STATE OF NEW JERSEY VS. DAMARY DIAZ (17-09-0878, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1604-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAMARY DIAZ, a/k/a
DAMARIS DIAZ and
DAMARY DIAZ-TELEDO,
Defendant-Appellant.
_________________________
Submitted December 1, 2020 – Decided February 1, 2021
Before Judges Fisher, Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 17-09-
0878.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael A. Priarone, Designated Counsel,
on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen C. Sayer,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Damary Diaz of second-degree conspiracy to
distribute cocaine in violation of N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:35-
5(b)(1). She was sentenced to nine years in prison with four and a half years of
parole ineligibility. She now appeals, challenging her conviction and sentence.
We discern no reversible errors and affirm.
I.
Defendant and six co-defendants were indicted for conspiracy to distribute
cocaine. The charges arose out of an investigation conducted by the United
States Postal Inspection Service and the Cumberland County Prosecutor's
Office.
Before trial, two co-defendants – Daniel Diaz and Ana Cartagena – pled
guilty to conspiracy to distribute cocaine. Daniel is defendant's brother.
Cartagena, who testified against defendant at trial, explained that she knew both
defendant and Daniel and Daniel had asked her to receive certain packages on
defendant's behalf.1
In 2014, inspectors for the United States Postal Service received a tip from
Daniel Fontanez that cocaine was being mailed from Puerto Rico to certain
addresses in Bridgeton, New Jersey. Fontanez had lived at one of the addresses,
1
We refer to Daniel Diaz as Daniel so as not to confuse him with defendant.
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501 North Pearl Street. When Fontanez made his disclosure to the postal
service, he was a cooperating defendant in an unrelated federal drug prosecution.
Postal inspectors reviewed records of packages mailed from Puerto Rico
to several addresses in Bridgeton, including 35 Duchess Place, 37 Duchess
Place, 481 Indian Avenue, 501 North Pearl Street, and 53 Monroe Street. 2
Defendant and co-defendant Jose Delgado lived at 35 Duchess Place, and
defendant operated her automobile towing business out of 37 Duchess Place.
Other co-defendants, including Daniel and Cartagena, lived at the other
addresses.
Postal inspectors alerted the prosecutor's office, and surveillances were
conducted at several of the addresses on various dates. During those
surveillances, defendant was seen collecting packages sent from Puerto Rico to
different addresses in Bridgeton. Thereafter, investigators obtained a search
warrant, intercepted two packages, and opened them. Those packages contained
ornamental wooden books, and inside those books law enforcement personnel
found four kilos of cocaine. Investigators then installed devices to alert them
when the packages were next opened, repackaged the books with "sham bricks"
2
The addresses were sometimes referred to as being in towns located near or
around Bridgeton.
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composed of benign substances and a representative sample of the narcotics, and
had the packages delivered.
On April 23, 2016, the packages were delivered to two addresses: 481
Indian Avenue and 501 North Pearl Street. Co-defendant Delgado and co-
defendant Juan Toledo-Soto collected the packages, which were subsequently
taken to 37 Duchess Place. Shortly thereafter, investigators received an alert
that one of the packages had been opened and the cocaine inside had been
accessed. Law enforcement officers, bearing a search warrant, then entered the
building. No one was inside, but a surveillance system at the house showed that
Delgado had fled the building shortly before the police arrived. The surveillance
video also showed Delgado carrying two bricks out of the rear of the residence
and placing them inside a vehicle before running. Delgado was located and
arrested in April 2017. The triggering package was found in a back room in the
rear of the house at 37 Duchess Place. During the search of the house, law
enforcement officers found $1,000 in cash, a scale, and numerous empty wooden
books. They also found a financial ledger and priority mail boxes.
Cartagena testified that she was with defendant in Puerto Rico on April
23, 2016, the day law enforcement officers searched 37 Duchess Place. She
explained that defendant received a phone call from co-defendant Ashley
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Acevedo-Diaz, who is defendant's daughter. Acevedo-Diaz told defendant that
police had raided the house. According to Cartagena, defendant was "freaking
out" after the phone call from Acevedo-Diaz. The following day, defendant
instructed Acevedo-Diaz to remove "everything" from a storage unit. Defendant
later spoke with co-defendant Delgado by phone and told him everything had
been taken care of.
As part of their investigation, the postal service identified co-defendant
Ivan Gomez as the person who was mailing the packages from Puerto Rico.
Gomez is defendant's godfather.
The State first identified Fontanez to defendants during trial at a Rule 104
hearing, which was conducted outside the presence of the jury. An investigator
testified that Fontanez had supplied information that suggested drugs were being
mailed "to either one, or a number of the addresses" in Bridgeton. The
investigator did not state that Fontanez had identified defendant.
Defendant's counsel moved for a mistrial, arguing that the State should
have disclosed Fontanez's involvement during discovery. The trial court denied
that motion but prohibited the State from introducing evidence about Fontanez
or any statements he had made that triggered the initial investigation.
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Accordingly, the State did not initially elicit testimony concerning
Fontanez. Instead, in cross-examining one of the investigators, counsel for co-
defendant Gomez asked about and elicited testimony concerning Fontanez and
the initiation of the investigation. Thereafter, Fontanez was discussed several
times during cross-examination of other investigators. Co-defendant Gomez
also testified on direct examination that Fontanez had lived with Daniel at 501
North Pearl Street.
Testimony at trial also revealed that Daniel and Cartagena had pled guilty
to conspiracy to distribute cocaine. The testimony about Cartagena pleading
guilty came out during cross-examination of an investigator by counsel for co-
defendant Gomez. Subsequently, co-defendant Gomez testified that Daniel had
pled guilty to conspiracy. Defendant did not object to any of that testimony.
Defendant also did not object when the State asked follow-up questions
concerning Cartagena's and Daniel's guilty pleas.
Defendant elected to testify at trial. She explained that she practiced the
Santeria religion and that she had received religious artifacts shipped from
Puerto Rico for her shrine at 35 Duchess Place. She acknowledged picking up
packages and contended that she thought those packages contained religious
articles sent by her godfather Gomez. She also explained that Daniel had asked
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her to pick up packages. Finally, she testified that she did not knowingly receive
any packages containing narcotics and had never seen narcotics in her home.
Co-defendant Gomez also testified. He stated that Daniel had asked him
to mail packages from Puerto Rico as a favor, but he did not know what was in
the packages when he mailed them. He also contended that he separately had
mailed Santeria-related items to defendant.
In reviewing the jury charges, the trial court and counsel discussed an
instruction regarding Cartagena's guilty plea. Ultimately, the trial court
instructed the jury that Cartagena's guilty plea was not evidence of defendant's
guilt but could be used in determining Cartagena's credibility. The court did not
give a similar instruction concerning Daniel's guilty plea.
Thereafter, during closing arguments, defendant's counsel stated that
Daniel had pled guilty to conspiracy and argued that Daniel had asked defendant
to pick up some of the packages to protect himself. In response, the State argued
in its closing that Daniel was guilty of conspiracy but was not the ringleader of
the conspiracy.
After hearing the evidence, the jury found defendant guilty of conspiracy
to distribute cocaine. Defendant now appeals from her conviction and sentence.
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II.
On appeal, defendant argues that she did not receive a fair trial because
she could not confront Fontanez about the initiation of the investigation or
Daniel about his guilty plea. She also argues that her sentence was illegal.
Specifically, she articulates her arguments as follows:
I. DEFENDANT WAS DEPRIVED OF A FAIR
TRIAL AND HER SIXTH AMENDMENT RIGHT TO
CONFRONTATION BY THE REPEATED
ADMISSION OF EVIDENCE THAT AN
INFORMANT, WHO NEVER TESTIFIED, HAD
TOLD AUTHORITIES THAT SHE WAS
TRAFFICKING COCAINE[.]
II. DEFENDANT WAS DENIED A FAIR TRIAL
AND HER RIGHT TO CONFRONTATION BY THE
ADMISSION OF EVIDENCE THAT DANIEL DIAZ,
PREVIOUSLY A CO-DEFENDANT, HAD PLED
GUILTY TO THE CONSPIRACY DEFENDANT
WAS BEING TRIED FOR[.]
III. CUMULATIVE ERROR DEPRIVED
DEFENDANT OF A FAIR TRIAL AND REQUIRES
THAT DEFENDANT'S CONVICTION AND
SENTENCE BE REVERSED.
IV. DEFENDANT'S SENTENCE IS ILLEGAL
AND EXCESSIVE AS BASED ON FACTS NOT
PART OF THE RECORD AND A RESULT OF THE
TRIAL COURT'S RELIANCE ON EXTRA-
JUDICIAL FACTS, DISREGARD OF MITIGATING
FACTOR 7 (LACK OF A PRIOR CRIMINAL
RECORD), IMPROPER RELIANCE ON
AGGRAVATING FACTOR 5 (ORGANIZED
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CRIMINAL ACTIVITY) IN THE ABSENCE OF A
JURY FINDING TO THAT EFFECT AND A
RESULTANT ERRONOUS [sic] BALANCING OF
AGGRAVATING AND MITIGATING FACTORS[.]
A. The Testimony Concerning Fontanez
Defendant argues that her constitutional right to confront witnesses
against her was violated. The Sixth Amendment to the United States
Constitution, made applicable to the State through the Fourteenth Amendment,
provides an accused the right to be confronted with witnesses against him or her.
U.S. Const. amend. VI; State v. Roach, 219 N.J. 58, 74 (2014). The New Jersey
Constitution provides a similar guarantee. See N.J. Const. art. I, ¶ 10; Roach,
219 N.J. at 74. The Confrontation Clause prohibits the use of out-of-court
testimonial hearsay not tested by cross-examination unless the person who made
the statement is unavailable to testify at trial and the defendant had a prior
opportunity for cross-examination. Roach, 219 N.J. at 74 (citing Crawford v.
Washington, 541 U.S. 36, 68 (2004)). Accordingly, the Confrontation Clause is
"implicated when a witness refers to specific information from a non-testifying
third party." State v. Weaver, 219 N.J. 131, 152 (2014). The Confrontation
Clause is violated when the hearsay statement is testimonial or meant to
establish events relevant to the current prosecution. Davis v. Washington, 547
U.S. 813, 822 (2006).
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Defendant contends that her constitutional right to confront Fontanez was
violated when Postal Inspector Crockett testified that Fontanez had informed the
service that defendant was receiving packages of cocaine. Defendant's argument
has several flaws.
First, under direct examination, Crockett did not mention Fontanez.
Instead, Crockett testified that he had been supplied with information that
suggested that there were illegal substances being mailed to addresses in
Bridgeton. Accordingly, he did not mention Fontanez, nor did he imply that the
information implicated defendant.
Crockett's testimony arguably could have suggested that the postal service
had received information from a third-party concerning the illegal shipments.
That potential problem, however, was cured because the court sustained
defendant's objection to the testimony and gave a curative instruction to the jury.
Specifically, the trial court told the jury that they were prohibited from
considering Crockett's testimony as evidence of defendant's guilt. Instead, the
jury could consider the testimony only to explain why law enforcement took
further action. Consequently, that instruction cured any potential problem with
Crockett's direct examination.
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The specific mention of Fontanez occurred during cross-examination of
Crockett by counsel for co-defendant Gomez. Defendant did not object to that
testimony. Moreover, when the State clarified the information concerning
Fontanez on re-direct, defendant again did not object. Accordingly, we review
that testimony under the plain error standard. See R. 2:10-2. Unless the
testimony was clearly capable of producing an unjust result, we will disregard
it. State v. Trinidad, 241 N.J. 425, 445 (2020) (quoting State v. Macon, 57 N.J.
325, 336 (1971)) (noting reversal is required "only where the possibility of an
injustice is 'real' and 'sufficient to raise a reasonable doubt as to whether the
error led the jury to a result it otherwise might not have reached'"); State v. J.R.,
227 N.J. 393, 417 (2017) (quoting State v. W.B., 205 N.J. 588, 614 (2011))
(observing that reversal should not follow "a technical or evidentiary error that
cannot have truly prejudiced the defendant or affected the end result") .
In none of the referenced testimony concerning Fontanez did any of the
witnesses say that Fontanez suggested that defendant was receiving packages of
cocaine. Instead, the witnesses who testified about Fontanez stated that he had
identified certain addresses to which packages of cocaine were being shipped.
The testimony concerning Fontanez explained why the investigation was
initiated but did not identify defendant as someone engaging in criminal activity.
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Consequently, we discern no violation of defendant's Confrontation Clause
rights or any plain error.
Defendant correctly contends that the assistant prosecutor in closing made
an improper remark. During her closing, the prosecutor stated: "Now,
remember, Danny Fontenez [sic] came in and gave information about Duchess
Place and specifically cocaine being trafficked from Puerto Rico to Duchess
Place, specifically by [defendant]. Not Daniel Diaz, [defendant]." Defendant
made no objection to that inaccurate remark.
The prosecutor's summation was improper because it was inconsistent
with the actual testimony and evidence at trial. Nevertheless, we hold that the
statement was harmless error. At trial, the State presented strong evidence that
defendant was part of a conspiracy. That evidence included testimony by
various investigators who witnessed defendant picking up packages known to
contain cocaine. Even more significantly, the jury heard testimony from
Cartagena, a cooperating witness who was part of the conspiracy. She described
for the jury the nature of the conspiracy and recounted defendant's reaction to
being informed of the raid on Duchess Place. Consequently, when viewed in
context, the assistant prosecutor's improper statement during closing was not
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capable of producing an unjust result given the State's otherwise strong and
compelling evidence.
B. Testimony Concerning Daniel Diaz's Guilty Plea
Next, defendant asserts that there was testimony and comments that her
brother Daniel had pled guilty to conspiracy, but Daniel himself did not testify.
Accordingly, defendant contends that the testimony and comments were
prejudicial and violated her right to confront Daniel.
It is well-established that the State cannot present evidence that a non-
testifying defendant has pled guilty or been convicted of the same or related
charges. State v. Rucki, 367 N.J. Super. 200, 204 (App. Div. 2004). Moreover,
evidence of a co-defendant's guilty plea cannot be used to infer the guilt of
another defendant. State v. Adams, 194 N.J. 186, 208 (2008) (citing State v.
Stefanelli, 78 N.J. 418, 430-33 (1979)).
When evidence of a guilty plea by a testifying co-defendant is admitted,
the trial court must instruct the jury that the plea can be considered only as to
the credibility of that witness. Ibid. The Confrontation Clause's "truth finding
function" is "uniquely threatened when an accomplice's confession is sought to
be introduced against a criminal defendant without the benefit of cross -
examination." State v. Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994)
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(quoting Lee v. Illinois, 476 U.S. 530, 541 (1986)). We have explained how
these two rules work together:
[T]his rule is based on both the rule against hearsay and
the Sixth Amendment right of confrontation. The Court
[in Stefanelli] observed that a co-defendant's guilty plea
also may be misleading because "[t]here may be, and
often are, many undisclosed or collateral factors
actuating a guilty plea in addition to guilt in fact."
Consequently, the [Stefanelli] Court concluded that
even when a co-defendant testifies at trial, his guilty
plea is inadmissible as substantive evidence of the
defendant's guilt. It is only "admissible to affect [the
co-defendant's] credibility as a witness." Therefore, the
trial court is required "to give the jury a proper
cautionary instruction as to the limited use of this
testimony for credibility purposes."
[Rucki, 367 N.J. Super. at 206 (third and fifth
alterations in original) (quoting Stefanelli, 78 N.J. at
431, 433-34).]
A defendant, however, can introduce testimony concerning a co-
defendant's guilty plea, provided that testimony is otherwise admissible. See
State v. Tormasi, 443 N.J. Super. 146, 149 (App. Div. 2015). In Tormasi, the
defendant had been convicted of murdering his mother. He filed a petition for
post-conviction relief, contending that his father had given an affidavit stating
that the father, not the defendant, had murdered the mother. The PCR court
denied the application, ruling that the affidavit was inadmissible hearsay. Id. at
149-50. We reversed. We explained:
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An accused is entitled to offer a statement against
interest made by another, usually for the purpose of
demonstrating the guilt of another, so long as the
statement falls within the other parameters of N.J.R.E.
803(c)(25); indeed, it is well-established that this
aspect of the rule must "not be applied mechanistically
to defeat an accused's ability to present a defense."
[Id. at 153 (citations omitted) (quoting Biunno, Weissbard & Zegas,
Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 803(c)(25)
(2015)).]
At trial, the State did not introduce evidence of Daniel's guilty plea.
Instead, that evidence was brought out during cross-examination by counsel for
co-defendant Gomez. During cross-examination of Lieutenant Donato, counsel
for Gomez elicited that Daniel and Cartagena had pled guilty to conspiracy.
Moreover, Gomez himself testified that Daniel had pled guilty to conspiracy.
Defendant did not object to that testimony. Indeed, in closing arguments both
co-defendant Gomez and defendant argued that Daniel's guilty plea showed that
he was the guilty person and he had tricked Gomez and defendant into
unwittingly facilitating his illegal activities.
After that door was opened, and in response to defendants' arguments, the
assistant prosecutor asked follow-up questions concerning Daniel's guilty plea
and made a responding argument that Daniel was part of an overall conspiracy,
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but not its ringleader. In that regard, the assistant prosecutor in closing
arguments asserted:
Daniel Diaz was involved. He had his own role. He
was getting packages too. He was getting packages
from [Cartagena's] house. He, in fact, got the second
package and brought it in on April 7th when the second
package was delivered to 501 North Pearl Street . . . So
don't get me wrong[.] Daniel Diaz is guilty of
conspiracy like he pled to.
Because co-defendant Gomez brought out that Daniel had pled guilty and
because both Gomez and defendant argued that Daniel was guilty but they were
not, there was no violation in the State's use of that testimony, nor was there a
violation of defendant's right of confrontation. Instead, defendant used Daniel's
guilty plea as part of her defense strategy. The testimony was not being offered
against her; rather, it was admissible hearsay under N.J.R.E. 803(c)(25), which
Gomez and she used to present a defense.
The State's follow-up questioning and responding arguments in closing
did not constitute reversible error. Gomez and defendant had opened the door,
and the State was therefore allowed "to place the evidence in its proper context."
See State v. Prall, 231 N.J. 567, 582-83 (2018) (quoting State v. James, 144 N.J.
538, 554 (1996)). Moreover, when the State asked for an instruction related to
Daniel's guilty plea, defendant argued that an instruction was not necessary.
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Indeed, defense counsel suggested that the State's better course was to address
the issue in its closing. Accordingly, to the extent that there was any error, it
was invited and, therefore, not a basis for reversal. State v. Corsaro, 107 N.J.
339, 345 (1987) (citation omitted) (pointing out that trial errors that "were
induced, encouraged or acquiesced in or consented to by defense counsel
ordinarily are not a basis for reversal on appeal").
Furthermore, because defendant did not object at trial, her arguments are
evaluated under the plain error doctrine. Trinidad, 241 N.J. at 445; J.R., 227
N.J. at 417. Given that the testimony concerning Daniel's guilty plea was
elicited by a co-defendant and used by defendant, we discern no error that was
clearly capable of producing an unjust result.
C. The Alleged Cumulative Errors
Defendant argues that, even if not individually warranting reversal, the
admission of evidence of Fontanez's statements and Daniel's guilty plea had a
cumulative impermissible effect on the jury and requires reversal of the
conviction. We disagree.
The cumulative effect of trial errors can merit reversal when they "cast[]
doubt on the fairness of defendant's trial and on the propriety of the jury verdict
that was the product of that trial." State v. Jenewicz, 193 N.J. 440, 447 (2008).
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Accordingly, reversal can be justified when the cumulative effect of a series of
errors is harmful, even if each error by itself is harmless. Ibid.The two alleged errors – admission of testimony regarding Fontanez's
statement and Daniel's guilty plea – do not rise to the level of having rendered
the trial unfair. The State presented extensive testimony, including testimony
concerning surveillances, during which defendant was seen collecting packages
that contained cocaine. The testimony concerning Fontanez and Daniel's guilty
plea were relatively limited, considering the entire trial spanned almost three
months and included testimony from twenty witnesses. Moreover, as already
detailed, these two alleged errors were part of the defense's trial strategy and do
not warrant reversal of the jury verdict.
D. The Sentence
Finally, defendant contends that her sentence was excessive and illegal.
Specifically, she argues that the trial court improperly relied on aggravating
factor five in finding that she was involved in organized criminal activity. She
also argues that the trial court erroneously disregarded mitigating factor seven,
her lack of criminal history.
We review sentencing determinations under a deferential standard. State
v. Grate, 220 N.J. 317, 337 (2015) (citing State v. Lawless, 214 N.J. 594, 606
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(2013)). We do not substitute our judgment for "the judgment of the sentencing
court." Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180
(2009); and then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead,
we will affirm a sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[State v. Miller, 237 N.J. 15, 28 (2019) (alteration in
original) (quoting State v. Fuentes, 217 N.J. 57, 70
(2014)).]
In sentencing defendant, the trial court analyzed the applicable
aggravating and mitigating factors. The court found aggravating facto r three,
the risk of re-offense; five, the presence of organized criminal activity; and nine,
the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (5), and (9). The court
adequately identified the facts supporting each of those aggravating factors.
The court then analyzed the mitigating factors and found mitigating factor
seven, that defendant lacked a significant prior criminal history, N.J.S.A. 2C:44-
1(b)(7), but gave that factor only "slight weight" because "the evidence that was
brought out of trial[] . . . [revealed] that there was criminal activity going on
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here long before the [i]ndictment alleged." Consequently, the court found that
defendant "had a substantial period of lawlessness, of organized criminal
activity, prior to the [i]ndictment." That finding is also supported by adequate
evidence in the record.
The trial court then concluded that the aggravating factors substantially
outweighed the mitigating factors and sentenced defendant to nine years in
prison with four and a half years of parole ineligibility. That sentence is within
the guideline range for a second-degree crime; we discern no abuse of discretion,
nor are we shocked by the sentence. Therefore, we reject defendant's arguments
concerning her sentence.
Affirmed.
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