In re Buthy

Appeal unanimously dismissed, without costs. Memorandum: Petitioner appeals from the denial after a hearing of his petition for release from Gowanda Psychiatric Center. Petitioner was committed to the custody of the New York State Commissioner of Mental Health in 1972 after his acquittal of a charge of assault, first degree, by reason of mental disease or defect. His chief contention is that the court in reaching its determination erred in applying the “fair preponderance of the evidence” standard of proof instead of the “clear and convincing” standard enunciated in Addington v Texas (441 US 418) (see Matter of Estes, 75 AD2d 451; cf. Matter of Torsney, 47 NY2d 667). Because the order appealed from expired on August 19, 1982, we dismiss the appeal as moot. Were we to reach the merits, we would affirm based on our finding on this record that the People have established by clear and convincing evidence that petitioner has a dangerous mental disorder warranting continued confinement pursuant to CPL 330.20 (cf. Matter of Snyder, 88 AD2d 772). (Appeal from order of Supreme Court, Erie County, Kane, J. — CPL 330.20.) Present — Simons, J. P., Hancock, Jr., Doerr, Boomer and Schnepp, JJ.