Kupferman, J. P., and Smith, J., dissent in a memorandum by Smith, J., as follows: The People established by a preponderance of the evidence that the defendant has a dangerous mental disorder and should continue to receive treatment in a secure facility. (People v Escobar, 61 NY2d 431 [1984].)
In August 1989 the Commissioner of Mental Health made *232an application pursuant to CPL 330.20 (9) to retain the defendant at a secure facility. That section provides that at least 30 days prior to the expiration of a retention order, the Commissioner of Mental Health shall apply to the court for a subsequent retention order or a release. The section also provides that the court may "conduct a hearing to determine whether the defendant has a dangerous mental disorder”.
CPL 330.20 (1) (c) states: " 'Dangerous mental disorder’ means: (i) that a defendant currently suffers from a 'mental illness’ as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others.”
Mental Hygiene Law § 1.03 (20) states: " 'Mental illness’ means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation.”
A hearing was held at which the Commissioner presented the testimony of Dr. Roman Klebanov and the defendant’s psychiatric records. The defendant presented the testimony of an independent psychiatrist, Dr. Stuart Kleinman.
The preponderance of the evidence to retain the defendant was clearly established.
First, on or about November 10, 1978 the defendant shot and killed a stranger whom he believed was part of a conspiracy to kill him. In 1980 he was acquitted of that killing by reason of mental disease. Since that time, the defendant continuously has been kept in secure psychiatric facilities except for a brief period when he was incarcerated following his escape in 1984 from Manhattan Psychiatric Center.
Second, it is undisputed that the defendant suffers from schizophrenia, paranoid type. The only issue is whether he constitutes such a danger to himself and/or society that he should presently remain in a secure facility.
Third, in the report which accompanied the request for retention of the defendant, the Commissioner indicated both that the defendant had been involved in violent behavior at the Kirby Forensic Psychiatric Center and that the defendant’s illness continued. Specifically, the report, written by the treating psychiatrist, Dr. Klebanov stated:
"Assessment of Dangerousness * * * "While at Kirby Forensic Psychiatric Center the patient *233was involved in several incidents. On April 12, 1987 when he poured hot water on another patient. On June 20, 1987 there was a fight with one patient and on June 20, 1987 Mr. Torres slapped another patient. "On May 8, 1989 the patient was sexually provoked by one of the patients on the ward which led to a fight between them. On June 2, 1989 the patient hit another patient in his face, which resulted in a laceration of the upper lip. The patient has no PIV (Potential Identified Victim). "Course of Hospitalization: During the course of treatment during this hospitalization he was an extremely paranoid man who believes that there are a number of conspiracies against him. His greatest problem occur [sic] at night during hours of sleep. He believes that people harm him at night and has accused patients and staff of such things as playing with his feet, breaking various bones in his body and performing operations. He offered frequent somatic complaints which are bizarre and delusional in quality. He used to speak of scars on his body due to operations (non-visible). In general he thought that every part of his body is deteriorating and he holds others responsible for his plight. While he is quite articulate and seems to be of [at] least average intelligence, thought content was bizarre and associations during stressful periods [were] quite loose. "The patient had been poorly compliant with his treatment plan; refused to take antipsychotic medication which resulted in the hospital application for the forced medication in 1987. Since September 21, 1987 Mr. Torres has been medicated with IM Prolixin Dec. 25 mg. every two weeks (this medication was also very helpful to his mother, a paranoid schizophrenic). He showed improvement. Recently the patient became once again manipulative and demanding the charge [sic] of his current medications (IM Prolixin Dec. 25 mg. every two weeks). "Recommendations: Although the patient’s mental illness has been partially stabilize [sic] he continues to maintain strong beliefs that the people may have dangerous tendencies toward him, and harassing him. The patient may and has been acted [sic] upon his delusional ideas. Provided that [sic] the patient committed instant offense in the midst of paranoid psychotic episode as well as above mentioned behavior, it is my opinion that Mr. Torres needs further retention and treatment in a secure facility.” Fourth, and in my view of particular importance, is the opinion of the treating psychiatrist. Dr. Klebanov’s opinion *234was that the defendant suffered from a mental disease and that he should be retained in a secure facility. Dr. Klebanov also testified that the defendant had improved with medication but that he resisted taking the medication, had refused to take it on occasion, and would decompensate within a short period of time if he did not take it. His recommendation to retain the defendant was supported by the forensic committee at the secure facility and by its clinical director. Dr. Klebanov had first examined the defendant in January 1987 and, at the time of the hearing, had almost daily contact with him.
It should also be noted that Dr. Klebanov and the forensic committee at the facility had previously decided to recommend that the defendant be transferred to a nonsecure facility but had withdrawn that recommendation following the defendant’s decompensation upon learning of the possibility of transfer.
Dr. Kleinman, on the other hand, had seen the defendant for only 1½ hours. In addition, he had read some of the medical records. While he agreed that the defendant was suffering from schizophrenia, paranoid type chronic, he believed that it was in remission and that the defendant would not be a danger to himself or others as long as he took medication. He stated that the defendant was likely to deteriorate if he failed to take his medication.
Based on this record, I believe the Commissioner established a case for the continued treatment of the defendant in a secure facility. The fact that medication has improved the defendant’s condition is not determinative given the evidence of the necessity for continued treatment in a secure facility.