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

NOT FOR PUBLICATION WITHOUT THE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.
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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. 
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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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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 "twofold 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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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,"2citing – 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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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."
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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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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 
11 A-4111-18

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 doubleaction 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 
12 A-4111-18

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).
13 A-4111-18

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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(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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Viewed through that lens, we discern no reason to disturb the wellreasoned 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.