On January 26,1972, defendant was called before a Grand Jury investigating gambling and criminal usury. He was not the target of investigation and full immunity had been conferred on him. Yet the defendant refused to answer all questions put to him on the stated ground that he was privileged not to testify 'because his testimony “ would constitute a disclosure of the contents or fruits of illegal electronic surveillance.” What defendant was referring to was that the prosecution had obtained the information on which the ques*81tions were based as a. result of telephonic wiretaps. This was true.
Defendant’s first contention is that he was advised by counsel that he had a constitutional right to decline to answer, and that, regardless of whether the advice was sound or not, his refusal lacked .the intent to be contumacious. What this amounts tó is that a witness who has sufficient sophistication to find a lawyer who will advise him that he need not answer is immune from the consequences of defying the grand jury and may freely disobey the court ’s direction to answer. Such is not and never was the law (Matter of Grand Jury [Cioffi], 10 A D 2d 425, affd. 8 N Y 2d 220).
Defendant’s second contention upon which the majority rests is by way of extension of what was decided by the United States Court of Appeals, Second Circuit, in Matter of Persico (491 F. 2d 1156). There the court held that a witness who refused to answer on the same grounds was in contempt and was not entitled to a plenary suspension hearing unless there was no court order, or the prosecution conceded that the surveillance was illegal, or there was a prior judicial determination to that effect. Here, there was a court order (in fact, there were three such orders), there was no concession, and there was no prior judicial determination. The majority apparently bases its reversal on the fact that the District Attorney never advised the defendant that there were such orders, and extends the Pérsico doctrine to mandate such disclosure. To me this appears entirely unjustified. Assuming that Pérsico represents an incontestible statement of the applicable law, it is first to be noted that a witness is not entitled to a suppression hearing in the course of the grand jury inquiry unless one of1 the three stated exceptions appears. It is inconceivable that it would be the burden of the prosecution to prove the negative of these exceptions. The one claiming the extraordinary right should have some grounds for its assertion. What the majority says is that the failure of the prosecution to advise him that grounds do not exist is the equivalent of there being grounds.
Actually, under our practice the ¡witness, before he can be found guilty Of contempt, can at his trial test the validity of the method by which the prosecution obtained its information. He may make a pretrial motion to suppress (People v. Mulligan, 40 A D 2d 165). This procedure was availed of by this defendant, and it was found that the surveillance was perfectly proper.
It would appear therefore that the conviction was in all respects proper, even under the prevailing views as to witnesses’ *82rights in grand jury investigations. This does not mean that I subscribe to those views. I fail to see by what right a witness who is not a target of the investigation and who has been granted full immunity can question the source of the information which prompted the questions put to him. If another is indicted as a result of his testimony, that person can raise any question as to the propriety of the evidence. Nothing in our law that I am aware of constitutes the witness a guardian of some third person’s rights and enables him to assert them. No right of his own is being infringed.
The judgment of conviction should be affirmed.
Markewich, J. P., Murphy and Tilzer, JJ., concur with Capozzoli, J.; Steuer, J., dissents in an opinion.
Judgment, Supreme Court, New York County, rendered on September 11, 1973, reversed, on the law, and the indictment dismissed.