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State v. Rosania

Decided: July 28, 1967.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ARTHUR ROSANIA, DEFENDANT



Fusco, J.s.c.

Fusco

On June 12, 1967, the defendant was subpoenaed to appear before the Grand Jury of Essex County on June 13, 1967, to give evidence on behalf of the State. The description of the proceeding in which he was to give evidence was left blank, although a subpoena served on Greta Brickell, who testified before this same Grand Jury, indicated some papers which the Grand Jury intended her to bring. The defendant appeared; he was indicted and charged with committing the crimes of conspiracy, attempted extortion, and soliciting an undue reward.

The defendant now moves to dismiss the two indictments returned against him on the grounds that they are without foundation in law and fact and have been unlawfully and illegally obtained in violation of the defendant's constitutional rights under the Constitution of the United States and State of New Jersey and in violation of N.J.S. 2A:84A-17, et seq. The defendant requests additional relief, however, since the motion has been consolidated with State v. Sarcone, 96 N.J. Super 501 (Law Div. 1967), a motion to dismiss the same indictments, the Court will not include the disposition of those additional matters in this opinion.

When the defendant appeared before the Grand Jury the prosecutor informed him of his constitutional rights. The defendant's testimony indicates that he did not fully understand his rights. Yet after further explanation by the prosecutor, he executed a paper that purported to be a waiver of immunity.

The following examination by the prosecutor occurred immediately after the defendant Rosania was sworn:

"Q. Mr. Rosania, my name is Richard McGlynn. I am an assistant prosecutor in Essex County. There is a matter presently before this body in the Grand Jury, an investigation in which no charges have been brought but which charges may be brought subsequently

or they may not be brought, it's impossible for us to tell at this stage. I do want to inform you of your rights before this body. You have a right not to answer any questions which may tend to incriminate you. You have the right to seek counsel before you come in here, if you want to do that. You have the right to say absolutely nothing at all in response to any of my questions. You may willingly waive these rights if you indicate that you wish to proceed with the examination, and if you do so, I would ask you to sign the written form indicating that you do so waive those rights. I caution you that anything you say, if you do waive these rights, may be made the basis of a subsequent charge. Do you understand me, sir?

A. Yes, sir.

Q. Do you wish to testify before this body or do you wish to exercise your privilege not to testify?

A. I'm down here, whatever I'm down here for, I will answer whatever questions you ask me, to the best of my ability.

Q. Then you are willing to waive the rights that I have ...


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