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In re Ippolito

Decided: February 22, 1978.

IN THE MATTER OF CARL "PAPPY" IPPOLITO, APPELLANT


For reversal -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

[75 NJ Page 438] Carl "Pappy" Ippolito was subpoenaed to appear before the State Commission of Investigation (SCI), a statutory body created by L. 1968, c. 266; N.J.S.A. 52:9M-1 et seq.*fn1 When he appeared he stated, through counsel, that it was his intention to testify if he were "given immunity to any questions that might tend to incriminate him under his Fifth Amendment rights." Such immunity was not granted although the SCI had statutory power to grant "use and fruits" immunity*fn2 from criminal prosecution or penalty. N.J.S.A. 52:9M-17.*fn3

Prior to questioning Ippolito, counsel for the SCI stated for the record that "The Commission is presently conducting an investigation into organized crime and racketeering in the State of New Jersey. You have been subpoenaed in connection with that investigation." Ippolito was then warned that his testimony could be used against him in a court of law and "[i]f you feel that your answer may tend to incriminate you," he could refuse to answer.

Some 182 questions were put to him at the SCI hearing. He refused to answer 98 of them claiming his Fifth Amendment privilege against self-incrimination. He was brought before the Superior Court where the SCI challenged his right to invoke the Fifth Amendment on the ground that the questions which he had refused to answer were not per se incriminatory.

During the court proceedings Ippolito withdrew his refusal to answer some of the questions. As to others the trial court sustained his refusal to answer certain questions which the SCI does not dispute. We are concerned only with 33 "Do you know * * *"-type of questions which Ippolito refused to answer without giving an explanation of the basis for his claim of incrimination. However, it seems to be undisputed that all or substantially all of the persons named in the "Do you know"-questions were known or suspected members of organized crime.

The trial court sustained Ippolito's refusal to answer these questions, saying:

Don't you think that if a person admits being friendly with eight or ten or twelve known Mafia people, that he has reasonable cause to apprehend that he's going to be criminally prosecuted? That's what the Rule says.

On an appeal by the SCI from the trial court's ruling as to the 33 "Do you know"-questions, the Appellate Division reversed and remanded. In an opinion reported in 145 N.J. Super. 262 (1976), it held that the "Do you know"-questions, whether considered singly or in the context of all the questioning, without more, did not constitute a basis for claiming self-incrimination. The Appellate Division held that more must be established before a determination of self-incrimination can be made. It therefore reversed and remanded to the trial court "where the witness must demonstrate a basis for the claim of self-incrimination." Id. at 268. Ippolito filed a notice of appeal to this Court as of right. R. 2:2-1(a). We reverse.

In this State the privilege against self-incrimination, although not written into our State Constitution, is firmly established as a part of our common law and is now incorporated in our Rules of Evidence, N.J.S.A. 2A:84A-1 et seq.; see Evid. R. 23, 24 and 25; State v. Vinegra, 73 N.J. 484, 488-489 (1977). Also, the Fifth Amendment privilege against self-incrimination in the United States Constitution is applicable to any state proceeding through the due process clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Application of the Fifth Amendment privilege in state proceedings must be consistent with federal constitutional standards. The privilege is available to any witness as well as to parties and persons accused, and concededly applies to SCI investigations and hearings.

A witness' mere claim of the privilege does not establish the hazard of incrimination. It is for the court to say whether, under all of the circumstances, silence is justified. Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118, 1124 (1951). However, to be incriminating it is not required that the answer, standing alone, suffice to convict the witness of a crime. In re Pillo, 11 N.J. 8, 18 (1952). If the answer would furnish a link

in the chain of evidence needed to prosecute, the privilege may be invoked. To sustain the privilege it need only appear, considering the implications of the question and the setting in which it is asked, that a responsive answer to the question or explanation of why it cannot be answered might be dangerous because ...


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