People ex rel. Haymes v. Smith , 382 N.Y.S.2d 210 ( 1976 )

Judgment unanimously affirmed. Memorandum: The only constitutional issue raised in this proceeding relates to the alleged denial of due process to relator resulting from the trial court’s charging the provisions of section 125.25 (subd 1, par [a]) of the Penal Law which make the claim that the killing in a murder prosecution was committed under the influence of extreme emotional disturbance an affirmative defense, with the burden of proof upon the defendant to establish such defense. The Court of Appeals in People v Patterson (39 NY2d 288) has held such statutory provisions to be constitutional. Relator’s sole defense was that he suffered with a mental disease or defect under section 30.05 of the Penal Law. The court submitted to the jury both the crimes of murder for which defendant was indicted, and manslaughter, first degree. The manslaughter charge^ submitted over defendant’s objection and of which he was convicted, was properly submitted as a lesser included crime under section 445 of the Code of Criminal Procedure then in effect. No other error is alleged which may be challenged in this habeas corpus proceeding. (Appeal from judgment of Wyoming County Court dismissing writ of habeas corpus.) Present—Marsh, P. J., Simons, Mahoney and Witmer, JJ.