IN RE: John Vera MORENO

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

IN RE: John Vera MORENO, Petitioner-Appellant, v. NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, Respondent-Respondent.

Decided: March 20, 2007

ANDRIAS, J.P., MARLOW, NARDELLI, SWEENY, McGUIRE, JJ. John Vera Moreno, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), for respondent.

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered January 6, 2006, which denied and dismissed the petition brought pursuant to CPLR article 78 to compel respondent to disclose certain documents pursuant to the Freedom of Information Law, unanimously affirmed, without costs.

 Dismissal of the petition was warranted due to petitioner's failure to preserve his right to judicial review by filing a timely administrative appeal (see Public Officers Law § 89[4][a] and [b];  Matter of Jamison v. Tesler, 300 A.D.2d 194, 750 N.Y.S.2d 860 [2002];  Matter of McGriff v. Bratton, 293 A.D.2d 401, 740 N.Y.S.2d 342 [2002] ).

 In any case, were we to reach the merits, we would affirm because disclosure of the sought materials would have interfered with petitioner's then still pending criminal appeal and any subsequent proceedings within the same prosecution (see Public Officers Law § 87[2][e][I];  Matter of Legal Aid Socy. v. New York City Police Dept., 274 A.D.2d 207, 713 N.Y.S.2d 3 [2000], lv. denied 95 N.Y.2d 956, 722 N.Y.S.2d 469, 745 N.E.2d 389 [2000];  Matter of Sideri v. Office of the Dist. Attorney of N.Y. County, 243 A.D.2d 423, 663 N.Y.S.2d 206 [1997], lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130 [1998] ), and because some of the sought documents were within the scope of a continuing protective order issued to ensure the safety of DEA agents, informants and witnesses (see CPL 240.50), and finally because disclosure of the sought non-discovery materials in respondent's files would give rise to the same safety concerns underlying the protective order (see Public Officers Law § 87[2][f];  Matter of Johnson v. New York City Police Dept., 257 A.D.2d 343, 348-349, 694 N.Y.S.2d 14 [1999], lv. dismissed 94 N.Y.2d 791, 700 N.Y.S.2d 422, 722 N.E.2d 502 [1999] ).

Petitioner's remaining arguments are unavailing.