The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-4138-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARWIN MCKOY,
Defendant-Appellant.
_______________________________
Submitted September 25, 2017 – Decided October 4, 2017
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
13-12-3133.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief.
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Santoliquido,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Marwin McKoy was charged in Atlantic County
Indictment No. 13-12-3133 with third-degree possession of heroin,
N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of
heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
2C:35-5(b)(13) (count two); second-degree unlawful possession of
a weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (count four); fourth-degree possession of a defaced firearm,
N.J.S.A. 2C:39-3(d) (count five); second-degree possession of a
handgun while in the course of committing, attempting to commit
or conspiring to commit the crime of distributing heroin, N.J.S.A.
2C:39-4.1 (count six); and second-degree certain persons not to
have weapons, N.J.S.A. 2C:39-7 (count seven). Prior to a
bifurcated jury trial, the State dismissed counts two, four, and
six, and severed count seven. In the first trial, defendant was
found guilty of counts one and three. In the second trial, the
same jury convicted defendant of count seven.
The trial court sentenced defendant to a five-year term of
imprisonment on the conviction for third-degree possession of
heroin. The court imposed a concurrent ten-year term of
imprisonment, with five years of parole ineligibility pursuant to
the Graves Act, N.J.S.A. 43-6(c), for the second-degree unlawful
possession of a weapon conviction. The court granted the State's
2 A-4138-15T1
motion for an extended term, treated defendant as a persistent
offender pursuant to N.J.S.A. 2C:44-39(a), and sentenced defendant
to a concurrent term of fifteen years, with seven and one-half
years of parole ineligibility, for the second-degree certain
persons not to have weapons conviction.
At the time of sentencing, defendant was serving an aggregate
prison term of five years, with two and one-half years of parole
ineligibility for violations of probation on four separate
indictments.
On appeal, defendant raises, through counsel, the following
arguments:
POINT I
MCKOY WAS PREJUDICED AT HIS TRIAL ON THE
CERTAIN-PERSONS GUN CHARGE WHEN THE JUDGE
FAILED TO SANITIZE HIS PREDICATE OFFENSE.
(Not raised below)
POINT II
WHEN MCKOY ASKED THE COURT WHY HE COULD NOT
FIRE HIS TRIAL COUNSEL, THE COURT VIOLATED
MCKOY'S CONSTITUTIONAL RIGHT TO REPRESENT
HIMSELF BY FAILING TO INFORM HIM OF THAT
RIGHT.
POINT III
THE MATTER SHOULD BE REMANDED FOR RESENTENCING
SO THAT THE JUDGE CAN CONSIDER WHETHER THE
SENTENCE SHALL RUN CONCURRENT WITH THE
SENTENCE THAT MCKOY WAS SERVING FOR A
VIOLATION OF PROBATION.
(Not raised below)
3 A-4138-15T1
Defendant raises the following additional points in his pro
se supplemental brief:
POINT I
THE STATE POLICE MANUFACTURED EVIDENCE AGAINST
[DEFENDANT] IN VIOLATION OF U.S. CONST. AMEND.
IV., V., XIV. AND N.J. CONST. ART. I, P.1, &
7 AND [DEFENDANT]'S CONVICTIONS SHOULD BE SET
ASIDE.
(Not Raised Below)
POINT II
POINT I SUPRA, NOTWITHSTANDING, THE STATE
VIOLATED BRADY[1] BY CONCEALING OR SUPPRESSING
THE CELL PHONE THAT THE STATE POLICE ALLEGED
TO HAVE WITNESSED APPELLANT USING ON "AUGUST
2, 2013."
(Not Raised Below)
POINT III
POINT I SUPRA, NOTWITHSTANDING, [DEFENDANT]'S
CONVICTIONS SHOULD BE SET ASIDE AS THEY ARE
THE RESULTANT EFFECTS OF HIS ENTRAPMENT.
(Not Raised Below)
POINT IV
THE STATE VIOLATED [DEFENDANT]'S RIGHT TO A
FAIR TRIAL BY (i) POSITING TO THE JURY THAT
THE SP/TSP WERE CONDUCTING SURVEILLANCE BASED
UPON "INFORMATION RECEIVED;" (ii) UNFAIRLY
INJECTING N.J.R.E. 404(b) EVIDENCE INTO ITS
(a) OPENING AND CLOSING STATEMENTS, AND (b)
DIRECT EXAMINATIONS; AND (iii) SUBORDINATING
ITS WITNESSES TO COMMIT PERJURY.
(Not Raised Below)
1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).
4 A-4138-15T1
POINT V
[DEFENDANT]'S DUE PROCESS AND CONFRONTATION
RIGHTS WERE VIOLATED WHEN THE ALLEGED "CS" WAS
NOT PRESENTED DURING/FOR [DEFENDANT]'S TRIAL,
AND THE STATE, AND ITS ACTORS, AVERRED TO THE
EXISTENCE OF THE "CS" DURING THE TRIAL OF
APPELLANT.
(Not Raised Below)
For the reasons that follow, we affirm defendant's
convictions, but remand for resentencing.
I.
We summarize the pertinent facts from the trial record. On
August 2, 2013, State Police troopers, assigned to a tactical
unit, were conducting surveillance operations from an unmarked van
near Michigan and Caspian Avenues in Atlantic City. The troopers
had established surveillance at this location, based on
information received, to effectuate a "rip detail," which was
defined at trial as the takedown of a suspect.
Defendant walked slowly by the van, and appeared to be looking
for someone. Defendant began speaking on his cell phone,
approached the van, and looked directly into it from a distance
of approximately five feet. Defendant was carrying a black plastic
bag and a rolled-up white T-shirt. Troopers recognized defendant
from prior law enforcement contact, exited the van, announced
themselves as, "State Police," and instructed him to get on the
ground. Instead, defendant attempted to flee, resisting the
5 A-4138-15T1
troopers' attempts to handcuff him.2 Subsequent to defendant's
arrest, troopers recovered twenty bags of heroin from inside the
bag, and a loaded .22 caliber, semi-automatic handgun from inside
the T-shirt.
During his pretrial conference, defendant expressed
dissatisfaction with his appointed counsel and inquired as to why
she could not be fired. The remainder of the colloquy, between
defendant and the court, is replete with defendant's
interruptions. Eventually, defendant was removed from the
courtroom and a trial date was scheduled. The same attorney
continued to represent defendant throughout the remainder of the
trial proceedings, including sentencing.
At the first trial, the State presented testimony from five
law enforcement officers. Defendant testified in his own behalf.
On cross-examination, consistent with the court's pretrial ruling
following a Sands/Brunson3 hearing, the State adduced testimony
from defendant that he had been convicted on eight prior
occasions.4 Consistent with Brunson, testimony concerning the
2
Defendant was not charged with resisting arrest.
3
State v. Sands, 76 N.J. 127, 141 (1978); State v. Brunson, 132
N.J. 377 (1993).
4
Defendant does not challenge the court's ruling on appeal.
6 A-4138-15T1
nature of the offenses was not elicited from defendant. In light
of the stipulation, no witnesses testified at the second trial.
II.
A.
For the first time on appeal, defendant argues that the trial
court's jury charge in the second trial for the certain persons
offense was erroneous. Specifically, defendant argues he was
deprived of due process and a fair trial because the trial court
failed to sanitize the nature of his qualifying conviction pursuant
to State v. Brown, 180 N.J. 572 (2004), and the related model jury
charge. See Model Jury Charges (Criminal), "Certain Persons Not
to Have Any Firearms [N.J.S.A. 2C:39-7(b)(1)]" (2005) ("Model
Charge"). Defendant maintains that although he stipulated to the
nature of the predicate offense, that is, possession of a
controlled dangerous substance with intent to distribute, the jury
should have been instructed only of the bare fact that he was
convicted of a predicate offense.
We evaluate defendant's newly-minted argument criticizing the
jury charge under a plain error standard of review. R. 1:7-2; R.
2:10-2; State v. Singleton, 211 N.J. 157, 182-83 (2012). When a
defendant fails to object to a jury charge at trial, we review for
plain error, and "disregard any alleged error 'unless it is of
such a nature as to have been clearly capable of producing an
7 A-4138-15T1
unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016)
(quoting R. 2:10-2). Plain error, in the context of a jury charge,
is "[l]egal impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently grievous to
justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring about
an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014)
(alteration in original) (quoting State v. Adams, 194 N.J. 186,
207 (2008)).
Aside from its belated nature, defendant's argument that his
predicate offense should have been sanitized is fundamentally
flawed on its merits. Pursuant to N.J.S.A. 2C:39-7, a person
convicted of certain predicate offenses, who "purchases, owns,
possesses or controls a firearm is guilty of a crime of the second
degree." A defendant may stipulate to a prior conviction, and
this stipulation is conclusive evidence of the predicate offense
conviction element where, as here, all the government needs to
prove is that the defendant falls into the class of persons
precluded from possessing a weapon. Brown, supra, 180 N.J. at
585. "[A] defendant's offer to stipulate does not preclude using
evidence of the name and nature of a prior conviction if there is
any other purpose for its admission." Ibid.
8 A-4138-15T1
Unlike the defendant in Brown, defendant chose to inform the
jury of the name of the prior crime for which he was convicted.
The Model Charge notes specifically, "[u]nless the defendant
stipulates, . . . the prior crimes should be sanitized." Model
Charge, n.4, (citing Brown, supra, 180 N.J. at 585). The Model
Charge notes further, "[n]othing prevents a defendant, however,
from choosing to inform the jury of the name of the prior crime
of which he/she was convicted." Ibid. (emphasis in original).
After the verdict in the first trial, the trial court
instructed the jury that there was a fourth charge for its
consideration, that is, "possession of a firearm by a previously
convicted person." After properly charging the jury that it "must
disregard completely [its] prior verdict and consider anew the
evidence previously admitted on the possession of a weapon" charge,
the trial court read the remainder of the Model Charge.
As to the prior crime element, the court instructed the jury,
"[t]he third element that the State must prove beyond a reasonable
doubt is that defendant is a person [who has] previously been
convicted of possession of a controlled dangerous substance with
intent to distribute." The court instructed further, "the parties
have stipulated or agreed that defendant has been convicted of
such a crime." Pursuant to the Model Charge, the trial court
9 A-4138-15T1
immediately thereafter read the requisite limiting instruction
that the evidence of defendant's prior crime
has been introduced for the specific purpose
of establishing an element of the present
offense. You may not use this evidence to
decide that defendant has a tendency to commit
crimes or that he is a bad person. That is,
you may not decide that, just because the
defendant has committed prior crimes, he must
be guilty of the present crimes.[5]
At the conclusion of the charge, the court reiterated that the
parties had stipulated to defendant's predicate offense, setting
forth the date of conviction and statutory violation. In light
of defendant's stipulation, and the court's carefully worded
limiting instruction as to the specific purpose for which the
nature of the offense was disclosed, we discern no error, much
less plain error, in the jury charge.
B.
To further support his argument, defendant claims his trial
counsel was ineffective by stipulating to the nature of his
predicate offense. To prove ineffective assistance of counsel, a
defendant must show that his counsel's performance was deficient
and that counsel's error so prejudiced defendant that he was
5
Although the stipulation was limited to one prior crime, the
jury had heard evidence in the first trial that defendant had
eight prior convictions. As such, the trial court's references
to crimes, in the plural, were warranted.
10 A-4138-15T1
deprived of a fair trial. Strickland v. Washington, 466 U.S. 668,
694, 104 S. Ct. 2053, 2068, 80 L. Ed. 2d 674, 698 (1984); State
v. Fritz, 105 N.J. 42, 58 (1987). Generally, we do not entertain
ineffective assistance of counsel claims on direct appeal "because
such claims involve allegations and evidence that lie outside the
trial record." State v. Preciose, 129 N.J. 451, 460 (1992). The
appropriate procedure for their resolution commonly is not direct
appeal, but rather a post-conviction relief ("PCR") application
attended by a hearing if a prima facie showing of remediable
ineffectiveness is shown. Id. at 460, 463. Where defendant's
claim of ineffectiveness relates solely to his allegation of a
substantive legal error contained completely within the trial
record, however, we can consider it. See State v. Quezada, 402
N.J. Super. 277, 280 (App. Div. 2008).
Defendant's claims are better suited for a PCR proceeding,
rather than this appeal, as they appear to concern trial strategy
decisions especially where, as here, defendant's lengthy criminal
history was elicited on cross-examination during trial. State
v. McDonald, 211 N.J. 4, 30 (2012). For example, trial counsel
may have stipulated to the underlying narcotics offense, for
strategic reasons, to prevent the jury from speculating as to
whether the conviction was for a violent offense.
11 A-4138-15T1
The record, however, cannot reveal what occurred during off-
the-record interactions between defendant and his attorney, and
making an adequate judgment "would require information outside of
the record before the [c]ourt." Ibid. Thus, we decline to consider
this point. Our determination is without prejudice to defendant's
raising it in an appropriate and timely PCR petition.
III.
We next address defendant's argument that the court violated
his constitutional rights by failing to inform him he had the
right to represent himself after the court was made aware of
defendant's dissatisfaction with his trial counsel. We consider
this argument, raised below, under a harmful error standard of
review. Like the plain error standard, however, harmful error
will not lead to reversal unless it is "clearly capable of
producing an unjust result." R. 2:10-2. Thus, even though an
alleged error was brought to the trial judge's attention, it will
not be grounds for reversal if it was a "harmless error." See
State v. Macon, 57 N.J. 325, 337-38 (1971).
A defendant has a constitutional right to "represent himself
in criminal proceedings." State v. Gallagher, 274 N.J. Super.
285, 294 (App. Div. 1994). This right, however, is not absolute.
"A defendant must 'voluntarily and intelligently' elect to conduct
his own defense." State v. Harris, 384 N.J. Super. 29, 57 (App.
12 A-4138-15T1
Div.), certif. denied, 188 N.J. 357 (2006) (quoting Martinez v.
Court of Appeal, 528 U.S. 152, 161-62, 120 S. Ct. 684, 691, 145
L. Ed. 2d 597, 607 (2000)). In other words, "the 'right to self-
representation does not attach until asserted.'" Harris, supra,
384 N.J. Super. at 57 (quoting Brown v. Wainwright, 665 F.2d 607,
610 (5th Cir. 1982)). Moreover, the request must be made "clearly
and unequivocally." Harris, supra, 384 N.J. Super. at 57 (quoting
Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541,
45 L. Ed. 2d 562, 582 (1975)). Thus, "[i]t is only after a party
clearly and unequivocally asserts his or her right to proceed pro
se and renounces the right to counsel that the court undertakes
an investigation, the goal of which is to determine the adequacy
of the waiver." Harris, supra, 384 N.J. Super. at 58.
In Harris, we rejected an argument similar to defendant's
contention. Id. at 56. There, the defendant argued that "the
court should have conducted a Faretta inquiry after he expressed
dissatisfaction with his representation to determine whether
defendant wished to represent himself." Ibid. Placing significant
emphasis on the defendant's failure to unequivocally state a desire
to represent himself, the court found no constitutional violation.
Id. at 60. Moreover, we found that the "court was under no
obligation to affirmatively suggest the option or hold a hearing
into the voluntary and knowing character of a waiver never even
13 A-4138-15T1
expressed." Ibid. Defendant's reliance on our decision in State
v. Vasquez, 432 N.J. Super. 354 (App. Div. 2013), certif. denied,
217 N.J. 296 (2014), also lacks merit. In Vasquez, we found
reversible error where the trial court failed to establish whether
the defendant waived his right to counsel at his sentencing
hearing. Id. at 358. In Vasquez, however, the trial court was
aware that the defendant had ceased cooperating entirely with his
counsel. Id. at 359.
Here, the colloquy between the trial judge and defendant at
his pretrial conference establishes that defendant did not
unequivocally express a desire to proceed pro se. Rather,
defendant expressed dissatisfaction with his trial counsel and
requested to submit unspecified paperwork directly to the judge.
Defendant then inquired as to why his attorney could not be fired.
These interactions, however, fall far short of defendant's
expressing a desire to waive counsel and proceed pro se. Inasmuch
as defendant did not unequivocally express a desire to waive
counsel, the trial court did not err by not advising him of his
right of self-representation. Moreover, although defendant's
repeated interruptions during the conference led to his removal
from the courtroom, he continued to be represented by his appointed
counsel throughout trial. At no time during any of the proceedings
14 A-4138-15T1
was the court made aware that defendant, as he now asserts, had
ceased cooperating entirely with his trial counsel.
IV.
Defendant next argues, and the State concedes, that this
matter should be remanded for resentencing so that the trial court
can consider whether the aggregate sentences for his instant
convictions should run concurrently to the aggregate sentences for
defendant's violations of probation. Inasmuch as the court did
not make this determination, we remand for resentencing to
determine whether, applying the factors set forth in State v.
Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S.
1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the certain persons
sentence should be imposed concurrently or consecutively to the
violation of probation sentence. See also, N.J.S.A. 2C:44-5. "We
offer no view on the outcome of that hearing because the decision
to impose consecutive or concurrent sentences rests in the first
instance with the trial court." State v. Miller, 205 N.J. 109,
130 (2005).
V.
Finally, as to the points raised in defendant's pro se
supplemental brief, we have considered the record and conclude
they are "without sufficient merit to warrant discussion in a
written opinion[.]" R. 2:11-3(e)(2).
15 A-4138-15T1
Affirmed in part; remanded in part for resentencing. We do
not retain jurisdiction.
16 A-4138-15T1