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

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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

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.

October 4, 2017
2 A-4138-15T1

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 
3 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)
4 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).
5 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 
6 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.
7 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 
8 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.
9 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 
10 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.
11 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. 
12 A-4138-15T1

The record, however, cannot reveal what occurred during offthe-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. 
13 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 selfrepresentation 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 
14 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 
15 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).
16 A-4138-15T1

Affirmed in part; remanded in part for resentencing. We do 

not retain jurisdiction.