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In re Petition to Compel Testimony of Thomas K. J. Tuso Under N.J.S.A. 2A 81-17.3

Decided: March 26, 1976.

IN THE MATTER OF THE PETITION TO COMPEL TESTIMONY OF THOMAS K. J. TUSO UNDER N.J.S.A. 2A:81-17.3


Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

A state grand jury, sitting in the State House Annex (hereafter Grand Jury 29), returned a four-count indictment against defendant Thomas K. J. Tuso. The first count charges that Tuso "and Dante D'Anastasio who is named as a co-conspirator but not as a defendant" unlawfully conspired to bribe Clarence A. Custis, vice-president of Cumberland County Regional School Board, to secure the award of a contract for architectural services in connection with a proposed Cumberland County regional high school. The remaining three counts charge Tuso with the attempted bribery of Custis.

Defendant was summoned to appear before another state grand jury, sitting at the State Police Barracks in West Trenton (hereafter Grand Jury 27) and, under a grant of statutory immunity (N.J.S.A. 2A:81-17.3) was ordered to testify and produce evidence concerning "an alleged conspiracy to bribe a member of the Cumberland Regional

School District Board of Education and to solicit misconduct in office by said Board member."

It is undisputed that Grand Jury 27 is inquiring into the same conspiracy as that for which Tuso has been indicted and is seeking to determine whether Dante D'Anastasio should be indicted as his coconspirator.

We granted defendant's application for leave to appeal from that order and entered a stay thereof pending our determination of this appeal.

The following facts are basically undisputed. Tuso, an attorney, was the target of a criminal investigation into an alleged attempt to bribe a public official and he was so informed. He met with Detective Zeuner and Deputy Attorney General Malone in his office in Vineland on July 25, 1975. He thereafter voluntarily met with the same two men for approximately 11 1/2 hours. Tuso extended some degree of cooperation with respect to the investigation into the alleged activities of Tuso and D'Anastasio, an architect, in seeking to bribe a public official in return for the award of a contract to D'Anastasio's architectural firm for services in connection with the construction of a proposed regional high school.

Tuso was subpoenaed to appear before the state grand jury at the State House Annex on July 31, 1975. At the request of his counsel his subpoena was continued to August 7, 1975. He reappeared at the State House Annex on August 7 and was informed that he was to appear before a different state grand jury sitting at the State Police Barracks; this was Grand Jury 27. He went there immediately and was informed by Malone that Grand Jury 27 was investigating D'Anastasio, and Tuso was questioned concerning his dealings with D'Anastasio and the interconnection between D'Anastasio's architectural firm and the alleged attempt to bribe Custis. Tuso refused to "answer any questions on the ground of the protection afforded [him] by the Fifth and Fourteenth Amendments of the United States Constitution."

The State made application to Judge Salvatore for an order, pursuant to N.J.S.A. 2A:81-17.3, to compel Tuso to testify before Grand Jury 27, contending that Grand Jury 27 was not investigating Tuso, but D'Anastasio.

Before a resolution of that application Tuso was indicted by Grand Jury 29 for the crime of conspiracy to bribe and attempted bribery. Thereafter Judge Salvatore, in a letter opinion, held that Tuso's Fifth Amendment rights were "adequately protected by the use immunity provision of the statute [ N.J.S.A. 2A:81-17.3]" and that since the grand jury ...


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