
    The People of the State of New York, Appellant-Respondent, v. Yonkers Contracting Co., Inc., Spencer A. Snook, Harry Posner and Arthur S. Cipolla, Respondents-Appellants, and Harry Bankard, Ernest L. Blakeman, Louis G. Blackhall, Edward J. Petrillo, Thomas W. Cohill, Harold Guidotti, Lendall H. Nevins and Alvin D. Pottle, Respondents.
    Argued January 18, 1966;
    decided May 5, 1966.
    
      
      Joseph J. Buderwitz, Jr., W. E. Cribari and Walter B. Solinger II for Yonkers Contracting Co., Inc., and Arthur S. Cipolla, respondents-appellants, and Edward J. Petrillo, Thomas W. Cohill, Alvin D. Pottle, Harold Guidotti and Lendall H. Nevins, respondents.
    I. The evidence before the Grand Jury was insufficient to warrant the finding of indictments for grand larceny. To justify an indictment the evidence adduced must be satisfactorily established and must not only be inconsistent with innocence but must exclude to a moral certainty every other reasonable hypothesis but guilt. (People v. Eckert, 2 N Y 2d 126 ; People v. Peetz, 7 N Y 2d 147; People v. Koerber, 244 N. Y. 147; People v. Karp, 298 N. Y. 213; People v. Will, 289 N. Y. 413; People v. Colavecchio, 11 A D 2d 161; People v. Roach, 231 App. Div. 622; People v. Whitney, 146 App. Div. 98; People v. Baldiseno, 266 App. Div. 909; People v. Nowakowski, 221 App. Div. 521; People v. Cohen, 223 N. Y. 406.) II. The presence of the Attorney-General or his staff before the Grand Jury, if not authorized by statute or the requirements of the Governor of the State of New York, has been held to constitute sufficient ground to set aside an indictment. (People v. Hopkins, 182 Misc. 313; Matter of Cranford Material Corp., 174 Misc. 154; People v. 
      Zara, 44 Misc 2d 698; Turecamo v. Bennett, 260 App. Div. 253; People v. Stern, 3 N Y 2d 658 ; Matter of Wood v. Hughes, 9 N Y 2d 144; People ex rel. Hirschberg v. Orange County Ct., 271 N. Y. 151; People v. Dorsey, 176 Misc. 932.) III. Defendant Arthur Cipolla received immunity before this Grand Jury since he was a prospective defendant and testified without waiving his constitutional privilege or immunity. The waiver which was executed by him subsequent to his testimony on the alleged larceny was exacted only with respect to the investigation into an alleged bribery and has no application to the larceny indictments. Furthermore, this waiver cannot be related back to the initial testimony and would only be prospective in nature. (Matter of Bleakley v. Schlesinger, 294 N. Y. 312.) IV. The indictments must be dismissed because they do not contain a plain and concise statement of the act constituting the alleged crime and they are not drawn with such a degree of certainty as to enable the court to pronounce- judgment. V. The indictments must be dismissed because of the prejudicial statements and conduct of the Attorney-General and the receipt by the Grand Jury of illegal evidence. (People ex rel. Childs v. Knott, 187 App. Div. 604, 228 N. Y. 608; People v. Levis, 96 Misc. 513; People v. Goldenberg, 110 Misc. 556; People v. Fishgold, 189 Misc. 602; People v. Hess, 110 Misc. 76; People v. Grout, 85 Misc. 570.) VI. Defendants Petrillo and Cipolla cannot be indicted for bribery by reason of the automatic and self-executing operation of section 3 of article XIII of the State Constitution; the indictments for bribery were not within the scope of request made by the Superintendent of Public Works; the evidence does not sustain the bribery indictments. (Matter of Doyle, 257 N. Y. 244; People v. Anhut, 162 App. Div. 517; People v. Grossman, 145 Misc. 781; People v. Bradshaw, 164 Misc. 565; People v. McMillian, 33 Misc 2d 989.) VII. A prospective defendant or one who is a target of an investigation may not be called and examined before a Grand Jury; if he is, his privilege against self incrimination is deemed violated even though he does not claim or assert the privilege; a violation of the constitutional privilege carries with it a dismissal of the indictment returned by the Grand Jury before which defendant testified. (People v. Steuding, 6 N Y 2d 214; People v. Laino, 10 N Y 2d 161; People v. De Feo, 284 App. Div. 622, 308 N. Y. 595; People r. Loria, 
      10 N Y 2d 368; People v. Muller, 11 N Y 2d 154; People v. Gillette, 126 App. Div. 665.)
    
      Louis J. Lefkowitz, Attorney-General (Herbert H. Smith, Paxton Blair, Ruth Kessler Toch, Daniel M. Cohen and John P. Mac Arthur of counsel), for appellant-respondent.
    I. The immunity formerly conferred by section 3 of article XIII of the New York Constitution could be and was waived by defendants Petrillo and Cipolla. (People ex rel. McLaughlin v. Board of Police Comrs. of City of Yonkers, 174 N. Y. 450; People ex rel. Battista v. Christian, 249 N. Y. 314; Matter of McCarthy v. McGoldrick, 266 N. Y. 199.) II. None of defendants herein acquired immunity from prosecution under any constitutional or statutory provision. (People v. Laino, 10 N Y 2d 161; People v. Steuding, 6 N Y 2d 214; People v. Ferola, 215 N. Y. 285.) III. Not one of the defendants was indicted because of his self-incriminating testimony, or links or leads therefrom. (People ex rel. Hummel v. Davy, 105 App. Div. 598, 184 N. Y. 30; People v. Tumen, 161 Misc. 645; People v. Howell, 3 A D 2d 153; People v. Mather, 4 Wend. 229; People v. Leary, 282 App. Div. 476.) IV. Most of the defendants were not in fact “ target ” defendants and, therefore, were required to claim immunity, which none of them did. (People v. Kramer, 257 App. Div. 598; People v. Saperstein, 2 N Y 2d 210, 353 U. S. 946; People v. Cahill, 126 App. Div. 391, 193 N. Y. 232.) V. The testimony of the “ target defendants ” was not “ compelled ” within the meaning of section 6 of article I of the Constitution. (Matter of Doyle, 257 N. Y. 244.) VI. The evidence before the Grand Jury including the exhibits was sufficient to justify all the indictments. (People v. Donahue, 309 N. Y. 6; People v. Howell, 3 A D 2d 153, 3 N Y 2d 672; People v. Rooks, 40 Misc 2d 359; People v. Peary, 249 App. Div. 851; People v. Sweeney, 213 N. Y. 37; People v. Sexton, 187 N. Y. 495; People v. Leary, 305 N. Y. 793; People v. Eckert, 2 N Y 2d 126; People v. Lieberman, 3 N Y 2d 649.) VII. The Attorney-General was authorized to appear before the Grand Jury and seek indictments (a) by Executive Law (§ 63, subd. 3), (b) by legislative precedents dating back to 1829 and by the common law. (People ex rel. Scharff v. Frost, 198 N. Y. 110; People ex rel. Harrison v. Jackson, 298 N. Y. 219; People v. Zara, 44 Misc 2d 698; Ray Wong v. Earle C. Anthony, Inc., 199 Cal. 15; State v. Bowles, 70 Kan. 821; People v. Hopkins, 182 Misc. 313; People v. Miner, 2 Lans. 396; People v. Tweed, 13 Abb. Prac. [N. S.] 25; Matter of Lockport Union-Sun v. Preisch, 8 N Y 2d 54; People v. Fanshawe, 137 N. Y. 68.) VIII. The form of the indictments is sufficient. (People v. Farson, 244 N. Y. 413; People v. Armlin, 6 N Y 2d 231.) IX. The Attorney-General made no prejudicial statements, and no illegal or improper evidence was received by the Grand Jury. X. The question of immunity may not be raised upon a motion to dismiss an indictment. (People v. Anhut, 162 App. Div. 517, 213 N. Y. 643; People v. Weinstein, 173 Misc. 909.) XI. The objections raised by defendants who were employees of the contractor are without merit. (People v. Freistadt, 6 A D 2d 1053; People v. Bermel, 71 Misc. 356; Matter of Bleakley v. Schlesinger, 294 N. Y. 312; People ex rel. Battista v. Christian, 249 N. Y. 314.) XII. The objections of defendants Posner and Snook are without merit. XIII. A showing of personal profits is not necessary to sustain a charge of larceny. (People ex rel. Perkins v. Moss, 187 N. Y. 410.) XIV. The objections of defendant Blackball that the first count is barred by the Statute of Limitations are without merit. (People v. Hudson Val. Constr. Co., 217 N. Y. 172; People v. Mitchell, 49 App. Div. 531,168 N. Y. 604; Chatham Securities Corp. v. Williston & Beane, 41 Misc 2d 817; Mount Vernon Trust Co. v. Federal Reserve Bank of N. Y., 267 App. Div. 882.)
    
      John C. Kinney and John M. Freyer for Spencer A. Snook and Harry Posner, respondents-appellants.
    I. There was insufficient legal evidence before the Grand Jury to justify the indictment of Harry Posner. There was no evidence of intent to defraud. (People v. Peetz, 7 N Y 2d 147; People v. Watson, 154 Misc. 667, 245 App. Div. 838.) II. There was no evidence of any ‘ ‘ taking ’ ’ by Harry Posner. III. The speculative and highly theoretical nature of the Grand Jury evidence failed to show any taking by anyone. (Depot Constr. Corp. v. State of New York, 23 A D 2d 707; John Arborio Inc. v. State of New York, 41 Misc 2d 145; Yonkers Contr. Co. v. New York State Thruway Auth., 45 Misc 2d 763.) IV. The Attorney-General’s violation of section 250 of the Code of Criminal Procedure required that the indictment be dismissed. (People v. Mead, 16 Misc 2d 171, 11 A D 2d 600; People v. Benin, 186 Misc. 548; Berger v. United States, 295 U. S. 78; People v. Fielding, 158 N. Y. 542.) IV. The Attorney-General Avas not authorized to appear before the Grand Jury and obtain the indictment. V. There was insufficient legal evidence before the Grand Jury to justify the indictment of Spencer Snook. (People v. Watson, 154 Misc. 667, 245 App. Div. 838; People v. Knapp, 206 N. Y. 373.) VI. The indictment is void on its face, fails to allege facts constituting a crime and is in contravention of sections 275 and 284 of the Code of Criminal Procedure. (People v. Williams, 243 N. Y. 162; People v. Zambounis, 251 N. Y. 94.)
    
      Herald Price Fahringer for Arthur S. Cipolla, respondent-appellant and respondent.
    I. Arthur Cipolla’s privilege against self incrimination Avas irrevocably violated because he Avas compelled to testify before the Grand Jury as a prospective defendant Avithout effectively waiving the immunity he obtained and therefore his grand larceny indictment must be dismissed. (People v. Laino, 10 N Y 2d 161; People v. Steuding, 6 N Y 2d 214; People v. De Feo, 284 App. Div. 622; People v. Freistadt, 6 A D 2d 1053; Matter of Bleakley v. Schlesinger, 294 N. Y. 312; People v. Gillette, 126 App. Div. 665; People v. Bermel, 71 Misc. 356.) II. Cipolla’s bribery indictment was properly dismissed by the Appellate Division because he testified before the Grand Jury about payments given to a public officer claimed by the State to be a bribe and consequently an everlasting immunity was automatically conferred upon him by operation of the former article XIII of the New York Constitution. (People ex rel. Battista v. Christian, 249 N. Y. 314.) III. Arthur Cipolla, as a prospective defendant, was compelled to furnish evidence to the Grand Jury which the State used to secure an indictment against him.
    
      E. Stewart Jones for Louis G. Blackball, respondent.
    I. The Appellate Division properly ruled that defendant’s constitutional privilege against self incrimination was violated, and that such violation required a dismissal of the indictment. (People v. Laino, 10 N Y 2d 161; People v. Steuding, 6 N Y 2d 214; People v. Ferola, 215 N. Y, 285.) II. The Grand Jury of the County of Westchester had no jurisdiction over the subject matter of the crimes alleged in the indictment since there was no proof of their commission in that county. III. Prosecution of the crime alleged in the first count of the indictment is barred by the Statute of Limitations. (People v. Reiser, 240 App. Div. 36.) IV. The indictment should be dismissed since it was not founded on sufficient evidence and it is defective on its face. (People v. Helmer, 154 N. Y. 596.) V. The appearance of the Attorney-General before the Grand Jury was unlawful and requires a dismissal of the indictment.
    
      Philip L. Graham for Harry Bankard, respondent.
    I. The testimony of defendant, Harry Bankard, was compelled within the meaning of section 6 of article I of the Constitution while he was a “ target ” defendant and thereafter used against him. II. The time spent and the questions asked in the Grand Jury examination of this defendant indicate the purpose of extracting incriminating answers and answers that connected with other testimony would lead to an indictment against him.
    
      William Scott, 2nd, and Andrew R. Stevenson for Ernest L. Blakeman, respondent.
    I. The order dismissing the indictment against this defendant should be affirmed for the reason that it was abundantly clear that the object of the “ John Doe ” investigation being conducted by the Grand Jury at the behest of the Attorney-General was to uncover any wrongdoing connected with or related to the performance of two contracts: one between the State and the contractor for highway construction, and the other between the State and the engineers for supervision of the work under the first contract. (People v. Laino, 10 N Y 2d 161; People v. Steuding, 6 N Y 2d 214; People v. De Feo, 284 App. Div. 622; People v. Bermel, 71 Misc. 356.) II. Blakeman was not an officer or partner of the engineering firm. Persons not officers of a corporation at the time of the alleged larceny cannot be guilty of larceny. (People v. Watson, 154 Misc. 667, 245 App. Div. 838; People v. Kirkup, 4 N Y 2d 209; People v. Whitney, 146 App. Div. 98; People v. Pierce, 218 App. Div. 254; Brown v. People, 16 Hun 535; People v. Peetz, 7 N Y 2d 147; People v. Donahue, 309 N. Y. 6; People v. Hudson Val. Constr. Co., 165 App. Div. 626, 217 N. Y. 172.)
   Vast Voobhis, J.

These appeals and cross appeals relate to the sufficiency of the evidence before the Grand Jury to sustain indictments for grand larceny against Yonkers Contracting Co., Inc. (hereafter called Yonkers) and a number of its officers and employees, also indictments likewise for grand larceny against certain members and employees of an engineering firm known as Briggs, Blitman and Posner. Bribery indictments were also found against Yonkers and two of its officers, as well as one Louis G. Blackball, who was then an engineer in the employ of the State Department of Public Works. The Appellate Division held that the Grand Jury minutes disclosed sufficient evidence to sustain the charges against all of these defendants, but that each of the individual defendants had acquired immunity except the defendant Cipolla on a grand larceny charge, and the defendants Snook and Posner of the engineering firm who, also, were charged with grand larceny. Being a corporation, Yonkers cannot claim immunity (Matter of Bleakley v. Schlesinger, 294 N. Y. 312) and is subject to the charges of grand larceny and of giving or offering bribes. As the case comes to us, Cipolla, Snook and Posner are charged with grand larceny, first degree, and Yonkers is subject to that charge and, alone among the defendants, to the other charge of giving or offering bribes. Each of them appeals. The People appeal from the dismissal of the indictments against individual defendants. In addition to asserting immunity, each defendant contended (and contends before us) that the evidence before the Grand Jury was insufficient to establish larceny by anyone even when unexplained and uncontradicted (Code Crim. Pro., § 251).

On December 30, 1954, as a result of competitive bidding on a unit price basis, Yonkers was awarded a contract by the State of New York for the construction of 5.21 miles of the New England Section of the New York State Thruway in the County of Westchester, extending between Mamaroneck and Central Avenues. The bid price computed from the State’s estimate of unit price quantities was $5,056,140. Instead of supervising the work through engineers employed in its Department of Public Works, the State contracted with the said engineering firm of Briggs, Blitman and Posner to supervise and inspect the work done by Yonkers and to certify to the unit quantities including the amount of excavation which was to be paid for at the rate of $2 per cubic yard. Yonkers was paid $5,972,408.13 for the entire job on certificates by the engineering firm.

The basis for the indictments concerns the item described as 2BX denominated “ Unclassified Excavation ’ for which Yonkers was paid $2,006,651.80. The alleged overpayments related entirely to the quantities of “ unsuitable material which Yonkers claimed to have excavated under this category. The State contends that Yonkers was overpaid at the rate of $2 per cubic yard for 63,318 cubic yards of unsuitable material in excess of what was removed. In dollars that would amount to $126,636 which is the figure stated in the indictment.

The trouble appears to have arisen due to the disintegration of the engineering firm. Briggs and Blitman had for many years been competent professional engineers. Defendant Posner, now 80 years of age, retired in 1952 after 36 years on the engineering staff of the New York Central Railroad, where he became engineer of structures and in charge of the bridge department for the railroad. In 1953 he joined the Briggs firm as an associate consulting engineer and took over the bridge design department (approximately 50 bridges were involved in the supervising work which his firm did on the New England Section of the New York State Thruway). In 1957 Robert Briggs, founder and chief executive of the firm, died. Blitman had another business, several of their key employees left for other more promising opportunities, and the responsibility fell upon Posner of concluding the supervision of some $22,000,000 of contracts after which the firm expected to and did dissolve. Whatever may have been the cause, it is undisputed that at or about this time the supervisory work of the Briggs firm was considerably neglected.

One of the important responsibilities of the engineering firm in supervising the performance by Yonkers of this road construction contract consisted in keeping track of the quantity of unsuitable material excavated by Yonkers under 2BX of the contract at $2 per yard. Before building the road the grades were blueprinted for east and westbound lanes and mall in the middle. In some places the grade of the road coincides with the ground level. Elsewhere the ground level needs to be lowered or raised. When that has been accomplished the road surface is covered with a foot in thickness of gravel which is compressed by rollers to nine inches. Above that is laid the reinforced concrete surface for the highway. The usable material which is excavated to reduce the road level is employed as fill where necessary to raise the road level. If, as was true in this portion of the New England Section of the Thruway, more fill is required to raise (“ embank ” is the technical phrase) the level than is obtainable from excavation to lower the ground level, the additional fill which is required is obtained from outside the limits of the highway. Such fill is technically described as “borrow”. Under the terms of the contract, Yonkers was required to exhaust the usable fill from within the highway limits before resorting to 1 ‘ borrow ’ ’ obtained elsewhere. The contractor was paid at the rate of $2 per cubic yard for removing usable fill from places where the highway grade was below the ground level and putting it where the highway grade was above the ground level. Likewise the contractor was to be paid $2 per yard for “ borrow ” to be obtained at the contractor’s expense from places outside of the highway limits and added to the fill obtained from within the highway limits in order to embank the base of the highway where the plans called for locating it above the ground level. In addition to those items, the contractor was required to remove unsuitable material, which is the subject matter of these indictments. Unsuitable material, so-called, lies beneath the highway level. In technical parlance, it is below what is called the “ prism ” of the highway. It consists of muck or other substances unsuitable to form a base for the roadway. In other words, for example, if the ground level coincided with the highway level, where no excavation would otherwise be necessary, muck or other unsuitable material has to be removed and replaced with suitable fill, inasmuch as it would not do to superimpose the gravel and concrete on swampland. Even where the road level is below ground level, unsuitable material would still have to be removed and replaced if it existed below what would otherwise be the bottom of the excavation. There might be places, also, even where the road is “embanked” (road level above ground level) where it is necessary to remove unsuitable material before putting in the fill for the embankment. As has been previously stated, the contractor receives $2 per cubic yard for removing unsuitable material which has to be trucked away from the job and disposed of however the contractor wishes without accountability. It is regarded as useless material, and the only concern of the State regarding it is to get rid of it.

Since the contractor is to be paid at $2 per cubic yard for the excavation and removal of unusable material, which has to be replaced promptly with good earth or other suitable fill, “survey parties ” of supervising engineers need to be constantly on the job in order to measure and record the cubic yardage of unsuitable material removed before the holes are filled so as not to leave the State at the mercy of the quantitative measurements submitted by the contractor. In this instance, the engineering firm of Briggs, Blitman and Posner neglected the inspection. Only partially do the Briggs field notes record subsurface excavation performed by Yonkers, and frequently these were shown to have been conflicting and inaccurate.

Confronted with this situation in the Fall of 1959 — two years and a half after the death of Briggs —Posner, diverted from his specialty of designing and supervising the construction of bridges, found himself confronted by the necessity of certifying the quantities of unsuitable material and other material excavated by Yonkers in the performance of this contract with nothing like adequate contemporary field notes on which to base his conclusions. What the Briggs firm did, in most instances, it is virtually undisputed, was to borrow the figures from Yonkers, and then to certify to the State for payment the same cubic yardage as having been excavated which Yonkers claimed. On October 6, 1959 defendant Posner certified to the State that there was due to Yonkers upon the completed job, up to and including September 30, 1957, the final payment for work performed at the unit prices specified in the contract aggregating $5,972,408.13. The certificate also stated: “ and I further certify that the said amount has been estimated from actual measurements and inspections by me made as Engineer in charge, of all work done and materials in place during my official connection with the said contract, and from the official notes of measurements made by my predecessors of work done under them, and believe to be correct and in strict accordance with the terms of the contract.”

The statement was false that the amount of unsuitable material excavated had been estimated from the engineers’ actual measurements and inspections. Quite possibly Posner might bo subjected to disciplinary proceedings for doing this as a licensed engineer, and he or his firm might have been subjected to some-other forfeiture, penalty or damage claim for falsely certifying that the performance of this part of Yonkers’ contract had been inspected, supervised and contemporary records kept. We do not pass on anything but the criminal charges which are before us. What was done or left undone by the engineers afforded Yonkers the opportunity to inflate the amount of cubic yardage of subsurface excavation of unusable material to the detriment - of the-State. However, the criminal charges against Posner and ■ Snook, of the engineering firm, are not falsely certifying that the work had been inspected but grand larceny. These charges of grand larceny in the first degree depend upon proof that Yonkers intentionally exaggerated the quantity of cubic yardage excavated, and thereby deliberately and fraudulently ■ obtained from the State more than $500 which it knew did not belong to it, and that the engineers were accomplices (principals as defined by Penal Law, § 2) in deliberately enabling Yonkers to do this and likewise were guilty of knowingly and intentionally obtaining unearned additional engineering fees themselves at the rate of 4%% computed upon the amounts payable to the contractor under the contract. As previously indicated, the indictments charge the contractor with stealing $126,636 in this manner and the engineers with misappropriating in addition 4-1/3% thereon amounting to $5,698.62.

Quite plainly before grand larceny can be established prima facie, as was stated by the County Judge, “ the evidence before the Grand Jury must reveal, basically, proof of three matters, namely, (1) that Yonkers (with Briggs) claimed and received payment for more excavation work than was actually done; (2) that such claims were knowingly false and fraudulent within the meaning of the larceny statutes, i. e., were done with an intent to steal; and (3) that each of the named defendants with larcenous knowledge and intent participated in the false and fraudulent claim.” (Italics from original.)

Evidence of opportunity to steal is not equivalent to showing prima facie that an accused did steal, nor does the fact that the engineers furnished the contractor with an opportunity to steal constitute evidence that the engineers stole, either by enabling the contractor to steal or by unwittingly receiving additional engineering fees computed on an amount stolen by the contractor. In certifying to the correctness of the contractor’s, figures and receiving the additional engineering fees, the engineers, in order to be guilty of larceny, had to have notice that the contractor had inflated the quantities of excavated material. Insofar as the engineers are concerned, neglect of duty is not equivalent to theft nor is laxity equivalent to larceny.

As the result of a careful analysis of the testimony and exhibits before the Grand Jury, particularly the computations made from the post-construction test borings and the so-called balance of quantities ” method, we are satisfied that there was prima facie evidence before the Grand Jury, which may or may not be found to establish the point by the trial jury, that the quantity of unsuitable material for which the contractor was paid was knowingly overstated by the contractor in an amount sufficient to sustain the grand larceny charges against the contractor. Indictments must be founded on legal evidence (Code Grim. Pro., § 249), and much of the evidence before the Grand Jury was introduced for the purpose of proving that individual defendants connected with the contractor had knowledge of these overages. It is clear enough that, if the quantity of unsuitable material for which Yonkers was paid was so largely inflated, there is evidence that this was knowingly done on the part of some of its officers or agents. It is unnecessary to determine which ones, at this stage of the criminal action, inasmuch as it is being held that the indictment must be dismissed against all of the individual defendants connected with Yonkers on account of immunity. The only one of Yonkers’ officers or employees against whom any grand larceny count has been left standing is appellant Arthur S. Cipolla, who signed a waiver of immunity only after he had given material evidence before the Grand Jury in regard to the larceny charges. He, like defendant Thomas W. Cohill, waived prospectively only, and, as the Appellate Division said concerning Cohill, ‘ ‘ Since we cannot say that the Grand Jury did not return the indictment against him on his testimony given under compulsion on his first appearance, we perforce must dismiss the indictment.” These men were all targets of the investigation, and all acquired immunity under this indictment, although, in such instance, “ reindictment is possible if sufficient evidence, independent of the evidence [before the Grand Jury], links or leads furnished by the prospective defendant, is adduced to support it ” (People v. Laino, 10 N Y 2d 161, 173; People v. Steuding, 6 N Y 2d 214; People v. De Feo, 308 N. Y. 595; People v. Gillette, 126 App. Div. 665). Under the cases cited immunity was acquired even though they or some of them were warned of their rights by the prosecutor before the Grand Jury, and even though they did not claim immunity while being interrogated. Section 2447 of the Penal Law is inapplicable to this situation. The contention of the People was overruled in People v. Steuding (6 N Y 2d 214, 217) that the question of immunity may not be raised upon a motion to dismiss an indictment. It was there held that “ A violation of the constitutional privilege carries with it a dismissal of the indictment returned by the Grand Jury before which the defendant testified.”

Criminal knowledge on the part of appellants Posner and Snook that the contractor’s claim was inflated is, however, a different matter. These two defendants were officers or employees of the engineering firm. Snook was “ engineer in charge ”, responsible for the supervision of the construction contracts to which he was assigned, although not including this one. He left the employment of Briggs, Blitman and Posner in October of 1958, one year prior to the date of the asserted larceny. He has been held on the basis that he directed Yonkers to deliver its excavation notes to the engineering firm while he was still connected with it. It was not a criminal act for the engineers to ask to see these notes, nor does it appear that he knew that the quantities thereby shown of unexcavated material would be copied in the certificate signed by Posner 12 months later, to say nothing of knowing that the figures were false. The opinion by the County Court mentions that some of the diagrams in the hands of the engineers (called cross-sections”) plotted from field notes indicated that the bottom horizontal lines marking the depths of the claimed excavations had, in some instances, been changed to show deeper excavations. The County Court correctly concluded, however, that the testimony in the Grand Jury record leaves unsolved who changed these lines, and that there is no testimony that whoever did so intended to defraud the State or harbored any such criminal purpose or criminal consciousness. The engineers’ field notes were shown to have been woefully inaccurate, which constituted breach of contract and of duty toward the State, but not grand larceny in the absence of such criminal knowledge and intent.

Posner, although working under serious difficulties, should have informed the State that his firm had failed to perform that part of its contract which required an independent verification of the quantity of excavated unusable material charged for by the contractor. He ought not to have certified that the amount had been estimated from actual measurements and inspections made by him as engineer in charge and from official notes of measurements made by his predecessors of work done under them. The question before us is not whether he was derelict in the performance of his duty in this regard, but whether there was prima facie evidence against him before the Grand Jury that he is guilty of the felony of first degree grand larceny. The point which the People make against Yonkers is that it was enabled to take advantage of the circumstance that the engineers were not sending out survey parties and had lost track of how much unsuitable material had been excavated. Eventually the engineers adopted Yonkers ’ figures to save face. They did not know how much Yonkers had removed and tried to conceal their ignorance and avert a contention by the State that they had broken their engineering contract by failing to supervise. This is the State’s theory of the facts. Nothing in the record suggests that Yonkers was advertising inflation by it of the cubic yardage removed, Yonkers’ motive and interest (if it did so) was to conceal this from the engineers rather than to reveal it, and the State’s theory is that the contractor was taking advantage of the engineers’ embarrassment to further its own interest. The evidence before the Grand Jury indicates prima facie that this engineering firm was falling apart, broke its contract with the State and certified that it had independently inspected what it had not supervised, but that is not equivalent to participating with the contractor in the knowledge that the latter was mulcting the State. It is not charged nor is there any evidence that the engineers received money or: other consideration from the contractor in any nefarious joint enterprise of that kind. The engineering firm was paid a total of $240,467.19 in fees for the entire job. These indictments charge that $5,698.62 of this $240,467.19 was paid by reason of the engineers’ 4%% commission on the moneys wrongfully paid to the contractor. Although this $5,698.62 was based on what the indictments charge to have been inflated yardage of unsuitable material excavated by the contractor, there is no evidence that the engineers knew it was inflated, or that it was received or to be received otherwise than in the honest belief that the quantity certified had been excavated. It may well be that neither this $5,698.62 nor a much greater part if not the whole of the $240,467.19 in engineering fees would have been payable or paid if the State had known that the engineers were not living up to their contract requiring sending out field parties and supervising the unit quantities of unsuitable material for which the contractor charged the State. In approving the final estimate of cubic yardages the engineers certified that they had performed this part of their contract when they had not done so; but whatever civil or other criminal consequences may have been entailed, the engineers were not guilty of grand larceny unless they knew that the quantity of unsuitable material had been inflated. Many a contracting party has represented, in various ways, that its contract has been performed when such was not wholly the fact, and has been compelled to pay heavily in damages without incurring criminal liability for grand larceny. Receipt of money may be larcenous where no services have been rendered or for goods sold that have never been delivered, where the whole transaction is fictitious. According to this record, however, a great deal of engineering services were rendered satisfactorily by this at one time competent firm, and no question is raised on the papers before us that this section of the New York State Thruway was not properly constructed under adequate supervision except as to this excavated material. The evidence that in some supposedly excavated areas there were trees and remnants of an old macadam road and a dump, which should have revealed to the engineers that no excavation had been done, is scant and equivocal and was correctly analyzed and written off by the County Court. In the absence of evidence that Posner or Snook knew that the quantities of unsuitable material were exaggerated for which the contractor charged, and on the basis of which the engineers received this small proportionate increased cost plus fee, we have concluded that the indictments against them should be dismissed.

There is an additional cogent reason on account of which Posner and Snook have not been shown prima facie to have been guilty of larceny by receiving extra fees based on exaggerated quantities of unsuitable material. The State withheld payment from the Briggs firm of more than the $5,698.62 mentioned in the indictment as having been stolen by the firm. The statement of payments to the engineers, introduced by the People, shows the last payment to have been made February 2, 1959 (Exhibit 34) which was eight months prior to the date when Mr. Posner made the certificate which is the basis for the charge of larceny.

We do.not reach the question whether it was error not to have permitted Posner to testify further before the Grand Jury in explanation of testimony and exhibits introduced by the People.

The other points raised upon these appeals were correctly decided by the Appellate Division.

The order appealed from should be modified by reversing those portions thereof which sustain any of the indictments against defendants-appellants Spencer A. Snook, Harry Posner or Arthur S. Cipolla, and otherwise it should be affirmed. That leaves standing the indictments for grand larceny and bribery against Yonkers Contracting Co., Inc.

Burke, J. (dissenting in part).

Despite ample evidence of Posner’s and Snook’s knowing participation with larcenous knowledge and intent in criminally deceiving the State into paying for highway excavation work which had not been performed, these defendants are adjudged to be, as a matter of law, immune from prosecution on the grand larceny indictments returned by the Grand Jury. Such a holding is based on a conclusion that the indictments are founded on evidence which as a matter of law is insufficient to warrant convictions. There is, it is asserted, no evidence of intent on their part, no evidence of any taking by them or any taking by anybody.

This is a new concept in the law of larceny. One of the common forms of larceny is a situation wherein a trusted employee charges the employer for services which the employee knows he did not render, or bills the employer for expenses which the employee knows he has not incurred. The false document so used to deprive the employer of property is called, in common parlance, “ a swindle sheet.” Another age-old form of larceny is the circumstance in which a trusted employee certifies that merchandise was delivered to or work was performed for the employer by third parties when the employee knows that such is not the case. Here according to the evidence in this record, the defendants Snook and Posner collaborated in carrying out both these ancient forms of larceny on an extravagant scale. It is undisputed that Snook arranged for the acquisition and use by Briggs, Blitman and Posner of supposed excavation notes from the Yonkers Contracting Co. for their use in the preparation of fake work progress statements. These were certified to the State as statements of the amount of excavation done by Yonkers, which work Briggs, Blitman and Posner were supposed to inspect and verify under a fee agreement that set their compensation at a certain percentage of the amount of work certified as completed. There is a finding that Briggs, Blitman and Posner, acting in accordance with the percentage fee agreement, prepared and submitted a known erroneous final estimate whereby the contractor was overpaid. In this certification and other certifications Briggs, Blitman and Posner certified that the contractor should be paid for having excavated ‘1 muck ’ ’ and having replaced it with suitable materials in areas where that activity supposedly took place. Following the completion of the contract, many areas were found to be in their original state, with no excavation having been performed at all. In some areas expert testimony was required to establish this fact, but as to others there were found to be large trees, considerably older than the highway, old abandoned macadam roads and remains of an old dump. Clearly these areas were not excavated, but Briggs, Blitman and Posner not only had informed the State that this had been done, but they had received payment therefor.

In the course of the contract, Briggs, Blitman and Posner were paid a quarter of a million dollars. This included payment under two supplemental agreements under which the amount of excavation was increased first by 184,386 cubic yards, and again by 46,664 cubic yards. Under an additional supplemental agreement under which the amount of excavation was increased by 298,293 cubic yards, the engineer has not been paid, but the contractor was paid. All the payments were made under periodic estimates prepared by Briggs, Blitman and Posner. The final alleged exact calculation of the amounts due to the parties was prepared by Briggs, Blitman and Posner and signed by Harry Posner under oath. This, of course, was grossly wrong, as it was not based upon actual measurements and inspections of excavations, but upon nonexistent notes of measurements. In fact, it was based upon measurements supplied to Briggs, Blitman and Posner by the Yonkers Contracting Co. through the efforts of Snook. In his affidavit Posner told the State that the contractor was entitled to $2,210,053.30 for excavation and fill, a sum which amounted to one third of the value of the entire contract and totalled more than the worth of all the reinforced concrete, structural steel and reinforcing bars on this portion of the Thruway. It is self-evident that when Posner submitted, over his sworn statement, a document he knew to be false which caused the State to pay out over $100,000 for excavation and fill which had not been performed, such representations were knowingly false and fraudulent within the meaning of the larceny statute. Furthermore, each of the named defendants, with larcenous knowledge and intent, participated in preparing and submitting to the State these false and fraudulent claims. They argue, however, that the indictments against both Snook and Posner only charge them specifically with “ the theft of $5,698.62 ”. This is not so; both indictments charge the defendants with unlawfully depriving the State of a sum in excess of that amount. There is no question on this record but that the amount paid for the excavation work was in excess of the amount lawfully due and owing to the engineers under the contract. Moreover, a showing of personal profit is not necessary to sustain a charge of larceny. All that is necessary is to show that the person entitled to the subject of the larceny was deprived thereof, not that the person responsible for the larceny was enriched thereby. The parts played by Posner and Snook in the preparation of the Briggs documents, which were presented to the State in support of Yonkers’ claims for payment and which on their face do not support the claims for such payment, fall within the definition of larceny (Penal Law, § 1290). The defendants are, if this evidence is believed by a trial jury, persons who with intent to deprive the State of property by means of estimates and certificates known to them to be false and fraudulent caused the appropriation of property to the use of Briggs, Blitman and Posner and the Yonkers Contracting Co.

There was no violation of section 250 of the Code of Criminal Procedure in regard to the right of Posner to testify before the Grand Jury. He appeared before the Grand Jury twice, and his testimony was uninterrupted until completed. Upon his suggestion, he was then questioned extensively. When finished he did not even intimate that he had not had an opportunity to testify fully. Indeed, the Attorney-General later called his attorney to inquire if Posner was interested in giving any further evidence to the Grand Jury. Posner appeared and, after a discussion with members of the staff of the Attorney-General, stated that he would prefer not to make an appearance before the Grand Jury at that time. His attorney was then aware that the Grand Jury would terminate its investigation on that day. The suggestion that he was led to believe that he might have an opportunity to testify before the Grand Jury several months later is rebutted by his oaaoi attorney’s affidavit that no testimony would-be taken after that day. In this case the effort to discover possible further testimony was initiated by the Attorney-General, a fact which itself takes the case out of the provisions of section 250 of the Code of Criminal Procedure. Here the defendant had completed his testimony, after he had given his uninterrupted version of the matter on two occasions before the Grand Jury. He himself concluded at that point that he did not wish to testify further and left the premises immediately and returned to his residence. He did not object either then or thereafter through his attorney or otherwise that any right Avas being violated.

Accordingly, the order of the Appellate Division reinstating the indictments against Spencer A. Snook and Harry Posner for larceny should be affirmed.

Judges Fuld, Soileppi, Bbbgan and Keating concur with Judge Van Voorhis; Judge Burke dissents in part in an opinion in which Chief Judge Desmond concurs.

Order modified by dismissing the indictments against defendants Cipolla, Posner and Snook and, as so modified, affirmed.  