IN RE: Application of Carlo HUSTON (1997)

Order and judgment (one paper), Supreme Court, New York County (Lewis Friedman, J.), entered on or about August l4, l995, which denied petitioner's application pursuant to CPLR Article 78 to compel respondent's FOIL disclosure of certain records pertaining to petitioner's criminal prosecution, namely, an autopsy report, witness statements, a medical report, a ballistic report and the felony complaint, unanimously affirmed, without costs or disbursements.

 Petitioner is not entitled to the autopsy report, the felony complaint and the ballistics report because they were previously provided to his attorney and petitioner fails to show that they are no longer available (cf., Matter of Swinton v. Record Access Officers for the City of New York Police Department, l98 A.D.2d l65, 604 N.Y.S.2d 59).   In any event, autopsy reports are exempt from disclosure under New York City Charter § 557(g) ( Matter of Mitchell v. Borakove, A.D.2d, 639 N.Y.S.2d 791, appeal dismissed 88 N.Y.2d 919, 646 N.Y.S.2d 987, 670 N.E.2d 228).   Statements made by a witness to the District Attorney's office are protected by the public interest privilege, and their disclosure cannot be directed absent a showing, not made here, of a “ ‘compelling and particularized need for access.’ ”  (sanchez v. city of new york, 20l A.D.2d 325, 326, 607 N.Y.S.2d 321, quoting Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444, 461 N.Y.S.2d 773, 448 N.E.2d 440.)  Public Officers Law § 87(2)(b) and 89(2)(b)(ii) specifically exempt access to medical records as an unwarranted invasion of privacy.   We note that the type of document found to be non-exempt from disclosure in (Matter of Gould v. New York City Police Department, 89 N.Y.2d 267, 653 N.Y.S.2d 54, 675 N.E.2d 808) is not involved herein.

MEMORANDUM DECISION.