dissent">Lynch, J. (dissenting).

The majority has affirmed the trial court’s refusal to charge the affirmative defense that the defendant shot at Officer Quinones while under extreme emotional disturbance for the reason that the defendant himself had denied any shooting. I find this contrary to the firmly established principle of New York law that a defendant is entitled to raise inconsistent defenses (People v Gaimari, 176 NY 84, 93; People v Lo Cicero, 27 Misc 2d 217, 242, revd on other grounds 17 AD2d 31, mod 14 NY2d 374; People v Chambers, 56 Misc 2d 683, 685). The principle is widespread through other jurisdictions (see 22 CJS, Criminal Law, § 54). In many of them an exception has been made for the defense of entrapment, that is, the defense is not available to a defendant denying any participation (see Ann. 61 ALR2d 677). But, with respect to this limited exception, it has been suggested that it "seems to be erroneous and there is a recent trend to allow the defendant to raise inconsistent defenses when entrapment is pleaded. This also appears to be the trend in the federal courts” (7 NY Crim Prac, par 63.5 [2], p 63-43).

A plea of not guilty does not evoke only those defenses that are consistent; it evokes all possible defenses (People v Lo Cicero, supra, p 243; see, also, Henderson v United States, 237 F2d 169, 172). Since the rule of inconsistent defenses is but a restatement of this precept, there is no reason, apart from legislative direction (see CPL art 250), why it should not be applicable to all defenses including those denominated affirmative (People v Chambers, supra;Penal Law, § 25.00). I find, *164therefore, that the defendant’s denial of any shooting would not, of itself, preclude the affirmative defense of extreme emotional disturbance.

Granted that the defendant had the burden of establishing the defense by a preponderance of the evidence (Penal Law, § 25.00, subd 2), he is not relegated to the entirety of his own version. The jury is entitled to choose whatever of the defendant’s version it finds credible (People v Johnson, 45 NY2d 546), and, especially important here, the defendant may prove his defense by resort to whatever evidence presented on the prosecution’s side that the jury finds credible (People v Steele, 26 NY2d 526).

The jury here could have considered the defendant’s testimony: that he found Arah Blue in his apartment three or four weeks after he had told her he did not want to see her again; that he found $245 missing that he had saved for his children’s school tuition; that Arah Blue denied taking the money but refused to be searched and ran from the apartment; that the defendant chased her to the street.

The jury could have considered Miss Blue’s testimony: that the defendant returned home to find that his son had let her into the apartment; that because the defendant did not want her there he began beating his son; that she attempted to interfere but he began to beat her as well; that he threatened to kill both her and his son, and, when he went to get his gun, she ran out of the apartment and down 12 flights of stairs; that the defendant beat her to the street, apparently having taken the elevator; that when she arrived at the street the defendant was already shooting at Quinones. Viewing all of this in the light of the testimony of Officer Quinones, one would conclude that when the defendant rushed out on the street he grabbed and pointed his gun at a woman who was a stranger to everyone and that there was no motivation for his firing at the officer except for the latter’s command to drop the gun.

I find in all of this testimony evidence in support of the affirmative defense sufficient at least for a jury question (People v Argibay, 45 NY2d 45). I would reverse the conviction and remand for a new trial.

I agree with the majority that suppression should be denied. I cannot agree with its reason that would allow the policemen, who went into the closet to seize the weaponry, to be considered by some process of metempsychosis not to be policemen *165but to be the person who had told them what was hidden in the closet. I would deny suppression on probable cause (which is unquestioned) and the exigent necessity of instantly seizing what to the police had to be a cache of weapons and ammunition of a man who was at large and extremely dangerous because he had just senselessly fired four shots at a fellow officer.

Lane, J., concurs with Lupiano, J.; Murphy, P. J., and Kupferman, J., concur in result only; Lynch, J., dissents in an opinion.

Judgment, Supreme Court, Bronx County, rendered on April 12, 1978, affirmed.

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