On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-02-0289.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Coburn and Grall.
Defendant Hanif Abdullah appeals from a final judgment of conviction and sentence. A jury found defendant guilty of contempt, N.J.S.A. 2C:29-9a. Specifically, the jury concluded that defendant purposely or knowingly disobeyed a judicial order directing him to testify. Because the defendant was not ordered to testify, we reverse.
The State alleged that defendant committed the crime of contempt when he was called before the court as a witness on behalf of the State in a prosecution against Brian Wilson and William Parker. The judge presiding over the Wilson-Parker trial conducted a hearing pursuant to N.J.R.E. 104 on defendant's request to invoke his right against self-incrimination. Based on a colloquy between the judge and defendant during that hearing, the grand jurors charged defendant with contempt.
The State's evidence at this trial was limited to the following passage read from the transcript of the N.J.R.E. 104 hearing held during the Wilson-Parker trial.
THE COURT: If I were to indicate to you that I did not feel, based on what I know at this point, that you have a right to assert your Fifth Amendment rights and that, therefore, I would be ordering you to testify in this case, would you testify or would you remain silent?
THE WITNESS: I wouldn't testify.
THE COURT: You would not testify at all? THE WITNESS: No.
THE COURT: Is what you're saying, in other words, if the [p]rosecutor asked you questions and if these gentlemen asked you questions, if I try to put you under oath, you would not take an oath or affirmation and you would not say a word in front of the jury, even if I tell you that you have no Fifth Amendment right to do that. Is that correct?
THE WITNESS: No, I don't wish to cooperate.
THE COURT: Okay. But the fact is, in our law, if you don't have a Fifth Amendment right not to testify, then you're obligated to testify. You're obligated to come into this court, or obligated to either take an oath or affirm and you're obligated to give testimony ...