NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4775-16T1
IN THE MATTER OF THE APPEAL OF THE DENIAL OF KENNETH ERICKSON, JR.'S APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD (FPIC) AND HANDGUN PURCHASE PERMIT (HPP). _____________________________
Submitted July 3, 2018 – Decided August 14, 2018
Before Judges O'Connor and Moynihan.
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Evan F. Nappen, Attorney at Law, PC, attorneys for appellant Kenneth Erickson, Jr. (Evan F. Nappen, on the brief).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent State of New Jersey (Jenny X. Zhang, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Appellant Kenneth Erickson, Jr., appeals from an order
denying his application for a firearms purchaser identification
card (FPIC) and handgun purchase permit (HPP), arguing: [POINT I]
THE COURT BELOW ERRED BY BASING ITS DECISION UPON HEARSAY CONTRARY TO DUBOV,[1] WESTON[2] AND ONE MARLIN RIFLE.[3]
[POINT II]
THE COURT BELOW ERRED IN FINDING THAT THE APPELLANT IS A THREAT TO THE PUBLIC HEALTH, SAFETY, OR WELFARE, HAD A MENTAL HEALTH DISQUALIFIER AND FALSIFIED HIS APPLICATION.
[POINT III]
APPELLANT SHOULD NOT BE DENIED HIS FUNDAMENTAL, INDIVIDUAL, CONSTITUTIONAL RIGHT TO KEEP ARMS FOR A REASON THAT DOES NOT RISE ABOVE RATIONAL BASIS, IS VAGUE AND/OR OVERBROAD, CONSTITUTES AN UNCONSTITUTIONAL BALANCING-TEST, AND DOES NOT PROVIDE A DUE PROCESS FORM OF REDRESS.
We determine that sufficient, competent evidence supported the
trial court's decision and affirm.
In considering Erickson's appeal, the judge listed the
documentary evidence he weighed: Erickson's FPIC application; a
written statement from Erickson to the Haworth Police Department;
letters from Erickson's treating psychiatrist, Lorraine Chiorazzi,
M.D., and therapist, Marcia Stamberg, L.C.S.W. to the former
Haworth police chief; the denial letter from the Haworth police
1 In re Dubov, 410 N.J. Super. 190 (App. Div. 2009). 2 Weston v. State, 60 N.J. 36 (1972). 3 State v. One Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999).
2 A-4775-16T1 chief; a 1980 permit to purchase a handgun; and a signed consent
form – introduced into evidence by Erickson — to obtain his mental
health records. The judge also considered testimony from Detective
Alex Yannuzzi, Dr. Chiorazzi and Erickson.
The judge denied Erickson's appeal, determining he was
disqualified under N.J.S.A. 2C:58-3(c)(3)4 and -(5)5 because he
falsified his application by answering "no" to questions 24 and
26, and the issuance of a permit or FPIC would not be in the
interest of the public health, safety or welfare given Erickson's
mental health history.
We are bound to accept the trial court's fact findings if
they are supported by substantial credible evidence, In re Return
4 N.J.S.A. 2C:58-3(c)(3), provides in pertinent part, that no HPP or FPIC shall be issued
[t]o any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder . . . unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a [HPP] or [FPIC]. 5 N.J.S.A. 2C:58-3(c)(5) prohibits the issuance of such documents to "any person where the issuance would not be in the interest of the public health, safety or welfare."
3 A-4775-16T1 of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997); "[d]eference
to a trial court's fact-finding is especially appropriate when the
evidence is largely testimonial and involves questions of
credibility," id. at 117. We exercise de novo review of the trial
court's legal determinations, Manalapan Realty, LP v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
Contrary to Erickson's contention, we are satisfied the
judge's findings were not solely based on hearsay evidence. The
evidence upon which a final administrative agency decision is
reached may include hearsay evidence, provided the agency's
findings are not entirely based upon hearsay evidence. Weston v.
State, 60 N.J. 36, 50-52 (1972). Evidence that ordinarily would
be excludable as hearsay may be admissible in a gun permit hearing
if it is "of a credible character -- of the type which responsible
persons are accustomed to rely upon in the conduct of their serious
affairs." Id. at 51; see also In re Dubov, 410 N.J. Super. 190,
202 (App. Div. 2009).
For a court to sustain an administrative decision, findings
must be supported by a residuum of legally competent evidence.
Weston, 60 N.J. at 51; see also In re Toth, 175 N.J. Super. 254,
262 (App. Div. 1980). "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
4 A-4775-16T1 fact." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 359
(2013).
Yannuzzi – who conducted the background investigation
regarding the application — testified Erickson answered "no" to
question 26 on his application and, after initially leaving
question 24 blank, answered "no" to that question at a meeting
between Yannuzzi and Erickson to clarify the omission. In doing
so, Erickson denied being "confined or committed to a mental
institution or hospital for treatment or observation of a mental
or psychiatric condition on a temporary, interim, or permanent
basis," and being "attended, treated or observed by any doctor or
psychiatrist or at any hospital or mental institution on an
inpatient or outpatient basis for any mental or psychiatric
condition."6
The judge determined these were false answers based upon his
review of: the application; Yannuzzi's testimony – found credible
by the judge – regarding his interaction with Erickson about
question 24; and evidence that proved Erickson was brought to the
Bergen Regional Medical Center (BRMC) on October 4, 2014, where
6 We quote questions 24 and 26, respectively, of the "Application for Firearms Purchaser Identification Card and/or Handgun Purchase Permit."
5 A-4775-16T1 he received mental health treatment prior to submitting his
application.
We determine, based on our review of the record, that the
judge's findings are well-supported by competent evidence, with
or without the buttressing hearsay evidence. Yannuzzi testified
that his application-related investigation revealed Erickson was
transported to BRMC for evaluation after police responded to his
home on a report that "Erickson had threatened harm either to
himself or [his] former brother-in-law by threatening to put a
bullet in that person's head." Disregarding the reason why 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-4775-16T1
IN THE MATTER OF THE APPEAL OF THE DENIAL OF KENNETH ERICKSON, JR.'S APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD (FPIC) AND HANDGUN PURCHASE PERMIT (HPP). _____________________________
Submitted July 3, 2018 – Decided August 14, 2018
Before Judges O'Connor and Moynihan.
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Evan F. Nappen, Attorney at Law, PC, attorneys for appellant Kenneth Erickson, Jr. (Evan F. Nappen, on the brief).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent State of New Jersey (Jenny X. Zhang, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Appellant Kenneth Erickson, Jr., appeals from an order
denying his application for a firearms purchaser identification
card (FPIC) and handgun purchase permit (HPP), arguing: [POINT I]
THE COURT BELOW ERRED BY BASING ITS DECISION UPON HEARSAY CONTRARY TO DUBOV,[1] WESTON[2] AND ONE MARLIN RIFLE.[3]
[POINT II]
THE COURT BELOW ERRED IN FINDING THAT THE APPELLANT IS A THREAT TO THE PUBLIC HEALTH, SAFETY, OR WELFARE, HAD A MENTAL HEALTH DISQUALIFIER AND FALSIFIED HIS APPLICATION.
[POINT III]
APPELLANT SHOULD NOT BE DENIED HIS FUNDAMENTAL, INDIVIDUAL, CONSTITUTIONAL RIGHT TO KEEP ARMS FOR A REASON THAT DOES NOT RISE ABOVE RATIONAL BASIS, IS VAGUE AND/OR OVERBROAD, CONSTITUTES AN UNCONSTITUTIONAL BALANCING-TEST, AND DOES NOT PROVIDE A DUE PROCESS FORM OF REDRESS.
We determine that sufficient, competent evidence supported the
trial court's decision and affirm.
In considering Erickson's appeal, the judge listed the
documentary evidence he weighed: Erickson's FPIC application; a
written statement from Erickson to the Haworth Police Department;
letters from Erickson's treating psychiatrist, Lorraine Chiorazzi,
M.D., and therapist, Marcia Stamberg, L.C.S.W. to the former
Haworth police chief; the denial letter from the Haworth police
1 In re Dubov, 410 N.J. Super. 190 (App. Div. 2009). 2 Weston v. State, 60 N.J. 36 (1972). 3 State v. One Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999).
2 A-4775-16T1 chief; a 1980 permit to purchase a handgun; and a signed consent
form – introduced into evidence by Erickson — to obtain his mental
health records. The judge also considered testimony from Detective
Alex Yannuzzi, Dr. Chiorazzi and Erickson.
The judge denied Erickson's appeal, determining he was
disqualified under N.J.S.A. 2C:58-3(c)(3)4 and -(5)5 because he
falsified his application by answering "no" to questions 24 and
26, and the issuance of a permit or FPIC would not be in the
interest of the public health, safety or welfare given Erickson's
mental health history.
We are bound to accept the trial court's fact findings if
they are supported by substantial credible evidence, In re Return
4 N.J.S.A. 2C:58-3(c)(3), provides in pertinent part, that no HPP or FPIC shall be issued
[t]o any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder . . . unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a [HPP] or [FPIC]. 5 N.J.S.A. 2C:58-3(c)(5) prohibits the issuance of such documents to "any person where the issuance would not be in the interest of the public health, safety or welfare."
3 A-4775-16T1 of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997); "[d]eference
to a trial court's fact-finding is especially appropriate when the
evidence is largely testimonial and involves questions of
credibility," id. at 117. We exercise de novo review of the trial
court's legal determinations, Manalapan Realty, LP v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
Contrary to Erickson's contention, we are satisfied the
judge's findings were not solely based on hearsay evidence. The
evidence upon which a final administrative agency decision is
reached may include hearsay evidence, provided the agency's
findings are not entirely based upon hearsay evidence. Weston v.
State, 60 N.J. 36, 50-52 (1972). Evidence that ordinarily would
be excludable as hearsay may be admissible in a gun permit hearing
if it is "of a credible character -- of the type which responsible
persons are accustomed to rely upon in the conduct of their serious
affairs." Id. at 51; see also In re Dubov, 410 N.J. Super. 190,
202 (App. Div. 2009).
For a court to sustain an administrative decision, findings
must be supported by a residuum of legally competent evidence.
Weston, 60 N.J. at 51; see also In re Toth, 175 N.J. Super. 254,
262 (App. Div. 1980). "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
4 A-4775-16T1 fact." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 359
(2013).
Yannuzzi – who conducted the background investigation
regarding the application — testified Erickson answered "no" to
question 26 on his application and, after initially leaving
question 24 blank, answered "no" to that question at a meeting
between Yannuzzi and Erickson to clarify the omission. In doing
so, Erickson denied being "confined or committed to a mental
institution or hospital for treatment or observation of a mental
or psychiatric condition on a temporary, interim, or permanent
basis," and being "attended, treated or observed by any doctor or
psychiatrist or at any hospital or mental institution on an
inpatient or outpatient basis for any mental or psychiatric
condition."6
The judge determined these were false answers based upon his
review of: the application; Yannuzzi's testimony – found credible
by the judge – regarding his interaction with Erickson about
question 24; and evidence that proved Erickson was brought to the
Bergen Regional Medical Center (BRMC) on October 4, 2014, where
6 We quote questions 24 and 26, respectively, of the "Application for Firearms Purchaser Identification Card and/or Handgun Purchase Permit."
5 A-4775-16T1 he received mental health treatment prior to submitting his
application.
We determine, based on our review of the record, that the
judge's findings are well-supported by competent evidence, with
or without the buttressing hearsay evidence. Yannuzzi testified
that his application-related investigation revealed Erickson was
transported to BRMC for evaluation after police responded to his
home on a report that "Erickson had threatened harm either to
himself or [his] former brother-in-law by threatening to put a
bullet in that person's head." Disregarding the reason why the
police were called,7 Erickson, during his testimony, confirmed he
was brought to BRMC after the police response, and there underwent
an evaluation. So too, Erickson admitted he had been treated for
anxiety and depression since "around 2000, 2001" by Dr. Stamberg,8
by Dr. Chiorazzi for five years prior to the 2014 incident, and
by Dr. Wolpe prior to that "for a period of some years." He also
testified he had been taking medications for anxiety and depression
since 2000, and listed his then-current medications for anxiety
and depression: Tofranil, Buspar and one other he could not recall.
7 That multiple-hearsay evidence was never found to be a fact by the judge. 8 Erickson referred to her as "Dr. Stamberg," but she identifies herself as an L.C.S.W. in her signature on the letter she sent to the police chief.
6 A-4775-16T1 Dr. Chiorazzi testified she diagnosed Erickson with "General
Anxiety Disorder, panic attacks. He has a history of agoraphobia.
He has a history of depression, but I don't call it major . . . I
don't think that [is] his major diagnosis. I think his major
diagnosis is the anxiety and some depression follows that." Dr.
Chiorazzi opined that if Erickson discontinued his prescribed
medication,
he'd become paralyzed again, the way I saw him during the year following his wife's death. I mean, he had such anxiety that he was afraid to go to the mailbox to look at the mail to see if there were any bills that would come in that couldn't be paid. . . . I thought he was suffering tremendously.
The documentary evidence buttressed the testimonial evidence.
In his letter to the Haworth Police Department, Erickson said he
had anxiety and depression, and that he "was brought to [BRMC] for
an evaluation." Dr. Chiorazzi and Stamberg sent letters to the
then police chief in support of Erickson's attempt to gain the
return of firearms seized from his home during the incident that
resulted in his transport to BRMC. Chiorazzi confirmed she had
been treating Erickson weekly for "severe Anxiety with Panic
Attacks" since September 2011, and despite a recent exacerbation
of his anxiety caused by family dysfunction, she opined "his
firearms [could be] safely . . . returned to him" because his
anxiety had "never resulted . . . [in threats] to harm himself or
7 A-4775-16T1 another person." Stamberg confirmed her treatment of Erickson
since June 11, 2014 for "severe Panic Disorder and anxiety" and
her conversation with the doctor at BRMC after the doctor
"evaluated him the night of October 4[], 2014." She said there
was "no reason whatsoever" why Erickson's firearms should not be
returned to him, claiming he had "no history of suicidal or
homicidal [ideation] nor has he exhibited any inclination to harm
any other person in the time I have seen him."
We defer to the judge's findings that Erickson's explanations
for the answers he provided to questions 24 and 26 were incredible.
The judge found evidence of Erickson's "lengthy history of mental
health treatment" belied the proffered explanations, concluding
he falsified information on his application. Given our standard
of review, we see no reason to disturb those findings and
conclusion, proved by competent evidence and buttressing hearsay.
The same evidence supports the judge's conclusion that the
issuance of the FPIC and HPP would not be in the interest of the
public health, safety or welfare. The judge made no finding as
to the truth of the allegation that brought police to Erickson's
home just prior to his transport to BRMC. The judge stated only
that he was unsatisfied Dr. Chiorazzi's explanations allayed
concerns relating to the N.J.S.A. 2C:58-3(c)(5) disqualifier that
arose from the evidence regarding Erickson's long history of mental
8 A-4775-16T1 health afflictions. The judge, as fact-finder, was free to reject
or accept that expert testimony. Brown v. Brown, 348 N.J. Super.
466, 478 (App. Div. 2002) (citing Carey v. Lovett, 132 N.J. 44,
64 (1993)).
We are unpersuaded by Erickson's argument that the judge
misapprehended the law by expressing his concern about the prior
return of Erickson's firearms. The judge clearly applied the
correct statutes in making his final decision; he merely commented
that the return of the firearms, "simply based" on Dr. Chiorazzi's
letter, was disconcerting in light of the mental health evidence
presented.
We decline to consider Erickson's constitutional arguments,
not raised before the Law Division judge. State v. Robinson, 200
N.J. 1, 20 (2009). We also note our prior discussion in In re
Winston, 438 N.J. Super. 1, 10 (App. Div. 2014), renders the
argument meritless. See also In re Forfeiture of Pers. Weapons &
Firearms Identification Card belonging to F.M., 225 N.J. 487, 506-
08 (2016).
Affirmed.
9 A-4775-16T1