MATTER OF RICHARD S

ORDERED that the appeal from the order dated December 15, 1999, is dismissed, without costs or disbursements, as that order was superseded by the second retention order dated December 29, 1999; and it is further,

ORDERED that the order of conditions dated December 29, 1999, is modified, on the facts, by deleting the provision thereof requiring that the respondent submit to a penile plethysmograph if so requested by his treatment team; as so modified, the order of conditions is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,

ORDERED that the second retention order and the transfer order, both dated December 29, 1999, are affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The petitioner failed to demonstrate by a preponderance of the evidence that the mental condition of Richard S. causes him to "currently [constitute] a physical danger to himself or others" (CPL 330.20[c][ii]; see, People v. Escobar, 61 N.Y.2d 431, 440). Therefore, the continued confinement of Richard S. in a secure psychiatric facility is unwarranted (see, Matter of Francis S., 87 N.Y.2d 554; Matter of George L., 85 N.Y.2d 295). Contrary to the contention of Richard S., however, a preponderance of the evidence demonstrates that he still suffers from a "mental illness" (CPL 330.20[c][i]) which necessitates his continued "care, treatment and rehabilitation" in a nonsecure facility (Mental Hygiene Law § 1.03).

The petitioner presently agrees that Richard S. should not be required to submit to a penile plethysmograph. The order of conditions is modified accordingly.