State Grand Jury Investigation re Acceturo, Matter of

• Decision Date: 27 June 1990
• Citation: 242 N.J.Super. 281,576 A.2d 900
• Parties: In the Matter of STATE GRAND JURY INVESTIGATION (Re Anthony ACCETURO). Anthony ACCETURO, Appellant, v. Donald ZELINSKI Jr., Respondent. (Mistakenly Captioned In the Matter of State Grand Jury Investigation (Re Anthony Acceturo)).
• Court: New Jersey Superior Court — Appellate Division

Page 281

242 N.J.Super. 281

576 A.2d 900

In the Matter of STATE GRAND JURY INVESTIGATION (Re Anthony ACCETURO) Anthony ACCETURO, Appellant, v. Donald ZELINSKI Jr., Respondent (Mistakenly Captioned In the Matter of State Grand Jury Investigation (Re Anthony Acceturo)).

Superior Court of New Jersey Appellate Division.

Argued May 31, 1990.

Decided June 27, 1990.

Harold J. Ruvoldt Jr., for appellant Anthony Acceturo in both appeals (Ruvoldt & Ruvoldt, attorneys; Harold J. Ruvoldt, Jr. and Richard A. Staggard, on the briefs).

Frank G. Iervolino, Deputy Atty. Gen., for respondent State of N.J. in A-809-89T2 (Robert J. Del Tufo, Atty. Gen., attorney; Frank G. Iervolino, of counsel and on the brief).

Ronald Bollheimer, Deputy Atty. Gen., for respondent Donald Zelinski Jr. in A-1157-89T5 (Robert J. Del Tufo, Atty. Gen., attorney; Michael R. Clancy, Asst. Atty. Gen., of counsel; Donald S. Burak, Deputy Atty. Gen., on the brief).

A statement in lieu of brief was filed on behalf of Donald Zelinski, Superintendent, Garden State Youth and Reception Center, N.J. Dept. of Corrections in A-809-89T2 by Robert J. Del Tufo, Atty. Gen., attorney (Donald S. Burak, Deputy Atty. Gen., on the statement).

Before Judges KING, SHEBELL and KEEFE.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Appellant Anthony Acceturo appeals in the first captioned appeal from the denial by the Law Division of his motion for "an evidentiary hearing to determine whether there was any substantial likelihood that his continued incarceration would be coercive or if his incarceration is purely punitive[,]" and in the second captioned appeal he asserts that he "should be released from protective custody as the superintendent [Garden State Reception and Youth Correctional Facility] did not comply with the provisions of N.J.A.C. 1OA:5-5.1, et seq., and that the agency decision was therefore arbitrary and capricious." We have consolidated these two appeals on our own motion for purposes of this opinion. We affirm on all issues.

I.

On September 12, 1989, appellant Anthony Acceturo was ordered by Superior Court Assignment Judge Samuel D. Lenox Jr., sitting in Mercer County, "to testify before a duly constituted State Grand Jury pursuant to N.J.S.A. 2A:81-17.3." Appellant was given immunity as to any answers which he would have been privileged to withhold so that any information directly or indirectly derived from such testimony might not be used against appellant in any prosecution for a crime or offense related to the testimony or evidence obtained pursuant to the court's order.

Nonetheless, Acceturo refused to answer questions put to him before the State Grand Jury. At the request of Acceturo's attorney, a hearing scheduled for the following day, September 13, 1989, was adjourned. Appellant returned to his resident state of North Carolina after signing a waiver of extradition and being directed by the foreperson of the State Grand Jury to return on September 19, 1989. On the adjourned date, appellant returned to New Jersey and was once again taken before the State Grand Jury. He continued to refuse to answer questions and therefore was brought before Judge Lenox, where he was represented by counsel. Appellant was found in contempt and ordered to be taken into custody, and to "remain in such custody until such time as he may purge himself of civil contempt by testifying before the State Grand Jury."

Although we have not been furnished with copies of the relevant moving documents, it appears that shortly thereafter appellant sought an evidentiary hearing on the following issues:

1. There is no bona fide investigation. Rather, the proceeding was a bad faith sham calculated to incarcerate Mr. Acceturo for purely punitive reasons.

2. Mr. Acceturo is not a witness as contemplated by law.

3. Mr. Acceturo's incarceration is part of an illegal scheme designed, conceived and implemented for an unlawful purpose, including but not limited to, creating the false impression in the criminal world that Mr. Acceturo is testifying, and by this false impression to create an artificial risk to the witness's life, and the lives of his family members.

4. Mr. Acceturo's continued incarceration is for punitive and not coercive purposes.

5. The incarceration of Mr. Acceturo has lost its coercive power. The legal justification for it does not exist and therefore, further confinement cannot be tolerated.

On October 3, 1989, in ruling on appellant's applications, the trial court observed:

I have no affidavits. I have no evidence whatsoever which has been made on personal knowledge and which is admissible into evidence and as to which an affiant, if there were an affiant, is competent to testify. This takes on particular significance because the Attorney General disagrees with many of the facts which have been asserted. There is no way that I can resolve disputed questions of fact on the basis of statements of counsel. So, I consider that I have nothing before me other than that which I had at the time that I entered my order of coercive incarceration. There is no way that I can render any intelligent ruling on the motions other than one based on basic principles of procedural law without a record. And I don't see how the Appellate Division can possibly entertain argument on appeal without a factual basis for a determination as to whether the Court has properly applied the law. So, I say preliminarily that I cannot act upon facts except those facts which were presented to me which motivated me to enter the order for coercive incarceration.

The judge then concluded in part:

However, I find that an incarcerated witness does not have the right to make bare allegations of impropriety on the part of the Grand Jury and law enforcement authorities and/or the Court and be entitled to have a hearing and subpoena witnesses and place the State in a defensive position to justify the incarceration order. If that were the law, an incarcerated witness could make a Roman Circus out of the proceedings under which he was incarcerated by subpoenaing people from all areas of the law enforcement system and placing them under cross-examination.

Regarding the issue of the nature of the incarceration of appellant, the court stated:

My purpose is not punitive. My order provides that he may be released from incarceration, if he testifies. The law says that he is required to testify, so all he has to do is to comply with the order that he testify and he will be released. The purpose of my incarcerating him is to coerce him in to [sic ] obeying the Court's order and obeying the law. I am attempting to persuade him to testify.... .... Mr. Acceturo has apparently taken a position that he never has in the past testified and that he never will in the future testify. I doubt if there has ever been a party who was incarcerated for failure to testify who has not taken the same position. If that and that alone were sufficient to avoid an order coercive in nature such as I have entered, no order would ever be enforceable. To suggest that because in the past he has refused to testify and that that is a basis for his not testifying at the present time would only mean that one who refused to testify previously would then be immune to orders that he do so at a future time. I don't think that at this time we have a situation where Mr. Acceturo can be said to have never testified in the past and will never testify again. I say he may never have testified in the past but maybe he will testify under the coercive order of the Court. And that we must wait and see what transpires.

The court further reasoned:

He's been incarcerated for only a short period of time. He's represented by counsel who since the day of his incarceration has been working to obtain his release. At this time he has every reason to hope that his counsel will obtain his release through ongoing judicial proceedings without the requirement that he testify to obtain that release. So, to the present time we had no basis whatsoever on which to conclude that the order which has been entered will not obtain from him that which is sought by the order.

We affirm the October 3, 1989, order of Judge Lenox denying Anthony Acceturo's request for an evidentiary hearing on the various issues raised, substantially for the reasons expressed by Judge Lenox in his oral opinion of that date. We find it necessary only to expand on that aspect of the order which denied an evidentiary hearing as to whether there was any substantial likelihood that Acceturo's continued incarceration would be coercive.

Judge Lenox found and certified on August 31, 1989, that appellant was a material witness under N.J.S.A. 2A:81-18 et seq. on the basis that "[t]here is presently an investigation being conducted by a State Grand Jury sitting in the County of Mercer, State of New Jersey, into alleged criminal acts of conspiracy, theft by extortion, theft by deception and racketeering, ...." Based upon Judge Lenox's findings and certification, the Superior Court of North Carolina after affording appellant and his attorney a hearing and receiving evidence, found that appellant was a material and necessary witness for the State Grand Jury investigation in New Jersey and ordered that appellant be taken into custody and delivered to the appropriate officers of the State of New Jersey. Judge Lenox's coercive order of September 19, 1989, under which appellant is to remain in custody until such time as he may purge himself of civil contempt by testifying before the State Grand Jury, was in effect a matter of only days when appellant and his counsel began their attempts to convince Judge Lenox that appellant was entitled to immediate release or at least to an evidentiary hearing because of appellant's past history of refusing to testify and his asserted vow or dogma that "he would choose death over testifying."

It is well-established that "[t]he legal justification for...