Matter of Moreno v New York County Dist. Attorney's Off.

Matter of Moreno v New York County Dist. Attorney's Off. 2007 NY Slip Op 02422 [38 AD3d 358] March 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

In the Matter of John Vera Moreno, Appellant,
v
New York County District Attorney's Office, Respondent.

—[*1] John Vera Moreno, appellant pro se.

Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), for respondent.

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered January 6, 2006, which denied and dismissed the petition brought pursuant to CPLR article 78 to compel respondent to disclose certain documents pursuant to the Freedom of Information Law, unanimously affirmed, without costs.

Dismissal of the petition was warranted due to petitioner's failure to preserve his right to judicial review by filing a timely administrative appeal (see Public Officers Law § 89 [4] [a] and [b]; Matter of Jamison v Tesler, 300 AD2d 194 [2002]; Matter of McGriff v Bratton, 293 AD2d 401 [2002]).

In any case, were we to reach the merits, we would affirm because disclosure of the sought materials would have interfered with petitioner's then still pending criminal appeal and any subsequent proceedings within the same prosecution (see Public Officers Law § 87 [2] [e] [i]; Matter of Legal Aid Socy. v New York City Police Dept., 274 AD2d 207 [2000], lv denied 95 NY2d 956 [2000]; Matter of Sideri v Office of Dist. Attorney of N.Y. County, 243 AD2d 423 [1997], lv denied 91 NY2d 808 [1998]), and because some of the sought documents were within the scope of a continuing protective order issued to ensure the safety of DEA agents, informants and witnesses (see CPL 240.50), and finally because disclosure of the sought nondiscovery materials in respondent's files would give rise to the same safety concerns underlying the protective order (see Public Officers Law § 87 [2] [f]; Matter of Johnson v New York City Police [*2]Dept., 257 AD2d 343, 348-349 [1999], lv dismissed 94 NY2d 791 [1999]).

Petitioner's remaining arguments are unavailing. Concur—Andrias, J.P., Marlow, Nardelli, Sweeny and McGuire, JJ.