IN RE: Richard A. BROWN (2002)

Proceeding pursuant to CPLR article 78 to prohibit the enforcement of an order of the respondent Joel L. Blumenthal, dated February 25, 2002, in a criminal action entitled People v. Marlon Johnson, pending in the Supreme Court, Queens County, under Indictment No. 709/01, which granted the application of the defendant therein, Marlon Johnson, to compel the infant complainant to undergo a psychological examination by the defendant's psychologist.

ADJUDGED that the petition is granted, without costs or disbursements, and enforcement of the order dated February 25, 2002, in the underlying criminal action, is prohibited.

 The remedy of prohibition generally lies when a court acts without jurisdiction or when a court exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7801, 7803;  Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355, 653 N.Y.S.2d 237, 675 N.E.2d 1189;  Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Matter of Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 502 N.E.2d 170).   To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error;  rather, the court's error must implicate its very powers and thereby give the petitioner a clear legal right to relief to correct the error (see Matter of Pirro v. Angiolillo, supra at 355-356, 653 N.Y.S.2d 237, 675 N.E.2d 1189;  Matter of Holtzman v. Goldman, supra at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Matter of Rush v. Mordue, supra at 353, 509 N.Y.S.2d 493, 502 N.E.2d 170).

 Prohibition may be an appropriate remedy where the County Court or Supreme Court exceeds its statutory authority by ordering the People to make disclosure which they are not required to make pursuant to the governing statutes (see Matter of Pirro v. LaCava, 230 A.D.2d 909, 646 N.Y.S.2d 866;  Matter of Catterson v. Rohl, 202 A.D.2d 420, 608 N.Y.S.2d 696;  Matter of Hynes v. Cirigliano, 180 A.D.2d 659, 579 N.Y.S.2d 171;  also see Matter of Sacket v. Bartlett, 241 A.D.2d 97, 671 N.Y.S.2d 156).   Moreover, discovery which is unavailable pursuant to statute should not be ordered based on principles of due process because “there is no general constitutional rights to discovery in criminal cases” (Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507;  see Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30).

 In the underlying criminal action, which involves the alleged sexual abuse of a now 10-year-old child, there is no statutory or constitutional support for an order compelling the child to undergo a pretrial psychological examination by the defense expert (see People v. Earel, 220 A.D.2d 899, 632 N.Y.S.2d 689, affd. 89 N.Y.2d 960, 655 N.Y.S.2d 859, 678 N.E.2d 471;  also generally People v. Herring, 227 A.D.2d 658, 641 N.Y.S.2d 649;  People v. Gutkaiss, 206 A.D.2d 628, 614 N.Y.S.2d 599).   Accordingly, under the circumstances presented herein, the issuance of a writ of prohibition is warranted as a matter of this court's discretion “following consideration of such factors as the gravity of harm caused, the availability of an adequate remedy on appeal, at law or in equity, and the remedial effectiveness of prohibition” (Matter of Catterson v. Rohl, supra at 424, 608 N.Y.S.2d 696;  seeMatter of Pirro v. LaCava, supra;  Matter of Sacket v. Bartlett, supra ).

The respondents' remaining arguments are without merit.