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Zicarelli v. Gray

November 18, 1975

JOSEPH ZICARELLI, APPELLANT
v.
ALBERT D. GRAY, JR., SUPERINTENDENT NEW JERSEY STATE PRISON (D.C. CIVIL NO. 74-179)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Author: Van Dusen

Before VAN DUSEN, ADAMS and HUNTER, Circuit Judges

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

Petitioner Joseph Zicarelli is in custody as the result of two New Jersey State Court criminal convictions. He is appealing to this court the dismissal of his petition for a writ of habeas corpus by the United States District Court for the District of New Jersey.*fn1

The charges which led to Zicarelli's two convictions have their basis in his alleged efforts to protect from prosecution an illegal gambling operation controlled by him in West New York, Hudson County, New Jersey. Indictment SGJ 2-70-8E charged Zicarelli and others with conspiracy to corrupt a public official (Ray R. Louf, a captain in the County Detectives in the Hudson County Prosecutor's Office) and with several counts of bribery of a public official.*fn2 The offenses were alleged to have occurred in West New York and in Jersey City, both in Hudson County, and "elsewhere." All acts referred to in the indictment were alleged to have occurred in Hudson County. Indictment SGJ 2-70-8H charged Zicarelli and others with conspiracy to corrupt Mayor John Armellino of West New York, and with corruptly aiding, abetting and causing the payment of bribes.*fn3 These offenses were alleged to have occurred in West New York and in Hoboken, both in Hudson County, and "elsewhere." All acts referred to in the indictment were alleged to have occurred in Hudson County.

These two indictments were among a series of seven, all of which named Zicarelli as one of the defendants, returned by a state grand jury. The first of these, SGJ 2-69-2, charged offenses alleged to have taken place in Hudson County,*fn4 and venue was initially laid in Hudson County. Of the next four indictments, SGJ 2-20-8A through 8D, two charged offenses alleged to have taken place in Hudson County only, one charged offenses in Hudson and Mercer Counties, and one charged offenses in Hudson, Bergen, and Burlington Counties.*fn5 Venue on these indictments, together with SGJ 2-70-8E, was initially laid in Mercer County.*fn6

The State Attorney General filed a petition with the assignment judge, Judge Kingfield, seeking to have the first indictment (SGJ 2-69-2) changed from Hudson to Mercer County. The State argued that all the cases involved similar factual and legal issues and that therefore they should be tried before a single judge. Moreover, a crucial witness, Peter Policastro, was being kept in protective custody and it was required that he be kept in an area where the State could provide adequate security arrangements. Such arrangements, the State claimed, had been made in Mercer County. The State gave no notice of its petition to defendants, and without notice Judge Kingfield entered an order on June 23, 1970, effecting the State's requested change of venue to Mercer County.

On October 9, 1970, the Attorney General requested another change of venue, again without giving notice to defendants. This time, the Attorney General moved that venue on all six of the indictments assigned to Mercer County be shifted to Burlington County. The principal contention of the State in support of this motion was that Policastro's safety could best be provided in Burlington County. On the same day, the Judge granted the motion, again providing no notice and no hearing to the defendants.*fn7

Shortly thereafter, the indictment which ultimately formed the basis for Zicarelli's first conviction challenged in this proceeding (SGJ 2-70-8H) was returned by the grand jury, and venue was laid in Burlington County. Defendants challenged the venue determinations in the state courts, and the New Jersey Supreme Court remanded the matter to Judge Kingfield to give the defendants an opportunity to oppose the State's petition.*fn8

After considering defendants' arguments, Judge Kingfield held that Burlington County was the proper county for venue. His reasons included: 1) the security of Policastro could be better maintained in Burlington County; 2) the Sixth Amendment to the United States Constitution did not prohibit such venue; 3) there would be less publicity in Burlington County than in Hudson County; and 4) there would be an impartial jury which would give defendants a fair trial and defendants would suffer no prejudice.*fn9

Defendant Zicarelli was tried by juries in, and selected from, Burlington County. He was convicted on several of the counts contained in the SGJ 2-70-8H indictment, and on April 23, 1971 he was sentenced to a term of twelve to fifteen years.*fn10 He was also convicted on several of the counts contained in the SGJ 2-70-8E indictment, and on March 17, 1972 he was sentenced to a term of four to five years, to be served concurrently with the term on SGJ 2-70-8H.*fn11

The defendant's first conviction was affirmed in State v. Armellino, 122 N.J. Super. 225, 300 A.2d 154 (App. Div.), certif. denied, 63 N.J. 252, 306 A.2d 455, cert. denied, 414 U.S. 875 (1973). His second conviction was reviewed in State v. Louf, 126 N.J. Super. 321, 314 A.2d 376 (App. Div. 1973), and it was affirmed ...


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