On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-06-0831 and 05-02-0255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2009
Before Judges Carchman and R.B. Coleman.
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).*fn1
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,*fn2 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,*fn3 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 ...