Opinion
676 CA 18-01182
07-17-2020
In the Matter of Cirito CORDERO, Petitioner-Appellant, v. DISTRICT ATTORNEY OF ERIE COUNTY, Respondent-Respondent.
CIRITO CORDERO, PETITIONER-APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT-RESPONDENT.
CIRITO CORDERO, PETITIONER-APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner was previously convicted upon a jury verdict of predatory sexual assault against a child ( Penal Law § 130.96 ) and this Court affirmed ( People v. Cordero , 110 A.D.3d 1468, 972 N.Y.S.2d 787 [4th Dept. 2013], lv denied 22 N.Y.3d 1137, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014] ). Petitioner thereafter made a request to respondent, pursuant to the Freedom of Information Law (Public Officers Law art 6), seeking a copy of two photographs of the victim and a copy of the victim's medical records held by respondent in connection with petitioner's jury trial. Respondent denied the request, and petitioner commenced this CPLR article 78 proceeding to compel production. Petitioner appeals from a judgment dismissing the petition, and we affirm.
"All government records are presumptively open for public inspection unless specifically exempt from disclosure" by state or federal statute ( Matter of Karlin v. McMahon , 96 N.Y.2d 842, 843, 729 N.Y.S.2d 435, 754 N.E.2d 194 [2001], rearg denied 98 N.Y.2d 693, 747 N.Y.S.2d 411, 775 N.E.2d 1290 [2002], citing Public Officers Law § 87 [2] ). Contrary to petitioner's contention, the requested materials are exempt from disclosure pursuant to Civil Rights Law § 50-b (1), which provides that "[n]o report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies ... a victim [of a sex offense defined by Penal Law article 130] shall be made available for public inspection." This exemption applies regardless of petitioner's contention that he requires the material to support his application for postconviction relief (see Matter of Fappiano v. New York City Police Dept. , 95 N.Y.2d 738, 747-748, 724 N.Y.S.2d 685, 747 N.E.2d 1286 [2001] ; Matter of Crowe v. Guccione , 171 A.D.3d 1170, 1171-1172, 97 N.Y.S.3d 236 [2d Dept. 2019] ). Contrary to petitioner's further contention, because the medical records are exempt from disclosure pursuant to state statute, respondent is "not obligated to provide the records [in redacted form] even though redaction might remove all details which ‘tend to identify the victim’ " ( Karlin , 96 N.Y.2d at 843, 729 N.Y.S.2d 435, 754 N.E.2d 194, citing Civil Rights Law § 50-b [1] ; see Matter of Xao He Lu v. New York City Police Dept. , 143 A.D.3d 616, 617, 39 N.Y.S.3d 761 [1st Dept. 2016] ).