MATTER OF JOHNSON v. BRANDVEEN

Defendant's application for the production of a photograph of the 15-year-old kidnapping and rape victim does not come within the scope of CPL 240.20 and, despite defendant's claim of a prior relationship with the complainant, we discern no theory under which this item, which does not even exist, constitutes exculpatory material (see, Brady v. Maryland, 373 U.S. 83) or the prior statement of a prosecution witness (see, People v Rosario, 9 N.Y.2d 286; People v. Consolazio, 40 N.Y.2d 446). Nor is it within the scope of respondent's authorized powers to compel the People to create this, or any, evidence for the defendant.

Concur — Kupferman, J.P., Carro, Milonas, Kassal and Ellerin, JJ.