(dissenting). Although the defendant did have a history of mental illness, the trier of the facts determined that *53it did not constitute insanity as defined by section 1120 of the Penal Law.
A psychiatrist who, as defendant’s counsel stipulated, was eminently qualified and had been Chief Psychiatrist at the E. J. Meyer Memorial Hospital, testified that she examined defendant not only to determine if he was able to assist in his defense but also to determine whether he was criminally responsible at the time of the commission of the act. She stated she reviewed the E. J. Meyer Memorial Hospital and Gowanda State Hospital records to determine whether or not his conduct at the time the act was committed, as she put it, ‘ ‘ fitted into the statute ’ ’. She said that at the E. J. Meyer Memorial Hospital defendant had been called a chronic alcoholic and at the Gowanda State Hospital a psychopathic sexualis. She also considered his conduct at the time of the shooting.
It was her opinion, based on these considerations, that defendant not only could assist in his defense but also had substantial capacity to know and appreciate the nature of his conduct and the psychiatrist was sure that defendant knew whether or not his conduct was wrong.
Further, the circumstances under which the defendant killed the deceased were calculated and deliberate and did not indicate any lack of criminal responsibility. He was well able to relate the facts leading up to the shooting to the attorney called by his wife before he was turned over to the police, even though in doing so he exaggerated various complaints.
The facts surrounding the defendant’s killing of the deceased indicate a calculated and deliberate act. Defendant had an argument with a bartender in a cocktail lounge about how many times 60 home runs had been hit in one baseball season. The defendant had some money on the bar and the bartender claimed the defendant had made and lost a bet. The defendant denied a bet had been made. The bartender took defendant’s money and bought a drink for everyone in the lounge and gave defendant the change. The defendant said he wanted all of his money and the bartender refused to give it to him.
The defendant then left the bar and drove some distance to his home in his car. He told his wife that someone had taken his money and he got a shotgun. His wife, fearing what might happen, hid his car keys, but he took hers out of her purse and left. Defendant drove back to the lounge with the shotgun. He did not see the bartender inside and so he went outside to wait for him. In about 10 or 15 minutes defendant saw the bartender leave the tavern and get into his car and the defendant then shot *54him. Such actions on the part of the defendant indicate calculation, cunning, deliberation and patience and show criminal responsibility.
It is well settled that “ the fact that a defendant was suffering from some type of mental disorder (People v. Browne, 2 N Y 2d 842), or that he had a psychopathic personality (People v. Papa, 297 N. Y. 974), or that his 6 moral perceptions were of a low order ’ (People v. Farmer, 194 N. Y. 251, 265), or that he had an irresistible impulse to commit the crime (People v. Liss, 9 N Y 2d 999), does not immunize him from criminal responsibility under section 1120 of the Penal Law. ’ ’ (People v. Wood, 12 N Y 2d 69, 77.)
Since the record in its entirety presented a fair conflict of the evidence, the determination of the trial court should not be interfered with, unless it is clearly against the weight of the evidence (People v. Taylor, 138 N. Y. 398, 405).
Goldman, P. J., Witmer and Gabrielli, JJ., concur with Bastow, J.; Moule, J., dissents and votes to affirm, in opinion.
Judgment reversed on the law and facts and in the interest of justice and a new trial granted.