State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 28, 2016 520316 

________________________________

In the Matter of DESMOND 

DeFREITAS,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE POLICE CRIME 

LAB,

Respondent.

________________________________

Calendar Date: June 2, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

__________

Desmond DeFreitas, Dannemora, appellant pro se.

__________

Aarons, J.

Appeal from an order and judgment of the Supreme Court

(McGrath, J.), entered October 21, 2014 in Albany County, which,

in a proceeding pursuant to CPLR article 78, granted respondent's

motion to dismiss the petition. 

Pursuant to the Freedom of Information Law (see Public

Officers Law art 6 [hereinafter FOIL]), petitioner, a prison

inmate, submitted a written request to respondent on April 4,

2014 for documents associated with DNA testing relating to his

convictions for which he is imprisoned (see People v DeFreitas,

116 AD3d 1078, 1078-1079 [2014], lv denied 24 NY3d 960 [2014]). 

After receiving no response from the Record Access Officer,

petitioner filed an administrative appeal claiming that his

request had been constructively denied. After petitioner's

administrative appeal went unanswered, he commenced this CPLR

article 78 proceeding seeking to compel a response from
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respondent. Following the commencement of this proceeding,

respondent advised petitioner that 1,356 pages of records

responsive to his request would be sent to him upon payment of

the statutory copying fee (see Public Officers Law § 87 [1] [b]

[iii]). Petitioner was further advised that a diligent search

failed to find records related to his request for documentation

concerning "Corrective Action for Discrepancies and Errors" and

"Error Rates" and that the remaining records sought were exempt

from disclosure because such records were compiled for law

enforcement purposes and disclosure thereof would interfere with

then-ongoing judicial proceedings (see Public Officers Law § 87

[2] [e] [i]). Respondent moved to dismiss the CPLR article 78

petition on the basis that it was moot in light of its response

to petitioner's request. Supreme Court granted respondent's

motion, prompting this appeal by petitioner. We affirm.

Initially, respondent concedes, and we agree, that the

exception in Public Officers Law § 87 (2) (e) (i) no longer

applies because petitioner's criminal proceedings and judicial

review have concluded (see Matter of Lesher v Hynes, 19 NY3d 57,

68 [2012]; Matter of Pittari v Pirro, 258 AD2d 202, 206-207

[1999], lv denied 94 NY2d 755 [1999]). To that end, respondent

has advised petitioner that it would review and release any

remaining records covered by his request subject to redaction

under Civil Rights Law § 50-b and payment of the statutory

copying fee (see Public Officers Law § 87 [1] [b] [iii]). 

Accordingly, we conclude that petitioner's challenge to

respondent's withholding of documents compiled for law

enforcement purposes that were previously exempted from

disclosure is moot (see Matter of Rattley v New York City Police

Dept., 96 NY2d 873, 875 [2001]; Matter of Saxton v New York State

Dept. of Taxation & Fin., 107 AD3d 1104, 1105 [2013]). 

Turning to the balance of petitioner's documentary

requests, we disagree with petitioner that Supreme Court erred in

dismissing his petition as moot. Where a petitioner receives an

adequate response to a FOIL request during the pendency of his or

her CPLR article 78 proceeding, the proceeding should be

dismissed as moot because a determination will not affect the

rights of the parties (see Matter of Rattley v New York City

Police Dept., 96 NY2d at 875; Matter of Scott v Shepard, 231 AD2d
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759, 760 [1996], lv denied 89 NY2d 858 [1996]; Matter of Davidson

v Police Dept. of City of N.Y., 197 AD2d 466, 466 [1993]; see

generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-715

[1980]). As relevant here, "[w]hen an agency is unable to locate

documents properly requested under FOIL, Public Officers Law § 89

(3) requires the agency to certify that it does not have

possession of a requested record or that such record cannot be

found after diligent search" (Matter of De Fabritis v McMahon,

301 AD2d 892, 893 [2003] [internal quotation marks, brackets and

citation omitted]; see Matter of Rattley v New York City Police

Dept., 96 NY2d at 875). 

Here, respondent advised petitioner in writing that records

matching portions of his request had been found and would be sent

to him after he paid the statutory copying fee and that a

diligent search of respondent's files failed to uncover records

related to documentation of corrective action for discrepancies

and errors and error rates. Respondent was therefore not

required to disclose such records after it adequately certified

that such records could not be found after a diligent search (see

Public Officers Law § 89 [3]; Matter of Rattley v New York City

Police Dept., 96 NY2d at 875; Matter of Taylor v New York City

Police Dept. FOIL Unit, 25 AD3d 347, 347 [2006], lv denied 7 NY3d

714 [2006]; Matter of Partee v Bennett, 253 AD2d 950, 950 [1998];

compare Matter of De Fabritis v McMahon, 301 AD2d at 894), and

petitioner has failed to support his speculation that such

documentation exists (see Matter of De Fabritis v McMahon, 301

AD2d at 894; Matter of Di Rose v City of Binghamton Police Dept.,

225 AD2d 959, 960 [1996]). As such, the written response to

petitioner's FOIL request rectified respondent's prior failure to

respond, and Supreme Court properly found this proceeding to be

moot (see Matter of Rattley v New York City Police Dept., 96 NY2d

at 875; Matter of Davidson v Police Dept. of City of New York,

197 AD2d at 467). Petitioner's remaining contentions have been

considered and found to be without merit.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
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ORDERED that the order and judgment is affirmed, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court