IN RE: Tyrone POWELL

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

IN RE: Tyrone POWELL, Petitioner-Appellant, v. E.F. BERNHARDT, Esq., Records Access Appeals Officer, Respondent-Respondent.

Decided: June 28, 2005

SAXE, J.P., NARDELLI, WILLIAMS, GONZALEZ, CATTERSON, JJ. Tyrone Powell, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Brian J. Pollock of counsel), for respondent.

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered July 1, 2004, which denied petitioner's application pursuant to CPLR article 78 and granted respondent's cross motion to dismiss the petition, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered November 4, 2004, which denied petitioner's reargument motion, unanimously dismissed, without costs, as taken from a nonappealable paper.

Pursuant to a FOIL request, petitioner obtained records from his Bronx murder trial, including a crime-scene videotape.   Respondent's denial of the request insofar as it sought a purported second crime-scene videotape, or the entire crime-scene videotape depicting the closed barrel, or a barrel being opened, was sufficiently supported by an Assistant District Attorney's affirmation that he diligently searched for the requested material and despite those efforts, no such videotape could be located (Public Officers Law § 89 [3];  Matter of Rattley v. New York City Police Dept., 96 N.Y.2d 873, 730 N.Y.S.2d 768, 756 N.E.2d 56 [2001] ).   Petitioner's arguments on appeal-that the IAS court erred in failing to require respondent to present proof of authentication of the crime-scene videotape it provided, and in failing to order a hearing to determine why the videotape sent petitioner did not depict the opening of the barrel-are unpreserved, and in any event, without merit.