Saperstein, In re

• Decision Date: 19 April 1954
• Docket Number: No. A--365,A--365
• Citation: 104 A.2d 842,30 N.J.Super. 373
• Parties: In re SAPERSTEIN. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 373

30 N.J.Super. 373

104 A.2d 842

In re SAPERSTEIN.

No. A--365.

Superior Court of New Jersey Appellate Division.

Argued March 22, 1954.

Decided April 19, 1954.

Max Mehler, Newark, argued the cause for the appellant (Burton B. Turkus, of the New York Bar, New York City, on the brief).

Maurice J. McKeown, Asst. Prosecutor of Essex County, Newark, argued the cause (Charles V. Webb, Jr., Prosecutor of Essex County, Newark, attorney) Charles W. Manning, Asst. Dist. Atty., New York County, New York City, argued the cause. (Frank S. Hogan, Dist. Atty., New York County, New York City, attorney; Frank Brenner, Asst. Dist. Atty., New York County, New York City, of counsel), for the District Attorney of New York County.

Before Judges EASTWOOD, JAYNE and CLAPP.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The sole issue of this appeal is whether, under the provisions of N.J.S. 2A:81--18 et seq., N.J.S.A., a resident of this State, in addition to being directed to appear as a witness in a criminal proceeding in another State, may be required to produce books and records in his possession or under his control.

On February 25, 1954 a certificate, executed by the judge of the Court of General Sessions of the County of New York, was filed in the Essex County Court reciting that a grand jury was conducting an investigation of the insurance welfare funds of certain labor unions and of the activities of certain insurance agents doing business with the members of various labor unions located in the County of New York; that the grand jury was seeking to ascertain whether the commissions received by the said insurance agents were being or had been split with certain labor officials and other unauthorized persons, in violation of the Insurance Law of the State of New York, McK. Consol.Laws, c. 28, and whether the crime of conspiracy and bribery had been committed in connection therewith; that Louis B. Saperstein, appellant, an insurance agent residing in New Jersey, had placed contracts of insurance for members of unions in New York County and he was required as a necessary and material witness before the grand jury making that investigation and, in connection therewith, certain specified books and personal records of the appellant were necessary and material.

On February 26, 1954, after a hearing before the Essex County Court, an order was entered directing appellant, together with certain of his books and records, to attend and testify before the New York grand jury commencing March 2, 1954. The appellant's application to the Essex County Court to eliminate from the order the requirement for the production of certain of his books and records, was denied.

The appellant has indicated at all times his willingness to attend and testify and his objection relates solely to the production of his books and records.

Mr. Saperstein contends that the statutory enactment relied upon does not empower a County Court to order a citizen of New Jersey to take with him his books and records before a grand jury of a sister state; that the order appealed from is unwarranted, oppressive and unconstitutional as authorizing compulsory production of self-incriminating evidence without provision for immunity or protection of the one producing it. It is further asserted that the statute is unconstitutional as being a compact between states without congressional approval, contrary to Art. 1, § 10, of the United States Constitution.

The pertinent provisions of the act known as the 'Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings' (N.J.S. 2A:81--19, N.J.S.A.), provides, Inter alia:

'If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and his presence will be required for a specified number of days, and that same cannot be insured voluntarily, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

'If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel), will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.'

And, N.J.S. 2A:81--18 N.J.S.A., defines summons as follows:

'The word 'summons' shall include a subpoena, order or other notice requiring the appearance of a witness.'

We find early reference to the issuance of subpoenas in this State to compel attendance of witnesses at hearings in sister states and find a dearth of any indication that a distinction or difference of procedure is to be drawn between a subpoena to compel the attendance of a person and a subpoena Duces tecum for the production of books and records by that witness. In the case of In re Edison, 68 N.J.L. 494, 53 A. 696, (Sup.Ct.1902), the court reversed the lower court's issuance of a subpoena Duces tecum because the foreign court had not required the production of records. It left open the question of whether under our statute there was authority for the issuance of a subpoena Duces tecum if a foreign court requested the production of documents. However, shortly thereafter, our Court of Errors and Appeals, in In re Donald and Healy, 87 N.J.L. 691, 94 A. 580 (1915), gave sanction to the issuance of a subpoena Duces tecum to produce records for an Oregon proceeding.

In the case of Davis v. Lehigh Valley Railroad Co., 97 N.J.L. 412, 117 A. 716 (Sup.Ct.1922), the validity of a subpoena Duces tecum issued by a Supreme Court justice pursuant to a commission issued in a sister state was upheld. The court stated, 97 N.J.L. at pages 413--414, 117 A. at page 716:

'* * * That under this statute a subpoena Duces tecum might be ordered was adjudged by Mr. Justice Garrison, sitting for the Supreme Court. In re Donald & Healy, 87 N.J.L. 691, 94 A. 580, which is controlling so far as we are concerned. But in addition we approve of the course taken by Justice Garrison, for the statute is remedial, and it is not limited to a subpoena Duces tecum might be orplies to all witnesses and the production of all papers legally pertinent to the issue about which the witnesses may testify or identify.

'The purpose of the act is to secure the testimony of witnesses not within the jurisdiction of the court issuing the commission, and that testimony includes documents pertinent to the issue, and the word 'subpoena,' as used in the statute, was any subpoena necessary to accomplish the intention of the statute. The order is not beyond the jurisdiction of the justice of the Supreme Court conferred by the act. * * * The statute is in aid of comity between sister states, and, as its purpose is to assist in the due administration of justice, it should be liberally construed.'

Chief Justice Brogan, speaking for the Supreme Court in Catty v. Brockelbank, 124 N.J.L. 360, 12 A.2d 128 (1940), in a matter regarding the validity of a...