STATE OF NEW JERSEY VS. MARWIN MCKOY(13-12-3133, ATLANTIC COUNTY AND STATEWIDE), A-4138-15T1

Background

On Aug. 2, 2013, NJ State Police surveilled an Atlantic City location; troopers detained Marwin McKoy after he approached an unmarked van, resisted, and attempted to flee. Officers recovered 20 bags of heroin and a loaded .22 handgun from items McKoy carried.
McKoy was indicted on multiple charges including third‑degree heroin possession, second‑degree unlawful weapon possession, and a second‑degree "certain persons" firearms offense (N.J.S.A. 2C:39‑7) based on prior convictions. Some counts were dismissed or severed before trial.
A jury convicted McKoy of heroin possession, unlawful possession of a weapon, and the certain‑persons firearms offense. The court imposed concurrent terms: five years for heroin, ten years (with Graves Act ineligibility) concurrent for unlawful weapon possession, and a fifteen‑year persistent‑offender term (with parole ineligibility) for the certain‑persons conviction. McKoy was also serving an aggregate sentence for violations of probation.
On appeal (represented and pro se supplemental briefs), McKoy raised: (1) alleged failure to sanitize the predicate conviction in the certain‑persons charge; (2) trial court’s failure to advise him of the right to self‑representation after he expressed dissatisfaction with counsel; (3) resentencing to consider concurrency with his VOP sentence; and multiple pro se claims (Brady, manufactured evidence, entrapment, confrontation, Rule 404(b) issues).
The Appellate Division affirmed convictions but remanded for resentencing so the trial court can decide, under Yarbough factors, whether the new sentences should run concurrently with or consecutively to the VOP sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury charge improperly failed to "sanitize" the nature of McKoy's predicate conviction for the certain‑persons offense	State: The court properly instructed the jury and gave limiting language after the stipulation; disclosure of the prior offense was permissible where defendant revealed it	McKoy: The jury should have been told only the bare fact of a qualifying conviction (sanitized), not the nature (possession with intent)	No plain error. Court found defendant chose to inform jury of the conviction's nature; limiting instruction was given; charge was proper.
Whether court violated McKoy's right to self‑representation by not advising him of that right after he complained about counsel	State: No unequivocal request to proceed pro se occurred, so no Faretta inquiry required	McKoy: He expressed dissatisfaction and asked why he could not fire counsel; court should have informed him of right to self‑representation	Harmless/no error. Defendant never clearly and unequivocally asserted a desire to proceed pro se; no duty to conduct Faretta inquiry.
Effectiveness of counsel for stipulating to the nature of the predicate conviction	State: Strategic choices are within counsel's province; inquiry requires record beyond trial transcript	McKoy: Counsel was ineffective for stipulating to the predicate's nature, prejudicing him	Declined to decide on direct appeal. Court held claim more appropriate for PCR because it requires facts outside the record.
Whether resentencing is required to consider concurrency with VOP sentence	State: Trial court did not rule on concurrency; remand appropriate	McKoy: Requested remand for reconsideration of concurrent sentences	Remand granted. Court ordered resentencing for the trial court to apply Yarbough factors and decide concurrency.

Key Cases Cited

State v. Brown, 180 N.J. 572 (2004) (stipulation to prior conviction is conclusive but sanitization required unless defendant chooses otherwise)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
State v. Preciose, 129 N.J. 451 (1992) (ineffective assistance claims ordinarily pursued in PCR proceedings)
State v. Harris, 384 N.J. Super. 29 (App. Div. 2006) (defendant must clearly and unequivocally assert right to self‑representation)
State v. Vasquez, 432 N.J. Super. 354 (App. Div. 2013) (failure to establish waiver of counsel at sentencing can be reversible when defendant stops cooperating with counsel)
State v. Yarbough, 100 N.J. 627 (1985) (factors trial court must consider when deciding concurrency or consecutiveness of sentences)
State v. Miller, 205 N.J. 109 (2011) (decision on concurrent vs. consecutive sentences rests with trial court)