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State v. Mullen

Decided: April 18, 1975.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES MULLEN ET AL., DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

[67 NJ Page 135] Defendants, members of the Police Department of the City of Atlantic City, were indicted by the State Grand Jury on charges of conspiracy, unlawful taking of money, false swearing and larceny. The false swearing charges resulted from defendants' allegedly having testified

falsely when they appeared before the State Grand Jury which was investigating allegations of corruption in the Atlantic City Police Department.

Defendants had been summoned to appear before the Grand Jury by virtue of N.J.S.A. 2A:81-17.2a et seq. the pertinent provisions of which are as follows:

2A:81-17.2al Duty of employee to appear and testify; removal for failure or refusal

It shall be the duty of every public employee to appear and testify upon matters directly related to the conduct of his office, position or employment before any court, grand jury or the State Commission of Investigation. Any public employee failing or refusing to so appear and to so testify shall be subject to removal from his office, position or employment. L. 1970, c. 72, § 2, eff. May 21, 1970.

2A:81-17.2a2 Immunity from use of evidence; perjury

If any public employee testifies before any court, grand jury or the State Commission of Investigation, such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury committed while so testifying. L. 1970, c. 72, § 3, eff. May 21, 1970.

After the indictment had been handed down, defendants moved to dismiss the charges of false swearing on the ground that defendants' testimony before the Grand Jury having been compelled, the statute (supra) barred the use of such testimony against them in a subsequent criminal proceeding, except that they could be prosecuted for perjury committed while so testifying.

The trial court granted defendants' motion and dismissed the charges of false swearing holding that under the statute, if indeed defendants had testified falsely before the Grand Jury, the only prosecution that could be had against them for their false testimony would be for perjury. The State has appealed the dismissal of the false swearing charges. This Court, on the State's motion, certified the

appeal pending unheard in the Appellate Division. 66 N.J. 338 (1974).*fn1

We find the court's construction of the statute to be too restrictive. We conclude that a public employee who testifies under the compulsion of N.J.S.A. 2A:81-17.2a et seq., but gives false testimony, may ...


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