CPL 330.20 (subd 3) provides: "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.”
The statute is silent as to whether the burden of proof on this issue is upon the petitioner or the respondent. The closeness of this question is amply illustrated by the majority and minority opinions of my Associate Justices and the opinion of the County Court Judge.
An examination of the New York cases on this subject would ordinarily lead one to the conclusion arrived at by the Judge presiding at the County Court, viz., that the burden of proof is upon the patient. In fact, this court made the same assumption in Matter of Richard E.R. (52 AD2d 927), decided more than five months after the decision of the County Court. The majority herein has, however, decided to distinguish Matter of Richard ER. and the cases relied upon by the County Court.
It is my opinion that, regardless of which party had the burden of proof, the evidence in this record is sufficient to sustain the County Court’s finding that the petitioner was not "ready for release upon condition without danger to himself or others.” After a full hearing, the court, while applying what it considered to be the New York rule that the burden of proof was upon the petitioner to prove he was ready for release and that he failed to sustain that burden, nevertheless, made the following findings (Matter of Lublin v Central Islip Psychiatric Center, 85 Misc 2d 48, 55-57):
"Six expert witnesses testified that Lublin is neither a danger to himself nor to others. The testimony of two of them is suspect since they had only months earlier expressed some anxiety concerning petitioner’s harassing and/or homicidal proclivities. The testimony of one of the latter two is accorded little weight here since that witness seemed inclined to take a *28stand consistent with the position previously adopted by him whereby he 'went along’ with the recommendations of his colleagues.
"The director of the facility favored Lublin’s release according to some ill-defined program for aftercare or convalescent care. The recommendation of the director is construed by Lublin’s counsel as a tacit admission or implication that the director felt that petitioner is not 'dangerous’. The court noted from the director’s testimony that he studiously avoided contact with Lublin. In evaluating the director’s testimony, the court is unable to draw the same inferences as does counsel, as to the director’s assessment of Lublin’s dangerous potential.
"One of the experts, the author of the multi-discipline panel report, recommended out-patient treatment for Lublin but declined to address himself to the issue of dangerousness.
"In summary, four of the experts gave unassailable testimony in favor of Lublin’s readiness for release, but only one of them recommended outright release.
"Two experts introduced by the District Attorney, unequivocally oppose release. It was their opinion that Lublin possessed the psychological bent to seek deep dependent personal relationships with others of the precise kind that resulted in his wife’s death; that Lublin would not participate in a treatment plan administered in an unstructured setting.
"It has been urged that potential danger to the community and to Lublin himself dissipates if emotionally dependent relationships are avoided or restrained. The court feels the likelihood that Lublin will avoid, be unable to, or be effectively restricted from, pursuing emotionally dependent relationships runs contrary to both his nature and to human nature. The court would add that Lublin’s record of co-operation with authorities makes it doubtful that he would long abide by any rules insulating him from those to whom he is drawn or that he would continue to accept medication necessary to keep him in a tranquil state.
"The testimony of hospital personnel tended 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. No one testified that he was easy to live with. The contrary would be more likely the consensus opinion.
*29"The decision herein is not designed to, nor should it obstruct therapeutic goals. If those charged with the responsibility of caring for the petitioner feel he will benefit from a less restrictive environment than confinement affords, it is within their power to provide such an environment (Mental Hygiene Law, § 29.15). It should be borne in mind that therapy under the least restrictive alternative is the purpose and manner of the continued confinement of Mr. Lublin (Cross v Harris, 418 F2d 1095, 1102, supra; Covington v Harris, 419 F2d 617, 623; see, also, Bazelon, Institutionalization, Deinstitutionalization and The Adversary Process, 75 Col L Rev 897). Should the hospital at any time abandon the pursuit of these goals, such a decision would1 be an appropriate subject for judicial review (Covington v Harris, supra, p 624).
"In view of the foregoing, it is the judgment of this court that the petitioner, Laurence Lublin, is directed to be retained at the Central Islip Psychiatric Center until such time as it is established he may be discharged or released upon conditions without danger to himself or others.”
Those findings are amply supported by the evidence and, in my opinion, are sufficient to sustain the determination of Special Term and a remand will, in all probability, produce the same result and serve no useful purpose. Consequently, I would affirm the order dated January 8, 1976.
Hopkins, Acting P. J., and Margett, J., concur with Shapiro, J.; Bamiani and Titone, JJ., concur in the disposition of the orders dated September 10, 1975, September 17, 1975 and February 23, 1976, respectively, but otherwise dissent and vote to affirm the order dated January 8, 1976, with separate opinions, Titone, J., concurring in the dissenting opinion of Bamiani, J.
Two orders of the County Court, Suffolk County, both dated September 10, 1975, affirmed; order of the same court, dated September 17, 1975, affirmed insofar as appealed from, all without costs or disbursements.
Appeal from an order of the same court dated February 23, 1976, dismissed, without costs or disbursements. No appeal lies from an order which denies reargument.
Order of the same court, dated January 8, 1976, reversed, without costs or disbursements, and proceeding remitted to the County Court for further proceedings in accordance with the opinion of Mr. Justice Shapiro.