We are unanimous in affirming the convictions for robbery in the first degree and criminal possession of a weapon in the third degree and the sentences imposed thereon. We also agree that the affirmative defense of extreme emotional disturbance is available, in a proper case, where the charge is attempted murder of a police officer (Penal Law §§ 110.00, 125.27 [2] [a]; People v Lanzot, 67 AD2d 864, 866, appeal dismissed 49 NY2d 796). The issue which divides us is simply whether in this case the evidence presented was such as to warrant submitting the affirmative defense to the jury. In my view, based on the law and the facts, the trial court properly declined defendant’s request to so charge the jury.
As noted by the Court of Appeals in People v Moye (66 NY2d 887, 890, n), "[i]n determining whether to submit the affirmative defense of extreme emotional disturbance to the jury, it is for the court initially to decide if there is sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense are established”.
Reviewing the evidence in the light most favorable to defendant, as we must on this issue (see, People v Watts, 57 NY2d 299), certain facts were nevertheless clearly established.
On February 18, 1981, a Wednesday, at about 6:30 p.m., defendant walked into a liquor store located on Main Street in New Rochelle. After inspecting the wine rack and appearing to be interested in the price of the wine on display, he pulled out a gun and said, "Give me money”. The proprietor told him *470to take the money and defendant proceeded to clean out the cash register. He then examined a wallet on a nearby desk, which was empty, and asked, "Is that all?” Then he "turned around and walked out [of the store] very calmly”. The proprietor testified that during the robbery defendant was calm and did not appear agitated or excited.
A short time later, a police officer responding to a radio report of the robbery, spotted defendant approximately a quarter of a mile from the liquor store. The officer exited his police car armed with a shotgun, and directed defendant to halt. Defendant looked over his shoulder, then turned and fired four shots at the police officer. The officer returned the fire. Each missed the other. Moments later, surrounded by several police officers, defendant dropped his weapon and surrendered.
The next day, upon questioning by a Spanish-speaking police officer,1 who first gave defendant his Miranda rights, defendant confessed to the robbery and shooting. He disclosed that he had stolen the gun from a grocery store in his neighborhood. He further stated that he had fired at the police officer because "he was just scared”.
Prior to his trial, defendant served a notice pursuant to CPL 250.10 that he intended to rely on an insanity defense and would offer psychiatric evidence in support thereof. Subsequently, the insanity defense was withdrawn before the presentation of the defendant’s case,2 and the court indicated to the jury that the psychiatric testimony that the defense would present would be received on the limited issue of intent.
The court specifically instructed the jury as follows:
"Before we begin the defendant’s case, I would like to offer a word of explanation to you.
"As I understand it, the defendant’s witness, or the next two witnesses, will be a psychologist and a psychiatrist.
"The defendant in this case has not interposed a defense of not guilty by reason of insanity. There was no claim he was insane at the time this happened as provided by law. It’s being offered on the question of intent and may be considered for that purpose.
*471"In addition, some of these witnesses will be permitted to testify to some hearsay, that is, what other people said to them, probably for the most part what the defendant said to them during this examination, and this is permitted for the purpose of the fact that the person said it, not for the purpose that what they said is true.”
No objection was taken to the limiting instructions, which thus became the law of the case. Based upon the limiting instructions, the trial court ruled that the expert psychiatric testimony upon which defendant now relies was simply not available to support the affirmative defense of extreme emotional disturbance.
Even if we consider the psychiatric testimony on this appeal despite the limiting instructions, it is clear that the expert testimony was not sufficient to establish the elements of the affirmative defense.
It is an affirmative defense to the crime of attempted murder that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse (Penal Law §§ 110.00, 125.27; People v Patterson, 39 NY2d 288, 302, affd 432 US 197), and the defendant is required to establish such defense by a preponderance of the credible evidence (Penal Law § 25.00 [2]; People v Patterson, supra).
The Court of Appeals has indicated that the defense of extreme emotional disturbance has two principal elements (People v Casassa, 49 NY2d 668, 678-679, cert denied 449 US 842). The first one, that the defendant acted under extreme emotional disturbance, is "wholly subjective—i.e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham” (People v Casassa, supra, at pp 678-679). The second component requires that there be a reasonable explanation or excuse for the particular emotional disturbance (People v Casassa, supra, at p 679).
It is clear that the affirmative defense of extreme emotional disturbance was intended to replace "the traditional language of 'heat of passion’, with a new formulation”, and thus avoid "so arbitrary a limit on the nature of circumstances that might justify a mitigation” (People v Patterson, supra, at pp 300-301). Nevertheless, implicit in the Model Penal Code formulation of the defense, from which our statute is derived, *472is the concept that an extreme emotional disturbance is excusable only " 'if it is occasioned by any provocation * * * for which the offender was not culpably responsible’ ” (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980], quoting from the Final Report of the National Commission on Reform of Federal Criminal Laws—Proposed New Federal Criminal Code [18 USC] [Jan. 7, 1971]). "Under this formulation, extreme emotional disturbance will not reduce murder to manslaughter if the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as by involving himself in a crime” (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980]; emphasis added).
Thus, it must be concluded that in enacting the affirmative defense, the Legislature did not intend it to apply where the emotional stress arises out of and is directly related to the commission of an armed violent felony, such as robbery in the first degree. Obviously, a person committing an armed robbery may be acting under extreme emotional stress which might overwhelm him and cause him to lose self-control. According to the psychiatric testimony, that is precisely what happened in this case.
The defense psychiatrist described defendant as mildly retarded with several pronounced personality disorders, including schizophrenia. However, the defense psychiatrist testified that defendant was not psychotic on the day of the robbery and shooting. He further testified that defendant was not "legally insane”, "[b]ecause * * * up until the firing of the gun, he knew what he was doing”. The defense psychiatrist opined: "[W]hat I saw, was a man who knew what he was doing, but was overwhelmed by tremendous strain, and the reaction was automatic, but he knew what he was doing up until the time he started firing the weapon” (emphasis added).
The psychiatrist gave the following further responses on redirect examination:
"Q. You have referred to emotional strain and stress and pressure. Can you be specific as to your opinion of what those pressures were at the moment that [defendant] shot the gun? What were the pressures confronting him?
"A. The pressures of being out of work, of knowing that he had done something bad, something wrong.
"Q. When you say, 'done something wrong’—
*473"A. The robbery, not knowing what to do about it, and being confronted with a police officer, I believe it was overwhelming to him.”
The testimony does not describe a significant mental trauma that has affected the defendant’s mind for a substantial period of time, simmering in the unknown subconscious and then coming to the fore (see, People v Patterson, 39 NY2d 288, 303, supra). Nor can such a result properly be achieved, in my view, by linking the situation which led to the commission of the armed robbery with the alleged "detached, isolated explosive episode” which according to the defense psychiatrist prevented defendant from reflecting upon his actions at the time of the shooting.
Defendant’s actions at the time of the robbery and his subsequent shooting at the police officer were not bizarre so as to add credible support to the claim of extreme emotional disturbance, unrelated to defendant’s own culpable conduct (cf. People v Moye, supra). Once defendant had decided to rob the liquor store (assuming it was a spur of the moment decision), it is not disputed that he calmly committed the crime. Afterwards, he walked from the store, turned left, but upon changing his mind, he turned around and walked back past the store, motioning to the store owner, apparently to stay inside the store. Defendant then proceeded for a distance of about one-quarter mile before he was stopped by the police. Any hesitation by the defendant during his shooting encounter with the police was clearly associated by the defense psychiatrist with the situation in which defendant found himself, knowing he had "done something bad, something wrong”. Moreover, I cannot see any significance in defendant’s statement, made to the Spanish-speaking police officer the day after the shooting, in substance, that he still suffered some residual effects from eating some toxic fruit as a youngster in Santo Domingo. The defense psychologist testified concerning this long past incident, allegedly involving some unknown fruit with hallucinogenic properties, as related to him, not by the defendant, but by defendant’s brother; but there was no documentation of such an alleged event. Nor did the experts proffered by defendant link the alleged incident with the robbery or the shooting. The defense psychiatrist never attempted to relate this "fruit of a poisoned tree” to defendant’s mental state at the time of the shooting. In fact, the psychiatrist never mentioned the toxic fruit incident at all in his testimony. Further, I simply cannot agree with my colleagues *474in the majority that defendant, who engaged in a shoot-out with the police officer after he had committed an armed robbery, was entitled to a charge as to extreme emotional disturbance because he had been unemployed for a period of nine months prior to the crime and allegedly suffered from an "inadequate fragile personality”.
Accordingly, it cannot be said that there was sufficient credible evidence which would warrant a charge to the jury on the affirmative defense of extreme emotional disturbance (compare, People v Walker, 64 NY2d 741, with People v Moye, 66 NY2d 887, supra).
Finally, it is noteworthy that as a result of the testimony of the defense psychiatrist that defendant "could not formulate an intent to harm the officer” and that his behavior in shooting at the officer was "a detached, isolated explosive episode * * * having no purpose or prethinking at all”, the trial court charged the jury with respect to the count of attempted murder, as to the lesser included offenses of attempted aggravated assáult upon a police officer, attempted assault in the first degree, and reckless endangerment in the first degree. Thus, the jury was permitted to consider lesser degrees of the crime of attempted murder in the first degree and thereby exercise an appropriate degree of leniency, if it had been so inclined, in accord with the facts as presented in this case.
Mollen, P. J., and Bracken, J., concur with Gibbons, J.; Lawrence, J., concurs in the affirmance of the convictions of robbery in the first degree and criminal possession of a weapon in the third degree, but dissents as to the reversal of the conviction of attempted murder in the first degree and votes to affirm said conviction, in an opinion, in which Weinstein, J., concurs.
Judgment of the County Court, Westchester County, rendered December 12, 1981, modified, on the law, by reversing the conviction of attempted murder in the first degree, and the sentence imposed thereon is vacated. As so modified, judgment affirmed and new trial ordered as to the count of attempted murder in the first degree.
. Defendant came to this country in 1979 from Santo Domingo and could speak very little English.
. The record does not disclose precisely when the insanity defense was withdrawn, but following the court’s charge to the jury, defense counsel indicated that the insanity defense was withdrawn "long ago”.