This case comes before me on a motion by defendant, C. Robert Sarcone, to dismiss the two indictments returned against him on the grounds that they are without foundation and have been unlawfully and illegally obtained, in violation of his constitutional rights pursuant to the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Paragraph 1 of the New Jersey Constitution and the provisions of N.J.S. 2A:84A-17 et seq.
C. Robert Sarcone was subpoenaed at about ten A.M. on June 12, 1967, to appear and testify before the Grand Jury of Essex County that day at eleven A.M. to give evidence on behalf of the State. The name of the case in which he was allegedly to give evidence was left blank. Sarcone appears to have been the first witness before the Grand Jury.
There has been received in evidence a subpoena directed to one Greta Brickell, "the secretary or clerk or person in charge of records of the Belleville A.B.C. Board," requiring
her to appear on June 13, 1967, at 9:30 A.M. This is marked a subpoena duces tecum and indicates she is "to give evidence in behalf of said State" and "bring any and all records, reports, notes, documents or memoranda pertaining to a tavern known as the Varsity Club, 35 William Street, Belleville, N.J. more particularly, but not limited to any and all papers dealing with a charge or complaint or allegation against said tavern that alcoholic beverages were sold to a minor some time during 1967."
Mr. Sarcone appeared on that date and also on June 21st and June 22nd, 1967. On June 22nd, 1967, following the last appearance of the defendant, the Grand Jury returned two indictments against C. Robert Sarcone and Arthur Rosania. Indictment No. 2086-66 charged both defendants with committing the crime of conspiracy (agreeing to accept a bribe of $1,200). Indictment No. 2087-66 in the first count charged Arthur Rosania with the crime of attempting to solicit an undue reward for performing public duties and C. Robert Sarcone with the crime of aiding and abetting Arthur Rosania in the attempted extortion. The second count charged Arthur Rosania with the crime of soliciting an undue reward and C. Robert Sarcone with the crime of aiding and abetting Arthur Rosania in committing the crime of soliciting an undue reward.
The assistant prosecutor who examined the defendant before the Grand Jury neither advised him of his privilege to refuse to answer questions that might tend to incriminate him, U.S. Const. Amend. V; Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2 d 653 (1964), N.J.S. 2A:84A-17 and 19, nor informed him of the nature or the subject matter of the Grand Jury investigation.
The issue presented is whether the failure of the prosecutor to advise the defendant Sarcone of his rights under the United States Constitution and the Evidence Act of this State is fatal to the indictments.
A witness has a right in a Grand Jury investigation to claim the privilege against self-incrimination. The witness
may not claim the privilege against self-incrimination until he is asked the incriminating question. If he answers the question without claiming the privilege, he irrevocably waives it. State v. Fary, 19 N.J. 431, 435 (1955). There is no general requirement of warning the witness of the privilege to refuse to answer incriminating questions.
However, our State recognizes that the failure to warn the witness of his right to assert the privilege is fatal to an indictment if the Grand Jury indicts the witness after questioning him about specific criminal charges made against him in a formal way or it clearly appears that the Grand Jury was actually conducting an investigation directed against the witness and summoned him to testify with the purpose of getting evidence to fix a criminal charge upon him. State v. Fary, 19 N.J. 431, 437-438 (1955); State v. Browning, 19 N.J. 424, 427 (1955); State v. Sibilia, 88 N.J. Super. 546, 548 (Cty. Ct. 1965).
Justice Brennan stated in Fary that,
"Decisions outside our State apparently agree that a failure to warn the witness of his right to assert the privilege is fatal to an indictment if the grand jury indicts the witness after questioning him about specific criminal charges made against him in a formal way, as by a criminal complaint (cases omitted). The same result is reached even as to a witness not under formal criminal charges if it is made unmistakably to appear that the grand jury was actually conducting an investigation directed against the witness and summoned him to testify with the purpose of getting evidence to fix a criminal charge on him. The rationale of these decisions is that where the investigation is in fact a proceeding against the witness, or being ostensibly a general investigation is, in fact, as shown by the circumstances and evidence, a proceeding against him, then there is a gross encroachment upon the witness' privilege if he be subpoenaed before the body, sworn and questioned, though he makes no claim of the privilege (cases omitted)." (19 N.J., at pp. 437-438)
The defendant contends that the investigation was not general but directed at him and two others, that he was neither advised of his constitutional rights nor apprised of the nature of the subject matter of the investigation and that he was not requested or offered the opportunity to execute
a waiver of his right or privilege. In the alternative, the defendant argues that even if the Court decides that he had knowledge of his constitutional rights or that he waived such rights, the act of subpoenaing him as a witness when he was a prospective defendant before the Grand Jury is unconstitutional under the Fifth and Fourteenth Amendments of the United States Constitution.
The State, in the alternative, contends that the defendant knew of his rights, the subpoenaing of the defendant was not a ruse to procure evidence from him to support an indictment, there is other evidence to support the indictments, and the defendant did not incriminate himself. Additionally, the State contends that the act of subpoenaing the defendant, even assuming that he was a prospective defendant, is not unconstitutional.
No formal charge was pending against the defendant at the time he appeared before the Grand Jury. However, information had come to the prosecutor's attention that a conspiracy to bribe certain officials might have occurred and that C. Robert Sarcone was probably one of the conspirators. Indictment No. 2086-66 at Paragraph 12 reads,
"On or about the 7th day of June, 1967, Samuel Stellatella, after having revealed what had transpired to date in confidence to the county prosecutor of Essex County, conferred again with Arthur Rosania when Rosania called him. Stellatella informed Rosania that he had obtained the money and that it would be in his (Stellatella's) hands by the following Monday, June 12, 1967. Rosania told Stellatella to contact C. Robert Sarcone to inform him that the money had been obtained."
Therefore, it cannot be suggested that the subject matter of the Grand Jury investigation was general in scope. The investigation was devoted to an inquiry into a particular transaction; the defendant was a target for the indictment. Certainly, Paragraph 12 in Indictment No. 2086-66 supports this conclusion as does the subpoena directed to Greta Brickell, heretofore referred to.
Furthermore, the prosecutor demonstrated his intention to charge the defendant with the commission of a crime or crimes at the time he summoned the defendant to appear. The prosecutor, after propounding numerous questions to the defendant and playing tapes ...