Submitted November 8, 2018
appeal from Superior Court of New Jersey, Law Division,
Hudson County, Indictment No. 17-02-0070.
E. Krakora, Public Defender, attorney for appellant (Tamar Y.
Lerer, Assistant Deputy Public Defender, of counsel and on
Suarez, Hudson County Prosecutor, attorney for respondent
(Svjetlana Tesic, Assistant Prosecutor, on the brief).
Judges Koblitz, Ostrer and Mayer.
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.
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.
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. 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.
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.
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."
did not testify or present any defense witnesses.
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.
presents the following issues for our consideration:
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