Opinion
July 10, 1967
Order of the Appellate Term, dated September 18, 1964, affirming an order and mandate of commitment of the County Court, Westchester County, dated March 6, 1964, reversed, and proceeding remanded to said County Court for proceedings not inconsistent with this determination. Appellant refused to answer questions before a Grand Jury claiming his privilege against self incrimination. He was granted immunity and directed to answer but continued to refuse to do so, arguing, inter alia, that answering certain of these questions might subject him to prosecution by the United States Government. The court found appellant in contempt. At the time appellant was held in contempt, a State witness could be compelled to give testimony which might be incriminating under Federal law ( Feldman v. United States, 322 U.S. 487; Knapp v. Schweitzer, 357 U.S. 371). However, shortly after appellant was adjudged to be in contempt and before the Appellate Term decision, the United States Supreme Court overruled the earlier cases and held that "a state witness may not be compelled to give testimony which may be incriminating under Federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him" ( Murphy v. Waterfront Comm., 378 U.S. 52, 79). In order to implement this rule, the Supreme Court further held that the Federal Government is prohibited "from making any such use of compelled testimony and its fruits" (p. 79). Appellant would have no grounds now upon which to refuse to answer the Grand Jury questions. He had, however, a reasonable fear based on the then-existent United States Supreme Court decisions that his testimony could be used against him in a Federal prosecution. In light of the decision in Murphy v. Waterfront Comm. ( supra), appellant should be given the opportunity to answer the questions. Therefore, we remand to the County Court, Westchester County, for proceedings not inconsistent with this determination. Beldock, P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.