Lora, Handler and Tarleton.
City of Paterson appeals from an order of the Law Division suppressing all state grand jury testimony and evidence and prohibiting its use by the City of Paterson in any departmental hearings, and directing the city to provide and proceed with a full plenary hearing under N.J.S.A. 40A:14-149 within ten days. The order of the Law Division has been stayed pending appeal.
On May 7, 1973 respondent Donald F. Young, a police lieutenant in Paterson, was informed by the New Jersey State Police that he was the target of an investigation concerning police corruption in the City of Paterson. He was subpoenaed to appear before the state grand jury on May 11, 1973. On that day Young refused to testify, invoking the Fifth Amendment. The trial judge's findings recite that the Attorney General offered Young immunity under N.J.S.A. 2A:81-17.3, an immunity "beyond the scope of public officials immunity." Young accepted on advice of counsel and agreed to cooperate with the state investigation.
In his oral opinion the trial judge further stated that Young claimed the Deputy Attorney General indicated he would not be indicted nor named in the indictment, nor would his testimony be given to the City of Paterson to be used against him in any way.
Young was again subpoenaed to appear before the state grand jury on May 30, 1973. He refused to testify, invoking his constitutional rights, and was directed to testify and granted immunity by the assignment judge of Mercer County pursuant to N.J.S.A. 2A:81-17.3. Young refused to comply and thereupon the court directed his incarceration for contempt. On June 4, 1973 he was suspended from the police force. Thereafter, Young appeared before the state grand jury on June 21, 1973 and testified. At a meeting of the Paterson Police and Fire Board on that date, Young was restored to full duty.
The state grand jury returned an indictment against several police officers and named Young as a nonindicted co-conspirator. On June 29, 1973 Young was again suspended by the chief of police, and he demanded a hearing on the charges which was later adjourned over his objections. The trial judge's stated chronology of events indicates that the City's Police and Fire Board subpoenaed the Deputy Attorney General who had handled the matter before the state grand jury, but he declined to release any of the grand jury information until he was so ordered by a court of competent jurisdiction.
The city thereupon sought an order from the Mercer County assignment judge directing the release of Young's grand jury testimony. That court ordered the Attorney General to provide the City of Paterson with all state grand jury testimony and minutes and all documents and statements relative to the investigation, indictment or prosecution and granting of immunity of Young, but it also ordered that Young be permitted to file with the court of appropriate jurisdiction a motion to suppress the admission of
such materials. There was no indication as to the basis upon which such suppression might be sought.
Young's motion to suppress was granted by the Law Division. According to the opinion of the trial judge, he entertained the view that the immunity which Young had received was pursuant to N.J.S.A. 2A:81-17.3 and that it was broad enough to bar a use of any testimony or evidence derived directly or indirectly from the testimony or evidence produced by a subject person before a grand jury, in a proceeding such as involved in departmental hearings pursuant to N.J.S.A. 40A:14-149.
In his recital of the procedural history as outlined above, the trial judge states as a fact the offer of the Attorney General to grant immunity "beyond the scope of public officials immunity," and that the State "indicated" that Young's testimony would not be given to the City of Paterson "to be used against him in any way." However, the record, such as it is -- no transcript having been made of any of the conversations leading up to and including the granting of immunity -- furnishes no basis for a finding of fact that the State, through the office of the Attorney General, had indeed given or promised immunity of such breadth in exchange for Young's testimony before the Grand Jury.
In addition to the foregoing, the trial judge refers to the actual order signed by the Mercer County assignment judge granting Young immunity. That order merely recites, in the statutory language of N.J.S.A. 2A:81-17.3, that the testimony or evidence produced by Young "shall not be used against the said Donald Young in any proceeding or prosecution for a crime or offense concerning which the said Donald Young gave answers or produced evidence pursuant to the order of this court." On its face ...