STATE OF NEW JERSEY v. HERBERTO ZAYAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4820-06T44820-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERBERTO ZAYAS,

Defendant-Appellant.

___________________________

 

Submitted January 26, 2009 - Decided

Before Judges Carchman and R.B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-06-0831 and 05-02-0255.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Herberto Zayas was found guilty of two counts of third-degree simulating a motor vehicle insurance card, N.J.S.A. 2C:21-2.3(a); and two counts of fourth-degree tampering with evidence, contrary to N.J.S.A. 2C:28-6(2). The trial judge sentenced defendant to concurrent terms of four years probation conditioned on serving 364 days in the Passaic County Jail, together with statutory penalties and assessments. Defendant appeals, and we affirm.

These are the facts that were adduced at trial. On December 8, 2003, Jessica Quinones appeared at the Passaic County Sheriff's department to retrieve a vehicle that had been impounded. In her attempt to retrieve the vehicle, Ms. Quinones presented an Allstate Insurance Company card to Debra Wyche, who was working in the Sheriff's Department at the time. Concerned about the authenticity of the card, Ms. Wyche contacted Allstate Insurance Company and was advised that the insurance card was fraudulent. Ms. Wyche referred the matter to Sheriff's Detective Darryl Walton and his partner, who arrested Ms. Quinones. As a result of further investigation, Detective Walton determined that the fraudulent insurance card was provided by defendant's agency, the Zayas Insurance Company.

Ms. Quinones agreed to assist the Sheriff's department and accompanied Detective Mary Roman, who was posing as Melissa Pimental, a friend of Ms. Quinones, to the Zayas Insurance Company. At defendant's company, Ms. Quinones introduced Detective Roman as a friend and someone in need of a fraudulent insurance card because her car had been towed as an uninsured vehicle. Detective Roman specifically asked to speak to defendant, but he was not there at the time. Detective Roman returned on December 16, 2003, and at that time, met with defendant. She informed him that her vehicle had been towed, that she did not have enough money "to get real insurance." She further related that Ms. Quinones had told her defendant could help her and a fraudulent card cost $400. She then inquired if defendant could help her. Defendant replied in the affirmative and then called co-defendant Luz Melana Guevara Rodriguez, who worked in his company, and instructed her to provide Detective Roman with a back-dated insurance card. Defendant told Ms. Guevara, "you've done this before, you know what to do." Defendant then instructed Detective Roman to go with Ms. Guevara who would take care of her.

Ms. Guevara prepared and presented Detective Roman with an insurance card, dated December 3, 2003, five days before she was supposedly ticketed. Detective Roman paid Ms. Guevara with $400 in marked bills. Thereafter, the State obtained a search warrant for defendant's company, which was executed on December 19, 2003. During the search, the detectives found a number of relevant documents, including files for Ms. Quinones and "Melissa Pimental" and $250 of the marked bills Detective Roman had used to purchase the fraudulent insurance. Defendant and Ms. Guevara were arrested on that day, December 19, 2003.

Ms. Guevara was also charged as a co-defendant and pled guilty. At trial, she testified as a witness for the State and corroborated the facts set forth above.

At trial, one of defendant's workers, Elena Maria Henao, also testified and corroborated the information previously described. She indicated that sometime after the arrest, defendant's daughter contacted Ms. Henao and threatened to report her to immigration if she did not help defendant. Defendant also provided Ms. Henao with the statement he gave to the police and informed her to "get acquainted with it[,]" that defendant's attorney would contact her and ask some questions and that she should tell the attorney that Detective Roman "never went inside his office[, a]nd that [defendant] didn't do false insurance cards." Ms. Henao also claimed that defendant accused her of stealing $100,000 from him.

Ms. Henao and defendant had prior involvement related to an apartment rental. Previously, defendant filed a complaint alleging that Ms. Henao owed him $5,000 for past due rent on an apartment he owned and she rented. The matter was settled for one month's rent, and Ms. Henao agreed to vacate the apartment.

Defendant testified on his own behalf. He stated that he was the owner of Zayas Insurance Brokerage and that the company provides "all types of insurance" such as health, life, commercial, auto, etc. His version of the critical events was that he met with Ms. Quinones who stated that she needed auto insurance. Defendant then introduced Ms. Quinones to Ms. Guevara and instructed Ms. Guevara to determine what type of insurance Ms. Quinones needed. He stated that Ms. Guevara was in charge of processing insurance applications "from start to finish." Defendant claimed that, although he normally reviewed all the applications, he never reviewed Ms. Quinones'. Defendant denied the signatures on Ms. Quinones' application and insurance card were his. He also denied receiving any money from Ms. Guevara and claimed that all the money is typically handled by her. Defendant produced his sales journal into evidence, which does not contain an entry for Ms. Quinones.

Defendant recalled meeting Detective Roman, under the alias Melissa Pimental. He stated that after speaking to Detective Roman, he also introduced her to Ms. Guevara and instructed Ms. Guevara to determine what type of insurance Detective Roman needed. Defendant denied instructing Ms. Guevara to give Detective Roman a fraudulent insurance card and claimed that the money paid by Detective Roman was never deposited into the business account. As he had produced his sales journal, he also produced his ledger, which did not have an entry for the Roman funds. Defendant assumed that Ms. Henao and Ms. Guevara took the money paid by Ms. Quinones and Detective Roman. Defendant denied that he spoke to Ms. Henao about testifying on his behalf and was not even aware she was a witness for the State until he came to court for pre-trial motions. Finally, defendant revealed that after Ms. Henao left his employ, he discovered that, over a long period of time, she had stolen approximately $90,000. He filed a criminal complaint against Ms. Henao, but the matter was closed for lack of evidence.

On appeal, defendant raises the following issues:

POINT ONE

BLATANT PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).

POINT TWO

THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEA ENTERED BY THE CO-DEFENDANT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).

We have carefully reviewed the record in this matter and conclude that defendant's arguments are without merit. R. 2:11-3(e)(2). We add the following additional comments.

Defendant's arguments regarding alleged prosecutorial misconduct focus on statements made by the prosecutor during summation. Specifically, the prosecutor commented:

He makes about $140,000 from his own mouth. He brings in over a million dollars in proceeds. Who's got more motive? Him, because this isn't just about $700. Counsel says this is about $700. No this is about $700 that got caught. This is about two instances he was caught on.

This is about 140,000, over a million dollar business that I can't tell you how many, or many were fraudulent.

. . . .

We don't know what other things he was doing, but the two times we caught him, it's not a $700 crime, ladies and gentlemen, it's the two times we caught him.

Counsel did not object to the comments.

The State asserts that the comments were contextual and in response to defendant's argument during summation as to defendant's motive for what appeared to be such a minor theft. Defendant's counsel had argued:

[A]t the opening, I said to you that this case was more about Alina Vasguez and Milena Rodriguez' greed and dishonesty. And I will submit to you that after sitting here and watching what came forth from that witness stand, it was exactly that.

Here we have two employees of Herberto Zayas, who make $9 an hour, probably bringing home about three to 400 hundred dollars a week, maybe, before taxes. They had money problems. They can't pay their rent. Alina Vasguez is married and she, unfortunately, can't pay her rent. And understandably, there are people in the world who will not be able to make their bills. That's understandable.

But to take and steal from an employer and then pretend as if the employer had something to do with it, it -- it's just --it -- it amazes me. It absolutely amazes me that the State of New Jersey brought this case against Mr. Zayas simply because he's the owner of Zayas Agency -- Insurance Agency.

. . . .

[I]n 2003, as of December, [defendant's] business was booming. He made over a million dollars. Personally, he took home about 140,000 of that.

So, common sensibly, ladies and gentlemen, if you just sit and ask yourselves, what makes more sense, who has more of a motive to steal? When you look at the amount of money that Mr. Zayas made compared to the amount of money both the -- both the women made, it just doesn't add up.

. . . .

I'm asking you to ask yourselves, why would Mr. Zayas risk his insurance license, his banking license? Why would he risk that for $700? We're talking about $700, ladies and gentlemen, 700. Between the two transactions that Milena started and finished, $700.

. . . .

$700 to some people, I would submit to you, ladies and gentlemen, is a lot of money. Maybe perhaps to Milena and Alina, but I would submit to you, when your business is making so much money, I don't see where you would risk everything. Why would Mr. Zayas risk everything to go after $700?

The State asserts that its response was fair and when viewed in context were proper. We agree.

A prosecutor is afforded considerable leeway to make forceful, vigorous arguments in summation. State v. Chew, 150 N.J. 30, 84 (1997); State v. Loftin, 146 N.J. 295, 386-87 (1996). A defendant is not awarded the windfall of reversal for any deviation he can allege on the part of the prosecutor. On review, we must assess those comments in the context of defense counsel's remarks and the trial record as a whole. State v. Morton, 155 N.J. 383, 419-20 (1998), cert. denied, 523 U.S. 931, 121, S. Ct. 1380, 149 L. Ed. 2d 306 (2001). A prosecutor's comments, even if considered improper, are not grounds for reversal unless the misconduct was "so egregious as to deny defendant a fair trial." State v. Pennington, 119 N.J. 547, 566 (2001). See also State v. Feaster, 156 N.J. 1, 59 (1998).

In determining whether a prosecutor's statements denied a defendant a fair trial, we must consider whether defense counsel made a "timely and proper objection." State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-42 (1953), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993)). "If no objection is made, the remarks usually will not be deemed prejudicial." Id. at 323. A failure to object not only deprives the trial court of an opportunity to rule on the objection, but it suggests that defense counsel at that time did not believe the remarks were so prejudicial that an objection needed to be made. State v. Frost, 158 N.J. 76, 84 (1999); State v. Trimmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

In addition, in reviewing the prosecutor's summation, we must consider the context in which the challenged portions were made, including determining whether the remarks were a measured response to defendant's summation made in an attempt to "right the scale." State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991).

We are of the view that the comments represented a fair rendition of the proofs and inferences to be drawn from the evidence presented. This is especially so when considered with defendant's statement at his first meeting with Roman when he indicated to Ms. Guevara, "you've done this before, you know what to do." The proofs were strong and we see no basis for our intervention.

We reach the same result with regard to the charge regarding co-defendant's plea. We agree that the judge should have considered a limiting instruction regarding the impact of co-defendant's plea on defendant, State v. Stefanelli, 78 N.J. 418, 431 (1979); State v. B.M., 397 N.J. Super. 367, 379 (App. Div. 2008); State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005), however, as both counsels acknowledge, the charge requires defense counsel's request before it is given. State v. Adams, 194 N.J. 186, 207 (2008) (noting that "a defendant has a right, upon request, to a specific jury instruction that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding"); State v. Artis, 57 N.J. 24, 33 (1970) (stating that a cautionary instruction regarding evidence of an accomplice may be given by a judge if the judge thinks it is advisable under the circumstances but "it is generally not wise to do so absent request, because of the possible prejudice to the defendant"), cert. denied, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972); State v. Shelton, 344 N.J. Super. 505, 519-20 (App. Div. 2001) (finding that a defendant may request a charge that the jury "carefully scrutinize and assess the evidence provided by an accomplice in light of the accomplice's special interest in the case" and that a judge may give this charge sua sponte if advisable under the circumstances, but it is not error or plain error "for a trial judge to fail to give this cautionary comment where it has not been requested"), certif. denied, 171 N.J. 43 (2002).

Here the judge gave a credibility charge, which was clearly the critical issue in this trial, and no request was made for an additional limiting instruction. We conclude there was no error here.

 
Affirmed.

The jury found defendant not guilty of third-degree tampering with a witness, N.J.S.A. 2C:28-5(a)(1); and the State voluntarily dismissed a charge of fourth-degree theft by deception. N.J.S.A. 2C:20-4.

In the trial transcripts, Ms. Guevara is also referred to as Melana Rodriguez or Milena Rodriguez.

Ms. Henao is also referred to as Elena Vazquez or Alina Vasquez in the trial transcripts. She is also identified as "Alina Vasquez" in indictment no. 05-02-0255 charging defendant with third-degree tampering with a witness.

(continued)

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A-4820-06T4

April 27, 2009