testimony re- ' garding Mercer’s capacity to know right from wrong when committing the crimes, the jury, by its verdict, undoubtedly rejected Schutkeker's opinion as not credible. 23 . Such a challenge would likely be unsuccessful as the Supreme Court has upheld state statutes placing the burden of proving insanity on the defendant. See Reed, supra, at 18, 104 S.Ct. 2901 (citing Leland v. Oregon, 343 U.S. 790, 806, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (Frankfurter, J., dissenting)). In New York, the insanity defense was first legislated as an affirmative defense in 1984, thereby placing the burden of its proof, by a preponderance of the evidence, on the defendant. 1984 N.Y. Laws c. 668. 24 . Referring to In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (<HOLDING>). 25 . In Gaines, supra, the Second Circuit
holding that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged holding that even when a jury instruction is defective such a defect is cured when the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt holding state must prove every element of an offense beyond a reasonable doubt and a scheme that shifts the burden of proof to the defendant by presuming a fact upon proof of the other elements of the offense violates due process holding that no person shall suffer the onus of a criminal conviction except upon sufficient proof  defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense holding that conviction of a crime requires proof beyond a reasonable doubt of every fact necessary to constitute the crime