Can a Court Create Discovery Processes Where the Legislature Has Not Authorized Them ?
In People v. Kindt (182 Misc 2d 659), the prosecutor requested to be present at a mental examination of the defendant by the defendant's own psychiatrist.
The prosecution cited no authority supporting or even addressing its request.
Thus, the court looked to the statutory silence of CPL 250.10.
The court maintained that although defense counsel had the right to be present at the prosecution's mental examination of the defendant, it would not allow the reverse situation.
The court held (at 661): "It is not for this court or any other to second-guess the Legislature.
As is often pointed out, discovery is strictly a creation of the Legislature and if the Legislature does not provide for a certain type of discovery, it is not for the courts to provide it".
This Court agrees with this reasoning and has previously held that it cannot create discovery processes where the Legislature has not explicitly authorized them:
"At common law, courts had no power to order discovery in criminal cases (People v. Colavito, 87 NY2d 423, 426; People ex rel. Lemon v. Supreme Ct., 245 NY 24, 28).
There is also no Federal or State constitutional right to discovery (Weatherford v. Bursey, 429 US 545, 559; Matter of Miller v. Schwartz, 72 NY2d 869, 870).
The New York Legislature has taken into account values 'premised on constitutional rights and fundamental fairness' and adopted CPL article 240 which, by specifying what exactly is discoverable prior to a criminal trial, essentially excludes items not mentioned from discovery (People v. Colavito, supra, 87 NY2d, at 427).
"Since there is no constitutional right to discovery in criminal cases, courts cannot grant discovery where no statutory basis exists (Matter of Sacket v. Bartlett, 241 AD2d 97, 101; Matter of Pirro v. LaCava, 230 AD2d 909, 910).
Thus, discovery in criminal proceedings is entirely governed by statute (People v. Copicotto, 50 NY2d 222, 225; Matter of Hynes v. Cirigliano, 180 AD2d 659)." (People v. Seeley, 179 Misc 2d 42, 50.)
People v. Santana (80 NY2d 92) involved the interplay of subdivisions (3) and (4) of CPL 250.10.
CPL 250.10 (4) requires that a written report and summary of the psychiatric examination of the defendant by the prosecution be prepared and made available to the defense counsel.
It is in the discretion of the court whether or not a transcript or recording of the examination is to be made.
If it is so ordered, however, the statute provides that the transcript or recording will be made available to the defense counsel as well.
In Santana, the trial court in denying defendant's request for a transcript or recording likened this request to the presence of defendant's expert at the exam.
The Court of Appeals never had to reach this issue, as the conviction was reversed on other grounds.
The statute, however, explicitly allows a court to exercise its discretion in permitting a mental examination to be transcribed or taped.
There is nothing in CPL 250.10 authorizing the presence of an expert at a mental exam, even in the court's discretion.
The disruptive potential of the presence of the expert leads this Court to deny the request even if the Court were to have the inherent discretion to grant such a request.