The Appellate Division has issued a published decision affirming denial of a defendant's request for resentencing because of strained relations with his attorney, who contended that his client hurled discriminatory remarks and threatened him.

The defendant, Andre Coclough, convicted of third-degree burglary and fourth-degree criminal mischief, lodged the appeal with a new defense attorney, arguing a total breakdown in communication and rapport with his previous counsel.

The panel, noting that attorney and client both agreed to go ahead with sentencing despite the breakdown, ruled that granting such a request could give defendants an upper hand in unnecessarily delaying trials.

The court was “wary of establishing a rule recognizing a conflict of interest whenever a defendant threatens, demeans, or insults his attorney,” Appellate Division Judge Mitchel Ostrer wrote for the panel. “Such a rule would endow the defendant with the unilateral power to create a self-serving conflict that would compel the withdrawal of counsel and delay proceedings.”

“Defendant contends he is entitled to a new sentencing with new counsel based on the breakdown of the attorney-client relationship,” Ostrer said. “We disagree.”

“That defendant had a conflict with his attorney does not necessarily mean his attorney had a conflict of interest,” Ostrer said.

Appellate Division Judges Ellen J. Koblitz and Jessica R. Mayer joined in the decision.

The case was on appeal from Hudson County Superior Court.

Public defender Tamar Lerer represented Coclough on the appeal. Reached Friday, Deputy Public Defender Joseph J. Russo said, “We are still reviewing the decision and weighing our options. We are considering filing for certification with the New Jersey Supreme Court.”

Hudson County Prosecutor Esther Suarez was the attorney for the state. She also did not return a call.

According to the May 2 decision, Coclough was convicted for an incident in which he, another man, identified as Dione Pegues, and an unnamed female entered an apartment building in Jersey City without permission; then, together with the other man, he forcibly removed four interior surveillance cameras, the court said. Coclough did not testify or present any defense witnesses at trial. The jury convicted him of burglary and criminal mischief, and acquitted him of theft by unlawful taking.

After denying the state's motion for an extended term, the court imposed a four-year term on the burglary conviction, concurrent with an 18-month term on the criminal mischief conviction.

In his appeal from his conviction, in addition to the attorney-client issue, Coclough also raised issues regarding the court's jury instructions and police witnesses' identification-related testimony. The panel said such contentions lacked merit and warranted only brief comment.

Instead, the panel focused its attention on Coclough's argument that he must be resentenced because of a breakdown in his relationship with his trial counsel.

“A defendant is entitled to conflict-free representation,” Ostrer wrote. “But, he may not profit from undermining his attorney-client relationship through his own abusive or threatening conduct.”

The panel noted that despite Coclough's insults and threats, his attorney wished to proceed to trial and sentencing, as did Coclough.

According to the decision, the relationship between Coclough and his defense attorney was disclosed by the attorney, unnamed by the appellate court, at the sentencing hearing.

The attorney said his relationship with Coclough had deteriorated to the point that Coclough had threatened to harm him, the Appellate Division said, which include excerpts from the beginning of the sentencing hearing transcript in the opinion. The defense counsel said, “'Judge, I made an attempt to review the pre-sentence report with Mr. Coclough. Unfortunately, after going through one page, he made disparaging remarks both anti-Semitic and homophobic, became irate in the jury room, and let's not beat around the bush, threatened me, and knows where I live. So I attempted to get through it. But I'm ready to proceed.'”

“'I'm done playing with him,'” Coclough said of his attorney, according to the excerpt.

But, asked by the judge, attorney and client both said they wanted to proceed.

The Appellate Division, in affirming the denial of resentencing, noted how the defense counsel, even after the breakdown, argued successfully against the state's motion for an extended incarceration term.

“Although defendant expressed dissatisfaction with defense counsel, he did not state he wanted to discharge him and represent himself, nor did he request appointment of new counsel,” Ostrer wrote.

“Defense counsel, for his part, did not state that he was unable to proceed. In that respect, this case is distinguishable from State v. Vasquez, 432 N.J. Super. 354 (App. Div. 2013), upon which defendant relies,” the court said. In that case, the court ruled that the defendant indicated he wanted to replace his attorney, but that the defendant was not entitled to a change of appointed counsel “absent a showing of 'substantial cause.'”

“Although an irreconcilable conflict establishes good cause, courts warn that defendant cannot manufacture good cause by abusive and uncooperative behavior,” wrote the panel.

The panel said a criminal defendant's constitutional guarantee of loyal counsel and open communication does not always guarantee good attorney-client rapport, “particularly when the rapport is undermined by the defendant's own abusive or threatening conduct.”

Ostrer wrote, “It is surely not the first time that a defendant has cast aspersions on or threatened his or her defense counsel. We condemn abusive or threatening conduct.

“Yet, the defense attorney is usually in the best position to determine whether a client is merely blowing off steam or poses a real threat that disables the attorney—from a sense of self-preservation or extreme aversion for the client—from providing diligent and loyal representation.”

Added Ostrer: “Here, defense counsel did not move to withdraw. … Defense counsel then presented a successful argument opposing an extended term.”

On the identification issue, the court noted that the state's principal witness was an administrator for the apartment building that the trio allegedly entered. She authenticated a video recording from the building's digital surveillance system, which was admitted into evidence. The recording depicted a woman forcing open the door to the building, then two men following her in. The administrator testified that none was a tenant of the building or had permission to enter the building.

A recording entered as evidence allegedly showed Coclough strike the cameras to loosen them from the wall before Pegues removed them, and the recording also showed Coclough and Pegues leave the building, but they carried nothing in their hands, the court said.

A few days later, relying on a “be on the lookout” flyer that included still photos taken from the recording, Jersey City Police Sgt. Dino Nerney arrested Coclough and Pegues because they “fit the description facially and by their clothing in the recorded video.”

The panel said identification was not a “key issue” in the case since defense counsel for Coclough conceded at the outset of trial that Coclough was one of the men in the video entering the building.

Admitting that he was the man depicted in the video, Coclough complained that his attorney told him not to take the stand and did not subpoena a witness that he requested before the court imposed his sentence, according to the decision.