[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]).

[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).

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".