Dougherty v. County of Suffolk et al

Filing 95

ORDER granting 78 Motion in Limine. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 4/20/2018. (Tomlinson, A.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
WILLIAM A. DOUGHERTY,
Plaintiff,
MEMORANDUM
AND ORDER
- against CV 13-6493 (AKT)
COUNTY OF SUFFOLK, SUFFOLK COUNTY
SHERIFF’S OFFICE, 1 RAMONA TORRES,
individually, JOHN GARGIULO, individually,
DENISE NEEDHAM, individually, THOMAS
WILSON, individually, SALVATORE
SALVAGGIO, individually, MICHAEL
PFENNIN, individually, KENNETH WARNER,
individually, and JOHN and JANE DOE 1 – 10,
individually,

Defendants.
----------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
I.

PRELIMINARY STATEMENT
Plaintiff William Dougherty (“Plaintiff”) moves in limine for an Order precluding

admission of evidence, testimony, or suggestion of (1) Plaintiff’s pre-incident history of arrests,
incarcerations, or convictions; (2) the underlying circumstances surrounding the arrest which led
to Plaintiff’s incarceration at the time of the alleged incident in this case, his post-incident
conviction arising from said arrest, and any other details relating thereto; (3) Plaintiff’s
employment and unemployment history; and (4) any prior lawsuits filed by Plaintiff. See

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The Suffolk County Sheriff’s Office is not a suable entity. The Court will address
this issue with counsel as well as the “John” and “Jane Does” listed in the caption prior to
commencement of the trial.

generally Plaintiff’s Memorandum of Law in Support of his Motion in Limine (“Pl.’s Mem.”)
[DE 79]. Defendants County of Suffolk, Ramona Torres, John Gargiulo, Denise Needham,
Thomas Wilson, Salvatore Salvaggio, Michael Pfenin, and Kenneth Warner (collectively,
“Defendants”), state that they seek to introduce evidence of Plaintiff’s prior convictions for
impeachment purposes pursuant to Federal Rule of Evidence 609(a) and 608(b), and evidence of
Plaintiff’s employment history pursuant to Federal Rule of Evidence 403. See generally
Defendants’ Memorandum in Opposition (“Defs.’ Opp’n.”) [DE 81]. Defendants also
independently move to preclude admission of evidence of Defendant Torres’s 2005 DWI
conviction and failure of a random drug screening in 2010, arguing such evidence is outside the
scope of admissible evidence under Federal Rule of Evidence 609 and 608. See id. at 7-8. For
the reasons set forth below, Plaintiff’s motion is GRANTED and Defendants’ motion is
GRANTED.
II.

BACKGROUND
This lawsuit arises out of incidents which allegedly took place while Plaintiff was

incarcerated at the Suffolk County Correctional Facility in 2012. Plaintiff claims that he was
repeatedly threatened and harassed by three other inmates beginning in June 2012 and that this
conduct continued through August 2012. Plaintiff asserts that he reported these threats as well as
the fact that he feared for his safety to the individual Defendants and requested that either he be
transferred or the other three inmates be transferred to another pod. Neither Plaintiff nor the
three other inmates were transferred. According to Plaintiff, as a result of the Defendants’
deliberate indifference to his safety, inter alia, he was violently assaulted by these three inmates
on August 24, 2012, and suffered severe injuries.

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III.

MOTIONS IN LIMINE: LEGAL STANDARD
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.” Gorbea v. Verizon New York,
Inc., No. 11-CV-3758, 2014 WL 2916964, at *1 (E.D.N.Y. June 25, 2014) (citing Luce v.
United States, 469 U.S. 38, 40 n.2 (1984)); Highland Capital Mgmt., L.P. v. Schneider, 379 F.
Supp. 2d 461, 467 (S.D.N.Y. 2005). When a party moves to preclude evidence by means of an
in limine motion, the court is required to determine preliminarily under Federal Rule of Evidence
104 whether the evidence is admissible. See Highland Capital Mgmt., L.P., 379 F. Supp. 2d at
467 (citing Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., No. 01–CV–
3796, 2004 WL 1970144, at *4 (S.D.N.Y. Sept. 3, 2004)). “[O]nly when the evidence is clearly
inadmissible on all potential grounds” should such evidence be excluded on a motion in limine.
Commerce Funding Corp., 2004 WL 1970144 at *4 (citing Baxter Diagnostics, Inc. v. Novatek
Med., Inc., No. 94–CV–5520, 1998 WL 665138, at *3 (S.D.N.Y. Sept.25, 1998)); accord Sec.
Exch. Comm'n v. U.S. Envtl, Inc., No. 94–CV–6608, 2002 WL 31323832, at *2 (S.D.N.Y.
Oct.16, 2002). Significantly, an in limine ruling “is subject to change when the case unfolds,
particularly if the actual testimony differs from what was contained in the . . . proffer.” Highland
Capital Mgmt., L.P., 379 F. Supp. 2d at 467 (quoting Luce v. United States, 469 U.S. at 41).
IV.

DISCUSSION
At the outset, the Court points out that one of the things Plaintiff seeks to preclude is the

admission of “any evidence of plaintiff’s history of prior unproven arrests . . . .” Pl.’s Mem. at 3.
This issue is moot since Defendants represent in their opposition papers that they are seeking to
introduce five convictions, not arrests (emphasis added). Defs.’ Opp’n. at 2. The Court will
therefore only be addressing the five convictions which Defendants seek to have admitted at

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trial. The Court also draws attention to the fact that the underlying claims here are based on
allegations of deliberate indifference to serious medical needs and a failure to protect the
Plaintiff from an assault by three other inmates at the Suffolk County Correctional Facility,
resulting in Plaintiff having sustained a fractured left ankle, a fractured right orbital and right
shoulder injuries. Pl.’s Mem. at 2. This is not a criminal case nor is it, for example, a Section
1983 action against police officers by a plaintiff claiming excessive force in connection with an
arrest. Likewise, it is somewhat out of the norm of cases where a party is attempting to impeach
the testimony of a defendant, rather than a plaintiff. These distinctions provide the framework
in which the Court considers the instant motions.
A.

Evidence of Plaintiff’s Pre and Post-Incident Criminal Convictions

Plaintiff moves to preclude the introduction of evidence pertaining to his pre-incident
arrest, incarceration, and conviction history, arguing such information (1) is not sufficient or
appropriate for impeachment purposes, and (2) is not relevant to Plaintiff’s claims of deliberate
indifference to safety/failure to protect, deliberate indifference to serious medical needs, and
related state law negligence claims. See Pl.’s Mem. at 3. Plaintiff takes specific issue with the
introduction of his entire incarceration history via introduction of his inmate identification
records, stating that many periods of incarceration occurred more than ten years ago and did not
result in convictions. See id. at 3-4. According to Plaintiff, these records should be excluded
from evidence under Fed. R. Evid. 402 as irrelevant, under Fed. R. 404 as improper character
evidence, under Fed. R. Evid. 403 and 609(b) as unduly prejudicial, and under Fed. R. Evid.
609(a)(2) as outside the scope of proper impeachment evidence. Plaintiff’s counsel argues that
Defendants are attempting to show Plaintiff’s propensity to commit crimes.

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In response to Plaintiff’s motion, Defendants state they seek to introduce evidence of five
convictions -- including the nature of the respective charge, the level of conviction, the
underlying facts, and the sentence -- for purposes of impeaching Plaintiff’s credibility. See
Defs.’ Opp’n. at 2. According to Defendants, the probative value of admitting this evidence
outweighs its prejudicial effect. Id. Specifically, Defendants seek to introduce the following
convictions:
1) February 7, 2013: Suffolk County Court – Plead Guilty to Five
(5) Counts of Robbery in the First Degree as a Felony (NY Pen.
Law 160.15(04)) sentenced to a determinate six years incarceration
and five years post-release supervision, and One (1) Count of
Attempted Robbery in the First Degree and One (1) Count of
Attempted Robbery in the Second Degree (NY Pen. Law 110160.10(2B)) sentenced to determinate six years incarceration and
five years post-release supervision to run concurrent with other
sentences.
2) October 15, 2007: Suffolk County Court – Plead Guilty to Petit
Larceny (NY Pen. Law 155.25) reduced from Burglary in the
Third Degree, sentenced to a conditional discharge and restitution.
3) March 1, 2005: Suffolk County Court – Plead Guilty to
Attempted Criminal Possession of Stolen Property, Fifth Degree
(NY Pen. Law 165.40) reduced from Criminal Possession of
Stolen Property, Fifth Degree, sentenced to one year probation.
4) September 9, 2004: Suffolk County Court – Plead Guilty to
Attempted Petit Larceny (NY Pen. Law 110/155.25) reduced from
Petit Larceny, sentenced to one year probation.
5) November 5, 1993: Suffolk County Court – Plead Guilty to
Two (2) Counts of Burglary in the Third Degree as a Felony (NY
Pen. Law 140.20) sentenced to a one year incarceration and five
years post-release supervision.
Id. The Court addresses each of these convictions in turn.

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1.

Plaintiff’s 2007, 2005, 2004, and 1993 Convictions

Plaintiff's misdemeanor convictions for petit larceny (2007), attempted criminal
possession of stolen property (2005) and attempted petit larceny (2004) are not “punishable by
[death or] imprisonment in excess of one year.” Daniels v. Loizzo, 986 F. Supp. 245, 249
(S.D.N.Y. 1997) (citing FED. R. EVID. 609(a)(1)). Consequently, these convictions do not come
within the purview of Rule 609(a)(1) and are not admissible for impeachment purposes under
that section. See Kelly v. Fisher, No. 86 Civ. 1691, 1987 WL 16593, at *1 (S.D.N.Y. Sept. 2,
1987) (holding misdemeanor convictions for assault and resisting arrest inadmissible under Rule
609(a)(1)). The 1993 felony burglary conviction, on the other hand, does fall within the ambit of
Rule 609(a)(1). However, that conviction is inadmissible on other grounds as discussed below.
All of these misdemeanor convictions as well as the felony burglary conviction are more
than ten years old. As noted above, Rule 609(b) limits the admission of evidence of criminal
convictions that are too remote in time to be reliably probative of truthfulness. “Criminal
convictions more than ten years old are not admissible for impeachment unless the court
determines that, in the interest of justice, the probative value of the conviction substantially
outweighs its prejudicial effect.” Daniels, 986 F. Supp. at 249 (citing FED. R. EVID. 609(b)).
Although convictions such as these may be admitted “in the interest of justice,” the Second
Circuit “has recognized that Congress intended that convictions more than ten years old be
admitted ‘very rarely and only in exceptional circumstances.’” Id. at 252 (quoting Zinman v.
Black & Decker, Inc., 983 F.2d 431, 434 (2d Cir. 1993)). The Court finds that neither the
misdemeanor convictions nor the felony burglary conviction at issue here present the
“exceptional circumstances” warranting their admission. Maize v. Nassau Health Care Corp.,

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No. CV 05-4920, 2012 WL 139261, at *4 (E.D.N.Y. Jan. 18, 2012). Accordingly, Plaintiff’s
motion to exclude these specific convictions under Rule 609(b) is GRANTED.
Notwithstanding the inadmissibility of the misdemeanor convictions under Rule
609(a)(1) and the burglary conviction under Rule 609(b), Defendants seek to admit evidence of
these convictions under Fed. R. Evid. 609(a)(2), arguing that convictions for petty larceny,
attempted criminal possession of stolen property and burglary each required Plaintiff to engage
in acts of dishonesty sufficient to satisfy Rule 609(a)(2). See Defs.’ Opp’n, at 4-5. The cases
Defendants rely on, however, are almost exclusively cases decided in the New York state courts.
This Court looks to federal cases dealing with the specific types of convictions to determine
whether Rule 609(a)(2) applies in the present circumstances.
Under Rule 609(a)(2), evidence that a witness has been convicted of a crime involving
“dishonesty or false statement” must be admitted regardless of the severity of the punishment or
any resulting prejudice. FED. R. EVID. 609(a)(2). Rule 609(a)(2) is “restricted to convictions
that bear directly on the likelihood that the defendant will testify truthfully (and not merely on
whether he has a propensity to commit crimes).” Hayes, 553 F. 2d at 827 (emphasis in original).
Convictions for armed robbery, burglary and petit larceny have been deemed to fall outside the
ambit of this rule. Id. (“[c]rimes of force such as armed robbery or assault, or crimes of stealth,
such as burglary or petit larceny “. . . do not come within this clause” (emphasis added). Hayes,
553 F.2d at 827; see Martin v. Natl. R.R. Passenger Corp., 97 CIV, 8381, 1998 WL 575183, at
*3 (S.D.N.Y. 1998) (“Petit larceny is not, per se, a crime involving deceit, dishonesty, or fraud.
Consequently, a bare conviction, as present in this instance, reveals little with respect to
[plaintiff’s] veracity.”). “While much successful crime involves some quantum of stealth, all
such conduct does not, as a result, constitute a crime of dishonesty or false statement for
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purposes of Rule 609(a)(2).” United States v. Estrada, 430 F.3d 606, 614 (2d Cir. 2005) (citing
cases). As to Plaintiff’s 2005 misdemeanor conviction for attempted criminal possession of
stolen property in the fifth degree -- for which he was sentenced to one year probation -- courts
have found this type of conviction inadmissible under Rule 609(a)(2). See Daniels, 986 F.Supp.
at 249 (finding that “misdemeanor convictions for unauthorized use of a vehicle, possession of
stolen property, disorderly conduct, resisting arrest, and escape are inadmissible under Rule 609
and may not be used to impeach plaintiff”) (emphasis added); 4 Weissenberger’s Federal
Evidence § 609.4 (“It remains doubtful, however, that possessory crimes, such as receiving
stolen property or possession of a small amount of marijuana, would be admissible for
impeachment purposes under section (a)(2).”). For the foregoing reasons, the Court finds that
the misdemeanor convictions and the felony burglary conviction are inadmissible under Fed. R.
Evid. 609(a)(2) and Plaintiff’s motion to preclude them under this section is GRANTED.
2.

Plaintiff’s 2013 Robberry Convictions

In February 2013, Plaintiff pleaded guilty to and was convicted of five counts of robbery
in the first degree, one count of attempted robbery in the first degree, and one count of attempted
robbery in the second degree. Each of these offenses is designated as a felony under New York
law. See N.Y. Penal Law §§ 110.05 (attempt), 160.10-160.15 (robbery). Plaintiff received
determinate sentences of six years incarceration and five years post-release supervision, with the
sentences to run concurrently. See Defs.’ Opp’n. at 2. The robberies were committed in 2011.
Plaintiff asserts that at the time of the assault which underlies this lawsuit, he was a pre-trial
detainee still facing charges arising from the 2011 alleged store robberies. Pl.’s Mem. at 5.
Introducing the post-incident robbery convictions is, according to Plaintiff, irrelevant to his
claims of deliberate indifference, would have little impeachment value and “is otherwise highly
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prejudicial.” Id. Defendants argue that “[r]obberies by their very nature involve dishonesty and
thus have an impact on the integrity and credibility of a witness.” Defs.’ Opp’n. at 3-4. As such,
Defendants’ counsel contends that the probative value of admitting a robbery conviction here
(and attempted robbery conviction) outweighs any prejudicial effect. Id. at 4. Likewise,
Defendants seek to cross-examine the Plaintiff regarding the underlying facts of those
convictions for robbery and attempted robbery.
“Rule 609 of the Federal Rules of Evidence governs the admissibility of criminal
convictions for impeachment purposes in civil actions.” Maize, 2012 WL 139261, at *1 (citing
Daniels v. Loizzo, 986 F.Supp. 245, 249 (S.D.N.Y.1997) (citing 4 Weinstein's Federal Evidence,
§ 609.04[3][a], at 609–36 (1997)). There are two ways in which such evidence can be admitted.
The Court has already addressed Rule 609(a)(2). Under Rule 609(a)(1), evidence of prior
criminal convictions may be introduced to impeach a witness if the conviction was for a crime
“punishable by [death or] imprisonment in excess of one year.” Daniels, 986 F.Supp. at 249
(citing Fed.R.Evid. 609(a)(1)). That evidence, however, is subject to the balancing test set forth
in Federal Rule of Evidence 403, which “provides for the exclusion of relevant evidence if its
probative value is ‘substantially outweighed’ by the danger of unfair prejudice, confusion, or
waste of time.” Daniels, 986 F.Supp. at 248 n. 4 (citing Fed.R.Evid. 403).
The Court looks to the opening language of Rule 609 which states “(a) IN GENERAL. The
following rules apply to attacking a witness’s character for truthfulness by evidence of a
criminal conviction . . .” (emphasis added).

This language is most significant because it sets the

parameter of proper inquiry and reasoning under Rule 609(a)(1) which is the subject of this
portion of the Court’s analysis. Further, the balancing test of Rule 403 is placed within this
context.
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The robbery convictions here come within the ambit of Rule 609(a)(1) because they are
crimes “punishable by [death or] imprisonment in excess of one year.” At the outset, this Court
finds that the robberies at issue are crimes of violence with little if any bearing on credibility.
“As a general rule of thumb, crimes of violence and assaultive behavior have limited probative
value concerning a witness’s credibility.” Celestin v. Premo, No. 9:12-CV-301, 2015 WL
5089687, at *2 (N.D.N.Y. Aug. 27, 2015) (citing United States v. Estrada, 430 F.3d at 618)
(citations omitted). As one court has noted, “courts within this Circuit have different
perspectives as to whether the crime of robbery is considered to be a crime that involves
dishonesty or false statement.” Id.; see Fletcher v. City of New York, 54 F.Supp.2d 328, 332
(S.D.N.Y. 1999) (citing cases throughout the federal circuits for the conclusion that robbery is
not per se a crime involving dishonesty).
As noted, Rule 609(a)(1) requires the Court to perform a Rule 403 balancing test,
whereby a court may exclude evidence if its probative value is substantially outweighed by a
danger of, among other things, unfair prejudice or confusion. FED. R. EVID. 403. Courts within
this Circuit have handled the balancing analysis in varying ways. One frequently cited decision
is Daniels v. Loizzo, 986 F. Supp. 245 (S.D.N.Y. 1997). In Daniels, the district judge observed
that courts “should consider” a number of other factors including “the nature, age, and severity
of the crime and its relevance to the witness’s credibility, the importance of credibility as an
issue in the case, the availability of other means to impeach the witness, and whether the witness
has ‘mended his ways’ or engaged in similar conduct recently.” 986 F. Supp. at 252 (citing
United States v. Mahler, 579 F. 2d 730, 735 (2d Cir. 1978) and Sango v. City of New York, 1989
WL 86695, at *18 (E.D.N.Y. July 25, 1989)). Other courts conducting the probative
value/prejudicial effect analysis necessary under Rule 403 have relied on a somewhat differently
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worded set of factors including “(1) the impeachment value of the crime, (2) remoteness of the
prior conviction, (3) the similarity between the past crimes and the conduct at issue, and (4) the
importance of the credibility of the witness.” Picciano v. McLoughlin, No. 5:07-CV-07812010
WL 4366999, at *4 (N.D.N.Y. Oct. 28, 2010) (quoting Brundidge v. City of Buffalo, 79 F. Supp.
2d 219, 226 (W.D.N.Y. 1999)); Johnson v. White, 06 Civ. 2540, 2011 WL 13257633, at *1
(S.D.N.Y. Feb. 22, 2011).
The Court has broad discretion in making decisions under the probative value versus
prejudicial effect balancing test under Rule 403. Stephen v. Hanley, No. 03-CV-6226, 2009 WL
1471180, at *3 (E.D.N.Y. May 21, 2009) (citing Fiacco v. City of Rensselaer, 783 F.2d 319,
327-28 (2d. Cir. 1986); Celestin, 2015 WL 5089687, at *3 (“Determining whether a conviction
can be used to impeach a witness is lodged squarely within the independent discretion of the trial
court.”). “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. American 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 is compelled to point out here that it finds little if any relevance under Fed. R.
Evid. 402 of Plaintiff’s robbery convictions to Plaintiff’s claims of deliberate indifference to his
safety as well as his medical needs in conjunction with the assault at the Suffolk County
Correctional Facility. Defendants maintain that they wish to cross-examine the Plaintiff as to the
underlying facts of the first degree robbery conviction in order to “rebut any alleged reason for
failing to report about the alleged threats he claims to have encountered. This evidence is
admissible to impeach both his credibility and to establish his lack of truthfulness.” Defs.’
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Opp’n at 4. The Court respectfully disagrees. As the court in Celestin noted, the nature of the
crimes of robbery and criminal possession of a weapon “do not typically weigh heavily on the
matter of truthfulness, as opposed to ruthlessness, and thus have limited insight into credibility.”
Celestin, 2015 WL 5089687, at *3. Moreover, the Court finds no relevance in the underlying
facts of the robbery convictions to a purported reason for Plaintiff’s not reporting alleged threats
made against him while he was incarcerated at the Suffolk County Correctional Facility.
To the contrary, the Court finds that the disclosure of the robbery convictions forecasts
substantial prejudice to the Plaintiff in the prosecution of his claims for deliberate indifference to
his safety and medical needs. Significantly, the exposure of the nature of these crimes invites
“visceral prejudice, and this Court discounts the proposition that being the jury is aware of
[plaintiff’s] incarceration somehow would ameliorate the gravity of the prejudice that will result
from any impeachment of these crimes of violence.” Id. Since significant prejudice is likely to
result across the board if the impeachment sought by Defendants t is permitted, the question
becomes whether the danger of undue prejudice substantially outweighs any identifiable
probative value. This Court believes that it does. Other than the powerful message presented to
the jury that the Plaintiff has a propensity to engage in serious crimes of violence, the Court finds
no identifiable relevance or probative value to the information Defendants seek to utilize to
impeach the Plaintiff. The Court acknowledges that the versions as to what happened -- or did
not happen -- on August 24, 2012 at the Suffolk County Correctional Facility between the
Plaintiff, the Defendants, and the three other inmates may be quite different -- and that credibility
serves as an essential element in judging which version is more likely the case. However, the
Court finds that permitting Defendants to impeach the Plaintiff with crimes that have little to no
bearing on truthfulness will be more of a hindrance and more destructive to the truth-seeking
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function of the jury than a help or benefit -- and will likely confuse the jury. Accordingly, the
Court finds that the prejudicial effect of revealing that Plaintiff has a conviction for multiple
robberies substantially outweighs any probative value of that information and Defendants are
precluded from mentioning these convictions and their underlying facts for impeachment of the
Plaintiff at the trial. This portion of Plaintiff’s motion in limine is therefore GRANTED. The
Court will provide an instruction to the jury noting that at the time the incidents which gave rise
to this lawsuit took place, the Plaintiff was incarcerated at the Suffolk County Correctional
Center – a matter with which they need not concern themselves.
B.

Evidence of Plaintiff’s Past Employment History

Defendants seek to admit, and Plaintiff seeks to exclude, evidence of Plaintiff’s history of
unemployment leading up to his 2011 arrest for robbery, specifically through Plaintiff’s
deposition testimony in which he indicated that during this time, he did not maintain gainful
employment and had income earned through criminal activity. See Defs.’ Opp’n. at 6; Pl.’s
Mem. at 7. Defendants argue that “plaintiff has not established how questions regarding his
employment history standing alone would be irrelevant,” and that “[t]here is no precedent that
precludes the defendants from inquiry of plaintiff’s background information to include his prior
employment—or lack thereof.” Defs.’ Opp’n. at 6. Defendants go so far as to state “[i]t is
certainly relevant under F.R.E. 402, 403 or 404 that the jury be provided with basic background
information about the plaintiff’s employment history.” Id. Plaintiff disagrees, and points to the
obvious risk of prejudice in admitting evidence of prior criminal activity irrelevant to Plaintiff’s
claims of deliberate indifference to safety/failure to protect, deliberate indifference to serious
medical needs, and related state law negligence claims. See Pl.’s Mem. at 7.

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Federal Rule of Evidence 404 prohibits the use of “[e]vidence of a person’s character or
character trait . . . to prove that on a particular occasion the person acted in accordance with the
character or trait,” FED. R. EVID. 404(a)(1), and the use of “[e]vidence of a crime, wrong, or
other act . . . to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” FED. R. EVID. 404(b)(1).
The Supreme Court has set identified four factors for courts to consider him in exercising
their discretion under Rule 404, stating that “[p]rior bad-acts evidence must be (1) offered for a
proper purpose, (2) relevant, and (3) substantially more probative than prejudicial. In addition,
(4) at defendant's request, the district court should give the jury an appropriate limiting
instruction.” United States v. Downing, 297 F.3d 52, 58 (2d Cir.2002) (citing Huddleston v.
United States, 485 U.S. 681, 691-92, (1988)). While the Second Circuit “takes an inclusive
approach to prior bad act testimony,” in that “such testimony can be admitted for any purpose
except to show criminal propensity,” United States v. Stevens, 83 F.3d 60, 68 (2d Cir. 1996), the
Court has also instructed that “the third Huddleston prong demands a ‘particularly searching,
conscientious scrutiny’ in the context of prior crimes evidence because such evidence poses a
particularly severe risk of unfair prejudice.” United States v. Frederick, 702 F. Supp. 2d 32, 39
(E.D.N.Y. 2009) (quoting United States v. McCallum, 584 F.3d 471, 476 (2d Cir. 2009)).
In reviewing Defendants’ proffered explanation for the admission of evidence of
Plaintiff’s unemployment and self-support via robbery, the Court finds that the proffer fails the
first requirement of the Huddleston test, namely, that the evidence be offered for a proper
purpose. In the short section of their Memorandum addressing the admissibility of this evidence,
Defendants do not identify a single proper purpose for which the evidence should be admitted.
The closest they come is the argument that the evidence “is certainly relevant” so that the jury

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has “basic background information about the plaintiff’s employment history.” Defs.’ Opp’n.
at 6. Rather than identifying a proper purpose, Defendants improperly shift the burden to
Plaintiff, arguing that he “has not established how questions regarding his employment history
standing alone would be irrelevant.” Id; see Steele, 216 F. Supp. at 326 (explaining that the party
seeking to introduce evidence has the burden of establishing its admissibility) (quoting Hayes,
553 F.2d at 828). The Court finds there is no proper purpose demonstrated here and that a
reasonable deduction can be made that the information is to be utilized to show character and
propensity. Any relevance claimed is marginal, at best, since the way Plaintiff maintained
himself financially has nothing to do with the incident at the Suffolk County Correctional
Facility which is the underlying focus of this lawsuit.
Without addressing whether the evidence is relevant under Rule 402, the fact that no
proper purpose has been offered and that the probative value of the evidence is far outweighed
by its prejudicial effect requires the Court to preclude its admission pursuant to Rule 404(b).
C.

Evidence of Plaintiff’s Prior Lawsuit

In response to Plaintiff’s motion seeking to preclude introduction of evidence of a
previous lawsuit commenced by Plaintiff against the Suffolk County Police Department,
Defendants state that at this time they do not intend to introduce such evidence. See Defs.’
Opp’n. at 6-7; Pl.’s Mem. at 7. The Court finds it unnecessary therefore to address the
admissibility of such evidence.
D.

Evidence of Defendant Torres’s Prior Conviction and Failed Drug Test

Defendants’ Memorandum in Opposition contains an independent motion to preclude the
introduction of evidence of Defendant Corrections Officer Ramona Torres’ 2005 DWI
conviction, as well as of evidence of Defendant Torres’s 2010 failure of a random drug

15

screening. See Defs.’ Opp’n at 7-8. Plaintiff does not address this evidence in his principal
motion, nor has he sought to respond to this aspect of Defendants’ motion.
As discussed in detail, supra, Federal Rule of Evidence 609 guides admission of evidence
of criminal convictions for purposes of attacking a witness’s character for truthfulness.
Specifically, Rule 609(a)(1) mandates admission of evidence of felonies, Rule 609(a)(2)
mandates admission of evidence of any crime if establishing the elements of the crime requires
proving a dishonest act or false statement, and Rule 609(b) acts as a modifier to Rule 609(a) in
that it precludes admission of evidence of criminal convictions that are more than ten years old
unless the evidence’s probative value substantially outweighs its prejudicial effect. See FED. R.
EVID. 609(a)(1), FED. R. EVID. 609(a)(2), FED. R. EVID. 609(b)(1). Based on the information
before the Court as stated in Defendants’ motion, see Defs.’ Opp’n. at 7-8, Defendant Torres’
conviction for Driving While Intoxicated in 2005 is not admissible under Rule 609, since it is
more than ten years old, its probative value for Torres’ truthfulness is not apparent, and it does
not “substantially outweigh” any potential prejudicial effect. Similarly, the Court finds that
evidence of Defendant Torres’ failing a random drug screening in 2010 is not admissible under
Rule 609 since it does not appear that this failure and her subsequent 30-day suspension from
work constituted a criminal “conviction.” Even if it did, evidence of such a conviction would not
be admissible under Rule 609(a)(1) unless it qualified as a felony, and would not be admissible
under Rule 609(a)(2) unless it required proof of a dishonest act or false statement -- neither of
which appears to be the case given the information before the Court. In the absence of a proper
purpose for the introduction of such evidence, Rule 404 expressly prohibits introduction of prior
acts such as a failed drug test.

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For the foregoing reasons, Defendants’ motion with respect to Defendant Torres’ 2005
conviction and 2010 failed drug screening is GRANTED and Plaintiff is precluded from
attempting to introduce such information at trial.
V.

CONCLUSION
Based on the foregoing analysis, Plaintiff’s motion in limine is GRANTED in accordance

with this Memorandum, and Defendants’ motion in limine is also GRANTED.
SO ORDERED.
Dated: Central Islip, New York
April 20, 2018
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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