(dissenting). At respondent’s Mental Hygiene Law article 10 jury trial, Supreme Court permitted the State’s experts to introduce hearsay regarding a 1968 indictment on rape and robbery charges. Those charges did not result in a lawful conviction. Although respondent pleaded guilty in satisfaction of the charges, his plea was taken in violation of his constitutional rights, and the resulting conviction was vacated and the criminal records sealed pursuant to CPL 160.50. Admission of hearsay related to those charges violated respondent’s due process rights because the charges were not supported by independent indicia of reliability. Further, the evidence was more prejudicial than probative of respondent’s alleged mental abnormality given the number of charges and the nature of the crimes involved. Moreover, I join Judge Smith’s dissent and share the concerns expressed therein. I would reverse the order of the Appellate Division.
In Matter of State of New York v Floyd Y. (22 NY3d 95 [2013]), we determined that article 10 hearings are subject to procedural due process. We engaged in the due process balancing test required by Mathews v Eldridge (424 US 319, 335 [1976]), and established a framework to govern the introduction of hearsay that formed the basis of an expert’s opinion in an article 10 *350trial. We concluded that without the opportunity to consider such hearsay, an article 10 jury cannot determine whether an expert’s opinion is sound and whether the State has met its burden to establish that the respondent suffers from a mental abnormality (see Mental Hygiene Law § 10.07 [c], [d]). “Fact-finders in article 10 trials cannot comprehend or evaluate the testimony of an expert without knowing how and on what basis the expert formed an opinion” (Floyd Y., 22 NY3d at 108).
However, due process requires that an article 10 court scrutinize basis hearsay before allowing its admission. In considering the proper expanse of due process mandates we recognized that a respondent in an article 10 proceeding faced with potential indefinite confinement has “a liberty interest of the highest order” (Floyd Y., 22 NY3d at 105, citing Kansas v Hendricks, 521 US 346, 356 [1997], Vitek v Jones, 445 US 480, 494-495 [1980], and Humphrey v Cady, 405 US 504, 509 [1972]). That interest, along with the high risk of juror reliance on unreliable and prejudicial evidence introduced by experts, outweighed the State’s significant interest in effectuating the purposes of article 10. We therefore required that basis evidence satisfy a two-part test for reliability and probative value (id. at 106).
This test was designed to ensure sufficient protection for respondent’s rights and to “provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it” (id. at 109). The test reflected our recognition that evidence at article 10 proceedings involves horrible facts and crimes, and “[j]uries may be predisposed to doubt the convicted sex offender and believe the State’s expert” (id. at 106). In short, basis hearsay is inadmissible unless it meets the requirements of Floyd Y. The improper admission of such evidence violates a respondent’s due process rights and may constitute reversible error (see id. at 110; People v Crimmins, 36 NY2d 230, 237 [1975]).
Here, the court permitted the State’s experts to testify about the 1968 charges and their underlying facts, finding the reliability of this evidence supported by the criminal complaint, arrest records, grand jury indictment, respondent’s guilty plea, and presentence reports.1 The majority agrees, holding, *351incorrectly in my opinion, that the information found in these documents, together with the plea, establishes reliability under Floyd Y. For although the majority correctly concludes that respondent’s vacated conviction on the 1968 charges does not establish the reliability of the underlying allegations (majority op at 344), it erroneously finds that those charges were supported by independent indicia of reliability found in the documentary evidence, the similarities among the 1968 incidents, the grand jury’s indictment, respondent’s guilty plea, and the fact that he was never acquitted of the crimes (majority op at 344-345).
The information relied on by the majority does not independently establish the reliability of the 1968 charges because the facts in the criminal record assume what they are intended to prove: the truth and accuracy of the allegations. A showing of independent reliability requires more than information that rests on the foundation of the unproven allegations themselves. The documentary evidence relied on by the majority illustrates why this information cannot meet the demands of due process. This evidence consists of the original allegations and records related to the police investigation and grand jury indictment. None of this evidence provides a separate basis to assess the truth and accuracy of the complainants’ charges because these documents were based on those very same allegations. Yet, those allegations have not survived the adjudicative process. Indeed, the majority concedes that these types of documents are insufficient to meet the test of reliability,2 and relies on what it calls “ [circumstances specific to the 1968 charges” in an attempt to shore up its ultimate conclusion that the charges are admissible (majority op at 345). The majority’s reliance is to little avail, because those circumstances no more establish independent reliability for the 1968 charges than do the allegations themselves.
The majority finds reliability based on the number of complaints and the similarity of the alleged crimes. Yet, these factual details do not support the reliability of the allegations. *352Whether there was one rape or several, whether the rapes involved robberies, and whether they occurred near the same area within a short span of time does not answer the question whether it can reliably be said that respondent committed the criminal acts. These circumstances may reveal a pattern of behavior, but Floyd Y. held that uncharged accusations that appeared to fit a pattern of conduct were nevertheless inadmissable when they were unsupported by extrinsic evidence or admissions of guilt. In other words, a pattern of conduct does not provide independent indicia of reliability (see Floyd Y., 22 NY3d at 110 [rejecting the reliability of uncharged accusations made by a crime victim’s twin sister despite the evident similarity between those allegations and the proven crime]).
The grand jury’s finding of reasonable cause is also insufficient to satisfy the reliability requirement. Grand jury proceedings are not the equivalent of a trial, wherein evidence is subjected to the rules of evidence and criminal procedure and a defendant has an opportunity to confront the accuser. Due to the difference between the rules of evidence in grand juries and trial courts, we have previously found grand jury testimony to be unreliable. Grand jury testimony is “troubling because ‘although given under oath, [it] is not subjected to the vigorous truth testing of cross-examination’ ” (People v Geraci, 85 NY2d 359, 368 [1995], citing United States v Thevis, 665 F2d 616, 629 [5th Cir 1982]). As we noted, “grand jury testimony is often obtained through grants of immunity, leading questions and reduced attention to the rules of evidence — conditions which tend to impair its reliability” (Geraci, 85 NY2d at 368, citing United States v Flores, 985 F2d 770, 776 n 14 [5th Cir 1993], United States v Fernandez, 892 F2d 976, 981 [11th Cir 1989], and United States v Gonzalez, 559 F2d 1271, 1273 [5th Cir 1977]). Respondent’s significant liberty interest should not be placed in jeopardy by grand jury findings based on testimony which might wither under defense counsel’s questioning and trial rules of evidence.
Both Supreme Court and the majority conclude that respondent’s guilty plea provides further proof of the reliability of the 1968 charges. The majority minimizes the significance of the vacatur of the conviction and the Second Circuit’s finding that respondent was incompetent at the time of the plea because he “was never acquitted of the 1968 charges” (majority op at 344). In essence, the majority treats the lack of an acquittal as the functional equivalent of proof of guilt. Of course these are not *353the same. As a legal nullity, respondent’s plea and conviction neither prove nor disprove anything, and they cannot support a conclusion that the criminal charges were true. The criminal proceedings concluded when the respondent admitted his guilt, but, as the federal courts recognized, his plea was constitutionally infirm. Respondent was incompetent at the time of the plea, which negates the reliability of his admission of guilt. The inescapable conclusion is that the lack of acquittal is irrelevant, and the unconstitutional result in the 1968 proceedings can have no bearing on the present case.
The admission of hearsay evidence regarding the 1968 charges prejudices the respondent and was not harmless error. Without the 1968 charges, and the uncharged 1978 allegation that the majority finds inadmissible, the jury would have been left to consider only two rape convictions, an alleged assault on a female correction officer, and testimony regarding respondent’s lack of participation in sex offender treatment. On this record, it is plain that testimony about the four unreliable allegations of rape significantly influenced the jury, and “[t]here is a reasonable possibility the jury could have reached another verdict had it not heard” the inadmissible hearsay basis evidence (Floyd, Y., 22 NY3d at 110; Crimmins, 36 NY2d at 237). Therefore, the Appellate Division should be reversed.
Today’s decision ignores the central concern articulated in Floyd Y., namely that admission of hearsay basis evidence poses a substantial risk to an article 10 respondent’s liberty interest. In order to overcome this risk, basis evidence must be supported by independent indicia of reliability, and must have sufficient probative value to outweigh any prejudice to the respondent. By approving presentation to the jury of the 1968 charges and unreliable documentary evidence, the majority opens the door to the admission, under the guise of permissible expert basis evidence, of the type of unreliable and prejudicial hearsay we disapproved in Floyd Y. This creates the risk of future article 10 jury determinations influenced more by the fact that the expert testifies to the evidence than by the evidence itself. Therefore, I dissent.
Smith, J.(dissenting). I dissented in Matter of State of New York v Floyd Y. (22 NY3d 95 [2013]). Being now constrained to follow Floyd Y., I join Judge Rivera’s dissent in this case.
I add a few words to express my disappointment that John S. has not argued that a civil commitment under Mental Hygiene *354Law article 10 may not be based solely on a diagnosis of antisocial personality disorder. That seems to me a strong argument, for reasons I have previously explained (see Matter of State of New York v Shannon S., 20 NY3d 99, 110 [2012, Smith, J., dissenting] [“If a diagnosis of ASPD could support civil commitment, the State could have locked up half of those now in prison without bothering with the complexities of the criminal law”]).
Judges Graffeo, Read and Pigott concur with Judge AbdusSalaam; Judge Rivera dissents in an opinion in which Chief Judge Lippman and Judge Smith concur; Judge Smith in a separate dissenting opinion in which Chief Judge Lippman and Judge Rivera concur.Order affirmed, without costs.
. Notably, Supreme Court did not understand that basis testimony is not admissible for the truth, and the expert cannot testify as to the respondent’s guilt. During a colloquy with counsel, Supreme Court observed that “Dr. Kirschner, essentially, will say that he thinks [respondent] raped three women in *3511968, and that is part of his opinion. And he is going to back that up by the fact that, you know, a Grand Jury found reasonable cause to believe he committed these acts.” Testifying to the truth of hearsay and backing up that testimony with facts is precisely what experts are not permitted to do in article 10 trials (see Floyd Y., 22 NY3d at 107).
. “Records related to a respondent’s indictment for a sex offense will not necessarily provide a basis of reliability for hearsay in every article 10 case” (majority op at 345).