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July 3, 1974

UNITED STATES ex rel. Angelo DeROSA, Plaintiff,

Lacey, District Judge.

The opinion of the court was delivered by: LACEY

LACEY, District Judge:

 Petitioner seeks a writ of habeas corpus, alleging illegal detention by respondents within 28 U.S.C. § 2241 et seq., to wit, a three-year period of probation upon suspension of a 2-3 year New Jersey State prison term, and a $1000 fine, later suspended, the sentence imposed after conviction following jury trial of violating N.J.S.A. 2A:98-1. Petitioner thus is neither presently incarcerated nor in immediate danger of incarceration.

 State remedies have been exhausted as to all asserted claims, same having been raised on direct appellate review in the Appellate Division, which by an unpublished opinion affirmed the conviction, and the New Jersey Supreme Court having dismissed, without opinion, petitioner's appeal on June 30, 1972. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). *fn1" Additionally, a petition for writ of certiorari, filed in the United States Supreme Court, was denied, 409 U.S. 1040, 93 S. Ct. 523, 34 L. Ed. 2d 489 (1972).

 Factual Background

 On March 24, 1970, the Bergen County Grand Jury returned an indictment charging petitioner and one Vincent Sollazzo with violating N.J.S.A. 2A:98-1(h), which reads in pertinent part:

Any 2 or more persons who conspire:
* * *
(h) to commit any act for the perversion or obstruction of justice or the due administration of the laws --
Are guilty of a conspiracy and each shall be punished . . . as for a misdemeanor.

 Specifically, the indictment charged that Sollazzo on October 16, 1969 filed an application with the Division of Alcoholic Beverage Control (A.B.C.) to remove a disqualification from the right to possess a liquor license. The A.B.C. thereupon scheduled a hearing for January 7, 1970. At the hearing Sollazzo had the burden of proving to the A.B.C. that he had conducted himself as a law-abiding citizen for the last five years. In order to sustain such a burden, Sollazzo was notified to produce at least three witnesses who had known him for five years or more and who would be willing to testify under oath as to Sollazzo's good character and law-abiding conduct. Petitioner who was one of the witnesses produced by Sollazzo.

 Petitioner testified at the A.B.C. hearing that he was the Chief of Police in South Hackensack, had known Sollazzo for more than ten years, had seen him once a week during the preceding five years, and knew his reputation in the community. Petitioner was then asked the following questions, the answers to which were later to be the basis of the indictment:

Q Have you in the past 5 years heard anyone speak of him in a derogatory manner?
A No.
Q In your opinion, is he now an honest, law-abiding person with a good reputation?
A Yes.

 The State charged that these answers were knowingly and wilfully false. The State also asserted that on December 19, 1969, well prior to the A.B.C. hearing, petitioner became aware that the Prosecutor had executed a search warrant at the business establishment in which Sollazzo had an interest [the Jade East Motel]; and that in December 1969 petitioner knew Sollazzo was wanted by the Prosecutor for questioning concerning a gambling operation. Thus the State contended that Sollazzo and petitioner conspired to pervert and obstruct justice by having petitioner wilfully testify falsely at the A.B.C. hearing to the law-abiding character of Sollazzo; and it was on this charge that he was convicted.

 The statement, which petitioner alleges was improperly obtained from him, and upon which the State heavily relied at trial, was made under the following circumstances. On March 19, 1970, a detective from the Prosecutor's office asked petitioner to come to that office, telling him that office was conducting an investigation of the South Hackensack Police Department and the Jade East Motel. Petitioner, responding to the telephone call, proceeded to the Prosecutor's office, and was ushered into an empty grand jury room where he was met by two assistant prosecutors, two detectives, a stenographer and a court reporter. Petitioner was then asked whether he was willing to give a statement under oath and he replied in the affirmative. Petitioner stated that he knew at least three days after the December 19, 1970 raid on the Jade East that there was a continuing investigation of Sollazzo by the Prosecutor's office. Petitioner admitted testifying before the A.B.C. on Sollazzo's behalf, but insisted that such testimony was given before he knew of the said raid. The fact is he testified on January 7, 1970, well after the raid. The statement was introduced at trial on the State's case over petitioner's objection.

 A threshold issue which must be resolved before reaching the merits of petitioner's claims is whether petitioner is "in custody" within the meaning of 28 U.S.C. § 2241 et seq.

  It is clear that to invoke the Great Writ one need not be physically detained in a penal institution. In Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973), the Supreme Court held that a person released in his own recognizance, pending appeal of his conviction, was sufficiently "in custody" for the purpose of seeking habeas corpus relief. The Court stated (411 U.S. at 350, 93 S. Ct. at 1574):

We have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.

 While the petitioner in Hensley faced immediate incarceration if his appeals were not successful (which factor is not present in the matter sub judice), it is apparent that, because of the sentence imposed, petitioner suffers from a restraint not shared by the public generally. Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1973). As in Walker v. North Carolina, 262 F. Supp. 102 (W.D.N.C.1966), aff'd., 372 F.2d 129 (4th Cir.), cert. denied, 388 U.S. 917, 87 S. Ct. 2134, 18 L. Ed. 2d 1360 (1967), the threat of future imprisonment, if the conditions of probation are not complied with, is sufficient to bring petitioner within the meaning of the custody provision of 28 U.S.C. § 2241.

 Petitioner alleges three bases in support of his petition. The last ground, that certain of the prosecutor's remarks were so prejudicial as to violate petitioner's due process rights under the Fourteenth Amendment, is without merit, and is at most mere trial error, lacking constitutional significance. See Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); United States v. Somers, 496 F.2d 723 (3d Cir. 1974). Petitioner's first and second grounds shall be discussed in reverse order.

 Miranda Question

 Petitioner claims a Fifth Amendment violation, asserting that the statement given by him to the officials of Bergen County was inadmissible at trial since it was taken in violation of the holding in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), no Miranda warnings having been given him prior to questioning. Cf. Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974).

 Miranda is triggered only by custodial interrogation, by "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S. Ct. at 1612. Thus, the initial question to be asked is whether petitioner was "in custody."

 It is clear that to be "in custody" in the Miranda sense does not necessitate a formal arrest nor does it require physical restraint in a police station. See Orozco v. Texas, 394 U.S. 324, 326, 89 S. Ct. 1095, 22 L. Ed. 2d. 311 (1969). What is not so clear is at what point one, not ...

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