Somerville v. Saunders et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 82 Motion in Limine and 74 Motion in Limine: The Court hereby ORDERS that, in the event Plaintiff testifies, Defendants may cross-examine him for the purposes of impeaching his c redibility by eliciting evidence of the fact that he is currently incarcerated as a result of prior felony convictions; and the Court further ORDERS that the Clerk of the Court shall serve this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 1/24/2014. (ban, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
J. SAUNDERS, Correction Officer, Great Meadow
Correctional Facility; BEZIO, Correction Officer,
Great Meadow Correctional Facility; A. WHITE,
Correction Officer, Great Meadow Correctional
Facility; LAWRENCE, Correction Officer, Great
Meadow Correctional Facility; M. SAGE, Correction
Officer, Great Meadow Correctional Facility; M.
KUHL, Correction Officer, Great Meadow
Correctional Facility; VANDENBURG, Correction
Officer, Great Meadow Correctional Facility; CROSS,
Correction Officer, Great Meadow Correctional
Facility; and MULLIGAN, Correction Officer, Great
Meadow Correctional Facility,
NAPIERSKI & O'CONNOR, LLP
296 Washington Avenue Ext., Suite 3
Albany, New York 12203
Attorneys for Plaintiff
ANDREW S. HOLLAND, ESQ.
OFFICE OF THE NEW YORK STATE
Albany, New York 12224
Attorneys for Defendants
MELISSA A. LATINO, AAG
JAMES J. SEAMAN, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Pending before the Court are Plaintiff's motion in limine, see Dkt. No. 74, and Defendants'
motion in limine, see Dkt. No. 82. At issue in this Memorandum-Decision and Order is the
admissibility of evidence of Plaintiff's criminal convictions to impeach his credibility.
Plaintiff, a New York State prison inmate, commenced this Section 1983 action against
nine corrections officers employed at Great Meadow Correctional Facility. See Dkt. No. 1. In his
complaint, Plaintiff alleges that he was subjected to an unprovoked attack by Defendants,
violating his rights under the Eighth Amendment to the United States Constitution, and causing
him to sustain injuries requiring medical treatment.
Plaintiff is presently incarcerated, having been convicted of, inter alia, the following
felonies in 1994, which the Defendants now seek to have admitted: Murder in the Second Degree
in violation of N.Y. Penal Law § 125.25; Conspiracy in the Second and Fourth Degrees in
violation of N.Y. Penal Law §§ 105.15 and 105.10; Criminal Facilitation in the Second Degree in
violation of N.Y. Penal Law § 115.05; Robbery in the First Degree in violation of N.Y. Penal
Law § 160.15; Criminal Use of a Firearm in the First Degree in violation of N.Y. Penal Law §
265.09; Criminal Possession of a Weapon in the Second and Third Degrees in violation of N.Y.
Penal Law §§ 265.03 and 265.02; and Hindering Prosecution in the First and Second Degrees in
violation of N.Y. Penal Law §§ 205.65 and 205.60. See People v. Somerville, 249 A.D.2d 687
(3rd Dept. 1998).
The factual circumstances underlying Plaintiff's convictions, to the extent they were
reported by the reviewing court on Plaintiff's direct appeal, are as follows:
On September 5, 1990, defendant [Dionisio Somerville] and Darrell
Thomas conspired to rob Martin McCollum. In accordance with the
prearranged plan, Thomas lured McCollum to a secluded spot in the
City of Schenectady, Schenectady County, where defendant,
masked and armed, robbed McCollum and feigned a robbery of
Thereafter, on October 23, 1990 defendant, pursuant to a
prearranged plan, gave Thomas a .32-caliber revolver and Thomas
lured James Mannix into Vale Cemetery where he shot and killed
Mannix and stole $200 from him. Defendant and Thomas divided
the proceeds of the robbery and shared the considerable stash of
Mannix's drugs that were secreted in Thomas' apartment.
Defendant, in an effort to deflect any suspicion that might be
directed at him, thereafter made anonymous phone calls to the
police, the District Attorney's office and a local television station
advising that he had observed a blue Mercedes-Benz automobile
drive to the entrance of Vale Cemetery, whereupon three black
males exited the vehicle and entered the cemetery. Moments later,
according to defendant, two black males returned to the car and
Shortly after the homicide, defendant was contacted by the police
and on three different occasions over a five-day period variously
stated that he did not know the victim, that he did know the victim
and was with him for a period of time on October 23, 1990 and,
finally, when he last saw the victim on that date, he was climbing
into a blue Mercedes-Benz which then drove away.
In December 1991, defendant was arrested and charged with
numerous sales of cocaine. While in jail pending disposition of the
drug charges, defendant telephoned Investigator Robert McHugh,
who had questioned defendant about the homicide a year earlier,
and offered to act as a confidential drug informant in exchange for
leniency regarding his pending charges. McHugh rejected the offer
but advised that he would be interested in any further information
regarding the Vale Cemetery homicide.
Ultimately, defendant agreed to provide additional information
regarding the homicide as a result of which Bruce Rubin
(defendant's attorney in the pending drug charges), Joseph Aponte
(Rubin's paralegal and defendant's uncle), McHugh, Assistant
District Attorney Phillip Mueller and three additional investigators
met at the District Attorney's office on December 27, 1991. Prior to
any conversation, defendant met privately with his attorney and his
uncle. Defendant then gave a fourth version of his knowledge of the
events of October 23, 1990, in which he added considerable detail
to the third statement he previously had given the police and
described an individual who he claimed was the "shooter". When
defendant was advised that the individual he described had an alibi
for that date, defendant became agitated and the questioning ceased
while defendant consulted privately with his attorney and his uncle.
The meeting reconvened with defendant expressing a desire to
continue. After being advised of his Miranda warnings, defendant
proceeded to give a fifth version of his knowledge of the events of
October 23, 1990. In this version, defendant admitted that his
previous statements had been false. He then advised that he had
loaned Thomas a gun a week before the murder. When defendant
went to Thomas' house to retrieve the gun, Thomas told him he had
shot Mannix in the cemetery. Defendant said that he did not believe
Thomas, but he nevertheless wiped the gun of fingerprints and
threw the gun and clip separately into two sewer drains, the location
of which he described.
After relating this fifth version of events, defendant was advised
that a plea offer would be extended if that version could be verified
to the satisfaction of the District Attorney. In an effort to verify
defendant's story, defendant was asked if he would submit to a
polygraph test and he agreed. Defendant and his attorney further
agreed that defense counsel need not be present during the test
unless a written statement was to be taken. Four days later, on
December 31, 1991, Investigator James Horton met with defendant
for the purpose of administering the polygraph examination. During
the pretest interview, while Horton was questioning defendant
concerning his personal history and explaining how the polygraph
machine worked, defendant broke down, admitted that all of his
prior statements were false and confessed that he had planned and
assisted Thomas in the murder and robbery of Mannix. In response
to questioning by Horton, defendant gave a detailed version of all of
the events leading up to the homicide. A written statement was not
taken, however, due to the absence of defendant's attorney.
Somerville, 249 A.D.2d at 687-89.
Plaintiff seeks to preclude Defendants from introducing (and Defendants seek to have
admitted) testimony and/or documentary evidence of his felony convictions for the purpose of
impeaching his credibility. In the alternative, Plaintiff argues that "if the Court were to hold that
it is proper to inquire about plaintiff's underlying conviction, the defense should be limited to
inquiring into the fact that plaintiff is a convicted felon[.] At the very least, the defense should be
limited to discussing the top count of which plaintiff was convicted." Dkt. No. 85 at 7.1 Plaintiff
argues that the Court should preclude evidence of his felony convictions, which are twenty years
old, because they are not relevant and the prejudicial effect of their admission substantially
outweighs their probative value. Plaintiff contends that these remote convictions have no bearing
on his credibility today. Plaintiff also notes that these convictions were the result of a single
criminal transaction, and if evidence of each conviction is admitted, Plaintiff will suffer prejudice
as a result of the jury learning of the quantity of crimes he was convicted of. In response,
Defendants contend that the felony convictions are probative of Plaintiff's propensity to testify
The parties agree that Federal Rule of Evidence 609 governs the admissibility of criminal
convictions for impeachment purposes in civil actions. Pursuant to this Rule, there are two ways
in which such evidence may be admitted. First, Rule 609(a)(1) provides that, for the purpose of
attacking the credibility of a witness:
[E]vidence that a witness other than an accused has been convicted
of a crime shall be admitted, subject to Rule 403,2 if the crime was
punishable by death or imprisonment in excess of one year under
the law under which the witness was convicted[.]
To avoid confusion, the Court refers to the page numbers assigned by the Electronic
Case Filing system.
Rule 403, in turn, provides:
Although relevant, evidence may be excluded if its probative value
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
In other words:
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.'
Fed. R. Evid. 403. This determination is left to the sound discretion
of the district court.
United States v. Estrada, 430 F.3d 606, 621 (2d Cir. 2005).
"In balancing probative value against prejudicial effect under this rule, 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) (citations omitted). "Although all of these factors are relevant, 'prime 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) (citing United States v. Ortiz, 553 F.2d 782,
784 (2d Cir.1977)).
Second, "evidence that a witness has been convicted of a crime involving 'dishonesty or
false statement' must be admitted [under Rule 609(a)(2)] regardless of the severity of the
punishment or any resulting prejudice." Daniels, 986 F. Supp. at 250 (citing Fed. R. Evid.
609(a)(2)). As a result, "Congress emphasized that the second prong [of Rule 609(a)] was meant
to refer to convictions 'peculiarly probative of credibility,' such as those for 'perjury or
subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any
other offense in the nature of crimen falsi, the commission of which involves some element of
deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.'"
Id. (quoting Conf. Rep. No. 93–1597, reprinted in 1974 U.S.C.C.A.N. 7098, 7103); see also
United States v. Estrada, 430 F.3d 606, 616 n.3 (2d Cir. 2005) (same).
"However, Rule 609(b) contains a time limitation on the admissibility of prior criminal
convictions for impeachment purposes [under either Rule 609(a)(1) or (a)(2)]." Robinson v.
Troyan, No. CV 07–4846(ETB), 2011 WL 5416324, *2 (E.D.N.Y. Nov. 8, 2011). "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)).
"[W]hen convictions more than ten years old are sought to be introduced into evidence pursuant
to Rule 609(b) the district judge should make an on-the-record determination supported by
specific facts and circumstances that the probative value of the evidence substantially outweighs
its prejudicial effect." United States v. Mahler, 579 F.2d 730, 736 (2d Cir. 1978). "Under Rule
609(b), 'convictions over 10 years old should be admitted very rarely and only in exceptional
circumstances,' as ' convictions over ten years old generally do not have much probative value.'"
United States v. Brown, 606 F. Supp. 2d at 313 (quoting Fed. R. Evid. 609(b), Advisory
If a court finds evidence of a prior conviction to be admissible for purposes of
impeachment, the impeaching party "'is generally limited to establishing the bare facts of the
conviction: usually the name of the offense, the date of the conviction, and the sentence.'" Id. at
319 n.8 (quoting 4 Weinstein's Federal Evidence § 609.20 (2d ed. 2008)); see also Estrada,
430 F.3d at 617 ("Rule 609(a)(1) thus contemplates that district courts will admit evidence of the
nature of a witness's prior felony convictions, including the statutory name of the offense, the date
of conviction, and the sentence imposed, subject to Rule 403."). "In the Second Circuit, it is
within the discretion of the district courts to further limit th evidence of the prior conviction to
exclude the nature or statutory name of the offense[, and] a trial court may also exclude evidence
of the length of the sentence when its probative value is outweighed by its prejudicial effect."
Brown, 606 F. Supp. 2d at 312 (citations omitted).
Plaintiff has ten (10) felony convictions which Defendants seek to have admitted as
impeachment evidence, all of which are approximately twenty years old. Thus, as an initial
matter, the Court must decide whether each of Plaintiff's felony convictions is subject to the Rule
609(b) presumption against admissibility for "remote" convictions, or one of the Rule 609(a)
provisions. For those convictions which are not subject to Rule 609(b), the Court must then
decide whether they are subject to Rule 403 balancing, pursuant to Rule 609(a)(1), or whether
they are crimes of dishonesty automatically admissible under Rule 609(a)(2). Finally, depending
on the applicable standard, the Court must then weigh the probative value of these convictions
against the potential prejudice, and rule accordingly.
Federal Rule of Evidence 609(b) states, in pertinent part, as follows:
Limit on Using the Evidence After 10 Years. This subdivision (b)
applies if more than 10 years have passed since the witness's
conviction or release from confinement for it, whichever is later.
Evidence of the conviction is admissible only if [ ] its probative
value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect[.]
Thus, by its terms, Rule 609(b) provides that evidence of a crime is not excludable if the witness
is still incarcerated for that crime. See Blake v. Coughlin, 205 F.3d 1321, 2000 WL 233550, *1
(2d Cir. 2000) (summary order); Eng. v. Blood, No. 9:04-CV-1146, 2008 WL 2788894, *7
(N.D.N.Y. July 17, 2008).
Defendants contend that since Plaintiff is currently incarcerated for an indeterminate
sentence of twenty-five years to life arising from his 1994 felony convictions, the Rule 609(b)
prohibition does not apply. Plaintiff counters by noting that because his sentences for these
convictions ran concurrently, any felony for which the maximum sentence has already expired
should be subject to the Rule 609(b) analysis. That is, but for the contemporaneous felony
convictions for which he is still incarcerated, Plaintiff would have been released from
imprisonment more than ten years ago, making those convictions "remote" for the purposes of the
Rule 609(b) analysis.
"The existence of previous federal case law dealing with this situation in a Rule 609(b)
time-period calculation context is virtually non-existent." United States v. Pettiford, 238 F.R.D.
33, 40 (D.D.C. 2006). Based upon this Court's independent research, the one court that has
considered such a situation credited Plaintiff's argument here. See id. After reviewing the
legislative history of Rule 609(b), the court in Pettiford found that current version of the rule
"'makes clear that confinement for one conviction has no effect on calculating the ten years
applicable to another conviction.'" Pettiford, 238 F.R.D. at 40 (quoting Charles Alan Wright &
Victor James Gold, 28 Federal Practice & Procedure § 6136, at 258059 n.14 (1st ed.1993)).
Accordingly, the court in Pettiford concluded:
Based upon this reasoning, while Defendant was released from
incarceration on December 3, 2004 following his convictions for
second-degree murder while armed and carrying a pistol without a
license, it would be improper to use that date as the starting point
for the remoteness calculation under Rule 609(b) for the pistol
without a license conviction. In short, December 3, 2004 does not
represent the true "release of the witness from the confinement
imposed for that conviction," Fed. R. Evid. 609(b) (emphasis
added), as Defendant was only sentenced on September 9, 1991 to a
one-year term in prison for his pistol without a license conviction,
Pettiford, 700 A.2d at 208–09. Defendant's contemporaneous
second-degree murder while armed conviction, which carried with
it an extensive sentence, cannot be used to "piggyback" his carrying
a pistol without a license conviction into the 10-year limitations
period set out in Rule 609(b). As such, the Court – for the purposes
of the Rule 609(b) analysis – shall consider Defendant's conviction
for carrying a pistol without a license, in violation of D.C.Code §
22–3204(a) (1989), to be a "remote" conviction falling outside of
the presumptive 10–year period set out in Federal Rule of Evidence
Pettiford, 238 F.R.D. at 40.
This Court agrees with Plaintiff and the reasoning adopted by the court in Pettiford. Thus,
the Court must next determine which of Plaintiff's convictions are a "remote" conviction falling
outside of the presumptive ten year period.
As noted above, judgement for the felony convictions at issue was entered against Plaintiff
on January 10, 1994. Somerville, 249 A.D.2d 687. Plaintiff was thereafter sentenced to an
indeterminate term of imprisonment of twenty-five years to life. Id. at 689. Plaintiff is currently
serving an aggregate indeterminate sentence of thirty-six years to life, as a result of these felony
convictions as well as other convictions not at issue here. Since Plaintiff is serving his sentences
concurrently for these various crimes, and the state court record has not been presented to this
Court as part of the parties' motions, the Court must consider the maximum sentences for each of
these crimes under state law.
New York Penal Law § 70.00 sets forth the maximum terms of indeterminate sentences
for felony convictions, as follows:
(a) For a class A felony, the term shall be life imprisonment;
(b) For a class B felony, the term shall be fixed by the court, and
shall not exceed twenty-five years;
(c) For a class C felony, the term shall be fixed by the court, and
shall not exceed fifteen years;
(d) For a class D felony, the term shall be fixed by the court, and
shall not exceed seven years; and
(e) For a class E felony, the term shall be fixed by the court, and
shall not exceed four years.
Thus, for each felony conviction, the Court must calculate when Plaintiff would have completed
his "Maximum Term" for each conviction, assuming that he was not serving a sentence for any
other conviction, and then determine whether an additional ten years has passed since that time.
Depending on this "Expiration Date," the Court can then decide whether the conviction is
"Remote" for the purposes of Rule 609(b). For ease of understanding and reference, the Court
has summarized its findings in the table below:
N.Y. Penal Law § 125.25 (Class A)
N.Y. Penal Law § 105.15 (Class B)
N.Y. Penal Law § 105.10 (Class E)
N.Y. Penal Law § 115.05 (Class C)
N.Y. Penal Law § 160.15 (Class B)
N.Y. Penal Law § 265.09 (Class B)
N.Y. Penal Law § 265.03 (Class C)
N.Y. Penal Law § 265.02 (Class D)
N.Y. Penal Law § 205.65 (Class D)
N.Y. Penal Law § 205.60 (Class E)
Based on the foregoing, the Court finds that Plaintiff's convictions under N.Y. Penal Law
§ 105.10, N.Y. Penal Law § 265.02, N.Y. Penal Law § 205.65, and N.Y. Penal Law § 205.60 are
"remote" under Rule 609(b) and presumptively inadmissible. As to Plaintiff's convictions under
Since Plaintiff is currently incarcerated, and the maximum sentence for his murder
conviction under Penal Law § 125.25 is life in prison, it is impossible for this sentence to have
A conviction of Criminal Use of a Firearm in the First Degree imposes a five year
sentence to be served consecutively to the underlying Class B felony conviction. N.Y. Penal Law
N.Y. Penal Law § 125.25, N.Y. Penal Law § 105.15, N.Y. Penal Law § 115.05, N.Y. Penal Law §
160.15, N.Y. Penal Law § 265.09, and N.Y. Penal Law § 265.03, the Court must next determine
whether they are subject to Rule 609(a)(1) balancing or presumptively admissible as crimes of
dishonesty under Rule 609(a)(2).
Crimes within the scope of Federal Rule of Evidence 609(a)(2) are those indicative of
truthfulness, such as "perjury, false statement, fraud, or offenses in the nature of crimen falsi
which involve deceit, untruthfulness, or falsification." Eng v. Scully, 146 F.R.D. 74, 78 (S.D.N.Y.
Feb. 1, 1993) (citing Fed. R. Evid. 609 Senate and House Conference Committees' report).
"While much successful crime involves some quantum of stealth, all such conduct does not, as a
result, constitute crime of dishonesty or false statement for the purposes of Rule 609(a)(2)."
Estrada, 430 F.3d at 614 (citing United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977)). A
party "desiring to take advantage of automatic admission of a conviction under the second prong
must demonstrate to the court that a particular prior conviction rested on facts warranting the
dishonesty or false statement description." Hayes, 553 F.2d at 827 (quotation and citation
omitted). Application of Rule 609(a)(2)
requires that the proponent have ready proof that the conviction
required the factfinder to find, or the defendant to admit, an act of
dishonesty or false statement. Ordinarily, the statutory elements of
the crime will indicate whether it is one of dishonesty or false
statement. Where the deceitful nature of the crime is not apparent
from the statute and the face of the judgment – as, for example,
where the conviction simply records a finding of guilt for a
statutory offense that does not reference deceit expressly – a
proponent may offer information such as an indictment, a statement
of admitted facts, or jury instructions to show that the factfinder had
to find, or the defendant had to admit, an act of dishonesty or false
statement in order for the witness to have been convicted.
Fed. R. Evid. 609, Advisory Committee's Note).
The Court has relatively limited factual information regarding whether such convictions
were predicated on a dishonest act or false statement. The only facts proffered by Defendants in
this regard are certain conclusory representations in Defendants' memorandum of law, and those
set forth in the reported decision following Plaintiff's direct appeal of his conviction, see
Somerville, 249 A.D.2d 687. The Court may, of course, take judicial notice of the fact of
Plaintiff's convictions, pursuant to Federal Rule of Evidence 201. See Clear Blue Water, LLC v.
Oyster Bay Mgmt. Co., LLC, 476 B.R. 60, 62 (E.D.N.Y. 2012) (collecting cases). However, it is
not clear that the appellate decision on Plaintiff's direct appeal of his convictions is the form of
evidence contemplated by the notes to Rule 609. Moreover, since the factual recitation in the
appellate decision was for the purposes of reviewing the constitutionality of Plaintiff's conviction
and it does not necessarily identify which facts underlie which elements of which offenses, it is of
limited utility in this analysis.
Thus, the Court must look to the elements of the relevant offenses as provided by statute.
Having reviewed the elements of each of the crimes subject to Rule 609(a), the Court concludes
that none of these crimes require proving a dishonest act or false statement. See N.Y. Penal Law
§ 125.25(3)5; N.Y. Penal Law § 105.156; N.Y. Penal Law § 115.057; N.Y. Penal Law § 160.158;
N.Y. Penal Law § 125.25(3) provides as follows:
A person is guilty of murder in the second degree when[:] Acting
either alone or with one or more other persons, he commits or
attempts to commit robbery, burglary, kidnapping, arson, rape in
the first degree, criminal sexual act in the first degree, sexual abuse
in the first degree, aggravated sexual abuse, escape in the first
degree, or escape in the second degree, and, in the course of and in
furtherance of such crime or of immediate flight therefrom, he, or
another participant, if there be any, causes the death of a person
other than one of the participants[.]
N.Y. Penal Law § 105.15 provides as follows:
N.Y. Penal Law § 265.099; N.Y. Penal Law § 265.0310. Moreover, federal case law makes clear
A person is guilty of conspiracy in the second degree when, with
intent that conduct constituting a class A felony be performed, he
agrees with one or more persons to engage in or cause the
performance of such conduct.
N.Y. Penal Law § 115.05 provides as follows:
A person is guilty of criminal facilitation in the second degree
when, believing it probable that he is rendering aid to a person who
intends to commit a class A felony, he engages in conduct which
provides such person with means or opportunity for the commission
thereof and which in fact aids such person to commit such class A
N.Y. Penal Law § 160.15 provides as follows:
A person is guilty of robbery in the first degree when he forcibly
steals property and when, in the course of the commission of the
crime or of immediate flight therefrom, he or another participant in
1. Causes serious physical injury to any person who is not a
participant in the crime; or
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a dangerous instrument;
4. Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm[.]
N.Y. Penal Law § 265.09 provides as follows:
(1) A person is guilty of criminal use of a firearm in the first degree
when he commits any class B violent felony offense as defined in
paragraph (a) of subdivision one of section 70.02 and he either:
(a) possesses a deadly weapon, if the weapon is a loaded weapon
from which a shot, readily capable of producing death or other
serious injury may be discharged; or
(b) displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm.
N.Y. Penal Law § 265.03 provides as follows:
A person is guilty of criminal possession of a weapon in the second
that murder, conspiracy, robbery, and weapons possession charges are not the types of crimes
contemplated within the scope of Rule 609(a)(2). See Hayes, 553 F.2d at 827 (noting that "crimes
of force, such as armed robbery or assault, or crimes of stealth, such as burglary or petit larceny,
do not come within" Rule 609(a)(2)) (internal citations omitted); DePonceau v. Murray, No.
9:09-CV-0605, 2013 WL 4039421, *3 (N.D.N.Y. Aug. 7, 2013) ("Plaintiff is correct to the extent
he argues that the conviction is not admissible under Fed. R. Evid. 609(a)(2), because establishing
the elements of the crime of conspiracy to murder does not require proving – or Plaintiff's
admitting – a dishonest act or false statement) (citing N.Y. Penal Law §§ 105.15, 105.05);
Reed-Bey v. Pramstaller, No. 06-10934, 2013 WL 5954424, *3 (E.D. Mich. Nov. 7, 2013) ("The
remaining convictions for murder, felony firearm, and concealed weapons, are not crimes of
dishonesty and do not fall within 609(a)(2). Courts have determined that convictions for crimes of
force or violence do not fall within Rule 609(a)(2).").
Having concluded that these convictions are not presumptively barred under Rule 609(b),
and not presumptively admissible under Rule 609(a)(2), the Court must now undertake the
balancing of factors required under Rule 609(a)(1).
As to the first factor, although "Rule 609(a)(1) presumes that all felonies are at least
(1) with intent to use the same unlawfully against another, such
(a) possesses a machine-gun; or
(b) possesses a loaded firearm; or
(c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm. Such possession shall
not, except as provided in subdivision one or seven of section
265.02 of this article, constitute a violation of this subdivision if
such possession takes place in such person's home or place of
somewhat probative of a witness's propensity to testify truthfully," Estrada, 430 F.3d at 617, "all
Rule 609(a)(1) felonies are not equally probative of credibility," id. at 618. Convictions for
murder, conspiracy, robbery, and weapons possession are generally not particularly probative as
to honesty or veracity. See id. at 617-18 (noting that convictions for violent or assaultive crimes
generally do not relate to credibility). However, "'crimes requiring planning or preparation bear
more strongly on veracity than violence alone suggests because planning indicates deliberate and
injurious violations of basic standards rather than impulse or anger, and usually it involves some
element of deceiving the victim.'" Id. (citation omitted). Moreover, "'theft' crimes, as well as
'crimes that involve evasions of responsibility or abuse of trust,' rank 'high on the scale of
probative worth on credibility.'" Robinson, 2011 WL 5416324, at *2 (quoting Estrada, 430 F.3d
at 618). Therefore, the impeachment value of the prior convictions weighs in favor of admitting
As to the second factor, it is settled that "the 'probative value of a conviction decreases as
its age increases.'" Twitty v. Ashcroft, No. 3:04cv410(DFM), 2010 WL 1677757, *2 (D. Conn.
Apr. 23, 2010) (quoting 4 Weinstein's Federal Evidence, § 609.05[d] at 609-41 (2d ed. 2010)).
Since these convictions are undisputably twenty years old, it is clear that this factor significantly
diminishes the probative value of Plaintiff's convictions.
"The third criterion, similarity of the crimes, deals with the similarity of the charged
crimes, or the incident at issue in the pending case, to the conviction. The less similar the pending
case to the prior conviction, the less prejudicial its admission is." Stephen v. Hanley, No. 03-CV6226 (KAM)(LB), 2009 WL 1471180,*5 (E.D.N.Y. May 21, 2009). On the other hand, a
conviction for a crime that bears a close resemblance to actions alleged in the current case might
cause "unfair prejudice to the party against whom they are offered by suggesting that the party
has a propensity to commit such acts." Lewis v. Velez, 149 F.R.D. 474, 483 (S.D.N.Y. 1993).
Here, Defendants' own arguments militate toward of a finding of unfair prejudice:
These convictions reveal plaintiff to be an individual with a
profound disregard for human life. It follows that if his conscience
is not constrained by the sanctity of life when pursuing his own
agenda, the concept of truth will provide no impediment. Moreover,
underlying precepts of Rule 609 are furthered when considering
that plaintiff deliberately participated in murdering the victim for
the express purpose of concealing his related criminal activity.
Dkt. No. 82 at 8. Plaintiff argues that "the only plausible effect that plaintiff's twenty-year-old
convictions could have would be to urge the jury to disbelieve plaintiff simply because he is a
dangerous criminal. [ ] Worse yet, because the fact that the underlying crimes included [sic]
second-degree murder and violent felonies [ ], there is the clear danger that the jury may deduce
that the underlying convictions illustrate a propensity to commit violence[.]" Dkt. No. 85 at 5. A
similar argument was made in Lewis v. Velez, 149 F.R.D. 474 (S.D.N.Y. 1993). As in this case,
the plaintiff in Lewis was an inmate who alleged that the defendant correction officers used
excessive force. The plaintiff sought to preclude admission of his prior assault conviction
because he feared its admission would result in undue prejudice. The court agreed, finding that
[g]iven the facts of the current case, assault convictions skirt too
close to the impermissible suggestion that the plaintiff had a
propensity toward violence and acted in conformity with his
aggressive predisposition. Informing the jury that [plaintiff] has
been convicted for a prior assault would be unacceptably
prejudicial. Thus, while the fact that [plaintiff] is a convicted felon
serving a sentence of eleven years to life may be elicited, the charge
on which he was convicted may not.
Lewis, 149 F.R.D. at 483.
The danger in this case, as in Lewis, is that the nature of Plaintiff's convictions might
unfairly bias the jury against him. The Court is persuaded that the jury is likely to draw the
inference from the nature of Plaintiff's convictions that he has the propensity to engage in violent
behavior. See Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 544 (E.D.N.Y. 2011); Twitty,
2010 WL 1677757, at *2. Thus, the danger of unfair prejudice weighs heavily against admitting
Finally, it is undisputed that the plaintiff's credibility is a central issue in this case.
"[W]here the credibility of a given witness is particularly important because there is little other
documentary or supporting evidence and 'success at trial probably hinges entirely on [the
witness's] credibility with the jury,' the fourth factor weighs in favor of admission of the prior
conviction." Jean-Laurent, 840 F. Supp. 2d at 544. Therefore, this factor weighs in favor of
admitting the convictions for impeachment purposes pursuant to Rule 609. See, e.g., id.;
Robinson, 2011 WL 5416324, at *2.
In addition to the factors discussed above, the Court must also consider the standard Rule
403 factors: "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. While most of these
considerations are incorporated into the Rule 609(a) factors discussed above, it is worth noting
that the factors of undue delay, wasting time, and cumulative evidence militate against admitting
evidence of each of Plaintiff's felony convictions and the details thereof. The fact that the
Plaintiff is a convicted felon, and that the circumstances underlying the instant matter arose while
he was incarcerated, are sufficient to impeach his credibility. A recitation of Plaintiff's criminal
history would be cumulative, and thus, unduly prejudicial.
Based on the foregoing considerations, the court finds that the probative value of the fact
of Plaintiff's felony convictions outweighs the prejudicial effect of this evidence. "As plaintiff's
complaint concerns events that occurred during his incarceration [ ], the jury will be informed that
plaintiff has been convicted of a crime by the very nature of the case." Young v. Calhoun, No. 85
CIV. 7584, 1995 WL 169020, *4 (S.D.N.Y. Apr. 10, 1995). Admission of the fact of his prior
convictions thus will cause minimal added prejudice. However, the probative value of the name,
nature, and number of the convictions as well as the date and the sentence imposed is
substantially outweighed by the danger of unfair prejudice. Accordingly, evidence as to the fact
that Plaintiff is currently incarcerated on the basis of felony convictions is admissible; the names,
nature, number dates, and sentences of the convictions are not.11 See Giles v. Rhodes, No. 94
CIV. 6385(CSH), 2000 WL 1510004, *1 (S.D.N.Y. Oct. 10, 2000) ("numerous courts have
exercised their discretion to admit evidence of the fact that a witness has been convicted of a
felony while barring evidence of the underlying details of the offense"); see also Brown, 606 F.
Supp. 2d at 312 ("In the Second Circuit, it is within the discretion of the district courts to further
limit the evidence of the prior conviction to exclude the nature or statutory name of the offense.");
Livingston v. Lee, No. 9:04-cv-00607(JKS), 2007 WL 3197517, *1 (N.D.N.Y. Oct. 26, 2007) (in
a Section 1983 case brought by prisoner plaintiff, court precluded evidence of "particular crime
for which [plaintiff] was convicted or his sentence"); Clem v. Lomeli, No. 2:05cv02129 (JKS),
2007 WL 2688842 (E.D. Cal. Sept. 13, 2007) (in excessive force case brought by prisoner
plaintiff, evidence limited to the fact that plaintiff was convicted of a felony); Giles, 2000 WL
1510004, at *1 (in excessive force case brought by prisoner plaintiff, defendants permitted to
Admission of Plaintiff's "remote" convictions that are subject to the Rule 609(b)
presumption of inadmissibility requires a greater showing of probative value than those analyzed
under Rule 609(a)(1). Brown, 2009 WL 728448, *4 ("Although the factors considered in
balancing the evidence's probative value against its prejudicial effect are the same as those
considered under Rule 609(a),the heightened standard of Rule 609(b) requires that the evidence
has a greater probative value than that required under Rule 609(a)."). Pursuant to this ruling,
Defendants will be permitted to admit evidence that Plaintiff was convicted of multiple felonies.
Thus, introduction of evidence of the "remote" convictions subject to Rule 609(b) would be, by
definition, needlessly cumulative. Accordingly, and in light of the heightened showing of
probative value required under Rule 609(b), such evidence is admissible to the same extent as the
rest of Plaintiff's convictions.
cross-examine plaintiff "concerning the fact that he is a convicted felon sentenced to more than
one year in prison" but not as to acts and circumstances of his conviction and length of his
sentence as that evidence "poses a danger of unfairly prejudicing the jury").
Of course, in the event Plaintiff opens the door on this issue, by attempting to bolster his
own credibility or raising the issue of his underlying convictions, Defendants will be permitted to
cross-examine him on the relevant details of these convictions.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that, in the event Plaintiff testifies, Defendants may cross-examine him for the
purposes of impeaching his credibility by eliciting evidence of the fact that he is currently
incarcerated as a result of prior felony convictions; and the Court further
ORDERS that the Clerk of the Court shall serve this Order on all parties in accordance
with the Local Rules.
IT IS SO ORDERED.
Dated: January 24, 2014
Albany, New York
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