                                 NOT FOR PUBLICATION WITHOUT THE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-0940-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RASUAN WILSON,

     Defendant-Appellant.
_____________________________

                   Submitted October 15, 2018 – Decided December 14, 2018

                   Before Judges Sumners and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 13-09-2217.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Rochelle Mareka Amelia Watson, Assistant
                   Deputy Public Defender, of counsel and on the brief).

                   Theodore N. Stephens, II, Acting Essex County
                   Prosecutor, attorney for respondent (Stephen Anton
                   Pogany, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
     Following a retrial, defendant was found guilty of possession of firearm

and possession of controlled dangerous substances (CDS) charges. He appeals

arguing:

           POINT I

           BECAUSE CREDIBILITY WAS THE CRITICAL
           ISSUE AT TRIAL, THE IMPROPER RESTRICTION
           OF CROSS-EXAMINATION BEARING ON THE
           CREDIBILITY OF ONE OF THE KEY POLICE
           WITNESSES      COUPLED      WITH     THE
           PROSECUTOR'S IMPROPER BOLSTERING OF
           BOTH    POLICE    OFFICERS'   TESTIMONY,
           DEPRIVED DEFENDANT OF A FAIR TRIAL.

           A.    The Trial Judge Committed Reversible Error By
           Prohibiting Defense Counsel From Cross-Examining
           Sergeant Ruane About An Excessive-Force Judgment
           Against Him to Expose his Bias and Motive to Testify
           Falsely.

           B.    The Prosecutor's Exhortation That the Police
           Witnesses Were Credible Because Their Jobs and Their
           Standing Within The Police Department Are Secure
           Constituted Misconduct, Warranting Reversal. (Not
           Raised Below)

           POINT II

           BECAUSE THE TRIAL COURT CONSIDERED
           DEFENDANT'S PRIOR ARRESTS AND DISMISSED
           JUVENILE    PETITIONS   IN    WEIGHING
           AGGRAVATING FACTORS THREE AND NINE;
           AND BECAUSE THE TRIAL COURT FAILED TO
           FIND MITIGATING FACTOR 11, THE MATTER
           SHOULD BE REMANDED FOR RESENTENCING.

                                                                     A-0940-16T3
                                     2
Having considered the arguments presented and applicable law, we affirm.

                                         I

      Defendant was indicted for second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm,

N.J.SA. 2C:39-3(d); second-degree possession of a firearm while committing a

CDS distribution offense, N.J.S.A. 2C:39-4.1; two counts of third-degree

possession of CDS, N.J.S.A. 2C:35-10(a)(1); two counts of third-degree

possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)

(3); two counts of third-degree possession of CDS with the intent to distribute

within 1000 feet of a school, N.J.S.A. 2C:35-7; two counts of second-degree

possession of CDS with the intent to distribute within 500 feet of public

property, N.J.S.A. 2C:39-7.1; fourth-degree possession with the intent to

distribute marijuana, N.J.S.A. 2C:5(a)(1), -5(b)(12); third-degree possession

with the intent to distribute marijuana within 1000 feet of a school, N.J.S.A.

2C:35-7; and third-degree possession with the intent to distribute marijuana

within 500 feet of public property, N.J.S.A. 2C:35-7.1.

      Prior to trial, the State dismissed all of the charges pertaining to the intent

to distribute CDS offenses and the charge of possession of a firearm while

committing a CDS intent to distribute offense. After three days of deliberations,


                                                                             A-0940-16T3
                                         3
a mistrial was declared when the jury could not reach a verdict on the remaining

charges of unlawful possession of a handgun, possession of a defaced firearm,

and two counts of possession of CDS.

        Three months later, defendant was re-tried before a different judge on the

outstanding charges.1 Carried over from the first trial was an evidentiary ruling

granting the State's in limine motion to prevent defense counsel from

questioning one of the arresting Newark police officers, Sergeant Thomas

Ruane, about a jury verdict in a civil lawsuit in which he was found to have used

excessive force in a shooting that killed two people, and resulted in a settlement

in excess of one million dollars. 2 The judge rejected defendant's opposition that

it was necessary to attack Sgt. Ruane's credibility by cross-examining him about

the lawsuit. Defense counsel proffered to confine his cross-examination by

asking Sgt. Ruane about the nature of the incident, and whether he: recalled the

plaintiff; shot the plaintiff; and was found to have used excessive force and

abused his office. The judge cited N.J.R.E. 403, 608, and 609, in barring that

line of questioning to Sgt. Ruane.


1
  It was stipulated that defendant did not have a permit to legally possess the
weapon, and that the weapon was missing its serial number, thereby making it a
defaced firearm.
2
    Defendant did not attempt to revisit the ruling at the re-trial.
                                                                          A-0940-16T3
                                           4
                                       II

       The trial record reveals the following. On a sunlit early evening in June

2013, Officer Danny Costa and Sgt. Ruane were on routine patrol in a marked

police vehicle in a neighborhood comprised of a mix of residential townhouses,

owned by the Newark Housing Authority (NHA), and commercial properties.

Noticing defendant and another man talking – but not engaged in any suspected

criminal activity – while standing between two townhouses, Sgt. Ruane parked

the vehicle about thirty feet away from them in order to conduct some

community policing. Neither officer knew, nor had any prior contact with either

man.

       As the uniformed officers exited the vehicle and approached the men,

according to Officer Costa, defendant "strain[ed] himself to face me," and then

reached in the center of his back near his waistband to pull out a black object

believed to be a handgun. Upon seeing defendant drop the object over an

adjacent wooden fence and hearing a loud metallic noise when it hit the concrete,

Officer Costa shouted "Gun!" to alert Sgt. Ruane. Sgt. Ruane also asserted that

he saw defendant discard a black object over the fence and heard the sound of

metal hitting the concrete. However, the police incident report, which Officer

Costa authored, only described defendant removing a "dark object" from hi s


                                                                         A-0940-16T3
                                       5
waistband and it made no mention of either officer seeing the barrel of a gun or

the gun itself.

        Officer Costa retrieved a black handgun with a wooden handle from

behind the fence where he saw defendant dispose of the object. Defendant was

arrested and searched. Defendant was found to be in possession of Oxycodone,

a generic form of Xanax, and marijuana. The other man, who was talking with

defendant, walked away and was never located or identified.

        The police did not seek to determine if surveillance cameras in the area

had recorded defendant's alleged possession of the handgun because they

believed corroborative evidence was not necessary to their investigation.

Officer Costa did not recall seeing any surveillance cameras that may have

recorded the incident, but he did not answer a question on the police report about

whether a surveillance camera was visible at the scene of the incident. Because

fingerprint analysis did not reveal defendant's fingerprint on the handgun, the

State presented an expert, who explained that it was difficult to obtain a

fingerprint off a handgun, particularly a handgun like the one recovered in this

case.

        Defendant exercised his right not to testify. He did, however, present two

witnesses. His girlfriend, the mother of his children, testified that although she


                                                                          A-0940-16T3
                                         6
did not observe the police drive up and place defendant under arrest, he did not

have a handgun. To support her statement, she detailed what she and defendant

did that day prior to his arrest. The NHA's Manager of Public Safety testified

that there were NHA surveillance cameras in the area of defendant's arrest, but

that the police did not request to view any recording that might have depicted

the incident. Yet, he was not aware if the authority's surveillance cameras in the

area were operational on the day of the incident.

      During summation, defense counsel maintained that defendant never

possessed the handgun and was falsely arrested. He argued the police officers'

testimony was not credible and unsupported by corroborative evidence, such as

surveillance videos and fingerprints.         To refute counsel's assertion, the

prosecutor stated:

            The State submits to you that Officer Costa and
            Sergeant Ruane have a low interest in the outcome of
            this case. Because after this incident occurred on June
            12[], 2013, they both continued to be involved with the
            Newark Police Department, and they both continue to
            be involved in other cases.

There was no objection to these comments.

      The jury found defendant guilty on all charges. Defendant was later

sentenced to an aggregate term of seven years of incarceration, with three years

and six months of parole ineligibility.

                                                                          A-0940-16T3
                                          7
                                         III

      We first address defendant's argument in Point I that the trial judge erred

in granting the State's in limine motion to bar him from cross-examining Sgt.

Ruane regarding the incident for which a civil jury found him liable for using

excessive force.3 Because his conviction turned on the credibility of the officers'

testimony, defendant argues the ruling denied him due process and a fair trial

because he was not allowed to present a defense by confronting Sgt. Ruane.

U.S. Const. amends V, VI, XIV; N.J. Const. art. I ¶ 1, 10.

      A judge's decision to admit or exclude evidence is "entitled to deference

absent a showing of an abuse of discretion, i.e., [that] there has been a clear error

of judgment." Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (alteration

in original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "Although a

trial court retains broad discretion in determining the admissibility of evidence,

that discretion is abused when relevant evidence offered by the defense and

necessary for a fair trial is kept from the jury." State v. Cope, 224 N.J. 530,



3
  Defendant's also asserts, "the trial judge denied defendant's request to examine
Costa and Ruane's internal affairs records in camera." However, because he did
not brief that issue, we deem it abandoned. See Pressler & Verniero, Current
N.J. Court Rules, cmt. 4 on R. 2:6-2 (2018); see also Sklodowsky v. Lushis, 417
N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is
deemed waived.").
                                                                             A-0940-16T3
                                         8
554-55 (2016). "Thus, we will reverse an evidentiary ruling only if it 'was so

wide [of] the mark that a manifest denial of justice resulted.'" Ibid. (quoting

Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

      The Sixth Amendment to the Constitution of the United States and Article

I, Paragraph 10 of our state Constitution guarantee an accused in a criminal case

the right to confront adverse witnesses. State v. Guenther, 181 N.J. 129, 147

(2004).   "A defendant's right to confrontation is exercised through cross-

examination, which is recognized as the most effective means of testing the

State's evidence and ensuring its reliability." Ibid. (citations omitted). The

Confrontation Clause was not, however, "intended to sweep aside all evidence

rules regulating the manner in which a witness is impeached with regard to

general credibility." Id. at 150 (citing Davis v. Alaska, 415 U.S. 308, 321,

(1974)) (Stewart, J., concurring).

      In this case, we cannot conclude the initial trial judge abused his discretion

in applying N.J.R.E. 403 and N.J.R.E. 608 to bar defendant's attorney from

questioning Sgt. Ruane about the incident in which the civil jury found that he

used excessive force in a shooting.4 Under N.J.R.E. 403, evidence that is


4
  As for the trial court's consideration of N.J.R.E. 609, the rule has no bearing
on the State's in limine motion. The rule addresses the admission of a witness 's
conviction of a crime. Sgt. Ruane was not convicted of a crime.
                                                                            A-0940-16T3
                                         9
relevant may be inadmissible if the risk of prejudice substantially outweighs its

probative value. Relevant evidence is any evidence that has "a tendency in

reason to prove or disprove any fact of consequence to the determination of the

action." State v. Darby, 174 N.J. 509, 519 (2002) (quoting N.J.R.E. 401). In

determining relevance, "the inquiry should focus on 'the logical connection

between the proffered evidence and a fact in issue.'" Ibid. (quoting State v.

Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). The required logical

connection has been satisfied "if the evidence makes a desired inference more

probable than it would be if the evidence were not admitted." State v. Garrison,

228 N.J. 182, 195 (2017) (quoting State v. Williams, 190 N.J. 114, 123 (2007)).

      Furthermore, N.J.R.E. 608, which governs the admission of character

evidence for truthfulness or untruthfulness, provides:

                  (a) The credibility of a witness may be attacked
                  or supported by evidence in the form of opinion
                  or reputation, provided, however, that the
                  evidence relates only to the witness' character for
                  truthfulness or untruthfulness, and provided
                  further that evidence of truthful character is
                  admissible only after the character of the witness
                  for truthfulness has been attacked by opinion or
                  reputation evidence or otherwise. Except as
                  otherwise provided by [Rule] 609 and by
                  paragraph (b) of this rule, a trait of character
                  cannot be proved by specific instances of
                  conduct.


                                                                         A-0940-16T3
                                      10
                  (b) The credibility of a witness in a criminal case
                  may be attacked by evidence that the witness
                  made a prior false accusation against any person
                  of a crime similar to the crime with which
                  defendant is charged if the judge preliminarily
                  determines, by a hearing pursuant to [Rule]
                  104(a), that the witness knowingly made the prior
                  false accusation.

      Our evidence rules "bar 'the use of prior instances of conduct to attack the

credibility of a witness for two essential reasons: to prevent unfairness to the

witness and to avoid confusion of the issues before the jury.'" State v. Scott,

229 N.J. 469, 498 (2017) (quoting Guenther, 181 N.J. at 141) (Albin, J.,

concurring). N.J.R.E. 608 "was designed to prevent unfair foraging into the

witness's past" and to prevent "wide-ranging collateral attacks on the general

credibility of a witness [that] would cause confusion of the true issues in the

case." Guenther, 181 N.J. at 141-42.

      Questioning Sgt. Ruane regarding the shooting incident was not probative

of any issue relevant in this case, which involved a weapon and CDS possession

charges against defendant. This case did not involve any allegations of resisting

arrest, obstruction, or excessive force, and the prior civil case did not involve

defendant or anyone he knew. We agree with the State that letting the jury know

that Sgt. Ruane had used excessive force in a shooting that killed someone would

only serve to besmirch Sgt. Ruane by attacking his character with a specific

                                                                          A-0940-16T3
                                       11
prior act of misconduct. Based upon the record before us, the sought after

testimony does not address Sgt. Ruane's character for truthfulness or

untruthfulness, by "revealing possible biases, prejudices, or ulterior motives" as

they relate to the issues in the case. State v. Harris, 316 N.J. Super. 384, 397

(App. Div. 1998). In addition, the application of our evidence rules did not

unfairly limit the defense from confronting Sgt. Ruane's credibility. Indeed, the

record shows that defendant's counsel questioned the sergeant extensively about

his observation of defendant's handgun possession and the lack of corroborating

evidence beyond the testimony of his partner Officer Costa. Thus, defendant's

constitutional right to confrontation was not denied.

      Next, we address defendant's contention in Point I that he was denied a

fair trial due to the prosecutor's summation remark that Sgt. Ruane and Officer

Costa gave impartial testimony because of their "low interest in the outcome of

the case" and their jobs are unaffected by their testimony.

      Because defendant did not raise this issue before the trial judge, we review

it for plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). We will

reverse on the basis of an unchallenged error only if it was "clearly capable of

producing an unjust result[.]" Macon, 57 N.J. at 337. To reverse for plain error,

we must determine that there is a real possibility that the error led to an unjust


                                                                          A-0940-16T3
                                       12
result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led

the jury to a result it otherwise might not have reached." Id. at 336.

      We agree with defendant that the prosecutor's remark was inappropriate

because it bolstered the credibility of the police officers. A prosecutor may not

vouch for a police officer's credibility by stating the officer would not lie

because of the magnitude of the charges, State v. Frost, 158 N.J. 76, 85 (1999),

or because the officer had no motive to lie, State v. R.B., 183 N.J. 308, 331-32

(2005), or because the officer would face severe consequences if not truthful,

State v. West, 145 N.J. Super. 226, 233-34 (App. Div. 1976). That said, to

reverse a conviction, "'the prosecutor's conduct must have . . . substantially

prejudiced defendant's fundamental right to have a jury fairly evaluate the merits

of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v.

Smith, 167 N.J. 158, 181-82 (2001)). One factor to consider is whether there

was a proper and timely objection to the comment, State v. Jackson, 211 N.J.

394, 409 (2012), because the lack of any objection "'deprive[d] the court of an

opportunity to take curative action[,]'" R.B., 183 N.J. at 333, (quoting Frost, 158

N.J. at 84), and indicates defense counsel "perceived no prejudice," State v.

Smith, 212 N.J. 365, 407 (2012).




                                                                           A-0940-16T3
                                       13
      Despite the inappropriateness of the prosecutor's remark, we do not

conclude, as defendant claims, that he was deprived of a fair trial. Considering

the evidence presented at trial, defense counsel's challenge to the police officers'

testimony, the fact that defense counsel did not object, and the entirety of the

prosecutor's closing argument, the fleeting comment was clearly not capable of

producing an unjust result. R. 2:10-2. Moreover, had defendant objected, the

court could have easily cured any prejudice that might have occurred as the

result of the prosecutor's remark.

                                        IV

      In Point II, defendant argues that re-sentencing is required because, in

applying aggravating factors three and nine, the trial judge improperly

considered his arrests as a juvenile and adult that did not result in convictions

N.J.S.A. 2C:44-1(a)(3)(the risk of re-offense); -1(a)(9) (the need to deter). He

also argues the judge failed to apply mitigating factor eleven. N.J.S.A. 2C:44-

1(b)(11) (the imprisonment of the defendant would entail excessive hardship to

himself or his dependents).

      Review of a criminal sentence is limited; a reviewing court must decide

"whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217

N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).


                                                                            A-0940-16T3
                                        14
Under this standard, a criminal sentence must be affirmed unless "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95

N.J. 334, 364-65 (1984)). If a sentencing court properly identifies and balances

the factors and their existence is supported by sufficient credible evidence in the

record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413,

426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).

      We do not conclude the judge used defendant's juvenile and adult arrest

record solely to find that aggravating factors three and nine applied. See United

States v. Berry, 553 F.3d 273, 282-84 (3d Cir. 2009) (noting the majority view

of courts of appeal that sentencing courts may not base decisions "on a bare

arrest record" because, without more, it is not proof of wrongdoing); State v.

Tirone, 64 N.J. 222, 229 (1974) ("[A] defendant's arrest record is a factor which

may be considered in the determination of an appropriate sentence so long as

the sentencing judge does not infer guilt from charges which have not resulted

in convictions."); State v. Green, 62 N.J. 547, 571 (1973) (holding the court may

consider arrests but "shall not infer guilt as to any underlying charge with respect


                                                                              A-0940-16T3
                                         15
to which the defendant does not admit his guilt"); State v. Farrell, 61 N.J. 99,

107 (1972) ("[U]nproved allegations of criminal conduct should not be

considered by a sentencing judge."). In assessing the aggravating factors, the

judge did not assume defendant's guilt of unproven crimes. Indeed, the record

supports the judge's application of aggravating factors three and nine based upon

defendant's convictions of third-degree possession of CDS, N.J.S.A. 2C35-

10A(1), and two disorderly persons offenses: loitering for purposes of using,

possessing, or selling CDS, N.J.S.A. 2C:33-2.1; and possessing drug

paraphernalia, N.J.S.A. 2C:36-2.

      In addition, we see no abuse of discretion where the judge chose not to

apply mitigating factor eleven. The judge recognized that defendant supported

his girlfriend and their child, as well as her older son from a prior relationship,

but determined that the hardship of imprisonment was not excessive.

Consequently, we are unpersuaded the judge erred in sentencing defendant, and

the sentence does not shock our judicial conscience.

      Affirmed.




                                                                           A-0940-16T3
                                       16
