SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0874-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD R. DRAUGHN,

Defendant-Appellant.

_______________________

Argued December 14, 2021 – Decided February 17, 2022

Before Judges Rothstadt, Mayer and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 17-02-

0242. 

Tamar Y. Lerer, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Tamar Y. Lerer, of counsel 

and on the briefs). 

David M. Liston, Assistant Prosecutor, argued the 

cause for respondent (Yolanda Ciccone, Middlesex 

County Prosecutor, attorney; David M. Liston, of 

counsel and on the brief). 

NOT FOR PUBLICATION WITHOUT THE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.
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Appellant filed a pro se supplemental brief.

PER CURIAM

During jury selection, defendant Richard R. Draughn advised the court of 

numerous concerns related to his appointed counsel's representation and asked 

for a new lawyer or, in the alternative, to represent himself. The court denied

his requests, as well as his application to suppress a gun he discarded and which

the police recovered immediately prior to his arrest. He was convicted of simple 

assault, N.J.S.A. 2C:12-1(a); second-degree unlawful possession of a handgun, 

N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an 

unlawful purpose, N.J.S.A. 2C:39-4(a)(1). After merger, the court sentenced 

defendant to an aggregate eight-year term of imprisonment with four years of 

parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c).

On appeal, he challenges those convictions and his sentence arguing1:

I. BECAUSE DEFENDANT WAS STOPPED 

WITHOUT THE REQUISITE REASONABLE 

SUSPICION, THE EVIDENCE IN THIS CASE 

MUST BE SUPPRESSED. 

II. DEFENDANT'S REQUESTS TO REPRESENT 

HIMSELF AND FOR SUBSTITUTE COUNSEL 

WERE INAPPROPRIATELY DISMISSED 

1 We have reorganized defendant's point headings to address the suppression 

issue first.
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WITHOUT THE APPROPRIATE INQUIRY. 

HIS CONVICTIONS MUST BE REVERSED.

A. Introduction.

B. The Trial Court's Failure To Conduct The 

Appropriate Inquiry When Defendant Asked 

To Represent Himself Or To Even Rule On 

His Request Requires Reversal Of 

Defendant's Convictions.

C. The Trial Court's Failure To Conduct The 

Appropriate Inquiry When Defendant 

Requested New Counsel Requires Reversal Of 

Defendant's Convictions.

D. Conclusion.

III. THE FAILURE TO INSTRUCT THE JURY 

THAT IT HAD TO BE UNANIMOUS AS TO 

THE UNLAWFUL PURPOSE WITH WHICH 

DEFENDANT POSSESSED THE WEAPON OR 

AS TO THE ACTS THAT CONSTITUTED 

ASSAULT NECESSITATES REVE[RS]AL OF 

THOSE CONVICTIONS. 

IV. DEFENDANT'S SENTENCE, OF EIGHT 

YEARS WITH A FOUR-YEAR PERIOD OF 

PAROLE INELIGIBLITY, IS EXCESSIVE FOR 

A PERSON WHO HAD NEVER BEEN 

CONVICTED OF AN INDICTABLE OFFENSE 

BEFORE. 

Defendant also raises the following argument in his pro se supplemental 

brief, which we have summarized in the following point heading:
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[THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S REQUEST FOR AN ADVERSE 

INFERENCE INSTRUCTION REGARDING 

MISSING FOOTAGE]. 

After considering these arguments against the record and applicable legal 

principles, we disagree with defendant's contention in Point I and affirm the 

court's pretrial determination denying defendant's motion to suppress the gun 

seized at the time of his arrest. We also reject defendant's argument in his pro 

se submission. 

We agree, however, with defendant's arguments in Point II.B and conclude 

the court erred by dismissing defendant's request to represent himself without 

conducting the proper inquiry. We therefore vacate defendant's conviction and 

remand for a new trial. In light of our decision, we do not reach the additional 

arguments raised by defendant in Points II.C, III, and IV. 

I.

This appeal has its genesis in a physical altercation that occurred in Perth 

Amboy during the evening of April 17, 2016. On that date, defendant received 

a call from his girlfriend informing him that her cousin's boyfriend, Carrington 

"C.J." Gray, "put his hands on" her, attempted to spit in the vehicle in which 

defendant's girlfriend and stepdaughter were seated, and drove over defendant's

girlfriend's foot with a car. 
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Defendant's girlfriend told him they were located at 76 Market Street in 

Perth Amboy. Defendant arrived at that location with approximately five people

and a loaded, unregistered nine-millimeter handgun. As Gray had already left 

the scene, defendant told his girlfriend to contact him because he "ha[d] to pay 

for what he did." 

Gray returned and an argument ensued where defendant told Gray he was 

going to "knock him out, straight up." Defendant also pulled out his gun, but 

testified he kept it "tucked behind [his] leg" and "never . . . pointed it" at Gray. 

Gray retreated into a nearby apartment building and once inside the 

building, punched defendant's girlfriend's cousin who accompanied him inside, 

which prompted defendant to run into the building and strike Gray in the face, 

"knock[ing] him out," with defendant and two other individuals thereafter

"jump[ing] on" Gray while he was on the ground. A video of a significant 

portion of the fight was captured on a nearby video surveillance camera and the

tape was played for the jury. The two individuals who assaulted Gray then fled 

the scene on their motorcycles. 

Shortly after the altercation ended, Sergeant Nicholas Millroy of the Perth 

Amboy Police Department, who was in a marked police vehicle, was stopped by 

a cab driver who, in "broken English," advised him of a disturbance involving a 
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black male. Sergeant Millroy stated he then saw two motorcycles leaving 76 

Market Street at a high rate of speed and drove the short distance to that address. 

Before doing so, he activated his side, or alley light, on his vehicle, but 

did not turn on the overhead lights. As he approached 76 Market Street, he saw 

defendant leaving a building while carrying a motorcycle helmet in his left hand 

while holding his right hand firmly along the side of his waist area. He focused 

the spotlight on defendant, pulled the vehicle on the other side of the road closest 

to him, and observed that defendant "appeared startled" when they made eye 

contact. He also stated that defendant immediately slowed his gait, and 

attempted to shield Sergeant Millroy's view by walking beside a parked vehicle. 

At that point, Sergeant Millroy still had not activated his overhead lights. 

In addition, he did not block defendant's movements in any way with his vehicle,

give him commands, or speak to him at all. Instead, he parked his vehicle, exited

and walked toward defendant to "conduct a field inquiry." 

Sergeant Millroy stated at that point he heard "what sounded to be a metal 

object hit the ground," and witnessed defendant "kick the object underneath the 

parked vehicle." Based on his training and experience, and the surrounding 

circumstances, Sergeant Millroy believed defendant had discarded a weapon. 

He then drew his weapon, ordered defendant to the ground, and called for 
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backup. Officer Jose Santiago responded to Sergeant Millroy's call for backup 

and proceeded to handcuff and pat down defendant. Sergeant Millroy then

observed the gun under the vehicle and Officer Santiago recovered it. 

Once the gun was located, defendant was arrested and brought to police 

headquarters, where he provided a statement detailing the circumstances that led 

to the altercation with Gray. Defendant also admitted to possessing the gun, 

which he said was in his pocket as he was leaving the apartment building. He

stated that upon seeing Sergeant Millroy, he "dipped behind the car [and] tossed 

[the gun]."

On February 24, 2017, a Middlesex grand jury charged defendant with: 

second-degree burglary, N.J.S.A. 2C:18-2(a)(1); second-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 

2C:12-1(b)(2); third-degree possession of a controlled dangerous substance, 

N.J.S.A. 2C:35-10(a)(1); second-degree unlawful possession of a weapon; and 

second-degree possession of a weapon for unlawful purposes. In an order dated 

April 15, 2019, the court granted the State's motion to dismiss counts one, two, 

four, and five of the indictment leaving for trial the aggravated assault, unlawful 

possession of a weapon, and possession of a weapon for unlawful purposes 

charges. 
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On January 8, 2019, the court held a Miranda2 hearing and denied 

defendant's application to suppress his statements to the police, concluding the 

State established beyond a reasonable doubt that defendant's statements were

voluntary and given after he knowingly waived his Miranda rights. At the 

hearing the court expressly inquired if defendant wished to testify, and he 

declined. 

Prior to trial, defendant also unsuccessfully moved to suppress evidence. 

The court held a hearing at which Sergeant Millroy testified. As previously 

noted, he stated he proceeded to 76 Market Street after being advised by the cab 

driver that there was a "disturbance involving a black male" and after observing 

two motorcycle riders leaving the area at a high rate of speed. 

He testified that he began using his alley light as he was "approaching the 

area" and that upon observing defendant he "zero[ed] in on him." Sergeant 

Millroy stated he focused on defendant for a "multitude of reasons," not simply 

his race, including that motorcycles had fled from the area, defendant was 

"exiting 76 Market in a hurried pace," and he was holding a motorcycle helmet 

and headed towards a motorcycle. 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
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In denying defendant's motion to suppress, the court first found that 

Sergeant Millroy "was an extremely credible witness" and "accept[ed] Sargent 

Millroy's facts as being accurate." It found that "[a]s a matter of law, coming 

up the street . . . with the alley light, getting out of the car, [and] approaching 

[defendant] has no constitutional implications whatsoever. It is a mere field 

inquiry." The court also noted that Sergeant Millroy did not order or question 

defendant as he approached him and reasoned that upon hearing defendant drop 

something and observing him kick it, Sergeant Millroy had "articulable facts" 

that gave him "every right to stop [defendant] and detain him." 

On May 21, 2019, approximately one week after jury selection began and 

before opening statements, defendant indicated to the court that he no longer 

wanted his pool attorney3to represent him. He explained that counsel was not 

a "fit" based on several conflicts that occurred throughout the representation. 

Specifically, defendant claimed counsel filed motions without consulting him, 

instructed him not to testify at his Miranda and suppression hearings over his 

3

 The Office of the Public Defender is authorized to maintain and compensate 

"trial pools of lawyers" on a case-by-case basis. N.J.S.A. 2A:158A-7(c), (d). 

Pool attorneys may be engaged "whenever needed to meet case load demands, 

or to provide independent counsel to multiple defendants whose interests may 

be in conflict." N.J.S.A. 2A:158A-9; see also State v. Van Ness, 450 N.J. Super. 

470, 490 (App. Div. 2017).
10 A-0874-19

objections, was disrespectful to him, including swearing at him on the phone, 

and "tr[ied] to manipulate him into saying stuff . . . happened that did not 

happen." Defendant stated that he could not move forward with counsel and 

that there was "no way" counsel could help him. He also said he "fe[lt] better 

off going to trial by [himself] than going with [counsel]." 

In response, the court instructed defendant that he had a right to counsel 

but not "necessarily . . . a right to counsel of [his] choice." It stated that

defendant's "complaint would not be something [the court] can deal with" and

"it would be up to the Public Defender's Office to deal with [defendant's] issue" 

but that generally "they have a policy against switching out lawyers at [a] 

defendant's . . . request." The court also instructed defendant that his request 

was "a little late" because jury selection had already begun, and the Public 

Defender's Office "wouldn't be inclined to appoint another lawyer" and

switching lawyers "wouldn't be feasible." 

Finally, the court said that defendant's "only other option . . . and 

[defendant] alluded to this, is to represent [himself]." It described that option 

as "a very dangerous thing to do," and stated that it would have to conduct a 
11 A-0874-19

Crisafi4 hearing to ensure defendant "understood all the pitfalls in representing 

[himself]." 

Defendant's counsel interjected and stated he did not believe defendant 

"would be his best advocate" and should not represent himself. The court 

concurred and commented "a person who represents himself has a fool for a 

client." The trial court further stated that proceeding pro se "would be the only 

other option for you. It[ is] either [defendant's then-trial counsel] or you 

represent yourself." 

Defendant continued to assert his right to represent himself. He stated 

that counsel was "not trying to help [him]" and was "not doing a good job 

communicating with [him]." He also stated, "I want to speak[,] and he don't 

even – like – like, I want to defend myself. I feel like I cannot defend myself 

with him as my attorney." The court then engaged in the following colloquy 

with defendant: 

THE COURT: Do you want to represent yourself?

DEFENDANT: I – I would rather a different 

attorney, because I don't – like, I don't –

THE COURT: You know what? That's – that –

4

 State v. Crisafi, 128 N.J. 499 (1992).
12 A-0874-19

DEFENDANT: That's – he's not – they're not – he's 

not giving me a fair shot to – to – to defend my life. 

THE COURT: You can ask Mr. Johnson from the 

Public Defender's Office, but I don't think that's going 

to happen. I think your – your two choices would be 

the lawyer you have[] or representing yourself. And 

that's a real dicey proposition. 

The issue of defendant's representation does not appear to have been raised again 

on the record and a hearing was never conducted to determine the propriety of 

defendant representing himself or if there was good cause to replace his assigned

counsel. 

At trial, Gray failed to appear and did not give a statement to the police. 

Defendant's counsel argued defendant acted reasonably in defending his 

girlfriend's cousin when he punched Gray, and that defendant possessed the gun 

for a lawful purpose, "to protect himself from . . . Gray." 

During trial, defendant requested an adverse inference charge on missing 

mobile video recorder (MVR) footage from the police patrol vehicles that 

arrived at the scene. The court noted a written request for the video was timely 

made, but that the State failed to respond to the request or produce the video. 

Defendant contended this discovery violation was significant as the video could 

have been evidential to his defense, thus requiring an adverse inference charge. 
13 A-0874-19

The court denied defendant's request. It first explained that Sergeant 

Millroy testified that his MVR was not running during the incident and that he 

was unsure whether Officer Santiago's vehicle was equipped with an MVR. As 

a result, the court found that it was "clearly apparent that [the video] wouldn't 

show anything," because by the time Officer Santiago arrived the incident was 

over. The court also declined to sanction the State for the discovery violation 

despite its expression of displeasure with the State's disregard of defendant's 

discovery request because "there[was] no harm, no foul" to defendant. The court 

did, however, permit defendant to "speak to the jury about the lack of evidence." 

Defendant renewed his request for an adverse inference charge after 

testifying, during which he newly claimed to have hidden his gun within the rim 

of the SUV's rear passenger wheel. Specifically, he contended that the video 

would have corroborated his testimony on "where the gun was recovered." The 

court questioned the relevance of that point, and defendant asserted the video of 

the recovered gun's location would bolster defendant's testimony and impeach 

Sergeant Millroy's testimony. 

The State also explained that there was no evidence that the MVR 

"actually existed." The court again rejected the application finding that any 

MVR video that may have existed was still irrelevant to any disputed issue. 
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The court instructed the jury on the lesser included offense of simple 

assault and that there were "two separate species of simple assault [alleged by 

the State]. One is 2C:12-1(a)(1), the other is -1(a)(3) . . . . Attempting to cause 

bodily injury to [the victim], and/or, attempting by a physical menace, to put 

[the victim] in fear of imminent, serious bodily injury." The court instructed the 

jury that "[a]ll [twelve] deliberating jurors do not have to agree on which type 

of simple assault is . . . proven beyond a reasonable doubt, provided all [twelve] 

of the deliberating jurors must agree that one or the other type of simple assault 

has been proven beyond a reasonable doubt." 

Explaining the elements of possession of a weapon for an unlawful 

purpose, the court charged:

Now, the fourth element the State must prove beyond a 

reasonable doubt is that the defendant had a purpose to 

use the firearm in a manner that was prohibited by law. 

. . . Now, in this case, the State contends that the 

defendant’s unlawful purpose in possessing that 

firearm was to terrorize and/or threaten, and/or menace, 

and/or assault [the victim]. . . . The unlawful purpose 

alleged by the State may be inferred from all that was 

said or done, and from all the surrounding 

circumstances of the case. However, the State need not 

prove the defendant accomplished his unlawful purpose 

in using the firearm.

During deliberations, the jury asked two questions. First, "Clarification 

of simple assault, is the menacing with the gun included in the gun charge, 
15 A-0874-19

possession of a weapon for unlawful purposes?" Second, "Does the simple 

assault charge apply only to the physical assault in the [building], or does it 

apply to the menacing with the gun?" 

After discussing responses with defendant's counsel and the State, the 

court answered the first question without objection by explaining "it could be, 

as could . . . terrorize, threaten, and/or assault." In answering the second 

question, the court clarified, again, without objection, they were "considering 

two separate and independent theories that constitute simple assault" and 

repeated his previous charge that defendant could be found guilty as long as all 

twelve jurors agreed "one or the other type of simple assault has been proven 

beyond a reasonable doubt." 

The jury found defendant not guilty of aggravated assault, but guilty of 

the lesser included offense of simple assault, as well as unlawful possession of 

a handgun, and possession of that weapon for an unlawful purpose. As noted, 

the court merged the simple assault charge into the possession of a weapon for 

an unlawful purpose offense. After the court denied defendant's request for a 

Graves Act waiver, it applied and weighed the applicable aggravating and 

mitigating factors and sentenced defendant to concurrent eight-year custodial 

terms for unlawful possession of a handgun and for possession of a weapon for 
16 A-0874-19

an unlawful purpose with four years of parole ineligibility. This appeal 

followed.

II.

In defendant's first point, he contends the court incorrectly denied his 

request to suppress the gun that he was convicted of unlawfully possessing. In 

doing so, he does not question Sergeant Millroy's actions after he heard what he 

believed to be a gun hit the ground. Instead, he limits he challenge to moments 

before the sergeant exited his vehicle, contending Sergeant Millroy conducted 

an unconstitutional investigatory stop at the moment he "shine[d] a spotlight"

on defendant while approaching in a marked police vehicle on the side of the 

road closest to defendant. In support, defendant primarily relies on State v. 

Rosario, 229 N.J. 263 (2017), for the proposition that a person would not feel 

free to leave when "police illuminate [that] person with a targeted light while 

approaching them" from "the wrong lane." We disagree with defendant's 

argument.

In reviewing the grant or denial of a motion to suppress, we "must defer" 

to the motion judge's factual findings "so long as those findings are supported 

by sufficient evidence in the record." State v. Dunbar, 229 N.J. 521, 538 (2017) 

(quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). We ordinarily defer to 
17 A-0874-19

those findings because they "are substantially influenced by [the judge's] 

opportunity to hear and see the witnesses and to have the 'feel' of the case, which 

a reviewing court cannot enjoy." State v. Lamb, 218 N.J. 300, 313 (2014) 

(quoting State v. Elders, 192 N.J. 224, 244 (2007)). 

We disregard those findings only when they are "so clearly mistaken that 

the interests of justice demand intervention and correction." State v. Hagans, 

233 N.J. 30, 37-38 (2018) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)). 

We review a motion judge's legal conclusions de novo. Dunbar, 229 N.J. at 538.

Both the federal and state constitutions protect citizens against 

unreasonable searches and seizures. See U.S. Const. amend. IV; N.J. Const. art.

I, ¶ 7; see also State v. Terry, 232 N.J. 218, 231 (2018). "The test of 

reasonableness cannot be fixed by per se rules; each case must be decided on its 

own facts." Terry, 232 N.J. at 231 (quoting South Dakota v. Opperman, 428 

U.S. 364, 372-73 (1976)). 

There are three types of interactions with law enforcement, each involving 

different constitutional implications depending on the event's impact on an 

individual's freedom to leave the scene. First, a "field inquiry is essentially a 

voluntary encounter between the police and a member of the public in which the 

police ask questions and do not compel an individual to answer." Rosario, 229 
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N.J. at 271. The individual is free to leave; therefore, field inquiries do not 

require a well-grounded suspicion of criminal activity before commencement. 

Id. at 271-72; see also Elders, 192 N.J. at 246. 

Second, an investigatory stop or detention, sometimes referred to as a 

Terry5stop, involves a temporary seizure that restricts a person's movement. A 

Terry stop implicates a constitutional requirement that there be "'specific and 

articulable facts which, taken together with rational inferences from those facts,' 

give rise to a reasonable suspicion of criminal activity." Elders, 192 N.J. at 247 

(quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). Third, an arrest requires 

"probable cause and generally [are] supported by an arrest warrant or by 

demonstration of grounds that would have justified one." Rosario, 229 N.J. at 

272.

When "determining whether a seizure occurred, a judge must consider 

whether 'in view of all of the circumstances surrounding the incident, a 

reasonable person would have believed that he [or she] was not free to leave.'" 

State v. Stovall, 170 N.J. 346, 355 (2002) (alteration in original) (quoting United

States v. Mendenhall, 446 U.S. 544, 554 (1980)). To establish that a stop was 

valid, the State has the burden of proving that the police were aware of "specific 

5

 Terry v. Ohio, 392 U.S. 1, 20 (1968). 
19 A-0874-19

and articulable facts which, taken together with rational inferences from those 

facts, [gave] rise to a reasonable suspicion of criminal activity." State v. Mann, 

203 N.J. 328, 338 (2010) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)); see

Terry, 392 U.S. at 20. If there was no reasonable suspicion, evidence discovered 

during a search conducted during the detention is subject to exclusion. State v. 

Chisum, 236 N.J. 530, 546 (2019).

Here, the court did not err in denying defendant's motion to suppress. 

Until Sergeant Millroy ordered defendant on the ground, as the court correctly 

found, he was merely engaging in a field inquiry and did not require "a wellgrounded suspicion of criminal activity before commencement." Rosario, 229 

N.J. at 271-72. After learning of a potential dispute from a cab driver in the area 

and seeing two motorcycles speed away, Sergeant Millroy stated that he 

approached the scene using his marked vehicle's alley light. When he observed 

defendant carrying a helmet and walking towards his motorcycle he simply

exited his vehicle. Sergeant Millroy did not "make demands or issue orders," 

and did not ask any questions that were "overbearing or harassing in nature." 

State v. Davis, 104 N.J. 490, 497 n.6 (1986). In fact, he did not say a word to 

defendant. Nor did he, at that point, accuse defendant of any wrongdoing. See

State v. Nishina, 175 N.J. 502, 510 (2003). 
20 A-0874-19

We therefore find defendant's reliance on Rosario misplaced. There, a 

police officer who received an anonymous tip that the defendant was selling 

drugs and recognized defendant's car while on patrol. Rosario, 229 N.J. at 267. 

The officer positioned his car at a perpendicular angle approximately seven to 

ten feet in front of the defendant's car, partially confining the defendant's vehicle 

to an enclosed area. Id. at 268. He then activated the rooftop flood light on his 

patrol car, aimed it at the defendant's car, and, after noticing that she was still in 

the car, approached her and asked her to produce identification. Ibid. Under 

those circumstances, the Supreme Court concluded the encounter was an 

investigative detention because someone:

[S]itting in a lawfully parked car outside her home who 

suddenly finds herself blocked in by a patrol car that 

shines a flood light into the vehicle, only to have the 

officer exit his marked car and approach the driver's 

side of the vehicle, would not reasonably feel free to 

leave.

[Id. at 273.]

Unlike in Rosario, defendant's freedom of movement was never confined 

by Sergeant Millroy such as by positioning the marked patrol vehicle to prevent 

defendant's departure on his motorcycle. Instead, the sergeant was investigating 

a disturbance and approached 76 Market Street because that is the vicinity where 

he observed two speeding, departing motorcycles. He employed his alley light, 
21 A-0874-19

which notably was activated before he approached 76 Market Street, and 

observed defendant walking with a motorcycle helmet in his left hand and with 

his right hand firmly against his body. Even then, Sergeant Millroy did not 

prevent defendant from leaving the area, nor was it reasonable to conclude that 

defendant's movements were restrained; indeed, defendant himself continued 

walking toward his motorcycle when he saw the sergeant. Based on all the 

circumstances, we are satisfied that Sergeant Millroy's use of the alley light 

while driving in the opposite lane of traffic did not turn his field investigation 

into a Terry stop. 

III.

Defendant, in his pro se brief, contends the court erred in denying his 

request for an adverse inference jury charge on missing video. He asserts 

Sergeant Millroy's testimony was false, and that the missing MVR video was a 

"critical piece of evidence," without which he could not "challenge the testimony 

and credibility of the responding officers." We are not persuaded by this 

argument. 

Trial courts have broad discretion in determining the appropriate sanctions 

for discovery-rule violations. State v. Marshall, 123 N.J. 1, 134 (1991) (citing 

State v. Toro, 229 N.J. Super. 215, 223 (App. Div. 1988)). "An adverse-
22 A-0874-19

inference charge is one permissible remedy for a discovery violation . . . ." State 

v. Dabas, 215 N.J. 114, 140 (2013). 

In State v. Richardson, 452 N.J. Super. 124, 134 (App. Div. 2017), we 

addressed the pre-indictment destruction of "unquestionably relevant" evidence 

by the State, and held "the State may not destroy law enforcement's 

videorecording of an offense" by failing to preserve and produce the recording 

where "the recording enables a defendant to test the officer's version of what 

transpired." Id. at 134, 141. We concluded that such destruction "violate[s] [the 

State's] implied obligations under the criminal discovery rules and our caselaw," 

and may warrant "an adverse inference instruction." Id. at 132. Although we 

concluded in Richardson that "defense counsel's timely request to preserve the 

evidence" made a particularly "strong" case "for such an adverse inference 

charge," we recognized "that trial courts are vested with the discretion to fashion 

an appropriate sanction for a violation of discovery obligations" in order "to 

'balance the scales' that the State tilted by permitting the recording's 

destruction." Id. at 137-38. 

Here, we are satisfied that the court did not abuse its discretion in denying 

defendant's request for an adverse inference on the missing video. Defendant 

only contends that the video would have revealed Sergeant Millroy's testimony 
23 A-0874-19

was false by establishing that he recovered defendant's gun from a different 

location. We reject that argument for two reasons. First, as noted by the court 

and the State, defendant failed to establish that any MVR video ever existed. 

Instead, Sergeant Millroy testified that his vehicle's MVR was not running at the 

time of the incident, and he was unaware if Officer Santiago's car was equipped 

with an MVR. 

Second, and significantly, even if video was recorded and depicted the 

recovery of defendant's gun, the specific location from which the gun was 

recovered was not critical to the offense under which defendant was charged. In 

either scenario, defendant's gun would still be recovered after defendant 

discarded it. As such the court did not abuse its discretion in declining to 

provide an adverse interest charge, particularly in light of the court's related 

ruling permitting defendant's counsel to argue the consequence of the missing 

video as it effected the State's proofs, because the location where the weapon 

was found was not "unquestionably relevant" evidence. Richardson, 452 N.J. 

Super. at 141; see also Marshall, 123 N.J. at 134.

IV.

In Point II.B, defendant argues the court committed structural error by 

failing to properly address his requests to proceed pro se. Relying on State v. 
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Rose, 458 N.J. Super. 610 (App. Div. 2019), defendant argues that his 

convictions and sentence should be vacated because the court failed to conduct 

a hearing or substantively consider his request contrary to Faretta v. California, 

422 U.S. 806 (1975). We agree. 

"[A] defendant has a constitutionally protected right to represent himself 

in a criminal trial." Id. at 816; see also State v. Outland, 245 N.J. 494, 505 

(2021). Nonetheless, because a waiver of the right to counsel constitutes a 

relinquishment of "many of the traditional benefits associated with" that right, 

it must be made "knowingly and intelligently." Faretta, 422 U.S. at 835; see

also Outland, 245 N.J. at 505-06. We "review a trial court's denial of a 

defendant's motion to represent himself for abuse of discretion." Id. at 507. 

To assert the right of self-representation, "[a] two-step process has 

emerged." Rose, 458 N.J. Super. at 626. First, in order for the right to attach, 

defendant must assert it "clearly and unequivocally." State v. Harris, 384 N.J. 

Super. 29, 57 (App. Div. 2006) (quoting Faretta, 422 U.S. at 835). In doing so, 

"defendant need only make the request 'unambiguously . . . so that no reasonable 

person can say that the request was not made.'" Rose, 458 N.J. Super. at 627 

(quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986)). 
25 A-0874-19

Defendant's request must also be made "'in a timely fashion' so as not to 

'disrupt the criminal calendar, or a trial in progress.'" Id. at 626 (quoting State 

v. Buhl, 269 N.J. Super. 344, 362 (App. Div. 1994)). However, "the timing of 

the request is only one factor that a court must consider in ruling on a motion to 

proceed pro se." State v. Thomas, 362 N.J. Super. 229, 241 (App. Div. 2003); 

see also Gov't of Virgin Islands v. James, 934 F.2d 468, 469-70 (3d Cir. 1991) 

(finding valid defendant's request to proceed pro se asserted on the day of trial).

Second, the trial court must conduct a hearing to ascertain "whether the 

waiver is indeed knowing, voluntary, and intelligent after a searching inquiry 

that involves advising the defendant of the risks and pitfalls of selfrepresentation." Rose, 458 N.J. Super. at 627; see also Outland, 245 N.J. at 506 

(describing the inquiry); State v. Reddish, 181 N.J. 553, 593-95 (same); Crisafi, 

128 N.J. at 510-12 (same). "Following the hearing, the court generally must 

permit the defendant to proceed pro se if it finds on the record that the defendant 

has knowingly, voluntarily, and intelligently waived the right to counsel and 

decided instead to proceed pro se." Rose, 458 N.J. Super. at 627. A "court's 

failure to address defendant's request [to proceed pro se] is a structural error that 

entitles defendant to a new trial." Id. at 638; see also Outland, 245 N.J. at 507 
26 A-0874-19

("When a defendant's right of self-representation is violated, reversal of the 

defendant's conviction is warranted.").

In State v. Figueroa, the trial court denied defendant's motion to represent 

himself after holding a hearing to determine if he was waiving his right to 

counsel knowingly and voluntarily. 186 N.J. 589, 592, 596 (2006). The manner 

in which the court questioned defendant, however, resulted in him "constantly 

modif[ying] the scope of his request . . . and . . . vacillat[ing] between a request 

for self-representation and a request for hybrid representation." Id. at 595-96. 

While noting that "there is no constitutional right to partial or hybrid 

representation," our Supreme Court held that because the record did not disclose 

the "true nature of defendant's request" it was "compelled to conclude that a 

Faretta/Crisafi/Reddish violation [was] present". Id. at 594, 596. 

In Rose the defendant requested to proceed pro se after the court denied 

his request for substitution of his assigned counsel. 458 N.J. Super. at 621-22. 

The court did not hold a hearing or respond to defendant's request. Id. at 623. 

Defendant proceeded to trial with his appointed counsel and was convicted. 

Ibid. On defendant's appeal from a denial of post-conviction relief, we 

remanded for an evidentiary hearing to determine whether defendant waived his 

right to self-representation and concluded that if defendant did not waive that
27 A-0874-19

right "the court's failure to address defendant's request is a structural error that 

entitles defendant to a new trial." Id. at 638.

Here, defendant asserted that he wished to proceed pro se by stating that 

he "want[ed] to defend [himself]" and "fe[lt] better off going to trial by [himself] 

than going with [counsel]." Indeed, the court acknowledged that request by 

noting that defendant "alluded to" wanting to represent himself and explaining 

that it would have to conduct a Crisafi hearing. Because defendant clearly 

requested to proceed pro se, the court was obligated to conduct a hearing to 

ensure his waiver of his right to counsel was "knowing, voluntary, and 

intelligent." Rose, 458 N.J. Super. at 627. Its failure to do so constitutes 

structural error and compels us to vacate defendant's conviction and order a new 

trial. Id. at 638.

Contrary to the State's argument, the timing of defendant's request did not 

relieve the court of its obligation to hold a hearing. First, we note that the court 

characterized defendant's request as but "a little late," and did not deny the 

application on that basis, nor would it have been appropriate to do so without 

making further inquiry as defendant did not seek an adjournment, nor did the 

court conclude one would have been necessary. Further, while jury selection 

had commenced, a jury was not yet impaneled. In any event, the timing of 
28 A-0874-19

defendant's request, while certainly relevant, is not dispositive as timeliness is 

"only one factor that a court must consider in ruling on a motion to proceed pro 

se." Thomas, 362 N.J. Super. at 241; see also Gov't of Virgin Islands v. James, 

934 F.2d at 469-70; United States v. Peppers, 302 F. 3d 120, 133 (3d Cir. 2002); 

Buhl v. Cooksey, 233 F.3d 783, 794-95 (3d Cir. 2000).

Further, we are satisfied that the court was not relieved of its obligation 

to make further inquiries regarding defendant's desire to proceed pro se simply 

because he also stated he would like a different assigned counsel. In Rose, 458 

N.J. Super. at 628-29, defendant also requested replacement counsel before 

filing an application to represent himself. See also Figueroa, 186 N.J. at 595-

596 (court vacated defendant's convictions findings a "Faretta/Crisafi/Reddish

violation" when it was unclear if defendant sought to engage in hybrid 

representation or represent himself). 

In sum, our decision to vacate defendant's convictions and remand for a 

new trial is based substantially on the fact that the court failed to conduct any

substantive inquiry as required by Outland, Faretta, Crisafi, and Reddish, and 

that failure was of constitutional import in light of defendant's request to appear 

pro se. On remand, "[b]ecause the violation . . . is of constitutional dimension, 

defendant . . . [shall be] entitled to exercise his constitutional rights anew." 
29 A-0874-19

Figueroa, 186 N.J. at 596. If he still wishes to represent himself, "[the 

defendant] must once again affirmatively request to proceed pro se," at which 

point "the court must conduct an appropriate inquiry." Ibid. (alteration in 

original) (quoting Buhl, 233 F.3d at 807 n.25). 

In light of our decision, we need not reach defendant's argument in Point 

II.C that the court also erred in failing to make appropriate inquiry consistent 

with Martel v. Clair, 565 U.S. 648, 664 (2012) regarding his request for 

replacement counsel, other than to state that in the event defendant decides to 

renew his request, as opposed to seeking to proceed pro se, the court should 

address the bases for that request in a substantive manner and determine if 

sufficient cause exists for replacement counsel to be assigned. See Crisafi, 128 

N.J. at 518 ("If a defendant has good cause for substituting counsel, the trial 

court should entertain a request."); State v. Coon, 314 N.J. Super. 426, 438 (App. 

Div. 1998) ("[A] court may not require the Public Defender to assign new 

counsel to a defendant who was dissatisfied with the attorney assigned to 

represent him, absent a showing of 'substantial cause.'" (quoting State v. 

Lowery, 49 N.J. 476, 489 (1967))); United States v. Calabro, 467 F.2d 973, 986

(2d Cir. 1972) (If a court refuses to inquire into a seemingly substantial 

complaint about counsel . . . or if on discovering justifiable dissatisfaction a 
30 A-0874-19

court refuses to replace the attorney, the defendant may then properly claim 

denial of his Sixth Amendment right.)

To the extent we have not addressed any specific contentions in the 

previous sections, it is because we have concluded they are of insufficient merit 

to warrant discussion in a written opinion. R. 2:11-3(e)(2). As noted, in light 

of our decision, we do not reach the additional arguments raised by defendant 

in Points II.C, III, and IV.

Reversed and remanded for a new trial consistent with our opinion. We 

do not retain jurisdiction.