Defendant was called to testify before a Grand Jury investigating the alleged existence of a conspiracy to bribe public officers. Having given answers allegedly evasive, equivocal and false, he was indicted for criminal contempt, charged with contumacious and unlawful refusal to answer legal and proper interrogatories (Penal Law, § 600, snbd. 6). The present appeal is by the People from an order which dismissed the indictment on the ground that the impnnged answers were given after defendant had been denied access to his counsel who was outside the grand jury room. While we agree that the indictment is subject to dismissal, in our view it is unnecessary to reach the issue of defendant’s right to consult counsel, nor need we consider whether defendant’s response to the Grand Jury’s questioning was “ so false and evasive as to be equivalent to no answer at all ” (People ex rel. Valenti v. McCloskey, 6 N Y 2d 390, 398).
*505Each count of the indictment alleges that defendant “was further informed that said Grand Jury had voted to confer immunity upon him from prosecution for any crimes that might be revealed by his testimony.” The theory of the indictment, then, is that, having been granted immunity, defendant was bound to testify. The record, however, does not show that the Grand Jury had voted to grant him immunity, or that the conditions precedent to such a grant had been fulfilled. For example, defendant did not affirmatively claim his privilege (see People v. Laino, 10 N Y 2d 161, 172). The People’s brief acknowledges that what happened before the Grand Jury fell short of “an operative conferral of statutory immunity.” An essential premise of the indictment cannot be proven; therefore, the indictment may not be sustained.
Furthermore it is questionable that the Grand Jury could constitute defendant a “witness” so that he may be deemed to have waived his privilege by not claiming it. The witnesses referred to in section 2447 of the Penal Law are persons “ who are, in truth and fact, witnesses ” (People v. Steuding, 6 N Y 2d 214, 217). This defendant, before he was subpoenaed, was known or suspected to have been an active participant in the briberies under investigation. In fact, the present indictment alleges that in the course of the Grand Jury investigation “ it became material and necessary to examine the defendant to inquire and ascertain whether a certain police sergeant of the Police Department of the City of New Fork had been receiving bribes from the defendant to allow the defendant to conduct his businesses, licensed bars and grills, in violation of the Penal Law and the Alcoholic Beverage Control Law of the State of New York
Thus, we conclude he was not a witness in the statutory sense. He was a prospective defendant or one who is a target of an investigation (People v. Steuding, supra, pp. 216, 217).
Dismissal of the indictment is required, and the order entered June 22, 1966, granting defendant’s motion to dismiss should be affirmed.