On appeal from Superior Court, Law Division, Monmouth County.
Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.
Appellant Jack Ungar was held in contempt for asking a prosecution witness, Linda Banks, an improper question on cross-examination. The form of the question suggested that the prosecutor had assured Miss Banks immunity from prosecution in exchange for her testimony. When appellant conceded that he was mistaken in his belief that such a promise had been made, his conduct was deemed to offend DR 7-106(C). Section 1 of this disciplinary rule forbids an attorney from stating or alluding to:
On this appeal Ungar contends that he had a reasonable basis for putting the question to the witness and that his conviction for contempt was not warranted.
The incident occurred during a jury trial in which Ungar was defending Norman Seruby on a manslaughter charge. The charge emanated from Seruby's sale of heroin to a friend who died after using the drug. The State sought to prove that the sale, use and death took place on May 16, 1975 in an apartment which Miss Banks shared with Seruby.
Miss Banks gave the police a statement on May 17 which exculpated Seruby. However, Seruby's relationship with Miss Banks began to disintegrate not long thereafter. Miss Banks testified that Seruby moved out of the apartment around August of that year, although he left his clothes there and "he still had a key to come back and forth as he pleased."
On September 22, 1975 the police raided Miss Banks' apartment pursuant to a search warrant and seized narcotics paraphernalia located on a night-table beside the bed. Both Seruby and Miss Banks were charged with unlawful possession. Several days thereafter, on September 26, Miss Banks gave the police a statement which implicated Seruby in the death of his friend and contradicted her statement of May 17. Thereafter, Seruby was tried in the Ocean Township
Municipal Court for possession of narcotics paraphernalia. Miss Banks testified against him and he was convicted. On October 10, 1975 Miss Banks gave the police an additional statement implicating Seruby in his friend's death.
This set the stage for the incident at the manslaughter trial which led to Ungar's difficulties. Banks was the State's principal witness. Ungar confronted her on cross-examination with inconsistencies in her three statements, focusing on the May 17 statement which she later repudiated. Ungar sought to show that her testimony and the September statement, given shortly after the raid on her apartment, were inspired by a motive to cooperate with the police in exchange for immunity. Ungar's cross-examination concluded with the question that precipitated the contempt charge. The transcript reads as follows:
Q About that 'phone call, isn't it true that just prior to your changing your story in statement number two which you implicate Norman Seruby, the September 26th statement, that just prior to that the Ocean Township Police Department raided your apartment and seized therein a quantity of narcotics paraphernalia and charged you with possession of that narcotics paraphernalia and then made a deal with you that you would not be punished, you would not have to go to trial for it if you would give a statement implicating Norman Seruby, is that not true?
Prosecuting Attorney: I object, I hope he's going to establish evidence to predicate the ...