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In re Tuso

Decided: June 30, 1977.

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


For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. Dissenting -- Justice Pashman. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned. Hughes, C.J., concurring. Pashman, J., dissenting. Hughes, C.J., concurring in the result.

Conford

[73 NJ Page 577] The Appellate Division reversed an order of the Law Division directing Thomas K. J. Tuso to testify before a State grand jury (Grand Jury No. 27) under and pursuant to N.J.S.A. 2A:81-17.3 ("Witness Immunity Act") on the ground that there was "no public need" for the information sought of the witness and that compelling him to testify under the circumstances would be "stripping [the] witness of his constitutional right to remain silent." In re Petition to Compel Testimony of Tuso, 140 N.J. Super. 500, 507 (App. Div. 1976). We are constrained to disagree. The Attorney General was here acting well within his authority to investigate and prosecute crime, and the witness was not denied his Fifth Amendment privilege not to be compelled to incriminate himself.

The circumstances of the case are these. Respondent Tuso is a lawyer who was visited by a Deputy Attorney General and a State Police detective at his office on July 25, 1975. They advised him that he was the target of a criminal investigation involving an alleged attempt to bribe a public official, and he was given the Miranda warnings. Tuso agreed to cooperate with them and he supplied them with considerable information relating to efforts by Tuso to obtain a contract for architectural work on behalf of one D'Anastasio in connection with a proposed new regional high school building in Cumberland County. Tuso had supposedly, with D'Anastasio's authority, offered one Curtis, an officer of the board of education involved, money in return for the award of the contract. Tuso was to receive a percentage of the architectural fee. On the same occasion Tuso was served with two subpoenas, one of them duces tecum, to appear before a statewide grand jury.

On August 6, 1975 the Law Division denied a motion by Tuso to quash the subpoenas duces tecum and on the next day Tuso appeared before Grand Jury No. 27, and, under questioning, asserted his privilege against self-incrimination. The Attorney General thereupon petitioned the Court for an order compelling Tuso to testify, under N.J.S.A. 2A: 81A-17.3. That statute provides that in any criminal proceeding before a grand jury, if a person refuses to answer a question on grounds of self-incrimination and the Attorney General requests the Court to order that person to testify, "the court shall so order and that person shall comply with the order." In such case, and if but for the statute the person would have been privileged not to testify, any testimony or evidence given by him or any information directly or indirectly derived therefrom may not be used against the person in any proceeding or prosecution for a crime concerning which he so testified under court order ("use and fruits immunity" hereinafter). Pending the court's decision on the motion, another State grand jury (Grand Jury No. 29), on August 28, 1975 indicted Tuso for conspiracy, soliciting misconduct

in office and bribery. D'Anastasio was named as an unindicted co-conspirator. Tuso had not appeared before Grand Jury No. 29.

On October 8, 1975 the Law Division ordered Tuso to testify before Grand Jury No. 27, subject to a preliminary proceeding to determine whether communications between Tuso and D'Anastasio were protected by the attorney-client privilege. It was subsequently determined that they were not. The order to testify under the statute was reconfirmed by the Court.

Thereafter Tuso obtained a stay of the order from the Appellate Division; and that court granted leave to appeal and ultimately reversed the order as aforestated. We granted certification. 71 N.J. 328 (1976).

The principal basis for the conclusion of the Appellate Division was that the State did not need the information it was seeking from Tuso. However, it is clear that the statute cited above delegates the function of determining need in such a situation to the Attorney General (or prosecutor, with the approval of the Attorney General), not the court, conformably with the duty of that officer to attend to the enforcement of the criminal laws. Upon request by the Attorney General, the statute directs that the court "shall" order the witness to testify. The Appellate Division conceded that the federal cases uniformly construe the parallel federal immunity statute to withhold any discretionary right in the court to deny an order to testify when the prosecuting officer has met the prerequisites of the statute. 140 N.J. Super. at 507. Cf. Bursey v. United States, 466 F.2d 1059, 1073 (9 Cir. 1972), cited and quoted in State v. Kenny, 68 N.J. 17, 30 (1975). But the Appellate Division felt the federal cases were not authoritative where the order sought was "basically unfair, inequitable or totally unnecessary." 140 N.J. Super. 507, 508.

The Appellate Division did not specify the basis for its conclusion of unfairness or inequity beyond the assertion that the Attorney General did not need anything further

from Tuso to incriminate D'Anastasio, the avowed then target of its inquiry. The court stated, in this regard, that the Deputy Attorney General conceded at oral argument he had sufficient information for an indictment against D'Anastasio but wanted Tuso's testimony to assure a conviction. 140 N.J. Super. at 509. The Attorney General now responds that his only evidence against D'Anastasio thus far is hearsay, and that it is not an abuse of his discretionary powers of prosecution and investigation to elicit stronger evidence even if the hearsay would suffice to sustain an indictment, as distinguished from what would be required to make a prima facie case at trial. Cf. State v. Ferrante, 111 N.J. Super. 299, 305 (App. Div. 1970); State v. Donovan, 129 N.J.L. 478 (Sup. Ct. 1943). We are in agreement with the Attorney General. The court may not hamstring a prosecuting official in his marshalling of evidence before a grand jury on any fine-spun distinctions between what evidence is sufficient to return a valid indictment and what is necessary to convict. Moreover, the measure of the prosecutor's discretion or judgment in such matters extends to the grand jury's responsibility for investigation of crime as well as the return of indictments. In re Addonizio, 53 N.J. 107, 124, 126 (1968). The Attorney General must in the public interest be afforded broad authority to decide what avenues to pursue before the grand jury in the investigation and prosecution of crime.

It appears to us implicit in the Appellate Division's opinion, although nowhere expressly stated as a reason, that what it thought unfair about ordering Tuso to appear before the grand jury was the fact that he had been indicted in connection with the same transactions. However that circumstance was irrelevant. It is a conclusive presumption under the decisions that by its use and fruits immunity our Witness Immunity Statute affords a non-target witness ordered to testify thereunder full protection both under the Fifth Amendment guarantee against ...


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