IN RE: Anthony BADALAMENTI (2011)

In a proceeding pursuant to CPLR article 78 to review determinations of the Nassau County District Attorney's Office dated April 2, 2010, and May 14, 2010, respectively, denying the petitioner's request for disclosure pursuant to the Freedom of Information Law (Public Officers Law § 84 et seq.), the petitioner appeals from a judgment of the Supreme Court, Nassau County (Diamond, J.), dated November 22, 2010, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 Contrary to the petitioner's contention, he was not entitled to the disclosure of a cellular phone entered into evidence at his criminal trial under the Freedom of Information Law (hereinafter FOIL), as “physical evidence does not fall within the statutory definition of a ‘record’ ” (Matter of Allen v. Strojnowski, 129 A.D.2d 700, 700–701, 514 N.Y.S.2d 463;  see Matter of Sideri v. Office of Dist. Attorney of N.Y. County, 243 A.D.2d 423, 663 N.Y.S.2d 206;  Matter of Dobranski v. Houper, 154 A.D.2d 736, 739, 546 N.Y.S.2d 180).

 Further, with respect to the request for disclosure of a recording and accompanying transcript from an alleged second call to the 911 emergency number that the petitioner's girlfriend placed, the Nassau County District Attorney's Office (hereinafter the District Attorney's Office) established that no such recording is in its possession.   The District Attorney's Office is under no obligation to furnish the petitioner with records it does not possess (see Matter of Walsh v. Wasser, 225 A.D.2d 911, 911–912, 639 N.Y.S.2d 506;  Matter of Adams v. Hirsch, 182 A.D.2d 583, 582 N.Y.S.2d 724).   The District Attorney's Office otherwise established that it provided the petitioner with copies of all pertinent 911 emergency number recordings during his criminal trial.   The petitioner is not entitled to additional copies unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make (see Matter of Dupont v. Kings County Dist. Attorney's Off., 15 A.D.3d 480, 790 N.Y.S.2d 505;  Matter of Khatibi v. Weill, 8 A.D.3d 485, 486, 778 N.Y.S.2d 511;  Matter of Williams v. Erie County Dist. Attorney, 255 A.D.2d 863, 864–865, 682 N.Y.S.2d 316;  Matter of Moore v. Santucci, 151 A.D.2d 677, 678, 543 N.Y.S.2d 103).

In light of our determination, the petitioner's remaining contentions have been rendered academic.