NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2270-16T4
IN THE MATTER OF THE APPEAL OF THE DENIAL OF A.M.'S APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD (FPIC) AND HANDGUN PURCHASE PERMIT (HPP). ________________________________
Submitted May 1, 2018 – Decided August 17, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Evan F. Nappen, attorney for appellant A.M. (Louis P. Nappen, on the brief).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent State of New Jersey (William P. Miller, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Petitioner A.M.1 appeals from a December 19, 2016 order
upholding the denial of his application for a New Jersey Firearms
1 Although appellant's filings, including his notice of appeal, amended notice of appeal, court transcript request, criminal case information statement, merits brief, and all documents comprising Purchaser Identification Card (ID card) and a Permit to Purchase
a Handgun (Permit). We affirm because we conclude there was
substantial credible evidence to support the trial judge's finding
that under N.J.S.A. 2C:58-3(c)(5), it would be against the "public
health, safety, and welfare" for A.M. to be granted his
application.
This appeal has its beginnings when A.M., a resident of Fort
Lee, submitted an ID card application with the Fort Lee Police
Department. In the ensuing background investigation, several
concerns were identified. As a juvenile, A.M. pled guilty to
what, if committed by an adult, would constitute a crime of
disorderly-persons simple assault. He was sentenced to one-year
probation term with a one-year period of adjustment conditioned
upon probationary supervision and six months of mental-health
counseling, which he never completed. Four years later, while a
special observer with the Fort Lee Volunteer Ambulance Corps, A.M.
presented himself as a full-time volunteer. A year later, after
A.M. volunteered with the Ridgefield Park Volunteer Ambulance
Corps, the deputy chief had concerns regarding A.M.'s use of his
the record contain his full name, we use his initials — notwithstanding that his request for such action was not by motion but only a point in his merits brief, which was opposed by the State — because of the references to his juvenile and mental health counseling history.
2 A-2270-16T4 vehicle's blue emergency lights and siren in pursuit of an
ambulance. It was further revealed that A.M. – while driving a
black Dodge charger with a heavy tint on its windows and blue
emergency lights activated, and possessing a false government
document – used a police scanner to show up on police calls. At
the investigation's conclusion, the Fort Lee Police Chief
determined that A.M. was not fit to purchase a firearm and issued
him a letter denying his application for an ID card. A.M.'s appeal
to the Law Division was denied by Judge Edward A. Jerejian
following an evidentiary hearing.
Less than two weeks later, A.M. filed an application for an
ID card and Permit with Ridgefield Park Police Department claiming
he was a resident of Ridgefield Park. Following that department's
background investigation, his application was denied due to
conflicting information about his place of residence and
incidents, not revealed by the Fort Lee investigation, in which
A.M., while with the Ridgefield Park Volunteer Ambulance Corps,
conducted a "routine spot check" in a park and drove erratically
in an apparent undercover police car while responding to a medical
call. Like the Fort Lee application, this rejection was appealed
to the Law Division and denied by Judge Jerejian.
In his oral decision, the judge stated it was no coincidence
that right after the Fort Lee application appeal was denied, A.M.
3 A-2270-16T4 allegedly moved to Ridgefield Park, and found the evidence
established that he was not a bona fide resident of Ridgefield
Park. Moreover, based upon the incidents revealed by both
municipalities' investigations and his order upholding the denial
of A.M.'s Fort Lee ID card application, the judge, citing N.J.S.A.
2C:58-3(c)(5), found that the "[State] met [its] burden that
issuance of an [ID card] and a permit to purchase a handgun [to
A.M. was] not in the interest of the public health, safety, and
welfare."
In this appeal, A.M. raises several arguments challenging the
legality of the judge's order upholding Ridgefield Park's denial
of his ID card and Permit application. He first argues a remand
is required because under Weston v. State, 60 N.J. 36, 44 (1972),
the Ridgefield Park Police Chief did not afford him a pre-denial
conference and did not testify at the evidentiary hearing, and he
was not interviewed by the investigating officer prior to the
chief's denial of his application.2 We disagree.
Our Supreme Court recognized in Weston that a Law Division
de novo hearing for a denied applicant "contemplates introduction
2 To support his argument that we should remand, A.M. relies on an unpublished opinion, In re Pejman Rohani, No. A-6249-12 (App. Div. Jan. 2, 2015). However, unpublished opinions do not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.
4 A-2270-16T4 of relevant and material testimony and the application of an
independent judgment to the testimony by the reviewing court," and
the review "compensates constitutionally for procedural
deficiencies before the [police chief]." Id. at 45-46. We have
also recognized the futility of a remand for a chief's conference
even when there was a complete failure to comply with Weston's
mandate, where the applicant was eventually informed of the reasons
for the denial and there was no likelihood of an informal
resolution. In re Dubov, 410 N.J. Super. 190, 200 n.2 (App. Div.
2009). Further, A.M. fails to prove any prejudice stemmed from
the chief's decision not to give him a pre-denial conference, and
he proffers no explanation or information that he could have
presented that plausibly could have altered the chief's decision.
Hence, a remand for a chief's conference would be pointless.
As for the lack of the Ridgefield Park Police Chief's
testimony at the evidentiary hearing, ordinarily it would be
preferable for him to testify. However, it was not necessary.
Judge Jerejian cited the testimony of the investigating officer,
whom the chief relied upon in making his decision, and the
testimony of the Fort Lee Police Chief in his denial of A.M.'s ID
card application, which will be further discussed below, was
largely predicated on the same disqualifiers as Ridgefield Park's
denial. Based upon our de novo review of A.M.'s applications, In
5 A-2270-16T4 re N.J. Firearms Purchaser Identification Card by Z.K., 440 N.J.
Super. 394, 397 (App. Div. 2015), we discern no injustice in the
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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-2270-16T4
IN THE MATTER OF THE APPEAL OF THE DENIAL OF A.M.'S APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD (FPIC) AND HANDGUN PURCHASE PERMIT (HPP). ________________________________
Submitted May 1, 2018 – Decided August 17, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Evan F. Nappen, attorney for appellant A.M. (Louis P. Nappen, on the brief).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent State of New Jersey (William P. Miller, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Petitioner A.M.1 appeals from a December 19, 2016 order
upholding the denial of his application for a New Jersey Firearms
1 Although appellant's filings, including his notice of appeal, amended notice of appeal, court transcript request, criminal case information statement, merits brief, and all documents comprising Purchaser Identification Card (ID card) and a Permit to Purchase
a Handgun (Permit). We affirm because we conclude there was
substantial credible evidence to support the trial judge's finding
that under N.J.S.A. 2C:58-3(c)(5), it would be against the "public
health, safety, and welfare" for A.M. to be granted his
application.
This appeal has its beginnings when A.M., a resident of Fort
Lee, submitted an ID card application with the Fort Lee Police
Department. In the ensuing background investigation, several
concerns were identified. As a juvenile, A.M. pled guilty to
what, if committed by an adult, would constitute a crime of
disorderly-persons simple assault. He was sentenced to one-year
probation term with a one-year period of adjustment conditioned
upon probationary supervision and six months of mental-health
counseling, which he never completed. Four years later, while a
special observer with the Fort Lee Volunteer Ambulance Corps, A.M.
presented himself as a full-time volunteer. A year later, after
A.M. volunteered with the Ridgefield Park Volunteer Ambulance
Corps, the deputy chief had concerns regarding A.M.'s use of his
the record contain his full name, we use his initials — notwithstanding that his request for such action was not by motion but only a point in his merits brief, which was opposed by the State — because of the references to his juvenile and mental health counseling history.
2 A-2270-16T4 vehicle's blue emergency lights and siren in pursuit of an
ambulance. It was further revealed that A.M. – while driving a
black Dodge charger with a heavy tint on its windows and blue
emergency lights activated, and possessing a false government
document – used a police scanner to show up on police calls. At
the investigation's conclusion, the Fort Lee Police Chief
determined that A.M. was not fit to purchase a firearm and issued
him a letter denying his application for an ID card. A.M.'s appeal
to the Law Division was denied by Judge Edward A. Jerejian
following an evidentiary hearing.
Less than two weeks later, A.M. filed an application for an
ID card and Permit with Ridgefield Park Police Department claiming
he was a resident of Ridgefield Park. Following that department's
background investigation, his application was denied due to
conflicting information about his place of residence and
incidents, not revealed by the Fort Lee investigation, in which
A.M., while with the Ridgefield Park Volunteer Ambulance Corps,
conducted a "routine spot check" in a park and drove erratically
in an apparent undercover police car while responding to a medical
call. Like the Fort Lee application, this rejection was appealed
to the Law Division and denied by Judge Jerejian.
In his oral decision, the judge stated it was no coincidence
that right after the Fort Lee application appeal was denied, A.M.
3 A-2270-16T4 allegedly moved to Ridgefield Park, and found the evidence
established that he was not a bona fide resident of Ridgefield
Park. Moreover, based upon the incidents revealed by both
municipalities' investigations and his order upholding the denial
of A.M.'s Fort Lee ID card application, the judge, citing N.J.S.A.
2C:58-3(c)(5), found that the "[State] met [its] burden that
issuance of an [ID card] and a permit to purchase a handgun [to
A.M. was] not in the interest of the public health, safety, and
welfare."
In this appeal, A.M. raises several arguments challenging the
legality of the judge's order upholding Ridgefield Park's denial
of his ID card and Permit application. He first argues a remand
is required because under Weston v. State, 60 N.J. 36, 44 (1972),
the Ridgefield Park Police Chief did not afford him a pre-denial
conference and did not testify at the evidentiary hearing, and he
was not interviewed by the investigating officer prior to the
chief's denial of his application.2 We disagree.
Our Supreme Court recognized in Weston that a Law Division
de novo hearing for a denied applicant "contemplates introduction
2 To support his argument that we should remand, A.M. relies on an unpublished opinion, In re Pejman Rohani, No. A-6249-12 (App. Div. Jan. 2, 2015). However, unpublished opinions do not constitute precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.
4 A-2270-16T4 of relevant and material testimony and the application of an
independent judgment to the testimony by the reviewing court," and
the review "compensates constitutionally for procedural
deficiencies before the [police chief]." Id. at 45-46. We have
also recognized the futility of a remand for a chief's conference
even when there was a complete failure to comply with Weston's
mandate, where the applicant was eventually informed of the reasons
for the denial and there was no likelihood of an informal
resolution. In re Dubov, 410 N.J. Super. 190, 200 n.2 (App. Div.
2009). Further, A.M. fails to prove any prejudice stemmed from
the chief's decision not to give him a pre-denial conference, and
he proffers no explanation or information that he could have
presented that plausibly could have altered the chief's decision.
Hence, a remand for a chief's conference would be pointless.
As for the lack of the Ridgefield Park Police Chief's
testimony at the evidentiary hearing, ordinarily it would be
preferable for him to testify. However, it was not necessary.
Judge Jerejian cited the testimony of the investigating officer,
whom the chief relied upon in making his decision, and the
testimony of the Fort Lee Police Chief in his denial of A.M.'s ID
card application, which will be further discussed below, was
largely predicated on the same disqualifiers as Ridgefield Park's
denial. Based upon our de novo review of A.M.'s applications, In
5 A-2270-16T4 re N.J. Firearms Purchaser Identification Card by Z.K., 440 N.J.
Super. 394, 397 (App. Div. 2015), we discern no injustice in the
judge's fact-findings, In re Return of Weapons to J.W.D., 149 N.J.
108, 117 (1997).
A.M. next attacks the admission of evidence denied him a de
novo hearing as required by Weston, 60 N.J. at 51. He argues the
judge failed to conduct an evidentiary hearing by improperly
relying upon the hearsay evidence of his hearing notes from the
Fort Lee appeal. He further claims that the testimony of his new
landlord and the investigating officer regarding his place of
residence was hearsay because it was not based upon first-hand
knowledge. We disagree.
We find merit in the State's contention that Judge Jerejian's
reliance on the Fort Lee hearing constituted an exercise of
judicial notice. A court may take judicial notice of "records of
the court in which the action is pending," N.J.R.E. 201(b)(4),
"whether requested or not," N.J.R.E. 201(c). Even without a
transcript of the prior proceeding, a judge may properly rely on
the testimony heard in a prior hearing. See In re Breckwoldt, 22
N.J. 271, 275 (1956); Brick v. Vannell, 55 N.J. Super. 583, 587-
88 (App. Div. 1959) (noting that trial judge appropriately took
judicial notice of facts adduced in a prior suit over which the
judge presided). As for the judge's reliance on hearsay, our
6 A-2270-16T4 review of the record does not evince that his decision rested
exclusively upon hearsay. That said, as the Court held in Weston,
hearsay is generally admissible in reviewing an administrative
decision. 60 N.J. at 51. "Hearsay may be employed to corroborate
competent proof, or competent proof may be supported or given
added probative force by hearsay testimony," but added, "there
must be a residuum of legal and competent evidence in the record."
Ibid. "The residuum rule does not require that each fact be based
on a residuum of legally competent evidence but rather focuses on
the ultimate finding or findings of material fact." Ruroede v.
Borough of Hasbrouck Heights, 214 N.J. 338, 359 (2013). In sum,
we see no abuse of discretion in the judge's evidentiary rulings,
Townsend v. Pierre, 221 N.J. 36, 52-53 (2015), and as noted, we
discern no injustice in his fact-findings.
We next conclude there is no merit to A.M.'s argument that
Judge Jerejian improperly shifted the burden to him to prove that
he resided in Ridgefield Park when it was the State's burden, and,
thus, erred by denying his application on the ground that he did
move to Ridgefield Park. The judge's comment that A.M. had a
"burden" to show residency is a fair assessment of his obligation
to combat the State's proofs that he did not reside in Ridgefield
Park. Konigsberg v. State Bar of Cal., 366 U.S. 36, 55 (1961)
("Requiring a defendant in a civil proceeding to testify or to
7 A-2270-16T4 submit to discovery has never been thought to shift the burden of
proof to him."). We therefore see no cause to disturb the judge's
finding that A.M. was not a bona fide resident of Ridgefield Park
when he submitted his application.
For the first time on appeal, A.M. argues: that he is not a
threat to the public, citing, i.e., his experience as an EMT and
as a Range Safety Officer at a firearm range, and his acceptance
and attendance at the New Jersey Police Academy; that the "interest
of the public health, safety or welfare" provision in N.J.S.A.
2C:58-3(c)(5) is constitutionally vague; and that this matter
should be impounded3 because his juvenile history and court-ordered
mental health counseling are mentioned. We decline to consider
these newly raised arguments because they are not jurisdictional
in nature nor do they substantially implicate the public interest.
Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted).
Even considered, these arguments are without sufficient merit to
warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and
because we have previously held that N.J.S.A. 2C:58-3(c)(5) is not
unconstitutionally vague, In re Winston, 438 N.J. Super. 1, 10
(App. Div. 2014) (citing In re Dubov, 410 N.J. Super. at 196-97).
Affirmed.
3 As previously noted, we decided to use appellant's initials.
8 A-2270-16T4