Powell v. Bernhardt

Appellate Division of the Supreme Court of New York

Powell v. Bernhardt

19 A.D.3d 307, 797 N.Y.S.2d 94, 2005 N.Y. App. Div. LEXIS 7179

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 2005

StatusPublished

Cited by2 cases

This text of 19 A.D.3d 307 (Powell v. Bernhardt) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Powell v. Bernhardt, 19 A.D.3d 307, 797 N.Y.S.2d 94, 2005 N.Y. App. Div. LEXIS 7179 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered July 1, 2004, which denied petitioner’s application pursuant to CPLR article 78 and granted respondent’s cross motion to dismiss the petition, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 4, 2004, which denied petitioner’s reargument motion, unanimously dismissed, without costs, as taken from a nonappealable paper.

[308]*308Pursuant to a Freedom of Information Law request, petitioner obtained records from his Bronx murder trial, including a crime-scene videotape. Respondent’s denial of the request insofar as it sought a purported second crime-scene videotape, or the entire crime-scene videotape depicting the closed barrel, or a barrel being opened, was sufficiently supported by an Assistant District Attorney’s affirmation that he diligently searched for the requested material and despite those efforts, no such videotape could be located (Public Officers Law § 89 [3]; Matter of Rattley v New York City Police Dept., 96 NY2d 873 [2001]). Petitioner’s arguments on appeal—that the IAS court erred in failing to require respondent to present proof of authentication of the crime-scene videotape it provided, and in failing to order a hearing to determine why the videotape sent petitioner did not depict the opening of the barrel—are unpreserved, and in any event, without merit. Concur—Saxe, J.P., Nardelli, Williams, Gonzalez and Catterson, JJ.

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Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered July 1, 2004, which denied petitioner’s application pursuant to CPLR article 78 and granted respondent’s cross motion to dismiss the petition, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 4, 2004, which denied petitioner’s reargument motion, unanimously dismissed, without costs, as taken from a nonappealable paper.

[308]*308Pursuant to a Freedom of Information Law request, petitioner obtained records from his Bronx murder trial, including a crime-scene videotape. Respondent’s denial of the request insofar as it sought a purported second crime-scene videotape, or the entire crime-scene videotape depicting the closed barrel, or a barrel being opened, was sufficiently supported by an Assistant District Attorney’s affirmation that he diligently searched for the requested material and despite those efforts, no such videotape could be located (Public Officers Law § 89 [3]; Matter of Rattley v New York City Police Dept., 96 NY2d 873 [2001]). Petitioner’s arguments on appeal—that the IAS court erred in failing to require respondent to present proof of authentication of the crime-scene videotape it provided, and in failing to order a hearing to determine why the videotape sent petitioner did not depict the opening of the barrel—are unpreserved, and in any event, without merit. Concur—Saxe, J.P., Nardelli, Williams, Gonzalez and Catterson, JJ.

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Bluebook (online)

19 A.D.3d 307, 797 N.Y.S.2d 94, 2005 N.Y. App. Div. LEXIS 7179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-bernhardt-nyappdiv-2005.

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