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State v. Portash

Decided: June 29, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH S. PORTASH, DEFENDANT-APPELLANT



Bischoff, Morgan and King. The opinion of the court was delivered by Morgan, J.A.D.

Morgan

In this appeal from his conviction of statutory extortion (N.J.S.A. 2A:105-1) defendant challenges a trial court ruling permitting state use of defendant's grand jury testimony, compelled under a grant of immunity, as a means of impeaching the credibility of his trial testimony. In reliance upon this ruling defendant declined to testify in his own behalf. We reverse.

According to the State's theory of the case, which the jury apparently accepted, defendant Joseph S. Portash, while a member of the Ocean County Board of Freeholders, a member of the Manchester Township Committee and a member of the Manchester Municipal Utilities Authority, accepted approximately $31,730 from one Donald Safran, trading as the Madison Agency, Inc. (Agency), a real estate and insurance company in Ocean County. Although this money was supposed to have been given in payment for services rendered by defendant, the evidence adduced suggested that no such services were performed and that, in fact, the Agency was covertly acting as a mere conduit for transmission of the money from another company, Leisure Technology Corporation (Leisure), a major real estate developer in Ocean County, which received favorable treatment by the public bodies on which defendant served.

Because disposition of this appeal turns on the permitted use of defendant's compelled and immunized grand jury testimony, it is unnecessary for us to recount in detail the considerable testimony adduced during the 16-day jury trial which, in our view, and contrary to defendant's contentions, adequately supports the jury's verdict of defendant's guilt. The facts surrounding the immunity granted defendant are, however, brief and undisputed.

On November 6, 1974 defendant appeared, with counsel, before a state grand jury investigating Robert Schmertz, Leisure's president, and Safran, Agency's principal, in response to a subpoena served upon him on October 29, 1974, and expressed his intention of claiming the Fifth Amendment privilege against self-incrimination. Subpoenaed again for November 14, 1974, defendant was granted immunity in the following terms:

We have agreed that the testimony that Mr. Portash is about to give before the Grand Jury, under oath, that any adverse evidence derived therefrom shall not be used in any subsequent criminal prosecution against him, except for a prosecution for contempt, false swearing or perjury. No representations have been made insofar as prosecution for any offenses for which evidence has already been presented to a State Grand Jury, a separate Grand Jury from the one Mr. Portash is about to appear before.

Defendant was asked whether he understood the purport of this agreement.

MR. LUCIANI: Mr. Portash, do you understand -- have you discussed this matter with your attorney?

MR. PORTASH: I believe so.

MR. LUCIANI: And you understand the fact that nothing you are about to testify to can be used against you, personally, in any subsequent criminal prosecution?

MR. PORTASH: To the best of my knowledge of legal matters, yes.

Following statement of this agreement, defendant testified. Thereafter continued negotiations between defendant's counsel and the State ensued with the objective of terminating defendant's exposure to prosecution in return for his restitution of the monies received and resignation from office. No agreement was reached in this regard and defendant was thereafter indicted on information derived from sources unconnected with his ...


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