STATE OF NEW JERSEY v. AUDBERTO EGIPCIACO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3812-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AUDBERTO EGIPCIACO,

Defendant-Appellant.

________________________________

September 26, 2011

 

Submitted September 13, 2011 - Decided

 

Before Judges Payne and Reisner.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-04-1277.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Audberto Egipciaco appeals from a July 17, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I

The trial record is summarized in detail in our prior opinion on defendant's direct appeal. State v. Egipciaco, No. A-0827-03 (App. Div. Feb. 7, 2006), certif. denied, 188 N.J. 270 (2006). To put the current appeal in context, we begin by summarizing the most pertinent facts. The State presented evidence that at around 7:15 p.m. on January 23, 2001, defendant and an accomplice committed a violent, armed home invasion robbery. Instead of robbing strangers, defendant robbed people who knew him. Although defendant and his co-defendant were masked, three of the victims testified that they recognized defendant by his voice, his eyes, and his ponytail. One of those victims testified that she had known defendant for about twenty years. As defendant and his co-defendant were leaving the scene of the robbery, they removed their masks just as a family friend of the victims, who also knew both of the robbers, was arriving on the scene. One of the victims shouted out a window to this witness that two men had just robbed her. The witness saw the men removing their masks, recognized them, and called 9-1-1.

In his defense, defendant presented an alibi witness, Maria Concepcion, who testified that she was with defendant at the time of the robbery. According to Concepcion, defendant picked her up from work, took her to a Pathmark grocery store, and then took her home, where he spent the entire evening with her. The defense introduced a video showing Concepcion walking through the Pathmark store with a man she testified was defendant. The video bore a date and time of January 23, 2001 at 6:35 p.m. In rebuttal, the State produced employment records showing that on January 23, Concepcion was at work at a local hospital from 2:29 p.m. to 10:49 p.m. The State also produced testimony that the Pathmark store was a few minutes' drive from the scene of the robbery.

After three days of deliberations, the jury convicted defendant of these offenses: three counts of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); second-degree burglary, N.J.S.A. 2C:18-2; two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a; two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and three counts of third-degree criminal restraint, N.J.S.A. 2C:13-2a. On June 24, 2003, Judge Natal sentenced defendant to an aggregate term of sixty-five years with approximately thirty years of parole ineligibility. We affirmed defendant's conviction on his direct appeal but remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Egipciaco, supra, slip op. at 18. He was re-sentenced to the same term.

We affirmed the re-imposed sentence on an Excessive Sentence Oral Argument calendar on July 24, 2007, and the Supreme Court denied certification. State v. Egipciaco, 193 N.J. 221 (2007). This PCR petition followed.1

In his PCR petition, defendant accused his trial counsel of providing ineffective assistance, including failing to call additional alibi witnesses. In support of his petition, defendant filed an affidavit from Concepcion, attesting that her two sons were with her and defendant "on the evening of January 23, 2001, and January 24, 2001." Defendant also submitted affidavits from the sons, William and Luciano Concepcion, attesting that defendant was in their "company" on those two days, and that they were willing to testify at defendant's trial but were not given the opportunity to testify. In a brief prepared by his assigned counsel, defendant contended that his trial counsel failed to effectively cross-examine witnesses, did not object to the jury charge on accomplice liability, did not present expert testimony, did not consult with defendant about his case, did not "properly advise" defendant about his right to testify, and generally did not sufficiently prepare for trial.

Judge Natal, who had also presided over the trial, permitted defendant an evidentiary hearing on his PCR petition. At that hearing on July 17, 2009, defendant testified that his trial attorney had failed to subpoena defense witnesses. According to defendant, he asked the attorney to subpoena Maria Concepcion's sons, William and Luciano, as well as Carmen Gravis and Claire Robinson. Defendant testified that he was with these individuals at the time of the crime. He also testified that he only met with his trial counsel "a few times" and he did not think that was sufficient. When he suggested calling the additional alibi witnesses, his attorney told him they "were not really necessary." Defendant testified that he did not insist that his attorney call the additional witnesses, because he was taking psychiatric medication and was not thinking straight. Defendant did not produce any medical records to corroborate that testimony.

According to defendant, he told his trial attorney that he wanted to testify at his trial. However, the attorney advised against it because defendant had a criminal record and the jury would not believe his testimony. Defendant also testified that on the third day of the jury deliberations, his attorney told him that the State had offered a plea deal "of five years." His attorney advised defendant that "if he were me . . . that they've [the jury] already been deliberating for three days and that if he were me he wouldn't take it, that it could be that I would go free." Defendant rejected the plea offer. Defendant claimed that he was "confused" at the time, because he was taking medication and did not understand his attorney's advice.

On cross-examination, defendant admitted that he never told his trial attorney that he was taking medication "that was leaving [him] confused." Defendant also admitted that after his attorney advised him not to testify at his trial, due to his lengthy criminal record, he decided not to testify. He insisted that Claire Robinson and Carmen Gravis were Pathmark employees who saw him at the store; however, he admitted that his attorney actually called both of those women as witnesses.2 He admitted that the Concepcion brothers, then ages sixteen or seventeen and twenty or twenty-one, were not with him at the Pathmark store. However, he claimed that he and Maria went to the brothers' house after leaving the Pathmark store and "spent the rest of the night with them."

In an oral opinion placed on the record immediately after the hearing, Judge Natal first found that the alleged alibi witnesses would not have helped defendant's case. Neither of them was at the Pathmark store. Moreover, according to Maria Concepcion's trial testimony, one of the sons had taken her car and was not at home that evening. Therefore, calling the sons as alibi witnesses would have contradicted her testimony.

He also addressed and rejected defendant's additional contentions included in his pro se brief and in his attorney's brief. Citing State v. Cerbo, 78 N.J. 595, 605-08 (1979), and State v. Cacamis, 230 N.J. Super. 1, 5 (App. Div. 1988), Judge Natal reasoned that a PCR petition may not "be used as a substitute" for a direct appeal. He therefore concluded that defendant could have raised the alleged inadequacy of the jury charge on direct appeal and was barred from raising the issue on a PCR petition under the guise of "ineffective assistance of counsel." He rejected defendant's "claim as to [an] alleged discovery violation" because that claim had already been raised and "specifically adjudicated" on defendant's direct appeal. See R. 3:22-5.

The judge concluded that defendant's additional claims of ineffective assistance were mere "[bald] assertions" unsupported by legally competent evidence. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). For example, defendant did not provide any certifications attesting to the substance of any proposed expert report, or as to what any additional investigation by his counsel would have revealed that might have helped the defense. The judge noted that defendant did not call Luciano or William Concepcion to testify at the evidentiary hearing. Further, he noted that their affidavits did not specify the times of day when they were with defendant on January 23 and 24, 2001, and therefore did not establish an alibi.

Based on his own observations during the original trial, Judge Natal concluded that defendant's trial counsel did a thorough and zealous job of representing him, including obtaining the Pathmark video and making multiple mistrial motions. The judge also recounted that the pre-trial Sands3 hearing revealed that defendant had seven prior criminal convictions. He found that defendant's attorney appropriately advised defendant about the pitfalls of testifying and defendant voluntarily and knowingly waived his right to testify. The judge did not find defendant's hearing testimony credible. In particular, he did not believe that defendant did not understand his counsel's advice or that his thought process was clouded by medication.

 

II

On this appeal, defendant once again raises the issues that he asserted before Judge Natal in his PCR petition. He presents the following points for our consideration:

POINT I: THE PCR COURT ERRED IN DENYING PETITIONER'S [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF AS THE CONDUCT OF TRIAL COUNSEL WAS INEFFECTIVE.

 

POINT II: PETITIONER REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

 

(I)

 

Petitioner claimed that he should be granted a new trial based on the ineffectiveness of trial counsel which violated Article 1 Paragraph 10 0f the New Jersey Constitution and the Sixth Amendment of the United States Constitution specifically, Petitioner claimed that, (A) trial counsel failed to call essential witnesses to testify at trial; (B) trial counsel failed to cross-examine in an effective manner; (C) trial counsel failed to object at the jury charge on accomplice liability; (D) trial counsel failed to hire an appropriate expert witness to testify at trial; (E) trial counsel failed to consult with the defendant; (F) trial counsel was ineffective for not properly advising defendant on his right to testify; and (G) trial counsel failed to prepare for trial.

(II)

 

Trial counsel was ineffective for failing to use evidence of Carmen Garcia's convictions to impeach her credibility.

 

 

 

(III)

 

The trial court erred when it admitted impermissibly suggestive out of court and tainted court identifications of the defendant.

 

(IV)

 

The prosecutor's failure to provide defendant's counsel with new incriminating testimony of eyewitnesses was a discovery violation, and therefore, the trial court erred in denying his motion for a mistrial following surprise incriminating testimony, which had not been disclosed to the defense and deprived the defendant of his constitutional rights, to due process and a fair trial.

 

(V)

 

Trial counsel was ineffective for failing to object and to file any in limine motions prior to trial at the end of the State's case, to have Counts VII and VIII dismissed because the verdicts as to endangering the welfare of a child, contrary to courts Count VII and VIII was against the weight of the evidence and denied the defendant of a fair trial.

 

(VI)

 

Because of counsel's ineffective assistance, the Court denied defendant's due process of law and fair trial by restricting his counsel's opening statements.

 

 

(VII)

 

Counsel was ineffective for failing to object to a jury instruction that amounted to an ultimatum.

 

(VIII)

 

Cumulative errors by trial counsel amounted to ineffective assistance of counsel.

 

(IX)

 

Defendant was denied the effective assistance of counsel on direct appeal in violation of the Constitution.

 

(X)

 

The cumulative effect of trial court errors violated the common law in New Jersey and due process clause in the United State[s] Constitution.

 

(XI)

 

Defendant is entitled to an evidentiary hearing to support his petition for post-conviction relief.

 

(XII)

 

Defendant is entitled to an evidentiary hearing on his petition for post-conviction relief.

To the extent that these contentions were or could have been raised on direct appeal, they are barred by Rule 3:22-4 and Rule 3:22-5. Those arguments not barred by the Rules are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Having reviewed the record, including the original trial transcript, we affirm substantially for the reasons stated in Judge Natal's opinion. We add the following comments.

Judge Natal conducted an evidentiary hearing on the PCR petition and did not find defendant to be a credible witness. We are bound by the judge's factual findings so long as they are supported by sufficient credible evidence, and we owe special deference to his credibility determinations. See State v. Locurto, 157 N.J. 463, 470-74 (1999). We find no basis in this record to disturb the judge's findings that defendant's thinking was not clouded by medication, he understood his attorney's advice, and he knowingly waived his right to testify. We also agree with Judge Natal that defendant's "bald assertions," concerning his attorney's failure to call witnesses and other alleged ineffective representation, did not meet the standard required to establish ineffective assistance of counsel. See State v. Cummings, supra, 321 N.J. Super. at 170. By way of example, defendant contends that his trial counsel failed to cross-examine one of the State's witnesses, Carmen Garcia, about her prior convictions. But defendant did not produce any evidence as to what prior convictions Garcia had, nor how they might have affected her credibility as a witness.

With respect to the State's plea offer, defendant did not testify that he wanted to accept the offer or that he would have accepted the offer had his attorney given him different advice. Nor did he establish that his attorney's advice was legally inappropriate, particularly in light of the jury's extended deliberations. In order to establish ineffective assistance of counsel, defendant must establish not only that his counsel did not provide competent representation but that, to a reasonable probability, counsel's ineffective assistance affected the outcome. Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2065, 2080, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

In State v. Taccetta, 351 N.J. Super. 196 (App. Div.), certif. denied, 174 N.J. 544 (2002), we recognized that an attorney's failure to properly advise a defendant during plea negotiations may constitute ineffective assistance of counsel:

[W]e agree with those jurisdictions that have held that an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance.

 

[Id. at 200.]

 

See also United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). However, in this case, defendant did not prove either that his attorney grossly misadvised him or that he likely would otherwise have accepted the offer. Tacetta, supra, 351 N.J. Super. at 200.

Finally, we find no merit in defendant's claim that his appellate counsel was ineffective for failing to raise certain arguments on his direct appeal. None of those arguments would have succeeded. In particular, the trial court's accomplice charge was quite thorough and completely unobjectionable. Defendant's arguments concerning his appellate counsel's representation are without sufficient merit to require further discussion here. R. 2:11-3(e)(2).

Affirmed.

 

1 While his direct appeal was pending, defendant had filed a PCR petition on September 29, 2006. Apparently, that petition was dismissed without prejudice and was re-filed after all of defendant's direct appeals had concluded.

2 The trial transcript reveals that these witnesses did not testify. There is no indication why they did not appear at the trial. However, defendant did not provide certifications from either witness to support his PCR petition.

3 State v. Sands 76 N.J. 127 (1978).