(dissenting). I would affirm the judgment of conviction. Adjudicating this defendant a youthful offender under the circumstances presented is neither appropriate nor do I believe it to be within the contemplation of the statutory framework providing for such a procedure.
Defendant was tried under an indictment charging her with murder in the second degree. She was convicted of manslaughter in the first degree. The trial court in its charge instructed the jury with regard to the defense of justification, or as the court described it, that which “in layman’s terms is known as the defense of self-defense”. Had the People failed to disprove this defense beyond a reasonable doubt, the verdict would have been not guilty. Therefore, the jury must have determined that defendant was not justified in using deadly physical force in the defense of her person (see Penal Law, § 35.15, subd 2, par [b]).
The trial court also instructed the jury that in a prosecution for murder in the second degree, it is an affirmative defense to be established by defendant by a fair preponderance of the evidence that at the time of the commission of the crime she was acting 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 defendant’s situation under the circumstances or as defendant believed them to be (Penal Law, § 125.25, subd 1, par [a]). The trial court further instructed the jury that if this defense was established and defendant found guilty of murder in the second degree beyond a reasonable doubt, they must return a verdict of guilty of manslaughter in the first degree instead of guilty of murder in the second degree. This is, of course, a correct *337statement of the law for the Legislature has specifically provided 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” (Penal Law, § 125.20, subd 2 [emphasis added]; see, also, People v Casassa, 49 NY2d 668, 680, cert den 449 US 842; 1 Callaghan, Law in New York [3d ed], § 18:18, pp 31-34).
The youthful offender procedure is set forth in CPL article 720. Although otherwise qualified, defendant, having been convicted of an armed felony, would not be eligible for treatment as a youthful offender unless she fell within an exception contained in CPL 720.10 (subd 3), which, in applicable part, provides: “Notwithstanding the provisions of subdivision two, a youth who has been convicted of an armed felony offense is an eligible youth if the court determines that one or more of the following factors exists: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed”. n
The majority, in exercising its discretion in the interest of justice, finds mitigating circumstances to defendant’s conviction for the crime of manslaughter in the first degree flowing from the fact that the jury found that defendant acted under the influence of extreme emotional disturbance. These are the same circumstances which converted a verdict of guilty of murder in the second degree to manslaughter in the first degree in accord with the statutory mandate and thus diminished defendant’s culpability and alleviated her guilt (People v Casassa, supra, pp 675-681). I cannot accept the conclusion that it was the intent of the Legislature that these same mitigating circumstances bear on the manner in which the crime was committed and thus can be used to vacate the conviction and substitute for it an adjudication that defendant is a youthful offender (see People v O’Neill, 86 AD2d 213).
Finally, although the majority does “not necessarily feel that the trial court abused its discretion in denying youthful offender treatment” and exercises its own discretion in the interest of justice, they are, in practical effect, saying that there was an abuse of discretion. I cannot subscribe to such a conclusion (see People v McCloskey, 92 AD2d 672; People v Robinson, 65 AD2d 803). The trial court was directly involved with all phases of this prosecution, thoroughly familiar with all the facts and circumstances, and was present to evaluate all the testimony at trial and at the sentencing hearing. The trial court delineated all the reasons for sentencing as it did, and I am unable to find that its discretion was abused. The court considered, among other *338things, the expert testimony of psychiatrists and a psychologist in arriving at its decision. The court was also aware that recommended psychiatric counseling of defendant’s own choice would be available to her upon incarceration. Simply stated, this record does not demonstrate an abuse of discretion. In the absence of such abuse, this court should not exercise its discretion to arrive at a contrary result (CPL 720.20; People v McCloskey, supra; People v Robinson, supra; see, also, People v Bruce, 57 AD2d 1024).
Casey, Levine and Harvey, JJ., concur with Mahoney, P. J.; Kane, J., dissents and votes to affirm in an opinion.
Judgment reversed, as a matter of discretion in the interest of justice; conviction vacated, and defendant declared to be a youthful offender; and matter remitted to the County Court of Saratoga County for resentencing.