STATE OF NEW JERSEY VS. DANTE L. GORDON (16-10-0797, PASSAIC COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4111-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANTE L. GORDON,

          Defendant-Appellant.


                   Submitted January 6, 2021 – Decided April 1, 2021

                   Before Judges Whipple, Rose and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 16-10-0797.

                   Ricci & Fava, LLC, attorneys for appellant (Ronald J.
                   Ricci, on the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
        A jury convicted defendant Dante L. Gordon of aggravated assault,

N.J.S.A. 2C:12-1(b)(3), for recklessly shooting John Smith outside a 7-Eleven

convenience store in Paterson. The shooting occurred in the early morning hours

of February 25, 2016, shortly after defendant left a strip club. Employed as a

police officer with the Paterson Police Department, defendant was off duty and

carrying his personal revolver.

        During the eight-day trial, the State presented the testimony of multiple

law enforcement and lay witnesses. By all accounts, as defendant was leaving

the 7-Eleven, he argued with Travis Mann, a homeless person, who was blocking

the door. Witnesses heard defendant tell Mann: "Don't think I won't blow your

brains out right now" and "tell me a reason why I shouldn't kill you or shoot

you?"

        Smith was standing nearby. According to his testimony, defendant fired

a single shot, which "ricocheted" and struck Smith in the leg. Mann did not

testify at trial. But the shooting was recorded by surveillance cameras and video

footage was shown to the jury.

        Defendant testified and presented the testimony of Steven Olimpio, an

expert in the Attorney General Guidelines on Law Enforcement Use of Force

(Guidelines). Contending Mann threatened to stab him, defendant told the jury


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he acted under constructive authority as permitted under the Guidelines. But

defendant did not display his police badge, call for police support, or render aid

to Smith. Instead, defendant told Smith to "get the fuck outta here." Defendant

also claimed the revolver accidentally discharged.

      On appeal, defendant challenges his conviction, raising the following

points for our consideration:

                                    POINT I

            THE TRIAL COURT ERRED BY PERMITTING THE
            STATE TO ADMIT IN EVIDENCE THAT
            [DEFENDANT] LEFT A STRIP[]CLUB JUST
            BEFORE THE SHOOTING INCIDENT OUTSIDE OF
            THE 7[-ELEVEN] STORE.

                                    POINT II

            THE TRIAL COURT ERRED BY RULING THAT
            THE    DEFENSE    EXPERT'S     PROPOSED
            TESTIMONY THAT [DEFENDANT]'S HANDGUN
            DISCHARGED ACCIDENTALLY AND THAT
            [DEFENDANT] ACTED APPROPRIATELY AND
            WITHIN   THE   [GUIDELINES]    WAS    AN
            INADMISSIBLE   "NET   OPINION,"   WHICH
            DEPRIVED [DEFENDANT] OF A FAIR TRIAL.

                                   POINT III

            THE TRIAL COURT ERRED BY NOT GRANTING
            [DEFENDANT]'S REQUEST FOR AN ADVERSE
            INFERENCE JURY CHARGE CONCERNING THE
            STATE'S FAILURE TO CALL THEIR [SIC]
            ALLEGED VICTIM TRAVIS MANN.

                                                                            A-4111-18
                                        3
Finding no merit in any of these contentions, we affirm defendant's convictions,

but we remand for the limited purpose of correcting the judgment of conviction

(JOC).1

                                        I.

      Defendant's first two points challenge the trial judge's evidentiary rulings.

Ordinarily, the admissibility of evidence during trial rests within "the sound

discretion of the trial court." State v. Willis, 

225 N.J. 85

, 96 (2016). Absent a

clear error in judgment, we typically uphold a trial judge's evidentiary rulings.

State v. J.A.C., 

210 N.J. 281

, 295 (2015). We therefore afford substantial

deference to trial judges when evaluating their evidentiary determinations, State

v. Cole, 

229 N.J. 430

, 449 (2017), which we review for abuse of discretion, State

v. Green, 

236 N.J. 71

, 81 (2018).


1
    Defendant was charged in a five-count Passaic County indictment with
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a)(1) (count one); third-degree terroristic threats against Mann, N.J.S.A.
2C:12-3(a) and (b) (count two); fourth-degree aggravated assault by pointing a
firearm at Mann, N.J.S.A. 2C:12-1(b)(4) (count three); and fourth-degree
aggravated assault by recklessly causing bodily injury with a deadly weapon,
N.J.S.A. 2C:12-1(b)(3), against Mann (count four) and Smith (count five). The
jury acquitted defendant of counts one through three. Prior to trial, the State
apparently moved to dismiss count "four" of the indictment, but the JOC
erroneously states count "five" was dismissed. Based on our review of the
record, defendant was convicted of count five of the indictment, renumbered as
count four on the jury verdict sheet.
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                                        4
                                       A.

      In anticipation of testifying, defendant moved midtrial to preclude the

prosecutor from asking whether he was present at a strip club just prior to the

shooting, and whether he had consumed alcohol while at that establishment.

During argument at the conclusion of the State's case-in-chief, defendant noted

the State had not presented any evidence that defendant was intoxicated and, as

such, his presence at the strip club was irrelevant. Defendant further argued that

"a significant part of our community finds strip bars or go-go bars or . . .

gentlemen clubs morally objectionable."

      In a well-reasoned oral decision, the trial judge rejected defendant's "two-

fold argument" that the probative value of the challenged evidence was

outweighed by any relevance under N.J.R.E. 403, and constituted a prior bad act

or wrong under N.J.R.E. 404(b). Pertinent to this appeal, the judge recognized

the evidence was prejudicial in that it was different from, "for example,"

attending "church [and] praying," and correctly concluded the evidence was not

unduly prejudicial. The judge reasoned: "It gives context; it explains what he

was doing before; . . . how far he was from the 7-Eleven; why his car was parked

where it was."




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                                        5
      The trial judge also aptly rejected defendant's reliance on our decision in

Gustavson v. Gaynor, 

206 N.J. Super. 540

(App. Div. 1985). In that case, the

defendant admitted consuming two or three bottles of beer, five to six hours

before a motor vehicle accident, but there was no blood test available and no

eyewitness testimony corroborating the defendant's intoxication.

Id. at 542-44.

We concluded "[t]he mere fact that a driver had consumed some alcoholic

beverages is by itself insufficient to warrant an inference that the driver was

intoxicated and that the intoxication was of such a degree as to render him unfit

to drive at the time of the accident."

Id. at 545.

      By contrast, in the present case, intoxication was not an issue. As the trial

judge concluded:     "There's no indication that there was intoxication here.

There's no intoxication defense. There's no allegation by the State that [the

shooting] occurred as a result of intoxication and that's clear." Having discerned

no abuse of discretion in the judge's decision to deny defendant's application,

we similarly reject defendant's renewed reliance on Gustavson.

      Nor are we persuaded by defendant's alternate argument that the judge

failed to sanitize the term, "strip club." On appeal, defendant contends "the jury

could only conclude that [he] was a person of low moral character for being at




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a strip[]club," 2 citing – without analyzing – our decision in State v. Bryant, 

237

N.J. Super. 102

, 108 (App. Div. 1988), rev'd on other grounds, 

117 N.J. 495

(1989).

        In Bryant, the defendant was accused of aggravated assault and related

weapons 

offenses. 237 N.J. Super. at 104

. Over objection, a witness testified

he observed the defendant selling drugs.

Id. at 108.

We determined "[i]f the

evidence was relevant, it could have been sanitized to make it less prejudicial."

Ibid. We nonetheless determined

the error was harmless in view of the

overwhelming evidence in that case.

Ibid.

In the present

matter, defendant's presence at the strip club did not

constitute a crime or bad act.     Moreover, during his cross-examination of

defendant, the prosecutor never mentioned "strip club." 3 Indeed, his questioning



2
   During oral argument before the trial judge, defendant did not advance his
sanitization argument. However, during his motion for release on bail pending
appeal, defendant reiterated his arguments supporting his motion to preclude
references to the strip club or sanitize the term under Bryant. We presume
defendant briefed the issue in his midtrial motion to preclude that evidence.
3
  In anticipation of the prosecutor's cross-examination, defendant acknowledged
that prior to the shooting he had been at the "go-go bar . . . around the corner"
from the 7-Eleven visiting with the manager but he "d[id]n't remember
consuming any alcohol." Prior to defendant's testimony, defense counsel
strategically advised the trial judge he would pursue that line of questioning,
without relinquishing his right to appeal the judge's decision.
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                                        7
was limited to whether defendant "had [his] loaded revolver on [him] when [he

was] in the club," and whether "[t]he club serve[d] alcohol." Nor did the

prosecutor ask whether defendant consumed alcohol while he was present in the

club or at any time before the shooting incident. 4 And the prosecutor's only

comment about the "club" in summation was a fleeting reference to the video

surveillance, which depicted "defendant walking out of the club . . . and toward

the 7-Eleven." We therefore discern no error in the judge's evidentiary decision.

                                        B.

      Prior to trial, defendant provided Olimpio's expert report to the State,

advising that he sought to elicit opinion testimony: (1) regarding "the concept

of constructive authority set in the . . . Guidelines [as to] when a police officer

or off-duty police officer has the authority to unholster his handgun"; (2) that

defendant acted under constructive authority when he unholstered his weapon

on the date of the incident; and (3) defendant "cocked his double-action off

[-]duty revolver accidentally and then accidentally discharged the gun while

attempting to decock the gun and return it to its holster – with the bullet striking

the ground."    The State, in turn, moved to preclude Olimpio's testimony


4
   Although not challenged on appeal, the trial judge also determined defendant's
presence in "an establishment with a gun that serves liquor . . . may be relevant
. . . to . . . defendant's credibility."
                                                                              A-4111-18
                                         8
contending he lacked expertise in his proffered field and the subject matter was

not outside the ken of the average juror under N.J.R.E. 702; his proposed

testimony constituted a net opinion under N.J.R.E. 703; and his opinion

impermissibly usurped the jury's role as fact-finder "by opining about

defendant's guilt or innocence" under N.J.R.E. 704 and case law.

      The trial judge conducted a hearing under N.J.R.E. 104(a), during which

defendant presented Olimpio's testimony. Following argument, the judge issued

a cogent decision from the bench, squarely addressing the issues raised in view

of the governing case law and evidentiary rules.            Recounting Olimpio's

testimony, including his qualifications, the judge permitted Olimpio to testify as

an expert in the Guidelines, finding that subject matter is "beyond the ken of the

average juror."

      But the judge restricted Olimpio's testimony, prohibiting the expert from

opining as to whether defendant: "properly applied constructive authority";

"accidentally or intentionally cocked the revolver"; and "accidentally or

intentionally discharged the weapon." According to the judge, those opinions

"require an analysis of defendant's subjective reasoning at the time of the event,"

thereby "invad[ing] the jury's decision-making . . . function in determining

defendant's guilt or innocence in violation of Rule 704."


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                                        9
      Having reviewed the video footage of the incident, the trial judge found:

            [T]he footage itself further underscores the importance
            of analyzing defendant's subjective reasoning and
            actions in understanding what he perceived that caused
            him to believe that it was necessary to unholster his
            weapon and whether he cocked it intentionally or not
            and whether he discharged it intentionally or not.

                   Mr. Olimpio testified that among other things,
            such as the time of night, the bad area, that . . .
            defendant was surrounded by four men, that it caused
            him to feel it necessary to unholster the weapon.
            Viewing the video, it's clear that reasonable minds can
            differ.

Accordingly, the judge concluded: "The jury does not need an expert to interpret

what is on that video"; the "jury can determine for itself" whether the shooting

"was accidental or not."

      Moreover, the trial judge determined Olimpio lacked the requisite

expertise to testify about defendant's off-duty firearm "or the 'why and

wherefore' as to his opinion that the cocking and discharge were both

accidental." See Pomerantz Paper Corp. v. New Cmty. Corp., 

207 N.J. 344

, 372

(2011). In reaching her decision, the judge noted Olimpio's testimony was bereft

of experience with the off-duty revolver at issue, noting Olimpio never

examined defendant's firearm. Nor did Olimpio testify "that he was a firearms

instructor, a firearms expert, that he had some knowledge about or was involved


                                                                          A-4111-18
                                      10
in the manufacturing of the weapon, the design of the weapon, anything of that

nature to possess the expertise to testify about the weapon itself."

      On appeal, defendant argues the judge improperly restricted Olimpio's

testimony, thereby depriving defendant of a fair trial. In particular, defendant

maintains the judge erroneously precluded Olimpio from testifying that

defendant's actions were justified under the Guidelines, and the shooting was

accidental. Defendant further challenges the judge's determination that Olimpio

was not qualified to testify regarding the difference between single- and double-

action revolvers.

      We have carefully considered defendant's contentions in view of the

applicable law, and conclude they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set

forth by the trial judge in her thoughtful decision. We add only the following

brief comments.

      Pursuant to N.J.R.E. 704, "[t]estimony in the form of an opinion or

inference otherwise admissible is not objectionable because it embraces an

ultimate issue to be decided by the trier of fact." However, "[e]xpert testimony

that 'embraces an ultimate issue to be decided by the trier of fact,' N.J.R.E. 704,

is not admissible unless the subject matter is beyond the ken of the average


                                                                             A-4111-18
                                       11
juror." State v. Simms, 

224 N.J. 393

, 403 (2016). Moreover, an expert may not

express an opinion regarding a defendant's guilt or innocence. State v. Cain,

224 N.J. 410

, 426 (2016).

      Having considered the record in view of these principles, we discern no

abuse of discretion in the trial judge's evidentiary decisions concerning

Olimpio's testimony.      The judge permitted Olimpio to testify about the

Guidelines, finding his expertise was beyond the ken of the average juror in that

regard.   But the judge astutely restrained Olimpio from opining on the

differences between single- and double-action weapons – an area of ballistics

for which he had no expertise. And the judge properly prevented Olimpio from

opining whether defendant's off-duty firearm was discharged accidentally. That

determination was properly reserved for the jury's consideration.

                                        II.

      In his third point, defendant claims the trial court erroneously denied his

request for an adverse-inference jury instruction for the State's failure to produce

Mann – the non-testifying victim – at trial. Because Mann was incarcerated in

State prison at the time of trial, and equally available to the defense, defendant's

contentions are unavailing. We review the failure to issue an adverse -inference

charge for an abuse of discretion. State v. Dabas, 

215 N.J. 114

, 132 (2013).


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                                        12
       An adverse inference instruction – commonly known as a Clawans charge

– stems from the principle that the "failure of a party to produce before a trial

tribunal proof which, it appears, would serve to elucidate the facts in issue,

raises a natural inference that the party so failing fears exposure of those facts

would be unfavorable to him." State v. Clawans, 

38 N.J. 162

, 170 (1962). The

multitude of reasons for choosing not to call a witness requires a trial court to

exercise caution before granting a request for a Clawans charge. See State v.

Velasquez, 

391 N.J. Super. 291

, 306-08 (App. Div. 2007).             Because that

inference may be impacted by the reasons a witness was not called, "the trial

court may determine that the failure to call the witness raises no inference, or an

unfavorable one, and hence whether any reference in the summation or a charge

is warranted." 

Clawans, 38 N.J. at 172

.

       Accordingly, before granting a Clawans charge request, the court must

evaluate the party's reason for not calling a witness. State v. Hill, 

199 N.J. 545

,

562 (2009); 

Velasquez, 391 N.J. Super. at 308

. The trial court must ensure that

the situation warrants the charge, as the potential for prejudice is high where an

erroneous charge is issued. 

Hill, 199 N.J. at 562

; 

Velasquez, 391 N.J. Super. at

308

.   The trial court must consider "all relevant circumstances" and make

findings


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                                       13
             (1) that the uncalled witness is peculiarly within the
             control or power of only the one party, or that there is
             a special relationship between the party and the witness
             or the party has superior knowledge of the identity of
             the witness or of the testimony the witness might be
             expected to give; (2) that the witness is available to that
             party both practically and physically; (3) that the
             testimony of the uncalled witness will elucidate
             relevant and critical facts in issue[;] and (4) that such
             testimony appears to be superior to that already utilized
             in respect to the fact to be proven.

             

[Hill, 199 N.J. at 561-62

(quoting State v. Hickman,
             

204 N.J. Super. 409

, 414 (App. Div. 1985)).]

      Before the State rested its case, defendant made a timely application for

an adverse-inference charge.        Following argument, the judge issued a

comprehensive oral decision denying defendant's request. In doing so, the judge

cogently applied the Hill factors. Notably, the judge recognized Mann was

serving a State prison term. As such, Mann was equally available to the State

and defendant. Both parties could have interviewed Mann in State prison.

Importantly, however, the judge issued "a writ for . . . Mann to testify on behalf

of the defense once the State indicated [it] did not intend to call . . . Mann to

testify."   But following counsel's discussion with defendant, the defense

ultimately "made a determination not to call the witness and as a result, the court

cancelled the writ."



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                                        14
      Viewed through that lens, we discern no reason to disturb the well-

reasoned exercise of her discretion. The judge did not stray from our Supreme

Court's required analysis in declining defendant's request to issue a Clawans

charge as to the non-testifying victim here, where Mann – through the trial court

– was equally available to both parties.

      Affirmed and remanded for the limited purpose of correcting the JOC to

reflect the proper count of conviction.




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