Banushi v. Palmer

11-636
Banushi v. Palmer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 18th day of October, two thousand twelve.
PRESENT:
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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ROBERT BANUSHI,
Plaintiff-Appellant,
-v.- 11-636
ALVIN L. PALMER, Police Officer,
Shield No. 04009, EQUASHIA ALLEN,
Police Officer,
Defendants-Appellees,
JANE DOE, the same being fictitious and
employed to denote a female Police Officer
in the company of, and who acted in concert
with, Police Officer Alvin L. Palmer on
12/14/07 in committing the torts complained
of against the Plaintiff, CITY OF NEW YORK,
Defendants.
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FOR PLAINTIFF-APPELLANT: Robert Banushi, pro se, Brooklyn,
New York.
FOR DEFENDANTS-APPELLEES: Ellen Sara Ravitch, Assistant
Corporation Counsel of the City of
New York, for Michael A. Cardozo,
Corporation Counsel of the City of
New York, New York, New York.
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED.
On January 19, 2011, following a jury verdict in favor
of defendants-appellees Police Officers Alvin L. Palmer and
Equashia Allen, the district court entered judgment against
plaintiff-appellant Robert Banushi dismissing his claims of false
arrest, false imprisonment, and assault and battery pursuant to
42 U.S.C. § 1983 and state law. Banushi appeals.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
On December 14, 2007, Banushi entered the Lorimer
Street subway station in Brooklyn, New York. As Banushi passed
through the turnstiles, Palmer saw a red light flash, which
indicated the use of a reduced-fare disability MetroCard. Palmer
alerted his partner, approached Banushi, and asked to see the
MetroCard he had just used. Banushi provided the officers with a
pink disability MetroCard, bearing a female's photo (the "Card");
the Card belonged to his wife. Palmer and Allen arrested
Banushi; he was later charged with one count of theft of
services, pursuant to N.Y. Penal Law § 165.15(3). A computerized
farecard history provided by the New York City Transit Authority,
which outlined the use history of the Card, later confirmed that
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the Card had indeed been used at the Lorimer Street subway
station just prior to Banushi's arrest.
Banushi appeared before a Kings County criminal court
on December 15, 2007, and the court entered an Adjournment in
Contemplation of Dismissal. The case was dismissed on June 13,
2008. Banushi then filed a civil complaint alleging various
claims arising from his arrest, three of which proceeded to
trial. The jury returned a verdict for defendants, and the
district court entered judgment dismissing the complaint
accordingly. This appeal followed.
Proceeding pro se, Banushi now alleges that (i) the
district court improperly admitted the computerized farecard
history into the record, and (ii) the evidence at trial was
insufficient to sustain the jury verdict.
A. The Evidentiary Ruling
Prior to trial, defendants moved for a ruling
permitting them to introduce the computerized farecard history to
impeach Banushi if he testified on direct or cross-examination
that he did not use the Card on December 14, 2007. Banushi
objected, arguing that the farecard history could not be used to
contradict his statements on cross-examination. The district
court granted defendants' motion, ruling that the farecard
history could be used to impeach Banushi on both direct and
cross-examination.
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At trial, on cross-examination, Banushi denied using
the Card. When defendants later offered the farecard history,
Banushi objected again, but the district court overruled the
objection1 and admitted the farecard history into evidence as a
business record. The court later instructed the jury that the
record was admitted "to assist [the jury] with evaluating the
credibility of the witnesses at the trial," and not to determine
whether the police had probable cause to arrest Banushi. Banushi
claims that the district court erred by admitting the farecard
history because it was used (i) to contradict testimony elicited
during cross-examination, or (ii) to support a finding that the
defendants had probable cause to arrest him.
We review a district court's evidentiary rulings for
abuse of discretion. Marcic v. Reinauer Transp. Cos., 397 F.3d
120, 124 (2d Cir. 2005) (citing Ramey v. Dist. 141, Int'l Ass'n
of Machinists, 378 F.3d 269, 281 (2d Cir. 2004)). Business
records may be admissible at trial as an exception to the hearsay
rule. Fed. R. Evid. 803(6); see also Parker v. Reda, 327 F.3d
211, 214-15 (2d Cir. 2003) (business records are admissible if
kept in the regular course of the business activity and regular
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Banushi objected that a proper foundation for the
introduction of the farecard history had not been laid. Upon
further questioning of a computer specialist from the
Metropolitan Transit Authority ("MTA"), who explained the process
by which farecard histories are generated, the district court
admitted the farecard history. See United States v. Williams,
205 F.3d 23, 34-35 (2d Cir. 2000) (proper foundation laid where
witness was "sufficiently familiar" with the business practice of
creating a record and the particular record was made according to
that business practice).
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practice of business was to make such records). Once admitted,
business records may be used to impeach a witness or contradict
testimony. See United States v. Warren, 453 F.2d 738, 742 (2d
Cir. 1972).
Even assuming Banushi preserved all of his objections
to the admissibility of the farecard history, we conclude that
the district court did not abuse its discretion in admitting the
farecard history into evidence. The MTA computer specialist
established that the farecard history fell within the business
records exception to the hearsay rule. See Fed. R. Evid. 803(6).
The farecard history was relevant because it contradicted
Banushi's testimony that he had not used the Card on December 14,
2007. Any concern that the farecard history could prejudice the
jury with respect to the question of probable cause was obviated
by the district court's instruction to consider the farecard
history only for assessing credibility. See Zafiro v. United
States, 506 U.S. 534, 540 (1993) ("[J]uries are presumed to
follow their instructions." (internal quotation marks omitted)).
Therefore, the district court properly admitted the farecard
history into evidence.
B. Sufficiency of the Evidence
Banushi also argues that the evidence presented at
trial was insufficient to support a finding that defendants had
probable cause for his arrest. The sufficiency argument fails.
At bottom, Banushi's sufficiency argument is based on
his disagreement with the jury's credibility findings. We have
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held, however, that "[a]ssessments of witness credibility and
choices between competing inferences lie solely within the
province of the jury." United States v. Payne, 591 F.3d 46, 60
(2d Cir. 2010). Thus, we must defer to its credibility
determinations. See United States v. Torres, 604 F.3d 58, 67 (2d
Cir. 2010) ("[W]e defer to a jury's assessments with respect to
credibility and conflicting testimony, and to its choice between
the competing inferences that can be drawn from the evidence
. . . .").
The record contained substantial support for the jury's
finding that defendants had probable cause to arrest Banushi.
First, Palmer testified that a red light -- indicating the use of
a disability MetroCard -- flashed as Banushi passed through the
turnstile. Second, the Card -- which belonged to his wife -- was
in Banushi's possession when he was arrested. Third, Allen's
testimony corroborated Palmer's version of the events. Fourth,
the farecard history contradicted Banushi's statement that he had
not used the Card on the date of his arrest. In light of the
foregoing, the evidence was more than sufficient to support the
jury's verdict. See United States v. Litwok, 678 F.3d 208, 214-
15 (2d Cir. 2012) (jury is entitled to weigh evidence and
testimony presented at trial).
We have considered Banushi's remaining arguments on
appeal and find them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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