Whitley v. N.Y. Cnty. Dist. Attorney's Office

• Decision Date: 06 December 2012
• Citation: 2012 N.Y. Slip Op. 08435,955 N.Y.S.2d 42,101 A.D.3d 455
• Parties: In re Daryl WHITLEY, Petitioner–Appellant, v. NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 455
955 N.Y.S.2d 42
2012 N.Y. Slip Op. 08435

In re Daryl WHITLEY, Petitioner–Appellant,
v.
NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, et al., Respondents–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Dec. 6, 2012.

[955 N.Y.S.2d 43]

Simpson Thacher & Bartlett LLP, New York (Juan A. Arteaga of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Richard Nahas of counsel), for respondents.

TOM, J.P., MAZZARELLI, MOSKOWITZ, ABDUS–SALAAM, FEINMAN, JJ.

Order and judgment (one paper), Supreme Court, New York County (Cynthia S. Kern, J.), entered September 15, 2011, which denied the petition seeking, among other things, to annul respondents' determination denying petitioner's Freedom of Information Law (FOIL) request for certain documents concerning the investigation and prosecution of a crime for which petitioner was convicted, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' determination was not affected by an error of law ( seeCPLR 7803[3]; Mulgrew v. Board of Educ. of the City School Dist. of the City of N.Y., 87 A.D.3d 506, 507, 928 N.Y.S.2d 701 [1st Dept. 2011],lv. denied18 N.Y.3d 806, 2012 WL 446222 [2012] ). Respondents correctly determined that disclosure of the requested documents would have interfered with petitioner's then-pending criminal appeal and any subsequent proceedings in the underlying criminal case ( seePublic Officers Law § 87[2][e][i]; Matter of Moreno v. New York County Dist. Attorney's Off., 38 A.D.3d 358, 358, 832 N.Y.S.2d 183 [1st Dept. 2007],lv. denied9 N.Y.3d 801, 840 N.Y.S.2d 566, 872 N.E.2d 252 [2007] ). Respondents generically identified the kinds of documents sought and the risks of disclosing the documents ( see Matter of Lesher v. Hynes, 19 N.Y.3d 57, 67, 945 N.Y.S.2d 214, 968 N.E.2d 451 [2012];Matter of Legal Aid Socy. v. New York City Police Dept., 274 A.D.2d 207, 214, 713 N.Y.S.2d 3 [1st Dept. 2000],lv. dismissed in part, denied in part95 N.Y.2d 956, 722 N.Y.S.2d 469, 745 N.E.2d 389 [2000] ). We reject petitioner's contention that respondents were required to set forth particularized findings about whether the FOIL exemption at issue applied to each responsive document ( see Lesher, 19 N.Y.3d at 67, 945 N.Y.S.2d 214, 968 N.E.2d 451;Legal Aid Socy., 274 A.D.2d at 213–214, 713 N.Y.S.2d 3).

We have considered petitioner's remaining contentions and find them unavailing.