Kilkenny, Halpern and Lane.
Hugh J. Addonizio, former mayor of Newark, appeals from an order and "final judgment" of the Law Division, entered on December 10, 1969, "without notice to appellant or an opportunity to be heard with regard to the applications."
The order directed the Essex County Prosecutor "to make available to the United States Government all evidence, exhibits, transcripts and materials presented to the above-named Grand Jury." The reference was to the "15th Essex County Grand Jury of the 1967 Term." The applications for the "turn-over" of this material were jointly made
by the Essex County Prosecutor and the United States Attorney for New Jersey.
Addonizio had not been made a party to the applications, although both the federal and Essex County grand juries were conducting concurrent, but separate investigations of the administration of public affairs in Newark, and Addonizio, as mayor, was one of the targets in those investigations.
The "turn-over" was effected, pursuant to the Law Division order. Apparently, no application was made to our courts for a stay. The record before us does not disclose the grant or denial of any motion for a stay. Addonizio did move before trial in the United States District Court to suppress as evidence all materials "turned over" to the United States Government pursuant to the order of December 10, 1969. Judge Barlow of the United States District Court denied that motion.
To what extent, if any, this material, now in federal custody, was used by the United States Attorney has not been made manifest before us. It is, though, a matter of public knowledge that Addonizio and others were indicted by the federal grand jury subsequent to the "turn-over." His trial and that of some co-defendants resulted in a verdict of guilty. Addonizio was sentenced on September 22, 1970 by Judge Barlow to a prison term of ten years and ordered to pay a fine of $25,000. His convictions are being appealed.
As of now, the issue before us appears to be moot. The United States Attorney and the prosecutor properly note that by reason of the fait accompli , we can render only an "advisory opinion." However, we shall consider the arguments presented.
Addonizio's first point is that the order under review is a "final judgment" and appealable. The United States Attorney and the prosecutor maintain that the order is not a "final judgment" appealable to this court. They further aver that the proceeding initiated in this court by Addonizio is not an "appeal."
The "turn-over" order made on December 10, 1969 by Judge Giuliano was final in nature. It was not a mere interlocutory step in some other proceeding in our court. It was as final as that in In re Addonizio , 53 N.J. 107 (1968), wherein the Supreme Court reversed a Law Division order directing the mayor to obey a subpoena requiring him to produce his personal records before the grand jury.
But even if it were not final, the importance of the issue would induce us to grant leave to appeal, nunc pro tunc , if that were necessary. We prefer not to rest our conclusion upon the technical ...