Matter of Hill v New York City Police Dept.

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Matter of Hill v New York City Police Dept. 2012 NY Slip Op 32471(U) September 20, 2012 Supreme Court, New York County Docket Number: 401379/12 Judge: Cynthia S. Kern 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. SCANNED ON 912612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: Juatlce - - Index Number : 401 379/2012 HILL, WILLIAM vs. N.Y.P.D. SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION SEQ. NO. - ARTICLE 78 ,were read on thlr motlon tolfor The followlng papers, numbered 1 to Notlce of MotlodOrder to Show Caure Anrwerlng Amdavltr -Affldavltr - Exhlblts IWS). - ExhlblG IN O W INot.). Replylng Affldavltm Upon the foregoing papers, it I ordered that thls motlon I s s is decided in accordance with the artnexed decision. FILED SEP 26 20l2 .NEW YORK COUNTY CLERKS- Dated: 1. CHECK ONE: && ..................................................................... . u J.S.C. H. CASE DISPOSED .............. MOTION IS: GRANTED 0DENIED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 0DO NOT POST 0 NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT .. . REFERENCE [* 2] WILLIAM HILL, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules and Claims Under the Executive Law and the Administrative Code of the City of New York, -against- Index No. 40 1379/12 FILED NEW YORK CITY POLICE DEPARTMENT, SEP 2 6 2012 , i I 1 i Respondent. Recitation, as required by CPLR 22 19(a), of the papers considered in tho review of this motion for : Papers Numbered Notice of Motion and Afidavits Annexed.,.................................. Answering Affidavits and Cross Motion...................................... Affirmations in Opposition to Cross Motion ................................ Replying Affidavits...................................................................... Exhibits...................................................................................... 1 2 3 4 5 .~ Petitioner William Hill commenced the instant proceeding pursuant to Article 78 of the Civil Practice Law & Rules ( CPLR ) challenging respondent New York City Police Department s ( NYPD ) denial of petitioner s request for materials under the Freedom of Information Law ( FOIL ). Respondent cross-moves to dismiss the petition. For the reasons set forth below, the petition is denied and respondent s cross-motion to dismiss is granted. The relevant facts are as follows. Petitioner was arrested on May 12, 2006 and charged [* 3] with the May 2,2006 murder of Jacob Gerstle. On January 21,2010, petitioner was convicted of murder in the second degree and robbery in the first degree. On March 1,2010, petitioner w s a sentenced to imprisonment for 25 years to life and is currently incarcerated. Petitioner filed a Notice of Appeal of his criminal conviction on March 1,2010. Most recently, on July 24,201 2, the First Department enlarged petitioner s time to perfect his appeal to the January 2013 Term. In a letter dated November 19,2011, petitioner filed a FOIL request with respondent requesting access to all documents, records and other materials generated in connection to calls made to the Crime Stopper s hotline by NYPD Officer Gregory Thuesday ( Oficer Thuesday ) in connection w t the investigation of the murder of Mr. Gerstle on or about May 2,2006, in the ih 34* Precinct, New York, New York. By letter dated December 7,201 1, respondent s Records Access Officer ( RAO ) acknowledged receipt of petitioner s request and denied access to the requested documents based on Public Officers Law $ 87(2)(f) because disclosure of the requested records would endanger the life or safety of witnesses. The letter further informed petitioner of his right to appea1 the determination in writing within 30 days of the date of the decision and provided the name and address of the Appeals Officer. By letter dated December 19,2011, petitioner appealed the December 7,201 1 denial of access to the requested records. In the letter of appeal, petitioner argued that the request pertained solely to the calls made by Officer Thuesday whose identity as the caller in the subject Crime Stopper s calls is public. Petitioner also noted that Officer Thutsday testified, in open court, about the calls he made to the hotline and specifically that he voluntarily gave up his anonymity as a Crime Stoppers caller. By letter dated March 9,20 12, the RAO denied petitioner s appeal and cited several grounds such as (1) the records, if disclosed, would interfere 2 [* 4] wt judicial proceedings (POL § 87(2)(e)(i)); (2) the records would constitute an unwarranted ih invasion of privacy (POL 9 4 87(2)(b) and 89(2)); (3) disclosure would reveal non-routine criminal investigative techniques or procedures (POL 8 87(2)(e)(iv); and (4) disclosure could endanger the life or safety of any person (POL Q 87(2)(f)). FOIL mandates the disclosure of agency records unless they are subject to a specific exemption. See NY Public Officers Law ( POL ) §87(2) ( Each agency shall... make available for public inspection and copying all records, except... ) (emphasis added). FOE exempts f o rm disclosure documents compiled for law enforcement purposes which, if disclosed, would interfere with a judicial proceeding. See POL 5 87(2)(e)(I); see also Legal Aid Soc: v. New York City Police Dept., 274 A.D.2d 207 (1 Dept 2000); see also Pitfari v. Pirro, 258 A.D.2d 202 (2d Dept 1999). The First Department has recognized that a criminal appeal and any subsequent judicial proceedings within the same prosecution constitute judicial proceedings under FOIL. Matter of Moreno v. New York County Dist. Attorney s Ofl, 38 A.D.3d 358 (1 Dept 2007). Moreover, a respondent does not have to make a particularized showing as to how the requested documents may interfere wt the pending judicial proceeding. A generic determination is ih sufficient to show that disclosure under FOIL would interfere with pending judicial proceedings, thereby exempting disclosure. See Pittari,258 A.D.2d 202. In the instant cmc, respondent properly denied petitioner access to the requested records pursuant to POL 5 87(2)(e)(i). As an initial matter, the records sought by petitioner were compiled for law enforcement purposes as they were generated part of the investigation of the murder of Mi. Gerstle, which petitioner w s ultimately convicted of in 20 10. Further, petitioner a filed a Notice of Appeal of his criminal conviction in March 20 10. During the pendency of his 3 [* 5] appeal, petitioner requested records from respondent under FOIL. As petitioner s appeal is still pending in the First Department, access to the requested records was properly denied. Further, respondent is not required to provide petitioner wt any further explanation under the law. ih Petitioner s assertion that the exemption under POL 5 87(2)(e)(i) does not apply to pending criminal appeals is without merit. The protection of POL 4 87(2)(e)(i) continues to apply until after any ensuing judicial proceedings have run their course. Lesher v. Hynes, 19 N.Y.3d 57 (20 12). The pending appeal of petitioner s criminal conviction certainly constitutes an additional judicial proceeding that has ensued from the police investigation of the murder of which he stands convicted. Finally, the court declines to address respondent s other grounds for denial of access to the requested records as this court has found that petitioner was properly denied access pursuant to POL 5 87(2)(e)(i). Accordingly, the petition is denied and respondent s cross-motion to dismiss is granted. The petition is hereby dismissed in its entirety. This constitutes the decision and order of the court. SEP.26 2072 4

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