
    (September 12, 1972)
    In the Matter of Leroy Russell, Petitioner, v. County Court of Chemung County et al., Respondents.
   Proceeding under CPLR article 78 instituted in the Appellate Division of the Supreme Court in the Third Judicial Department, to prohibit respondents from retrying petitioner without first providing him with a complete transcript of his original trial. The application is denied, without costs. An article 78 proceeding may not be used to review the discretionary act of a court in a criminal matter. (Matter of Bloeth v. Marks, 20 A D 2d 372, mot. for lv. to app. den. 15 N Y 2d 481.) We are mindful of the decision of the United States Supreme Court in Britt v. North Carolina (404 U. S. 226), which held that an indigent defendant has a constitutional right to a free transcript of minutes of a trial which ends in a mistrial unless a satisfactory alternative substantially equivalent to a transcript is available. Although we determine that the extraordinary remedy of prohibition is not available under these circumstances, we note that no reason for denial of the transcript was given by the County Court nor was any question raised as to petitioner’s indigence. Accordingly, the County Court should reconsider its decision with respect to the testimony of prosecution witnesses Hansen, Berwiler and Horan. Herlihy, P. J., Greenblott, Sweeney, Simons and Kane, JJ., concur.  