Velez v Dennehy

[*1] Velez v Dennehy 2017 NY Slip Op 50414(U) Decided on April 3, 2017 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 3, 2017
Supreme Court, Kings County

Jose Velez, Petitioner,

against

Morgan J. Dennehy, ASSISTANT DISTRICT ATTORNEY OF KINGS COUNTY, FOIL APPEALS OFFICER, Respondent.



6422/16



Pro Se

Jose Velez

Eric Gonzalez

Acting District Attorney

Kings County

Renaissance Plaza

350 Jay Street

Brooklyn, New York 11201-2908
Francois A. Rivera, J.

By order to show cause and petition (hereinafter the commencement papers) filed on December 12, 2016, petitioner Jose Velez (hereinafter Velez or petitioner) has moved pursuant to CPLR Article 78 (hereinafter Article 78) for order to compel respondent, the District Attorney of Kings County (hereinafter DA or respondent), to disclose records pursuant to Public Officers Law § 84 et seq (commonly referred to as the Freedom of Information Law and hereinafter referred to as FOIL). Respondent opposes the petition.

[*2]MOTION PAPERS

The order to show cause filed on December 12, 2016, consists of an affidavit of Velez in support of the application, a verified petition and verification; an order of Supreme Court Justice Honorable Debra Silber dated November 21, 2016, which granted Velez's application for reduced filing fees; the supporting motion papers; a request for judicial intervention filed on November 9, 2016; an application for an index number; and annexed exhibits marked A through D.

Assistant District Attorney Morgan J. Dennehy, the Chief of the FOIL Unit of the Kings County District Attorney's Office (hereinafter Dennehy), and a named respondent, submitted an affirmation and memorandum of law in opposition on behalf of all named respondents.

Velez's submitted a reply which consisted of: his own affidavit, a letter he sent to the Court, a copy of the respondents' opposition papers, and an affidavit of service of the aforementioned papers.

BACKGROUND

The petitioner is currently incarcerated and commenced this Article 78 proceeding by mailing the commencement papers to the Kings County Supreme Court - Criminal Term.[FN1] The Article 78 proceeding is to compel the DA to produce certain documents pertaining to an action entitled People v Velez bearing indictment number 2963/92. The petitioner is requesting documents that are related to his conviction under indictment number 2963/92 for the purpose of challenging the conviction. Specifically, on December 14, 2015, the petitioner requested a bill of particulars, DD5s, UF-61s and UF-250 and Grand Jury minutes.

By letter dated June 29, 2016, Douglas O'Connell, a FOIL Records Access Officer for the Kings County District Attorney's Office denied the petitioner's request for the records for the following reasons. The bill of particulars, DD5s and UF-61s were denied as those items identified the victim of a sex offense and therefore were exempt from disclosure pursuant to Civil Rights Law 50-b (1) and Public Officers Law § 87 (2)(a). The request for Grand Jury minutes was denied as they are secret and therefore, not subject to disclosure. The request of the UF-250s also known as "Stop, Question & Frist Reports" were not found within the Kings County District Attorney's files and were presumed not to exist.

On July 18, 2016, petitioner administratively appealed the denial of his request to Dennehy, the Kings County District Attorney FOIL appeals officer. By letter dated July 25, 2016, Dennehy denied the appeal (hereinafter the FOIL appeal denial).

LAW AND APPLICATION

FOIL allows members of the public to access records of governmental agencies and "imposes a broad duty on government to make its records available to the public" (Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]). To analyze the respondent's failure to provide the petitioner with the complete set of the records, the Court presumes that all government records are open for public inspection and copying, subject to certain exemptions of Public Officers Law § 87 (2) (Verizon New York, Inc. v Mills, 60 AD3d 958, 959 [2nd Dept 2009]). The exemptions must be "narrowly interpreted" to guarantee that the public has maximum access to [*3]government records (Data Tree, LLC v Romaine, 849 NYS2d 489, 494 [2007]). Furthermore, the burden to demonstrate that the requested records indeed qualify for an exemption rests on the agency (Id). To successfully demonstrate such exemption, the agency has to provide "a particularized and specific justification for denying access" (Markowitz v Serio, 862 NYS2d 833,836 [2008]).

Article 78 of the CPLR establishes the procedure for challenging determinations of administrative agencies, public bodies or officers (see CPLR 7802 (a); Luczaj v Bortnik, 91 AD3d 872, 873 [2nd Dept 2012]). Under the common law, procedure for relief was obtained by procedures under writs of certiorari, prohibition or mandamus. Distinctions between these procedures are no longer important, but are still relevant for analyzing Article 78 proceedings.

The Petition

The petitioner in this case is not seeking a judicial review, which would be appropriate under writ of certiorari, or to prohibit a specific action, which would be appropriate under writ of prohibition (see generally, Vincent C. Alexander, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR, CC7801:2 and C7801:4). Rather he seeks mandamus to compel through a "judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed" (see Brownlee v Kohm, 61 AD3d 972, 973 [2nd Dept 2009]). CPLR 7803 (1) mirrors a mandamus to compel and allows the petitioner to review "whether the body or officer failed to perform a duty enjoined upon it by law" (see CPLR 7803 (1); Klein v New York State Office of Temp. & Disability Assistance, 84 AD3d 1378, 1380 [2nd Dept 2011]). The petitioner seeks a court order compelling the respondent to take certain actions that he alleges are required by law. Specifically, he seeks the Court to compel the respondent to completely produce the records requested in his letter dated August 2, 2013. The Second Department noted that the remedy of mandamus to compel "may be granted only if petitioner establishes a clear legal right to the relief requested" (Rozz v Nassau County Dept. of Assessment, 96 AD3d 952 [2nd Dept 2012]). The Court must apply this standard to all the petitioner's requests.

Mandamus to compel is appropriate only where the right to relief is clear and the action sought to be compelled is an act commanded to be performed by law involving no exercise of discretion (see generally, Matter of Korn v Gulotta, 72 NY2d 363 [1988]). Mandamus is addressed to the discretion of the court (County of Albany v Connors, 300 AD2d 902 [3rd Dept 2002]).

The Respondent's treated the petition as one for judicial review of an administrative action and not for mandamus. Pursuant to CPLR 2001 and CPLR 103 the Court may deem the instant petition to be a request for judicial review rather than a special proceeding for mandamus (i.e. Felmont Natural Gas Storage Co., Inc. v Hudacs, 175 AD2d 565 [4th Dept 1991]) citing Cavaioli v. Bd. of Trustees of State Univ. of NY, 116 AD2d 689 (2d Dept 1986). The respondents have also specifically objected to the timeliness of the petition. If the petition is indeed untimely then the Court need not address the merits. Accordingly, the Court will address the timeliness of the petition first.

Timeliness

The statute of limitations to bring a CPLR Article 78 petition is four months [CPLR 217]. The statute starts to run when the determination to be reviewed becomes final and binding on the [*4]petitioner, i.e., when the petitioner receives notice of determination (New York State Ass'n of Counties v. Axelrod, 78 NY2d 158 [1991]). In the verified petition the petitioner stated he received the FOIL appeal denial on July 28, 2016.

It is well established that an un-executed order to show cause is of no legal effect (Fry v Vill. of Tarrytown, 89 NY2d 714 (1997) cf., CPLR 2214 [d]; 2219 [a]), its filing does not satisfy the provision of the commencement-by-filing statute requiring petitioner to file an order to show cause or a notice of petition along with the petition (Id., CPLR 304; see, Alexander, 1996 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C403:1, 1997 Pocket Part, at 190).

In the instant matter, the appeal was denied on July 25, 2016 but the petitioner did not receive notice of it until July 28, 2016. The respondents did not dispute this contention nor provide evidence to the contrary. Thus, the petitioner was required to file the petition on or before November 28, 2016. November 28, 2016 was not a Saturday or Sunday, accordingly it was the actual final date for timely commencement. The instant order to show cause and petition was signed by Justice Marsha L. Steinhardt on December 12, 2016. The date that the order to show cause was signed is the date of the commencement of the action and is clearly not within the four month statute of limitations. The respondent asserts that the petition should therefore, be dismissed as untimely.

However, petitioner claims that he initially sent the papers to the court on September 30, 2016, within the statute of limitations but the papers were returned to him by the Kings County Help Center due to defects in the papers. In support of this contention the petitioner submits a letter from the Kings County Help Center dated October 28, 2016. The letter states that the papers are being returned to him due to defects. Petitioner claims that as his first set of papers was sent and received by the Court within the statute of limitations that his application should be considered timely.

The petitioner's assertions are supported by the Court's file. As noted above, the Court may take judicial notice of its own records and did so in this matter. The Court's file contains, among other things, two envelopes from the petitioner. The first envelope bears a stamp by the Kings County Ex-Parte department which indicates that it was received on October 19, 2016. The second envelope bears a stamp by the Kings County Ex-Parte department which indicates that it was received on November 31, 2016. Also included is the letter dated October 28, 2016, which returned the initial papers to the petitioner.

Generally, the submission of papers to anyone but the clerk for filing is insufficient to commence a proceeding (Fry v Village of Tarrytown, 89 NY2d 714 [1997]). Therefore, in situations where a litigant erroneously files papers or the court itself has contributed to the delay, the matter will be deemed untimely (Id., see also Mendon Ponds Neighborhood Ass'n v Dehm, 98 NY2d 745 [2002]).Furthermore, a private right of action is generally not recognized for the clerk's failure to perform duties such as filing and docketing (see i.e. Flagstar Bank, FSB v State, 114 AD3d 138, 140 [2nd Dept 2013]).

However, in the instant matter it is undisputed that the petitioner is an inmate and commenced the instant action by mailing. There are different considerations when reviewing the timeliness of an inmates commencement of an action by mail. Due to petitioner's lack of control over the filing of his papers and unlike other litigants can not travel to the courthouse to [*5]personally see that the order to show cause was timely signed and filed, his control over the processing of his papers ceased when they were mailed (see Mandala v Jablonsky, 242 AD2d 271 [2nd Dept 1997]). Accordingly, the petitioner should have the benefit of the date that the papers were stamped received by the Kings County Ex Parte Department on October 19, 2016 (see Id. citing Houston v Lack, 487 US 266).

In the instant matter petitioner alleges that his initial papers that were sent to the court were within the statute of limitations and the delay was not his fault. Accordingly, he argues that the instant proceeding should be considered timely. Accordingly, pursuant to the Second Department precedence set forth in Mandala v Jablonsky, the petition is timely (242 AD2d 271 [2nd Dept 1997]).

In proceedings to review the determination of an administrative body the Court's review is limited to CPLR 7803 (3) whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed. In order to determine whether the denial was arbitrary and capricious the requests and denial must be analyzed.

Bill of Particulars, DD5s and UF6s

Public Officers Law § 87 (2)(a) limits disclosure of documents specifically exempted by state or federal statute. Specifically, [t]he identity of any victim of a sex offense . . . shall be confidential. No report, paper, picture, photograph, court file or other documents. . .which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section (Id.). Civil Rights Law § 50-b (1) prohibits disclosure by a government employee of any portion of a police report, court file or other document which tends to identify the victim of a sex crime (Fappiano v. NY City Police Dep't, 95 NY2d 738, 744 (2001)

Public Officers Law § 87 (1)(a) also provides that the statute shall not be construed to prohibit disclosure to any person charged with commission of an offense . . . against the same victim. However, it is well established that once convicted, the petitioner is outside the scope of the exception (Fappiano v. NY City Police Dep't, 95 NY2d 738 [2001]). The reason for the distinction is that "a person charged with a crime is distinctly different from one who has already been convicted. A person charged with a crime, unlike a convicted person, enjoys a presumption of innocence, the right to counsel, the right to a jury trial and, significantly in the present context, the right to confront one's accuser" (Id.). A person charged with a crime thus cannot be equated with a convicted person for purposes of Civil Rights Law § 50-b (Id.).

The request for the bill of particulars, DD5s and UF-61s was denied pursuant to Civil Rights Law 50-b (1). In the instant matter the petitioner admits that the documents contain the identification of the victims of sex offenses. Accordingly, the records are generally not permitted to be disclosed. Further there is no dispute that the petitioner has been convicted of the sex offenses. Accordingly, he is not entitled to the exemption.

Grand Jury Minutes

Petitioner also sought disclosure of the Grand Jury minutes. It is long established that secrecy has been an integral feature of Grand Jury proceedings since well before the founding of [*6]our Nation (Friedman v Rice, 134 AD3d 826, 829 [2nd Dept 2015) citing Matter of District Attorney of Suffolk County, 58 NY2d 436, 443 [1983]). While secrecy of grand jury minutes is not absolute, presumption of confidentiality attaches to the record of Grand Jury proceedings Friedman v Rice, 134 AD3d 826, 829 [2nd Dept 2015] [internal citations omitted]). As a threshold matter, a party seeking disclosure of grand jury materials under CPL 190.25 (4)(a) must establish a compelling and particularized need for them (Id.) Only then must the court balance various factors to assess, in its discretion, whether disclosure is appropriate under the circumstances presented (Id.).

In the instant action the denial of petitioner's FOIL request was not arbitrary and capricious or an abuse of discretion. Rather, the denial was specific, detailed and a correct application of established law. Accordingly, as there was no arbitrary and capricious determination nor abuse of discretion by the respondent, the order to show cause is denied and the petition is dismissed.

CONCLUSION

Jose Velez's order to show cause and petition pursuant to CPLR Article 78 for order for judicial review of the Kings County District Attorney's denial of his FOIL request is denied because the determination was neither arbitrary, capricious, nor an abuse of discretion.

The petition is dismissed.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C. Footnotes

Footnote 1:The Court may take judicial notice of its own records see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127[A] [NY Sup 2007] citing Matter of Khatibi v. Weill, 8 AD3d 485 [2nd Dept 2004].