We respectfully dissent. Had the State discharged petitioner for refusing to waive his privilege against self-incrimination, the appropriateness of an annulment would be clear (see, Gardner v Broderick, 392 US 273). Such an attempt by the government to displace his 5th Amendment privilege would have activated an obligation on its part to advise the witness of the immunity conferred on his answers (see, People v Masiello, 28 NY2d 287, 291).
But this case differs from People v Masiello (supra) in two fundamental respects. First, unlike situations where a Grand Jury has discretion to determine whether immunity is to be granted, and the scope thereof, the immunity conferred here attached automatically by operation of law. Neither the State investigators nor counsel representing the Department of Transportation had any power to alter the breadth of that immunity, the sweep of which was as readily discoverable by petitioner or his attorney as by the State investigators. Furthermore, it is not without significance in this regard that petitioner’s refusal to testify was not brought about by a sudden and unanticipated incident, but was the culmination of a long, adversarial process so that petitioner had ample opportunity to explore the implications of invoking his constitutional privilege.
The second and even more compelling reason why investiga*155tors were not obliged to define the extensity of petitioner’s immunity is that this case does not even involve a displacement of petitioner’s privilege against self-incrimination. Rather, the State, quite legitimately, terminated the services of one enjoying a public trust for refusing to account for his activities (see, People v Avant, 33 NY2d 265, 271; see also, Gardner v Broderick, supra). They asked questions, received no answers, and warned accurately that continued silence would subject petitioner to punishment for insubordination.
Petitioner may have been forced to choose between termination and self-incrimination; that, however, is wholly permissible (see, Gardner v Broderick, supra; People v Avant, supra). Resort to the threat of termination as a means of coercing petitioner to waive his privilege against self-incrimination would have been impermissible, but that course was not followed. Accordingly, we would confirm the administrative determination.
Main, J. P., and Harvey, J., concur with Mikoll, J.; Yesawich, Jr., and Levine, JJ., dissent and vote to confirm in an opinion by Yesawich, Jr., J.
Determination annulled, with costs, petition granted, and respondent is directed to reinstate petitioner to his former position with back pay and all other benefits lost.