Opinion
No. 12–0636.
04-10-2015
Elizabeth TYRE, Plaintiff, v. MERRITT CONSTRUCTION, INC., Defendant.
Brendan F. Baynes, Esq., The Baynes Law Firm, PLLC, Ravena, for Plaintiff. Mark J. Dolan, Esq., Napierski, Vandenburg, Napierski & O'Connor, LLP, Albany, for Defendant.
Brendan F. Baynes, Esq., The Baynes Law Firm, PLLC, Ravena, for Plaintiff.
Mark J. Dolan, Esq., Napierski, Vandenburg, Napierski & O'Connor, LLP, Albany, for Defendant.
LISA M. FISHER, J.
Plaintiff was allegedly injured in a motor vehicle accident on Monday, November 23, 2009, when she drove her car into a ditch excavated and controlled by Defendant. Plaintiff submits this motion in limine to preclude Defendant from offering into proof that Plaintiff may have smoked marijuana the morning of her car accident. During her deposition on October 3, 2013, nearly four (4) years after the accident, Plaintiff testified she socially smokes marijuana on occasion, usually on the weekend. Plaintiff testified she had “no idea” when the last time she smoked marijuana was prior to her accident. When asked if she smoked marijuana the morning of the accident, Plaintiff testified “[n]o—I don't know. I doubt it but I don't know.” When pressed by defense counsel if it was possible that she could have, Plaintiff responded “[i]t's probably unlikely but it's possible.” The follow-up question confirmed that “you can't tell me when the last time was before the accident that you smoked marijuana with any certainty[ ]” and the response was “[n]o, I can't.”
Plaintiff argues her deposition testimony alone is not proof that she smoked marijuana and was impaired by marijuana at the time of her car accident. Plaintiff further argues that her accident was investigated by the Catskill Police Department which made no mention of marijuana and no charges were brought against her for driving while ability impaired. Essentially, Plaintiff argues that the record is devoid of any evidence whatsoever that she was under the influence of marijuana at the time of the accident other than her deposition testimony which is uncorroborated by other competent evidence. Thus, Plaintiff avers the probative value of this evidence is outweighed by its prejudicial effect.
Defendant opposes the motion, arguing that prior bad acts may be admissible when it is relevant to a material issue in the case other than criminal propensity. Defendant contends that “[w]hether [P]laintiff was under the influence of marijuana at the time of the accident is obviously probative of causation ....“ and it should be able to question her at trial, particularly in light of the fact that Plaintiff' testimony was “inherently suspect” that she did not remember her marijuana use the morning of the accident. Defendant further claims that the probative-versus-prejudice analysis is “almost exclusively in a criminal law context” regarding cross-examination, not in a civil case such as a car accident.
Under New York law, it is a general rule that “all relevant evidence is admissible at trial unless admission violates some exclusionary rule.” (People v. Alvino, 71 N.Y.2d 233, 241 [1987] [citations omitted].) “[E]vidence is relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case.” (People v. Primo, 96 N.Y.2d 351, 355 [2001] ; see People v. Scarola, 71 N.Y.2d 769, 777 [1988] [stating relevant evidence “makes determination of the action more probable or less probable than it would be without the evidence.”].) Here, the Court agrees that the unlikely possibility Plaintiff smoked marijuana the morning of her accident is relevant to causation.
However, relevant evidence is not necessarily admissible. (Primo, 96 N.Y.2d at 355 ; Scarola, 71 N.Y.2d at 777.) A trial court may exclude relevant evidence in the exercise of discretion “if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury.” (Scarola, 71 N.Y.2d at 777 ; see Primo, 96 N.Y.2d at 355 ; Alvino, 71 N.Y.2d at 241 ; see also People v. Acevedo, 40 N.Y.2d 701, 704–05 [1976].) “There is no litmus paper test for determining when the probative value of the evidence outweighs its potential for prejudice.” (People v. Ventimiglia, 52 N.Y.2d 350, 359 [1981].) Therefore, the trial court is to weigh the probativeness and the potential prejudice of the proffered evidence against each other. (See Ventimiglia, 52 N.Y.2d at 359–60 ) “Evidence of merely slight, remote or conjectural significance' will ordinarily be insufficiently probative to outweigh these countervailing risks.” (Primo, 96 N.Y.2d at 355–56, quoting People v. Feldman, 299 N.Y. 153, 169–70 [1949] [citations omitted]; see Ventimiglia, 52 N.Y.2d at 359–60 [“Efforts to quantify the degree of probativeness necessary for admission establish that the evidence must be of more than slight value' ....“], quoting People v. Allweiss, 48 N.Y.2d 40, 47 [1979].)
Defendant argues that this probative-versus-prejudicial test advanced by Plaintiff is only a creature of criminal law. The Court disagrees. As Defendant's argument even leads that this test is “almost exclusively”—not exclusively, but “almost exclusively”—raised in a criminal law context. (emphasis added.) Even with a cursory search the Court found personal injury matters involving car accidents using the same or similar probative-versus-prejudicial consideration from all four departments. (See Johnson v. Ingalls, 95 AD3d 1398 [3d Dept 2012] ; Constable v. Matie, 199 A.D.2d 1004 [4th Dept 1993] ; Lanera v. Hertz Corp., 161 A.D.2d 183 [1st Dept 1990] ; Rice v. Massalone, 160 A.D.2d 861 [2d Dept 1990].)
The Court did, however, have a much more difficult time finding legal authority to support Defendant's prior bad acts argument in civil cases. Defendant quotes from People v. Leeson, 12 NY3d 823 (2009), for the proposition that prior bad acts may be admissible when it is relevant to a material issue in the case. Ironically omitted from Defendant's quote, however, is the next sentence that such assessment “rests upon the trial court's discretionary balancing of probative value and unfair prejudice.” (Lesson, 12 NY3d at 826–27.) In fact, the Court of Appeals' decision in the seminal case of People v. Mateo, 2 NY3d 383, 439 (2004), held that the determination of admissibility of evidence as to a party's prior bad acts required a two-part inquiry: First requiring the proponent of the evidence to establish relevancy of the evidence, then second “the court must weigh the probative worth of the evidence against its potential for undue prejudice resulting to the defendant.” (Mateo, 2 NY3d at 439.) In sum, Defendant essentially argues that Plaintiff's test only applies in criminal matters, which is does not, then Defendant proposes a different rule which truly is almost exclusive to criminal matters, while ignoring the glaring fact that Defendant's proposed rule is still subject to Plaintiff's test.
Defendant also relies on Simon v. Indursky, 211 A.D.2d 404 (1st Dept 1995), for the proposition that “a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility.” (Simon, 211 A.D.2d at 405 [wherein defendant admitted to cocaine use].) While that case from the First Department and only persuasive authority, the quote is actually from the Court of Appeals in Badr v. Hogan, 75 N.Y.2d 629 (1990), which is binding authority. In Badr, the Court of Appeals continued by stating “[w]hile the nature and extent of such cross-examination is discretionary with the trial court, the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue.” (Badr, 75 N.Y.2d at 634 [citations omitted].) This holding is inapposite to Defendant's final argument, which appears to almost de-criminalize and de-immoralize marijuana use because it “is a mere classB' misdemeanor, not a major offense. In fact, simply possession of a small amount ... is not even a crime; it is a violation.” That is, Defendant's first argument seeks to address Plaintiff's alleged marijuana use because it is an immoral “vice,” but Defendant's last argument mitigates the severity of marijuana use.
Further notwithstanding the general acceptance to cross-examine a witness on immoral, vicious or criminal acts, such grant is only “provided the cross-examiner questions in good faith and upon a reasonable basis in fact[,][ ] the law is inflexibly set against questioning as to such acts when the obvious intent is to show from character or experience a propensity to commit the crime for which defendant is on trial.” (People v. Wright, 41 N.Y.2d 172, 175 [1976] [citations omitted].)
In exercising its broad discretion, the Court cannot say the probative value is not substantially outweighed by the prejudicial affect. Plaintiff testimony indicated she did not recall whether she smoked marijuana that day, but deemed it “probably unlikely” even though it could have been possible. She could not testify with any certainty when she last smoked marijuana. Plaintiff repeatedly said she did not know or remember when defense counsel pressed this issue at her deposition. She did testify that she would occasionally smoke marijuana, but this was on the weekends and with friends who gave it to her; she could not afford it. Her accident occurred on a Monday and the only friends she was with were her canine and feline friends. The Court also disagrees with Defendant's contention that Plaintiff's testimony was “inherently suspect” because she stated she did not remember, given that her deposition was almost four years after the accident.
The Catskill Police Department also investigated the accident and there is no indication in the MV–104A form submitted by Plaintiff or the second incident report submitted by Defendant that Plaintiff exhibited any impairment at the time of the accident. The top right boxes of the MV–104A are also not filled out with any codes, but are ticked off. These are boxes where the reporting officer can enter codes for the “Apparent Contributing Factors” of the accident, including “2) Alcohol Impairment” and “6) Drugs (Illegal).” None of these codes were entered into the form.
The Court obtained a copy of the MV–104A key which provides the codes.
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Other than Plaintiff's deposition testimony, there is no corroborating information to possibly indicate that she was impaired by marijuana at the time of the accident. She simply admitted that she had no recollection and could not state with any certainty when the last time she smoked marijuana. The elements of when she would smoke, i.e., with friends on the weekend, are also not present at the time of the accident. Even though the testamentary evidence is relevant as to causation, the testimony that she smoked marijuana within a month prior, was unlikely to have partaken the morning of the accident, and that it might be possible but unlikely, is so slight, remote, and conjectural in significance to the issue at trial so as to carry the probative value above the substantial prejudicial affect it will have. (See Primo, 96 N.Y.2d at 355–56 [“Evidence of merely slight, remote or conjectural significance' will ordinarily be insufficiently probative to outweigh the countervailing risks.”] [citations omitted].)
The Court is further concerned that Plaintiff's honest answers at her deposition would mislead the jury into looking for an impairment when it is contrary to the record and the investigation by the Catskill Police Department. There is simply no other indication of impairment other than the forced testimony at her deposition.
Thereby, it is hereby
ORDERED that Plaintiff's motion is GRANTED, in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. A copy of this Decision and Order is being electronically submitted to the parties and the original will be handed to the prevailing party the first day of trial. The prevailing party is relieved from the filing and service requirements.