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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Ronald J. BRIGGS, as District Attorney of Essex County, Petitioner, v. Andrew HALLORAN, as Essex County Judge, Respondent.

Decided: November 24, 2004

Before:  PETERS, J.P., MUGGLIN, ROSE, LAHTINEN and KANE, JJ. Ronald J. Briggs, District Attorney, Elizabethtown (John E. Maney of counsel), for petitioner.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to prohibit respondent from enforcing that part of an order which, inter alia, directed petitioner to disclose certain discovery material by a certain date.

In connection with a criminal action in which petitioner was directed to disclose Rosario material “three days prior to any hearings and three days prior to ․ trial ․, exclusive of Saturdays, Sundays, and Holidays,” this CPLR article 78 proceeding was commenced to prohibit respondent from enforcing that part of his order.   This Court granted petitioner's motion for a stay pending a determination in this proceeding.

 Although pretrial discovery is complete, the order for early disclosure stayed and the fact-finding stage completed,1 petitioner seeks review of this matter as an exception to the mootness doctrine (see Wisholek v. Douglas, 97 N.Y.2d 740, 742, 743 N.Y.S.2d 51, 769 N.E.2d 808 [2002] ).   Accepting petitioner's assertion that the order for early disclosure is now boilerplate language in respondent's orders, and mindful that such orders are not directly appealable (see CPL 450.20), yet have the potential to substantially impact criminal trials, we find review appropriate because “the controversy or issue involved is likely to be repeated, typically evades review, and raises substantial and novel questions” (Wisholek v. Douglas, supra at 742, 743 N.Y.S.2d 51, 769 N.E.2d 808;  see Matter of Williamsville Clare Bridge Operator v. Novello, 6 A.D.3d 861, 863, 775 N.Y.S.2d 382 [2004];  Kingston Area Sanitation Serv. v. City of Kingston, 270 A.D.2d 541, 542, 705 N.Y.S.2d 302 [2000] ).

 We also find petitioner's use of the writ of prohibition to be proper because it challenges “a court ․ act[ing] or threaten[ing] to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction” (Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170 [1986];  see Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276 [1997];  Matter of Broome County Dist. Attorney's Off. v. Meagher, 8 A.D.3d 732, 733, 777 N.Y.S.2d 567 [2004];  Matter of Cloke v. Pulver, 243 A.D.2d 185, 188, 675 N.Y.S.2d 650 [1998] ).   In so determining, we have considered

“the gravity of the harm [which could be] caused by the act sought to be performed by the official;  whether the harm [could] be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity;  and whether prohibition would furnish ‘a more complete and efficacious remedy ․ even though other methods of redress are technically available’ ” (Matter of Rush v. Mordue, supra at 354, 509 N.Y.S.2d 493, 502 N.E.2d 170, quoting Matter of Dondi v. Jones, 40 N.Y.2d 8, 14, 386 N.Y.S.2d 4, 351 N.E.2d 650 [1976] ).

(See Matter of Sacket v. Bartlett, 241 A.D.2d 97, 101-102, 671 N.Y.S.2d 156 [1998], lv. denied 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d 320 [1998].)   There is no constitutional or common-law right to discovery in a criminal case (see Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507 [1988];  People v. Chiera, 255 A.D.2d 685, 686 n., 681 N.Y.S.2d 111 [1998] ).  “ ‘[T]he law of discovery is basically a creature of legislative policy’ ” (Matter of Sacket v. Bartlett, supra at 101, 671 N.Y.S.2d 156, quoting Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 240.10, at 333) which was intended to be strictly construed (see People v. Colavito, 87 N.Y.2d 423, 427, 639 N.Y.S.2d 996, 663 N.E.2d 308 [1996] ).   Thus, the writ of prohibition was properly utilized.

 At pretrial hearings, pursuant to CPL 240.44, Rosario material must be disclosed by the People, upon request, “at the conclusion of the direct examination of each of its witnesses.”   At trial, Rosario material must be disclosed by the People “[a]fter the jury has been sworn and before the prosecutor's opening address” (CPL 240.45[1] ).   Although a trial court is given limited discretion to regulate discovery pursuant to CPL 240.50(1), this discretion does not authorize an order expediting the time frame for production unless the People opt for voluntary early disclosure (see People v. Colavito, supra at 427, 639 N.Y.S.2d 996, 663 N.E.2d 308).   No such voluntary disclosure agreement existed here.   Thus, respondent performed an ultra vires judicial function, warranting our discretionary determination that the issuance of a writ of prohibition is proper (see Matter of Brown v. Blumenfeld, 296 A.D.2d 405, 405-406, 745 N.Y.S.2d 54 [2002];  Matter of Mollen v. Mathews, 269 A.D.2d 42, 46-47, 710 N.Y.S.2d 399 [2000];  Matter of Catterson v. Rohl, 202 A.D.2d 420, 423-424, 608 N.Y.S.2d 696 [1994], lv. denied 83 N.Y.2d 755, 613 N.Y.S.2d 127, 635 N.E.2d 296 [1994] ).

ADJUDGED that the petition is granted, without costs, and respondent is prohibited from enforcing the April 1, 2004 order insofar as it is challenged.


1.   Petitioner has advised this Court that the defendant in the criminal action entered a plea.



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