APL -2016-00219
Court of Appeals
i£>tate of gork
In the Matter of The Application of TALIB W. ABDUR-RASHID,
Petitioner-Appellant,
- against -
NEW YORK CITY POLICE DEPARTMENT, et al.,
Respondents-Respondents.
For aJudgment Pursuant to Article 78
of the Civil Practice Law and Rules.
In the Matter of The Application of SAMIR HASHMI,
Petitioner-Appellant,
- against -
NEW YORK CITY POLICE DEPARTMENT, et al.,
Respondents-Respondents.
For aJudgment Pursuant to Article 78
of the Civil Practice Law and Rules.
BRIEF FOR AMICUS CURIAE
DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK
SCOTT D. McNAMARA
District Attorney, Oneida County
President, District Attorneys Association
Of the State of New York
c/o Nassau County District Attorney
262 Old Country Road
Mineola, New York 11501
Telephone: (516) 571-3732; Fax: (516) 571-3806
Email: Andrea.DiGregorio@nassauda.org
TammyJ. Smiley,
Andrea M. DiGregorio, Monica M.C. Leiter
Assistant District Attorneys of Counsel Brief Completed October 6, 2017
TABLE OF CONTENTS
Page
Table of Authorities .i
Preliminary Statement, .vii
Statement of Amicus Curiae .1
Relevant Facts and Procedural History .2
Argument
A Glomar Response Is Necessary To Effectuate The
Legislative Intent Of Protecting Enumerated Categories
Of Information Under The Freedom Of Information Law. 6
A. Application Of The Glomar Doctrine To FOIL
Effectuates The Exemptions Set Forth
In The Public Officers Law 8
B. Application Of The Glomar Doctrine
To FOIL Protects Confidential Informants
And Other Non-Testifying Witnesses, And
Fosters Trustful Relationships Between
Communities And Prosecutorial Offices 9
C. Application Of The Glomar Doctrine
Protects Innocent Individuals
Who Have Been The Subject Of An
Investigation That Did Not Result In
Criminal Charges 12
D. Application Of The Glomar Doctrine
Effectuates Legislative Intent To Prevent
Interference With Law Enforcement Investigations 14
Page
E. A Glomar Response Should Be
Connected To A FOIL Exemption
And Accompanied By An Appropriate
Representation Of Necessity To Prevent
Abuse And Further Legislative Intent Of
FOIL 15
F. Utilization Of The Glomar Response, To Both Pending And
Future FOIL Requests, Effectuates The Legislative Intent Of
Protecting Certain Information From Public Disclosure 16
G. The Application Of The Glomar Doctrine Would Not Impact
Criminal Defendants’ Right To A Fair Trial 20
Conclusion. .27
Certificate of Compliance
TABLE OF AUTHORITIES
Page
CASES
STATE CASES
Abdur-Rashid v. N.Y. City Police Dep’t,
28 N.Y.3d 908 (2016) 5
Abdur-Rashid v. N.Y. City Police Dep’t,
140 A.D.3d 419 (1st Dept. 2016) ... 4, 5,7
Abdur-Rashid v. N.Y. City Police Dep’t,
45 Misc. 3d 888 (Sup. Ct. N.Y. Cnty. 2014). 3,4
Asian Am. Legal Def. <&Educ. Fund v. N.Y. City Police Dep’t,
125 A.D.3d 531 (1st Dept. 2015) 13, 14
City Council ofWatervliet v. Town Bd. of Colonie,
3 N.Y.3d 508 (2004) 18
Data Tree, LLC v. Romaine,
9 N.Y.3d 454 (2007) 8
Fink v. Lefkowit
47 N.Y.2d 567 (1979) 8
Goodwin v. Perales,
88 N.Y.2d 383 (1996). 18
Hashmi v. N.Y. City Police Dep’t,
46 Misc. 3d 712 (Sup. Ct. N.Y. Cnty. 2014). 4
Holtyman v. Goldman,
71 N.Y.2d 564 (1988) 19
i
Page
Legal Aid Soc’y v. N.Y. City Police Dep’t,
274 A.D.2d 207 (1st Dept. 2000) 22
Ees-her v. Hynes,
19 N.Y.3d 57 (2012). 22
North Jersey Media Grp., Inc. v. Bergen Cnty. Prosecutor's Office,
146 A.3d 656 (N.J. Super. Ct. App. Div. 2016) 7, 13, 14, 18
People v. Anderson,
29 N.Y.3d 69 (2017). 20
People v. Bueno,
18 N.Y.3d 160 (2011) 17
People v. Copicotto,
50 N.Y.2d 222 (1980) 21
People v. Gordon,
23 N.Y.3d 643 (2014) 17
Pittari v. Pirro,
258 A.D.2d 202 (2d Dept. 1999) 22, 23
Rodrigueÿ v. Perales,
86 N.Y.2d 361 (1995) 18
Tuck-lt-Away Associates L.P. v. Empire State Development Corp.,
54 A.D.3d 154 (1st Dept. 2008) 20
Xerox Corp. v. Town of Webster,
65 N.Y.2d 131 (1985) 20
ii
Page
FEDERAL CASES
Bassiouni v. CIA,
392 F.3d 244 (7th Cir. 2004) 6
Ctr. for Constitutional Rights v. CIA,
765 F.3d 161 (2d Cir. 2014),
cert, denied,_U.S. _, 135 S. Ct. 1530 (2015) 16
Carson v. Dep*t of State,
565 F.3d 857 (D.C. Cir. 2009) .6,11
Military Audit Project v. Casey,
656 F.2d 724 (D.C Cir. 1981) viii
Minier v. CIA,
88 F.3d 796 (9th Cir. 1996) 7
People for the Ethical Treatment of Animals v.
Nat’l Institutes of Health, Dep V of Health and Human Services,
745 F.3d 535 (D.C. Cir. 2014) 11,13,14
Phillippi v. CIA,
546 F.2d 1009 (D.C. Cir. 1976) .viii, 7, 18
Taylor v. Nat’l Sec. Agency,
618 Fed. App’x 478 (11th Cir. 2015) 6
Wilner v. Nat’l Sec. Agency,
592 F.3d 60 (2d Cir. 2009) viii, 6, 9, 16
Wolfv. CIA,
473 F.3d 370 (D.C. Cir. 2007) 6
hi
Page
STATUTES
STATE STATUTES
New York Constitution, Article IV, § 3 18
County Law § 700. 1,18
County Law § 700(i) 20
C.P.L. § 240.10 24
C.P.L. § 240.20 21
C.P.L. § 240.30 21
C.P.L. § 240.45, 21
C.P.L. § 240.50, .21, 22
C.P.L. §240.70, 21
C.P.L. §240.80, 21
C.P.L. § 240.90, 21
C.P.L. § 440.30, 24
Executive Law § 63(2). .18
Pub. Off. Law § 84 viii
Pub. Off. Law § 87 19
Pub. Off. Law § 87(2)(e) 11
Pub. Off. Law § 87(2)(e)(i) 15, 23
Pub. Off. Law § 87(2)(f) viii, 9, 12, 16
Pub. Off. Law § 89(2) viii
iv
Page
FEDERAL STATUTES
5 U.S.C. § 552. 4
OTHER AUTHORITIES
Brooklyn District Attorney’s Office Community Engagement Page,
http://www.brooklynda.org/community-engagement/
(last visited October 3, 2017) . . 9, 25
Bronx County District Attorney’s Office Bureaus and Units Page,
http://bronxda.nyc.gov/html/units/units.shtml (last visited October 3, 2017) 25
John Browning, US flitches Get Stitches: Witness Intimidation In The Age
Of Facebook And Twitter, 35 Pace L. Rev. 192 (Fall 2014) 10
Kelly Dedel, A Guide to Witness Intimidation,
Center For Problem Oriented Policing (2006),
http:/ /wvvw.popcenter.org/problems/wimess_intimidation/print/. 10
Daniel Kroepsch, Prosecutorial Best Practices Committees And
Conviction Integrity Units: How Internal Programs Are Fulfilling
The Prosecutor’s Duty To Serve Justice, 29 Geo. J. Legal Ethics 1095 (Fall 2016) .25
Patrick Lohmann, Syracuse Crimes Go Unsolved As Witnesses Stay Silent, Syracuse.com
(December 20, 2015), http://www.syracuse.com/crime/index.ssf/2015/12/
syracuse_crimes_go_unsolved_as_witnesses_remain_mum.html (last visited
October 3, 2017) 10
New York County District Attorney’s Office Community Office Page,
http://manhattanda.org/community-offices (last visited October 3, 2017) 9
New York County District Attorney’s Office Conviction Integrity Program Page,
http://manhattanda.org/preventing-wrongful-convictions (last visited on
October 3, 2017) 25
v
Page
New York State Office of the Attorney General’s Conviction Review
Board Page, https:/ /ag.ny.gov/bureau/conviction-review-bureau )
(last visited on October 3, 2017) 25
Margaret O’Malley, Witness Intimidation In The Digital Age (Parti),
The Prosecutor (July/August/September 2014), http://pceinc.org/wp-
content/uploads/2015/06/ Witness-Cooperation-and-Intimidation-Witness-
Intimidation-In-The-Digital-Age.pdf (last visited October 3, 2017) 10
Schenectady County District Attorney’s Office Community Prosecution Page,
http://www.schenectadycounty.com/districtattorney
(last visited October 3, 2017) .9,10,11
United States Department of Justice, Office of Community Oriented
Policing Services, The Stop SnitchingPhenomenon: breaking The Code Of Silence (2009),
https://ric-zai-inc.com/ Publications/cops-pl58-pub.pdf
(last visited October 3, 2017) ..10
vi
Court of Appeals
!§>tate of iSelu fÿorfc
In the Matter of The Application of TALIB W. ABDUR-RASHID,
Petitioner-Appellant, APL-2016-00219
- against -
NEW YORK CITY POLICE DEPARTMENT, et al.,
Respondents-Respondents.
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules.
In the Matter of The Application of SAMIR HASHMI
Petitioner-Appellant,
- against -
NEW YORK CITY POLICE DEPARTMENT, et al,
Respondents-Respondents.
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules.
BRIEF FOR AMICUS CURIAE
DISTRICT ATTORNEYS ASSOCIATION
OF THE STATE OF NEW YORK
PRELIMINARY STATEMENT
The District Attorneys Association of the State of New York (“DAASNY”)
submits this brief as amicus curiae in support of respondent, New York City Police
Department (“NYPD”), in the above-captioned appeals. By permission of this Court,
Talib W. Abdur-Rashid and Samir Hashmi (“petitioners”) appeal from an order of the
vii
Appellate Division, First Department, which unanimously held that the NYPD acted
properly when, in reply to petitioners’ requests for documents pursuant to New York’s
Freedom of Information Law (“FOIL”),' it issued a so-called Glomar response, i.e., the
NYPD neither confirmed nor denied the existence of responsive records, but set forth
that if any responsive records did exist, they would not be subject to disclosure pursuant
to certain, enumerated, statutory exemptions under FOIL.2
1 See Pub. Off. Law § 84, et seq.
2The Glomar doctrine originated in a federal Freedom of Information Act (“FOIA”) case
concerning records pertaining to the Hughes Glomar Explorer, an oceanic research vessel that
purportedly was being used by the Central Intelligence Agency (“CIA”) to recover a sunken Soviet
submarine that contained nuclear weapons. See Military Audit Project v. Casey, 656 F.2d 724, 728 (D.C.
Cir. 1981); Pbillippi v. CIA, 546 F.2d 1009, 1010-12 (D.C. Cir. 1976); see also Wilnerv. Nat’ISec. Agency,
592 F.3d 60, 66-67 (2d Cir. 2009). In response to a FOIA request for records relating to the Glomar
Explorer, the CIA refused to confirm or deny the existence of responsive records, contending that
the existence or nonexistence of the requested records was itself a classified fact exempt from FOIA
disclosure. Pbillippi, 546 F.2d at 1011; see also Wilner, 592 F.3d at 67. In Pbillippi, the District of
Columbia, Court of Appeals recognized the legitimacy of a Glomar response, but required the CIA to
provide a detailed public affidavit explaining the basis for its claim that it could not be required to
either confirm or deny the existence of the requested records. Pbillippi, 546 F.2d at 1013-15.
V1U
STATEMENT OF AMICUS CURIAE
The District Attorneys Association of the State of New York (“DAASNY”) is a
state-wide organization composed of sixty-two District Attorneys from New York,
the New York State Attorney General, the Office of the Special Narcotics Prosecutor
(New York City), and the New York Justice Center for the Protection of People with
Special Needs, and the nearly 3,000 assistants of these agencies. County Law § 700
requires all District Attorneys to investigate and prosecute crimes committed in their
respective jurisdictions. In effectuating this mandate, District Attorneys’ Offices
interview innumerable individuals, including confidential informants, and individuals
who, though reluctant to speak with law-enforcement authorities, nonetheless do so
under an assumption that anonymity is being provided to them. In addition, at times,
District Attorneys’ Offices conduct investigations joindy with federal law-enforcement
agencies, such as the Federal Bureau of Investigation, the United States Drug
Enforcement Agency, and the United States Department of Homeland Security.
However, not all investigations result in an arrest or criminal charges. Nonetheless,
documentation regarding investigations — including those that do not result in
prosecutions, and those containing statements imparted by confidential informants and
other individuals who expect anonymity — are often included in District Attorney case
files.
DAASNY urges this Court to affirm the Appellate Division’s order and
recognize the propriety of a Glomar-type response to FOIL requests. State-wide
1
acceptance of the applicability of the Glomar doctrine to the New York’s Public
Officers Law is gready important to protect non-testifying informants, foster an
atmosphere of trust between communities and District Attorneys’ Offices, and avoid
unjustified stigmatization, public scorn, and damage to the reputation or livelihood of
individuals who were the subject of an investigation that did not result in an arrest or
prosecution. Moreover, to reject the Glomar doctrine as inapplicable to FOIL would
create an unwarranted anomaly: records created during a joint federal-state
investigation and possessed by a federal agency would be subject to the protection
afforded by the Glomar doctrine, but that same document, if possessed by a state
agency, would not. Furthermore, depriving an agency of the appropriate use of a
Glomar-type response could result in disclosure of the very information that the Public
Officers Law is designed to protect. Criminal defendants and other requestors are
becoming increasingly sophisticated and calculating in framing their FOIL requests to
discover, by a process of elimination, protected information, such as the identity of a
confidential informant.
RELEVANT FACTS AND PROCEDURAL HISTORY
Talib W. Abdur-Rashid and Samir Hashmi submitted separate FOIL requests to
the NYPD seeking records of surveillances and investigations of themselves and certain
organizations/communities with which they associated (R. 258-60, 720-21).3 The
3 Numbers preceded by “R.” refer to the pages of the Record on Appeal.
2
NYPD denied both requests, invoking, inter alia, a Glomar-type response, i.e., while
neither confirming nor denying the existence of responsive records, the agency set forth
that if any responsive record did exist, it would be exempt from disclosure under certain,
specified, provisions of the Public Officers Law (R. 267-68, 727-28). Abdur-Rashid
and Hashmi filed unsuccessful administrative appeals (R. 269-70, 730-31). In response
to the administrative appeals, the NYPD affirmed its denial of the FOIL requests,
thoroughly explained its reasons for its prior determinations, and once again
incorporated, inter alia, a Glomar-type response (R. 271-74, 733-36).
Abdur-Rashid and Hashmi then each brought a proceeding pursuant to C.P.L.R.
Article 78 in the Supreme Court of New York County (R. 236-50, 705-15). Each case
was assigned to a different judge, and resulted in disparate rulings regarding the
applicability of the Glomar doctrine to FOIL.
In Abdur-Rashid’s case, New York County Supreme CourtJustice Alexander W.
Hunter, Jr., held that the Glomar doctrine and response were applicable to FOIL
{Abdur-Rashid v. N.Y. City Police Dep’t, 45 Misc. 3d 888, 895 [Sup. Ct. N.Y. County 2014];
R. 20-24). In reaching that determination, the court noted that the case was one of first
impression, that it could therefore look to holdings in other jurisdictions for guidance,
and that the application of the Glomar doctrine to FOIL requests was in keeping
with the spirit of similar appellate court cases (Abdur-Rashid, 45 Misc. 3d at 894-95;
R. 23-24). Justice Hunter noted that respondents had made a showing — through an
affidavit of a NYPD Chief — that the disclosure of records (if they existed) would
3
undermine police operations and could impair the life and safety of undercover officers
(Abdur-Rashid, 45 Misc. 3d at 893-94; R. 23).
In contrast, about two months after the Abdur-Rashid decision, New York
County Supreme Court Justice Peter H. Moulton rejected the use of the Glomar
doctrine for FOIL matters {see Hashmi v. N.Y. City Police Dep’t, 46 Misc. 3d 712, 722
[Sup. Ct. N.Y. Cnty. 2014]; R. 27-45). The court held, inter alia, that adopting the
Glomar doctrine would create a “profound change” to the statutory scheme
constructed by the New York Legislature, and that, therefore, the decision to adopt the
Glomar doctrine should be “left to the State Legislature” (Hashmi, 46 Misc. 3d at 722;
R. 41).
Upon the ensuing appeals from the Abdur-Rashid and Hashmi orders, the First
Department, Appellate Division, unanimously held that a Glomar response is a
permissible reply to FOIL requests, provided that the agency adequately demonstrates
that confirmation or denial of the record’s existence would cause harm cognizable
under a FOIL exemption (Abdur-Rashid v. N.Y. City Police Dep’t, 140 A.D.3d 419, 420-
21 [1st Dept. 2016]; R. 15). In reaching its conclusion, the Appellate Division noted
that the federal case law regarding the federal Freedom of Information Act (5 U.S.C.
§ 552) (“FOIA”) upon which FOIL is patterned — was “instructive” when
interpreting FOIL provisions, and that the application of the Glomar doctrine to FOIA
requests was “widely approved” by federal circuit courts {Abdur-Rashid, 140A.D.3d
at 420; R. 16). The court rejected the notion that differences between FOIA and
4
FOIL would justify rejecting the Glomar doctrine in the context of FOIL (Abdur-
Rashid, 140 A.D.3d. at 420; R. 16).
This Court granted petitioners leave to appeal from the Appellate Division’s
order {Abdur-Rashid v. N.Y. City Police Dep’t, 28 N.Y.3d 908 [2016]; R. 10-11).
In this brief, amicus DAASNY will discuss why the Glomar doctrine is applicable
to FOIL, and the dangers of not recognizing the Glomar doctrine under New York
State’s public-disclosure laws. In addition, this brief will assuage concerns that
invocation of the Glomar doctrine will serve to thwart legitimate public access to
government records.
5
ARGUMENT
A Glomar Response Is Necessary To Effectuate The Legislative Intent Of
Protecting Enumerated Categories Of Information Under The Freedom Of
Information Law.
Appellate courts — both state and federal — have consistently and uniformly
recognized the applicability of a Glomar-type response to requests made for documents
pursuant to open-records laws under general statutory authorization to withhold
enumerated categories of information, even in the absence of independent statutory
authorization for a “neither confirm nor deny” reply. See, e.g., Taylor v. Nat’/ Sec. Agency,
618 Fed. App’x 478, 479-80, 482 (11th Cir. 2015) (Glomar response appropriate to
requests under FOIA and the Privacy Act of 1974 for documents relating to, inter alia,
surveillance of requestor); Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 67-70 (2d Cir. 2009)
(Second Circuit joins the “firmly established” and “well settled” holdings of other
federal circuits that a Glomar response can be a proper reply to a FOIA request, even
when the Glomar doctrine was invoked to protect the methods, targets, and
information gleaned from a publicly disclosed surveillance program); Larson v. Dep’t of
State, 565 F.3d 857, 861-64, 870 (D.C. Cir. 2009) (Glomar response appropriate reply
to FOIA request, including request for document that, if disclosed, could have led to
the identification of a confidential source); Wolfv. CIA, 473 F.3d 370, 373-74, 377 (D.C.
Cir. 2007) (recognizing the applicability of Glomar response to FOIA requests and
acknowledging the legitimacy of the government’s interest in the appearance of
confidentiality in its covert operations); Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir.
6
2004) (recognizing that “[e]very appellate court to address the issue has held that the
FOIA permits [a federal agency] to make a 'Glomar response’”); Minierv. CLA, 88 F.3d
796, 800-02 (9th Cir. 1996) (recognizing applicability of Glomar response to FOIA
requests); North Jersey Media Grp. v. Bergen Cnty. Prosecutor's Office, 146 A.3d 656, 666-67
(N.J. Super. Ct. App. Div. 2016) (Glomar response applicable to New Jersey’s Open
Public Records Act, although there is no explicit statutory authority for a “neither
admit nor deny” response); Abdur-Rashid v. N.Y. City Police Dep’t,140 A.D.3d 419, 420-
21 (1st Dept. 2016) (Glomar response applicable to New York’s Freedom of
Information Law). Notably, the very open-records law from which the Glomar
doctrine emerged — the Freedom of Information Act — authorizes agencies to widihold
exempt material but does not independendy provide for a “refuse to confirm or deny”
response. SeePhillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). This Court, too, should
recognize the applicability of the Glomar doctrine and response to New York’s
Freedom of Information Law. Indeed, the structure of the Public Officers Law —
which provides for disclosure-exemptions for certain material — invites the application
of the Glomar doctrine to prevent revelation of information protected under FOIL.
Such safeguarding is important to amicus DAASNY in light of the numerous
investigations undertaken by prosecutorial offices, which may involve memorialized
statements made by non-testifying confidential informants, and unique investigation
techniques which may not result in an arrest or criminal prosecution. An
acknowledgement of even the existence of responsive records to requests regarding
7
such investigations or informants would serve to expose the very sort of information
that the Public Officers Law protects.
A. Application Of The Glomar Doctrine To FOIL
Effectuates The Exemptions Set Forth
In The Public Officers Law.
Although the reach of New York’s open-records legislation — the Freedom of
Information Law (Public Officers Law § 84, et seq.) — is broad, it is not limitless. See
Data Tree, LL.C v. Komaine, 9 N.Y.3d 454, 462 (2007); Fink v. Lefkomtÿ 47 N.Y.2d 567,
571 (1979). Rather than create an unfettered ability for the public to access all agency
records, the Legislature “recognized a legitimate need on the part of government to
keep some matters confidential”4 and developed exemptions to disclosure. Exemptions
include information that, if disclosed, would create an unwarranted invasion of personal
privacy5 or endanger the life or safety of a person,6 and also records compiled for law
enforcement purposes which, if disclosed, would identify a confidential source, reveal
confidential information relating to a criminal investigation, or divulge non-routine
criminal investigative techniques or procedures.7
4 Fink, 47 N.Y.2d at 571.
5 Public Officers Law § 89(2).
6 Public Officers Law § 87(2)(f).
7 Public Officers Law § 87(2)(e).
8
Application of the Glomar doctrine and response to New York’s open-records
law would serve to prevent the harm that FOIL was designed to protect against and
would, thus, effectuate the Legislature’s intent when it created the Public Officers Law
disclosure exemptions. Cf. Wilner, 592 F.3d at 68 (a federal agency may refuse to
confirm or deny the existence of records where to answer the FOIA inquiry would
cause harm cognizable under a FOIA exception).
B. Application Of The Glomar Doctrine
To FOIL Protects Confidential Informants
And Other Non-Testifying Witnesses, And Fosters
Trustful Relationships Between Communities
And Prosecutorial Offices.
The security and safety of victims and other witnesses to criminal activity is of
great importance to prosecutorial offices, as is fostering a climate of trust and
cooperation between civilian communities and law enforcement.8 Witness and victim
safety is assuredly worthy of great consideration. See, e.g., Public Officers Law § 87(2)(f)
(exemption for disclosure of information that would endanger the life or safety of a
8 See, e.g., Office of Public Engagement of the Brooklyn District Attorney’s Office, which is
“committed to building mutual trust and respect between law enforcement and the community,”
(http://www.brooklynda.org/community-engagement/) (last visited October 3, 2017); the
Community Partnership Unit of the New York County District Attorney’s Office, which provides a
“a critical link between the District Attorney’s Office and the community at large”
(http://manhattanda.org/community-partnerships-unit) (last visited October 3, 2017); and the
Community Prosecution Team at the Schenectady County District Attorney’s Office, which
works “with residents and other organizations to better the community” and is developing a “Stop
the Silence” event to overcome the reluctance of some civilians to provide information because of
fear or to avoid “snitching” (http://www.schenectadycounty.com/districtattorney) (last visited on
October 3, 2017).
9
person). Civilian witnesses are, however, increasingly reluctant to divulge information
regarding their knowledge of criminal activity.9
Fear of reprisal, as well as being labeled a “snitch,” are factors that contribute to
witness reticence. Seegenerally, Browning, #Snitches Get Stitches: Witness Intimidation In the
Age ofFacebookAnd Twitter,; 35 Pace L. Rev. 192 (Fall 2014).10 The prospect of merely
being perceived as cooperating with law enforcement — let alone actually cooperating
with law enforcement — is sufficient to deter potential witnesses from proffering
information in a criminal investigation." The anti-snitch culture has become so
pronounced that the Schenectady District Attorney’s Office is developing a “Stop the
Silence” event to address the phenomenon and civilians’ fears of reprisal for
cooperating with law enforcement. See Schenectady County District Attorney
9 See Patrick Lohmann, Syracuse Crimes Go Unsolved As Witnesses Stay Silent, Syracuse.com
(December 20, 2015), http://www.syracuse.com/crime/index.ssf/2015/12/syracuse_crimes_go
_unsolved_as_witnesses_remain_mum.html (last visited October 3, 2017);
Margaret O’Malley, Witness Intimidation In The Digital Age (Part I), The Prosecutor
(July/August/September 2014), http://pceinc.org/wp-content/uploads/2015/06/ Witness-
Cooperation-and-Intimidation-Witness-Intimidation-In-the-Digital-Age.pdf (last visited October 3,
2017);
Kelly Dedel, A Guide To Witness Intimidation, Center for Problem Oriented Policing (2006),
http://www.popcenter.org/problems/witness_intimidation/print/ (last visited October 3, 2017).
10 See also Patrick Lohmann, Syracuse Crimes Go Unsolved As Witnesses Stay Silent, Syracuse.com
(December 20, 2015), http://www.syracuse.com/crime/index.ssf/2015/12/syracuse_crimes_go
_unsolved_as_witnesses_remain_mum.html (last visited October 3, 2017);
Margaret O’Malley, Witness Intimidation In The Digital Age (Part I), The Prosecutor (July/
August/September 2014), http://pceinc.org/wp-content/uploads/2015/06/Witness-Cooperation-
and-Intimidation-Witness-Intimidation-In-the-Digital-Age.pdf (last visited October 3, 2017).
11 See U.S. Department of Justice, Office of Community Oriented Policing Services, The Stop
Snitching Phenomenon: Breaking The Code Of Silence, p. 14 (2009), https://ric-zai-inc.com/Publications/
cops-pl58-pub.pdf (last visited October 3, 2017).
10
Community Prosecution Page, http:/ /www.schenectadjcounty.com/ districtattomey (last visited
October 3, 2017). The prospect of having his or her identity revealed — direcdy or
indirectly — pursuant to a FOIL request would undoubtedly result in a non-testifying
witness or informant being even less inclined to provide information or otherwise
cooperate with a prosecutorial office. The use of the “neither admit nor deny” Glomar
response provides needed protection for safeguarding an informant’s identity in
situations where the mere acknowledgment of the existence of a particular record would
result in harm cognizable under a FOIL exemption. Seegenerally Larson, 565 F.3d at 863-
64; see also People for the Ethical Treatment of Animals v. Nat’l Institutes of Health, Dep’t of
Health and Human Services, 745 F.3d 535, 541 (D.C. Cir. 2014).
For example, in a hypothetical case where a requestor pointedly asks for all the
statements made by “P.J.” (whom the requestor suspects of being a confidential
informant), an agency’s response that such statements are exempt from disclosure
pursuant to Public Officers Law § 87(2)(e)(iii), because they would identify a
confidential source, does not sufficiently protect P.J.’s identity. Indeed, such a response
serves to confirm the requestor’s suspicions that P.J. is an informant. However, a
“neither confirm nor deny” response far more adequately protects P.J.’s identity. See
generally Larson, 565 F.3d at 863; see also People for the Ethical Treatment of Animals, 745 F.3d
at 541.
11
Safeguarding a confidential witness’s identity through the use of a Glomar-type
response serves to foster effective law enforcement and criminal prosecutions, aids in
acquiring the public’s and witness’s cooperation, and assists in keeping the flow of
information unimpeded. Disclosure of a confidential witness’s identity could hinder
the attainment of valuable information necessary for successful and just prosecutions.
Moreover, protection of a confidential witness is not limited to merely pretrial
circumstances. The very real possibility of retaliation even after a case has concluded
warrants the continued protection offered by a Glomar-type response. There is no time
limit on retaliation, and, without the continuing protection offered by a Glomar-type
response tethered to the FOIL exemption that protects disclosure of information that
could endanger the life or safety of a person,12 a criminal defendant could easily learn
from a post-judgment FOIL disclosure about a witness who provided law enforcement
with information but, for reasons of safety and security, did not become a witness at
trial.
C. Application Of The Glomar Doctrine
Protects Innocent Individuals
Who Have Been The Subject Of An
Investigation That Did Not Result In
Criminal Charges.
Application of the Glomar doctrine does not, of course, merely protect
confidential witnesses. The Glomar response also protects individuals who were targets
12 See Public Officers Law § 87(2)(f).
12
of investigations that did not result in an arrest or criminal prosecution. See generally
People for the Ethical Treatment of Animals, 745 F.3d at 541 (noting that courts have
“repeatedly” recognized the “substantial” privacy interest held by “the targets of law-
enforcement investigations ... in ensuring that their relationship to the investigations
remains secret”).
District Attorneys’ Offices sometimes receive allegations that are determined
following investigation — to be unprovable, unfounded, or untrue. Identifying the
target of such allegations, or even providing a non-Glomar response that effectively
acknowledges that an individual has been the target of an investigation, could unfairly
subject that individual to irreparable harm, such as ruined reputation or livelihood. See
generally id. at 541-42; see also Asian Am. Legal Def. <&Educ. Fund v. N.Y. City Police Dep’t,
125 A.D.3d 531, 532 (1st Dept. 2015) (revelation that a certain person, business, or
organization was the subject of counterterrorism-related surveillance would not only
have the potential to be embarrassing or offensive, but could also be detrimental to the
reputations or livelihoods of such persons or entities). The importance of protecting
an individual from the unwarranted public scorn and stigma that can arise from being
identified as the target of a criminal investigation, through disclosure of such
information via a public-records request, is a concept that has been accepted in New
York, New Jersey, and the federal forum. See People for the Ethical Treatment of Animals,
745 F.3d at 541; North Jersey Media Grp., Inc., 146 A.3d at 660, 670; Asian Am. Legal Def.
& Educ. Fund, 125 A.D.3d at 532. Invocation of a statutory exemption to FOIL
13
disclosure — without the benefit of the “neither admit nor deny” response — does not
fully protect the target of the investigation from such unwarranted invasion of privacy.
A broad request for information that does not specify a particular individual, such as
the request made in Asian American Legal Defense and Education Fund,13 may well be
answered without a Glomar-type response and still protect the privacy interest of an
individual who might have been associated with a criminal investigation. However,
such a broad request differs from a more pointed request that seeks “all records related
to any investigation of [a named individual].” See, e.g., People for the Ethical Treatment of
Animals, 745 F.3d at 538, 541-42. Under those circumstances, invocation of a statutory
exemption, without the benefit of a Glomar-type response, could serve to confirm to
the requestor that the named individual has, in fact, been the subject of an investigation,
and cause the type of harm that the FOIL exemption was designed to prevent. See
generally North Jersey Media Grp., Inc., 146 A.3d at 660, 670 (Glomar response properly
invoked, under NewJersey’s open-records law, to protect from harm a person who had
been subject of an information request, but who had not been arrested or charged with
an offense); see also People for the Ethical Treatment of Animals, 745 F.3d at 538, 541-42.
13 See Asian Am. Legal Def. &Edtic. Fund, 125 A.D.3d at 531.
14
D. Application Of The Glomar Doctrine
Effectuates Legislative Intent To Prevent
Interference With Law Enforcement Investigations.
Public Officers Law § 87(2)(e)(i) exempts from disclosure records that, if
unveiled, would interfere with law enforcement investigations. Id. Once again, reliance
merely on an invocation of a statutory exemption — without the added availability of a
“neither admit nor deny” response -- may not sufficiently protect the statutory interest
of non-interference with law enforcement investigations. For example, an individual
who suspects that he or she is under investigation could frame a FOIL request in such
a way that an agency’s mere acknowledgement that it has responsive records could cause
harm cognizable under the FOIL exception by alerting the requestor that he or she is
under investigation. The requestor could then tailor his or her activities to prevent
lawful discovery of criminal conduct.
E. A Glomar Response Should Be
Connected To A FOIL Exemption
And Accompanied By An Appropriate
Representation Of Necessity To Prevent
Abuse And Further The Legislative Intent
Of FOIL.
The concerns raised by petitioners and their amici that agencies would invoke
the Glomar doctrine to thwart legitimate public access to government records can easily
be assuaged by employing measures currently applicable to FOIL requests, and
incorporating procedures as are employed in the federal forum.
15
For example, in order to invoke Glomar response in the federal setting,
an agency must “tether” its refusal to one of nine FOIA exemptions. See Wilner,
592 F.3d at 71. The burden is placed on the party resisting disclosure to demonstrate
with “reasonably detailed” explanations that the information being withheld falls within
the claimed exemption. See Ctr. for Constitutional Slights v. CIA, 765 F.3d 161, 166 (2d
Cir. 2014), cert, denied,_ U.S. _, 135 S. Ct. 1530 (2015); Wilner, 592 F.3d at 68, 73.
So too, in the state setting, a Glomar-type response could be required to be tethered to
a FOIL exemption, such as Public Officers Law § 87(2)(f), which exempts disclosure
of records, that, if disclosed, could endanger the life or safety of a person. Moreover,
as when an agency invokes any FOIL exemption, the state agency could be required to
make a sufficient showing that it is entitled to the Glomar-type exemption, such as
adequately establishing that the mere acknowledgment that responsive records exist
could impair the life and safety of a person.
F. Utiliaation Of The Glomar Response,
To Both Pending And Future FOIL
Requests, Effectuates The Legislative Intent Of
Protecting Certain Information From
Public Disclosure.
Petitioners assert that Glomar responses are unnecessary because New York
state agencies have responded to FOIL requests for decades without invoking Glomar
and have been able to protect sensitive information. See Petitioner-Appellant’s Brief at
1-2; Petitioner-Appellant’s Reply Brief at 15; Amicus Curiae New York Civil Liberties
16
Union Brief at 1. Petitioners’ assertions, however, are disingenuous. There is no
indication in Petitioner’s papers that they made any attempt to quantify harm done by
the disclosure of the existence of confidential sources under the existing interpretation
of FOIL. Such reticence is unsurprising, as it can be difficult to measure the impact
that such disclosures have on the viability of prosecutions or safety of witnesses.
Indeed, it would be unlikely for criminal defendants to admit that they have harassed
or harmed witnesses after FOIL disclosure. See, eg., People v. Gordon, 23 N.Y.3d 643,
650 (2014) (“The element of intent is rarely proved by an explicit expression of
culpability by the perpetrator.”) (quoting People v. Bueno,18 N.Y.3d 160, 169 [2011]).
In any event, even if there has not been an attempt to invoke a Glomar-type
response in previous matters, such circumstance does not prove that it is not now
necessary to use such a response. The dangers to witnesses have grown exponentially
since die introduction of social media, and FOIL requestors are becoming increasingly
calculating in the way they frame their queries for agency records.
Moreover, petitioners’ position that agencies should not be permitted to
effectuate the legislative intent of protecting the integrity of criminal investigations and
personal safety because it would constitute a “new method” is misplaced. A Glomar-
type response effectuates die legislative intent to protect certain exempt information
specifically enumerated in the statute and thus should not rightly be considered a new
method of responding to FOIL requests. Indeed, the open-records law from which the
Glomar doctrine emerged — FOIA — likewise authorizes agencies to withhold exempt
17
information but does not independently provide for a “refuse to confirm or deny”
response, yet the federal court that first assessed the validity of a Glomar response ruled
that such a type of response could validly be given in reply to a FOIA request. See
Phillippi, 546 F.2d 1009. New Jersey courts too have recognized the validity of
Glomar-type response even in the absence of independent statutory authority for a
“neither admit nor deny” reply to a request for records under that state’s open-records
law. North Jersey Media Grp., 146 A.3d at 666-67 (noting “the absence of specific
statutory authorization posed no obstacle to the adoption of the Glomar doctrine in
. . . federal caselaw”).
In any event, the Executive has the obligation to ensure that laws are faithfully
executed. See New York Constitution, Article IV, § 3. This obligation is, of course,
executed through various inferior officers, including agency heads, across state
government. See, e.g., Executive Law § 63(2) (general duties of New York Attorney
General); County Law § 700 (duties and powers of District Attorney). Ensuring that
the laws are faithfully executed surely requires that those laws are interpreted by the
officers charged with enforcing or carrying them out. See, e.g., Rodrigue v. Perales,
86 N.Y.2d 361, 367 (1995) (“[a]n agency’s interpretation of the statutes it administers
generally should be upheld if not unreasonable or irrational”); Goodwin v. Perales,
88 N.Y.2d 383, 392 (1996) (same); see also City Council of Watervliet v. Town Bd. of Colonie,
3 N.Y.3d 508, 518 (2004) (where an agency is charged with implementing a statute, its
interpretation is entitled to judicial deference). With this in mind, it is unpersuasive to
18
suggest that application of the Glomar doctrine ought to be rejected because it is a new
method.
Furthermore, in the absence of contrary judicial interpretation, it must be that it
is well within the prerogative of any agency within the executive branch to conclude
that the reason certain exemptions were adopted by the Legislature was to insure
integrity of investigations and witness safety. Thus, as an agency that is part of the
executive branch,14 and absent contrary judicial interpretation, a District Attorney’s
Office should be authorized to adopt what petitioners have characterized as a new
method if, in the agency’s view, the rule serves to carry out the intent of the law the
agency is being asked to implement.
And, to the extent that petitioners’ complaint may be viewed as one contending
that the Court is not the proper branch of government to recognize a Glomar-type
response under FOIL, their argument may be discounted. It is surely the Court’s
obligation to ensure that the protections authorized by the Legislature are actually
carried out, minimizing the very risks against which the Legislature wants to protect.
Indeed, FOIL is not a static law. Rather, it is continually evolving through
judicial interpretation. Public Officers Law § 87 has been cited and/or interpreted in
well over a thousand published decisions in New York State. And, despite petitioners’
evident wish to downplay the role of federal law in FOIL’S evolution, federal law has
14 See Holliman v. Goldman, 71 N.Y.2d 564, 573 (1988).
19
played an influential part in New York State courts’ interpretations of FOIL. For
example, in Tuck-lt-Away Associates L.P. v.Umpire State Development Corp., 54 A.D.3d 154,
162-65 (1st Dept. 2008), the Appellate Division, First Department, relied on a decision
from the United States Supreme Court interpreting FOIL’S federal equivalent to
distinguish this Court’s holding in Xerox Corp. v. Town of Webster, 65 N.Y.2d 131 (1985),
and to require additional disclosure. The sound reasoning of federal law cannot only
be instructive when effectuating the Legislature’s goal of transparency; it must apply
equally to the Legislature’s aim of protecting specified material from compelled
disclosure. As such, the mere facts that the Glomar doctrine only recently finds itself
under examination in this Court and that it first appeared in federal practice are
insufficient to outweigh its necessity as agencies seek to effectuate the legislative intent
to protect exempt information such as confidential sources, pending investigations, and
non-routine investigative techniques. See Xerox Corp., 65 N.Y.2d at132 (grafting FOIL’S
exemptions onto General Municipal Law § 51 in order to avoid nullifying the
Legislature’s intent to exempt documents from disclosure).
G. The Application Of The Glomar Doctrine Would Not
Impact Criminal Defendants’ Rights To A Fair Trial.
District Attorneys’ Offices are charged with conducting “all prosecutions for
crimes and offenses” within their respective jurisdictions. County Law § 700(1).
In fulfilling that purpose, prosecutors have a duty to ensure that justice is served
through fair trials. See People v. Anderson, 29N.Y.3d 69, 76 (2017) (a prosecutorial
20
agency’s interest in a criminal proceeding is “that justice shall be done” rather than
winning at any cost) (internal citation omitted).
Critically, the application of the Glomar doctrine would not interfere with
defendant’s right to a fair trial because criminal defendants are provided with discovery
through Criminal Procedure Law Article 240, not FOIL. On the other hand, Glomar-
type responses would protect a defendant’s fair-trial rights by averting prejudicial pre¬
arrest publicity that would flow from a District Attorney’s Office being forced to
prematurely acknowledge the existence of an investigation in response to a FOIL
request.
Discovery rules for criminal proceedings are set forth in Article 240 of the
Criminal Procedure Law. See People v. Copicotto, 50 N.Y.2d 222, 225 (1980) (“pretrial
discovery by the defense and prosecution is governed by statute, CPL article 240”).
That Article governs, interalia, discovery demands and motions by both defendants and
prosecutors (C.P.L. §§ 240.20, 240.30, 240.90), protective orders (C.P.L. § 240.50),
discovery about trial witnesses (C.P.L. § 240.45), die timing for demands and responsive
disclosures (C.P.L. § 240.80), and sanctions for failure to comply with discovery
obligations (C.P.L. § 240.70). In short, it is a comprehensive mechanism by which a
defendant can obtain all appropriate records from the prosecution relating to his or her
criminal case.
In circumstances where the prosecution believes that disclosure of specific
materials could cause “danger to the integrity of physical evidence or a substantial risk
21
of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or
embarrassment to any person or an adverse effect upon the legitimate needs of law
enforcement, including the protection of the confidentiality of informants,” the
prosecutorial agency can move for a protective order “denying, limiting, conditioning,
delaying or regulating discovery.” C.P.L. § 240.50(1). One acceptable type of protective
order mandates that the provided information remains in the exclusive possession of
the attorney and be used solely for the criminal action. See C.P.L. § 240.50(2). As such,
the concerns necessitating the use of the Glomar doctrine for FOIL responses are
inapplicable to criminal discovery and the doctrine could not be invoked to deprive a
criminal defendant of the discovery to which he or she is entitled.
FOIL is not a statutorily authorked method for criminal defendants to obtain
discovery. Courts have refused to allow criminal defendants to circumvent the statutory
discovery procedure with FOIL requests that have the potential to “interfere with the
orderly process of disclosure in the criminal proceeding set forth in CPL article 240.”
Pittari v. Pirrv, 258 A.D.2d 202, 206-07 (2d Dept. 1999); see also Lesher v. Hynes,19 N.Y.3d
57, 67 (2012) (during the pendency of a criminal case, the prosecution may name the
“generic kinds of documents” and “generic risks” of disclosure because particular kinds
of disclosure during criminal cases would generally interfere with the proceedings);
Legal Aid Soc} v. N.Y. City Police Dep’t, 274 A.D.2d 207, 214 (1st Dept. 2000) (“FOIL
disclosure during the course of the prosecution would not only ‘interfere with the
orderly process of disclosure’ set forth in CPL article 240, it would also create a
22
substantial likelihood of delay in the adjudication of that proceeding, thereby effecting
a chill on that prosecution”) (internal citations omitted). Premature FOIL requests
from criminal defendants, if allowed, could also potentially create substantial delays in
a criminal proceeding and improperly circumvent the criminal appeals process because
the defendant-requestors would be entided to administrative FOIL appeals and
C.P.L.R. Article 78 procedures. See Pittari, 258 A.D.2d at 206-07.
Thus, while the Glomar doctrine would not impact a criminal defendant’s ability
to obtain documents necessary to prepare for trial because he or she cannot use FOIL
requests to obtain discovery, its use could benefit a defendant. If a third party sent a
FOIL request to a District Attorney’s Office requesting documents relating to an
investigation of an individual that had not yet resulted in an arrest, the District
Attorney’s Office would be forced to acknowledge the existence of the investigation
while likely denying access to those documents pursuant to Public Officers Law
§ 87(2)(e)(i). The acknowledgment that the investigation exists could result in
prejudicial pre-arrest publicity that could jeopardize the defendant’s ability to have a fair
trial. That potential harm could be avoided if, in the proper circumstances and with
proper safeguards in place, the District Attorney’s Office were allowed to use a Glomar-
type response.
In addition, while the possibility that an innocent person has been convicted after
trial is a dire result that DAASNY members actively seek to avoid, the application of
the Glomar doctrine to FOIL requests for documents from completed prosecutions
23
would not deprive a defendant who has a colorable claim of actual innocence from
obtaining documents necessary to pursue his or her claim. First, it is important to
reiterate that the use of the Glomar doctrine would not deprive a requestor of any
documents to which he or she would otherwise be entitled because invocation of a
Glomar response must be tethered to an existing FOIL exemption. Rather, a Glomar
response would simply allow the responding agency, in limited and appropriate
circumstances, to avoid acknowledging the existence of exempt documents.
Second, several mechanisms are in place that ensure that the invocation of the
Glomar doctrine would not deprive an innocent defendant of access to documents
related to the claimed innocence. The Legislature has addressed the discovery that
convicted defendants, who are no longer presumed to be innocent and to whom the
presumption of guilt applies, may seek in the context of an actual-innocence claim.
Criminal Procedure Law § 440.30(1)(b) allows a court to order reasonable discovery of
property, as defined by C.P.L. § 240.10(3), to defendants who were convicted after trial,
who have come forward with credible claims of actual innocence, and who have been
granted an evidentiary hearing in regard to a C.P.L. § 440.10 motion to vacate judgment.
Third, DAASNY members take the possibility of wrongful convictions seriously
and have implemented measures that should alleviate concerns that the use of a
Glomar-type response could thwart an attempt to vacate a wrongful conviction. For
instance, various DAASNY members have conviction integrity or conviction review
24
units tasked with reviewing convictions.15 Furthermore, DAASNY has created a best-
practices committee to, in part, respond to wrongful-conviction issues and to ensure all
prosecutors in the State are advised about ethical duties and disclosure obligations. See
Daniel Kroepsch, Prosecutorial Best Practices Committees and Conviction Integrity Units: How
Internal Programs Are Fulfilling The Prosecutor’s Duty To Serve Justice, 29 Geo.J. Legal Ethics
1095, 1106-09 (Fall 2016). As such, multiple safeguards exist that would ensure that
the use of a Glomar-type response would not prevent an innocent defendant from
challenging a wrongful conviction.
In sum, this Court should uphold die First Department’s recognition diat a
Glomar-type response is applicable to New York’s Freedom of Information Law. The
application of the Glomar doctrine to New York’s public-records access law effectuates
the legislative intent of exempting certain information from public disclosure. In
ls See, eg, New York State Office of the Attorney General’s Conviction Review Board Page,
https://ag.ny.gov/bureau/conviction-review-bureau )(last visited on October 3, 2017) (“statewide
initiative to address issues related to wrongful convictions”);
Brooklyn District Attorney’s Office Conviction Review Unit Page, http://
www.brooklynda.org/conviction-review-unit/ (last visited October 3, 2017) (unit is “tasked with
looking into old, questionable convictions”);
Bronx County District Attorney’s Office Bureaus and Units Page, http://bronxda.
nyc.gov/html/units/units.shtml (last visited October 3, 2017) (Conviction Integrity Unit “reviews
post-judgment claims of actual innocence and wrongful conviction in our most serious cases”);
Nassau County District Attorney’s Office, 2016 Annual Report, page 32 (2016),
https://www.nassaucountyny.gov/DocumentCenter/View/17952 (last visited October 3, 2017)
(“Conviction Integrity Unit reviews and thoroughly investigates post-conviction claims of innocence.
The Unit also keeps apprised of developments in forensic science, which could affect the use, import,
or interpretation of evidence in past cases.”);
New York County District Attorney’s Office Conviction Integrity Program,
http://manhattanda.org/preventing-wrongful-convictions (last visited on October 3, 2017) (“The
Program is comprehensive in scope, and is unique in purpose: not only does it address claims of actual
innocence, it also seeks to prevent wrongful convictions from occurring.”).
25
reaching such a determination, the Court would join the uniform recognition by federal
and state appellate courts that a Glomar-type response is applicable to requests made
for documents pursuant to open-records laws, even in the absence of specific statutory
authorization for such a reply. For these reasons, and for all the reasons detailed in
respondent’s brief, DAASNY, as amicus curiae, urges this Court to affirm the order of
the Appellate Division.
26
CONCLUSION
In Light Of The Foregoing. Amicus Respectfully Urges This Court To Affirm
The Order Of The Appellate Division. First Department.
Dated: Mineola, New York
October 6, 2017
Respectfullysubmitted,
SGOTT D. McNAMARA
District Attorney, Oneida County
President, DistrictAttorneys Association
Of the State of New York
do Nassau County District Attorney
262 Old CountryRoad
Mineola, New York 11501
Telephone: (516) 571-3732; Fax: (516) 571-3806
Email: AndreaDiGregorio@nassauda.org
/5/By:
Andrea M. DiGregorio
Assistant District Attorney
Nassau County
27
CERTIFICATE OF COMPLIANCE WITH 22 NYCRR § 670.10.3(f)
ANDREA M. DiGREGORIO does hereby certify as follows: This brief was
prepared by computer; the body of the brief is double-spaced and utilizes a
proportionatelyspaced typeface (Garamond) of 14-point size; the footnotes are single¬
spaced and utilize the same typeface and 12-point size; and, according to the word count
of the word processing system used (Microsoft Word 2016), the brief contains 6,549
words, exclusive of the cover, table of contents, table of authorities, certificate of
compliance, and proof of service.
Dated: Mineola, New York
October 6, 2017
/5/
ANDREA M. DiGREGORIO
Assistant District Attorney