Matter of Kanani v District Attorney of the County of N.Y.

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Matter of Kanani v District Attorney of the County of N.Y. 2012 NY Slip Op 30873(U) April 2, 2012 Sup Ct, NY County Docket Number: 402886/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON41512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 In the Matter of the Application of BEHROOZ KANANI, #83-A-7866, Petitioner, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, Index No. 402886/11 Motion Subm. : Motion Seq. No.: 12/15/12 00 1 DECISION & JUDGMENT -against- DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK, For petitioner, self-represented: Behrooz Kanani, #9 1-A-5678 Fishkill Correctional Facility 271 Matteawan Rd., P.O. Box 1245 Beacon, NY 12508-0307 FILED Sara M.-Zausrner, ADA New York County District Attorney's Office One Hogan P1. New York, NY 10013 2 12-335-9000 By order to show cause dated November 3,20 11, petitioner brings this special proceeding pursuant to CPLR Article 78. Respondent opposes. 1, BACKGROUlQ In March 1998, after a second jury trial, petitioner was convicted of 12 counts of sodomy in the first degree related to crimes he committed against his two daughters, who were both under 12 years old at the time of the crimes. (Verified Petition, dated Oct. 26,201 1 [Pet.]). By letter dated April 19,2010, petitioner served respondent with a Freedom of Information Law (FOIL) request seeking an unredacted copy of all records, files, and documents <;: ;I E :,,-,: relating to his criminal indictment. (Id.,Exh. A). APR It; :: ;:[!1?_ BiOTSIQT', ' b;,,'.*; c:, , . > -. _ A y ..,_ . , [* 2] By letter dated April 30, 2010, respondent denied his request on the grounds that he had been provided with the documents during his two trials and that the documents were exempt from disclosure pursuant to section 50-b of the Civil Rights Law as they would identify the victims of a sex offense. (Id,,Exh. B). By letter dated May 19,2010, petitioner appealed the denial, asserting that the documents were not exempt as the alleged victims identities were already known to him, that he never received any documents during the trials, and that when he requested the documents from his attorney, he was told that they had been returned to the District Attorney s Office. (Id,,Exh. C). By letter dated July 2,2010, respondent denied the appeal, finding that petitioner s denial of receipt of the records during his trial was unsubstantiated and not in evidentiary form, that it was unclear if he had tried diligently to obtain the records from his attorney, and that the records were exempt notwithstanding the victims relationship with petitioner. (Id,,Exh. D). By letter dated September 23, 2010, petitioner sent respondent a request for reconsideration of its decision, annexing copies of letters he allegedly sent to his attorney and which, according to him, were ignored by the attorney. (Id,Exh. E). By letter dated January 7, 201 1, respondent denied the request. ( I d , Exh. F). By letter dated February 10,201 1, petitioner wrote to the Committee on Open Government, requesting assistance with his FOIL request. The letter was apparently forwarded to respondent, which responded to petitioner by letter dated March 3,201 1 and advised that the documents which needed to be reviewed had been ordered from the Closed Cases Unit and that upon receipt of the documents, it would determine petitioner s request. According to petitioner, he received no further response from respondent. (Id., Exhs. G, H, I, J). 2 [* 3] 11, CONTENTIONS Petitioner contends that he is entitled to the documents as he never received them during his criminal trials and as the alleged victims are known to him. (Pet.). Respondent asserts that the proceeding is time-barred, and that in any event, petitioner s FOIL request was properly denied. (Verified Answer, dated Dec. 14,201 1). IJLuAum A. Timelinoness Pursuant to CPLR 2 17(1), any proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. The determination becomes final and binding when the petitioner has been aggrieved by it. (Mutter ofYarbough v Franco, 95 NY2d 342 [2000]). As respondent denied petitioner s request for reconsideration of the denial of his appeal on or about January 7,201 1, and this proceeding was not commenced until November 201 1, it is time-barred. (See Matter ofMcCrory v Village of Scursdule, 67 AD3d 684 [2d Dept 20091 [as proceeding related to FOIL request was not commenced within four months of respondent s letter informing petitioner of decision not to disclose records, it was time-barred]; Roman v Lombardi, 298 AD2d 3 13 [ 19t Dept 20021 Lproceeding commenced more than six months after petitioner received notice of denial of FOIL request dismissed as time-barred]). As respondent s March 201 1 letter was not issued in response to a new FOIL request by petitioner, it did not extend petitioner s time to commence the instant proceeding. (See eg McBride v Ct ofNew York, 284 AD2d 197 [ 1st Dept 20011 [petitioner s additional requests for iy 3 [* 4] same materials did not extend time to commence proceeding after respondent s denial of first request]; Washington v Rudin, 256 AD2d 178 [lSt Dept 19981, lv denied 93 NY2d 867 [1999] [denial of first FOIL request triggered four-month statute of limitations, regardless of fact that petitioner subsequently made two additional requests]). B. M& In any event, generally all agency records under FOIL are presumptively available for public access, inspection or use, unless such records fall within one of eight categories of exemptions. (See Public Officers Law 8 87[2]). An agency may not withhold information it chooses, but must state with particularity and list specific justifications for withholding information from the party seeking access to it. (Mutter ofMoore v Santucci, 151 AD2d 677 [2d Dept 19891, citing Mutter of Fink v Lefkowitz, 47 NY 2d 567, 571 [1979]; see also City of Newark v Law Dept. ofCiQ ofNew York, 305 AD2d 28 [lstDept 20031). Pursuant to Civil Rights Law 6 50-b(l), the identity of any victim of a sex offense shall be confidential, and no document in the custody of any public officer or employee which identifies such a victim shall be made available for public inspection, nor shall a public officer or employee disclose such a document. As petitioner was convicted of the crimes with which was he was charged, the records are exempt from disclosure. (Matter of Fuppiano v New York City Police Dept., 95 NY2d 738 [2001]). That petitioner knows the victims names does not negate the exemption. (Id, at 748 [ Nor does the fact that petitioners already know the identity of their victims provide a basis for disclosure. ]). 4 [* 5] IV, CONCJLJSION Accordingly, it is hereby ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed. ENTER: DATED: April 2,2012 BARBARAYAFFE New York, New York J.S.C. FILED NEW YORK COUNTY CLERKS OFFICE 5

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