IN THE MATTER OF THE APPEAL OF THE DENIAL OF M.P., JR.'S HANDGUN PURCHASE PERMIT (GM-2018-50, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 16, 2020
• Docket: A-3216-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3216-18T4

IN THE MATTER OF THE APPEAL OF THE DENIAL OF M.P., JR.'S HANDGUN PURCHASE PERMIT. _______________________

Submitted April 20, 2020 – Decided June 16, 2020

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. GM-2018-50.

Zohn & Zohn, LLP, attorneys for appellant M.P., Jr. (Edward Jay Zohn, on the briefs).

Mark Musella, Bergen County Prosecutor, attorney for respondent State of New Jersey (Edward F. Ray, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM M.P., Jr. appeals from the trial court's order denying his application for

two handgun purchase permits. 1 M.P. had appealed the denial of those permits

by Captain Keith Sanzari, the officer-in-charge of the Oakland Police

Department (Department),2 who concluded "the details of [M.P.'s] arrest by the

Union City Police Department, serve[d] as a disqualifier under" N.J.S.A. 2C:58-

3(c)(5). The trial court heard testimony from M.P. and a Department lieutenant

who was appointed by the captain to conduct the background investigation of

M.P. The court, in an oral opinion, denied the application under N.J.S.A. 2C:58-

3(c)(5), which provides:

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. No handgun purchase permit . . . shall be issued: (5) To any person where the issuance would not be in the interest of the public health, safety or welfare.

1 Not knowing the disposition of some of the charges against M.P. considered by the trial court, we use his initials out of an abundance of caution. See R. 1:38-3(c)(7); R. 1:38-3(d)(5), (6), (7) and (8). 2 The Department did not have a chief. A-3216-18T4 2 On appeal, M.P. argues the State failed to show that M.P. was disqualified

by the statutory disability, and the court's decision was based solely on hearsay.

We disagree and affirm.

"We review a trial court's legal conclusions regarding firearms licenses de

novo." In re N.J. Firearms Purchaser Identification Card by Z.K., 440 N.J.

Super. 394, 397 (App. Div. 2015). Our review of a trial court's factual findings

on such matters, however, is "limited." In re Z.L., 440 N.J. Super. 351, 355

(App. Div. 2015). "Ordinarily, an appellate court should accept a trial court's

findings of fact that are supported by substantial credible evidence." In re

Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997). We also defer to the

trial court's credibility findings. State v. Kuropchak, 221 N.J. 368, 382 (2015)

(noting "[a]ppellate courts should defer to trial courts' credibility findings that

are often influenced by matters such as observations of the character and

demeanor of witnesses and common human experience that are not transmitted

by the record" (quoting State v. Locurto, 157 N.J. 463, 474 (1999))).

Our Supreme Court recognized that a Law Division de novo hearing for a

denied applicant "contemplates introduction 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

A-3216-18T4 3 deficiencies before the [police authority]." Weston v. State, 60 N.J. 36, 45-46

(1972). The trial court followed that guidance in finding four discrete incidents

involving M.P. justified denial of his application.

During the first incident in 2004, M.P., then fourteen years-old, was

charged with harassment and trespass at Indian Hills Trail Club where he told at

least one younger child to insert her thumb in her "butt" and that he had "a big

dick."3 Those charges were dismissed as part of a diversion through the Juvenile

Conference Committee.

Complaints alleging harassment were also signed against M.P. in 2009 by

the father of a girl M.P. dated and the father's female housemate. M.P. testified

he also filed a complaint against the father because "[h]e was . . . stalking [him

and because the father d]rove past [his] house [and] came banging on [his] door."

The trial court inferred from M.P.'s testimony that the complaint he filed "was a

tactic in order to defend himself against the harassment complaint against him,

but be that as it may, we now have an incident of alleged harassing behavior in

3 The trial court found M.P. was fourteen and made the remarks to an eight- year-old girl. M.P. testified he believed he was fourteen. In his merits brief, he claims he was fifteen. The same report lists the victims' ages as seven; another lists them as seven and eight. The discrepancies have no bearing on our review. A-3216-18T4 4 2009 for which there required police involvement at the time." The charges

against M.P. were dismissed.

The trial court also considered a 2010 incident. M.P. was accused of

harassment by his former girlfriend who, in an affidavit considered by the trial

court, averred M.P. and a girl—the daughter of the man involved in the 2009

cross-complaints—were

harassing [her] at home, public, and school. They [drove] past [her] home, yelling and giving [her] and [her] family inappropriate gestures. [M.P.] has made several comments and gestures with regards to [her] body in public. He [was] also threatening [her] and saying he [was] going to get even. [M.P. had] also been spreading inappropriate rumors such as [she had] STIs, [was a] prostitute, a deformed midget. When he [saw her] on the road driving . . . he [made] gestures, along with [the girl].

The affiant obtained a temporary restraining order against M.P. which was

subsequently dismissed.

The trial court recognized the affidavit was hearsay because the

complainant did not testify before it, but it did

have the testimony of . . . [M.P.] And one of the most troubling things about . . . [M.P.'s] testimony is the fact that he admits to the [c]ourt that he actually stated to [his ex-girlfriend] -- and this is -- why is this so concerning to me? First of all, this is less than [ten] years ago, okay? He's an adult. He's stating to [his ex- girlfriend], he says to this [c]ourt, that if he becomes a

A-3216-18T4 5 police officer, he's going to get even and give her a ticket.

The final incident involved M.P.'s 2016 arrest in Union City for the

disorderly persons offense of unlawful possession of oleoresin capsicum,

N.J.S.A. 2C:39-6(i); fourth-degree possession of a prohibited device, a stun gun,

N.J.S.A. 2C:39-3(h); and fourth-degree unlawful possession of a weapon—the

stun gun—under circumstances not manifestly appropriate for a lawful use,

N.J.S.A. 2C:39-5(d). Those charges were ultimately dismissed, but the trial

court focused on M.P.'s actions during the police investigation.

The State alleged by way of hearsay evidence—testimony from the

lieutenant and a police report—that police responded to a telephone call from

M.P.'s employer reporting he possessed a stun gun. Police took the device—

that also doubled as and appeared to be a flashlight—from M.P. M.P. denied

that the flashlight served any other purpose when asked by an officer. As a

police sergeant inspected it, he asked M.P. if the device was something that was

going to hurt him; M.P. insisted it was a flashlight. The sergeant inadvertently

activated the stun gun and was shocked by the device. The trial court was "hard-

pressed to find . . . [M.P.'s] testimony credible" that he told the sergeant not to

touch the buttons on the flashlight.

A-3216-18T4 6 The trial court recognized the hearsay nature of the evidence but found

"most importantly and chiefly, the testimony of . . . [M.P.] . . . corroborates that

this incident occurred." The trial court keenly focused not on the crimes

charged—which, in his merits brief, M.P. asserts were ultimately dismissed—

but on "[M.P.'s] own admission, [that] he did not disclose to the police [sergeant]

-- after he was asked, . . . that the flashlight was a stun gun." The trial court

found M.P. "failed to exercise sound judgment in the handling of that stun gun,

and it resulted in a police [sergeant] getting shocked[.]"

From these incidents, the trial court determined it was "not dealing with a

situation . . . where [there was] an unbroken period of many, many years in

which . . . [M.P.] . . . demonstrated some increased maturity, sound judgment[.]"

The trial court concluded "it would not be in the interest of the public health,

safety, and welfare" to approve the applications because M.P.'s "course of

conduct . . . spread out over a number of years" because he "demonstrated poor

judgment, demonstrate[d] a lack of candor before this [c]ourt, [and]

demonstrate[d] a lack of safe handling of a weapon in at least one of the

incidents."

As was the trial court's, our review is de novo. We concur with the trial

court's conclusion, reached on substantial, credible evidence in the record, and

A-3216-18T4 7 which entailed credibility findings based on the court's assessment of the

witnesses' testimony.

As noted by the trial court, although the charges against M.P. did not result

in any convictions, "[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[.]" See In re Osworth, 365 N.J. Super. 72, 78 (App. Div.

2003).

N.J.S.A. 2C:58-3(c)(5) is a provision "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." Burton v. Sills, 53 N.J. 86, 91

(1968), appeal dismissed, 394 U.S. 812 (1969). The four incidents found by the

trial court demonstrate that legislative disability. Indeed, M.P.'s cavalier

attitude in failing to warn the police sergeant of the potential harm the stun gun

posed and misleading the sergeant as to that danger, is, alone, a sufficient reason

to deny the application. See State v. Cunningham, 186 N.J. Super. 502, 507

(App. Div. 1982) (observing that intentional wrongdoing or negligence in the

handling of a weapon could support denial of a permit). The incidents were not

simply, as M.P. contends in his merits brief, "benign contact with the criminal

A-3216-18T4 8 justice system[.]" They reveal that M.P. is a person to whom the issuance of a

handgun purchase permit would not be in the "interest of the public health,

safety or welfare," N.J.S.A. 2C:58-3(c)(5), because of his continued poor

judgment in various personal interactions, expressed intention to improperly

exercise authority in retaliating against personal slights and, as stated, his

disregard for the dangers posed by and lack of respect for the power of weapons.

We agree with the trial court that M.P.'s immaturity and poor judgment

warranted denial of his applications.

We are also satisfied that the trial court's findings were not solely based

on hearsay evidence. The trial court may consider hearsay evidence, provided

its findings are not entirely based upon hearsay evidence. Weston, 60 N.J. at

51. Those findings must be supported by a residuum of legally competent

evidence. Ibid.; see also In re Toth, 175 N.J. Super. 254, 262 (App. Div. 1980).

M.P. admitted during his testimony the four police-involved incidents. He

admitted: he did not disclose to police that the flashlight was a stun gun;

threatening to issue a summons to an ex-girlfriend if he became a police officer;

and his involvement in the Indian Hills Trail Club incident. Although he did not

admit to all of the State's proofs, "[t]he residuum rule does not require that each

fact be based on a residuum of legally competent evidence but rather focuses on

A-3216-18T4 9 the ultimate finding or findings of material fact." Ruroede v. Borough of

Hasbrouck Heights, 214 N.J. 338, 359 (2013). The trial court found a residuum

of competent evidence, based primarily on M.P.'s testimony, to conclude that

the multiple incidents compelled the denial of the permit application on the basis

of public health, safety, or welfare, N.J.S.A. 2C:58-3(c)(5). We fully agree with

that assessment.

To the extent not addressed, we determine M.P.'s remaining arguments to

be without sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E).

Affirmed.

A-3216-18T4 10