Colon v State of New York

[*1] Colon v State of New York 2006 NY Slip Op 52557(U) [14 Misc 3d 1225(A)] Decided on November 14, 2006 Supreme Court, New York County Zweibel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2006
Supreme Court, New York County

Frankie Colon

against

State of New York, Defendant.



3537-04

Ronald A. Zweibel, J.

Defendant Frankie Colon moves for an order, pursuant to CPL § 190.25(4) and Public Officers Law § 87(2)(c), also known as the Freedom of Information Law ("FOIL"), directing respondents to produce for his inspection Grand Jury transcripts and other related witnesses' statements. According to defendant, he needs these documents to assist him in the preparation of a supplemental appeal. Defendant argues that he is entitled to these documents because the jury trial and Grand Jury presentation were not the result of secret proceedings and therefore, are not exempt from production. Defendant also claims that the requested documents were not produced to his defense counsel. The instant motion is denied in its entirety.

Defendant moves for these documents under FOIL. Defendant's status as a criminal defendant does not enhance his rights to documents that the public cannot obtain (see Matter of John P. v. Whalen, 54 NY2d 89, 99). A party requesting documents under the FOIL must adhere the procedure articulated in section 89 of the Public Officers Law. The defendant has failed to follow the mandated procedure set out in the Public Officers Law. In failing to do so, the defendant has not exhausted his administrative remedies and his request must be denied (see Matter of Graziano v. Coughlin, 221 AD2d 684, 687; Matter of Ruebens v. Murray, 194 AD2d 492; Matter of Newton v. Police Department, 183 AD2d 621, 624).

Moreover, Grand Jury records are court records, not agency records (see Public Officers Law § 86[1][3]). They are confidential (see (CPL § 190.25[4][a]), and accordingly, are exempt from the ambit of FOIL (see Public Officers Law § 87[2][a]; Matter of Hall v. Bongiorno, 305 AD2d 508, 509) and discovery.

The Court further notes that "a party seeking disclosure of grand jury minutes must establish a compelling and particularized need for them. Only then must the court balance various factors to assess, in its discretion, whether disclosure is appropriate under the circumstances presented" (People v. Robinson, 98 NY2d 755, 756 [citations omitted]). Defendant has failed to meet his threshold burden of demonstrating a compelling and particularized need for the minutes. Therefore, defendant is not otherwise entitled to the documents he requests pursuant to CPL 190.25(4).In addition, the Court notes that not only is it unclear what other documents defendant is requesting, but contrary to his current complaints, all documents, including statements of witnesses to whom defendant is entitled to were turned [*2]over to his trial attorney pursuant to discovery requests and/or as Brady or Rosario material at the time of trial. Accordingly, these documents cannot be obtained via FOIL or the discovery statutes for purposes of his appeal (see Matter of Walsh v. Wasser, 225 AD2d 911, 912; Moore v. Santucci, 151 AD2d 677, 678).

To the extent that the requested documents were previously turned over to trial counsel, defendant should contact his trial counsel for them.

Accordingly, defendant's request for production and inspection of his Grand Jury transcripts and other related witnesses' statements is denied in its entirety.

This constitutes the decision and Order of this Court.

ENTER:

Hon. Ronald A. Zweibel, J.S.C.

Dated: November 14, 2006