In the Matter of J.C.G.

• Court: New Jersey Superior Court Appellate Division
• Decided: May 1, 2024
• Docket: A-2416-22
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2416-22

IN THE MATTER OF J.C.G. ________________________

Submitted April 22, 2024 – Decided May 1, 2024

Before Judges Mawla and Marczyk.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 0258 XTR 2022 000002.

The Tormey Law Firm, LLC, attorneys for appellant J.C.G. (Travis J. Tormey, of counsel; Jeffrey Anthony Skiendziul, on the brief).

Mark Musella, Bergen County Prosecutor, attorney for respondent State of New Jersey (K. Charles Deutsch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant J.C.G. 1 appeals from the trial court's April 11, 2023 order

entering a Final Extreme Risk Protective Order (FERPO) against him pursuant

1 Records relating to Temporary Extreme Risk Protective Order (TERPO) and FERPO proceedings are confidential and shall not be disclosed to persons other to the Extreme Risk Protective Order Act of 2018 (the Act), N.J.S.A. 2C:58-20

to -32. We affirm.

We take the following facts from the trial record, which included

documentary evidence and the testimony of the applicant, Saddle River Police

Officer Frank Licari, and appellant. On June 17, 2022, appellant entered Saddle

River Police Department with his daughter and reported he had been in an

argument with his wife. Officer Licari spoke with appellant, who reported his

wife threatened to claim he kidnapped their child if he took her to the park, and

appellant wanted to make sure police knew that he had not kidnapped his

daughter.

Appellant then told officers he did not care if they "lock him up or shoot

him." The officers asked him to elaborate, and he said, "he didn't want to hurt

himself or others." When asked why he made the remark, appellant stated, "with

everything going on in the world, why would anybody want to live on this earth."

Officers called a psychiatric helpline and were told appellant's remarks did not

mandate his involuntary commitment, but helpline personnel offered to conduct

a psychiatric screening, which appellant declined.

than the respondent, except for good cause shown. Admin. Off. of the Cts., Admin. Directive #19-19, Guidelines for Extreme Risk Protective Orders 8(a) (Aug. 12, 2019) [hereinafter AOC Directive]. A-2416-22 2 Officers also went to appellant's home and spoke to his wife. She

confirmed the couple had an argument but said she did not feel unsafe.

However, she told police appellant's comment about not caring if he was shot

was "normal, or somewhat normal," for appellant to make.

Officer Licari searched police records and found police had previously

received calls from people concerned about appellant's mental state. In

December 2020, police received a call from a nurse concerned about appellant's

wife's well-being, noting the home had "hoarding conditions" and the doors

automatically locked and required standing on "a chair to reach the lock or latch

on the front door" to exit. In 2019, appellant took his wife's cellphone during a

domestic dispute.

In November 2014, New Jersey Transit Police contacted Saddle River

Police because appellant, who worked on a New Jersey Transit train, said, "he

would jump in front of a train" if his colleague did not stop the train to enable

appellant to attend his daughter's doctor's appointment. At trial, appellant

clarified that he meant his colleague's failure to stop the train to let appellant

attend the appointment was the equivalent of being thrown in front of the train.

On March 19, 2014, a doctor at a local hospital contacted police,

expressing concern about appellant because appellant told the doctor his stress

A-2416-22 3 level over his wife's pregnancy "may[]be putting other people at risk." Officers

responded to appellant's home, and he told them he was stressed because he was

concerned about his wife's medical condition due to a difficult pregnancy.

After appellant left the police station on June 17, 2022, police had a

second encounter with him, which led to his voluntary hospitalization. Around

7:00 p.m. that day, officers were dispatched to appellant's residence for a

domestic incident. Appellant and his wife were arguing about school placement

for their daughter. When police arrived, appellant's wife and daughter were on

the front porch. The wife told police that appellant said "he was going to

disappear to a place where nobody would be able to find him[,] and that it was

a place only he knew about." According to the police report, when officers

questioned appellant about this statement, he "refused to elaborate but told

officers that they would be the ones to cause his funeral."

Appellant agreed to submit to a psychiatric screening. The evaluating

doctor diagnosed him with adjustment disorder with depressive mood. The

discharge instructions "highly recommended [appellant] start couples

counseling" and for him "to start behavior health therapy . . . to set up [an] out-

patient appointment for both psychiatric and behavior health services as soon as

possible."

A-2416-22 4 Although the doctor intended to release appellant, she recommended all

firearms be removed beforehand. Appellant agreed to surrender his firearms,

and officers removed seven firearms from the home and various types of

ammunition, including an illegal gun magazine.

The municipal court granted Saddle River Police a TERPO based on these

facts. In anticipation of the FERPO hearing, appellant consulted a forensic

psychologist who prepared a report opining appellant was "psychiatrically stable

and there are no notable concerns at this time with respect to his mental health."

The psychologist found appellant was at "low risk [] of engaging in acts of self-

injury or violence toward himself or others in the foreseeable future, with or

without a firearm." The doctor noted he has never found a person to be at "no

risk" and that his "low risk" finding regarding appellant was "one of the lowest

possible risk levels [he] would set forth in these matters." (Emphasis in

original). The doctor's report relied upon an interview with appellant, a

collateral interview with appellant's wife, a review of the TERPO, the records

of appellant's psychiatric hospitalization, and other documents.

The doctor opined appellant had "no history of engaging in behavioral

problems" and no history of criminal arrest, "engaging in violence, domestic

violence, aggression, property damage, fire-setting, animal cruelty, or similarly

A-2416-22 5 problematic behaviors." According to the doctor, appellant denied saying he

was going to "jump in front of a train" and claimed the accusation was

"fabricated" by a coworker with whom he got into a verbal altercation. The

doctor noted appellant acknowledged the 2019 domestic dispute where he took

his wife's phone but provided no further information as to why.

The doctor administered the Personality Assessment Inventory (PAI) and

the Minnesota Multiphasic Personality Inventory-3 (MMPI-3) tests to appellant.

The PAI results were "invalid due to elevated PIM [2] scale, which corresponds

to potential minimization." Notwithstanding the invalid PAI, the doctor stated

he "reviewed critical items, and they did not reflect significant concerns." The

doctor noted the MMPI-3 test results "also indicated potential defensiveness [by

appellant]. However, there are no noteworthy scale elevations or the like."

Following the testimony, the judge made oral findings, entered a FERPO,

and then issued a comprehensive written amplification pursuant to Rule 2:5-

1(b). She found Officer Licari's testimony credible and appellant's testimony

2 PIM stands for Positive Impression Management and is a validity scale incorporated into the PAI, which aids the administrator in discriminating between "those who fake good from those who respond honestly and openly" to the questions in the PAI. Jason Peebles & Robert J. Moore, Detecting Socially Desirable Responding with the Personality Assessment Inventory: The Positive Impression Management Scale and the Defensiveness Index, 54 J. Clinical Psych., 621, 626 (1998). A-2416-22 6 partially credible. Appellant "was evasive and failed to answer all questions

directly." He "also gave answers and explanations that contradicted various

reports, including his own expert report." Appellant "repeatedly minimized the

severity of his statements and behavior to the [c]ourt."

The judge gave the psychologist's report little weight because it was

created in anticipation of the trial "and was based largely off of respondent's

own self-reporting." Regardless, the report confirmed appellant "minimized the

seriousness of his own issues and circumstances."

The judge found both the 2014 and 2019 incidents established appellant

had "a history of threats or acts of violence against self or others." These

incidents further showed he had a history of threatening to use physical force

against another person. Although appellant voluntarily entered the hospital for

psychiatric treatment, she concluded his overnight stay was involuntary.

Moreover, the admission resulted in a psychiatric diagnosis of adjustment

disorder with depressive mood. The judge further found the psychiatric

admission was proof appellant received mental health treatment, but she noted

he had not complied with the discharge recommendations for further outpatient

treatment and instead consulted the expert to prepare a report for the trial. She

concluded these factors preponderated in favor of entry of a FERPO.

A-2416-22 7 I.

Appellant argues the trial judge erred when she found he had a history of

threats of violence against himself or others, and that his statements to police in

2022 constituted threats of violence against himself or others. He claims the

judge took the statements out of context because they were an expression of the

emotional pain he would experience if he were arrested, as he would not be able

to provide for his wife and daughter. Moreover, he never acted on his

statements, none of the reports in evidence said he was a danger to himself or

others, and his contacts with police were for the purpose of peaceably resolving

marital disputes. Appellant notes he has never: been subject to a restraining

order, an order of protection, a TERPO, or arrested; committed animal cruelty;

or had a history of substance abuse. And he has not recently acquired a firearm

or other deadly weapon. Nor has he ever recklessly used, displayed, or

brandished a firearm.

Appellant argues the trial judge's finding he was involuntarily committed

to a psychiatric facility was erroneous.3 Moreover, the judge ignored the fact

appellant's psychologist concluded he did not pose a significant risk to himself

or others by possessing firearms. Thus, he asserts the State failed to show a

3 The State concedes this finding was erroneous. A-2416-22 8 logical nexus between his mental health diagnosis and a significant risk of harm

to himself or others if he possessed firearms.

Appellant also challenges the court's ruling on Second Amendment

grounds. He claims the judge never made findings on how the Act and the

restrictions on gun ownership that flow from the entry of a FERPO are consistent

with "the nation's historical traditions of firearm regulation." He argues the Act

is unconstitutional.

"The scope of appellate review of a trial court's fact-finding function is

limited. The general rule is that findings by the trial court are binding on appeal

when supported by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 411-12 (1998). We do "not disturb the 'factual findings and legal

conclusions of the trial judge unless [we are] convinced . . . they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice.'" Id. at 412

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).

We previously outlined the law that frames our discussion of appellant's

arguments at length in In re D.L.B., 468 N.J. Super. 397, 400-07 (App. Div.

2021). We explained the Act is modeled on the process for obtaining a domestic

violence restraining order. Id. at 402. The Act contains eight statutory factors

A-2416-22 9 under N.J.S.A. 2C:58-23(f), and seven additional factors were promulgated in

the AOC Directive, which courts must consider before entering a FERPO. Id.

at 402-04. We also described the applicable evidentiary standards, including

that the Act provides "[t]he court shall issue the FERPO . . . if it finds 'by a

preponderance of the evidence at the hearing that the respondent poses a

significant danger of bodily injury to the respondent's self or others' by

possessing a firearm." Id. at 406-07 (quoting N.J.S.A. 2C:58-24(b)).

Pursuant to these principles, we affirm substantially for the reasons

expressed in the trial judge's oral and written opinions. We add the following

comments.

The record supports the trial judge's findings appellant made multiple

suicidal statements on June 17, 2022, when he said he did not care if police

officers shot him, wondered why anyone would want to live "on this earth," and

that "he was going to disappear to a place where nobody would be able to find

him[,] and that it was a place only he knew about." Most concerning was

appellant's statement to police officers that they would be the ones to cause his

funeral. Additionally, his wife told officers it was normal or somewhat normal

for appellant to make suicidal statements. These alarming statements went

A-2416-22 10 beyond appellant's purported attempt to resolve mere marital contretemps by

enlisting police assistance.

Appellant's behavioral history was no less concerning. Regardless of how

he made or intended his comments to his coworker in 2014, appellant's conduct

caused enough concern that Transit Police contacted Saddle River Police. That

same year, appellant's comments at a doctor's visit impelled the doctor to also

contact police with concerns appellant might harm himself or others because of

his emotional state. And the 2019 incident, which resulted in police responding

to appellant's home because he argued with his wife and then took her phone ,

bore semblance to domestic violence, namely, the desire of one party to control

the other. See Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995)

(explaining domestic violence "describes a pattern of abusive and controlling

behavior which injures its victim").

Therefore, the trial judge correctly found both the 2022 predicate acts and

appellant's history in 2014 and 2019 met N.J.S.A. 2C:58-23(f)(1) and (2).

Indeed, those factors require the court to "consider whether the respondent: (1)

has any history of threats or acts of violence by the respondent directed toward

self or others; (2) has any history of use, attempted use, or threatened use of

A-2416-22 11 physical force by the respondent against another person." N.J.S.A. 2C:58-

23(f)(1)-(2).

Although the judge mistakenly found appellant had been involuntarily

admitted, her finding pursuant to the factors under AOC Directive Guideline

3(d)(13)-(15) is also amply supported by the record. Those factors require the

court to consider whether a respondent "has received or is receiving mental

health treatment; . . . has complied or has failed to comply with any mental

health treatment; and . . . has received a diagnosis of a mental health disorder."

AOC Directive Guideline 3(d)(13)-(15).

For these reasons, we conclude the judge neither abused her discretion nor

misapplied the law when she granted the FERPO. Finally, we decline to

consider appellant's constitutional challenge to the Act. This issue was not

properly raised before the trial judge, and we decline to consider it for the first

time on appeal. Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012);

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

A-2416-22 12