The only question before us is the *333purely legal one of whether Justice Crane properly dismissed various counts of the indictment, rather than whether the defendant is guilty of any crime. The latter question must be decided by a jury trial.
In the order appealed herein, the Supreme Court dismissed nine counts of the indictment finding that the prosecutor’s justification charge had impaired the integrity of the Grand Jury proceeding. The court held that the justification statute permitted the Grand Jury to consider only the defendant’s subjective state of mind in evaluating the reasonableness of his conduct. Further, based upon a newspaper account of an interview of Darryl Cabey at St. Vincent’s Hospital and an account by Police Officer Peter Smith of a statement made by Troy Canty immediately after the shootings, the court ruled that it appeared that both Canty and Ramseur had lied to the Grand Jury, and that this postindictment assessment required dismissal of the counts of the indictment affected by their testimony, The majority of this court would affirm these rulings of Criminal Term. I disagree and would reverse the order and reinstate the dismissed counts of the indictment.
It must be emphasized that what we are concerned with is the legal validity of the indictment, that the actual events and resolution of the facts as they took place on the subway on December 22, 1984, must await the actual trial. The District Attorney furnished a detailed and lengthy statement to the Grand Jury explaining the law. He closely followed the language of the statute, explaining that one could invoke deadly force if he "reasonably believed” that he was faced with deadly physical force and that it was necessary to use this force to repulse a threatened attack, or if he "reasonably believed” that he was about to be held up and that such deadly force was required to frustrate the threatened crime. Thereafter, a grand juror asked for an amplification of the term "reasonably” and the prosecutor gave the following answer:
"mb. waples: Okay. I will reemphasize three elements of the defense of justification.
"The first element is that he must in fact believe in his own mind that he was in a situation [in] which he feared that deadly physical force was about to be applied against him.
"The second element is that his response, assuming that he did actually so believe his response, was his response reasonable under the circumstances and in determining whether it *334was reasonable under the circumstances you should consider whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.
"So, there’s both a subjective and objective element to this. First of all, you have to determine whether the defendant, in his own mind, believed he was in the kind of peril that permitted him to use deadly physical force. You must also then determine whether his response was reasonable under the circumstances, whether that was the action—the response was the action that he—that [of] a reasonable man who found himself in the defendant’s situation and if it was unreasonably excessive or—or otherwise unjustifiable it—then the defense would not be made out and the third element is the question of retreat.”
The Supreme Court held, and the majority of this court agrees, that the District Attorney erred seriously in his additional explanation, in that the defendant’s conduct should have been judged by a strictly subjective standard, focusing only on the state of mind of the accused rather than what a "reasonable” person might have done under the same circumstances.
I agree with what is the view of my colleagues—that the personal belief of a defendant is critical in deciding whether he was legally justified in using deadly force to protect himself. After this initial agreement with them, I must part company. They would apply a purely subjective test, considering only the personal belief of the defendant. It follows that they would reject a standard which would take into account whether the defendant’s actions were based on neurotic fears or a distortion of the situation with which he was confronted, although such perception was not reasonable under the circumstances presented.
Logic, public policy and the law mandate a two-pronged inquiry. First it is clear that if a defendant is not afraid that he is threatened by deadly physical force or about to be robbed, then he has no legal defense of justification. If he did have such a subjective apprehension, then the second inquiry which the statute imposes is whether he "reasonably” believed that he was about to be robbed and that deadly force was necessary to prevent the crime. In short, what is called for is a two-step test—subjective belief on the part of the defendant that he is threatened and then, this belief is measured by what a reasonable person would believe in the defendant’s situation.
*335Since 1829, New York’s penal statutes have required a reasonable belief that one’s life is in imminent peril before one could use deadly physical force in self-defense. Thus, the Revised Statutes of 1829 justified homicide "[w]hen committed in the lawful defense of such person * * * when there shall be a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished” (part IV, ch I, tit 2, art 1, § 3 [2]).
Twenty years later, in Shorter v People (2 NY 193, 197 [1849]), the Court of Appeals held the "reasonable ground” of the 1829 statute to be the same as the belief of "any reasonable man”.
Upon the revision of the Penal Law in 1881, the language of the 1829 statute was continued in Penal Code of 1881 § 205. By its continuance of the earlier language, the Legislature obviously ratified the Court of Appeals interpretation of the 1829 statute requiring an objective standard of a "reasonable man”. (See, Lucenti v Cayuga Apts., 48 NY2d 530, 541.) The words of section 205 were subsequently accepted, in haec verba, into Penal Law of 1909 § 1055.
In People v Lumsden (201 NY 264 [1911]), the Court of Appeals, construing this language, approved the following instruction, again requiring the objective standard of a "reasonable man”: " 'Under the provisions of the [justification] statute, in case a person makes an assault or attack upon another under such circumstances as would lead a reasonable man to believe that he is about to kill or to do great bodily injury, and there is imminent danger of his doing so, then the person attacked has a right to kill and if under such circumstances he did kill it would be justifiable in law’ ” (supra, at p 268; emphasis added).
In People v Tomlins (213 NY 240, 244 [1914]), Judge Cardozo once more enunciated the reasonable man standard: "We think that if the situation justified the defendant os a reasonable man in believing that he was about to be murderously attacked, he had the right to stand his ground.” (Emphasis added.)
In People v Ligouri (284 NY 309, 316 [1940]), the Court of Appeals was unequivocal, using the following language: "If the circumstances justified the belief on his part that he is in danger of inevitable and irreparable injury, although it should turn out he was mistaken, an ordinarily prudent man under *336the same circumstances would be justified in doing what he did, if he thinks he is in danger of death * * * but he could not do more than necessary, more than what an ordinarily prudent man under the same circumstances would be justified in doing. ” (Emphasis added; see also, People v Cherry, 307 NY 308, 310, 317 [1954].)
In 1965, the Penal Law was again revised. Present Penal Law § 35.15, however, continues the requirement of an objective standard by authorizing a person to use deadly physical force only "when and to the extent he reasonably believes such to be necessary to defend himself’ and when "[h]e reasonably believes that such other person is using or about to use deadly physical force”, or when he "reasonably believes that such other person is committing or attempting to commit a * * * robbery”. Thus, the reasonable objective standard set forth in prior statute and case law was approved once more by the State Legislature. (Lucenti v Cayuga Apts., supra, at p 541.)
The Model Penal Code, adopted by the American Law Institute, propounded a purely subjective definition for the defense of justification. It rejected any requirement for a test of reasonableness. By doing so, it sanctioned the resort to deadly force when the actor only "believes that such force is necessary to protect himself against death or serious bodily injury.” (Model Penal Code § 3.04 [2] [a] [ii] [C]; emphasis added; see also, Explanatory Note at 32, Comment at 35-37.)
The New York State Legislature rejected such a purely subjective approach. Clearly with the intent to conform the current statute to the previous law, it inserted the term "reasonably” into section 35.15, obviously repudiating the subjective standard of the justification defense which the Model Penal Code uses. It is extremely difficult for me to believe that the revisers of 1965 would deliberately engraft the word "reasonably” on to the definition of justification without intending to alter the purely subjective test of the Model Penal Code.
For the last 20 years, virtually every jurisdiction which has considered its code of criminal law has turned down the purely subjective justification standard as advanced by the Model Penal Code. Instead, most of the States have accepted the reasonable person test as the basis for the defense of justification. (See, Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 919-920 *337[1975]; see also, Singer, The Goetz Case Revives Issue of Self-Defense Standards, NYLJ, Feb. 18, 1986, p 1, cols 3, 4.)
After the 1965 revision, the Court of Appeals, in People v Collice (41 NY2d 906 [1977]), ratifying its interpretation of over a century and a half, wrote that: "Even if defendant had actually believed that he had been threatened with the imminent use of deadly physical force, and there is no evidence that he had so believed, his reactions were not those of a reasonable man acting in self-defense (Penal Law, § 35.15) * * * Hence, defendant’s conduct could not be reasonably perceived to have been useful in evading danger, let alone 'necessary to defend himself ” (supra, at p 907; emphasis added).
Even in this, its latest case on the subject, the Court of Appeals, interpreting Penal Law § 35.15, has continued to construe the language "reasonable man acting in self-defense” the same as "reasonably”, the critical word in the justification statute. (Accord, People v Comfort, 113 AD2d 420 [4th Dept 1985].)
Penal Law § 40.00 (1) provides: "In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist” (emphasis added).
Criminal Term was influenced by this duress statute, which expressly defines reasonableness in objective terms, while at the same time the justification statute simply alludes to reasonable belief. It is not difficult to explain this apparent incongruity. The source of the duress statute is the Model Penal Code, which had a test that was virtually the same. (See, Model Penal Code § 2.09.) To the contrary, as discussed before, the Model Penal Code’s justification defense enunciated a totally subjective test. It did not contain any mandate for reasonableness. The New York legislative revision of the Penal Code, however, expressly turned down the purely subjective test when it incorporated the word "reasonably” into section 35.15. By so doing, it continued in the criminal law the principle that had been the statutory law since 1829.
In applying section 35.15’s "reasonable” person filter to the purely subjective belief of the actor, the trier of fact is not foreclosed from considering the specific circumstances and the *338background and knowledge of the particular defendant. (See, People v Hamel, 96 AD2d 644, 645 [3d ed 1983]; Prosser and Keeton, Torts § 32, at 175-185 [5th ed].)
Indeed, in the very instruction before us, the Grand Jury was twice told to examine the reasonableness of defendant’s conduct by reference to a "reasonable man in the defendant’s situation”. Although a trial court would no doubt give an instruction with much greater particularity, "a Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law”. (People v Calbud, Inc., 49 NY2d 389, 394 [1980].)
People v Miller (39 NY2d 543 [1976]) provides no support for the majority view herein. Although the Court of Appeals noted that a defendant’s "state of mind” was "critical to a claim of justification” (supra, at p 548), that case cannot be extended to support the view that the defendant’s subjective state of mind is the only basis upon which all justification claims rest.
People v Santiago (110 AD2d 569 [1985]), the only First Department case relied upon by Criminal Term, is subject to serious doubt. This court’s opinion does not discuss the relevant Court of Appeals decisions in Collice, Tomlins, Lumsden or Ligouri (supra). It thus seems likely that the Santiago opinion, which was rendered almost a month after the Grand Jury charge in this case, is fatally flawed.
Thus, Justice Sandler, in People v Montanez (— AD2d —), although joining in the result, concurred separately and stated the law to be essentially as expressed in this dissent because of his expressed "doubts as to the correctness of the principles set forth in the memorandum opinion in Santiago, and here reaffirmed” and because he believed "the question of sufficient importance to merit a more detailed judicial analysis than it has so far received” (supra, p —).
It seems significant, as well, that Justice Sandler, in concurring, stated also (supra, p —): "Notwithstanding that which I have said in regard to the instruction, I am comfortable with the result that has been reached in this case. This is one of those unusual cases which left me with very strong doubts as to whether the jury’s verdict was in fact justified by the evidence.”
The same appears true of People v Gonzalez (80 AD2d 543 [1st Dept 1981]), where this court’s decision did not reflect any awareness of the many contrary precedents of the Court of Appeals.
*339The Second Department decisions have also failed to distinguish, or even discuss, the many contrary Court of Appeals precedents, and therefore the correctness of those rulings is also highly suspect. Moreover, these First and Second Department cases deal with charges given by the trial court and, as noted, there is no need for the same precision in charging a Grand Jury. (See, People v Calbud, Inc., 49 NY2d, at p 394.)
Criminal Term also ruled that out-of-court statements by two of the youths shot by the defendant, which only became known to the prosecutor and defense counsel eight months after the second indictment, constituted exculpatory evidence necessitating dismissal of nine counts of that indictment.
However, "[t]he Grand Jury is not, of course, charged with the ultimate responsibility of determining the guilt or innocence of the accused”. (People v Calbud, Inc., supra, at p 394.)
The limited role of the Grand Jury is to determine whether there is reasonable cause to believe that the accused has committed a crime for which he should stand trial. (People v Valles, 62 NY2d 36, 38 [1984].)
When potential exculpatory evidence comes to the attention of the District Attorney only after an indictment, there is no need to re-present the case to the Grand Jury. (People v Friedman, 97 AD2d 738, 739 [1st Dept 1983].)
The second Grand Jury heard nearly seven full days of testimony. This included some evidence which impeached the testimony of James Ramseur and Troy Canty, two of the wounded youths. That Grand Jury nevertheless found reasonable cause to indict the defendant. The additional information, which is yet legally unverified, was made available to the defendant by the prosecutor. The defendant, of course, can use this information, if he so chooses, at his trial. Likewise, there was actual impeachment of Canty before the Grand Jury in the testimony of Detective Penelton, who interviewed Canty shortly after the shooting.
In People v Pelchat (62 NY2d 97 [1984]), the Court of Appeals held that a prosecutor, upon learning that the only evidence supporting an indictment was mistaken, should have obtained a superseding indictment or sought permission to represent the case. Here, however, there was no admission that any Grand Jury testimony was false or mistaken. Criminal Term inferred such falsity from a prior inconsistent statement of one Grand Jury witness and a newspaper report appearing *340eight months after the indictment based upon an interview with a victim suffering from grave neurological injury.
The prosecutor here had no knowledge of this information at the time of the presentment before the Grand Jury. Therefore, the integrity of that proceeding was not compromised.
Most significantly, in Pelchat (supra), there was no other incriminating evidence before the Grand Jury. (See, 62 NY2d, at pp 99, 107.) Here, there was sufficient evidence, apart from the testimony of Ramseur and Canty, tending to show a lack of justification on the part of defendant in his act of shooting four youths. Indeed, Criminal Term’s decision expressly acknowledged the legal sufficiency of this other evidence. Moreover, the defendant made statements which themselves were damaging, seemingly inconsistent with his defense of justification. Since the Grand Jury could, therefore, have disregarded the testimony of Canty and Ramseur and still voted the indictment, Criminal Term was not justified in holding that the integrity of the proceeding was fatally impaired by the postindictment legally unverified information about Cabey and Canty.
There are few cases in which both the legislative history and the principles enunciated by the Court of Appeals have presented such an unanimity of construction with respect to the meaning of the statute as they have with respect to the reasonable person standard for justification.
The historic reason for this consistency is compelling. The subjective test which the majority seeks to make the law of this State would serve to give legal excuse to any hot-tempered individual, fearful neurotic, or simply excessively self-righteous person who rashly uses deadly force. If the subjective standard is adopted by us, it may provide any citizen, whether sensible or not, with a justification to shoot or kill, although the circumstances do not reasonably warrant such drastic action. We have come a long way from the law of the jungle, and Penal Law § 35.15 and the considered decisions of the Court of Appeals were promulgated to preclude this sort of dangerous and indiscriminate deadly force.