I fully agree with the views of my eminent colleague, Mr. Justice Shapiro, that the petitioner appellant’s request for a closed hearing is without merit and that the District Attorney was entitled to participate in the judicial proceeding held on the appellant’s application for discharge or release (see CPL 330.20, subds 2, 5). However, I cannot subscribe to his conclusion that the hearing court infringed upon the appellant’s constitutional rights by requiring him to prove that he was not presently dangerous, and thus could be safely released from the mental institution.
The record reveals that the appellant has undergone treatment for his psychiatric problems since he was eight years old and has been seen by psychiatrists over a period of 28 years. With respect to the underlying charge which constitutes the gravamen of this proceeding, the record also reveals that, on October 4, 1971, the appellant threw himself off an overpass onto the Long Island Expressway. When the police went to his home to notify his wife of the occurrence, they found her dead *19with over 80 stab wounds inflicted by the use of an awl. In May, 1973 former County Court Judge Pierre G. Lundberg ruled, after a nonjury trial, that while there was evidence that the appellant killed his wife, he was not aware of what he had done at the time because he was insane. Accordingly, he found the appellant not guilty by reason of insanity (cf. Penal Law, § 30.05, subd 2), and committed him to the custody of the Commissioner of Mental Hygiene, who shortly thereafter had him placed in the Central Islip Psychiatric Center, in accordance with CPL 330.20 (subd 1).
At the hearing brought on by the appellant’s application for discharge (see CPL 330.20, subds 2, 5), although testimony was adduced that the appellant was not presently psychotic and might safely be released without danger to himself or others, other witnesses were of the opinion that he had a propensity for violence and was still potentially dangerous. All of the institution’s staff members who testified, professional and nonprofessional alike, clearly indicated that since the appellant was an exceedingly difficult patient to cope with, they would be greatly relieved if he obtained his release. After weighing and sifting the evidence, the County Court, correctly in my opinion, determined that the appellant had failed to sustain his burden of proving that he was ready for release upon condition without danger to himself or others.
Inherent in a finding by the trier or triers of the fact that a person such as the appellant was not guilty by reason of a mental disease or defect (especially in this State where a defendant must plead such a defense), is the conclusion that he did the acts complained of.
Because of the finding herein, the appellant became one who was held blameless and was free frrom punishment for an act otherwise subject to criminal sanctions (see State v Shackford, 262 A2d 359 [Me]). However, 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 very well be dangerous to himself or others, and, accordingly, may provide for his detention 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 (see People v Lally, 19 NY2d 27, 33; People ex rel. Peabody v Chanler, 133 App Div 159). The appellant, and others similarly situated, are not deprived of their constitu*20tional rights because the statute under which they are confined after the acquittal by reason of insanity, prescribes no minimum period of detention during which a determination as to dangerousness must be made, since the detainee himself may bring on a petition for release at any time and have a judicial hearing as to whether he is still in such a dangerous condition that continued confinement is justified (see CPL 330.20, subd 5; cf. People v Lally, supra, pp 33-34; People ex rel. Peabody v Chanler, supra, pp 163-165).
Thus, it follows that in a hearing pursuant to CPL 330;20, the public has a special interest in the detainee’s confinement and release. When consideration is given to his possible release, the public interest (and also the detainee’s best interest) must be weighed against his claimed right to be set free. In my opinion, where the underlying act was one of extreme violence, reasonable medical doubts and judicial doubts should be resolved in favor of the public (see State v Shackford, supra; Ragsdale v Overholser, 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.
Contrary to the position taken by the majority, I find that legal precedent in this State clearly, unequivocally and overwhelmingly, supports the County Court’s determination on the burden of proof issue. Specifically, in People ex rel. Thaw v Lamb (118 NYS 389), Special Term, Westchester County, held that under section 454 of the Code of Criminal Procedure (the predecessor statute of CPL 330.20* under which the appellant proceeded), the individual acquitted in a prosecution for homicide because of insanity had the burden of proving, in a habeas corpus proceeding seeking his discharge, that since the commission of the homicide, he had become sane to the degree that it was reasonably certain that his enlargement (release) would be without menace to the public health or safety.
When People ex rel. Thaw v Lamb reached this court under the title People ex rel. Peabody v Chanler (133 App Div 159, affd 196 NY 525, supra), we upheld the constitutionality of section 454. We stated, inter alia, that in enacting such section, the Legislature had expressly limited the effect of an acquittal by reason of insanity in the exercise of the police power, so that it might not be an absolute discharge in course, but that the court might order the detention of the defendant as a dangerous insane person until his reason was restored.
*21The majority of this court concluded with the following language (133 App Biv 159, 164-165): "And I think that such a defendant, by this provision of the Code of Criminal Procedure, had notice and a hearing that contemplated the process whereby he might thus be committed [acquittal by reason of insanity], and that in any event the provisions of express law whereby he could forthwith institute proceedings to establish Ms sanity and Ms consequent right to instant discharge, satisfy the safeguards invoked against this provision of the law” (emphasis supplied).
Furthermore, contrary to the position taken by the majority, I believe that People v Lally (19 NY2d 27, supra) clearly stands for the proposition that the burden of proof lies with the detainee in a situation similar to the one now before this court.
In Lally the appellant was arrested and arraigned after he had shot and wounded three persons in Queens County. The jury trial, on Ms indictment for assault and carrying a dangerous weapon, resulted in an acquittal on the ground of insanity. He was thereafter committed to the custody of the Commissioner of Mental Hygiene and subsequently placed in a mental institution pursuant to section 454 of the Code of Criminal Procedure. A short time later Lally petitioned the court to be released under such section. In denying the application the Supreme Court, according to the Court of Appeals (19 NY2d 27, at p 32), held that the section was not unconstitutional as requiring a defendant so committed to prove Ms sanity: This court affirmed the order denying Lally’s application without opinion (25 AD2d 720).
Our highest court remitted the matter in order that Lally might be provided with a jury trial on the issue of his mental incompetency, if he so requested. However, with respect to the constitutional issue raised by Lally, i.e., that under section 454 he was required to prove his sanity before being released, then Chief Judge Desmond stated (19 NY2d 27, 32): "The papers indicate that on this motion there was no effort by defendant’s counsel to show factually defendant’s present mental condition. Counsel stood on the same argument he makes on this appeal, that is, that section 454 is unconstitutional because: It raised the presumption that a defendant who proves that he was insane at the time of an alleged crime is presumed to be insane at the time of trial if the trial results in acquittal, and *22he must thereafter prove his right to be at large”’ (emphasis supplied).
In rejecting the argument contesting the constitutionality of section 454, the Court of Appeals cited the following three cases, stating that the reasoning in each "is sound”: People ex rel. Peabody v Chanler (133 App Div 159, affd 196 NY 525, supra), Ragsdale v Overholser, 281 F2d 943, supra) and Lynch v Overholser (369 US 705). I have already discussed the Peabody case with respect to its clearly establishing that the detainee has the burden of proof in these matters.
With respect to Ragsdale v Overholser (supra), the constitutionality of a District of Columbia statute, similar to section 454 of the Code of Criminal Procedure, was put in issue. In an opinion by Mr. Justice Burger (now Chief Justice of the United States), the Circuit Court held that the placing of the burden of proof for release upon the person committed to a mental institution by virtue of an acquittal by reason of insanity, violated no constitutional guarantee, for it had no relation to the presumption of guilt or innocence (281 F2d 943, 949).
In Lynch v Overholser (369 US 705, supra), the reasoning of which was also held to be "sound” in the Lally case by the Court of Appeals, the Supreme Court held that a defendant found to have been insane at the time of the commission of the offense, but who did not raise insanity as a defense, could not be confined in a hospital for the mentally ill without further proceedings under section 24-301 (d) of the Code of the District of Columbia. However, the majority of the Justices on our Nation’s highest court also found it necessary in Lynch to make the following remarks (p 715): "The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternately, Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity.”
*23Moreover, the court in Lynch also saw fit to quote, with obvious approval, the following statement by the Committee on Mental Disorder, which recommended the eventual enactment of subdivision (d) of section 24-301 of the Code of the District of Columbia and whose report was embraced in the report of the Senate and House Committee (p 717): " 'The Committee believes that a mandatory commitment statute would add much to the public’s peace of mind, and to the public safety, without impairing the rights of the accused.
Where accused has pleaded insanity as a defense to a crime, and the jury has found that the defendant was, in fact, insane at the time the crime was committed, it is just and reasonable in the Committee’s opinion that the insanity, once established, should be presumed to continue and that the accused should automatically be confined for treatment until it can be shown that he has recovered’ ” (emphasis in original).
Thus, summarizing the constitutional argument raised in Lally, and the Court of Appeals’ determination therein, I find as determinative the following: (1) The only constitutional issue raised by Lally in the Court of Appeals was that, although he was found not guilty of the crimes charged in the indictment by reason of his insanity, it was unconstitutional to require him to prove his sanity before being released from the mental institution to which he was committed after the jury verdict. (2) The Court of Appeals rejected such argument and, relying upon the soundness of the reasoning in the Peabody, Ragsdale and Lynch cases (supra), held section 454 of the Code of Criminal Procedure to be constitutional. (3) Not only the thrust, but also the language used by the respective courts in Peabody, Ragsdale and Lynch, clearly reveal that those courts have held that the burden of proof devolves upon the detainee to show that he is no longer dangerously ill and, a fortiori, that he no longer constitutes a danger to himself and to society (cf. People v Chapman, 56 Mise 2d 139).
I also take issue with the majority’s contention that one sentence used in a recent case by this court, which also involved a denial of an application under CPL 330.20 (subd 5), constituted mere "dictum” (Matter of Richard E.R., 52 AD2d 927). Specifically, I refer to the opening sentence, which is to the effect that petitioner failed to sustain his burden of proving, by a preponderance of the credible evidence, that at the time of his hearing he was capable of being released without presenting a danger to himself and others (citing CPL *24330.20). Having been a member of the court panel which heard Richard, I can attest that I believed then, as I believe now, that such sentence constituted an integral and essential portion of the whole opinion.
I also note that, with a few possible exceptions, courts in other States have also held that where a person, has been confined in a mental institution upon an acquittal by reason of insanity or mental defect or disease, the burden of proof devolves upon such person to demonstrate that he may be discharged without danger to himself or others (see Ann 95 ALR2d 54, 106-108).
For example, in Bolton v Harris (395 F2d 642, 653), cited by the majority to support its position, the following language is found: "It could be argued that the Government should have the burden of proving that the patient is still committable, since this is where the burden lies in the initial commitment proceeding. But the traditional rale in habeas corpus proceedings is that the petitioner must prove, by the preponderance of the evidence, that Ms detention is illegal * * * Thus, the court must find, by the preponderance of the evidence, that the patient’s commitment is no longer valid—ie., that he is no longer likely to injure himself or other persons’ due to !mental illness’ "(emphasis supplied).
Similarly, the California Supreme Court, in Matter of Franklin (7 Cal 3d 126), held that persons who have been committed following their acquittal of criminal offenses by reason of insanity, may obtain their release by establishing, by a preponderance of the evidence, that they are no longer a danger to the health and safety of themselves and others. California’s highest court further held that the fact that a defendant must prove Ms insanity by a preponderance of evidence at the trial constitutes a very solid basis upon which a presumption of continuing mental illness may rest.
In State v Taylor (158 Mont 323, cert den sub nom Taylor v Montana, 406 US 978) the Supreme Court of Montana not only indicated that a defendant, placed in a mental institution after an acquittal by reason of mental disease or defect, had the burden of proving that he may be safely discharged or released, but also that he had to establish, by evidence convincing in effect beyond a reasonable doubt, that Ms release could be implemented without danger to the public. Certiorari was thereafter denied by the Supreme Court of the United States, with Beennan, White and Blackmun, JJ., voting that *25it be granted (Taylor v Montana, 406 US 978; see, also, State v Shackford, 262 A2d 359 [Me], supra).
In my opinion, the issue in this area which really divides the courts throughout the country is not which party has the burden of proof, but rather, what is the standard or quantum of proof that the individual must meet to show that he no longer constitutes a danger to himself or to others. Thus, in Hefley v State (480 SW2d 810 [Tex]), State ex rel. Barnes v Behan (124 NW2d 179 [SD]), Matter of Franklin (7 Cal 3d 126) and Matter of Palmer (26 RI 486), the courts have held, in essence, that the person seeking discharge after a verdict of not guilty by reason of insanity, must show by a preponderance of evidence that his release would not be dangerous to himself or the public (see, also, People ex rel. Thaw v Lamb, 118 NYS 389, affd sub nom People ex rel. Peabody v Chanler, 133 App Div 159, affd 196 NY 525, supra); whereas, in other jurisdictions, the applicant must establish his eligibility for release beyond a reasonable doubt (State v Shackford, 262 A2d 359 [Me], supra; Ragsdale v Overholser, 108 US App DC 308, affd 281 F2d 943, supra; State v Taylor, 158 Mont 323, cert den sub nom Taylor v Montana, 406 US 978, supra).*
Thus, I do not accept the majority’s conclusion that the County Court infringed upon the appellant’s rights by requiring him to show by a preponderance of evidence that he is not presently dangerous. Generally speaking, it is within the power of the State, without denial of the equal protection of the laws, to regulate and determine, either through the Legislature, or through the courts, questions relating to the burden of proof (People v Morrison, 125 Cal App 282, app dsmd sub nom Morrison v California, 288 US 591; 16A CJS, Constitutional Law, § 562).
In the last analysis, and aside from the burden of proof question, it should be noted that no one at any time has suggested, or even intimated, that the appellant was not afforded a full, complete and fair hearing at the discharge proceeding in the County Court; nor would the record support *26any such assertion, assuming it had been made. In my opinion, after viewing only the evidence in support of the appellant’s application, I have very serious doubts as to the wisdom of his being released at the present time. When coupling it with the evidence adduced in opposition to the application, I believe the determination denying release was fully warranted. It is axiomatic that a person who has had his day in court, and a trial or hearing according to the usual procedure (which occurred in this instance), is not denied equal protection of the laws by a verdict or finding against him which is supported by sufficient evidence, although the evidence may be conflicting or doubtful (see 16A CJS, Constitutional Law, § 562).
I might add that I am not wedded to an inflexible rule with respect to the burden of proof in every proceeding brought by a detainee under the governing statute herein, which is silent in that regard (see CPL 330.20).
I believe that the more realistic approach that should be taken by the hearing tribunal would be to first examine each application for release, taking into account, amongst any other relevant factors, the nature of the underlying charge, the detainee’s previous psychiatric history and the length of time he has been confined after the acquittal. For example, in Waite v Jacobs (475 F2d 392) the appellant was committed to a mental institution in 1961, after having been found not guilty by reason of insanity of the crime of assault with a dangerous weapon. Noting, inter alia, that appellant had been confined for over 9 of the 10 years by reason of such acquittal for which he might have been sentenced criminally, the Circuit Court for the District of Columbia held (correctly, I believe) that the trial court should consider whether the government should bear the burden of proving that his continued confinement was justified.
In conclusion, I voice some disagreement with the premise enunciated in Millard v Harris (406 F2d 964), and quoted both in Matter of Miller (Sherman) (46 AD2d 177, 181) and in the majority opinion, namely, that "’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.’” Implicit in such pessimistic and defeatist language is the suggestion that members of the judiciary hearing these matters have imposed, and will invariably impose, an impossible burden upon a detainee seeking his release.
*27For my part, I am confident that my judicial brethren take neither a "throw away the key” approach nor, conversely, an "open up the floodgates” attitude, in these matters, but rather decide each one on the facts presented, weighing carefully and fairly, both the best interest of the individual, and the rights of society.
It should be noted that although there is an indication in a subsequent decision of the same Federal Circuit Court (Bolton v Harris, 395 F2d 642, supra) that Ragsdale was "expressly overruled” (according to the majority’s footnote), the fact is that the Bolton case overruled Ragsdale with respect to quantum of proof, not the burden of proof. Bolton held that the detainee needed to establish that he no longer constituted a danger to himself or others by a preponderance of the evidence, while Ragsdale held that the fact had to be established beyond a reasonable doubt.