
    In the Matter of David B., Appellant. Commissioner of the New York State Office of Mental Health et al., Respondents.
    [718 NYS2d 640]
   In a proceeding pursuant to CPL 330.20 (9) for a subsequent retention order, David B. appeals, by permission, from an order of the Supreme Court, Kings County (Cutrona, J.), dated May 17, 1999, which granted the petition and authorized the continued custody of the appellant by the Commissioner of the New York State Office of Mental Health for a period of up to two years from the expiration of the last-issued subsequent retention order.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the appellant’s contentions, the Supreme Court properly granted the petition and issued a subsequent retention order. The evidence established that the appellant suffered from a “mental illness” as defined by CPL 330.20 (1) (c) (i), which necessitates his continued care, treatment, and rehabilitation in a nonsecure facility (see, Mental Hygiene Law § 1.03 [20]; Matter of Richard S., 278 AD2d 496 [decided herewith]). Under the circumstances of this case, continued retention in a nonsecure facility is the appropriate dispositional alternative (see, People ex rel. Schreiner v Tekben, 160 Misc 2d 724, affd 219 AD2d 609; Mental Hygiene Legal Servs. v Wack, 148 AD2d 341, affd 75 NY2d 751). The case of Foucha v Louisiana (504 US 71) does not compel a contrary result as the petitioner therein was neither mentally ill nor dangerous, while the petitioner herein continues to suffer from a mental illness (see, Matter of Mental Hygiene Legal Servs. ex rel. James U. v Rhodes, 195 AD2d 160). Sullivan, J. P., S. Miller, Altman and Friedmann, JJ., concur.  