Carton, Crane and Kole. The opinion of the court was delivered by Crane, J.A.D.
The issue to be resolved in this case is whether the trial judge properly dismissed the first seven counts of the indictment against defendant on the ground that his Fifth Amendment rights were violated by his being interrogated before the grand jury which indicted him.
The information which led to defendant's indictment first came to light during the course of a civil trial in the Law Division in Union County. The litigation concerned a claim for work and materials allegedly furnished in connection with a road and sewer project in the City of Elizabeth. During the trial Victor Vinegra, the Assistant City Engineer for the City of Elizabeth, was called as a witness. After the completion of his direct testimony one of the attorneys informed the trial judge in chambers that an officer of one of the defendant corporations had been asked by Vinegra for a political contribution of $500 prior to the start of the construction work on the project and that the officer had given Vinegra the money. The trial judge immediately informed the prosecutor, who joined the discussion in the judge's chambers.
On the following day Vinegra was called before the grand jury then sitting in the county. Prior to his giving testimony he was told that penalties for perjury or obstruction of justice would be invoked for failure to give complete and truthful testimony. He was not warned, however, that anything he said might be used against him, nor was he advised of his privilege against self-incrimination or of his right to counsel. Vinegra was questioned about his role in the road and sewer project. He was asked whether he had recommended a contractor for the project, whether he made personal inspections of the project, how often he visited the project site, whether additional stone was used on the project, the methods of financing the project and the procedures for paying the contractors. He was also asked to explain his supervision of the record keeping for the stones delivered and the $500 political contribution. Vinegra appeared before the grand jury on three subsequent occasions. Ultimately a nine-count indictment was returned by the grand jury charging defendant Vinegra individually with two counts of misconduct in office and one of false swearing. Together with one Harry E. Allen he was charged with three counts of conspiracy, one count of false pretenses and one count of attempted false pretenses. The ninth count charged Allen with false swearing.
On motion of defendant Vinegra to dismiss the trial judge made findings of fact. He found that de facto criminal charges had been made against Vinegra, that the grand jury was conducting an investigation directed against him and that calling him as a witness was a ruse to induce him to give evidence against himself. The judge concluded that Vinegra was a target of the grand jury proceedings and that the failure to inform him of the scope of the investigation and the failure to warn him of his privilege against self-incrimination required a dismissal as to Vinegra of all counts of the indictment in which he was named as a defendant except the eighth count charging him with false swearing. The trial judge relied essentially on the dictum in State v. Fary,
The State filed a notice of appeal from the order of dismissal. Although no motion to dismiss the State's appeal was made, we note that the order dismissing some, but not all, of the counts against defendant was not a final judgment and was thus not appealable as of right. R. 2:3-1. Because of the importance of the issues raised we have determined on our own motion to grant leave to appeal in order to reach the merits. However, we do point out that in instances such as appear here leave to appeal should be sought under R. 2:5-6(a) and application made for a stay of the remaining counts to avoid multiplicitous trials. See State v. Mullen, 67 N.J. 134 (1975).
Defendant sought leave to appeal from the denial of his motion to dismiss the eighth count charging false swearing. He contended that the public employee immunity statute, N.J.S.A. 2A:81-17.2a2, prohibits the prosecution of a public employee who has testified before a grand jury on a charge of false swearing as distinguished from perjury. His motion for leave to appeal was denied. That issue has since been decided adversely to his contention in State v. Mullen, supra.
Our review of the record indicates that there was sufficient evidence to justify the factual conclusions of the trial judge that Vinegra was a target of the grand jury investigation; that he was not informed of the scope of the investigation or of his privilege against self-incrimination, and that calling him before the grand jury was a ruse to obtain evidence against him. Accordingly, we shall not disturb them. State v. Johnson, 42 N.J. 146 (1964).
We disagree, however, with the determination of the trial court that dismissal of the ...