PEOPLE v. TORRES (2000)

Defendant is confined at Otisville Correctional Facility.   Defendant was tried and found guilty inter alia of two counts of Rape in the First Degree (Penal Law § 130.35).   He was sentenced to an indeterminate term of imprisonment of four (4) to twelve (12) years.

Defendant ex parte moves for an order to allow a named polygraphist to enter the Otisville facility for the purpose of administering a lie detector examination to defendant.   The defendant also moves for an order directing the Warden of Otisville to provide a suitable place for the administration of said exam.

 Counsel for defendant contends that a lie detector exam need be performed on defendant to help prove his innocence and to aid in the preparation of a coram nobis application pursuant to CPL § 440.10.

 This Court denies defendant's ex parte application.   Once a defendant has been sentenced, the court retains no jurisdiction over a “concluded” criminal action except as explicitly authorized by statute.  (People v. Stevens, 91 N.Y.2d 270, 277, 669 N.Y.S.2d 962, 692 N.E.2d 985).   Thus, this Court is without authority to grant this application.

 Assuming arguendo that this motion is an application for discovery in furtherance of or in anticipation of a CPL § 440.10 motion, the relief sought would nonetheless be denied.   There is no constitutional right (Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30;  Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507) or common-law (People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 28, 156 N.E. 84) right to discovery.   Discovery is authorized and circumscribed by statute (see, People v. Seeley, 179 Misc.2d 42, 50, 683 N.Y.S.2d 795, citing People v. Copicotto, 50 N.Y.2d 222, 225, 428 N.Y.S.2d 649, 406 N.E.2d 465;  Matter of Hynes v. Cirigliano, 180 A.D.2d 659, 579 N.Y.S.2d 171).   There are no discovery provisions under the Criminal Procedure Law for motions under § 440 of the CPL.   Courts cannot grant discovery where no statutory basis exists.  (Matter of Sacket v. Bartlett, 241 A.D.2d 97, 101, 671 N.Y.S.2d 156;  Matter of Pirro v. La Cava, 230 A.D.2d 909, 910, 646 N.Y.S.2d 866).

Accordingly, defendant's ex parte application is denied in all respects.

JOHN M. LEVENTHAL, J.