Center for Appellate Litig. v New York County Dist. Attorney's Off. 2024 NY Slip Op 31910(U) June 3, 2024 Supreme Court, New York County Docket Number: Index No. 451799/2023 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.451799/2023 CENTER FOR APPELLATE LITIGATION ET AL vs. NEW YORK COUNTY DISTRICT

ATTORNEY'S OFFICE Motion No. 001 Page 1 of 6 The following e

- filed documents, l isted by NYSCEF document number (Motion 001) 1

- 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 33, 34, 35 were read on this motion to/for ARTICLE 78 FOIL

.

The petition to compel disclosure of records pursuant to the Freedom of Information Law (“FOIL”) is denied.

Background Petitioners seek materials related to a 2013 prosecution that resulted in a murder

conviction of non

- party Travis Woods following thre e hung juries. They complain that respondent denied access to all of the materials in the file, including witness statements, police reports and photographs. Petitioners insist that respondent’s cited statutory exemptions under FOIL do not apply. They also question respondent’s argument that it need not produce records that were previously provided to the criminal defendant’s attorney (the criminal defendant is not a party to this case).



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ARLENE P. BLUTH PART 14 Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 451799/2023

MOTION DATE 05/28/2024

MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION CENTER FOR APPELLATE LITIGATION, MATTHEW BOVA

Petitioner s ,

- v - NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, Respondent.

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ATTORNEY'S OFFICE Motion No. 001 Page 2 of 6 After petitioners submitted their FOIL request in August 2022, res pondent issued an initial determination in which it noted that the criminal defendant’s case was still pending (NYSCEF Doc. No. 5). It also insisted that certain requests were protected as attorney work product (such as the communications of its attorneys) and that the statements of witnesses were protected by the publ ic safety exemption. Respondent maintained that disclosing statements would also constitute an unwarranted invasion of personal privacy of these witnesses and potentially endanger them. It add ed that “ This exemption is especially applicable in a case like this, where defendant, as part of a narcotics crew, shot and killed a person who interfered with narcotics trafficking” ( id . at 3). After appeal, respondent adhered to its initial determinatio n and cited these same exemptions (NYSCEF Doc. No. 7).

Respondent observes that in the instant petition , petitioners only focus on a subset of respondent’s asserted exemptions from disclosure. It observes that petitioners did not contest exemptions for records protected under attorney work

- product, that “rap

- sheet” records of witnesses are exempt from disclosure and that respondent does not possess communications from the parole board. Respondents insist t hat petitioner’s appeal was still pending and so disclosure of records would interfere with that proceeding, particularly items such as prosecutor’s notes

.

In reply, petitioners contend that the Appellate Division, First Department denied Mr. Woods’ appe al and that he has subsequently filed an application for leave to appeal to the Court of Appeals. They insist that the fact that the appeal was pending when the FOIL request was initially made is not a sufficient argument either. Petitioners claim that re spondent must identify which documents it believes are subject to this exemption. 

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ATTORNEY'S OFFICE Motion No. 001 Page 3 of 6 Petitioners also observe that because of the age of this criminal case (Mr. Woods was convicted in 2013), not all records were disclosed to his attorneys as the criminal d iscovery laws

were different . They also question respondent’s assertion that there is a public safety or privacy reason to exempt certain documents from disclosure. Petitioners contend that respondent has not established why such exemption applies as the allegations are almost two decades old. They observe that the Constitution requires th at exculpatory evidence be turn over and so any exculpatory evidence included in these documents must be turned over.

Discussion

“T o promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public. The statute is based on the policy that the public is vested with an inherent right to know and that official secrecy is

anathematic to o ur form of government

. Consistent with the legislative declaration in Public Officers Law § 84, FOIL is liberally construed and its statutory exemptions narrowly interpreted

. All records are presumptively available for public inspection and copying, unless the agency satisfies its burden of demonstrating that the material requested falls squarely within the ambit of

one of the statutory exemptions

. While FOIL exemptions are to be narrowly read, they must of course be given their natural and obvious meaning where such interpretation is consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” ( Abdur

Rashid v New York City Police Dept. , 31 NY3d 217, 224

- 25 , 76 NYS3d 460 [2018] [internal quotations and citation omi tted]). 

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ATTORNEY'S OFFICE Motion No. 001 Page 4 of 6 The Court denies the petition for many reasons. As an initial matter, this Court denies the petition on the ground that the criminal defendant’s appeal is not exhausted. He is currently seeking leave to appeal the First Department’s decision to the Court of Appeals. There are numerous cases that have held that “disclosure of any other trial evidence that would constitute a

‘ record ’ would interfere with respondent's handling of the appeal of the criminal conviction” ( Sideri v Off. of Dist. Atty., New York County , 243 AD2d 423, 423 [1st Dept 1997] lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130 [1998]) ; see also Moreno v New York County Dist. Attorney's Off. , 38 AD3d 358, 358, 832 NYS2d 183 [1st Dept 2007]).

Petitioner correctly note s that under Lesher v Hynes (19 NY3d 57, 945 NYS2d 214 [2012]), the agency must still meet its burden to articulate a basis for this exemption (the interference with enforcement proceedings). Respondent has done that here by noting that there is a pending appeal and that the request ed records, such as witness statements, are directly at issue in that appeal. In this Court’s view, Lesher does not stand for the proposition that respondent must explain how every single document applies to this exemption. As the Court of Appeals stated in Lesher , “ The agency must identify the generic kinds of documents for which the exemption is claimed, an d the generic risks posed by disclosure of these categories of

documents ” ( id .). Respondent met its burden here.

Next, as respondent argues, petitioners (as Mr. Woods’ new appellate counsel) cannot seek records that were already provided to the criminal defendant ’s attorney in his criminal trial “absent a showing that such documents are no longer available” ( Franklin v Keller , 254 AD2d 83, 254 AD2d 83 [1st Dept 1998] [denying a FOIL request for witness statements where 

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ATTORNEY'S OFFICE Motion No. 001 Page 5 of 6 petitioner failed to show that he n o longer had materials previously provided to his attorney]). The fact is that the vast majority of these documents were presumably provided to the criminal defendant at his trial. And petitioners, his new attorneys for the appeal, did not adequately expl ain why they did not (or cannot) obtain the records from the criminal defendant’s prior

counsel.

Moreover, the Court also finds that respondent’s other claimed exemptions also compel the Court to deny the petition. These involve requested records rela ted to witness statements and the Court agrees that the public

- safety exemption under Public Officers Law § 87(2)(f) and the unwarranted invasion of personal privacy under Public Officers Law § 87(2)(f) both apply

. While petitioners warn against blanket ex emption s in murder cases (a well taken position) , the fact is that according to respondent, the criminal defendant “was the enforcer for a drug crew running out of the King Towers housing project. He was initially convicted in 2008 for narcotics

related co unts in connection with a 2006 homicide. After two subsequent hung juries on the homicide and gun possession counts, defendant was convicted of those counts in the fourth trial in 2013 and sentenced to twenty

- five years to life” (NYSCEF Doc. No. 7, n 4). I n other words, Mr. Woods was initially convicted on serious drug charges and then eventually convicted for murder. That suggests that these exemptions apply here.

As the First Department had held “account must be taken of the chilling effect the releas e of such personal information to the general public would have on future witnesses to intentional murder from cooperating with the police, for fear that once they provide their contact information, the general public would have easy and permanent access t o their whereabouts as 

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ATTORNEY'S OFFICE Motion No. 001 Page 6 of 6 well as the information they provided during the investigation. We have held such redactions to be proper” ( Exoneration Initiative v New York City Police Dept. , 114 AD3d 436, 439, 980 NYS2d 73 [1st Dept 2014]). This Court finds that public safety and the unwarranted invasion of personal privacy therefore compel the conclusion that disclosure is not warranted.

Accordingly, it is hereby

ADJUDGED that the petition is denied and this proceeding is dismissed without costs or

disburse ments.

6 / 3 /2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C.

CHECK ONE: X CASE DISPOSED NON - FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 

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