Halpern, Matthews and Bischoff. The opinion of the court was delivered by Bischoff, J.A.D. Halpern, P.J.A.D. (dissenting).
Defendant John J. Kenny appeals his conviction of the violation of N.J.S.A. 2A:85-1 (misconduct in office) and N.J.S.A. 2A:105-1 (unlawful taking of money for the performance of duties) and the sentences imposed thereon. The fundamental issue presented by this appeal is whether a valid grant of transactional immunity by the United States Attorney in the United States District Court effectively immunized defendant from conviction or punishment for the crimes charged.
A statement of the lengthy and complex procedural history is necessary to an understanding of the issues presented.
On September 15, 1970 a state grand jury returned an indictment in two counts charging defendant with unlawfully taking money while in office for the performance of his duties. The charges alleged that in late 1966 defendant, then chairman of the Hudson County Board of Freeholders, received a bribe of $50,000 from four men named Reinauer and one named Schiffman, principals of the Reinauer Land Company, and Hyman Mack, president of the Mackman Realty Corporation, in order that defendant would use his influence and his position to have the Hudson County Board of Freeholders change or modify certain restrictions contained in a recorded deed between the Reinauer Land Company and the county.
On November 15, 1970 the federal grand jury for the District of New Jersey returned an indictment containing
34 counts against defendant and 11 others. The federal charges involved shakedowns of various contractors who sought construction contracts in Hudson County and Jersey City during the period commencing February 14, 1963, down to the time of the indictment. The federal charges did not in any way involve the Reinauer deed transaction.
On May 14, 1971 Kenny was severed from the federal indictment on application of the United States Attorney. Later, on May 19, 1971, the United States Attorney notified the New Jersey Attorney General that Kenny was to be granted transactional immunity and compelled to testify in the forthcoming federal trial. The letter of notification reads in part as follows:
As I advised you in person and telephonically, it was the personal desire and direction of the Attorney General of the United States, John N. Mitchell, that we speak to you and advise you that it was in the national interest that John J. Kenny be compelled to testify in this federal case and be granted immunity from prosecution concerning any matter upon which testimony touched. It was Mr. Mitchell's desire that you be notified inasmuch as it seemed clear to us that any immunity thus conveyed by the United States Courts would bind the State under the supremacy clause and could possibly prejudice your existing state indictment against John J. Kenny. * * *
Thus, by us making every careful effort to limit his direct examination, we hope to achieve for you the result which you wish as exemplified by your letter of May 17, 1971. However, one further problem faces us. As I told you during our telephone conversation, there is no practical way in which I can limit cross-examination of defense counsel and, of course, we must recognize that he will be immunized just as fully to his cross-examination as he will be to his direct. Inasmuch as I cannot see how I, as the Chief federal law enforcement officer of this district, can possibly approach or enter into any kind of agreement with counsel for defendants such as these, it seems to me that we will have to take our chances and hope for the best.
On May 24, 1971, during the trial of the federal court indictments, Kenny was called to the stand and asked the following question by the United States Attorney:
Mr. Kenny, between on or about November 1, 1963, and continuing thereafter until the very date you were indicted by the United States Grand Jury did you conspire with the defendants now on trial here
before this Court, particularly John V. Kenny, Thomas Whelan, Thomas Flaherty, Walter Wolfe, William Sternkopf, Jr., Fred Kropke, Joseph Stapleton, Philip Kunz, and Bernard Murphy to violate various laws of the United States Congress?
Kenny invoked his Fifth Amendment privilege against self-incrimination, as well as his right to remain silent under New Jersey law, and refused to answer the question.
At this time the United States Attorney stated in open court that he had conferred with John N. Mitchell, Attorney General of the United States, and the Assistant Attorney General in charge of the Criminal Division, and Mitchell had advised it was his belief that it was in the national interest that Kenny be granted immunity so that he could testify at the trial. He continued and stated it was also his belief, opinion and judgment that it was in the national interest that the witness be directed to testify, and asked the federal trial judge "to direct [the] witness to answer the questions * * * asked and to thereby confer the full transactional immunity provided for by Sec. 2514 of Title 18 U.S. Code."*fn1
The court informed Kenny he was being granted full transactional immunity and he was directed to answer the questions. Kenny then answered "yes" to the question posed and other similar questions put to him during the course of the trial.
On direct examination the United States Attorney did not ask any questions relating to matters included within the state indictment. The testimony given by Kenny on direct examination was damaging to the other defendants. One of the defendants was represented by Walter D. Van Riper and a part of his cross-examination of Kenny is the storm center of this appeal. The pertinent part follows:
Q. Do you know B. Frank Reinauer?
A. Yes, I know Frank Reinauer.
Q. Do you know Frank Reinauer the II?
A. I know Frank -- I know him to speak of because he was named in the indictment.
Q. I asked you if you knew him?
Q. Do you know Gordon S. Reinauer?
Q. Do you know Max Schiffman?
Q. Do you know Hyman Mack?
THE WITNESS: May I talk on that indictment, Judge?
MR. VAN RIPER: I will give you an opportunity.
THE COURT: Wait for a question.
Q. Did you shake down or attempt to shake down those men for $50,000 while you were Director of the Board of Freeholders?
A. I didn't, but Angelo Sarubbi did and he ...