Opinion
April 21, 1975
Appeal by defendant from a judgment of the County Court, Westchester County, rendered July 9, 1973, convicting him of criminal contempt, after a nonjury trial, and imposing sentence. Judgment affirmed. The case is remitted to the County Court, Westchester County, for proceedings to direct appellant to surrender himself to said court in order that execution of the judgment be commenced or resumed (CPL 460.50, subd. 5). Defendant's refusal to answer questions put to him before a Grand Jury was based solely upon his privilege against self incrimination. Consequently, the fact that the Grand Jury's questioning was based upon information derived through electronic eavesdropping cannot avail him, as that ground was not raised before the Grand Jury (see People v De Salvo, 32 N.Y.2d 12). In any event, his reliance upon Gelbard v United States ( 408 U.S. 41) is misplaced, as a close reading of that case indicates that a majority of the court did not believe that the existence of court-approved wiretaps would furnish a basis for a refusal to answer a Grand Jury's questions (see, also, United States v Calandra, 414 U.S. 338). We find that defendant was offered full transactional immunity in accordance with the provisions of section 619-c of the Code of Criminal Procedure (see People v Masiello, 28 N.Y.2d 287; People v Dellacroce, 38 A.D.2d 210, amd 39 A.D.2d 740, cert den 409 U.S. 1038). Although the prosecutor indicated that Federal transactional immunity was being offered, the prosecutor, the defendant and his attorney appeared before the court, which properly advised defendant as to the nature of the Federal immunity which would follow his testimony under a grant of immunity. Such immunity is testimonial (see Murphy v Waterfront Comm. 378 U.S. 52, 79, n 18; Kastigar v United States, 406 U.S. 441, 453; Zicarelli v New Jersey Investigation Comm. 406 U.S. 472). Section 619-c of the Code of Criminal Procedure requires a grant of New York transactional immunity plus whatever Federal immunity would flow therefrom (see People v Ferro, 66 Misc.2d 752, 757-758). As the "competent authority" authorized by that statute is New York authority (see Code Crim. Pro., § 619-c, subd 3), it follows that that authority is not required to grant full Federal transactional immunity. That is, it cannot be required to confer greater immunity than it is lawfully authorized to confer; nor can the statute be held defective for its failure to require the grant of a greater Federal immunity than the Constitution of the United States requires in order to displace the privilege against self incrimination (see Kastigar v United States, supra). Martuscello, Acting P.J., Latham, Cohalan and Brennan, JJ., concur.