IN RE: Angelo ESPOSITO (2009)

In a proceeding pursuant to CPLR article 78 to review a determination of the District Attorney of Nassau County, dated November 24, 2008, denying, in part, the petitioner's request pursuant to the Freedom of Information Law (Public Officers Law § 84 et seq.) for certain documents relating to his criminal conviction, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Spinola, J.), dated April 1, 2009, which denied his petition to compel disclosure of any statements of a particular, named person and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

The petitioner sought disclosure under the Freedom of Information Law (Public Officers Law § 84 et seq.;   hereinafter FOIL) of any statements to law enforcement officers made by a person who did not offer testimony at the petitioner's criminal trial.   Inasmuch as “the statements of nontestifying witnesses are confidential and not disclosable under FOIL” (Matter of Johnson v. Hynes, 264 A.D.2d 777, 777, 695 N.Y.S.2d 380;  see Public Officers Law § 87[2][e][iii];  Matter of Spencer v. New York State Police, 187 A.D.2d 919, 591 N.Y.S.2d 207;  Matter of Moore v. Santucci, 151 A.D.2d 677, 679, 543 N.Y.S.2d 103), the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.