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State v. Cattaneo

Decided: March 21, 1973.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GABRIEL CATTANEO, DEFENDANT-APPELLANT



Carton, Mintz and Horn. The opinion of the court was delivered by Mintz, J.A.D.

Mintz

[123 NJSuper Page 169] Defendant was tried to a jury on a four count-indictment in which he was charged in the first two counts with perjury, in violation of N.J.S.A. 2A:131-1, and in the third and fourth counts with false swearing, in violation of N.J.S.A. 2A:131-4. At all relevant times in question defendant was Acting Chief of Detectives in the Hudson County Sheriff's Office and then Chief Inspector in that Bureau.

The indictments resulted from defendant's testimony on September 23, 1971 before the grand jury which was inquiring into certain allegations concerning the purchase of tickets by sheriff's officers in Hudson County to the Democratic Party annual dinner. The first count essentially charged that defendant committed perjury when he testified that to his knowledge within the last ten years it never cost more than $100 for one ticket to that dinner; that in the past four years it never cost any individual more than $100 to receive one ticket, and that he never received more than $100 for an individual ticket from any member of his staff.

In the second count defendant was charged with perjury when he testified before the grand jury that the 3% contribution in Hudson County did not apply to tickets that he distributed; that everyone he spoke to gave willingly; that he had no first hand experience with the 3% contribution tradition, and that he did not ever remember receiving 3% of any employee's salary for a ticket.

The third count charged defendant with false swearing in violation of N.J.S.A. 2A:131-4, based upon the same testimony before the grand jury referred to in the first count. The fourth count charged defendant with false swearing based on the same testimony mentioned in the second count.

The jury found defendant not guilty on the first count; guilty of perjury as alleged in the second count, guilty of false swearing under the third count, and failed to return a verdict on the fourth count. The court thereupon entered a dismissal as to the fourth count. In summary, defendant was convicted of perjury concerning his testimony respecting the 3% contribution of an employee's salary for the purchase of a ticket, and false swearing with respect to his testimony that he never received more than $100 for the sale of a ticket.

Defendant was sentenced from one year to 18 months on the second count and fined $2,000, plus costs of trial. On the third count defendant received the same custodial sentence,

to be served concurrently with that imposed on the second count.

On appeal defendant raises several contentions. Initially he argues that the court erred in denying his motion to dismiss the indictment, and that the counts in the indictment charging him with false swearing should have been dismissed as plain error. N.J.S.A. 2A:81-17.2a2 provides that any public employee testifying before a grand jury is immune from prosecution in a subsequent criminal proceeding based upon his grand jury testimony or the evidence derived therefrom. The only stated exception is perjury; there is no immunity from prosecution for that offense. Defendant contends, among other things, that (a) under the cited statute he was immune from prosecution for anything other than perjury; (b) he was the "target" of the grand jury proceeding and the prosecutor was accordingly obligated to advise him of his Fifth Amendment rights, and (c) he had a right to counsel when testifying before the grand jury.

Prior to testifying defendant signed a waiver of immunity, which he now contends was not voluntary and therefore ineffectual.

The motion to dismiss the indictment was made prior to the empanelling of a jury. The trial judge, in denying the motion, referred to the colloquy preceding the execution of the waiver and concluded that defendant fully understood the contents of the waiver of immunity, and further stated that if defendant was the "target" of the grand jury proceeding, his testimony could not be used against him in connection with the substantive offense under investigation, but he would not be immune from a prosecution for perjury or false swearing within the purview of N.J.S.A. 2A:81-17.2al et seq.

We note that defendant was employed in the Sheriff's Office for about 17 years and during the relevant period in question held a superior position. We are satisfied that the record supports the finding that the waiver was fully understood and voluntarily made by defendant. ...


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