Lublin v. Central Islip Psychiatric Center

Shapiro, J.

The petitioner was found not guilty of the crime of murder by reason of his insanity. He now appeals from an order of the County Court, Suffolk County, dated January 8, 1976, which, after a hearing, denied his motion, made pursuant to CPL 330.20, seeking his discharge or release from the Central Islip Psychiatric Center. The petitioner also appeals from (1) two orders of the same court, both dated September 10, 1975, which authorized the District Attorney of Suffolk County to employ two qualified psychiatrists to examine the petitioner and to testify, (2) so much of a further order of the same court, dated September 17, 1975, as denied his motion to close the hearing pursuant to rule 694.7 (subd [c]) of the Rules of this court (22 NYCRR 694.7 [c]) and (3) another order of the same court, dated February 23, 1976, which denied his motion for reargument. We reverse the order dated January 8, 1976 and remand the proceeding for the purpose hereafter stated.

THE ISSUES

The major issue is whether the petitioner or the Commissioner of Mental Hygiene had the burden of establishing, under the provisions of CPL 330.20 (subd 3), that the court be "satisfied that the committed person may be discharged or released on condition without danger to himself or others”. The County Court held that the burden of proof was on the petitioner.

A second issue is whether the District Attorney who, under the statute, must receive from the Commissioner of Mental Hygiene a copy of the application for release or discharge of the committed person, may be authorized by the court hearing the application to employ psychiatrists to examine the person and call them to testify as to the person’s mental condition. The County Court held that it could so authorize the District Attorney. The third issue is whether the County Court committed error in denying petitioner’s motion that the hearing be held in camera.

THE GOVERNING STATUTE

CPL 330.20, which deals with the commitment, confinement and release of a defendant acquitted on the ground of mental disease or defect, provides, in relevant part, as follows:

"1. Upon rendition of a verdict of acquittal by reason of mental disease or defect, the court must order the defendant to be committed to the custody of the commissioner of mental hygiene to be placed in an appropriate institution in the state department of mental hygiene. The court must direct the sheriff to temporarily hold the defendant pending designation of an appropriate institution in which the defendant must be placed, and when notified by the commissioner of mental hygiene of the designated institution, the sheriff must forthwith cause the defendant to be delivered to the head of such institution. Such defendant is entitled to the assistance of the mental health information service.

"2. If the commissioner of mental hygiene is of the opinion that a person committed to his custody, pursuant to subdivision one of this section, may be discharged or released on condition without danger to himself or to others, he must make application for the discharge or release of such person in a report to the court by which such person was committed and must transmit a copy of such application and report to the district attorney of the county from which the defendant was committed. The court may then appoint up to two qualified psychiatrists * * * to examine such person, to report within sixty days, or such longer period as the court determines to be necessary for the purpose, their opinion as to his mental condition. * * *

"3. If the court is satisfied that the committed person may be discharged or released on condition without danger to himself or others, the court must order his discharge, or his release on such conditions as the court determines to be necessary. If the court is not so satisfied, it must promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding. After such a hearing, the committed person must be discharged, released on such conditions as the court determines to be necessary, or recommitted to the commissioner of mental hygiene. The commissioner of mental hygiene must make suitable provision for the care and supervision by the department of mental hygiene of persons released conditionally under this section.

* * *

"5. A committed person may make application for his discharge or release to the court by which he was committed, and if, after receiving a report of the commissioner of mental hygiene, the court considers there may be merit in the application, the court must follow the procedure prescribed in subdivisions two and three of this section.”

PROCEEDINGS PRELIMINARY TO THE PETITIONER’S APPLICATION FOR HIS RELEASE

The petitioner was indicted for the murder of his wife in 1971 and thereafter, in May, 1973, was found not guilty by reason of insanity or, as the statute states, "by reason of mental disease or defect.” Pursuant to CPL 330.20 (subd 1) he was committed to the custody of the Commissioner of Mental Hygiene who placed him in the Mid-Hudson Psychiatric Center at New Hampton, New York. On May 14, 1974 petitioner was transferred to the Central Islip Psychiatric Center. In the summer of 1974 the director of Central Islip established a Special Release Committee to examine the petitioner to determine whether he was ready to be discharged from the center. On September 11, 1974 that committee reported in the negative. However, a second Special Release Committee, which was appointed soon after to re-examine the petitioner to determine whether he was ready for discharge, reported, on December 5, 1974, that he was ready for release. That report was signed by the director of Central Islip in January, 1975 and was sent by him, with the petitioner’s hospital record, to the Commissioner of Mental Hygiene.

In February, 1975 the commissioner directed Dr. Alphonse P. Falco, a psychiatrist, to form a multi-disciplinary panel to examine the petitioner and make findings of fact and a recommendation on the petitioner’s suitability for discharge. He did so. The panel consisted of Dr. Falco, Mr. Gail Kniffen, chief social worker of the Kings Park Psychiatric Center, and Mrs. Marge Lombardo, of the Mental Health Information Service. A report signed by Dr. Falco and Mr. Kniffen, dated February 28, 1975, was sent to the Long Island Regional Director of the Department of Mental Hygiene. The Falco-Kniffen report stated that the third member of the panel, Mrs. Lombardo, was present at all of the interviews and gave the other members the benefit of her observations, but requested that the report be considered independently of her opinions because her duties and responsibilities required that she remain unbiased. The report concluded that the petitioner was "not now psychotic” and that if any recommendation were to be made regarding his application for release "on the basis of Mr. Lublin’s present mental status the panel is constrained to agree that he is not presently psychotic.” Their report also stated that they were unable to assess the risk in terms of safety of others if he were released; nor could they make any recommendations based on dangerousness "since there were no available criteria to make this sort of prediction.” The report was based upon interviews with the petitioner, the ward staff and the petitioner’s physicians and their acting unit chief. The ward staff was reported to be unanimous in the opinion that petitioner belonged somewhere else and that he might do well in Las Vegas, where he planned to go, "because there is less structure out there,” though all were opposed to his release into a nearby community because they feared he would "continue to plague and annoy them” and might, "if thwarted, become violent”. The last view was based "solely on the history of the homicide he previously committed.” The petitioner’s physicians were unanimous in their opinion that at no time since his admission had he ever demonstrated any symptoms or signs indicative of a psychosis. There was also general agreement that no useful purpose would be served "in continuing the patient at Central Islip.” The physicians also stated their belief that there was a possibility of satisfactory adjustment if the petitioner went to reside with his cousin in Nevada. The diagnostic impression of the signers of the report was that the petitioner was not presently psychotic, that he had an underlying sociopathic personality structure and that "he is suffering from an emotional disorder with an effective component.”

On the basis of the foregoing report, the Commissioner of Mental Hygiene informed the court that he could not recommend the petitioner’s release "with any confidence that hazard would not attend on such release.”

THE PETITION AND THE COURT’S ACTIONS THEREON

On April 4, 1975, pursuant to CPL 330.20 (subd 5), the petitioner commenced this proceeding in which he requested an order discharging him on such condition as the court deems to be necessary. Counsel was appointed for him under article 18-B of the County Law.

In May and June, 1975, the County Court Judge, pursuant to CPL 330.20 (subd 2), appointed Drs. Morris Binder and Stephen Pellathy, qualified psychiatrists, to examine the petitioner and to report to the court their opinion as to his mental condition. The petitioner then moved to close the hearing; the motion was opposed by the petitioner’s mother-in-law, who cross-moved for permission to intervene in the matter amicus curiae. In July the District Attorney of Suffolk County moved for authority to employ two qualified psychiatrists to examine the petitioner to enable them to form an opinion as to whether he was suitable for discharge from the Central Islip Psychiatric Center and to testify at the hearing on the petition. By two orders dated September 10, 1975, the County Court granted the District Attorney’s motion. On September 17, 1975 the County Court denied both the petitioner’s motion to close the hearing and the mother-in-law’s motion to intervene in the matter.

THE HEARING ON THE PETITION

The petitioner waived a jury trial and the court proceeded with the hearing. Before doing so, and in order to determine whether to accept the petitioner’s waiver of a jury trial, the court took testimony from Dr. Pellathy to the effect that, on the basis of his examination of the petitioner on September 29, 1975, he concluded that petitioner was in good contact with reality, could understand legal terms and was capable of understanding the difference between a trial with and without a jury.

One of the petitioner’s witnesses was the chief psychiatrist at Central Islip who, on the basis of an examination of the petitioner’s hospital and medical records, diagnosed him as having schizophrenia and concluded that, while there was no cure for it, the illness might be in a state of remission. He then stated that his recommendation that the petitioner be released was a calculated risk. Also testifying as witnesses for the petitioner were two psychiatrists from Central Islip who had treated him. Both testified that the petitioner was not dangerous to himself or others and one, who had been on the two Special Release Committees, testified that he had recommended the petitioner’s release and still adhered to that opinion, even though the petitioner’s mental illness is not curable. The other testified that the petitioner was not in need of continuous psychiatric care in a hospital setting, that his illness was in remission and that he could be released on convalescent care. Finally, the director of Central Islip testified that, in his opinion, the petitioner was not dangerous and should be discharged under convalescent care, to be seen once a week by a treatment team at a clinic in New York State for at least six months.

Testifying for the Commissioner of Mental Hygiene were Dr. Falco and Mr. Kniffen, the authors of the afore-mentioned report to the commissioner. Dr. Falco testified that the petitioner would do better outside of a hospital, but that continued treatment at an out-patient clinic on a regular basis would have to be assured. Mr. Kniffen testified that petitioner seemed suitable for conditional release under a well-organized plan for supervision which should include close clinical contact. Dr. Falco conceded that the petitioner would be better, perhaps healthier, under out-patient care, but could not make a prediction as to the possibility of his committing a violent act. Mr. Kniffen also testified that he was unable to determine the degree of the petitioner’s darigerousness, though he stated that he felt the petitioner was not dangerous even though he flew into rages when his demands were not met. Both of the psychiatrists appointed by the court, Drs. Binder and Pellathy, testified that the petitioner was not dangerous to himself or others, though they differed as to the nature of Ms mental illness. Dr. Binder testified that the petitioner should be released outright, even though Ms prognosis was guarded. Dr. Pellathy testified that the petitioner was not in need of continuous psychiatric care in a hospital setting, though he expressed the view that the petitioner should be required to report back for periodic psychiatric checkups.

In accordance with the suggestion contained in Matter of Miller (Sherman) (46 AD2d 177, 132) that, in a hearing with respect to the discharge of a person committed to a hospital under CPL 330.20 after a verdict of acquittal by reason of mental disease, "the witnesses summoned to the new hearing should include hospital employees such as nurses, orderlies, housekeepers and others who have had daily or frequent contact with petitioner”, an assemblage of such witnesses was "paraded to the witness box at the hearing”. The court summed up their testimony as tending "to establish only that Lublin was from time to time embroiled in argument with others resulting in shouting and physical action on the part of either or both sides” (Matter of Lublin v Central Islip Psychiatric Center, 85 Misc 2d 48, 56). The court concluded that this established nothing as to Ms dangerousness or lack of it, which is the statutory test. All agreed that the petitioner had been a nuisance or was troublesome and that he easily became angry and was a discipline problem in the ward, but none attributed dangerous violence to him.

The two experts retained by the District Attorney, Dr. Zolan, a consulting psychiatrist, and Dr. O'Neill, former director of Central Islip, differed with all of the other experts. Dr. Zolan said that the petitioner was dangerous in the sense of capability to harm or injure others, and recommended that he not be released, even under supervision, adding "once a schizophrenic, always a schizophrenic.” Dr. O'Neill concluded that the petitioner would be potentially dangerous living in a community and should not be released at this time. On cross-examination he also conceded that he found no evidence of psychosis. He stated that petitioner was not dangerous to himself, but is potentially dangerous to others if he is frustrated.

THE APPLICABLE LAW

Before dealing with the legal issues in this proceeding, I feel that I should commend the petitioner's assigned counsel on the scholarly brief submitted by him and the equally thoughtful, scholarly and concerned opinion of Judge Oscar Murov, whose discussion of the issue of the burden and standard of proof reflects the troublesome nature of the question (Matter of Lublin v Central Islip Psychiatric Center, 85 Misc 2d 48, supra).

Because the statute fails to specify with whom the burden of proof lies and what standard the bearer of the burden must meet, it is of no help in resolving those issues. Judge Murov rejected the contention that those who insist upon continuing the petitioner in custody have the burden of proof, though he conceded that such a position "is not without substance, particularly in view of a series of Supreme Court decisions imposing the burden upon the People in cases where a potential loss of liberty or continued deprivation of liberty is involved. (See, e.g., Mullaney v Wilbur, 421 US 684; Matter of Winship, 397 US 358; Matter of Gault, 387 US 1; see, also, The Rights of the Person Acquitted by Reason of Insanity: Equal Protection and Due Process, 24 Maine L Rev 135)” (85 Misc 2d, at p 51).

Then, because the Supreme Court had not yet declared itself on the issue, the court declared (p 52) that it would "enforce the standard of proof heretofore applicable in this State * * * which requires the patient to prove by a preponderance of the evidence that he may be discharged or released upon condition without danger to himself or others” citing, as authority, People v Lally (19 NY2d 27), Matter of Miller (Sherman) (73 Misc 2d 690, vacated and remitted for a new hearing 46 AD2d 177, supra), Bolton v Harris (395 F2d 642) and Millard v Harris (406 F2d 964).

An analysis of those cases demonstrates, I believe, that they are not determinative here. In People v Lally (supra) there is no discussion or determination of where the burden of proof lies. In fact, in that case, there was no hearing in accordance with the predecessor statute of CPL 330.20, section 454 of the Code of Criminal Procedure. Rather, the defendant there stood on the contention that his original detention and commitment to Matteawan State Hospital under the statute (after his acquittal by reason of mental disease or defect) was unconstitutional as a denial of equal protection of the laws. Our Court of Appeals rejected that contention, saying (p 34): "The Supreme Court [in Baxstrom v Herold, 383 US 107] held that there was no reasonable distinction as to a civil commitment between an ordinary citizen and a citizen whose prison term in a State prison is expiring. However, as pointed out above, the Federal cases and the Peabody [People ex rel. Peabody v Chanler, 133 App Div 159, affd 196 NY 525] case in this court (supra) have ruled that there is a reasonable ground for giving special treatment to a man who has been held not guilty because insane on his own plea to that effect. The Legislatures of this and other States have felt that such a jury verdict creates a situation where public safety as well as the defendant’s safety require that he be committed and examined before returning to society.”

Nowhere in its decision in Lally did the Court of Appeals deal with the question of where the burden of proof lies in a proceeding under the applicable section for discharge or release. Rather, despite the contention of Mr. Justice Titone in his dissent that the court there rejected the defendant’s contention that the burden of proof lies with the State, it explicitly noted (p 32) that the "papers indicate that on this motion there was no effort by defendant’s counsel to show factually defendant’s present mental condition.” Thus, since Lally did not go forward with any evidence to show that he could, at the time of the hearing on his application, be discharged or released (on condition) without danger to himself or others, there was no occasion for the court to determine who had the ultimate burden of proof.

Despite that, the Lally court reflected its concern that the section (Code Grim Pro, § 454, now CPL 330.20) not be allowed to become a means of indefinitely confining persons such as the defendant in a hospital for the insane, declaring (p 35): "To provide defendant with protection equal to that of other persons under the New York State statutes as to adjudications of mental incompetency we may and do read into subdivision (5) * * * a provision for a jury trial of these issues, if appellant so requests.”

Matter of Miller (Sherman) (73 Misc 2d 690, vacated and remitted for a new hearing 46 AD2d 177, supra), also cited by Judge Murov, did not discuss the question of where the burden of proof lay, other than to say, after finding that the petitioner there represented a danger to himself and to others if released (73 Misc 2d, at p 710): "Implicit in this finding is that he [the petitioner] has failed to meet the burden of proving the contrary by a fair preponderance of the credible evidence, the standard of proof required in a proceeding of this kind. (People v. Chapman, 56 Misc 2d 139; see, also, for the same standard in determining competency to stand trial, People v. Gibbons, 63 Misc 2d 354.)” On appeal the Appellate Division vacated the order denying the application and remitted the matter to the County Court for a new hearing. In this connection it should be noted that the petitioner apparently did not challenge the court’s assumption that the burden of proving that he was not dangerous to himself or others lay with him. It is highly significant therefore that, despite that fact, the Appellate Division quoted (p 181) the following language from Judge Bazelon, in Covington v Harris (419 F2d 617, 627): "Moreover, once a man has shown himself to be dangerous, it is all but impossible for him to prove the negative that he is no longer a menace.” This court went on to quote (p 182) Judge Bazelon’s prior statement in Millard v Harris (406 F2d 964, 973, supra): "Substantively, there is serious question whether the state can ever confine a citizen against his will simply because he is likely to be dangerous in the future, as opposed to having actually been dangerous in the past.” The Appellate Division also rejected a suggestion in an article by a director of a mental hospital, which article appeared in a local newspaper, that it is prudent and just to presume that a man who has committed an unlawful act will repeat the offense, asking rhetorically (46 AD2d, at p 182): "Following this statement to its logical conclusion, should any court release petitioner?”

People v Chapman (56 Mise 2d 139), also cited by the County Court, was a proceeding under section 454 of the Code of Criminal Procedure to either discharge the petitioner (who had been found not guilty of manslaughter by reason of insanity) from Matteawan State Hospital or to transfer Mm to a civil institution. The court there said (p 142): "In this novel proceeding I decreed that with respect to branch one (discharge) the petitioner has the burden of proof by a preponderance of the evidence.” The court then found that the petitioner had failed to sustain his burden and found, as a fact, that if petitioner were to be discharged he would be a danger to himself and others. But there is no indication in the decision that petitioner put in issue the question of who had the burden of proof, or that the court was aware of the questions raised by Judge Bazelon in Millard v Harris (406 F2d 964, supra).

The Millard case, also cited by the County Court in this case as sustaining its ruling that the petitioner has the burden of proof of establishing his lack of dangerousness, was a habeas corpus proceeding which attacked the validity of the petitioner’s continued commitment to Saint Elizabeth’s Hospital in Washington, DC under the Sexual Psychopath Act (DC Code, §§ 22-3503—22-3511). The petitioner’s attack was leveled against the constitutional validity of the act and the finding of the court below that he "remains a sexual psychopath”. In reversing the District Court’s dismissal of the petition, the majority of the Court of Appeals of the District of Columbia found it unnecessary to pass upon the constitutionality of the statute because it was "able to conclude that he [the petitioner] has borne his burden in this habeas corpus proceeding to show by a preponderance of the evidence that his continued confinement as a sexual psychopath is not justified under the statute as we have construed it” (406 F2d, at pp 973-974). In that case, too, there is no indication that the petitioner challenged the allocation of the burden of proof, or that the court was, in fact, ruling on that question, since it found from a perusal of the record that the petitioner had, in any case, established that there was no justification under the statute for his further confinement.

It thus appears that none of the cases cited by Judge Murov, in fact, sustains his ruling that the petitioner had the ultimate burden of establishing his lack of dangerousness and consequent right to conditional release from confinement. However, this court, on May 17, 1976, in Matter of Richard E. R. (52 AD2d 927), on an appeal from an order which denied an application for discharge or release of a committed person from the custody of the Commissioner of Mental Hygiene pursuant to CPL 330.20 (subd 5), said: "In our opinion petitioner failed to sustain his burden of proving, by a preponderance of the credible evidence, that, at the time of the hearing, he was capable of being released without presenting a danger to himself or to others”. But in that case, too, the petitioner never raised the burden of proof issue. Instead his contention was that since he was no longer ill and required no treatment, his continued commitment constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and that, consequently, the hospital in which he was confined was, in reality, a prison where he could be held indefinitely for no convicted offense. Citing People v Lally (19 NY2d 27, supra), we rejected his constitutional contention and sustained the findings that the petitioner was under a delusion that he was well and that he would require continued psychotherapy and medication to prevent further episodes of illness and possible violent acts, and that his continued confinement in the hospital was therapeutic as well as protective. Our opening comment as to the burden of proof was, therefore, immaterial to the decision and constituted pure dictum.

In State v Krol (68 NJ 286) the New Jersey Supreme Court recently dealt with an issue quite similar on its facts to that in the case before us. While the applicable New Jersey statute (NJSA 2A:163-3), like our CPL 330.20, requires the court in which a defendant is acquitted on the ground of insanity to remand such a defendant to a State psychiatric hospital if it finds his "insanity continues”, "until such time as he may be restored to reason”, it contains no specific test of dangerousness. Nevertheless, the court read into the statute a test of danger to society and. dealt with the issue of the burden of proof in the following language (68 NJ, at pp 253-254): "The State argues that persons acquitted by reason of insanity pose a special hazard to the public because they have been convicted of committing a criminal act and have proven by a preponderance of the evidence that the act resulted from mental illness * * * and that therefore they constitute an 'exceptional class’ of persons in whose confinement and treatment the State has a special interest. Accepting arguendo the factual assumption upon which this claim is predicated—that persons acquitted by reason of insanity pose a greater hazard to the public than other mentally ill persons—the argument does not support a claim that the State should not be required to establish that the particular defendant poses a danger to himself or society.”

The court there also noted that commitment for mental illness, involving as it does serious infringement of personal liberty, poses an issue of constitutional dimension, saying (p 248): "Constitutional principles of due process require that any state action bear a reasonable relationship to some legitimate state purpose. In Jackson v. Indiana, 406 U. S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the United States Supreme Court, applying this principle to involuntary commitment proceedings, held that the standard for commitment must bear a reasonable relationship to the ostensible purpose for which the individual is committed. That decision, which involved the commitment for incompetency to stand trial of a mentally deficient deaf-mute accused of armed robbery, did not restrict the purposes for which the state might involuntarily commit individuals accused of crime; it did require that the state tailor its standard for commitment to whatever purpose it was nominally attempting to advance * * * Furthermore, the state must make a meaningful factual determination as to whether defendant actually meets the standard for commitment” (emphasis supplied).

Among the cases cited by the New Jersey court to support its conclusion were Bolton v Harris (395 F2d 642, supra), which was described as involving a commitment "following acquittal by reason of insanity”, People v McQuillan (392 Mich 511, 529-534) and State ex rel. Kovach v Schubert (64 Wis 2d 612, 623, app dsmd 419 US 1117). Those cases, properly construed, bar any presumption that past mental illness, i.e., acquittal by reason of insanity, demonstrate present dangerousness on the part of the person committed.

The dissent of Mr. Justice Titone, though replete with citations of authority, fails to distinguish between the burden of going forward with proof in the first instance in a proceeding initiated by a committed person under CPL 330.20 (subd 5), and the ultimate burden of proof of establishing that the committed person is presently dangerous to himself or others and must therefore be continued in confinement. He contends that the Legislature "has a right to maintain that one such as the appellant, who has been acquitted of a crime, especially a crime of violence by reason of a mental disease or defect (insanity) * * * may [be detained] for a period to determine whether insanity continues and whether he would be dangerous to himself or others if released from confinement in a mental institution (citing cases).” This, in essence, is a statement that there is a presumption of fact that one judicially found to have suffered from a "mental disease or defect” may thereafter be deemed to be a "danger to himself or to others” until, by a preponderance of evidence, he establishes the contrary. However, while there may be a presumption of continuance of insanity (i.e., a "mental disease or defect”), because insanity was established by the verdict of acquittal, there is no factual presumption of present dangerousness, which is the test for release under the statute. Accordingly, while the petitioner, as the initiator of the proceeding, had the burden of going forward with facts to raise an issue with respect to his lack of dangerousness, the ultimate burden of proof on that issue, which had not theretofore been judicially determined in any forum, rested upon the State, which desired to keep him committed. Here the burden of going forward in the first instance was met by the petitioner when he presented the testimony of the two psychiatrists who had treated him at Central Islip and of the director of Central Islip that he was not dangerous. Thereupon, the State had the duty of meeting its constitutionally established burden of proving by a preponderance of the evidence that the petitioner was presently dangerous and that, therefore, the State could continue to deprive him of his liberty by confining him in a mental hospital.

Mr. Justice Titone, in his dissent, cites many out-of-State cases in an effort to support his conclusion that a defendant who has been acquitted of a crime of violence because he was found to be insane can, under our statute, be required to establish by a preponderance of the evidence that he is not presently dangerous to himself or others as a condition of obtaining his release from a mental hospital. Analyzing each of those cases would unduly extend this opinion. The key fact is that they deal with statutes basically different from ours (see, e.g., Bolton v Harris, 395 F2d 642, supra; State v Shackford, 262 A2d 359 [Me]). Our statute (CPL 330.20, subds 1, 2, 3, 5) requires the court in which a verdict of acquittal by reason of mental disease or defect is rendered to commit the defendant to the custody of the Commissioner of Mental Hygiene, to be placed in a State mental hospital, and not to be released until the court, after a hearing which may be initiated by the commissioner or by the defendant, is satisfied that the defendant is not dangerous to himself or others. The statute authorizes the court in which such a hearing is held to appoint two qualified psychiatrists to examine the defendant and report to it their opinion as to his mental condition. The court must order the discharge of the defendant or his release (on condition) if it is satisfied that this may be done without danger to himself or others. Thus, while the statute, in subdivision 1, does implicitly create a factual presumption that a person acquitted by reason of mental disease continues to suffer from that mental disease, it provides a machinery in sub divisions 2, 3 and 5 allowing the commissioner or the petitioner to obtain a court hearing to determine whether there is a need to continue his confinement in a mental hospital, with the determining factor being whether the court is satisfied that the person confined may be discharged or released (on condition) "without danger to himself or to others.” Mr. Justice Titone concedes that the test to be applied to determine whether the committed person is to be released is "whether he is still in such a dangerous condition that continued confinement is justified”, but argu.es that "where the underlying act was one of extreme violence, reasonable medical doubts and judicial doubts should be resolved in favor of the public (State v Shackford, supra; Ragsdale v Overbolser, 108 US App DC 308, affd 281 F2d 943) and, a fortiori, the burden of proof should devolve upon the detainee to show that he no longer constitutes a danger to himself or others”.¹ Thus, Mr. Justice Titone would make the determination of where the burden of proof on the issue of present dangerousness rests, a determination which may well be decisive of the issue of the detainee’s continued deprivation of liberty by the State, depend not upon whether the State can establish that fact by a preponderance of the evidence, but rather upon whether the crime with which the detainee was charged and of which he was acquitted because of mental illness, was of "extreme violence” and whether the petitioner can, on the hearing under CPL 330.20, produce evidence which eliminates "reasonable medical doubts and judicial doubts”. I answer that viewpoint by stating, as emphatically as I know how, that medical and judicial doubts as to future dangerousness can never serve to sustain one’s present deprivation of liberty. Such a test fails to pay even lip service to the constitutional standard set forth by the Fourteenth Amendment for deprivation of liberty as interpreted in Mullaney v Wilbur (421 US 684, supra), Matter of Winsbip (397 US 358, supra) and Matter of Gault (387 US 1, supra). Similarly, Mr. Justice Titone’s allusion to the petitioner’s long history of mental illness, the severity and violence of the crime with which he was charged, Ms effort to injure himself after his alleged wrongdoing and Ms having been a difficult patient to cope with, can only serve to confuse the issue of whether he or the State bears the burden of proving whether he is presently dangerous to the public and should therefore continue to be deprived of Ms liberty by the State.

I therefore conclude that, in requiring the petitioner to prove by a preponderance of the evidence that he was not presently dangerous to himself or to others as a condition of his being released (even conditionally) from confinement in a mental hospital, the court infringed upon the petitioner’s constitutional rights. Under the circumstances, the order denying the petitioner a conditional release from the Central Islip Psychiatric Center should be reversed and the proceeding remanded to Judge Murov to make a new determination upon the record heretofore made and upon such other proof as the parties may offer, not inconsistent with this opinion.²

THE PERIPHERAL ISSUES

Since we are remanding for a further hearing in which the State must undertake to establish by a preponderance of the evidence that the petitioner would be dangerous to himself or others if he were released and, failing that, what conditions, if any, ought be imposed by the court on the petitioner’s release to minimize the likelihood of the later development of such a danger, I deem it appropriate to comment on the other issues raised by the petitioner in order to provide guidance to the County Court.

I find no merit in the petitioner’s objection to the court’s orders authorizing the District Attorney to employ two qualified psychiatrists to examine the petitioner and to testify at the hearing. CPL 330.20 (subd 2) provides for transmittal "to the district attorney of the county from which the defendant was committed” of the information upon which the Commissioner of Mental Hygiene relies in seeking the discharge of a person committed to his custody, where the commissioner is the petitioner. Implicit in that provision is the right of the District Attorney to appear and call witnesses at the hearing, if he be so inclined; for otherwise what purpose would there be in providing for the service of the application and the papers in its support upon him? Since CPL 330.20 (subd 5) provides that when a committed person makes "application for his discharge or release * * * the court must follow the procedure prescribed in subdivisions two and three of this section”, the ruling of the County Court in permitting the District Attorney to participate in the proceeding and to call witnesses, was proper (cf. Matter of Miller, 46 AD2d 999).

Furthermore, permitting the District Attorney to employ experts to provide the court with their views as to the petitioner’s current status with respect to the statutory test of danger to himself or others could aid the court in determining the question correctly and, if the court found him not to be dangerous, in determining what conditions, if any, it should impose upon the petitioner’s release to minimize the possibility of a recurrence of violent criminal conduct on his part.

We have considered petitioner’s remaining "closed hearing” contention and find it to be without merit.

1 . The Ragsdale case (supra) upon which Mr. Justice Titone so heavily relies, was expressly overruled later in the same circuit by Bolton v Harris (395 F2d 642, supra), although State v Shackford (supra) which Mr. Justice Titone likewise cites, preferred the conclusion espoused by Ragsdale, saying it found its reasoning “compelling”.

2 . Our conclusion as to the burden of proof is buttressed by an examination of the sections of our Mental Hygiene Law which govern the involuntary commitment of a person to a hospital for the mentally ill and the retention in such a hospital of an involuntary patient. Section 31.27 requires the prior certification by two examining physicians of the need for involuntary care and treatment of the person committed, followed by an examination by a physician who is a member of the psychiatric staff of the hospital in which the person is sought to be committed. The director of the hospital is required, by section 31.29, to give notice within five days of the involuntary admission to the nearest relative of the person alleged to be mentally ill. Section 31.31 protects the right of a person involuntarily committed to a hearing before a court on the question of his need for involuntary care and treatment at any time prior to the expiration of 60 days from the date of the involuntary commitment. Those sections, and others in the article in the statute governing hospitalization of the mentally ill, all reflect the Legislature’s awareness of the fact that such a commitment adversely affects the personal liberty of the person committed and that such commitments must be surrounded with strong safeguards to insure that no commitment is made and continued without a showing of a State need for such action.