Zarvela v. Banks

117 A.D.3d 1070, 986 N.Y.S.2d 340

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 2014
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals from a judgment of the Supreme Court, Kings County (Bunyan, J.), dated June 20, 2012, which denied the petition and dismissed the proceeding.

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

The petitioner was convicted of murder in the second degree and criminal possession of a weapon in the second degree (see People v Zarvela, 211 AD2d 690 [1995]). The petitioner commenced this proceeding pursuant to CPLR article 78 to compel disclosure of certain materials pursuant to the Freedom of Information Law (Public Officers Law art 6 [hereinafter FOIL]).

Contrary to the petitioner’s contentions, the requested statements of witnesses who did not testify at trial are confidential and are not disclosable under FOIL (see Public Officers Law § 87 [2] [e] [iii]; Matter of Esposito v Rice, 67 AD3d 797 [2009]; Matter of Johnson v Hynes, 264 AD2d 777 [1999]).

The petitioner’s request for cooperation agreements with two trial witnesses is duplicative of a 1996 request for the same materials. That request was denied and the determination was never appealed from administratively (see Public Officers Law § 89 [4] [a]). Therefore, this proceeding is, in part, a belated attempt to seek judicial review of that prior determination (see CPLR 217 [1]; Matter of Mendez v New York City Police Dept., 260 AD2d 262 [1999]).

Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

Skelos, J.P, Sgroi, Cohen and LaSalle, JJ., concur.