Matter of Phillip v New York City Police Dept.
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Matter of Phillip v New York City Police Dept. 2014 NY Slip Op 30408(U) February 18, 2014 Supreme Court, New York County Docket Number: 400683/13 Judge: Peter H. Moulton Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 2/20/2014 [* 2] SUPREME COURT OF THE :3TATE OF NEV/ YORK COUNTY OF NE\A/ YORK: I/\S PART 57 ----------------------------------~-----~-------------------------··--X Jn the Matter of the Petition of KEVIN PHILLIP, Petitioner. indexl~o. -against- 400683/13 NEW YORK CITY POLICE DEPARTMENT. Respondent Pursuant to Article 78 of th(' CPLR . a ------.. ·--------· ----------·--··----· --.. --.. --.. ----·----·--.... ----· -------- ~,~- -x PETER H., MOUL TON, J.: Petitioner brings this Article 78 petition to vacate Respondent Nev.: y· ork Ciiy Department'~: ("NYPD'') dccisio11 tO deny petiti0r1cr's F1·cedorn Infcmmi~ion ('"FCIL '') :.·eque::;~ T.i.de:-- POL § 84 for records related to his criminal prosecution for burglary. Petitioner claims that respondent's decision was arbitrary and capricious. Additionally, petitioner asks this court to compel compliance with a judicial subpoena ordered by the court that presided over his criminal prosecution seeking the same records contained in petitioner's FOIL request. Respondent cross-moves, pursuant to CPLR ~ 7804(£) for an order dismissing the petition proceeding is an irnproper vehicl.e to cori.1pei cornplimv.::e with court. suimoena issned ,. ano1her [* 3] BACKGROUND Pc::titioncr was arrested on J;Jly 2L 2010, and subsc4ucn1ly charged with bargl<~ry based 01: a fingerprint hit in connection with an incident that occl1rrcd on March 20, 201 G. During pendency of his criminal case, by a letter dated August 9, 201 L petitioner made a request pmsuant to FOIL, for copies of records related to charges against him. Specifically. petitioner requested records related to lhe investigation and analysis oflatcnt fingerprints obtained frorn the scene of the s Records Access Off(cer burglary. ilCCGS3 tG the records, stating that disclosure of the records to petitioner would interfere with petitioners pending criminal prosecution. Petitioner appealed that denial. On November l 0., 2011 the RAO sent a letter to petitioner stating that petitioner's appeal was being denied on several grounds. Notably, the RAO reiterated that the requested records were exempt from disclosure on the basis of POL§ 87(2)(e)(i), ir~ that such records, if disclosed, would interfere with pending judicial proceedings. Petitioner was further mforrned m thc RACY s letter that petitioner could seek judicial review of the denial by commencing an Article 78 proceeding within four months of the date of the decision. Following the denial ofhis FOIL request, petitioner obtained a judicial subpoena duces tecum dated March 19, 2012 from the Supreme Court, Queens County, seeking the same fingerprint records relevant to the charges 1hen pending against him. The NYPD did not comply \Yith not compliance, Petitioner was subsequently convicted of burglary and sentenced on October sarn.e that Separntely, petitioner subpoena. fi of to l1a\,.c the Sttpren1e ,CourL Queens '.:rirninal 2012. The [* 4] stemming from his burglary conviction as well as set aside the sentence imposed on him pursuant to CPL § 44020, A month prior Lo being sentenced, on Sep~embcr 3, 2012, pet:tioi1cr rnade a similar FOIL request to the one that he had subrnittcd in August 2011. In that request petitioner sought the samF; latcn1 fingerprini records 1.ha1 Jw had sought in his prior FOIL request. Pcti1io~·1er \Vas then inf<xrncd that additional time was needed to process his ncvv FOIL request. Petitioner did to receive a response io I.hut request and initiated t},;s proceeding on nol. a11 Ore'. er to Shovv Cause aad V crified Petition. Petitioner <dso filed yet another FOIL March 13 prior to a determination on his Se1Jtcmber 3, instant proceeding, the ~·-:;quest on 12 rec1uest. After the commenceri1en1 denied petitioner's September 3, 20 J 2 FOIL requesl on June 17, 2013 on the ground that it was substantially similar in substance to his August 9, 2011 FOIL request While the instant proceeding was pending, on July 6, 2013, petitioner appealed the RAJY s denial of petitioner's 2012 FOIL request. On July 31, 2013 petitioner was informed that his administrative appeal was bemg denied on several grounds inciuding, once again, the stated ground that the requested records where not subject to disclosure during the pendency of judicial proceedings. The petition herein alleges that respondent failed to comply with the subpoena issued by the Suprern.e Court, Queens County, or with petitioner's numerous FOIL requests for latent fingerprint records reiated ro his burglary chatgcs and conviction. As previously mentioned, in conjunction wi.th the instant proceeding, is simultaneousl.y Appellate Division, Second Department as s appeal. and relief as through arc Article 440 Supreme [* 5] DISCUSSION § 87(2)( c )(i) states thaL. "Each agency shali in accordance ·v\i1h Public Officers rules, make available for public inspection and copyin1:: all records, excep: thar 3\.rdt 2~5ency deny access to records or portions thereof thaL.are compiled for law enforcement purposes and which, ifdisciosed, 'Nould,,jnre,.fcre ,vi th lmvcnforccnrn1 investigations orjudicial proceedings ... " ln Matter ofLegol Aid5iocy. 11. York City Police Dept., 274 AD2d 207 ( l st Dept. 2000). \;yere rcquesLing [nfo1rr1atio:1 ciefondarns m pending crin1inai prnseculions demai of their I· " reancsts bv foe T11e Appellate Division cleniccl lhe!r so. the Appellate Division agreed vvith court's decision. In petitions, reversing a LG NYPD's assenion that disclosure of records in pending criminal prosecutions vvould interfere with those proceedings. The court held ihat, '·[w]e arc persuaded that the assertion that disclosure of records to a defendant in a pending criminal prosecution \Vould interfere with that proceeding is a sufflcientJy particularizedjust1iicat10n for the denial of access to those records under Public Officers Lnv § 87(2)(e)(i).'' ln reaching that conclusion the court noted that ''FOIL disclosure during the course of the prosecution v.;ould not only ·interfere with the orderly process of disclosure' set forth in CPL article 240 ... it would also create a substantial likelihood o~'delay in the adjudic2.tion ofth2~ proceeding ... thereby effecting a chili on that prosecution ... ,. Id at 21 Li. That ruling ha~; beca York County Dis!. Afforney 's of appeal 19 8 (l st Dept. 2007) Iv. denied. 9 m coi.:rt 80 l; _Afat !er a [* 6] under FOIL so as to preclude disclosure of records while an appeal or s:ubsequent proceedings are 38 AD3d at 258. pending. Here, petitioner initially sought records pertaining to the inves~igatic>L thaL Iec: tc. arrest while the criminal prosecution was stiII pending. Indeed, petitioner made 2011 and 2012 FOIL requests for 1·ecords directly associated with his burglary prosecution prior to trial and r;rior to being sentenced. resoective1',1. such. petitioner's mitial request:> sought records ii1at \Acre exrircssly exempt fi:om cnfurcen1ent interpreted by the as as Department. Consequently, petitioner was not entitled lo those rcc02·ds under as netit1oner s case was sdll in the investigaiorv. u and pre-scmcncc slages requests were made. MorcoveL in light /vforeno, petitioner's subsequent March 2013 FOIL request following his burglary conviction and subsequent sentence were made while judicia1 proceedings \Vere ongoing. At the time of the filing of petitioner's March 2013 request, petitioner had a pending appeal of his conviction for burglary. Thal appeal is still before the Appeiiate Division, :;ccond Department. Additionaily., petitioner still has motions pending for post-conviction relief under CPL Article 440 in Supreme Court, Queens County. Because those applications fall within the ambit of ongoing judicial proceedings, the relief petitioner seeks in petit}oner's March 2013 FOIL request is "l's~ exe~111'"t 11 J1 _._ U ,..,, _tl 1 ~·c"11 CL d1."" 10''"J'C . ..._)U l. ..)\_.j_ ev<':n if that were rebuttal, ~ under the pro1cctions 87(2)(e)(i) absent particularized reasons whv the n::quested coatends, lends to canno1 noticr:. that respondent 1 S itsf'.lf [* 7] <vvell settled thal when considering the issue of \Vhether an action is arbitrary and capricious, courts cannot interfere a body's course of acLion unless there is no ra1ional basis discreiion or the action mken School Dis/. tnai body. County. 34 NY2d I of Towns of Scarsdale & J\1omaroneck. 230-231 (197'4). As such, an actim: is arb;trnry reason and is ... JV!ailer c~/Fel! v. Board ofE,u'l1C. 2111d c~apricio 1)s v.-hen it "is 'vi1hout sound basis in \Vithout regard 1o the fa~ts'' fd. at l. (!ere, petitioner s claims that respondent's actions were arbitrary anci capncious ::ue meiiL Indeed, µcUtkJner's ;rn1in argm~1ent tG suppor! his cl2iirli is that n::spondent co:dd 11ci his n:'.rpwsts sincP n:s1Jonden1 dio not f?; vc snccified reasons wi1cn issuing denials. Pe:.itioner"s assertions are based ·wholly upon speculation and conjecture. First Department has specifica! \Vlth sta1ed that the s mere assertion that disclosure judicial proceedings is a sufficiently particularized justification to warrant denial records. Jlfatter Legal Aid Socy, 274 AD2d at 213. 'CL the i interfere access Lo Furthermore. if granted, petitioner's request for particularized reasons would necessitate that respondent reveal pm·t of the essence of the records that !·espondent is seeking 10 Yvithhold when issuing a deniaL Doing so, in spirit and in practice. would undermine the core precepts of the judicial proceedings exemption specified in POL § 87(2)(c)(i). , the court finds that respondent's der:cia] here was not arbitrary and capricious, and that the lack of speciCicity ill respondent's denials asserting a proceedings argues that octiiloner"s August JI. adrninistra not pi'ccl udc res pcm dent':; i.o those requests l2 1 '' --' L request.; [* 8] Section 89( 4)(a) of the POL provides that a "person denied access to a record may.,.appeal .such de11ial to cf the agency o;· tc c: designated appeals officer. One must be de!!icd 2ccess to and sub~'equcntly appeal that dcr;ial to seeking judicial iEtc~·\lenti0n 78 of the CPLR. ,5ee N.Y Public Off1cers La\v § 89(4)(b): see also /vla1ter a/Harvey v ltynes, 174 Misc 2d 174 (Sup. CL Kings County 1997). In the context of FOIL, an agency must complete processing of a FC1IL request and render a final adverse determination bei(Jre courts \\rill recognize Uve Dept., AD2d 9 (lst 1--icre~ initial determinations ini tiaied the ins Li.lilL before 1.-cspect to petitioner's August 11, 20 l 2 and March 2, 2013 FOIL requests. Since the RAO had not yet issued initial determinations \Vith respect to pet\tim1er"s FOIL request prior to the filing of the petition in this matter, there necessarily could not have been an appeal or final agency denial before this proceeding was initiated. Thus, petitioner had not satisfied the conditions precedent to initiating an Article 78 µroceecli!ig as set fo!th in POL § 89('4) at the time that he filed his petition. Consequently. since petitioner failed lo exhaust his administrative remedies with respect to his August 11, 2012 and March 2, 2013 FOIL requests, the court lacks subject matter j urisdicticm over those requests. H is also ·worth pursuant to that petitioner concedes that are discoverable under petitioner argues that he should § able to seek the same san1e records that petitioner is Notwithstanding that are discoverable cloing so ( !. 996). to pctiti1Jner · c: 1(1 [* 9] the court stated that while records could conceivably be disclosed under both FOIL and CPL article 240,. · w1 enumerated FOIL excmp!:ion precluded such disclosure then an ind[vidual's rcqL:cs~ material would be denied. In this matter, ai1 exemption to FOIL disclosttre is &lJijlicable. does not deny that. l\!forcovcr, even if an exemption did not apply, adopting petitioner's dmd exercise o!' FOIL and CPL 0 ?,4020 while proceedings a(e pending for practical purposes \Nould circumvent criminal courts from adhering to discovery provisions that are aiready in place by allowing ind!viduals w the same records si;nulmrieously 1.mder two instrnd one l)etitioncr pro,;idcs no adequate legal er practical support fer Vihy that should be the '~ase this proceeding. Petitioner's remaining argument is that an Article 78 proceeding can 1Jsed as a vehicle to compel respondent's !Jrevious non-compliance \vith a court ordered subpoena. respondent correctly point's out Article 78 relief is 1101 available ~o compel compliance ,,vi1h cl judicial subpoena. See Afa/fer o/Brmrn v. Eimicke, 144 AD2d 460 (2d Dept. 1988); see also An1z111es l'. Div. o/Hous. and Community Renewal o/Stale of'_\Tew lork, 2011 NY Slip Op. 33074 (U) (Sup. CL. . N. County 20 J l ). The exclusive remedy 1..o compel such relief is provided by CPLR § 2308(a). Id. Here. petitioner was able to get u so-ordered subpoena to compel respondent to disclose fingerprint records 1o him. The subpoena 'vVac; not cornplied wllh. refUsed to s petitioner instead of challenging the court's dctern1ination Esing 08(a). This court takes no position nol lie o:n petitio11cr should l1ot be IJcrn1ittcd tc nrakc the court subscquenUy application [* 10] remedy ava~lablc to him. ORDERED and ADJUDGED that respondent's cross-motion to clismis:; the petition is granted, the petition is denied, and the proceeding is disn~issed. J.S
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