1 10-271 McLaurin v. New Rochelle Police Officers



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND**  **THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A** 
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 15 th** **day of September, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROBERT A. KATZMANN,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judge** s. 10 11
- - - - - - - - - - - - - - - - - - - -X 12 **CHARLES B. MCLAURIN,** 13 14 Plaintiff-Appellant **,** 15 16 **-v.- 10-271** 17 18 **NEW ROCHELLE POLICE OFFICERS, P.** 19 **KORNAS, L. FALCONE, BRIAN FAGAN, DAVID** 20 **LONERGAN,** 21 22 Defendants-Appellees

**.** 23 24 25
- - - - - - - - - - - - - - - - - - - -X 26 27 **FOR APPELLANT:** Charles B. McLaurin, pro se 28 New Rochelle, NY 292 **FOR APPELLEE:** Lalit K. Loomba 1 Wilson, Elser, Moskowitz, Edelman & Dicker 2
LLP 3 4 5 Appeal from a judgment of the United States District 6 Court for the Southern District of New York (Patterson, J.). 7 8 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 9 **AND DECREED**that the district court’s judgment is **AFFIRMED**

. 10 11 Appellant Charles B. McLaurin, proceeding pro se , 12 appeals the district court’s grant of partial summary 13 judgment in favor of the Appellees with respect to, inter 14 alia , his 42 U.S.C. § 1983 claims for false arrest, and the 15 district court’s judgment, following a jury trial, in favor 16 of the Appellees on his excessive force claims. We assume 17 the parties’ familiarity with the underlying facts, the 18 procedural history, and the issues presented for review. 19 20 A district court’s grant of summary judgment is 21 reviewed de novo . See Miller v. Wolpoff & Abramson, L.L.P.

, 22 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is 23 appropriate only if the moving party can show that there is 24 no genuine issue of material fact, and that the moving party 25 is entitled to judgment as a matter of law. Id. We resolve 26 all ambiguities and draw all factual inferences in favor of 27 the nonmovant; the inferences from the underlying facts 28 (revealed in materials such as affidavits, exhibits, 29 interrogatory answers, and depositions) must be drawn in the 30 light most favorable to the nonmoving party. See Nationwide 31 Life Ins. Co. v. Bankers Leasing Ass’n, Inc. , 182 F.3d 157, 32 160 (2d Cir. 1999). 33 34 We “review a district court’s evidentiary rulings for 35 abuse of discretion, and will reverse only for manifest 36 error.” Cameron v. City of New York , 598 F.3d 50, 61 (2d 37 Cir. 2010) ( quoting Manley v. AmBase Corp. , 337 F.3d 237, 38 247 (2d Cir. 2003)). District courts have “‘wide latitude 39 . . . in determining whether evidence is admissible, and in 40 controlling the mode and order of its presentation to 41 promote the effective ascertainment of the truth.’” Id. 42 ( quoting SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props.
, 43 LLC , 467 F.3d 107, 119 (2d Cir. 2006)). 44 453 **[1]** An independent review of the record confirms that the 1 district court properly granted summary judgment in favor of 2 the Appellees with respect to the § 1983 false arrest 3 claims, on the ground that Appellant’s conviction 4 established probable cause for the arrest as a matter of 5 law. SeeCameron v. Fogarty , 806 F.2d 380, 388-89 (2d Cir. 6 1986). The district court properly granted summary judgment 7 in favor of the Appellees with respect to the malicious 8 prosecution claim because Appellant’s indictment by a grand 9 jury created a presumption of probable cause, and there was 10 no genuine issue of material fact as to whether the 11 indictment was produced by “fraud, perjury, the suppression 12 of evidence or other police conduct undertaken in bad 13 faith.” Rothstein v. Carriere , 373 F.3d 275, 282-83 (2d 14 Cir. 2004) (internal quotation marks omitted). The grant of 15 partial summary judgment in favor of the Appellees is 16 affirmed for substantially the same reasons as stated by the 17 district court in its well-reasoned and thorough March 2009 18 opinion and order. 19 20 **[2]** The district court properly denied Appellant’s cross21 motion for summary judgment on the ground that Appellant’s 22 acquittal on certain criminal charges could not be used to 23 collaterally estop defendants Kornas and Falcone from 24 litigating the issue of probable cause. Among other 25 reasons, Kornas and Falcone were neither parties in the 26 criminal proceedings against Appellant, nor were they in 27 privity with the State of New York. See Jenkins v. City of 28 New York , 478 F.3d 76, 85 (2d Cir. 2007). The district 29 court’s denial of plaintiff’s motion for summary judgment is 30 affirmed for substantially the same reasons as stated by the 31 district court. 32 33 **[3]** Appellant’s arguments with respect to the motion in 34 liminelack record support. Appellant claims that the in 35 liminemotion sought to allow evidence of his 1990 36 conviction; but a review of that motion reveals that it did 37 not. Appellant contends that the district court denied his 38 request for additional time to oppose the motion in limine

, 39 and to demonstrate that his 1990 conviction was unlawful. A 40 review of the transcript of the pre-trial conference, 41 however, shows that Appellant never requested any such 42 relief. Although Appellant now argues that he was 43 essentially denied the opportunity to testify at trial, 44 Appellant made it clear several times that he did not intend 45 to testify at trial. Although Appellant now implies that he 464 may have selected to testify but for the district court’s 1 failure to give him time to document the invalidity of his 2 1990 conviction, he failed to raise this challenge before 3 the district court. No reason is presented why we should 4 depart from the general rule that we will not address issues 5 raised for the first time on appeal. See Singleton v. 6 Wulff , 428 U.S. 106, 120-21 (1976); see also Virgilio v. 7 City of New York , 407 F.3d 105, 116 (2d Cir. 2005). 8 9 **[4]** Finally, the district court properly admitted the 10 challenged audio recording. The testimonial evidence 11 offered by the Appellees — namely, the testimony of officer 12 Michaels regarding his participation in the recorded call 13 and of Detective D’Andrea regarding the chain of custody and 14 reproduction of the copy of the recording that was played 15 for the jury — was “sufficient to support a finding that the 16 matter in question is what its proponent claims,” Fed. R. 17 Evid. 901(a), and it was therefore sufficient to 18 authenticate the tape. See United States v. Tropeano , 252 19 F.3d 653, 661 (2d Cir. 2001); United States v. Pluta , 176 20 F.3d 43, 49 (2d Cir. 1999) (“[T]he burden of authentication 21 does not require the proponent of the evidence to rule out 22 all possibilities inconsistent with authenticity . . . . 23 Rather, the standard for authentication, and hence for 24 admissibility, is one of reasonable likelihood.”) (internal 25 quotation marks omitted). Furthermore, “[a]uthentication of 26 course merely renders [audio] tapes admissible, leaving the 27 issue of their ultimate reliability to the jury,” and any 28 doubts raised at trial concerning their reliability “would 29 . . . go to the weight to be given to the tapes by the jury, 30 not to their admissibility.” Tropeano , 252 F.3d at 661; see 31 also United States v. Sovie , 122 F.3d 122, 127 (2d Cir. 32 1997) (holding that “allegations of tampering went to the 33 weight of the evidence rather than to its admissibility”). 34 35 McLaurin argues that the admission of the recording 36 violated the best evidence rule. Federal Rule of Evidence 37 1002, commonly referred to as the “best evidence rule,” 38 provides: “To prove the content of a writing, recording, or 39 photograph, the original writing, recording, or photograph 40 is required, except as otherwise provided in these rules or 41 by Act of Congress.” Fed. R. Evid. 1002. However, “[a] 42 duplicate is admissible to the same extent as an original 43 unless (1) a genuine question is raised as to the 44 authenticity of the original or (2) in the circumstances it 45 would be unfair to admit the duplicate in lieu of the 465 original.” Fed. R. Evid. 1003. McLaurin has not raised a 1 genuine question as to the authenticity of the original 2 recording, and therefore the district court did not abuse 3 its discretion by admitting the duplicate recording into 4 evidence. 5 6 We have considered appellant’s remaining arguments and 7 find them to be without merit. For the foregoing reasons, 8 the judgment of the district court is hereby **AFFIRMED**

. 9 10 11 12 FOR THE COURT: 13 CATHERINE O’HAGAN WOLFE, CLERK 14 15