Calvin K. of Oakknoll v. De Francesco

Jan 18, 1994
Versions:200 A.D.2d 619
608 N.Y.S.2d 850
1994 N.Y. App. Div. LEXIS 386

— In a proceeding pursuant to CPLR article 78 to review a determination of Francis A. De Francesco, Chief Inspector of the New York State Police, dated October 2, 1990, which denied the petitioner’s request for the disclosure 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, Dutchess County (Beisner, J.), entered April 16, 1991, which dismissed the proceeding.

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

The petitioner, a prison inmate, requested four items from the New York State Police pursuant to the Freedom of Information Law (Public Officers Law art 6), in connection with his trial and conviction of murder in the second degree in 1981 (see, People v Calvin of Oakknoll, 110 AD2d 1044). The State Police denied his request, and the petitioner commenced this proceeding pursuant to CPLR article 78. We conclude that the Supreme Court properly dismissed the proceeding.

Any issue with respect to the release of item 1 is academic since the petitioner concedes that he received this item from another source (see, Matter of Newton v Police Dept. 183 AD2d 621; see also, Matter of Pordum v Nyquist, 42 NY2d 958). With respect to items 2, 3, and 4, counsel for the State Police submitted an affirmation stating that he had reviewed the relevant police file, and that it did not contain the requested material. The Supreme Court did not err in relying on this representation, particularly since the petitioner failed to offer a factual basis for his claim to the contrary (see, Matter of Ahlers v Dillon, 143 AD2d 225; see also, People v Poole, 48 NY2d 144) but, instead, offered only speculation (see, Matter of Corbin v Ward, 160 AD2d 596).

We have reviewed the petitioner’s remaining contentions, including those raised in his pro se brief, and find them to be without merit. Mangano, P. J., O’Brien, Pizzuto and Santucci, JJ., concur.