
    The People of the State of New York, Appellant, v Rafael Amengual, Respondent.
   Appeal by the People from an order of the County Court, Rockland County, dated March 1, 1976, which (1) vacated a judgment of conviction rendered October 16, 1973, following defendant’s conviction of murder, upon a jury verdict, and (2) ordered a new trial. Order reversed, on the law, and judgment of conviction reinstated. The constitutional issue raised on this appeal relates to the alleged denial of due process resulting from the trial court’s charge of section 125.25 (subd 1, par [a]) of the Penal Law, which makes a claim in a murder prosecution that the killing was committed under the influence of extreme emotional disturbance an affirmative defense, pursuant to subdivision 2 of section 25.00 of the Penal Law. Such provisions are constitutional (People v Patterson, 39 NY2d 288; People v Donovan, 53 AD2d 27, 30; People ex rel. Haymes v Smith, 52 AD2d 755). People v Davis (49 AD2d 437), upon which the Trial Judge relied, was decided prior to the decision in People v Patterson (supra). Accordingly, defendant’s conviction did not violate his constitutional rights (see People v Dorta, 56 AD2d 607). Hopkins, Acting P. J., Martuscello, Latham, Rabin and Hawkins, JJ., concur.  