This action is one in lieu of a prerogative writ seeking the removal of defendant from his position as a police officer for the Borough of Audubon upon the grounds that he admitted to the commission of certain misdemeanors relating to his employment or touching the administration of his office, as allegedly authorized by N.J.S.A. 2A:81-17.2a3 and 2A:81-17.2a4.
Plaintiff has offered as evidence in support thereof a transcript of testimony by defendant before the grand jury on April 6, 1977. At this trial defendant offered no evidence
and, in fact, did not testify in his defense, although by his answer he denied that his grand jury testimony was in fact an admission to the commission of any misdemeanor whatsoever.
Defendant was subsequently indicted by the grand jury on April 27, 1977 charging conspiracy with a certain Carol Mignone to murder defendant's wife Gladys Traenkner, attempt to kill by poisoning and misconduct in office. Trial has not yet been had on the indictment. The within action was commenced on May 11, 1977.
By way of answer defendant raises the following objections: (1) the complaint fails to allege the admission of any specific misdemeanor and therefore is defective; (2) the within matter should be stayed until after the disposition of the criminal indictment, and (3) defendant did not admit to the commission of any misdemeanor in his grand jury testimony.
At argument in this matter the court requested briefs from counsel on the following points: (a) whether defendant has immunity from his Grand Jury testimony in this matter; (b) should this action be stayed pending the criminal trial, and (c) were any constitutional rights of defendant jeopardized by this action which might be construed to place defendant in a position where his testimony would be used against him in the criminal trial.
That a civil proceeding to discharge an officeholder may be instituted while a criminal indictment is pending is well settled. DeVita v. Sills , 422 F.2d 1172 (3 Cir. 1970); In re Addonizio , 53 N.J. 107, 135, n. 3 (1968); State v. Falco , 60 N.J. 570, 579 (1972). However, none of these cases were of the nature of this action.
A public officer obliged to testify before a grand jury did receive use immunity under the statute despite warnings that his testimony could be used against him, and such immunity was self-executing prior to the amendment to N.J.S.A. 2A:81-17.2a2. Kugler v. Tiller , 127 N.J. Super. 468, 478 (App. Div. 1974), and State v. Vinegra , 134 N.J. Super. 432, 440
(App. Div. 1975). Since the prosecutor failed to inform this defendant, as required by the amended statute, that his failure to testify would subject him to removal from his office, it would appear that defendant has use immunity from his grand jury testimony. Where the required statutory warnings are not given a public official who is the target of an investigation, he cannot be denied his use immunity even though he failed to invoke his privilege against self-incrimination. State v. Vinegra, supra.
However, such immunity does not extend to civil proceedings since the statute clearly limits immunity to criminal proceedings and a civil departmental disciplinary action is not a criminal proceeding within the statute. State v. Vinegra, supra. An action under N.J.S.A. 2A:81-17.2a3 is a civil proceeding and a defendant is ...