Brown, J. P., dissents and votes to reverse the judgment, with the following memorandum. I dissent based upon my belief that the admission into evidence of numerous black and white photographic prints and color slides of the naked victim and the crime scene, including five photographic prints taken of the unclothed body on the medical examiner’s autopsy table, deprived the defendant of a fair trial. Under the circumstances of this case, where the defendant admitted having committed the crime in the manner that the People alleged that it had been committed, the graphic and gruesome prints and the equally horrific color slides displayed to the jury, all of which were of limited, if any, probative value, effectively prohibited the jury from fairly and objectively considering the merits of the defendant’s claim that he was suffering from post-traumatic stress disorder as a result of his service in *712Vietnam and that he had acted under the influence of extreme emotional disturbance.
"Photographs of the victim’s corpse are likely to arouse the passions and resentment of the jury and thus should not be admitted unless they tend to prove or disprove some material fact in issue (People v Pobliner, 32 NY2d 356)” (People v Stevens, 76 NY2d 833, 835). But further, even if relevancy is established, such photographs are not automatically admissible. The trial court must, once having concluded that the photographs are relevant, then determine whether, balancing the probative value of the photographs against their prejudicial effect, the jury should be permitted to view them (see, People v Stevens, 76 NY2d 833, supra; see also, People v Bell, 63 NY2d 796). The record before us fails to indicate that the trial court engaged in any such balancing before its practically wholesale admission into evidence of the photographic prints and slides. In my opinion, the prints and slides were not admissible because they did not tend to prove or disprove a material fact in issue. And further, even assuming that the prints and slides had relevancy, it is clear to me that the prejudice engendered by virtue of this nauseating display far outweighed any conceivable probative value attendant thereto, and that the defendant was deprived of a fair trial as a result thereof.
In his opening statement the prosecutor indicated that he expected to establish that the defendant, after having engaged in consensual sexual relations with the victim, inflicted multiple blows to her head by use of a heavy object, probably a bottle full of pennies, and then killed her by knotting a brassiere around her neck and strangling her with it. In fact, the defendant had voluntarily surrendered to the police the day following the incident and confessed to the killing. Defense counsel conceded at trial that the victim’s death occurred precisely as the prosecutor had indicated, and argued only that the defendant had acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse (see, Penal Law § 125.25 [1] [a]). Thus defense counsel sought to have the jury find the defendant guilty of manslaughter in the first degree, but not guilty of murder in the second degree. The issue with which the jury was faced, therefore, was clear: Were the defendant’s admittedly intentional acts (see, Penal Law § 125.20 [2]; People v Patterson, 39 NY2d 288, 302), committed while he was acting under an extreme emotional disturbance for which there was a reasonable explanation? Although the People were, regard*713less of the defendant’s concessions, required to prove beyond a reasonable doubt that the defendant’s acts were intentional, given the posture of the defense it cannot be said that intent was "material fact in issue” (People v Pobliner, supra, at 369). Since the only proffered purpose for admitting the prints and slides into evidence was to establish that the defendant’s acts were intentional or deliberate, and the issue was not in dispute, it is my view that the prints and slides were not admissible (see, People v Blake, 139 AD2d 110, 116; cf., People v Sims, 110 AD2d 214, 222).
But, even assuming that the evidence under consideration was relevant to a material issue in the case, I conclude that the trial court improvidently exercised its discretion in admitting it (see, People v Stevens, 76 NY2d 833, supra). Given the testimony of the victim’s roommate and the ambulance attendant and the police officers who first arrived on the scene as to the condition of the victim’s body when it was discovered the morning after the homicide, as well as their testimony with respect to the crime scene and the defendant’s confession and his counsel’s concession that the homicide had occurred as the prosecution claimed that it had, and the detailed medical testimony, the prints and slides in which the victim’s body or some portion thereof frequently appeared can be said to have had only the slightest probative value. Certainly no purpose was served by inundating the jury with numerous prints and slides depicting the same gory scene from different angles and distances, to say nothing of the five autopsy prints. One need only briefly review the prints and slides of the victim’s naked body and of her battered head, unrecognizable from having been beaten with a bottle full of pennies with enough force to have broken the bottle, and clearly showing the effects of strangulation, to realize the devastatingly prejudicial effect they must have had upon even the most strongly constitutioned of jurors.
I can reach no other conclusion but that the prints and slides were offered not for any probative value that they might have had, but rather to inflame the jury and prejudice the defense.