In the Matter of Perry Bellamy, Appellant,v.New York City Police Department, Respondent.

Brief

N.Y.January 11, 2013

MICHAEL A. CARDOZO Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 SHARYN ROOTENBERG Assistant Corporation Counsel Phone: (212) 788-1049 Fax: (212) 788-1054 SRootenb@law.nyc.gov December 26, 2012 Andrew W. Klein, Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, N.Y. 12207 Re: Matter of Bellamy v. NYC Police Department Dear Mr. Klein: I am of counsel to Michael A. Cardozo, Corporation Counsel of the City of New York, and attorney of record for the respondent, New York City Police Department (“Police Department”). Pursuant to this Court’s request, this letter brief is submitted under section 500.11 of the Court’s Rules of Practice. Background On October 19, 1985, a New York State parole officer “was murdered execution-style as he drove down a street in Jamaica, Queens” (152).1 Mr. Bellamy, the appellant herein, was arrested for the murder and made a video taped 1 Unless otherwise indicated, numbers in parenthesis refer to pages in the Record on Appeal filed in the First Department. statement under questioning by Queens County assistant district attorneys (152). In his statement, Bellamy admitted that [o]n the day of the murder, he was instructed to meet Officer Rooney at the pre-arranged location, where he got into the Officer’s car and directed him toward another location, where the attack would occur. Bellamy named the other purported participants in the murder plan and identified Officer Rooney’s assailants as Howard “Pappy” Mason, Chris “Jughead” Williams and Jeffrey “Ruff” Ruffin, all of whom were members of a Jamaica, Queens-based drug organization headed by Lorenzo “Fat Cat’ Nichols. According to Bellamy, after he had directed Officer Rooney toward the pre-arranged location, Jeffrey Ruffin jumped from some bushes and opened fire at Officer Rooney’s car. Nearly simultaneously, Chris Williams and Howard Mason pulled alongside the Officer’s car and Mason opened fire, striking Officer Rooney. Bellamy then purportedly jumped into Williams and Mason’s car and fled the scene (152-153).2 Mr. Bellamy’s pre-trial motion to suppress his statement was denied by the criminal court, after a hearing, and that determination was subsequently affirmed on appeal. People v. Bellamy, 160 AD2d 886 (2d Dept. 1990). During his criminal trial, the State’s evidence established that Mr. Bellamy lured Officer Rooney to a Queens park in exchange for $5000, where associates of Lorenzo Nichols, a notorious drug dealer who had ordered Rooney’s murder from his jail cell, shot Rooney dead as he sat in his car. Bellamy v. Cogdell, 974 F2d 302, 303 (2d Cir. 1992). Mr. Bellamy testified in his own 2 Both Nichols and Williams pleaded guilty to state and federal charges in connection with Officer Rooney’s murder, Mason was indicted in Queens County and stood trial but the jury hung, and Ruffin was never charged in connection to the murder (153 FN 3). 2 defense during the trial, giving “a similar though somewhat less incriminating version of his involvement in the circumstances surrounding Officer Rooney’s murder” than his version on video tape (153). A jury ultimately convicted Mr. Bellamy of murder in the second degree and criminal possession of a weapon in the second degree (153). Since then, Mr. Bellamy has been on a quest to overturn his criminal conviction and/or obtain a new trial, claiming ineffective assistance of counsel3 and “actual innocence” (see App. Ltr. Br. at 1).4 On July 17, 1997, Mr. Bellamy requested that the Police Department produce, under the Freedom of Information Law (“FOIL”), all documents relating to his arrest including police reports, memo book entries, and witness statements (42-43). He commenced an Article 78 proceeding to compel disclosure on or about March 24, 1998 (18, 22-24). Since then, this case has had a long and tortured procedural history.5 Relevant Facts Following a prior order of the First Department issued on or about April 15, 2009 that remanded this matter back to the lower court, the Supreme Court directed the Police Department to “promptly submit to this Court for in camera inspection unredacted copies of the documents at issue” (14). Since 3 In June 1987, Mr. Bellamy moved to set aside his conviction pursuant to N.Y. Criminal Procedure Law (“CPL”) § 440.10(a) and (h) alleging ineffective assistance of counsel, amongst other things. See People v. Bellamy, Ind. No. 5382-85 (Queens Co. Sup. Ct. 1989). After a hearing, the lower court denied the motion in a memorandum and order dated January 31, 1989, finding that Bellamy’s trial counsel was fit to conduct the trial. Thereafter, Mr. Bellamy filed a writ of habeas corpus, which was denied. See Bellamy v. Cogdell, 802 FSupp 760 (EDNY 1991), reversed and remanded, 952 F2d 626 (2d Cir. 1991), vacated, on rehearing En banc, 974 F2d 302, 308 (2d Cir. 1992), writ of cert. den., 507 US 960 (1993). (See Police Department’s First Department Reply Brief at pp. 10-13 for additional details). 4 Mr. Bellamy’s unsupported claim of “actual innocence” is largely based on the statements of others involved in the murder scheme who disavowed Bellamy’s involvement therein during a federal narcotics prosecution (152-154). For a more in-depth summary of Bellamy’s “actual innocence” claim, this Court is respectfully referred to the Police Department’s First Department Reply Brief (at pp. 13-16). 5 For a detailed recitation of the procedural history, this Court is respectfully referred to the Police Department’s First Department Appellant’s Brief (at pp. 4-10). 3 the burden [was] on [the Police Department] to establish particularized exemptions…[the court also ordered it to] submit with the documents a description of any proposed redactions and an affirmation setting forth a particularized basis for any claimed exemption applicable to the proposed redactions. [The court further ordered the Police Department to] serve Mr. Bellamy with the affirmation and a copy of the documents with the proposed redactions… (62). In ordering the Police Department to serve Mr. Bellamy with the particularized exemptions rather than filing them in-camera for the court’s review only, the court “limited [] the amount of detail [the Police Department could] set forth to make this showing” (83-84). Hence, the Police Department asserted that: [t]he information…which [it] proposed to redact is exempt from disclosure [1.] pursuant to N.Y. Public Officers law §§ 87(2)(b) and 89(2)(b), in that disclosure would constitute an unwarranted invasion of personal privacy of the victims, witnesses and their families; [2.] pursuant to N.Y. Public Officers Law § 87(2)(f), in that disclosure could endanger the life or safety of a victim, witnesses or their families; and [3.] pursuant to N.Y. Public Officers Law § 87(2)(e)(iv), in that the documents are compiled for law enforcement purposes and disclosure would reveal non-routine criminal investigative techniques and procedures (84). The Police Department emphasized that it was “not claiming a blanket exemption for the entirety of each document” that contained personal information regarding “the victim, his family members, a witness or their family members;” instead, it was advocating “that the specific identifying information [be] exempt and the statements of those witnesses [] be redacted” (85). The Police Department took the position that 4 [r]eleasing the identities and personal information of the individuals who spoke with the police, and the information of some of their families, particularly in connection with the information that they provided, would constitute an unwarranted invasion of personal privacy (85-86). Similarly, the Police Department argued that “many of the individuals interviewed were unable to provide information relevant to the murder” (86). Analogizing the summaries of their statements to those of non-testifying witnesses — whose statements are already considered “confidential and not disclosable under FOIL” by the Appellate Divisions of this State — the Police Department argued that the statements of individuals who did not provide information relied upon during the course of the investigation should also be kept confidential (86). Therefore, “their names, addresses, social security numbers, physical descriptions, information concerning their employment and families must not be disclosed” (86). First Supreme Court Decision By order of the lower court filed on July 31, 2009, presumably after the court conducted an in-camera inspection of the documents responsive to Mr. Bellamy’s FOIL request, the Police Department was ordered to disclose all of the documents with certain redactions (5-8). The lower court [could] not see how [“disclosure of the names of the witnesses and their statements”] would constitute an unwarranted invasion of personal privacy pursuant to §§ 87[.]2(b) and § [sic] 89(2)(b) of the New York Public Officers Law. Nor [was the court willing to] find, after reading the statements, that providing these statements to Bellamy would endanger the life or safety of the victim’s family or witnesses or their families, pursuant to §§ 87(2)(e)(iv) of the same law 5 (7). Although the trial court ordered disclosure of all the documents, it seemingly recognized that there were privacy interests involved to the extent that it also ordered the redaction of “all addresses, ages or dates of birth, employment information, telephone numbers, etc.,” but simultaneously directed that the “names of the individuals as well as their statements [] be left intact” (7). After the lower court issued its order, the Police Department provided petitioner with 31 pages of redacted records (see 63b), but withheld the following 7 documents — all Complaint Follow-up Reports (also referred to by the Police Department as “DD-5” forms) — on personal privacy and safety grounds: ■ Document 3: a DD-5 dated December 9, 1985 containing the name and statement of a non-testifying witness, identifying information about other individuals, and describing existing personal relationships as well as medical information about a third individual. ■ Document 4: a DD-5 dated December 9, 1985 describing police interaction, containing the names, genders and races of non-testifying witnesses, the length of time these individuals resided at a their addresses, and the name of a person the police sought to interview. ■ Document 5: a DD-5 dated November 6 containing the name, sex, race and statement of a non-testifying witness. ■ Document 6: a DD-5 dated December 11, 1985 containing the names, statements, sexes and races of third party/non-testifying individuals, medical information (protected by HIPPA), an address, and a vehicle license plate number belonging to a third party non-witness. ■ Document 7: a DD-5 dated February 17, 1986 containing the name, statement, and employment status of a non-testifying witness, the name of another person the police wanted to interview, along with the names of that person’s family members. ■ Document 14: a DD-5 dated October 11, 1985 containing the names and statements of non-testifying witnesses, including medical information (protected by HIPPA) about a particular individual. ■ Document 19: a DD-5 dated October 11, 1985 containing the name, statement, and affiliation of a non-testifying witness. (See 9). 6 On or about August 31, 2009, the Police Department moved to renew and reargue in the lower court, but limited the motion to the 7 remaining withheld documents (see 69). Renewal was based on newly discovering that the individuals named in those documents never testified at Mr. Bellamy’s criminal trial, thus demonstrating that “disclosure of these individuals and their statements would constitute an unwarranted invasion of their personal privacy” (14). Reargument was sought to determine whether these documents, even with court ordered redactions, should be exempt pursuant to New York Public Officers Law §§ 87(2)(b) and 89(2)(b), as disclosure would constitute an unwarranted invasion of personal privacy” (73). Second Supreme Court Decision In an order entered November 18, 2009, the lower court granted the Police Department’s motion to renew and reargue but denied the relief requested in the motion to renew and granted reargument only to clarify its prior order (12-16). The lower court discounted the Police Department’s newly discovered evidence that the individuals named in the records did not testify at trial (15). It “[did] not see why [based on their failure to testify at Bellamy’s trial,] such a conclusion [concerning their privacy was] an irresistible one from this fact alone” (15). The court speculated that “the prosecutor trying the case may have believed their statements were irrelevant or not particularly helpful in trying the case,” and commented in a footnote that it “detect[ed] nothing particularly material or helpful to the prosecution in them” (15, FN1). Finding that “nothing in any of these statements [] promise[d] confidentiality” and no reason to infer “that such a promise was assumed,” the court denied the Police Department’s motion for renewal (15, FN1). Although the court granted reargument, it was “only to clarify…that all information about the witnesses (described in the [first] decision as “etc”) was to be redacted except for names and content” (16).6 The Police Department appealed both lower court decisions and orders to the First Department, arguing that disclosure of the remaining 7 documents would result in an unwarranted invasion of personal privacy and would 6 What this clarified, if anything, is a mystery. A plain reading of the two lower court orders together appear to require the redaction of very specific personal information belonging only to the individuals who agreed to be interviewed by police, leaving un-redacted the personal and private information disclosed by those individuals concerning third parties -- particularly in light of the lower court’s directive that the “content” of the witnesses’ statements be left un-redacted (see 16). 7 endanger the lives and safety of others under Public Officer Law §§ 87 and 89. The Police Department emphasized that this case involved violent gang members, and that abiding by the lower court’s order to leave intact the “names of the individuals [who spoke to the police,] as well as their statements” would violate Public Officers Law §§ 87 and 89 where none of these individuals testified at the criminal trial and an in-camera review of their statements demonstrates that most failed to provide the police with any first-hand information of value to the homicide investigation.7 The Original First Department Decision On January 4, 2012, the First Department affirmed the lower court’s orders based upon Public Officers Law § 87(e)(iii) — the confidential source exemption — rather than addressing the serious privacy and safety implications of releasing the names and statements of individuals who assisted the police during the course of a gang-related homicide investigation. In so doing, the First Department focused exclusively on whether the Police Department alleged “that any of the non-testifying witnesses were promised anonymity in exchange for their cooperation in the investigation.” Bellamy v. New York City Police Dept., 80 AD3d 442 (2011). Finding that it had not, the First Department concluded that they did not qualify for protection as “confidential sources.” Id. at 443. The Police Department, on or about February 9, 2012, moved to reargue and alternatively sought leave to appeal to this Court. It argued that the First Department’s decision to order disclosure of the documents without redaction of the interviewees’ names and statements merely because they did not fall within the conventional definition of “confidential informants” constituted a misapprehension of the law and stood in direct conflict with prior decisions of the First Department and other Appellate Divisions in this State. It argued that the very nature of the information documented in the 7 withheld documents implicitly demonstrated that, regardless of their expectations of confidentiality at the time, every individual who cooperated with, and spoke to, the police did so under circumstances evincing an expectation of personal privacy. Thus, at a minimum, 7 Although the documents at issue were initially disclosed to Mr. Bellamy with redactions, the lower court echoed Mr. Bellamy’s sentiment that they were “redacted to such an extent as to be meaningless” since Bellamy was “not particularly interested in information which could impact on the privacy of witnesses” and was more concerned with “the names of the witnesses and their statements” (6-7). 8 the First Department should have concluded that disclosure of the names and statements therein would necessarily result in an unwarranted invasion of their personal privacy and would endanger their lives and the safety of others. The First Department Decision On Appeal to this Court By Decision and Order entered on September 8, 2011, the First Department granted reargument and recalled and vacated its January 4, 2011 decision and order. Bellamy v. New York City Police Dept., 87 AD3d 874, 875 (1st Dept. 2011). It simultaneously entered a new Decision and Order (one paper) denying Mr. Bellamy’s FOIL request for the documents, finding that disclosure was exempt pursuant to the privacy and endangerment to life and safety exemptions of the Public Officers Law. In so doing, the First Department correctly found, based upon its in-camera review of the documents, that [t]he documents [] reflect the identities of certain persons who spoke with police during the course of an investigation into this gang-related homicide ordered from prison. Because these individuals never became testifying witnesses, neither [Mr. Bellamy], nor anyone else, would know about them otherwise. It is therefore possible that the lives of persons who spoke with police could be endangered from the release of identifying information. After learning the names, all one would need is an Internet connection to determine where they live and work. Moreover, insofar as the documents mention individuals who did not provide information relied on during the investigation, that information is exempt from FOIL under the privacy exemption Id., 87 AD3d at 875 (citations omitted). It was “based on the[se] facts and circumstances” that the First Department denied Mr. Bellamy’s request for unredacted versions of the documents. Id. at 876. A copy of the First Department’s Order, with Notice of Entry, was served on Mr. Bellamy via regular mail on September 8, 2011 (see Order with Notice of Entry and affirmation of mail service annexed hereto as Exhibit “A”). 9 Argument 1. This Appeal Should Be Dismissed For Lack of Subject Matter Jurisdiction. As a preliminary matter, gross procedural errors in the First Department rendered Mr. Bellamy’s motion seeking leave to this Court untimely; hence, this Court is without subject matter jurisdiction to entertain this appeal. On or about October 11, 2011, Mr. Bellamy served and filed a Notice of Motion in the First Department purporting to seek leave to reargue or permission to appeal to the Court of Appeals from that court’s September 8, 2011 Decision and Order.8 Rather than annexing an affidavit in support of his motion detailing the basis for the relief being sought, Mr. Bellamy requested a 120 day extension of time to further prepare and file "relevant papers in support of these applications," claiming that his recent transfer to another correctional facility prevented him from consulting with someone in the prison’s law library who could assist him in preparing his papers. The Police Department opposed the motion in its entirety, arguing that Mr. Bellamy failed to state a basis for granting the motion as required by the First Department’s own rules (see § 600.14(b)) and thus the motion was procedurally defective. It also opposed the extension of time Bellamy requested to submit a substantive affidavit in support of his motion, as granting such relief would violate CPLR 5513(b) (requiring such motions to be made within 30 days) and would be tantamount to an unauthorized extension of the statutory period under CPLR 5514(c) (“[n]o extension of time shall be granted for taking an appeal or for moving for permission to appeal,” except under limited exceptions not applicable to this case9). The Police Department also opposed the motion on the merits, asserting that the First Department had already reviewed the relevant facts and legal arguments twice, and that no further review of the case was warranted. 8 For the Court’s convenience, copies of the parties’ First Department motion papers were included on the CD submitted to this Court by the Police Department and may be accessed from the file titled “AD motion practice.” 9 The limited exceptions include CPLR 1022 (15 days after substitution of parties), CPLR 5514(a) (wrong method of appeal), CPLR 5514(b) (death, suspension, removal or disability of appellant’s attorney), and CPLR 5520(a) (service or filing of notice of appeal timely, but not both). 10 By letter to Mr. Bellamy dated November 21, 2011, the First Department “adjourned” his motion for an enlargement of time to May 17, 2012 and granted him permission to file “reply papers” (not ordinarily allowed under the First Department’s Rules of Court) on or before March 16, 2012 “addressing the arguments made in the papers filed by counsel for the New York City Police Department in opposition to [his] motion.” The First Department also, sua sponte, granted the Police Department leave to file a sur-reply on or before May 17, 2012, “after which [the] Court [would] consider [Mr. Bellamy’s] request for leave to appeal on the merits.”10 On or about March 8, Mr. Bellamy served and filed what the First Department had denoted as “reply papers” but that Mr. Bellamy wrongly labeled an “Affidavit in Support of [his] Motion to Reargue, For leave to appeal, and for an Enlargement of Time.” Although the First Department had directed him to address the arguments raised by the Police Department, Mr. Bellamy’s “reply papers” failed to do so. Nowhere did Mr. Bellamy address the Police Department’s assertion that the First Department lacked the discretion and authority to extend the 30 day statutory limitations under CPLR 5514(c), nor did he dispute that his original filing was facially sufficient and did not conform to the First Department’s rules. Rather, he conceded that he failed to timely submit his motion in its entirety (see Bellamy AD Reply at ¶ 11), and reiterated the excuse that his unexpected transfer to another correctional facility resulted in difficulty finding someone willing to assist him in drafting his papers (Bellamy AD Reply at ¶ 9). As per the First Department’s instructions, the Police Department served and filed a “sur- reply,” pointing out that Mr. Bellamy failed to address key Police Department arguments, including that the motion was itself time-barred. In an order issued on July 17, 2012, the First Department “denied, as moot,” Bellamy’s request for an enlargement of time to cure the defects in his moving papers, but granted his motion seeking leave to appeal to this Court. From a practical standpoint, however, the First Department unlawfully extended the 30 day statutory period enumerated in CPLR 5513(b) for making such motions.11 10 A copy of the First Department’s November 21, 2011 letter may also be accessed from the file titled “AD motion practice” located on the CD submitted to this Court. 11 § 600.14(b) of the Rules of the First Department states: “[a]pplications for permission to appeal to the Court of Appeals shall be made in the manner and within the time prescribed by CPLR 5513(b),” which requires “motion[s] for permission to appeal [] be made within thirty days.” 11 Since CPLR 5514(c) constrains courts from granting extensions of time to file motions seeking leave to appeal (with few statutory exceptions not applicable here, see footnote 9, supra), the First Department abused its discretion and exceeded its authority and jurisdiction in granting Mr. Bellamy leave to appeal to this Court. Accordingly, this appeal should be dismissed as untimely as a matter of law. 2. Standard of Review: Abuse of Discretion. In the event that this Court finds jurisdiction to entertain this appeal notwithstanding the procedural improprieties, it must review the First Department’s underlying FOIL determination for an abuse of discretion only. As this Court explained in DeZimm v. Connelie, 64 NY2d 860 (1985), where [t]he determinations made below…plainly involved an application of the courts’ discretion to their inspection of the materials in dispute[,] …the [FOIL] determination of the Appellate Division will be disturbed by this [C]ourt only where there is an abuse of discretion as a matter of law Id. at 861-862. Although the First Department, in granting leave to appeal, certified that “its determination was made as a matter of law and not in the exercise of discretion,” that court’s after-the-fact characterization of its decision is not dispositive of the issue. Indeed, the First Department’s certification is belied by the explicit language contained in its September 8, 2011 order that states: “based on the facts and circumstances, [it] den[ies] petitioner’s FOIL request seeking unredacted versions of the documents.” Bellamy v. New York City Police Dept., 87 AD3d 874, 876 (1st Dept. 2011). Notwithstanding the First Department’s certification that its decision was “on the law,” the decision itself demonstrates that the First Department substituted its discretion for that of the lower court. See, e.g., Matter of Von Bulow, 63 NY2d 221, 225 (1984) (finding that “[t]he determinations made below regarding whether disclosures of particular sections of the Administrative Manual would reveal criminal investigative techniques and procedures plainly involved an application of the courts’ discretion to their inspection of the materials in dispute” despite Appellate Division’s characterization of decision as based on law alone); Brady v. Ottaway Newspapers, Inc., 63 NY2d 1031, 1032-1033 (1984) (finding that where the Appellate Division “did its own balancing of the special circumstances and disagreed with Special 12 Term’s view, on the facts, that simply redacting names would sufficiently protect respondent’s interests,” the decision “indicates an exercise of discretion” and not one based on law alone). As in Von Bulow and Ottaway Newspapers, this Court must look past the First Department’s certification and examine the underlying decision for indications that the court exercised its discretion in reaching its determination. Here, as in DeZimm, 64 NY2d at 860, the lower court conducted an in-camera inspection of the items at issue and ordered disclosure. The appellate division, vested with the same power and discretion as the lower court, then conducted its own in-camera review and substituted its own discretion to reach a different conclusion, finding that disclosure would run counter to the exemptions contained in the Public Officers Law. In both instances, while the lower court “reached one conclusion, …the Appellate Division, vested with the same power and discretion…reached another.” Id. Since this Court has held that these types of determinations are an exercise of discretion, the First Department’s certification to the contrary is of no moment. The First Department indisputably engaged in its own balancing test, which may only be reviewed for an abuse of discretion as a matter of law. And Mr. Bellamy, like the appellant in DeZimm, has not demonstrated, let alone argued, that the First Department abused its discretion as a matter of law. Based upon the record below, this Court cannot hold that the First Department abused its discretion as a matter of law in substituting its discretion and judgment for that of the lower court. “Hence, the only remaining question certified is whether the Appellate Division had the power to [deny] the requested relief.” Sims v. Manley, 69 NY2d 912, 914 (1987). This Court should “conclude that it had this power, and pass on no other issue.” Id. at 914; see DeZimm, 64 NY2d at 862 (affirming appellate division decision where appellant did not contend that the court abused its discretion as a matter of law).12 12 Based upon the serious implications of the issues presented, should this Court be inclined to reject the standard of review advocated herein, the Police Department respectfully requests a new schedule for normal briefing in this case. 13 3. The First Department Had the Discretionary Power to Deny the Relief Sought and Did Not Abuse Its Discretion as a Matter of Law in so Doing. The First Department had sufficient basis in the record to conclude that the Police Department “fulfill[ed] its burden under Public Officers Law § 89(4)(b) to articulate a factual basis for the exemption[s].” Lesher v. Hynes, 19 NY3d 57, 67-68 (2012). The Police Department “identif[ied] the generic kinds of documents for which the exemption[s] [were] claimed, and the generic risks posed by disclosure of these categories of documents.” Id. at 67. It specifically identified, by assigned number, those Complaint Follow-up Reports it sought to withhold, and articulated factual bases for exerting the privacy exemption and endangerment to the life and safety of others exemption, identifying the generic harm that could result from disclosure of such personal information to a known a convicted murderer and gang-associate serving a long prison sentence. The First Department correctly held, after an in-camera review, that the documents in question were exempt pursuant to the privacy and endangerment to life and safety exemptions of Public Officers Law §§ 87(2)(b) and (f). As this Court explained in Gould v. New York City Police Department, 89 NY2d 267, 278 (1996), “[t]he statutory exemptions contained in the Public Officers Law…strike a balance between the public’s right to open government and the inherent risks carried by disclosure of police files.” In seeking to strike such balance in this case, the risks inherent with disclosure -- including the unwarranted invasion of personal privacy and the endangerment of the lives and safety of both those men and women who aided or attempted to aid the police investigation and/or third parties whose names or other identifying information may have been unwittingly recorded in the Complaint Follow-up Reports -- greatly outweighed any interest that the public at large had in being able to review this kind of information. As the First Department concluded: The documents here reflect the identities of certain persons who spoke with police during the course of an investigation into this gang-related homicide ordered from prison. Because these individuals never became testifying witnesses, neither [Bellamy], nor anyone else, would know about them otherwise. It is therefore possible that the lives of persons who spoke with police could be endangered from the release of identifying information. After 14 learning the names, all one would need is an Internet connection to determine where they live and work. Moreover, insofar as the documents mention individuals who did not provide information relied upon during the investigation, that information is exempt from FOIL under the privacy exemption [citations omitted] Bellamy v. New York City Police Dept., 87 AD3d 874, 875 (1st Dept. 2011). The plain language of Public Officers Law § 87(2)(f) states that access to records may be denied “if disclos[ure] could endanger the life or safety of any person.” Based upon the plain meaning of the phrase “could endanger the life or safety” of another, the Appellate Divisions of this State have long held that only a possibility need exist that the release of such information could endanger the lives or safety of individuals. See Dobranski v. Houper, 154 AD2d 736, 738 (3d Dept. 1989) (identifying information may be redacted where there is a possibility that disclosure would endanger lives or safety); Johnson v. New York City Police Dept., 257 AD2d 343, 348 (1st Dept. 1999) (there need not be a “specific showing...that petitioner, who is presently incarcerated, has threatened or intimidated any of the witnesses in his criminal case…in order to warrant redaction of certain identifying information…certain information found in DD-5s could, by its inherent nature, give rise to the implication that its release, in unredacted form, could endanger the life and safety of witnesses or have a chilling effect on future witness cooperation”). Simply put, “based on the facts and circumstances” of this case, to wit: where the petitioner was convicted of murdering a parole officer and has well documented ties to violent gang members, the First Department did not abuse its discretion in holding that providing him and, by extension, his criminal associates, with the documents at issue could necessarily endanger the lives and safety of those individuals who spoke with the police or who were otherwise mentioned therein, thus triggering the exemption of Public Officers Law § 87(2)(f).13 So finding was not an abuse of discretion particularly since none of the 13 Attempts to “eliminate” witnesses by whatever means necessary is a tactic oft used by gangsters: One needs look no further than the local newspapers for proof that “killers have been able to escape prosecution by silencing witnesses with threats or in some cases, bullets.” Kocieniewski, David, “Few Choices In Shielding Of Witnesses.” New York Times Oct. 28, 2007, late ed., sec. A:0; Lee, Trymaine, “Defense Lawyer Charged With Witness Tampering.” New York Times Sept. 11, 2008, late ed., sec. B:0. 15 individuals who were interviewed by the police provided information relevant enough to warrant their testimony at trial, and others were unable to provide any information whatsoever pertaining to the homicide investigation. The Appellate Divisions in this State have long held that “statements of [] witnesses who spoke with law enforcement personnel” are properly withheld “pursuant to the public interest privilege.” Rodriguez v. Johnson, 66 AD3d 536 (1st Dept. 2009) (also holding that the district attorney must first “delete[] identifying characteristics of [testifying] witnesses from certain documents on the ground that disclosure would constitute an unwarranted invasion of personal privacy”); De Oliveira v. Wagner, 274 AD2d 904, 905 (3d Dept. 2000) (“information pertaining to contacts with individuals who did not provide information [are] properly deemed exempt based on the privacy exemption of FOIL”); Johnson v. Hynes, 264 AD2d 777 (2d Dept. 1999) (“the statements of nontestifying witnesses are confidential and not disclosable under FOIL”); Spencer v. New York State Police, 187 AD2d 919, 922 (3d Dept. 1992) (“summaries of the statements of witnesses who did not testify at trial, which are contained in the investigatory file, as well as the direct statements of those witnesses should be exempted from disclosure”); see Public Officers Law § 87(2)(e)(iii). Thus, under the facts and circumstances of this case, the First Department did not abuse its discretion in holding that the Police Department “met its burden of establishing that the documents at issue f[e]ll within an exemption from disclosure as provided in Public Officers Law § 87(2)” and consequently denying Bellamy’s FOIL request for un-redacted versions of the documents. Bellamy, 87 AD3d at 875. 4. Appellant’s Arguments Are Without Merit. On appeal to this Court, Mr. Bellamy argues that “even if [the Police Department] met [its] burden of proof of entitlement to the relevant withholding provisions,” he was “nonetheless entitled to access the withheld records” because “[i]t has been [his] consistent position that the requested records contain exculpatory information” (App. Ltr. Br. at 2). In so arguing, Mr. Bellamy wholly misapplies the balancing test this Court articulated in Gould v. New York City Police Department, 89 NY2d 267, 278 (1996), erroneously counterbalancing the inherent risks involved in disclosing police files with his personal interests rather than the public’s right to open government. Mr. Bellamy also forgets that “the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced…nor restricted…because he is also a litigant or potential litigant.” John P. v. Whalen, 54 NY2d 89, 99 (1981) (citations omitted). 16 Significantly, in order to preserve the integrity of this case, the sum and substance of the withheld DD-5s’ have never been divulged to Mr. Bellamy. Consequently, his pure speculation and surmise that they contain exculpatory information is profoundly disconnected from reality. Even the Supreme Court, which consistently ruled in Mr. Bellamy’s favor, noted early on “the limited usefulness of [the] information [contained in the 36 documents responsive to the original FOIL request] to the petitioner” (144), and more recently commented that, “from [its] review of the documents, it can detect nothing particularly material or helpful [in them] to the prosecution [of Mr. Bellamy’s criminal case]” (15, FN1). So too did the First Department find, after conducting its own in-camera review, that “the documents mention individuals who did not provide information relied upon during the [criminal] investigation.” Bellamy, 87 AD3d at 875. That much of the information contained in these documents has little, if anything, to do with Mr. Bellamy’s underlying crime and/or conviction is compounded by the fact that none of the people whose statements are documented in these police records were called to testify during his criminal trial. Thus, Mr. Bellamy’s baseless hyperbole that the 7 remaining documents “contain information tending to exculpate [him] of the crime for which he remains incarcerated” is insufficient to demonstrate that the First Department abused its discretion in finding that the Police Department met its burden of establishing that the documents fell within the privacy and safety exemptions of Public Officers Law §§ 87(2)(b) and (f).14 So too do the nature of the statements themselves give rise to the inference that confidentiality was assumed. “For example, when circumstances such as the nature of the crime investigated and the witness’ relation to it support an inference of confidentiality, the Government is entitled to a presumption.” United States DOJ v. Landano, 508 US 165, 181 (1993) (involving similar exemption to disclosure under the Federal Freedom of Information Act). It is 14 Mr. Bellamy’s reliance on Brady v. Maryland, 373 US 83 (1963), for the proposition that “due process considerations required the records to be disclosed during the relevant criminal proceedings” and that he has an ongoing “due process right[]” to access them (see App. Ltr. Br. at 2), is misplaced. This is not the proper forum to allege that purported exculpatory material was withheld by the district attorney during his criminal trial—a conviction appealed and affirmed by the Second Department years ago. Also misguided is Mr. Bellamy’s assertion that the First Department’s decision in this FOIL case has any impact on “discovery and due process provisions applicable to criminal proceedings” (App. Ltr. Br. at 5). These separate and distinct areas of law operate independently. 17 precisely information of the nature contained in the DD-5s that Public Officers Law §§ 87(2)(b) and 89(2)(b) seek to protect from disclosure. Next, Mr. Bellamy argues that “substantial public interests mitigate in favor of disclosure,” alleging that “public accountability” warrants disclosure because he somehow demonstrated “ample proof of a wrongful conviction” (App. Ltr. Br. at 3). Contrary to his assertions otherwise, Mr. Bellamy has never come forward with “ample proof of a wrongful conviction,” despite multiple attempts to do so.15 Moreover, both the Supreme Court and First Department reviewed the documents in-camera, and neither concluded that they contained exculpatory or otherwise material information. Regardless, “[t]he public policy concerning governmental disclosure is fixed by the Freedom of Information Law.” Doolan v. Bd. Of Coop. Educational Services, 48 NY2d 341, 347 (1979). Disclosure of the documents at issue for the sake of “public accountability” alone flies in the face of the withholding provisions of Public Officers Law § 87(2) and the long recognized public policy that protecting the safety of those who cooperate with the police is an essential tool in advancing the efficiency of law enforcement investigations and techniques. If individuals were to think that their names and statements would be revealed every time they spoke to the police regardless of the nature and substance of their communication and conversation, this would have a chilling effect on people coming forward and sharing information with law enforcement for fear of possible recrimination.16 Since police rely, to a large extent, on voluntary cooperation and information shared by private citizens, disclosure of otherwise exempted documents to further notions of “public accountability” would severely limit its ability to enforce the law and investigate open cases. This was not the result intended when FOIL was enacted. Thus, Mr. Bellamy’s policy argument in favor of disclosure must fail. Finally, Mr. Bellamy raises two red-herrings: First, he contends that the Police Department “failed to establish that an adequate search for responsive records [was] conducted” pursuant to Public Officers Law § 89(3)(a) (App. Ltr. Br. at 6), and refers this Court to Bellamy v. New York City Police Dept., 272 AD2d 15 See footnote 3 and the Police Department’s First Department Reply Brief (at pp. 10-13) for additional details. 16 As the First Department has previously noted, the “public policy benefit in not discouraging private citizens from making complaint or informing [about] observed criminal activity to the proper authorities is self-evident.” Church of Scientology of New York v. State of New York, 61 AD2d 942 (1st Dept. 1978). 18 120, 123 (1st Dept. 2000), a prior order of the First Department in this case that was subsequently overturned by this Court in Rattley v. New York City Police Dept., 96 NY2d 873 (2001). In Rattley, this Court clarified that “[n]either a detailed description of the search nor a personal statement from the person who actually conducted the search is required” and, citing specifically to Bellamy v. New York City Police Dept., 272 AD2d 120, this Court held that “[t]o the extent that some courts have held to the contrary, those decisions are not to be followed.” Rattley, 96 NY2d at 875. Based on this Court’s decision in Rattley, not only was the original affidavit submitted by the Police Department to the lower court in this case sufficient (see 58-60), but so too was the much more detailed affidavit submitted after the First Department remanded the matter back to the lower court for further review (see 130-137). The second red-herring Mr. Bellamy raises is a challenge to the Police Department’s assertion that its “case folder was forwarded to the Queens District Attorney’s Office, and as such it is no longer in [its] custody and control” (137, 134). Contending in conclusory fashion that “[i]t seems to be a common practice of the [Police Department] to assert that it has turned over its only copies of the requested records to the appropriate prosecutorial office,” Mr. Bellamy accuses the Police Department of “operating in such a manner as to undermine its own investigatory efforts by failing to maintain the information and evidence gathered as a result of its investigations” (App. Ltr. Br. at 6). Based on this baseless premise, Mr. Bellamy asks this Court to draw an adverse inference against the Police Department and to find that it “is utilizing the fact that it clearly must turn over the fruits of its investigation to the prosecution to withhold records that it would otherwise be required to disclose pursuant to the FOIL” (App. Ltr. Br. at 6). As was originally explained to the lower court, “the Police Department and the Office of the District Attorney are two separate and distinct City Agencies that operate independently of each other and have different roles in the criminal justice process” (70). Consequently, “[t]he Police Department ha[s] no dominion or control over the records pertaining to [Bellamy’s] trial, and [must] direct [such] inquiries to the District Attorney’s Office” (70). The lower court found this information “consistent with [another assistant district attorney’s] statement that the records related to Mr. Bellamy’s case ‘comprise approximately eight full boxes of documents [in the District Attorney’s Office]’” (143). Indeed, the Police Department annexed to one of its early affidavits a memorandum from a Queens County assistant district attorney specifically requesting the case record from the 113th Precinct (see 134). Thus, there is no basis for any court to infer foul play by the Police Department. Instead, as the lower court suggested, should Mr. 19 20 Bellamy wish to pursue disclosure of the records in possession of the Queens County District Attorney’s office, “he must make a separate FOIL request to that entity” (8).17 Conclusion For all of the foregoing reasons, this Court should either dismiss this appeal for lack of subject matter jurisdiction or, in the alternative, affirm the Appellate Division’s September 8, 2011 decision and order (one paper) denying and dismissing Mr. Bellamy’s FOIL challenge as a proper exercise of its discretionary power. Respectfully submitted, Michael A. Cardozo, Corporation Counsel of the City of new York, Attorney for Respondent. By: Sharyn Rootenberg Cc. Mr. Perry Bellamy, Pro-se appellant, Prisoner No. 87A6653 Elmira Correctional Facility P.O. Box 500 Elmira, N.Y. 14902-0500 17 To the extent that Mr. Bellamy raised a plethora of issues before the lower courts, including in what the First Department deemed to be his “reply papers” in support of his motion seeking reargument and/or leave to appeal to this Court, his failure to address or otherwise reserve them all in his letter submission to this Court constitutes abandonment pursuant to § 500.11(f) of the Rules of this Court. EXHIBIT A EXHIBIT A Affirmation of Service on Attornev bv Mail Sharyn Rootenberg. an attorney admitted to practice in the courts of the State of new York, affirms the following to be true under the penalties of perjury, pursuant to CPLR 2106: On the of September, 201 I, she served the annexed Order with Notice qf Entry upon Perryt Bellamy, pro-se respondent herein, by depositing q copy of the sarne, enclosed in a pre-paid wrapper, in a post ffice box situated at I00 Church Street in the Borough of Manhattan, City of New York, regularly maintained by the Government of the United States in said City, directed to said individual at Elmira Coruectional Fqcility, at P'O. Box 500, in New York. New York, being the address within the State theretofore designated by himfor that purpose. York 2011 Sharyn New York Clerk's Index No. 401463/98 PLEASE TAKE NOTICE that an order, of which the within is a copy, was duly entered in the offrce of the Clerk of the Appellate Division of the Supreme Court in and for the First Judicial Department on the gü day of September 201 l. MICHAEL A. CARDOZO Corporation Counsel Attorneyfor Appellant 100 Church Street New York, New York 10007 Tel: (212) 788-1049 Sharyn Date Assistant Corporation Counsel To: Perry Bellamy (DIN: 87A6653) Pro-se Respondent Elmira Correct ional Facilþ P.O. Bac 500 Elmir4 New York 14902-0500 EBy: Due and timely service of Entry ß hereby admitted. a cory of the within Order and Notice of Attornqyfor Eq- MICHAELA. CARDOZO Corporation Counsel Attorney for Appellant 100 Church Steet New York, N.Y. 10007 Appellate Division Order and Notice of Entry In Re PERRY BELLAMY, Petitioner-Respondent, -against- THE NEV/ YORK CITY POLICE DEPARTMENT, Respondent-Appellant. SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT Tom, .T. P., Moskowlte, Freedman, Richter, Manzanet-DanIels, rI,J 3997 - 3997A ïn re Perry Bellamy, Peti t ioner -Respondent, -against- Index 40t463/98 The New York City Police Department, Re spondent-Appe I lant, Michael- A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for appellant. Perry BeIIamy, respondent pro se. rTudgment, Supreme CourÈ, New York County (AJ.ice Schlesinger, .J- )r entered .Tuly 31, 2009t to the extent appealecl from as Iimited by the bríefs, granting the petition brought pursuanE to the Freedom of Information Lahr to compel respondent to disclose police reporLs contalning the names and statements of witnesses who did not testify at, petitíoner/s trial, and order, same court and .TustÍce, enl-ered November 1-8, 2009 | which, inter alia, denied respondent's motíon to renew¡ unanímously reversed, on the law and the facts, without costs, and the petition denied. In L986, petitioner was convicted of the murder of a New York City Parole Officer. PetÍtioner made ínculpatory staLements to the police, in which he admitted to being present durÍng the planning of the murder and to luring the victim to the scene. During the federal narcotics prosecution of other participants in 72 the murder scheme, these j.ndividual-s asserted that petitioner had not been Ínvolved. Petitioner's FOIL request for unredacted versions of clocuments he has received previously ís part of his ef fort to obtain a ner¿,r trial-. Public Officers Law S 81 (2) (f.) permits an agency to deny access to records, that, if disclosed, wouJd endanger the l-ife or safety of any person. The agency in quest.ion need only demonstrate \\a possibility of endanger lment] " in order to invoke this exemption (see Mattet of Connolly v Nerd York Guard, 175 AD2d 372t 373 [L996]¡ see a-lso MatLer of Rodriguez v Johnson, 66 AD3d 536 t20091 ). "[A]ccess Lo government. records does not depend on the purpose for which the records are sought," (Matter of BeJJany v New York City PoJice Dept., 59 AD3d 353, 355 t20091). Respondent met its burden of establishing that the documents at issue fall within an exemption from disclosure as provided in Publ-1c Of ficers Law S 8"1 (2) . The documenLs here reflect the identÍties of certain persons who spoke'with police during the course of an investÍgation into this gang-related homicide ordered from prison. Because these individuals never became Lestifying witnesses, neíther respondent, nor ânyone else, would know about them otherwise. It is therefore possible that Lhe l-ives of persons who spoke with police could be endangered from the reJ"ease of identifying informabion. Af L:er learning t.he L3 names, al-I one vrould need is an fnternet connection t.o determine where they Jive and work. Moreover, insofar as the documents mention individuals who did not provÍde information reLied upon during the investigation, that Ínformation is exempt from FoIL under the privacy exemption (see Publ-ic Officers Law S 87[2]lblt Matter of De OJ-iveira v Wagner, 274 ADzd 904 120001). Accordingly, basecl on the facts and circumstances, we deny petitionert s FOIL request seeking unredacted version.s of the documents lsee Matter of Rodriguez' 66 AD3d 536 [2009] [DA properJ-y withheldf pursuant to the public ínterest privilege, statements of two witnesses who spoke wj-th law enforcement personnell ) . The decision and order of this Court entered herein on January 4, 201L, is hereby recalled and vacated (see M*624 [decided simultaneously herewÍthl ) . THIS CONST]TUTES THE DECIS]ON AND ORDER OF THE SUPREME COURT, APPELLATE DIVISTON/ FIRST DEPARTMENT. ENTERED: SEPTEMBER 8t 20Il C],ERK T4