¶1We concur in the result reached by the majority because the affidavits of the defendants contained in the record establish that as a matter of fact the waiver of immunity was voluntarily executed. The notice of motion to dismiss the indictments is supported by an affidavit of the defendants dated October 12, 1971, several months subsequent to the return of the indictments, in which it is stated that the defendants were advised by their retained lawyer that they were targets of a snow removal investigation in Albany County and, under the circumstances, they had a constitutional right not to testify or produce their books in response to a subpoena and could refuse to sign a waiver or answer questions which might incriminate them. The defendants then stated “We .said we wanted to testify and produce our records as we had nothing to hide ’ ’. Following this statement the affidavit alleges that their lawyer then informed them that if they refused to waive they would be disqualified from doing business with public agencies and the defendants advised him that a good portion of their business was in the City of Albany and they could not afford to lose that income. Accordingly, their lawyer prepared a waiver of their rights but limited to public contracts and business and thereafter the defendants, accompanied by their lawyer, presented themselves at the Grand Jury room. The affidavit then states: “He [lawyer] advised us to execute the waiver, which we did …. We thereupon testified before the Grand Jury and the books and records which we produced were retained by the jury.”
¶2Examining the affidavits most favorably to the defendants demonstrates that the defendants’ factual presentation fails to establish that either the waiver of immunity or evidence produced by them resulted from any possible coercion as a result of the existence of section 103-b of the General Municipal Law. It is conclusive from an examination of the complete record that the defendants’ reliance upon the provisions of section 103-b of the General Municipal Law is not established in the present record but is an afterthought following .the return of the indictments.
¶3Sweeney and Reynolds, JJ., concur with Kane, J.; Herlihy, P. J., concurs in a separate opinion in which Staley, Jr., J. concurs.
¶4Order reversed, on the law, and indictments reinstated.