STATE OF NEW JERSEY v. AUBERTO EGIPCIACO

NOT FOR PUBLICATION WITHOUT THE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-3746-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

AUBERTO EGIPCIACO,

     Defendant-Appellant.
_____________________________

                    Submitted January 9, 2019 – Decided January 30, 2019

                    Before Judges Nugent and Mawla.

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

                    Auberto Egipciaco, appellant pro se.

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Maura Murphy Sullivan,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

           Defendant, Auberto Egipciaco, appeals from an order that denied his

second petition for post-conviction relief. We affirm.
      In 2003, a jury found defendant guilty of committing the following crimes

during a violent home invasion: three counts of first-degree armed robbery,

N.J.S.A. 2C:15–1; third-degree aggravated assault, N.J.S.A. 2C:12–1(b)(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:24–4(a); two counts of fourth-degree aggravated

assault, N.J.S.A. 2C:12–1(b)(4); and three counts of third-degree criminal

restraint, N.J.S.A. 2C:13–2(a). On June 24, 2003, the trial judge 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, No. A-0827-03 (App. Div. Feb. 7, 2006) (slip op. at 19-20), certif.

denied,  188 N.J. 270 (2006). On April 28, 2006, he was re-sentenced to the

same term. We affirmed the 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).

      While his direct appeal was pending, defendant filed a PCR petition on

September 29, 2006. Apparently, that petition was dismissed without prejudice

and was re-filed after defendant's direct appeals had been denied. The judge


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who presided over defendant's trial also presided over the evidentiary hearing

on defendant's first PCR petition. The judge denied it. We affirmed State v.

Egipciaco, No. A-3812-09, (App. Div. Sept. 26, 2011), and the Supreme Court

denied certification,  210 N.J. 109 (2012).

      Defendant next filed a Petition for a writ of Habeus Corpus, which was

denied. Egipciaco v. Warren, Civil Action No. 12-4718, 2 015 U.S. Dist. Lexis
 22453 (D.N.J. Feb. 25, 2015). The Third Circuit Court of Appeals denied

defendant's application for a certificate of appealability. Egipciaco v. Warren,

C.A. 15-15-1772 (3rd Cir. Oct. 21, 2015). Defendant filed a Motion for Relief

from Judgment, and the District Court denied the motion. Egipciaco v. Warren,

Civil No. 12-4718, 2 016 U.S. Dist. Lexis 99131 (D.N.J. Jul. 28, 2016). The

Third Circuit denied defendant's application for a certificate of appealability.

Egipciaco v. Adm'r N.J. State Prison, No. 16-3532 (3d Cir. Dec. 5, 2016).

      Two months later, on February 8, 2017, defendant filed this "Motion to

Correct Illegal Sentence." The trial court determined the motion was defendant's

second PCR petition. In an April 3, 2017 written opinion, the trial court denied

the petition.

      On appeal, defendant argues:




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                 POINT 1

THE DEFENDANT'S PERSISTENT OFFENDER
SENTENCE OF 65 YEARS WITH A 29 YEARS
PAROLE BAR IS MANIFESTLY EXCESSIVE,
UNDULY      PUNITIVE   AND     NOT  IN
CONFORMANCE WITH THE CODE OF CRIMINAL
JUSTICE, THE SENTENCE IMPOSED VIOLATED
THE DEFENDANT'S RIGHT TO A TRIAL BY A
JURY UNDER APPRENDI v. NEW JERSEY.

                 POINT 2

THE DEFENDANT'S SENTENCE IS EXCESSIVE[.]
DEFENDANT WAS DEPRIVED OF HIS DUE
PROCESS RIGHT TO A FAIR TRIAL BECAUSE
DESPITE EVIDENCE HIS MENTAL STATE HAD
DECLINED SINCE THE OUTSET OF THE TRIAL,
THE TRIAL COURT FAILED TO REEVALUATE
DEFENDANT'S COMPETENCE (Not Raised Below).

                 POINT 
3

THE TRIAL.J.DGE COMMITTED REVERSIBLE
ERROR BY PERMITTING TESTIMONY FROM
JAIL HOUSE INFORMATION UNDER THE
"HEARSAY EXCEPTION["] WHICH INCULPATED
THE DEFENDANT['S] SIXTH AMENDMENT
CONFRONTATION RIGHTS WERE VIOLATED
ALONG WITH HIS FOURTEENTH AMENDMENT
DUE PROCESS RIGHT TO A FAIR TRIAL. [sic]
THIS IS GROUND FOR MISTRIAL.

                 POINT 4

DEFENDANT'S  CONVICTIONS  MUST   BE
REVERSED AS THE VERDICT WAS AGAINST


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            THE WEIGHT OF THE EVIDENCE. (Not Raised
            Below)

                                     POINT 5

            DEFENDANT    RECEIVED    A    DISPARATE
            SENTENCE    AS   COMPARED     TO   [CO]-
            DEFENDANT'S RENDERING HIS SENTENCE AS
            ILLEGAL FOR UNDERMINING FAIRNESS AND
            PUBLIC CONFIDENCE. MR. EGIPCIACO WAS
            CHARGED WITH THE GRAVES ACT —
            DEFENDANT WILLIAM WAS NOT. THE COURT
            GAVE FAVORABLE JURY INSTRUCTIONS TO
            MR. REYES THAN EGIPCIACO, CO-DEFENDANT
            SENTENCE WAS CREATING DISPARITY. [sic]

                                     POINT 6

            THE COURT ERRED IN NOT GRANTING
            APPELLANT JAIL CREDITS. APPELLANT IS
            ENTITLE[D] TO RECEIVE [H]IS FULL JAIL
            CREDITS NOT GIV[EN] TO HIM DURING HIS
            DETENTION UP UNTIL [H]IS SENTENCING.

      We have considered defendant's arguments in light of the extensive record

and applicable legal principles and found his arguments to be without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only

that defendant's application, if construed as a second PCR petition, was

untimely, as it was not filed within one year of the date of denial of his first

petition, Rule 3:22-12 (a)(2), and falls within none of the rule's other provisions.

In any event, the challenges defendant mounts to his sentence in his first, second,


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and fifth points fail because we have previously considered and rejected

defendant's challenge to his sentence.

      Contrary to defendant's arguments in points three and four, and as detailed

in our opinion affirming defendant's convictions on direct appeal, Egipciaco,

No. A-0827-03 (slip op. at 3-6), the State's abundant evidence amply supported

the jury's verdict and rendered harmless any error concerning the witness

defendant now labels "a jailhouse informant."

      Finally, contrary to defendant's argument, the original judgment of

conviction includes 175 days of jail credit.

      Affirmed.




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