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EAST COAST NOVELTY CO. v. CITY OF NEW YORK

January 25, 1994

EAST COAST NOVELTY COMPANY, INC., Plaintiff,
v.
THE CITY OF NEW YORK, POLICE INSPECTOR FRANK BIEHLER and POLICE DETECTIVE MITCHELL KOLPAN, a/k/a ERIC VITALE, Defendant.



The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Plaintiff East Coast Novelty Company ("East Coast") has moved in limine for an order precluding Defendants City of New York (the "City"), Frank Biehler ("Inspector Biehler"), and Mitchell Kolpan ("Detective Kolpan") (collectively the "Defendants") from introducing at trial any evidence, testimony or reference primarily concerning: (1) the prior arrests or convictions of East Coast's principals; (2) references to "organized crime," "La Cosa Nostra," or "the Mafia"; and (3) the invocation of the Fifth Amendment privileges during the respective depositions of Louis and Benedetto Cinquegrana. In turn, the Defendants have moved in limine for an order: (1) dismissing the Plaintiff's sixth cause of action concerning conspiracy under state or federal law; and (2) limiting the availability and calculation of Plaintiff's alleged damages.

 For the reasons set forth below, the motions of East Coast and the Defendants are granted in part and denied in part.

 Parties

 East Coast is a New Jersey corporation authorized to do business in the State of New York. Its principal office is in the City of Newburgh, New York, and its primary business is importing Class "C" fireworks.

 The City is a domestic municipal corporation with full governmental authority, existing under the laws of the State of New York.

 Inspector Biehler is an Inspector with the New York City Police Department (the "Department"), who was the ranking officer in charge of the Manhattan South Public Morals Division. Detective Kolpan was an undercover officer with the Department.

 Prior Proceedings and Facts

 The relevant proceedings and facts are fully set forth in the prior opinions of this Court, familiarity with which is presumed. See East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1002-03 (S.D.N.Y. 1992) ("East Coast I"); East Coast Novelty Co. v. City of New York, 809 F. Supp. 285, 287-88 (S.D.N.Y. 1992) ("East Coast II"). The underlying events at issue concern the Department's seizure of the Plaintiff's entire inventory of fireworks in Newburgh, New York. East Coast alleges that it is a properly licensed importer of fireworks that has complied with the pertinent governmental authorities.

 The present motions were argued on January 18, 1994, final papers were submitted to the Court as of January 24, 1994 and the motions were considered fully submitted on that date. The trial of this action is presently scheduled to commence on February 4, 1994.

 Discussion

 I. Admission of Prior Arrests, Convictions, and Alleged "Organized Crime" Connections of the Principals Will Be Determined At Trial

 In 1981 and 1982, Louis and Benedetto Cinquegrana, alleged by the Defendants to be the principals of East Coast, were convicted of conspiracy to manufacture and distribute explosives (M-80's) in violation of federal law. *fn1" Since that time neither has been the subject of criminal proceedings.

 The Defendants seek to admit evidence of the Cinquegranas' prior convictions. *fn2" The Defendants contend that the prior convictions of Benedetto and Louis Cinquegrana reveal the principals' intent, knowledge, motive and state of mind with respect to East Coast's damage claims. For example, Defendants claim that admission of these prior convictions will shed light on whether Louis Cinquegrana had the requisite intent to make an illegal sale to Kolpan, East Coast II, 809 F. Supp. at 289, and whether Benedetto Cinquegrana had a criminal intent in introducing Louis to Detective Kolpan.

 A. The Admissibility of Prior Convictions Under Rule 404(b) Will Be Determined At Trial

 Rule 404(b) of the Federal Rules of Evidence, entitled "Other Crimes Wrongs or Acts," provides:

 
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

 Under Rule 404(b) four criteria for determining the admissibility of other acts, or prior convictions, must be considered, including: (1) the proper purpose; (2) the relevance; (3) the probative-prejudicial balance; and (4) the ability to limit damaging evidence as provided by Rule 105. See Huddleston v. United States, 485 U.S. 681, 689-92, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988). The Second Circuit generally allows into evidence relevant facts regarding a defendant's prior crimes except to the extent such prior crimes would tend to prove only criminal propensity. United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989); United States v. Brennan, 798 F.2d 581, 589-90 (2d Cir. 1986), cert. denied, 490 U.S. 1022, 104 L. Ed. 2d 187, 109 S. Ct. 1750 (1989).

 It is difficult for a court to weigh the probative-prejudicial balance before the commencement of a trial. See, e.g., United States v. Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978) ("we have emphasized that admission of such strongly prejudicial evidence should normally await the conclusion of the defendant's case, since the court will then be in the best position to balance the probative worth of, and the government's need for, such testimony against the prejudice to the defendant."). Some courts, in criminal cases, have determined that such decisions should be made at the close of the defendant's argument before raising prior convictions as evidence of intent, because intent may in fact be ...


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