For remandment -- Chief Justice Hughes, Justices Jacobs, Hall, Sullivan, Pashman and Clifford and Judge Kolovsky. Opposed -- None.
[66 NJ Page 33] Gerardo Catena, a suspected member of the hierarchy of organized crime, was subpoenaed to appear and testify before the New Jersey State Commission of Investigation (hereinafter S.C.I.) which has been conducting a continuing investigation into the activities of organized crime in this State. He appeared at two private hearings before the S.C.I. (November 18, 1969 and February 17, 1970), but refused to answer some 80 questions relating to organized crime even though granted testimonial immunity pursuant to N.J.S.A. 52:9M-17. Accordingly, he was cited for contempt by the Superior Court, Law Division, which, on March 4, 1970, ordered that Catena be committed
until such time as he purged himself of contempt. To date he has refused to testify although concededly able to do so and possessing information relevant to the S.C.I.'s continuing investigation.
In December 1973 Catena sought to be released on the ground that his confinement had lost its coercive impact and had become punitive. At the hearing on his application, he presented no testimony or other evidence*fn1 and limited his argument to the contention that his age, condition of health and his persistent silence for four years established a prima facie case that his commitment had failed as a coercive measure. The trial court agreed with this argument and ordered that Catena be released forthwith.
This Court disagreed. In our opinion, Catena v. Seidl, 65 N.J. 257 (1974), it was noted that Catena was still in contempt and subject to the order committing him until he purged himself by testifying; that the S.C.I. was not required to demonstrate the continued efficacy of such order and that Catena had the burden of showing that the commitment, lawful when ordered, had lost its coercive impact and had become punitive. We held that "[h]e has not done so on the present record." 65 N.J. supra, at 264.
In his December 1973 complaint Catena had also raised the issue of a statutory defense under 18 U.S.C.A. § 2515 to a contempt resulting from illegal surveillance. It was also alleged that the subpoena to testify issued by the S.C.I. stemmed from illegally obtained information and was constitutionally invalid. Catena asked for the right to present evidence in support of these allegations should his other contentions be rejected. However, the trial court, since it found that Catena's confinement no longer had any coercive impact and must be terminated, found it unnecessary to receive this evidence or rule on the legality of these contentions.
As heretofore noted, this Court held that Catena had not shown that his continued incarceration had lost its coercive power. We therefore vacated the order for release. At the same time we found it impossible to consider Catena's additional contentions in the absence of a record. We remanded the matter to the trial court to hold an evidentiary hearing as to these matters and we retained jurisdiction for the purpose of reviewing the ruling of the trial court on the matters covered by the remand. 65 N.J. supra, at 265.
When the matter came before the trial court on July 29 and July 30, 1974, the hearing was expanded to include not only the matters covered by the remand, but also reconsideration of the question whether continued commitment of Catena would serve any coercive purpose.
At the conclusion of the hearing the trial court determined that the provisions of 18 U.S.C.A. § 2515 were inapplicable to the S.C.I.'s proceedings and that, even if the statute was pertinent, the S.C.I. had established that the information which formed the basis for the questions propounded to Catena was not obtained by illegal or unauthorized surveillance. Since the court found that the information on which the questions were based was not the result of illegal surveillance, it found no merit in Catena's additional contention that the subpoena ad testificandum issued to him by the S.C.I. stemmed from illegally obtained information.
We also reject the argument that the S.C.I. could not lawfully interrogate Catena as to his involvement in organized crime activities, but on a broader ground. The S.C.I. is a legislatively created body exercising broad statutory powers of investigation into organized crime and racketeering. Its purpose is to find facts which may subsequently be used as the basis for legislative and executive action. To deny it the power to question Catena on the ground that some background information on organized crime activities received from other governmental agencies had its source in unauthorized electronic surveillance, would completely
frustrate the legislative object.*fn2 This same basic contention was made in In re Zicarelli, 55 N.J. 249 (1970), aff'd 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. ...