Fritz, Lynch and Barrett. The opinion of the court was delivered by Lynch, J.A.D.
Defendants Joseph Zicarelli, Frank Mallamaci, William Fourgerel, Jr., William Fourgerel, Sr. and Ludwig Bruschi, a/k/a Ninni, were charged in a 14-count state grand jury indictment with conspiracy to corrupt Mayor John Armellino of West New York, Hudson County, New Jersey, to the end that an illegal gambling enterprise being conducted by said defendants would be kept free of prosecution. Also indicted and charged as participants in the same conspiracy were defendants John Armellino and his brother Michael Armellino.
The indictment charged that Zicarelli, Mallamaci, both Fourgerels and Bruschi operated an illegal gambling enterprise consisting of lottery and bookmaking between November 1965 and April 1970. In addition, John Armellino was indicted for misconduct in office in failing to enforce the criminal laws of the State, and in using his office to keep safe from investigation and prosecution the gambling enterprise being conducted by the defendants Zicarelli, Mallamaci, the Fourgerels and Bruschi. The Armellinos were also indicted for having received bribes for their said misconduct and Zicarelli, Mallamaci and Fourgerel, Sr. were indicted for corruptly aiding, abetting and causing the payment of the bribes.
Michael and John Armellino pleaded guilty to the conspiracy counts and their cases were severed for trial. Both testified on behalf of the State.
Defendants Zicarelli, Mallamaci, Fourgerel, Sr., Fourgerel, Jr. and Bruschi were convicted and received various sentences to State Prison and fines, together with an assessment against Zicarelli and Mallamaci of one-fifth of the trial costs against each. This appeal followed.
The contentions of defendants may be summarized as follows: (1) the venue was improperly laid in Burlington County; (2) the court erred in allegedly refusing to ask the jurors finally selected whether they had been exposed to any publicity concerning the case; (3) the court erred in permitting the recording of several conversations between one Policastro and several of the defendants to be received in evidence and in allowing the jury to use a state-prepared transcript of the recordings as a listening aid; (4) defendants' motion for judgment of acquittal should have been granted; (5) the court erred in its charge to the jury; (6) defendant Zicarelli contends that the court erred in permitting testimony that he was in custody during part of the time covered by the indictment; (7) the court erred in permitting the State to proceed with its proofs that one Fluccari was a co-conspirator and in permitting the State to adduce testimony that Fluccari could not be found; (8) the court erred in permitting a state trooper to testify concerning the structure of a lottery organization and permitting a chart depicting the same to be received in evidence; (9) Zicarelli contends that the court erred in sustaining numerous objections made by the prosecutor during the summation of Zicarelli's attorney; (10) defendants Zicarelli and Mallamaci contend that the sentences imposed upon them were illegal insofar as they included an assessment against each of them of one-fifth of the costs of trial, and (11) defendant Mallamaci contends that the sentence imposed upon him was excessive and should be reduced.
Defendants Fourgerel, Jr. and Bruschi join in the contentions made by Zicarelli and Mallamaci as to Points 1, 3 and 4. Fourgerel, Sr. did not appeal.*fn1
The indictment here involved (SGJ 2-70-8H) was one of a series of seven indictments which were returned by the state grand jury (selected pursuant to N.J.S.A. 2A:73A-1 et seq.) and in all of which Joseph Zicarelli was a named defendant. All seven charged offenses committed in Hudson County. One (SGJ 2-70-8A) also charged a conspiracy taking place in Bergen, Hudson and Burlington Counties, and one (SGJ 2-70-8B) charged a conspiracy said to have occurred in Mercer and Hudson Counties, and elsewhere.
The venue of the within indictment, the last of the seven to be returned, was laid in Burlington County by Judge Kingfield, the assignment judge designated by the Chief Justice to administer state grand jury proceedings as provided in the State Grand Jury Act (N.J.S.A. 2A:73A-2).
Defendants' first contention is that the trial court erred in denying their motion for change of venue to Hudson County. The argument is that (1) R. 3:14-1 requires that an offense shall be prosecuted in the county where it was committed; (2) the Sixth Amendment to the United States Constitution guarantees an accused the right to trial by an impartial jury in the county wherein the crime has been committed, and (3) the allocation of venue to Burlington County, without an adversary hearing in the first instance, denied defendants due process of law.
Of the seven indictments, the venue of the first (SGJ 2-69-2) was initially laid in Hudson County. Venue on the next five was initially laid in Mercer County (SGJ 2-70-8A, 8B, 8C, 8D and 8E). The Attorney General filed a petition with Judge Kingfield seeking to have the first indictment (SGJ 2-69-2) changed from Hudson to Mercer County where the other five had been allocated. Without notice to defendants an order was entered effecting the change of venue to Mercer County. However, on October 9, 1970 the Attorney General filed another petition seeking
to transfer the six indictments (the instant indictment had not yet been returned) to Burlington County. The grounds asserted were that defendant Zicarelli was incarcerated in Burlington County, the prosecution required protection of its principal witness (Peter Policastro), whose personal safety was in danger for which security arrangements could adequately be made in Burlington County, and that all cases involved common questions of law and fact to be best disposed of by a single judge. Again, without notice to defendants, the court entered an order reallocating the indictments to Burlington County.
Shortly thereafter, the subject indictment (SGJ 2-70-8H) was returned and Judge Kingfield designated Burlington County as the venue for trial.
On January 8, 1971 all defendants moved before Judge Van Sciver, to whom the cases had been assigned for trial, for an order to reallocate venue to Hudson County. The motion was denied. However, the Supreme Court remanded the matter to Judge Kingfield to decide the question of venue anew, in order to give defendants an opportunity to oppose the State's petition -- an opportunity which they had not been afforded on the original allocation to Burlington County.
After a hearing Judge Kingfield decided that Burlington County was the proper county for venue. He stated his reasons: (1) "somewhat a matter of convenience"; (2) the availability of a judge and a courtroom in Burlington County; (3) the State Grand Jury Act (N.J.S.A. 2A:73A-3) created a district which embodies the entire State, and the act authorized the designated assignment judge to allocate the venue of trial; (4) in adopting R. 3:14-1 the Supreme Court did not contemplate the state grand jury, and the rule was not intended to apply to it; (5) the security of state witness Policastro, an "important factor," could be maintained better in Burlington County; (6) the Sixth Amendment to the United States Constitution did not stand in the way of Burlington County venue;
(7) there would be less publicity there than in Hudson, and (8) there would be an impartial jury which would give defendants a fair trial and defendants would suffer no prejudice by Burlington County venue.
This is the venue rule normally applicable to county grand juries and would, with certain exceptions not applicable here, require trial in the county where the offense was committed.
The State Grand Jury Act (N.J.S.A. 2A:73A-3) contemplates a grand jury quite unlike the traditional county grand juries. Its powers are set forth in N.J.S.A. 2A:73A-3:
A State grand jury shall have the same powers and duties and shall function in the same manner as a county grand jury established pursuant to Title 2A of the New Jersey Statutes except that its jurisdiction shall extend throughout the State. The law applicable to county grand juries shall apply to State grand juries except insofar as they are inconsistent with this Act. The Supreme Court may promulgate such rules and regulations as it deems necessary to govern particularly the procedures of State grand juries. [Emphasis added]
The act has also dealt with the problem of venue in the following manner:
Any indictment or presentation by a State grand jury shall be returned to the assignment judge without designation of venue. Thereupon, the judge shall, by order, designate the county of venue for the purpose of trial * * *. [ N.J.S.A. 2A:73A-8; emphasis added]
There is no doubt that one of the purposes of the State Grand Jury Act was that it was to be unfettered by the limitations of a county grand jury. To that end it was given state-wide jurisdiction and venue was to be directed by the assignment judge designated by the Chief Justice.
Venue is not a matter of jurisdiction, nor is it of constitutional dimension. State v. Di Paolo , 34 N.J. 279,
cert. den. 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). It must not bow to circumstances which no longer exist. In Di Paolo , the court said:
And, again demonstrating the subservience of venue concepts to legislative purposes and accommodation to changing needs, ...