Kogut v. The County of Nassau et al

Filing 372

MEMORANDUM & ORDER - This Memorandum and Order addresses Restivo and Halstead's motion to exclude evidence of Plaintiffs' prior bad acts. For the following reasons, this motion is GRANTED IN PART and DENIED IN PART, and the Court RESERVES JUDGMENT IN PART. So Ordered by Judge Joanna Seybert on 9/4/12. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN KOGUT,
Plaintiff,
MEMORANDUM & ORDER
06-CV-6695(JS)(WDW)
(LEAD CASE)

-againstTHE COUNTY OF NASSAU, POLICE
COMMISSIONER DONALD KANE, POLICE
COMMISSIONER WILLIAM J. WILLETT (2005),
POLICE COMMISSIONER JAMES LAWRENCE,
DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE
1985), DETECTIVE DENNIS FARRELL (HEAD OF
HOMICIDE 2005), CAROLANN HESSEMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT
MARTINO, DETECTIVE WAYNE BIRDSALL,
DETECTIVE MILTON G. GRUBER, DETECTIVE
CHARLES FRAAS, DETECTIVE FRANK SIRIANNI,
DETECTIVE HARRY WALTMAN, P.O. MICHAEL
CONNAUGHTON, P.O. WILLIAM DIEHL, and
JOHN DOES 1-5,
Defendants.
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JOHN RESTIVO, DENNIS HALSTEAD,
MELISSA LULLO, JASON HALSTEAD,
HEATHER HALSTEAD, and TAYLOR
HALSTEAD,
Plaintiffs,
- against NASSAU COUNTY, CAROLANN HESSMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
in his individual capacity, ROBERT DEMPSEY,
in his individual capacity, FRANK SIRIANNI,
in his individual capacity, MILTON GRUBER,
in his individual capacity, HARRY WALTMAN
in his individual capacity, ALBERT MARTINO,
in his individual capacity, CHARLIE FRAAS,
in his individual capacity, THOMAS ALLEN
in his individual capacity, RICHARD BRUSA,
in his individual capacity, VINCENT DONNELLY,

06-CV-6720(JS)(WDW)
(MEMBER CASE)

in his individual capacity, MICHAEL
CONNAUGHTON, in his individual capacity,
WAYNE BIRDSALL, in his individual capacity,
WILLIAM DIEHL, in his individual capacity,
JACK SHARKEY, in his individual capacity,
DANIEL PERRINO, in his individual capacity,
ANTHONY KOZIER, in his individual capacity,
Detective Sergeant CAMPBELL, (Shield #48),
in his individual capacity, SEAN SPILLANE,
in his individual capacity, RICHARD ROE
SUPERVISORS #1-10, in their individual
capacities,
Defendants.
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APPEARANCES
For Plaintiffs:
John Kogut
Anthony M. Grandinette, Esq.
John T. Serio, Esq.
Grandinette & Serio, LLP
114 Old Country Road, Suite 420
Mineola, New York 11501
Paul Casteleiro, Esq.
86 Hudson Street
Hoboken, New Jersey 07030
John Restivo,
Dennis Halstead,
Melissa Lullo,
Jason Halstead,
Heather Halstead,
and Taylor
Halstead

Barry C. Scheck, Esq.
Deborah L. Cornwall, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna Benvenutti Hoffman, Esq.
Sonam A. H. Henderson, Esq.
Cochran, Neufeld & Scheck, LLP
99 Hudson Street, 8th Floor
New York, New York 10013

For Defendants:

Louis M. Freeman, Esq.
Lee Ginsberg, Esq.
Freeman, Nooter & Ginsberg
75 Maiden Lane, Suite 503
New York, New York 10038

2

David L. Lewis, Esq.
Lewis & Fiore, Esq.
225 Broadway, Suite 3300
New York, New York 10007
Liora M. Ben-Sorek, Esq.
Sondra Meryl Toscano, Esq.
Christine Ann Lobasso, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501
SEYBERT, District Judge:
This

Memorandum

and

Order

addresses

Restivo

and

Halstead’s motion to exclude evidence of Plaintiffs’ prior bad
acts.

(Docket

Entry

300.)

Restivo

and

Halstead

move

to

exclude: (1) Halstead’s nolo contendere pleas to various Florida
crimes; (2) evidence of illegal drug use; (3) evidence that
Restivo or Halstead used racist language; (4) allegations of
domestic violence and statutory rape; (5) a non-party’s domestic
violence convictions; and (6) Restivo’s brother’s convictions
for witness intimidation or tampering.

(Docket Entry 300.)

For

the following reasons, this motion is GRANTED IN PART and DENIED
IN PART, and the Court RESERVES JUDGMENT IN PART.
I. The Nolo Contendere Pleas
Evidence of Halstead’s nolo contendere pleas is not
admissible.

Nolo contendere pleas are generally inadmissible.
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FED. R. EVID. 410.

The Court need not reach whether these pleas

can be used for impeachment because Defendants have not shown
how Halstead’s crimes fall within the rubric outlined in Federal
Rule of Evidence 609.
II. Prior Drug Use
The Court reserves judgment on Restivo and Halstead’s
request

to

exclude

evidence

of

prior

drug

use.

It

will

entertain objections to this evidence as the trial progresses.
III. Racist Language
Similarly,

the

Court

reserves

judgment

on

whether

evidence that Restivo used a racist slur during an exchange with
one of Plaintiffs’ alibi witnesses.

Defendants would use the

exchange to help explain why the witness eventually repudiated a
statement

that

he

had

provided

to

Plaintiffs’

investigator.

Defendants argue that the exchange, which shocked and angered
the witness, helps rebut Plaintiffs’ suggestion that the witness
changed

his

story

simply

to

curry

favor

with

prosecutors.

Unsurprisingly, Plaintiffs argue that this evidence is severely
prejudicial.
develops.

The Court will rule on this evidence as the trial
See Irizarry v. Corknard, No.  10–CV–1022, 2012 WL

2990021, at *1 (N.D.N.Y. July 20, 2012) (“Courts considering a
motion in limine may reserve decision until trial so that the
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motion is placed in the appropriate factual context.”).

The

Court will incorporate appropriate questions into its jury voir
dire.
IV. Domestic Violence and Statutory Rape
Except

as

follows,

the

Court

reserves

judgment

on

Restivo and Halstead’s request to exclude evidence (1) of their
acquaintance with local teenagers and (2) that they committed
acts of domestic violence.
that

any

of

underage girls.

the

Defendants may not elicit testimony

Plaintiffs

had

sexual

relationships

with

FED. R. EVID. 403.

V. David Rapp’s Criminal History
Evidence

of

David

Rapp’s

inadmissible except as follows.

criminal

history

is

Defendants may elicit evidence

that Rapp was facing unspecified criminal charges at the time he
told detectives about his conversation with Restivo in order to
rebut Plaintiffs’ position that Rapp’s statement was coerced.
(See Defs. Opp. 11.)
VI. Witness Tampering
Restivo

and

Halstead’s

request

to

bar

Charlie Restivo’s witness tampering is denied.

evidence

of

This evidence

may be used to impeach Charlie Restivo because the convictions

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involve dishonest acts and their impeachment value substantially
outweighs their prejudicial effect.

FED. R. EVID. 609(b).

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September 4, 2012
Central Islip, New York

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