Opinion
September 27, 1993
Adjudged that the petition is granted, on the law, without costs or disbursements, with leave to the respondent District Attorney of Kings County to renew his application, following service of the affidavits and any other papers upon which it is based, upon the petitioner, who is to be afforded a reasonable opportunity to be heard thereon.
While the remedy of prohibition may not be available to challenge an order issued under CPL 240.40 (see, e.g., Matter of Anonymous, 156 A.D.2d 1028, affd 76 N.Y.2d 766; Matter of Dunnigan v Weissman, 181 A.D.2d 731), it is nevertheless an appropriate vehicle for an uncharged suspect in a homicide investigation who seeks to prohibit the enforcement of an order directing him or her to supply corporeal evidence (see, e.g., Matter of Abe A., 56 N.Y.2d 288, 296, n 3; Matter of Anonymous v Cacciabaudo, 153 A.D.2d 856; Matter of William D. v Rohl, 148 A.D.2d 706, 707).
Reaching the merits of the instant case, we find that the People did not demonstrate a need for confidentiality sufficient to permit their application to compel the production of corporeal evidence to be made and determined on sealed papers (see, People v Castillo, 80 N.Y.2d 578, cert denied ___ US ___, 113 S Ct 1854). The petitioner's application to prohibit enforcement of that order is therefore granted, with leave to the People to seek the same relief upon a proper showing of the need for confidentiality in accordance with People v Castillo (supra). In the absence of a finding of such need by the court, the petitioner must be permitted an opportunity to challenge the claim that probable cause requiring the production of such evidence exists (see, e.g., Matter of Abe A., supra; cf., People v Castillo, supra; Matter of Little v Savarese, 156 A.D.2d 564). Mangano, P.J., Thompson, Bracken, Sullivan and Balletta, JJ., concur.