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Danny Colon v. D. Porliar; A. Colvin; F. Deluke; (Mad

August 7, 2012

DANNY COLON, PLAINTIFF,
v.
D. PORLIAR; A. COLVIN; F. DELUKE; (MAD) S. BAXTER; K. COPELAND; AND J. KITCHNER; DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

The trial of this action is scheduled to commence on August 13, 2012. Presently before the Court is plaintiff's motion in limine.

DISCUSSION

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. See Luce v. U.S., 469 U.S. 38, 40 n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) ("[t]he purpose of an in limine motion is 'to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial'".) "A motion in limine to preclude evidence asks the court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence." Blazina v. Port Auth. of New York and New Jersey, 2008 WL 4539484, at *1 (S.D.N.Y. 2008). As the disputes regarding the admissibility of evidence are made outside the context of the trial, the Court's rulings on the motions in limine are, "subject to change when the case unfolds, particularly if the actual testimony differs from what was expected". Levitant v. City of New York Human Res. Admin., 2011 WL 795050, at *1 (E.D.N.Y. 2011) (quoting Luce, 469 U.S. at 41 ("[o]wing to its preliminary nature, an in limine ruling, 'is subject to change when the case unfolds'".)

DISCUSSION

Plaintiff seeks an Order permitting him to introduce portions of the transcript from plaintiff's Tier III Disciplinary Hearing held on May 2, 2007 before a hearing officer for the Department of Law. Specifically, plaintiff seeks to present the testimony of Victor Duke and Eric Burroughs claiming that these individuals were eyewitnesses to the alleged use of force on April 26, 2007. Defendants oppose plaintiff's motion.

"Testimony of a nonparty witness that was given at a prior hearing is, when offered for its truth, hearsay." Patterson v. County of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (citing Fed. R. Evid. 801(c)). Rule 801(b)(1) of the Federal Rules of Evidence provides:

The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Testimony is "not admissible at a subsequent trial under the exception for 'former testimony' unless the declarant is unavailable and the party against whom it is offered at the subsequent trial 'had an opportunity and similar motive' at the prior hearing 'to develop the testimony by direct, cross, or redirect examination'". Patterson, 375 F.3d at 220 (citing Fed. R. Evid. 804(b)(1)).

With respect to unavailability, Rule 804(a)(5) provides that, "a declarant is considered to be unavailable as a witness if the declarant . . . is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure . . ." the witness' attendance or testimony. Courts have found that a witness does not qualify as "unavailable" due to a mere absence from a hearing where the proponent does not establish that any reasonable, good faith steps were taken to procure presence. U.S. v. Solomon, 24 F. App'x. 148, 149 (4th Cir. 2001); but see Zola v. Gordon, 1993 WL ...


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