¶1In this unwitnessed family affair shooting the proof, on this record, does not establish that the defendant was guilty of murder beyond reasonable doubt. The motion made and entertained at the close of the People’s case to dismiss for failure of proof should have been granted and the indictment dismissed.
¶2The nearly undisputed testimony of the various witnesses establishes that the defendant was trying to act as a peace maker in a dispute between the decedent, her mother and other members of the family. It is established that, in the kitchen, the decedent first attacked defendant with a barbecue fork and thereafter with the knife inflicting a cut on defendant’s chin. The defendant thereafter went upstairs to the bathroom to treat the cut and was confronted in the hallway by the decedent, allegedly carrying a knife. Defendant thereupon went to a bedroom, procured a rifle, returned and, in the course of the ensuing argument, fired the gun killing decedent.
¶3In a statement given to the police by the defendant, he said “ I’m the one who shot her ” and this is the strongest testimony *111against the defendant but, in my opinion, does not overcome the People’s heavy burden of the defendant’s claim of self-defense. After the shooting, the defendant did not flee but, to the contrary, phoned the police, remained in the house, opened the door for the police, directed them to where his sister’s body was and thereafter voluntarily accompanied the police to the station house.
¶4If we turn to defendant’s case, which in my opinion is not necessary, the issue of self-defense is fairly established.
¶5The record in its entirety does not establish guilt of murder beyond a reasonable doubt, the only issue before the court (see People v. Williams & Serranno, 35 N Y 2d 783; People v. Yannarilli, 46 A D 2d 829; People v. Patterson, 21 A D 2d 356).
¶6While not necessary to this dissent, I would be of the opinion that the offer of proof as to prior specific acts of violence by the deceased should have been admitted.
¶7Accordingly, I dissent and vote to reverse.
¶8Kane, Main and Reynolds, JJ., concur with Sweeney, J.; Herlihy, P. J., dissents and votes to reverse in an opinion.
¶9Judgment affirmed.