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

• Court: New Jersey Superior Court Appellate Division
• Decided: May 2, 2019
• Docket: A-5142-16T4
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

A-5142-16T4 2 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.

A-5142-16T4 3 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.

A-5142-16T4 4 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

A-5142-16T4 5 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.

A-5142-16T4 6 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.

A-5142-16T4 7 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 8 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).

A-5142-16T4 9 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.

A-5142-16T4 10 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

A-5142-16T4 11 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).

A-5142-16T4 12 "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

A-5142-16T4 13 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.

A-5142-16T4 14