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November 15, 1983


The opinion of the court was delivered by: BARTELS

BARTELS, District Judge

On March 23, l977, the plaintiff, Salvatore DiBella, an operator of a mobile catering business, was arrested, without a warrant, by the defendant detectives of the County of Suffolk, Francis J. Leonard, Frank Leake, Leonard Forte, and Gerald Giammatteo, for the misdeameanors of promotion of gambling and possession of gambling records. Because of delay in prosecution, the records in the case were inadvertently destroyed and in March 1979, two years later, the charges were dismissed. Thereupon DiBella brought an action under 42 U.S.C. § 1983, seeking ordinary and punitive damages, charging these four detectives with false arrest and malicious prosecution in that there was no probable cause for the arrest or the filing of the charge.

 Plaintiff claims that he was not engaged in illegal activities and that he simply set up a "triple pool" with 2 to 10 of his regular customers with $2 bets, which he recorded and thereafter deposited the same in an Off Track Betting parlor, for which he received OTB tickets. It is his claim that his action was in all respects legal. Defendants contend that from their observation for three days of plaintiff's activities while he went around his route, his conduct was such that they had reasonable cause to believe that he in fact was engaging in bookmaking, in violation of the penal law, and keeping records of the same. The ultimate and crucial issue in the case is not whether plaintiff was engaged in illegal bookmaking but whether these officers had reasonable cause to believe that plaintiff was so engaged. Section 140.10 of the New York Criminal Procedure Law, dealing with arrests without a warrant, provides that

 a police officer may arrest a person for: (a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence. . . .

 See Benjamin v. United States, 554 F. Supp. 82, 85 (E.D.N.Y. 1982); Broughton v. State, 37 N.Y.2d 451, 456-58, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom., Schanbarger v. Kellogg, 423 U.S. 929, 46 L. Ed. 2d 257, 96 S. Ct. 277 (1975); Restatement (Second) of Torts §§ 35, 121 (1965).

 At the trial the defendants sought to introduce the testimony of David Freundlich, an Assistant District Attorney for Suffolk County for ten years and Chief of the Rackets Bureau for that County, as an expert on what constitutes probable cause for arrest for bookmaking and, secondarily, for illegal gambling. Defendants argue that, based upon Freundlich's experience with gambling, he could testify whether the defendants had reasonable cause to believe that DiBella had committed an offense, such as engaging in illegal gambling prior to his arrest. Plaintiff has challenged the admissibility of such expert testimony as going to the ultimate issue and not being otherwise helpful to the jury's understanding of the evidence.

 The offer of Freundlich's testimony as an expert presents several questions including the primary issue as to whether his testimony is permissible under Rule 704 of the Federal Rules of Evidence, even though it goes to the "ultimate issue." Rule 704 reads:

 Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

 In its Note to Rule 704, the Advisory Committee explains the parameters of Rule 704 as follows:

 The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria.

 Rule 701 allows lay witness opinion testimony only where it is both rationally based and helpful to a clear understanding of the witness' testimony. Rule 702 allows experts to give opinion testimony in instances where some sort of specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue. . . ."

 In this circuit it has been held that expert witnesses could not be called to instruct the jury as to applicable principles of law. In Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505 (2d Cir.), cert. denied, 434 U.S. 861, 54 L. Ed. 2d 134, 98 S. Ct. 188 (1977), involving a contract for the registration of securities, the court prohibited the testimony of an attorney as an expert as to "the legal standards which he believed to be derived from the contract and which should have governed Diners' conduct." 550 F.2d at 509. Judge Gurfein pointed out:

 The admission of such testimony would give the appearance that the court was shifting to witnesses the responsibility to decide the case. McCormick on Evidence, § 12, at 27. It is for the jury to evaluate the facts in the light of the applicable rules of law, and it is therefore ...

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