STATE OF NEW JERSEY VS. ANDRE COCLOUGH (17-02-0070, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5142-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
May 2, 2019
v.
APPELLATE DIVISION
ANDRE COCLOUGH, a/k/a
ANDRE COLLOUGH, ANDRA
COCLOUGH, ANDRE COLCLOUGH,
ANDRE COCLOUCH, and ANDRE
PORTEE,
Defendant-Appellant.
________________________________
Submitted November 8, 2018 – Decided May 2, 2019
Before Judges Koblitz, Ostrer and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-02-0070.
Joseph E. Krakora, Public Defender, attorney for
appellant (Tamar Y. Lerer, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney
for respondent (Svjetlana Tesic, Assistant Prosecutor,
on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
In his appeal from his conviction of third-degree burglary, N.J.S.A.
2C:18-2(a)(1), and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1),
defendant raises, as plain error, issues regarding the court's jury instructions
and police witnesses' identification-related testimony. These contentions lack
merit and warrant only brief comment. We address at greater length
defendant's argument that he must be resentenced because of a breakdown in
his relationship with his trial counsel. A defendant is entitled to conflict-free
representation. But, he may not profit from undermining his attorney-client
relationship through his own abusive or threatening conduct. Despite
defendant's insults and threats, defense counsel wished to proceed, as did
defendant. We discern no basis for resentencing. Therefore, we affirm the
conviction and sentence.
I.
The State alleged that defendant, Andrew Coclough, along with another
man and a woman, entered a Jersey City apartment building without
permission; then, together with the other man, he forcibly removed four
interior surveillance cameras.
The State's principal witness was an administrator for the apartment
building. She authenticated a video-recording from the building's digital
surveillance system, which was admitted into evidence but is not in the record
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before us. The recording depicted a woman force open the door to the
building, then two men follow her in. The administrator testified that she was
familiar with all the building's tenants, and that none of the three persons had
permission to enter the building. One of the men – allegedly, defendant – was
dressed in a blue bubble jacket and had a visible bump on his head. The
second man, Dione Pegues, wore a black North Face jacket and a cap with a
red emblem.1 The recording allegedly showed defendant strike the cameras to
loosen them from the wall before Pegues removed them. The recording also
showed defendant and Pegues leave the building, but they carried nothing in
their hands.
A few days later, relying on a "be on the lookout" flyer that included still
photos taken from the recording, Jersey City Police Sergeant Dino Nerney
arrested defendant and Pegues because they "fit the description facially and by
the clothing of two of the three suspects." When defendant removed his h at,
he revealed a bump on his head like that depicted on the video.
Jersey City Detective Alexander Rivera authenticated various still
photos from the recording, as well as post-arrest photos of defendant wearing a
blue bubble jacket with a bump on his head. The photos were admitted into
evidence but are not before us. The detective testified that his purpose in
1
Pegues pleaded guilty before defendant's trial.
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taking the post-arrest photos was "to depict the . . . coat and the hat that shows
– that's very similar to the other . . . individual in the video."
Defendant did not testify or present any defense witnesses.
The jury convicted defendant of burglary and criminal mischief, and
acquitted him of theft by unlawful taking, N.J.S.A. 2C:20-3(a). After denying
the State's motion for an extended term, the court imposed a four-year term on
the burglary conviction, concurrent with an eighteen-month term on the
criminal mischief conviction.
II.
Defendant presents the following issues for our consideration:
POINT I
IN THIS FOUR-WITNESS TRIAL, TWO
WITNESSES MADE INAPPROPRIATE
IDENTIFICATIONS AND A THIRD MADE AN
IDENTIFICATION THAT THE JURY WAS NOT
INSTRUCTED AS TO HOW TO ASSESS.
MOREOVER, THE JURY WAS NOT INSTRUCTED
THAT THE STATE HAD TO PROVE THE
IDENTITY OF THE PERPETRATOR BEYOND A
REASONABLE DOUBT. FOR ALL OF THESE
REASONS, DEFENDANT'S CONVICTIONS MUST
BE REVERSED. (Not Raised Below).
A. Officers' Testimony That Defendant Was The
Person On The Video Was Inappropriate
Ultimate-Issue Testimony, Unhelpful To The
Jury, And Highly Prejudicial. Its Admission
Necessitates Reversal Of Defendant's
Convictions.
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B. The Failure To Issue Any Identification
Instruction In A Misidentification Case
Necessitates Reversal Of Defendant's
Convictions.
C. The Failure To Instruct The Jury On How To
Assess A Witness's Identification Of The People
On The Video As Not Tenants Of The
Apartment Building Necessitates Reversal Of
The Burglary Conviction.
POINT II
THE JURY INSTRUCTIONS ON BURGLARY LEFT
OPEN THE POSSIBILITY OF A NON-
UNANIMOUS VERDICT, NECESSITATING
REVERSAL OF DEFENDANT'S BURGLARY
CONVICTION. (Not Raised Below).
POINT III
BECAUSE OF THE UTTER BREAKDOWN IN THE
RELATIONSHIP BETWEEN DEFENDANT AND
HIS ATTORNEY AT SENTENCING, A NEW
SENTENCING MUST BE CONDUCTED IN WHICH
DEFENDANT IS REPRESENTED BY NEW
COUNSEL.
Having reviewed defendant's arguments in light of the record and
applicable principles of law, we affirm his conviction and sentence.
A.
Defendant contends, as a point of plain error, that the sergeant and
detective usurped the jury's function by testifying, without objection, that
defendant appeared to be the man depicted in the video recording. This
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opinion testimony may well have been subject to an objection, since the jury
was as capable as the officers of determining whether defendant appeared in
the video. See State v. Lazo, 209 N.J. 9, 23 (2012) (stating "when there is no
change in defendant's appearance, juries can decide for themselves – without
identification testimony from law enforcement – whether the person in a
photograph is the defendant sitting before them").
However, the error, if any, was not "clearly capable of producing an
unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice as
plain error, only "one sufficient to raise a reasonable doubt as to whether the
error led the jury to a result it otherwise might not have reached." State v.
Macon, 57 N.J. 325, 336 (1971).
The officers' testimony did not affect the result because the defense
conceded at the outset of the case that defendant entered the apartment
building, along with the woman and Pegues. Defense counsel stated in his
opening:
You're not going to see Mr. Coclough breaking into a
building. He's not slipping through a window. He's
not kicking down a door. The door is held open by
this unidentified female. Mr. Coclough walks in with
Mr. Pegues and this female. And you're going to see
Mr. Pegues go around multiple cameras and hit these
cameras until they go black. . . . [I]t's Mr. Pegues who
appears to have some sort of a cutting device in his
hand and possibly causes further damage.
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You're not going to see Mr. Coclough with any
cutters. You're not going to see Mr. Coclough on
video in the possession of any cameras. He's not
holding them. He's not seen walking out with them.
The defense theory was that defendant did not know he was not
permitted to enter. Although the woman kicked the door open, the
administrator admitted that many bona fide tenants – including several
depicted on the recording – would kick open the door, which was held shut by
magnets, rather than use the swipe-card system. The defense also argued that
Pegues, not defendant, removed the cameras. The main issue in the case was
not, as defendant now argues, whether defendant was one of the men on the
video, since defense counsel conceded that fact at the outset. Although he
challenged, in summation, the State to prove defendant ever entered the
building, the thrust of the summation, consistent with the opening, was that the
State had not demonstrated each element, including the requisite state of mind,
of burglary or criminal mischief. 2
2
Even if identification were a significant issue in the case, we have no way of
determining whether the officers' testimony was prejudicial or merely
cumulative, because defendant has failed to present us with the relevant
portions of the record – the photos and the recording. See State v. Cordero,
438 N.J. Super. 472, 489 (App. Div. 2014) (citing Rule 2:6-1(a)).
Conceivably, the post-arrest photo may have presented undeniable evidence
that defendant was the person depicted in the surveillance recording. In that
case, the officers' identification testimony would not be clearly capable of
producing an unjust result.
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B.
Defendant also argues, as plain error, that the court should have, sua
sponte, instructed the jury on the vagaries of identification. In particular,
defendant contends the court should have instructed the jury how to weigh the
administrator's testimony that defendant was not a tenant, since her non-
recognition of defendant was, in effect, an identification. We disagree.
"When identification is a 'key issue,' the trial court must instruct the jury
on identification, even if a defendant does not make that request." State v.
Cotto, 182 N.J. 316, 325 (2005). However, as noted, identification was not a
"key issue" in the case. Therefore, the omission of an instruction on
identification was not clearly capable of producing an unjust result. See State
v. Hock, 54 N.J. 526, 538 (1969) (stating that, in the context of jury
instructions, plain error is a "legal impropriety . . . prejudicially affecting the
substantial rights of the defendant and sufficiently grievous to . . . convince the
court that of itself the error possessed a clear capacity to bring about an unjust
result"); accord State v. Montalvo, 229 N.J. 300, 320-21 (2017).
C.
Regarding the burglary count, defendant contends as plain error that the
judge should have instructed the jury that it had to agree unanimously as to
what crime defendant intended to commit upon his entry into the premises
A-5142-16T4
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without permission. The judge instructed the jury that to convict, it had to find
that defendant entered the premises with "the purpose to commit an offense
therein." The judge explained, "Purpose to commit an offense means that the
defendant intended to commit an unlawful act inside the structure. The
unlawful acts allegedly intended are set forth in Counts 2 and 3 of the
Indictment . . . the theft by unlawful taking and the criminal mischief."
We discern no error, let alone plain error. To convict a defendant of
burglary in violation of N.J.S.A. 2C:18-2, unanimity is only necessary in
finding that the defendant intended to commit an offense when unlawfully
entering a structure; unanimity is not required as to the specific offense. See
State v. Robinson, 289 N.J. Super. 447, 454-55 (App. Div. 1996). 3
Since the jury acquitted defendant of theft and convicted defendant of
criminal mischief, the jury most likely agreed that defendant entered with the
intent to commit criminal mischief. It is theoretically possible that some jurors
found that defendant entered the building intending to commi t theft but, once
inside, decided to commit criminal mischief instead, while others found that he
intended criminal mischief all along. However, the jury would still be
3
Courts of other jurisdictions agree. See e.g. People v. Russo, 25 P.3d 641,
646 (Cal. 2001); State v. Luster, 713 A.2d 277, 280 (Conn. App. Ct. 1998);
State v. Griffin, 112 P.3d 862, 882-83 (Kan. 2005); State v. Gardner, 889
N.E.2d 995, 1008-09 (Ohio 2008); State v. Hammer, 576 N.W.2d 285, 287
(Wis. Ct. App. 1997).
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unanimous that defendant entered the building with the "purpose to commit an
offense therein or thereon." N.J.S.A. 2C:18-2.
D.
At the sentencing hearing, defense counsel disclosed to the court that his
relationship with defendant had deteriorated to the point that defendant had
threatened to harm him. Defendant confirmed the strain in the relationship,
stating he was "done playing" with his attorney. The colloquy proceeded as
follows:
[DEFENSE COUNSEL]: Judge, I made an attempt to
review the Pre-Sentence Report with Mr. Coclough.
Unfortunately, after going through one page, he made
disparaging remarks both anti-Semitic and
homophobic, became irate in the jury room, and let's
not beat around the bush, threatened me, and knows
where I live.
So I attempted to get through it. But I'm ready
to proceed.
MR. COCLOUGH: Me too.
THE COURT: Hang on. That's a lot for me to digest.
I have to think about that for a minute. Are you
prepared to proceed for sentencing, Mr. Coclough?
MR. COCLOUGH: Yes, I am.
THE COURT: With Mr. –
MR. COCLOUGH: I'm done playing with him.
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THE COURT: -- with [defense counsel] as your
attorney?
MR. COCLOUGH: Yes.
THE COURT: Are you ready to proceed, [defense
counsel]?
[DEFENSE COUNSEL]: Not a problem, Judge.
THE COURT: Do you want to also?
[DEFENSE COUNSEL]: Not a problem.
The court then proceeded with the sentencing hearing. Defense counsel
argued successfully against the State's motion for an extended term. Once
given an opportunity to speak, defendant aired grievances against the
prosecutor, his probation officer, his co-defendant, and defense counsel.
Admitting that he was the man depicted in the video, he complained that his
attorney told him not to take the stand and did not subpoena a witness
defendant requested. The court then imposed the sentence we have already
described. Defendant contends he is entitled to a new sentencing with new
counsel based on the breakdown of the attorney-client relationship. We
disagree.
Although defendant expressed dissatisfaction with defense counsel, he
did not state he wanted to discharge him and represent himself, nor did he
request appointment of new counsel. Defense counsel, for his part, did not
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state that he was unable to proceed. In that respect, this case is distinguishable
from State v. Vasquez, 432 N.J. Super. 354 (App. Div. 2013), upon which
defendant relies. In that case, the defendant indicated he wanted to replace his
attorney. Id. at 356-57. The attorney agreed there was a conflict and
apparently did not fully participate in the remainder of the sentencing hearing.
Id. at 359. We held that the court was required to consider the conflict issue,
and whether the defendant knowingly, intelligently and voluntarily waived his
right to counsel, before proceeding with sentencing. Id. at 359-60.
The court was not obliged to advise defendant of his right to represent
himself. State v. Rose, ___ N.J. Super. ___, ___ (App. Div. 2019) (slip op. at
17). And defendant was not entitled to a change of appointed counsel "absent
a showing of 'substantial cause.'" State v. Harris, 384 N.J. Super. 29, 59 (App.
Div. 2006) (quoting State v. Coon, 314 N.J. Super. 426, 438 (App. Div.
1998)). "Although an irreconcilable conflict establishes good cause, courts
warn that defendant cannot manufacture good cause by abusive and
uncooperative behavior." Wayne R. LaFave et al., 3 Criminal Procedure §
11.4(b) (4th ed. 2015); see also People v. Linares, 813 N.E.2d 609, 612 (N.Y.
2004) (affirming conviction and rejecting defendant's argument that he was
entitled to a new trial because he was denied substitute counsel after he
threatened his attorney, who nonetheless proceeded to represent him).
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"A criminal defendant's constitutional guarantee of loyal counsel and
open communication . . . does not equate to a guarantee of attorney-client
rapport," State v. Miller, 216 N.J. 40, 64 (2013), particularly when the rapport
is undermined by the defendant's own abusive or threatening conduct. See
United States v. McLeod, 53 F.3d 322, 325-26 (11th Cir. 1995) (holding a
defendant could not claim he was denied the right to counsel after he "was
verbally abusive and threatened to harm" his attorney). Indeed, a defendant
may be deemed to waive or forfeit the right to counsel by such conduct. Ibid.;
see also LaFave et al., supra; State v. Crisafi, 128 N.J. 499, 518 (1992) (stating
"a trial court confronted with a wily defendant may consider the efficient
administration of criminal justice and force a defendant to choose between
appointed counsel and proceeding pro se"); Rose, ___ N.J. Super. at ___ (slip
op. at 19).
That defendant had a conflict with his attorney does not necessarily
mean his attorney had a conflict of interest. Cf. Miller, 216 N.J. at 63 (stating
that "[a] criminal defense attorney must not be hindered by conflicts of interest
that could compromise his or her duty to a client"); State v. Drisco, 355 N.J.
Super. 283, 294-95 (App. Div. 2002) (holding that a defendant's
ineffectiveness allegation in a prior case did not create a disqualifying conflict
for the same attorney in a later case). It is surely not the first time that a
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defendant has cast aspersions on or threatened his or her defense counsel. We
condemn abusive or threatening conduct. Yet, the defense attorney is usually
in the best position to determine whether a client is merely blowing off steam
or poses a real threat that disables the attorney – from a sense of self-
preservation or extreme aversion for the client – from providing diligent and
loyal representation. Here, defense counsel did not move to withdraw. He
affirmatively stated he was ready to proceed. Defendant wanted to proceed as
well. Defense counsel then presented a successful argument opposing an
extended term.
Finally, we are wary of establishing a rule recognizing a conflict of
interest whenever a defendant threatens, demeans, or insults his attorney. Such
a rule would endow the defendant with the unilateral power to create a self-
serving conflict that would compel the withdrawal of counsel and delay
proceedings. Cf. McKee v. Harris, 649 F.2d 927, 932 (2d Cir. 1981) (denying
defendant "a reassignment of counsel simply on the basis of a 'breakdown in
communication' which he himself induced," as that would "grant[] unrestrained
power to the defendant to discontinue the trial" (citation omitted)).
In sum, we discern no basis to disturb the sentence because of the strain
in the relationship between defendant and defense counsel.
Affirmed.
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