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In the Matter of Michael Lesher v. Charles J. Hynes

April 3, 2012

IN THE MATTER OF MICHAEL LESHER, APPELLANT,
v.
CHARLES J. HYNES, &C., ET AL., RESPONDENTS.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In 1984, a Kings County grand jury handed down an indictment charging Avrohom Mondrowitz with multiple counts of sexual abuse involving young boys. But he had already fled from the United States to Israel, one step ahead of an arrest warrant. Attempts to extradite Mondrowitz foundered early on, apparently because differences in Israeli and New York law prevented his return under the extradition treaty then in force between the United States and Israel.

At some point, petitioner Michael Lesher, an attorney and author, became interested in the Mondrowitz case. On August 4, 1998, he made a request to the District Attorney of Kings County pursuant to New York's Freedom of Information Law (FOIL) (Public Officers Law § 84 et seq.) for documents relating to Mondrowitz. The District Attorney furnished material in response, including police reports, statements edited to remove the names of alleged victims and witnesses and some correspondence with federal agencies.

On October 17, 2007, nearly a decade later, Lesher made a second FOIL request to the District Attorney in which he sought "[a]ny and all records, files, notes, correspondence, memoranda or other documents pertinent in any way to the matter State v Mondrowitz, Indictment No. 7693/84 and pertaining to the time period from September 1, 1993 to the present date, including but not limited to any correspondence between the D.A.'s office and the Department of Justice, the Department of State or any other branch of the United States government."

After considerable delay, the FOIL records access officer denied Lesher's request on December 23, 2008, invoking Public Officers Law § 87 (2) (e) (i-iv), the law enforcement exemption, because the records sought "pertain[ed] to an open case in that a bench warrant was issued on 02/21/1985." In particular, she relied on section 87 (2) (e) (i), which allows an agency to "deny access to records or portions thereof that . . . are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings." Lesher took an administrative appeal of this denial, which the FOIL appeals officer upheld in a letter dated January 29, 2009. She stated that "because the documents [sought were] relevant to an ongoing prosecution, . . . disclosure at this time would interfere with the prosecution."

Lesher apparently argued in his administrative appeal that Public Officers Law § 87 (2) (e) (i) was inapplicable to his 2007 FOIL request because in 1998 the District Attorney had furnished several documents associated with the Mondrowitz case. The FOIL appeals officer replied that in 1998, though, "the prosecution against Mr. Mondrowitz, although open and pending, was not actually active due to the fact that we were unable to extradite Mr. Mondrowitz from Israel because the extradition treaty in force at the time between Israel and the United States did not cover Mr. Mondrowitz's crimes. However, the new extradition treaty, which went into effect in January, 2007, and now includes Mr. Mondrowitz's crimes, makes extradition a possibility. Thus, the prosecution of Mr. Mondrowitz is now viable, and, therefore, the above-cited FOIL exemption [i.e., Public Officers Law § 87 (2) (e) (i)] is fully applicable."

By verified petition sworn to May 26, 2009, Lesher commenced this CPLR article 78 proceeding to compel the District Attorney and the FOIL appeals officer to comply with his records request. In his petition, Lesher alleged that the District Attorney resumed efforts to extradite Mondrowitz in October 2007, and "Mondrowitz was arrested in Israel the next month, November 2007, and has been incarcerated . . . since then awaiting extradition. His extradition was ordered by the Government of Israel, which order was affirmed by a District Court in Jerusalem. The decision of Israel's Supreme Court on Mondrowitz's appeal of his extradition order is still awaited."

He insisted that it was "extremely unlikely" that "investigatory documents" had been added to the Mondrowitz case file after September 1993, the beginning of the time period addressed by his FOIL request. He further urged that there were "no 'judicial proceedings' against Mondrowitz . . . in progress" except in Israel; and that the District Attorney had not explained how the release of "documents, including correspondence, pertaining to the renewed extradition request conveyed to Israel in October 2007" interfered with law enforcement investigations or judicial proceedings.

The FOIL appeals officer countered in an affirmation dated June 18, 2009 that Lesher was "wrong" to claim that the District Attorney was not entitled to rely upon Public Officers Law § 87 (2) (e) (i) to deny access to the requested documents. She cited Matter of Pittari v Pirro (258 AD2d 202 [2d Dept 1999], lv denied 94 NY2d 755 [1999] [where a criminal proceeding is pending, documents are exempt under Public Officers Law § 87 (2) (e) (i) upon "generic determination" that disclosure of categories of records would create broad risks of harm; a document-by-document showing of interference is not required]) and Matter of Legal Aid Socy. v New York City Police Dept. (274 AD2d 207 [1st Dept 2000], lv denied 95 NY2d 956 [2000] [same]) for the proposition that the "mere fact" that documents were compiled in furtherance of an ongoing criminal prosecution was a sufficiently particularized explanation to justify denial of access, and "that an agency need not advance an explanation as to how the disclosure of each document . . . would interfere with that prosecution or investigation." Lesher in his reply affidavit sworn to June 22, 2009 alleged that there was a difference between prosecution and extradition, and the "specific focus" of his FOIL request was "correspondence, memoranda or other documents relating to communications between the District Attorney and the federal government, regarding the extradition of Avrohom Mondrowitz."

In a judgment entered November 23, 2009, Supreme Court granted the petition "to the extent only of directing [disclosure] of all correspondence, memoranda or other documents between the Office of the District Attorney and agencies or departments of the federal government" regarding Mondrowitz's extradition. Relying on Pittari and Legal Aid Society, the judge reasoned that a claim that disclosure would interfere with a pending criminal prosecution was sufficiently particularized to justify denying a FOIL request under Public Officers Law § 87 (2) (e) (i), but that the "correspondence and communications between the District Attorney and federal agencies . . . being sought" were not likewise exempt because "those records allegedly pertain[ed] to Mondrowitz's extradition."

On December 21, 2009, the District Attorney moved to reargue. He informed Supreme Court that the records compiled in connection with Mondrowitz's prosecution filled roughly four boxes, and that nearly half of the documents in those boxes comprised "correspondence between the District Attorney's Office and the United States Department of State in which the District Attorney's Office provided detailed information about Mondrowitz's crimes so that the State Department could prepare extradition requests. The correspondence consists of crime summaries, timelines of when and where each crime occurred, witness names and personal information, and witness statements."

The District Attorney maintained that this correspondence was necessarily "related to the ongoing prosecution because [it] involve[d] the efforts made to return Mondrowitz to the jurisdiction so that the prosecution [might] proceed"; and that "disclosure of the documents surely would interfere with the prosecution[] because they [were] replete with information about the crimes committed." Supreme Court denied the motion to reargue on April 28, 2010, and the District Attorney took an appeal.

On January 11, 2011, the Appellate Division unanimously reversed and dismissed the petition (80 AD3d 611 [2d Dept 2011]). The court concluded that the District Attorney had established that the materials requested by Lesher were covered in their entirety by Public Officers Law ยง 87 (2) (e) (i). This was so because "[c]ontrary to [Lesher's] contention," the District Attorney was "not required to detail the manner in which each document sought would cause such interference. Rather, . . . the assertion that disclosure would interfere ...


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