Celestin v. Premo et al

Filing 115

DECISION AND ORDER: Defendants' Motion to impeach Celestin with his conviction of Aggravated Harassment, Dkt. No. 91 , is DENIED. Signed by Magistrate Judge Randolph F. Treece on 8/27/15. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CLIVENS CELESTIN,
Plaintiff,
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Civ. No. 9:12-CV-301
(RFT)
JEFFREY PREMO; STANLEY TULIP; BRUCE TRUAX;
DAVID ROCK; BRIAN FISCHER; J. CARVER
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Defendants.
RANDOLPH F. TREECE
United States Magistrate Judge
DECISION and ORDER
The Defendants have filed a Motion seeking to impeach Celestin with his
previous convictions. Dkt. No. 91, Defs.’ Mot., dated Aug. 7, 2015. Among

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Celestin’s many convictions, Defendants seek to interrogate him about his March 18,
2002 plea to the felony of Aggravated Harassment of an Employee, in which he
received an indeterminate sentence of 1 ½ to 3 years to run consecutively to his prior
sentence. Id. at p. 4. It appears that the underlying facts for this conviction entail
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Celestin throwing urine and feces at a correction officer while he was imprisoned at
Southport Correctional Facility. Dkt. No. 111, Defs.’ Lt-Br., dated Aug. 25, 2015, at
p. 1. Celestin opposes Defendants’ Motion to use his criminal convictions, including
Aggravated Harassment of an Employee. Dkt. No. 106, Pl.’s Mem. of Law in Opp’n,
dated Aug. 14, 2015.
The Court issued a Decision and Order which addresses Defendants’

Application to use Celestin’s convictions to impeach him at trial. Dkt. No. __, Dec.
& Order, Aug. 27, 2015. Purposely excluded from the Court’s analysis is Celestin’s
2002 conviction of Aggravated Harassment of an Employee because of additional and
ancillary arguments raised by the Defendants. On August 25, 2015, during a
telephonic Hearing, Defendants argued that during the videotaped deposition of
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Defendant Truax, Celestin’s Counsel pursued a line of questioning that they contend
“opened the door” on this very subject matter, and for this reason as well, Defendants
should be allowed to use this conviction in their cross examination of Celestin. In
further support of their position, Defendants filed a Letter-Brief and the deposition
transcript of Defendant Truax. Dkt. No. 111.

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During the Hearing, Celestin’s Counsel posited that he did not open the door
regarding Celestin’s conduct in 2002, but rather was asking wholesale questions as to
how Truax would respond to vile acts perpetrated against him while he served as a
correction officer. Although the Court initially agreed with Defendants that Celestin’s
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Counsel may have opened the door, the Court retreated from that assertion and
reserved on the issue for further analysis.
Without reiterating the Court’s previous recitation of the law and analysis on
FED. R. EVID 609(a)(1) and (2) as it may pertain to Celestin’s multiple convictions,
the Court concludes that throwing feces and urine is not a crime involving crimen falsi
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and has no probative value as to the witness’s credibility. Aggravated Harassment,
in the context of these facts, is more aligned with those crimes of violence and
assaultive behavior that have limited probative value concerning a witness’s veracity.
United States v. Estrada, 430 F.3d 606, 618 (2d Cir. 2005) (citation omitted). For this
reason, Defendants’ request to use this conviction to impeach Celestin is denied.
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Turning to whether, Celestin’s Counsel unwittingly “opened the door” on the
topic of this conviction and the underlying facts, the following testimonial colloquy
is relevant:

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Q: You get angry when an inmate disrespects you, don’t you?
A: No.
Q: You get angry when an inmate throws feces at you?
A: No.
Q: You get angry when an inmate throws urine at you?
A: No.
Q: Do you get angry when an inmate refuses to follow the rules?
A: No.
Dkt. No. 111-1, Def. Truax, Dep., dated Aug. 13, 2015, at pp. 25-26.
Now, admittedly certain elements of the interrogation may tangentially or

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coincidentally reflect similar acts of which Celestin was convicted of in 2002, but the
Court is not certain that Counsel opened the door to introducing Celestin’s conviction.
Ostensibly, Counsel treaded precariously close to the vile acts committed by Celestin
in 2002 . Yet, it appears that the inquiries were generic enough to only elicit
Defendants’ response to similar events. Had Counsel interjected Celestin’s previous
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and specific conduct in throwing feces and urine, the outcome would be much
different. On the Court’s review of the full deposition transcript and these specific
inquiries, the Court finds that Celestin’s Counsel did not open the door for a full
exploration of the conviction and the underlying facts of Celestin’s 2002 conviction
for Aggravated Harassment of an Employee.
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Accordingly, for the above reasons, Defendants’ Motion to impeach Celestin
with his conviction of Aggravated Harassment, Dkt. No. 91, is DENIED.
IT IS SO ORDERED.
August 27, 2015
Albany, New York

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