Supreme Court, Appellate Division, Third Department, New York.
IN RE: Perry PENDELL, Appellant, v. COLUMBIA COUNTY DISTRICT ATTORNEY'S OFFICE, Respondent.
Decided: November 01, 2018
Before: Egan Jr., J.P., Lynch, Devine, Clark and Rumsey, JJ.
Perry Pendell, Coxsackie, appellant pro se. Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), for respondent.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Zwack, J.), entered October 5, 2016 in Columbia County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's Freedom of Information Law request.
In 2014, petitioner was convicted of numerous crimes stemming from his sexual contact with a 14–year–old girl (People v. Pendell, 164 A.D.3d 1063, 82 N.Y.S.3d 257  ). In 2015, petitioner submitted a request to respondent pursuant to the Freedom of Information Law (see Public Officers Law art 6) seeking documents and other evidence submitted at his trial. Although petitioner was provided with some material, respondent denied petitioner's continued request for disclosure of additional information on the basis that the records were exempt from disclosure because it would interfere with judicial proceedings – namely, petitioner's pending appeal from his criminal conviction. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding, seeking “discovery material, evidence and evidence in chief” that was given to defense counsel prior to or at the trial in accordance with CPL article 240. Supreme Court dismissed the petition. Petitioner appeals.
The instant appeal must be dismissed as academic. Although “[a] court is limited to considering only those exemptions to disclosure that are invoked by the party from whom disclosure is sought” (Matter of Rose v. Albany County Dist. Attorney's Off., 141 A.D.3d 912, 914, 34 N.Y.S.3d 753  ), it is also well settled that a court “may take judicial notice of a record in the same court of either the pending matter or of some other action” (Matter of Allen v. Strough, 301 A.D.2d 11, 18, 752 N.Y.S.2d 339  ). We note that the requested records and exhibits were furnished to petitioner's appellate counsel; therefore, respondent is under no obligation to furnish additional copies (see Matter of Badalamenti v. Office of Dist. Attorney Nassau County, 89 A.D.3d 1019, 1020, 933 N.Y.S.2d 359 ; Matter of Dupont v. Kings County Dist. Attorney's Off., 15 A.D.3d 480, 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 Franklin v. Keller, 254 A.D.2d 83, 83, 678 N.Y.S.2d 330  ). As petitioner obtained the requested records through his appellate counsel, whether respondent properly denied his Freedom of Information Law request has been rendered academic, and this appeal must be dismissed.
ORDERED that the appeal is dismissed, without costs.
Egan Jr., J.P., Lynch, Devine and Clark, JJ., concur.
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