On appeal from the Superior Court of New Jersey, Law Division, Warren County.
Antell, Bilder and A.m. Stein. The opinion of the court was delivered by A.m. Stein, J.A.D.
Defendant and Harry Bartholomay, Raymond Kise and Rodney Batchler were charged under Warren County Indictment No. 88-03-86 with purposeful and knowing murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); two counts of first degree kidnapping, N.J.S.A. 2C:13-1b(1) and (2); first degree robbery, N.J.S.A. 2C:15-1a(1); second degree robbery, N.J.S.A. 2C:15-1a(3); and conspiracy, N.J.S.A. 2C:5-2. The cases were severed. Following an unsuccessful attempt to dismiss the indictment and suppress the use of certain evidence against him at trial, defendant entered a guilty plea to second degree robbery.*fn1 He was sentenced to a ten-year prison term with a four-year period of parole ineligibility, later reduced to three-and-one-half years. A $30 VCCB penalty was also imposed.
We reverse and remand to the Law Division for entry of an order dismissing the indictment because the prosecutor improperly presented defendant's oral statement and the evidence
obtained therefrom to the grand jury in breach of an agreement not to use such statement and evidence.
On December 31, 1985, Thomas Smothergill, defendant's neighbor in his apartment building, invited defendant, Bartholomay, Kise and Batchler to his apartment for a New Year's drink. The men brutally beat Smothergill and robbed him of cassette tapes, money and a television set. Although defendant apparently was not involved in the beating, he helped transport the body to the base of a nearby footbridge on the banks of the Delaware River, where the victim was left to die.
Concerned with his involvement in the incident, defendant called an attorney, John Coyle, on January 4, 1986. Coyle is a former Warren County Assistant Prosecutor who is now in private practice in that county. Coyle placed a telephone call to the New Jersey State Police and informed Trooper Frank Zmigrosky that he had a lead on a missing person. After Coyle provided a description and the location of the body, it was found on January 7, 1986.
Coyle then contacted Richard Hare, a Warren County Assistant Prosecutor, and indicated that he wanted immunity for his client. Hare indicated that he would first have to speak with Howard McGinn, the Warren County Prosecutor. After meeting alone with defendant and his girlfriend, Kerri Hinckley, Coyle realized that Hinckley might also be criminally liable and called a public defender to represent her.
Coyle, Hinckley and defendant traveled to an annex office of the Warren County Prosecutor where Coyle first met alone with Hare, McGinn and Mark Refowich, Assistant District Attorney in North Hampton County, Pennsylvania. After the three prosecutors conferred privately, Refowich told Coyle that they would listen to defendant's testimony without issuing Miranda*fn2 warnings. The motion judge found that in exchange for receiving a statement in which defendant implicated his
cohorts, the prosecutors agreed that neither defendant's statement nor any fruits derived from his statement would be used against him "in court." Neither the agreement nor defendant's statement was reduced to writing.
Following defendant's statement, complaints were signed against Bartholomay, Kise and Batchler. The police then obtained ...