in this Court. Cf. Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363, 368 n. 3 (1977). In any event, in light of the record, I am at a loss to understand the basis for dismissing the writ of certiorari with respect to the other questions expressly raised or fairly subsumed in the questions presented in the petition. These issues are important and we should decide them. I respectfully dissent from the judgment of dismissal. Syllabus PATTERSON v. NEW YORK APPEAL FROM THE COURT OF APPEALS OF NEW YORK No. 75-1861. Argued March 1, 1977-Decided June 17, 1977 New York law requiring that the defendant in a prosecution for seconddegree murder prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter held not to violate the Due Process Clause of the Fourteenth Amendment. Mullaney v. Wilbur, 421 U. S. 684, distinguished. Pp. 201-216. (a) Such affirmative defense does not serve to negative any facts of the crime which the State must prove in order to convict, but constitutes a separate issue on which the defendant is required to carry the burden of persuasion. Pp. 206-207. (b) The Due Process Clause does not put New York to the choice of abandoning such an affirmative defense or undertaking to disprove its existence in order to convict for a crime which is otherwise within the State's constitutional powers to sanction by substantial punishment. If the State chooses to recognize a factor that mitigates the degree of criminality or punishment, it may assure itself that the fact has been established with reasonable certainty, and to recognize at all a mitigating circumstance does not require the State to prove beyond a reasonable doubt its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, expensive, and inaccurate. Pp. 207-209. 39 N. Y. 2d 288, 347 N. E. 2d 898, affirmed. WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 216. REHNQUIST, J., took no part in the consideration or decision of the case. Victor J. Rubino argued the cause for appellant. With him on the briefs was Betty D. Friedlander. John M. Finnerty argued the cause for appellee. With him on the brief was Alan D. Marrus. MR. JUSTICE WHITE delivered the opinion of the Court. The question here is the constitutionality under the Fourteenth Amendment's Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law. I After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his fatherin-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head. Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) "intent to cause the death of another person"; and (2) "caus[ing] the death of such person or of a third person." N. Y. Penal Law § 125.25 (McKinney 1975).1 Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he "acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." 2 1 References herein to the charge of "murder" under New York law are to this section. Cf. N. Y. Penal Law § 125.27 (McKinney 1975) (murder in the first degree). 2 Section 125.25 provides in relevant part: "A person is guilty of murder in the second degree when: "1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that: "(a) The defendant acted under the influence of extreme emotional New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person "under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance." Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance.* The jury was instructed as to the elements of the crime of murder. Focusing on the element of intent, the trial court charged: "Before you, considering all of the evidence, can convict this defendant or anyone of murder, you must believe and decide that the People have established beyond a reasonable doubt that he intended, in firing the gun, to kill 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 the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime." 3 Section 125.20 (2), N. Y. Penal Law § 125.20 (2) (McKinney 1975), provides: "A person is guilty of manslaughter in the first degree when: "2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision." * Appellant also contended at trial that the shooting was accidental and that therefore he had no intent to kill Northrup. It is here undisputed, however, that the prosecution proved beyond a reasonable doubt that the killing was intentional. either the victim himself or some other human being. "Always remember that you must not expect or require The jury was further instructed, consistently with New York law, that the defendant had the burden of proving his affirmative defense by a preponderance of the evidence. The jury was told that if it found beyond a reasonable doubt that appellant had intentionally killed Northrup but that appellant had demonstrated by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance, it had to find appellant guilty of manslaughter instead of murder. The jury found appellant guilty of murder. Judgment was entered on the verdict, and the Appellate Division affirmed. While appeal to the New York Court of Appeals was pending, this Court decided Mullaney v. Wilbur, 421 U. S. 684 (1975), in which the Court declared Maine's murder statute unconstitutional. Under the Maine statute, a person accused of murder could rebut the statutory presumption that he com 5 The trial court's instructions to the jury focused emphatically and repeatedly on the prosecution's burden of proving guilt beyond a reasonable doubt. "The burden of proving the guilt of a defendant beyond a reasonable doubt rests at all times upon the prosecution. A defendant is never obliged to prove his innocence. "Before you can find a defendant guilty, you must be convinced that each and every element of the crime charged and his guilt has been established to your satisfaction by reliable and credible evidence beyond a reasonable doubt." App. A48-A49. |