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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