Simmons v. Ferrigno, II et al

Filing 180

DECISION AND ORDER: Plaintiff's 173 Motion in Limine is GRANTED in part and DENIED in part. Defendants' 174 Motion in Limine is GRANTED in part and DENIED in part. Plaintiff's 171 letter request for judicial notice is GRANTED to the extent set out herein. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/22/2024. (RWW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SILVON S. SIMMONS,
Plaintiff,
v.

Case # 17-CV-6176-FPG
DECISION AND ORDER

JOSEPH M. FERRIGNO, II, et al.
Defendants.
INTRODUCTION
Plaintiff Silvon S. Simmons brings claims under 42 U.S.C. § 1983 and New York tort law
against the City of Rochester and its employees Joseph M. Ferrigno, II, Samuel Giancursio, Mark
Wiater, Christopher Muscato, Robert Wetzel, and Michael L. Ciminelli (collectively,
“Defendants”). Both parties have filed motions in limine, and Plaintiff has filed a request that the
Court take judicial notice of certain documents recording the disposition of Plaintiff’s state-court
criminal proceedings. ECF Nos. 171, 173, 174. The Court heard from the parties at the March
13, 2024 pretrial conference and the motions are now ripe for decision.
LEGAL STANDARD
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S.
38, 40 n.2 (1984). The moving party bears the burden of establishing that the evidence is
inadmissible for any purpose and is therefore properly excluded on a motion in limine. Starmel v.
Tompkin, 634 F. Supp. 3d 41, 44 (N.D.N.Y. 2022). A court considering a motion in limine may
reserve decision until trial, “so that the motion is placed in the appropriate factual context.” Id.
(quoting Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011)). Further, the
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court’s ruling on a motion in limine is preliminary, and “subject to change” as the case unfolds.
Luce, 469 U.S. at 41.
DISCUSSION
I.

Plaintiff’s Motions

Plaintiff moves to exclude five categories of evidence: (1) “ShotSpotter” evidence,
including an audio recording of five sounds later classified as gunshots, related reports, the
testimony of ShotSpotter employee Paul C. Greene, and an expert declaration and report on the
audio recording; (2) deposition transcripts; (3) evidence related to Ivory Golden, Jr., an individual
wanted for menacing at the time of the shooting; (4) evidence of Plaintiff’s prior acts; (5) and
evidence recovered from the search of Plaintiff’s residence and other locations. ECF No. 173 at
1–2; ECF No. 173-1 at 1–9. The Court considers each category in turn.
a. ShotSpotter Evidence
Plaintiff argues that the Court should preclude evidence regarding the ShotSpotter audio,
as well as the audio recording itself, as unduly prejudicial under Federal Rule of Evidence 403.
ECF No. 173-5 at 2. He also argues that defense witness Paul Greene cannot provide a foundation
for the admission of the ShotSpotter recording and should not be permitted to testify regarding
“ShotSpotter mechanics.” Id. at 5–6. He also challenges the report and declaration of the
ShotSpotter Defendants’ expert Robert Maher, Ph.D., P.E. (the “Maher Exhibits”). Id. at 7. As
explained below, this motion is granted in part and denied in part.
The audio recording, according to Defendants, reflects five gunshots. ECF No. 169 at 3 ¶
21. Plaintiff contends that the ShotSpotter system captured only four rounds and that ShotSpotter
modified the audio to include the fifth (first in time) shot. ECF No. 163 at 8 ¶13. Although the
parties disagree as to whether the audio recording captured the sound of five gunshots, they agree

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that Defendant Ferrigno fired his service weapon four times, and that the ShotSpotter system
captured the sound of those shots. See Id.; ECF No. 163 at 2 ¶10; ECF No. 169 at 3 ¶ 14. However,
Plaintiff contends, the audio recording is so unreliable as to have little or no probative value and
is “highly likely to have an unwarranted effect on the jurors,” and is therefore subject to exclusion
under Rule 403. The Court disagrees.
Evidence is relevant if it has “any tendency to make a fact more or less probable than it
would be without the evidence” and that fact “is of consequence in determining the action.” Fed.
R. Evid. 401. Relevant evidence is generally admissible. See Fed. R. Evid. 402. Rule 403 permits
a court to exclude even relevant evidence if its probative value is “substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Because Rule 403 excludes relevant evidence, it is “an extraordinary remedy that must be used
sparingly.” George v. Celotex Corp., 914 F.2d 26, 31 (2d Cir. 1990).
To begin, the audio recording is relevant because, if the first sound is in fact a gunshot, that
would make the fact that Plaintiff fired at Defendant Ferrigno more probable than it would be in
the absence of the audio recording. See Fed. R. Evid. 401. Plaintiff appears to contest the
recording’s relevance, stating that it “has no causal connection” to the underlying events because
the police were not in the area because of any ShotSpotter alerts. ECF No. 173-5 at 2. While true,
such a causal connection is not the only basis for relevance. Instead, the audio recording here is
relevant because it makes it more probable that (1) there was one shot fired before Defendant
Ferrigno fired four shots at Plaintiff and (2) that Defendant Ferrigno heard that shot and saw a
muzzle flash before he fired at Plaintiff. This goes to, among other things, the officers’ justification
for the use of force against Plaintiff and their grounds for his arrest.

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The recording therefore has at least some probative value. As Plaintiff notes, the existence
of the five sounds in the audio recording is not in dispute; rather, the source of at least the initial
shot is. See ECF No. 173-5 at 2–3. Even so, the existence of the first shot on the recording is
probative with respect to Defendants Ferrigno and Giancursio’s assertion that they heard a gunshot
before Defendant Ferrigno fired. That is, it tends to corroborate their assertion that they heard a
gunshot. And because this case largely turns on the credibility of the witnesses, evidence that
tends to corroborate a defense has probative value, even if the parties dispute the nature or source
of the first sound.
Although Rule 403 permits the exclusion of even relevant evidence, Plaintiff has not
demonstrated that preclusion of the ShotSpotter evidence is warranted under that rule. Rule 403
is concerned not with mere “prejudice,” but “unfair prejudice,” which involves “some adverse
effect . . . beyond tending to prove the fact or issue that justified” admission of the evidence.
Wright v. Snyder, No. 21-CV-104, 2024 WL 811998, at *8 (D. Conn. Feb. 27, 2024) (quoting
United States v. Gelzer, 50 F.3d 1113, 1139 (2d Cir. 1995)). Plaintiff does not identify this kind
of prejudice in his motion, much of which concerns the ShotSpotter system’s unreliability, see
ECF No. 173-5 at 3 (“The events of April 1, [2016], in fact, show that the reliability of the
ShotSpotter evidence as a whole is doubtful.”) or issues of authentication and foundation, see id.
at 5 (“For [the recording] to be admitted into evidence there must be a witness who could listen to
it and assure the factfinder that the recording fairly and accurately conveys the sound environment
about which he gave an opinion.”). He has not shown that admitting the audio recording would
produce any adverse effect beyond tending to prove that there were five gunshots. See Wright,
2024 WL 811998, at *8. Moreover, admitting the audio recording does not pose a danger of
confusing the issues because whether Defendants Ferrigno and Giancursio heard a gunshot before

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Ferrigno fired is relevant to the claims and defenses at issue. And after hearing the recording, the
members of the jury will be able to decide whether the first sound is a gunshot or not.
Similarly, the Court declines to preclude the testimony of Paul Greene and the Detailed
Forensic Report (“DFR”). With respect to Greene’s testimony, he may testify as to the facts of his
involvement in preparing the DFR and Defendants may use his testimony to attempt to lay a
foundation for the admission of the Detailed Forensic Report under Rule 803(6). The Court notes,
however, that Defendants have not identified Greene as an expert witness. See ECF No. 170 at 6.
Accordingly, to the extent he intends to offer opinion testimony, that testimony will be limited to
opinions that meet the requirements of Rule 701. That is, he will not be permitted to give an
opinion based on “scientific, technical, or other specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701(c).
Plaintiff also seeks to exclude the declaration and report of Robert Maher, Ph.D. Dr. Maher
has not been identified as a witness, expert or otherwise, by either party. Plaintiff contends that
the declaration and report are both inadmissible hearsay. See ECF No. 173-5 at 7. Other than
including the declaration and report on their exhibit list, Defendants have not stated whether they
intend to introduce this evidence and, if so, for what purpose. See generally ECF No. 179 at 4–
15. In any event, Defendants may not submit Dr. Maher’s technical report as a substitute for what
would otherwise be his expert testimony. See California v. Kinder Morgan Energy Partners, L.P.,
159 F. Supp. 3d 1182, 1199 (N.D. Cal. Feb. 2, 2016). Defendants may not, therefore, introduce
the opinions contained in these exhibits through a fact witness because the technical reports are
“based on scientific, technical, or other specialized knowledge within the scope of Rule 702,” and
thus may not be presented by a fact witness. See Fed. R. Evid. 701. The Court will therefore
preclude the Maher Exhibits.

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As set out above, Plaintiff’s motion to preclude the ShotSpotter evidence is granted in part
and denied in part.
b. Deposition Transcripts
Plaintiff seeks to preclude the admission of the deposition transcripts included on
Defendants’ exhibit list because they have failed to comply with this Court’s Pretrial Order, which
requires them to submit an itemized list of deposition testimony to be used in their direct case,
with page and line references. ECF No. 173-1 ¶¶ 31, 35 (citing ECF No. 157 at 4 ¶ 7). The Court
will not admit the deposition transcripts in their entirety. Because Defendants identify deposition
transcripts of witnesses who are available to testify, the Court concludes that this deposition
testimony is not admissible as former testimony under Rule 804(b)(1). However, the Court may
admit prior statements of witnesses or parties under Rule 801(d), so long as the statements meet
the requirements of that rule.
c. Ivory Golden, Jr.
Plaintiff moves to preclude evidence related to Ivory Golden, Jr., an individual who was
wanted for menacing around the time of the shooting. ECF No. 173-1 ¶¶ 36–45. Particularly,
Plaintiff seeks to preclude “any facts concerning Golden’s prior conduct or [Defendants’] beliefs
about any possible danger he posed.” Id. ¶ 39. Plaintiff does not seek to preclude the mention of
Golden’s name nor the charge for which he was wanted. Id. ¶ 43. The Court agrees with Plaintiff
that Defendants’ proposed exhibits related to Golden’s conduct are irrelevant. Whether Golden
was, for example, involved in a fight with a non-party individual has no bearing on whether the
officers had probable cause to arrest and prosecute Plaintiff.

This evidence is therefore

inadmissible. See Fed. R. Evid. 401, 402. The Court will permit Defendants to testify (1) they
were interested in a suspect named Ivory Golden, Jr.; (2) that Golden was wanted for menacing;

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and (3) and that he was associated with a car similar to the one in which Plaintiff was riding on the
night of the shooting.
Plaintiff’s motion to preclude evidence related to Ivory Golden, Jr. is therefore granted as
set out above.
d. Plaintiff’s Prior Acts, Wrongs, or Crimes
Plaintiff moves to preclude evidence of the following incidents: (1) gunfire at 5 Immel
Street about at 8:10 p.m. on April 1, 2016, about one hour before the underlying shooting (the
“8:10 p.m. Incident”); (2) a 2015 accusation of harassment, in which Plaintiff was accused of
brandishing a weapon (the “2015 Incident”); (3) a 2013 incident in Plaintiff was accused of seconddegree assault, in which Plaintiff allegedly brandished a firearm (the “2013 Incident”). ECF No.
173-1 ¶¶ 46–53. Following the 2013 Incident, Plaintiff pleaded guilty to third-degree assault and
served a one-year term of imprisonment. Id. Plaintiff argues that this evidence is inadmissible
under Federal Rule of Evidence 404(b) and that the evidence of Plaintiff’s conviction may not be
used for impeachment purposes under Rule 609. The Court agrees with Plaintiff as to the 2013
and 2015 Incidents, but not the 8:10 p.m. Incident.
Federal Rule of Evidence 404(a) generally prohibits the admission of evidence of a
person’s character or character trait to “prove that on a particular occasion the person acted in
accordance with the character or trait.” Fed. R. Evid. 404(a)(1). Similarly, under Rule 404(b),
evidence of “any other crime, wrong, or act is not admissible to prove a person’s character in order
to show that on a particular occasion the persona acted in accordance with the character.” Fed. R.
Evid. 404(b)(1). However, such evidence is admissible for “another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2).

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The Second Circuit has instructed courts to take an “inclusionary approach” to Rule 404(b).
Gogol v. City of New York, No. 15 Civ. 5703, 2018 WL 4616047, at *3 (S.D.N.Y. Sept. 26, 2018)
(quoting United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)). Under that approach, courts
admit evidence of prior acts “if the evidence is relevant to an issue at trial other than the defendant’s
character, and if the probative value of the evidence is not substantially outweighed by the risk of
unfair prejudice.” Id.
Defendants’ purpose in introducing the 2013 and 2015 Incidents—to establish the
“behavior of Plaintiff in and around his neighborhood” and to give “the jury an accurate look at
the neighborhood where this incident occurred,” ECF No. 174-4 at 6—is not an appropriate use of
this evidence under Rule 404(b). It is simply another way of saying that they intend to use this
evidence to show that on the night of the shooting, Plaintiff acted in accordance with his propensity
for violence. See Fed. R. Evid. 404(b)(1). The Court will not permit Defendants to do so.
Nor will the Court permit cross-examination on the incidents unless Plaintiff “opens the
door.” A court may, on cross-examination, allow a party to inquire into “specific instances of a
witness’s conduct . . . if they are probative of the [witness’s] character for truthfulness or
untruthfulness.” Fed. R. Evid. 608(b)(1). “General acts of violence or threats are simply not
probative of an individual’s credibility.” Munafo v. Metropolitan Transp. Auth., Nos. 98-CV4572, 00-CV-0134, 2003 WL 21799913, at *25 (E.D.N.Y. Jan. 22, 2003). Plaintiff’s prior acts of
harassment and assault are not, therefore, permissible material for cross-examination under Rule
608(b)(1). However, if Plaintiff testifies, for example, that he has never engaged in or been
accused of engaging in violent conduct, inquiring into those specific circumstances will be
warranted under Rule 608(b).

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Finally, Plaintiff’s 2013 conviction of third-degree assault is not admissible for
impeachment purposes under Rule 609. A court must admit evidence of a misdemeanor conviction
if it “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). This prong of
Rule 609(a) is “restricted to convictions that bear directly on the likelihood that the [witness] will
testify truthfully.” United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977). It does not, therefore,
encompass crimes of force, such as assault. Id.
Plaintiff was convicted by guilty plea in 2013 of assault in the third degree under N.Y.
Penal Law § 120.00 and was sentenced to a definite sentence of imprisonment of one year, the
maximum permitted for a class A misdemeanor offense. See N.Y. Penal Law §§ 60.01(3)(a),
70.15(1). None of the elements of third-degree assault involve a “dishonest act” or “false
statement.” See N.Y. Penal Law § 120.00. Accordingly, Plaintiff did not need to admit to such
an act or statement in pleading guilty to that offense. It therefore does not come within the scope
of Rule 609(a)(2).
The Court will not, however, preclude evidence of the 8:10 p.m. Incident. That incident
involved an altercation between Plaintiff’s girlfriend’s cousins, who apparently threatened
Plaintiff and fired guns in the air in his presence. ECF No. 179 at 2. According to Defendants,
“there is no allegation that Plaintiff fired a gun, only that guns were fired while he was present in
front of his home.” Id. Defendant argues that this evidence is relevant because it goes “directly
to the police officers’ and Plaintiff’s state of mind and his actions or non-actions on April 1, 2016”
and are relevant as “circumstances surrounding the arrest.” Id. at 3. Plaintiff argues that evidence
of this incident is inadmissible under Rule 404. The Court disagrees.

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Defendant’s evidence related to the 8:10 p.m. Incident is not admissible to show that
Plaintiff acted violently one hour later in accordance with his character for violence. See Fed. R.
Evid. 404(b)(1). But, taking an inclusionary approach to Rule 404(b), such evidence of the earlier
altercation is admissible to explain why Plaintiff may have had a gun at that time. See Fed. R.
Evid. 404(b)(2).
The Court also concludes that this evidence satisfies Rule 403’s “probative-prejudice
balancing test.” Jean-Laurent, 840 F. Supp. 2d at 555. In this case, the jury will need to determine
whether Plaintiff or Defendants are telling the truth about what happened on the night of the
shooting. One aspect of what happened is whether Plaintiff was armed when he exited his
neighbor’s vehicle. His involvement in an altercation in which someone fired a gun would give
him reason to arm himself later, making it more likely that he had a gun when he exited his
neighbor’s vehicle about an hour later. The lack of allegations that Plaintiff fired the gun during
the earlier altercation reduces the probative value of this evidence. But it still retains some
probative force in explaining why Plaintiff would have a gun during an otherwise ordinary trip to
a nearby store.
Moreover, while Plaintiff contends that this evidence is “highly prejudicial,” ECF No. 1735 at 11, he does not describe how it is unfairly prejudicial. “Among other things, evidence of other
acts is generally not unfairly prejudicial when, as here, it is ‘no more sensational or disturbing’
than the conduct at issue in the case.” Boyce v. Weber, 2021 WL 2821154, at *6 (S.D.N.Y. July
7, 2021). A central issue in this case is whether Plaintiff shot at Defendant Ferrigno. His limited
involvement in the 8:10 p.m. Incident is far less sensational than that. Accordingly, even if the
probative value of the 8:10 p.m. Incident is somewhat limited, Plaintiff has not demonstrated that

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its probative value is substantially outweighed by the danger of unfair prejudice. His motion to
preclude evidence of this incident is therefore denied.
Plaintiff’s motion to preclude evidence related to the 2013 and 2015 Incidents, as well as
Plaintiff’s 2013 misdemeanor conviction, is granted. His motion to preclude evidence related to
the 8:10 p.m. Incident is denied.
e. Evidence Recovered from Searches
Plaintiff has moved to preclude the introduction of evidence of the results of police
searches of Plaintiff, his person, his home, and the car in which he was riding as irrelevant and
potentially prejudicial. See ECF Nos. 173 at 2, 173-5 at 11. During the pretrial conference,
Defendants disavowed any intention to introduce such evidence. The Court therefore denies
Plaintiff’s motion without prejudice to renewing the motion should Defendants seek to introduce
such evidence at trial.
II.

Defendants’ Motions

Defendants move for the following: (1) dismissal of the § 1983 malicious prosecution, fair
trial, and failure to intervene claims and New York law malicious prosecution claim against
Defendants Ciminelli, Wetzel, and Wiater; (2) preclusion of unsubstantiated disciplinary
complaints against Defendants or law enforcement witnesses; (3) permitting evidence related to
the 2013, 2015, and 8:10 p.m. Incidents; (4) permitting ShotSpotter evidence; (5) precluding the
testimony of prospective witness Elizabeth Riley; and (6) preclusion of Plaintiff’s medical expert
and report. ECF No. 174-4 at 1–2. The Court considers each motion in turn.

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a. Dismissal of Claims against Defendants Ciminelli, Wetzel, and Wiater
Defendant moves to dismiss the remaining claims against Defendants Ciminelli, Wetzel,
and Wiater.1 ECF No. 174-4 at 2–3. Plaintiff argues that the Court should deny the motion because
it is an improper second summary judgment motion. ECF No. 178-2 at 1–3. The Court agrees
with Plaintiff in part.
The Court first notes that a motion in limine is “generally not the appropriate vehicle for
effecting dismissal of entire claims.” Altruis Group, LLC v. ProSight Specialty Mgmt. Co., Inc.,
No. 21-CV-10757, 2023 WL 4784233, at *5 (S.D.N.Y. July 26, 2023); see also Securitron
Magnalock Corp. v. Schnabolk, No. 89 Civ. 6731, 1994 WL 320708, at *1 (“[A] motion in limine
is not the appropriate means to narrow, limit, or fix the issues for trial.”). Nevertheless, courts in
this Circuit have occasionally converted motions in limine into motions to dismiss or motions for
summary judgment, or simply addressed them on the merits. See Pavone v. Puglisi, No. 08 C
2389, 2013 WL 245745, at *2 (S.D.N.Y. Jan. 23, 2013); Fournier v. Erickson, 242 F. Supp. 2d
318, 335 (S.D.N.Y. 2003); see e.g., Pepe v. Maklansky, 67 F. Supp. 2d 186, 186–89 (S.D.N.Y.
1999); (addressing merits of motion in limine seeking dismissal of certain claims) Wright v. Kelley,
1998 WL 912026, at *1–2 (W.D.N.Y. Oct. 16, 1998) (same).
i. Ciminelli
After summary judgment, three claims remain against Defendant Ciminelli: § 1983
malicious prosecution, § 1983 denial of the right to a fair trial, and New York law malicious
prosecution. Defendants move to dismiss those claims against Defendant Ciminelli in light of the

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Defendants seek dismissal of Plaintiff’s § 1983 failure to intervene claim against Defendants Ciminelli, Wetzel, and
Wiater. ECF No. 174-4 at 1. The Court dismissed the failure to intervene claim against all Defendants except
Christopher Muscato for failure to state a claim in 2019. See ECF No. 39 at 30. Plaintiff’s failure to intervene claim
remains only against Defendant Muscato. See ECF No. 39 at 22; ECF No. 153 at 18–20. This branch of Defendants’
motion to dismiss Plaintiff’s remaining claims against Defendants Ciminelli, Wetzel, and Wiater is therefore denied
as moot.

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Court’s summary judgment analysis of Plaintiff’s supervisory liability claim against him. See ECF
No. 174-4 at 2. As explained below, the Court concludes that the remaining claims against
Ciminelli should also be dismissed.
The Court analyzed Defendant Ciminelli’s participation in the conduct underlying
Plaintiff’s malicious prosecution and fair trial claims in its decision on Defendants’ motion for
partial summary judgment. In that decision, the Court concluded that even if Plaintiff’s evidence
showed that Ciminelli “responded to the scene, went to the Public Safety Building where the
investigation was ongoing, and spoke with officers regarding information they obtained from
ShotSpotter,” that was not enough to support an inference that he “played an active role” in
Plaintiff’s prosecution or “had a hand in passing along fabricated information to the District
Attorney.” Simmons v. Ferrigno, 17-CV-6176, 2023 WL 5983797, at *14 (quoting Taylor, 2022
WL 744037, at *16) (W.D.N.Y. Sept. 14, 2023) (“Simmons II”). The Court further explained that
even if the evidence showed that Ciminelli knew that his subordinates were engaged in
unconstitutional behavior, that would not be enough to establish his liability for the constitutional
violations. See id. (citing Taylor, 2022 WL 744037, at *11). Accordingly, the Court granted
summary judgment for Defendants on Plaintiff’s supervisory liability claim to the extent that it
arose out of the Defendants’ alleged malicious prosecution and denial of Plaintiff’s right to a fair
trial under § 1983. Id. at 15.
The Court views Defendants’ motion, at least with respect to Ciminelli, as implicating the
law of the case doctrine. Under that doctrine, “[w]hen a court has ruled on an issue, that decision
should generally be adhered to by that court in subsequent stages in the same case, absent cogent
and compelling reasons to the contrary.” JLM Couture, Inc. v. Gutman, 91 F. 4th 91, 101 (2d Cir.
2024) (internal quotation marks omitted). Here, the Court has already ruled that Defendant was

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entitled to summary judgment on Ciminelli’s personal involvement in the alleged malicious
prosecution and denial of Plaintiff’s right to a fair trial. See Simmons II, 2023 WL 5983797, at
*14–15. Because the Court has therefore concluded that Plaintiff failed to “raise a genuine dispute
as to whether ‘[Ciminelli], through [his] own individual actions,” violated Plaintiff’s constitutional
rights, Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009)), there is no basis for these claims against Ciminelli to go before the jury. The Court
will adhere to its earlier conclusion that Plaintiff had failed to raise a genuine issue of material fact
as to Ciminelli’s personal involvement in the alleged constitutional violations, and therefore
dismiss Plaintiff’s § 1983 malicious prosecution and fair trial claims as to Defendant Ciminelli.
Finally, the Court notes that, unlike claims brought pursuant to § 1983, liability under a
theory of respondeat superior is available for a New York law malicious prosecution claim.
Williams v. City of White Plains, 718 F. Supp. 2d 374, 381 (S.D.N.Y. 2010). However, because
Ciminelli was “subordinate to the City under the chain of respondeat superior,” he has “no
individual responsibility fastened on [him] in the circumstances.” Sankar v. City of New York, 867
F. Supp. 2d 297, 313 n.13 (E.D.N.Y. 2012) (quoting Marshon v. City of New York, 88 A.D.2d 811,
812 (1st Dep’t 1982)). Accordingly, because the Court has previously determined that Ciminelli
was not personally involved in the conduct underlying the malicious prosecution claim and
because he cannot be held liable under a theory of respondeat superior, Plaintiff’s state law
malicious prosecution claim against Ciminelli must also be dismissed.
ii. Wetzel and Wiater
Unlike the claims against Ciminelli, Defendants did not move for summary judgment on
the malicious prosecution and fair trial claims against Defendants Wetzel and Wiater. This branch
of Defendants’ motion does not, therefore, implicate the law of the case doctrine in the same way.

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Instead, as to Wetzel and Wiater, this motion is a successive summary judgment motion disguised
as a motion in limine. See Young v. Kadien, No. 09-CV-6639, 2013 WL 4495010, at *1 (W.D.N.Y.
Aug. 20, 2013). Such a motion is “not [the] proper vehicle . . . to ask the Court to weigh the
sufficiency of the evidence to support a particular claim or defense.” Id. (quoting Pavone, 2013
WL 245745, at *1). That is the function of a summary judgment motion, “with its accompanying
and crucial procedural safeguards.” Id. The Court therefore denies Defendants’ motion to dismiss
Plaintiff’s malicious prosecution and fair trial claims against Defendants Wetzel and Wiater.
Moreover, whether Plaintiff’s claims against Wetzel and Wiater should be dismissed was
addressed by Judge Telesca in his October 5, 2019 Decision and Order granting in part and denying
in part Defendants’ motion to dismiss. See Simmons v. Ferrigno, No. 17-CV-6176, 2019 WL
12361880, at *7 (W.D.N.Y. Aug. 5, 2019) (“Simmons I”). That decision was entered over four
years ago. Since then, the parties have engaged in extensive discovery, presumably “develop[ing]
the record to determine whether or not sufficient facts exist” to support Plaintiff’s claims against
the many defendants in this case. Defendants were free to seek summary judgment on Plaintiff’s
claims against Wetzel and Wiater but chose not to. See ECF No. 132. Defendants have offered
neither a good reason for their failure to do so, nor new facts that would warrant consideration of
a successive summary judgment motion. See Campers’ World Int’l, Inc. v. Perry Ellis Int’l, Inc.,
221 F.R.D. 409, 409 (S.D.N.Y. 2004) (“[I]t is improper for a party to file a successive motion for
summary judgment which is not based upon new facts and which seeks to raise arguments it could
have raised in its original motion.”).
Defendant devotes only two sentences to describing Wetzel’s and Wiater’s personal
involvement, and points to no case law supporting the proposition that their involvement was
sufficiently limited to warrant dismissal. See ECF No. 174-4 at 3. Considering the sparse

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treatment of this issue in Defendants’ briefing, the Court declines to grant what is in effect a second
motion for partial summary judgment in the guise of a motion in limine. See Pac. Controls Inc. v.
Cummins Inc., No. 19-cv-3428, 2023 WL 5022728, at *1 n.1 (S.D.N.Y. July 7, 2023); Young,
2013 WL 4495010, at *2. Defendants’ motion to dismiss Plaintiff’s malicious prosecution and
fair trial claims against Wetzel and Wiater is therefore denied.
b. Unsubstantiated Complaints Against City Defendants or Other Law
Enforcement Witnesses
Defendants move to preclude the introduction of unsubstantiated complaints against the
City Defendants or other law enforcement witnesses. ECF No. 174-4 at 4. Plaintiff concedes that
the case law appears to preclude introduction of this evidence. ECF No. 178-2 at 3. As explained
below, the Court will preclude the unsubstantiated complaints against Defendants or other law
enforcement witnesses.
Under Rule 608, the court may, on cross-examination, allow a party to inquire into specific
instances of conduct to attack a witness’s character for truthfulness if they are probative of the
witness’s character for untruthfulness. See Fed. R. Evid. 608(b)(1). Extrinsic evidence is not
admissible to prove those specific instances of conduct, however. Fed. R. Evid. 608(b). And, “as
a general matter, complaints against officers are not probative of a law enforcement witness’s
truthfulness or untruthfulness unless the underlying conduct involves dishonesty.” Bermudez v.
City of New York, No. 15-CV-3240, 2019 WL 136633, at *6 (E.D.N.Y. Jan. 8, 2019) (internal
quotation marks and brackets omitted).

Accordingly, Plaintiff may not introduce the

unsubstantiated complaints to attack a witness officer’s character for truthfulness. Id. However,
he may inquire into the underlying conduct if he can establish that it relates to the witness’s
truthfulness or lack thereof. See Fed R. Evid. 608(b); Bermudez, 2019 WL 136633, at *6.

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To the extent that Plaintiff seeks to introduce unsubstantiated complaints of excessive force
to prove that Defendants Ferrigno and Giancursio used excessive force against him, the Court will
not permit him to do so. Evidence of “any other crime, wrong, or act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1). But it may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Fed. R. Evid. 404(b)(2). Under the Second Circuit’s “inclusionary rule,”
evidence of prior crimes, wrongs, or acts is admissible “for any purpose other than to show [a
person’s] . . . propensity, as long as the evidence is relevant and satisfies” the balancing test of
Rule 403. Bermudez, 2019 WL 136633, at *6 (quoting United States v. Carboni, 204 F.3d 39, 44
(2d Cir. 2000)).
Accordingly, evidence of complaints against police officers may be admissible under Rule
404(b) when the complaints share “unusual characteristics” with the conduct at issue so as to
represent a “unique scheme.” Berkovich v. Hicks, 922 F.2d 1018, 1023 (2d Cir. 1991)). However,
courts in this circuit have been “highly reluctant” to admit unsubstantiated complaints “on the
ground that such evidence’s probative value is substantially outweighed by the danger of unfair
prejudice” under Rule 403. Gogol, 2018 WL 4616047, at *3 (citing Jean-Laurent v. Hennessy,
840 F. Supp. 2d 529, 556 (E.D.N.Y. 2011)).
The unsubstantiated complaints and reports here are insufficient to show that Defendants
engaged in a pattern of unlawful uses of force. In many cases, the factual basis for the complaints
cannot be discerned from Plaintiff’s proposed exhibits, setting out only that the complained-of
incident involved the use of force. This is not enough to warrant admission under Rule 404(b).

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Moreover, even if the underlying allegations were sufficiently similar, the Court would still
preclude the unsubstantiated complaints under Rule 403. Gogol, 2018 WL 4616047, at *3.
The Court will therefore grant Defendants’ motion to preclude the unsubstantiated
complaints.
c. Plaintiff’s Prior Acts
As explained above, evidence of the 2013 and 2015 Incidents, including Plaintiff’s 2013
conviction, are not admissible. Evidence of the 8:10 p.m. Incident is admissible. See Section I.d.,
supra.
d. ShotSpotter Evidence
As explained above, other than the Maher Exhibits, the ShotSpotter evidence is relevant
and admissible, subject to Defendants’ ability to lay a proper foundation. See Section I.b., supra.
Moreover, Defendants have failed to demonstrate that the depositions of other ShotSpotter
witnesses or the correspondence between Defendants and ShotSpotter are inadmissible for any
purpose. See Starmel, 634 F. Supp. 3d at 44. Accordingly, the Court denies their motion to
preclude those exhibits.
However, as Defendants correctly point out, the Court has found that Plaintiff failed to
raise a triable issue of fact as to whether ShotSpotter fabricated evidence of the initial gunshot.
See Simmons, 2023 WL 5983797 at *15–20. So, while Plaintiff may make his case that the
ShotSpotter evidence supporting his prosecution was unreliable, he may not argue that ShotSpotter
or its employees fabricated the evidence or altered the audio recording.
e. Testimony of Elizabeth Riley
Defendants argue that the Court should preclude the testimony of Plaintiff’s former
criminal defense attorney, Elizabeth A. Riley, Esq., because it would amount to “bolstering,” and

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it would be “prejudicial” for an experienced criminal defense attorney to testify on Plaintiff’s
behalf. ECF No. 174-4 at 16. Plaintiff has proposed that Ms. Riley testify about “all aspects of
the [underlying state-court] criminal case,” including procedural history, her subpoena of “Track
Star AVLS reports and data,” plea offers, motions, rulings, the verdict, and post-trial proceedings.
ECF No. 163 at 12. In response to Defendants’ motion, Plaintiff now states that he intends to call
Ms. Riley for “very limited purposes,” namely, (1) “to testify that she subpoenaed the AVLS GPS
data for [Ferrigno’s and Giancursio’s] police vehicles” and her purpose in doing so and (2) to
testify concerning Plaintiff’s post-arraignment bail and plea offers extended to Plaintiff before and
during trial.” ECF No. 178-2 at 10.
The Court will permit Ms. Riley to testify as to her efforts to obtain the GPS data, which,
if it existed, would have either supported or undermined the assertion that Defendant Giancursio
arrived in time to exit his vehicle before the shooting. The Court will not permit Riley to testify
as to bail amounts or plea offers because they are irrelevant. See Session v. Rodriguez, 626 F.
App’x 329, 332 (2d Cir. 2015) (summary order) (affirming exclusion of plea offers as irrelevant
under Rule 401 in malicious prosecution and false arrest case). The issue here is whether
Defendants had probable cause to arrest Plaintiff and to institute criminal proceedings against him.
Neither the bail nor plea offers make it “more or less probable” that Defendants acted without
probable cause before those offers were made. See id.
Moreover, even if they were relevant, the probative value of bail and plea offers is minimal
relative to the tendency of this testimony to confuse the issues or mislead the jury in light of, among
other things, the difference in the parties’ burdens in criminal and civil proceedings and the many
factors that contribute to a prosecutor’s decision to make a plea offer. Therefore, even if this
evidence were relevant, the Court would exclude it under Rule 403 because the danger of confusing

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the issues or misleading the jury would substantially outweigh the probative value of this
testimony. Accordingly, the Court will limit Ms. Riley’s testimony to her efforts to obtain the
AVLS GPS data and her purpose in doing so.
Defendants’ motion to preclude Ms. Riley’s testimony is therefore granted in part and
denied in part.
f. Plaintiff’s Medical Expert and Report
Defendants seek to exclude the report of Plaintiff’s medical expert, Romanth Waghmarae,
M.D. because he is “not qualified” and his expert report is “completely deficient.” ECF No. 1744 at 16. They identify four reasons to conclude that his report is inadmissible: (1) Dr. Waghmarae
has no medical qualifications by which to forecast the need for future treatment or diagnose past
or current conditions; (2) Dr. Waghmarae did not consult any treatment providers referenced in
Plaintiff’s medical records; (3) Dr. Waghmarae is a pain management doctor and therefore not
qualified to give an opinion on current conditions and future treatments; (4) most of Dr.
Waghmarae’s projections relate to treatment required “for life,” ranging from physical therapy,
mental health counseling, to neurological and orthopedic therapy. Id. at 17. None of these reasons
warrant preclusion.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if it is more likely
than not that: (a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
This Rule obligates the court to serve as a gatekeeper, ensuring “that an expert’s testimony both
rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms.,

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Inc., 509 U.S. 579, 597 (1993). The proponent bears the burden of establishing by a preponderance
of the evidence that the testimony complies with Rule 702’s requirements. See id. at 593 n.10.
Whether a witness is qualified by his knowledge, skill, experience, training, or education is a
“threshold question” that a court must resolve before determining whether his opinion is
admissible. Nimely v. City of New York, 414 F.3d 381, 396 n.11 (2d Cir. 2005).
“To determine whether a witness qualifies as an expert, courts compare the area in which
the witness has superior knowledge, education, experience, or skill with the subject matter of the
proffered testimony.” United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004). A medical
expert “need not be a specialist in the exact area of medicine implicated by the plaintiff’s injury,”
but “he must have relevant experience and qualifications such that whatever opinion he will
ultimately express would not be speculative.” Loyd v. United States, No. 08 Civ. 9016, 2011 WL
1327043, *5 (S.D.N.Y. Mar. 31, 2011) (internal citations and quotation marks omitted). Where
an expert witness’s “expertise is too general or too deficient[,]” the court “may properly conclude
that witnesses are insufficiently qualified despite the relevance of their testimony[.]” Stagl v. Delta
Air Lines, Inc., 117 F.3d 76, 81 (2d Cir. 1997).
The Court is satisfied that Dr. Waghmarae’s experience as an anesthesiologist and pain
management physician qualifies him to opine about the expected severity and duration of
Plaintiff’s pain, as well as any treatment for that pain. Given these qualifications and his
experience in the area of neuromodulation, he may also testify as to evidence of nerve damage in
Plaintiff’s left lower extremity. See Loyd, 2011 WL 1327043, *5. Dr. Waghmarae does not appear
to have any training or experience in psychiatry or psychology, however, so the Court agrees with
Defendants that he should not be permitted to testify as to whether Plaintiff suffers from posttraumatic stress disorder.

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The Court also concludes that Dr. Waghmarae’s opinion regarding Plaintiff’s pain and
nerve damage is “based on sufficient facts or data,” Fed. R. Evid. 702. In his report, Dr.
Waghmarae states that he relied on information Plaintiff provided during his evaluation on
November 13, 2020, as well as a review of his medical records from his admission to Strong
Memorial Hospital from April 1, 2016 to April 11, 2016 and from Monroe County Jail. Defendants
point to prior deposition testimony in which Dr. Waghmarae stated that he did not review
Plaintiff’s medical records “up to . . . October 14, 2022,” ECF No. 174-4 at 16. The Court will not
preclude Dr. Waghmarae’s testimony or his report on this basis. But Defendants may explore the
apparent inconsistency between Dr. Waghmarae’s statement in his December 2020 report and his
deposition testimony on cross-examination.
For these reasons, Defendants’ motion to preclude Dr. Waghmarae’s testimony and expert
report is denied as set out above.
III.

Plaintiff’s Request for Judicial Notice

Plaintiff has also filed a letter requesting that the Court take judicial notice of two
documents: (1) County Court Judge Christopher S. Ciaccio’s February 13, 2018 Decision and
Order setting aside the jury verdict finding Plaintiff guilty of Criminal Possession of a Weapon in
the Second Degree under Penal Law § 265.03(3) (the “County Court Order”) and (2) the Certificate
of Disposition recording that the jury acquitted Plaintiff of three of the four felony charges and
that County Court granted Plaintiff’s motion to dismiss the fourth charge, Criminal Possession of
a Weapon in the Second Degree under Penal Law § 265.03(3) (the “Certificate of Disposition”).
ECF No. 171 at 1. Plaintiff asks the Court to take judicial notice, pursuant to Rule 201, “of the
acts which [the documents] record,” that is that he was found not guilty on three of the four charges,

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that the court set aside the jury’s guilty verdict on the fourth, and that the indictment was
subsequently dismissed on motion. Id.
Under Rule 201, a court may judicially notice a fact that is “not subject to reasonable
dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). A court “must take judicial notice if a party requests it and the
court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2). On timely request, a
party is entitled to be heard “on the propriety of taking judicial notice and the nature of the fact to
be noticed.” Fed. R. Evid. 201(e). If the court takes judicial notice before notifying a party, that
party is still entitled to be heard on request. Id. In a civil case, the court “must instruct the jury to
accept the noticed fact as conclusive.” Fed. R. Evid. 201(f).
Courts routinely take judicial notice of documents filed in other courts, “not for the truth
of the matters asserted in the other litigation, but rather to establish the fact of such litigation and
related filings.” See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). Courts may
likewise take judicial notice of “public records, including ‘arraignments, arrest reports, criminal
complaints and indictments, and certificates of disposition.’” Henry v. Brzeski, No. 21-CV-5682,
2023 WL 2024171, at *4 (E.D.N.Y. Jan. 26, 2023) (quoting Burris v. Nassau Cnty. Dist. Att’y,
No. 14-CV-5540, 2017 WL 9485714, at *4 (E.D.N.Y. Jan. 12, 2017); see e.g., id. at *4–5 (taking
judicial notice of state court decisions in criminal proceedings); Livingston v. Henderson, No. 15CV-631, 2019 WL 1427689, at *5 & n.8 (N.D.N.Y. Mar. 29, 2019) (taking judicial notice of
certificate of disposition indicating that plaintiff’s state criminal charges were covered by
disposition in another case).

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Having given Defendants an opportunity to be heard during the pretrial conference, the
Court grants Plaintiff’s request. Pursuant to Rule 201, the Court will take judicial notice of the
following: (1) that the jury acquitted Plaintiff as set out in the Certificate of Disposition; (2) that
County Court set aside the jury verdict finding Plaintiff guilty of second-degree criminal
possession of a weapon; and (3) that that charge was dismissed as set out in the Certificate of
Disposition. However, the County Court Order itself will not be admissible.
CONCLUSION
As set out above, Plaintiff’s (1) motion to preclude ShotSpotter evidence is GRANTED
in part and DENIED in part; (2) motion to preclude deposition transcripts is GRANTED; (3)
motion to preclude evidence related to Ivory Golden, Jr. is GRANTED; (4) motion to preclude
evidence of Plaintiff’s prior acts, wrongs, crimes, or convictions is GRANTED in part and
DENIED in part; (5) motion to preclude evidence of items recovered from the search of Plaintiff,
his person, his home, or the vehicle in which he was riding is DENIED without prejudice.
Defendants’ (1) motion to dismiss claims against Defendants Ciminelli, Wetzel, and
Wiater is GRANTED in part and DENIED in part; (2) motion to preclude unsubstantiated
complaints against Defendants or other law enforcement witnesses is GRANTED; (3) motion to
permit the introduction of Plaintiff’s prior acts, wrongs, crimes, or convictions is GRANTED in
part and DENIED in part; (4) motion to permit the introduction of ShotSpotter evidence is
GRANTED; (5) motion to preclude the testimony of Elizabeth Riley, Esq. is GRANTED in part
and DENIED in part; (6) motion to preclude Plaintiff’s medical expert and his report is DENIED.
Plaintiff’s request for judicial notice, ECF No. 171, is GRANTED as set out above.

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IT IS SO ORDERED.
Dated: March 22, 2024
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York

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