NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-07-01251.
Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief).
Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Ditzhazy, on the brief).
Before Judges Fisher and Leone.
Defendant Germania Terrero appeals her judgment of conviction for numerous offenses. She concedes that the evidence was sufficient to show that she conspired with her lover Kristian Molina to rob and burglarize the restaurant owned by her employer and boyfriend Aracelio Lopez, whom Molina stabbed during the crime. She contends, however, that the evidence was insufficient to show that she knew or had reasonable ground to know that Molina and co-conspirator Robert Santana would be armed or that Molina intended to cause serious bodily injury that resulted in Lopez's death. We reject her contention. We also reject her claims of plain error in the jury instructions and the prosecutor's summation.
"[G]iving the State the benefit of all its favorable testimony, " State v. Reyes, 50 N.J. 454, 459 (1967), the trial evidence introduced by the State showed as follows. In approximately 1999, Lopez hired defendant as a waitress at El Balcon, a restaurant and bar that he owned in West New York. After a year or so, defendant, who was in her mid-thirties, and Lopez, who was over sixty, began an amorous relationship. Defendant and her two daughters moved into Lopez's apartment. Because that violated the building's occupancy rules, Lopez rented another apartment in the building for defendant's daughters, while defendant lived with Lopez.
Little by little, Lopez gave defendant more control over the restaurant. By the time of his death, she was manager of the upper floor, ran the restaurant in his absence, and was regarded as the boss by some employees. Four of defendant's relatives got jobs in the restaurant, including her oldest daughter. In January 2006, Lopez revised his will to provide in the event of his death that defendant would operate the restaurant with his friend Alejandro Ortiz, and that defendant would share in the profits and the proceeds of any sale of the restaurant. It is undisputed that defendant knew of this "New Jersey" will, which her sister witnessed and which Lopez kept in the apartment he shared with defendant.
By October 2007, however, defendant had met Molina, with whom she was soon sexually active. Lopez suspected she was having an affair. In November, defendant and Lopez had a domestic dispute when he questioned her whereabouts. By December, she moved into her daughters' apartment.
Also in October 2007, Molina met Santana. Molina told Santana that he was in an amorous relationship with a lady who had a restaurant. Molina took Santana to the restaurant and pointed out defendant. Around Christmas 2007, Molina asked Santana if he would be interested in robbery or stealing. Santana initially declined.
By New Year's Eve, defendant and Molina were frequently together, defendant often stayed at Molina's apartment, and Molina came to the restaurant when Lopez was absent. Molina told Santana that Lopez was accusing defendant of cheating on him, and threatening her that there would be problems if she was with another man. Molina said that defendant felt attacked and that Lopez was not leaving her alone. Molina was upset.
Around January 2008, while Lopez was on vacation, defendant, claiming that she had lost her keys to Lopez's apartment, obtained new sets of keys from the building manager. Defendant then gave Molina the key to Lopez's apartment. On February 15, 2008, Lopez discovered that his apartment had been burglarized. His gold rings and gold necklace were torn from a pillow where he kept his jewelry, but the burglar had not touched defendant's jewelry, the television, or the stereo. Molina told Santana that he had taken the jewelry from the apartment using the key he had gotten from defendant.
In January or February 2008, Molina tried to solicit other men to send Lopez "to the hospital" for disrespecting defendant. Molina said that Lopez was hitting defendant and sent her to the hospital. Molina was very angry when he talked about Lopez and defendant together. Molina took the men past the restaurant and Lopez's apartment. Molina told one man he wanted to rob the restaurant and beat up Lopez, and that the man could reach Molina at either his or defendant's phone number. Molina was unable to get either man to do the job.
On March 1, 2008, Molina again approached Santana, saying that they were going to rob the restaurant. Molina said that defendant would leave the door unlocked or open, and that "everything was going to be planned out." Defendant called Santana several times to talk to Molina. Molina assured Santana that "everything would be easy and that . . . we wouldn't spend too much time there because everything was planned." Santana responded that he would join in the robbery if "we don't have to hurt anybody."
Molina told Santana that defendant was going to make sure no one was in the restaurant besides her and Lopez. Normally, Lopez, defendant, her daughter, and the other employees left together at 2:00 a.m., with Lopez and defendant giving the cook a ride home. On March 3, 2008, however, "it wasn't the same routine": defendant's daughter left just after midnight; the restaurant closed earlier, the employees leaving around 1:50 a.m.; and defendant told the cook to go home without offering her a ride. Defendant was unusually quiet.
On March 3rd at 1:42 a.m., defendant called Santana trying to reach Molina. Santana told her to call Molina at his apartment. Molina soon summoned Santana to his apartment. When Santana arrived, Molina told him that he had spoken to defendant, and Molina related the plan for robbing the restaurant. Molina said defendant would leave the door open and would send Lopez into the kitchen for something so Molina and Santana would have a chance to enter. Molina instructed that he and Santana were to speak English so Lopez would not recognize their voices and ethnic background. They were not disguising their voice for defendant "because she was the one who planned it and she knew we were heading over there."
After Santana arrived at Molina's apartment, Molina gave him a small machete, telling him to take it because "you don't know what kind of surprise the person who you're going to perform the robbery against could give you." Molina took Santana's cellphone because defendant was going to call on that phone, allegedly because the battery of Molina's phone was dead.
Molina and Santana drove to the restaurant, and waited out front for defendant to call with the signal. Molina had the phone by his ear a number of times, with calls from defendant at 2:18, 2:19, 2:20, and 2:21 a.m. In the last call, defendant gave Molina the signal, and Molina told Santana they were to enter. Meanwhile, Lopez had gone into the kitchen to warm up some soup.
Molina and Santana entered through the open front door. Defendant was by the bar, and Lopez was coming out of the kitchen. Molina grabbed the surprised Lopez, pulled him to the floor, and began attacking him and kicking him in the face.
Santana, scared, pushed Molina and asked why he was doing this. Molina replied, "shut up, n*gger." Defendant also pushed Molina, and in Spanish asked what he was doing, said "not like this" and screamed "no." Santana noticed, however, that she was not crying, and her tearless screams and protests seemed "fake" and "not for real." Molina said "shut the f*ck up, b*tch" in English, even though Molina knew that defendant speaks Spanish. Defendant then stepped back and let the assault proceed.
Seeing the anger in Molina's face, Santana left the restaurant two minutes after entering. Molina exited the restaurant thirty seconds later. They argued as they walked to the car. Neither man took any money from the restaurant; Molina took only Lopez's Rolex watch and jewelry. Santana saw a knife in Molina's hands. Molina said that Lopez did not stay still, so Molina had to stab him.
In fact, Molina had given Lopez a stab wound that was twelve-to-fifteen-inches deep and exposed his intestines. Lopez's face was bleeding and his face, ears, and eye were bruised. Defendant, however, waited fifteen to twenty minutes to call 9-1-1. Even then, she just said "El Balcon, emergencia, " and hung up without requesting an ambulance.
Just before 2:48 a.m., an employee, Deocelius Negron, returned to leave his car in the restaurant parking lot. Through the restaurant window, he saw defendant gesture to attract his attention. When he entered, defendant was screaming that they had been robbed, but Negron thought she "was acting like she was crying and screaming but she was not crying, there were no tears."
When the police arrived, they saw the restaurant had security cameras, and asked defendant if the cameras were recording. Officer John Alvarez observed that defendant, who had been very calm, became nervous. When it was determined that the cameras ...