Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
[93 NJSuper Page 114] Defendant appeals from a judgment of conviction, following a jury trial, on an indictment charging him with the crime of obstructing justice. The grounds urged for reversal are: (1) the proofs failed to establish commission of the crime of obstructing justice, (2) error in the court's charge to the jury, (3) error in permitting two witnesses to be advised of their constitutional rights against self-incrimination, and (4) the conviction was in violation of defendant's constitutional right against self-incrimination.
Defendant did not testify or call any witnesses on his own behalf at the trial. The pertinent evidence presented by the State was as follows.
Defendant Cassatly was president of Allwood Enterprises, a corporation which sought to erect a ten-story hotel near State Highway S-3 in the City of Clifton. A change in the zoning ordinance by the municipal council was necessary to permit such construction.
On March 21, 1964, while the application for change of zone was pending, defendant complained to Sergeant De Groot of the Clifton Police Department that certain councilmen, who were members of the majority bloc in the council known as the "Big Four," had solicited a bribe as a condition for approval of the zone change. He asked De Groot to arrange for a conference with William Holster, the Clifton Municipal Manager. De Groot did so, and on March 23 Holster met with defendant at the latter's office. Defendant told Holster of the "shakedown" attempts and asked if he could arrange for the police to work with him by providing tape recording instruments to record conversations he would have with the councilmen. Holster agreed, and arranged for De Groot to assist defendant. Thereafter, De Groot provided defendant with a minifon wire recorder to wear on his person and installed a tape recorder in his office.
On April 2 De Groot was called to defendant's office where he listened to a wire recording of a conversation had between defendant and Stanley Zwier, a councilman, on March 31. De Groot testified that he recognized both voices and heard defendant tell Zwier that $40,000 was too much money and he couldn't pay it; that Zwier told defendant he would try to reduce it to $20,000 if Moorman, another councilman, would go along with it. Zwier suggested that defendant see Moorman to persuade him.
On April 7 defendant told De Groot he had met with Moorman at the latter's office and that Moorman said the $20,000 would have to be paid in cash before the council would approve the zone change. On April 14 De Groot listened to a
recording of a conversation between defendant and Moorman recorded earlier that day. De Groot testified he recognized Moorman's voice and heard Cassatly tell Moorman he was unable to pay the $20,000 in one lump sum -- that he would be able to pay $10,000 before the hotel was constructed and $10,000 afterwards. Moorman refused, stating he wanted the entire $20,000 before the zone change would be approved by the council; that there were "set figures for passing these variances" which had to be adhered to; and that there were other councilmen he would have to see to get the approval.
On April 18 defendant again called De Groot to his office and said he had a tape recording of a conversation with Zwier recorded at defendant's office. De Groot testified he listened to the recording and hear Zwier say that defendant had to pay to get the approval and that if defendant didn't have the $20,000 he could pay $10,000 before the council voted its approval and $10,000 afterwards, but it would have to be in cash.
De Groot testified that on each of the occasions defendant insisted on retaining possession of the tapes, which were placed in containers, sealed, and stored in a safe cabinet in defendant's office.
During the period from April 2 until April 28, Clifton police officials and the city manager held numerous conferences concerning the investigation with Deputy Attorney General John Bergin, who assigned a special investigator to assist. On April 28 Bergin and police officials conferred with the Passaic County Prosecutor. A search warrant was obtained and Lieutenant Edmonds of the prosecutor's staff, and Detective Captain Tencza and Sergeant De Groot of the Clifton police went to defendant's office. They demanded the three recordings. Defendant said they were not in his office but in his safe deposit box in a Passaic bank. He protested that the police action was premature; that it would jeopardize the case because he wanted to obtain additional information from two builders and to have a conversation with Councilman Sellinger recorded on a tape. He said he didn't trust
either the police or the prosecutor's office and had removed the tapes because he thought De Groot might steal them. A search of the premises proved fruitless. Defendant finally agreed to go with Lieutenant Edmonds to ...