State v. Portash
| Citation | 376 A.2d 950,151 N.J.Super. 200 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Joseph S. PORTASH, Defendant-Appellant. |
| Decision Date | 29 June 1977 |
| Court | New Jersey Superior Court – Appellate Division |
Michael E. Wilbert, Brick Town, for defendant-appellant (Wilbert, Clyne & Montenegro, Brick Town, attorneys).
Benjamin D. Leibowitz, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).
Before Judges BISCHOFF, MORGAN and KING.
The opinion of the court was delivered by
MORGAN, J. A. D.
In this appeal from his conviction of statutory extortion (N.J.S.A. 2A:105-1) defendant challenges a trial court ruling permitting state use of defendant's grand jury testimony, compelled under a grant of immunity, as a means of impeaching the credibility of his trial testimony. In reliance upon this ruling defendant declined to testify in his own behalf. We reverse.
According to the State's theory of the case, which the jury apparently accepted, defendant Joseph S. Portash, while a member of the Ocean County Board of Freeholders, a member of the Manchester Township Committee and a member of the Manchester Municipal Utilities Authority, accepted approximately $31,730 from one Donald Safran, trading as the Madison Agency, Inc. (Agency), a real estate and insurance company in Ocean County. Although this money was supposed to have been given in payment for services rendered by defendant, the evidence adduced suggested that no such services were performed and that, in fact, the Agency was covertly acting as a mere conduit for transmission of the money from another company, Leisure Technology Corporation (Leisure), a major real estate developer in Ocean County, which received favorable treatment by the public bodies on which defendant served.
Because disposition of this appeal turns on the permitted use of defendant's compelled and immunized grand jury testimony, it is unnecessary for us to recount in detail the considerable testimony adduced during the 16-day jury trial which, in our view, and contrary to defendant's contentions, adequately supports the jury's verdict of defendant's guilt. The facts surrounding the immunity granted defendant are, however, brief and undisputed.
On November 6, 1974 defendant appeared, with counsel, before a state grand jury investigating Robert Schmertz, Leisure's president, and Safran, Agency's principal, in response to a subpoena served upon him on October 29, 1974, and expressed his intention of claiming the Fifth Amendment privilege against self-incrimination. Subpoenaed again for November 14, 1974, defendant was granted immunity in the following terms:
We have agreed that the testimony that Mr. Portash is about to give before the Grand Jury, under oath, that any adverse evidence derived therefrom shall not be used in any subsequent criminal prosecution against him, except for a prosecution for contempt, false swearing or perjury. No representations have been made insofar as prosecution for any offenses for which evidence has already been presented to a State Grand Jury, a separate Grand Jury from the one Mr. Portash is about to appear before.
Defendant was asked whether he understood the purport of this agreement.
Following statement of this agreement, defendant testified. Thereafter continued negotiations between defendant's counsel and the State ensued with the objective of terminating defendant's exposure to prosecution in return for his restitution of the monies received and resignation from office. No agreement was reached in this regard and defendant was thereafter indicted on information derived from sources unconnected with his grand jury testimony. Defendant does not challenge the indictment underlying this case as being derived even indirectly from his compelled grand jury testimony.
After completion of the State's case, defendant sought a ruling from the trial judge as to whether the State would be permitted to use his grand jury testimony in cross-examination in the event he chose to testify in his own behalf. Following extended argument the judge ruled that if defendant testified and were asked a question on either direct or cross-examination which elicited a response materially inconsistent with his prior testimony before the grand jury and relevant to the issues at trial, then the State would be permitted to refer to that portion of the grand jury testimony in its cross-examination. It was in reliance upon this ruling that defendant declined to testify on his own behalf.
The statutory authority for the State's grant of immunity to defendant, N.J.S.A. 2A:81-17.2a2, reads as follows:
If any public employee, having claimed the privilege against self-incrimination, testifies before any court, grand jury or the State Commission of Investigation after having been informed that his failure to appear and testify would subject him to removal from his office, position or employment, such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury or false swearing committed while so testifying.
Clearly, the grant of immunity appearing on the record of the grand jury proceedings at which defendant testified was in strict accordance with this statutory authority and resulted in precluding use of the compelled testimony or evidence derived therefrom in any subsequent criminal proceeding against defendant.
The State contends that a grant of use immunity pursuant to N.J.S.A. 2A:81-17.2a2 only precludes use of the compelled testimony as part of the State's affirmative case against the witness; not precluded is its use for impeaching the credibility of the witness, later a defendant, who testifies at variance therewith. To hold otherwise would, in the State's view, confer a license to commit perjury. We disagree with the State's definition of the scope of protection afforded by use immunity and the consequences feared from rejection of its position.
A valid claim of the Fifth Amendment privilege against self-incrimination made before a grand jury will, of course, be honored, and the witness claiming it cannot be required to testify. Because of the imperatives of investigation, however, the device of immunizing such testimony from later use against the witness in a subsequent criminal proceeding was fashioned as a means of compelling such otherwise privileged testimony without compromising the integrity of the constitutional protection afforded by the Fifth Amendment and cognate state constitutional guarantees. The immunity device, however, will only be deemed a sufficient answer to a claim of privilege if the scope of immunity afforded is commensurate in all respects with the privilege against self-incrimination which it replaces. United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Kastigar v. United States, 406 U. S. 441, 459, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). In order for a grant of immunity to pass constitutional muster as an adequate substitute for the self-incrimination privilege, it must leave the witness whose testimony has been compelled and the prosecutorial authorities "in substantially the same position as if the witness had claimed the Fifth Amendment privilege." Kastigar v. United States, supra at 462, 92 S.Ct. at 1666.
The essential inquiry here, therefore, is whether the proposed use of the immunized grand jury testimony...
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New Jersey v. Portash
...222, 91 S.Ct. 643, 28 L.Ed.2d 1, and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, distinguished. Pp. 456-460. 151 N.J.Super. 200, 376 A.2d 950, Edwin H. Stier, Princeton, N. J., for petitioner. Michael E. Wilbert, Brick Town, N. J., for respondent. Mr. Justice STEWART delive......
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State v. Portash.
...STATE of New Jersey v. Joseph S. PORTASH. Supreme Court of New Jersey. Jan. 17, 1978. Petition for certification denied. (See 151 N.J.Super. 200, 376 A.2d 950) ...