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The charges arose out of an incident which took place on May 23, 1992

The defendant was convicted after a jury trial of Kidnapping in the First Degree, Rape in the First Degree (five counts), Sodomy in the First Degree (four counts), Robbery in the Third Degree, and Assault in the Second Degree. He was sentenced to an aggregate indeterminate term of incarceration amounting to 119 1/2 years to life.

The defendant appealed the convictions and by order, the convictions were affirmed by the Appellate Division, Second Department. The defendant then appealed to the Court of Appeals which unanimously affirmed the order of the Appellate Division.

The charges arose out of an incident which took place on May 23, 1992. Although this court did not preside over the trial, the facts have been gleaned from the affirmations submitted with the motions, from the records contained in the court file, and from the decisions of the appellate courts.

On April May 23, 1992, the defendant, armed with a knife, approached the female victim in the street, stabbed her in the thigh and forced her to walk with him to his apartment. Once in his apartment, he blindfolded the complainant, removed her jewelry and clothes and then raped and sodomized her over a period of twenty hours.

The defendant’s initial request for documents pursuant to the Freedom of Information Law was made to the Queens County District Attorney’s Office by letter. In his letter, the defendant requested all documents pertaining to his case which were contained in the files of the Queens District Attorney’s Office.

The Assistant District Attorney, the Records Access Officer for the Queens District Attorney, informed the defendant by letter that they received his request and would respond to his request within 60 days. The Assistant District Attorney again wrote to the defendant stating that the District Attorney’s Office was working on his request and that they would give him another status report within 60 days. On October 17, 2005, another Assistant District Attorney in her capacity as Records Access Officer for the Queens County District Attorney’s Office wrote to the defendant stating that the Office was processing his request and that they would provide him with a list by December 15, 2005, stating which documents were disclosable under the Freedom of Information Law.

On May 2, 2006, the Assistant District Attorney notified the defendant that his request for documents was denied in its entirety based upon the Civil Rights Law which states that the identity of a victim of a sex offense shall be confidential. If the request involves a conviction for a sex crime none of the documents are disclosable unless a waiver or authorization by the victim consenting to such disclosure is submitted.

By letter, the defendant appealed this decision to the Executive Assistant District Attorney, the Freedom of Information Law Appeals Officer at the Office of the Queens County District Attorney. The defendant stated that he needed the documents to challenge his conviction.

By letter, Executive Assistant District Attorney responded to the defendant stating that the appeal was granted in part, to the extent that certain documents were found to be disclosable to the defendant. He stated that the additional documents requested by the defendant were not disclosable pursuant to Civil Rights Law which requires that any document which tends to identify the victim of a sex offense shall remain confidential.

In the petition, the defendant requests that the court order the remainder of the documents to be disclosed. In addition, the defendant has submitted a list containing an additional forty-eight categories of documents to be released, which were not contained in his original request. He claims that all of the materials are not exempt from disclosure and that he needs the documents to challenge the judgment of conviction.

The Assistant District Attorney filed a response in opposition to the criminal defendant’s petition contending that the court is without jurisdiction to entertain the petitioner’s request for the forty-eight additional categories of documents that were not part of his initial request. The Assistant District Attorney, in her answer, contends that these documents are not properly the subject of an Article 78 proceeding as this is the first time the defendant has requested the additional documents and petitioner has not exhausted all administrative remedies as to the new documents he is requesting.

The court is in agreement that the petitioner made no prior formal request for the documents enumerated in his petition, and as a result, there has been no administrative determination with respect to those documents. Accordingly, the requested documents are not properly the subject of the Article 78 proceeding.

The Assistant District Attorney filed a supplemental answer in response to the original thirty three categories of documents which are the subject of this petition. In the supplemental answer, the Assistant District Attorney consented to the release of additional documents from the District Attorney file which do not contain the victim’s name and address or which do not tend to identify the victim. She has consented to the release of the documents upon payment of reproduction costs.

With respect to the remainder of the requested documents, the Assistant District Attorney states in her answer that after her review of the file she found that certain documents are exempt from disclosure pursuant to Civil Rights Law which exempts from disclosure and portion of any police report, paper, photograph, court file or other documents that tends to identify the victim of a sex offense.

She states that all of the documents compiled by the Queens District Attorney’s office at the initial stages of its investigation were denied because these documents bear not only the name of the victim, but also the location, date and time of the incident-information that could be used to identify the victim. Based upon this exemption, the Assistant District Attorney states that, the petitioner’s request for the felony complaint and supporting depositions, Voluntary Disclosure Forms with attachments and annotations, and Early Case Assessment Bureau (Intake Bureau Crime Report) has been denied.

The Assistant District Attorney also states that, information detailing the location time and date of the report may tend to identify the victim, and therefore the petitioners request for affidavits, interviews conducted, investigators reports, notes, precinct police department index sheets, police officers memo book entries, evidentiary photographs, exhibits crime scene unit reports crime scene photographs crime scene map/schematics police maps/diagrams laboratory reports, examination and analysis and subpoenas have been denied.

In addition, the Assistant District Attorney states that after a diligent search of the archived records stored by the Queens County District Attorney’s Office, she was still unable to locate the files. In her supplemental response, she states that certain documents were eventually located, but not the entire file. The courts have held in this regard that an agency is not responsible to supply copies of documents which cannot be located after a diligent search.

The court finds, therefore, that the affirmation of the Assistant District Attorney sufficiently demonstrates that the documents which have not been made available to the petitioner by the Office of the District Attorney either do not exist or meet a lawful exemption from FOIL disclosure.

Accordingly, the court finds that the petition is granted only with respect to the documents which the Assistant District Attorney’s Office have agreed to make available to the petitioner. In all other respects it is denied.

Victims of crimes more often refuse to file charges because they are afraid that their attacker might get back at them. Sometimes, shame and financial constraints also hinder the crime victims in pursuing their charges. If you want to win your legal battle in court, hire the Queens Sex Crime Attorney together with the Queens Criminal Lawyer from Stephen Bilkis and Associates.

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