Triolo v. Nassau County, NY

UNITED STATES DISTRICT COURT                                              
EASTERN DISTRICT OF NEW YORK                                              
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DANIEL TRIOLO,                                                            

               Plaintiff,                                            
                                    MEMORANDUM & ORDER               
      -against-                                                      
                                          CV 16-2085 (AKT)           

NASSAU COUNTY, NY and                                                     
DET. RICHARD C. LEE,                                                      

               Defendants.                                           
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A. KATHLEEN TOMLINSON, Magistrate Judge:                                  

I.   PRELIMINARY STATEMENT                                                
Plaintiff Daniel Triolo (“Plaintiff”) moves in limine for an Order precluding the 
admission of evidence, testimony, or suggestion at trial of Plaintiff’s pre-incident history of 
arrests, incarcerations, or convictions.  See generally Plaintiff’s Memorandum of Law in Support 
of his Motion in Limine (“Pl.’s Mem.”) [DE 27].  The County of Nassau and Detective Richard 
C. Lee (collectively, “Defendants”) have not filed any opposition to the motion.  For the 
following reasons, Plaintiff’s motion is GRANTED.                         
II.  BACKGROUND                                                           
In this action, the following claims are proceeding to trial:  false arrest in violation of the 
Fourth Amendment to the United States Constitution brought pursuant to 42 U.S.C. § 1983, and 
false arrest in violation of New York State law.  See Joint Pre-Trial Memorandum (“JPTO”) [DE 
25] at 2.  Plaintiff argues in his motion in limine that none of Plaintiff’s three prior arrests and 
convictions – for burglary and assault in 1989 when Plaintiff was a minor and which was 
resolved through a youthful offender adjudication, and for two DWIs in 1993 which were 
resolved through a guilty plea to driving while impaired in May 1994 – are probative of the 
issues involved in this trial, namely, whether or not Defendants had probable cause to arrest 
Plaintiff.  Pl.’s Mem. at 1.  Moreover, Plaintiff argues the evidence is inadmissible under Federal 
Rule of Evidence 609.  See id.                                            

III.  MOTIONS IN LIMINE:  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.”  Gorbea v. Verizon New York, 
Inc., No. 11-CV-3758, 2014 WL 2916964, at *1 (E.D.N.Y.  June 25, 2014) (citing Luce v. 
United States, 469 U.S. 38, 40 n.2 (1984)); Highland Capital Mgmt., L.P. v. Schneider, 379 F. 
Supp. 2d 461, 467 (S.D.N.Y. 2005).  When a party moves to preclude evidence by means of an 
in limine motion, the court is required to determine preliminarily under Federal Rule of Evidence 
104 whether the evidence is admissible.  See Highland Capital Mgmt., L.P., 379 F. Supp. 2d at 
467 (citing Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., No. 01–CV–
3796, 2004 WL 1970144, at *4 (S.D.N.Y. Sept. 3, 2004)). “[O]nly when the evidence is clearly 

inadmissible on all potential grounds” should such evidence be excluded on a motion in limine.  
Commerce Funding Corp., 2004 WL 1970144 at *4 (citing Baxter Diagnostics, Inc. v. Novatek 
Med., Inc., No. 94–CV–5520, 1998 WL 665138, at *3 (S.D.N.Y. Sept.25, 1998)); accord Sec. 
Exch. Comm'n v. U.S. Envtl, Inc., No. 94–CV–6608, 2002 WL 31323832, at *2 (S.D.N.Y. 
Oct.16, 2002).  Significantly, an in limine ruling “is subject to change when the case unfolds, 
particularly if the actual testimony differs from what was contained in the . . . proffer.”  Highland 
Capital Mgmt., L.P., 379 F. Supp. 2d at 467 (quoting Luce v. United States, 469 U.S. at 41). 
IV.  DISCUSSION                                                           
1.   Evidence of Plaintiff’s Prior Arrests                           
Plaintiff argues that the evidence of his arrests is not relevant under Federal Rule of 
Evidence 402 and is also inadmissible under Rule 404(b).  The Court agrees.  As to relevance, 

the Court sees no probative value in evidence of Plaintiff’s prior arrests.  See Nibbs v. Goulart, 
822 F. Supp. 2d 339, 344 (S.D.N.Y. 2011) (“Because there is no allegation that the arresting 
officers were aware of [plaintiff’s] arrest history on December 23, 2009, the Court agrees with 
plaintiff that his arrest history is irrelevant to the question of probable cause.”).   Additionally, 
the evidence of Plaintiff’s prior arrests is inadmissible under Federal Rule of Evidence 404(b), 
which provides that “[e]vidence of a crime, wrong, or other 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).  Nor does the Court find that such evidence fits 
into the exceptions of Rule 404(b)(2), such as motive, opportunity, intent, etc.  See FED. R. EVID. 
404(b)(2).  Finally, there is no impeachment value in the evidence of Plaintiff’s prior arrests.  See 

Michelson v. United States, 335 U.S. 469, 482 (1948) (“Arrest without more does not, in law any 
more than in reason, impeach the integrity or impair the credibility of a witness.”); Nibbs, 822 F. 
Supp. 2d at 344 (finding that plaintiff’s “arrest history holds no value as impeachment 
material”); see also Roguz v. Walsh, No. 09-1052, 2013 WL 1498126, at *4 (D. Conn. Apr. 5, 
2013) (explaining that, in addition to being inadmissible under Rule 608, “arrests are not 
admissible under Rule 609”).                                              
Because evidence of Plaintiff’s prior arrests is neither admissible with respect to the 
claims at issue, nor admissible for impeachment purposes, this evidence shall be precluded from 
admission at trial.                                                       
2.   Evidence of Plaintiff’s Prior Convictions                       
Plaintiff also argues that evidence of Plaintiff’s prior convictions is inadmissible under 
Federal Rule of Evidence 609.  Under Rule 609(a)(2), evidence that a witness has been convicted 
of a crime involving “dishonesty or false statement” must be admitted regardless of the severity 

of the punishment or any resulting prejudice.  FED. R. EVID. 609(a)(2).  Rule 609(a)(2) is 
“restricted to convictions that bear directly on the likelihood that the defendant will testify 
truthfully (and not merely on whether he has a propensity to commit crimes).”  United States v. 
Hayes, 553 F.2d 824, 827 (2d Cir. 1977) (emphasis in original).           
None of Plaintiff’s convictions – burglary and assault, and driving while impaired – fall 
within the ambit of Rule 609(a)(2).  To the contrary, since these convictions are more than 10 
years old, Rule 609(b) is controlling here.  Rule 609(b) “applies if more than 10 years have 
passed since the witness’s conviction or release from confinement for it.”  FED. R. EVID. 609(b).  
In such circumstances, “[e]vidence of the conviction is admissible only if:  (1) its probative 
value, supported by specific facts and circumstances, substantially outweighs its prejudicial 

effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use 
it so that the party has a fair opportunity to contest its use.”  Id.  Evidence of Plaintiff’s prior 
convictions clearly fails the first prong.  Moreover, Defendants have not opposed Plaintiff’s 
motion in limine and consequently have not demonstrated how the probative value “substantially 
outweighs its prejudicial effect.”  Nor have the Defendants given any notice of an intent to 
introduce such evidence at trial.  As a result, evidence of Plaintiff’s prior convictions are 
precluded from admission at trial.                                        
V.   CONCLUSION                                                           
For the foregoing reasons, the Court GRANTS Plaintiff’s motion in limine, and any 
evidence of Plaintiff’s prior arrests or convictions shall be precluded from admission at trial.  
                                   SO ORDERED.                       

Dated: Central Islip, New York                                            
November 30, 2018                                                    
                                   /s/ A. Kathleen Tomlinson         
                                   A. KATHLEEN TOMLINSON             
                                   U.S. Magistrate Judge