I respectfully dissent and would affirm. I disagree that County Court erred in refusing to authorize funding for brain scans to attempt to confirm whether defendant suffered from brain damage. Defendant contends that such testing was needed to permit the jury to conclude that his cognitive limitations made his response to the victim’s behavior reasonably justified. Defendant made a formal request for a mental evaluation pursuant to County Law § 722. Two weeks later, he requested an evaluation by Dr. Kahn, a psychiatrist. Dr. Kahn concluded that defendant was in “very apparent dementia” and recommended neuropsychological testing. The court authorized funding for both that testing and for further sessions with Dr. Kahn. Thereafter, defendant sought authorization for brain scans as a result of reports of traumatic injury to his skull when he was an adolescent. The People opposed that relief on the ground that the only evidence of injury was a statement by defendant’s sister that she had spoken to defendant’s mother in Georgia, who stated that defendant “had a couple holes in his head, was unconscious for at least a week,” and reportedly was hospitalized.
The court’s denial of the application for brain scans on the ground that there was an insufficient showing of injury was not an abuse of discretion (see, People v Cronin, 60 NY2d 430, 433; People v Gallow, 171 AD2d 1061, 1062-1063, lv denied 77 NY2d 995). The testimony of two experts for the defense was sufficient to enable the jury to determine whether defendant was justified in his actions. They testified that defendant suffered from a cognitive deficiency and could not react appropriately to the victim. One expert testified regarding defendant’s performance on over 30 different cognitive tests. Whether defendant’s limitations resulted from traumatic injury is irrelevant. It is defendant’s condition at the time of the *906crime, not the cause of that condition, that is relevant, and the jury had that information (cf., Ake v Oklahoma, 470 US 68). (Appeal from Judgment of Monroe County Court, Maloy, J.—Murder, 2nd Degree.) Present—Pine, J. P., Balio, Fallon, Doerr and Boehm, JJ.