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In the Matter of TYRONE POWELL, Appellant, v. E.F. BERNHARDT, ESQ., as Records Access Appeals Officer, Respondent.

Pursuant to a Freedom of Information Law request, petitioner obtained records from his Bronx murder trial, including a crime-scene videotape. Respondent's denial of the request insofar as it sought a purported second crime-scene videotape, or the entire crime-scene videotape depicting the closed barrel, or a barrel being opened, was sufficiently supported by an Assistant District Attorney's affirmation that he diligently searched for the requested material and despite those efforts, no such videotape could be located (Public Officers Law § 89; Matter of Rattley v. New York City Police Dept., 96 NY2d 873). Petitioner's arguments on appeal — that the IAS court erred in failing to require respondent to present proof of authentication of the crime-scene videotape it provided, and in failing to order a hearing to determine why the videotape sent petitioner did not depict the opening of the barrel — are unpreserved, and in any event, without merit.

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IN THE MATTER OF POWELL v. BERNHARDT
(Jun 28, 2005)