Simply stated, there is no statutory authority for the issuance of the orders requiring the appellants to provide handwriting exemplars at the office of the District Attorney. These orders constitute a mode of pretrial discovery not authorized by statute. The District Attorney does not have the statutory authority to issue a subpoena on his own behalf. The discovery provisions of the CPL do not govern because there is no pending criminal proceeding against these individuals. In addition, the discovery provisions of the CPLR are clearly inapplicable.
The District Attorney argues that the Criminal Term, because it has the power to issue an arrest warrant (CPL 120.10), inferentially has the authority to issue process short of formal arrest. No New York case is cited in support of this proposition. On the contrary, in Matter of Mackell v Palermo (59 Misc 2d 760), the court, in holding that the District Attorney could not compel a suspect to shave off his beard before putting him in a lineup, stated (p 765) that: "the reason compelling a denial of the District Attorney’s application, is that the respondent, whose facial hair is sought to be removed, is not a defendant in any proceeding in this county. He is merely a suspect against whom the District Attorney has thus far established no probable cause warranting an arrest.” It should be emphasized that the District Attorney has not attempted to effect the arrest of any of these individuals.
The District Attorney also argues that these orders are in the nature of search warrants which may be issued pursuant to the court’s authority "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (Judiciary Law, § 2-b, subd 3). Hence, this "elastic clause” may only be invoked where the court possesses the requisite underlying power or jurisdiction. By statute, a search warrant may be addressed only to a police officer (CPL 690.25). A search warrant must direct a *582search of a described place, premises, vehicle or person (CPL 690.15). The District Attorney seeks, however, to have these individuals appear at his office, not to be searched by police officers, but tó compel them to physically create evidence which may later be used against them. I am forced to conclude that the Criminal Term does not possess the requisite power or jurisdiction to command such conduct.
Furthermore, it should be noted that, by following this procedure, the District Attorney seeks to circumvent the immunity provisions of the CPL. Had these individuals been subpoenaed to appear before the Grand Jury for the purpose of supplying exemplars, it is clear that they would have received immunity from prosecution (CPL 190.40; CPL 50.10, subd 3). I do not believe that the District Attorney should be permitted to evade this clear statutory mandate.
It is for the Legislature, not the courts, to expand the powers and jurisdiction of the courts. This maxim is especially applicable where individual liberties have been placed in jeopardy, as is the case here. The wisdom of awaiting action by the Legislature is illustrated by the fact that the ad hoc procedure followed by the District Attorney does not permit mutuality of discovery and, indeed, lacks procedural safeguards.
I would therefore reverse the orders and deny the motions.
Latham, Brennan and Munder, JJ., concur with Hopkins, Acting P. J.; Martuscello, J., dissents and votes to reverse the orders and deny the motions, with an opinion.
Four orders of the Supreme Court, Kings County, all entered January 28,1975, affirmed, without costs.