I agree that the District Attorney or the prosecutor should see the presentence reports but it is for the Legislature to say so and should not be accomplished by some form of judicial fiat. It is an unauthorized invasion of the powers of the Legislature.
As to the procedural issue, in the present context I seriously question the right to the relief by prohibition or mandamus or both. The statute in question, CPL 390.50 (subd 2) provides "[t]he action of the court excepting information from disclosure shall be subject to appellate review.” However, inasmuch *5as the majority has decided the merits, it is not necessary for me to decide the procedural issue.
The statute in question is clear and unambiguous. It sets forth the conditions under which the prosecutor shall be permitted to examine the report, which conditions are not pertinent to the present circumstance. I cannot state that the statute was imprecisely drafted or that common sense, logic or basic fairness dictate adding something to the statute which was knowingly enacted by the Legislature. It is one thing to interpret a statute; it is quite another to amend a statute.
Further, the Legislature enacted chapter 531 of the Laws of 1975 amending CPL 160.40 and 530.20 providing for courts to furnish copies of certain reports to the defendant or his counsel. It is notable that while the said CPL 160.40 expressly provided that the police or a recipient agency must furnish a copy of a specified report to the District Attorney, CPL 530.20 made no such provision for a "police department report”.
It should be noted that the use of language which upon its face limits disclosure as to the People was part of the commentary (1975) in the widely published Practice Commentary of Joseph W. Bellacosa (McKinney’s Cons Laws of NY, Book 11 A, CPL 390.50, Pocket Part, p 36). Nevertheless, the Legislature, to date, has not amended the section.
With reference to the comments of the majority concerning Judge Dwyer’s 10-year projection, it is true that at times Judges are referred to as oracles, but I do not believe the good Judge was tracking a 10-year course. Even an oracle would refrain from such predictions in this ever changing world. In any event, it does not involve the issue of statutory construction with which the court is concerned and the Judge might rightfully have been subject to criticism had he given the report to the prosecution.
For the reasons set forth, I would deny the petition.
Mahoney, P. J., Kane and Staley, Jr., JJ., concur with Sweeney, J.; Herlihy, J., dissents and votes to deny the petition in an opinion.
Petition granted, without costs, to the extent of prohibiting the respondent Dwyer from disclosing to defense counsel the presentence reports of respondents Saddlemire and Philips unless such reports are also made available for inspection by the People.