
    The People of the State of New York, Respondent, v John Kohl, Appellant.
    Argued March 24, 1988;
    decided June 7, 1988
    
      POINTS OF COUNSEL
    
      Clark J. Zimmermann for appellant.
    I. The shift of the burden of proof of insanity effected by Penal Law §40.15 violates the due process provisions of the New York State Constitution. (People v Laietta, 30 NY2d 68; People v Segal, 54 NY2d 58; People v Patterson, 39 NY2d 288; Matter of Lee v County Ct., 27 NY2d 432; People v Schiavi, 64 NY2d 704; People v Singer, 44 NY2d 241; People v Isaacson, 44 NY2d 511; People v McManus, 67 NY2d 541; Martin v Ohio, 480 US 228.) II. The trial court’s finding that appellant failed to establish insanity by a preponderance of the evidence was against the weight of the evidence as a matter of law. III. Appellant’s right to a jury trial was violated by the court’s acceptance of an incomplete form of waiver which was not predicated on an adequate showing that such waiver was knowingly and intelligently made. (People v White, 56 NY2d 110; People v Reason, 37 NY2d 351.) IV. Legal error occurred due to the failure to conduct a charge conference and to consider the lesser included offense of manslaughter, first degree. (People v Moye, 66 NY2d 887; People v Patterson, 39 NY2d 288.) V. The consecutive sentences imposed on the murder and assault convictions were unlawful under Penal Law § 70.25 (2). (People v Brathwaite, 63 NY2d 839.)
    
      Michael F. Griffith, District Attorney (Valerie Friedlander of counsel), for respondent.
    I. Penal Law § 40.15 does not violate the Due Process Clause of the New York State Constitution. (In re Winship, 397 US 358; People v Patterson, 39 NY2d 288, 432 US 197; Martin v Ohio, 480 US 228; People v Silver, 33 NY2d 475; Brotherton v People, 75 NY 159; People v Lancaster, 69 NY2d 20; People v Isaacson, 44 NY2d 511; People v Nino, 149 NY 317.) II. The court below implicitly found the verdict was not against the weight of the evidence. Therefore, there is no issue of law for this court’s review. (People v Bleakley, 69 NY2d 490; People v Wood, 12 NY2d 69; People v Robertson, 123 AD2d 795; People v Buthy, 38 AD2d 10; People v Jandelli, 118 AD2d 656; People v Bell, 64 AD2d 785.) III. There was no obligation to conduct a charge conference and consider the lesser included offense of manslaughter, first degree. (People v Harris, 109 AD2d 351; People v Chapman, 60 AD2d 584; People v Smith, 77 AD2d 712; People v Pitello, 97 AD2d 801; People v Crimmins, 36 NY2d 230; People v Vicaretti, 54 AD2d 236.) IV. Defendant’s jury trial waiver was knowing and voluntary and the trial court’s inquiry was adequate. (People v Johnson, 51 NY2d 986; People v Davidson, 123 AD2d 782; People v McQueen, 52 NY2d 1025; People v Dominy, 116 AD2d 851; People v Duchin, 16 AD2d 483; People v Logue, 115 AD2d 285; People v Basora, 111 AD2d 248.) V. Consecutive sentences were properly imposed upon defendant’s convictions for intentional murder of Peter Schütz and depraved mind murder of Matthew Schütz. (People v Underwood, 52 NY2d 882; People v Brathwaite, 63 NY2d 839.)
   OPINION OF THE COURT

Bellacosa, J.

The decisive issue is whether Penal Law § 40.15, defining New York’s affirmative defense of mental disease or defect, violates the State constitutional Due Process Clause because Penal Law § 25.00 (2) places the burden of proof by a preponderance of evidence on defendants for all affirmative defenses. We conclude that there is no State constitutional violation because placing this burden on the defendant does not relieve or transform the People’s primary and constant burden of proving, beyond a reasonable doubt, all the elements of the crimes charged, including all components of the applicable culpable mental state element. Thus, we affirm the Appellate Division order upholding the conviction.

Defendant rented a house on a dairy farm in which he resided with his girlfriend and their infant son. On May 13, 1985, Peter Schütz took his two sons, aged 2 and 3, with him to the dairy farm to deliver feed. When the delivery was completed, Schütz lifted his sons into the front seat of his truck and started to leave. Defendant came out of his house and fired shots from a .12 gauge shotgun into the front seat. The initial shots killed one son and wounded the other and Schütz. Returning to his house, defendant told his girlfriend that the man outside had sexually assaulted defendant’s children. Defendant reloaded the gun and ran out screaming, "I got to get him. He’s getting away.” Schütz had staggered to the barn where defendant stalked him, firing two more shots. Schütz was on his hands and knees pleading for his life when defendant fired two final, fatal shots, saying, "Take that, you son of a bitch.” The owner of the farm appeared and yelled, "Why, why did you do this?” Defendant said that Schütz was going to pay one of his sons to sexually assault defendant’s infant son. Before the police arrived, defendant assured his girlfriend, "They can’t hurt me. I’m from another planet.”

Defendant was charged with two counts each of intentional and depraved mind murder, second degree, and one count each of intentional and depraved mind assault, first degree. He waived his right to jury trial (CPL 320.10), and indicated that he would assert the affirmative defense of mental disease or defect (Penal Law § 40.15).

At the bench trial, the prosecution at first concentrated on the factual developments by testimony of the eyewitnesses. The defense then called the defendant’s girlfriend and his mother, who testified defendant frequently complained of severe head pains and exhibited bizarre behavior. Two psychiatrists, as experts for defendant, added that he was suffering from schizophrenia, paranoid type. The People presented two psychiatrists who, after examination of defendant, concluded he was not suffering from any mental disease or defect. Three of these psychiatrists agreed that at the time defendant fired the gun he intended to shoot his victims and that it was reasonable to conclude that defendant knew that firing a gun could kill his victims.

The trial court found defendant guilty of intentional murder of Schütz, depraved mind murder of one son, and depraved mind assault of the other son. The trial court expressly found that "each and every element of those three counts * * * have been proven beyond a reasonable doubt” and that "defendant has failed to prove by a preponderance of the evidence that he should be found not guilty because he lacked criminal responsibility by reason of mental disease or defect”.

In New York, criminal responsibility may be avoided if "as a result of mental disease or defect, [defendant] lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong” (Penal Law § 40.15). Prior to 1984, the so-called insanity defense was catalogued as a traditional defense which the prosecution bore the burden of disproving beyond a reasonable doubt, in addition to its usual burden as to all elements of the crimes charged (Penal Law § 25.00 [1]; and former § 30.05 [2]). The prosecution, of course, enjoyed the presumption that all persons are sane. Thus defendant, even under former law, bore some burden of coming forward with evidence rebutting the presumption of sanity (see, People v Silver, 33 NY2d 475, 480-481; Brotherton v People, 75 NY 159, 162-163). The presumption, however, was rebuttable: "[the] slightest creditable attack * * * even 'non-psychiatric proof alone might overcome the presumption and sustain a verdict of acquittal” (People v Silver, supra, at 481-482). In 1984, after years of intensive study and debate, the Legislature repealed Penal Law § 30.05 and substituted Penal Law § 40.15, which made mental disease or defect an "affirmative” defense (L 1984, ch 668; see also, Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 40.15, at 141-144; McQuillan, Insanity as Affirmative Defense — A Proposed Standard in New York, NYU, June 22, 1987, at 1, col 3; 1981 Report of NY Law Rev Commn, 1981 NY Legis Doc No. 65, reprinted in 1981 McKinney’s Session Laws of NY, at 2251-2293).

The United States Supreme Court has upheld several statutes placing the burden of proof for insanity on a defendant. In Leland v Oregon (343 US 790, reh denied 344 US 848), a murder conviction was challenged on the ground that requiring defendant to prove insanity beyond a reasonable doubt at the time of the murder violated due process under the 14th Amendment. The Supreme Court upheld the Oregon statute, noting that the burden of proving premeditated design — that statute’s mens rea — was on the People initially and at no time shifted to the defendant. Defendant, on the other hand, had the burden of proving insanity — a legally distinct issue. The Supreme Court gave special weight to the fact that the jury was instructed that they first had to consider whether the People had sustained their full burden, and that only if satisfied beyond a reasonable doubt of defendant’s guilt could the jury then turn to the issue of defendant’s insanity and his burden in respect to it (see also, Rivera v Delaware, 429 US 877).

In Mullaney v Wilbur (421 US 684), defendant was charged with murder under a Maine homicide statute. Defendant raised that State’s statutory affirmative defense, which placed on defendant the burden of proving "heat of passion on sudden provocation”. The jury was instructed that the "malice aforethought” component of the Maine statute was an indispensable element of the crime and that "malice” could be implied from a deliberate act committed suddenly, without provocation. Consequently, the prosecution’s burden of proving malice was satisfied by a presumption and the prosecution was never required to come forward with evidence of malice. The instruction emphasized that " 'malice aforethought and heat of passion on sudden provocation are two inconsistent things’ * * * thus by proving the latter the defendant would negate the former” (see, Mullaney v Wilbur, supra, at 686-687). The Supreme Court held that, under this statutory scheme and jury instruction, defendant’s Federal due process rights were transgressed because the prosecution could rest on a presumption of malice throughout the trial, while the defendant was required to negate that very presumption with proof that he acted under the heat of passion, thus causing defendant to disprove directly a presumed essential element of the crime charged.

Those cases were building blocks to People v Patterson (39 NY2d 288, affd 432 US 197), where we and the Supreme Court itself upheld, against a Federal constitutional due process challenge, New York’s affirmative defense of extreme emotional disturbance (Penal Law § 125.25 [1]). We analogized that affirmative defense to the Oregon statute in Leland and distinguished it from the Maine statute in Mullaney, saying: "[The] prosecution is at all times required to prove, beyond a reasonable doubt, the facts bearing [on] the defendant’s intent. That the defendant acted because of an extreme emotional disturbance does not negate intent. The influence of an extreme emotional disturbance explains the defendant’s intentional action, but does not make the action any less intentional” (39 NY2d, supra, at 302). The Supreme Court affirmed (432 US 197) and held: "This affirmative defense * * * does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion” (id., at 206-207; see also, Martin v Ohio, 480 US 228, 235, 236).

Recognizing the high hurdles impeding a successful Federal constitutional challenge, defendant asserts that the New York State Constitution should provide a more stringent due process standard than that allowed by the Supreme Court cases, and that, alternatively, New York’s presumption of sanity renders Penal Law § 40.15 unconstitutional.

In determining whether to exercise independent judgment under the New York State Constitution to provide greater protection than the due process floor set by the Supreme Court, we first look to the texts of the Constitutions. If the provision at issue differs from that of its Federal counterpart, we examine the historical basis for the distinction (People v P. J. Video, 68 NY2d 296, cert denied 479 US 1091; People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557; see also, People v Class, 67 NY2d 431, on remand from New York v Class, 475 US 106). If the rationale for the differing text is not material to the analysis, then we look further to see whether there are fundamental justice and fairness concerns of this State which are left unaddressed under prevailing Federal law and which are therefore warranted under the independent broader State protection (see, People v Alvarez, 70 NY2d 375).

Here, textual difference is not material to our analysis of Penal Law §40.15 (cf., Sharrock v Dell Buick-Cadillac, 45 NY2d 152 [noting that the State due process provision lacks express reference to a State action requirement]). As to the second tier of consideration, we are satisfied independently and on the ground that the Supreme Court rationale in the Leland, Mullaney and Patterson line of cases fully serves New York State’s interest in ensuring fundamental fairness in criminal proceedings affected by the insanity issue. We thus hold that defendant was afforded State due process because New York’s new scheme fits appropriately within sound precedents developed in cases analyzing pertinent statutory schemes under the Federal Constitution, which are also consistent with our own State’s fundamental jurisprudence, values and history in the criminal law.

Our substantive analysis begins with the axiom that in a criminal prosecution due process imposes on the prosecution the unalterable burden of proving beyond a reasonable doubt every element of the crime charged (In re Winship, 397 US 358, 364; People v Patterson, 39 NY2d 288, affd. 432 US 197, supra). Defendant argues that the 1984 amendment violates the State constitutional due process guarantee in that it, in effect, transfers to defendant the legal responsibility of establishing innocence by disproving the culpable mental state — an essential element of the crime charged. The new statute does not do that.

Both the crime-defining statute and the affirmative defense one include consideration of and the production of evidence bearing on the defendant’s mental state and processes at the time of the crime. However, the core of the People’s proof and burden on the issue of criminal culpability established that defendant, at the time he fired the shots with respect to separate victims, "intended” his act, i.e., had a "conscious objective * * * to cause [the] result or to engage in [the] conduct” (Penal Law § 15.05 [1]), and acted "recklessly”, i.e., with "aware[ness of] and consciou[s] disregard] [of] a substantial and unjustifiable risk that [the] result will occur or that [the] circumstance[s] exist” (Penal Law § 15.05 [3]). This was established by eyewitness testimony of defendant’s actions and by his statements during and shortly after the shooting. Defendant, in turn, tried to establish by way of lay and expert testimony that he was "insane”, a precise legal concept not necessarily inconsistent with the culpable mental state of legal intent or recklessness.

We must caution, however, that if one is unable to appreciate the nature and consequences of the conduct (Penal Law § 40.15), it may be difficult to support a finding, at least in some cases, that the person had "conscious objective” to kill the victim (Penal Law § 15.05 [1]; § 125.25 [1]). For this reason, in a case where the concepts defined in those sections factually overlap with one another, it may be legally impossible in a given case for such a person to form a "conscious objective” to commit the crime. Then, the affirmative defense statute suffers the potential of impermissibly shifting to defendant the burden of disproving the formation of conscious objective to kill another human being, and the statute as applied could be unconstitutional.

Thus, in a particular case, this potentiality could sow confusion and erroneous application of rules among juries with respect to the People’s burden of proving the element of intent and defendant’s burden of proving the affirmative defense of insanity (see, Martin v Ohio, 480 US 228, 236-240 [Powell, J., dissenting], supra; McQuillan, Insanity as Affirmative Defense — A Proposed Standard in New York, NYLJ, June 22, 1987, at 1, col 3). This can be reasonably safeguarded by jury instructions which should emphasize the People’s primary, ultimate, and nontransferable burden of proving all the elements of criminal intent beyond a reasonable doubt. Indeed, without transferring any burden to the defendant, the trial court should also, after the primary instructions, sequentially advise the jury that defendant bears a different burden on insanity, and that evidence of insanity relating to whether defendant knew what he was doing must be considered by the jury in its consideration of the People’s nontransferable satisfaction of its burden to prove intent beyond a reasonable doubt. In this bench trial, of course, the Trial Judge served as finder of fact, and the defendant does not argue that the court improperly intermixed the respective burdens of proof.

We note also that the presumption-of-sanity factor (see, People v Silver, 33 NY2d 475, supra) does not affect our interpretation of the new burden of proof statute for the affirmative defense so as to deprive defendant of due process. It has never relieved the People of the burden of establishing beyond a reasonable doubt defendant’s pertinent culpable mental state at the time the crime was committed, including those elements that may overlap with the affirmative defense of mental disease or defect. That was so before 1984 in Penal Law § 30.05 and it remains so afterwards in Penal Law § 40.15.

A point-by-point refutation of the dissenting opinion is not necessary save for these brief comments: The court has not shifted the burden as to any element of any crime charged; the court has not departed or wavered from fundamental principles of criminal jurisprudence either in an historical context, where there has been no such statute, or in the modern evolution and understanding of the insanity problem as it affects criminal responsibility; the court, of course, cannot accept the views of the dissenting opinion which fails to provide an analytic basis for deviating in this case from the modern and sound jurisprudence of the Supreme Court of the United States and of our own Legislature solely on independent State constitutional grounds; and we note finally that People v Schmidt (216 NY 324, 339), in full context and holding, supports the approach we have adopted in this case.

Finally, the term mental disease or defect may have diverse meanings in the field of mental health, but it is for the Legislature, not the courts, to define what constitutes legal insanity in a criminal law context and to ascribe, within constitutional limits, the proper burden of proof for this exculpatory principle (see, People v Patterson, 39 NY2d, supra, at 305-306 [Breitel, Ch. J., concurring], a,ffd 432 US 197). Similarly, it is for the Legislature to define what constitutes a crime in this State, not the judiciary. Under Penal Law § 125.25 (1), the burden on the prosecution is to prove that defendant intended to kill another human being and did kill that person or a third person. The modern statutory definition contains no explicit remnant of the common-law malice aforethought, or evil mind, and the prosecution burden is satisfied in this respect by proving that the defendant was capable of forming the conscious objective of committing the crime. On the other hand, the dissent’s argument that the concept of legal sanity is actually a merged element of the crime of murder is tantamount to saying that the Legislature is without power to define what constitutes legal insanity, and what constitutes murder. This is fundamentally contrary to well-settled criminal law principles (see, Penal Law § 1.05; People v Blanchard, 288 NY 145).

Defendant’s other points relate to issues which are either unpreserved, without merit or involve factual considerations beyond the scope of this court’s review.

Accordingly, the order of the Appellate Division should be affirmed.

Hancock, Jr., J.

(dissenting). "Crimes can only be committed by human beings who are in a condition to be responsible for their acts, and upon this general proposition the prosecutor holds the affirmative, and the burden of proof is upon him” (Brotherton v People, 75 NY 159, 162 [Church, Ch. J.]). Derived from fundamental principles in the common law and in the the early decisions of our nation’s leading courts, this rule is basic to the criminal jurisprudence of this State and, I believe, the due process of law guaranteed by the New York Constitution.

In a sharp departure from this basic rule and from the long line of precedents which have recognized and enforced it, the majority holds that legal sanity is not an essential element of the crime of murder, that sanity and murder may be defined as the Legislature chooses, and that mere "conscious objective” — without regard to the capacity to appreciate that one’s conduct is wrong — is all the mental culpability necessary to constitute the crime of murder (see, majority opn, at 200). The majority, therefore, upholds the new section 40.15 of the Penal Law which transforms insanity into an "affirmative defense” (see, Penal Law § 25.00 [2]) and, thereby, relieves the prosecution of the burden of proving a defendant’s mental competency. Under the statute, the prosecution bears no burden of persuasion on the issue whatsoever, even after the defendant has first satisfied the burden of production by raising the issue with clear and substantial evidence of mental disease or defect. In my view, such a rule contravenes fundamental principles of our system of criminal justice and, therefore, violates due process of law under the State Constitution.

Moreover, the statute in question, which the majority acknowledges may be unconstitutional in some applications, is not saved simply because the prosecution must prove the defendant’s statutorily defined "intent” — i.e., that he was conscious of what he was doing (see, Penal Law § 15.05 [1]). Mental competency, which for centuries in Anglo-American law has been essential to criminal culpability, certainly means more than that. I respectfully dissent.

I

Before the framing of our State and Federal Constitutions, it was settled Anglo-American law that if " 'a lunatic in the time of his lunacy * * * do kill a man, this is no felonious act’ ” (Moore, M’Naghten is Dead — or is it?, 3 Houston L Rev 58, 62 [quoting William Lambard of Lincolns’ Inn in 1582]; see, United States v Freeman, 357 F2d 606, 615-616 [2d Cir]). Beginning as early as the 13th century, there developed in English law the notion that the state should punish only those who were morally blameworthy. The criminal law was considered inapplicable to the insane on the ground that they were incapable of forming a criminal intent — or "guilty mind”— and, therefore, incapable of culpable behavior. Under this mens rea doctrine, insanity exculpated the defendant because of the absence of the state of mind deemed an inherent element of any criminal responsibility (see, Slovenko, The Insanity Defense in the Wake of the Hinckley Trial, 14 Rutgers LJ, 373, 382; Fritz, The Proposed Federal Insanity Defense: Should the Quality of Mercy Suffer for the Sake of Safety?, 22 Am Crim L Rev 49, 50-52).

The most influential commentators of the common law stated the ancient rule succinctly when they defined criminality. "An unwarrantable act without a vicious will”, wrote Blackstone, "is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will” (4 Blackstone, Commentaries, at 21). His definition mirrored that of Coke who stated that murder could be committed only by "a person of sound memory and discrimination”. This was a principle so basic that it formed the introduction to Coke’s seminal treatment of felonies (see, 3 Coke, Institutes of Laws of England 47, 56 [Coke used the Latin phrase "actus non facit reum nisi mens sit rea”, meaning an act does not make one guilty unless his mind is guilty]; see also, Stokes v People, 53 NY 164, 179).

This compound concept of criminality took deep root in early American law. Our substantive law of crimes was based on a theory of punishing only "free agent[s] confronted with a choice between doing right and doing wrong and choosing freely to do wrong” (Pound, Introduction to Sayre, Cases on Criminal Law [1927]; see, Morissette v United States, 342 US 246, 250-252). Leading state courts in this country early affirmed the common-law rule, stating in various terms that "[s]anity is an ingredient in crime as essential as the overt act, and if sanity is wanting there can be no crime” (Chase v People, 40 Ill 352, 358; see also, e.g., Commonwealth v Rogers, 7 Metc [Mass] 500, 504; People v Garbutt, 17 Mich 9, 22).

The same principle was recognized in this State. Our earliest statute on the subject declared that "[n]o act done by a person in a state of insanity can be punished as an offence” (Rev Stat of 1828, part IV, ch 1, tit 7, § 2). Applying the principle thus codified, the courts of this State regarded it as the "settled law” of New York on the question of "responsibility for criminal acts [emphasis added]”, the "correctness of [which] cannot be questioned” (Flanagan v People, 52 NY 467, 469; Willis v People, 32 NY 715, 719; see also, Walker v People, 88 NY 81, 88; Brotherton v People, 75 NY 159, 162, supra; Freeman v People, 4 Denio 9, and cases cited therein). As we explained in Willis: if a "person was under a delusion, and did not know right from wrong, or that the act was an offense or was wrong, he was insane, and was not responsible for the act” — his conduct was simply not criminal (32 NY, supra, at 719; see also, Brotherton v People, supra, at 162; McKee v People, 36 NY 112, 115; People v McCann, 16 NY 58, 66).

When the criminal laws of this State were revised in the Penal Code of 1881, this rule was explicitly incorporated. While codifying the test for legal insanity from M’Naghten’s Case (10 Clark & Fin 200, 8 Eng Rep 718), the statute provided in unqualified terms that "[a]n act done by a person who is an idiot, imbecile, lunatic or insane, is not a crime [emphasis added]” (Penal Code of 1881 § 20). This provision was retained in the Penal Law of 1909 verbatim (§ 1120) and, when the Penal Law was revised in 1965, the principle was preserved in the corresponding provision which declared that an insane person, within the meaning of the statute, was "not criminally responsible for [his] conduct” (§ 30.05; L 1965, ch 1030). The current statute (Penal Law § 40.15; L 1984, ch 668) employs similar terminology — i.e., "lack of criminal responsibility”. Throughout this period, our court has never wavered in its adherence to the underlying principle thus reflected in our statutes and firmly established in our earliest case law, that mental competency is an essential ingredient of a criminal offense (see, e.g., People v Silver, 33 NY2d 475, 478-479; People v Schmidt, 216 NY 324, 339-340; O’Connell v People, 87 NY 377, 380; Walker v People, 88 NY 81, 88, supra).

The substantive criminal law of New York, as in most American jurisdictions (see, 21 Am Jur 2d, Criminal Law, §§ 46, 48), has historically treated insanity as something quite different from other, ordinary defenses. Rather than an excuse or justification for an otherwise felonious act, the insanity defense is considered to render the actor himself inculpable or unresponsible because of his inability to make a knowing, rational choice (see, Arenella, Reflections on the Current Pro posals to Abolish or Reform the Insanity Defense, 8 Am JL & Med 271, 273; 1 LaFave & Scott, Substantive Criminal Law § 4.1 [a], [b]). For centuries now in Anglo-American jurisprudence, insanity has been recognized as the absence of one of the two fundamental elements of criminal responsibility: the mental state which renders the act culpable (see, Slovenko, The Insanity Defense, op. cit., at 375).

II

Consistent with this basic principle that there can be no crime without a sane mind, the burden of proof on the issue of mental competency must be borne by the state. The "guilty mind”, no less than the act committed, is essential to criminality. Unless it is established by the People whenever sufficiently put into issue by the defendant, it cannot be said that every element of the crime charged has been proven beyond a reasonable doubt. This is not merely abstract theory. It is a realistic conclusion supported by considerations of fairness as well as logic; it has been recognized traditionally by most of the high State and Federal courts, including our own court which, until today, has never wavered since it first decided the issue.

In People v McCann (supra), this court unanimously rejected a trial court’s charge to the jury which placed upon the defendant the burden of proving his insanity beyond a reasonable doubt. While the court apparently did not decide whether the burden had to be borne by the prosecution, Justice Brown, in a concurring opinion, wholly unexcepted to by the other members of the court, reviewed "the just and humane principles of the common law” and concluded that "[sjound memory and discretion * * * are essential elements of the crime, to be established upon the trial as a part of the case of the prosecution” (id., at 64, 67). Justice Brown set forth his position with reasons which were ultimately adopted by the entire court and had significant influence on other jurisdictions as well. "If there be a doubt about the act of killing”, he wrote, "all will concede that the prisoner is entitled to the benefit of it; and if there be any doubt about the will, the faculty of the prisoner to discern between right and wrong, why should he be deprived of the benefit of it, when both the act and the will are necessary to make out the crime? * * * [S]uch doubts and uncertainties shall be removed before there can be a conviction” (16 NY, supra, at 67).

In Brotherton v People (75 NY 159, 162-163, supra), the court was directly confronted with the issue and resolved it unanimously as Justice Brown had argued. The rule was reaffirmed shortly thereafter in O’Connell v People (87 NY 377, 380, supra) and Walker v People (88 NY 81, 88, supra). This court has never since questioned the validity of that rule or its underlying propositions: "the guilt of the prisoner depend[s] upon two questions, viz., whether he committed the act charged, and whether he was in such condition of mind as to be responsible; * * * the burden of proof as to both, [is] upon the prosecution” (88 NY, supra, at 88).

In 1895, when the United States Supreme Court first addressed the issue, it adopted the New York position as a matter of Federal law (Davis v United States, 160 US 469). Expressly relying on the opinions in early New York cases, the Supreme Court asked: "How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?” (Emphasis added.) (160 US, supra, at 488.) The court, speaking through Justice Harlan, Sr., answered without equivocation: it "cannot be” (id.).

The court concluded by addressing the concern that the insanity defense might sometimes be sustained only because difficult to disprove. "But the possibility of such results”, the court said, "must always attend any system devised to ascertain and punish crime, and ought not to induce the courts to depart from the principles fundamental in criminal law, and the recognition and enforcement of which are demanded by every consideration of humanity and justice [emphasis added]” (160 US, supra, at 493).

It is difficult, at best, to reconcile this language with the Supreme Court’s recent retrenchment from the Davis rule (see, e.g., Martin v Ohio, 480 US 228, 235-236; Rivera v Delaware, 429 US 877). The court’s grounding of its Davis holding squarely on "principles fundamental”, "humanity”, and "justice” seems, in all candor, wholly at odds with that court’s current interpretation of this earlier precedent as having stated a mere rule of practice devoid of constitutional implications (see, Rivera v Delaware, supra, at 879 [Brennan, J., dissenting]; Patterson v New York, 432 US 197, 203). In my view, our court ought not to follow suit.

For reasons of both principle and precedent, we have, until today, steadfastly adhered to our long-settled and well-considered view (see, People v Silver, 33 NY2d 475, 479, 483, supra; People v Kelly, 302 NY 512, 517; People v Egnor, 175 NY 419, 428). We have done so, moreover, regardless of the statutory language in which the insanity defense was couched. When our statute was silent on the issue (Rev Stat of 1828, part IV, ch 1, tit 7, § 2), we relied on the elementary propositions underlying the common-law mens rea doctrine to hold that the burden must be placed on the prosecution (see, Brotherton v People, supra, at 162-163). When the statute was changed to provide that "[a] person is not excused from criminal liability” as an insane person "except upon proof’ that he was insane (Penal Code of 1881 § 21; Penal Code of 1909 § 1120), this court construed the provision consistent with the reasoning in our earlier decisions. We explained that the legal presumption of sanity required a defendant to interpose the issue in the first instance by presenting "clear and substantial evidence of insanity”, but that, thereafter, the burden of proof remained with the prosecution (Walker v People, supra, at 90; O’Connell v People, supra, at 380; People v Schmidt, supra, at 342; People v Taylor, 138 NY 398, 406-407). Our construction of these earlier statutes was expressly codified when the Penal Code was revised in 1965 (§ 30.05; L 1965, ch 1030).

Not until the enactment, in 1984, of the statute here in question, did the written or decisional law of this State provide otherwise. The statute flatly contravenes the well-established jurisprudence of New York and, I believe, basic tenets of constitutionally protected due process. We should reject it.

III

This court’s decision in People v Patterson (39 NY2d 288, affd 432 US 197) does not support a different conclusion. In that case, we upheld the statutory provision making “extreme emotional disturbance” an affirmative defense to be proven by the defendant by a preponderance of the evidence (Penal Law § 125.25 [1] [a]; § 25.00 [2]). Writing for the majority, Judge Jasen explained that the prosecution must still “prove, beyond a reasonable doubt, the facts bearing [on] the defendant’s intent”; but “extreme emotional disturbance does not negate intent” (39 NY2d, supra, at 302). The purpose of that affirmative defense, he continued, "is to permit the defendant to show that his actions were caused by a mental infirmity not rising to the level of insanity, and that he is less culpable for having committed them” (emphasis added) (id.). That is a far cry from insanity, which does negate intent and thus renders the defendant entirely nonculpable for his actions.

In affirming our decision in Patterson, the Supreme Court articulated a due process test which we had not applied and which we have never embraced. That court said that due process merely requires the prosecution to prove "the elements included in the definition” (emphasis added) of the crime charged (432 US, supra, at 210). As the dissenting Justices noted, this test would permit a shifting of the burden of proof with respect to virtually any factor in a criminal case, so long as “any references to the factor be confined to those [statutory] sections that provide for an affirmative defense” (432 US, supra, at 223 [Powell, J., dissenting]). That is just what the Supreme Court has permitted in subsequent decisions (see, e.g., Martin v Ohio, 480 US 228, 236-242, supra [Powell, J., dissenting] [justification; contrast with, People v McManus, 67 NY2d 541]; McMillan v Pennsylvania, 477 US 79, 96 [Stevens, J., dissenting] [visible possession of a firearm]; Rivera v Delaware, 429 US 877, 880 [Brennan, J., dissenting] [insanity], supra).

By sharp contrast to the Supreme Court’s majority holding, the opinion of our court in Patterson had reaffirmed the rule that the burden is on the prosecution to establish the defendant’s criminal "design to effect death” in a murder case, even though the statutory definition of that crime only requires that the killing be intentional — i.e., that it be committed with a mere "conscious objective” (People v Patterson, supra, at 299, 302; Penal Law § 125.25 [1]; § 15.05 [1]). Critical to our decision in Patterson was the principle that there could be no shifting to the defendant of the burden of proof on any essential element of the crime or of criminal responsibility itself (39 NY2d, supra, at 301-302). We have not since, until today, permitted it.

Moreover, the majority of this court goes beyond what the Supreme Court has ever approved. That court has always insisted that the burden remain on the prosecution to prove any essential element of the crime charged, and that a shifting of the burden to the defendant with regard to any such element would violate due process (see, e.g., Martin v Ohio, 480 US, at 231-234, supra; Patterson v New York, 432 US, supra, at 210; Mullaney v Wilbur, 421 US 684, 698-699; Leland v Oregon, 343 US 790, 795). Even when the Supreme Court has upheld affirmative defenses relating to the defendant’s mental state, it has been sure to point out that the state, in each of those cases, did not relieve the prosecution of proving, beyond a reasonable doubt, certain elements necessary to mental responsibility. Hence, in Patterson (432 US, at 206, quoting 39 NY2d, at 302, supra), the court quoted approvingly from the opinion of our court that the burden had not been shifted to the defendant to prove " 'a mental infirmity * * * arising to the level of insanity’ ”. In Leland v Oregon (343 US, supra, at 794), the court emphasized that the state statute required the prosecution to prove "premeditation, deliberation, malice and intent”. Recently, in Martin v Ohio (480 US, at 231-234, supra), it noted that, though the state had made self-defense an affirmative defense, the prosecution still had the burden of proving "specific purpose and intent to cause * * * death [and] prior calculation and design” (cf., Mullaney v Wilbur, 421 US 684, 686, supra [even though the statute required the prosecution to prove that homicide was "both intentional and unlawful”, due process was violated because "malice aforethought” was presumed and the burden of disproving it was on the defendant]).

The statute upheld today relieves the prosecution of the burden of proving any mental state other than "conscious objective”. Neither malice, deliberation, specific purpose, nor any other culpable mentality need be demonstrated to obtain a murder conviction. Instead, the statute places the burden of disproving any such culpability on the defendant. On the one hand, Penal Law § 40.15 explicitly recognizes that there can be no "criminal responsibility” without substantial capacity to appreciate the nature of one’s conduct and that such conduct was wrong. On the other hand, it places the burden of proof on that critical issue entirely on the defendant. The prosecution thus bears no burden of proof on an element essential to criminality itself, let alone to the specific crime of murder. This, in my view, is abhorrent to principles grounded in the traditions and conscience of this State and its law (cf., Martin v Ohio, 480 US, at 241-244 [Powell, J., dissenting], supra).

IV

Let there be no mistake. The present statute, by making insanity an affirmative defense and, thereby, shifting the burden of proof on that issue to the defendant (Penal Law § 25.00 [2]), cannot be cured merely by holding that the People must still prove a defendant’s awareness of his actions. That is hardly the mental competency essential to criminal responsibility. Indeed, it adds nothing to the current statutory definition of "intentionally” — i.e., with a "conscious objective” (Penal Law § 15.05 [1]) — which is clearly not the equivalent of the mental condition necessary for criminal culpability.

At the very least, mental responsibility in criminal law, however phrased in our cases and statutes (including the present one), has always required the capacity to appreciate that one’s conduct is wrong (see, People v Taylor, 138 NY 398, 407, supra; Flanagan v People, 52 NY 467, 469, supra; compare, Penal Law § 40.15, with Penal Code of 1881 § 21). This very point was underscored by our unanimous court in People v Schmidt (216 NY 324, 339, supra). Speaking through then Judge Cardozo, we disapproved the trial judge’s instruction that, regardless of the defendant’s delusions, he could still be found mentally competent if he knew what he was doing and knew that his conduct was prohibited by law (id., at 330). As Cardozo explained in an illustration particularly apropros to the present case: "A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong” (id., at 339; see also, People v Nino, 149 NY 317, 323-324; Willis v People, 32 NY 715, 718, supra). To hold that such a person was "responsible for the crime”, our court concluded, would be "abhorrent” (id., at 339).

Here, the evidence of insane delusions, as we explained in Schmidt and elsewhere, was probative of defendant’s lack of capacity to understand the wrongful nature of his conduct and, therefore, his lack of culpability under our criminal law. The resolution of this issue, not simply whether defendant was conscious of what he was doing, is essential to a finding of criminal responsibility under inviolable principles of due process in New York. The burden of proof on this issue, consistent with these principles, ought to remain with the prosecution.

Finally, when interpreting State law, this court , need not excuse its differences with the Supreme Court’s interpretation of corresponding Federal law. The guarantees of the Federal Constitution, as construed by the Supreme Court, represent only the minimum level of individual rights which no state may disregard. The protections provided by the New York Constitution may well be broader, and this court need not depend on textual distinctions or peculiarities of history or original legislative intention to decide that this is so (see, Cooper v Morin, 49 NY2d 69, 79; Linde, E Pluribus — Constitutional Theory and State Courts, 18 Ga L Rev 165, 176, 181). We must honor our independent duty to render a sound analysis of our own law, giving due consideration, of course, to all the relevant factors such as history, policy, logic and text (see, e.g., People v P. J. Video, 68 NY2d 296, 302-303).

When the Supreme Court has addressed an issue under Federal law, we may, of course, find that its decision provides the level of protection guaranteed by our State Constitution. On the other hand, we may disagree with the reasoning of the Supreme Court majority or conclude that the minimal guarantees of the Federal Constitution, as interpreted by them, simply do not satisfy the requirements of our State law. Finally, there may be occasions when the analysis and the position set forth by the dissenters at the Supreme Court fully comport with the basic principles inherent in our State Constitution.

This is the situation here. The current majority of the Supreme Court has embraced a rule (explicitly adopted — and, in my view, extended — today by the majority of this court) which is a complete reversal of the court’s earlier position in Davis v United States (160 US 469, supra). That decision was fully in accord with, and indeed, heavily influenced by the decisions of this court (see, Davis v United States, supra, at 488-489, citing People v McCann, 16 NY 58, supra; Brotherton v People, 75 NY 159, supra; O’Connell v People, 87 NY 377, supra; and Walker v People, 88 NY 81, supra). The established New York rule, enunciated in those early decisions but now abandoned by the majority of this court, embodies the historic common-law principle inherent in the criminal due process guaranteed in our State Constitution: the People must prove each and every element of the crime beyond a reasonable doubt, including, when defendant’s mental capacity has fairly been placed in issue, his ability, not merely to know what he was doing, but to appreciate that what he was doing was wrong.

Nowhere is the rule more clearly expressed then by Justice Harlan, Sr., in Davis v United States (160 US, supra, at 488): "As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts. How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?”

Accordingly, I would reverse the order of the Appellate Division, invalidate the statutory provision making insanity an affirmative defense, and remit for a new trial.

Chief Judge Wachtler and Judges Simons, Alexander and Titone concur with Judge Bellacosa; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judge Kaye concurs.

Order affirmed. 
      
      . Although the Supreme Court has not addressed the issue in a case directly presenting it, the court has nevertheless dismissed an appeal that raised the identical issue for want of substantial Federal question (Rivera v Delaware, 429 US 877), and has subsequently been explicit, albeit in dicta, that the Federal Constitution does not require that the burden of proof be on the prosecution (Martin v Ohio, 480 US 228, 236; but see, id., at 236-242 [Powell, J., dissenting]; Rivera v Delaware, supra, at 877 [Brennan, J., dissenting]). Hence, our court must consider the issue to be resolved as a matter of Federal law. For reasons which follow, however, I strongly believe that the issue should be decided differently under our State Constitution. Moreover, I believe that the majority of this court goes even further than the Supreme Court has ever permitted under the Federal Constitution (see, infra).
      
     
      
      . The legislative history reveals that the new statute was expected to operate within a procedural scheme consistent with the basic principles enunciated in our prior cases.
      The existing statute was characterized as "plac[ing] no burden on the one party most able to produce evidence of the defendant’s state of mind — the defendant himself.” The new statute was believed to change the adjudication of the insanity issue, as follows: "a defendant who contends that he was not responsible for his actions has the initial burden of proving his contention by a preponderance of the evidence. If the defendant meets that burden, the People must disprove the defense beyond a reasonable doubt. As a result, genuine claims of lack of criminal responsibility will be fully and fairly litigated, and specious claims will be discouraged.” (Emphasis added.) (Executive Mem of approval, L 1984, ch 668, 1984 McKinney’s Session Laws of NY, at 3626.)
      If the insanity defense were actually to operate in such a manner, the statute would not suffer what I perceive to be its fundamental due process infirmity. The burden of production on the issue would be on the defendant and, if that burden of proof were first met, the burden of persuasion would have to be satisfied by the prosecution. But Penal Law § 40.15 specifically makes insanity an "affirmative defense”. Thus, the entire burden of proof, both production and persuasion, is placed on the defendant; it never shifts to the prosecution (compare, Penal Law § 25.00 [1] [defense], with §25.00 [2] [affirmative defense]).
     