
    The People of the State of New York, Respondent, v Peter Herloski, Appellant.
   Judgment unanimously affirmed. Memorandum: Defendant’s claim that the defense of extreme emotional disturbance (Penal Law § 125.25 [1] [a]) violates due process guarantees has not been preserved for review. Were we to reach the merits, we would reject the claim. Defendant argues that because this "defense” is in the nature of a plea in mitigation, i.e., a plea of confession and avoidance, rather than a true defense, the effect of asserting a claim of extreme emotional disturbance is to deprive him of the right to the presumption of innocence and the right against self-incrimination, i.e., that the present statutory scheme requires a defendant in effect to confess to the crime and then to make a plea for leniency before the case is submitted to the jury. Defendant overlooks the crucial fact that the defense of extreme emotional disturbance is not constitutionally required. "Absent the affirmative defense, the crime of murder or manslaughter could legislatively be defined simply to require an intent to kill, unaffected by the spontaneity with which that intent is formed or the provocative or mitigating circumstances which should legally or morally lower the grade of crime.” (People v Patterson, 39 NY2d 288, 305, affd 432 US 197 [Breitel, Ch. J., concurring].) The defendant is not required to assert the defense of extreme emotional disturbance and may always put the People to the test of proving guilt beyond a reasonable doubt to the trier of fact without compromising in any way either the presumption of innocence or the right against self-incrimination. The statute merely allows him an option to choose to avail himself of a defense in mitigation and to make a plea for leniency. While the Legislature could establish a bifurcated trial for the purposes of separately establishing guilt and mitigation, it is not required to do so as an element of due process. In our view, the affirmative defense does not shift the burden of proof from the People (see, People v Patterson, 39 NY2d 288, supra) and the statute is not void for vagueness (see, People v Casassa, 49 NY2d 668, cert denied 449 US 842). Finally, on this record, the Trial Judge was entitled to conclude after a bench trial that defendant was guilty and failed to meet his burden of proving the affirmative defense by a preponderance of the evidence. (Appeal from judgment of Supreme Court, Onondaga County, Gorman, J. — attempted murder, second degree.) Present —Hancock, Jr., J. P., Doerr, Denman, O’Donnell and Schnepp, JJ.  