Matthews, Lora and Morgan.
Defendant was indicted for giving false information to law enforcement officers, in violation of N.J.S.A. 2A:148-22.1. Before trial he moved to dismiss the indictment, contending that his conduct was not proscribed by the provisions of the statute. The indictment was dismissed by Judge Morris who filed the following letter opinion:
"This is defendant's motion to dismiss an indictment charging him with a violation of N.J.S.A. 2A:148-22.1. The indictment charges that on May 24, 1972 defendant gave false information to two law enforcement officers with respect to the commission of certain crimes or purported crimes which are said to have taken place during his tenure as a member and as chairman of the Madison Township Planning Board. Defendant
contends that his statement to the officers was nothing more than an exculpatory denial and as such would not constitute conduct proscribed by this statute. Defendant further contends that under the facts of this case his prosecution would be violative of due process in that the effect is to strip him of the protection of the statute of limitations.
"The law enforcement officers were special agents of the State Commission of Investigation. They approached defendant in a somewhat informal manner at his place of business. They advised him generally of the subject matter of their inquiry and advised him of his constitutional rights. Defendant indicated that he was willing to answer their questions. The preliminary discussion involved a confirmation by defendant of facts and matters within the knowledge of the agents which were matters of public record, including the fact that between 1966 and 1970 he served as chairman of the Planning Board of Madison Township. When asked if he had ever been approached by anyone while on the planning board or had he ever approached anyone for any monies he denied it. This, the State contends, constitutes a violation of the statute in view of its evidence that on various dates between June 1, 1966 and September 30, 1968 defendant had solicited and received bribes from or shared bribe money with other persons. At the time of the interview the agents were armed with knowledge that the State Commission of Investigation had previously received sworn testimony with regard to these alleged occurrences, so that plainly defendant at the time of the interview was a target of the investigation.
"The statute in question provides as follows:
Any person who knowingly and willfully gives false information or causes false information to be given to any law enforcement officer or agency with respect to the commission of any crime or purported crime is guilty of a misdemeanor.
"To date there has been but one reported case in the State of New Jersey concerning this section, namely, State v. Hobbs , 90 N.J. Super. 146 (App. Div. 1966). It is not of
much help. There defendant gave a statement to the police in the course of a murder investigation in which he apparently sought to fix the blame on someone other than the person who actually committed the offense. In addition, he gave them a false address as his place of residence; he stated that he had witnessed the crime when in fact he had not, and he failed to identify a photograph of a person who he testified was personally known to him. Quite obviously, this sort of conduct is violative of the statute. What we had here, however, is something different.
"The so-called doctrine of the exculpatory no upon which defendant relies is well known in the federal courts. Whether it is viable in New Jersey is the question which this court must determine in resolving this facet of the motion. The State contends that the doctrine should not be recognized by this court, or, alternatively, that it be held not applicable in this case. The sense of the State's position is that when defendant was approached he was advised of his constitutional rights and voluntarily decided to waive them. Having done so, the officers thereafter had a right to rely upon the truth of his statements. The State contends that defendant was amply protected from the possibility of prosecution under the statute by exercising his choice of either remaining silent of telling the truth. Since he decided to speak and spoke falsely he thereby laid himself open to prosecution.
"The federal statute which has generated prosecutions leading to reported cases dealing with false information is found in ...