Doerr, J. (dissenting). I concur in the majority’s conclusion that the trial court’s instructions to the jury were confusing. However, in my view, it is unnecessary to reach this issue because I conclude that the verdict is not supported by sufficient evidence. Consequently, I would reverse and dismiss those counts of the indictment upon which defendant was convicted.
The verdict, when viewed in relationship to the court’s charge, is neither inconsistent nor repugnant (see, People v Goodfriend, 64 NY2d 695, 697). That is not to say that the verdict is proper. As the Court of Appeals stated in People v Tucker (55 NY2d 1, 8, n 5, rearg denied 55 NY2d 1039), that "is a problem of proof, not repugnancy.” The verdict here is not supported by sufficient evidence.
When viewing a verdict to determine if it is supported by sufficient evidence, the reviewing court must "determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (People v Bleakley, 69 NY2d 490, 495; see also, People v Thompson, 72 NY2d 410, 413, rearg denied 73 NY2d 870; Cohen v Hallmark Cards, 45 NY2d 493, 499). The test was not met here because there was no evidence adduced at trial from which the jury could have inferred that defendant could be psychotic for two of these killings and not psychotic for two. I agree with the majority that it is theoretically possible for a jury to conclude that defendant met the burden of proof to sustain an affirmative defense for some crimes, but not for others. The critical difference in an insanity case is that the issue of defendant’s sanity is necessarily based upon expert testimony. Here, Dr. Tanay testified that all of defendant’s actions were "part and parcel of the same psychotic situation”. The People presented no evidence on this issue, their expert having concluded that defendant was criminally responsible for all of his actions. Consequently, the jury’s conclusion, that defendant could be psychotic, sane, psychotic, then sane again, within a four-hour period of time, is based upon sheer speculation.
*150I reject the majority’s attempt to justify the verdict on the ground that the jury could freely choose to accept or reject all or part of each expert’s testimony. Although this is true as a general proposition, the jury’s decision to reject or accept testimony may "not involve any logical inconsistencies” (People v Kennedy, 47 NY2d 196, 204, rearg dismissed 48 NY2d 635). Here, the jury accepted Dr. Tanay’s expert opinion that defendant was not responsible by reason of mental disease or defect as to two of the killings. It was logically inconsistent for the jury to convict defendant of murder in the second degree despite the complete absence of expert proof that defendant’s mental condition could fluctuate so dramatically.
Denman, P. J., Balio and Lawton, JJ., concur with Green, J.; Doerr, J., dissents and votes to reverse in a separate opinion.
Judgment reversed, on the law, and new trial granted in accordance with an opinion by Green, J.