In Re Appeal of the Denial of the Application of Z.L. for a Firearms Purchaser Identification Card and Three Handgun Permits

• Court: New Jersey Superior Court Appellate Division
• Decided: April 22, 2015
• Docket: A-5848-12
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5848-12T1

APPROVED FOR PUBLICATION IN RE APPEAL OF THE DENIAL OF April 22, 2015 THE APPLICATION OF Z.L. FOR A FIREARMS PURCHASER IDENTIFICATION APPELLATE DIVISION CARD AND THREE HANDGUN PERMITS.1 _______________________________________

Submitted January 7, 2015 – Decided April 22, 2015

Before Judges Fuentes, Kennedy and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 2013-024.

Evan F. Nappen, attorney for appellant Z.L. (Louis P. Nappen, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

The opinion of the Court was delivered by

KENNEDY, J.A.D.

Appellant, Z.L., appeals an order of the Law Division

upholding the denial of his application for a firearms purchaser

identification card and three permits to purchase a handgun

1 We have corrected the caption to eliminate the appearance of a criminal appeal. ("the permits"). Appellant argues that the Law Division

improperly considered his history of domestic disputes as

evidence that granting his application for the permits creates a

present danger to "public health, safety and welfare" under

N.J.S.A. 2C:58-3(c)(5). Appellant further argues that the Law

Division denied his right to "procedural due process"; erred by

requiring him to testify before the State presented its case;

and erred by basing its ruling upon "speculation and hearsay."

We have considered these arguments in light of the record and

the law, and we affirm the order of the Law Division.

In January 2013, appellant applied to the Aberdeen Police

Department for the permits. A detective undertook an

investigation into appellant's background, and learned that,

while he had never been convicted of a crime or any disorderly

persons or domestic violence offenses, he had been arrested in

1998 for domestic violence and police responded to his home on

five occasions from 2003 to 2011 to resolve disputes between him

and his wife.

In 1998, appellant's wife called police and charged him

with simple assault. Although a domestic violence complaint was

filed, appellant's wife did not seek a temporary restraining

order, and the charge was not thereafter sustained. Also,

police responded to appellant's home on five occasions, between

2 A-5848-12T1 2003 and 2011, based on various domestic dispute complaints

reported by his wife. The Aberdeen Police Chief denied

appellant's application for the permits, explaining that the

investigation "revealed a past history of domestic violence.

This in itself may indicate a public safety concern." He then

appealed to the Law Division.

The Law Division judge conducted a hearing, at which both

appellant and the investigating detective testified. Appellant,

represented by counsel, elected to testify and essentially

confirmed the accuracy of his application, stating, among other

things, that he had never been convicted of a "domestic

violence" offense and had never been the subject of a temporary

or a final restraining order. Defense counsel objected as beyond

the scope of direct examination to the State's questioning of

appellant regarding the domestic disputes upon which the police

chief had denied his application for the permits. The judge

overruled the objection.

The State then cross-examined appellant about the 1998

domestic violence complaint and the five other domestic disputes

in which police responded to his home, and appellant essentially

confirmed the core facts. Appellant conceded he had struck his

wife in 1998, but stated it was "accidental." He said he had

inadvertently struck his wife in the mouth with his hand when

3 A-5848-12T1 she walked up behind him, after a disagreement about their

child's dishwashing techniques. He said he had never

intentionally struck her, and added he was "acquitted" after a

brief trial. He also explained the other police responses to

the home arose from ordinary disputes between spouses, and none

involved violence or threats. Further, he described his

relationship with his wife as "better than at that time" and

ascribed her decision to sleep separately to her "sleep

disorder."

After both sides rested and made their closing arguments,

the judge found, in pertinent part, as follows:

In this case, there had been a number of visits by the police over an eight-year period. And when they were -- if you were to today to look at each one of these incidents, if that were judge one incident, that would be, certainly perhaps a different case before us. But we don't have just one incident. We have a series of instances starting back in August 24, 1998, and the final incident that was testified to, and as part of this record, was made [September 4,] 2011.

That series of incidents, one compounded upon the other, I think that gives us a picture and certainly something that this Court feels is compelling and convincing.

The record does not show why [appellant's wife] feels compelled to call the police every time her and [appellant] have a dispute. But the fact is that the police have still been to this house a number of different times. The inclusion of firearms

4 A-5848-12T1 or handgun into this unpredictable situation only stands to strain the relationship further.

It is evident from the 1998 domestic violence arrest and multiple subsequent police interactions that the [appellant] and [appellant's wife] are unable to amicably resolve minor disputes. Accordingly, the volatile situation between [appellant] and [appellant's wife] is not place, in this Court's opinion, to add firearms.

Accordingly, it's going to be the ruling of this Court that [] the appeal is going to be denied.

This appeal followed.

We address appellant's argument that the Law Division gave

improper weight to his history of domestic disputes first. We

then turn to appellant's argument that the Law Division erred by

requiring him to testify first, and by relying upon speculation

and hearsay in issuing the order under appeal. We find

appellant's remaining arguments to be without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

On this appeal, our review of the trial court's decision is

limited. The Supreme Court has stated:

Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence. Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings

5 A-5848-12T1 would work an injustice. Consequently, "an appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." If, however, an appellate court is reviewing a trial court's legal conclusions, the same level of deference is not required.

[In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997) (citations omitted).]

The Gun Control Law recognizes that the right to possess

firearms is presumed, except for certain good cause:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

[N.J.S.A. 2C:58-3(c)].

In relevant part, the statute provides that handgun permits

shall not be issued "[t]o any person where the issuance would

not be in the interest of the public health, safety or

welfare[.]" N.J.S.A. 2C:58-3(c)(5). Section (c)(5) "is

'intended to relate to cases of individual unfitness, where,

though not dealt with in the specific statutory enumerations,

the issuance of the permit or identification card would

nonetheless be contrary to the public interest.'" In re

Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003), certif.

denied, 179 N.J. 310 (2004).

6 A-5848-12T1 The statute also lists eight categories of

disqualifications. An arrest that did not result in conviction

is not one of the listed disqualifications. However, as we

explained earlier, N.J.S.A. 2C:58-3(c)(5) is intended to address

issues of individual unfitness, not otherwise categorized in the

statute. In Osworth, supra, we considered the quoted subsection

(5) disqualification and held that "[t]he dismissal of criminal

charges does not prevent a court from considering the underlying

facts in deciding whether a person is entitled to purchase a

firearm." Id. at 78; see also In re Return of Weapons to

J.W.D., supra, 149 N.J. at 110 (a court may determine, even

after dismissal of a domestic violence complaint, that firearms

may be forfeited by a defendant pursuant to N.J.S.A. 2C:58-3(c)

and 2C:25-21(d)(3) because "the defendant poses a threat to

public health, safety, or welfare"); State v. One Marlin Rifle,

319 N.J. Super. 359, 371 (App. Div. 1999); State v. Cunningham,

186 N.J. Super. 502, 504-08 (App. Div. 1982) (State could refuse

to return lawfully-purchased gun to defendant despite grand

jury's no billing of charge that he shot his wife). Even in the

absence of evidence that appellant was convicted of any

offenses, the New Jersey statute permits denial of his

application if the underlying facts of any arrests or reported

7 A-5848-12T1 domestic disputes support one of the eight listed categories of

disqualification or the public safety disqualification.

Indeed, our courts have repeatedly upheld disqualification

under subsection (c)(5), separately, or in conjunction with,

other statutory disabilities. In State v. Freysinger, 311 N.J.

Super. 509, 516 (App. Div. 1998), for example, we determined

that the defendant was both a habitual drunkard, under N.J.S.A.

2C:58-3(c)(2), and posed a threat to the public health, safety

or welfare under (c)(5). In State v. Cardoma, 372 N.J. Super.

524, 536 (App. Div. 2004), in deciding the defendant was

disqualified under subsection (c)(5), we considered the

defendant's mental condition, even though it did not rise to the

level of the disabling conditions set forth in N.J.S.A. 2C:58-

3(c)(2) and (3). Further, as we explained earlier, in Osworth,

supra, 365 N.J. Super. at 80-81, even though the defendant's

prior conduct did not result in a disqualifying conviction under

N.J.S.A. 2C:58-3(c)(1), we nonetheless determined that, under

all the circumstances, denial of a handgun purchase permit was

warranted by application of subsection (c)(5).

In Osworth, supra, we also explained the proper procedure

in the Law Division under N.J.S.A. 2C:58-3(d) for review of the

police chief's decision. Osworth, supra, 365 N.J. Super. at 77-

78. We stated that the hearing in the Law Division is "de novo"

8 A-5848-12T1 and that the judge must independently determine whether the

applicant is entitled to a handgun permit. Id. at 77. Citing

Weston v. State, 60 N.J. 36, 46 (1972), we explained that the

applicant must present his evidence and then the police chief,

or the police chief's designee who conducted the investigation,

must explain why the application was denied. Osworth, supra,

365 N.J. Super. at 78. Significantly, we held that the police

chief has the burden of proving an applicant is not qualified to

receive a handgun permit. Id. at 77 (citing Weston, supra, 60

N.J. at 46).

Appellant argues that the Law Division reversed the burden

of proof and placed it upon him by requiring that he prove the

dispositions and the facts pertinent to the domestic violence

arrest and domestic disputes. We disagree. The trial judge

properly allocated the burden of proof. Appellant nonetheless

argues otherwise, asserting that the trial judge "required" him

to testify first. This contention is belied by the record.

Moreover, the fact that the judge overruled a "beyond the scope"

objection adds nothing to the argument and, in any event, is the

type of evidential ruling committed to the discretion of a trial

judge. See N.J.R.E. 611(b); State v. Rose, 112 N.J. 454, 459

(1988); Ostroski v. Mount Pleasant ShopRite, Inc., 94 N.J.

9 A-5848-12T1 Super. 372 (App. Div.), certif. denied, 99 N.J. 369 (1967). We

discern no error in that ruling.

On an appeal from the denial of firearms permits, the trial

court hears the matter de novo, and the police chief has the

burden of proof by a preponderance of the evidence. Id. at 77.

Hearsay is admissible, but there must be sufficient legally

competent evidence to support the court's findings. Weston v.

State, 60 N.J. 36, 50-51 (1972). Even if an applicant was

previously charged with an offense but not convicted, in a later

permit hearing the chief may still present to the court the

evidence underlying the charges. "The dismissal of criminal

charges does not prevent a court from considering the underlying

firearm or recover one previously taken by the police."

Osworth, supra, 365 N.J. Super. at 78 (citing In re Return of

Weapons to J.W.D., supra, 149 N.J. at 110). Accordingly, the

admission of such evidence here was not improper in any respect,

and any "hearsay" in the police reports was essentially

corroborated by appellant's testimony in court. We find no

error in the trial judge's reliance upon that testimony.

Finally, the facts of this case compel the conclusion that

the order upholding denial of the permits was proper. The 1998

incident was not isolated and aberrational, as appellant claims.

10 A-5848-12T1 Five times, between 2003 and 2011, police officers responded to

appellant's home on complaints by his wife of domestic disputes.

Each such complaint, despite appellant's characterizations,

wherein appellant's spouse felt compelled to require police

assistance, is imbued with the potential for violent reaction.

The presence of a firearm in such a household enhances the

potential for such reactions to become lethal.

The judge rejected appellant's attempts to downplay the

significance of the serial number of domestic disputes after

1998, and determined that there was nothing to suggest that this

history of discord between the couple would likely abate. In

addition, the trial judge manifestly found appellant's

characterization of his "great" relationship with his wife and

his ascribing of aspects of her conduct to sleep difficulties,

unconvincing. After reading the transcript, we are inclined to

agree. Moreover, the judge had the opportunity, which we did

not, to observe appellant's demeanor and hear him testify. We

are aware that live testimony can convey nuances that a cold

record cannot. See State v. Locurto, 157 N.J. 463, 474 (1999).

We decline to second-guess the trial judge's conclusion that, at

the time of the hearing, granting appellant's application, in

effect, would not be in the interest of the public health,

safety or welfare. N.J.S.A. 2C:58-3(c)(5).

11 A-5848-12T1 Affirmed.

12 A-5848-12T1