Halpern, Allcorn and Botter. The opinion of the court was delivered by Botter, J.A.D.
Appellant contends that the grand jury exceeded its power in naming him as an unindicted coconspirator and that he has been denied due process of law because, not having been indicted, no method is available for him to establish his innocence and restore his good name, reputation and business standing. The issues raised on this appeal are novel in this state and to our knowledge have been decided previously in only one reported case. United States v. Briggs , 514 F.2d 794 (5 Cir. 1975); see Note, 22 Wayne L. Rev. 1243, 1245 (1976); Note, 7 Seton Hall L. Rev. 484 (1976); 7 Toledo L. Rev. 245 (1975).
The indictment (S-1320-75) was in three counts. The first count named Alfred A. Porro, Jr. and Thomas Jones as defendants and Fred Rosenberg, Timothy Sullivan, Walter Schultz and appellant Richard Tecott as "co-conspirators but not as defendants * * *." The first count charged a conspiracy between October 1, 1967 and October 31, 1971, in which the indicted and unindicted conspirators allegedly conspired and agreed to permit Tecott, Jackson & Co. (hereafter, Tecott-Jackson), Timothy Sullivan, Gibraltar Securities Co. (Gibraltar) and Municiplex, Inc. to participate in the underwriting of bond issues for the East Rutherford Sewerage Authority and to pay sums of money to certain conspirators who were public officers as fees and rewards, contrary to N.J.S.A. 2A:105-1.*fn1
The indictment charged that Alfred A. Porro, Jr. was attorney for the East Rutherford Sewerage Authority (the
Authority) from June 1968 onward; that Thomas Jones was Mayor of the Borough of East Rutherford in 1968 and 1969, and that Fred Rosenberg was clerk to the Authority between February 1969 and December 31, 1971. Count 1 also charged that Porro, Jones and Rosenberg engaged in misconduct in office during the period of the conspiracy by failing to serve the public with the highest fidelity and integrity and by using the power and influence of their public offices to obtain monies from Tecott-Jackson, Gibraltar and Municiplex, Inc. who had sought the Authority's approval for participating in underwriting the Authority's bond issues.
In the overt acts section of count 1 the indictment charged that Porro and Rosenberg formed Municiplex, Inc. in October 1967 and that thereafter Porro, Jones and Rosenberg met to discuss the formation of the East Rutherford Sewerage Authority and agreed that Municiplex, Inc. would be appointed financial advisor to the Authority and that Jones would receive a sum of money from Municiplex, Inc. out of the profits realized from the Authority's first bond issue.
Additional overt acts alleged were that in September 1968 Municiplex, Inc. and Tecott-Jackson entered into a contract, unknown to the Authority, whereby Municiplex, Inc. and Tecott-Jackson would "evenly divide the profits" realized on the underwriting of the Authority's first bond issue. Further acts alleged were that Rosenberg paid Jones a sum of money in early 1969, that in April 1970 Municiplex, Inc. and Gibraltar entered into an agreement to divide the profits realized from the underwriting of the Authority's second bond issue, and that in July 1971, Timothy Sullivan, president of Gibraltar, paid to Walter Schultz approximately $20,000 in cash which was distributed by Schultz by depositing approximately $2,000 to the account of Fred Rosenberg and by delivering the balance to Porro's law office.*fn2
By motion returnable in May 1976, on notice to the Bergen County Prosecutor and to the attorneys representing Jones and Porro, Tecott moved to expunge his name from the indictment. Tecott asserts that he was a general partner in Tecott-Jackson of Newark, New Jersey, and that he was responsible for municipal bond trading and underwriting. He asserts that in September 1968 Tecott-Jackson entered into an agreement with Municiplex, Inc. to underwrite a tax-exempt revenue bond issue for the Authority and that the bonds were purchased and sold in 1969. He asserts that when the Bergen County Prosecutor's office began its investigation of these matters he cooperated fully and testified voluntarily before the grand jury. He asserts, further, that the publicity given to this indictment which named him as an unindicted coconspirator has been damaging to his business reputation, and that because he was not indicted he has no way of defending against the allegations contained in the indictment.
With respect to indictable offenses, N.J. Const. (1947) Art. I, par. 8, provides generally that no person shall be held to answer for a criminal offense, "unless on the presentment or indictment of a grand jury * * *." The ancient function of the grand jury in the Anglo-American system of justice has been to sift accusations of criminal conduct, to advance the public interest by the discovery and indictment of persons chargeable with certain crimes and to protect individuals against arbitrary, oppressive and unwarranted criminal accusations. United States v. Calandra , 414 U.S. 338, 342-343, 94 S. Ct. 613, 617, 38 L. Ed. 2d 561, 568 (1974). The principal function of the grand jury
is to indict or not indict. It should indict when a prima facie showing has been made that the accused has committed a crime. See Trap Rock Industries, Inc. v. Kohl , 59 N.J. 471, 487-488 (1971). In an earlier time the grand jury returned a presentment which called criminality to the attention of proper authorities and authorized or requested the preparation of an indictment. This served as an accusation upon which the prosecutor was expected to act. In re ...