Order, Supreme Court, New York County (Kenneth Shorter, J.), entered December 21, 1989, which directed that defendant be transferred from a secure facility to a nonsecure facility in the custody of the Commissioner of Mental Health, affirmed, without costs.
Defendant killed a man in 1978 and was charged with' murder in the second degree. He was found not responsible for the crime by reason of mental disease or defect and committed to the custody of the Commissioner of Mental Health in 1980. *229Since that time he has been confined in various psychiatric facilities operated by the Office of Mental Health, except for a brief period when he escaped in 1984 and upon his recapture when he was imprisoned in Rikers Island. Since 1985, Torres has been housed in Kirby Forensic Psychiatric Center, a secure facility.
The treatment of persons found not responsible for a crime by reason of mental disease or defect is governed by CPL 330.20. If a defendant is found to be suffering from a "dangerous mental disorder”, he is committed to a secure facility. A "dangerous mental disorder” means that a person suffers from a mental illness and currently constitutes a physical danger to himself or others. (CPL 330.20 [1] [c].) If the defendant has a "mental illness”, but not a dangerous mental disorder, he may be transferred to a nonsecure facility and detained pursuant to appropriate conditions imposed by the court. Retention orders issued pursuant to this statute are for a limited duration and must be periodically renewed by the Commissioner of Mental Health, and upon the application for a subsequent retention order, the court may order a hearing, at which "the commissioner must establish to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill” (CPL 330.20 [9]).
It is not disputed that defendant suffers from a mental illness, schizophrenia, paranoid type. The only issue on this appeal is whether defendant suffers from a dangerous mental condition, and accordingly, whether he must be confined in a secure or nonsecure facility.
At the hearing, the Commissioner presented the testimony of defendant’s treating physician, Dr. Roman Klebanov, while defendant presented the testimony of an independent psychiatrist, Dr. Stuart Kleinman, who reviewed defendant’s records and also conducted a lengthy interview and examination of the defendant.
The hospital records in evidence at the hearing show that in 1987 a court order was issued authorizing that defendant be medicated over his objections. In July 1988, Dr. Klebanov noted defendant’s substantial improvement while on antipsychotic medication since that time and recommended that he be transferred to a nonsecure facility. The recommendation was approved by the forensic committee of the hospital, which stated that defendant showed continued improvement and no evidence of active psychosis. Finally, the recommendation for transfer to a nonsecure facility was approved by the clinical director of the hospital. However, this proposed transfer was *230delayed as a result of a brief period of decompression, and the matter was deferred until the instant hearing before Justice Shorter.
At the hearing, Dr. Klebanov testified that the defendant was not suitable for transfer to a nonsecure facility because his minimal insight and inability to accept the fact of his mental illness would eventually lead to a discontinuation of medication and lead to an attempt to escape. Furthermore, Dr. Klebanov recounted allegedly violent incidents involving defendant and other patients at Kirby. However, these incidents are remote in time and occurred when defendant was still in a psychotic state and before he was treated with medication. The only recent incident occurred in a crowded elevator when another patient began arguing with the defendant, cursing and screaming at him and threatening to kick him. Under such real provocation, defendant turned around and hit the other patient once and did not attempt to hit him again.
The independent psychiatrist, Dr. Kleinman, testified that as a result of the medication, defendant no longer suffers from the psychotic beliefs that had previously made him dangerous. Dr. Kleinman agreed that defendant suffers from mental illness, schizophrenia, but opined that he would not be a danger to himself or others and was not an escape risk, so long as he took his medication. Notably, Dr. Kleinman is the director of a licensed mental health care facility that provides treatment to victims of crime and testified in favor of defendant’s transfer notwithstanding his belief that he was particularly sensitive to issues of public safety and welfare.
In a proceeding brought by the Commissioner for a subsequent retention order pursuant to CPL 330.20 (9), the Commissioner of Mental Health has the burden of demonstrating to the satisfaction of the court, by a preponderance of the evidence, that defendant suffers from a dangerous mental disorder in order to retain him in a secure facility (People v Escobar, 61 NY2d 431). Here, the Commissioner failed to meet that burden. The main proof offered was Dr. Klebanov’s opinion that defendant should not be transferred to a nonsecure facility. However, that opinion was based on speculation that defendant was mentally ill and that should he discontinue his medication he may attempt to escape. However, to find that defendant has a "dangerous mental disorder” the statute requires a showing that defendant "currently constitutes a physical danger to himself or others” (CPL 330.20 [1] [c]). Dr. Klebanov’s opinion does not establish that defendant *231currently poses a danger, but would pose such a threat only in the event that he discontinue his medication in the future. However, this possibility is expressly provided for in the court’s "order of conditions” attached to defendant’s transfer, conditioning the transfer on the continued acceptance of medication. As further evidence of defendant’s danger, Dr. Klebanov and the Commissioner point to the violent incident in the elevator; however, this was an isolated incident in response to a real threat and does not support a finding of current danger if defendant is transferred to a nonsecure facility.
The dissent also argues that the violent and psychotic nature of the crime with which defendant was originally charged militates in favor of continued retention in a secure facility. However, the nature of the prior criminal act for which the detainee was acquitted is insufficient, without more, to demonstrate a current danger which would preclude his release or transfer. (Matter of Torsney [State Commr. of Mental Hygiene—Gold], 47 NY2d 667, 676.) Here, the evidence at the hearing showed that so long as defendant takes his medication, he is no longer psychotic or dangerous as he was at the time of the original incident.
The dissent also chooses to accord greater weight to the expert opinion of Dr. Klebanov than that of Dr. Kleinman. Such a determination is better left to the trier of fact, who had the opportunity to hear and observe the conflicting opinions of the expert witnesses. There is nothing in the record to discredit the opinion of Dr. Kleinman, an independently appointed expert whose expertise includes the treatment of victims of crime, or the court’s reliance on his independent judgment, without any bias on behalf of the defendant, that defendant does not pose a current danger.
In sum, the hearing court’s determination that the State failed to establish that defendant suffers from a dangerous mental disorder is supported by the evidence and the order transferring defendant to a nonsecure facility, under the express condition that he continue medication, should be affirmed. Concur—Ellerin, Wallach and Rubin, JJ.