Wilson v. Kelly et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part without prejudice to revew 69 Motion in Limine. Signed by U.S. District Judge Mae A. D'Agostino on 7/31/2014. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL L. WILSON,
NICHOLAS DELUCA, Sergeant, Great Meadow
Correctional Facility, in his individual and official
capacity; RICHARD VLADYKA, Sergeant, Great
Meadow Correctional Facility, in his individual and
TABNER, RYAN AND KENIRY, LLP
18 Corporate Woods Boulevard
Albany, New York 12211
Attorneys for Plaintiff
DANA L. SALAZAR, ESQ.
THOMAS R. FALLATI, ESQ.
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorneys for Defendants
CATHY Y. SHEEHAN, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants
violated his constitutional rights. See Dkt. No. 1. On July 21, 2014, Plaintiff filed a motion in
limine, claiming that (1) he is entitled to an adverse inference regarding the missing tape
recording; and (2) his criminal history is inadmissable. See Dkt. No. 69.
Currently before the Court is Plaintiff's motion in limine.
The Court assumes the parties' familiarity with the factual background of this case, as
detailed in the Court's previous orders from August 27, 2012 (Dkt. No. 32) and March 13, 2014
(Dkt. No. 58), and will discuss only those facts relevant to the disposition of the pending motion.
Standard of review
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n. 2
(1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude
evidence on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94 Civ. 5220, 1998 WL
665138, *3 (S.D.N.Y. Sept. 25, 1998). 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. v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996).
Alternatively, the court is "free, in the exercise of sound judicial discretion, to alter a previous in
limine ruling" at trial as "the case unfolds, particularly if the actual testimony differs from what
was contained in the [movant's] proffer." Luce, 469 U.S. at 41–42.
The Missing Tape
Plaintiff claims that he is entitled to an adverse inference regarding the tape recording of
the hearing held on November 4, 2009, as he was under the impression that Defendants had
erased or lost the original tape. See Dkt. No. 69 at 2. Plaintiff claims to have a partial transcript
of the recording, but not the recording itself. See id. On July 30, 2014, Defendants' counsel
indicated that, contrary to Plaintiff's beliefs, Defendants are in possession of the tape recording,
which is Defendants' trial exhibit five. See Dkt. No. 81. In light of Defendants' representations,
Plaintiff's motion in limine regarding the tape recording is denied without prejudice to renew.
Plaintiff's Criminal History
Plaintiff asserts that Defendants should be precluded from introducing any evidence
concerning his criminal record. See Dkt. No. 69 at 7-9. Plaintiff argues that the prejudicial harm
of revealing his criminal history outweighs any probative value that it would provide. See id. at
Rule 609 of the Federal Rules of Evidence vests broad discretion in the district court
to admit or exclude evidence of prior convictions. See United States v. Pedroza, 750 F.2d 187,
202 (2d Cir. 1984). Rule 609(a) provides that:
(1) for a crime that, in the convicting jurisdiction, was punishable
by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil
case or in a criminal case in which the witness is not
a defendant; and
(B) must be admitted in a criminal case in which the
witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to that
(2) for any crime regardless of the punishment, the evidence must
be admitted if the court can readily determine that establishing the
elements of the crime required proving – or the witness's admitting
– a dishonest act or false statement.
Fed. R. Evid. 609(a).
"The Rule requires district courts to admit the name of a conviction, its date, and the
sentence imposed unless the district court determines that the probative value of that evidence 'is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.'" United States v. Estrada, 430 F.3d 606, 621 (2d Cir. 2005) (quotation
omitted). In "balancing the probative value against prejudicial effect under [Rule 609], 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 820, 828 (2d Cir. 1977)) (other
citation omitted). "Although all of these factors are relevant, '[p]rime among them is [the first
factor, i.e.,] whether the crime, by its nature, is probative of a lack of veracity.'" United States v.
Brown, 606 F. Supp. 2d 306, 312 (E.D.N.Y. 2009) (quoting United States v. Ortiz, 553 F.2d 782,
784 (2d Cir. 1977)). "[C]rimes of violence generally have limited probative value concerning
the witness's credibility' and . . . theft 'crimes have greater impeachment value[.]'" Estrada, 430
F.3d at 618 (quotation omitted).
In the present matter, a review of the New York State Department of Corrections and
Community Supervision website reveals that Plaintiff was convicted of second degree murder
and first degree rape, and he began serving his prison sentence in March 2003. Under New York
law, a person is guilty of murder in the second degree when: (1) "with intent to cause the death
of another person, he causes the death of such person or of a third person;" or (2) "[u]nder
circumstances evincing a depraved indifference to human life, he recklessly engages in conduct
which creates a grave risk of death to another person, and thereby causes the death of another
person[.]" N.Y. Penal Law § 125.25 (McKinney 2006). Moreover, under New York law rape in
the first degree is defined as follows:
A person is guilty of rape in the first degree when he or she
engages in sexual intercourse with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being
physically helpless; or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor
is eighteen years old or more.
N.Y. Penal Law § 130.35 (McKinney 2001).
Considering the factors listed above, the Court agrees with Plaintiff that Defendants
should be precluded from introducing evidence concerning the name and nature of his
convictions for rape and murder. As the Second Circuit has recognized, felony convictions for
crimes of violence frequently have considerably lower probative value since they do not
generally arise out of dishonest conduct. See Estrada, 430 F.3d at 617-18. Given the violent
nature of Plaintiff's convictions, the Court finds that the prejudicial harm of revealing Plaintiff's
criminal history substantially outweighs any probative value that it would provide.
Based on the foregoing, the Court finds that Plaintiff's criminal history is inadmissible
during trial.1 Although Defendants will not be permitted to inquire about the essential facts of
the crimes or their statutory names, Defendants will be permitted to establish that Plaintiff has
been convicted of a crime and the date of that conviction.
After carefully reviewing the entire record in this manner, the parties' submissions and
the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion in limine (Dkt. No. 69) is GRANTED in part and
DENIED in part without prejudice to renew; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 31, 2014
Albany, New York
The Court notes that Defendants did not oppose this portion of Plaintiff's motion in
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