SUPREME COURT OF THE STATE OF NEV/ YORK COTINTY OF NEV/ YORK

X
THE LAV/ OFFICES OF ADAM D, PERLMUTTER, P.C.
Petitioner,

For a judgment pursuant to Article 78, etc,

-against

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

NEW YORK CITY POLICE DEPARTMENT and RAYMOND KELLY, in his ofhcial capacity as Commissioner of the New York City Police
Department
Respondents

AMENDED VERIFIED ANSWER

X
Respondents, by their attorney, Douglass B. Maynard, Deputy Commissioner, Legal

Matters, New York City Police Department ("NYPD"), acting by designation of Michael A. Cardozo, Corporation Counsel of the City of New York, as and for their Verified Answer to the

petition herein, respectfully allege as follows:

l, 2. 3. 4. 5. 6,

Deny the allegations set forth in paragraph "1" of the petition, except admit that

Petitioner purports to proceed as set forth therein, Deny the allegations set forth in paragraph "2" of the petition, except admit that

petitioner purports to proceed as set forth therein.

Deny the allegations set forth in paragraph "3" of the petition.

Admit the allegations set forth in paragraph "4" of the petition,

Deny knowledge or information sufficient to form a belief as to the allegations set

forth in paragraph "5" of the petition. Deny knowledge or information sufficient to form a belief as to the allegations set

forth in paragraph "6" of the petition,

7. 8. 9. 10,

Admit the allegations set forth in paragraph "7" of the petition,

Deny the allegations set forth in paragraph "S" of the petition, except admit that

Raymond W. Kelly is the Commissioner of the NYPD.

Deny knowledge or information sufficient to form a belief as to the allegations set

forth in paragraph "9" of the petition,

Neither admit nor deny the allegations set forth in paragraph

"l0"

of the petition,

which sets forth argument and conclusions of law to which no response is required, but to the
extent this Court deems a response necessary, deny any allegations set forth therein, except admit that breathalyzers are reliable methods of determining a subject's blood alcohol.
II

Neither admit nor deny the allegations set forth in paragraph " l I " of the petition,

which sets forth argument and conclusions of law to which no response is required, but to the
extent this Court deems a response necessary, deny any allegations set forth therein, and

respectfully refer the Court to Vehicle Traffic Law

statement of their content.

$$

1192 and 1 195, respectively, for a full

12. 13.

Deny knowledge or information sufficient to form a belief as to the allegations set

forth in paragraph

"l2"

of the petition.

Deny knowledge or information sufhcient to form a belief as to the truth of the

allegations set forth in paragraph "13" of the petition concerning the plea policies of the District

Attorneys' offices. Neither admit nor deny Petitioner's allegations in the first and second
sentences which set forth argument and conclusions of law to which no response is required but

to the extent necessary, deny the allegations set forth therein and respectfully refer the court to Vehicle & Traffic Law $ I 194 for a statement of the penalties.

14. 15. 16.

Deny the allegations set forth in paragraph "14" of the petition except admit that

the NYPD utilizes the Intoxilyzer 50008N to conduct chemical breath-alcohol testing. Deny the allegations set forth in paragraph Deny the allegations set forth in paragraph

"l5" "l6"

of the petition, of the petition, except admit that

the NYPD keeps its Intoxilyzer 5000 machines at the identified precincts and at the NYPD

Police Laboratory.

17. 18.

,{dmit the allegations set forth in paragraph "lT" of the petition.

Neither admit nor deny the allegations set forth in paragraph "18" of the petition,

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content,

19.

Neither admit nor deny the allegations set forth in paragraph

"l9" of the petition,

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.

20.

Neither admit nor deny the allegations set forth in paragraph "20" of the petition,

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.

2l

Deny the allegations set forth in paragraph "21" of the petition and respectfully

refer the Court to Petitioner's letter, dated August 30,2012, annexed hereto as Exhibit "A," for a

full statement of its content,

22.

Neither admit nor deny the allegations set forth in paragraph "22" of the petition

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.

23.

Neither admit nor deny the allegations set forth in paragraph "23" of the petition,

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.

24.

Neither admit nor deny the allegations set forth in paragraph "24" of the petition,

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content,

25. 26.
27

Admit the allegations set forth in paragraph "25" of the petition. Admit the allegations set forth in paragraph "26" of the petition.
Neither admit nor deny the allegations set forth in paragraph "27" of the petition

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content

28. 29. 30.

Deny the allegations set forth in paragraph"28" of the petition and respectfully

refer the court to the materials for a full statement of their content.

Admit the allegations set forth in paragraph "29" of the petition.

Neither admit nor deny the allegations set forth in paragraph "30" of the petition,

which recites information contained in materials provided to which no response is required, but to the extent this Court deems a response necessary, deny the allegations set forth therein and

respectfully refer the courl to the materials for a full statement of their content.
3
1

Neither admit nor deny the allegations set forth in paragraph "3 l " of the petition,

which recites information contained in materials provided to which no response is required, but
to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content.

32.

Admit the allegations set forth in the first sentence of paragraph"32" of the

petition. Deny the allegations set forth in the second sentence of paragraph"32" except admit
that the machine analyzes the vapor from the simulator solution and that the readings of the

calibration checks generate a printout.

33. 34. 35, 36.

Deny the allegations set forth in paragraph "33" of the petition, except admit

that the diagnostic check generates a printout. Deny the allegations set forth in paragraph"34" of the petition, except admit

that the Radio Frequency Interference ("RFI") check generates a printout. Deny the allegations set forth in paragraph "35 of the petition, except admit that

the Interferent check generates a printout.

Neither admit nor deny the allegations set forth in paragraph "36" of the petition,

which recites information contained in materials provided to which no response is required, but
to the extent this Court deems a response necessary, deny the allegations set forth therein and respectfully refer the court to the materials for a full statement of their content,

37. 38.

Deny the allegations set forth in paragraph"37" of the petition, except admit

that the Invalid Test check generates a printout.

Neither admit nor deny the allegations set forth in paragraph "38" of the petition,

which recites information contained in materials provided to which no response is required, but

to the extent this Court deems a response necessary, deny the allegations set forth therein and

respectfully refer the court to the testimony cited therein for a full statement of their content,

39.

Deny knowledge and information sufficient to form a belief as to the truth of the

allegations set forth in paragraph"39" of the Petition regarding what Petitioner has learned, except admit that the NYPD maintains a maintenance log for each Intoxilyzer 5000EN used by
the NYPD,

40.

Neither admit nor deny the allegations set forth in paragraph "40" of the petition,

except admit that access to these records sought during a criminal trial is determined by the judge overseeing the matter and is routinely denied,

41.
set

Deny knowledge and information sufficient to form a belief as to the allegations

forth in paragraph"4l" of the petition.

42.
set

Deny knowledge and information sufficient to form a belief as to the allegations

forth in paragraph"42" of the petition.

43.
set

Deny knowledge and information sufficient to form a belief as to the allegations

as

forth in paragraph"43" of the petition

to Petitioner's alareness.

44.

Deny the allegations set forth in paragraph "44" of the petition, except admit that

Respondents received a request pursuant to the Freedom of Information Law

("FOIL") dated

August 30,2012, and respectfully refer the Court to Petitioner's letter, dated August 30,2012,
annexed hereto as Exhibit

"4"," for a full statement of its content.

45. 46.

Deny the allegations set forth in paragraph "45" of the petition and respectfully

refer the Court to Petitioner's letter, dated August 30,2012, for a full statement of its content. Deny knowledge and information sufficient to form a belief as to the allegations

set forth in paragraph"46" of the petition,

47.

Deny the allegations set forth in paragraph "47" of the petition and respectfully

refer the Court to the letter by the NYPD Records Access Officer, Lieutenant Richard

Mantellino, dated September 20,2012, annexed hereto as Exhibit "B," for a full statement of its
content.

48,

Deny the allegations set forth in paragraph "48" of the petition and respectfully

refer the Court to the Petitioner's appeal, dated September 25, 2012, annexed hereto as Exhibit

"C," for

full statement of its content.

Deny knowledge and information sufficient to form a belief as to the allegations

49.

set forth in paragraph"49" of the petition, except affirmatively state that the Records Access

Appeals Officer received the appeal on October 2,2012.

50,

Deny the allegations set forth in paragraph "50" of the petition and respectfully

refer the Coutt to the letter by the NYPD's Records Access Appeals Offrcer, Jonathan David,
dated December 3,2072, annexed hereto as Exhibit

"D," for a full

statement of its content.

5l

Deny the allegations set forth in paragraph "5 l " of the petition, except admit that

Petitioner's FOIL request was denied.

52, 53, 54. 55, 56.

as

Admit the allegations set forth in paragraph "52" of the petition.

Deny the allegations set forth in paragraph "53" of the petition. Deny the allegations set forth in paragraph "54" of the petition.
Deny the allegations set forth in paragraph "55" of the petition, except

afhrmatively state that the Petitioner's FOIL request was denied.

Neither admit nor deny the allegations set forth in paragraph "56" of the petition

it

sets forth arguments and conclusions of law, but to the extent the Court deems a response

necessary, deny the allegations set forth therein,

57.
as

Neither admit nor deny the allegations set forth in paragraph "5T" of the petition

it

sets forth arguments and conclusions of law, but to the extent the Court deems a response

necessary, deny the allegations set forth therein.

58.
as

Neither admit nor deny the allegations set forth in paragraph "5S" of the petition

it

sets forth arguments and conclusions

of law, but to the extent the Court deems

a response

necessary, deny the allegations set forth therein,

59.
as

Neither admit nor deny the allegations set forth in paragraph "59" of the petition

it

sets forth arguments and conclusions

of law, but to the extent the Court deems

a response

necessary, deny the allegations set forth therein,

60.
as

Neither admit nor deny the allegations set forth in paragraph "60" of the petition

it

sets forth arguments and conclusions

of law, but to the extent the Court deems

a response

necessary, deny the allegations set forth therein.

61.

Neither admit nor deny the allegations set forth in the "'WHEREFORE" paragraph

inasmuch as it is a demand for relief to which no response is required.

INTRODUCTORY STATEMENT

62.

In this proceeding, Petitioner seeks an order directing Respondents to provide

copies of records that pertain to the calibration and maintenance of all Intoxilyzer 5000EN machines owned or maintained by the NYPD from January 2008 until August2012. However, the records sought by Petitioner are exempt from FOIL disclosure pursuant to N,Y, Public

Officers Law $87(2XeXi), in that the disclosure of law enforcement records would interfere with
pending judicial proceedings, Specihcally, the disclosure of the requested documents would interfere with pending DWI prosecutions in all five boroughs in which a defendant is charged

with Driving 'While Intoxicated ('DV/I") or Driving While Under the Influence of Alcohol

("DUI"), by expanding the scope of discovery permitted under Criminal Procedure Law
$240.20(1)(k) and usurping the authority of criminal court judges to determine the scope of discovery in cases pending and to be brought before them,

63,
charged with

According to CPL $240.20(1)(k), the People must provide the criminal defendant

DWI/DUI the most recent record of inspection or calibration or repair and the

certification, In the case at hand, the Petitioner, a criminal defense firm that specializes in

DWI/DUI

cases, is seeking to use the Freedom of Information Law to circumvent the established

limitation of the New York State criminal discovery statute and take from criminal court judges
the ability to exercise their discretion regarding pre-trial matters in their cases,

64.

In the following pages and in the accompanying Memorandum of Law,

Respondent provides the Court with a particularized showing that demonstrates that the

information withheld from disclosure is indeed exempt from disclosure pursuant to the Freedom of Information Law.

RESPONDENTS RESPECTFULLY ALLEGES

PETITIONER'W 65.
By letter dated August 30,2012, Petitioner made
a request pursuant

to FOIL seeking copies of several categories of records pertaining to the maintenance and calibration of all Intoxilyzer 5000EN machines owned or maintained by the NYPD for the last

five years (January 2008 until August 2012), including but not limited to:

a) b)

a a

record of Intoxilyzer 5000 calibration;

printout of the machine's calibration tests, including printouts of the

diagnostic check,

air blank calibration check, insuff,rcient sample check, radio

frequency

interference check, invalid sample check, interferent check and an invalid test check; and

c)
"4."

handwritten maintenance log.

See letter dated August 30,2012, by Daniel

A, McGuinness, Esq, a copy of which is annexed

hereto as Exhibit

66.

By letter dated September 20,2072, the NYPD's Records

Access Officer ("RAO") denied the records on the basis of N,Y. Public Officers Law

$87(2XeXi) as such records, if disclosed, would interfere with law enforcement investigations or

judicial proceedings, The Records Access Offlrcer also informed Petitioner that he may appeal
this decision within thirty (30) days of this letter. See letter dated September 20, 2012,by
Lieutenant Richard Mantellino, a copy of which is annexed hereto as Exhibit "B."

67.

By letter dated September 25,2012, the Petitioner appealed the

determination of the Records Access Ofhcer, Seg letter dated September 25, 2012, by Daniel A.
McGuinness, Esq., a copy of which is annexed hereto as Exhibit "C,"

68,

By letter dated December 3, 2012, the NYPD's Records Access Appeals

Officer("RAAO") denied Petitioner's appeal pursuant to Public Officers Law gg87(2)(e)(i) and

(ii) in that disclosure of the requested records would interfere with Court-supervised discovery in
ongoing litigation, would interfere with ongoing law enforcement investigations and further would deprive other parties of their right to a fair trial or impartial adjudication in ongoing

litigation. The appeal was also denied under Public Officers Law 987(2XeXiv) because
disclosure would reveal non-routine investigative techniques or procedures. Finally, the appeal was also denied under Public Offrcers Law $87(2Xg) to the extent that the requested records contain preliminary data and information. See, letter dated December 3,2012, by Jonathan

David, a copy of which is annexed hereto as Exhibit "D,"

69,

On Januar y 30,2013, Petitioner commenced an Article 78 proceeding

in the Supreme Court, New York County, seeking to compel a disclosure under FOIL of records Petitioner intends to use in defending criminal DV/I/DUI cases.

The Intoxilzver 50008N

70.

The Intoxilyzer 5000EN has been established as a scientifically

accepted and reliable method of determining a subject's blood alcohol level by using chemical

breath-alcohol testing,

71.

The Intoxilyzer machines are kept at six precincts -- the

7th

precinct, 28th

precinct, 45thprecinct, 78th precinct, l l2th precinct and the l20th precinct, There are two

Intoxilyzer machines kept at each precinct and the remaining Intoxilyzers are kept at the NYPD
Police Laboratory,

72.

Routine checks of the Intoxilyzer machines are made by an NYPD

technician. These checks include the field inspection test checks, which are done every five to
fourteen days, and the full calibration test checks, which are done every six months.

The Field Insnection Check

73. 74.

A field inspection check consists of an internal diagnostic check, a breath

tube heater check, a printer check and three calibration tests are conducted,

During the calibration checks, the Intoxilyzer runs a test on a simulator

solution of ethanol, which is used as a control, The solution is predetermined to register at ,10

reading. Additionally, an air blank test is run which draws in room air and purges the instrument
of any interferent. The reading for the air blank test must be ,000. When the calibration checks
are complete, a printout

will

be generated, listing the results of all three calibration tests, See

sample of calibration check printout, attached herein as Exhibit "E,"

75.

An internal diagnostic check is then performed that verifies that the

internal computing components are functioning properly. This check also includes a check of
the cell temperature of the Intoxilyzer. The results of the internal diagnostic check generate a

printout.

See sample of an internal diagnostic check printout, attached herein as

Exhibit "F,"

76.

The NYPD technician conducting the tests also fills out a handwritten form,

entitled "Police Laboratory Field Unit Inspection Report," indicating the results of the three calibration tests, the internal diagnostic check, the breath tube heater check and the printer check.
Further, if there are any comments with regards to the testing of the machine, the technician will

write these comments in the "Remarks" section. See sample of a Police Laboratory Field Unit
Inspection Report, attached herein as Exhibit "G."

The Full Calibration Test

77.

A full calibration test is conducted on each machine every six months.

During the full calibration test, an NYPD technical supervisor runs a diagnostic check, f,rve calibration checks and simulated tests checking for any potential errors with the machine's
readings.

78.
of
a

The results of the diagnostic check are generated on a printout. See sample

diagnostic check printout, attached herein as Exhibit "H."

79.

In regards to the five calibration checks performed, one printout is

generated to reflect the readings of all five calibration

checks.

See sample of the calibration

report, attached herein as Exhibit

"I."

80,

The simulated tests include the breath tube test; insufficient sample test;

radio frequency interferent test; reset test; digital display test; general condition check; invalid

sample test; interferent test; invalid test and a print test. If there are any errors with any of the
tests, the Intoxilyzer machine

will abort that test, of

81. 82.

The breath tube test ensures that the tube is properly heated, The results

this test are entered manually.

The insufficient sample test ensures that enough air is breathed into the

tube for analysis. The results of this test generate a printout. See sample of an insufficient
sample test printout, attached herein as Exhibit

"J."

83,

The radio frequency interferent ("RFI") test ensures that the RFI detector

is working properly. The results of this test generate a printout. See sample of an RFI test

printout, attached herein as Exhibit "K."

84.

The reset button test ensures that this button is working properly, This test

is a visual inspection and there is no printout generated, Rather, the result is handwritten on the

"Police Laboratory Calibration Report." See sample of Police Laboratory Calibration Report,
attached herein as Exhibit

"L."

85.

The digital display test ensures that the display where the reading of the

alcohol test is shown is working properly. This test is a visual inspection and there is no printout
generated. Rather, the result is handwritten on the "Police Laboratory Calibration

Report."

See

Exhibit "L."

86.

The general condition inspection examines the general condition of the

machine, This test is a visual inspection and there is no printout generated. Rather, the result is
handwritten on the "Police l,aboratory Calibration Report," See Exhibit"L."

87.

The invalid sample test ensures that the Intoxilyzer machine is able to

distinguish between alcohol present in the subject's mouth and alcohol present in deep lung air.

The results of this test generate a printout, See, sample of the invalid sample test printout,
attached herein as Exhibit

"M."

88,

The interferent check ensures that the machine is able to distinguish

between alcohol and another substance, This check involves two tests - one with acetone and
one with methanol,

If the machine is working properly, it will be able to subtract the acetone

from the alcohol content and will generate an "Interferent subtracted" printout, If the machine is
able to detect the methanol separate from the alcohol, it

will

generate an "lnterferent detected"

printout.

See, sample

of Interferent test printout, attached herein as Exhibit "N,"

a procedural error, the

89,
machine

An invalid test ensures that if the technician commits

will abort the test. The invalid test results generate a printout.
"O."

See, sample of

Invalid

Test printout, attached herein as Exhibit

The Undisclosed Records and Information are E@

90,

The records sought by Petitioner are exempt from disclosure pursuant to

as the Interference

N.Y, Public Officers Law $87(2XeXi), also known

Exemption, which

proscribes the disclosure of law enforcement records, which, if disclosed, would interfere with a pending judicial proceeding. This section applies to the disclosure of records during a criminal prosecution and any subsequent proceeding within the same prosecution.

91.

FOIL's Interference Exemption protects all types ofjudicial proceedings

from the interference that would result from the premature disclosure of law enforcement
records, The exemption does not specify a particular type ofjudicial proceeding to any particular
phase

within a judicial proceeding.

92,

Access to the records requested by the 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 Public Officers Law $87(2XeXi) because disclosure would interfere with ongoing

DWI prosecutions in all hve New York City

boroughs.

93.

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

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

in pending criminal DV/I prosecutions.

94.

Specifically, in a prosecution of an offense proscribed by the Vehicle and

Traffic Law, CPL $240.20(1)(k) provides for the disclosure of:

any written report or document, or portion thereof, concerning a physical examination, a scientihc test or experiment, including the most recent record of inspection or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction ofa public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial,

95.

Under this statute, a DWI/DUI defendant is entitled to the most recent

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

96.

Defendants in DWI/DUI prosecutions routinely request and are denied access by

the Court to calibration or maintenance records for prior years. As such, disclosure of these records pursuant to FOIL would interfere with the rulings of the criminal court and would

ultimately usurp the criminal judge's authority in the criminal matter to decide issues of
disclosure, Releasing those records to the public under FOIL would nullify any decision by the

Criminal Court judge allowing the District Attorney's Office to withhold from disclosure those

same records,

Ongoing DWI prosecutions

97

Assistant District Attorney ("ADA") Joseph McCormack, Chief of Vehicular

Crime Prosecution in Bronx County, New York, has provided an affirmation providing the
number of open D'WI prosecutions in all five boroughs from 2008 to 2012. ADA McCormack is
an expert in the field of criminal prosecution of

DWI/DUI offenses.

See

Affrrmation by Assistant
as

District Attorney Joseph McCormack, dated May 2,2013, attached herein

Exhibit "P."

98.

The disclosure of the records at issue herein include the calibration and field test

records of the Intoxilyzer machines. These records have been and continue to be the subject of

conflict during the discovery phases of these cases. ADA McCormack is fully aware of the types

of materials sought by criminal

defense attorneys during discovery

in DWI/DUI

cases and CPL

further is aware of the types of records disclosed by prosecutors

in accordance with

$240,20(1)(k). It is ADA McCormack's expert opinion that the disclosure of these records under

FOIL would interfere with discovery in numerous pending and future criminal DWI/DUI
prosecutions.

99.

Assistant District Attorney McCormack from the Bronx County

a query

District Attorney's Office conducted

of the Bronx County l)istrict Attorney's database.

Pursuant to that query, in Bronx County, over 1,200 DWI prosecutions are still pending, from 2008 to 2013. The breakdown of the number of cases by year is as follows:

a. b, c. d, e.

For 2008, there are 9 open D'WI cases;

for 2009, there are 23 open DWI cases;

for 2010, there are I l0 open DWI cases; for 201 I , there are 241 open DV/l cases;
for 2072, there are 552 open DWI cases and

f.
See

for 2013, there are304 open DWI cases.

Exhibit"P" atl14.

100.

Assistant District Attorney Jill Hoexler from New York County District
database,

Attorney's Offlrce conducted a query of the New York County District Attorney's

Pursuant to that query, in New York County, over 1,600 DWI prosecutions are still pending,

from 2008 to 2013. The breakdown of the number of cases by year is as follows:

a. b. c, d, e. f.
See

For 2008, there are 59 open DV/l cases;

for 2009, there are 60 open D'WI cases; for 2010, there are 80 open DWI cases; for 201l, there are 776 open D'WI cases; for 2012,fherc are 650 open DWI cases and for 2013, there are 342 open D'WI
cases.

Exhibit "Q" at fl 4.

101.

Assistant District Attorney Adam Silberlight from Richmond County District

a query

Attorney's Office conducted

of the Richmond County District Attorney's database.

Pursuant to that query, in Richmond County, over 300 DV/I prosecution are still pending, from 2009 to 2013. The breakdown of the number of cases by yearl are as follows:

a. b. c. d. f.
See

For 2009, there are 2 open DV/l cases;

for 2010, there are 6 open DWI cases; for 201

1,

there are 39 open DWI cases;

for 20l2,lhere are 164 open DWI cases;

for 2013, there are 95 open DWI cases.

Exhibit "R" at fl 4.

Richmond County does not have any open DV/l cases for 2008

102.

Assistant District Attorney Karen Rankin from Queens County District

a query

Attorney's Ofhce conducted

of the Queens County District Attorney's database,

Pursuant to that query, over one thousand DWI prosecutions are still pending, from 2008 until

2013. The breakdown of the number of

cases by year are as follows:

a. b, c. d, e. f.
See

For 2008, there is one open DV/l case;

for 2009, there is one open DWI case; for 2010, there are 7 open DWI cases;

for 201 1, there arc 52 open DWI cases;

for 2012, there are 428 open DWI cases and

for 2013, there are 537 open DWI

cases.

Exhibit "S" at fl 4.

103.

Assistant District Attorney Craig Esswein from Kings County District

Attorney's Office conducted a query of the Kings County District Attorney's database, Pursuant
to that query, in Kings County, over one thousand DWI prosecutions are still pending, from 2008

until 2013. The breakdown of the number of cases by year are as follows:

a. b. c. d. e. f.
See

For 2008, there are 13 open DV/l cases;

for 2009, there are 12 open DWI cases; for 2010, there are 50 open DWI cases; for 201 l, there arc 96 open DWI cases;
for 2012, there are 445 open DV/l cases and

for 2013, there are 395 open DV/l

cases.

Exhibit"T" atl4,

104.

Except for a small percentage of cases in which the criminal defendant

refused to participate, each of these cases involve the use of an Intoxilyzer 5000EN machine.

Thus, the total number of pending prosecutions in New York City involving Intoxilyzer 50008N machines exceeds three thousand, See flfls 4 from Exhibits
6(

Q'r

r(IJ."

105.

Petitioner is a criminal defense attorney who frequently defends D'WI

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

DV/l / DUI cases,"

See http://adplegal,com/practice-areas/dwi-defense/

It is clear that the

Petitioner intends to use such records for criminal defense of DWI/DUI cases and is trying to circumvent the statutory discovery limitations set by CPL$240.20(1Xk) by requesting these
documents pursuant to FOIL.

AS AND FOR A FIRST DEFENSE. RESPONDENTS ALLEGE:

106.

The records requested by Petitioner are exempt from FOIL disclosure

pursuant to N.Y. Public Officers Law $87(2XeXi), in that the documents are compiled for law enforcement purposes and would interfere with law enforcement investigations and ongoing prosecutions. Accordingly, disclosure of the law enforcement records sought under FOIL would interfere with numerous pending and future prosecutions and are exempt from disclosure.

AS AND FOR A SECOND DEFENSE. RESPONDENTS ALLEGE:

107.

The records requested by Petitioner are exempt from FOIL disclosure

pursuant to N.Y. Public Offrcers Law $87(2)(a), in that disclosure of the requested documents under FOIL would expand the scope of discovery permitted under Criminal Procedure Law $240.20(1Xk).

AS AND FOR A THIRD DEFENSE, RESPONDENTS ALLEGE:

108,

Respondents' denial of Petitioner's FOIL request was lawful and proper

in every respect and mandated by law. AS AND FOR A FOURTH DEFENSE. RESPONDENTS ALLEGE:

109.

The records requested by Petitioner are exempt from FOIL disclosure

pursuant to N,Y. Public Officers Law $87(2Xg) in that the records are intra-agency materials.

AS AND FOR A FIFTH DEF'ENSE, RESPONDENTS ALLEGE:

I

10.

As petitioner is proceeding pro se, it is not entitled to an award of

attorneys' fees if he should prevail in this proceeding.

WHEREFORE, by virtue of the foregoing and of the annexed exhibits and

memorandum of law, Respondents respectfully request that this Court deny the Petition and dismiss this proceeding, and grant such other and further relief as may be just and proper, The undersigned counsel certifies that, to the best of my knowledge, information and

belief, formed after a reasonable inquiry, the presentation of the within litigation papers and of
the contentions therein, is not frivolous as defined in subsection (c) of 130-1.1,

Dated: New York, New York

}v4ay

2,2073

MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Defendant 100 Church Street, Room 2-l2l New York, New York 07 (212) 78 By:
S

tz ation Counsel

VERrrrCATION
STATE OF NEW YORK

CoLTNTY OF NEVr YORK )

s.s.

Lori Hernandez, being duly swom, deposes and says that she is

an

DEPUTY MANAGING ATTORNEY in the Legal Brreau of the New York City Police

Departnent; that the reason why this VERIFICATION is not made by the respondent is
that your deponent has been duly designated by the Police Commissioner of the New

York City Police De,partment, prrsuant to Section 1101, subdivision (a) of the New York

City Charter, to act on said Commissioner's behalf for the purpose of veriffing

the

pleadings herein; that she has read the foregoing Amended Verified Answer and knows

the contsrits thereof to be true except as to matters therein alleged upon information and

belief and as to those matters, she believes them to be true, that the source of this
information and the basis for her belief are the books and records of the New York City
Police Departnent and other deparfrnents of the oity government ard/or om statements
made to herby certain offic rs or agents of The City of New York.

'/-"
Sworn to before me on

Lori Hernadez

of MA\

day

,201,3

Notary
AMENDED VERIFIED PETITTON
Perlmuttcr v. NYCPD, ot al Index No,: 100220113 Suprnc Court of the State ofNew York CountSr of New York

DAVID G. GOLDFARB, Notypublic Stetc of Nw lo. bzCOo-uss yok Corntc _ Qulifed n New

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