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.

NOT FOR PUBLICATION WITHOUT THE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.
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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, 2015 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, 2016 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 JUDGE 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.