Matter of Police Commr. of City of N.Y. v Victor W.

Matter of Police Commr. of City of N.Y. v Victor W. 2007 NY Slip Op 01569 [37 AD3d 722] February 20, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

In the Matter of Police Commissioner of City of New York, Appellant,
v
Victor W., Respondent.

—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner, Antony M. Anisman, and Ronald E. Sternberg of counsel), for appellant.

Worth, Longworth & London, LLP, New York, N.Y. (Howard B. Sterinbach of counsel), for respondent.

Appeal by the petitioner from an order of the Supreme Court, Kings County (Feldman, J.), entered November 3, 2005, which denied his motion pursuant to CPL 160.50 (1) (d) (ii) and 190.25 (4) (a) to unseal the trial and grand jury minutes in the case entitled People v Victor W., Kings County indictment No. 4174/02.

Ordered that the order is affirmed, with costs.

In the Supreme Court, the petitioner, the Police Commissioner of the City of New York (hereinafter the Commissioner), sought an unsealing order with respect to the subject trial minutes solely under CPL 160.50 (1) (d) (ii), a ground he abandons on appeal. Since the Commissioner did not fairly apprise the Supreme Court of the ground for unsealing that he advances on appeal, namely a purported "inherent authority" of the court to unseal the minutes, his argument on that ground is not properly before this Court (see Gammal v La Casita Milta, 5 AD3d 630 [2004]). In any event, it is without merit (see Matter of Katherine B. v Cataldo, 5 NY3d 196, 202-203 [2005]; Matter of Joseph M. [New York City Bd. of Educ.], 82 NY2d 128, 133-134 [1993]).

The Commissioner failed to demonstrate under CPL 190.25 (4) (a) a "compelling and particularized need" for disclosure of the grand jury minutes as required by CPL 190.25 (4) (a) (Matter of District Attorney of Suffolk County, 58 NY2d 436, 444 [1983]; see Matter of Lustberg v Curry, 235 AD2d 615, 616 [1997]; Matter of Hynes [Patrolmen's Benevolent Assn.], 179 AD2d 760, 760-761 [1992]). Therefore, he was not entitled to have the Supreme Court engage in the discretionary balancing of the public interest in secrecy of the grand jury proceedings against the public interest in disclosure (see Matter of District Attorney of Suffolk County, supra; Matter of Hynes [Patrolmen's Benevolent Assn.], supra at 761). Consequently, his argument that the Supreme Court abused its discretion by failing to order the disclosure of the grand jury minutes is meritless (see Matter of District Attorney of Suffolk County, supra). Schmidt, J.P., Skelos, Fisher and Dickerson, JJ., concur.