March 6, 2012
WATERFRONT COMMISSION OF NEW YORK HARBOR, PETITIONER-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 him on Pontoriero's behalf. LaGrasso contends that it is inevitable that his testimony would implicate his criminality.
The scope of our review of the granting or denying of a motion to quash a subpoena is generally limited to ascertaining whether the judge mistakenly exercised discretion, provided that the ruling is not inconsistent with applicable law. Wasserstein v. Swern & Co., 84 N.J. Super. 1, 6 (App. Div.), certif. denied, 43 N.J. 125 (1964); see also State v. Burns, 192 N.J. 312, 332 (2007) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)); State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008). Here, we see no abuse of discretion.
As the judge here correctly stated, 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 Grand Jury Subpoenas, 241 N.J. Super. 18, 33 (App. Div. 1989) (quoting In re Addonizio, supra, 53 N.J. at 116). Generally, "a non-target witness must appear . . . and can invoke his [Fifth Amendment] right not to answer only in response to a specific question propounded." Ibid. In other words, "[a] witness may not claim the privilege until the question is put[.]" Ibid. (internal quotation marks omitted).
In the record before us LaGrasso has not been identified by the
Commission as a target of Pontoriero's administrative hearing. The
Commission commenced the administrative hearing against Pontoriero to
determine whether it should revoke, cancel, or
suspend his license to act as a hiring agent on the waterfront. The
main focus of the hearing was to determine whether Pontoriero
associated with certain individuals who are inimical to the policies
of the Waterfront Commission Act, N.J.S.A. 32:23-1 to -225.*fn6
Pontoriero has not been indicted for any crime, and is not
mentioned in either the federal indictment against LaGrasso or the
Commission's administrative charges against him. The Commission
subpoenaed LaGrasso as a witness in Pontoriero's hearing. There is
also no indication that the United States attorney had
requested the Commission to stay the Pontoriero hearing.
We conclude that the trial judge did not err in requiring
LaGrasso to appear at the hearing and by not presuming that
every question would necessarily trigger an invocation of the
Fifth Amendment. Nothing in our opinion prevents LaGrasso from
asserting his privilege against self-incrimination, on a
question by question basis, consistent with the case law we have