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

Matter of Matter of Whitley v New York County Dist. Attorney's Off. 2012 NY Slip Op 08435 Decided on December 6, 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 December 6, 2012
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.
8756 104522/11

[*1]In re Daryl Whitley, Petitioner-Appellant,

v

New York County District Attorney's Office, et al., Respondents-Respondents.




Simpson Thacher & Bartlett LLP, New York (Juan A. Arteaga
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Richard
Nahas of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Cynthia S. Kern, J.), entered September 15, 2011, which denied the petition seeking, among other things, to annul respondents' determination denying petitioner's Freedom of Information Law (FOIL) request for certain documents concerning the investigation and prosecution of a crime for which petitioner was convicted, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' determination was not affected by an error of law (see CPLR 7803[3]; Mulgrew v Board of Educ. of the City School Dist. of the City of N.Y., 87 AD3d 506, 507 [1st Dept 2011], lv denied 18 NY3d 806 [2012]). Respondents correctly determined that disclosure of the requested documents would have interfered with petitioner's then-pending criminal appeal and any subsequent proceedings in the underlying criminal case (see Public Officers Law § 87[2][e][i]; Matter of Moreno v New York County Dist. Attorney's Off., 38 AD3d 358, 358 [1st Dept 2007], lv denied 9 NY3d 801 [2007]). Respondents generically identified the kinds of documents sought and the risks of disclosing the documents (see Matter of Lesher v Hynes, 19 NY3d 57, 67 [2012]; Matter of Legal Aid Socy. v New York City Police Dept., 274 AD2d 207, 214 [1st Dept 2000], lv dismissed in part, denied in part 95 NY2d 956 [2000]). We reject petitioner's contention that respondents were required to set forth particularized findings about whether the FOIL exemption at issue applied to each responsive document (see Lesher, 19 NY3d [*2]at 67; Legal Aid Socy., 274 AD2d at 213-214).

We have considered petitioner's remaining contentions and find them unavailing.

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

ENTERED: DECEMBER 6, 2012

CLERK