(dissenting in part). We agree that the judgment of conviction must be reversed, but we do not concur with the rationale enunciated by the majority or their recommendation for a new trial. There is no dispute that defendant bore the burden of establishing, by a preponderance of the evidence, that he lacked criminal responsibility by reason of mental disease or defect (see, Penal Law § 40.15; People v Kohl, 72 NY2d 191). The record reveals, however, that defendant met that burden.
On September 11, 1987, defendant went on an unprovoked shooting rampage which resulted in the death of the Village of Dexter Police Chief, the death of a friend and the attempted killing of a State Trooper. At trial, defendant argued that he was not responsible for his conduct by reason of mental disease or defect (Penal Law § 40.15). Defendant called three psychiatrists to testify on his behalf. Two of them testified that defendant was suffering from a chronic mental illness, schizophrenia, paranoid type, and thus lacked the capacity to know or appreciate the nature and consequences of his conduct. Their diagnosis was confirmed by another psychiatrist who treated defendant at the Rochester Psychiatric Center following a determination of incompetency rendered at the close of the People’s case in a prior trial. The psychiatric testimony was corroborated by a number of lay witnesses who testified that defendant had demonstrated increasingly bizarre behavior for a considerable period of time prior to September of 1987, dating as far back as 1981. In rebuttal, the People produced a psychologist who confirmed defendant’s psychiatric diagnosis but was otherwise unable to offer an opinion whether defendant was criminally responsible for his conduct. The jury rejected defendant’s insanity defense and convicted him of manslaughter and attempted murder.
Where the record presents conflicting expert testimony on the question of the defendant’s mental state at the time the crime was committed, there is no basis to disturb the jury’s verdict (see, People v Kennedy, 162 AD2d 987, 988, lv denied 76 NY2d 894). Similarly, in those cases where the record offers a valid basis for the rejection of the psychiatric opinions, the presumption of sanity is sufficient to satisfy the People’s burden (see, People v Schiavi, 99 AD2d 665, 666, affd 64 NY2d *276704). Neither situation, however, is present in this case. On the contrary, the psychiatric proof of defendant’s insanity on the date in question was uncontradicted and, at oral argument of this appeal, the People conceded that they were not able to submit any proof to rebut defendant’s psychiatrists’ opinions. Here, the nature and quality of the proof offered by defendant on that issue was sufficient to establish the affirmative defense of mental disease or defect by a preponderance of credible evidence. In the presence of such proof, the presumption cannot serve to satisfy the People’s burden (see, People v Rivera, 78 AD2d 1002).
We conclude that the verdict is against the weight of the evidence. In our view, defendant was laboring under a mental disease on September 11, 1987, that prevented him from knowing the nature and consequences of his conduct or that it was wrong (see, People v Barnes, 98 AD2d 977; People v Rivera, supra). Thus, County Court erred in denying defendant’s posttrial motion to set aside the verdict.
Accordingly, we would reverse the judgment of conviction, remit the matter to County Court with a direction to enter a directed verdict of not responsible by reason of mental disease or defect (CPL 470.45; People v Barnes, supra; People v Rivera, supra) and issue an examination order pursuant to CPL 330.20 (2).
Balio and Lawton, JJ., concur with Green, J.; Fallon, J., dissents in part in a separate opinion in which Callahan, J. P., concurs.
Judgment reversed, on the law, motion granted and new trial granted on count two of the indictment; indictment otherwise dismissed, without prejudice to the People to represent any appropriate charges to another Grand Jury.