
    In the Matter of Michael F. Dillon, as District Attorney of Erie County, Respondent, v. William Comello, Appellant.
   Order unanimously reversed and proceeding dismissed. Memorandum: During the trial of an indictment charging two police officers with the crime of official misconduct, appellant, a subpoenaed witness, was called by the prosecution and upon his refusal to testify regarding certain activities of the defendants, was adjudged guilty of criminal contempt. He had already been charged in an indictment with the crime of perjury and the District Attorney concedes that the charge therein concerned the same subject matter contained in the questions to be asked of him as well as the questions which he had refused to answer on the ground they would be incriminating, which resulted in the finding of contempt. In this posture, appellant was entitled to invoke the privilege afforded by the Fifth Amendment (Hoffman v. United States, 341 U. S. 379, 386-388; United States v. Llanes, 398 F. 2d 880, cert. den. 393 U. S. 1032; United States v. Chandler, 380 F. 2d 993). We disagree with respondent’s contention that appellant has not chosen the proper method for a review of the determination. (People v. Zweig, 32 A D 2d 569.) (Appeal from order of Supreme iCourt, Erie County, adjudging witness guilty of contempt.) Present — Del Vecchio, J. P.. Witmer, Gabrielli and Henry, JJ.  