ALBANY – The State Court of Appeals on Tuesday adopted a “flexible” standard on the admissibility of hearsay evidence in sex offender civil confinement matters, holding that the proof can be used to explain an expert’s opinion if it is deemed reliable and the probative value outweighs the prejudicial impact.

Judge Jenny Rivera (See Profile), writing the main opinion, said in Matter of State of New York v. Floyd Y., 182, that hearsay proof was improperly admitted in this particular case out of Oswego County.

But she and four colleagues refused to bar experts at sex offender proceedings from introducing inadmissible hearsay, as courts in Massachusetts, Virginia and Kansas have done. Rather, they embraced the more elastic approach of Iowa, Nebraska, Minnesota and Missouri.

“An inflexible rule excluding all basis hearsay would undermine the truth-seeking function of [a civil confinement proceeding under Article 10 of the Mental Hygiene Law] jury by keeping hidden the foundation for an expert’s opinion,” Rivera wrote in an opinion joined by judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Eugene Pigott (See Profile) and Sheila Abdus-Salaam (See Profile).

The ruling sets up special and unique hearsay rules for civil confinement hearings and, while allowing what would otherwise be inadmissible, sets standards and restrictions on its use.

Judge Robert Smith (See Profile) and Chief Judge Jonathan Lippman (See Profile) agreed with the result in this case, but called for “a strict, not a flexible, approach” and would have afforded respondents in civil confinement proceedings the same rights of confrontation as defendants in criminal cases.

“Proceedings under article 10 may be civil, but they bear a significant resemblance to criminal cases,” Smith wrote. “Because of the quasi-criminal quality of article 10 proceedings, I find it unacceptable to subject the confrontation rights of respondents in such proceedings to [a] balancing test.”

The Oswego County case centered on a defendant, Floyd Y., who was convicted in 2001 of molesting his two stepchildren.

After serving his sentence, Floyd was civilly confined under procedures later ruled illegal.

But after the Legislature enacted the Sex Offender Management and Treatment Act in 2007, the state invoked the new law to civilly confine Floyd in a secure mental institution on the grounds that he is a “dangerous sex offender” in need of treatment. The 2007 law permits the state to indefinitely confine sex offenders, but affords the offender a jury trial where the government must establish by clear and convincing evidence that the individual suffers from a “mental abnormality” that predisposes him or her to commit sex crimes.

At the hearing, the psychologist Catherine Mortiere, who had treated Floyd, testified that her patient is a pedophile with an antisocial personality disorder, and that he is at high risk to reoffend.

Acting Manhattan Supreme Court Justice Patricia Nunez (See Profile) allowed Mortiere to testify that the basis for her diagnosis was, in part, based on hearsay allegations that Floyd had abused nine individuals. Mortiere said the fact that Floyd continued to deny many of the incidents, most of which did not result in charges, was indicative of a mental abnormality.

Nunez admonished the jury that it could use Mortiere’s hearsay testimony only to evaluate the basis for her diagnosis. The jury determined that Floyd was a dangerous sex offender in need of treatment and he was involuntarily committed.

On appeal, the Appellate Division, First Department, generally upheld Nunez. But the Court of Appeals reversed and ordered a new trial.

The Court of Appeals found that Nunez wrongly allowed the jury to consider hearsay evidence involving two of the nine alleged incidents. It said the trial court should not have admitted unsubstantiated allegations that Floyd had molested the 8-year-old daughter of a former girlfriend, or charges involving the 15-year-old daughter of his ex wife. Floyd had been charged in connection with the 15-year-old’s allegations, but the charges were dropped when he promised to stay away from the girl.

“We conclude that the trial court improperly permitted the State’s experts to introduce certain unreliable hearsay, as well as some hearsay with a patina of reliability that nevertheless was more prejudicial than probative as a matter of law,” Rivera wrote. “These errors denied Floyd Y. due process.”

All seven judges agreed with the conclusion, but split 5-2 on the broader issue of the admissibility of hearsay evidence in civil confinement hearings.

Rivera argued that hearsay evidence, as long as it is reliable and probative, is crucial to the jury’s understanding of the expert’s methodology and practice. She stressed that Article 10 proceedings are unquestionably civil in nature and geared toward treatment rather than punishment, and therefore hearsay evidence that would never be allowed in a criminal prosecution can be used to a limited extent.

Smith, in a concur-with-result opinion joined by Lippman, said the majority opinion “seems to create a special rule for cases brought against detained sex offenders,” and argued that individuals who are at risk of losing their liberty are entitled to greater protections.

“No one will say with a straight face that article 10 proceedings are brought, to a significant degree, for the benefit of the sex offender, or that a sex offender who is spared from article 10 confinement has missed an opportunity to improve his life,” Smith wrote. “The primary purpose of article 10 is to prevent sex offenders from committing more sex crimes.”

Smith said that in the Floyd case the state could have called the victims to testify, obviously subjecting them to cross examination, and would have avoided the hearsay problem. The state is often reluctant to summon sex abuse victims in confinement hearings unless absolutely necessary, largely to protect their privacy and because the victims are frequently children.

“I understand that no one wants to subject the victims to inconvenience or unpleasantness,” Smith wrote. “But that is what usually happens when the State wants to incarcerate someone.”

Floyd was represented by Deborah Mantell of Mental Hygiene Legal Services in Manhattan.

“I agree more with the concurrence, but the majority decision is a huge step forward in the application of the hearsay rule in these cases,” Mantell said. “The problem is, there has not been much of a standard applied at all by the trial courts and the appellate divisions. The liberty interest at stake is huge and the failure to apply even the most basic rules of evidence has been broad, almost universal. Even though this decision didn’t go as far as we would have liked, this still represents significant progress.”

Assistant Solicitor General Matthew Grieco argued for the state. The Attorney General’s office declined comment.