Opinion
00446/2019
07-15-2019
William FIGUEROA, Petitioner, v. Eric GONZALEZ, Kings County District Attorney, For an order pursuant to Article 78 of the Civil Practice Law and Rules, Respondent.
Pro Se Plaintiff, William Figueroa Attorney for Defendant, George B. Forbes, Esq., Assistant District Attorney, Kings County District Attorney's Office, 350 Jay Street, 9th Floor, Brooklyn, New York 11201
Pro Se Plaintiff, William Figueroa
Attorney for Defendant, George B. Forbes, Esq., Assistant District Attorney, Kings County District Attorney's Office, 350 Jay Street, 9th Floor, Brooklyn, New York 11201
Francois A. Rivera, J. Petitioner William Figueroa (hereinafter petitioner), an inmate at Sullivan Correctional Facility, brings this Article 78 proceeding by order to show cause and petition to challenge a determination by respondent District Attorney Eric Gonzalez denying his Freedom of Information Law ("FOIL") request for the disclosure of records pertaining to the investigation of a crime for which he was convicted ( Public Officers Law § 84 - 90 ).
BACKGROUND
In the early morning hours of August 8, 1989, Maria Hernandez (hereinafter Hernandez) was struck and killed by bullets fired through the bedroom window of her home. Hernandez, a prominent figure in her community, was known for activism against the illicit drug trade. At the time of her death, she was married and had a three year old child.
On January 12, 1991, the petitioner was convicted of Maria Hernandez's homicide after a jury trial in the Kings County Supreme Court. He was convicted of depraved indifference Murder in the Second Degree ( Penal Law § 125.25 [2 ] ), as well as, Reckless Endangerment in the First Degree ( Penal Law § 120.25 ), two counts of Criminal Possession of a Weapon in the Second Degree ( Penal Law § 265.03 ), and Criminal Possession of a Weapon in the Third Degree ( Penal Law § 265.02 [4 ] ). The petitioner's conviction was affirmed on direct appeal ( People v. Figueroa , 213 A.D.2d 669, 625 N.Y.S.2d 49 [2nd Dept. 1995], lv. denied, 85 N.Y.2d 972, 629 N.Y.S.2d 732, 653 N.E.2d 628 [1995] ).
By letter dated August 31, 2018, addressed to the FOIL Department of the Kings County District Attorney's office, the petitioner requested the following documents:
"1. A copy of the June 5, 1990 conference minutes, which the prosecution sent to the court, is now a part of the record.
2. the non-disclosed DD-5's, 176 and 197."
By letter dated September 7, 2018, addressed to the petitioner, the Kings County District Attorney's office denied the FOIL request on the basis that the petitioner had initiated post judgment litigation pursuant to CPL 440.10. The letter further stated that disclosure of the records while the litigation was pending would interfere with the handling of the judicial proceeding, as well as, any further investigation that might be necessary.
By letter dated September 11, 2018, addressed to the Morgan Dennehy, Esq. (hereinafter Dennehy), the FOIL Appeals Officer of the Kings County District Attorney's office, petitioner administratively appealed the September 7, 2018 denial of his document request. The petitioner contended that his conviction and sentence was over thirty years ago, and that his direct appeal was affirmed. The petitioner further claimed that his collateral proceedings pursuant to CPL 440.10 should not constitute a basis for an exemption based on interference with a criminal matter.
By letter dated September 20, 2018, addressed to the petitioner, Dennehy advised the petitioner that the denial of his FOIL request was affirmed.
LAW AND APPLICATION
Public Officers Law § 87 (2) (e) (i) states that: "Each agency shall in accordance with its public rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that ... are compiled for law enforcement purposes and which, if disclosed, would ...interfere with law enforcement investigations or judicial proceedings ... "
FOIL exempts agencies from disclosing documents compiled for law enforcement purposes, which, if disclosed, would interfere with judicial proceedings. In deciding whether a proceeding is pending for purposes of invoking the interference exemption, the First Department has said that a generic determination can be issued by an agency stating that disclosure under FOIL would interfere with a judicial proceeding against a particular individual (see Matter of Legal Aid Socy. v. New York City Police Dept. , 274 A.D.2d 207, 713 N.Y.S.2d 3 [1st Dept. 2000] ). In the Matter of Legal Aid Society case, defendants in pending criminal prosecutions who were requesting information related to their charges, including complaint report worksheets and arrest reports, brought Article 78 proceedings challenging the denial of their FOIL requests by the New York City Police Department (hereinafter NYPD).
The Appellate Division denied the petition, reversing a lower court's decision. The Appellate Division was persuaded by the contention of NYPD that disclosure of records in pending criminal prosecutions would interfere with those proceedings. The court also held that the contention that disclosure of records to a defendant in a pending criminal prosecution would interfere with that proceeding was a sufficiently particularized justification for the denial of access to those records under Public Officers Law § 87 (2) (e) (i). Furthermore, the Appellate Division found that the FOIL disclosure during the course of the prosecution would not only interfere with the orderly process of disclosure set forth in CPL 240 but it would also create a substantial likelihood of delay in the adjudication of that proceeding thereby effecting a chill on that prosecution (see Matter of Legal Aid Socy. , 274 A.D.2d at 214, 713 N.Y.S.2d 3 ).
This rationale has been reaffirmed in later decisions (see Matter of Moreno v. New York County Dist. Attorney's Off. , 38 A.D.3d 358, 832 N.Y.S.2d 183 [1st Dept. 2007], lv. denied, 9 N.Y.3d 801, 840 N.Y.S.2d 566, 872 N.E.2d 252 [2007] ; Matter of Lesher v. Hynes , 19 N.Y.3d 57, 945 N.Y.S.2d 214, 968 N.E.2d 451 [2012] ). In the Moreno case, the Appellate Division stated that a criminal appeal and any subsequent proceedings within the same prosecution constitute judicial proceedings under FOIL so as to preclude disclosure of records while an appeal or subsequent proceedings are pending ( Matter of Moreno , 38 A.D.3d at 358, 832 N.Y.S.2d 183 ).
In the instant matter, there is no dispute that the petitioner previously made a motion pursuant to CPL 440.10 to the Kings County Supreme Court to renew his 1991 motion to vacate his conviction. During the period between petitioner's FOIL request by letter dated August 31, 2018, until he received notice of the denial of his administrative appeal by letter dated September 20, 2018, petitioner's CPL 440.10 motion was pending.
In light of the holdings in the Matter of Moreno and the Matter of Lesher , the Kings County District Attorney properly denied petitioner's FOIL request pursuant to Public Officers Law § 87 (2) (e) (i).
CONCLUSION
William Figueroa's motion for an order pursuant to Article 78 and Public Officers Law § 84 - 90 compelling respondent District Attorney Eric Gonzalez to provide him with certain documents is denied and the petition is dismissed.
The foregoing constitutes the decision and order of this Court.