Kolovsky, Matthews and Crahay. The opinion of the court was delivered by Crahay, J.A.D.
Michael Miller appeals, on leave granted, from an order confining him to the Middlesex County Jail for the duration of the trial or trials to be based on the open counts of Indictment No. 405-71, and providing further for Miller's release on bail of $25,000 pending the beginning of those trials. The multi-count indictment charges Miller, Joseph Shamy and others with conspiracy to obstruct justice, obstruction of justice and aiding and abetting the obstruction of justice. Shamy, in counts not charging Miller, was accused of an additional conspiracy to commit bribery and bribery. Miller, who has filed a bail bond of $20,000 following an arraignment on the counts in the indictment involving him, seeks in the alternative a reduction of the $25,000 additional bail fixed in the order appealed from. By order of January 29, 1973 we granted leave to appeal and ordered Miller's release from jail pending our disposition of this interlocutory appeal.
The record reveals the following. A fire occurred during the night of September 28, 1971 at the Zoo Tavern in Carteret, New Jersey. As a direct result two men were killed, including the owner of the tavern. During the police investigation early the next morning a strong odor of gasoline was detected inside the building and it was noted that a juke box had been placed in a manner to seemingly restrict access through the front door. Based on their investigation the officers concluded that the fire was of an incendiary nature. Sometime during the night of September 28, 1971, subsequent to the fire, one George Sotteriou, a named defendant in the indictment, was admitted to Middlesex General Hospital suffering from severe burns over the lower half of his body. The State alleges that he was implicated in
the arson and escaped apprehension by fleeing the scene. Subsequent to his hospital admission Sotteriou was visited by Joseph Shamy, a business associate. During the visit appellant Michael Miller came to the hospital where, it is alleged, Joseph Shamy told him where Sotteriou's car was located. Miller then proceeded to the location as told to him, the home of one John Sandonato, another named defendant, and removed the car to the parking lot of the Barbary Coast Restaurant in Woodbridge. Miller returned to the lot with another man during the early morning hours of September 29, at which time he was apprehended by the police, who arrested him and held him as a material witness.
Prior to presenting the matter to the grand jury the prosecutor proposed to grant Miller immunity in return for his assistance. However, the prosecutor was not satisfied with appellant's cooperation. He was thereafter called before the grand jury. After being clearly advised of his right to remain silent, he chose to testify with specificity as to his participation and that of others in the involved offenses. He did so without seeking or being granted immunity. A motion to dismiss the counts in the indictment pertaining to Miller based on prior promises of immunity was dismissed. The dismissal was subject to renewal prior to trial of any count against Miller. Thereupon Miller was released on $20,000 bail. He has not yet been brought to trial on the three counts against him.
Miller was subpoenaed to testify at the trial of Joseph Shamy on counts 11 and 12, which charged conspiracy to commit bribery and bribery (two counts in which Miller was not named). The remaining counts were severed and pend trial. On January 18, 1973 Miller appeared at the trial on counts 11 and 12 and took the stand outside the presence of the jury. As soon as he was asked a question he invoked his Fifth Amendment privilege against self-incrimination, whereupon the State submitted a petition to compel testimony under N.J.S.A. 2A:81-17.3, the immunity statute.
The trial judge then signed an order compelling appellant to testify in all matters relating to Joseph Shamy and others in the multi-count indictment. After reviewing the petition counsel for appellant insisted that Miller be given transactional rather than use immunity, which was denied. Because of that denial, Miller refused to testify. See Kastigar v. United States , 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), reh. den. 408 U.S. 931, 92 S. Ct. 2478, 33 L. Ed. 2d 345 (1972); In re Zicarelli , 55 N.J. 249 (1970), aff'd 406 U.S. 472 (1972); "The Fifth Amendment's Proxy-Transactional or Use Immunity?," 3 Seton Hall L. Rev. 199 (1971). After being ordered to answer Miller again refused. He was held in contempt and committed to the Middlesex County Jail until he purged himself of his contumacious conduct by testifying.
At the conclusion of the State's case on January 25, 1973 a judgment of acquittal was entered in favor of Shamy. The next day counsel for appellant applied to the trial judge for the release of Miller, asserting that the testimony by which he might purge himself was now moot and, further, that the immunity statute did not provide for further incarceration. The court denied the request to release the appellant, since there were remaining counts in the indictment to be tried, ruling that the only means by which Miller could purge himself was to testify in the pending matters. The court further ordered that pending the beginning of the trial of the open counts, Miller might be released on bail of $25,000. As noted, Miller contends that he should be released outright or that in the alternative he is entitled to a reduction of bail.
The New Jersey Witness Immunity Act, N.J.S.A. 2A:81-17.3, was patterned after the Model State Witness Immunity Act. In re Addonizio , 53 N.J. 107 (1968). The New Jersey act provides:
In any criminal proceeding before a court or grand jury, if a person refuses to answer a question or ...