                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     520316
________________________________

In the Matter of DESMOND
   DeFREITAS,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE POLICE CRIME
   LAB,
                    Respondent.
________________________________


Calendar Date:   June 2, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

                             __________


     Desmond DeFreitas, Dannemora, appellant pro se.

                             __________


Aarons, J.

      Appeal from an order and judgment of the Supreme Court
(McGrath, J.), entered October 21, 2014 in Albany County, which,
in a proceeding pursuant to CPLR article 78, granted respondent's
motion to dismiss the petition.

      Pursuant to the Freedom of Information Law (see Public
Officers Law art 6 [hereinafter FOIL]), petitioner, a prison
inmate, submitted a written request to respondent on April 4,
2014 for documents associated with DNA testing relating to his
convictions for which he is imprisoned (see People v DeFreitas,
116 AD3d 1078, 1078-1079 [2014], lv denied 24 NY3d 960 [2014]).
After receiving no response from the Record Access Officer,
petitioner filed an administrative appeal claiming that his
request had been constructively denied. After petitioner's
administrative appeal went unanswered, he commenced this CPLR
article 78 proceeding seeking to compel a response from
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respondent. Following the commencement of this proceeding,
respondent advised petitioner that 1,356 pages of records
responsive to his request would be sent to him upon payment of
the statutory copying fee (see Public Officers Law § 87 [1] [b]
[iii]). Petitioner was further advised that a diligent search
failed to find records related to his request for documentation
concerning "Corrective Action for Discrepancies and Errors" and
"Error Rates" and that the remaining records sought were exempt
from disclosure because such records were compiled for law
enforcement purposes and disclosure thereof would interfere with
then-ongoing judicial proceedings (see Public Officers Law § 87
[2] [e] [i]). Respondent moved to dismiss the CPLR article 78
petition on the basis that it was moot in light of its response
to petitioner's request. Supreme Court granted respondent's
motion, prompting this appeal by petitioner. We affirm.

      Initially, respondent concedes, and we agree, that the
exception in Public Officers Law § 87 (2) (e) (i) no longer
applies because petitioner's criminal proceedings and judicial
review have concluded (see Matter of Lesher v Hynes, 19 NY3d 57,
68 [2012]; Matter of Pittari v Pirro, 258 AD2d 202, 206-207
[1999], lv denied 94 NY2d 755 [1999]). To that end, respondent
has advised petitioner that it would review and release any
remaining records covered by his request subject to redaction
under Civil Rights Law § 50-b and payment of the statutory
copying fee (see Public Officers Law § 87 [1] [b] [iii]).
Accordingly, we conclude that petitioner's challenge to
respondent's withholding of documents compiled for law
enforcement purposes that were previously exempted from
disclosure is moot (see Matter of Rattley v New York City Police
Dept., 96 NY2d 873, 875 [2001]; Matter of Saxton v New York State
Dept. of Taxation & Fin., 107 AD3d 1104, 1105 [2013]).

      Turning to the balance of petitioner's documentary
requests, we disagree with petitioner that Supreme Court erred in
dismissing his petition as moot. Where a petitioner receives an
adequate response to a FOIL request during the pendency of his or
her CPLR article 78 proceeding, the proceeding should be
dismissed as moot because a determination will not affect the
rights of the parties (see Matter of Rattley v New York City
Police Dept., 96 NY2d at 875; Matter of Scott v Shepard, 231 AD2d
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759, 760 [1996], lv denied 89 NY2d 858 [1996]; Matter of Davidson
v Police Dept. of City of N.Y., 197 AD2d 466, 466 [1993]; see
generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-715
[1980]). As relevant here, "[w]hen an agency is unable to locate
documents properly requested under FOIL, Public Officers Law § 89
(3) requires the agency to certify that it does not have
possession of a requested record or that such record cannot be
found after diligent search" (Matter of De Fabritis v McMahon,
301 AD2d 892, 893 [2003] [internal quotation marks, brackets and
citation omitted]; see Matter of Rattley v New York City Police
Dept., 96 NY2d at 875).

      Here, respondent advised petitioner in writing that records
matching portions of his request had been found and would be sent
to him after he paid the statutory copying fee and that a
diligent search of respondent's files failed to uncover records
related to documentation of corrective action for discrepancies
and errors and error rates. Respondent was therefore not
required to disclose such records after it adequately certified
that such records could not be found after a diligent search (see
Public Officers Law § 89 [3]; Matter of Rattley v New York City
Police Dept., 96 NY2d at 875; Matter of Taylor v New York City
Police Dept. FOIL Unit, 25 AD3d 347, 347 [2006], lv denied 7 NY3d
714 [2006]; Matter of Partee v Bennett, 253 AD2d 950, 950 [1998];
compare Matter of De Fabritis v McMahon, 301 AD2d at 894), and
petitioner has failed to support his speculation that such
documentation exists (see Matter of De Fabritis v McMahon, 301
AD2d at 894; Matter of Di Rose v City of Binghamton Police Dept.,
225 AD2d 959, 960 [1996]). As such, the written response to
petitioner's FOIL request rectified respondent's prior failure to
respond, and Supreme Court properly found this proceeding to be
moot (see Matter of Rattley v New York City Police Dept., 96 NY2d
at 875; Matter of Davidson v Police Dept. of City of New York,
197 AD2d at 467). Petitioner's remaining contentions have been
considered and found to be without merit.

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
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      ORDERED that the order and judgment is affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
