                        NOT FOR PUBLICATION WITHOUT THE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.



                                       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 October 4, 2017

              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
       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

                                        2                                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)

                                      3                                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).

                                4                          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

                                     5                                    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.

                                          6                                 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

                                      7                                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.



                                  8                         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



                                         9                                       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.

                                  10                                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.



                                11                          A-4138-15T1
       The record, however, cannot reveal what occurred during off-

the-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.

                                       12                              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 self-

representation 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

                                   13                            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



                                      14                                 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).

                                     15                              A-4138-15T1
    Affirmed in part; remanded in part for resentencing.     We do

not retain jurisdiction.




                             16                            A-4138-15T1
