SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3774-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND A. MCNEIL,

Defendant-Appellant.

___________________________

Argued April 3, 2019 – Decided July 15, 2019

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 15-04-1154.

Margaret R. McLain, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Elizabeth C. Jarit,

Assistant Deputy Public Defender, of counsel and on 

the brief). 

Maura Murphy Sullivan, Assistant Prosecutor, argued 

the cause for respondent (Mary Eva Colalillo, Camden 

County Prosecutor, attorney; Maura Murphy Sullivan, 

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NOT FOR PUBLICATION WITHOUT THE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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A-3774-16T3

PER CURIAM

The State presented evidence to a petit jury that defendant Raymond A. 

McNeil pointed a power drill wrapped in a towel at a bank teller and twice told 

her, "Give me all the money bitch." When the teller did not respond, defendant

left the bank without money. He was later tracked to a nearby abandoned 

building by a K-9 unit following a dispatcher's advice that the bank robber "fled 

towards the Avondale neighborhood, which is directly across Sicklerville Road" 

from the bank. The jury found defendant guilty, and defendant appeals from his 

convictions and aggregate twenty-year sentence, subject to the No Early Release 

Act, N.J.S.A. 2C:43-7.2, for first-degree robbery, N.J.S.A. 2C:15-1, thirddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), 

and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He 

argues:

POINT I

THE ADMISSION OF HEARSAY STATEMENTS IN 

THE FORM OF THE CALL FROM DISPATCH AND 

STATEMENTS MADE BY UNNAMED, NONTESTIFYING WITNESSES VIOLATED 

[DEFENDANT'S] CONSTITUTIONAL RIGHT TO 

CONFRONTATION.
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POINT II

THE CANINE HANDLER'S TESTIMONY FAR 

EXCEEDED THAT PERMITTED BY A LAY 

WITNESS; ADMITTING THIS TESTIMONY 

WITHOUT QUALIFYING THE WITNESS AS AN 

EXPERT DENIED [DEFENDANT] DUE PROCESS 

AND A FAIR TRIAL.

POINT III

[DEFENDANT'S] ROBBERY CONVICTION MUST 

BE REVERSED BECAUSE ATTEMPTED THEFT 

WAS THE BASIS FOR ROBBERY AND THE TRIAL 

COURT FAILED TO INSTRUCT THE JURY ON THE 

LAW OF ATTEMPT AS AN ELEMENT OF 

ROBBERY.

POINT IV

THE CUMULATIVE IMPACT OF THE ERRORS 

DENIED [DEFENDANT] DUE PROCESS AND A 

FAIR TRIAL.

POINT V 

BECAUSE [DEFENDANT'S] REQUEST TO 

PROCEED PRO SE WAS BOTH KNOWING AND 

VOLUNTARY, THE DENIAL OF HIS MOTION 

VIOLATED HIS CONSTITUTIONAL RIGHTS TO 

SELF-REPRESENTATION.

POINT VI

THE SENTENCING COURT'S IMPROPER 

CONSIDERATION OF [DEFENDANT'S] PRIOR 

ARRESTS THAT DID NOT LEAD TO CONVICTION 

AND HIS SUBSTANCE ABUSE HISTORY IN 
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FINDING AGGRAVATING FACTORS, AS WELL 

AS THE FAILURE TO PROPERLY MERGE TWO OF 

THE CONVICTIONS, REQUIRES A REMAND FOR 

RESENTENCING. 

A. Consideration of two prior arrests where the 

charges were dismissed violates State v. K.S.

B. Consideration of the defendant's substance abuse 

history in finding aggravating factor three 

violates State v. Baylass.

C. The robbery and possession of a weapon for an 

unlawful purpose convictions must merge.

We agree the trial court erred in denying defendant's request to represent himself 

and reverse.

Although represented by counsel, defendant, in the words of the trial

court, "submitted a document . . . titled, [']Re: Notice of Proceeding Pro Se.'" 

Despite defendant's failure to comply with the motion-filing requirements of the 

Rules of Court, the trial court "treated that as a [m]otion for [s]elf-

[r]epresentation."

The trial court fully appreciated its duty to conduct a "searching 

examination" essential "to assure that a defendant's waiver of counsel is made 

'knowingly and intelligently.'" State v. King, 210 N.J. 2, 18, 20 (2012) (quoting

State v. Crisafi, 128 N.J. 499, 509 (1992)); see also State v. Reddish, 181 N.J. 

553, 592 (2004) (explaining "in order for a defendant to waive the assistance of 
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counsel in a knowing and intelligent way, he also must know in a basic fashion 

the fundamental legal rights and issues that will be affected by his decision"). 

The court, obviously familiar with our Supreme Court's requirements, explored 

in its colloquy with defendant:

(1) the nature of the charges, statutory defenses, and 

possible range of punishment;

(2) the technical problems associated with selfrepresentation and the risks if the defense is 

unsuccessful;

(3) the necessity that defendant comply with the rules 

of criminal procedure and the rules of evidence;

(4) the fact that the lack of knowledge of the law may 

impair defendant's ability to defend himself or herself;

(5) the impact that the dual role of counsel and 

defendant may have;

(6) the reality that it would be unwise not to accept the 

assistance of counsel;

(7) the need for an open-ended discussion so that the 

defendant may express an understanding in his or her 

own words;

(8) the fact that, if defendant proceeds pro se, he or she 

will be unable to assert an ineffective assistance of 

counsel claim; and

(9) the ramifications that self-representation will have 

on the right to remain silent and the privilege against 

self-incrimination.
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[State v. DuBois, 189 N.J. 454, 468-69 (2007).]

The trial court made defendant "aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that 'he knows what he is doing 

and his choice is made with eyes open.'" Faretta v. California, 422 U.S. 806, 

835 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 

(1942)).

The colloquy revealed defendant was an inexperienced self-advocate who 

was unfamiliar with many of the legal tenets and complexities related to his trial. 

But when asked by the court, "In light of the penalty that you might suffer if 

you're found guilty and in light of all the difficulties of representing yourself, is 

it still your desire to represent yourself and give up your right to be represented 

by a lawyer?" defendant replied, "What I want to do is defend myself." When 

asked if he wanted to think about his decision over the weekend, defendant 

initially replied, "I'm certain today." When asked again, defendant said he 

would think about it over the weekend but was "almost certain" his decision 

would not change. The next Monday, defendant reiterated his desire to proceed 

pro se, whereupon the court delivered its oral decision denying the motion. 

From the colloquy with defendant, the court found he "had no prior 

experience, which certainly would not preclude him from representing himself." 
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But the court also found defendant had no or an incomplete understanding of the 

indicted charges, statutory defenses, range of punishment he faced, Rules of 

Evidence, Rules of Court, how to separate his role as defendant and counsel and 

protect his right against self-incrimination. The court cited to motions and other 

documents defendant had filed on his own behalf advancing arguments and 

requests based on the Uniform Commercial Code, and concluded:

The defendant's filings, his statements to the [c]ourt 

throughout this case reflect to me that [he] simply, at 

this point, doesn't have a sufficient understanding of the 

case, does not have a sufficient understanding of the 

defenses, does not have a sufficient understanding of 

the proofs or how to establish information in this case, 

does not have a sufficient comprehension of what this 

case involves and how it can be defended in order to 

make an appropriate, knowing waiver. . . . I'm not 

satisfied that he fully understands the nature and 

consequences of his request and I do find that were I to 

grant his request for self-representation, it would 

seriously jeopardize . . . the State's . . . strong interest 

in ensuring the fairness of judicial proceedings. And, 

given the conduct and statements which have been 

made by [defendant] . . . based on what I have observed, 

were I to grant that request, [it] would create a 

substantial risk of conviction, regardless of whether . . 

. defendant was proved to be guilty beyond a reasonable 

doubt.

The court reiterated its concern about defendant's reliance on the Uniform 

Commercial Code in a criminal case and stated, "without his understanding of 

. . . these issues, among others, I don't find that he fully understands the nature 
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and consequences of his request and I find his lack of knowledge in these areas 

precludes an intelligent waiver of his right to counsel."

We recognize the trial court is "in the best position to evaluate defendant's 

understanding of what it meant to represent himself and whether defendant's 

decision to proceed pro se was knowing and intelligent," and review the trial 

court's determination of whether a defendant "knowingly and intelligently 

waived his right to counsel" for an abuse of discretion. DuBois, 189 N.J. at 475. 

Our Supreme Court, citing to Faretta, 422 U.S. at 814, held, "The corollary 

to the right of a criminal defendant to be represented by an attorney is the 

defendant's right to represent himself." King, 210 N.J. at 16. Although the right 

of self-representation is "not absolute" and "cannot be used to jeopardize the 

State's equally strong interest in ensuring the fairness of judicial proceedings 

and the integrity of trial verdicts," id. at 18, the risks associated with defending

oneself do not provide a "basis to deny a defendant the right to make that 

choice," id. at 17. After a trial court engages in the obligatory colloquy with a 

defendant, "its goal is not to explore a defendant's familiarity with '"technical 

legal knowledge[,]"' for that is not required. Rather, 'the trial court must 

question defendant to ascertain whether he actually understands the nature and 

consequences of his waiver.'" King, 210 N.J. at 19 (alteration in original) 
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(citation omitted) (quoting Reddish, 181 N.J. at 594, 595). A court should not 

focus on "whether a pro se defendant will fare well or badly," but it must "ensure 

that he knows and understands that, by his choice, he may not do well." Reddish, 

181 N.J. at 592. Questions on "technical legal knowledge" are "essentially 

immaterial," and the pertinent determination is whether the defendant 

"comprehended the risks and consequences of acting as his own attorney." King, 

210 N.J. at 20-21.

Defendant's lack of "technical legal knowledge" is similar to that of the 

defendant in King who was unable to express familiarity with statutory law, 

penalties he faced, Rules of Evidence, defenses or other legal tenets. 

Nonetheless, that defendant expressed full understanding of what was "going 

on," id. at 11, and expressed his desire to represent himself even though that 

choice "could cause [him] some problem[s]," id. at 14. The trial court's denial 

here, based on substantially the same reasons as the trial court's denial in King, 

see id. at 14, deprived defendant of his right of self-representation requiring

reversal. "The right [of self-representation] is either respected or denied; its 

deprivation cannot be harmless." Id. at 22 (alteration in original) (quoting 

McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)).
10 A-3774-16T3

We fully understand the trial court's concern about defendant's 

unfamiliarity with the law and the risk that he would insert anomalous legal 

theories into the trial and jeopardize his right to a fair trial and proper verdict.

But defendant fully understood his inadequacies. His choice to proceed pro se, 

despite the pitfalls, was knowing and intelligent. See DuBois, 189 N.J. at 475. 

Further, the record did not demonstrate that defendant would disregard the 

court's instruction or be disruptive; and if he acted inappropriately, the court 

could have taken steps to rectify such behavior.

The denial of defendant's application to proceed pro se requires reversal; 

as such, we need not fully address defendant's remaining arguments. If 

defendant is retried, however, we note several issues that may lead to error if 

not properly warded.

 Defendant raised the admission of two hearsay statements during the trial 

he avers resulted in error. A detective who accompanied the K-9 unit to the 

abandoned building where defendant was found testified that while en route to 

the bank, he received

further radio transmissions . . . stating that the person 

had fled towards the Avondale neighborhood, which is 

directly across Sicklerville Road, from the . . . [b]ank. 

So there was no reason to respond to the bank when 

there'[re] officers already there. So I responded 

towards the neighborhood, obviously, because that's –
11 A-3774-16T3

makes more sense, in reality. . . . Hewitt Lane is where 

we were told as an update to go and dispatch to Hewitt 

Lane.

In the second hearsay statement, during a recorded statement defendant gave to 

the police that was twice played to the jury, an unidentified officer summarizing 

the evidence amassed against him told defendant, "The guy runs out of the bank, 

runs across Sicklerville Road . . . goes into Avondale. People see him running, 

they see him run around the corner . . . ." 

It is highly prejudicial "to admit an out-of-court declaration by an 

anonymous witness implicating defendant in the crime for which he stands trial 

which is not subjected to cross-examination . . . ." State v. Alston, 312 N.J. 

Super. 102, 114 (App. Div. 1998). Generally, police officers may not testify 

about information supplied to them by non-testifying witnesses. "When the 

logical implication to be drawn from the testimony leads the jury to believe that 

a non-testifying witness has given the police evidence of the accused's guilt, the 

testimony should be disallowed as hearsay." State v. Bankston, 63 N.J. 263, 271 

(1973). As the Court later stated in State v. Branch, 182 N.J. 338, 352 (2005), 

the phrase "'based on information received' may be used by police officers to 

explain their actions, but only if necessary to rebut a suggestion that they acted 
12 A-3774-16T3

arbitrarily and only if the . . . phrase does not create an inference that the 

defendant has been implicated in a crime by some unknown person."

Although presented in different modes, the hearsay statements presented 

by the State traced what the State contended was defendant's path of travel after 

he left the bank. No evidence other than the detective's recount of the dispatch 

he received placed the perpetrator crossing Sicklerville Road and entering 

Avondale, running around the corner. The hearsay evidence linked testimony 

from one of the State's trial witnesses that he saw a man run across an area where 

the K-9 unit began to track defendant to the bank robber's route – and eventually 

to the building where defendant was found.

If admissible under the holdings of Bankston and Branch, hearsay 

"testimony should be limited in a manner that allows the witnesses to provide 

appropriate context but not secondhand details about the crime of the 

defendants." State v. Luna, 193 N.J. 202, 217 (2007). Thus, a witness may 

testify to taking investigative steps based "upon information received," 

Bankston, 63 N.J. at 268-69, but "cannot repeat specific details about a crime 

relayed to [him] by a radio transmission or another person without running afoul 

of the hearsay rule," Luna, 193 N.J. at 217.
13 A-3774-16T3

Although defendant highlighted only those two instances, we note at least 

one other. The officer who encountered the State's witness who saw the man 

running across the area testified that, although he was dispatched to the bank, 

he changed direction because he was given "the description of the suspect 

fleeing the area going towards [an address on] Sicklerville Road." The trial 

court should be vigilant in guarding against improper admission of hearsay 

statements in violation of the principles of Bankston and Branch.

We also observe that the K-9 officer testified at trial – without being 

qualified as an expert – about his training and expertise, explained the 

techniques used to track suspects using dogs, and explained his dog's behavior 

while tracking defendant.

In State v. Parton, 251 N.J. Super. 230 (App. Div. 1991), adopting Judge 

Menza's "comprehensive analysis and conclusions on the subject" from State v. 

Wanczyk,

1 we established the 

universally accepted prerequisites to the admission of 

testimony regarding dog tracking:

1. The dog's handler must have sufficient knowledge, 

skill, training or experience to evaluate the dog's 

actions.

 

1 196 N.J. Super. 397 (Law Div. 1984), rev’d on other grounds, 201 N.J. Super. 

258 (App. Div. 1985).
14 A-3774-16T3

2. Once qualified as an expert, the handler must give 

testimony about the particular dog used and that the dog 

a. is of a stock characterized by acute scent and 

power of discrimination and that this particular 

dog possessed those qualities;

b. was trained and tested and proved to be reliable 

in the tracking of human beings;

c. was laid on a trail where circumstances tended 

to show that the suspect has been, or a track 

which circumstances indicated was made by the 

suspect; and

d. followed the scent or track to or towards the 

suspect's location and that the dog was properly 

handled during tracking.

3. After this foundation has been laid, the handler may 

testify as to what the dog did during the tracking and 

give his interpretation and opinion of the dog's actions.

[Parton, 251 N.J. Super. at 233-34 (emphasis added).]

Before admitting the K-9 officer's testimony, the trial court must adhere 

to Parton's analysis and ascertain if the officer's testimony qualifies for 

admission as expert testimony. If admitted, the jury should be properly 

instructed as to the use to which it may put that expert testimony. See Model 

Jury Charge (Criminal), "Expert Testimony" (rev. Nov. 10, 2003). 

The State never contended defendant took money from the bank thus 

completing a theft. In charging the jury on robbery, the trial court included that 
15 A-3774-16T3

portion of the instruction explaining that an element of robbery – "in the course 

of committing a theft" – includes "an attempt to commit the theft." See N.J.S.A. 

2C:15-1(a). Despite the Model Jury Charge instruction requiring it to do so,2

the court never defined "attempt."

3 See State v. Belliard, 415 N.J. Super. 51, 72 

(App. Div. 2010). It did not tell the jury that the State was required to prove 

defendant's conduct during the attempt was purposeful, N.J.S.A. 2C:5-1(a)(3), 

or that the conduct constitutes a "substantial step" if "it is strongly corroborative 

of the actor's criminal purpose," N.J.S.A. 2C:5-1(b).

A trial court's "failure to charge the jury on an element of an offense is 

presumed to be prejudicial error, even in the absence of a request by defense 

counsel," requiring reversal. State v. Federico, 103 N.J. 169, 176 (1986). "To 

provide the jury with an accurate 'road map,' the judge was required to 

specifically charge in accord with the Model Criminal Charge defining attempt." 

State v. Gonzalez, 318 N.J. Super. 527, 535 (App. Div. 1999). Following 

 

2

 Model Jury Charge (Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-

1)" (rev. Sep. 10, 2012). 

3

 A defendant may be found guilty of "attempt" to commit a crime if he 

"[p]urposely does or omits to do anything which, under the circumstances as a 

reasonable person would believe them to be, is an act or omission constituting a 

substantial step in a course of conduct planned to culminate in his commission 

of the crime." N.J.S.A. 2C:5-1(a)(3).
16 A-3774-16T3

Gonzalez, we held the failure to define attempt – "a critical element of robbery" 

– in connection with the jury instruction for the crime was plain error. State v. 

Dehart, 430 N.J. Super. 108, 120 (App. Div. 2013). In order to avoid a similar 

result, the trial court should define attempt in its jury charge.

Lastly, we note the trial court did not merge defendant's conviction for 

possession of a weapon for an unlawful purpose with robbery. "When the only 

unlawful purpose in possessing the [weapon] is to use it to commit the 

substantive offense, merger is required." State v. Diaz, 144 N.J. 628, 636 

(1996). In charging the jury on possession of a weapon for an unlawful purpose, 

the court instructed the jury "the State contends that the defendant's unlawful 

purpose in possessing the weapon was to intimidate the victim . . . during the 

course of attempting to commit a theft." In that the only purpose alleged was to 

commit an element of robbery, possession of a weapon for an unlawful purpose 

should have merged into that crime.

Reversed and remanded for proceedings consistent with this opinion. We 

do not retain jurisdiction.