17-1661
Crockett v. City of New York

                               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 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of April, two thousand eighteen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

JAMES CROCKETT, TERESA CROCKETT,

                                 Plaintiffs-Appellants,

                          v.                                                17-1661-cv

CITY OF NEW YORK, POLICE OFFICER RAUL A. PEREZ,
(SHIELD NO. 2957), POLICE OFFICER
MATTHEW J. AMBROSINO, (SHIELD NO. 1211),
POLICE OFFICER STEVEN BHAGAN, (SHIELD NO. 13662),
LIEUTENANT GREACIA HERDSMAN, (ID NO. 901687),

                        Defendants-Appellees.1
_____________________________________________________

Appearing for Appellant:         Scott A. Korenbaum, Law Offices of Frederick K. Brewington
                                 (Frederick K. Brewington, on the brief), Hempstead, N.Y.

Appearing for Appellee:          Elina Drucker, Assistant Corporation Counsel (Richard Dearing,
                                 Devin Slack, Assistant Corporation Counsels, on the brief), for
1
    The Clerk of the Court is directed to amend the caption as above.
                              Zachary W. Carter, Corporation Counsel of the City of New York,
                              New York, N.Y.

Appeal from the United States District Court for the Eastern District of New York (Chen, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        James and Teresa Crockett appeal from the April 24, 2017 judgment of the United States
District Court for the Eastern District of New York (Chen, J.) denying their motion for a new
trial pursuant to Federal Rule of Civil Procedure 59(a). We assume the parties’ familiarity with
the underlying facts, procedural history, and specification of issues for review.

        The Crocketts brought suit pursuant to 42 U.S.C. § 1983 alleging that New York City
Police Officers Raul A. Perez, Matthew J. Ambrosino and Steve Bhagan, along with New York
Police Lieutenant Greacia Heardsman, used excessive force against James Crockett (“Crockett”),
falsely arrested him and subjected him to malicious abuse of process. Following a six-day trial, a
jury returned a verdict in favor of defendants on all counts. The Crocketts then moved for a new
trial pursuant to Fed. R. Civ. P. 59(a)(1) on two grounds: that the verdict was against the weight
of the evidence, and that statements made by defense counsel during summation were so
improper as to taint the verdict. The district court denied the motion. Crockett v. City of New
York, 2017 WL 1437333 (E.D.N.Y. April 21, 2017).

         This Court reviews the denial of a motion for a new trial based on attorney misconduct
for abuse of discretion where counsel timely objected, and for plain error where counsel did not.
Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). Determining if counsel’s
conduct was so improper as to warrant a new trial is committed to the sound discretion of the
trial judge. Patterson v. Balsamico, 440 F.3d 104, 119 (2d Cir. 2006) (citation omitted). The
district court’s denial of the Rule 59 motion on the ground that the verdict was against the weight
of the evidence is not reviewable on appeal. See Stonewall Ins. Co. v. Asbestos Claims Mgmnt.
Corp., 73 F.3d 1178, 1199 (2d Cir. 1995). We address only the issue of whether the district court
exceeded the bounds of its discretion in finding the challenged attorney conduct here did not
necessitate a new trial.

        Prejudicial misconduct by counsel is a ground for a district court to grant a new trial
pursuant to Rule 59. See Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 540 (2d Cir.
1992). However, “not all misconduct of counsel taints a verdict to such a degree as to warrant a
new trial.” Id. Indeed, “[r]arely will an attorney’s conduct so infect a trial with undue prejudice
or passion as to require reversal.” Marcic, 397 F.3d at 124 (quoting Reilly v. Natwest Markets
Group, Inc., 181 F.3d 253, 271 (2d Cir. 1999)). “Not every improper or poorly supported remark
made in summation irreparably taints the proceedings; only if counsel’s conduct created undue
prejudice or passion which played upon the sympathy of the jury, should a new trial be granted.”
Matthews v. CTI Container Transp. Int’l, Inc., 871 F.2d 270, 278 (2d Cir. 1989).




                                                 2
        The conduct complained of here simply does not rise to the level that requires a new trial.
Defense counsel’s concededly improper remarks regarding a meeting in the hallway between a
plaintiff’s witness, counsel and translator were immediately objected to, the objection was
sustained, and the remarks promptly addressed by the district court with a curative instruction.
See Patterson, 440 F.3d at 119 (district court’s curative instruction sufficient, new trial not
warranted). The remaining remarks regarding the credibility of two of plaintiff’s witnesses,
which were unobjected to, are simply not provocative enough on plain error review to warrant
undoing the trial verdict. “Use of the words ‘liar’ and ‘lie’ to characterize disputed testimony
when the witness’s credibility is clearly in issue is ordinarily not improper unless such use is
excessive or is likely to be inflammatory.” United States v. Coriaty, 300 F.3d 244, 255 (2d Cir.
2002) quoting United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987). The district court did
not abuse its discretion in denying Crockett’s motion for a new trial.

        We have considered the remainder of the Crocketts’ arguments and find them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side
to bear its own costs.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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