IN RE: Lamonte JOHNSON (1999)

In a proceeding pursuant to CPLR article 78 to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law article 6), the petitioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (Greenstein, J.), dated March 9, 1998, as denied that branch of his petition which was to compel the production of the statements of witnesses who did not testify at his trial and the eyewitness's “cooperation agreement”.

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner was convicted of two counts of murder in the second degree based, in part, upon the testimony of an eyewitness (see, People v. Johnson, 170 A.D.2d 535, 566 N.Y.S.2d 538).   The petitioner subsequently commenced this proceeding pursuant to CPLR article 78 to obtain, pursuant to the Freedom of Information Law (Public Officers Law article 6) (hereinafter FOIL), among other things, disclosure of the statements of witnesses who did not testify at his trial, as well as the eyewitness's cooperation agreement.   Contrary to the petitioner's contention, the statements of nontestifying witnesses are confidential and not disclosable under FOIL (see, Public Officers Law § 87 [2] [e][iii];  Matter of Moore v. Santucci, 151 A.D.2d 677, 543 N.Y.S.2d 103;  Matter of Spencer v. New York State Police, 187 A.D.2d 919, 591 N.Y.S.2d 207).

The appellant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.