Opinion
2021-04416
07-16-2021
IN THE MATTER OF CHARLIE MIXON, PETITIONER-APPELLANT, v. GREGORY G. WICKETT, CHIEF OF POLICE, DEPARTMENT OF POLICE, TOWN OF HAMBURG, RESPONDENT-RESPONDENT.
CHARLIE MIXON, PETITIONER-APPELLANT PRO SE. BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (DAVID S. WHITTEMORE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
CHARLIE MIXON, PETITIONER-APPELLANT PRO SE.
BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (DAVID S. WHITTEMORE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND WINSLOW, JJ.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John L. Michalski, A.J.), entered September 19, 2018 in a CPLR article 78 proceeding. The judgment granted the motion of respondent to dismiss the petition.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondent to comply with petitioner's request pursuant to the Freedom of Information Law ([FOIL] Public Officers Law art 6) relating to evidence collected in a criminal action that resulted in petitioner's conviction of arson and murder charges. Specifically, in a letter, petitioner made a single request of respondent, i.e., for respondent to submit certain cotton swabs stored in evidence box number seven for forensic testing pursuant to Executive Law § 838-a (1) (d). Petitioner now appeals from a judgment granting respondent's motion seeking dismissal of the petition pursuant to CPLR 3211 (a) (1) and 7804 (f). We affirm.
To the extent that petitioner's contentions on appeal relate to the cotton swabs stored in evidence box number seven, we reject petitioner's contentions. In order to meet his burden on his motion, respondent was required to provide documentary evidence that "utterly refute[d] [petitioner's] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]; see Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 127 A.D.3d 865, 866-867 [2d Dept 2015]). Here, in support of his motion, respondent established that Executive Law § 838-a deals with sexual offense evidence kits, whereas the only cotton swabs in evidence box number seven had been used to collect a "grease-like substance [found] on the washer/dryer" in the home of the victims, and thus no sexual offense evidence existed in petitioner's criminal case. Because respondent was "under no obligation to furnish [materials that he did] not possess" (Matter of Rivette v District Attorney of Rensselaer County, 272 A.D.2d 648, 649 [3d Dept 2000]; see generally Matter of Council of City of N.Y. v Bloomberg, 6 N.Y.3d 380, 388 [2006]), the evidence submitted by respondent "utterly refute[d] [petitioner's] factual allegations" with respect to the cotton swabs in evidence box number seven, thereby "conclusively establishing a defense as a matter of law" thereto (Goshen, 98 N.Y.2d at 326; see generally Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 N.Y.3d 59, 63 [2012]).
To the extent that petitioner's contentions on appeal relate to allegations in the petition concerning swabs allegedly taken at the autopsy of one of the victims, petitioner's contentions are not properly before us. Inasmuch as petitioner's FOIL request to respondent did not include autopsy swabs, he failed to exhaust his administrative remedies concerning that purported evidence, and we "have no discretionary power to reach" petitioner's contentions concerning it (Matter of Nelson v Coughlin, 188 A.D.2d 1071, 1071 [4th Dept 1992], appeal dismissed 81 N.Y.2d 834 [1993]; see Matter of Di Pietro v State Ins. Fund, 206 A.D.2d 211, 214-215 [4th Dept 1994]; see generally Public Officers Law § 89 [4] [b]). Finally, we conclude that "[p]etitioner's [ Brady ] contentions were not raised in the petition and are thus not properly before us" (Matter of Nix v New York State Div. of Criminal Justice Servs., 167 A.D.3d 1524, 1525 [4th Dept 2018], lv denied 33 N.Y.3d 908 [2019]; see Matter of Pennington v Clark, 307 A.D.2d 756, 758 [4th Dept 2003]).