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MID-L-000100-20 02/02/2022 10:02:03 AM Pg 1 of 5 Trans ID: LCV2022448916
OFFICE: 993 LENOX DRIVE LAWRENCEVILLE, NJ 08648-2389
MAILING: PO BOX 5315 PRINCETON, NJ 08543-5315
609-896-9060 (PHONE) 609-896-0629 (FAX)
WWW.STARK-STARK.COM
February 2, 2022
The Honorable Ana C. Viscomi, J.S.C.
Middlesex County Superior Court
56 Paterson Street
New Brunswick, NJ 08903
Re: Darrian v. Iwelumo
Docket No.: MID-L-100-20
Dear Judge Viscomi:
Please accept this letter brief in Reply to Kenneth Iwelumo, Jr. (“Defendant’s”) Opposition
to Kenneth Darrian (“Plaintiff’s”) Motion in Limine to Bar Defendant from introducing Plaintiff’s
prior criminal conviction. The Defendant’s sole argument is that Plaintiff’s prior criminal
conviction should be introduced because Plaintiff failed to notify Dr. Shah (Plaintiff’s expert) and
Dr. Fried (Defendant’s expert) about one instant in the past when he complained of neck and back
pain. It’s important to note that both Dr. Shah and Dr. Fried reviewed this prior medical record
and addressed it at each of their respective video depositions. Defendant then makes the
extraordinary leap that because of failing to mention this remote incident, the defense should be
able to bring up an irrelevant and nonprobative criminal conviction. The defense is attempting to
poison the jury and Plaintiff’s motion should respectfully be granted.
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LEGAL ARGUMENTS
I. CONFRONTING PLAINTIFF WITH THE PRIOR MEDICAL RECORD
IS THE CORRECT PIECE OF EXTRINSIC EVIDENCE TO IMPEACH
HIM AND NOT THE PRIOR CRIMINAL CONVICTION.
The correct piece of evidence that conforms with the New Jersey evidentiary rules would
be to confront Plaintiff with the medical record where he complained of prior neck or back pain
and not the prior criminal conviction. N.J.R.E. 607 controls the evidentiary issue:
N.J.R.E. 607. Witness Impeachment, Support, and
Neutralization
(a) For the purpose of attacking or supporting the credibility of a
witness, any party, including the party calling the witness, may
examine the witness and introduce extrinsic evidence relevant to the
issue of credibility, subject to the exceptions in (a)(1) and (2).
(1) This provision is subject to Rules 405 and 608.
(2) The party calling a witness may not neutralize the
witness’ testimony by a prior contradictory statement unless (i) the
statement is in a form admissible under Rule 803(a)(1), or (ii) the
court finds that the party calling the witness was surprised.
It’s clear that the only evidence that may be introduced is that which contradicts or calls
into question the witness’s version of the facts; only that evidence is relevant. Green v. New Jersey
Mfrs. Ins. Co., 160 N.J. 480, 495 (1999). In Green, the witness testified at trial that he left the
army because he “had enough combat” and “didn’t need the environment” was met with an earlier
statement in discovery that he left because black troops under his command caused him stress by
being undisciplined. Id. Although there was a different reason for his leaving, it did little to
establish that he was a liar and was therefore only minimally relevant. Id. The Green Court
ultimately ruled that the highly prejudicial racial bias evidence only marginally relevant to
4863-8678-8620, v. 1
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credibility should have been excluded under N.J.R.E. 403. Id. It’s very clear that irrelevant
evidence which might improperly affect the credibility of a witness should not be admitted. State
v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990).
In reviewing the Green case above and applying the legal analysis to the instant fact pattern,
NJ law is clear-there needs to be some nexus or relevance to the credibility you are attacking. In
Green, the defense was attempting to paint the witness as a racist. They were attempting to
introduce evidence of why he left the Army and there was an actual connection to the statement
being introduced. There, even with the connection, the Court ultimately excluded it under N.J.R.E.
403. Here the one prior instance of neck or back pain has absolutely nothing to do with Plaintiff’s
prior criminal conviction- the defense is simply attempting to introduce highly prejudicial and
irrelevant evidence to improperly bias the jury against Plaintiff. Such efforts must be thwarted by
the Court as gatekeepers of justice and the truth. Here the prior criminal conviction does not
contradict or call into question the witness’s version of the facts.
II. THE PRIOR CRIMINAL CONVICTION MUST BE EXCLUDED
PURSUANT TO N.J.R.E. 403.
Introducing Plaintiff’s prior criminal conviction violate N.J.R.E 403 which provides that:
Except as otherwise provided by these rules or other law, the court
may exclude relevant evidence if its probative value is
substantially outweighed by the risk of:
(a) Undue prejudice, confusing the issues, or misleading the jury;
or
(b) Undue delay, wasting time, or needlessly presenting cumulative
evidence.
The burden is on the party urging exclusion of evidence to convince the court that the
N.J.R.E. 403 considerations should control. See Rosenblit v. Zimmerman, 166 N.J. 391, 410
4863-8678-8620, v. 1
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(2001). The factors favoring exclusion must be shown to “substantially” outweigh the probative
value of the contested evidence. State v. Cole, 229 N.J. 430, 448 (2017). In evaluating whether
particular evidence has sufficient probative value to survive a N.J.R.E. 403 challenge, the
“remoteness” of the evidence is important to analyze. See State v. Rogers, 19 N.J. 218, 228 (1955).
The Court should consider the factors contained in N.J.R.E. 609 (b) (2) in conducting a N.J.R.E.
403 analysis namely:
(i) whether there are intervening convictions for crimes or offenses, and if so, the
number, nature, and seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of dishonesty, lack of veracity or
fraud,
(iii) how remote the conviction is in time,
(iv) the seriousness of the crime.
Last, the probative value of proffered evidence which is objected to on N.J.R.E. 403
grounds depends to some degree on the availability of other evidence that can be used to
prove the same point. See State v. Smith, 158 N.J. 376, 391 (1999) (emphasis added). Here the
prior criminal conviction is not relevant and has no probative value to Plaintiff’s prior neck and
back complaint. Even if the Court finds some probative value, the risk of the prior conviction being
unduly prejudicial is significant. In applying the factors under N.J.R.E. 609 (b) (2) to provide the
Court with guidance in their N.J.R.E. 403 analysis, Plaintiff only committed the one crime about
ten years ago and the rest of his record is clean. The crime of robbery is not a crime of dishonesty
or fraud. The conviction was very remote to this incident which was over 10 years ago. Last,
although the crime of robbery is bad, it is not as serious as other crimes such as murder. Plaintiff
used a toy gun and robbed the bank of approximately $3000. The nature of the crime will also
4863-8678-8620, v. 1
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invite ridicule by the jury since Plaintiff, a man, dressed up as a woman when he committed the
robbery.
The conviction will unfairly tip the scales in Defendant’s favor and will almost certainly
guarantee Plaintiff a “no cause” at trial.
CONCLUSION
For the foregoing reasons Plaintiff’s motion should be granted.
STARK & STARK
A Professional Corporation
By: _________________________________
/s Bhaveen R. Jani
BHAVEEN R. JANI
BRJ/ac
cc: Darren C. Kayal Esq. (via ecourts)
4863-8678-8620, v. 1
Preview
MID-L-000100-20 02/02/2022 10:02:03 AM Pg 1 of 5 Trans ID: LCV2022448916 OFFICE: 993 LENOX DRIVE LAWRENCEVILLE, NJ 08648-2389 MAILING: PO BOX 5315 PRINCETON, NJ 08543-5315 609-896-9060 (PHONE) 609-896-0629 (FAX) WWW.STARK-STARK.COM February 2, 2022 The Honorable Ana C. Viscomi, J.S.C. Middlesex County Superior Court 56 Paterson Street New Brunswick, NJ 08903 Re: Darrian v. Iwelumo Docket No.: MID-L-100-20 Dear Judge Viscomi: Please accept this letter brief in Reply to Kenneth Iwelumo, Jr. (“Defendant’s”) Opposition to Kenneth Darrian (“Plaintiff’s”) Motion in Limine to Bar Defendant from introducing Plaintiff’s prior criminal conviction. The Defendant’s sole argument is that Plaintiff’s prior criminal conviction should be introduced because Plaintiff failed to notify Dr. Shah (Plaintiff’s expert) and Dr. Fried (Defendant’s expert) about one instant in the past when he complained of neck and back pain. It’s important to note that both Dr. Shah and Dr. Fried reviewed this prior medical record and addressed it at each of their respective video depositions. Defendant then makes the extraordinary leap that because of failing to mention this remote incident, the defense should be able to bring up an irrelevant and nonprobative criminal conviction. The defense is attempting to poison the jury and Plaintiff’s motion should respectfully be granted. MID-L-000100-20 02/02/2022 10:02:03 AM Pg 2 of 5 Trans ID: LCV2022448916 LEGAL ARGUMENTS I. CONFRONTING PLAINTIFF WITH THE PRIOR MEDICAL RECORD IS THE CORRECT PIECE OF EXTRINSIC EVIDENCE TO IMPEACH HIM AND NOT THE PRIOR CRIMINAL CONVICTION. The correct piece of evidence that conforms with the New Jersey evidentiary rules would be to confront Plaintiff with the medical record where he complained of prior neck or back pain and not the prior criminal conviction. N.J.R.E. 607 controls the evidentiary issue: N.J.R.E. 607. Witness Impeachment, Support, and Neutralization (a) For the purpose of attacking or supporting the credibility of a witness, any party, including the party calling the witness, may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, subject to the exceptions in (a)(1) and (2). (1) This provision is subject to Rules 405 and 608. (2) The party calling a witness may not neutralize the witness’ testimony by a prior contradictory statement unless (i) the statement is in a form admissible under Rule 803(a)(1), or (ii) the court finds that the party calling the witness was surprised. It’s clear that the only evidence that may be introduced is that which contradicts or calls into question the witness’s version of the facts; only that evidence is relevant. Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 495 (1999). In Green, the witness testified at trial that he left the army because he “had enough combat” and “didn’t need the environment” was met with an earlier statement in discovery that he left because black troops under his command caused him stress by being undisciplined. Id. Although there was a different reason for his leaving, it did little to establish that he was a liar and was therefore only minimally relevant. Id. The Green Court ultimately ruled that the highly prejudicial racial bias evidence only marginally relevant to 4863-8678-8620, v. 1 MID-L-000100-20 02/02/2022 10:02:03 AM Pg 3 of 5 Trans ID: LCV2022448916 credibility should have been excluded under N.J.R.E. 403. Id. It’s very clear that irrelevant evidence which might improperly affect the credibility of a witness should not be admitted. State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990). In reviewing the Green case above and applying the legal analysis to the instant fact pattern, NJ law is clear-there needs to be some nexus or relevance to the credibility you are attacking. In Green, the defense was attempting to paint the witness as a racist. They were attempting to introduce evidence of why he left the Army and there was an actual connection to the statement being introduced. There, even with the connection, the Court ultimately excluded it under N.J.R.E. 403. Here the one prior instance of neck or back pain has absolutely nothing to do with Plaintiff’s prior criminal conviction- the defense is simply attempting to introduce highly prejudicial and irrelevant evidence to improperly bias the jury against Plaintiff. Such efforts must be thwarted by the Court as gatekeepers of justice and the truth. Here the prior criminal conviction does not contradict or call into question the witness’s version of the facts. II. THE PRIOR CRIMINAL CONVICTION MUST BE EXCLUDED PURSUANT TO N.J.R.E. 403. Introducing Plaintiff’s prior criminal conviction violate N.J.R.E 403 which provides that: Except as otherwise provided by these rules or other law, the court may exclude relevant evidence if its probative value is substantially outweighed by the risk of: (a) Undue prejudice, confusing the issues, or misleading the jury; or (b) Undue delay, wasting time, or needlessly presenting cumulative evidence. The burden is on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control. See Rosenblit v. Zimmerman, 166 N.J. 391, 410 4863-8678-8620, v. 1 MID-L-000100-20 02/02/2022 10:02:03 AM Pg 4 of 5 Trans ID: LCV2022448916 (2001). The factors favoring exclusion must be shown to “substantially” outweigh the probative value of the contested evidence. State v. Cole, 229 N.J. 430, 448 (2017). In evaluating whether particular evidence has sufficient probative value to survive a N.J.R.E. 403 challenge, the “remoteness” of the evidence is important to analyze. See State v. Rogers, 19 N.J. 218, 228 (1955). The Court should consider the factors contained in N.J.R.E. 609 (b) (2) in conducting a N.J.R.E. 403 analysis namely: (i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses, (ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud, (iii) how remote the conviction is in time, (iv) the seriousness of the crime. Last, the probative value of proffered evidence which is objected to on N.J.R.E. 403 grounds depends to some degree on the availability of other evidence that can be used to prove the same point. See State v. Smith, 158 N.J. 376, 391 (1999) (emphasis added). Here the prior criminal conviction is not relevant and has no probative value to Plaintiff’s prior neck and back complaint. Even if the Court finds some probative value, the risk of the prior conviction being unduly prejudicial is significant. In applying the factors under N.J.R.E. 609 (b) (2) to provide the Court with guidance in their N.J.R.E. 403 analysis, Plaintiff only committed the one crime about ten years ago and the rest of his record is clean. The crime of robbery is not a crime of dishonesty or fraud. The conviction was very remote to this incident which was over 10 years ago. Last, although the crime of robbery is bad, it is not as serious as other crimes such as murder. Plaintiff used a toy gun and robbed the bank of approximately $3000. The nature of the crime will also 4863-8678-8620, v. 1 MID-L-000100-20 02/02/2022 10:02:03 AM Pg 5 of 5 Trans ID: LCV2022448916 invite ridicule by the jury since Plaintiff, a man, dressed up as a woman when he committed the robbery. The conviction will unfairly tip the scales in Defendant’s favor and will almost certainly guarantee Plaintiff a “no cause” at trial. CONCLUSION For the foregoing reasons Plaintiff’s motion should be granted. STARK & STARK A Professional Corporation By: _________________________________ /s Bhaveen R. Jani BHAVEEN R. JANI BRJ/ac cc: Darren C. Kayal Esq. (via ecourts) 4863-8678-8620, v. 1