In an order dated August 14, 2003, the Supreme Court denied without prejudice petitioner's request for police vouchers and scientific test results, ordering him to first attempt to recover them from his trial counsel. See Dupont v. Kings County, Dist. Attorney's Office, Index # 19065/03, 2003 WL 22011317, at *2 (N.Y. Sup. Aug. 14, 2003), aff'd in pertinent part at 15 A.D.3d 480, 790 N.Y.S.2d 505 (App. Div. 2d Dep't 2005).
Although "[a] court is limited to considering only those exemptions to disclosure that are invoked by the party from whom disclosure is sought" ( Matter of Rose v. Albany County Dist. Attorney's Off., 141 A.D.3d 912, 914, 34 N.Y.S.3d 753 [2016] ), it is also well settled that a court "may take judicial notice of a record in the same court of either the pending matter or of some other action" ( Matter of Allen v. Strough, 301 A.D.2d 11, 18, 752 N.Y.S.2d 339 [2002] ). We note that the requested records and exhibits were furnished to petitioner's appellate counsel; therefore, respondent is under no obligation to furnish additional copies (seeMatter of Badalamenti v. Office of Dist. Attorney Nassau County, 89 A.D.3d 1019, 1020, 933 N.Y.S.2d 359 [2011] ; Matter of Dupont v. Kings County Dist. Attorney's Off., 15 A.D.3d 480, 480, 790 N.Y.S.2d 505 [2005] ; Matter of Khatibi v. Weill, 8 A.D.3d 485, 486, 778 N.Y.S.2d 511 [2004] ; Matter of Franklin v. Keller, 254 A.D.2d 83, 83, 678 N.Y.S.2d 330 [1998] ). As petitioner obtained the requested records through his appellate counsel, whether respondent properly denied his Freedom of Information Law request has been rendered academic, and this appeal must be dismissed.
The District Attorney's Office otherwise established that it provided the petitioner with copies of all pertinent 911 emergency number recordings during his criminal trial. The petitioner is not entitled to additional copies unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make (see Matter of Dupont v Kings County Dist. Attorney's Off., 15 AD3d 480; Matter of Khatibi v Weill, 8 AD3d 485, 486; Matter of Williams v Erie County Dist. Attorney, 255 AD2d 863, 864-865; Matter of Moore v Santucci, 151 AD2d 677, 678). In light of our determination, the petitioner's remaining contentions have been rendered academic.
The District Attorney's Office is under no obligation to furnish the petitioner with records it does not possess ( see Matter of Walsh v. Wasser, 225 A.D.2d 911, 911–912, 639 N.Y.S.2d 506; Matter of Adams v. Hirsch, 182 A.D.2d 583, 582 N.Y.S.2d 724). The District Attorney's Office otherwise established that it provided the petitioner with copies of all pertinent 911 emergency number recordings during his criminal trial. The petitioner is not entitled to additional copies unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make ( see Matter of Dupont v. Kings County Dist. Attorney's Off., 15 A.D.3d 480, 790 N.Y.S.2d 505; Matter of Khatibi v. Weill, 8 A.D.3d 485, 486, 778 N.Y.S.2d 511; Matter of Williams v. Erie County Dist. Attorney, 255 A.D.2d 863, 864–865, 682 N.Y.S.2d 316; Matter of Moore v. Santucci, 151 A.D.2d 677, 678, 543 N.Y.S.2d 103). In light of our determination, the petitioner's remaining contentions have been rendered academic.
As to that item, the respondent stated that the petitioner would be permitted access to the bullet upon his request, at a location to be designated by the Yonkers Police Department. Accordingly, the Supreme Court correctly denied the petition as academic ( see Matter of Rattley v New York City Police Dept., 96 NY2d 873; Matter of Dupont v Kings County Dist. Attorney's Off., 15 AD3d 480, 481), with the following exception. One of the documents the respondent produced, a copy of a City of Yonkers Police Department Property Clerk voucher, dated December 1, 1993, and bearing serial number 95830, was incomplete. It failed to include the bottom portion of the document, including the Property Clerk receipt number.