SUPREME COURT OF THE STATE OF NEW YORKCOI-INTY OF NEV/ YORK

XTHE LAW OFFICES OF

ADAM D, PERLMUTTER, P.C.

Petitioners,

For a judgment pursuant to Article 78, etc

-against-

Index No. 100220/13IAS Part 36(Ling-Cohan, J.)

NEW YORK CITY POLICE DEPARTMENT, et al,,

RespondentsX

RESPONDENTS' MEMORANDUM OF LAW IN SUPPORT OF VERIFIED ANS\ryER

PRELIMINARY STATEMENT

Petitioner brings this proceeding in the nature of mandamus to compel, pursuant

to CPLR Article 78 and the N.Y, Public Offrcers Law $84, et seq., also known as the Freedom of

Information Law (hereinafter "FOIL"). The Petitioner, a criminal defense law firm specializing

in the defense of criminal cases involving driving while intoxicated ("DVy'I") and driving under

the influence of alcohol ("DUI"), seeks an order directing the Police Department of the Çity of

New York ("NYPD") to provide him with copies of records that pertain to the calibration and

maintenance of all Intoxilyzer 5000EN machines owned or maintained by NYPD from January

2008 until August 2012.t Such machines are used to measure breath alcohol of perpetrators

arrested for DWI/DUL The measurements are used to determine the level of intoxication and

charges to be filed against the perpetrator,

Petitioner's FOIL request was appropriately denied on the grounds that N.Y.

I The Intoxilyzer 5000 is an approved breath analysis instrument that is used to measure breath alcohol levels. See,

l0 NYCRR 5e,4(bX4).

Public Officers Law (POL) $87(2Xe)(i) bars disclosure, as such records, if disclosed, would

interfere with numerous judicial proceedings, to wit criminal DV/I/DUI prosecutions throughout

New York City, and, further, that the records are exempt under POL $87(2Xg) in that the records

constitute intra-agency records. Specifically, disclosure of the requested records would interfere

with pending DWI/DUI prosecutions in all five boroughs by expanding the scope of permissible

discovery in those cases in providing broader and earlier access to records under FOIL than

otherwise permitted to criminal defendants pursuant to Criminal Procedure Law $240.20(lXk)'

Thus, such disclosure would usurp the authority of criminal court judges to manage pre-trial

discovery in their cases, and deprive them of the ability to determine for themselves the scope of

disclosure in cases pending before them.

STATEMENT OF FACTS

In lieu of a separate statement of facts, the Court is respectfully referred to

paragraphs 65-104 of the Respondents' Verified Answer.

POINT I

THE REQUESTED RECORDS ARE EXEMPTFROM DISCLOSURE PURSUANT TO N.Y.PUBLIC OFFICERS LA\il $87(2XeXi) INTHAT DISCLOSURE WOULD INTERFEREWITH JUDICIAL PROCEEDINGS

Under FOIL, there exists a presumption of access to agency records, and a

properly submitted FOIL request should result in the disclosure of all records except for those

exempt from disclosure pursuant to any of the exemptions set forth by statute in N.Y. Public

Officers Law $87. Records or parts thereof that fall within any of the exemptions of N.Y, Public

Officers Law $87(2) need not be provided.

The records sought by Petitioner are exempt from FOIL disclosure pursuant to

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N.Y, Public Officers Law $87(2)(eXi), which proscribes the disclosure of law enforcement

records where such disclosure would interfere with a judicial proceeding (the "lnterference

Exemption"), N,Y, Public Officers Law $87(2) states in pertinent part:

2. Each agency.,.make available. ,.all records, exceptthat such agency may deny access to records of portions thereofthat:

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(e) are compiled for law enforcement purposes and which, if disclosed, would:

f . interfere with law enforcement investigations or judicial proceedings.

See N.Y. Public Offìcers Law $87.

Thus, when the records sought to be produced pursuant to FOIL are law

enforcement records, whose disclosure would interfere with a judicial proceeding, N,Y. Public

Officers Law $87(2XeXi) exempts them from disclosure by way of the FOIL process and defers

and relegates those seeking their disclosure to the discovery provisions that apply to the

particular judicial proceeding(s) wherein their disclosure is also sought. See Pittari v. Pirro, 179

Misc, 2d241,249-251 (Sup. Ct. Westchester Co. 1998), aff'd,258 A.D,2d 202 (2d Dep't 1999),

leave denied, 94 N.Y.2d 755. See also Leeal Aid Societ), v, New York Ciq/ Police Depaftment,

274 A.D.2d207 Q'r Dept 2000), app denied,95 N.Y,2d 956. In Pittari. the court held that the

Interference Exemption generically applies to all "records involving the investigation of a

criminal incident." Pittari. I 79 Misc. 2d at 249.

In reviewing Pittari, the Appellate Division, Second Department held that it was

sufficient for a responding agency to make a generic determination that disclosure under FOIL

would cause interference with the pending proceeding. Pittari,258 A,D.2d af 206. The reasoning

of the Pittari court was based on an analysis of federal case law that interpreted the federal

statute on which FOIL has been fashioned:

{< :fi

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The Supreme Court of the United States, in interpreting themeaning of the language'would interfere with enforcementproceedings' held that neither the legislative history norstatutory language of 5 USC $ 552 (b) (7) supported theproposition that the determination of whether disclosure'would interfere with enforcement proceedings' must be

made on an individual case-by-case basis, Rather, 'genericdeterminations' may be made that in 'particular kinds ofenforcement proceedings, disclosure of particular kinds ofinvestigatory records while a case is pending wouldgenerally 'interfere with enforcement proceedings." TheCourt applied a blanket exemption of that nature to thestatements of witnesses in labor law enforcement cases,

recognizing that such disclosure could have a chilling effecton witnesses' willingness to provide information,

Pittari, 258 AD2d at205-206 [citations omitted, emphasis added], Applying this reasoning, the

Court ruled that documents likewise could be found to be exempt under Public Officers Law $

87(2XeXi) upon a "generic determination" that disclosure of categories of records would create

broad risks of harm, without the need for a document-by-document showing of interference.

In a more recent case, the First Department also held that generic determinations

are sufficient when a respondent agency invokes FOIL's Interference Exemption, and that no

additional particularized showings are necessary, Indeed, it was held that merely "the assertion

that disclosure of records to a defendant in a pending criminal prosecution would interfere with

that proceeding is a sfficiently particularized justificatio¡¿ for the denial of access to those

records under Public Officers Law $ 87(2)(e)(i)" [emphasis added]. Legal Aid Soc'y,274

A.D.2d at 214. The Court specifically addressed the issue of generic determinations under the

Interference Exemption :

In deciding whether respondent law enforcement agencies wereentitled to a "blanket law enforcement exemption where there arepending criminal investigations,' the Court in Pittari looked toFederal case law, since the law enforcement exemption containedin section 87 (2) (e) (i) of the Public Officers Law-as well as

many other FOIL provisions-was patterned after the Federal

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analogue, 5 USC $ 552 (bX7XA). The Court relied, in particular,on

'Nlqfinnql I qhnr Relcfinnc Bd. v. Robbins Tire & Rubber Co lnwhich the Supreme Court rejected the notion 'that no generic

determinations of likely interference can ever be made,'

Legal Aid Soc')'. 274 A.D.2d at214-215 fcitations omitted]. See also

Dep't, 2012 NY Slip Op 301454 (Sup. Ct., NY Co. 2012).

Y Police

Similarly, in Lesher v. Hynes, 19 N.Y.3d 57 , 63 (2012), the Court of Appeals held

that the respondent is not required to detail the manner in which each document sought would

cause interference, In so doing, the Court affirmed the Appellate Division's ruling that "the

assertion that disclosure would interfere with an ongoing law enforcement investigation was a

sufficiently particularized justification" for the denial of access to the records under POL $

87(2XeXi)). 19 N.Y.3d at 64. Thus, in invoking the exemption, the agency must simply

"identify the generic kinds of documents for which the exemption is claimed, and the generic

risks posed by disclosure of these categories of documents," 19 N.Y.3d at 67, See Mattel of

I/ntttey v.New Vc,¡< Cou Olï.2012 N,Y. App, Div, I,EXIS 8320; 2012 NY

Slip Op S435 (lntDep't Dec. 6.2012)(rcrjecting argument that responcìents wsre required to set

lbrth particularized findings about whether exemption appliecl to each responsive docunient)

In the instant matter, access to the records requested by Petitioner with regards to

the calibration and maintenance records of all Intoxilyzer 50008N machines, owned or

maintained by the NYPD since January 2008, was appropriately denied under N,Y, Public

Officers Law $87(2XeXi) because disclosure would interfere with ongoing DWI prosecutions in

all five boroughs, as it would result in the disclosure of records to which a criminal defendant is

not entitled to under N,Y Criminal Procedure Law $240.20(1Xk).

As embodied in Article 240 of the Criminal Procedure Law ("CPL"), only recent

records relating to the maintenance and calibration of the Intoxilyzer machines are discoverable

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in pending criminal DWI cases, Specifically, in a prosecution of an offense proscribed by the

New York Vehicle and Traffic Law, CPL $240,20(1)(k), provides for the disclosure o1

any written report or document, or portion thereof, concerning a

physical examination, a scientific test or experiment, including themost recent record of inspection or calibration or repair ofmachines or instruments utilized to perform such scientific tests orexperiments and the certification certihcate, if any, held by theoperator of the machine or instrument, which tests or examinationswere made by or at the request or direction of a public servantengaged in law enforcement activity or which was made b y a

person whom the prosecutor intends to call as a witness at trial, orwhich the people intend to introduce at trial.

The appellate courts have held that the statute is to be strictly construed and that

only what is listed in that statute is discoverable in a criminal action. In the Matter of Hynes v.

Cirisliano, 180 A.D,2d 659 (2dDept.1992), Items not listed in Article 240 are not discoverable

"as a matter of right unless constitutionally or otherwise specifically mandated," People v.

Colavito, 87 N,Y.2d 423 (1996). V/here no statutory right of discovery is provided, no

substantive right of discovery exists. Miller v. Schwartz, 72 N.Y,2d 869 (1988).

Under this statute, a criminal defendant is entitled to the most recent calibration

records, the most recent field test preceding the defendant's test and the results of the defendant's

test, Therefore, a criminal defendant would be provided with all the documentation associated

with the measure of his blood alcohol content ("BAC"). ".,.the People are required, as a

foundational requirement for the admission of breathalyzer test results in a prosecution under

Vehicle & Traffic Law $1192, to introduce the 'evidence from which the trier of fact could

reasonably conclude, inter alia, that the testing device was in proper working order at the time

the test was administered to the defendant,"' People v. Robinson,53 4.D,3d63,70 (2d Dept

2008) (quoting People v. Freeland. 68 N.Y,2d 699 (1986) (emphasis added), These records are

submitted into evidence by the People in support of the prosecution. Neither statute nor case

law requires that the People provide a criminal defendant with records of every test performed

for the life of the Intoxilyzer machine.

Criminal defense attorneys routinely request maintenance or calibration records

for years prior to their clients' breath tests, In fact, Petitioner attaches to the Petition, at Exhibit

"R," a transcript from a trial in which Petitioner unsuccessfully sought maintenance and

calibration records for a time prior to the incident with which his client was charged. When such

discovery is in dispute, the Judge in the criminal matter determines which calibration reports or

maintenance records are disclosable in the particular case. People v. Dilorenzo, 134 Misc,2d

1000,1002,

Further, the People have successfully brought Article 78 proceedings successfully

challenging court orders directing the People to produce discovery outside the scope of Article

240. The appellate courts in these cases have held that the trial courts acted in excess of their

authorized power to grant discovery not def,rned by Article 240. In the Matter of Sacket v,

Eartlett. 241 A.D.2d 97 (3d Dept 1998); In the Matter of Brown v. Grosso,285 A.D.2d 642 (2d

Dept 2002),

Here, the requested records would not be provided to defendants if the request

were made in a criminal court prosecutions, The criminal defendant is not entitled to that

material not only because it is immaterial, but because it would be extending discovery beyond

what the Legislature intended, which was to enact a statute that would be strictly followed.

For Petitioner to request documents that are beyond what is authorized under CPL

$240,20(1)(k) is nothing more than a fishing expedition for impeaching material, See. e.g.,

Robinson, 53 A.D.3d at 72; Constantine v. Leto , 157 A.D.2d 376 (3d Dept 199O)(holding that a

subpoena duces tecum could not be used to circumvent the discovery provisions of CPL

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$240,20(l)(k) to ascertain the existence of evidence).

Here, Petitioner is seeking to use the Freedom of Information Law to circumvent

the established limitation of the New York State discovery statute, Petitioner is a criminal

defense attorney who frequently defends DWI offenses and is familiar with the forensic

discovery issues related to breath testing, In fact, on the Petitioner's website, it states that "The

Law Offices of Adam D, Perlmutter concentrates on New York DWI defense. Adam Perlmutter

and his team have defended hundreds of New York DWI/DUI cases," See

http://adplegal.com/practice-areas/dwi-defense/ It is inconceivable that the Petitioner is

unaware of the statutory limitations established by Article 240.

Further, disclosure of these records pursuant to FOIL would interfere with the

rulings of the criminal courts in all fìve boroughs and would ultimately usurp the criminal

judge's authority in the criminal matter to decide issues of disclosure, As evidenced by the

affidavits submitted by each District Attorney's Offrce in all five boroughs, there are 1,693 DV/I

cases open in New York County; 1,239 open cases in Bronx County; 306 open cases in

Richmond County; 1026 open cases in Queens County and 1,011 open cases in Kings County.

As such, there are 5,275 open cases in all frve boroughs from 2008 through 2013 - the vast

majority of which involve the use of an Intoxilyzer machine, Thus, a decision in this proceeding

that requires disclosure of the requested documents would interfere with the criminal courts'

ability to manage the pre-trial discovery in thousands of cases and would unduly burden these

courts with issues relating to the admissibility of documents which would not have been

discoverable under Article 240.

Finally, criminal courts have held that a request for years of Intoxilyzer records

prior to the defendant's breath test is unduly burdensome. In People v. Hadzovic, Sup. Ct., Bronx

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Co,, Docket No. 1236104, the defendant demanded that the People produce the records of every

test run on the Intoxilyzer for the three years preceding the defendant's test, The Court held that

"to grant this massive extension of discoverable material would unduly burden the People not

only in this case, but in hundreds of Driving V/hile Intoxicated cases that continue to occur on a

regular basis. To place this burden on the People would far outweigh the probative value of the

materials." Each Intoxilyzer produces over a thousand readings per year. Each reading is printed

on a separate page, In the instant matter, the Petitioner's demand encompasses literally thousands

of documents,

It is clear that the Interference Exemption permits a claim of exemption to be

made on the basis of a generic determination that interference with criminal investigations would

occur. The disclosure of the requested records under FOIL would interfere with the discovery

processes of the criminal courts, Accordingly, the NYPD's determination to withhold the

requested documents should be upheld.

POINT II

THE INFORMATION WITHHELD IS EXEMPT FROMDISCLOSURE PURSUANT TO STATE LA\ry AND ISTHEREFORE ALSO EXEMPT FROM DISCLOSUREPURSUANT TO FOIL'S STATUTORY EXEMPTION,PUBLIC OFFICERS LA\ry 887(2XA).

When a state statute exempts particular types of records or information from

disclosure, the exemption created by the other statute is incorporated into FOIL by way of Public

Off,rcers Law $87(2)(a), which provides that an agency may deny access to records or

information that "are specifically exempted from disclosure by state or federal statute." A statute

that protects information from disclosure pursuant to a particular discovery device is also a

"statute exempting information from disclosure within the meaning of section 87 (subd 2, para

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[a] of the Public Ofhcers Law." John P, v, Whalen, 54 N.Y.2d 89,96-97 (1981).

In the instant matter, Criminal Procedure Law $240.20(lXk) establishes discovery

limitations in criminal prosecutions. Specifically, as described above, the prosecutor is required

to provide the criminal defendant only with the most recent calibration or inspection of the

Intoxilyzer machine, the report of the chemical test performed on the criminal defendant, and the

certification of the individual who administered that test. To provide these documents under

FOIL would expand the scope of discovery as delineated in Article 240. As such, the disclosure

of the requested records is also exempt under Public Offrcers Law $87(2)(a).

CONCLUSION

For the reasons set forth above, Respondents respectfully request that the Verified

Petition be denied in its entirety, and that they be awarded such other and further relief as this

Court deems just and proper.

Dated: New York, New YorkMay 2,2073

MICHAEL A. CARDOZOCorporation Counsel of the

City of New YorkAttorney for Defendant100 Church Street, Room 2-121New York, New York 10007(212) 78 J

By:DJ

A on Counsel

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