
    The People of the State of New York, Respondent, v Gordon G. Patterson, Appellant.
    Argued January 15, 1976;
    decided April 1, 1976
    
      
      Betty D. Friedlander and Victor J. Rubino for appellant.
    I. The conviction should be reversed because the trial court applied an erroneous legal standard in allowing into evidence privileged communications between defendant and his wife which bore directly on the key issue of defendant’s state of mind at the time of the crime. (People v Wood, 126 NY 249; People v McCormack, 278 App Div 191; People v Daghita, 299 NY 194; People v Oyola, 6 NY2d 259; Merlin v Aetna Life Ins. Co., 180 F Supp 90; Wolfle v United States, 291 US 7; People v Melski, 10 NY2d 78; People v Dudley, 24 NY2d 410; People v Fields, 38 AD2d 231.) II. Defendant was deprived of a fair trial pursuant to his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution by the acts and statements of the prosecutor with regard to a psychiatrist hired by him to examine defendant with respect to defendant’s state of mind at the time of the shooting. (Giles v Maryland, 386 US 66; Ashley v State of Texas, 319 F2d 80; United States v Kelly, 420 F2d 26; United States v Kahn, 472 F2d 272; People v Jackson, 7 NY2d 142; People v Tassiello, 300 NY 425; People v Lovello, 1 NY2d 436; People v Behling, 26 NY2d 651; Berger v United States, 295 US 78; People v Crimmins, 41 AD2d 933.) III. The conviction for murder is insufficient as a matter of law where the record shows unequivocally that both the defense and prosecution expert witnesses were of the opinion that defendant was acting under the influence of extreme emotional disturbance at the time of the shooting. (Finn v Cassidy, 165 NY 584; Matter of Henry, 3 NY2d 258; People v Lee, 29 AD2d 837; People v Higgins, 5 NY2d 607; People v Silver, 33 NY2d 475; People v Tobin, 176 NY 278; Brotherton v People, 75 NY 159; People v Ledwon, 153 NY 10.) IV. It constitutes reversible error for the Trial Judge to repeatedly refer to defendant’s postshooting statement as a confession when it was conceded that this was an issue for the jury. (People v Bretagna, 298 NY 323; Jackson v Denno, 378 US 368; People v Doria, 281 App Div 918; People v Rhodes, 283 App Div 804; People v Thomas, 283 App Div 995.) V. The Trial Judge committed reversible error by refusing to submit the crime of manslaughter, second degree, to the jury even though there was evidence in the record of an unintentional crime. (People v Battle, 22 NY2d 323; People v Asan, 22 NY2d 526; People v Flack, 125 NY 324; People v Usher, 39 AD2d 459, 34 NY2d 600.) VI. The United States Supreme Court case of Mullaney v Wilbur requires reversal of this conviction and declaring unconstitutional section 125.25 (subd 1) of the New York Penal Law requiring defendant to bear the burden of proof of the affirmative defense to murder that he acted "under the influence of extreme emotional disturbance”. 
      (Ivan V. v City of New York; 407 US 203; People v McQueen, 18 NY2d 337; Mapp v Ohio, 367 US 643; Desist v United States, 394 US 244.)
    
      John M. Finnerty, District Attorney, for respondent.
    I. The testimony of defendant’s wife was admissible. (People v Dudley, 24 NY2d 410; People v Fields, 38 AD2d 231, 31 NY2d 713; People v Melski, 10 NY2d 78; People v McCormack, 278 App Div 191; Poppe v Poppe, 3 NY2d 312; People v Daghita, 299 NY 194.) II. The testimony of the psychiatrist does not require reversal. (People v Silver, 33 NY2d 475; People v Solari, 43 AD2d 610, 35 NY2d 876.) III. The court did not err in refusing to charge the crime of manslaughter, second degree. (People v Wall, 34 AD2d 215, 29 NY2d 863; People v Valle, 15 NY2d 682; People v Hille, 42 AD2d 881; People v Jones, 27 NY2d 222.) IV. The charge of the court concerning the statement made by defendant to the police was proper. V. Reversal is not mandated by Mullaney v Wilbur. (People v Laietta, 30 NY2d 68; Leland v Oregon, 343 US 790; Matter of Finnerty v McDowell, 36 AD2d 900.)
   Jasen, J.

The principal issue on this appeal is whether, in a murder prosecution, constitutional due process limitations are invaded by placing the burden of persuasion on a defendant with respect to the defense of acting "under the influence of extreme emotional disturbance” in order to reduce the homicide to the less culpable crime of manslaughter in the first degree.

The defendant, Gordon Patterson, and his wife, Roberta, had a highly unstable marital relationship, marked by recurring verbal arguments and physical assaults. As a result of one such incident, Roberta Patterson left her husband and instituted divorce proceedings. She also resumed dating John Northrup, a neighbor to whom she had been engaged prior to her marriage to the defendant. On December 27, 1970, the defendant, carrying a borrowed rifle, went to his father-in-law’s residence and observed his wife in a state of semiundress in John Northrup’s presence. Thereupon, he entered the house and shot Northrup twice in the head, killing him. The defendant confessed to the killing and, after a hearing, the confession was held voluntary and was admitted into evidence against him at trial. Defendant’s wife, an eyewitness to the crime, testified, over objection of defense counsel, that defendant fired two shots at the victim from close range. The defense called 11 witnesses, including the defendant, who testified in great detail as to the defendant’s life and particularly that period of his life when he was married to Roberta Patterson. The defense at the trial was that the crime, if there was one, was unintentional. This was based on defendant’s version of events to the effect that the gun went off accidentally. Defendant also raised the affirmative defense that at the time of the alleged crime, he was acting under the influence of extreme emotional disturbance.

The court’s charge to the jury was based on the homicide provisions of the Penal Law (§ 125.25, subd 1, par [a]; § 125.20, subd 2). The jury was instructed that "[t]he mere fact that the defendant fired a gun and thereby killed John Northrup does not, alone, suffice to establish his guilt of murder. The offense, as here charged, is an intent crime, and the law requires that it be proved beyond a reasonable doubt that the defendant acted intentionally.” The People were required to establish beyond a reasonable doubt that the defendant "intended, in firing the gun, to kill either the victim himself or some other human being.” To find intent, the jury had to conclude that the defendant had the "conscious objective to cause death, and that his act or acts resulted from that conscious objective.” The jury was cautioned that they "must not expect or require the defendant to prove to your satisfaction that his acts were done without the intent to kill. Whatever proof he may have attempted, however far he may have gone in an effort to convince you of his innocence or guiltlessness, he is not obliged, he is not obligated to prove anything. It is always the People’s burden to prove his guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt.”

With respect to the defense of extreme emotional disturbance, the court stated that the point of this evidence was to convince the jury, by a preponderance of the evidence, that "the defendant’s apparent intention to cause death, if you should find there was such, was not the result of a calm and calculating decision on his part, but that it was influenced by extreme emotional disturbance.” The court did not elaborate on the definition of "extreme emotional disturbance”, noting that the words are "self-evident in meaning”. However, the court cautioned that " 'extreme’ precludes mere annoyance or unhappiness or anger, but requires disturbance excessive and violent in its effect upon the defendant experiencing it.” As to the burden of proof, the court repeated its earlier instruction that "generally, the burden rests on the prosecution to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. In this respect, the defendant’s raising of an affirmative defense makes a slight variation; although the rule still stands, generally, as to proof of the whole case, the burden of proving his affirmative defense—that indeed his acts were under extreme emotional disturbance which appears, reasonably, to be an explanation or excuse—is placed upon the defendant himself. The District Attorney is not required to deny this excuse.”

Finally, the court instructed the jury that "[t]he fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree”. The court went on to explain that "[t]his does not mean that the emotional disturbance exonerates the killer, or renders his killing guiltless. As long as he actually intended to cause the death of another person * * * the killing remains a crime, and remains a homicide, but is punishable in less severe manner than murder.” No objection was taken to the above-quoted portions of the court’s charge.

The jury found the defendant guilty of murder. The Appellate Division unanimously affirmed the judgment of conviction.

During the pendency of this appeal, the United States Supreme Court decided the case of Mullaney v Wilbur (421 US 684), wherein the court, passing on a Maine statute, held that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” (421 US, at p 704.) Defendant argues that Mullaney is controlling in this case and requires the striking down of sections 125.20 and 125.25 of the Penal Law to the extent that they require a defendant charged with murder to bear the burden of proving the affirmative defense that he acted under the influence of extreme emotional disturbance.

At the threshold we are confronted with two procedural issues. The first is whether the defendant has preserved a question of law for our review, and, secondly, even if he has, whether Mullaney should be applied retroactively to a trial already completed. The defendant’s constitutional contentions are based entirely upon a reading of the Mullaney decision. The jury was charged by the court on June 7, 1971, four years and two days in advance of Mullaney. At that time none of the various affirmative defenses contained in the 1967 revision of the Penal Law had yet been attacked on due process grounds. (See People v Laietta, 30 NY2d 68, cert den 407 US 923 [affirmative defense of entrapment].) In May, 1973, when the Appellate Division affirmed the judgment of conviction, there was no intimation that the homicide provisions might be vulnerable to serious constitutional challenge. In fact, the initial brief filed by appellant in our court did not raise a due process argument. The point was raised for the first time in a supplemental brief prepared after Mullaney was handed down.

Our court, with a narrow exception applicable in capital cases, is strictly a law court. A failure to object to a charge at a time when the trial court had an opportunity to effectively correct its instructions does not preserve any question of law that this court can review. (CPL 470.05, subd 2; People v Robinson, 36 NY2d 224, 228.) Strict adherence to the requirement that complaint be made in time to permit a correction serves a legitimate State purpose. (Henry v Mississippi, 379 US 443, 447.) A defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal. Were the rule otherwise, the State’s fundamental interest in enforcing its criminal law could be frustrated by delay and waste of time and resources invited by a defendant. While the review by this court is restricted, on the initial appeal to the Appellate Division, that court, with its broader powers of review, may consider claims of error, notwithstanding a failure to object. (CPL 470.15; People v Robinson, supra.)

There is one very narrow exception to the requirement of a timely objection. A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings proscribed by law. (Cancemi v People, 18 NY 128, 138; People ex rel. Battista v Christian, 249 NY 314, 319.) In Cancemi, it was held that a defendant could not consent to being tried by a jury of less than 12 members. In People ex rel. Battista v Christian (supra), the court ruled that an information charging a defendant with an "infamous” crime was a nullity, despite defendant’s consent, where the State Constitution provided that infamous crimes could be prosecuted only by Grand Jury indictment. Thus, the rule has come down to us that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below. (People v Bradner, 107 NY 1, 4-5; see People v Miles, 289 NY 360, 363-364.)

This traditionally limited exception has, on occasion, been given broader expression. In People v McLucas (15 NY2d 167), the defendant did not object to a comment by the trial court on his failure to testify. Our court ruled that "no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right.” (At p 172.) Since the defendant’s right against self incrimination had been violated, the judgment of conviction was reversed.

As we view it today, the purpose of this narrow, historical exception is to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute. Where the procedure adopted by the court below is at a basic variance with the mandate of law, the entire trial is irreparably tainted. As we stated nearly 50 years ago, "prosecutions must be conducted in substance and without essential change as the Constitution commands.” (People ex rel. Battista v Christian, 249 NY 314, 319, supra.) Defendant Patterson contends that the burden of proof on the issue of extreme emotional disturbance was improperly placed upon him. If the defendant’s argument is meritorious, his trial was not conducted in accordance with the procedure mandated by State law. Our law provides that "[n]o conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant’s commission thereof.” (CPL 70.20.) If the burden of proof was improperly placed upon the defendant, defendant was deprived of a properly conducted trial, the distribution of the burden of persuasion being just as significant as the proper composition of the jury. Since the error complained of goes to the essential validity of the proceedings conducted below, we believe there is a question of law that our court should review.

We also note that prior to Mullaney, there was no doubt in this State that the extreme emotional disturbance affirmative defense was constitutionally valid. The defendant’s failure to object to a practice deemed valid in this State cannot deprive him of the right to attack that practice when an intervening Supreme Court decision calls that practice into question. (See O’Connor v Ohio, 385 US 92, 93; People v Baker, 23 NY2d 307, 317.) It is also significant that Mullaney was not handed down until well after the Appellate Division affirmed Patterson’s conviction. Were we not to treat appellant’s claim on the merits, Patterson would be deprived of a State forum in which his arguments could be heard. (Cf. People v Robinson, 36 NY2d 224, 228, supra.)

As to the second procedural issue, we hold that the defendant may assert a Mullaney claim even though his conviction predates that decision. We note that Mullaney was based on the Supreme Court’s earlier holding in In re Winship (397 US 358), a decision subsequently given retroactive effect. (Ivan V. v City of New York, 407 US 203.) Mullaney, like its progenitor Winship, should be given retroactive effect.

We, therefore, turn to the merits of the defendant’s Mullaney claim. In our view, the New York law of homicide differs significantly from the Maine law struck down in Mullaney. We believe that the law of this State does not infringe the due process interests that Mullaney sought to protect.

To put the constitutional issues in focus, and to point up the differences between the law of New York and the common-law approach still followed in Maine, it is necessary to review the history and development of the law of homicide in this State. As a colony, and then in early Statehood, New York drew upon the English common law for its formulations of the homicide offenses. The crimes of murder and manslaughter, the only grades of culpable homicide known to the common law, were defined, and punished, in the same fashion as the English courts had for centuries. (1937 Report of NY Law Rev Comm, pp 540, 702-710.) In 1829, the Legislature codified, for the first time, the New York law of homicide. Murder was defined as a single, degreeless crime committed "[w]hen perpetrated from a premeditated design to effect the death of the person killed” (1829 Rev Stat of NY, part IV, ch I, tit I, § 5.) On the other hand, manslaughter was divided into four degrees. A killing committed "without a design to cause death, in the heat of passion” was a manslaughter. If the killing was accomplished in "a cruel and unusual manner”, the crime was a second-degree offense; if the killing was accomplished by the use of "a dangerous weapon”, it was a third-degree offense. An involuntary killing, "by any weapon, or by means neither cruel nor unusual” in the heat of passion was manslaughter in the fourth degree. (1829, Rev Stat of NY, part IV, ch I, tit II, §§ 10, 12, 18.) As a result of this statutory change, a "clear-cut and decisive cleavage” was made between the crimes of murder and manslaughter, based upon the presence or absence of a "design to effect death”. (1937 Report of NY Law Rev Comm, p 544.) Moreover, where the common law had implied malice from the very fact of the homicide where a dangerous weapon had been used or the killing had been accomplished in a cruel and inhuman fashion, the New York revision deemed such acts to be manslaughter unless it could be proved, that the defendant had a design to effect death. (At p 545.)

In 1860, following the early lead of Pennsylvania and Virginia (see Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col L Rev 1425, 1445), the Legislature split the crime of murder into two categories, in an attempt to alleviate some of the harsh effects of capital punishment. Murder "perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing” was murder in the first degree and punishable by death. (L 1860, ch 410, §§ 1, 2.) Any other murder was in the second degree and punishable by life imprisonment at hard labor. (L 1860, ch 410, §§ 2, 6.) In 1862, first-degree murder was redefined to include killings "perpetrated from a premeditated design to effect the death of the person killed”. (L 1862, ch 197, § 6.)

The two-tier murder offense was carried over into the Penal Code of 1881. The first-degree offense was committed when the killing was perpetrated out of "a deliberate and premeditated design to effect the death of the person killed”. (L 1881, ch 676; Penal Code, § 183, subd 1.) The second-degree offense was newly defined as a killing "committed with a design to effect the death of the person killed * * * but without deliberation and premeditation.” (L 1881, ch 676, § 184.) The punishments remained death and life imprisonment, respectively. (L 1881, ch 676, §§ 186, 187.) The four degrees of manslaughter were reduced to two. A killing, "[i]n the heat of passion, but accomplished in a cruel and unusual manner, or by means of a dangerous weapon” became manslaughter in the first degree, punishable by an imprisonment of between 5 and 20 years. (L 1881, ch 676, § 189, subd 2; § 192.) A heat of passion killing not committed by use of a deadly weapon or by a cruel and unusual means was a second-degree offense, punishable by imprisonment of 1 to 15 years and/or a fine not in excess of $1,000. (L 1881, ch 676, § 193, subd 2; § 202.) The Penal Law of 1909, the immediate precursor of our present statute, retained the same definitions, with some alteration in the punishments to be meted out. (Former Penal Law, § 1044, subd 1; §§ 1045, 1046, 1048,1050, subd 2; §§ 1051, 1052, subd 2; § 1053.)

From this historical review, two points are made abundantly clear. First, New York, since its first statutory enactment in 1829, has always defined murder and manslaughter as separate and distinct offenses with punishments varying to fit the degree of the crime. Maine, on the other hand, has remained truer to the common law by defining but one generic category of felonious homicide, holding out a possibility of mitigation only in the form of punishment. Secondly, ever since 1829, New York has refused to imply malice from the act of killing, requiring the prosecution to establish, where it seeks to prove a murder, that the defendant possessed a design to effect death. Thus, in Stokes v People (53 NY 164), the court held that "[m]ere proof of the killing did not, as a legal implication, show” that the defendant committed the killing from a premeditated design to effect a human death. (At p 180.) This, again, is in contradistinction to the law of Maine struck down in Mullaney. (421 US, at p 686, n 4; State v Lafferty, 309 A2d 647, 965 [Me].) In Stokes, the court, in noting that the common law of England implied malice from the proof of killing only, cited the American case most often referred to for that principle, Commonwealth v York (50 Mass 93) (53 NY, at p 179). The law of Maine is still based on a York approach (see 421 US, at pp 695, 696), an approach rejected in Stokes as in contradiction to the New York statutes (53 NY, at p 179).

In 1961, a study commission was appointed to thoroughly review and update penal statutes that had not been subjected to a full-scale examination since the 1881 Penal Code. The Revised Penal Law of 1967, the end product of the commission’s work, contained new homicide provisions reflective of contemporary thought, to replace an anachronistic statute replete with concepts whose validity had been substantially eroded by time. Thus, the factors of premeditation and deliberation were discarded entirely. These two concepts, which alone distinguished first-degree murder from second-degree murder (and therefore death from life imprisonment), had become completely nebulous. (Third Interim Report of the Temporary State Commission on Revision of the Penal Law and Criminal Code, NY Legis Doc, 1964, No. 14, p 22.) In the words of Mr. Justice Cardozo, "[i]f intent is deliberate and premeditated whenever there is choice, then in truth it is always deliberate and premeditated, since choice is involved in the hypothesis of the intent. What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistably for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words.” (Cardozo, Law and Literature, pp 100-101; see, also, Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col L Rev 1425, 1445-1446.) The revised 1967 statute made murder a single, degreeless crime, requiring that the defendant, "[w]ith intent to cause the death of another person * * * causes the death of such person or of a third person”. (Penal Law, § 125.25.)

The manslaughter provisions in the former Penal Law were also substantially revised. Under the old provisions, manslaughter was a fatal assault committed without homicidal intent, without a design to effect death. (Former Penal Law, §§ 1050, 1052.) "Heat of passion” had become, not a mitigating factor that would reduce a murder to manslaughter, but an affirmative element of a specified type of manslaughter. In its proposed statute, the commission suggested the elimination of the "hybrid offense” that had developed in New York, coupled with a return to the traditional principles of mitigation. (Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp 1C-1, 1C-61-1C-62.) The commission also replaced the traditional language of "heat of passion”, with a new formulation, "extreme emotional disturbance”. In this respect, the commission adopted the manslaughter provisions in the Model Penal Code. (Model Penal Code, § 201.3, subd [1], par [b].) This change was designed to avoid limiting mitigation to the situation where a defendant, provoked, acts "under the influence of some sudden and uncontrollable emotion excited by the final culmination of * * * misfortunes”. (People v Caruso, 246 NY 437, 446.) The new formulation does not impose so arbitrary a limit on the nature of circumstances that might justify a mitigation. (Model Penal Code, § 201.3, Comment, pp 46-47 [Tent Draft No. 9].)

The original 1964 proposal of the commission did not, as the Model Penal Code does not, expressly state that the burden of establishing mitigating circumstance is upon the defendant. To clarify the situation, the 1965 proposal, ultimately enacted, made extreme emotional disturbance an affirmative defense to be proved by the defendant. The 1965 bill made no other substantive changes. (Fourth Interim Report of the State of New York Temporary Commission on Revision of the Penal Law and Criminal Code, NY Legis Doc, 1965, No. 25, pp 29-30.)

The present Penal Law thus provides that it is an affirmative defense to a murder prosecution that the "defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” (Penal Law, § 125.25, subd 1, par [a]). The defense must be established by a preponderance of the evidence. (Penal Law, § 25.00, subd [2].) If the defense proves successful, the defendant may not be found guilty of the crime of murder, but only of the crime of manslaughter in the first degree. (Penal Law, § 125.20, subd 2.) The sentences that might be imposed for these crimes differ significantly. (See Penal Law, § 70.00.)

We conclude that the New York statutes do not infringe the due process interests which Mullaney v Wilbur (421 US 684, supra) sought to protect. The due process clause of the Federal Constitution requires that a conviction cannot be had unless the prosecution proves beyond a reasonable doubt "every fact necessary to constitute the crime” with which a defendant is charged. (In re Winship, 397 US 358, 364.) In New York, the prosecution, in order to obtain a conviction for murder, must prove beyond a reasonable doubt that the defendant, with intent to cause the death of another person, did cause the death of such person or of a third person. (Penal Law, § 125.25, subd 1.) With respect to intent, the People must establish that the defendant’s conscious objective was to cause the death of the other person. (Penal Law, § 15.05, subd 1.) Intent may not be inferred from the simple fact of killing, but must be proved by other facts. That New York will permit the defendant to establish the existence of mitigating circumstances, collateral to the principal facts at issue, does not detract in the smallest degree from the rule, long established in this State, that the prosecution must prove intent beyond a reasonable doubt.

The law of Maine, under consideration in Mullaney, did not make the "facts of intent” general elements of the crime of felonious homicide. (421 US, at p 699.) Rather, the degree of intent was relevant only to punishment. (421 US, at p 699.) Even then, the prosecution was permitted to rely upon a presumption of malice, to be drawn from the fact of a killing. If the defendant acted under the heat of passion on sudden provocation, malice aforethought was negated since, under Maine law, as well as under the common law, malice and heat of passion are mutually inconsistent. (421 US, at pp 686-687.) That is to say, if the defendant’s mind was possessed by malice, his actions could not have resulted from an inflamed passion aroused by a sudden provocation. Under Maine law, malice and heat of passion are reflective of the defendant’s intent, and the State could not constitutionally provide the prosecution with a presumption of malice and then require the defendant to negate it with proof that he acted under the heat of passion. (421 US, at p 702.)

In New York, the prosecution is at all times required to prove, beyond a reasonable doubt, the facts bearing 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. The purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them. (See Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col L Rev 1425, 1446.) The opportunity opened for mitigation differs significantly from the traditional heat of passion defense. Traditionally, an action taken under the heat of passion meant that the defendant had been provoked to the point that his "hot blood” prevented him from reflecting upon his actions. (See, e.g., People v Ferraro, 161 NY 365, 375.) Furthermore, the action had to be immediate, for if there was time for "cooling off”, there could be no heat of passion. (See, e.g., People v Florentino, 197 NY 560, 563.) An action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore. The differences between the present New York statute and its predecessor and its ancient Maine analogue can be explained by the tremendous advances made in psychology since 1881 and a willingness on the part of the courts, legislators, and the public to reduce the level of responsibility imposed on those whose capacity has been diminshed by mental trauma. It is consistent with modern criminological thought to reduce the defendant’s criminal liability upon proof of mitigating circumstances which render his conduct less blameworthy. So long as the prosecution must prove, beyond a reasonable doubt, that the defendant intended to kill his victim, it is not a violation of due process to permit the defendant to establish he formulated his intent while "under the influence of extreme emotional disturbance.”

Our dissenting brethren would draw a contrary conclusion based upon a broad reading of selected portions of the Mullaney opinion. We recognize that some of the language in Mullaney might, by a process of extrapolation, be applied to the provisions of the New York Penal Law. To be sure, the issue is not free from doubt. Yet it must also be recognized that judicial opinions are not written and rendered in the abstract. Language is given its meaning by the context which compels its writing. It is basic to our common-law system that a court decides only the case before it. While the Supreme Court in Mullaney struck down the Maine law of homicide, it did not reach out and pass on the constitutional validity of every State criminal statute that contains either an affirmative defense or a policy presumption. We believe, from our review of the history and development of the New York law of homicide, that New York homicide law differs significantly from the homicide law of Maine. In our view, this essential difference makes this case materially distinct from that presented to the Supreme Court in Mullaney. For this reason, we do not believe that Mullaney mandates a holding that the affirmative defense of extreme emotional disturbance is unconstitutional (see Mitchell v Grant Co., 416 US 600, 615). Our law does not deprive the defendant in a murder prosecution of due process of law. We also believe, for the reasons stated by Chief Judge Breitel in his concurring opinion, that the concept of affirmative defenses is sound, valuable and is one that has a place in modern penal law. We hold, therefore, that the provisions of the New York Penal Law which set forth the affirmative defense of extreme emotional disturbance are not constitutionally infirm.

The issue of whether Gordon Patterson’s actions were committed under the influence of an extreme emotional disturbance was squarely presented to the jury. Although the People did not controvert the testimony of the defense psychiatrist, the jury was free to refuse to credit that testimony and to conclude, from the other evidence in the case, that the defendant had not established that his intent was formulated under the influence of an extreme mental trauma. The jury concluded that the defendant was not entitled to the mitigation permitted by statute and, on appeal to our court, from an affirmance by an intermediate appellate court, this finding is not reviewable by us. (See, e.g., People v Eisenberg, 22 NY2d 99, 101.)

We turn now to the issue of whether Roberta Patterson, the defendant’s wife, was properly permitted to testify as to the facts of the shooting and the conversation with the defendant during the ride from the scene of the crime. Although the Pattersons were, and are still, legally married to each other, the actions and words of the defendant were not protected by the marital privilege. (CPLR 4502.) Immediately after the shooting, the defendant attempted to strangle his wife. After releasing his grip on her, he ordered her about with a rifle still clutched in his hands. "This is strong evidence that defendant himself was not then relying upon any confidential relationship to preserve the secrecy of his acts and words”. (People v Dudley, 24 NY2d 410, 415.)

As to the other contentions advanced by the defendant, we find them to be without merit. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel (concurring).

I am in complete agreement with the views expressed in the majority opinion and therefore concur in it. It seems apt, however, to add some comments respecting the salutary criminological purposes served by the development of affirmative defenses, even where the burden of proof rests on the defendant.

A preliminary caveat is indicated. It would be an abuse of affirmative defenses, as it would be of presumptions in the criminal law, if the purpose or effect were to unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime. Indeed, a byproduct of such abuse might well be also to undermine the privilege against self incrimination by in effect forcing a defendant in a criminal action, to testify in his own behalf.

Nevertheless, although one should guard against such abuses, it may be misguised, out of excess caution, to forestall or discourage the use of affirmative defenses, where defendant may have the burden of proof but no greater than by a preponderance of the evidence. In the absence of affirmative defenses the impulse to legislators, especially in periods of concern about the rise of crime, would be to define particular crimes in unqualifiedly general terms, and leave only to sentence the adjustment between offenses of lesser and greater degree. In times when there is also a retrogressive impulse in legislation to restrain courts by mandatory sentences, the evil would be compounded.

The affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages of prosecution and certainly at the trial, and thus offers the opportunity to a defendant to allege or prove, if he can, the distinction between the offense charged and the mitigáting circumstances which should ameliorate the degree or kind of offense. The instant homicide case is a good example. 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. The placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant’s knowledge or access to the evidence other than his own on the issue. To require the prosecution to negative the "element” of mitigating circumstances is generally unfair, especially since the conclusion that the negative of the circumstances is necessarily a product of definitional and therefore circular reasoning, and is easily avoided by the likely legislative practice mentioned earlier.

The problems involved and their resolution are, of course, not confined to the crimes of homicide but extend to most serious offenses and some minor ones.

In a more mature and developed criminology sophisticated distinctions should be used freely, guarding only for abuse. The goals are more appropriate definition of and sanctions for crime, and a retreat from primitive notions about crime based on a result alone or based largely on result. "A homicide is a homicide is a homicide” is not a truth of modern criminology and such a simplistic approach, which could be encouraged by making affirmative defenses unattractive to legislators, is not one to be followed.

The treatment of entrapment as an affirmative defense in the Model Penal Code is particularly illustrative of the discussion (ALI Model Penal Code, Tent Draft No. 9 [1959], § 2.10, subd 2 and Comments, at pp 14-24). The trial was followed in this State with the enactment of the new Penal Law, to introduce what had not been in this State the ameliorative entrapment defense before (see § 40.05, enacted as § 35.40 by L 1965, ch 1030, and renumbered § 40.05 by L 1968, ch 73, § 11, with the burden of proof on defendant; § 25.00, subd 2; People v Laietta, 30 NY2d 68, 73-75, cert den 407 US 923). Given the resistance in many places in the Legislature and even in the American Law Institute it is a fair conjecture that but for the affirmative defense cum burden of proof treatment, the law would not have followed this course (see Hechtman, Practice Commentaries to Penal Law, § 25.00, McKinney’s Cons Laws of NY, Book 39, at pp 62-63; ALI Model Penal Code, Tent Draft No. 4 [1955], Comments to § 1.13, at pp 108-114, especially p 113). In short, only those with a lack of historical perspective would treat the affirmative defense as a hardening of attitudes in law enforcement rather than as a civilized and sophisticated amelioration.

In sum, the appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around—a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology.

Jones, J. (concurring).

I concur in the majority opinion.

In my view respect for the proper role of the legislative branch calls for the exercise of responsible judicial constraint in this case. Our Legislature has carefully and thoughtfully revised our State’s Penal Law. In that process recourse was had to the recasting as an affirmative defense of what is now termed "extreme emotional disturbance”. As is stated in the concurring opinion of the Chief Judge, the intelligent use of affirmative defenses makes eminently sound sense in the criminal law today. Thus, I am not prepared in the discharge of what I conceive to be my judicial responsibility and discipline to strike down the provision here under review because on one analysis the opinion of the United States Supreme Court in Mullaney v Wilbur (421 US 684) would appear to call for that result. Another reading of the same opinion leads others to a different conclusion. In that circumstance, I conclude that, until there has been an explicit determination by the Supreme Court which permits us no alternative, it serves better in this case to leave to that, court the articulation of its views than for me to assume to interpret them, particularly where experience has demonstrated that my own judgment in such matters is not infallible. (Cf. People v La Ruffa, 37 NY2d 58, 62 [my concurring opn], cert den 423 US 917; Menna v New York, 423 US 61.)

Cooke, J. (dissenting).

I dissent and vote to reverse the order of the Appellate Division and to grant a new trial, on the authority of Mullaney v Wilbur (421 US 684).

Defendant was indicted and convicted after a jury trial of the crime of murder. The indictment, returned on January 15, 1971, accused "the defendant of the crime of MURDER, committed as follows: The defendant on the 27th day of December, 1970, in the Town of Urbana, County of Steuben and State of New York, did knowingly and unlawfully and with the intent to cause the death of another person, did cause the death of another person, to wit: the defendant on the aforesaid date at the Robert Rook residence in the Town of Urbana, New York, did intentionally cause the death of John Northrup by intentionally firing at John Northrup a loaded firearm thereby inflicting wounds which caused the death of said John Northrup.”

The pivotal question on which this appeal turns is whether or not the New York murder statute in effect at the time of the commission of the alleged crime and at the time of trial (Penal Law, § 125.25, subd 1; see L 1965, ch 1030, eff Sept. 1, 1967), which made the defense of extreme emotional disturbance an affirmative defense, violated the due process clause of the Fourteenth Amendment.

Under the old Penal Law in effect prior to September 1, 1967, there were two degrees of murder, first-degree murder being distinguished from murder in the second degree by the presence of premeditation and deliberation. Section 1044 of the former Penal Law, defining murder in the first degree, provided:

"The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed:
"1. From a deliberate and premeditated design to effect the death of the person killed, or of another”

and section 1046, furnishing the second-degree definition, stated: "Such killing of a human being is murder in the second degree, when committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation.”

The Revised Penal Law, as originally enacted by chapter 1030 of the Laws of 1965 and which became effective September 1, 1967, not only abandoned the degrees of murder but also eliminated the elements of premeditation and deliberation. In this respect, homicidal intent alone became the prerequisite for murder (Rothblatt, Criminal Law of New York, Revised Penal Law, § 68).

Subdivision 1 of section 125.25 of the Revised Penal Law, as in effect at the time in question, provided in part:

"A person is guilty of murder when:
"1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, 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”.

It should be noted that the absence of extreme emotional disturbance is not one of the elements of this type of such a crime; rather, such a disturbance is made an affirmative defense. Under this statute murder is a class A felony punishable by life imprisonment (Penal Law, § 70.00, subd 2, par [a]).

Section 125.20 of the Revised Penal Law, defining manslaughter in the first degree, reads in part:

"A person is guilty of manslaughter in the first degree when
* * *
"2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision”.

Attention is called to the fact that under the statute the People need not prove "under the influence of extreme emotional disturbance” in any prosecution under subdivision 2 of section 125.20. Manslaughter in the first degree is defined as a class B felony, punishable by 25 years’ imprisonment (Penal Law, § 70.00, subd 2, par [b]).

The statute, subdivision 2 of section 25.00 of the Penal Law, declares in regard to the burden of proof as to an affirmative defense: "When a defense declared by statute to be an 'aflnv mative defense’ is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.” Thus, under the statute, the defendant had the burden of establishing, by a preponderance of the evidence, the affirmative defense that he acted under the influence of extreme emotional disturbance. Here, the trial court charged that defendant had raised the affirmative defense of "extreme emotional disturbance” and read subdivision 2 of section 25.00 to the jury. It instructed the jury that: "In this respect, the defendant’s raising of an affirmative defense makes a slight variation; although the rule still stands, generally, as to proof of the whole case, the burden of proving his affirmative defense—that indeed his acts were under extreme emotional disturbance which appears, reasonably, to be an explanation or excuse—is placed upon the defendant himself. The District Attorney is not required to deny this excuse. The defendant must by his proof convince you both that he was so emotionally influenced, and that it is a reasonable explanation and excuse for what he did. But he need not prove it beyond a reasonable doubt, but merely by a preponderance of the evidence.”

After this case was tried and subsequent to the Appellate Division affirmance, the Supreme Court, on June 9, 1975, rendered its decision in Mullaney v Wilbur (421 US 684). It is determinative here. It must be given complete retroactive effect, since the major purpose of its constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function (Ivan V v City of New York, 407 US 203; cf. United States ex rel. Castro v Regan, 525 F2d 1157, 1158).

In Mullaney, defendant was found guilty of murder after a trial in the State of Maine. The case against him included his pretrial statement in which he claimed that he attacked the victim in a frenzy provoked by the victim’s homosexual advances. The defense argued that the homicide was not unlawful since defendant lacked criminal intent and, alternatively, that at most the homicide was manslaughter rather than murder since it occurred in the heat of passion provoked by the homosexual assault. The trial court instructed the jury that Maine law recognizes only two kinds of homicide, murder and manslaughter, the common elements of both being that the homicide be unlawful, that is, neither justifiable or excusable, and that it be intentional. After reading the statutory definitions of murder and manslaughter, the court charged that "malice aforethought is an essential arid indispensable element of the crime of murder”, without which the homicide would be manslaughter. The jury was further instructed that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. It was emphasized that "malice aforethought and heat of passion on sudden provocation are inconsistent things” and, thus, by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter.

The Maine murder statute (Me Rev Stat Ann., tit 17, § 2651) provides: "Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life.” The manslaughter statute (tit 17, § 2551), in relevant part, reads: "Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought * * * shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 20 years”.

The Supreme Court in Mullaney, at page 691, viewed these Maine statutes in this fashion: "The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder—i.e., by life imprisonment—unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter—i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years” (emphasis added). After tracing the development of the law relating to homicide for several centuries and noting that in the last 50 years the large majority of the States have required the prosecution to prove the absence of the heat of passion on sudden provocation beyond a reasonable doubt, the Supreme Court observed at page 696: "This historical review establishes two important points. First, the fact at issue here —the presence or absence of the heat of passion on sudden provocation—has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. And, second, the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact.”

In response to the argument that because of the difficulties in negating an argument that the homicide was committed in the heat of passion the burden of proving this fact should rest on the defendant, the Supreme Court was quick to point out at page 701: "No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.”

After laying down these premises, it comes as no surprise that the Supreme Court terminated its Mullaney dissertation, at page 704, with this conclusion: "We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.”

That the New York statutes in question (Penal Law, § 125.20, subd 2; §. 125.25, subd 1) are virtually the same as the Maine law of homicide, is apparent from the Supreme Court’s "succinct statement” of the latter in Mullaney at page 691. New York’s phrase of "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” is but a replacement for the phrase "in the heat of passion”. This is demonstrated by Hechtman’s Practice Commentaries (McKinney’s Cons Laws of NY, Book 39, § 125.20, pp 391, 393) in which it is stated inter alia:

"The meanings and significance of subdivision 1 and 2 can be fully appreciated only against a background of certain common law principles of homicide.
"The common law enunciates the seemingly sound doctrine, known as 'voluntary manslaughter’ and adopted in most American jurisdictions, that murder by intentional killing is reduced to manslaughter by a mitigating factor variously termed 'heat of passion,’ 'sudden passion,’ 'provocation,’ and the like (1 Warren on Homicide [Perm. Ed.] § 85, pp. 416-417). The theory of the principle is one of extending a degree of mercy to a defendant who, though intending to kill, acted out of some kind of emotional disturbance rather than in cold blood.
* * *
"Subdivision 2, in conjunction with a provision of the revised murder statute (§ 125.25 [la]), restores to New York the aforementioned common law doctrine of reduction from murder to manslaughter on the basis of 'heat of passion.’ In the restoration process, however, the phrase 'in the heat of passion’ is abandoned as the criterion of mitigation in favor of the phrase, 'under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse’ (§ 125.25 [la]). The latter standard is adopted from the Model Penal Code of the American Law Institute (§ 210.3 [b]), and the reasons prompting this change are fully expounded in the Institute’s commentaries (Model Penal Code Commentary, Tent. Draft No. 9, pp. 28-29).”

Moreover, as the Supreme Court pointed out in Mullaney, the "malice aforethought” specified in Maine’s murder statute was not an element requiring objective proof but only a policy presumption of the absence of heat of passion (at p 694). While New York’s statutes do not mention malice as such, they make the absence of extreme emotional distress an element of murder by distinguishing manslaughter from murder only by the presence of extreme emotional distress. Thus nothing turns on the fact that Maine gives this absence of the emotional factor a name and New York does not. Although not an element of the crime, said absence is the sole factor which determines whether the defendant will be convicted of murder or manslaughter and whether he will be subject to a maximum sentence of life or 25 years’ imprisonment. Functionally, the two statutory schemes are identical. The Supreme Court said of this design that it would permit a State to: "undermine many of the interests that decision [Winship] sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.” (421 US, at p 698.)

Under Mullaney, there is no alternative but to hold that the provision in subdivision 1 of section 125.25 of the Penal Law, which makes the contention that defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse an affirmative defense, with the burden of proof upon defendant to establish said defense by a preponderance of the evidence, unconstitutional as a violation of the due process provision of the Fourteenth Amendment. The record here, relating to defendant’s mental state at the time of the killing, required a charge that to establish defendant’s guilt of murder the prosecution had the burden of proving that defendant was not acting under the influence of extreme emotional disturbance for which there was a reasonable. explanation or excuse. In United States ex rel. Castro v Regan (525 F2d 1157, supra), it was stated at page 1160: "No where did the court charge, as did the Maine court in Mullaney, that the defendant had the burden of 'establishing] by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter.’ * * * Rather, the court charged that, before the jury could find murder in the second degree, 'there has to be proof beyond a reasonable doubt that there was the unlawful killing of another human being with malice and without reasonable provocation or justifiable cause or excuse’.” Under such a charge, defendant had nothing to prove and the burden was kept where it belonged.

(See People v Davis, 49 AD2d 437; People v Woods, 84 Misc 2d 301; People v Balogun, 82 Misc 2d 907; see, also, Evans v State, 28 Md App 640.)

It is significant that, although the Appellate Division affirmed the judgment of conviction in this case before the Supreme Court handed down its decision in Mullaney, that same Appellate Division, creditably, changed its position in People v Davis (supra) when that case came to it after Mullaney.

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

Chief Judge Breitel and Judges Gabrielli and Jones concur with Judge Jasen; Chief Judge Breitel and Judge Jones concur in separate opinions; Judge Cooke dissents and votes to reverse in another opinion in which Judges Wachtler and Fuchsberg concur.

Order affirmed. 
      
      . Penal Law (§ 125.25, subd 1, par [a]):
      "§ 125.25 Murder in the second degree.
      "A person is guilty of murder in the second degree when:
      "1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative degense 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; or”.
     
      
      . Penal Law (§ 125.20, subd 2):
      "§ 125.20 Manslaughter in the first degree.
      "A person is guilty of manslaughter in the first degree when:
      * * *
      "2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision”.
     
      
      . The only objection taken to the charge was that the jury could "infer” from the court’s instructions that its only choice was between murder and manslaughter, whereas the jury could acquit the defendant. We note that the court’s instructions are not susceptible to any such "interference” and that this point is not advanced by the defendant on appeal.
     
      
      . This statute, as well as the other statutes to be discussed infra, contained other provisions, including the forerunners of our present felony murder and "depraved indiiference” murder statutes. (See Penal Law, § 125.25, subds 2, 3.) However, for present purposes, it is sufficient to confine our discussion to the development of the crimes of intentional murder and voluntary manslaughter.
     
      
      . This act inadvertently repealed, by the omission of a savings clause, the prior law defining crimes and authorizing the imposition of sentences. (L 1860, ch 410, § 7.) In Hartung v People (22 NY 95), the court held that the 1860 statute could not, by virtue of its ex post facto effect, be given retroactive application. Since it appeared that persons accused or convicted prior to the passage of the 1860 act might have to be released, the Legislature attempted to give the 1860 statute retroactive effect by granting defendants convicted prior to the passage of the 1860 act or convicted of crimes committed prior to passage, the option of selecting either life imprisonment or the death penalty. (L 1861, ch 303, § 3.) In 1862, the Legislature reverted back to the law as it stood prior to 1860. (L 1862, ch 197, §§ 4, 5.) However, a narrowed second-degree murder offense was retained. (L 1862, ch 197, § 5.)
     
      
      . In 1974, the Legislature added a new crime, murder in the first degree. (Penal Law, § 125.27.) This statute comes into operation where the victim of the murder is a police officer, an officer in a correctional facility or where the defendant was incarcerated for a life sentence. A convicted defendant is tó be sentenced to death. (Penal Law, § 60.06.) As part of this enactment, section 125.25, which formerly defined the degreeless crime of murder, was retitled, without a change in substance, murder in the second degree. (L 1974, ch 367, § 4.)
      It is noteworthy that the new first-degree murder offense also provides that the defendant may assert the affirmative defense of extreme emotional disturbance. (Penal Law, § 125.27, subd 2, par [a].) Successful interposition of the defense would reduce the crime to manslaughter in the first degree, not to murder in the second degree.
     
      
       Pursuant to section 4 of chapter 367 of the Laws of 1974, effective September 1, 1974, the words "in the second degree” were added to the section title, the introductory line and the last unnumbered paragraph of section 125.25. Pursuant to section 13 of chapter 276 of the Laws of 1973, effective September 1, 1973, "A-I” were substituted for "A”. Pursuant to section 5 of chapter 367 of the Laws of 1974, effective September 1, 1974, section 125.27, entitled "Murder in the first degree”, was added to the Penal Law.
     