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State v. Korkowski

June 11, 1998

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RAYMOND KORKOWSKI, DEFENDANT-RESPONDENT.



Before Judges Baime, Wefing and Braithwaite.

The opinion of the court was delivered by: Braithwaite, J.A.D.

[9]    On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

The State appeals, by leave granted, from an interlocutory order granting defendant's motion to preclude the State from using defendant's grand jury "testimony and evidence derived therefrom" in prosecuting defendant for official misconduct and conspiracy. See N.J.S.A. 2A:81- 17.2a2. On appeal, the State contends:

POINT I

DEFENDANT RAYMOND KORKOWSKI FAILED TO CLAIM THE PRIVILEGE AGAINST SELF-INCRIMINATION AS REQUIRED BY N.J.S.A. 2A:81-17.2a2 IN ORDER TO BE AFFORDED THE IMMUNITY PROTECTION PROVIDED BY THE STATUTE.

POINT II

THE IMMUNITY PROVISIONS OF N.J.S.A. 2A:81-17.2a2 PROTECT ONLY TARGET EMPLOYEES COMPELLED TO TESTIFY BY THIS STATUTE. DEFENDANT KORKOWSKI FAILED TO DEMONSTRATE THAT HE WAS A PUBLIC - EMPLOYEE - TARGET OF THE GRAND JURY'S INVESTIGATION. We agree with the State and therefore reverse and remand for a determination of whether defendant was a target of the grand jury investigation.

I.

The facts from the record can be succinctly stated. An Ocean County grand jury began a "special investigation" of certain activities of the Brick Township Building Department. Defendant was the Acting Construction Official for the Township.

On June 19, 1996, defendant testified before the grand jury pursuant to a subpoena issued by the Ocean County Prosecutor. Thereafter, certain other witnesses testified and other evidence was obtained that led the prosecutor to question the veracity of defendant's grand jury testimony. He was recalled before the grand jury on August 22, 1996. Prior to his testimony, he was interviewed by law enforcement personnel. Based on the interview and the evidence previously presented to the grand jury, defendant was advised that it would not be in his best interest to testify and that he should consult with an attorney.

Thereafter, on September 30, 1996, the grand jury indicted defendant for conspiracy to commit official misconduct and tampering with public records or information, N.J.S.A. 2C:2-6, N.J.S.A. 2C:30-2 and N.J.S.A. 2C:28-7a(2); and official misconduct, N.J.S.A. 2C:30-2.

Defendant moved to suppress "all of the evidence and testimony" that he provided to the grand jury on June 19, 1996, "as well as the use and fruits thereof." In support of his motion he argued that he was not advised of his right to remain silent and his right to counsel and that he was not given his rights pursuant to "the New Jersey Public Employees Immunity Act, N.J.S.A. 2A:81-17.2a1 et seq." The State opposed the motion, and following oral argument the motion Judge granted defendant's application. The State moved for leave to appeal, which we granted.

II.

As a public official, defendant had "to appear and testify upon matters directly related to the conduct of his office, position or employment before any . . . grand jury." N.J.S.A. 2A:81-17.2a1. If he failed to appear or refused to appear and testify "after having been informed of his duty to appear and ...


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