Pemberton et al v. City of New York et al

Filing 162

ORDER: It is hereby ORDERED that the rulings shall apply to any deposition testimony offered on behalf of witnesses Reddick and Gant during the trial. (Signed by Judge Lorna G. Schofield on 11/13/2023) (mml)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------ X : DR. CLYDE PEMBERTON, : Plaintiff, : -against: : CITY OF NEW YORK, et al., : Defendants. : ------------------------------------------------------------ X 18 Civ. 7908 (LGS) ORDER LORNA G. SCHOFIELD, District Judge: WHEREAS, on November 10, 2023, the parties submitted the attached deposition designations for unavailable witnesses Kasseem Reddick and Gizelle Gant. The parties’ objections and responses, as well as the Court’s rulings on those objections, are noted in the margins. It is hereby ORDERED that the rulings shall apply to any deposition testimony offered on behalf of witnesses Reddick and Gant during the trial. Dated: November 13, 2023 New York, New York 22 G. GANT 1 Q. -- to the 911 operator rather? 2 A. No. 3 Q. So these women are hurling these racial slurs. 4 A. 6 remember. 7 Q. 9 10 11 12 13 14 15 The testimony at 22:18-23 is directly relevant to the state of the women who were allegedly prevented from leaving MIST. Was anyone responding? 5 8 I don't recall. I'm sure they were. I'm sure, but I don't Were there any other patrons at the establishment Defendants also object to that were still there at that point? 22:18-23:8 on relevance grounds. The specific alleged elseofthat we No. I don't remember seeing anyone A. actions the complainants toward this non-party witness had to worry about because I know I probably would have are not relevant to the probable worried about those patrons and making sure assessment they wouldof have cause, are cumulative of other testimony from this witness gotten out. and others, and potentially Q. Do you recall what event or events confusing were going to the on jury given the lack of clarity as to what that night? events the witness is describing I don't remember. A. 16 Q. 17 incident? 18 A. What's the next thing that you recall from that OVERRULED. I do believe we got somebody on the phone, 911 or 19 whoever, a dispatcher to come, and I was like okay. 20 I'm going back into this whole situation . 21 that's happened -- the older one is sitting in the chair 22 now I do believe, and I'm asking if she needs water and 23 trying to defuse the situation asking the other two does 24 she need water, let's just focus on her right now, what 25 does she need because she looks a mess. DIAMOND REPORTING (877) 624-3287 22 Then There's a chair She's about to, 27 G. GANT Plaintiff opposes Defendants' objection, which gives no basis for any arguments as to relevance, hearsay, or prejudice. The testimony is directly relevant to the state of the complaining witnesses when Defendants believed they had probable cause, and none of the testimony is being offered for the truth of the matters asserted. 1 A. I don't recall. 2 Q. Okay. 3 When you go outside you described the scene at mayhem? 4 A. Yes. 5 Q. What do you mean by that? 6 A. The police are there, we're trying -- I see 7 people trying to explain excitedly what's happening, what's 8 going on. 9 happening a little to the left. That sort of -- if you're exiting it's sort of To the right the EMTs are 10 there and some police and EMTs are laughing because the 11 brown haired woman is pushing, and calling them names, and 12 fighting them. 13 into the ambulance and she's like I'm not doing anything 14 and running around, pushing them, doing all this other 15 stuff. And they're saying that she needs to get OVERRULED. And they're laughing and they think it's funny. Defendants object to 27:2-15 ; She was pushing the police and EMTs? Fed. R. Evid. 402, 403, and 802. This description of events which Mm-hmm. occurred after the commission of is not relevant to the Both the police and EMTs or one the or events the other? assessment of probable cause, I'm not quite sure. contains speculation as to the state of mind of unidentified Okay. persons, and is potentially confusing due to the vagueness of Somebody in uniform she was pushing. the events described. 16 Q. 17 A. 18 Q. 19 A. 20 Q. 21 A. 22 Q. Okay. 23 A. And everybody was laughing. The blonde haired 24 one, her back was against the wall and she was being very 25 quiet and just looking like she wanted to cry. DIAMOND REPORTING (877) 624-3287 27 Which is 31 G. GANT Plaintiff opposes Defendants' objection, which gives no basis for any arguments as to relevance, hearsay, or prejudice. The testimony is directly relevant to the information the Defendants had when they arrested Plaintiff, and thus the state of mind of the Defendants at the time Plaintiff was arrested, which is not hearsay. See, e.g., Guerrero v. City of New York, No. 14-CV-8035 (VSB), 2018 WL 4333985, at *9 (S.D.N.Y. Sept. 11, 2018). 1 everyone was -- everyone was heightened, so I'm not quite 2 sure what she said, how she said it. 3 just whatever. She could have been I'm not sure. 14 I know you don't remember who you spoke to, but Defendants object to do you recall what you said when you spoke to the person 31:4-15; Fed. R. Evid. 402, who was the police officer? 403, and 802. What Paraphrasing? A. this witness said to an Sure. Q. unidentified officer is not Okay. Sorry about that. A. relevant to That's okay. It's two years ago. Q. I get it. the assessment A. That we called them, we were trying to get them of probable cause nor is here for a while, and these women were doing X, Y, and Z. her opinion They were pushing, kicking, they were hurling abuses, and as to the fairness of this is -- and you guys are going to go and arrest whoever.the arrests. 15 This is not fair. 4 5 6 7 8 9 10 11 12 13 16 17 Q. Q. And it just became something else. OVERRULED. So was that a conversation you had after Mr. Debnam and Mr. Baptiste had been arrested? 18 A. Yes. 19 Q. And had Dr. Pemberton already been arrested when 20 you had that conversation? 21 A. Yes. 22 Q. Did you ever come to see that the blonde woman 23 was arrested? 24 A. Yes. 25 Q. Okay. DIAMOND REPORTING What did you see in terms of that? (877) 624-3287 31 10 KASSEEM REEDICK Plaintiff opposes the objection and disagrees with the proposed alternative. The testimony is directly relevant to the state of the women who were allegedly prevented from leaving. Any out of court statements in the statement are not offered for the truth of the matters asserted, but in the alternative, are not grounds to exclude the rest of the testimony. 1 A. Yes. 2 Q. Do you recall if they left a tip? 3 A. Yes. 4 Q. While they were sitting there, did you overhear 5 6 7 8 9 10 11 12 13 14 15 16 any of their conversation, that you can remember? Defendants object to 10:15-11:9; Fed. R Evid. 402, 403, and 802 (implicates hearsay statements of others). The because she was the one ordering the rounds. So, she was thrust of this testimony concerns this witness coming to speak to me, I don't remember information exactly which one purports to have learned about the complainants it was or exactly what she was talking about. from unidentified persons at an unknown time. To the extent this is But, it was, like, good energy. You tell offered as could evidence of the complainants' state it is clearly offered that something was going on because they kept buying each for the truth of the matter asserted. admissible of this other drinks like they was buying round The after roundportions and designation are largely duplicated at round. So, they was having a good time,11:12-12:2, I don't which knowdefendants propose as an alternative. A. Well, one of the ladies was talking to go me exactly what was going on. Q. Let me ask you this, can you briefly describe any Objection sustained from 10:22 (“But something . . .) to 11:6. I think one was short and heavyset and two was Otherwise overruled. of them sitting here today, what they looked like? 17 A. 18 slim. 19 -- I don't think I would be able to exactly remember 20 seen them. 21 I can't remember hair, but like I wouldn't be able if I It might come back to me like oh, yeah. I was with them most of the night because they 22 was at the bar, but something that took place that wasn't 23 really known about originally is that they was drinking 24 before they came to the main bar. 25 cafe originally first and we didn't find out until after DIAMOND REPORTING (877) 624-3287 10 They was drinking in the info@diamondreporting corn 11 KASSEEM REEDICK 1 the incident happened. 2 And people was talking about what happened, that 3 I found out that before they even came to the main bar and 4 this is the reason why I believe they were intoxicated on 5 the level they was because they had a few rounds before 6 they even made it to the main bar 7 And I know with me they had at least four or five 8 rounds because their bill was at least a hundred and 9 something dollars and I know she tipped me at least $20 10 Q. Do you remember which one paid the bill? 11 A. I believe 12 Q. So, they've been described to me by other people Objection sustained re 11:12 18; Otherwise overruled. it was the heavyset one. 13 as a blonde one with blonder straight hair, curly haired 14 woman who someone told me looked like she might have been 15 Mexican and the third one like older, 16 of the three. 17 like, was the oldest That's how they've been described to me. I'm not representing that that's what they 18 actually look like, 19 that comport with your general recollection of them? 20 A. but based on those descriptions, does Yeah, I think one of them I thought was Spanish, 21 yes, but I wouldn't be able to give you -- like, it was a 22 long time ago. 23 incident I actually remember, but I try and be tentative 24 with the customers especially if they are tipping trying to 25 remember if they come back, to give them the same good The only reason is because there was an DIAMOND REPORTING (877) 624-3287 11 info@diamondreporting. com 14 KASSEEM REEDICK 1 was drinking a white wine and they went one round, two 2 rounds, three rounds and then later on they was there Plaintiff opposes 3 the objection. 4 The 5 objection as to the 6 testimony "tak[ing] the form of 7 a 8 narrative" is not a 9 proper ground to 10 exclude 11 the testimony. Any out of court statements in the testimony are not offered for the truth of the matters asserted, but in the alternative, are not grounds to exclude the rest of the testimony. talking, laughing for the whole night. Q. And at some point there was, I'm calling it an incident? A. Yes. Q. Tell me what you remember of what happened? A. Okay. So, I remember one of the young ladies I believe her name was -- her -- I don't know her real name, but one of the girls that worked there her name was Luna. She came to me and asked me for 12 and I asked her, 13 of the female 14 influence in the bathroom and they need water. " 15 her the water. 16 "what's going on?" a bottle of water And she was like, -- one of the customers Then one of the other girls Defendants object to 14:8-15:18 as it contains hearsay and takes the form of a narrative. "one they're under the So I gave came and was like, 17 "they need a cab, do you know a New York cab number?" 18 from New Jersey so I didn't know, so I asked somebody else 19 and then one of the owners, Ms. Long, Jackie Long, she came 20 to the bar and told me to give her a bottle of water as 21 23 well and told me that one of the patrons was in the Objection sustained from 14:18 to bathroom and that they was under the influence. 14:24 to “shape.” Otherwise overruled. They was discombobulated. They couldn't 24 physically move, they was in bad shape. 25 basically cleaning up the bar, wrapping up for the night 22 DIAMOND REPORTING (877) 624-3287 14 I'm So, I was info@diamondreporting. com 20 KASSEEM REEDICK 1 A. They just -- there wasn't really a say anything 2 situation. 3 suppose to leave because this lady needs medical treatment. 4 It was basically Dr. Pemberton said they're not These ladies trying to take this lady out without 5 getting medical treatment, 6 the owner of the establishment, most places you assume that 7 once somebody drop like that 'cause on numerous occasions I 8 had paid for Ubers out of my own pocket or gotten people 9 water and made sure they were safe and good before they 10 so basically everybody -- he's left. 11 So, when he said it, we just assumed that 12 whatever he said was right. 13 educated. He's a doctor, 14 treatment, so that's what we was persuing to try and get 15 her the medical 16 Q. He's an owner, he's very he said she needed medical treatment she needed. The women who were trying to leave that they were 17 preventing -- that he was preventing from leaving, 18 the real sick woman or the other 19 MS. SAYLOR: 20 MS. FUDIM: 21 22 Q. 25 Objection. Objections in the transcript should not be included. Exclude 20:16-20, 20:23-21:5. I'll rephrase the question. Who was it that you saw him physically try to prevent from leaving? 23 24 women? was that MS. SAYLOR: A. Objection, you can answer. Wait, say the question the again, that objection just distracted me. DIAMOND REPORTING (877) 624-3287 20 info@diamondreporting. com 24 KASSEEM REEDICK 1 Q. What -- I didn't 2 3 4 So, you felt like whatever the police officer said to you might be trouble, A. Yes. so you went back inside? And this was basically now at this point 5 everybody was outside and the lady was in the ambulance. 6 She was causing some type of disturbance at that point with 7 the ambulance people. 8 9 10 11 Q. officer When you talked to the -- well, inside A. officer did you talk the or outside? I talked to the officer -- I remember talking an outside. 12 Q. Was it the white shirt or a different one? 13 A. No. 14 other officers. 15 was about 16 Q. Plaintiff 17 opposes 18 the objection. 19 The testimony is 20 not speculation, 21 and rather describes 22 the declarant's 23 observations. follow all the hes. 24 25 It wasn't the white shirt, it was one of the He had a jacket on that night I believe he to officer. And did he ask you any questions about, like, what these ladies were drinking or if any of, like, had taken anything that you saw or anything about that? A. No. Defendants object to 24:20-25:3 with any of the officers? as to A. Yes. He was speaking to the police. I seen him speculation as to the trying to explain that he was the owner and stuff like intentions of the that plaintiff and police When Dr. Pemberton was talking to them, they officers. Q. Did you see Dr. Pemberton have a conversation DIAMOND REPORTING (877) 624-3287 24 OVERRULED. info@diamondreporting. com 31 KASSEEM REEDICK What's Joel' s 1 (929) 363-6602. 2 A. 3 Q. And he was working that night? 4 A. Yes. 5 Q. But, you don't know if he was bartending that 6 7 night? A. No, he wasn't bartending -- I don't -- no, he's a 8 bartender now, he wasn't a bartender then. 9 for maintenance 10 11 closed Q. 12 Plaintiff objects to 31:19-21 as hearsay. contact? that's at how I the time because we are He was working the ones that remember. Because the two of you closed. Did you hear -- so, other people who were there 13 that night have told us, you know, come in and met with us 14 and some people have said that the women were hurling like 15 racial slurs -- 16 A. They were 17 Q. -- did you hear that? 18 19 20 21 OVERRULED. 22 23 24 25 31:19-21 is not hearsay A. Yeah, I know that for a fact, that's true. as it is a literal That's one hundred percent true. It started with something description of a word --it wasn't something I was familiar with, it was the witness something with a G or something. heard used and is And when she said it, that was another thing offered as evidence of that, like, shook the room, "okay, we're going that way his with it. " When you hear something racist, it's like, how observations , not the do you want to deal with it. Do you want to be angry and truth of the statement being DIAMOND REPORTING (877) 624-3287 info@diamondreporting. com described. 31 32 KASSEEM REEDICK 1 be hostile about it or do you just want to brush it away. 2 was, like, oh. It wasn't 3 towards me, it was towards Dr. Pemberton, but we all felt 4 it. 5 6 Plaintiff objects to 32:7-14 as hearsay. So, when it was said it 7 8 9 10 OVERRULED. 11 12 13 14 15 16 17 18 19 It was, like, okay. Q. And you said the word was one you didn't even know the word? 32:7-14 is not A. I knew it was racist, but I hadn't heard it in a hearsay as the while Like, you don't hear unless you're watching witness is something, like I try not to be around people that believe describing his observatio or live like that. ns and So, when I heard it, I was like, "Oh, " it was knowledge, not like I hadn't heard this in a while. Like, wow, that's relaying an out of where you're going with it. It wasn't the N word, it was court something else. It was something I don't remember what it. statement for the truth of Q. Which one of three women said it? its A. If I had to guess. contents. Q. I don't want you to guess, if you don't know, you could say you don't kn. A. I don't know, but I think it was the same one 20 that hit Doc because she was in his face, she set it off 21 basically 22 Q. 23 24 25 Well, what was the affect of that, what was Dr. Pemberton's A. reaction to that? His face got -- like, his fate was real serious. He just looked like and everybody kind of looked around DIAMOND REPORTING (877) 624-3287 32 info@diamondreporting. com 38 KASSEEM REEDICK 1 2 Q. Just to clarify, you never saw anyone blocking the women in exiting through the bar door? 3 MS. FUDIM: Exclude 38:1-4 Objection to form. 4 A. Wait, say that again. 5 Q. Did you ever see anyone blocking the women from 6 7 exiting through the bar doors? A. No. There's another exit as well. 8 exit in the restaurant, 9 emergency exit. 10 two double doors, but it's like an Like, if you was in the restaurant you could just walk right, but you can't get in. 11 MS. SAYLOR: 12 I have no further questions. 13 MS. FUDIM: 14 FURTHER EXAMINATION BY 15 MS. FUDIM: 16 There's an Q. I just have one follow-up. You were asked by Ms. Saylor if the bar door was 17 open and you said yes and I just want to clarify when you 18 say open, does that mean, like, physically, 19 unlock? 20 21 22 23 24 25 A. It was unlocked. like, open or Anybody could have left in and out the bar at any time. Q. But, you don't mean, like, physically open, like, air is coming in and out? A. No, it wasn't physically open like that, no MS. FUDIM: DIAMOND REPORTING (877) I have nothing else. 624-3287 38 info@diamondreporting. com

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