Defendant has twice been convicted of assault, first degree, for the brutal attack with a meat cleaver and knives on a girl. There is no question that he committed the act but on each trial the defense of insanity was raised.
The first conviction was reversed because ‘‘the People failed to establish beyond a reasonable doubt that the defendant had substantial capacity to know and appreciate the nature and consequences of his conduct and that such conduct was wrong.” (People v. Buthy, 33 A D 2d 986.)
On the second trial, two psychiatrists testified on the People’s case that defendant had substantial capacity to know and appreciate the nature and consequences of his act and that it was wrong. Three psychiatrists testified that defendant lacked such substantial capacity. The majority concedes that there was sufficient evidence for the jury’s finding that defendant was criminally responsible for his conduct, but would reverse because the trial court used the phrase ‘‘ know or appreciate ’ ’ a number of times when, according to the majority, the phrase “know and appreciate ” should have been used.
Section 30.05 of the Penal Law provides in part that ‘ ‘ a person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity to know or appreciate either: (a) The nature and consequence of such conduct; or (b) That such conduct was wrong.” That section places the burden on the People to prove that a defendant knew and appreciated the nature and consequences of his act and that it was wrong. Conversely, a defend*17ant is entitled to acquittal if the People fail to prove any of these elements.
In three of the instances where the court used “or ”, it was setting forth the possible findings that would require acquittal and, therefore, the use of “know or appreciate ” was correct. In the other instances, the court was discussing the People’s burden of proof but did not use “know and appreciate ”. However, the court did read to the jury the exact language of section 30.05 of the Penal Law and from the entire charge it was made clear to the jury that if the People failed to prove that defendant knew and appreciated the nature and consequences of his act and that it was wrong, he was entitled to an acquittal. Since the charge as a whole correctly sets forth the law to be applied by the jury, the instances where the court used “ or ” instead of “ and ” do not necessitate a reversal. (See People v. Lynch, 23 N Y 2d 262, 270; People v. Bloeth, 9 N Y 2d 211, and People v. Fitzgerald, 26 A D 2d 712.)
The court in its charge covered the two essential elements which were, in effect, that defendant was not criminally responsible unless he fully understood the nature and consequences of his conduct and that such conduct was wrong. I do not believe that it was necessary to use the exact words of the statute. In any event, the fine distinction in meaning and significance between the words ‘ ‘ know ’ ’ and ‘ ‘ appreciate ’ ’ was sufficiently clarified, although they have been defined as meaning the same thing and are synonymous.1
People v. Kelly (302 N. Y. 512) and People v. Sherwood (271 N. Y. 427) cited by the majority are not in point. In each of those cases, the court erroneously instructed the jury that the People had to prove either that defendant knew the nature and consequences of his act or knew that it was wrong.
I would affirm the conviction.
Gabrielli and Cardamone, JJ., concur with Wither, J.; Moule, J., dissents and votes to affirm in an opinion; Goldman, P. J., not participating.
Judgment reversed on the law and a new trial granted.
. Webster’s New Twentieth Century (Unabridged) Dictionary defines “know” as: To perceive with certainty, to understand clearly, to be aware or cognizant of, to have a firm mental grasp of. It defines “ appreciate ” as: To be conscious of the significance, to be fully or sensitively aware of. Roget’s Thesaurus 474.12 states that “ know ” and “ appreciate ” are synonymous.