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State v. Zicarelli

Decided: November 18, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH A. ZICARELLI, DEFENDANT-APPELLANT



Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D.

Morgan

The present appeal constitutes yet another chapter in defendant Zicarelli's strenuous attempts in both federal and state courts to overturn his convictions of conspiracy and bribery in Hudson County founded upon Burlington County jury verdicts. The extended history of the appellate litigation concerning the several interrelated Sixth Amendment and due process claims raised by the fact that a Burlington County jury decided defendant's culpability with respect to offenses which occurred in Hudson County need not be recounted here because of the comprehensive account thereof contained in the most recent appellate effort to resolve them. See Zicarelli v. Gray , 543 F.2d 466 (3 Cir. 1976) (en banc). We need only commence consideration of this matter with the issues left unresolved by Zicarelli v. Gray for defendant's failure to have exhausted his state remedies with respect thereto.

The Third Circuit Court of Appeals described two issues raised by Zicarelli in his efforts to obtain release from custody, both of which involved claimed Sixth Amendment violations. That court described his contentions made in that proceeding in the following terms:

A third issue was raised for the first time during oral argument of that appeal and this, in the words of the court, was "that the 'district' from which the trial jury was chosen was not previously ascertained by law, as required by the sixth amendment." Id. at 470.

Satisfied that Zicarelli exhausted state remedies as to the first issue, the Third Circuit agreed to resolve it. That issue involved Zicarelli's claimed right to be tried by a jury drawn

from Hudson County, the county where the offenses occurred. His contention was rejected, the court holding that

Left for our resolution, on defendant's application therefor, and because the court perceived that the question had received no state consideration during the state appeal process, were the two remaining questions: (1) the so-called cross-section requirement and (2) the requirement that the county in which Zicarelli was tried be within a district previously ascertained by law within the meaning of the Sixth Amendment.

Following rendition of Zicarelli v. Gray, supra , defendant commenced post-conviction proceedings in this State raising the two unresolved issues. As a factual predicate for the requested post-conviction relief with respect to cross-section requirement, Zicarelli offered the following official data from the 1970 census:

(a) Hudson County is the smallest and, with nearly 14,000 people per square mile, the most densely populated county in the state. Burlington is the largest county in terms of square miles and, with some 274 people per square mile, one of the most sparsely populated.

(b) Burlington is one of our agricultural counties, with more acres devoted to farming than any other county. Hudson, of course, is largely industrial.

(c) 42.1% of the people in Hudson County are of foreign stock as compared with only 15.4% of the population in Burlington.

(d) In Hudson County some 46.3% of the people have a language other than English as their mother tongue; compared with slightly under 19% in Burlington County. For example, there are seven times as many Spanish speaking people in Hudson as in Burlington.

(e) In Hudson County around 36% of the people have graduated from High School compared with roughly 60% ...


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