I would affirm the order at Trial Term for the reasons set forth in the opinion of Justice Ernst Rosenberger. In my view that court correctly applied present day standards of due process and equal protection to CPL 330.20.
I would add, however, that petitioner falls outside the "exceptional class” referred to by the majority. Although CPL 330.20 (subd 1) requires forthwith commitment of a defendant acquitted by reason of mental disease or defect, the provisions of CPL 330.20 must be considered as a statutory unit. Subdivision 2 permits a court to release petitioner on a finding that he is "without danger to himself or to others”. Petitioner herein has made a prima facie showing that he is not presently dangerous and respondent makes no claim that a proper examination of Henig cannot be conducted on an out-patient basis. Under such circumstances, the State must bear the *401ultimate burden of proving the contrary. The recent case of Matter of Lublin v Central Islip Psychiatric Center (56 AD2d 1) cited by the majority, is instructive in this regard.
The petitioner in that case sought release pursuant to CPL 330.20 (subd 5). At a hearing, he came forward with proof that he was no longer dangerous; the State countered with its proof that petitioner could not be released "without danger to himself or to others”. The County Court denied the petition for discharge, holding that petitioner failed to prove by a preponderance of the evidence that he was not presently dangerous to himself or to others. The Second Department reversed and remanded for a new hearing at which the State was made to bear the ultimate burden of proof. In so doing, the court ruled that presumptions of continued dangerousness, derived from the acquittal by reason of insanity, may not be relied upon to infer present dangerousness. Instead, it is the State which must bear the burden of establishing present dangerousness. Justice Shapiro, writing for the majority in Matter of Lublin, stated (p 16): "[Mjedical 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”. (Emphasis in original.)
Like Lublin, petitioner herein has come forward with proof that he is not dangerous. He has remained free in the community, without incident, for more than two years. Moreover, his psychiatrist certified to the court that he is not dangerous, not in need of hospitalization, and, in fact, that hospitalization was contraindicated. At this point, as in Matter of Lublin, the burden of proof to show otherwise shifted to the State. And, in this regard, the State has utterly failed to show that petitioner is presently dangerous or that an examination to determine his present mental state cannot be properly conducted on an out-patient basis.
Finally, petitioner was found not guilty by reason of mental disease or defect in November, 1975 for a crime committed almost six years earlier. Surely, the State may not rely on this stale determination to infer present dangerousness (cf. People v Lally, 19 NY2d 27), especially where petitioner has come forward with contrary proof. Slavish obedience to the mandate of CPL 330.20 (subd 1) denies this petitioner due process. (German and Singer, Punishing the Not Guilty: Hospitaliza*402tion of Persons Acquitted by Reason of Insanity, 29 Rutgers L Rev 1011, 1028, see n 75,)
Kupferman and Lupiano, JJ., concur with Nunez, J.; Birns, J., dissents in an opinion.
Judgment (denominated an order), Supreme Court, New York County entered on or about February 24, 1976, reversed, on the law, the petition denied, and petitioner committed for the purpose of examination, without prejudice to any application pursuant to CPL 330.20 (subd 5) for his discharge or release after examination and report by the Commissioner of Mental Hygiene, without costs and without disbursements.