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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: Michael R. TOPOLSKI, Petitioner-Appellant, v. Mary I. JUMBELIC, M.D., Chief Medical Examiner of Onondaga County, Respondent-Respondent.

Decided: July 02, 2009

PRESENT:  SCUDDER, P.J., HURLBUTT, FAHEY, GREEN, AND GORSKI, JJ. Michael R. Topolski, Petitioner-Appellant Pro Se.

Petitioner, an inmate in a correctional facility, brought an application pursuant to County Law § 677(3)(b) seeking the production and disclosure of, inter alia, X ray films, CT scans, MRI films, photographs, CD-ROM copies of data, and audio recordings relating to the autopsy of an individual whom petitioner was convicted of intentionally killing.   Petitioner contends that such items will prove that he killed the victim in self-defense.   We reject the contention of petitioner that Supreme Court abused its discretion in denying in part his application for production and disclosure of those materials.   We note that the court granted that part of the application seeking production and disclosure of all written records relating to the autopsy and to the investigation into the victim's cause of death, and we take notice of our own records from petitioner's previous appeal from the judgment of conviction (People v. Topolski, 28 A.D.3d 1159, 813 N.Y.S.2d 595, lv. dismissed 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 889, 853 N.E.2d 260, 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289), which establish that autopsy photographs and the victim's toxicology report were disclosed to petitioner during the criminal proceedings (see generally Oakes v. Muka, 56 A.D.3d 1057, 1059, 868 N.Y.S.2d 796;  New York State Dam Ltd. Partnership v. Niagara Mohawk Power Corp., 222 A.D.2d 792, 794 n, 634 N.Y.S.2d 830, lv. dismissed in part and denied in part 87 N.Y.2d 1041, 644 N.Y.S.2d 138, 666 N.E.2d 1051).   We further note that petitioner's justification defense was fully litigated at the trial and was rejected by the jury.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.