45 A.D.2d 691 | N.Y. App. Div. | 1974
Judgment of conviction, Supreme Court, New York County, rendered October 1, 1973, unanimously affirmed. People v. Einhorn (45 A D 2d 75) is clearly distinguishable. In People v. Einhorn as in Matter of Persico (491 F. 2d 1156), the witness refused to answer the questions propounded to him on the ground that they were the product of illegal electronic surveillance. In the instant case, the witness refused to answer the questions put to him, after consultation with his attorney, with the statement: “I take the 5th Amendment.” At no time idid he refuse to answer, as did the defendant in Einhorn or in Pérsico, on the ground of illegal electronic surveillance. The holding in Einhorn should be limited to its own facts. In the absence of objection to the questions on the ground of illegal electronic surveillance, a witness who has been given immunity may not refuse to answer questions. Concur — Markewich, J. P., Nunez, Kupferman, Tilzer and Lane, JJ.