NEW YORK, NOV. 27 -- Lawyer Paul Rephan, representing New York City, told an appellate court that "it would be a tragedy" if judges released Joyce Brown, who is fighting a new city policy of hospitalizing homeless people deemed mentally ill.

Rephan battled the New York Civil Liberties Union over Brown's fate in the Appellate Division of the state Supreme Court.

A decision is pending in the case of the woman who had been living over a hot-air vent in Manhattan's Upper East Side until the city hospitalized her on Oct. 28.

Earlier this month, after several days of hearings, state Supreme Court Justice Robert Lippmann ordered Brown released from a special 28-bed unit at Bellevue Hospital.

The city appealed the decision, and Brown, the first person picked up under the program, has remained at Bellevue.

Until she was hospitalized, Brown lived over a vent on Second Avenue near 65th Street, where, city psychiatrists testified, she defecated and at least once ran into the traffic.

Rephan told the appellate court that Lippmann failed to look at the total picture. He said Lippmann dismissed Brown's psychiatric history, including a hospitalization several years ago.

"It would be a tragedy if she is sent back to the street," Rephan told the court.

Lawyers for Brown said earlier this week that she has agreed to live in a group home on the West Side if released from the hospital. Robert Levy, the NYCLU attorney representing Brown, said his client is not dangerous to herself or anyone else.

Both sides agreed, however, that Brown could undergo tests for lupus, a disease that attacks the immune system, because of the prevalence of the disease in her family's medical history.

Levy said the tests should be conducted at a facility other than Bellevue. "We doubt their objectivity," he said.