
    The People of the State of New York, Respondent, v Willis Moye, Appellant.
    Argued October 17, 1985;
    decided November 21, 1985
    
      APPEARANCES OF COUNSEL
    
      Philip L. Weinstein and William E. Hellerstein for appellant.
    
      Elizabeth Holtzman, District Attorney (Brian D. Foley and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

At defendant’s murder trial, the People introduced evidence that the victim, Gloria Blocken, had died in the early morning of November 21, 1979 as a result of decapitation and evisceration. Her headless torso was found wrapped in rags in the bathtub of her apartment, and a fire had been set in a nearby closet. Her head was found in a pillowcase in an adjacent backyard. A medical examiner testified that at the time of her death, Blocken’s blood alcohol level was .25%.

One month later, Detective Martin Mak interviewed defendant, who admitted that he had killed Blocken. According to Mak’s testimony at trial, defendant said that he thought he was a homosexual because he had difficulty having sexual relations with women, and his friend advised him "that if anybody can get you an erection, it would be Gloria Blocken.” Defendant and his friend went to Blocken’s apartment but left after a time, and defendant later returned there alone and attempted to have sexual intercourse with her. When he was unable to do so, she began laughing at him. Although he asked her to stop, she refused. He then slashed her across the chest with his knife. "She fell, and * * * [defendant] said he went over and cut her head off. He said: I just went crazy and cut her head off. And then he said: I kept slashing and slashing and slashing.” After Detective Mak placed him under arrest, defendant said, "I need help. I would like to have some help.”

Later the same day, defendant gave a statement to an Assistant District Attorney, which was transcribed and read into the record at trial. Defendant told him that, after drinking, he attempted to have sexual intercourse with the victim. When he was unable to do so, she started poking at him, saying "go on little boy. I don’t need you.” Defendant "got mad,” cut her on the breast and throat, and then started cutting her up. After decapitating her, he moved her body to the bathtub, set a fire in a closet next to the bathroom, and left the apartment by a fire escape carrying her head. He threw the head into a nearby backyard and went home. When asked whether he had ever been impotent before, defendant responded, "When I’m drinking.” However, according to defendant, no woman had ever laughed at him as Blocken had. "[S]eems like something snapped inside me, you know, bananas.”

After both sides rested, defendant asked the court to charge extreme emotional disturbance (Penal Law § 125.25 [1] [a]) and intoxication (Penal Law § 15.25), but both requests were rejected on the ground that the evidence introduced was insufficient to justify submission of those issues to the jury. The Appellate Division affirmed defendant’s conviction of second degree murder. The only issue before us is whether there was sufficient evidence to warrant submission of the defense of extreme emotional disturbance to the jury for its determination.

Where the issue on appeal is whether a particular defense should have been charged to the jury, the evidence is viewed in the light most favorable to the defendant (People v Farnsworth, 65 NY2d 734). For the defendant to be entitled to a charge on extreme emotional disturbance, sufficient evidence must be presented for the jury to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied (People v Walker, 64 NY2d 741; see also, People v Cable, 96 AD2d 251, 260-261, revd on other grounds 63 NY2d 270, 282). The defense requires proof of both a subjective element (that defendant did in fact act under the influence of extreme emotional disturbance) and an objective element (that there was reasonable explanation or excuse for the emotional disturbance). The determination whether there was reasonable excuse or explanation for the disturbance must 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 NY2d 668, 679; see also, ALI Model Penal Code § 210.3.) Psychiatric evidence is not necessary to establish the defense (see, Matter of Lee v County Ct., 27 NY2d 432, 442).

Defendant’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 she mocked and taunted him, that he went "bananas” and he needed help, were evidence of a loss of self-control associated with the defense of extreme emotional disturbance (see, People v Walker, 64 NY2d 741, 743, supra). Furthermore, there was sufficient evidence for submission to the jury — which a rational jury might have accepted or rejected — of an explanation or excuse for defendant’s emotional state, in his recounting of the victim’s continued ridicule and taunting about his impotence. In these circumstances, defendant’s request for the charge of extreme emotional disturbance should have been granted so that the jury might weigh the evidence presented as to both the subjective and objective elements of the defense, and the failure to do so requires a new trial.

In view of our decision ordering a new trial, we need not reach defendant’s contention that on the evidence presented at his first trial he was entitled to a jury instruction on intoxication.

Jasen, J.

(dissenting). The question presented upon this appeal is whether the trial court erred, as a matter of law, in finding that defendant had not set forth sufficient credible evidence to warrant a jury charge as to the affirmative defense of extreme emotional disturbance. The view of the majority, that submission of irreconcilably conflicting evidence of extreme emotional disturbance discharges defendant’s burden of proof and compels a charge of the defense of extreme emotional disturbance, blurs the distinction embodied in statute between affirmative and other defenses, and impermissibly reduces defendant’s burden of proof and persuasion. Accordingly, I respectfully dissent.

While the Model Penal Code would, as a matter of policy, place the burden of proving the nonexistence of most affirmative defenses, including extreme emotional disturbance, upon the prosecution once the defendant has come forward with some evidence that the defense is present, New York has specifically rejected this view. New York has classified the defense of extreme emotional disturbance as an affirmative defense (Penal Law § 125.25 [1]), thus placing upon the defendant the "burden of establishing such a defense by a preponderance of the evidence” (Penal Law § 25.00 [2]). Use of the phrase "burden of establishing” makes it clear, because it could have no other meaning, that the defendant carries both the burdens of going forward with the evidence and ultimate persuasion. (People v Laietta, 30 NY2d 68, 74, cert denied 407 US 923.) The placing of the burden of proof upon defendant is fair because of defendant’s unique knowledge or access to the evidence tending to show his mental state. The burden of proof, and the risk of nonpersuasion, rests squarely upon defendant.

In my view, there must be a threshold determination by the trial court whether defendant has set forth sufficient credible evidence from which a jury may find, by a preponderance of the evidence, that the elements of the affirmative defense have been satisfied. This burden is not satisfied by submitting some evidence that the defense exists, but, as noted by the Supreme Court, facts making out the defense must be established by the defendant with "sufficient certainty” before the affirmative defense may be charged. (Patterson v New York, 432 US 197, 207, affg 39 NY2d 288.) In this case, defendant sought the charge of extreme emotional disturbance, not upon psychiatric testimony, as is the custom (see, e.g., People v Casassa, 49 NY2d 668, 674), but upon self-serving, conflicting statements from which a likelihood of rationality could well have been inferred by the trial court. The submission of irreconcilably conflicting evidence to the jury "would have invited the jury to impermissibly speculate as to the defendant’s state of mind” at the time of the murder. (People v Walker, 64 NY2d 741, 743.)

In view of the conflicting and unreliable nature of the evidence advanced by defendant in support of his affirmative defense, and recognizing that defendant’s volitional conduct precipitated the murder, defendant has failed to establish a credible basis from which a jury could rationally conclude that the elements of the affirmative defense of extreme emotional disturbance were present. Inasmuch as the two statements relied upon by defendant were "conclusory and patently ambiguous”, defendant was required to come forward with psychiatric or other evidence in order to satisfy the elements of the affirmative defense. (People v P. J. Video, 65 NY2d 566, 571, cert granted — US —, 106 S Ct 244 [Oct. 21, 1985].) Absent such clarification, I cannot accept the view, advanced by the majority today, that the trial court erred, as a matter of law, in refusing to charge the jury the affirmative defense of extreme emotional disturbance, and would, therefore, affirm the order of the Appellate Division.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur in memorandum; Judge Jasen dissents and votes to affirm in an opinion.

Order reversed, etc. 
      
       In 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. Here this threshold requirement was met. 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 (dissent, at p 892, n 2).
     
      
      . Compare, Penal Law § 25.00 (1), which provides that where a "defense” is raised at trial, the People have the burden of disproving such defense beyond a reasonable doubt.
     
      
      . Defendant’s statements to authorities represented the sole evidence advanced by defendant in support of his contention that he committed murder while in a state of extreme emotional disturbance. In one statement, defendant claimed that the victim became mad at him for his failure to obtain an erection, and in the other statement, indicated that the victim laughed at his impotency. Defendant’s statements were further inconsistent as in one instance defendant claimed the victim initiated contact with him with his carving knife, and in the other statement, he indicated that he reached into his coat, withdrew the knife, and began slashing the victim.
      Not only were defendant’s statements inconsistent, they tended to demonstrate rationality. By noting that he visited the victim’s apartment at about "4 or 5 o’clock”, remained there until 7 o’clock, and then walked a quarter of a mile away with a companion, defendant demonstrated an awareness of time and distance. Defendant attempted to conceal the victim’s identity by separating the head from the body, and disposing of the head. Defendant attempted to conceal his crime by wrapping the victim’s body in rags, placing it in the bathtub, and setting fire to a neighboring closet. Defendant’s conduct could well have been viewed as volitional, deliberate and calculated.
      In theory, the affirmative defense permits a defendant to establish that his criminal conduct was caused by circumstances beyond his control. (Comment, Affirmative Defenses Under New York’s New Penal Law, 19 Syracuse L Rev 44, 45.) In this case, defendant knew that he could not engage in sexual intercourse when drinking, yet he drank for a number of hours before attempting relations with his victim. The record does not indicate the reason why defendant was in possession of a carving knife, the murder weapon, during his second visit to the victim’s apartment, nor at what time defendant came into possession of the murder weapon.
     
      
      . The majority notes that it was for the jury to "resolve inconsistencies in testimony” (majority mem, at p 890, n). Defendant did not testify at trial as to his mental state at the time he committed the murder. Detective Mak and an Assistant District Attorney recounted their conversations with defendant, and defendant simply relied upon the indirect and secondhand evidence supplied by these two individuals in support of his affirmative defense. Under these circumstances, any attempt by the jury to resolve inconsistencies between defendant’s statements would have been based upon sheer speculation.
     