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FLETCHER v. CITY OF NEW YORK

June 22, 1999

RUDY FLETCHER, PLAINTIFF,
v.
THE CITY OF NEW YORK, A MUNICIPAL ENTITY, THE NEW YORK CITY HOUSING AUTHORITY, A MUNICIPAL CORPORATION, POLICE OFFICER JEFFREY COUSIN, SHIELD # 3709, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER, POLICE OFFICERS WEST PAGE 329 "JOHN" BALESTRIERI AND "JOHN" RUIZ, FIRST NAMES AND SHIELD NUMBERS UNKNOWN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS POLICE OFFICERS, AND POLICE OFFICERS JOHN DOES, WHOSE NAMES AND SHIELD NUMBERS ARE UNKNOWN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Berman, District Judge.

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Rudy Fletcher ("Plaintiff' or "Fletcher") has filed a motion in limine for an order precluding from trial introduction of evidence of his prior criminal convictions and prior drug use; and for an order admitting into evidence the entire personnel records of the individual police officer defendants; as well as the 1994 so-called Mollen Commission Report and police training manual. Defendants have cross-moved, in limine, seeking the admission of Plaintiffs prior criminal convictions (and use of aliases) and drug use; and precluding use at trial of the personnel records of the individual police officer defendants and the Mollen Commission Report.

For the reasons set forth below, Plaintiffs motion is granted in part and denied in part; and Defendants' motion is granted in part and denied in part.*fn1

II. DISCUSSION

A. Criminal Convictions and Use of Aliases

Defendants' seek to introduce into evidence the following criminal convictions of Plaintiff in order to impeach his credibility: (i) August 10, 1990 conviction for invalid use of a credit card with fraudulent intent, a Class-A misdemeanor under New York Penal Law § 165.15(1); (ii) March 26, 1991 conviction for criminal possession of a controlled substance, a Class-A misdemeanor under New York Penal Law § 220.03; (iii) February 24, 1992 conviction for intent/fraudulent obtaining transportation without paying, a Class-A misdemeanor under New York Penal Law § 165.15(3); (iv) April 29, 1993 guilty plea to intent/fraudulent obtaining transportation without paying, a Class-A misdemeanor under New York Penal Law § 165.15(3); and (v) June 29, 1993 guilty plea to

attempted robbery in the second degree, a Class-D felony under New York Penal Law § 110/160.0. (Joint Statement, pp. 2-3). Defendants also seek to introduce into evidence eighteen (18) aliases used by Plaintiff; Plaintiff used these aliases in connection with the commission of the (five) crimes listed above, as well as other (criminal) activities that are too remote in time to be admitted into evidence.*fn2

1. Crimes Involving Dishonesty or False Statement

Relying on Federal Rules of Evidence ("Fed.R.Evid.") 403 and 609, Plaintiff seeks to preclude from trial evidence of his prior criminal convictions asserting they are "irrelevant" and that their probative value is "substantially outweighed by the danger of unfair prejudice to the witness." (P1.Br., p. 3). Fed.R.Evid. 609(a)(2) provides, however, that "[for the purposes of attacking the credibility of a witness, ... (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment." (emphasis added). Fed.R.Evid. 609(a)(2) mandates the admission of evidence of all prior convictions involving dishonesty or false statement, "whether the conviction was a felony or misdemeanor." 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 609.03[1] (2nd ed. 1998). "[T]he courts have now clearly held that the trial court lacks discretion pursuant to Rule 403 in this instance, and that a cross-examiner has an absolute right to introduce a conviction involving dishonesty or false statement for impeachment purposes." Id.

Whether a crime involved dishonesty or false statement is a factual determination for the Court. "In evaluating a state conviction, the federal court must look to the elements of the crime that the prosecutor had to prove, not the details of the particular crime committed, to determine whether the conviction involved dishonesty." Id. The proponent of the evidence bears the burden of demonstrating that the conviction was for a crime that involved dishonesty or false statement. Id. See also United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977), cert. denied; 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977) ("[i]f the title of an offense leaves room for doubt, a prosecutor desiring to take advantage of automatic admission of a conviction ... must demonstrate to the court "that a particular prior conviction rested on facts warranting the dishonesty or false statement description'"). Here, the "titles" of certain of Plaintiffs convictions suggest crimes of dishonesty: Plaintiffs August 10, 1990 conviction for invalid use of a credit card; his February 24, 1992 conviction for intent/fraudulent obtaining transportation without paying; and his April 29, 1993 guilty plea to intent/fraudulent obtaining transportation without paying. The Court seeks additional information concerning these crimes, particularly as to any dishonesty or false statement involved. Therefore, at the forthcoming pre-trial conference on June 30, 1999 (at 10:30 a.m.), the Court will hold a further hearing concerning these criminal convictions and will make a determination as to their admissibility at that time. Cf United States v. Rivers, 693 F.2d 52, 54 (8th Cir. 1982) (held that trial court was justified in delaying it's ruling because "[t]he trial court at the time of the motion in limine did not have the facts necessary to determine whether the prior convictions should be admitted for purposes of impeachment under Rule 609(a)"). Counsel

should be prepared to discuss these three convictions in further detail, including the elements of the crimes that the prosecutors had to prove.

2. Crimes Not Involving Dishonesty or False Statement

Plaintiffs March 26, 1991 conviction for criminal possession of a controlled substance is a Class-A misdemeanor under New York Penal Law § 220.03.*fn3 New York Penal Law § 70.15 provides that the sentence of imprisonment for a Class-A misdemeanor "shall not exceed one year . . ." Therefore, as this crime did not involve dishonesty or fraud and was not "punishable by death or imprisonment in excess of one year, "it is inadmissible under Fed. R.Evid. 609(a). See, e.g., United States v. Estes, 994 F.2d 147, 149 (5th Cir. 1993) (state misdemeanor conviction punishable by imprisonment for "no more than one year" is inadmissable under Fed.R.Evid. 609(a)); United States v. Hayward; 6 F.3d 1241, 1253 (7th Cir. 1993), cert. denied; 511 U.S. ...


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