Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Verniero v. Beverly Hills Ltd.

November 10, 1998

PETER VERNIERO, ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BEVERLY HILLS, LTD., INC., A/K/A BEVERLY HILLS MARKETING, INC., AND JONATHAN NICHADOWICZ, AS SOLE PRINCIPAL OF BEVERLY HILLS LTD., INC., A/K/A BEVERLY HILLS MARKETING, INC., DEFENDANTS-RESPONDENTS.



Before Judges Havey, Skillman and P.g. Levy.

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

[9]    Submitted October 19, 1998

On appeal from Superior Court of New Jersey, Chancery Division, Essex County.

The issue presented by this appeal is whether a corporation which produces documents in compliance with an administrative subpoena issued by the Attorney General under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, is entitled to absolute immunity from any criminal prosecution arising out of and related to the subject matter of the administrative proceedings.

The Attorney General, acting in his capacity as attorney for the Division of Consumer Affairs (Division), served an administrative subpoena upon defendant Beverly Hills Ltd., Inc. (Beverly Hills), directing it to produce certain business records, including advertisements and/or solicitations of consumers, marketing agreements with other companies and documentation pertaining to its corporate status. This subpoena was issued in connection with an investigation into advertisements, solicitations and other commercial practices used by Beverly Hills in marketing and selling goods and services. In response, Beverly Hills' attorney, on behalf of the corporation and its principal, defendant Jonathan Nichadowicz, sent a letter to the Attorney General which asserted that his clients were entitled to "exemption from both civil and criminal punishment in the event demanded documents would in any way result in self incrimination," and demanded such immunity "prior to the turnover of any documents." The Attorney General replied by a letter which stated that Beverly Hills has no privilege against self incrimination with respect to its business records and insisted upon compliance with the subpoena. Defendants' counsel responded by a second letter which reaffirmed his clients' position that they were entitled to immunity with respect to any documents produced in response to the subpoena.

The Attorney General then filed this action to enforce compliance with the subpoena. The matter was brought before the trial court by an order to show cause. After hearing argument, the court issued a brief oral opinion which concluded that N.J.S.A. 56:8-7 provides absolute immunity from any criminal prosecution arising out of or related to administrative proceeding in connection with which a subpoena has been issued. Accordingly, the court entered a final judgment which provides in pertinent part:

If the Attorney General fails to withdraw his administrative subpoena or subsequent to withdrawal he renews his demand for corporate documents, and Beverly Hills complies with such non-withdrawn or renewed request, Beverly Hills shall be exempt from being prosecuted or subjected to any penalty or forfeiture in any criminal proceeding which arises out of and relates to the subject matter of the administrative proceeding pursuant to N.J.S.A. 56:8-7, without having to make a showing that the production of the corporate documents by the corporation may tend to incriminate the corporation.

(Emphasis added.)

We reverse.

The subpoena for the production of Beverly Hills' records was issued pursuant to N.J.S.A. 56:8-4, which authorizes the Attorney General to issue subpoenas "[t]o accomplish the objectives and to carry out the duties prescribed by [the Consumer Fraud Act]." In refusing to comply with this subpoena unless it was granted immunity from prosecution, Beverly Hills invoked N.J.S.A. 56:8-7, which provides in pertinent part:

If any person shall refuse to testify or produce any book, paper or other document in any proceeding under this act for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him, convict him of a crime, or subject him to a penalty or forfeiture, and shall, notwithstanding, be directed to testify or to produce such book, paper or document, he shall comply with such direction.

A person who is entitled by law to, and does assert such privilege, and who complies with such direction shall not thereafter be prosecuted or subjected to any penalty or forfeiture in any criminal proceeding which arises out of and relates to the subject matter of the proceeding. *fn1

(Emphasis added.)

By its terms, N.J.S.A. 56:8-7 only provides immunity from prosecution to "[a] person who is entitled by law to ... assert [the] privilege [against self-incrimination.]" Therefore, the determination whether defendants would be entitled to immunity from prosecution if they complied with the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.