Is the Right to Preindictment Discovery of Physical Evidence In Capital Cases Constitutional ?

In Brown v. Appelman (241 A.D.2d 279, 672 N.Y.S.2d 373 2d Dept 1998), 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). This determination by the Appellate Division finds support in pronouncements of the Court of Appeals (see, People v. Lancaster, 69 N.Y.2d 20, 26, 511 N.Y.S.2d 559, 503 N.E.2d 990 "Neither do the People have the same obligation of disclosure at the Grand Jury Stage as they have at the trial stage."; People v. Sawyer, 96 N.Y.2d 815, 727 N.Y.S.2d 381, 751 N.E.2d 460 2001 "The only explanation offered by defendant in his request for a delay was ... that he had not received certain discovery material (to which he was not entitled prior to the Grand Jury presentation)").