Opinion
December 3, 1998
Appeal from the Supreme Court, Cortland County (O'Brien III, J.).
Petitioner, acting pro se, brought a motion before Supreme Court pursuant to CPLR 2302 (b) seeking the issuance of a subpoena duces tecum directing respondent to produce certain medical records pertaining to two witnesses who testified against him at his criminal trial. Petitioner sought this information in connection with a contemplated CPL 440.10 motion. Supreme Court denied the motion and we affirm. Generally speaking, "[a] judicial subpoena is not issued in the abstract, but 'requires the context of some action or proceeding'" ( People v. Weiss, 176 Misc.2d 496, 499, quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C2301:4, at 236; see, People v. Jones, 160 Misc.2d 246, 248; Matter of Blake, 51 Misc.2d 42). Here, there is no pending judicial proceeding and it is well settled that a subpoena duces tecum may not be used for the purpose of discovery ( see, People v. Carpenter, 240 A.D.2d 863, 864, lv denied 90 N.Y.2d 902; People v. Jones, supra, at 248).
Cardona, P. J., White, Peters, Carpinello and Graffeo, JJ., concur.
Ordered that the order is affirmed, without costs.