Lee et al v. The City of Troy et al

Filing 69

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Plaintiff Lamont Lees 67 Motions in limine are GRANTED; Troy Police Department Chief Brian G. Owens is precluded from opining as to the reasonableness of defendants use of force; Troy Police Department Chief Brian G. Owens report on defendants use of force is excluded; Any Troy Police Department policy documents that were not timely disclosed to plaintiff Lamont Lee in advance of trial are excluded; Defendants are precluded from elicitin g testimony concerning plaintiff Lamont Lees prior conviction for Attempted Robbery in the Second Degree from October 26, 2011; and Defendants are precluded from eliciting testimony concerning plaintiff Lamont Lees convictions from more than ten years ago. IT IS SO ORDERED. Signed by District Judge David N. Hurd on 05/07/2021. (map)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------LAMONT LEE,
-v-

Plaintiff,

1:19-CV-473

THE CITY OF TROY; PATROLMAN
CHRISTOPHER PARKER; PATROLMAN
LOUIS PERFETTI; PATROLMAN
JUSTIN ASHE; and PATROLMAN KYLE
JONES,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

SIVIN, MILLER & ROCHE LLP
Attorneys for Plaintiffs
20 Vesey Street, Suite 1400
New York, New York 10007

EDWARD SIVIN, ESQ.
GLENN D. MILLER, ESQ.

PATTISON, SAMPSON LAW FIRM
Attorneys for Defendants
P.O. Box 208
22 First Street
Troy, New York 12181

MICHAEL E. GINSBERG, ESQ.
RHIANNON INEVA
SPENCER, ESQ.

OFFICE OF RICHARD T. MORRISSEY RICHARD T. MORRISSEY, ESQ.
Attorneys for Defendants
64 Second Street
Troy, New York 12180
DAVID N. HURD
United States District Judge

ORDER ON MOTIONS IN LIMINE
A jury trial is scheduled to begin on Monday, May 10, 2021 at 9:30 a.m. in
Utica, New York. Plaintiff Lamont Lee (“Lee” or “plaintiff”) has moved in
limine for four pretrial rulings on the admissibility of certain evidence.
The standard governing a motion in limine was explored in detail in this
Court’s recent opinion in Walker v. Schult, 365 F. Supp. 3d 266, 274-75
(N.D.N.Y. 2019). The Court need not repeat that standard now. But in brief,
“[e]vidence should be excluded on a motion in limine only when the evidence
is clearly inadmissible on all potential grounds.” Id. Accordingly, “[t]he trial
judge may reserve judgment on a motion in limine until trial to ensure the
motion is considered in the proper factual context.” Id.
Lee’s first motion in limine concerns the testimony of defendants’ intended
witness, Troy Police Department Chief Brian G. Owens (“Chief Owens”).
Plaintiff has moved to preclude any testimony by Chief Owens purporting to
opine as to the reasonableness of the force the defendant police officers used
in arresting plaintiff. That motion must be granted, because defendants have
in no way attempted to offer Chief Owens as an expert, and therefore he
cannot offer opinion testimony depending on his expertise. Chief Owens may
nevertheless testify as to his personal knowledge of the investigation into the
police officer defendants’ use of force.

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Similarly, Lee’s second motion to exclude Chief Owens’ report as to the
reasonableness of the officer defendants’ use of force must be granted. That
report would provide the same impermissible opinions and must be excluded.
Lee’s third motion to exclude any Troy Police Department policy
documents that defendants failed to disclose to plaintiff prior to trial must
also be granted. Both parties are expected to adhere to the rules governing
disclosure.
Lee’s fourth and final motion to exclude testimony concerning his prior
convictions for Attempted Robbery in the Second Degree and other
convictions from more than ten years ago must also be granted. Under Rule
609(a)(1)(A), a prior conviction for a crime punishable by more than one year
in prison must be admitted subject to Rule 403. Rule 403 permits a court to
exclude evidence if its probative value is substantially outweighed by its
capacity to unduly prejudice the factfinder. Plaintiff was convicted of
attempted robbery on October 26, 2011, roughly nine-and-a-half years ago.
That conviction also has next to nothing to do with his veracity or the facts of
this case, and would undermine the most important witness at plaintiff’s
disposal. That conviction must be excluded.
As for Lee’s convictions from more than ten years ago, defendants have not
signaled an intention to make an issue of them. Rule 609(b)(2) requires that
the proponent seeking to include evidence of a ten-year-old conviction provide
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timely written notice to the opposing party. Accordingly, evidence of
plaintiff’s older convictions must be excluded, and plaintiff’s motions in
limine are granted in their entirety.
Therefore, it is
ORDERED that
1. Plaintiff Lamont Lee’s Motions in limine are GRANTED;
2. Troy Police Department Chief Brian G. Owens is precluded from
opining as to the reasonableness of defendants’ use of force;
3. Troy Police Department Chief Brian G. Owens’ report on defendants’
use of force is excluded;
4. Any Troy Police Department policy documents that were not timely
disclosed to plaintiff Lamont Lee in advance of trial are excluded;
5. Defendants are precluded from eliciting testimony concerning plaintiff
Lamont Lee’s prior conviction for Attempted Robbery in the Second
Degree from October 26, 2011; and
6. Defendants are precluded from eliciting testimony concerning plaintiff
Lamont Lee’s convictions from more than ten years ago.
IT IS SO ORDERED.

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Dated: May 7, 2021
Utica, New York.

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