Johnson v. Brandveen

—Application pursuant to CPLR article 78, in the nature of a writ of prohibition, seeking an order to *669enjoin respondent Justice from directing the People to take a photograph of the complainant in a pending criminal matter, People v Thomas (Bronx indictment No. 5703/89) and provide it to defendant, is unanimously granted, without costs.

Defendant’s application for the production of a photograph of the 15-year-old kidnapping and rape victim does not come within the scope of CPL 240.20 and, despite defendant’s claim of a prior relationship with the complainant, we discern no theory under which this item, which does not even exist, constitutes exculpatory material (see, Brady v Maryland, 373 US 83) or the prior statement of a prosecution witness (see, People v Rosario, 9 NY2d 286; People v Consolazio, 40 NY2d 446). Nor is it within the scope of respondent’s authorized powers to compel the People to create this, or any, evidence for the defendant. Concur—Kupferman, J. P., Carro, Milonas, Kassal and Ellerin, JJ.