I agree that County Court exceeded its jurisdiction in issuing these discovery orders. The appeal requires more specific discussion, however.
The information in police files is not available at will to the public, to a criminal defendant or even to a District Attorney. It may be "exempt property” (CPL 240.10, subd 3), "confidential” (Civil Rights Law, § 50-a, subd 1), or it may be privileged from disclosure (see People v Keating, 286 App Div 150, 152-153).
In this bizarre proceeding the District Attorney, defense counsel and the court agreed inter se to direct disclosure of the entire police departmental investigation file without notice to police officials. As a result two ex parte orders compelled production of some 68 enumerated reports, affidavits and items of evidence including the statements of the police officers involved in the shooting made during the departmental investigation. The orders did not provide for a prior review of the material either by the District Attorney or the court (see People v Andre W., 44 NY2d 179). Rather, the court directed production of all 68 items and provided that the District Attorney make them available to defense counsel for inspection and copying. Respondents allege that such action was justified because the files contained Rosario (People v Rosario, 9 NY2d 286) and Brady material (Brady v Maryland, 373 US 83).
The orders went far beyond the court’s jurisdiction and prohibition should be granted (see Matter of Vergari v Kendall, 76 Misc 2d 848, affd 46 AD2d 679). The District Attorney has no general right of discovery (see Matter of Heisler v Hynes, 42 NY2d 250, 253) and he had no statutory right of discovery in this case (see CPL 240.20). Indeed, he needed none. The desired evidence or witnesses could have been subpoenaed before the Grand Jury and if the subpoenas were unauthorized they could have been tested by a motion to quash. On the other hand if defendants were entitled to discovery they could have moved pursuant to statute (CPL 240.20).
Furthermore, the orders were premature insofar as they *346directed the production of Rosario material. Witnesses’ prior statements may be available eventually but the production of those statements must await the witnesses’ testimony at trial (see People v Thomas, 65 AD2d 933). Specifically it should be noted that statements required of the police officers in the departmental proceedings (see Donofrio v Hastings, 54 AD2d 1110) may not be made available to the parties unless and until the police officers testify.
As for Brady material, it may be that certain exculpatory evidence exists which should be delivered to defendants. Upon appropriate notice they may reach evidence in the hands of third persons, either as a matter of right (see CPL 240.20, subd 1) or as a matter of discretion (CPL 240.20, subds 2-5) (People v Prim, 47 AD2d 409, 416-417, mod 40 NY2d 946; cf. People v Leggett, 55 AD2d 990).
An obligation of co-operation must exist between law enforcement agencies and the District Attorney, but that obligation notwithstanding, there was no legal warrant for these applications, apparently made orally, or the orders which granted them.
Dillon, P. J., Callahan and Wither, JJ., concur; Simons, J., concurs in an opinion in which Dillon, P. J., Callahan and Wither, JJ., also concur.
Petition unanimously granted, without costs.