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Waterfront Commission of New York Harbor v. Pasquale Pontoriero

March 6, 2012

WATERFRONT COMMISSION OF NEW YORK HARBOR, PETITIONER-RESPONDENT,
v.
PASQUALE PONTORIERO, RESPONDENT.
IN THE MATTER OF WATERFRONT COMMISSION OF NEW YORK HARBOR SUBPOENA ISSUED TO SALVATORE LAGRASSO, JR. TO TESTIFY BEFORE THE WATERFRONT COMMISSION OF NEW YORK HARBOR.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3333-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 14, 2012

Before Judges Sabatino and Fasciale.

Salvatore LaGrasso, Jr., appeals from a Law Division order denying his motion to quash an administrative subpoena issued to him by petitioner Waterfront Commission (Commission) of New York Harbor. The Commission subpoenaed LaGrasso to testify as a witness at an administrative hearing of Pasquale Pontoriero, a hiring agent in the Port of New York-New Jersey.*fn1 LaGrasso asserted a blanket Fifth Amendment right against self- incrimination and refused to appear at Pontoriero's hearing. We affirm.

LaGrasso invoked his right to remain silent because he had been named previously in an indictment filed in the United States District Court for the District of New Jersey charging him, and others, with conspiring to commit and committing extortion in violation of the Hobbs Act. 18 U.S.C.A. § 1951(a)(2) (prohibiting "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under the color of official right").*fn2

LaGrasso, therefore, refused to testify at Pontoriero's hearing to avoid potentially incriminating himself in his own criminal proceedings.*fn3

Rather than appearing at Pontoriero's hearing to assert his Fifth Amendment privilege, LaGrasso filed a motion in the Superior Court to quash the subpoena.*fn4 LaGrasso's counsel argued, "I would like it . . . if [LaGrasso] didn't have to assert his Fifth Amendment right to remain silent because . . . it creates [an impression] that someone is trying to hide something." He added, "I think that [LaGrasso] is put in[] jeopardy [because] he may have to make a choice to assert his Fifth Amendment right to remain silent." The Commission contended in the Superior Court that LaGrasso was not free to dishonor the subpoena, make a blanket assertion of his right to remain silent, and refuse to appear at Pontoriero's hearing.*fn5

The judge conducted oral argument, denied LaGrasso's motion, and stated:

Mr. LaGrasso has been suspended by the Commission and subpoenaed to testify as a witness at Mr. Pontoriero's administrative hearing.

Quote, "A witness may not make himself the final judge of the availability of the Fifth Amendment privilege and, hence, must appear to permit the [court] to pass [upon] it." In [re] Addonizio, 53 N.J. 107[,] 116 (1968).

Mr. LaGrasso may not assert a blanket Fifth Amendment privilege to avoid appearing at the [Commission's] hearing. Mr. LaGrasso must comply with the subpoena.

If after hearing a question, Mr. LaGrasso believes he will incriminate himself if he answers, he may then assert his Fifth Amendment privilege at that time. However, there is no legal basis to avoid testifying completely.

On appeal, LaGrasso argues that the judge erred by failing to "consider whether there was a significant possibility that the compulsion of [LaGrasso's testimony in Pontoriero's hearing] may impermissibly taint, incriminate or otherwise interfere with [LaGrasso's] pending criminal matter[.]" LaGrasso maintains that it is inconsistent for the Commission to adjourn his own administrative hearing because of his pending criminal case, but issue a subpoena to ...


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