STATE OF NEW JERSEY VS. ACELA E. REGALADAÂ (11-07-0776, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0071-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ACELA E. REGALADA, a/k/a
REGALADO ACELA,
Defendant-Appellant.
_____________________________________
Submitted May 16, 2017 – Decided September 26, 2017
Before Judges Espinosa and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 11-07-0776.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Following a jury trial, Acela Regalada was convicted of third-
degree promoting prostitution, N.J.S.A. 2C:34-1(b)(2). She
appeals the conviction, contending the trial court abused its
discretion by denying her motion to bar the admission of hearsay
statements made by co-conspirators. We affirm the conviction
because there was independent evidence of a conspiracy to promote
prostitution, allowing admission of the statements under N.J.R.E.
803(b)(5).
Defendant's conviction stemmed from an undercover
investigation. On March 30, 2011, Detective Luis Garcia went to
a massage parlor located on Rahway Avenue in Elizabeth and was
greeted by defendant. Two other women also were present. After
brief conversation, defendant told the other two women "to go to
the back and clean the rooms." She explained the price for a
massage and told Garcia "that the girls accept tips for additional
service." She asked Garcia for an "I.D." number and "became very
nervous" when he did not have one. She "took out . . . some index
cards with different colors" from a drawer. Garcia paid $60,
which defendant placed in a white envelope. Garcia followed a
woman named N.R. to a back room where she gave him a massage.
N.R. asked Garcia "if [he] wanted anything else." She told him
that she would "perform sexual intercourse for $200, oral sex for
$140, and a handjob for one-twenty." He declined.
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Defendant left the building while Garcia was still on
location. She was arrested. A white envelope in her possession
contained cash. The officers also arrested N.R. and the other
woman. A search of the premises yielded index cards, each with a
man's name and information such as a four-digit code, phone
numbers, and dates; condoms from N.R.'s purse; two certifications
in defendant's name showing completion of massage courses; and a
work schedule that listed days of the week and female names.
Information obtained by the police from PSE&G showed that the
utilities for the massage parlor were in defendant's name.
On April 21, 2011, Officer Eric Ciano went to the same
location with $200 as part of the investigation. He was met by
N.R. who introduced herself. Defendant was not present. He was
taken to a room where N.R. told him the massage was $80, which
would "go[] to the house and that the minimum tip would be $120."
She seemed uncomfortable with his youthful age, and another woman,
L.P., came in and accepted the eighty dollars before starting the
massage. L.P. asked him "what [he] would like to do after the
massage?" She explained she "would perform oral sex topless for
$160 . . . or she would perform a handjob topless for $120." He
declined.
N.R. and L.P. were arrested. A search of the premises yielded
"index cards very similar to the [prior] ones," with men's names
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on them, condoms and an envelope with cash, which included the
money the officer paid, a cable company transfer work order signed
by defendant, lotions, towels, and cleaning agents.1 There were
no manicure or pedicure stations at the locations. None of the
items seized were consistent with other spa services.
Defendant's pre-trial application to suppress statements made
to the officers by N.R. and L.P. was denied. The trial court was
"satisfied that there is independent proof or evidence suggesting
a conspiracy" based on a statement made by defendant to permit the
admission of statements by N.R. and L.P. under N.J.R.E. 803(b)(5).
Following defendant's conviction by a jury of third-degree
promoting prostitution, N.J.S.A. 2C:34-1(b)(2), she was sentenced
to three years probation.
On appeal, defendant raises the following issue:
THE COURT ABUSED ITS DISCRETION WHEN IT
ADMITTED HEARSAY FROM TWO ALLEGED CO-
CONSPIRATORS WITHOUT SUFFICIENT INDEPENDENT
CORROBORATION OF THE CONSPIRACY. THE
RESULTANT DENIAL OF DUE PROCESS AND A FAIR
TRIAL REQUIRES REVERSAL OF THE CONVICTION.
U.S. Const. amends. VI, XIV; N.J. Const. art.
I, § 1, ¶ 10.
A trial court's evidentiary determinations are reviewed under
an abuse-of-discretion standard. State v. Harris, 209 N.J. 431,
1
Some of the evidence seized on April 21, 2011, was inadvertently
destroyed before trial including the index cards, condoms, and
work order.
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439 (2012). A trial court's ruling will not be disturbed "unless
it can be shown that the trial court palpably abused its
discretion, that is, that its finding was so wide [of] the mark
that a manifest denial of justice resulted." State v. Lykes, 192
N.J. 519, 534 (2007) (alteration in original) (quoting Verdicchio
v. Ricca, 179 N.J. 1, 34 (2004)).
"A statement, made other than by a witness while testifying,
offered to prove the truth of the content of the statement is
hearsay evidence and is inadmissible unless it falls within one
of the hearsay exceptions . . . ." State v. Phelps, 96 N.J. 500,
508 (1984). N.J.R.E. 803(b)(5) provides an exception to the
hearsay rule, permitting a statement made by a co-conspirator to
be admissible against all members of the conspiracy where "the
statement was made while the party and the declarant were
participating in a plan to commit a crime or civil wrong and the
statement was made in furtherance of that plan . . . ." To
qualify, the State must establish "(1) the statement was made in
furtherance of the conspiracy; (2) the statement was made during
the course of the conspiracy; and (3) there is evidence,
independent of the hearsay, of the existence of the conspiracy and
[the] defendant's relationship to it." State v. Cagno, 211 N.J.
488, 530 (2012) (citing State v. Taccetta, 301 N.J. Super. 227,
251 (App. Div.), certif. denied, 152 N.J. 188 (1997)). "[T]he
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independent evidence must be substantial enough to engender a
strong belief in the existence of the conspiracy and of defendant's
participation." Phelps, supra, at 511. The independent proof may
take "many forms" including evidence that is "direct or
circumstantial." Ibid.All three portions of the rule were satisfied here. Defendant
was charged with promoting prostitution by "[o]wning, controlling,
managing, supervising or otherwise keeping, . . . a house of
prostitution . . . ." N.J.S.A. 2C:34-1(a)(4)(a). The statements
made by N.R. and L.P. were "[offers] to engage in sexual activity
in exchange for something of economic value," which met the
definition of prostitution. N.J.S.A. 2C:34-1(a)(1). These
statements were made as part of a plan to conduct prostitution at
that massage parlor location, and they were made while the
operation was in progress.
Defendant's statement that the women would provide other
service was independent proof she was aware of, and promoting, the
prostitution operation. This was corroborated by other evidence.
There was no equipment to provide other types of services such as
manicures or pedicures. The other women took direction from
defendant when she told them to clean the rooms. The electric
service for the premises was in defendant's name. She signed a
cable repair order. Her massage school certificates were
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displayed. Index cards were found that included only male names
and the "employees" were all female. There were condoms. All of
this independently corroborated the prostitution operation, which
permitted introduction of the hearsay statements by defendant's
co-conspirators under N.J.R.E. 803(b)(5).
Affirmed.
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