He'ron v Office of the Dist. Attorney

He'ron v Office of the Dist. Attorney 2012 NY Slip Op 04821 Decided on June 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2012
Tom, J.P., Andrias, DeGrasse, Richter, Román JJ.
7547 250149/11

[*1]In re Michael Owen He'ron, Petitioner-Appellant,

v

Office of the District Attorney, Bronx County, Respondent-Respondent.




Michael Owen He'ron, appellant pro se.
Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of
counsel), for respondent.

Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered on or about May 19, 2011, which, to the extent appealed from as limited by the briefs, dismissed the petition brought pursuant to CPLR Article 78, seeking, inter alia, to compel respondent to provide the records of criminal convictions and/or pending charges against one George Santos, a purported witness at petitioner's 1980 murder trial, which petitioner sought through a Freedom of Information Law (FOIL) request, unanimously affirmed, without costs.

Respondent satisfied the requirements of Public Officers Law § 89(3) by certifying that a diligent search had been conducted and the documents could not be located in respondent's files (see Matter of Rattley v New York City Police Dept., 96 NY2d 873 [2001]; Matter of Alicea v New York City Police Dept., 287 AD2d 286 [2001]). An agency is not required to create records in order to comply with a FOIL request (Public Officers Law § 89[3]; see Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 464 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2012

CLERK