Allen v. Riley

• Decision Date: 20 June 2021
• Docket Number: Index 000698/2019
• Citation: 2021 NY Slip Op 33212 (U)
• Parties: GARY J. ALLEN, Plaintiff, v. J. TIMOTHY RILEY, M.D., MUHAMMAD A. KHAN, M.D., VASCULAR SURGEONS OF CNY, PLLC, f/k/a VASCULAR, CARDIAC AND THORACIC SURGEONS OF CENTRAL NEW YORK, PLLC, Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33212(U)

GARY J. ALLEN, Plaintiff, v. J. TIMOTHY RILEY, M.D., MUHAMMAD A. KHAN, M.D., VASCULAR SURGEONS OF CNY, PLLC, f/k/a VASCULAR, CARDIAC AND THORACIC SURGEONS OF CENTRAL NEW YORK, PLLC, Defendants.

Index No. 000698/2019

Supreme Court, Onondaga County

June 20, 2021

Unpublished Opinion

DECISION AND ORDER

HON GERARD J. NERI, J.S.C.

Plaintiff Gary J. Allen seeks an order precluding Defendants J. Timothy Riley, M.D. ("Riley"), Muhammad A. Khan, M.D. ("Kahn"), and Vascular Surgeons of CNY, PLLC ("VSCNY", and collectively the "Defendants") from entering evidence of Plaintiff s, Plaintiffs Wife's, and Plaintiffs Brother's prior criminal history (see Attorney Affirmation, NYSCEF Doc. No. 86, ¶ 13). Defendant opposes the motion.

Plaintiff seeks an order of the Court precluding Defendants from offering evidence, including the cross examination of Plaintiff, concerning prior convictions for menacing (see Certificate of Disposition, NYSCEF Doc. No. 87) and counterfeit U.S. currency (see Certificate of Conviction, NYSCEF Doc. No. 88; see also Attorney Affirmation, NYSCEF Doc. No. 86, ¶5). Plaintiff pled guilty the sale and distribution of counterfeit U.S Currency, was sentenced to ten months incarceration in a Federal prison, and three years of post-release supervision (ibid, ¶6). Plaintiffs wife and brother were also charged in the course of the investigation of the counterfeit charge (ibid). Plaintiff states that upon completion of his sentence, he has become a responsible member of society including maintaining employment and supporting his family up until his disability (ibid). Plaintiff asserts that the introduction of evidence of his convictions would be heavily prejudicial and would outweigh any probative value (ibid, ¶7).

Plaintiff notes that the admission of evidence of past convictions for impeachment purposes is within the discretion of the Court (see People v. Hulls, 76 N.Y.2d 190, 199 [1990]; see also Acunto v. Conklin, 260 A.D.2d 787 [Third Dept. 1999]; see also Davis v. McCullough, 37 A.D.3d 1121, 1122 [Fourth Dept. 2007]). Plaintiff notes the remoteness in time of the conviction is a factor the court should consider (see People v. Sandoval, 34 N.Y.2d 371, 376-77 [1974]). While New York does not have a bright line rule for the age a which a conviction may not be used, Plaintiff refers to the Federal rules which sets 10 years (see Federal Rules of Evidence 609(b)). Plaintiffs counsel reiterates that Plaintiff has served his sentence, and has been a productive member of society ever since he completed his sentence, up until the time of his disability (see Attorney Affirmation, NYSCEF Doc. No. 86, ¶ 12). Plaintiff urges the Court to grant the relief requested.

Defendants oppose the relief sought and not the 2004 conviction for counterfeiting is "by definition a crime of deceit" (see Attorney Affirmation, NYSCEF Doc. No. 91, Tf3). The Federal crime of dealing in counterfeit obligations or securities is defined as:

"Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be fined under this title or imprisoned not more than 20 years, or both" (18 U.S.C.§473).

Defendant alleges that Plaintiff "was untruthful about the nature of the crime even in his deposition, as he asserted he was convicted merely of 'possession of counterfeit money.' (Ex. C [NYSCEF Doc. No 94], p. 19)" (Attorney Affirmation, NYSCEF Doc. No. 91, ¶9). Defendants assert Plaintiff credibility is central to this matter (ibid, ¶¶12, 17). Defendants assert that Plaintiffs convictions for menacing, 3rd should also be allowed into evidence (ibid, ¶18). Defendants also urge that the counterfeiting charge that Plaintiffs wife was convicted of should be utilized for impeachment purposes (ibid, ¶22).

Defendants argue that Sandoval specifically excludes remoteness as a consideration for crimes of deceit. "Commission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness (e.g., offenses involving theft or fraud, bribery, or acts of deceit, cheating, breach of trust) will usually have a very material relevance, whenever committed" People v. Sandoval, 34 N.Y.2d 371, 377 (1974). Defendants assert that "evidence of criminal convictions is more broadly admitted in civil cases under CPLR §4513 than in criminal cases" (see Memorandum of Law, NYSCEF Doc. No. 98, p. 4). "Pursuant to CPLR §4513, any conviction of a crime may be introduced to impeach the credibility of a witness at a civil trial" (Able Cycle Engines. Inc. v Allstate Ins. Co., 84 A.D.2d 140, 142-143 [Second Dept. 1981]). Defendants then distinguish the cased cited by Plaintiff from the instant matter. Defendant opposes Plaintiffs motion to preclude impeachment of Plaintiff or Plaintiffs Wife by use of the counterfeit convictions.

Defendants assert that Plaintiffs conviction for menacing 3rd should be allowed both under CPLR §4513 and as a prior inconsistent statement. Defendant's assert Plaintiff "did not discuss the conviction in his deposition (see Memorandum of Law, NYSCEF Doc. No. 98, pp. 7-8).. Defendants attached the Plaintiffs deposition transcript, which states in pertinent part: "Q. And prior to that felony plea, had you ever had a criminal conviction? A. No. Not that I remember, no. Q. And how about after that, that period of incarceration, any criminal misdemeanor or felony convictions after that? A. No" (Allen Transcript, NYSCEF Doc. No. 94, p. 19). Defendant asserts the menacing 3rd conviction should be allowed for impeachment purposes.

Discussion:

"The rules governing the admissibility of evidence of other crimes represent a balance between the probative value of such proof and the danger of prejudice which it presents to an accused" (People v. Sandoval, 34N.Y.2d 371, 375 (1974), citing People v. Schwartzman, 24 N.Y.2d 241 [1969]). "The principals articulated in Sandoval are applicable to civil, as well as criminal, actions" (see Tripp v. Williams, 39 Misc.3d 318, 322 [Sup. Ct. Kings County 2013]). "While 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 v. Hogan. 75 N.Y.2d 629, 634 [1990]). It is beyond dispute that Plaintiffs conviction for dealing in counterfeit obligations or securities in violation of 18 U.S.C. §473 is one which directly bears on Plaintiffs credibility. However, a closer look at the evidence before the Court reveals this particular instance is not so cut and dry.

Defendant submitted Plaintiffs Certificate of Conviction, and included with the exhibit is Allen's Sentencing Memorandum and Motion for Downward Departure (NYSCEF Doc. No. 92, pp. 12-16). Allen's attorney argued for a downward departure as Allen only committed the offense under duress (ibid). Allen stated in the application:

"I believed [Joseph Allen, Plaintiffs brother], and trusted him on his word. A few months had gone by, and he had asked my wife and I to go to his new place for dinner. He gave me a quick tour of his place when I noticed phony passports with his pictures on them. After I had confronted him about it, he pushed me on the ground and stuck a large handgun into my mouth and threatened me. He said that if I didn't do what he said, or if I ever turned him in, that he would kill everybody, me, Mom, my wife and her family. I was really scared and feared for my life and the lives of my family. I knew that my brother had been involved with organized crime and that he would harm others if necessary. I tried to keep distant from him after that incident, but he

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