Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Defendant Joseph Randazzo, Jr. appeals from his conviction for false swearing (N.J.S. 2A:131-4).
Defendant had been engaged in the operation of an auto body shop in Clifton, New Jersey, and had applied for and been denied a zoning variance to permit enlargement of his business at a new location. In a later investigation of alleged corruption in Clifton by the Passaic County grand jury, he was called as a witness as to an alleged attempt to extort money from him in exchange for favorable action by the
board of adjustment on his application. Under questioning before the grand jury he denied that money had been demanded of him or that he had so told one Portelli.
He was subsequently indicted and tried for false swearing. At the trial Portelli testified that defendant had told him that one Bidnik had demanded two or three thousand dollars for favorable action by the board on his application. There was additional testimony that defendant had made a similar statement to at least one other. Portelli, who was a third cousin of defendant, also testified that, at defendant's request, he had relayed this information to Ruben Rubinowitz, a member of the board of adjustment.
Defendant's motion for acquittal was denied and he took the stand and, in substance, iterated his denial before the grand jury. The jury found him guilty and the present appeal followed.
Defendant urges that (1) the State failed to submit proof that defendant was "duly and regularly sworn" prior to giving the allegedly false testimony to the grand jury, (2) his motions for acquittal at the close of the entire testimony were erroneously denied, and (3) the trial judge erroneously instructed the jury.
As part of the State's case, Bernstein, the assistant prosecutor who conducted the examination of defendant before the grand jury, and Weberman, the official reporter, were called as witnesses. Weberman testified that defendant "was called and sworn by the Foreman of the Grand Jury" and that he (Weberman) thereafter made stenographic notes of defendant's testimony and transcribed them. He identified transcript and testified verbatim as to the questions put to the defendant which were referred to in the indictment, and defendant's answers thereto. He was not cross-examined.
The statute, N.J.S. 2A:131-4, prohibits willfully swearing falsely "in any judicial proceeding" or before "any person authorized by any law of this state to administer an oath and
acting within his authority." The indictment charged that while "duly and regularly sworn as a witness before the grand jury by the foreman thereof," defendant swore falsely as therein set forth. There can be no doubt as to the authority of the foreman of the grand jury to administer the oath to witnesses testifying before it. N.J.S. 2A:73-4. Although he was examined at length as to his testimony before the grand jury, at no time did defendant ...