CITY OF HOBOKEN v. CLERK OF THE HUDSON COUNTY GRAND JURY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1419-09T21419-09T2

CITY OF HOBOKEN AND DAVID

ROBERTS,

Plaintiffs-Respondents,

v.

CLERK OF THE HUDSON COUNTY

GRAND JURY,

Defendants,

_____________________________

EDWIN PANTOJA, GEORGE FONSECA,

JAMES PEREZ, CESAR OLAVARRIA

AND MARIO NOVO,

Appellants.

______________________________

 

Submitted June 15, 2010 - Decided

Before Judges Fisher and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-2709-09.

Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P., attorneys for appellants (Alon Solon and James Schwerin, of counsel and on the brief).

Scarinci & Hollenbeck, L.L.C., attorneys for respondents (Robert E. Levy, of counsel and on the brief; Christine M. Vanek and Laura M. Miller, on the brief).

PER CURIAM

George Fonseca, Mario Novo, Cesar Olavarria, Edwin Pantoja, and James Perez (objectors) appeal from an October 16, 2009 Law Division order granting the City of Hoboken and its former mayor David Roberts (collectively, Hoboken) access to the transcripts of objectors' grand jury testimony. By its terms, the order also stayed release of the transcripts pending this appeal. We affirm the order on appeal and vacate the stay.

Objectors, all employed by the Hoboken Police Department, are plaintiffs in a federal civil rights suit in which they claim the Department subjected them to racial harassment and a hostile work environment. In connection with that federal lawsuit, Hoboken sought discovery of objectors' testimony before a state grand jury that the prosecutor had convened to investigate possible criminal wrongdoing by members of the police force.

For reasons stated in an oral opinion on October 16, 2009, Judge Gallipoli released the grand jury transcripts of their testimony. The judge found that since the grand jury had not issued any indictments and the prosecutor's investigation was closed, there no longer was a need for secrecy; that the civil trial was a search for the truth; and that objectors should not be permitted to hide behind grand jury secrecy if their grand jury testimony was at variance with their deposition testimony in the civil suit. The judge also found "no indication . . . of any abuse of the grand jury process by the City of Hoboken and/or the Prosecutor."

Having reviewed the entire record, we agree with Judge Gallipoli, and we affirm substantially for the reasons stated in his opinion. On this appeal, objectors contend that two earlier rulings denying access to the transcripts, one issued by Judge Vazquez and the other by Judge Gallipoli, barred Hoboken from filing a third application seeking disclosure. We disagree, because Judge Gallipoli's first decision did not adjudicate the merits of the application, and neither of the two earlier decisions addressed the merits of the discovery application for the purpose of defending against the federal civil rights lawsuit.

Judge Gallipoli initially denied access to the transcripts, without prejudice, pending Hoboken's application to the federal court hearing the civil rights suit. When the federal court declined to decide the application pending the State court's decision on access to the transcripts, Judge Gallipoli was not barred from addressing the merits of the application. He also was not bound by Judge Vazquez's earlier decision, denying access in the context of an internal municipal investigation conducted by independent counsel. The doctrines of res judicata and collateral estoppel do not apply here. See Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 172-74 (App. Div.), certif. denied, 164 N.J. 188 (2000).

In this appeal, objectors also contend that the prosecutor "may" have manipulated the grand jury process to obtain discovery for use in the federal civil suit. However, mere speculation will not suffice to defeat the application, and the record provided to us does not support the allegation. Objectors' reliance on In re Allegations of Official Misconduct in Elizabeth, 233 N.J. Super. 426, 435 (App. Div. 1989), is therefore misplaced.

Objectors further argue that Hoboken's attorneys do not need the grand jury transcripts because they already have other sources of information from objectors, including their depositions and recorded statements. However, since credibility will doubtless be an important issue in the upcoming federal trial, Hoboken has demonstrated a need to discover whether objectors gave inconsistent testimony before the grand jury. See Doe v. Klein, 143 N.J. Super. 134, 142-43 (App. Div. 1976) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 681-82, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077, 1081-82 (1958)); Viruet v. Sylvester, 131 N.J. Super. 599, 602-03 (App. Div.), certif. denied, 68 N.J. 138 (1975); Stewart v. Dexter, 218 N.J. Super. 417, 421 (Law Div. 1986). There is no evidence of grand jury abuse. Moreover, because no indictments issued, and Hoboken is only seeking objectors' testimony and not the testimony of other witnesses, secrecy is not an overriding consideration here. We find no abuse of discretion in Judge Gallipoli's decision. See State v. Doliner, 96 N.J. 236, 250-52 (1984).

Affirmed.

 

The criminal investigation, and a later administrative internal investigation, related to an auto theft task force to which objectors were assigned. In their federal lawsuit, objectors had accused the task force supervisor of racially harassing them and requiring them to perform personal chores for him on work time. They also alleged that the police chief retaliated against them when they complained about the supervisor.

While he invoked principles of comity, Judge Gallipoli stated, "I would sign such an order today [granting access to the transcripts] save for my deferring to the [f]ederal [c]ourt in the first instance." Judge Gallipoli also indicated that if the federal court declined to decide the application, he would entertain another application from Hoboken and would probably grant it.

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A-1419-09T2

June 30, 2010