The opinion
Kupferman J.
(dissenting). One need not fault the sensitive analysis in the Court’s opinion to differ with its conclusion.
The defendant was obviously a seriously disturbed person. However, if one goes through life under extreme emotional disturbance (the norm), how does the trier of fact distinguish between such normal (abnormal) behavior and that necessary to sustain the affirmative defense?
A neighbor heard the victim scream, "You’re killing me.” Responding police officers heard a woman’s voice saying, "Murder. Help me. Help, Murder.” She made a dying declaration that her husband "did this to me.”
Can the excuse for murder presented to the jury as delineated in the majority opinion be considered reasonable on an objective basis? (People v Casassa, 49 NY2d 668, 675 , cert denied 449 US 842 .)
The test is both subjective and objective (cf., People v Goetz, 68 NY2d 96 ).
Determinations of a witness’s credibility are matters for the trier of fact, who can reject expert opinion with respect to whether a defendant acted under extreme emotional disturbance (see, People v Grinan, 161 AD2d 325 ). We cannot conclude that the court below, sitting as a trier of fact, erred in rejecting defendant’s experts and in deciding that defendant failed to meet his burden of establishing by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse (Penal Law § 125.25 [1] [a]; see generally, People v Casassa, supra).
Accordingly, the judgment, Supreme Court, Bronx County (Vincent A. Vitale, J.), rendered June 3, 1988, convicting defendant after a nonjury trial of murder in the second degree and four counts of criminal possession of a weapon in the fourth degree, and sentencing him to concurrent terms of 17 years to life, and four definite terms of one year, should be affirmed.
*260 Milonas and Rubin, JJ., concur with Murphy, P. J.; Kupferman, J., dissents in a separate opinion.
Judgment of the Supreme Court, Bronx County, rendered on June 3, 1988, after a nonjury trial, convicting the defendant of murder in the second degree and four counts of criminal possession of a weapon in the fourth degree, and sentencing the defendant to an indeterminate prison term of 17 years to life on the murder count and four one-year terms on the possessory counts, all to run concurrently, is modified, on the law and the facts, the conviction for murder in the second degree reduced to one for manslaughter in the first degree and the matter remanded for resentencing, and otherwise affirmed.