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Argued by: ETHAN LEONARD (Time Requested: Minutes) Supreme Court the State New York Appellate Division First Department JUDICIAL WATCH, INC., Petitioner-Appellant, against THE CITY NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT, Respondents-Respondents. BRIEF FOR PETITIONER-APPELLANT THE LAW OFFICES NEAL BRICKMAN, P.C. Attorneys for Petitioner-Appellant 420 Lexington Avenue Suite 2440 New York, New York 10170 (212) 986-6840 firstname.lastname@example.org New York County Clerk Index No.: 160286/2017 APPELLATE INNOVATIONS (914) 948-2240 Printed Recycled Paper 12858 TABLE CONTENTS Questions Presented Preliminary Statement Statement Background Facts ... Procedural History Relevant Law Argument Point Respondents Have Not Met, And Cannot Meet, Their Burden Demonstrating That The Requested Material Falls Within Exception Foil Respondents Have Not Met, and Cannot Meet, Their Burden Under Public Officers Law 87(2)(e)(i) All Relevant Judicial Proceedings Have Run Their Course And There Bona Fide Ongoing Investigation The Requested Disclosures Pose Risk Any Investigation None the Cases Cited the NYPD Warrant Precluding Discovery ... Neither the Lower Court Nor the NYPD Even Attempt Distinguish the Relevant Case Law From The Facts This Case Conclusion ... TABLE AUTHORITIES Cases: Adam Perlmutter, P.C. New York City Police Dept., 2013 N.Y. Misc. LEXIS 4724, 2013 Slip 32532(U) Alderson New York State College Agriculture and Life Sciences Cornell University, N.Y.3d 225, 230 (2005) Buffalo News, Inc. Buffalo Enterprise Development Corporation, N.Y.2d 488, 492 (1994) Capital Newspapers Div. Hearst Corp. Burns, N.Y.2d 562, 566 (1986) Church Scientology N.Y., N.Y.2d 906 15, Church Scientology State, A.D.2d 942 (1st Dept 1978) Collins New York City Police Dept., Misc. 1214(A), N.Y.S.3d 873 (S.Ct.NYCty 2017) Data Tree, LLC Romaine, N.Y.3d 454, 462-463 (2007) Deluca New York City Police Dept., 261 A.D.2d 140 (1st Dept 1999) Department Records and Information Services, N.Y.3d 373, 379-380 (2012) Dilworth Westchester County Dept. Correction, A.D.3d 722, 724 (2nd Dept 2012) Estate Robello Dale, 2014 Misc LEXIS 2444, 2014 Slip 31424(U) (S.Ct. Nassau 2014) Fairfield Presidential Associates, LLC City New York, 2008 N.Y.Misc. LEXIS 9552, 2008 Slip 33416(U) (S.Ct.NYCty 2008) Fappiano New York City Police Dept., N.Y.2d 738, 746 (2001) Gorenitsyn Department Citywide Services, 2009 Misc, LEXIS 4007 23, Gould New York City Police Dept., N.Y.2d 267, 274 (1996) .... Lesher Hynes, N.Y.3d 68, 67, 57, (2012) Loevy Loevy New York City Police Department, 139 A.D.3d (1st Dept 2016) McGhee, 2016 N.Y.Misc. LEXIS 2704 .... 13, 17, 15, Newsday Inc. Sise, N.Y.2d 146, 150 (1987) .... Washington Post Co. New York State Ins. Co., N.Y.2d 557, 567 (1984) iii Statutes: Public Officers Law 89(4)(b) Public Officer Law 87(2)(e)(i) 14, Article QUESTIONS PRESENTED Did the lower court err granting Respondents Cross-Motion dimiss? ANSWER: Yes, the lower court erred. Did the lower court err determining that the bare assertion Captain Wren that the investigation active and ongoing was sufficient preclude disclosure under Public Officer Law 87(2)(e)(i)? ANSWER: Yes, the lower court erred. Petitioner/Appellant Judicial Watch, Inc., and through its undersigned counsel, The Law Offices Neal Brickman, P.C., located 420 Lexington Avenue, Suite 2440, New York, New York 10170, respectfully submits this Memorandum Law Support its Appeal each portion the Decision and Order the lower court issued the Honorable Verna Saunders, J.S.C., decided May 2018, which was entered with the Clerk the Court May 11, 2018 (Rec.6-9), and initially served with Notice Entry August 30, 2018 (Rec.10-11) that denied material part the Petitioner Article petition seeking the review various denials Respondents two Freedom Information Law FOIL requests and the Judgment subsequently signed the Honorable Verna Saunders, J.S.C. (Rec.4-5), which undated and which was served with Notice Entry August 30, 2018 (Rec.10-11). Plaintiff appeals from each and every portion said Decision and Order and Judgment which aggrieved and specifically the dismissal its request for the production the major case Squad report and files the homicide NYPD Patrolman Philip Cardillo.1 The lower court found that the Respondents/Appellees, the New York Police Department NYPD and the City New York (the City initially improperly denied Appellant request for the production the audio tape the 10-13 officer distress call recorded the Police Communications Division 11:41 a.m. April 14, 1972 and directed that the NYPD pay recompense Appellant the amount $500.00. (Rec. 6-9). -1- Respectfully, the lower court ignored the pertinent facts and the relevant law. The lower court opinion should reversed. Preliminary Statement This straightforward matter. Judicial Watch made two valid FOIL requests concerning the homicide investigation regarding the shooting death Patrolman Philip Cardillo which occurred over forty-five (45) years ago. These FOIL requests were summarily denied without proper basis and clear contravention applicable law. Thereafter, when Judicial Watch appealed the initial denials, the NYPD made bona fide efforts comply with its legal obligations denying these legitimate requests, but rather relied baldly conclusory and unsupportable assertions that there was ongoing and active investigation individual with personal knowledge the relevant facts. Judicial Watch was then forced file Article proceeding support which the highly decorated retired Detective who ultimately led the investigation and caught Patrolman Cardillo killer the early 1970 submitted affidavit. opposing that filing, the NYPD its apparent modus operandi again materially relied conclusory non-specific assertions which have been repeatedly held insufficient preclude disclosure. Respectfully, the lower court improperly agreed with the NYPD and ignored not only relevant and -2- dispositive facts, but completely disregarded the applicable case law. Notably, the lower court did not cite single case opinion seek distinguish any the cases cited Judicial Watch its papers. The lower court let the NYPD what wanted: obfuscate and withhold information from the public violation FOIL, the existing case law, and the greater good. There bona fide ongoing active investigation, much less one that would all impacted, hindered, interfered with the requested material was released. Statement Background Facts The background for the instant requests one the saddest and troubling episodes the history the NYPD. April 14, 1972, 10-13, officer distress, call was made 911. The call traced Mosque Number run the Nation Islam located West 116th Street Manhattan, New York. responding that 10-13 call, several officers were beaten and one officer, Phil Cardillo, was shot inside Mosque Number Patrolman Cardillo dies few days later from his wound. Although Detective Randy Jurgensen Jurgensen now retired, was one many officers the scene that day, was not assigned cover the case until more than one (1) year later May, 1973. (Rec.46-7). has since been publicly acknowledged that the initial investigation, along -3- with the crime scene, were completely compromised and that police procedures were ignored and that civilians, politicians and leadership within the NYPD explicitly condoned and participated such egregious acts. summary, based agreement brokered between Representative Charles Rangel, Louis Farrakhan the Nation Islam NOI and NYPD Deputy Commissioner Benjamin Ward, relevant witnesses were released and not interviewed, the crime scene was scrubbed clean and forever contaminated and virtually every NYPD investigative procedure disregarded. (Rec.47). about May 1974, Lewis 17X Dupree Dupree was arrested and indicted for the murder Phil Cardillo. Per NYPD policy, the case was closed that juncture and passed the District Attorney office for trial. The initial trial resulted hung jury and the second trial resulted acquittal. judicial action has occurred with regard Phil Cardillo since March 1977. (Rec. 47). 2005 Jurgensen had the opportunity speak NYPD Commissioner Ray Kelly the U.S.S. Intrepid. the course that conversation, the matter Phil Cardillo and the handling that investigation NYC and the NYPD came up. (Rec.47). Thereafter, 2006, the NYPD assigned members its Major Case Squad re-open its investigation Phil Cardillo murder. From the start, -4- Jurgensen was part that renewed investigation, not only because his intimate knowledge the history the matter, but also because was his actions that led the re-investigation the first instance. Despite his retired status, Jurgensen was even given desk where the other members the Major Case Squad were situated ensure his active participation the re-opened inquiry. (Rec.47). The investigation was re-opened confirm the results the initial investigation and answer related inquiries including those surrounding connections between this matter and the FBI. the end, there was question about whether Officer Cardillo murder had been solved. had. The re-opened investigation concluded that the killer was Dupree, the individual acquitted 1977. (Rec.48). The remaining questions concerned the why well the basis for the improprieties the NYPD Brass, the Mayor Office, well the involvement, any, the FBI with any the relevant parties. (Rec.108). the start the re-investigation, Jurgensen provided all the relevant files that had his possession the Major Case Squad, well copy the 911 tape that the NYPD now claims that lost, after already having lost the original and any other copies originally possessed and 3-D replica the crime scene that was recognized Robert Morgenthau May 1978 correspondence then NYPD Commissioner Robert McGuire. (Rec.48). the extent that any -5- the case files relate matters prior 2006, the information therein has already been disclosed the public record whether through the two separate and public trials Dupree; the various publications this matter (including Jurgensen book, The Circle Six that was vetted and approved the NYPD); numerous press releases and articles over the intervening years. (Rec.109). Over the subsequent years Jurgensen continued work with the NYPD assist any way possible provide evidence that had, review existing evidence and attempt get answers questions surrounding Officer Cardillo murder, including why the Mosque doors routinely and continually guarded Mosque were left open the morning April 14, 1972, and what, any, actions inactions the FBI played role Officer Cardillo murder. (See July 28, 2006 letter from James Harmon, Jr., Commissioner Kelly and September 26, 2008 correspondence from Deputy Chief Shea) (Rec. 109;113-22). the course the re-investigation became clear that the evidence related this matter was housed multiple facilities across New York City. (Rec.109). Throughout the re-investigation, Jurgensen had full access all case files, evidence and the assigned detectives and was present for over formal meetings the Major Case Squad this matter and several additional meetings involving the Commissioner, the Chief Detectives and other high-ranking -6- officers the NYPD. (Rec.48;109-10). new information Phil Cardillo murder any conspiracy commit that murder was uncovered that time. During those years, new leads and new facts were ascertained that made anyone believe that any other suspect, aside from Dupree, existed that any errors had been made the investigation the murder from the time that Jurgensen had been placed charge that investigation 1973. (Rec.48). March 2012, the investigation was done. fact, March 19, 2012, Deputy Commissioner Browne advised the New York Daily News that the case was closed. While recognizing that there had been new investigation, also acknowledged that [i]t didn turn any useful information. (Rec.48;109). early 2015, Detective Sergeant Francis Buddy Murnane, who was the Major Case Squad Leader for the re-investigation, specifically re-affirmed Jurgensen that the re-opened investigation probe was over that the Major Case Squad report was finished and that there was more investigation done. (Rec.109-10). That the matter was closed again the Major Case Squad has been re-affirmed Jurgensen subsequently active NYPD personnel with personal knowledge the events. Jurgensen was active part that reinvestigation, was personally aware that new evidence had been uncovered -7- and that the re-investigation came the same conclusions that Jurgensen, his team and the Offices reached some four (4) decades ago. (Rec.48-9;109-10). The lower court decision should reversed because, inter alia, there clearly ongoing and active investigation. Procedural History The relevant FOIL requests were made June 2017 the NYPD Record Access Officer, One Police Plaza Room 110-c. FOIL Unit Legal Bureau, New York, New York 10038. The first request which was received June 2017 and assigned FOIL #7627 sought The audio tape the 10-13 officer distress call recorded the Police Communications Division 11:41 a.m. April 14, 1972. (Rec.20-2). The second request which was also received June 2017 and assigned FOIL #7628 explained the NYPD, sought the Major Case Squad report the investigative file the homicide NYPD Patrolman Philip Cardillo. (Rec.23-6). June 23, 2017, the NYPD denied both FOIL requests issue. (Rec.82-3). July 17, 2017 Petitioner timely appealed both denials separate correspondence. (Rec.27-30). correspondence dated July 25, 2017, the NYPD denied Petitioner appeals. (Rec.31-2). The sole stated basis for the denial was that: -8- ...disclosure the records would interfere with pending criminal investigation [Public Officer Law 87(2)(e)(i)]. This statute specifically provides that agency, may deny access records portions thereof that are compiled for law enforcement purposes and which, disclosed, would interfere with law enforcement investigations judicial proceedings. this writing, the criminal investigation into the incident remains active and ongoing. Accordingly, disclosure must denied the release the requested documents would interfere with this pending criminal investigation. (Rec.31-2). The denial letter went discount the representations retired Detective Randy Jurgensen Jurgensen and misrepresent both the import and relevance Jurgensen statements. The letter went allege that, [a]s this writing, review official Department records indicates that the case still being actively investigated and that numerous updates have been made the case file since Mr. Jurgensen alleged that the prove [sic] was over. (Rec.31-2). Judicial Watch then filed Order Show Cause OTSC pursuant Article and FOIL obtain the requested documents and information. The NYPD filed opposition the OTSC re-asserting that denial was appropriate under POL 87(2)(e)(i) the records concern open, active and ongoing police investigation into the death Patrolman Cardillo. their opposition, the NYPD cited case law that refuted the standards identified case law set forth Judicial Watch. (Rec.64-78). Equally telling, the Affidavit Captain Wren upon which the NYPD -9- exclusively relies does not fulfil the NYPD obligations under FOIL sufficient warrant preclusion. (Rec.85-90). While the Affidavit albeit conclusory fashion asserts that there bona fide ongoing investigation, the details such investigation reveal different story. Initially, many the additions that have been made the investigative file since January 2015 are most likely only DD5 forms, green sheets reflecting non-substantive additions; including, way example, the completion the Major Case Squad report, the transmission the file upstairs and likely the filing requests for information concerning the same articles concerning the now-close re-investigation. (Rec.49). Moreover, the other references ongoing investigation this matter are even more problematic for the NYPD and way warrant preclusion discovery. Specifically, the inter-agency discussion 2016 related Captain Wren was ultimately the result communications that Jurgensen had with Commissioner James Neill 2016, when Jurgensen received Presidential Award for his service. Jurgensen was asked there was anything new going on, and Jurgensen asserted that was still awaiting the report had been promised. The Commissioner said that would look into the matter. First Deputy Commissioner Tucker and Chief Rodney Harrison were present for that exchange. (Rec.110). Second, the January 2018 entries and references Captain Wren -10- affidavit relate event actually hosted the Society Professional Investigators which Micah Morrison, the individual who filed the FOIL requests issue herein, was speak about, inter alia, the NYPD propensity for reflexively, and without legitimate basis, denying FOIL and other requests for information. (Rec.110;120). The irony should not lost the Court. The other contentions related any ongoing investigation are equally irrelevant and certainly provide basis for precluding disclosure presumptively open public inspection. Ultimately, however, the lower court relied these half-truths and concluded that: ...while petitioner asserts that received information from various sources contending that the investigation into Patrolman Cardillo death had ended, this court has basis discredit the sworn statement Captain Wren...that the investigation active and ongoing, the report and files requested are not subject disclosure under POL 87(2)(e)(i). (Rec.7). Respectfully, this conclusion not only contravention the facts this matter, but also even the underlying factual premise were accepted true contravention the applicable law and the relevant case law that was cited Judicial Watch and not refuted either the NYPD the lower court. The lower court decision should reversed. -11- Relevant Law beyond question that the Legislature enacted FOIL provide the public with means access governmental records order encourage public awareness and understanding and participation government and discourage official secrecy. Matter Alderson New York State College Agriculture and Life Sciences Cornell University, N.Y.3d 225, 230 (2005), citing Matter Newsday Inc. Sise, N.Y.2d 146, 150 (1987); see also, Department Records and Information Services, N.Y.3d 373, 379-380 (2012); Matter Fappiano New York City Police Dept., N.Y.2d 738, 746 (2001); Matter Gould New York City Police Dept., N.Y.2d 267, 274 (1996). Agency records, such those maintained the NYPD, are presumptively open public inspection, without regard need purpose the applicant and FOIL requests are liberally construed with its exemptions narrowly interpreted that the public granted maximum access the records government.... Matter Buffalo News, Inc. Buffalo Enterprise Development Corporation, N.Y.2d 488, 492 (1994); see also, Matter Capital Newspapers Div. Hearst Corp. Burns, N.Y.2d 562, 566 (1986) (Court Appeals cautioned that exemptions must construed narrowly with the denying agency exclusively carrying the burden demonstrating that the requested material falls squarely -12- within FOIL exemption articulating particularized and specific justification for denying access see also Matter Data Tree, LLC Romaine, N.Y.3d 454, 462-463 (2007) (Admonishing that any statutory exemptions under FOIL must established with evidentiary support). Moreover, has been routinely recognized that vague allegations, attorney affirmations and/or statements individuals without personal knowledge the underlying facts are insufficient provide the requisite evidentiary support sustain denial FOIL request. Matter Dilworth Westchester County Dept. Correction, A.D.3d 722, 724 (2nd Dept 2012); see also, Matter Washington Post Co. New York State Ins. Co., N.Y.2d 557, 567 (1984). Moreover, here, when there bona fide ongoing investigation potential for judicial proceedings, much less risk taint the same through disclosure, denials FOIL requests must rejected and the requested documents must disclosed. See e.g., Matter Adam Perlmutter, P.C. New York City Police Dept., 2013 N.Y. Misc. LEXIS 4724, 2013 Slip 32532(U); see also, Matter Lesher Hynes, N.Y.3d 57, (2012). -13- Argument Point RESPONDENTS HAVE NOT MET, AND CANNOT MEET, THEIR BURDEN DEMONSTRATING THAT THE REQUESTED MATERIAL FALLS WITHIN EXCEPTION FOIL Respondents Have Not Met, And Cannot Meet, Their Burden Under Public Officers Law 87(2)(e)(i). Respondents sole basis for denying the instant FOIL requests remains 87(2)(e)(i): namely that the items requested were compiled for law enforcement purposes and disclosed would...interfere with law enforcement investigations judicial proceedings. opposition Judicial Watch Order Show Cause, the NYPD finally least acknowledged the need justify its abject failure respond substantively Judicial Watch FOIL requests.2 Contrary the lower court opinion, not sufficient allege that there active and ongoing investigation. There must be, bare minimum, some showing interference with, risk to, that investigation. The NYPD abjectly failed meet even this low bar, and the lower court erred not holding the NYPD responsible for While not dispositive, noteworthy that the NYPD initial denials generically cited the relevant statute without more; were made individual with personal knowledge the relevant facts factors; and did not constitute, even contain, any evidentiary support for the denial whatsoever. Based the submissions, clear that there active ongoing investigation and that the NYPD simply does not want divulge records that has legal obligation provide. -14- meeting the relevant legal standard sufficient preclude disclosure. Neither Captain Wren Affidavit, nor the case law cited the NYPD, provide legitimate basis withhold these requested documents. Captain Wren signed affidavit asserting myriad statements that ultimately say very little substance and certainly not demonstrate either bona fide ongoing investigation any attendant risks that disclosure would pose any future proceedings which could not cured with simple redactions. See Matter McGhee, 2016 N.Y.Misc. LEXIS 2704; see also, Church Scientology N.Y., N.Y.2d 906. The sole specific concern raised Captain Wren was related the identity witnesses, which the Court Appeals has asserted not basis for withholding documents responsive otherwise valid FOIL request. Id. All relevant judicial proceedings have run their course and there bona fide ongoing investigation. initial matter, Captain Wren has failed demonstrate that there, fact, bona fide ongoing investigation that all relevant judicial proceedings have not already run their course. See e.g., Lesher Hynes, N.Y.3d (2012). support his contentions, Captain Wren sets forth various assertions, none which are dispositive. Captain Wren asserts that Patrolman Cardillo murder remains -15- unsolved. This not accurate. Officer Cardillo murder has been solved. has since been publicly acknowledged that the initial investigation, along with the crime scene, were completely compromised and that police procedures were ignored and that civilians, politicians and leadership within the NYPD explicitly condoned and participated such egregious acts. summary, based agreement brokered between State Representative, Louis Farrakhan the Nation Islam NOI and NYPD Deputy Commissioner Benjamin Ward, relevant witnesses were released and not interviewed, the crime scene was scrubbed clean and forever contaminated and virtually every NYPD investigative procedure disregarded, well the unprecedented separation officers the basis race. was these documented failures the NYPD, the Mayor Office and the improper influence independent other political actors that precluded the possibility conviction this matter. The NYPD has publicly admitted, 2012, that the revived investigation turned new facts. 2015, nothing had changed. Nothing Wren affidavit asserts that any new facts leads have developed, just hypothetical hope that some potential leads could ascertained apparently metaphysically. There substance such potential circumstances. There new suspect. There has never been, the year history the investigation, any other suspect any genuine suspicion that any -16- suspect exists aside from the individual who was initially arrested and indicted for Officer Cardillo murder. such, all relevant judicial proceedings have run their course and the preclusive effect 87(2)(e)(i) has ceased apply. Lesher, N.Y.3d 67. Disclosure warranted this ground alone. support his contention that this ongoing bona fide investigation, Captain Wren asserts that over the past four (4) years Detective Rodriguez has: (1) tracked the whereabouts and locale witnesses who are still alive (emphasis added). This would not impeded disclosure. These are the same witnesses who have been part the investigation for over forty (40) years. They were aware their involvement then, and those facts have not changed. This not hallmark active ongoing investigation; (2) interviewed persons interest Without more, such interviews are likely recapitulations prior interviews or, more likely, noted below, interviews individuals with new revelations who are simultaneously investigating the why and the actions the government and its agents and employees the activities leading the murder Officer Cardillo and the effective cover-ups within the initial investigations Officer Cardillo murder. This certainly does not create ongoing and active investigation; -17- (3) reviewed older records (those generated during the initial police investigation 1972 and the Department in-depth re-inquiry initiated 2006). Even Captain Wren and the NYPD recognize that the investigation had been shut down some point; otherwise how could there have been re-inquiry initiated 2006 farce suggest that this matter was not closed and asserting that the investigation ongoing nothing more than face-saving, political act. The NYPD has now conceded much its papers herein even has previously acknowledged public statements to, inter alia, the press; (4) been contact with the relatives Officer Cardillo and 2016 pursued single tip. The lack information, any specifics, about this single tip over four year span speaks volumes about the extent this ongoing and active investigation; (5) tracked and observed public events where Patrolman Cardillo case highlighted The sole event referenced Captain Wren was event 2018 that, although not disclosed the NYPD, was, fact, event hosted the Society Professional Investigators which Micah Morrison, the individual who filed the FOIL requests issue herein, was speak about the investigation and the stonewalling the NYPD. Retired Detective Randy Jurgensen also attended that event. Presumably, Detective Rodriguez appears Court connection -18- with this Order Show Cause, the NYPD will assert that such participation also further evidence ongoing and active investigation; and (6) made contact [on single occasion 2016] with outside agency relation his investigation. Does the NYPD seriously expect this Court conclude that single contact with outside agency four year span warrants determination that investigation active and ongoing such extent that divulging decades old materials could jeopardize that investigation? clear that there bona fide basis preclude disclosure this circumstance. Moreover, likely that this sole contact with outside agency 2016 was actually precipitated conversation between Randy Jurgensen and the Police Commissioner the presence First Deputy Commissioner Tucker and Chief Rodney Harrison. there bona fide ongoing investigation; the relevant judicial inquiry has run its course; and the NYPD has acknowledged that the initial inquiry was closed; the re-inquiry initiated 2006 has been publically acknowledged the NYPD the press have turned new facts; the re-inquiry initiated 2006 known personally Randy Jurgensen not have ascertained any new facts and have confirmed the investigation and analysis concerning Officer Cardillo murder and that the suspect initially arrested and indicted was -19- the correct suspect; new investigation has been commenced the years subsequent the NYPD public assertions 2012 since the lead Detectives acknowledged that the re-inquiry initiated 2006 was complete there basis withhold the requested documents. The requested disclosures pose risk any investigation. Even assuming the existence active and ongoing investigation which not the case herein the NYPD has not demonstrated any attendant risks that disclosure would pose any future proceedings much less any which could not cured with simple redactions. See Matter McGhee, 2016 N.Y.Misc. LEXIS 2704; see also, Church Scientology N.Y., N.Y.2d 906. This dispositive element the statute that has been blatantly and purposefully ignored the NYPD and the lower court. Disclosure warranted this ground alone. The first actual risk specifically identified Captain Wren was his concern about the identification potential witnesses. initial and dispositive matter, this concern could resolved through redactions the Court Appeals has previously determined. See, Church Scientology N.Y., That Captain Wren now attests that Detective Rodriguez, after having been charge the file for four years and after the filing the instant action, only now has the intent, some time the future, widen the scope the interviews pursues, include additional individuals who may provide potential leads simply, and similarly, insufficient matter law provide basis preclude disclosure requested through FOIL. (Emphasis added). -20- N.Y.2d 906. Second, Captain Wren himself compelled admit, the risk disclosure having any effect any investigation diminishes over time. this case decades have past since the sole suspect was arrested, indicted and tried. Third, the risk also minimized the fact that majority witnesses have already been identified whether through the two separate and public trials Dupree; the various publications this matter (including Randy Jurgensen book, The Circle Six that was vetted and approved the NYPD); numerous press releases and articles over the intervening years. This, simply, not basis preclude disclosure. The second, and only other, alleged potential risks raised Captain Wren relate confidential documents. This concern equally unavailing. First, and dispositively, this was not stated basis for the initial denials and cannot raised now. Second, the documents personal Officer Cardillo, including his autopsy, are not being sought Judicial Watch. Third, the remaining, allegedly confidential, documents referenced should have all been made public least been provided the and Defense counsel during the two public trials Dupree and cannot now legitimately termed confidential. Again, the initial investigation has been documented and described detail publication Mr. Jurgensen that was published after being vetted and gaining the approval the -21- NYPD. The subsequent re-inquiry initiated 2006 has been publically and voluntarily acknowledged the NYPD the public and the press have turned new facts. The divulging rehashing prior investigations already made public cannot effect, much less deleteriously effect any investigation, even one was determined exist herein. Captain Wren concerns about generically described reports purportedly the files that rehash pre-existing discussions, investigations, interviews and the steps originally taken are not confidential and even they were, stated above, that could not constitute grounds withhold this juncture. most, such determination would warrant limited redactions. Ultimately, the sole attempt identify the attendant risks that disclosure would pose any future proceedings (Matter McGhee, 2016 N.Y.Misc. LEXIS 2704), required preclude disclosure, contained single sentence Captain Wren five page affidavit: Disclosure the records this case would clearly compromise the potential apprehension other perpetrators the documents are replete with police analysis potential leads, physical evidence and witnesses. Such conclusory assessment does not meet the NYPD burden under Public Officers Law 89(4)(b) articulate factual basis for the exemption Lesher, N.Y.3d 67. This especially true when the physical evidence has already been presented open court, the witnesses have been -22- publicly identified and all probative leads have been run down. Moreover, there dispute how Officer Cardillo died that was murdered through the use single fire-arm. Further, through the 40+ years that this matter has been investigated through both the initial investigation and when the matter was reopened the re-inquiry initiated 2006 new suspects were identified. None The Cases Cited The NYPD Warrant Precluding Discovery. None the cases cited Respondents warrant different conclusion. the Matter Deluca New York City Police Dept., 261 A.D.2d 140 (1st Dept 1999), many documents were turned over pursuant the relevant FOIL request. Here, the NYPD has turned over documents. Moreover, Deluca, the additional documents being withheld were withheld the basis the fact that the subject the requested documents had been shot and allegedly suffered substantial brain injuries. the record was devoid any information the officer then current medical condition and the proximity time the underlying events, the Court agreed that disclosure could await determination that the officer did not have the capacity interviewed the NYPD reinterviewed the officer. This not the case before year-old matter which has been acknowledged have been closed two separate occasions. the Matter Gorenitsyn Department Citywide Services, 2009 Misc, -23- LEXIS 4007, the court was faced with requests for disclosure stemming from the denial plumber license. Gorenitsyn, the Court determined that the request for documents was moot the same documents had already been provided Petitioner through his attorney related court proceeding. The FOIL request issue also involved the documents that were part the active negotiation, hearings and licensure proceeding that was ongoing. Again, this not the case before year-old matter which has been acknowledged have been closed two separate occasions. Church Scientology State, A.D.2d 942 (1st Dept 1978), the Appellate Division upheld the lower court determination that compelled disclosure with limited redactions. This case entirely supports disclosure herein. the Matter Loevy Loevy New York City Police Department, 139 A.D.3d (1st Dept 2016), the Appellate Division denied disclosure under specific concerns witness tampering and enabling the perpetrator evade detection. Contrary the instant case, perpetrator had ever been arrested the Loevy; witnesses had been previously publicly identified; trial had been undertaken; the NYPD had not made any public statements that arrest and indictment the sole existing suspect were proper and that the subsequent, re-opening inquiry had not led any additional facts: all material distinctions from the case now before -24- the Court. Neither The Lower Court Nor The NYPD Even Attempt Distinguish The Relevant Case Law From The Facts This Case. Moreover, neither the lower court nor the NYPD has even attempted distinguish the relevant case law cited the Petitioner demonstrating that even cases where the NYPD has filed affidavits specific ongoing investigations (that are actually ongoing, opposed the investigation issue herein), FOIL request denials have been rejected and disclosure directed. See e.g., Matter Collins New York City Police Dept., Misc. 1214(A), N.Y.S.3d 873 (S.Ct.NYCty 2017) (After NYPD provided some documents, its attempt preclude others based the investigation exemption was rejected despite assertions that case was ongoing and that accomplices were still being sought); Matter Fairfield Presidential Associates, LLC City New York, 2008 N.Y.Misc. LEXIS 9552, 2008 Slip 33416(U) (S.Ct.NYCty 2008) (Affidavit Detective based personal knowledge that the relevant investigation open and ongoing was rejected even where suspect was never apprehended (contrary the case bar) insufficient lacking requisite specificity); see also, Estate Robello Dale, 2014 Misc LEXIS 2444, 2014 Slip 31424(U) (S.Ct. Nassau 2014) (Court directed disclosure Nassau -25- County despite page affidavit from Nassau County Detective asserting ongoing investigation crime committed 2013). Ultimately, this case where there is, practically speaking, longer any pending potential law enforcement investigation judicial proceeding with which disclosure might interfere. Public Officers Law 87(2)(e)(i) would not preclude release the records. Lesher, N.Y.3d 68. The NYPD misreads the Court decision Lesher; practical analysis required. this instance, justice, practicality and the applicable law align, and the lower court decision should reversed. While understandable that absent conviction, there political interest not closing murder case, especially when the deceased Police Officer and especially when has been publically acknowledged that the initial investigation was fatally, and virtually uniquely, flawed result outside political influences and the decisions the Mayor office and the Police Commissioner Office the time. However, there simply basis this time legitimately contend that this investigation open, much less that divulging several year-old report the decades old investigative file would hinder anything (except continuing FOIL violation the part the NYPD), much less ongoing investigation some fanciful judicial proceeding. The NYPD -26- making mockery the FOIL laws. Judicial Watch instant FOIL requests have been denied unlawfully. the past years the NYPD has arrested one suspect. has never identified another suspect. the years after Officer Cardillo murder has never even been suggested that another suspect exists. Perhaps time for the NYPD share its information and see justice can finally served. -27- Conclusion WHEREFORE, respectfully requested that Order entered reversing the lower courts decision; directing the disclosure the files and report the Major Case Squad relevant the re-investigation commenced 2016 into the homicide Patrolman Cardillo; granting Judicial Watch its costs and expenses, including reasonable attorneys fees;and granting Judicial Watch any such other further relief this Court deems fit and proper. Dated: New York, New York March 15, 2019 flees ofNeal Brickman, P.C. Attorneys for Judicial Watch, Inc. 420 Lexington Avenue Suite 2440 New York, New York 10170 (212) 986-6840 -28- PRINTING SPECIFICATIONS STATEMENT Pursuant NYCRR Section 600.10(v) the foregoing brief was prepared computer using Microsoft Word. TYPE: proportionally spaced typeface was used follows: Name Typeface: Times New Roman Point Size: Line Spacing: Double WORD COUNT: The total number words the brief, inclusive point headings and footnotes and exclusive pages containing the table contents, table citations, proof service and certificate compliance, any authorized addendum containing statutes, rules, regulations, etc. 6,163. STATEMENT PURSUANT CPLR 5531 Supreme Court the State New York Appellate Division First Department JUDICIAL WATCH, INC., Petitioner-Appellant, against THE CITY NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT, Respondents-Respondents. The index number the case the court below 160286/2017. The full names the original parties are set forth above. There have been changes. This action was commenced Supreme Court the State New York, New York County. The action was commenced about November 16, 2017 filing Verified Petition. Issue was joined thereafter. This CPLR Article Special Proceeding action. The appeal from the Decision and Order the Honorable Verna Saunders, dated May 2018 and the relevant Judgment that was entered August 30, 2018. The appeal being perfected full reproduced record.