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State v. Coclough

Superior Court of New Jersey, Appellate Division

May 2, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ANDRE COCLOUGH, a/k/a ANDRE COLLOUGH, ANDRA COCLOUGH, ANDRE COLCLOUGH, ANDRE COCLOUCH, and ANDRE PORTEE, Defendant-Appellant.

          Submitted November 8, 2018

          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).

          Before Judges Koblitz, Ostrer and Mayer.

          OPINION

          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 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 hat, 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 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.
B. The Failure To Issue Any Identification Instruction In A Misidentification Case Necessitates Reversal Of ...

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