Brandon v. Schroyer et al

Filing 225

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Plaintiff's motion in limine (Dkt. No. 208 ) is GRANTED in part and DENIED in part to the extent set forth in this opinion. Signed by Judge Brenda K. Sannes on 7/19/2021. (nmk)

Case 9:13-cv-00939-BKS-ATB Document 225 Filed 07/19/21 Page 1 of 10

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHAMMA K. BRANDON,
Plaintiff,

9:13-cv-00939 (BKS/ATB)

v.
SUZANNE KINTER, LAWRENCE BEDARD, ROBERT
WEBB, THOMAS PERRY, ERIC BLAISE, KEVIN
LAURIN, MARGARET CLANCY, 1
Defendants.
Appearances:
For Plaintiff
William S. Nolan
Gabriella R. Levine
Whiteman Osterman & Hanna LLP
One Commerce Plaza
Albany, New York 12260
For Defendants
April J. Laws
Johnson & Laws, LLC
646 Plank Road, Suite 205
Clifton Park, New York 12065
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Chamma K. Brandon brings this action against the above-named Defendants

under 42 U.S.C. § 1983, alleging that: (1) they denied Plaintiff his right to the free exercise of

The last names of Defendants Robert Webb and Margaret Clancy appear to be misspelled in the amended complaint
and on the docket. (Dkt. Nos. 17, 77-13, 77-16). The Clerk is respectfully requested to correct the spelling of their
names on the docket.
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religion under the First Amendment by routinely serving Plaintiff meals with pork in derogation
of his religious diet as a Muslim; and (2) that they retaliated against him for filing meal-related
grievances, in violation of the First Amendment. (Dkt. No. 17). A bench trial is scheduled to
commence on August 2, 2021. Presently before the Court is Plaintiff’s motion in limine, (Dkt.
No. 208), which Defendants oppose, (Dkt. No. 218). (See also Dkt. No. 222 (Plaintiff’s Reply)).
The Court heard argument from the parties at the August 19, 2021, final pretrial conference. For
the following reasons, Plaintiff’s motion is granted in part and denied in part.
II.

DISCUSSION
A.

Plaintiff’s Prior Convictions

Plaintiff seeks to preclude Defendants from introducing evidence of his prior felony and
misdemeanor convictions. (Dkt. No. 208-2, at 5–12). Plaintiff argues that: (1) the drug and
weapon felony convictions are not probative of truthfulness and any probative value is
substantially outweighed by the danger of unfair prejudice; and (2) that the misdemeanor
convictions are more than ten years old and are not indicative of Plaintiff’s credibility as he was
twenty-two years old at the time of conviction. (Id.). Defendants oppose Plaintiff’s motion and
argue for admission under Federal Rule of Evidence 609 to impeach Plaintiff’s credibility. (Dkt.
No. 218, at 13–17).
Rule 609(a)(1) of the Federal Rules of Evidence provides that, in a civil case, “subject to
Rule 403,” evidence of a prior conviction “must be admitted” to impeach a witness where the
conviction was “for a crime that . . . was punishable . . . by imprisonment for more than one
year.” Fed. R. Evid. 609(a)(1)(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
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time, or needless presentation of cumulative evidence.’” United States v. Estrada, 430 F.3d 606,
620-21 (2d Cir. 2005) (quoting Fed. R. Evid. 403). Rule 609(a)(2) of the Federal Rules of
Evidence provides that, “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)(2). “The presumption under Rule 609(a)(2) . . . is that the ‘essential facts’ of a witness’s
convictions, including the statutory name of each offense, the date of conviction, and the
sentence imposed, are included within the ‘evidence’ that is to be admitted for impeachment
purposes.” Estrada, 430 F.3d at 615.
2012 Felony Convictions
October 2012 Guilty Plea

•

Criminal sale of a
controlled substance in
or near school grounds,
in violation of N.Y.
Penal Law § 220.44

•

Released: February 2019

Criminal sale of a
controlled substance in
the third degree, in
violation of N.Y. Penal
Law § 220.39

•

Sentence: Unspecified term
of ten years and ten years
post prelease supervision

Criminal Possession of
a controlled substance,
in violation of N.Y.
Penal Law § 220.16

Plaintiff’s 2012 felony convictions appear to fall squarely within Rule 609(a)(1)(A). They
are “punishable . . . by imprisonment for more than one year” and occurred within the last ten
years. Nevertheless, the Court must conduct the “balancing analysis under Rule 403,” Celestin v.
Premo, No. 9:12-cv-301, 2015 WL 5089687, at *2, 2015 U.S. Dist. LEXIS 113511, at *5

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(N.D.N.Y. Aug. 27, 2015); see also Estrada, 430 F.3d at 615–16. The Court notes that drug
crimes generally are “less probative of veracity.” Estrada, 430 F.3d at 617–18. Nevertheless,
because Plaintiff plans to offer his account of the food he was served and Defendants’ conduct in
response to his grievances, the Court will have to assess Plaintiff’s credibility against that of
Defendants, who are expected to testify to a different version of events. Plaintiff’s character for
veracity is therefore a central issue in this case, and the existence of prior felony convictions are
probative of his credibility. Espinosa v. McCabe, No. 9:10-cv-497, 2014 WL 988832, at *5–6,
2014 U.S. Dist. LEXIS 31741, at *16 (N.D.N.Y. Mar. 12, 2014). Accordingly, the Court
concludes that the probative value substantially outweighs any danger of unfair prejudice.
2002 and 2004 Felony Convictions
July 2004 Guilty Plea

December 2002 Guilty Plea

•

•

Attempted criminal
possession of a
controlled substance, in
violation of N.Y. Penal
Law § 220.16

Sentence: Eighteen months to
three years concurrent
confinement

Attempted criminal
possession of a weapon
in the third degree, in
violation of N.Y. Penal
Law §§ 110, 265.02

Sentence: Five years of
probation

Released: November 2005

Given that they are more than ten-years old, the analysis of Plaintiff’s 2002 and 2004
felony convictions under Rule 609 is not so straightforward. Rule 609(b) provides that “if more
than 10 years have passed since the witness’s conviction or release from confinement for it,
whichever is later,” “[e]vidence of the conviction is admissible only if . . . its probative value,
supported by specific facts and circumstances, substantially outweighs its prejudicial effect.”
Fed. R. Evid. 609(b)(1).

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The Second Circuit has “recognized that Congress intended that convictions over ten
years old be admitted ‘very rarely and only in exceptional circumstances.’” Zinman v. Black &
Decker (U.S.), Inc., 983 F.2d 431, 434 (2d Cir. 1993) (quoting S.Rep. No. 1277, 93d Cong., 2d
Sess., reprinted in 1974 U.S.C.C.A.N. (93 Stat.) 7051, 7062). Courts reviewing the admission of
convictions under Rule 609(b) must “‘make an on-the-record finding based on specific facts and
circumstances that the probative value of the evidence substantially outweighs the danger of
unfair prejudice.’” Jones v. N.Y. City Health & Hosps. Corp., 102 F. App’x. 223, 226 (2d Cir.
2004) (quoting United States v. Mahler, 579 F.2d 730, 734 (2d Cir. 1978)). In conducting the
necessary balancing test, “courts in this Circuit consider the following factors: ‘[1] the
impeachment value of the prior crimes, [2] the date of the conviction and the [witness’s]
subsequent history, [3] the degree of similarity between the past crimes and this crime, [4] the
centrality of the [witness’s] credibility in this case, and [5] the importance of the [witness’s]
testimony.’” United States v. Brown, 606 F. Supp. 2d 306, 311–12 (E.D.N.Y. 2009) (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.” Id. (quoting United States v.
Ortiz, 553 F.2d 782, 784 (2d Cir. 1977)).
Plaintiff’s 2002 and 2004 felony drug and weapon convictions did not require proof of or
admission to a dishonest act or false statement and, therefore, do not bear on Plaintiff’s
propensity for truthfulness. As this is a bench trial, the danger of unfair prejudice may be
minimal, but at the same time, given their age and nature, so is their relevance—drug and
weapon convictions are minimally probative of veracity. Estrada, 430 F.3d at 617–18. The Court
therefore concludes that the probative value of these crimes does not substantially outweigh the

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prejudicial effect. Accordingly, the Court grants Plaintiff’s motion to preclude admission of his
2002 and 2004 felony convictions.
2004 Misdemeanor Convictions
August 2004 Guilty Plea

•

Criminal possession of a
controlled substance in the
seventh degree, in violation
of N.Y. Penal Law §
220.03

•

Criminal impersonation in
the second degree, in
violation of N.Y. Penal
Law § 190.25

•

False personation, in
violation of N.Y. Penal
Law 190.23

•

Sentence: Ninety days
concurrent confinement and
$500 fine

Second degree aggravated
unlicensed operation of a
motor vehicle

Of Plaintiff’s 2004 misdemeanor convictions, only criminal impersonation in the second
degree, in violation of N.Y. Penal Law § 190.25 and false personation, in violation of N.Y. Penal
Law 190.23, which require proof of a dishonest act or misrepresentation, have impeachment
value. See Fed. R. Evid. 609(a)(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.”). The
unlicensed operation of a vehicle and drug conviction do not appear to be probative of Plaintiff’s
veracity and the Court concludes that the prejudicial effect substantially outweighs any probative
value. The Court notes that these are the only crimes Plaintiff has been convicted of involving
false statements, that Plaintiff was twenty-two years old at the time of these convictions, (Dkt.

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No. 208-2, at 12), and that there is seventeen years between Plaintiff’s commission of them and
this trial. In light of these factors, the Court finds, on balance, that the probative value of these
convictions is substantially outweighed by the danger of unfair prejudice to Plaintiff from their
admission. Fed. R. Evid. 609(b) (limiting the use of evidence “if more than 10 years have passed
. . . if its probative value . . . substantially outweighs its prejudicial effect”).
Accordingly, Plaintiff’s motion to preclude is granted as to his 2002 and 2004 felony
convictions and 2004 misdemeanor convictions, but is otherwise denied. Plaintiff also requested
that, in the event of admission, the Court limit cross-examination, on the ground of unfair
prejudice, “to the fact that Plaintiff is a convicted felon” and exclude the “names, details of his
offenses, and length of imprisonment.” (Dkt. No. 208-2, at 9). The Court finds little danger of
unfair prejudice in this information. Moreover, “[t]he presumption under Rule 609(a)(2) . . . is
that the ‘essential facts’ of a witness’s convictions, including the statutory name of each offense,
the date of conviction, and the sentence imposed, are included within the ‘evidence’ that is to be
admitted for impeachment purposes.” Estrada, 430 F.3d at 615. Therefore, Plaintiff’s request is
denied and Defendants may introduce evidence of his 2012 felony convictions to impeach
Plaintiff for truthfulness, including “the ‘essential facts’ of [the] convictions, including the
statutory name of each offense, the date of conviction, and the sentence imposed.” Id. 2
B.

Admission of Plaintiff’s November 12, 2012 Disciplinary Report

Plaintiff moves to preclude Defendants from introducing evidence of his CCJ
disciplinary record: “a single isolated disciplinary report/infraction on November 12, 2012,
involving a physical altercation with another inmate.” (Dkt. No. 208-2, at 13). Plaintiff argues it

2
At the final pretrial conference, Defendants withdrew their arguments, (Dkt. No. 218, at 14), that Plaintiff’s prior
convictions were relevant to damages and to impeach his deposition testimony.

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is not probative of veracity, irrelevant to the main issues to be tried, and poses a danger of unfair
prejudice. (Id.). In response, Defendants assert Plaintiff’s disciplinary record directly relates to
his claim of retaliation against Clancy and Blaise. (Dkt. No. 218, at 17).
As part of his retaliation claim, Brandon alleges that Defendants Clancy and Blaise
retaliated against him for filing grievances by exposing him to assault by another inmate—
“Tiny”—by placing Tiny in the cell next to Brandon. See Brandon v. Kinter, 938 F.3d 21, 42 (2d
Cir. 2019). “Tiny was aggressive and had a history of physically attacking another inmate,” and
when Clancy and Blaise instructed Brandon to pick up Tiny’s tray, they “exposed him to
potential assault”: “Tiny spat on Brandon.” Id. Defendants argue that at trial, “in addition to
presenting evidence that they had no prior knowledge of ‘Tiny’ spitting at inmates,” they will
present evidence that the reason Plaintiff was moved to a different unit, was not in retaliation for
filing grievances, but because of his “discipline for a physical altercation with another inmate.”
(Dkt. No. 218, at 17; see also Dkt. No. 122-2 (disciplinary record regarding November 10, 2012
fight with another inmate); Dkt. No. 122-7 (Blaise affidavit discussing Brandon’s transfer to
different cell following fight with another inmate)).
Based on Defendants’ proffer, Plaintiff acknowledged at the final pretrial conference that
the disciplinary infraction may be relevant to support Defendants’ contention that Plaintiff was
moved for a legitimate, penological reason, and not in retaliation for grievances. Plaintiff argues,
however, that the underlying details of the incident are irrelevant and unfairly prejudicial. At the
final pretrial conference, Defendants acknowledged that the underlying details were inadmissible
and withdrew their request to admit such details. Accordingly, the Court will allow evidence of
the November 12, 2012, disciplinary infraction, and will consider the disciplinary record to the

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extent it is relevant to why Plaintiff was moved to a different unit, but will exclude evidence of
the underlying details.
C.

Admission of Plaintiff’s Pending Lawsuits

Plaintiff moves to preclude Defendants from introducing evidence of his two other
pending lawsuits, both of which post-date this lawsuit: Brandon v. Royce, No. 16-cv-05552
(S.D.N.Y.) (civil suit alleging violations of Plaintiff’s right to celebrate an Islamic Holiday,
violations of the Eighth Amendment, and violations of RLUIPA while an inmate at Sing Sing
Correctional Facility), and Brandon v. Alam, No. 18-cv-10158 (S.D.N.Y.) (civil suit alleging
First Amendment retaliation by the Sing Sing Correctional Facility medical physician based on
Plaintiff’s filing of a medical malpractice suit). (Dkt. No. 208, at 2). Defendants respond that
both lawsuits are relevant but that the 2016 lawsuit is particularly relevant as it is so similar “to
the allegations and prayers for relief sought in the instant suit.” (Dkt. No. 218, at 18). Defendants
further argue that they “should be allowed to inquire as to the extent that Plaintiff’s subsequent
incarcerations—leading to two separate civil rights actions—impact the damages he seeks to
recover in the instant matter.” (Dkt. No. 218, at 19). At the final pretrial conference, Plaintiff
indicated that his request for emotional distress damages is limited to the time he spent in Clinton
County Jail. Defendants acknowledged that, absent a request for emotional damages that
extended beyond the time Plaintiff spent at Clinton County Jail, Plaintiff’s two pending lawsuits
were not relevant to this case. Accordingly, Plaintiff’s motion is denied as moot.
III.

CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff’s motion in limine (Dkt. No. 208) is GRANTED in part and

DENIED in part to the extent set forth in this opinion.
IT IS SO ORDERED.
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Dated: _________________
July 19, 2021
Syracuse, New York

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