Plaintiff brought this action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the defendant which was traveling on Hylan Boulevard in Staten Island. At the time of jury selection, the plaintiff moved in limine to preclude the defendant from offering evidence of or in any way calling the jury’s attention to the facts of the plaintiff’s incontestable past use of heroin ( and his current participation in a methadone treatment program.
Following jury selection and prior to opening, the court granted the balance of the plaintiff’s motion and precluded the defendant from mentioning or offering any evidence of the plaintiffs past use of heroin (heroin possession). Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.
First, it is important to recognize what is not presented on the motion. A New York Criminal Lawyer said the motion does not question whether a plaintiff’s use of heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the plaintiff, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the plaintiffs heroin use would surely be admissible. Nor is it about whether the plaintiff was under the influence of heroin at the time of the accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the plaintiff was under the influence of heroin at the time of his testimony. The use of heroin by the plaintiff in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. (See, e.g., People v Freeland, 36 NY2d 518, 525 .) The lone issue decided by this court on the branch of the motion reserved to it was whether the plaintiff’s past use of heroin was admissible as an act of moral turpitude offered only to attack his credibility as a witness.