Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. MYRNA DIAZ

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0487-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MYRNA DIAZ,

     Defendant-Appellant.
__________________________

              Submitted September 28, 2017 – Decided October 30, 2017

              Before Judges Simonelli and Haas.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 07-08-3025.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven E. Braun, Designated
              Counsel, on the brief).

              Robert D. Laurino,      Acting Essex County
              Prosecutor, attorney for respondent (Tiffany
              M.    Russo,    Special     Deputy    Attorney
              General/Acting      Assistant      Prosecutor,
              of counsel and on the brief).

PER CURIAM

        Defendant Myrna Diaz appeals from the August 21, 2015 Law

Division order, which denied her motion for a new trial and
petition for post-conviction relief (PCR).   On appeal, defendant

raises the following contentions:

    POINT I:    THE PCR COURT SHOULD HAVE GRANTED
                A NEW TRIAL BECAUSE OF THE STATE'S
                DISCOVERY VIOLATION.

    POINT II:   THE   [DEFENDANT]    WAS    DENIED
                EFFECTIVE ASSISTANCE OF COUNSEL IN
                VIOLATION   OF   THE   SIXTH   AND
                FOURTEENTH   AMENDMENTS   OF   THE
                UNITED STATES CONSTITUTION AND
                ARTICLE I, PARAGRAPH 10 OF THE NEW
                JERSEY CONSTITUTION.

                A. Interview     with     Assistant
                   Prosecutor Khan.

                B. Counsel's failure to demand a
                   hearing regarding the Marshell
                   Milliner statement and to locate
                   and present Ms. Milliner as a
                   witness.

                C. Conclusion     regarding     the
                   ineffective    assistance     of
                   [trial counsel].

    POINT III: [DEFENDANT] WAS DENIED EFFECTIVE
               ASSISTANCE OF COUNSEL AS A RESULT
               OF THE INCOMPETENT EFFORTS OF THE
               ATTORNEYS OF THE "PROJECT FREEDOM
               FUND (PFF)" WHO INDUCED HER TO
               WITHDRAW HER PLEA OF GUILTY,
               THEREBY    FORFEITING   HER   PLEA
               BARGAIN WHICH HAD ENSURED HER A
               MAXIMUM [FIFTEEN-]YEAR SENTENCE,
               AND RESULTING IN A JURY TRIAL
               WHERE   SHE   WAS   CONVICTED  AND
               SENTENCED TO A TERM OF [FORTY]
               YEARS.

    POINT IV:   [DEFENDANT'S] APPELLATE COUNSEL
                PROVIDED INEFFECTIVE ASSISTANCE

                               2                          A-0487-15T2
                   OF COUNSEL IN VIOLATION OF THE
                   SIXTH AND FOURTEENTH AMENDMENTS OF
                   THE UNITED STATES CONSTITUTION AND
                   ARTICLE I, PARAGRAPH 10 OF THE NEW
                   JERSEY CONSTITUTION.

     POINT V:      CUMULATIVE ERROR REQUIRED A NEW
                   TRIAL.

     POINT VI:     THIS COURT SHOULD CONSIDER ALL
                   OTHER POINTS WHICH [DEFENDANT]
                   CONSIDERS TO BE RELEVANT TO THE
                   INSTANT APPEAL.

We reject these contentions and affirm.

     A grand jury indicted defendant for felony murder, 
N.J.S.A.

2C:11-3(a)(3) (count one); first-degree robbery, 
N.J.S.A. 2C:15-1

(count three); two counts of fourth-degree unlawful possession of

a weapon, 
N.J.S.A. 2C:39-5(d) (counts four and six); two counts

of third-degree possession of a weapon for an unlawful purpose,


N.J.S.A.   2C:39-4(d)   (counts   five   and   seven);   second-degree

burglary, 
N.J.S.A. 2C:18-2 (count eight); second-degree conspiracy

to commit robbery, 
N.J.S.A. 2C:5-2 and 
N.J.S.A. 2C:15-1 (count

nine); and fourth-degree credit card theft, 
N.J.S.A. 2C:21-6(c)

(count ten). Co-defendants Mark Warner and McDonald Williams were

separately charged in count two with felony murder, 
N.J.S.A. 2C:11-

3(a)(1) and (2).

     The charges against defendant stemmed from her involvement

in the robbery and murder of Jose Cabrera at his auto repair shop

in Newark on Sunday, October 8, 2006.          Cabrera kept two cell

                                  3                            A-0487-15T2
phones with him at all times, but they were not found on the

premises   after   the   robbery/homicide.     A   police   investigation

revealed that after Cabrera's death, one of his cell phones was

used to call Warner and his credit card was used at three local

stores and a gas station.     A surveillance video from a Stop & Shop

showed defendant with Warner bagging groceries and Warner swiping

Cabrera's credit card at the register.

     In a recorded statement to the police, defendant denied having

any knowledge about what had happened to Cabrera or using Cabrera's

credit card at the Stop & Shop after his death.               In a second

recorded statement, she admitted Cabrera was her former boyfriend

and she was at his shop.     After she left the shop, she saw Warner

and Williams at the corner and they stopped to ask her about the

shop.   She knew both men and had been sexually intimate with

Williams for two to three weeks.       She said Williams refused to let

her leave and forced her to go to Cabrera's shop.           Warner entered

the shop and punched Cabrera in the face.           Warner and Williams

wanted Cabrera to open the safe, but he refused.             The men then

punched Cabrera, hit him with a long metal piece, and said they

would slit her throat if he did not open the safe.               Williams

continued hitting Cabrera as Warner took her to the garage and

held a knife to her throat.       When Williams exited the shop, his

boots were bloody.       As she left, she saw Cabrera lying on the

                                   4                               A-0487-15T2
floor in a pool of blood.       She admitted Cabrera's credit cards

were taken and that she used one of the cards with Warner to

purchase food at the Stop & Shop.

     Warner's    girlfriend,   Marshell   Milliner,   gave   a   recorded

statement to the police, which the State claimed was inadvertently

destroyed.    However, the State provided a police report indicating

that Milliner said defendant and Williams came together to her

apartment with credit cards and cell phones, which they removed

from a bag.     The report also indicated Milliner said the group

then went to the Stop & Shop and later returned to her apartment

and smoked marijuana.

     On September 30, 2008, defendant pled guilty to count one,

amended to first-degree aggravated manslaughter, 
N.J.S.A. 2C:11-

4, and count three, first-degree robbery, and agreed to testify

truthfully against her co-defendants.         In exchange, the State

agreed to recommend a term of imprisonment not to exceed fifteen

years with an eighty-five percent period of parole ineligibility

pursuant to the No Early Release Act (NERA), 
N.J.S.A. 2C:43-7.2.

In her factual basis, defendant admitted that she went with Warner

and Williams to Cabrera's shop on October 8, 2006 to commit a

robbery; the two men assaulted Cabrera in an attempt to get him

to open his safe; she knew it was foreseeable that they could use

force in committing the robbery; they did not care if Cabrera

                                   5                              A-0487-15T2
lived or died while they were hitting him; and Cabrera died as a

result of his injuries.     Defendant also admitted that Warner and

Williams took some items from Cabrera during the robbery, and she

received Cabrera's credit after the robbery and used it once.

     Prior to sentencing, in January 2009, Assistant Prosecutor

Naazneen Khan interviewed defendant regarding her claims about a

correction officer's sexual harassment and official misconduct.

Trial counsel declined to be present at the interview because it

did not concern the robbery/homicide.              During the interview,

defendant began discussing the robbery/homicide, despite being

advised she did not have to do so.       Defendant told Kahn that she

drove Warner and Williams to Cabrera's shop and knew that a robbery

was going to take place, but stayed in the car during the entire

incident.   She denied knowing the men intended to harm Cabrera.

     Over a year later, and against trial counsel's advice, on

February 5, 2010, defendant filed a pro se motion to withdraw her

guilty plea.   Defendant also sought to relieve trial counsel from

representing her.    Defendant certified she was innocent; was with

a female friend at the time of the crimes; was coerced and

threatened into pleading guilty; and her two statements to the

police and factual basis at the plea hearing were false.           With the

State's   consent,   the   court   granted   the    motion   and   assigned

defendant new counsel.

                                    6                               A-0487-15T2
     Prior   to   trial,   new   trial   counsel    moved   to   suppress

defendant's two statements to the police and her statements to

Kahn.   Following a Miranda1 hearing, the trial judge ruled the two

statements to the police were admissible.          The judge also ruled

defendant's statements to Kahn were inadmissible on the State's

case-in-chief, but the State could use the statement on rebuttal

if defendant testified.

     Defendant testified on her own behalf.          She proclaimed her

innocence and testified that she was with Milliner in Milliner's

apartment when robbery/homicide occurred, and first saw Warner and

Williams when they arrived at the apartment with a shopping cart

filled with a number of items, including Cabrera's credit cards.

She did not know how Warner and Williams obtained the credit cards,

but admitted she twice used the card because they threatened her

and her children.

     Defendant also testified she was high on drugs and confused

about her Miranda rights when she gave her statements to the police

and only gave the statements because she wanted to leave.              She

maintained she was not present when Cabrera was beaten and murdered

and did not tell Williams and Warner that he had a safe.         She also



1
  Miranda v. Arizona, 
384 U.S. 436, 
86 S. Ct. 1602, 
16 L. Ed. 2d 694 (1966).


                                   7                              A-0487-15T2
testified that Milliner was involved with the credit cards as

well.

     On cross-examination, defendant admitted she met Warner and

Williams three weeks prior to the robbery/homicide, was intimate

with Williams at the time of the crimes, and was previously

intimate with Cabrera and knew he had a safe in his shop.         She

also admitted that Cabrera closed his shop on Sundays, but she

arranged for him to have the shop open so he could look over her

nephew's truck.    She also was able to describe a knife and grease-

pump found at the scene in specific detail.       On rebuttal, Kahn

testified about defendant's statements during the January 2009

interview.

     The jury found defendant guilty of all charges.      The trial

judge imposed an aggregate forty-year term of imprisonment subject

to NERA.     Defendant appealed her conviction and sentence.        We

affirmed, and our Supreme Court denied certification.      State v.

Diaz, No. A-4378-10 (App. Div. Nov. 18, 2013), certif. denied, 
218 N.J. 275 (2014).

     Defendant later discovered that Milliner's recorded statement

was not destroyed.    She filed a motion for a new trial, arguing




                                  8                          A-0487-15T2
the State committed discovery and Brady2 violations when it failed

to produce Milliner's recorded statement.             She maintained her

innocence and reiterated she was with Milliner at the time of the

robbery/homicide.     Defendant argued that Milliner's statement was

newly-discovered exculpatory evidence that would have changed the

outcome of the trial.

      Defendant also filed a PCR petition, again raising the State's

discovery violation, and also arguing that trial counsel rendered

ineffective assistance by failing to be present during the Kahn

interview,   demand   a   hearing   regarding   the    State's   discovery

violation, and locate and call Milliner as an alibi witness at

trial.    Defendant also argued she was deprived of her Sixth

Amendment3 right to counsel when Project Freedom Fund, "a phony

nonprofit organization[,]" advised her to retract her guilty plea.

She further argued that appellate counsel rendered ineffective

assistance by failing to raise on appeal the State's use of her

statements to Kahn on rebuttal.

      In a comprehensive August 19, 2015 written opinion, Judge

Martin Cronin denied defendant's motion for a new trial.                The

judge found the State provided the police report, which gave the


2
   Brady v. Maryland, 
373 U.S. 83, 
83 S. Ct. 1194, 
10 L. Ed. 2d 215 (1963).
3
    U.S. Const. amend VI.

                                    9                              A-0487-15T2
substance    of     Milliner's        recorded   statement,    and   the    report

revealed Milliner possessed information that undermined the alibi

theory defendant articulated at trial.

    After         reviewing     the    transcript   of     Milliner's    recorded

statement, Judge Cronin determined it was not exculpatory, but

rather, inculpatory.          Milliner said she was home alone on the day

of the robbery/homicide and first saw defendant when defendant

entered     her     apartment     that    evening   with     Williams,     jointly

possessing money, cell phones, and several credit cards.                        The

judge found that since the robbery/homicide occurred earlier that

day, Milliner's statement undermined defendant's trial testimony

that she was with Milliner at the time of the robbery/homicide.

The judge concluded Milliner's statement would not have changed

the outcome of the trial.

    Judge Cronin also denied defendant's PCR petition without an

evidentiary hearing.          The judge found defendant could not prove

trial counsel was ineffective for failing to demand a hearing

regarding the State's discovery violation or locate and call

Milliner as an alibi witness.              The judge noted that Milliner's

effective denial that she was with defendant at the time of the

robbery/homicide was clearly inconsistent with defendant's alibi

theory.   The judge concluded:



                                          10                               A-0487-15T2
                In   view   of  this   inconsistency   as
           reflected in available discovery, any trial
           counsel decision not to locate or further
           interview Ms. Milliner "falls within the wide
           range of reasonable professional assistance"
           which is not actionable under [the first prong
           of] Strickland [v. Washington, 
466 U.S. 668,
           
104 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984)].
           Additionally, in light of the inculpatory
           effect of Ms. Milliner's statement . . . and
           the overwhelming evidence of guilt . . .
           [defendant] also fails to establish prejudice
           as required by Strickland's second prong.

       Judge Cronin also found defendant could not prove trial

counsel was ineffective for failing to be present at the Kahn

interview.       The judge concluded defendant had no Sixth Amendment

right to counsel concerning her claims of sexual harassment and

official misconduct that were unrelated to the criminal charges,

and she chose to speak to Kahn about the homicide/robbery after

advised she did not have to do so.

       Judge Cronin found that even if defendant had a right to

counsel at the Kahn interview, she could not satisfy the second

Strickland       prong   --     that    counsel's   deficient     performance

prejudiced the defense.         The judge noted that defendant gave three

different accounts of her involvement in the crimes, and admitted

that she lied to the police.           The judge determined it was unlikely

a jury would have found defendant's exculpatory version credible

even    absent     Kahn's     testimony,     especially   in   light   of   the



                                        11                             A-0487-15T2
overwhelming   evidence         against      defendant,    including    her     own

admissions during cross-examination.

     Judge Cronin found appellate counsel had no obligation to

challenge the State's use of defendant's statement to Kahn on

rebuttal.   Citing Kansas v. Ventris, 
556 U.S. 586, 594, 
129 S. Ct.
 1841, 1847, 
173 L. Ed. 2d 801, 809 (2009), the judge concluded

that statements obtained in contravention of a defendant's Sixth

Amendment   right    to    counsel     are    admissible    to   challenge      his

inconsistent testimony at trial.

     Judge Cronin rejected defendant's claim she was deprived of

her Sixth Amendment right to counsel during her motion to withdraw

her guilty plea.     The judge found defendant filed the motion pro

se and against trial counsel's advice, and could not convert her

own bad decision making into a constitutional violation.                     Citing

State v. Taccetta, 
200 N.J. 183, 200 (2009), the judge concluded

defendant could not withdraw her guilty plea and plead guilty

because she certified that she was innocent and the factual basis

for her guilty plea was false.            This appeal followed.

     "[A]   motion   for    a    new   trial    is   addressed   to    the    sound

discretion of the trial judge, and the exercise of that discretion

will not be interfered with on appeal unless a clear abuse has

been shown."   State v. Russo, 
333 N.J. Super. 119, 137 (App. Div.

2000).   "An abuse of discretion only arises on demonstration of

                                       12                                A-0487-15T2
manifest error or injustice[,]" State v. Torres, 
183 N.J. 554, 572

(2005), and occurs when the trial judge's "decision is 'made

without   a   rational     explanation,    inexplicably       departed     from

established   policies,    or   rested    on   an   impermissible   basis.'"

Jacoby v. Jacoby, 
427 N.J. Super. 109, 116 (App. Div. 2012)

(quoting Flagg v. Essex Cty. Prosecutor, 
171 N.J. 561, 571 (2002)).

      To obtain a new trial based on newly-discovered evidence, the

defendant must establish the new "evidence is (1) material, and

not 'merely' cumulative, impeaching, or contradictory; (2) . . .

was   discovered   after    completion    of    the   trial   and   'was    not

discoverable by reasonable diligence beforehand;'" and (3) could

"probably change the jury's verdict if a new trial [was] granted."

State v. Ways, 
180 N.J. 171, 187 (2004) (quoting State v. Carter,


85 N.J. 300, 314 (1981)).

      The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.           State v. Cummings, 
321 N.J.

Super. 154, 170 (App. Div.), certif. denied, 
162 N.J. 199 (1999).

Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a

prima facie claim of ineffective assistance, material issues of

disputed facts lie outside the record, and resolution of the issues

necessitates a hearing.      R. 3:22-10(b); State v. Porter, 
216 N.J.
 343, 355 (2013).     We review a judge's decision to deny a PCR

                                   13                                 A-0487-15T2
petition without an evidentiary hearing for abuse of discretion.

State v. Preciose, 
129 N.J. 451, 462 (1992).

     To establish a prima facie claim of ineffective assistance

of counsel, the defendant

          must satisfy two prongs.       First, he must
          demonstrate that counsel made errors "so
          serious that 'counsel' was not functioning as
          the counsel guaranteed the defendant by the
          Sixth     Amendment."         An    attorney's
          representation is deficient when it [falls]
          below an objective standard of reasonableness.

               Second, a defendant "must show that the
          deficient    performance    prejudiced    the
          defense." A defendant will be prejudiced when
          counsel's errors are sufficiently serious to
          deny him a "fair trial."       The prejudice
          standard is met if there is "a reasonable
          probability    that,   but   for    counsel's
          unprofessional errors, the result of the
          proceeding would have been different."      A
          "reasonable probability" simply means a
          "probability    sufficient    to    undermine
          confidence in the outcome" of the proceeding.

          [State v. O'Neil, 
219 N.J. 598, 611 (quoting
          Strickland, supra, 
466 U.S. at 687-88, 694,
          
104 S. Ct. at 2064, 2068, 
8 L. Ed. 2d at 693,
          698).]

"In order to establish a prima facie claim, [the defendant] must

do more that make bald assertions that he was denied the effective

assistance   of   counsel.   He   must   allege   facts   sufficient    to

demonstrate counsel's alleged substandard performance." Cummings,

supra, 
321 N.J. Super. at 170.     The defendant must establish, by



                                  14                             A-0487-15T2
a preponderance of the credible evidence, that he is entitled to

the required relief.    State v. Nash, 
212 N.J. 518, 541 (2013).

     We have considered defendant's contentions in light of the

record and applicable legal principles and conclude they are

without   sufficient   merit   to   warrant   discussion   in   a   written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

Judge Cronin expressed his cogent written opinion.         We discern no

abuse of discretion in the denial of defendant's motion for a new

trial and PCR petition.

     Affirmed.




                                    15                              A-0487-15T2