¶1concurs in part and dissents in part in a memorandum as follows: I would hold this matter in abeyance and remand for a hearing on whether the defendant knew what he was doing or whether he knew what he was doing was wrong. (See, general discussion in McQuillan, Insanity as Affirmative Defense—A Proposed Standard in New York, NYLJ, June 22, 1987, at 1, col 3.)
¶2The new formulation with burden of proof on the defendant postdates this offense. (Penal Law § 40.15.) Nonetheless, he should be afforded a full opportunity to raise the insanity situation. Therefore, I concur with the majority on the issue of timeliness. However, it appears to me that Justice Berkman was correct in stating that it was doubtful "that such a defense might succeed” anymore than it did.
¶3*302What opinion could we get that is any more relevant to 1983 than that of the physician who treated him in 1982 and 1983 as to what the defendant’s condition was at the time of the offense? So, before we vacate the conviction in a nonjury trial, let us have a hearing held to see what relevant testimony a court-appointed psychiatrist can honestly give.