or "mental infirmit[y]” that does not rise to the level of insanity. People v. Casassa, 49 N.Y.2d 668, 677, 427 N.Y.S.2d 769, 404 N.E.2d 1310, cert. denied, 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50 (1980). See also DeLuca v. Lord, 77 F.3d 578, 584-85 (2d Cir.) (collecting New York authorities), cert. denied, 519 U.S. 824, 117 S.Ct. 83, 136 L.Ed.2d 40 (1996). Although the prosecution typically bears the burden of disproving a defense, see N.Y. Penal Law § 25.00(1), EED is an "affirmative defense” which a defendant has the burden proving by a preponderance of the evidence. N.Y. Penal Law § 25.00[2]. The United State Supreme Court has rejected a constitutional challenge to precisely this burden-assignment scheme. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (<HOLDING>) 7 . The Court questions whether defense
holding that doctrine does not violate due process holding that the kentucky supreme court erroneously put the burden on the defendant to show eed when it was actually the governments obligation to prove a lack of eed holding that the new york statute assigning to the accused the burden of proving eed did not violate due process protections holding that the burden of proving that the employee did not make reasonable efforts is on the defendant holding that the defendant bears the burden of proof and that such a disposition does not violate the due process clause