The petition should be granted, but for the sole reason that the court exceeded its jurisdiction by ordering the entire Grand Jury minutes delivered to defendants for general discovery purposes. I do not agree, as the majority suggests, that collateral review of a discretionary, nonappealable order of the trial court may be had by prohibition on the grounds that the trial court’s decision was arbitrary or capricious.
The narrow question presented is whether the Grand Jury minutes were available to the defendants. It seems to me that it was an extraordinary interference with the operation of the Grand Jury and the District Attorney to allow discovery by defendants of the entire Grand Jury record in this continuing investigation so that they might prepare their defense. Inspection of the Grand Jury minutes cannot be had by a defendant to assist him in preparing his trial defense (People ex rel. Lemon v. Supreme Court, 245 N. Y. 24) even if a motion had been made by defendants seeking it on that basis. The court’s power to order examination of the Grand Jury minutes rests upon a good faith motion by a defendant made on proper grounds for the purpose of preparing a motion to dismiss the indictment. After examining the minutes, the Trial Judge declined to make such a finding here. Implicit in that decision is a recognition that the indictments were not subject to dismissal. Under those circumstances the granting of inspection was not an abuse of discretion, it was an act in excess of the court’s power. (Matter *287of Montgomery, 126 App. Div. 72, 82, app. dsmd. 193 N. Y. 659; People ex rel. Martin v. Brady, 168 App. Div. 108.)
The evidence before the Grand Jury serves the limited purpose of supporting the charges of the indictment. If a motion to dismiss is contemplated, then in the exercise of discretion the minutes may be inspected. The practice has varied in the past and the minutes sometimes were delivered to the defendant for this purpose. The new Criminal Procedure Law contains express provisions on discovery said to be expositive of the prior law. It allows discovery only of the defendant’s own Grand Jury testimony. (CPL 240.20, subd. 1, par. [a], et seq.) When a motion to inspect is made in connection with a motioli to dismiss, the minutes are inspected by the court, not the defendants. (CPL 210.30.) Even when a motion to dismiss is made the court is expressly restricted in the use of the minutes. The motion to inspect Grand Jury minutes is entirely different from discovery in civil cases, from a pretrial motion to examine autopsy or medical reports before trial to prepare a defense requiring technical evidence (cf. Matter of Silver v. Sobel, 7 A D 2d 728, mot. for lv. to app. den. 5 N Y 2d 710), or from the right of a defendant to discover inconsistent prior statements of a witness at the time of trial (cf. People v. Rosario, 9 N Y 2d 286).
Since the trial court has afforded defendants relief it was powerless to grant, I concur that petitioner is here entitled to the extraordinary remedy of prohibition.
Herlihy, P. J., Reynolds, Greenblott and Sweeney, JJ., concur in Per Curiam opinion; Simons, J., concurs in a separate opinion.
Petition granted, without costs, and respondents and intervenors are directed to desist from further proceedings designed to enforce the orders of the County Court of the County of Albany compelling the inspection of the Grand Jury minutes.