Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSEPH JACKSON,

Plaintiff, ORDER

18-CV-3007(JS)(AYS)

-against-

DETECTIVE ROBERT DEMPSEY;

DETECTIVE GARY ABBONDANDELO;

DETECTIVE JOHN M. HOLLAND;

DETECTIVE MICHAEL HERTS;

DETECTIVE MARTIN ALGER; DETECTIVE

WALTER SWENSON; DETECTIVE ANTHONY

KOSIOR; DETECTIVE SERGEANT DAN

SEVERIN1;

Defendants.

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APPEARANCES

For Plaintiff: Baree N. Fett, Esq.

Gabriel Paul Harvis, Esq.

Elefterakis, Elefterakis & Panek

80 Pine Street, 38th Floor

New York, New York 10005

For Defendants: Janine A. Mastellone, Esq.

John Martin Flannery, Esq.

John Vitagliano, Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker,

LLP

1133 Westchester Avenue

West Harrison, New York 10604

SEYBERT, District Judge:

Presently before the Court are seven motions in limine

filed by the parties to this case. Defendants Robert Dempsey,

Gary Abbondandelo, John M. Holland, Michael Herts, Martin Alger,

1 The Court GRANTS Defendants’ Motion to amend the case caption.

See ECF No. 425 at 12-13.

Walter Swenson, Anthony Kosior, and Dan Severin (“Defendants”)

have filed six separate motions in limine; Plaintiff Joseph Jackson

(“Plaintiff,” collectively with Defendants, the “Parties”) has

filed a single omnibus motion in limine. The Court proceeds to

rule on the Parties’ respective motions in Limine, listed below:

1. Defendants’ Motion in Limine to Preclude Reference to

Indemnification, Request for Specific Dollar Amount and

General Police Misconduct (ECF No. 411-1, the “References

Motion”);

2. Defendants’ Motion in Limine to Preclude Polygraph Evidence

and Witness Testimony (ECF No. 414, the “Polygraph & Dorsey

Motion”);

3. Defendants’ Motion in Limine to Preclude Testimony of

Plaintiff’s Expert Witnesses (ECF No. 417, the “Experts

Motion”);

4. Defendants’ Motion in Limine to Preclude Rule 404(B) and Rule

608(B) Evidence (ECF No. 420, the “Prior Acts Motion”);

5. Defendants’ Motion to Preclude Evidence of Purported

Innocence, Evidence, and Testimony from the Nassau County

District Attorney’s Office Conviction Integrity Unity

Reinvestigation, and to Bifurcate Trial (ECF No. 423, the

“Innocence & Bifurcation Motion”);

6. Defendants’ Motion in Limine to Preclude Evidence of

Dismissed Claims (ECF No. 425, the “Dismissed Claims

Motion”); and

7. Plaintiff’s Motion in Limine (ECF No. 432, the “Omnibus

Motion”).

BACKGROUND

I. FACTS

The Court assumes the parties’ familiarity with the

factual background giving rise to this civil rights action

(hereinafter, the “Action”), as documented in the summary judgment

order, which is incorporated by reference herein.2 See generally

Jackson v. Nassau County et al., No. 18-CV-3007, 2024 WL 4252047

(E.D.N.Y. Sept. 20, 2024) (hereafter, the “Summary Judgment

Order”). However, for context and convenience, the Court briefly

reiterates the relevant facts.

On March 20, 1994, Victim Steven Jason was murdered. In

December 1994, Plaintiff confessed to murdering Victim, but has

maintained his confession was coerced ever since. (Id. at 33-37.)

On December 9, 1996, Plaintiff was convicted of murdering Victim

and sentenced to 25-years-to-life in prison. (See Summary Judgment

2 The terms of art defined in the Court’s Summary Judgment Order

are, likewise, incorporated by reference herein, familiarity with

which is also presumed.

Order at 47-48.) In 2018, Nassau County ADA and Conviction

Integrity Unity (“CIU”) Chief Sheryl Anania moved to vacate

Plaintiff’s conviction, after the CIU learned Plaintiff never

received statements made by Larrea and Montes, who identified

Victim’s shooter as someone not matching Plaintiff’s description.

(Id. at 20-24, 49-51.)

Plaintiff subsequently brought the Action, alleging a

variety of constitutional and civil rights violations related to

the investigation into Victim’s murder. (Id. at 54-55.) After

various Court rulings, Plaintiff’s causes of action that remain

for trial are: (1) fabrication of evidence; (2) coercion; and (3)

failure to intervene claims, all related to Plaintiff’s

interrogation and subsequent confession to murdering Victim; and

(4) a Brady claim, related to the Larrea and Montes statements.

(Id. at 109-10.) As to the interrogation claims, Plaintiff alleges

he signed the confession statement Dempsey prepared only after he

was repeatedly beaten, threatened, and isolated from his attorney

during a multi-day interrogation, wherein he was also deprived of

sleep and food. (Id. at 33-37.) As to the Brady claim, Plaintiff

alleges Defendants withheld the Larrea and Montes statements,

which he believes are exculpatory. (Id. at 66-68.)

II. In Limine Motions, Generally

As thoroughly explained by Honorable Katherine B.

Forrest of the Southern District of New York:

In limine motions can play an especially

important and useful role in a jury trial,

allowing the parties to seek rulings in

advance as to issues that otherwise may

require extensive side bars or argument that

can interrupt the proceedings. See Palmieri

v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996);

accord Highland Capital Mgmt., L.P. v.

Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y.

2008). Well-grounded in limine motions may

also require the parties to sharpen their

focus on the real issues in a case and

streamline their presentations. See In re

Methyl Tertiary Butyl Ether Prods. Liab.

Litig., 517 F. Supp. 2d 662, 666–67 (S.D.N.Y.

2007). . . . The Court’s role with regard to

such pretrial rulings is grounded in [R]ule

104 of the Federal Rules of Evidence. That

rule “requires that a court make a preliminary

determination of the admissibility of all

evidence.” SEC v. Tourre, 950 F. Supp. 2d

666, 675 (S.D.N.Y. 2013). In the context of

a pre-trial in limine ruling, challenged

evidence “should only be precluded when it is

‘clearly inadmissible on all possible

grounds.’” (quoting Commerce Funding Corp. v.

Comprehensive Habilitation Servs., Inc., No.

01 Civ. 3796, 2005 WL 1026515, at *3 (S.D.N.Y.

May 2, 2005)). In limine rulings are

“necessarily preliminary—and [ ] subject to

change when the case unfolds.” Id. at 676

(citing Highland Capital Mgmt., 551 F. Supp.

2d at 176; Commerce Funding, 2005 WL 1026515,

at *4). “A foundation may be laid contrary to

expectations; relevance may appear where

previously considered unlikely; the balancing

of factors under Rule 403 may change as events

in the courtroom drama unfold. The Court

recognizes that trials often contain

unexpected moments and developments, and[,

thus,] the parties should bear those

developments in mind when determining whether

to drop or re-raise an issue decided by this

order.” Id.

Luitpold Pharm., Inc. v. Ed. Geistlich Sohne A.G. Fur Chemische

Industrie, No. 11-CV-0681, 2015 WL 5459662, at *1 (S.D.N.Y. Sept.

16, 2015); see also Williams v. Geraci, No. 14-CV-5742, 2020 WL

5848738, at *5 (E.D.N.Y. Sept. 30, 2020) (discussing MIL standard).

III. Defendants’ Motions in Limine

A. The References Motion

1. Suggesting Indemnification & Reference to “County

Attorneys”

Defendants argue Plaintiff should be barred from (a)

suggesting the County will indemnify Defendants and (b) referring

to defense counsel as “County Attorneys.” (References Motion at

2-3.) Plaintiff asserts he does not plan to refer to defense

counsel as “county attorneys” and will only raise indemnification

if Defendants first suggest they will be personally liable. (ECF

No. 437, the “References Motion Opposition,” at 1.) The Court

accordingly DENIES this Motion as moot, but will revisit the issue

at trial if Defendants reference personal liability. Accord Ashley

v. Civil, No. 14-CV-5559, 2019 WL 1441124, at *10 (E.D.N.Y. Apr.

1, 2019).

2. Plaintiff’s Request for Specific Dollar Amount

Defendants additionally seek to bar Plaintiff from

requesting a specific dollar amount from the jury. (References

Motion at 3-4.) Plaintiff contends such guidance is particularly

warranted in complex wrongful conviction cases involving multiple

harms, such as loss of liberty and emotional injury. (References

Motion Opposition at 3-4.)

Whether a party may request a specific damage amount is

“best left to the discretion of the trial judge, who may either

prohibit counsel from mentioning specific figures or impose

reasonable limitations, including cautionary jury instructions.”

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997).

Courts in this Circuit often allow plaintiffs to submit specific

damages figures for “compensable damages, such as previously

incurred or foreseeable medical expenses, if supported by

admissible evidence,” but “prohibit[t] [p]laintiff[s] from

submitting to the jury a request for a specific dollar amount

regarding [their] non-economic damages.” Woolfolk v. Baldofsky,

No. 19-CV-3815, 2022 WL 2600132, at *4 (E.D.N.Y. July 8, 2022).

The Court accordingly takes this approach and GRANTS this Motion

in part: Plaintiff may supply compensable damages figures if

substantiated or foreseeable, but may not request a specific non-

economic damages figure.

3. Unrelated Claims of Police Misconduct and

Terminology

Defendants seek to prohibit Plaintiff from referencing

unrelated claims of police misconduct and from using perceived

anti-police language such as “testilying,” “blue wall of silence,”

and related terms. (References Motion at 4-5.) Plaintiff states

he does not plan on using these terms, but believes a “broader

prohibition would unduly infringe on” his prosecution of the

Action. (References Motion Opposition at 5.) The Court

accordingly GRANTS this Motion without prejudice to renew and will

address any “broader prohibition” arguments if they arise at trial.

B. Polygraph & Dorsey Motion

1. All Polygraph Evidence Except From Defendant

Defendants seek to preclude investigation-related

polygraph evidence—including the fact polygraphs even took place—

from all individuals other than Plaintiff. (Polygraph & Dorsey

Motion at 1-3 (citing, e.g., United States v. Fraser, 206 F. App’x

100, 101 (2d Cir. 2006) (instructing Supreme Court and Second

Circuit “have repeatedly upheld the exclusion of polygraph

evidence because of its unreliability, its potential to confuse

the issues and mislead the jury, and the danger of unfair prejudice

posed by its admission”)).) Plaintiff argues polygraph evidence,

while unreliable and inadmissible for its truth, is relevant to

illustrate how Defendants selectively used polygraphs to further

coercive interrogation tactics and as bad-faith manipulation of

evidence. (ECF No. 438, “Polygraph & Dorsey Motion Opposition,”

at 2-4.)

Although courts in this Circuit typically do not admit

polygraph results, they are more flexible for non-result polygraph

evidence. For example, in Kogut v. County of Nassau, 789 F.3d 36,

47-48 (2d Cir. 2015), this Court permitted parties to show

polygraphs had taken place during a police investigation, but

barred their results. Kogut, 789 F.3d at 47-48. The Court

accordingly GRANTS the Motion in part on this basis: Parties may

introduce evidence that polygraphs took place but may not introduce

polygraph results.3

2. Takita Dorsey’s Testimony

Per Plaintiff’s characterization in the proposed Joint

Pre-Trial Order (“PTO”), “Takita Dorsey is described in the

December 18, 1994 statement attributed to [P]laintiff as having

served as a messenger between [P]laintiff and Tony Jackson

[(“Tony”)], but Ms. Dosey truthfully denied these allegations in

a 1995 polygraph exam administered by NCPD. Ms. Dorsey will testify

about her recollection of the events.” (ECF No. 405, the “Proposed

3 The Court addresses Plaintiff’s polygraph evidence in a separate

section of this M&O.

PTO,” at 7.) Defendants assert such testimony does not relate to

the narrowed scope of the trial, which focuses on the alleged

coerced confession and Brady claims, but, instead pertains to

Plaintiff’s innocence, especially because the prosecutors did not

make a charging decision based on Dorsey’s testimony. (Polygraph

& Dorsey Motion at 3-4 (citing Haskins v. Jackson, No. 15-CV-2016,

2020 WL 6705640, at *10 (E.D.N.Y. Nov. 10, 2020)).) Plaintiff

considers Dorsey’s testimony relevant because it undermines

Defendants’ drafted confession, as it purportedly shows

Defendants’ state of mind and selective use of polygraph evidence.

(Polygraph & Dorsey Motion Opposition at 9-12.) Plaintiff also

attempts to cast Dorsey’s testimony as evidence of Plaintiff’s

innocence. (Id. at 11-12.)

This claim is accordingly GRANTED in part and DENIED in

part such that Dorsey’s polygraph result is inadmissible, but she

may testify to her experiences with the investigation and can

assert she did not pass messages between Plaintiff and Tony. Such

testimony may bear some relevance to the coercion claim, given her

interactions with Defendants.

C. Experts Motion4

1. Dr. Jennifer Dysart

Plaintiff proffers Dr. Jennifer Dysart (“Dr. Dysart”) as

an expert on eyewitness identifications. (ECF No. 416-1, the

“Dysart Report.”) Dr. Dysart is an Associate Professor of

Psychology at John Jay College and has researched, taught, and

testified extensively on the subject. (See id. at 1.) The Dysart

Report discusses how variables beyond law enforcement control

(“Estimator Variables”) and within law enforcement control

(“System Variables”) render some eyewitness identifications

unreliable. (Id. at 5.) She discusses both categories generally

and as applied to Skwanitra Witherspoon’s identification of

Plaintiff. (Id.) In Dr. Dysart’s view, Estimator Variables such

as limited opportunity to observe the shooter, stress induced by

witnessing the murder, the nine-month delay between the Victim’s

murder and investigation, and the mismatch between Witherspoon’s

description and Plaintiff’s physique render her identification of

Plaintiff unreliable. (Id. at 9-13.) As to System Variables, Dr.

Dysart states the photo array, line-up processes, and law

enforcement instruction and feedback undermined the reliability of

Witherspoon’s identification. (Id. at 13-22.) Plaintiff asserts

Dr. Dysart is qualified to provide relevant scientific insights to

4 Defendants initially objected to Plaintiff’s damages expert,

Kristin Kucsma, but subsequently withdrew the objection. (ECF No.

447 at 11.)

assist the jury’s assessment of materiality. (ECF No. 439, the

“Expert Witness Opposition,” at 14 (citing United States v. Nolan,

956 F.3d 71, 82 (2d Cir. 2020); Rosario v. City of N.Y., No. 18-

CV-4023, 2021 WL 1930293 (S.D.N.Y. May 13, 2021) (admitting similar

Dr. Dysart eyewitness identification testimony)).)

Defendants contend Dr. Dysart’s analysis should be

excluded, as it is not relevant to Plaintiff’s coercion or

materiality claims. (Experts Motion at 5-6.) Because all claims

related to the photo array and line-up have been dismissed,

Defendants argue Dr. Dysart’s testimony relates primarily to

dismissed claims and is thus not a “fit” on Daubert grounds. (Id.

at 6-7 (citing In re Refco Inc. Sec. Litig., No. 07-MD-1902, 2012

WL 7007795, at *5 (S.D.N.Y. Nov. 29, 2012), report and

recommendation adopted sub nom., In re Refco Sec. Litig., No. 07-

MDL-1902, 2013 WL 452400 (S.D.N.Y. Feb. 6, 2013)).) To the extent

the testimony relates to non-dismissed claims, Defendants maintain

Dr. Dysart relays “an inappropriate factual narrative” not subject

to expert testimony. (Id. at 7-8 (citing Scentsational Techs.,

LLC v. Pepsi, Inc., No. 13-CV-8645, 2018 WL 1889763, at *4

(S.D.N.Y. Apr. 18, 2018), aff’d sub nom., ScentSational Techs. LLC

v. PepsiCo, Inc., 773 F. App’x 607 (Fed. Cir. 2019)).) Defendants

alternatively assert Dr. Dysart should be precluded on Rule 403

grounds because her testimony risks creating unfair prejudice,

confusing the issues, and misleading the jury by implying they are

liable for previously-dismissed theories misconduct and providing

speculative analysis. (Id. at 9-11.)

To be admissible under Rule 702, an expert’s testimony

must “fit” the facts of the case. Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579, 591 (1993). The Systems Variable

analysis is not a strong “fit,” as this Court dismissed the photo

array and line-up claims. At the very least, such testimony has

strong potential to confuse the jury. Refco, 2012 WL 7007795, at

*5 (“The expert opinions here, to the extent they evaluate the

merits of dismissed claims, are simply seeking to relitigate

adverse determinations rendered by the court in this case.”). But

the Estimator Variables testimony could be helpful to the Brady

claim, as “[a] lay juror would not know . . . about the likely

impact on perception of extreme stress and weapon focus” in

assessing eyewitness reliability. Nolan 956 F.3d at 82. Hence,

Dr. Dysart may testify as to Estimator Variables generally, but

she may not narrate facts or discuss witnesses in the case at all.

Defendants’ Motion on this point is thus GRANTED in part and DENIED

in part.

2. Dr. Hayley Cleary

Dr. Hayley Cleary is an Associate Professor of Criminal

Justice at Virginia Commonwealth University. (ECF No. 391-15, the

“Cleary Report,” at 1.) Dr. Cleary specializes in police

interrogation tactics, particularly as they relate to false or

coerced confessions. (Id.) The Cleary Report concludes

Plaintiff’s confession may have been coerced because numerous

“risk factors” for a coerced confession were present throughout

the investigation. (See generally id.) Although Plaintiff cites

to several cases, mostly from other circuits and state courts,

upholding coerced confession expert testimony (see Experts

Opposition at 19-24), this Court explained in Kogut that Second

Circuit courts “have consistently considered, and excluded, expert

testimony on the topic of false confessions.” Kogut v. County of

Nassau, No. 06-CV-6695, 2013 WL 3820826, at *7 (E.D.N.Y. July 22,

2013) (collecting cases), aff’d in part, 789 F.3d 36 (2d Cir.

2015), and aff’d in part sub nom., Restivo v. Hessemann, 846 F.3d

547 (2d Cir. 2017). Because such testimony is disfavored in the

Second Circuit, the Court accordingly GRANTS Defendants’ Motion as

to Dr. Cleary, and thereby excludes his testimony.

3. Jeffrey Noble

Plaintiff’s police procedures expert, Jeffrey Noble

(“Noble”), contends Defendants’ investigation conduct departed

from generally accepted police procedures. (ECF No. 439-12, the

“Noble Report.”) Noble concludes Defendants: conducted an

investigation biased toward confirming Plaintiff’s guilt; failed

to investigate the Larrea and Montes statements; failed to properly

preserve and disclose statements such as: a tip from Elisa Valdez,

notes from an interview with Peddie Baldwin, and the Larrea and

Montes 911 call; and employed tactics that risked obtaining a false

confession.5 (See generally Noble Report.) Noble frames many of

these conclusions as departures from what a “reasonable police

officer” would do in the circumstances. (Id.)

Defendants contend Noble’s testimony should be excluded

for largely opining on dismissed investigation-related issues.

(Experts Motion at 18.) Defendants also characterize Noble’s

“reasonable officer” claims as impermissible legal conclusions.

(Id. at 19 (citing, e.g., Callahan v. Wilson, 863 F.3d 144, 153

(2d Cir. 2017) (precluding expert testimony that an officer “did

not act reasonably under the circumstances” because such testimony

“intrude[s] on the jury’s exclusive role as the finder of

facts”)).) Plaintiff, on the other hand, maintains Noble’s

testimony provides the jury with a baseline understanding of

accepted investigative standards and can help the jury determine

whether Defendants’ departures from those standards were reckless

or intentional. (Experts Opposition at 28-29.) Any discussion of

5 Specifically, Valdez’s tip was found neither material nor

exculpatory, Plaintiff waived his argument as to Baldwin, and the

Court granted summary judgment on the spoliation claim. (See

Summary Judgment Order at 66-67 n.16, 110.)

dismissed claims, in Plaintiff’s view, serves “as circumstantial

evidence of [D]efendants’ liability and state of mind.” (Id.)

In Restivo v. Hessemann, 846 F.3d 547, 579 (2d Cir.

2017), the Second Circuit explained “expert testimony on

applicable professional standards is relevant because it ‘can give

a jury a baseline to help evaluate whether a defendant’s deviations

from those standards were merely negligent or were so severe or

persistent as to support an inference of intentional or reckless

conduct that violated a plaintiff’s constitutional rights.’” (Id.

at 3 (citing Restivo, 846 F.3d at 580 (additional citation

omitted).) Consistent with Restivo, the Court GRANTS Defendants’

Motion in part and DENIES it in part. Therefore, Noble: (a) may

not testify as to the (i) Valdez tip, (ii) Baldwin interview, (iii)

Witherspoon identification processes, and (iv) the spoilation

claims, which are likely to confuse the jury with issues not being

tried; (b) may not testify as to what a “reasonable police officer”

would do in a given circumstance; but (c) may testify as to whether

actions relevant to the coercion or Brady claims strayed from

police protocols, as not all lay jurors have knowledge of

specialized practices around policing.

D. Prior Acts Motion

1. Evidence Related to Defendants’ Disciplinary Records

or Civilian Complaints

Defendants contend Plaintiff should be barred from

asking about several proposed exhibits related to Defendants’

police disciplinary histories or civilian complaints. (Prior Acts

Motion at 6-8.) Plaintiff states he will not offer such evidence.

(ECF No. 440, the “Prior Acts Motion Opposition,” at 2.)

Defendants’ Motion on this point is accordingly DENIED as moot.

2. Evidence Related to Robert Moore & Jose Anibal

Martinez

Defendants move to preclude Plaintiff from proffering

testimony or documents about Robert Moore and Jose Anibal Martinez,

two individuals unrelated to the facts of the case but who have

had experiences with particular Defendants. (Prior Acts Motion at

8-11.) Plaintiff has similarly stated he does not seek to offer

such testimony. (Prior Acts Motion Opposition at 7-8.) Therefore,

Defendants’ Motion on this point is also DENIED as moot.

3. Evidence Related to John Restivo, Dennis Halstead,

and John Kogut

Plaintiff seeks to proffer the testimony of John

Restivo, Dennis Halstead, and John Kogut, three individuals whose

convictions on an unrelated 1984 murder were subsequently vacated

after DNA evidence proved their innocence. (Prior Acts Motion

Opposition at 1-2); Kogut, 894 F. Supp. 2d at 233-34. Because

Kogut falsely confessed to that unrelated murder after being

interrogated by Dempsey, Plaintiff seeks, pursuant to Federal

Rules of Evidence 404(b) and 608(b), to have Kogut, Restivo, and

Halstead testify to demonstrate a purported pattern of Dempsey’s

“of obtaining and untruthfully defending false confessions.”

(Prior Acts Motion Opposition at 10); Restivo, 846 F.3d at 554.

Defendants maintain such evidence is impermissible propensity

evidence. (Prior Acts Motion at 12-13.)

In Kogut, this Court denied a request to permit similar

unrelated witnesses to testify against Dempsey, explaining “the

jury very likely would have been confused, by, and considered

evidence regarding, Dempsey’s prior conduct in other cases to

conclude that Dempsey acted in conformity therewith and used

coercive tactics to obtain false witness statements in this case.

The prejudicial impact of such testimony cannot be understated.”

Kogut, 2013 WL 3820826, at *14. The Court takes the same approach

here. The Restivo, Halstead, and Kogut cases are too distant in

time and distinct in kind to be considered pure “pattern” evidence

under Rule 404(b), which typically involves clear “earmark[s of]

the accused” or repetitive practice such as “applying handcuffs

too tightly, falsely claiming injury from the citizen to cover up

his own inappropriate use of physical force, and filing false

charges for the same purpose.” Carroll v. Trump, 124 F.4th 140,

168 (2d Cir. 2024) (quoting United States v. Sliker, 751 F.2d 477,

487 (2d Cir. 1984)); Ismail v. Cohen, 706 F. Supp. 243, 253

(S.D.N.Y. 1989), aff’d, 899 F.2d 183, 188-89 (2d Cir. 1990).

Moreover, there has been no finding Dempsey was dishonest in this

case, thus, rendering potential witnesses Restivo, Halstead, and

Kogut a poor fit for Rule 608(b) testimony. If the Court were to

allow Restivo, Halstead, and Kogut to testify, it could lead to

the Parties having to conduct a “trial within a trial” on a

completely unrelated set of facts. That will not do. Defendants’

Motion is accordingly GRANTED on this point.

4. Evidence Related to Shonnard Lee

Plaintiff seeks to proffer the testimony of and evidence

related to Shonnard Lee, who is also unrelated to the case, on

similar grounds. (Prior Acts Motion at 14-15.) In 1997, Lee signed

a homicide confession statement authored by Dempsey. (Omnibus

Motion at 4.) Although criminal charges were initially brought

against Lee, they were dismissed in 1998 after he alleged he did

not know he was signing a confession statement. (Id. at 5-6; ECF

No. 431-3.) Later, Lee prevailed in a civil suit against Dempsey,

where the jury found Lee proved Dempsey (a) misled him about what

he was signing, and (b) knew the confession contained false

information and would likely influence a jury’s decision. (Id.)

Defendants oppose Lee’s testimony and any evidence related to his

case. (Prior Acts Motion at 15 (citing Kogut, 2013 WL 3820826, at

*13-14 (prohibiting testimony and documents related to Lee)).)

Except as to the jury’s credibility finding in the civil suit,

which is discussed separately, the Court GRANTS Defendants’ Motion

on this claim. As with Restivo, Halstead, and Kogut, the proposed

Lee evidence is too remote in time and different in kind to be

considered Rule 404(b) evidence. See Kogut, 2013 WL 3820826, at

*14.

5. Evidence Related to Allegations From Other Criminal

Defendants

Defendants move to bar Plaintiff from soliciting

testimony from individuals who have discussed their experiences

with Defendants in public news reports, which Plaintiff contends

he does not plan to introduce. (Prior Acts Motion at 17-18; Prior

Acts Motion Opposition at 12.) This Motion is accordingly DENIED

as MOOT.

6. Evidence Related to Darryl Grate, Charles Clink, and

Joseph Porto

Defendants seek to bar the testimony and materials

related to Darryl Grate, Charles Clink, and Joseph Porto, three

additional individuals who had experiences with Dempsey. (Prior

Acts Motion at 19.) Because Plaintiff “does not intend to call these

witnesses,” Defendants’ Motion is DENIED as moot. (Prior Acts

Motion Opposition at 12.)

7. Evidence Related to Peddie Jenkins’ Purported

Convictions and Prior Arrest History

Defendants move to preclude Jenkins’ arrests that took

place after the Jason murder. (Prior Acts Motion at 19-20.)

Because Plaintiff “does not intend to cross-examine Peddie Jenkins

with remote criminal convictions for drugs or violence that do not

directly bear on his character for truthfulness,” this Motion is

DENIED as moot. (Prior Acts Motion Opposition at 12.)

E. Innocence & Bifurcation Motion

1. Evidence of Plaintiff’s Innocence

Defendants contend Plaintiff should be precluded from

presenting any testimony, evidence, or arguments asserting his

innocence of the Victim’s murder, or asserting he was wrongfully

convicted, as actual innocence is not relevant to the coercion or

Brady claims. (Innocence & Bifurcation Motion at 2-3 (citing

Nnodimele v. Derienzo, No. 13-CV-3461, 2016 WL 3561708, at *10

(E.D.N.Y. June 27, 2016) (ruling “actual innocence is irrelevant”

to fair trial and fabrication claims and probative value of

innocence evidence “is substantially outweighed by the danger of

confusing the issues, misleading the jury, and wasting time”)).)

Defendants also observe Brady requires a showing only that due

process was violated and “materiality does not depend on factual

innocence, but rather what would have been proven absent the

violation.” Poventud v. City of N.Y., 750 F.3d 121, 134 (2d Cir.

2014); see also Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir.2001)

(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995) (instructing

Brady inquiry “is not whether the defendant would more likely than

not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence”)).

In arguing in favor of admitting innocence evidence,

Plaintiff cites to cases mostly from other jurisdictions, but

argues Restivo referred to such evidence as “important backdrop

for their claims at trial.” (Innocence & Bifurcation Motion

Opposition at 4 (quoting Restivo, 846 F.3d 547 at 559).) To the

extent Defendants rely on cases such as Nnodimele that forbid

innocence evidence, Plaintiff argues the Second Circuit’s “helpful

backdrop” reference overturned them in Restivo. (Innocence &

Bifurcation Motion Opposition at 6-7.) Because innocence does

not go to any element of Plaintiff’s remaining claims, the Court

GRANTS Defendants’ Motion on this point. As Nnodimele observed,

allowing in substantial evidence on facts not material to any

element would likely confuse the issues and waste the jury’s time.

Nnodimele, 2016 WL 3561708, at *11. Moreover, no court has ever

interpreted Restivo’s passing reference to innocence evidence as

establishing a broader rule or overturning Nnodimele. By contrast,

the Second Circuit has emphasized in Poventud, Leka, and elsewhere,

that innocence is not relevant to a Brady claim. Poventud, 750

F.3d at 134; Leka, 257 F.3d at 104.

2. Testimony of Woody Miller

Defendants seek to bar testimony or evidence from Woody

Miller (“Miller”), who has proffered a two-page affidavit

explaining his account of the Jason shooting and experience with

the shooting investigation. (Innocence & Bifurcation Motion at 3-

4.) In his affidavit, Miller avers he witnessed a hooded man run

away from the scene of Victim’s shooting on March 20, 1994, and

while he did not see who it was, he did not believe it was Plaintiff

based on his experiences with him. (ECF No. 389-12, “Miller Aff.,”

¶¶ 5-19.) The next day, Miller claims police visited his home,

where he told investigators he had not seen the shooting and could

not identify the perpetrator; the police subsequently came back to

his home a few days later and pressured him to identify Plaintiff

as the perpetrator. (Id. ¶¶ 26-31.) Plaintiff argues Miller is a

relevant eyewitness to the shooting and is accordingly a Rule 602

eyewitness with personal knowledge of events. (Innocence &

Bifurcation Motion Opposition at 7-8 (citing United States v. Cuti,

720 F.3d 453, 458-59 (2d Cir. 2013)).) Plaintiff also points out

Defendants failed to depose Miller throughout the process, which

could have given them the opportunity to obtain additional

testimony from him. (Id. at 8.)

Defendants’ Motion is DENIED as to this claim. Although

Miller’s affidavit is lacking in detail, his experiences with the

investigation may provide some minimal probative value as to the

coercion claim. The lack of detail is better addressed through

cross examination; it cannot be addressed through preclusion.

3. CIU Reinvestigation Evidence

Defendants seek to preclude several categories of

testimony and documents related to the NCDA CIU’s reinvestigation

of Plaintiff’s conviction. (Summary Judgment Order at 49-50.) For

the reasons discussed below, the Court GRANTS Defendants’ Motion

as to these claims.

i. Testimony of Tammy Smiley

Defendants argue Tammy Smiley (“Smiley”), an ADA who

worked with the CIU, should be precluded from testifying about the

reinvestigation because: Plaintiff failed to disclose her as a

witness under Rule 26(a); Smiley lacks personal knowledge of the

remaining issues; and Smiley had only a limited role in the CIU

reinvestigation. (Innocence & Bifurcation Motion at 5-6.)

Plaintiff identified Smiley as an impeachment witness, who he does

not intend to call in his case-in-chief. (Innocence & Bifurcation

Motion Opposition at 14.) For the reasons discussed, infra, as to

Anania, Defendants’ Motion as to Smiley is GRANTED.

ii. Testimony of Sheryl Anania

According to the Proposed PTO, Plaintiff seeks to

proffer Anania to testify about the CIU’s reinvestigation

findings. (Proposed PTO at 5.) During the 2017 reinvestigation,

Anania: reviewed files related to Plaintiff’s case; interviewed

witnesses; and prepared an internal memorandum identifying the

Larrea and Montes statements as potentially material. (ECF No.

441-3, “Anania Memo,” at 11.) Defendants maintain Anania’s

testimony: (1) is irrelevant to the coercion and Brady claims; (2)

presents many hearsay issues; (3) infringes on the jury’s role to

ascertain Brady materiality; and (4) as to her opinion regarding

Plaintiff’s conviction and Brady materiality, is not a “factual

finding” admissible under Rule 803(8)(A)(iii). (Innocence &

Bifurcation Motion at 6-8 (citing Nnodimele, 2016 WL 3561708, at

*11) (prosecutor may not testify “regarding reasons for actions

taken or not taken by the New York County District Attorney's

Office” because the jury must decide on the weight of withheld

evidence)).)

Plaintiff counters, arguing Anania was central to the

vacatur decision and will not testify to Brady materiality.

(Innocence & Bifurcation Motion Opposition at 11-12.) He

maintains, because Anania developed relevant facts outside of the

trial record, such as the Larrea and Montes statements, her

testimony is particularly relevant. (Id.) In support of the

admission of Anania’s testimony, Plaintiff relies upon Galloway v.

County of Nassau, 589 F. Supp. 3d 271, 279 (E.D.N.Y. 2022), a

separate civil case brought by a plaintiff who sought to rely upon

Anania’s testimony and successfully moved to disqualify the firm

that represented her and Nassau County. Galloway, 589 F. Supp. 3d

at 274. In finding a conflict-of-interest related to

representation, the Galloway Court explained “[o]ne can easily

imagine the plaintiff calling ADA Anania at trial and confronting

her with her testimony, placing Defense Counsel in the impossible

position of having represented a witness earlier in the proceedings

who, now before a jury, is testifying directly against the

Defendants.” Id. at 274 (citation omitted).

The Court GRANTS Defendants’ Motion as to Anania. As

the Nnodimele Court explained when assessing proposed CIU

testimony, it “intrudes upon the jury’s role in assessing the

materiality of the allegedly withheld evidence.” Nnodimele, 2016

WL 3561708, at *11. Much of Anania’s proposed testimony here

relates to her evaluation of evidence, such as the Larrea and

Montes statements, and her interviews with witnesses. To the

extent Plaintiff wishes to obtain testimony based on what certain

witnesses told Anania, those witnesses can speak for themselves.

Moreover, Plaintiff’s reliance upon Galloway, 589 F. Supp. at 274

is unavailing, as that decision addressed attorney conflicts and

not trial evidence.

iii. Other Evidence from the NCDA’s CIU

Investigation

Defendants object to admitting additional materials from

the NCDA’s CIU investigation, for similar reasons as the Anania

testimony. (Innocence & Bifurcation Motion at 8-10.) In opposing

the Motion, Plaintiff frames the CIU investigation documents as

Federal Rule of Evidence 803(8) materials, which renders

admissible materials prepared pursuant to “a matter observed while

under a legal duty to report.” (Innocence & Bifurcation Motion

Opposition at 9-12 (citing Fed. R. Evid. 803(8); Martinez v. City

of N.Y., No. 16-CV-0079, 2022 WL 20042798, *5 n.6 (E.D.N.Y. Dec.

4, 2022); Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir.

2000)).) Plaintiff refers to the internal NCDA memo prepared to

summarize the facts of the case as the “Anania Memo,” which serves

as an investigation for Rule 803(8) purposes. (Innocence &

Bifurcation Motion Opposition at 9-15; Anania Memo.) Defendants

contend the “Anania Memo” was merely an informal report, not an

investigation for purposes of Rule 803(8), and that specific notes

on witness interviews are cumulative, speculative, or improper for

impeachment since they were not authored, subscribed to, or adopted

by the interviewees. (Innocence & Bifurcation Motion at 9-10; see

also ECF No. 21, the “Innocence & Bifurcation Reply,” at 6-7.)

The Court GRANTS Defendants’ Motion on this claim. The

“Anania Memo” and many of its underlying materials relay the views

of witnesses, who are available to testify. (see ECF No. 441-3.)

Plaintiff does not cite to any cases indicating an internal memo

of this kind suffices for Rule 803(8) purposes, especially where

the memo predominantly relays statements from third parties. See

Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991)

(factual findings based on the public official’s “own observations

and knowledge may be admitted but . . . statements made by third

persons under no business duty to report may not”) (quoting United

States v. Pazsint, 703 F.2d 420, 424 (9th Cir.1983).) And, even

if the Anania Memo did satisfy the requirements for a Rule 803(8)

report, the “Anania Memo” has minimal probative value since it is

largely duplicative to what the witnesses may testify, as well as

runs the risk of unfairly bolstering witness statements, as each

statement included in the memo could be perceived as having the

County’s endorsement. See Fed. R. Evid. 403.

4. Bifurcation of Trial

Defendants ask the Court to exercise its discretion

under Federal Rule of Civil Procedure 42(b) to bifurcate the trial

into separate liability and damages phases. (Innocence &

Bifurcation Motion at 10-11 (citing Fed. R. Civ. P. 42(b).) In

Defendants’ view, bifurcation is justified because the evidence

regarding liability and damages are distinct, and certain

liability findings may eliminate the need for a damages proceeding

altogether. (Id at 11-13.) Defendants also observe courts have

previously bifurcated similar civil rights proceedings. (Id. at

10-11 (citing Restivo, 846 F.3d at 558; Nnodimele, 2016 WL 3561708,

at *2).) Plaintiff would not be prejudiced under bifurcated

proceedings and may even benefit from them, Defendants contend,

given the relevance of incarceration and arrest history to damages.

(Id. at 14.)

On the other hand, Plaintiff argues Defendants have not

rebutted the presumption of a unified trial under Rule 42(b).

(Innocence & Bifurcation Motion Opposition at 16-17.) Plaintiff

also considers liability and damages evidence to be inextricably

intertwined, based upon his belief that overlapping evidence will

show willfulness meriting punitive damages. (Id. at 17-20.) In

Plaintiff’s view, having to litigate a “substantially similar”

case twice will result in “catastrophic” prejudice to him. (Id.

at 20-21.)

The Court must address the following factors when

addressing whether to bifurcate a trial:

(1) whether the issues are significantly

different from one another; (2) whether the

issues are to be tried before a jury or to the

court; (3) whether the posture of discovery on

the issues favors a single trial or

bifurcation; (4) whether the documentary and

testimonial evidence on the issues overlap;

and (5) whether the party opposing bifurcation

will be prejudiced if it is granted.

Dallas v. Goldberg, 143 F. Supp. 2d 312, 315 (S.D.N.Y. 2001),

opinion modified on denial of reconsideration, 2002 WL 1013291

(S.D.N.Y. May 20, 2002). These factors weigh in favor of

bifurcation. First, as in Nnodimele, “the issues presented at the

liability and damages phases are largely if not entirely distinct:

the former will require the jury to determine the conduct of the

defendants, whereas the latter will require the jury to assess the

effect of that conduct on plaintiff.” Nnodimele, 2016 WL 3561708,

at *2. Moreover, the Proposed PTO indicates Plaintiff intends to

proffer little overlapping testimony: his only damages witnesses

are himself and two experts, neither of whom are listed for the

liability portion. (Proposed PTO at 9.) Limiting damages testimony

only to areas where it is explicitly needed would also eliminate

the need for unnecessary testimony and promote judicial

efficiency, because as discussed below, Plaintiff seeks to proffer

several categories of evidence relevant only to damages.

Accordingly, in its discretion, Defendants’ Motion on this point

is GRANTED. See, e.g., In re Sept. 11 Litig., 802 F.3d 314, 339

(2d Cir. 2015) (“Decisions to bifurcate trials . . . are authorized

by Federal Rule of Civil Procedure 42(b) and are typically well

within the discretion of district courts.”).

F. Dismissed Claims Motion

Defendants’ sixth motion in limine generally asserts

Plaintiff should be precluded from introducing evidence related to

dismissed claims, along with evidence irrelevant to the current

theories of liability. (Dismissed Claims Motion at 1-2.) On this

basis, Defendants seek to preemptively bar admission of dozens of

specific trial exhibits. (see generally Dismissed Claims Motion.)

Plaintiff states he will not pursue dismissed claims, but takes

issue with preemptive exclusion of large swaths of documents. (See

generally ECF No. 442.)

The Court agrees Plaintiff cannot argue as to dismissed

claims and accordingly GRANTS the Motion without prejudice to

renew. Nonetheless, the Parties are on NOTICE: Because development

of the factual record at trial may make some exhibits relevant in

ways the Court cannot currently predict, Plaintiff may renew his

arguments for admissibility of these exhibits if warranted.

G. Omnibus Motion

1. Information on Dempsey’s Adverse Credibility Findings

As previously discussed, the jury in Shonnard Lee’s

civil case found Dempsey: (a) misled Lee as to the nature of the

confession statement he was signing; and (b) knew the statement

contained false information and would likely influence a jury’s

decision. (Omnibus Motion at 5-6.) Plaintiff seeks to admit this

finding to: (c) impeach Dempsey’s credibility under Rule 608(b);

and (d) show motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident under Rule

404(b). (Id. at 3-4.) Plaintiff emphasizes the probative value of

this finding—especially in light of the credibility dispute over

the circumstances of Plaintiff’s confession—and argues excluding

this evidence would mislead the jury by providing Dempsey with

undeserved baseline credibility. (Id. at 7-8, 10-11.) Defendants

move to bar the jury’s finding, arguing the Lee events do not

directly bear on veracity because they involved a decades-old

preponderance-of-the-evidence finding which, in any event, is

remote in time and not factually similar to the actions in this

case. (ECF No. 436, the “Omnibus Opposition,” at 6-10.)

Permitting cross examination on this point would, in Defendants’

view, lead to a distracting mini-trial on collateral matters,

consuming undue time and risking jury confusion. (Id. at 7.)

Because the Court has already addressed the Rule 404(b)

question, it ascertains whether this is acceptable impeachment

evidence under Rule 608(b). Second Circuit courts ascertaining

potential Rule 608(b) evidence apply the following factors, as

explained in United States v. Cedeno, 644 F.3d 79, 82 (2d Cir.

2011):

(1) whether the prior judicial finding

addressed the witness’s veracity in that

specific case or generally; (2) whether the

two sets of testimony involved similar subject

matter; (3) whether the lie was under oath in

a judicial proceeding or was made in a less

formal context; (4) whether the lie was about

a matter that was significant; (5) how much

time had elapsed since the lie was told and

whether there had been any intervening

credibility determination regarding the

witness; (6) the apparent motive for the lie

and whether a similar motive existed in the

current proceeding; and (7) whether the

witness offered an explanation for the lie

and, if so, whether the explanation was

plausible.

United States v. White, 692 F.3d 235, 249 (2d Cir. 2012) (citing

Cedeño 644 F.3d at 82 (internal quotations omitted).) Although

the Lee allegations took place nearly thirty years ago and the

jury did not find Dempsey generally dishonest, the remaining

factors support allowing cross examination on this point. The

alleged dishonesty involves similar serious subject matter and

motive—an allegedly coerced homicide confession—made with an eye

toward potential court proceedings. As the court in Martinez v.

City of New York explained, a credibility finding made in formal

proceedings is relevant under Rule 608(b) and should not be barred

under Rule 403, as “[n]othing could be more probative of a

witness’s character for untruthfulness than evidence that the

witness has previously lied under oath.” 2022 WL 20042798, at *5

(citing United States v. Whitmore, 359 F.3d 609, 619 (D.C. Cir.

2004)).

Although this Court barred Lee evidence in Kogut, Kogut

did not address a Rule 608(b) challenge and only addressed evidence

under Rule 404(b). Kogut, 2013 WL 3820826, at *13-14. Plaintiff’s

Motion pursuant to Rule 608(b) is accordingly GRANTED to the extent

he may inquire about the adverse credibility finding, but without

using extrinsic evidence or Lee’s testimony.

2. Motion to Include the NCDA CIU’s Findings

To the extent it was not previously addressed in Section

(III)(E)(3), Plaintiff’s Motion on this point is DENIED. (Omnibus

Motion at 15-17.)

3. Motion to Preclude Evidence of Plaintiff’s Polygraph

Results & Include Takita Dorsey’s Polygraph Results

Plaintiff failed the polygraph he was given during his

interrogation, and Dorsey passed a polygraph when she denied

serving as a messenger between Plaintiff and Tony. (Id. at 17-

18.) Plaintiff simultaneously seeks to bar these results, on

grounds his polygraph risks unfair prejudice but Dorsey’s shows

Defendants ignored polygraph results conflicting with Plaintiff’s

guilt. (Id.) Defendants maintain Plaintiff’s polygraph evidence

is admissible not for truth, but to rebut Plaintiff’s coercion

claim. (Omnibus Opposition at 13-14.) As for Dorsey, Defendants

maintain her polygraph result should be barred on relevance

grounds. (Id.)

Consistent with Second Circuit precedent, this Court

will not allow in any polygraph result for any reason. See Fraser,

206 F. App’x at 101; Kogut, 789 F.3d at 47. Plaintiff’s Motion on

this point is accordingly GRANTED in part and DENIED in part to

the extent neither Plaintiff’s nor Dorsey’s polygraph results may

be admitted.

4. Motion to Preclude Evidence of Plaintiff’s Guilt &

Include Evidence of Plaintiff’s Innocence

As the Court discussed supra at Section (III)(E)(1),

Plaintiff’s Motion on this point is DENIED as to evidence of

innocence. See Leka, 257 F.3d at 104 (Brady “materiality does not

depend on factual innocence, but rather what would have been proven

absent the violation” for Brady claims); Kyles, 514 U.S. at 434

(Brady inquiry “is not whether the defendant would more likely

than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence”). Consequently,

Plaintiff’s Motion is GRANTED in part and DENIED in part. Because

guilt or innocence is not an element to a Brady claim, Defendants

may not introduce evidence to establish Plaintiff’s guilt of the

Jason murder. Likewise, Plaintiff also may not present evidence

of innocence at trial.

5. Motion Precluding Defendants from Contesting Settled

Issues

In the Proposed Joint Pretrial Order, Defendants assert

“[t]he purportedly suppressed evidence was not favorable to the

plaintiff” as a defense. (Proposed PTO at 3.) Plaintiff moves to

strike this defense, on grounds it is precluded by the Summary

Judgment Order’s statement that “the Court agrees with Plaintiff

that Larrea’s and Montes’ statements are favorable to the Plaintiff

in that they have both exculpatory and impeaching value.” (Omnibus

Motion at 20-21 (citing Summary Judgment Order at 66-67).) In

support of this defense, Defendants cite to deposition testimony

from Plaintiff’s former attorney, Scott Brettschneider

(“Brettschneider”), who worked on the criminal case. (Omnibus

Opposition at 15-16.) Brettschneider stated he was unsure whether

the statements would be helpful because of their lack of

specificity, as it was unclear how Larrea and Montes would present

at trial. (Id. (citing ECF No. 386-9, 38:23-39:11, 76:25-77:12).)

Because Plaintiff has not cited to any authority indicating the

Summary Judgment Order has such preclusive effect, the Court DENIES

Plaintiff’s Motion on this point.

6. Motion to Exclude Defendants’ Police Practices

Expert, John Monaghan

Plaintiff argues Defendants’ police practices expert

John Monaghan should have his testimony excluded or heavily limited

under Daubert and Federal Rules of Evidence 403, 702, 703, and

704. (Omnibus Motion at 21.) First, Plaintiff maintains Monaghan,

a retired NYPD Captain, is not qualified to opine on Nassau County

police practices because he never worked in the Department, never

supervised homicide investigations, never served as a detective or

conducted a line-up, and focuses his analysis on NYPD standards

rather than Nassau County standards. (Id.) Next, Plaintiff claims

Monaghan is not qualified to critique Dr. Dysart’s eyewitness

identification analysis because he does not possess a comparable

academic background. (Id. at 23-24.) Third, Plaintiff argues

Monaghan should be barred from exceeding the scope of Noble’s

testimony since Defendants contend Monaghan is a rebuttal witness.

(Id. (citing Nnodimele, 2016 WL 3561708, at *14).) Plaintiff

additionally seeks to exclude Monaghan’s testimony to the extent

it: relies upon the Summary Judgment Order; contradicts or vouches

for witness statements, including his assertion that Larrea and

Montes did not see the shooter; and smuggles hearsay into the

record by narrating facts. (Id. at 23-26.)

Defendants counter that Monaghan is qualified based upon

his decorated 20-year career, experience in supervisory police

roles, and because NYPD standards are “arguably the gold standard”

for New York State. (Omnibus Opposition at 19-20.) Moreover,

Defendants assert Monaghan is listed as an affirmative and rebuttal

witness in the Proposed PTO (see Proposed PTO at 13), and courts

have previously admitted Monaghan’s expert testimony. (Omnibus

Opposition at 19-20 (citing Nnodimele, 2016 WL 3561708, at *14).)

Defendants do not contest Plaintiff’s point about judicial

opinions.

Plaintiff’s Motion is GRANTED in part and DENIED in part

as follows. First, Monaghan may use NYPD guidelines, as Plaintiff

has provided no basis for precluding them. See Rutherford v. City

of Mount Vernon, 698 F. Supp. 3d 574, 611 (S.D.N.Y. 2023) (allowing

expert to use Dallas police guidelines).) Although Monaghan does

not have the academic experience Dr. Dysart has, his police

training provides a sufficient basis for his proposed eyewitness

testimony, and any perceived deficiencies can be addressed on cross

examination. Monaghan may not base his opinion on judicial

opinions, including the Summary Judgment Order, and may not narrate

hearsay or opine on inadmissible witness crediblity. See Malletier

v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 666 (S.D.N.Y. 2007)

(“[A] party cannot call an expert simply as a conduit for

introducing hearsay under the guise that the testifying expert

used the hearsay as the basis of his testimony.”). Further,

because Monaghan is not solely a rebuttal witness, he is not bound

to Noble’s scope to the extent Monaghan opines on the case-in-

chief.

7. Motion to Exclude Dr. Bruce Frumkin, Defendants’

Coerced Confession Expert

In addition to Monaghan, Plaintiff seeks to preclude the

testimony of Dr. Bruce Frumkin (“Dr. Frumkin”). (Omnibus Motion

at 26.) Dr. Frumkin conducted a psychological evaluation of

Plaintiff on July 1, 2022 for the purpose of assessing: (a) his

susceptibility to coerced confessions; and (b) any potential

psychological damages. (See ECF No. 439-5, the “Frumkin Report,”

at 1-2.) Plaintiff’s Motion on this point is GRANTED to the extent

Dr. Frumkin may not testify on coerced confessions (see supra

Section (III)(C)(2)), but is DENIED to the extent his findings

relate to psychological damages, given their relevance to the

damages portion of proceedings, if necessary.

8. Plaintiff’s Remote Arrests

Plaintiff seeks to preclude mention of several arrests

and convictions he had throughout the late 1980’s and 1990’s, on

Rule 609(b) grounds. (Omnibus Motion at 28 (citing Fed. R. Evid.

609(b)).) Defendants argue such arrests are admissible for both

general impeachment and to show damages, on grounds “a plaintiff

‘who has had a number of prior arrests and detentions is likely to

have suffered less distress than one who has never before been

detained.’” (Omnibus Opposition at 23 (quoting Banushi v. Palmer,

No. 08-CV-2937, 2011 WL 13894, at *3 (E.D.N.Y. Jan. 4, 2011),

aff’d, 500 F. App’x 84 (2d Cir. 2012)).) In Defendants’ view, an

April 4, 1990 arrest is particularly probative because Plaintiff

signed a Miranda card; Defendants say this undercuts his claim

that he did not know he was signing a Miranda card during his

December 1994 interrogation. (Id. at 24.)

Plaintiff’s Motion on this point is GRANTED in part and

DENIED in part, as follows. On the matter of liability, these

arrests and convictions may not be used for impeachment; they took

place more than 30 years ago, have minimal probative impeachment

value, and run high risk of unfair prejudice. See Fed. R. Evid.

609(b). However, if liability is proven, as to the matter of

damages, Defendants may show Plaintiff was confined and signed a

Miranda card on April 4, 1990, without specifics to the arrest,

and only to show his familiarity with the Miranda card system.

Similarly, in the damages phase of litigation, Defendants may

introduce general evidence of Plaintiff’s previous arrests and

convictions for the limited purpose of establishing Plaintiff’s

purported lack of distress.

9. Plaintiff’s Medical Marijuana Use

Plaintiff seeks to preclude evidence of his medical

marijuana use, citing a lack of relevance. (Omnibus Motion at 28-

29.) Defendants contend said use is relevant as to psychological

damages, because Plaintiff “specifically testified that he was

prescribed medical marijuana by a doctor in reference to his

psychological issues.” (Omnibus Opposition at 24-25.) Plaintiff’s

Motion is GRANTED in part: Defendants may not raise the medical

marijuana use during the liability phase of the trial, given its

minimal probative value, but may do so in the damages phase, given

its potential bearing on Plaintiff’s claimed psychological

damages.

10. Plaintiff’s Jail and Prison Discipline Records

Plaintiff objects to Defendants’ “wholesale” selection

of Plaintiff’s jail and prison disciplinary records, casting them

as prejudicial and irrelevant. (Omnibus Motion at 29.) Because

Defendants believe Plaintiff will mention his time in a special

housing unit as part of his damages argument, Defendants contend

they will use this evidence to explain why he was placed there.

(Omnibus Opposition 25.) Defendants also plan to use a 2010

administrative finding that Plaintiff was not honest for

impeachment purposes. (Id.)

Plaintiff’s Motion on this point is GRANTED in part and

DENIED in part. Defendants may not offer or discuss the

disciplinary records, except for the following reasons: First,

consistent with Rule 608(b), Defendants may inquire about the

untruthfulness finding without using extrinsic evidence. See Fed.

R. Evid. 608(b). Second, during the damages phase, if Plaintiff

raises his time in special housing, i.e., opens the door to that

matter, Defendants may present evidence regarding the reasons for

Plaintiff’s placement in response.

11. Plaintiff’s Inmate Medical & Program Records

Plaintiff seeks to preclude “wholesale” admission of his

inmate medical and program records, but “reserves the right to

offer selected records narrowly tailored to damages.” (Omnibus

Motion at 29.) Defendants state they do not plan to address the

medical records, but contend the program records are relevant to

damages because Plaintiff took several vocational training

programs in fields in which he has not sought employment. (Omnibus

Opposition at 25.) The Court GRANTS this Motion in part: During

the damages phase, the Parties may raise narrowly-tailored

portions of the medical and training records, but only as they

relate to the issue of damages.

12. Scott Brettschneider Evidence

Plaintiff seeks to bar exhibits showing Brettschneider

was convicted of a crime and disbarred in 2019, due to his work in

an unrelated case. (Omnibus Motion at 29-30.) Plaintiff argues

the exhibits—publicly-available news articles and press releases

documenting Brettschneider’s disbarment and conviction—are

irrelevant, prejudicial by association, and not produced. (Id.)

Defendants maintain these publicly-available exhibits are not

subject to discovery (see Fed. R. Civ. P. 26(a)(1)(A)(ii)), risk

no prejudice because their subject matter was known and inquired

upon throughout discovery, and are relevant for impeaching

Brettschneider as a witness. (Omnibus Opposition at 25-27.)

Plaintiff’s Motion on this point is DENIED to the

following extent. Defendants may use these exhibits for

impeachment purposes as to Brettschneider, but may not use these

exhibits to impeach Plaintiff or make any kind of guilt-by-

association argument. As to the publicly-available documents, it

“is well-established that discovery need not be required of

documents of public record which are equally accessible to all

parties.” Hart v. Suffolk County, No. 17-CV-5067, 2023 WL 5720075,

at *7 (E.D.N.Y. Sept. 5, 2023), aff’d, No. 23-7269, 2025 WL 1374984

(2d Cir. May 13, 2025) (quoting Krause v. Buffalo & Erie County

Workforce Dev. Consortium, Inc., 426 F. Supp. 2d 68, 90 (W.D.N.Y.

2005)). Plaintiff is unlikely to suffer from unfair prejudice

from permitting the use of the publicly-available documents, given

all Parties knew of Brettschneider’s conviction and disbarment,

and because such materials do not relate to Plaintiff and may not

be used against him.

13. Plaintiff’s Pro Se Appellate and Post-Conviction

Filings

Plaintiff asserts his pro se appellate and post-

conviction filings are irrelevant hearsay and, therefore, should

be excluded. (Omnibus Motion at 30.) Defendants argue such filings

are: admissible as party statements and ancient documents; subject

to judicial notice; and, relevant because, in said filings,

Plaintiff failed to allege his confession “was fabricated, false,

or that he was physically coerced into signing said confession as

he claims in this lawsuit.” (Omnibus Opposition at 27.) In

response to Defendants’ counterarguments (discussed below),

Plaintiff asserts his 2003 habeas filing “contains no statement”

inconsistent with his current position, which, in any event, was

written before he was given the Larrea and Montes statements. (ECF

No. 449 at 11.) To the extent the documents are considered

relevant, Plaintiff contends the Court can take judicial notice

that the proceedings occurred but may not introduce or discuss the

briefings themselves. (Omnibus Motion at 30.)

Plaintiff’s Motion on this basis is DENIED. He has

failed to cite any authority indicating such materials are

inadmissible, especially on the alternative grounds raised by

Defendants. To the extent Plaintiff wishes to argue these

materials are not inconsistent with his current position or took

place before he had the Larrea and Montes statements, he may do so

at trial upon examination or cross-examination.

14. Evidence of the 1993 Non-Fatal Steven Jason

Shooting and 1994 Tony Jackson Murder

In Plaintiff’s view, the 1993 non-fatal shooting of

Steven Jason, i.e., the Victim has “no relevance to the remaining

claims and discussing it at trial will inevitably invite a mini-

trial about another crime.” (Omnibus Motion at 30-31.) Plaintiff

also asserts evidence of the 1994 murder of Tony should be

excluded, as it may suggest “guilt by association and wasting time

with a needless mini-trial.” (Id. at 30.) Defendants consider the

1993 Jason shooting as relevant motive evidence and, while they

claim to “have no intention of litigating” Tony’s murder,

Defendants seek to explore Plaintiff’s friendship with Tony in

support of their damages defense. (Omnibus Opposition at 27-28.)

Plaintiff’s Motion on this point is DENIED as follows.

Because the 1993 Jason shooting was discussed as motive evidence

in Plaintiff’s criminal trial, it may be examined and discussed to

the extent it is relevant to Brady materiality. Defendants may

additionally raise the Tony friendship during the damages phase,

but may not explore this friendship during the liability phase of

the litigation, as it bears little probative value to liability

and will be far less prejudicial during the damages phase.

15. Plaintiff’s 1994 Drug Charge

Plaintiff argues evidence related to his August 9, 1994

drug sale is irrelevant, remote in time, and would improperly

prejudice the jury. (Omnibus Motion at 31.) Defendants contend

this charge is an admissible felony, relevant because Plaintiff

was arrested and in custody for this crime when he signed his

murder confession. (Omnibus Opposition at 28.) Per Defendants,

excluding this evidence could cause the jury to believe Plaintiff

was illegally in custody when he confessed to the murder. (Id.)

As discussed previously, Defendants are generally barred

from raising Plaintiff’s previous arrests and convictions.

However, Defendants may introduce evidence that Plaintiff was in

custody for an unrelated crime at the time of his interrogation.

Depending how the testimony develops and to the extent necessary,

Plaintiff may seek a limiting instruction regarding consideration

of that evidence. Plaintiff’s Motion on this point is accordingly

GRANTED in part and DENIED in part.

16. Plaintiff’s Court of Claims Litigation

Plaintiff seeks to preclude mention of his previous

Court of Claims litigation, wherein his claim to recover under New

York’s Unjust Conviction and Imprisonment Statute was denied

because the statute does not allow recovery for Brady vacaturs.

(Omnibus Motion at 31; ECF No. 387-22 (Court of Claims decision).)

Plaintiff belives the litigation is not relevant and will confuse

the jury. (Omnibus Motion at 31.) Notwithstanding Defendants’

counter-position that said case goes to Plaintiff’s financial

motive, since he did not appeal the adverse finding, this Court

GRANTS Plaintiff’s Motion on this point. The Court of Claims

litigation has little probative value to the instant action,

especially as Plaintiff’s claim was denied on narrow state law

grounds not at issue here.

17. Defendants’ Intervening Cause Argument

Defendants’ forty-fourth defense in the Proposed PTO

posits “Plaintiff's damages were caused or contributed to by

ineffective assistance of counsel at all stages of plaintiff’s

criminal prosecution.” (Proposed PTO at 4.) Plaintiff seeks to

preclude this line of argument, as it is typically rejected by

Second Circuit courts. (Omnibus Motion at 32 (citing, e.g.,

Hamilton v. City of N.Y., No. 15-CV-4574, 2019 WL 1452013, at *17

(E.D.N.Y. Mar. 19, 2019) (“This Court is not aware of any decision

in this Circuit, nor have Defendants cited any, in which an

independent decision by a defendant or defense counsel [ . . . ]

was held to be a superseding cause of a defendant’s

conviction[.]”); Galloway v. County of Nassau, No. 19-CV-5026,

2024 WL 1345634, *16 (E.D.N.Y. Mar. 29, 2024), on reconsideration,

2024 WL 2960532 (E.D.N.Y. June 11, 2024), and aff’d in part, appeal

dismissed in part, 141 F.4th 417 (2d Cir. 2025)).) Although

Defendants argue Plaintiff’s criminal defense counsel “knew or

should have known of Larrea and Montes’s observations and that

they failed to utilize this evidence, all of which demonstrates

that their statements were not suppressed,” the Court GRANTS

Plaintiff’s Motion, as the cited precedent casts serious doubt as

to the viability of this defense. (Omnibus Opposition at 29.)

18. Legal Arguments to the Jury

Plaintiff posits Defendants should not resolve Brady

materiality, favorability, or duty questions, nor raise qualified

immunity, objective reasonableness, or probable cause defenses

irrelevant to the Brady claim. 6 (Omnibus Motion at 33.) The Court

GRANTS this Motion to the extent the Parties may not infringe on

the Court’s duty to provide the law to the jury and the jury’s

duty to apply the law to the facts of the case. See In re United

States, 945 F.3d 616, 627 (2d Cir. 2019) (quoting Sparf v. United

States, 156 U.S. 51, 102 (1895)). Counsel may, however, make

arguments in their respective summations which are reasonably

inferred from evidence presented. United States v. Roldan–Zapata,

916 F.2d 795, 807 (2d Cir. 1990).

19. Purportedly Undisclosed Witnesses and Evidence

6 Plaintiff’s Motion on this point sought to preclude Exhibit

UUUUUU (the Restivo verdict sheet). Because the Restivo,

Halstead, and Kogut evidence is barred, the Court DENIES as moot

this portion of the Motion.

Plaintiff argues several exhibits7 should be precluded

because they were not produced during discovery. (Omnibus Motion

at 33.) Defendants claim one of the exhibits (Ex. NNNN) was

produced during discovery, four (Ex. ZZZ, AAAA, BBBB, and CCCC)

are photographs given to Plaintiff at his deposition, and two (Ex.

S and IIII) are demonstratives, and are thus not subject to

discovery. (Omnibus Opposition at 30 (citing Alexander v. Stop &

Shop Supermarket Co., LLC, No. 22-CV-95557, 2025 WL 654995, at *2

(S.D.N.Y. Feb. 28, 2025)).) Because Exhibit NNNN appears to have

Bates stamps, the four photographs were shown to Plaintiff at his

deposition, and demonstratives are not subject to discovery, the

Court DENIES Plaintiff’s Motion on this point.

Plaintiff also contends three of Defendants’ proposed

witnesses, Anthony Mayol, Eugene Cordaro, and Isabelle Vailes, and

several associated exhibits must be precluded because they were

not disclosed during discovery. (Omnibus Motion at 33.) Defendants

acknowledge Mayol, a childhood friend of Plaintiff and attorney

who worked on the vacatur litigation, was not designated as a

witness, but maintain: (a) Mayol is not required to be disclosed

7 As documented in the Proposed PTO, these exhibits include: (1)

Google Map of Area Surrounding Shooting (Ex. S); (2) photographs

taken of the NCPD examination room (Ex. ZZZ and AAAA); (3) sketches

of the NCPD polygraph room (Ex. BBBB and CCCC); (4) Demonstrative

Diagram Map of Evidence related to the homicide of Victim (Ex.

IIII); and (5) a document from a court-ordered line-up (Ex. NNNN).

(Proposed PTO at pp. 62, 85-87, 89, 91.)

to the extent he is an impeachment witness; (b) Plaintiff will not

suffer prejudice from Mayol’s inclusion, because his role in the

vacatur litigation was discussed extensively throughout the

litigation; and (c) Mayol’s “testimony is extremely relevant to

damages based on his investigation into, knowledge of, and

conversations with plaintiff about, the Larrea and Montes

statements for more than a decade before plaintiff contacted NCDA.”

(Omnibus Opposition at 30-31 (citing (Fed. R. Civ. P.

26(a)(1)(A)(i) (witnesses must be disclosed “unless the use would

be solely for impeachment”)).) On Cordaro, Defendants argue he was

identified as a witness in their April 23, 2021 Rule 26(a)

disclosures.8 (Id.) Defendants did not respond to Plaintiff’s

Vailes arguments. (Id.)

Plaintiff’s Motion is GRANTED in part and DENIED in part,

as follows. Because Defendants did not timely designate Mayol,

including him now would cause prejudice to Plaintiff. Therefore,

he may be offered only for impeachment purposes. Because Cordaro

was identified in Defendants’ initial disclosures, he may testify.

Because Defendants did not meaningfully respond as to Vailes,

Defendants are precluded from calling her to testify.

20. Exhibits “Lacking Authentication”

8 Cordaro’s name was misspelled as “Cordero” on the initial

disclosure. (Omnibus Motion at 33.)

Per Plaintiff, jail and visitor logs should be excluded,

because they “lack proper foundation and should be excluded absent

competent testimony establishing their authenticity.”9 (Omnibus

Motion at 33-34.) Defendants argue such documents are admissible

as ancient documents and business records, as they “were in the

County’s possession as they all relate to NCPD’s homicide

investigation and there is no basis to question their

authenticity,” while Defendants take the position Exhibit BBBB “is

admissible as a business record and for demonstrative purposes.”

(Omnibus Opposition at 32-33.)

Because these documents appear to be “kept in the course

of a regularly conducted activity,” Plaintiff’s Motion on this

point is DENIED without prejudice, provided Defendants can proffer

testimony from each exhibit’s relevant custodian of records

supporting the necessary elements under Rule 803(6) or otherwise

prove their authenticity. Fed. R. Evid. 803(6)(B).

21. Jerl Mullen Notes and Drawings

9 As documented in the Proposed PTO, the exhibits: are Exhibit KK

(Nassau County Sheriffs Department- Visit History for Lionel

Olige); Exhibit LL (List of Jail Visits); Exhibit MM (NCPD

Paperwork on Anthony Mayol); Exhibit BBBB (Sketches of NCPD

Polygraph Exam Room); Exhibit IIII (Demonstrative Diagram/Map of

Evidence related to the homicide of Victim); and Exhibit BBBBB

(Handwritten notes of timeline). (Proposed PTO at 73, 75, 86,

89.)

In a single-sentence, Plaintiff argues Jerl Mullen’s

notes should be precluded because he is deceased. (Omnibus Motion

at 33.) This one-sentence objection does not satisfy Plaintiff’s

burden and is accordingly DENIED with prejudice and subject to

renewal at trial upon a more developed objection.

22. “Hearsay Statements and Notes, Including Records

Related to Peddie Jenkins”

Plaintiff’s single-sentence argument that “[v]arious

exhibits listed by defendants constitute inadmissible hearsay and

should be precluded on that basis [ . . . ] along with hearsay

attributed to Peddie Jenkins” (Omnibus Motion at 34) fails to

satisfy his burden and is thus DENIED without prejudice and subject

to renewal at trial upon a more developed objection.

23. Vacated Judicial Decisions

Plaintiff asserts, in non-specific fashion, “the legal

decisions flowing into the vacated judgment are a nullity and lack

any arguable relevance to the claims to be tried.” (Omnibus Motion

at 34.) Defendants argue such documents are relevant because the

state prosecution could not have proceeded without an indictment,

and the pre-trial suppression hearing decision is important to

show the state court rejected Plaintiff’s coercion argument.

(Omnibus Opposition 32.) Because of Plaintiff’s lack of

specificity, his Motion on this point is DENIED without prejudice

to renew.

24. Grand Jury and Indictment and Exhibits

Plaintiff contends any references to the May 23, 1995

grand jury decisions should be precluded on grounds “[t]hey are

irrelevant to the surviving claims, and smuggle hearsay-within-

hearsay about charging decisions, and would invite a prejudicial

mini-trial.” (Omnibus Motion at 34.) Defendants state they plan

to use grand jury transcripts “for impeachment purposes only or

possible prior consistent statements,” and to show Plaintiff was

indicted. (Omnibus Opposition at 32.) Because Defendants’ planned

use does not raise the hearsay issues Plaintiff objects to,

Plaintiff’s objection is DENIED. Defendants may use these

materials for impeachment and prior consistent statement purposes

and, if warranted, the Court will consider any objections thereto

and proffered in those capacities.

25. Expert Reports and Supporting Material

Plaintiff’s Motion includes a heading reading “Expert

reports and supporting materials are inadmissible and should be

precluded,” with no text beneath it. (Omnibus Motion at 35.)

Because no substantive arguments have been presented on this point,

this portion of Plaintiff’s Omnibus Motion is DENIED without

prejudice to renew.

26. The Witherspoon Identifications and Evidence

Although he cites to no case on this point, Plaintiff

maintains Defendants may not rely upon Witherspoon’s previous

identification of Plaintiff unless she testifies at trial.10

(Omnibus Motion at 33.) While Witherspoon previously identified

Plaintiff as Victim’s shooter during the criminal investigation

(see Summary Judgment Order at 14-19), she now says she cannot

remember her experiences with Plaintiff’s investigation due to a

2002 stroke. (Omnibus Motion at 15.) Defendants argue she is

unavailable because, in addition to her medical diagnosis, she

lives in Florida and the Court cannot compel her attendance.11

(Omnibus Opposition at 34-35.) Defendants additionally observe

Plaintiff had an opportunity and similar motive to cross-examine

Witherspoon about her identification at the criminal trial,

rendering her previous testimony admissible. (Id. (citing United

States v. Amato, No. 03-CR-1382, 2006 WL 1891113 (E.D.N.Y. June

27, 2006); City of Almaty, Kazakhstan v. Sater, No. 19-CV-2645,

2025 WL 2256759, at *3 (S.D.N.Y. Aug. 6, 2025)).) Defendants’

counter-position is persuasive. Moreover, in the absence of any

10 Specifically, Plaintiff argues “Rule 801(d)(l)(C) requires the

declarant to testify; Rule 804(b)(l) fails because Jackson lacked

a similar motive to cross in 1996 given the suppressed

Montes/Larrea statements; adversarial line-up notes/DD-5s are

excluded by Rule 803(8); Rule 807 trustworthiness is lacking amid

CIU-found Brady violations.” (Omnibus Motion at 34-35.)

11 Defendants’ claim about Witherspoon’s residence is made on

information and belief.

case law supporting his position, Plaintiff’s Motion is DENIED

without prejudice and subject to renewal at trial upon a more

developed objection.

27. Confidentiality Designations

Plaintiff argues confidentiality designations should be

removed for trial use. (Omnibus Motion at 35.) Defendants have no

objection to presenting confidentiality-designated evidence to the

jury, but assert “[r]ecords produced include officers’ internal

and personal records, training materials, grand jury transcripts,

witness contact information, and all discovery related to the

criminal prosecution” should not be published online or dispersed

to the media prior to trial. (Omnibus Opposition at 35.) The Court

agrees. Thus, the Court GRANTS Plaintiff’s Motion in part to the

extent confidentiality-designated discovery may be used in open

Court and in front of the jury, but DENIES it to the extent such

confidential-designated material is not to be published online or

dispersed to media in unredacted form. Until further order of the

Court, Parties are to use best efforts to limit the introduction

of such materials and may address potential redactions of same

with the Court as such materials are introduced, consistent with

the Stipulation and Order of Confidentiality filed in this case.

(See ECF Nos. 266, 267.)

28. Untimely Errata Sheets

Plaintiff observes the errata sheets for Abbondandelo

and Kosior, both of which show substantial revisions, were

submitted more than 30 days after the transcripts were received.

(Omnibus Motion at 35.) Defendants do not dispute that the sheets

were submitted past the 30-day deadline. (Omnibus Opposition at

35.) Because the 30-day requirement “is strictly enforced,”

Plaintiff’s Motion is GRANTED as to this claim. Morrison v.

Millenium Hotels, No. 18-CV-6811, 2021 WL 1534293, at *8 (S.D.N.Y.

Apr. 19, 2021).

***

To the extent the Court has not explicitly ruled on a

portion of either Parties’ motions, they are denied without

prejudice to renew at trial, if warranted.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that each of the

Motions (ECF Nos. 411, 412, 415, 418, 421, 424, and 43012) is

granted in part and denied in part, as provided for in the body of

this ORDER.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: January 27, 2026

Central Islip, New York

12 For clarification, these are the actual motions and not the

corresponding support memoranda, which the Court defines at pp. 2-

3.