Opinion
October 27, 1958
Present — Nolan, P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ.
Motion by defendants Garfinkle and Egelman to dismiss, as to them, indictments numbered 7256, 7257 and 7258 returned by the Grand Jury of the Extraordinary Trial and Special Term of the Supreme Court of Suffolk County on the ground that said indictments were obtained in violation of defendants' rights (Code Crim. Pro., § 10; N.Y. Const., art. I, § 6; U.S. Const., 5th Amdt., 14th Amdt.). Motion granted, indictments dismissed and bail exonerated; the special assistant attorney-general is directed to resubmit the charges against said defendants to the Grand Jury before which the said defendants shall not be subpoenaed and examined. The moving defendants were subpoenaed and testified before the Grand Jury as to transactions which became the basis of the indictments against them. The testimony was taken without warning as to self incrimination, without immunity from prosecution, and without express waiver of immunity. The prosecutor did not consider the moving defendants to be prospective defendants, but the nature and extent of the questioning, coupled with the prior evidence adduced at the investigation, indicated that the moving defendants were being placed in the position of prospective defendants. Neither section 2447 of the Penal Law nor People v. De Feo ( 308 N.Y. 595) supports the argument that the moving defendants, being ordinary witnesses as distinguished from prospective defendants, were required to assert the privilege against self incrimination and not having done so are deemed to have waived it. (See People v. Baumer, 136 Misc. 17.)