Benbow

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMES BENBOW,

MEMORANDUM & ORDER

Plaintiff, 17-CV-6457(EK)(JRC)

-against-

POLICE OFFICER BRIAN FEELEY; POLICE

OFFICER MATTHEW ROSIELLO,

Defendants.

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ERIC KOMITEE, United States District Judge:

Trial is scheduled to begin shortly in this case.

Plaintiff Benbow and individual defendants have submitted

various motions in limine. See ECF Nos. 140-41 and 150-51. The

Court issued a previous ruling on certain motions, see ECF No.

175, and now resolves several additional motions in advance of

opening statements as follows. Judgment is reserved on any

motion not expressly addressed herein or in our previous order.

Motion to Preclude Plaintiff from Calling Witnesses

Not Properly Disclosed in Discovery (Defendants). Defendants

seek to preclude plaintiff from calling Sgt. Winston, Det.

Lamoglia, Det. Bustamente, and Det. Testa because he did not

properly disclose those witnesses during discovery. ECF No.

150-1, at 16. In opposition, Plaintiff argues that he disclosed

his intention to call witnesses in this category — namely,

“[m]embers of The City of New York / NYPD who investigated any

claims related to the parties.” ECF No. 155, at 15. This is

insufficient. Fed. R. Civ. P. 26(a)(1)(A)(i); see, e.g.,

Fleming v. Verizon New York, Inc., No. 03-cv-5639, 2006 WL

2709766, at *8 (S.D.N.Y. Sept. 22, 2006) (the “failure to

disclose the names of four witnesses . . . represent[ed] a

complete disregard for the rules”).1 Plaintiff will be permitted

to call these witnesses only if he demonstrates that he

disclosed their names as required, or that he previously made

the necessary showing to excuse this requirement. See Fed. R.

Civ. P. 37(c)(1).

Motion to Preclude Plaintiff from Introducing Evidence

of Investigations into the Shooting, Except for Prior Statements

Properly Used for Impeachment (Defendants). Defendants seek to

preclude a large quantum of investigative documents that

plaintiff identified as potential exhibits. These purportedly

include, for example, reports of the Civilian Complaint Review

Board and NYPD Use of Force Review Board. But the parties

provide no information regarding the findings of those

investigations, nor do they point the Court toward the relevant

reports. See ECF No. 150-1, at 19-20; 155. It is therefore

1 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

difficult to assess the admissibility of the reports at this

juncture.

Nonetheless, Defendants are generally correct that any

conclusions reached by investigative bodies would constitute

hearsay. See ECF No. 150-1, at 19-20. They are also likely to

be inadmissible under Federal Rules of Evidence 401 and 403

because they would supplant the jury’s role. The jury is the

finder of fact in this case, so an investigator’s findings are

generally irrelevant. And the introduction of these records

would risk the suggestion that jurors should defer to an

investigator’s findings of fact, causing needless confusion.

Accordingly, absent a further ruling, this evidence will be

excluded.

This ruling should not be read to limit plaintiff’s

ability to introduce statements defendants Feeley and Rosiello

themselves made to investigators as party admissions under

Federal Rule of Evidence 801(d)(2). He may do so. To the

extent there are other, specific statements plaintiff would like

the Court to consider admitting, plaintiff should identify those

statements and the specific basis for admitting them (citing

authority) by 8:00 p.m. on October 26.

Motion to Preclude Plaintiff from Mentioning the City

of New York, Referring to Defense Counsel as City Attorneys, or

Suggesting the City May Indemnify Defendants (Defendants). The

motion is granted. Any reference to potential indemnification

or to defense counsel as city attorneys is excluded as both

irrelevant and prejudicial. See Fed. R. Evid. 401 & 403.

“Indemnification is not relevant to any issue before the jury,”

Edwards v. City of New York, 8-cv-2199, 2011 WL 2748665, at *5

(E.D.N.Y. July 13, 2011), and the suggestion that defendants

will be indemnified “may prejudice the jury's assessment of

liability or damages,” Est. of Jaquez v. Flores, 10-cv-2881,

2016 WL 1060841, at *2 (S.D.N.Y. Mar. 17, 2016). Since the City

of New York is no longer a defendant in this action, any

reference to defense counsel as city attorneys can only serve to

prejudice the jury by suggesting defendants may be indemnified.

Motion to Preclude Officers’ Disciplinary History,

Prior Lawsuits, and Personnel Files (Defendants). Defendants

generically object to any inquiry into “disciplinary histories

and / or civil rights actions which have been filed against

defendants, or any non-party police officers.” ECF No. 150-1,

at 22. They do not tell the Court what this history consists

of. Plaintiff opposes the motion, but in equally generic

fashion, pointing to no specific lawsuit, disciplinary action,

or incident he wishes to introduce. ECF No. 155, at 23-25.

The motion is granted in part and denied in part. To

the extent plaintiff wishes to introduce this evidence against a

testifying, non-defendant officer to impeach his or her

“character for truthfulness or untruthfulness,” it will be

permitted to the extent the evidence comports with Rule 608(b)

(or, to the extent relevant, Rule 609).

To the extent plaintiff wishes to introduce this

evidence against the defendant officers affirmatively — that is,

other than for impeachment purposes — he must demonstrate that

he is offering it for some permissible purpose, and not simply

to demonstrate propensity. See Fed. R. Evid. 404(b). Because

plaintiff has not identified which specific incidents he would

like to introduce or the basis for which they would be admitted

under Rule 404(b), the Court reserves judgment on this question.

Pending further ruling, no party should discuss evidence in this

category during opening statements. To the extent there are

specific incidents plaintiff would like the Court to consider

admitting, plaintiff should identify those incidents and the

specific basis for admitting them (citing authority) by 8:00

p.m. on October 26.

Motion to Preclude Allegations of Misconduct Against

Other Police Officers and Events in the News (Defendants).

Based on the parties’ briefing, the Court does not expect

plaintiff to offer evidence of misconduct against other police

officers (not present at trial in any capacity) or other events

in the news, or to include any references to such evidence in

argument. No such evidence or argument should be offered or

made without a further ruling from the Court.

Motion to Admit Relevant Portions of Plaintiff’s

Criminal History (Defendants). The Court reserves judgment on

this motion. Defendants move to admit portions of plaintiff’s

criminal history under Federal Rule of Evidence 609, which

allows impeachment by evidence of certain criminal convictions.

See ECF No. 150-1, at 29-30. Given the lack of certainty

regarding whether plaintiff will testify, the Court does not

expect either party to mention this evidence in its opening

statement.

Motion to Admit the Fact That Plaintiff Was on Parole

on the Date of the Shooting (Defendants). The Court currently

sees no basis for admitting this. The parties will not be

permitted to mention that plaintiff was on parole at the time of

the shooting during opening statements or trial, absent a

further ruling.

Motion to Admit Evidence That Plaintiff Has Previously

Used an Alias (Defendants). Because plaintiff’s prior use of an

alias would only be admissible for purposes of impeachment, the

Court reserves judgment on this motion. Given the current lack

of certainty regarding whether plaintiff will testify, the Court

does not expect either party to mention this evidence in its

opening statement.

Motion to Exclude Plaintiff’s Proposed Exhibit 3

(Defendants). Defendants’ motion to exclude plaintiff’s Exhibit

3 is denied. Subject to plaintiff satisfying applicable

foundational requirements, records from the Office of the Chief

Medical Examiner will generally be admitted as records of a

regularly conducted activity. See Fed. R. Evid. 803(6).

Defendants will, however, be permitted to levy more specific

hearsay and prejudice objections. Additionally, to the extent

Exhibit 3 consists of multiple records compiled as a single

exhibit, those documents must be disaggregated and marked

individually. See Rule IV.D.1 of this Court’s Individual Rules

and Practices.

Defendants also express concern that plaintiff’s

counsel will opine that “plaintiff’s DNA was definitively not

found on the gun alleged to have been in his possession” during

their opening statement. ECF No. 179. Defendants advise that

the NYPD performed no testing on any DNA recovered from the

firearm at issue. Given that understanding, the objected-to

opinion would lack a basis in fact. To the extent counsel might

seek to argue for any inference from the fact that the DNA was

left untested, the potential for improper prejudice appears to

be substantial (and the relevance minimal). The defendants

themselves had no apparent role in the decision to test the DNA

or not, and any decision by the NYPD might have been affected by

the plaintiff’s decision to plead guilty. No party should

reference this issue, pending further ruling.

Motion to Preclude Defendants from Referencing Any

Prior Bad Acts by Plaintiff, including Incarceration,

Convictions, the Underlying Criminal Matter, and Any Arrests

(Plaintiff). The Court has already ruled on the parties’

ability to discuss the underlying criminal matter. See ECF No.

175, at 2-3. The parties have not indicated what other,

unrelated acts are at issue. Absent such specifics, the Court

presumes that any such evidence would be admissible only for

purposes of impeachment, and thus reserves judgment at this

time.

Motion to Preclude Jason Marshall from Testifying and

to Preclude Reference to Any Events, Including Events at

Amarachi Prime, That Preceded Plaintiff’s Interaction with

Defendants (Plaintiff). Defendants have indicated that they do

not intend to call Marshall at trial, ECF No. 154, at 8, so that

question is moot. The rest of the motion is granted in part and

denied in part. “Where officers attempting to make an arrest

used deadly force, the objective reasonableness inquiry . . .

depends only upon the officer[s’] knowledge of circumstances

immediately prior to and at the moment that he made the split-

second decision to employ deadly force.” O’Bert ex rel. Est. of

O’Bert v. Vargo, 331 F.3d 29, 36-37 (2d Cir. 2003). To the

extent that certain events at Amarachi Prime were conveyed to

officers Feeley and Rosiello, those statements are likely to be

admissible because they are relevant to defendants’ state of

mind and are thus offered for a non-hearsay purpose. See Fed.

R. Evid. 801(c)(2). Events at Amarachi Prime that were never

conveyed to defendants are presumably irrelevant and will

therefore not be admitted, absent a further ruling.

Motion to Preclude the Surveillance Video (Plaintiff).

Plaintiff’s motion to preclude the surveillance video taken

shortly before the shooting is denied. The video will be

admitted, subject to Defendants satisfying applicable

foundational requirements. Plaintiff cites the Court’s summary

judgment motion as having concluded the video was

“inconclusive,” ECF No. 151-1, at 9, but that conclusion simply

formed the basis for the Court’s determination that “genuine

questions for the jury” persisted. ECF No. 122, at 25. Nor

does the fact that the footage slightly predates the shooting

render it categorically irrelevant.

Motion to Preclude Plaintiff’s Rap Sheet, Facebook

Posts, and Recordings from Jail (Plaintiff). Because

Plaintiff’s “rap sheet” would only be admissible for purposes of

impeachment, the Court reserves judgment on its admissibility at

this time. Defendants likewise state that plaintiff’s Facebook

posts will only be used for impeachment purposes. See ECF No.

190. Given the lack of certainty regarding whether plaintiff

will testify, the Court does not expect either party to mention

this evidence in its opening statement. As defendants have

withdrawn their request to use any recordings from jail, see

id., that portion of the motion is moot.

Motion to Preclude All Records Related to the

Underlying Arrest and Prosecution (Plaintiff). The Court

already ruled on this issue. See ECF No. 175, at 2-3.

Motion to Preclude Any Documents or Materials Not

Produced or Disclosed by Defendants in Discovery (Plaintiff).

The Court cannot rule on so vague a motion. If there are

specific documents or materials plaintiff would like the Court

to consider excluding on this basis, he should identify them by

8:00 p.m. on October 26.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: October 26, 2025

Brooklyn, New York