     10-271
     McLaurin v. New Rochelle Police Officers


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of September, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT A. KATZMANN,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      CHARLES B. MCLAURIN,
14
15                   Plaintiff-Appellant,
16
17                   -v.-                                               10-271
18
19      NEW ROCHELLE POLICE OFFICERS, P.
20      KORNAS, L. FALCONE, BRIAN FAGAN, DAVID
21      LONERGAN,
22
23                   Defendants-Appellees.
24
25
26      - - - - - - - - - - - - - - - - - - - -X
27
28      FOR APPELLANT:            Charles B. McLaurin, pro se
29                                New Rochelle, NY

                                                 1
 1   FOR APPELLEE:     Lalit K. Loomba
 2                     Wilson, Elser, Moskowitz, Edelman & Dicker
 3                     LLP
 4
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Southern District of New York (Patterson, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the district court’s judgment is AFFIRMED.
11
12        Appellant Charles B. McLaurin, proceeding pro se,
13   appeals the district court’s grant of partial summary
14   judgment in favor of the Appellees with respect to, inter
15   alia, his 42 U.S.C. § 1983 claims for false arrest, and the
16   district court’s judgment, following a jury trial, in favor
17   of the Appellees on his excessive force claims. We assume
18   the parties’ familiarity with the underlying facts, the
19   procedural history, and the issues presented for review.
20
21        A district court’s grant of summary judgment is
22   reviewed de novo. See Miller v. Wolpoff & Abramson, L.L.P.,
23   321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is
24   appropriate only if the moving party can show that there is
25   no genuine issue of material fact, and that the moving party
26   is entitled to judgment as a matter of law. Id. We resolve
27   all ambiguities and draw all factual inferences in favor of
28   the nonmovant; the inferences from the underlying facts
29   (revealed in materials such as affidavits, exhibits,
30   interrogatory answers, and depositions) must be drawn in the
31   light most favorable to the nonmoving party. See Nationwide
32   Life Ins. Co. v. Bankers Leasing Ass’n, Inc., 182 F.3d 157,
33   160 (2d Cir. 1999).
34
35        We “review a district court’s evidentiary rulings for
36   abuse of discretion, and will reverse only for manifest
37   error.” Cameron v. City of New York, 598 F.3d 50, 61 (2d
38   Cir. 2010) (quoting Manley v. AmBase Corp., 337 F.3d 237,
39   247 (2d Cir. 2003)). District courts have “‘wide latitude
40   . . . in determining whether evidence is admissible, and in
41   controlling the mode and order of its presentation to
42   promote the effective ascertainment of the truth.’” Id.
43   (quoting SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props.,
44   LLC, 467 F.3d 107, 119 (2d Cir. 2006)).
45

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 1   [1] An independent review of the record confirms that the
 2   district court properly granted summary judgment in favor of
 3   the Appellees with respect to the § 1983 false arrest
 4   claims, on the ground that Appellant’s conviction
 5   established probable cause for the arrest as a matter of
 6   law. See Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir.
 7   1986). The district court properly granted summary judgment
 8   in favor of the Appellees with respect to the malicious
 9   prosecution claim because Appellant’s indictment by a grand
10   jury created a presumption of probable cause, and there was
11   no genuine issue of material fact as to whether the
12   indictment was produced by “fraud, perjury, the suppression
13   of evidence or other police conduct undertaken in bad
14   faith.” Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d
15   Cir. 2004) (internal quotation marks omitted). The grant of
16   partial summary judgment in favor of the Appellees is
17   affirmed for substantially the same reasons as stated by the
18   district court in its well-reasoned and thorough March 2009
19   opinion and order.
20
21   [2] The district court properly denied Appellant’s cross-
22   motion for summary judgment on the ground that Appellant’s
23   acquittal on certain criminal charges could not be used to
24   collaterally estop defendants Kornas and Falcone from
25   litigating the issue of probable cause. Among other
26   reasons, Kornas and Falcone were neither parties in the
27   criminal proceedings against Appellant, nor were they in
28   privity with the State of New York. See Jenkins v. City of
29   New York, 478 F.3d 76, 85 (2d Cir. 2007). The district
30   court’s denial of plaintiff’s motion for summary judgment is
31   affirmed for substantially the same reasons as stated by the
32   district court.
33
34   [3]  Appellant’s arguments with respect to the motion in
35   limine lack record support. Appellant claims that the in
36   limine motion sought to allow evidence of his 1990
37   conviction; but a review of that motion reveals that it did
38   not. Appellant contends that the district court denied his
39   request for additional time to oppose the motion in limine,
40   and to demonstrate that his 1990 conviction was unlawful. A
41   review of the transcript of the pre-trial conference,
42   however, shows that Appellant never requested any such
43   relief. Although Appellant now argues that he was
44   essentially denied the opportunity to testify at trial,
45   Appellant made it clear several times that he did not intend
46   to testify at trial. Although Appellant now implies that he

                                  3
 1   may have selected to testify but for the district court’s
 2   failure to give him time to document the invalidity of his
 3   1990 conviction, he failed to raise this challenge before
 4   the district court. No reason is presented why we should
 5   depart from the general rule that we will not address issues
 6   raised for the first time on appeal. See Singleton v.
 7   Wulff, 428 U.S. 106, 120-21 (1976); see also Virgilio v.
 8   City of New York, 407 F.3d 105, 116 (2d Cir. 2005).
 9
10   [4] Finally, the district court properly admitted the
11   challenged audio recording. The testimonial evidence
12   offered by the Appellees — namely, the testimony of officer
13   Michaels regarding his participation in the recorded call
14   and of Detective D’Andrea regarding the chain of custody and
15   reproduction of the copy of the recording that was played
16   for the jury — was “sufficient to support a finding that the
17   matter in question is what its proponent claims,” Fed. R.
18   Evid. 901(a), and it was therefore sufficient to
19   authenticate the tape. See United States v. Tropeano, 252
20   F.3d 653, 661 (2d Cir. 2001); United States v. Pluta, 176
21   F.3d 43, 49 (2d Cir. 1999) (“[T]he burden of authentication
22   does not require the proponent of the evidence to rule out
23   all possibilities inconsistent with authenticity . . . .
24   Rather, the standard for authentication, and hence for
25   admissibility, is one of reasonable likelihood.”) (internal
26   quotation marks omitted). Furthermore, “[a]uthentication of
27   course merely renders [audio] tapes admissible, leaving the
28   issue of their ultimate reliability to the jury,” and any
29   doubts raised at trial concerning their reliability “would
30   . . . go to the weight to be given to the tapes by the jury,
31   not to their admissibility.” Tropeano, 252 F.3d at 661; see
32   also United States v. Sovie, 122 F.3d 122, 127 (2d Cir.
33   1997) (holding that “allegations of tampering went to the
34   weight of the evidence rather than to its admissibility”).
35
36        McLaurin argues that the admission of the recording
37   violated the best evidence rule. Federal Rule of Evidence
38   1002, commonly referred to as the “best evidence rule,”
39   provides: “To prove the content of a writing, recording, or
40   photograph, the original writing, recording, or photograph
41   is required, except as otherwise provided in these rules or
42   by Act of Congress.” Fed. R. Evid. 1002.    However, “[a]
43   duplicate is admissible to the same extent as an original
44   unless (1) a genuine question is raised as to the
45   authenticity of the original or (2) in the circumstances it
46   would be unfair to admit the duplicate in lieu of the

                                  4
 1   original.” Fed. R. Evid. 1003. McLaurin has not raised a
 2   genuine question as to the authenticity of the original
 3   recording, and therefore the district court did not abuse
 4   its discretion by admitting the duplicate recording into
 5   evidence.
 6
 7        We have considered appellant’s remaining arguments and
 8   find them to be without merit. For the foregoing reasons,
 9   the judgment of the district court is hereby AFFIRMED.
10
11
12
13                              FOR THE COURT:
14                              CATHERINE O’HAGAN WOLFE, CLERK
15




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