In Brown v. Appelman, 241 A.D.2d 279, (2d Dept 1998), the Appellate Division Second Department, discussed a defendant's right to preindictment discovery of physical evidence in a capital case. The court held in Brown that since discovery in criminal cases is generally a statutory right and the CPL does not provide for discovery prior to indictment, and because the Legislature has not recognized a special need for preindictment discovery in capital cases and such right may not be judicially created, there is simply no heightened right to preindictment discovery in capital cases. The Brown court also held that insofar as there is no general constitutional right to discovery in a criminal case, a request for preindictment discovery may not be premised upon notions of due process. (Brown v. Appelman, supra, at 285.) The Appellate Division discussed the right to preindictment discovery of physical evidence in a capital case. The Court ruled that, since discovery in criminal cases is generally a statutory right and the Criminal Procedure Law does not provide for discovery of evidence prior to indictment and since the Legislature has not recognized a special need for preindictment discovery in capital cases, "there simply is no heightened right to preindictment discovery in capital cases" ( Brown v. Appelman, supra, at 283-285). In addition, the Court ruled that insofar as there is no constitutional right to discovery in a criminal case, a request for preindictment discovery may not be premised upon notions of due process ( Brown v. Appelman, supra, at 285).