NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-3025.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).
Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Hillary Horton, Deputy Attorney General, of counsel and on the brief).
Before Judges Simonelli, Fasciale and Haas.
Tried before a jury on nine counts of a ten-count indictment,  defendant Myrna Diaz was convicted of first-degree felony murder, N.J.S.A. 2C:11-3a(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 (a knife and a metal bar), N.J.S.A. 2C:39-5d (counts four and six); two counts of third-degree possession of a weapon for an unlawful purpose (a knife and a metal bar), N.J.S.A. 2C:39-4d (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:21-6c (count ten).
At sentencing, the judge merged the conviction for count four into count five, and the conviction for count six into count seven. The judge sentenced defendant to forty years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release, on count one. He imposed a concurrent twenty-year term, subject to NERA, on count three; four separate, concurrent eight-year terms on counts five, seven, eight and nine; and a concurrent eighteen-month term on count ten. Thus, defendant's aggregate sentence was forty years, subject to the eighty-five percent parole ineligibility provisions of NERA. Appropriate fines and penalties were also imposed. We affirm.
The State developed the following proofs at trial. The victim, Jose Cabrera, owned and operated an auto repair shop in Newark. On October 9, 2006, his employees discovered his body lying face down in a pool of blood in the office.
One of the employees flagged down a passing patrol car and detectives from the Essex County Prosecutor's Office were assigned to investigate. The detectives saw that Cabrera had been severely beaten and that his legs and wrists were bound.
In the office, the detectives observed a safe, that had been turned upside down and pried open on the bottom. The detectives found a steel pry bar, a hand truck, an electric drill, an impact gun, a lug wrench, a hammer, and a circular saw inside the office. The employees reported that these items were normally kept in the shop. The detectives also recovered a knife with a broken handle from the scene. There were no signs of a forced entry, which led the detectives to believe Cabrera knew the perpetrators.
Cabrera's family reported that Cabrera always kept two cell phones with him at all times. However, the phones were not found on the premises. Further investigation revealed that one of the phones had been used to call Warner. The detectives also learned that Cabrera's credit card had been used after his death at three local stores and a gas station. Less than $1000 had been charged to the account.
A loss specialist for one of the stores supplied the detectives with a surveillance video. The video was date-stamped October 10, 2006. Defendant was seen on the video with Warner bagging groceries. The video also showed Warner swiping Cabrera's credit card at the register. However, the card was declined, and defendant and Warner then left the store.
On October 18, 2006, the detectives located defendant and asked her to come to the police station for questioning. She agreed to do so and gave a recorded statement to Detective Peter Chirico after he provided her with the standard Miranda warnings. Defendant denied having any knowledge about what had happened to Cabrera. The tape was played for the jury.
Detective Chirico did not arrest defendant at that point. Instead, he made arrangements for her to be transported to "wherever she was going." While waiting for her ride, however, defendant approached the detective and asked to speak to him. After again reading her the Miranda warnings, Detective Chirico took a second, recorded statement from defendant. This recording was also played for the jury.
This time, defendant stated Cabrera was her former boyfriend and that she had visited him at his shop on October 6, 2006. After she left, she saw Warner and Williams at the corner and they stopped to ask her about the shop. She knew both men and, over the past "two to three weeks[, ]" she had been sexually intimate with Williams. Defendant stated Williams refused to let her leave. The men told defendant she had to accompany them to the shop.
Defendant also stated that, on Sunday, October 8, 2006, she and the two men went to the shop. Warner went in first and punched Cabrera. Warner and Williams wanted Cabrera to open the safe, but he refused. The men continued to hit Cabrera and defendant stated "they were hitting [him], they were punching and then they used a long metal piece, it looked like part of a car or a truck or something." Defendant claimed they told Cabrera, "open the safe or I'm going to slit your girlfriend's throat . . . ." Williams then told Warner to take defendant to the garage and he did so.
Defendant stated Williams began to beat Cabrera and she could hear "hitting" and "banging" as Williams tried to open the safe. Defendant claimed Warner held a knife to her throat while they were in the garage to keep her from leaving. When Williams later came into the garage, defendant saw that "his boots were bloody." Williams kept "going in and out" of the office and Warner kept watch. Defendant stated that when Williams "came out for the last time, he just said, let's go. Get up and let's go." As she left, defendant saw Cabrera lying on the floor and "there was blood, a lot of blood . . . ."
Defendant admitted that Cabrera's credit cards were taken from the office. She also admitted using one of the cards with Warner "to buy bulk ...