I dissent and would affirm. The order appealed from denied, inter alia, the petitioner’s appli*225cation for a direction that the Special State Prosecutor make appropriate good faith inquiry of the United States Government through the offices of the United States Attorneys for the Southern and Eastern Districts of New York, as to whether petitioner, a Grand Jury witness who was granted immunity, had been overheard pursuant to legal or illegal electronic surveillance. Petitioner further sought a direction that the Special State Prosecutor disclose to the Justice Presiding whether the witness had been overheard or had been the subject of electronic surveillance by the office of the Special State Prosecutor, and requested the Justice to ascertain from the Special State Prosecutor, under oath, whether the product of illegal or other electronic surveillance was used or "is about to be used” before the Grand Jury.
The special investigation involved herein deals with crimes which took place between March and July, 1970 and the alleged participation of petitioner, an attorney, in efforts and plans to dispose corruptly of certain narcotics cases.
When the witness, pursuant to his request, was taken before the Justice presiding over the Extraordinary and Special Grand Jury, the Special Prosecutor assured the court that no questions asked of the witness were based on evidence illegally obtained by wiretapping on the part of the Special Prosecutor. Moreover, in response to a question as to the date of the alleged illegal interception, counsel for petitioner replied "that the wiretapping may have been the tail end of 1970 —the tail end of 1971. And the wiretap ran for a period of 18 months.” Whereupon the prosecutor said, "Your Honor, the matterfs] under investigation involve particularly crimes which allegedly took place between December and July of 1970, preceding that illegal eavesdropping, alleged eavesdropping.” Assuming the correctness of both representations the investigation underway obviously could not have been bottomed upon the claimed electronic surveillance. "A Grand Jury witness need not answer questions based on information obtained as the result of illegal wiretapping (US Code, tit. 18, § 2515).” (People v Einhorn, 35 NY2d 948, 949.) The Einhorn case noted that, once the witness is before the Presiding Justice, the Justice is vested with discretionary power to "make appropriate inquiry whether the witness’ objection is sound” and "[i]n the course of that inquiry, the court, may, in its discretion interrogate the prosecutor under oath, either in camera, or in open court, whether or not the basis for the *226questioning of the witness was founded on the illegally obtained wiretap evidence.” (People v Einhorn, supra, pp 949-950.) The question then is whether, on this record, the Presiding Justice abused his discretion. In my opinion there is no clear showing of an abuse of discretion. There was no sufficient factual showing by petitioner to warrant the extensive relief sought.
People v Cruz (34 NY2d 362), relied upon by the majority, involved not a Grand Jury witness, but a defendant who claimed that wiretap evidence was being used against him at trial. The Court of Appeals (per Jasen, J.) noted "To use, without notice to the defendant, evidence derived from electronic surveillance is impermissible, even if the surveillance itself is legal. * * * Initially, at least, the defendant should have the burden of coming forward with the facts which reasonably lead him to believe that he or his counsel have been subjected to undisclosed electronic surveillance. * * * Upon a sufficient showing, it is then incumbent upon the People to affirm or deny the allegations.” (People v Cruz, supra, p 369.) Generally, greater rights exist for criminal defendants than for Grand Jury witnesses (see Matter of Mintzer, 511 F2d 471).
On July 31, 1975, in a supplemental hearing before the Presiding Justice (the minutes of which are a part of this record), petitioner was informed that he had been electronically overheard by the Special Prosecutor’s office pursuant to court-ordered surveillance (which orders the court examined in camera and found legal) and that petitioner had not been subjected to illegal electronic surveillance. The Special State Prosecutor reaffirmed what he had stated earlier in his affirmation in opposition to petitioner’s application to this court for a stay of all proceedings. This, in substance, was that the Special Prosecutor had spoken to Assistant United States Attorneys, one each for the Southern and Eastern Districts of New York, and also to a former Assistant United States Attorney for the Southern District. It was then represented to the Presiding Justice that the Special Prosecutor’s investigation of petitioner did not result from electronic eavesdropping nor had any privileged attorney-client communications been intercepted. Thus, if the order were not affirmed, the appeal should be dismissed as moot because petitioner has received all the information that he is entitled to receive.
Generally, a witness has no standing to suppress evidence *227before a Grand Jury where such witness has been given immunity. However, as a witness defendant in a contempt proceeding he may assert the illegality of intercepted wire or oral communications (Matter of Lochiatto, 497 F2d 803), and possibly be entitled to discovery of certain related documents. But where there is a question derived from electronic surveillance under a court order, a witness defendant in a civil contempt proceeding who has been granted "use” and "derivative-use” immunity may not litigate the legality of that surveillance (see Matter of Persico, 491 F2d 1156; cf. Matter of Mintzer, 511 F2d 471, supra).
There is a substantial question whether this order is appeal-able as of right. (CPL 1.20, subd 18 defines a "Criminal proceeding” as "any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation. ” (Emphasis supplied.) This is not to be confused with a "Criminal action” which commences with the filing of an accusatory instrument (CPL 1.20, subds 16 and 17). Absent a grant of leave to appeal, no appeal lies as of right to this court (CPL 450.10). Moreover, the order is interlocutory and such appeals serve to hinder and sometimes prevent Grand Jury investigations which should proceed as expeditiously as possible. (United States v Calandra, 414 US 338; People v Mulligan, 40 AD2d 165.)
Markewich and Capozzoli, JJ., concur with Nunez, J.; Stevens, P. J., and Kupferman, J., dissent in an opinion by Stevens, P. J.
Order, Supreme Court, New York County, entered on July 24, 1975, reversed, on the law, without costs and without disbursements, and the Special New York State Prosecutor is directed to make appropriate inquiry of the Federal authorities whether the witness, Michael L. Santangello, has been overheard on electronic surveillance.