Cimino v. Glaze

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Raymond Clair Cimino, proceeding pro se, appeals from the district court’s judgment dismissing his complaint under 42 U.S.C. § 1983 after a jury verdict in favor of defendants Michael Marcano and Mark Glaze. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We address only Cimino’s challenge to the jury’s verdict on his excessive force claim, as he does not challenge the district court’s pre-trial and post-verdict dismissals of his remaining claims. LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). We review Cimino’s evidentiary challenges for abuse of discretion. Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir.2010). The district court did not abuse its discretion in admitting Cimino’s unsigned statement as a party admission because the officer who created the statement provided a proper foundation for its admission. Fed.R.Evid. 104(b); see also United States v. Rommy, 506 F.3d 108, 139 n. 20 (2d Cir.2007) (finding that a detective’s identification of the defendant’s voice “provided an adequate foundation for the district court to admit the substance of his recorded statements for their truth as party admissions”). The district court did not abuse its discretion in excluding General Order 530, as the Order regulates vehicle pursuits and was therefore not relevant to Cimino’s excessive force claim. Finally, the district court did not abuse its discretion by allowing into evidence Cimi-no’s past criminal convictions and current incarceration, as it found that Cimino had opened the door to discussion of this information when he testified to those facts on direct examination. United States v. Beverly, 5 F.3d 633, 639-40 (2d Cir.1993). Contrary to Cimino’s contention, neither the testimony of the defense witnesses nor defense counsel’s objections during closing support a finding of misconduct that warrants a new trial. None of the testimony Cimino cites supports a finding of perjury. See United States v. Sanchez, 969 F.2d 1409, 1415 (2d Cir.1992) (noting that “[d]if-ferences in recollection alone do not add up to perjury”). The testimony that Cimi-no cites as inflammatory was relevant to the officer’s motivation in the incident in question. See United States v. Maddox, 444 F.2d 148, 151 (2d Cir.1971) (finding that testimony was not inflammatory if highly relevant to a subject at issue). Furthermore, defense counsel’s objections during closing were not patently unwarranted, particularly given the numerous references to evidence not in the record, and were cumulatively harmless. Cf. United States v. Busic, 592 F.2d 13, 36-37 (2d Cir.1978) (finding no prejudice by district court’s interruptions during closing when they were well-warranted and any prejudice that resulted was cured by instructions to the jury). Finally, Cimino’s arguments challenging the jury instructions are also without merit. We review jury instructions de novo, finding error only if “the jury was misled about the correct legal standard or was *403 otherwise inadequately informed of controlling law.” Henry v. Wyeth Pharm., Inc., 616 F.Sd 134, 146 (2d Cir.2010) (internal quotation marks omitted). Here, the district court applied the proper standard and instructed the jury to consider what a reasonable officer would have done in the defendants’ position at the time of the shooting, Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir.2004), and that it was not to consider the internal police report finding that the defendants violated a police regulation as requiring a finding that they violated Cimino’s constitutional rights, see Doe v. Conn. Dep’t of Child & Youth Servs., 911 F.2d 868, 869 (2d Cir.1990) (“A violation of state law [does not] give[] plaintiffs a § 1983 claim ....” (internal brackets and quotation marks omitted)). We have considered all of Cimino’s remaining arguments and found them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.