuted for murder. In enacting the current [204] statute, the legislature rejected the Commission's proposal and removed the word "force," retaining only the phrase "without the use of duress or deception" (Penal Law § 125.25 [1] [b]). Although the legislative history is silent as to why the word "force" was removed, it suggests that the legislature contemplated some active conduct within the scope of the assisted suicide defense.

Likewise, the fact that assisted suicide exists as an affirmative defense to murder shows that active conduct could be included in the defense. The jury was required to consider the affirmative defense only upon finding that defendant intentionally caused the decedent's death, which necessarily means that defendant engaged in some active conduct that caused the death. But the court's instruction advised the jury that if defendant actively caused the decedent's death, he was not entitled to the affirmative defense. Such a circular instruction was confusing, and could have led the jury to conclude that if they found intentional murder, the affirmative defense was not applicable. By using the phrase "actively caused," the court effectively thwarted the affirmative defense and mandated a directed verdict of guilt.

The court's error was compounded by its overly broad definition of the term "active." The court told that jury that "active" meant "[d]oing something, carrying out an actual process, or carrying out by involvement, energy or action." The affirmative defense exists to protect from murder charges those who assist others to commit suicide. A person obviously cannot provide assistance to one committing suicide without "doing something." Under this expansive definition, the jury might well have believed that any of defendant's actions, under his version of events, constituted "actively causing" the decedent's death.^[2] Thus, the jury could have been confused into thinking that defendant's taking the knife out of the glove compartment, or holding the knife, would constitute murder and not assisted suicide, a position the People did not take at trial.

We disagree with the People's assertion that the words of the statute lacked sufficient guidance. There is nothing confusing or unclear about the words "aiding ... another person to [205] commit suicide." The ordinary meaning of the term "aid" is to help or assist and encompasses both active and passive assistance. And where the language of a statute is plain, courts should "construe words of ordinary import with their usual and commonly understood meaning" (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001]; see McKinney's Cons Laws of NY, Book 1, Statutes § 94). By adding words not chosen by the legislature, the court effectively rewrote the statute, and imposed a greater burden on defendant than the statute required. Moreover, if the jury needed additional guidance after being given the standard charge, it could have requested it.

The People do not argue that the error here was harmless nor could such an argument be made because defendant's entitlement to the affirmative defense was the central issue at trial. Under the circumstances, the error in the court's charge, which was objected to, resulted in significant prejudice to defendant because it essentially gutted his defense (see People v Soriano, 36 AD3d 527, 529 [1st Dept 2007] [error in charge not harmless where point at issue went to the heart of the proffered defense]).

The court properly denied defendant's motion to dismiss the indictment and order the People to resubmit the case to a new grand jury on the basis of evidence discovered after the indictment was filed. CPL 190.75 (3), upon which defendant relies, authorizes resubmission only when the grand jury has dismissed a charge. Since no charge was dismissed by the grand jury, CPL 190.75 (3) is inapplicable.

To the extent defendant argues that the People should have charged the grand jury on the assisted suicide affirmative defense, that claim is unpreserved. In his letter-motion seeking to compel the People to resubmit the case, defendant asked only that a second grand jury consider charges of manslaughter in the second degree and promoting a suicide attempt. Defendant never asked that a new grand jury be instructed on the affirmative defense of assisted suicide. We decline to reach the issue in the interest of justice because even defendant acknowledges in his appellate brief that, at the time of the grand jury presentation, his account "seemed farfetched and self-serving."

As an alternative holding, we would reject defendant's claim on the merits. Even if defendant's statement to the police could be read as supporting the assisted suicide affirmative defense, the People had no obligation to instruct the grand jury on that defense. It is well-settled that a prosecutor is not [206] required to present mitigating defenses to a grand jury (People v Harris, 98 NY2d 452, 475 [2002]; People v Valles, 62 NY2d 36, 38-39 [1984]). Whether or not a particular defense should be charged "depends upon its potential for eliminating a needless or unfounded prosecution" (Valles, 62 NY2d at 38). "Unlike exculpatory defenses, which may result in a finding of no criminal liability, mitigating defenses only reduce the gravity of the offense committed" (Harris, 98 NY2d at 475; accord Valles, 62 NY2d at 39). Here, even if defendant's statement satisfied the affirmative defense, it would not eliminate a "needless or unfounded prosecution," but instead would warrant prosecution for the manslaughter crime of assisted suicide (see Penal Law § 125.15 [3] [defining manslaughter as intentionally causing or aiding another person to commit suicide]).

In concluding that the conviction should be reversed, we recognize that the manner in which the decedent died is disturbing. But the People, at trial and on appeal, acknowledge that the decedent was looking for someone to help him end his life, and this appeal does not raise the question of whether the assisted suicide charge should have been given at all. Nor is there any support in the statutory language or case law for the People's view that the assisted suicide defense applies only to sympathetic situations. It is the role of the jury, not this Court, to determine whether defendant's or the People's version is the correct one, and whether the defense is borne out by the evidence. Because the jury's decision must be based on a proper legal instruction, a new trial is warranted.

In light of our decision to reverse the judgment, we need not reach defendant's claim that the trial court unduly limited his direct examination of the defense expert witness.

Accordingly, the judgment of the Supreme Court, New York County (Carol Berkman, J.), rendered April 4, 2011, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 20 years to life, should be reversed, on the law, and the matter remanded for a new trial.

Judgment, Supreme Court, New York County, rendered April 4, 2011, reversed, on the law, and the matter remanded for a new trial.

[1] At the charge conference, the court initially expressed some doubts about whether it should give the affirmative defense charge, but agreed to do so because "the People are really jumping up and down." Thus, the record supports the conclusion that the People fully agreed with the decision to charge the defense.

[2] The broad definition given by the court in its supplemental charge could cover conduct such as opening a bottle of pills for a terminally ill family member since such conduct would fall within the phrase "carrying out an actual process." Yet this is exactly the type of situation the People suggest the defense was intended to cover.