IN RE: Victor Zarvela (2014)

Submitted—Mach 28, 2014

DECISION & ORDER

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 art 6), the petitioner appeals from a judgment of the Supreme Court, Kings County (Bunyan, J.), dated June 20, 2012, which denied the petition and dismissed the proceeding.

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

The petitioner was convicted of murder in the second degree and criminal possession of a weapon in the second degree (see People v. Zarvela, 211 A.D.2d 690).   The petitioner commenced this proceeding pursuant to CPLR article 78 to compel disclosure of certain materials pursuant to the Freedom of Information Law (Public Officers Law art 6 [hereinafter FOIL] ).

Contrary to the petitioner's contentions, the requested statements of witnesses who did not testify at trial are confidential and are not disclosable under FOIL (see Public Officers Law § 87[2][e][iii];  Matter of Esposito v. Rice, 67 AD3d 797;  Matter of Johnson v. Hynes, 264 A.D.2d 777).

The petitioner's request for cooperation agreements with two trial witnesses is duplicative of a 1996 request for the same materials.   That request was denied and the determination was never appealed from administratively (see Public Officers Law § 89[4][a] ).   Therefore, this proceeding is, in part, a belated attempt to seek judicial review of that prior determination (see CPLR 217[1];  Matter of Mendez v New York City Police Department, 260 A.D.2d 262).

Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

SKELOS, J.P., SGROI, COHEN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court