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Phillip Jean-Laurent v. P.O. David Hennessy; P.O. John Doe;Sgt. Paul

October 24, 2011

PHILLIP JEAN-LAURENT, PLAINTIFF,
v.
P.O. DAVID HENNESSY; P.O. JOHN DOE;SGT. PAUL O'DONNELL, DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Court Judge:

MEMORANDUM & ORDER

Pro se plaintiff Phillip Jean-Laurent brought this action against New York City Police Department Officers David Hennessy and "John Doe," and Sergeant Paul O'Donnell, alleging violations of his federal rights pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, and New York State tort law in connection with his arrest on June 11, 2002. Pending before the court are the parties' motions in limine to preclude certain evidence at trial pursuant to Federal Rules of Evidence 401, 402, 403, 404, 602, 608, 609, 801, 802 and 902. For the following reasons, the court grants in part and denies in part the parties' motions.

BACKGROUND

I.Procedural History

Plaintiff commenced this action pro se in the Southern District of New York on February 2, 2005. (ECF No. 4--3, Initial Complaint ("Init. Compl.").) The case was transferred to the Eastern District of New York on February 24, 2005 because the underlying events occurred in this judicial district. (See ECF No. 4, Transfer Order.) Plaintiff filed an Amended Complaint on December 5, 2005. (ECF No. 22, Amended Complaint ("Am.

Compl.").) On August 1, 2008, Judge Bianco denied in part and granted in part defendants' motion for summary judgment. (ECF No. 79, Memorandum and Order dated 8/1/2008.) The claims that survived defendants' motion for summary judgment were those alleging (1) a federal claim for excessive force; (2) a federal claim for unreasonable search and seizure as to plaintiff's alleged public strip search; and (3) state law claims of intentional infliction of emotional distress, conspiracy and "deprivation of money," or conversion, under New York law. (Id.)

Discovery proceeded before Judge Bloom, and was closed on December 17, 2009, except with respect to identification of plaintiff's witnesses. (ECF No. 127, Order dated 12/17/2009.) In an abundance of caution, Judge Bloom granted one last opportunity, until October 10, 2010, for plaintiff to properly identify all witnesses on his witness list. (Id.) On January 31, 2011, the parties submitted their Second Revised Joint Pre-Trial Order, which included several stipulations of fact. (ECF No. 144 ("Sec. Rev. JPTO") at 5.)

On August 11, 2011, the parties filed the motions in limine presently before the court. (ECF No. 152, Defendants' Pretrial Submissions Concerning Matters To Be Resolved in Limine ("Defs.' Mem."); ECF No. 155, Plaintiff's Motion in Limine ("Pl.'s Mem.").) Defendants filed a memorandum of law in opposition to plaintiff's motions in limine (see ECF No. 156, Defendants' Opposition to Plaintiff's Motion in Limine ("Defs.' Opp'n")), but plaintiff did not file an opposition to defendants' motions. Trial is scheduled to begin on November 14, 2011. The court assumes the parties' familiarity with the underlying facts of the instant case. See Jean-Laurent v. Hennessy, No. 05-cv-1155, 2008 WL 3049875 (E.D.N.Y. Aug. 1, 2008).

DISCUSSION

II.Standard for a Motion in Limine

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (same); Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 283 (S.D.N.Y. 1996) (same). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). Indeed, courts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co., 937 F. Supp. at 287. Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected]." Luce, 469 U.S. at 41.

III.Admissibility of Evidence Pursuant to the Federal Rules of Evidence

A. General Relevance Provisions

The Federal Rules of Evidence govern the admissibility of evidence at trial. Rule 402 requires that evidence be relevant to be admissible. Fed. R. Evid. 402. Relevant evidence is defined as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Therefore, the court's determination of what constitutes "relevant evidence" is guided by the nature of the claims and defenses in the cause of action.

1.Relevant Evidence in Excessive Force Claims The motions in limine at bar primarily relate to plaintiff's excessive force and strip search claims.*fn1 In an excessive force claim in violation of the Fourth Amendment, "[t]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (internal citations omitted). Therefore, evidence that bears on the objective reasonableness of the officers' conduct is relevant to the excessive force claim in the present case. An analysis of reasonableness under the Fourth Amendment "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).

2.Relevant Evidence in Claims Alleging Unreasonable Strip Search

Before a person can be lawfully subjected to a strip search, the "Fourth Amendment requires an individualized 'reasonable suspicion that [a misdemeanor] arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.'" Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008) (quoting Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)). Therefore, evidence relevant to the strip search claim bears on whether defendants had the requisite "reasonable suspicion," which the Second Circuit has defined as "something stronger than a mere hunch, but something weaker than probable cause." Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (internal quotation marks and citations omitted). Determination of the reasonableness of defendants' suspicion "turns on an objective assessment of the . . . facts and circumstances confronting [the searching officer] at the time." Hartline, 546 F.3d at 100 (quoting Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (internal quotation marks and citations omitted)).

B.Application of Probative-Prejudice Analysis

In addition to the relevancy of the evidence that the parties seek to offer or exclude in their motions, several Rules of Evidence bear on the court's determination of admissibility. Each of the Rules relevant to the pending motions, discussed below, are subject to the probative-prejudice balancing analysis provided in Federal Rule of Evidence 403. Rule 403 permits the exclusion of evidence, even if relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403. The district court has broad discretion in making decisions under Rule 403's probative-prejudice balancing analysis. Fiacco v. City of Rensselaer, 783 F.2d 319, 327-28 (2d Cir. 1986). "In making a Rule 403 determination, courts should ask whether the evidence's proper value 'is more than matched by [the possibility] . . . that it will divert the jury from the facts which should control their verdict.'" Bensen v. Am. Ultramar, Ltd., No. 92-CIV-4420, 1996 WL 422262, at *6 (S.D.N.Y. July 29, 1996) (quoting United States v. Krulewitch, 145 F.2d 76, 80 (2d Cir. 1944)). The court applies the foregoing analysis to the parties' pending motions.

IV.Plaintiff's Motions in Limine

The court notes at the outset that a number of plaintiff's motions in limine directly correspond to motions in limine submitted by defendants. Therefore, where appropriate, the court has considered defendants' motions in limine with their memorandum of law in opposition to plaintiff's motions in limine.

A.Admissibility of Evidence of Prior Felony Convictions That Are More Than Ten Years Old Plaintiff seeks to preclude the introduction of evidence of his prior felony convictions that are more than ten years old. (Pl.'s Mem. at 1--2.) Under Federal Rule of Evidence 609(b), such evidence is inadmissible unless (a) "the court determines, in the interests of justice, that the probative value of the conviction . . . substantially outweighs its prejudicial effect," and (b) the proponent of such evidence gives sufficient written notice of intent to introduce the evidence. Fed. R. Evid. 609(b).

Defendants have not indicated any intention to introduce evidence of prior felony convictions dating back more than ten years. Even if defendants had sought to introduce such evidence, however, they would be barred for failure to comply with the notice requirement. Accordingly, plaintiff's motion in limine is granted.

B.Admissibility of Plaintiff's Prior Misdemeanor

Convictions

Plaintiff seeks to preclude evidence of his prior misdemeanor convictions, including any mention of plaintiff's August 13, 2002 guilty plea and conviction for criminal possession of a controlled substance in the seventh degree ("misdemeanor possession conviction"), which arose from the June 11, 2002 arrest. (Pl.'s Mem. at 1--2, 6--8.) For the reasons set forth below, the court grants plaintiff's motion in limine.

1.Prior Misdemeanor Conviction Arising from the June 11, 2002 Arrest

Plaintiff makes several arguments for preclusion of the misdemeanor possession conviction. First, he seeks to preclude introduction of "Queens County Criminal Court proceeding transcripts" as evidence of his August 13, 2002 guilty plea, conceding that the evidence is "marginally relevant" to the circumstances of his arrest, but arguing that "its probative value is substantially outweighed by the prejudicial effect" on plaintiff. (Pl.'s Mem. at 6.) Plaintiff further asserts that because "defendants' actions were not based--admittedly--on any knowledge that plaintiff possessed the controlled substance they recovered," the subsequent misdemeanor possession conviction is irrelevant.*fn2 (Pl.'s Mem. at 7.) Finally, plaintiff contends that because the misdemeanor possession conviction did not involve dishonesty or false statements, it is irrelevant and inadmissible under Federal Rule of Evidence 609(a)(2).*fn3 (Pl.'s Mem. at 1--2, 7.)

Although defendants do not seek admission of the entire Queens Criminal Court proceeding transcripts, defendants advance numerous arguments in favor of introducing evidence of plaintiff's misdemeanor possession conviction in their own motion in limine (see Defs.' Mem. at 11--14) and in their opposition memorandum (see Defs.' Opp'n at 6--8, 13--16). Among other arguments, defendants contend that the conviction is relevant under Rule 402 because the facts of (1) plaintiff's actual possession of 26 bags of crack cocaine and (2) his attempt to conceal the bags in his buttocks as defendants approached his car, bear on the circumstances surrounding the alleged strip search and whether defendants were reasonable in suspecting that plaintiff was concealing contraband. (Defs.' Mem. at 12--13; Defs.' Opp'n at 13--15.) Defendants add that they would be unfairly prejudiced if evidence of the misdemeanor possession conviction were excluded "because the jury may infer that the [underlying] stop and arrest were ultimately invalid." (Defs.' Opp'n at 7.) Defendants further argue that evidence of the conviction would cause little, if any, prejudice in light of evidence of plaintiff's prior felony convictions.*fn4 (Defs.' Mem. at 13.) Finally, defendants point out that evidence of the misdemeanor possession conviction is admissible because plaintiff stipulated to the fact of that conviction in the parties' Second Revised Joint Pre-Trial Order. (Defs.' Opp'n at 13; Sec. Rev. JPTO at 5.)*fn5

The court finds that evidence of plaintiff's misdemeanor possession conviction is irrelevant and therefore inadmissible pursuant to Federal Rule of Evidence 402. As this court found in Stephen v. Hanley, No. 03-CV-6226, 2009 WL 1471180, at *4 (E.D.N.Y. May 21, 2009), a plaintiff's subsequent conviction for criminal possession of a controlled substance following his arrest is "irrelevant to whether the [arresting] officers' actions were objectively reasonable before and during the course of the incident at issue" in an excessive force case.

Similarly, the court finds that plaintiff's later misdemeanor possession conviction is irrelevant to the question of whether defendants objectively possessed reasonable suspicion to conduct the alleged strip search. As noted above, defendants argue that (1) plaintiff's actual possession of 26 bags of crack cocaine bear on the circumstances surrounding the alleged strip search and whether defendants were reasonable in suspecting that plaintiff was concealing contraband; and (2) defendants would be unfairly prejudiced if evidence of the misdemeanor possession conviction were excluded "because the jury may infer that the [underlying] stop and arrest were ultimately invalid." (Defs.' Mem. at 12--13; Defs.' Opp'n at 7, 13--15.) These arguments essentially assert, however, that evidence of plaintiff's actual, uncontroverted possession of drugs on the day of the arrest is relevant to the unreasonable strip search claim. The court agrees that evidence of plaintiff's possession of drugs is relevant to the "reasonable suspicion" inquiry,*fn6 but evidence of plaintiff's conviction for such possession is not. Accordingly, plaintiff's motion to preclude evidence of his misdemeanor possession conviction is granted.

2.Other Prior Misdemeanor Convictions

Plaintiff also seeks to preclude defendants from introducing evidence of "any misdemeanor convictions not involving dishonesty or false statements." (Pl.'s Mem. at 2.) Because neither defendants nor plaintiff have specified the nature, timing or circumstances of any such misdemeanor convictions, the court possesses insufficient information to rule on their admissibility. Consequently, the court reserves decision as to plaintiff's motion in limine with respect to other misdemeanor convictions.

C.Admissibility of Plaintiff's "Rap Sheet"

Plaintiff seeks to preclude defendants from introducing a "New York State Division of Criminal Justice Services Rap Sheet" (the "Rap Sheet") that contains plaintiff's criminal record history, on grounds that the information contained therein is irrelevant and improper character evidence under Rule 404(b) insofar as defendants seek to introduce it to show that plaintiff has a propensity to commit crime. (Pl.'s Mem. at 2.) Plaintiff also contends that introduction of the Rap Sheet will prolong the trial unnecessarily "by requiring plaintiff to defend against the validity and constitutionality of any conviction(s) recorded." (Id. at 3.)

Defendants, on the other hand, seek to introduce unspecified "portions" of the Rap Sheet, "properly redacted, which reflect [plaintiff's] admissible felony and misdemeanor convictions" as a business record pursuant to Federal Rule of Evidence 902. (Defs.' Mem. at 17.) Defendants also argue that the Rap Sheet is admissible for purposes of assessing damages because they intend to show that plaintiff's emotional distress from the incident at issue was diminished due to his multiple prior contacts with police, arrests, convictions and/or periods of incarceration. (Defs.' Opp'n at 9--11.)

As an initial matter, the Rap Sheet is not automatically admissible simply because it is a business record under Rule 902(11) because the relevance of the contents of the rap sheet has not been specified. Notwithstanding its status as a business record, the court may nevertheless exclude the Rap Sheet in whole or in part, or exclude questions regarding convictions in the Rap Sheet pursuant to Rules 402 and 403 if unfair prejudice to plaintiff outweighs the probative value of such evidence.

Because defendants did not attach a copy of the Rap Sheet, propose redactions or provide even a list of past felony and misdemeanor convictions on plaintiff's criminal record, the court is unable to conduct an informed and meaningful assessment of the probative value or prejudicial effect of introduction of the Rap Sheet. Therefore, the court reserves decision as to whether defendants may introduce the Rap Sheet as a document into evidence.

D.Admissibility of Evidence of Plaintiff's Possession of Crack Cocaine on the Day of the Arrest

Plaintiff also seeks to preclude defendants' introduction of any evidence that he possessed crack cocaine on the day of the arrest on grounds that such evidence is irrelevant and therefore inadmissible pursuant to Federal Rule of Evidence 402. (Pl.'s Mem. at 8.) Plaintiff argues that because defendants have "[t]hroughout the life of this litigation . . . repeatedly maintained" that they approached plaintiff's car when they observed him smoking marijuana--and not when they observed him with crack cocaine--evidence of his possession of other drugs is irrelevant to whether defendants possessed "reasonable suspicion" to strip search him. (Id.) In the alternative, plaintiff argues that the evidence is inadmissible under Rule 403 because its probative value is outweighed by the risk of prejudice to plaintiff. (Id.)

Defendants oppose plaintiff's motion, arguing that evidence of the 26 bags of crack cocaine recovered from plaintiff's person on the day of the arrest "strike[s] at the threshold of defendants' case, as any search of plaintiff is conditioned on the 26 bags of crack cocaine secreted in plaintiff's buttocks." (Defs.' Opp'n at 13.) In addition, defendants contend that evidence of plaintiff's possession of the crack cocaine must be admitted because plaintiff stipulated to the fact of such possession in the Second Revised Joint Pre-Trial Order. (Id.; see also Sec. Rev. JPTO at 5.)

As discussed supra in Section IV.B.1, the court finds that admission of evidence of plaintiff's possession of crack cocaine is relevant and probative of whether defendants possessed the reasonable suspicion necessary to lawfully conduct the alleged strip search. In Hartline, the Second Circuit considered the following factors, inter alia, to determine whether the circumstances of a plaintiff's arrest supported a finding that the arresting officer possessed reasonable suspicion that Hartline was "secreting contraband on her person," thereby justifying a strip search: whether the officer saw Hartline take any suspicious actions "which might have suggested she was hiding something as he approached her vehicle"; whether the officer noticed anything about Hartline's physical appearance that suggested she was concealing drugs on her person; and whether he engaged in a less invasive pat-down search that suggested the presence of contraband. 546 F.3d at 101.

Here, plaintiff's possession of 26 bags of crack cocaine at the time of the arrest is relevant because it bears on the likelihood, as he testified in his deposition, that he attempted to conceal the bags upon defendants' approach and whether defendants observed any suspicious actions suggesting that plaintiff hid contraband on his person as they approached his vehicle. In addition, the court agrees with defendants that "[t]he fact that plaintiff attempted to pack 26 bags of drugs into his buttocks is directly relevant to defendants' argument that the crack cocaine was sticking out of plaintiff's underwear at the time of his arrest." (See Defs. Mem. at 15.) In particular, the quantity of crack cocaine plaintiff possessed is relevant to the question of whether defendants noticed anything about plaintiff's physical appearance or actions that led the officers reasonably to suspect that he was concealing drugs on his person.

The court is also persuaded by defendants' assertion that admission of the type of drugs plaintiff possessed is relevant because crack cocaine comes in "lumpy, rocklike form," DePierre v. United States, 131 S. Ct. 2225, 2230 (2011), which is likely more difficult to secret in one's buttocks than drugs that take the form of powder, pill or leaf. Accordingly, the court denies plaintiff's motion to exclude evidence regarding his possession of crack cocaine on the day of his arrest and declines in its discretion to modify the joint stipulation that references such evidence in the Second Revised Joint Pre-Trial Order.*fn7 (See Sec. Rev. JPTO at 5.)

E.Admissibility of Materials From Past Lawsuits to Which Plaintiff Was A Party

Plaintiff seeks to preclude defendants from introducing, other than for impeachment purposes, "any mention or reference to any other prior lawsuits which plaintiff has maintained or been involved [sic]," on grounds that such reference would cause unfair prejudice, distract the jury from relevant issues, and waste time. (Pl.'s Mem. at 3.) In particular, plaintiff seeks to preclude defendant from introducing "deposition testimony of plaintiff or the pleadings, motions, or summary judgment motion papers submitted by plaintiff in Jean-Laurent v. Wilkinson, et al. . . " (the "Wilkinson Action"). (Id.)

In the Wilkinson Action,*fn8 plaintiff claimed that he was strip searched in full view of bystanders while in the custody of the New York City Department of Correction on June 16, 2004. (Defs.' Mem. at 22.) Although the Wilkinson Action was tried two years ago, the underlying incident in Wilkinson post-dated the June 11, 2002 alleged strip search at issue in the instant case. (Defs.' Opp'n at 11.) At a March 2006 deposition taken for purposes of the Wilkinson Action, plaintiff testified that as a result of the June 16, 2004 strip search, he felt "very upset," "disturbed" and "depressed." (Defs.' Mem. at 22.) Later in plaintiff's deposition, when asked whether he had experienced any emotional problems prior to the institution of the Wilkinson Action, plaintiff answered, "No." (Defs.' Mem. at 22.) Defendants seek to admit these portions of plaintiff's prior Wilkinson deposition testimony to demonstrate that the emotional injuries he now attributes to the June 11, 2002 strip search in fact stem from the later strip search at issue in the Wilkinson Action. (Defs.' Mem. at 22--23.)

The court recognizes, and defendants concede, that it is generally improper for a court to admit evidence of prior lawsuits for the purpose of demonstrating that a plaintiff is a "chronic litigant." (Defs.' Mem. at 21 (citing Outley v. City of New York, 837 F.2d 587, 591--93 (2d Cir. 1988).) Pursuant to Rule 404(b), however, such evidence may be admissible if offered for a different purpose. See Fed. R. Evid. 404(b) ("Evidence of other . . . 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 . . . .").

In Brewer v. Jones, a case cited by defendants, the Second Circuit upheld a district court's admission of evidence that pro se plaintiff filed a previous lawsuit, rejecting plaintiff's argument on appeal that the "challenged evidence improperly suggested that [plaintiff] had litigious tendencies." 222 F. App'x 69, 70 (2d Cir. 2007). The Second Circuit noted that, contrary to plaintiff's assertions, evidence of the prior lawsuit was "relevant to show a possible cause of [plaintiff's] injury unrelated to the acts of the defendant," and that the district court had correctly determined that "the probative value of the evidence outweighed any possibility of prejudice." Id. at 70--71. Moreover, the Second Circuit found that any potential prejudice had been sufficiently curtailed by the defense's "scrupulous[] confine[ment of] its use of the challenged evidence to the purpose for which it was admitted." Id. at 71.

To the extent that plaintiff testifies at trial that he suffered emotional damages as a result of the June 11, 2002 strip search, defendants may introduce limited deposition testimony given by plaintiff in the Wilkinson Action as a prior inconsistent statement as to causation under Federal Rule of Evidence 801(d)(1)(A). In addition, the deposition testimony is admissible as a party admission under Federal Rule of Evidence 801(d)(2)(A). Moreover, the court finds that the probative value of evidence from the Wilkinson Action discussed supra sufficiently outweighs any unfair prejudice against plaintiff that may result, particularly because the court will allow only limited evidence regarding the prior lawsuit, to mitigate plaintiff's legitimate concerns of unfair prejudice, distraction and waste of time.

Accordingly, plaintiff's motion to preclude defendants from introducing, other than for impeachment purposes, "any mention or reference to any other prior lawsuits which plaintiff has maintained or been involved [sic]," is granted in part and denied in part. Defendants' introduction of evidence regarding the Wilkinson Action is limited to the following: (1) the date of the Wilkinson Action; (2) plaintiff's allegation in the Wilkinson Action, that he was strip-searched in full view of bystanders and that it caused emotional injury; and (3) the following portions of plaintiff's Wilkinson Deposition: 51:18-- 19, 107:4--108:8, 108:20--109:1--4 (see ECF No. 153--4, Kunz Declaration, Exhibit 4). Apart from this limited scope of evidence, defendants are precluded from introducing, other than for impeachment purposes, any other reference to prior lawsuits initiated by plaintiff.

F.Admissibility of Plaintiff's Prior Felony Assault Conviction

Plaintiff seeks to preclude defendants from introducing evidence that he was convicted of felonious assault in April 2005, on grounds of relevance and undue prejudice. (Pl.'s Mem. at 4--5.) Plaintiff argues that although defendants may introduce such evidence to impeach his credibility, the probative value is "substantially outweighed" by a risk of undue prejudice against defendant because the assault conviction involved violence rather than truthfulness. (Pl.'s Mem. at 4.)

Defendants counter that such evidence is relevant, not unduly prejudicial and "necessary to address plaintiff's credibility," particularly because "apart from the contentions of plaintiff, there is no substantial evidence that would assist the jury in determining whether plaintiff's allegations are credible." (Defs.' Opp'n at 2--3.) Defendants therefore seek to introduce evidence regarding plaintiff's April 20, 2005 conviction for assault in the second degree (intent to cause physical injury with a weapon or instrument), for which he was sentenced to seven years imprisonment, under Federal Rule of Evidence 609(a)(1). (Defs.' Mem. at 8.)

Under Federal Rule of Evidence 609(a)(1), "[F]or the purpose of attacking the character for truthfulness of a witness, evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year . . . ." Fed. R. Ev. 609(a)(1). "In balancing probative value against prejudicial effect under this rule, courts examine the following factors: (1) the impeachment value of the prior crime, (2) the remoteness of the prior conviction, (3) the similarity between the past crime and the conduct at issue, and (4) the importance of the credibility of the witness." Daniels v. Loizzo, 986 F. Supp. 245, 250 (S.D.N.Y. 1997) (citing United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977)).

The manner in which each factor affects the analysis is as follows. First, significant impeachment value of a prior crime weighs in favor of admission of the prior crime. Hernandez v. Kelly, 09-CV-1576, 2011 WL 2117611, at *2 (E.D.N.Y. May 27, 2011). The second factor, remoteness, is measured from the date of trial, and more recent convictions are deemed more probative than older convictions. Hanley, 2009 WL 1471180, at *4. Third, "similarity of past and present offenses weighs heavily against the use of prior criminal convictions for impeachment purposes." United States v. Brown, 606 F. Supp. 2d 306, 314 (E.D.N.Y. 2009) (emphasis in original). Accordingly, "[t]he less similar the pending case to the prior conviction, the less prejudicial its admission is." Hanley, 2009 WL 1471180, at *5. Finally, where the credibility of a given witness is particularly important because there is little other documentary or supporting evidence and "success at trial probably hinges entirely on [the witness's] credibility with the jury," the fourth factor weighs in favor of admission of the prior conviction. Jones v. City of New York, No. 98 CIV 6493, 2002 WL 207008, at *3 (S.D.N.Y. Feb. 11, 2002).

Applying these principles to the instant case, the court finds that the first factor weighs against admission of the prior conviction. "Rule 609(a)(1) presumes that all felonies are at least somewhat probative of a witness's propensity to testify truthfully." United States v.

Estrada, 430 F.3d 606, 617 (2d Cir. 2005). Nevertheless, the prior conviction defendants wish to admit--assault in the second degree--is a crime of violence, which ranks low on the scale of probative value on credibility, has "little or no direct bearing on honesty and veracity" and "may [have] result[ed] from a short temper, a combative nature, extreme provocation, or other causes." Id. at 617 (quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)).

The second factor, remoteness, favors admission of the evidence because the assault conviction is six years old, and well within the ten-year limit imposed by Rule 609. The third factor, similarity of the crimes, favors exclusion of the evidence because assault is similar to the excessive force allegation at issue here. Introduction of the assault conviction may mislead or prejudice the jury to infer that plaintiff has a propensity for violence and to assume that the plaintiff engaged in assaultive behavior and that the degree of force used by defendants was reasonable. Therefore, this factor favors exclusion of the prior conviction. See Lewis v. Velez, 149 F.R.D. 474, 483 (S.D.N.Y. 1993) (finding evidence of inmate plaintiff's prior felony assault conviction in excessive force action against correction officers would be "unacceptably prejudicial" because "assault convictions skirt too close to the impermissible suggestion that the plaintiff had a propensity toward violence and acted in conformity with his aggressive predisposition"); see also Daniels, 986 F. Supp. at 251 (finding plaintiff's prior felony assault convictions inadmissible in excessive force action against police officers because "concerns of prejudice are implicated" as "the jury may improperly infer that, based on the prior conviction, the plaintiff instigated the incident"). Although defendants argue that the prior felony is not similar to the case at bar because plaintiff's assault conviction arose out of a domestic dispute rather than an assault on a police officer (see Defs.' Opp'n at 4), the court finds that the prior assault is sufficiently similar to weigh against admission of the evidence.

The fourth factor also weighs against admission of the evidence. Defendants argue that the importance of plaintiff's credibility is paramount in this case because "apart from the contentions of plaintiff, there is no other substantial evidence that would assist the jury in determining whether plaintiff's allegations are credible." (Defs.' Opp'n at 3.) Defendants rely on Jones, 2002 WL 207008, in support of their argument. In Jones, a plaintiff sued arresting officers for, inter alia, excessive force and intentional infliction of emotional distress. 2002 WL 207008, at *1. In determining whether to admit evidence of the plaintiff's prior felony convictions for criminal mischief, burglary and possession of stolen property as impeachment evidence under Rules 609(a)(1) and 403, the court found that "[s]ince [plaintiff] is said to be the only witness for the Plaintiff, there is no significant documentary evidence, and Defendants deny the alleged incidents occurred, his success at trial probably hinges entirely on his credibility with the jury," a factor that weighed in favor of admitting the prior convictions. Id. at *3.

Here, however, unlike Jones and contrary to defendants' assertions, support for plaintiff's version of the events exists apart from plaintiff's own testimony. According to the Second Revised Joint Pre-Trial Order, plaintiff intends to call his wife, Sandra Jean-Laurent, and James (Red) Minor as additional witnesses to testify about the arrest incident on behalf of plaintiff. (See Sec. Rev. JPTO at 5-6.) Therefore, the need to admit otherwise disfavored evidence that does not bear on plaintiff's credibility and is similar to the conduct at issue is ...


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