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

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

NOT FOR PUBLICATION WITHOUT THE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.

December 14, 2018
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A-0940-16T3

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.
3

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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, 
4

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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.
5

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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 his 
6

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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 
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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.
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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.").
9

A-0940-16T3

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 crossexamination, 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.
10 A-0940-16T3

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.
11 A-0940-16T3

(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 
12 A-0940-16T3

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 
13 A-0940-16T3

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).
14 A-0940-16T3

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)). 
15 A-0940-16T3

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 
16 A-0940-16T3

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.