OPINION OF THE COURT
Per Curiam.
The central issue on this appeal is whether an acquittee by reason of mental disease or defect, who has repeatedly violated the order of conditions upon which he gained release, and who is still mentally ill and a polysubstance abuser given to acts of violence, may still be found to be not suffering from a dangerous mental disorder because at the time of the hearing on recommitment pursuant to CPL 330.20 (14) the acquittee, under the structured environment of a psychiatric hospital, is not presently exhibiting dangerous behavior.
After lengthy hearings, the Supreme Court found that the acquittee, respondent Francis S., is mentally ill, and suffers from alcoholic dependence and polysubstance abuse; has an antisocial personality disorder; has a narcissistic personality disorder; has an attention deficit hyperactivity disorder; is a master of manipulation; uses the criminal justice system to his benefit; is highly likely to get into trouble again upon release from the hospital because he refuses to take medication or to attend Alcoholics Anonymous meetings; and cannot control himself to refrain from escalating incidents leading to numerous arrests. Nevertheless, the court felt constrained to release S. and not to grant the application for recommitment upon the authority of Matter of Torres (People), (166 AD2d 228, affd for reasons stated 78 NY2d 1085) because S. was not, at the time of the hearing, suffering from a dangerous mental disorder even though the reason for this improved condition was the fact that he had been hospitalized for some six months, and on a regimen of medication and separation from polysubstance abuse. We find that the court’s reliance on Matter of Torres (supra) was misplaced; that the appellants established, by a fair preponderance of the evi[7]*7dence, and in fact by clear and convincing evidence, that S. suffered from a dangerous mental disorder at the time of the hearing, and accordingly the petition for recommitment pursuant to CPL 330.20 (14) should have been granted.
This recommitment proceeding has its genesis in a 1983 incident. At that time, S. was at the scene of a drug raid for the purposes of purchasing marihuana. He refused the order of a police officer to leave and was arrested for disorderly conduct. As he was being placed under arrest, S. pulled out a six-inch hunting knife and attempted to stab the officer. As a result, S. was also charged with attempted assault in the first degree and criminal possession of a weapon in the third degree. Following arraignment on these charges, he was released on his own recognizance and then engaged in various criminal acts in New Jersey, which resulted in his arrest and confinement at Greystone Psychiatric Center. During his confinement, which lasted from May 17, 1984 until April 29, 1986, S. reported aural and visual hallucinations, claiming in one instance that he was seeing snakes, bugs and images of Satan and was hearing voices telling him to get a gun and blow his brains out. S. also claimed that he communicated with God, worked for God, was God, that he feared that Satan would kill him because he was an archangel, and that he was depressed and wanted to die.
As a result of the observations as well as examinations of respondent, S. was diagnosed as a chronic undifferentiated schizophrenic with acute exacerbation. His treating psychiatrist prescribed a high dosage of antipsychotic medication. Greystone’s doctors agreed that S. presented a danger to himself and others and thus, despite the medication’s beneficial effects, required continued hospitalization on a closed ward until he was stabilized on it. On August 21, 1984, S. escaped from Greystone using a spoon he had fashioned into a key that could open a security lock. He was quickly apprehended, returned to Greystone, and ultimately stabilized on Prolixin.
On April 29, 1986, S. was discharged from Greystone and extradited to New York to face prosecution on the 1983 attempted assault and weapon charges. The discharge diagnosis reported that he remained a chronic undifferentiated schizophrenic but was in remission because of his hospitalization and treatment at Greystone, and was no longer hostile or violent. The doctor who discharged S. recommended that he [8]*8receive aftercare at a local New York City mental health center upon release from custody.
Upon being returned to New York, S. was released on his own recognizance. In February 1987, while drunk and without a driver’s license, S. drove his car into a parked car in Manhattan, causing a multivehicle accident. As a result, S. was charged with reckless endangerment of property, reckless driving, and driving while intoxicated. One month later, S. was found in possession of three glassine envelopes of heroin and was charged with criminal possession of a controlled substance in the seventh degree, to which he pleaded guilty, and served a short prison sentence.
On August 7, 1987, before Justice Kleiman, respondent pleaded not guilty by reason of mental disease or defect in satisfaction of the 1983 indictment for attempted assault of the police officer and weapon possession, and following a hearing pursuant to CPL 330.20 (7), was found to be mentally ill, but not suffering from a dangerous mental disorder, as those terms are defined in CPL 330.20 (1) (c) and (d). Accordingly, S. was remanded to a nonsecure facility for four months under the custody of the New York State Office of Mental Health. In addition, Justice Kleiman issued a five-year order of conditions, which required that S. comply with the terms of the treatment plan prescribed by the Office of Mental Health. As a result of the plea before Justice Kleiman, the charges relating to the car accident noted above were dismissed.
In May of 1988, the Commissioner of the New York State Office of Mental Health brought a recommitment application pursuant to CPL 330.20 (14). In support of the application, Dr. Maurice Masse stated that S. was not compliant with his treatment. During the pendency of that application, S. continued his substance-induced violent behavior. On June 4, 1988, he was arrested and charged in New Jersey for shoplifting and aggravated assault on a police officer. On July 27, 1988, he was arrested for driving while intoxicated. Then, at around midnight on November 2, 1989, S. threatened a bartender and patrons at Canastel’s restaurant, on the corner of 19th Street and Park Avenue South in Manhattan, with a 10-inch-long metal pipe wrapped in leather. Police Officer Daniel Pusateri encountered S. outside of the restaurant after he had been ejected but then tried to get back inside. Officer Pusateri asked S. to leave the area, but he refused and swung his arms around and yelled. As S. was being placed under arrest for disorderly conduct, he bit the officer on the hand. As a result, [9]*9S. was charged with assault, resisting arrest, menacing and criminal possession of a weapon. On November 5, 1989 S. pleaded guilty to assault in the third degree and was sentenced to 30 days in jail.
On December 3, 1989, immediately after his release from custody on those charges, S. visited the Coastal Restaurant on Amsterdam Avenue in Manhattan. When he was asked to leave the restaurant, he kicked in a glass panel door. When police officers arrived to arrest S., he threatened the officers, "I will kill you. I will find out where you live. I will cut you up.” S. was charged with criminal trespass and several counts of criminal mischief, but was apparently released on his own recognizance.
On December 13, 1989, S. again became involved in an altercation with a bartender, this time at Bamboo Bernies Cocktail Lounge in Manhattan. S. threatened to hit the bartender with a metal pipe, shouting at the bartender, "I’m going to get you.” He pounded the metal pipe on the counter of the bar, damaged the bar and broke several glasses. Once again, when the police arrived to arrest S., he threatened the officers, exclaiming "I am going to sneak up behind you and your partner when I get out and blow you two away; when I get out I’m going back there [Bamboo Bernies] and blow those guys away. Mark my words, I’m gonna do it. They are going to be dead and so are you. You’re gonna be dead and I’m gonna laugh and spit in your face.” S. was charged with criminal possession of a weapon, two counts of criminal mischief, and menacing. On January 10, 1990, S. pleaded guilty to criminal mischief and was sentenced to 90 days in jail, apparently covering charges arising out of the December 3, 1989 incident also.
In January of 1990, S. was arrested and brought into the custody of the Commissioner of Mental Health and committed to the Kirby Forensic Psychiatric Center. Based on this commitment and examination by doctors, S. was deemed to suffer from a dangerous mental disorder. However, following a hearing and after S. had been in a hospital for some time, he was found to be mentally ill by Justice Shorter, but not suffering from a dangerous mental disorder. As a result, Justice Shorter ordered S.’s commitment in a nonsecure facility. Justice Shorter also altered the conditions and specifically required that S. refrain from the use of alcohol, nonprescribed controlled substances and illegal drugs.
[10]*10S. was transferred to South Beach Psychiatric Center, a nonsecure facility, and was again diagnosed as suffering from manic bipolar disorder and antisocial personality disorder. His diagnosis remained the same upon discharge in November 1990. A treatment plan was prepared pursuant to which S. was to reside with his parents, continue his medication and get psychiatric treatment at Batavia clinic pursuant to the continuing order of conditions.
On June 17, 1991, S. was arrested in New Jersey for weapons possession and driving while intoxicated. The disposition of that arrest was unknown at the time of the hearing. On July 13, 1991, S. and his girlfriend Colleen Bruck were observed in Southampton, Long Island shouting obscenities at a police officer who had issued Ms. Bruck a parking summons. Officer Stephen O’Brien placed the two under arrest for disorderly conduct, but S. resisted violently, kicking and pushing the officers who had arrived on the scene. S. kicked the doors and windows of the police car taking him to the station house, and at the station house head-butted Officer O’Brien and kicked him in the groin. S. was charged with assault, resisting arrest and disorderly conduct, which charges were still pending at the time of the hearing. On July 6, 1992, S. got into an argument with his girlfriend, Ms. Bruck, in the course of which he broke the windshield and one of the door windows of her automobile. S. was charged with criminal mischief arising out of this incident.
On August 4, 1992, the Office of Mental Health (OMH) brought a recommitment application pursuant to CPL 330.20 (14) based upon its review of S.’s psychiatric records, his arrests in 1991 and 1992, and his persistent noncompliance with the order of conditions. OMH asserted that S. suffered from a dangerous mental disorder. However, OMH was not able to locate S.
On September 8, 1992, S. swung a pair of three-foot sticks at a young couple in Central Park and, when others tried to take the sticks away from him, S. brandished a knife and swung it twice at the young man. S. was arrested on the complaints of the persons he had threatened, whereupon the police found, in addition to the knife, six hypodermic needles and drug paraphernalia in S.’s backpack. One of the arresting officers testified that following his arrest as a result of this incident S. continued to act in a bizarre manner, "howl[ed] like an animal”, and ridiculed other inmates. The officer also testified that following fingerprinting, S. washed his hands in the [11]*11toilet, despite the fact that a sink was nearby. S. then continued to scream and grab the bars, rattling them back and forth in a very agitated, violent manner—"almost foaming at the mouth”. S. was given permission to call his girlfriend, and when she refused to help, he threatened that he would get her and ruin her life if she did not bail him out in the morning.
On September 10, 1992 James Gilbride, chief of security at Kirby Forensic Psychiatric Center, went to Manhattan Criminal Court to execute the outstanding arrest warrant issued by OMH in connection with the recommitment application. All criminal charges pending in Manhattan against S. were dismissed, and S. was placed in the custody of OMH. S. demanded that the Judge ignore the warrant, and when the Judge refused to do so, he called her "a stupid bitch” and threatened to kill her. He then attempted to escape but was subdued. At Kirby, on September 22, 1992, S. appeared before a Supreme Court Justice, and a 30-day examination order was issued. Pursuant to that order, S. was sent to South Beach Psychiatric Center to be evaluated by two doctors to determine whether he suffered from a dangerous mental disorder.
On October 7, 1992, Doctor Delfín G.C. Ibanez, a psychiatrist, examined S. Based on that examination, the doctor’s observations of S.’s conduct and a review of his history, both psychiatric and criminal, Dr. Ibanez found that S. had a long history of mental illness and drug abuse. S.’s history of psychiatric illness and behavioral problems had begun manifesting themselves when he was five years old when he experienced hyperactivity and temper tantrums. He had psychiatric help when he was seven years old and was diagnosed as suffering from attention deficit disorder.
In 1982, S. had been hospitalized in a psychiatric institution in Pennsylvania where lithium had been prescribed, but the drug did not work because S. did not take it as ordered. He had also been hospitalized in a psychiatric institution in New Jersey. The records demonstrated that S. was a long-time abuser of drugs and alcohol. As Dr. Ibanez testified, S. admitted that he had begun sniffing glue at the age of 13 and later experimented with LSD. He had also used PCP, intravenous heroin and other opiates.
During his observation of S., Dr. Ibanez noted that he was irritable and had mood swings, his speech was loud, pressured and rapid, he had a restricted affect, and he was hyperactive. Dr. Ibanez described S.’s thinking as circumstantial, tangen[12]*12tial with flight of ideas, with delusions of persecution and grandeur. His persecutory delusions were in the form of his belief that the police and the "system” were abusing him.
S.’s delusions of grandeur were exemplified by his discussion with Dr. Ibanez about a "Pan Am Project” involving construction of a theater on the roof of the Pan Am building at which he would promote international concerts via satellite and would sell photos and posters of John Lennon and Yoko Ono. S. expressed no concern about the owner’s view of the project and continued discussing it as if it were an ongoing project. Dr. Ibanez noted that even if S. had designed such a plan it still demonstrated that he was delusional because of the manner in which he discussed it—"the grandiosity, the flavor, the mood that is being presented” that demonstrates the symptom of mania. Similar delusions were S.’s claims that he has multi-million dollar business deals with people in Southampton, Long Island and references to famous people as if he knew them personally.
On October 6, 1992, Doctor Erazmo R. Cruz, a psychiatrist, also examined S., reviewed his psychiatric and criminal history and observed his conduct. He concurred with Dr. Ibanez’s descriptions of the length of S.’s psychiatric history, his history of drug abuse, his irritable, moody conduct and the delusional nature of his thinking.
Based on the information available and their observations, Drs. Cruz and Ibanez diagnosed S. as suffering from bipolar disorder, manic and recurrent, polysubstance abuse and antisocial personality disorder. They explained that bipolar disorder could be treated with prescribed antipsychotic medication —Prolixin and lithium—but Dr. Ibanez added that S. often refused to take it and that his failure to take the prescribed medication would result in his descending into a paranoid psychotic episode. During one session, S. told Dr. Ibanez that he did not need medication, and when the medication was ordered in the form of tablets he pretended to take them by "cheeking” and not swallowing them. When the medication was changed to concentrate form, S. refused to take it. Both doctors agreed that S.’s violent conduct outside of the facility, and his numerous arrests, all indicate his descent into a paranoid psychotic state, characterized by a total loss of control, lack of insight and impairment of judgment.
Drs. Cruz and Ibanez agreed that S.’s paranoid symptoms were aggravated by his use of drugs and alcohol, and opined [13]*13that it was his abuse of those substances, combined with his failure to take his medication and adhere to an outpatient treatment plan, that caused him to act in an aggressive and violent fashion. According to the doctors, S. has no insight into his various mental illnesses and needs a longer period of time to be educated about his illness and convinced of the extent of the illness. Moreover, according to Dr. Cruz, the denial of his mental illness made S. an escape risk. As a result of their separately conducted examinations, both doctors concluded that S. had a dangerous mental disorder and was in need of care and treatment in a secure facility and that it would be inconsistent with public safety to release him.
Both doctors acknowledged that S. exhibited no symptoms of a dangerous mental disorder and was not psychotic when he was in a psychiatric institution. They both testified, however, that this was not unusual since an individual committed against his will would be given medication and forced to comply with a treatment plan. Moreover, an individual such as S. would try to be on good behavior to ensure his release. In short, compliance or lack of dangerousness in a facility does not necessarily mean that an individual does not suffer from a dangerous mental disorder. Noting S.’s history, his impaired judgment, loss of control, psychotic and manic symptoms, and recurrent antisocial behavior, both opined that once S. was released and consequently not monitored in the controlled environment, he would fail to be compliant with any outpatient treatment plan that prescribed medication or required him to attend clinic follow-up appointments.
Based on the conclusions of Drs. Ibanez and Cruz that S. suffered from a dangerous mental disorder, he was transferred to Kirby Forensic Psychiatric Center, a secure psychiatric facility. There Dr. Robert B. Poundstone, a board certified psychiatrist, began treating S. Based on his review of S.’s psychiatric records, observations and conversations with S. and talks with S.’s mother, he diagnosed S. as having a major affective disorder, manic type, and manic bipolar disorder. He added that S. also suffered from other diagnoses including attention deficit disorder (Dr. Cruz disagreed with this particular diagnosis), antisocial personality, alcoholism and drug abuse.
Like Drs. Ibanez and Cruz, Dr. Poundstone, in arriving at his diagnosis, relied on S.’s pressured, rapid-fire speech, signs of grandiosity, paranoid and persecutory delusions, his nonsensical verbal production, and his tangential thought pro[14]*14cesses with flight of ideas. In addition, Dr. Poundstone commented on S.’s "compulsive” behavior, and observed that when confronted with his past psychiatric and criminal history, S. initially denies the events, and then after further questioning he minimizes his conduct.
Dr. Poundstone also explained that S. had repeatedly denied that he was mentally ill, that he needed inpatient care or had a current problem with drugs and alcohol. These denials, according to Dr. Poundstone, substantially interfered with adequate treatment. He agreed with Drs. Cruz and Ibanez that S.’s behavior demonstrated a desire to achieve freedom, not to achieve health. Thus, according to Dr. Poundstone, while in the hospital, S. would "behave” to try to convince the court that he should not be in the hospital. Dr. Poundstone characterized S. as a very clever man, able to fool people to attain certain ends by putting "his best face forward,” in order to conceal what might be behind his goal-oriented behavior. Indeed, Dr. Poundstone testified that such manipulative behavior is symptomatic of bipolar disorder.
Finally, Dr. Poundstone was of the opinion that S.’s 26 arrests were symptomatic of S.’s mental illness in that they show his bad judgment and inability to appreciate the consequences of an act, which is a common feature of a manic person. As a result of his evaluation, Dr. Poundstone agreed that S.’s illness required care and treatment in an inpatient facility and that S. was not suitable for discharge because, outside of a psychiatric institution, he reverted to his previous behavior, which included drug and alcohol use, and that S. would be a danger to himself or others.
S. testified at the hearing that the crime for which he entered a not responsible plea resulted from a misunderstanding with a police officer. The police officer wanted a "payoff” to let him walk away but S. refused. S. did not take out a knife and swing it at the police officer. Although he entered a not responsible plea, he was not in fact mentally ill, but rather entered the plea because he did not want to go to jail and "be someone’s bitch.”
S. conceded that he had been arrested on November 2, December 3, and December 13, 1989, arising from altercations with bartenders at different restaurants in Manhattan; on June 17, 1991, for driving while intoxicated and possession of a weapon; on July 6, 1992, for fighting with his girlfriend Colleen Bruck; and on September 8, 1992, for an incident in [15]*15Central Park. S. explained that each bar fight was provoked by the bartender. For example, in the November 2, 1989 incident the bartender had given S. incorrect change, an argument ensued and when the police arrived, despite the officer’s requests, S. refused to leave the area and fought for his right to his money. The police allegedly arrested S. because, in his own words, he had "a big mouth”.
Similarly, on December 13, 1989, when the bartender at Bamboo Bernies slapped S.’s girlfriend for no reason, S., who had been drinking that day and had a "brash” attitude, confronted the bartender, hit his "drumstick” on the bar and caused the glasses to fall down and break. Once again, when the police arrived, S. tried to explain what happened; however, since the bartender was friends with the police, S. was arrested. S. denied threatening to kill the police officers and made similar denials as to the December 3, 1989 incident.
S. testified that the June 17, 1991 driving while intoxicated charge was falsified, and denied becoming violent and screaming while at the precinct. With respect to the September 8, 1992 incident, S. said it was he who was the victim of an assault. He was in Central Park talking to a girl and before S. knew it, a man grabbed him by the neck and knocked him down, causing him to fall on his binoculars and break them. In response, S. ran over to his backpack, picked up a pair of "drumsticks,” gave himself a "safe zone,” waved the sticks in the air and called police officers over for assistance.
S. admitted to having had a "bad attitude” towards the police that day, and he insisted that they arrest the people that had attacked him. The police, however, not liking S.’s "big mouth,” arrested him instead. At the precinct, S. might have sang and said he felt like a baboon and did "goofy things” in the cell, but he did not howl, and did not wash his hands in the toilet. S. denied drinking or taking drugs on that day, denied having possession of a knife or pulling a knife, and denied being in possession of hypodermic needles.
S. admitted that on July 6, 1992, he broke the window of his girlfriend’s car, and she bit him on the arm and hit him with a steering wheel lock. However, as to the charges brought in Southampton, arising from the July 13, 1991 incident, S. refused to testify about the details of the events that transpired because the criminal action was still pending and he had a $5 million lawsuit pending against the police department. However, he testified that the police officers from Southampton had lied.
[16]*16As to S.’s conduct in the courtroom when the OMH took him into custody on September 10, 1992, Andrea Pincus, a criminal defense attorney for the Legal Aid Society, testified that S. was neither abusive nor profane, and did not threaten to kill the Judge or anyone else. Pincus, however, was not with S. when he was being placed under arrest by Chief Gilbride.
On November 6, 1992, Doctor Azariah Eshkenazi, a board-certified, court-appointed psychiatrist, examined S. for one hour. Based on that interview, as well as his review of S.’s medical records and talks with the current treating psychiatrist, Dr. Poundstone, Dr. Eshkenazi concluded that S. suffered from a mental illness, but as long as he did not use drugs or alcohol he was not dangerous. Dr. Eshkenazi diagnosed S. as suffering from bipolar disorder and drug and alcohol abuse. According to the doctor, at the time of the evaluation the only current signs and symptoms of S.’s mental illness were fast speech and slight elation, and he concluded that S.’s bipolar disorder was in remission. He added, however, that with bipolar disorder there will be a period of time, three or four months, where the person appears "normal”, i.e., not elated or depressed. Dr. Eshkenazi also noted that the substance abuse was in remission, but conceded that S.’s confinement in the hospital most probably accounted for this condition.
On October 13, 1992, Doctor Neis K. Langsten, a private psychiatrist affiliated with the outpatient psychiatric clinic at Metropolitan Hospital, and an assistant professor of psychiatry at New York Medical College, who was hired by S.’s girlfriend, Colleen Bruck, interviewed S. for an hour and a half for the purpose of testifying in this matter. Dr. Langsten had first met S. in February of 1991, when he was working at the walk-in clinic at Metropolitan Hospital, and saw him three times during a period of one and one-half years. During that period, the respondent missed appointments, cancelled rescheduled appointments, and was "not compliant.” The doctor did not review any of S.’s medical records in making his evaluation, and did not talk to Dr. Cruz or Dr. Ibanez. In addition, the doctor did not know the extent or the details of S.’s criminal record.
Dr. Langsten noted, in connection with his evaluation, that S. displayed restless, pressured, rapid speech, and a hypo-manic mood, i.e., a mild mania. He conceded that S. could suffer from more severe manic episodes while under the influence of alcohol. Dr. Langsten concluded that S. suffered [17]*17from a milder version of bipolar disorder, cyclothymia, a condition that involved mood instability, changes in moods between hypomania and depression but no psychotic episodes. He also found that S. suffered from alcohol dependence and polysubstance abuse, attention deficit, and antisocial and narcissistic personality disorders. Dr. Langsten concluded that while S. was mentally ill, he was not dangerous.
Doctor Michael Weiner, an attending physician at Bellevue, also hired by Ms. Bruck, interviewed S. for 90 minutes on December 8, 1992. Dr. Weiner concluded that S. suffered from attention deficit hyperactivity disorder, alcohol dependence, polysubstance abuse and narcissistic and antisocial personality disorders, but not bipolar disorder because of S.’s history of persistent overactivity, persistent high level of energy and the fact that there was no evidence of a manic pole or depressed pole. Dr. Weiner viewed S.’s problem solely as diminished attention in that he had an inability to complete tasks because he is distracted by external stimuli.
All three doctors agreed that S. did not exhibit any signs of psychotic behavior, namely, hallucinations, delusions, looseness of association or flight of ideas; and all noted that his judgment and insight were good. While all three doctors found that S. suffered from long-standing mental illnesses of various types, and the abuse of drugs and alcohol, which caused him to commit crimes, all agreed that if S. were to refrain from using drugs and alcohol he would not be dangerous to himself or others. Not surprisingly, none of the doctors could predict S.’s compliance with such abstention; according to Dr. Eshkenazi, one needed to "hope and pray” that S. followed the rules.
At the conclusion of the hearing, Justice Miller found that S. was mentally ill and had violated his order of conditions as he had repeatedly done in the past. Based on his history, the Court found that it was "highly likely” that when released, S. would continue his uncontrollable behavior outside of a hospital setting and would simply not comply with any treatment plan, but rather would relapse into drug and alcohol abuse. Justice Miller acknowledged that S.’s behavior had been controlled during his hospital stay, but she explained:
"Mr. S. is a master of manipulation. He uses the criminal system to his benefit, so he has spent relatively little time in jail in spite of his 26 arrests. In the hospital, because he wants to get out, and also because he is in a structured environment, his behavior is more controlled. * * * Based on his history, [18]*18the Court also finds it is highly likely that whenever Mr. S. is released from the hospital, he will get into trouble again, for the following reasons: He violated the order of conditions this time, as he has violated the order of conditions in the past, because he does not accept them fully. He cannot accept limits.
"His outbursts in the courtroom diminished because of the structured hospital setting, and because he is regularly taking Cylert. But when he’s outside the hospital, the patient does not take medication regularly. Reasonable requests to have him move on have resulted in him defying police officers, bartenders, restaurant employees, etc. Although the patient stated that alcohol and drugs plagued him for years, he is not consistent in his treatment. Based on his past history, he will not commit himself to the A.A. program totally and with sufficient regularity for success.
"The patient is verbally provocative, even with his fiance. He cannot control himself to refrain from escalating incidents. Such behavior has led to his numerous arrests. He never learns from his past experience. As I indicated, the patient has violated his order of conditions. He has constantly moved from program to program. This is what he has done in the past. He never stays at any one program and complies with it 100 percent, so that progress can be made. He never moves from square one. And if he’s released from the hospital he probably will continue that same behavior. However, the law does not permit me to confine Mr. S. to a secure hospital, because he is not currently dangerous.
"Yet based on his limitations and his past history, it is highly likely that if he is released he will not attend A.A. regularly, he will not continue to take Cylert, even though he’s benefited by it, he will not stop provoking people, he will not accept lawful authority, he will not respect the rights of others; because he considers that he alone is the ultimate judge of what is proper and reasonable behavior.”
Nevertheless, relying on Matter of Torres (People) (166 AD2d 228, affd for reasons stated 78 NY2d 1085, supra) the court "reluctantly” held that the Commissioner failed to demonstrate that S. suffered from a dangerous mental disorder. Justice Miller’s ruling was incorrect, in our view, since there was ample evidence that S. suffered from such a disorder. Consequently, the order appealed from should be reversed, the application granted and S. confined to a secure psychiatric institution.
[19]*19At the outset, there is very little support in the record for Justice Miller’s conclusion that S. was mentally ill but did not suffer from a dangerous mental disorder. Under CPL 330.20 (1) (c), a defendant suffers from such a disorder if he currently suffers from a mental illness, as defined in Mental Hygiene Law § 1.03 (20), and because of that condition, currently constitutes a physical danger to himself or others. Here, there is no dispute that S. was mentally ill; six psychiatrists who testified at the hearing all concurred in that conclusion. In addition, after hearing the evidence, Justice Miller found, as a matter of fact, that once released, respondent would revert to his prior pattern of behavior, a pattern which included the abuse of drugs and alcohol, a failure to comply with treatment and substance-driven violent behavior characterized by his defiance of authority figures.
Medical support for Justice Miller’s conclusion that S. would revert to drug and alcohol use outside of the facility was offered by three psychiatrists who testified on behalf of the State. All agreed that until respondent acknowledges his mental illness and abstains from drug and alcohol abuse he will continue to have a dangerous mental disorder. Moreover, while S.’s psychiatrists disagreed that he would revert to his prior behavior, they agreed that if he began abusing drugs and alcohol again he would revert to his dangerous behavior. Notably, S. acknowledged that his criminal record was due to his dependency on drugs and alcohol, and that he "slipped” several times since his release from South Beach in 1990, i.e., he began drinking on those occasions. In short, Justice Miller had little doubt on this record that S. would revert to the very behavior that the State’s psychiatrists characterized as demonstrating a dangerous mental disorder.
Despite the absence of any support in the record for the conclusion that respondent was merely mentally ill, and Justice Miller’s finding a strong probability of his reversion to a dangerous state, she nevertheless denied the recommitment application. In doing so, she interpreted Matter of Torres (supra) to mean that when a CPL 330.20 defendant’s external behavior improves because of the structured setting in which he is confined, he is not dangerously mentally ill under CPL 330.20 (1) (c) even though it is "highly likely” that he will revert to his dangerous behavior outside the structured environment. That is not the holding of Torres.
In Torres (supra), the defendant had been found not respon[20]*20sible for murder by reason of mental disease or defect and had been confined to a secure psychiatric hospital for 10 years. Following drug treatment, his psychiatrist recommended that he be transferred from a secure facility to a nonsecure hospital. At the transfer hearing, the treating physician changed his recommendation and opined that Torres would eventually discontinue his medication and suffer a relapse rendering him a dangerous person. The hearing court, nevertheless, found pursuant to GPL 330.20 (1) (c) that since Torres did not presently constitute a physical danger to himself or others, he was not suffering from a "dangerous mental disorder” and could no longer be retained in a secure facility. The majority of this Court agreed with that conclusion and thus affirmed the hearing court’s determination requiring transfer to a nonsecure facility which would still monitor his medication. The Court of Appeals affirmed this determination. Unlike Torres, S. has demonstrated over and over again that upon release from a controlled environment, he will resort to drugs, alcohol and dangerous behavior. S.’s history presents an undeniable pattern which distinguishes this case from Torres and compels the conclusion, by a preponderance of the evidence, that S. is currently suffering from a dangerous mental disorder, as testified to by the State psychiatrists, since he will inevitably resort to assaultive or other dangerous behavior upon his release from a controlled environment.
Recently, the Appellate Division, Second Department, was confronted with a similar situation in the context of a civil commitment hearing (Mental Hygiene Law § 9.31) which required a finding of dangerous mental disorder by clear and convincing evidence (Matter of Seltzer v Hogue, 187 AD2d 230). Hogue, like S., had a history of polysubstance abuse and mental illness. Invariably, following release from psychiatric hospitals, Hogue would recommence his use of alcohol and illegal drugs, stop taking medication and engage in violent and uncontrollable behavior. Whenever he was recommitted, just like S., his behavior would become nonviolent, and thus the trial court denied Hogue’s involuntary commitment because at the time of the hearing, he was no longer a danger to himself or to others. However, the Second Department unanimously reversed and granted the application for retention, specifically finding that "although Hogue’s external behavior has improved somewhat in Creedmoor (a structured setting in which he takes certain seizure medication), he has a history of noncompliance with any treatment program upon his release [21]*21from psychiatric hospitals. Indeed, once he is released from these institutions, his mental illness invariably deteriorates to the point that he engages in substance abuse and activities which are dangerous to himself and others.” (Supra, at 237-238.) These words can aptly be applied to S. We accordingly conclude that the appellants have demonstrated by a preponderance of the evidence that S. suffers presently from a dangerous mental disorder, and therefore the recommitment application should be granted.
We find no merit to S.’s argument that since he was originally found to be mentally ill but not suffering from a dangerous mental disorder, following his plea of not responsible by reason of mental disease or defect, he may not be recommitted pursuant to CPL 330.20 (14) which requires a finding of dangerous mental disorder by a preponderance of the evidence, but, instead should be treated like a civil committee which requires a finding of dangerousness by clear and convincing evidence. That argument was specifically rejected by the Court of Appeals as a matter of statutory construction (People v Stone, 73 NY2d 296, 299-300) and by the Appellate Division, Second Department, under constitutional due process and equal protection standards (Matter of Zamichow [New York State Commr. of Mental Health], 176 AD2d 807, appeal dismissed sub nom. Matter of Lloyd Z., 79 NY2d 851). In any event, even if the clear and convincing evidence test were deemed applicable to the instant proceeding, we would find that the evidence at the hearing met that more stringent test.
Foucha v Louisiana (504 US —, 112 S Ct 1780) does not support the dissenter’s contention that S.’s due process rights were violated. In Foucha, the State retained the defendant in a psychiatric facility merely because he was dangerous; but clearly, confinement in a psychiatric facility is unjustifiable once the acquittee regains his sanity. As the Supreme Court observed (504 US, supra, at —, 112 S Ct, supra, at 1784): "In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court’s hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis.” In the case at bar, the court stated: "The Court finds that the defendant is mentally ill. All the psychiatrists have testified that he is mentally ill.” Foucha is thus readily distinguishable on its facts.
Nor do we find merit to S.’s claim that the proceeding to recommit him was untimely. The application for recommit[22]*22ment was originally filed on August 4, 1992, within the five-year period of the order of conditions which commenced August 7, 1987, the date S. pleaded not responsible by reason of mental disease or defect. While these conditions were ¿mended at one point, the amendment was made nunc pro tunc as of August 7, 1987. The application was filed with the court on August 4, 1992, and attempted service at S.’s last known address was made. However, it was later discovered that S. did not receive a copy of the recommitment application, and shortly thereafter a new notice of the recommitment application was sent to S. at his fiancée’s residence in Baldwin, New York, where it was actually received by S.
CPL 330.20 (14) provides that "[a]t any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order * * * for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder.” The order of conditions did not expire until August 7, 1992, and the present application was filed on August 4, 1992. Therefore, it was timely. While CPL 330.20 (14) requires service of the application for recommitment on the defendant, it does not require that service on the defendant be made simultaneously and within the five-year term of the order of conditions. The failure to serve the recommitment application on S. within the five-year period was not a jurisdictional defect, and the State was properly permitted to hold the statutorily mandated hearing, especially where the recommitment application was made to the court within the period governing the order of conditions (see, People ex rel. Thorpe v Von Holden, 63 NY2d 546).
Finally, S. argues that the affidavit submitted in support of the recommitment application was insufficient and, therefore, the application should be dismissed. Specifically, S. argues that Dr. Castillo’s clinical evaluation from 1990 was not representative of his clinical diagnosis at the time of the recommitment application, and that the basis for the doctor’s determination that S. was dangerous was not based on personal knowledge. We disagree. CPL 330.20 (20) requires that all applications pursuant to CPL 330.20 be supported with an affidavit of at least one psychiatrist which sets forth the defendant’s clinical diagnosis, a detailed analysis of the defendant’s mental condition and the opinion of the psychiatric examiner.
In his affidavit, Dr. Castillo stated that S.’s clinical diagnosis [23]*23in 1990 was bipolar disorder, manic type, and that based on a review of S.’s inpatient psychiatric care, his history of noncompliance with his order of conditions and two recent arrests —affidavits of both Assistant District Attorneys were provided —he concluded that respondent constituted a danger to himself or others and required care and treatment in a secure psychiatric facility. We find that the affidavit was sufficient to satisfy the statute’s requirements, particularly since the Commissioner had lost contact with S. upon his release from South Beach in 1990, and was, thereby, unable to submit a more updated clinical analysis.
In any event, the alleged insufficiency of the allegations in the affidavit submitted in support of the recommitment application are not jurisdictional defects, but rather would be pertinent only to a motion to dismiss the proceeding or a habeas corpus petition prior to hearings (see, CPL 330.20 [20]). We perceive this as analogous to a motion to dismiss an indictment on the ground that the "evidence before the grand jury was not legally sufficient to establish the offense charged.” (CPL 210.20 [1] [b].) The Criminal Procedure Law provides in this respect: "The validity of an order denying any motion made pursuant to this section [to dismiss an indictment for insufficiency] is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30 [6]). By analogy, there seems little point in concentrating our attention upon the technical sufficiency of the affidavit, upon which the recommitment proceeding was commenced, after extensive hearings generating over 1,500 pages of mostly psychiatric testimony, in the course of which 1,800 pages of S.’s psychiatric records were admitted into evidence, explored and tested. The question before us is whether or not the evidence at the hearing established that S. had a dangerous mental disorder (CPL 330.20 [14]) as defined by CPL 330.20 (1) (c). We have concluded that the evidence at the hearing established that S. did suffer from a dangerous mental disorder.
The order of the Supreme Court, New York County (Edith Miller, J.), entered February 1, 1993, which denied the appellants’ application seeking recommitment of respondent Francis S., also known as Francis S., pursuant to CPL 330.20 (14), should be reversed, on the law and on the facts, and the application should be granted.