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State v. Gregorio

Decided: February 23, 1976.


Davidson, J.s.c.


[142 NJSuper Page 374] Defense counsel objected to the prosecutor's opening statement to the jury in this criminal case.

He claimed that the prosecutor, in outlining the State's case, referred to proofs which the State obtained by impermissibly using defendant's grand jury testimony.

Defendant had testified before the Union County grand jury inquiring into municipal corruption in Linden, New Jersey, on several occasions during 1972 and 1975. Subsequent to his grand jury testimony he was indicted for bribery, attempted extortion and perjury.*fn1 During this period defendant was the mayor of Linden.

Because of defendant's status as a public employee he was entitled to a self-executing legislative grant of immunity from the use of his grand jury testimony or any evidence derived therefrom in subsequent criminal proceedings. N.J.S.A. 2A:81-17.2a2; State v. Vinegra , 134 N.J. Super. 432, 440 (App. Div. 1975).

In Kastigar v. U.S. , 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), the Supreme Court held that, once a defendant demonstrates that he testified under a grant of immunity, the State has the burden of showing that the evidence it intends to produce is not tainted with defendant's own testimony, by establishing that the State has an independent legitimate source for the evidence other than that testimony. This burden is referred to as a "heavy" one. It is not limited just to the negation of taint, but it imposes an affirmative duty on the State to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. 406 U.S. at 460, 92 S. Ct. at 1665, 32 L. Ed. 2d at 226; State v. Vinegra, supra 134 N.J. Super. at 440. Thus, the court is concerned not only with the use of defendant's words themselves, but with any derivative use the State may have made of what defendant said before the Union County grand jury.

The court, therefore, held an evidentiary hearing consistent with Kastigar and Vinegra to determine whether the evidence the State proposed to introduce against defendant, as set forth in the State's written offer of proof, was tainted and must, therefore, be suppressed.

The court read the testimony of defendant on the occasions of his appearance before the Union County grand jury. Not every word that defendant testified to in his six appearances before the grand jury was read, but rather those portions of the transcript called to the court's attention by counsel and those portions in which reference is made to the subject matter of this indictment.

Further, the court heard the testimony of Prosecutor's Detective Russell Thomas, former Assistant Prosecutor Eugene Rosner, Prosecutor's Investigator Bonelli and Dominick Mirabelli, Esquire, counsel for Thomas Siggia.

The court also read the grand jury testimony of the three persons named in the State's offer of proof, namely, Thomas Siggia, Nicholas Perna and Edward Kologi.

The court in addition read several portions of defendant's grand jury testimony which were unrelated to the charges in the present case in order to appreciate the method of questioning before the grand jury. The court did this in anticipation of defense counsel's argument that the broad extent and kaleidoscopic pattern of questioning in the grand jury make it impossible for the State to establish an independent source of information. Defendant's counsel has referred to his argument as a "ball of wax" approach. The court will accept this designation as a convenient label by which it can discuss his argument.

The court notes at the outset that it is not called upon in this hearing to judge the quality or the efforts of the staff of the Union County Prosecutor's Office as it undertook a broad investigation into possible municipal corruption in the City of Linden. The court is only concerned with the particular indictment at hand, an indictment in which defendant is charged in count 1 with bribery and in count 2 with attempted

extortion by a public official in that he solicited the sum of $25,000 from Thomas Siggia, the vice-president of the corporation that was the successful bidder and built the Linden Vocational-Technical High School.

Constitutional Principles Involved

The court in this case is required to keep in balance two basic rights of the citizens of our country. On the one hand, there is the power of the government to compel persons to testify in court or before a grand jury. This right is firmly established in Anglo-American jurisprudence and is often referred to as the common law principle that the public has a right to every man's evidence. This right is reflected, indeed delineated, in the Sixth Amendment to the Constitution. Murphy v. Waterfront Comm'n , 378 U.S. 52, 93-94, 84 S. Ct. 1594, 12 L. Ed. 2d 678, 704 (1964); Kastigar v. U.S., supra , 406 U.S. at 443, 92 S. Ct. 1653, 32 L. Ed. 2d at 216.

Opposite this right is the right of every citizen not to be forced to incriminate himself even if he is compelled to testify. This important right against compulsory self-incrimination is embodied in the Fifth Amendment to the Constitution. Ullmann v. U.S. , 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511 (1956); Kastigar v. U.S., supra , 406 U.S. at 444, 92 S. Ct. 1653, 32 L. Ed. 2d at 216.

The issue before the court at this time involves an accommodation of these two basic principles. In re Tuso , 140 N.J. Super. 500 (App. Div. 1976). A person who is compelled to testify under a grant of immunity, except for possible criminal prosecution for perjury or false swearing, is entitled to be put in the same position as though he had not testified if the State chooses to go ahead with a criminal prosecution relating to the subject matter of defendant's compelled testimony. Murphy v. Waterfront Comm'n, supra , 378 U.S. at 79, 84 S. Ct. 1594, 12 L. Ed. 2d at 695; Kastigar v. U.S., supra , 406 U.S. at 457, 92 S. Ct. 1653, 32 L. Ed. 2d

at 224; U.S. v. DeDiego , 511 F.2d 818, 822 ...

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