On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-04-1277.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Payne and Reisner.
Defendant Audberto Egipciaco appeals from a July 17, 2009 order denying his petition for post-conviction relief (PCR).
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.*fn1
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.*fn2 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. ...