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In re Presentment of Bergen County Grand Jury

Decided: February 3, 1984.


On appeal from a final order quashing a presentment by the Superior Court of New Jersey, Law Division, Bergen County.

Matthews, Coleman and Gaulkin. The opinion of the court was delivered by Matthews, P.J.A.D.


[193 NJSuper Page 4] After a lengthy inquiry by members of the Bergen County Prosecutor's office and presentation of testimony to a Bergen County Grand Jury, fourteen members of the grand jury panel handed up a presentment on March 14, 1983, to the Assignment Judge of Bergen County. The presentment named six individuals who are, or were at the time, employees of Bergen Pines Hospital.

While the word "censure" was never used specifically, the grand jury acknowledged at the handup that the presentment was in the nature of a censure. At the same time the grand jury returned an indictment against an individual not named in the presentment. The indictment relates to the same subject matter as the presentment, but its contents do not have any impact on the issues before us. The indictment has been sealed by the court pending the resolution of this appeal.

Pursuant to R. 3:6-9(c), the assignment judge directed that copies of the presentment be served personally upon the six individuals named. They were also advised by cover letter of the necessity for confidentiality and of the time limits contained in the court rules. One of the individuals named filed a notice of motion for an in camera hearing as provided by R. 3:6-9(c), seeking to excise all references to that individual from the presentment. That person was the only censured individual to request such a hearing.

This individual presented testimony, exhibits and oral argument in support of the motion at in camera hearings conducted between April 28 and May 16, 1983. Pursuant to a suggestion by the court, the State submitted a form of revised presentment in which all references to specific individuals were deleted.

The assignment judge reconvened the grand jury on May 19, 1983, to advise them of his decision to strike the presentment in its entirety. An order to this effect was signed on May 20, 1983.

Thirteen members of the grand jury met on May 19, June 2 and 15, 1983 to consider whether to take the appeal provided to them in R. 3:6-9(e). As an aid to their decision, and with the court's approval, the entire contents of the named individual's testimony was read to them and the exhibits presented were made available to them. On June 15, 1983, by a vote of 12 to 1, the grand jury panel decided to appeal the assignment judge's order. That same day they were discharged.

The State has appealed on behalf of the grand jury. It does not assert that the assignment judge abused his discretion in

striking the name of the individual who obtained a hearing pursuant to R. 3:6-9(c), but contends that he erred in striking the names of all other individuals because they had not challenged the legitimacy of the presentment. Further, the State argues that it was error to suppress the presentment in its entirety even with all names stricken.

All parties named in the presentment were given notice of the State's appeal. The individual who originally moved for a hearing again was the only person who responded. That individual argues that it is improper to release the presentment even with all names stricken because (a) it still implicates the individuals involved and improperly alters the work of the grand jury, (b) neither the county nor the hospital has been given an opportunity to be heard regarding release of the presentment and (c) the other individuals whose names were stricken from the proposed revised presentment have not had a chance to respond to the proposed revision.

Bergen Pines Hospital is a county health care institution which receives a substantial portion of its operating funds from county revenues and which also utilizes the purchasing procedures of the county to obtain its necessities. In early February 1982, an official of the hospital was advised that the Bergen Pines supply of canned tuna, a regular item on the menu, had been completely exhausted. A mistaken vendor delivery of canned tuna later in the month prompted an "in-house" inquiry which brought to light irregularities in the ordering and consumption of tuna.

In April 1982 a series of newspaper articles appeared in the Bergen Record, alleging that significant quantities of canned tuna had disappeared from Bergen Pines. As a result, investigators from the Bergen County Prosecutor's office undertook an extensive review of all of the available documentation concerning the purchase ...

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