Matter of Esposito v. Rice

• Decision Date: 10 November 2009
• Docket Number: 2009-03608.
• Citation: 2009 NY Slip Op 08227,888 N.Y.S.2d 178,67 A.D.3d 797
• Parties: In the Matter of ANGELO ESPOSITO, Appellant, v. KATHLEEN RICE, Nassau County District Attorney, Respondent.
• Court: New York Supreme Court — Appellate Division

67 A.D.3d 797

888 N.Y.S.2d 178

2009 NY Slip Op 08227

In the Matter of ANGELO ESPOSITO, Appellant, v. KATHLEEN RICE, Nassau County District Attorney, Respondent.

2009-03608.

Appellate Division of the Supreme Court of New York, Second Department.

Decided November 10, 2009.

In a proceeding pursuant to CPLR article 78 to review a determination of the District Attorney of Nassau County, dated November 24, 2008, denying, in part, the petitioner's request pursuant to the Freedom of Information Law (Public Officers Law § 84 et seq.) for certain documents relating to his criminal conviction, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Spinola, J.), dated April 1, 2009, which denied his petition to compel disclosure of any statements of a particular, named person and, in effect, dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioner sought disclosure under the Freedom of Information Law (Public Officers Law § 84 et seq.) (hereinafter FOIL) of any statements to law enforcement officers made by a person who did not offer testimony at the petitioner's criminal trial. Inasmuch as "the statements of nontestifying witnesses are confidential and not disclosable under FOIL" (Matter of Johnson v Hynes, 264 AD2d 777, 777 [1999]; see Public Officers Law § 87 [2] [e] [iii]; Matter of Spencer v New York State Police, 187 AD2d 919 [1992]; Matter of Moore v Santucci, 151 AD2d 677, 679 [1989]), the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.

RIVERA, J.P., FISHER, BELEN and AUSTIN, JJ., concur.