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The attorney general can use evidence of a 30-year-old dismissed rape charge to bolster its case for the civil confinement of a convicted kidnapper accused of sex crimes, a judge in Dutchess County has ruled.

Acting Supreme Court Justice Peter Forman (See Profile), in what is apparently the first application of a recent Court of Appeals ruling, said evidence of a 1984 occurrence is “sufficiently reliable and probative to permit expert testimony about that incident.”

Forman said that even though the first-degree rape charge against Dean Germano was reduced to sexual misconduct and subsequently dismissed and sealed, evidence related to the incident is admissible under a November decision by the Court of Appeals in Matter of State of New York v. Floyd Y., 22 NY3d 95 (2013).

In Floyd, the court adopted a “flexible” standard for the admissibility of hearsay evidence in sex offender civil confinement proceedings. It said the proof can be used to explain an expert’s opinion on whether an offender is in need of civil commitment (NYLJ, Nov. 20, 2013).

Germano served the entire 18 years of a nine-to-18-year sentence after pleading guilty to second-degree kidnapping. He was accused of abducting a woman for several hours and attempting to rape her before she escaped.

He was released last fall to the mental health system. Attorney General Eric Schneiderman’s office is seeking to confine Germano under Article 10 of the Mental Hygiene Law, which permits the state to institutionalize individuals who have a “mental abnormality” that predisposes them to commit sex crimes.

The attorney general sought to introduce evidence of an incident in 1981 when Germano, then 17, was charged with first-degree sexual abuse, and an unrelated matter from 1984 when he was accused of unlawfully imprisoning and forcibly raping a 14-year-old girl. Forman permitted testimony about the 1984 incident, but not the 1981 matter. The jury considering civil confinement, however, hung.

Four days later, the Court of Appeals handed down Floyd, which held that hearsay evidence that would never be allowed in a criminal prosecution may be used in a limited way in Article 10 proceedings, primarily to explain an expert’s conclusions and methodology.

It found that hearsay evidence is admissible in a civil confinement case when it is reliable and when its probative value substantially outweighs its prejudicial effect. But in Floyd, the court said the hearsay evidence was more prejudicial than probative and was wrongly admitted.

Germano, whose civil confinement retrial is scheduled for March 17, asked Forman to revisit his pre-Floyd decision. The judge suggested that if anything, Floyd confirmed his prior finding and again held that evidence of the 1984 rape will be admissible (See Decision on Motion to Renew).

Forman said evidence concerning the incident is sufficiently reliable, even though the victim was reluctant to testify and did not submit to a rape kit exam.

“[The victim's] desire to avoid testifying at [Germano's] criminal trial does not suggest that he did not commit the crime,” Forman wrote in State v. Germano, 7293/12. “Rather, as she explained in her notorized written statement, [the victim] and her family made that decision because they were afraid that testifying would cause her to suffer additional trauma.”

Forman said “allowing [the attorney general's] expert to testify about the 1984 incident will assist the jury in its essential article 10 task of evaluating the expert’s opinion by permitting intelligent consideration of the underlying basis for the expert’s opinion.”

Assistant Attorney General Robert Conflitti argued for the state. Germano is represented by Eugenia Brennan Heslin of Mental Hygiene Legal Services.