On appeal from the Superior Court of New Jersey, Law Division, Mercer County and from the Department of Corrections.
King, Shebell and Keefe. The opinion of the court was delivered by Shebell, J.A.D.
[242 NJSuper Page 283] Appellant Anthony Acceturo appeals in the first captioned appeal from the denial by the Law Division of his motion for
"an evidentiary hearing to determine whether there was any substantial likelihood that his continued incarceration would be coercive or if his incarceration is purely punitive[,]" and in the second captioned appeal he asserts that he "should be released from protective custody as the superintendent [Garden State Reception and Youth Correctional Facility] did not comply with the provisions of N.J.A.C. 10A:5-5.1, et seq., and that the agency decision was therefore arbitrary and capricious." We have consolidated these two appeals on our own motion for purposes of this opinion. We affirm on all issues.
On September 12, 1989, appellant Anthony Acceturo was ordered by Superior Court Assignment Judge Samuel D. Lenox Jr., sitting in Mercer County, "to testify before a duly constituted State Grand Jury pursuant to N.J.S.A. 2A:81-17.3." Appellant was given immunity as to any answers which he would have been privileged to withhold so that any information directly or indirectly derived from such testimony might not be used against appellant in any prosecution for a crime or offense related to the testimony or evidence obtained pursuant to the court's order.
Nonetheless, Acceturo refused to answer questions put to him before the State Grand Jury. At the request of Acceturo's attorney, a hearing scheduled for the following day, September 13, 1989, was adjourned. Appellant returned to his resident state of North Carolina after signing a waiver of extradition and being directed by the foreperson of the State Grand Jury to return on September 19, 1989. On the adjourned date, appellant returned to New Jersey and was once again taken before the State Grand Jury. He continued to refuse to answer questions and therefore was brought before Judge Lenox, where he was represented by counsel. Appellant was found in contempt and ordered to be taken into custody, and to "remain
in such custody until such time as he may purge himself of civil contempt by testifying before the State Grand Jury."
Although we have not been furnished with copies of the relevant moving documents, it appears that shortly thereafter appellant sought an evidentiary hearing on the following issues:
1. There is no bona fide investigation. Rather, the proceeding was a bad faith sham calculated to incarcerate Mr. Acceturo for purely punitive reasons.
2. Mr. Acceturo is not a witness as contemplated by law.
3. Mr. Acceturo's incarceration is part of an illegal scheme designed, conceived and implemented for an unlawful purpose, including but not limited to, creating the false impression in the criminal world that Mr. Acceturo is testifying, and by this false impression to create an artificial risk to the witness's life, and the lives of his family members.
4. Mr. Acceturo's continued incarceration is for punitive and not coercive purposes.
5. The incarceration of Mr. Acceturo has lost its coercive power. The legal justification for it does not exist and therefore, further confinement cannot be tolerated.
On October 3, 1989, in ruling on appellant's applications, the trial court observed:
I have no affidavits. I have no evidence whatsoever which has been made on personal knowledge and which is admissible into evidence and as to which an affiant, if there were an affiant, is competent to testify. This takes on particular significance because the Attorney General disagrees with many of the facts which have been asserted. There is no way that I can resolve disputed questions of fact on the basis of statements of counsel. So, I consider that I have nothing before me other than that which I had at the time that I entered my order of coercive incarceration. There is no way that I can render any intelligent ruling on the motions other than one based on basic principles of procedural law without a record. And I don't see how the Appellate Division can possibly entertain argument on appeal without a factual basis for a determination as ...