IN THE MATTER OF THE APPLICATION OF THE STATE OF NEW JERSEY FOR DISPOSITION OF WEAPONS BELONGING TO D.S. (DVWP 16-31, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 11, 2019
• Docket: A-3426-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3426-16T4

IN THE MATTER OF THE APPLICATION OF THE STATE OF NEW JERSEY FOR DISPOSITION OF WEAPONS BELONGING TO D.S. _____________________________

Submitted January 29, 2019 – Decided February 11, 2019

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. DVWP 16-31.

Law Offices of Jef D. Henninger, attorneys for appellant D.S. (Brent DiMarco and Jef D. Henninger, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey (Ali Y. Ozbek, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Appellant D.S.1 appeals from a Family Part order forfeiting his handgun,

shotgun, ammunition, and firearms purchaser identification card (FPIC)

following domestic violence proceedings between appellant and his then-wife,

R.S., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.

2C:25-17 to -35.

Following the seizure of D.S.'s firearms, FPIC, and ammunition, the

Passaic County Prosecutor's Office moved for forfeiture pursuant to N.J.S.A.

2C:25-21(d)(3). The Family Part judge conducted a two-day hearing; only

appellant and North Haledon Police Chief Robert Bracco testified.

The testimony revealed a problematic marital relationship between D.S

and R.S., which included an escalating series of domestic violence incidents that

did not result in convictions. The incidents were described in five police reports

prepared by North Haledon police officers. At the request of the Passaic County

Prosecutor's Office, Chief Bracco investigated whether D.S. had any disabilities

under N.J.S.A. 2C:58-3(c). His investigation included searching the police

department's computer system for any reported incidents involving D.S. He also

checked the domestic violence registry for any current, prior, or dismissed

restraining orders involving D.S. Chief Bracco testified on the first day of the

1 We refer to appellant and his ex-wife by initials to protect their privacy. A-3426-16T4 2 hearing regarding the domestic violence incidents based on the contents of the

police reports he found during his investigation. We briefly summarize the

pertinent aspects of his testimony.

On February 21, 2014, Officer Michael Zimmer responded to the report

of an altercation between D.S. and R.S. in a car owned by D.S. Officer Zimmer

was unable to locate anyone involved. On December 23, 2014, Detective

Sergeant David Parenta responded to a call from R.S.'s employer that R.S. was

the victim of domestic violence. Upon arrival, R.S. stated she has intense

arguments with her husband and that she is afraid of living with him. On January

19, 2015, Officer Yusef Fattah came upon D.S. and R.S. having an argument

that initiated in their home, regarding R.S.'s consumption of alcohol. On

October 6, 2015, Detective Shawn Phillips responded to D.S. and R.S.'s

residence for a welfare check as a result of a call received from R.S.'s friend

who reported R.S. told her she was having a bad day and is being beaten by her

husband. R.S. told Detective Phillips "everything was fine." No arrests were

made as a result of any of these fours incidents.

Finally, on June 13, 2016, Officer Michael Cedar responded to a possible

domestic violence call at D.S. and R.S.'s residence. Officer Cedar observed

A-3426-16T4 3 "fresh marks" on R.S.'s face. She told Officer Cedar that D.S. had struck her

face after an argument. Officer Cedar arrested D.S.

Chief Bracco testified that after reviewing the police reports, he "didn't

think it would be wise to return the weapons to the house at this time" given "the

escalation of seriousness of the domestic violence incidents from verbal

arguments to now a physical assault, and also the fact that alcohol appears to be

an issue in this ongoing problem." Chief Bracco stated on cross-examination

that none of the police reports indicated D.S. was intoxicated. The Chief's main

concern was not so much who was intoxicated but rather, that alcohol-related

problems were causing domestic violence in the home. He also testified he

could change his mind if a final divorce decree was entered or there was a signed

separation agreement.

D.S. represented himself at the hearing. He subpoenaed two police

officers involved in drafting the proffered police reports. He also subpoenaed

his wife's daughter. None of the subpoenaed witnesses appeared for the second

day of the hearing. The court advised D.S. of his rights regarding the subpoenas

and his options. Defendant expressed understanding the court's explanation and

elected to proceed with the hearing anyway.

A-3426-16T4 4 D.S. provided his own version of the five incidents, attempting to show

he was not at fault on any of those occasions. He maintained his wife abuses

alcohol and initiates violence. He argued that during the February 21, 2014

incident, he was assaulted by his intoxicated wife, and a bystander called the

police. D.S. claimed police did not arrive while he was there and was unaware

a report was generated. Regarding the December 23, 2014 incident, D.S.

claimed his wife was intoxicated and her intoxicated co-workers misunderstood

his wife's statement about fighting with him at home, leading to the co-workers

calling the police. D.S. detailed another incident in which his wife was drunk

and assaulted him in a car. D.S. claimed the welfare check was a result of a

false tip from his wife's ex-boyfriend.

Regarding the June 13, 2016 incident, D.S. claimed his wife threw herself

on the back of his reclining chair, causing the chair to tip and make D.S. throw

his hands up, accidently striking his wife in the face. D.S. also claimed the

"fresh marks" Officer Cedar observed on R.S.'s face was actually a month-old

black eye R.S. gave herself after passing out drunk.

D.S. admitted on cross-examination he had previously been admitted into

the Pre-Trial Intervention (PTI) Program for possession of a sawed-off shotgun.

A-3426-16T4 5 D.S. testified that case began with a false allegation of a threat to his wife. He

testified his ex-wife admitted under oath she had lied about the allegation.

D.S. explained he and his wife are not residing together and he had filed

for divorce. A divorce decree had not been entered by the second hearing day.

D.S. insisted he did not pressure his wife to sign a consent to return weapons

form that was admitted into evidence.

The State moved to admit the five police reports into evidence. Initially,

D.S. objected, claiming the reports were not complete. He stated the reports

omitted information for reasons that made no sense to him. The judge took the

admission of the police reports under advisement.

Following the conclusion of the testimony, the judge revisited admission

of the reports. After the judge explained the ramifications of admitting the

reports into evidence, D.S. consented to putting the reports in evidence,

"because [he] explained them." As a result, the reports were admitted into

evidence.

Before issuing her ruling, the judge stated she "did not consider the police

reports despite the fact they were entered into evidence. This way my decision

will not be, in any way, based upon those police reports," because D.S. "doesn't

A-3426-16T4 6 wish for an adjournment so that the officers can be called." Instead, the judge

stated she would "rely solely on the testimony."

The judge heard Chief Bracco and D.S. testify, enabling her to assess their

demeanor, credibility, and other aspects of their testimony. The judge found

Chief Bracco extremely credible, finding him unbiased and his answers

reasonable.

In contrast, the judge found certain aspects of D.S.'s version of the

incidents did not make logical sense. She found some of his testimony was not

reasonable, inherently believable, or internally consistent. Thus, his testimony

was not, "in totality," credible. The judge further noted his "testimony, even if

believed, indicates he has a history of getting himself involved with women

where there is domestic violence. He readily admitted . . . his first wife indicated

that he tried to kill her and that is why he was charged with the sawed -off

shotgun . . . ." The judge further noted D.S. then became involved with a woman

who is a chronic alcoholic with "some history which causes him to constantly

get in trouble with her."

In her oral decision, the judge "weigh[ed] the potential of adding firearms

into an already volatile situation." She found there is "nothing to indicate that

these parties are not going to come into contact through divorce proceedings,

A-3426-16T4 7 which are heated, [or] through any sort of other circumstances where they may

become involved." The judge determined the State met its burden of proof,

concluding that "adding a weapon to this type of volatile situation is not in the

best interest of community safekeeping." The judge ordered the forfeiture of

defendant's firearms, FPIC, and ammunition. This appeal followed.

Appellant argues the trial court erred because: (1) the police reports

admitted into evidence were double hearsay, and therefore the state's case was

unable to support a finding of forfeiture; (2) he was not provided proper notice

or discovery in his case and was thereby denied a fair hearing; and (3) the State

failed to meet its burden of proof in demonstrating defendant is disqualified

from owning a firearm.

Appellate review of a forfeiture of firearms and FPIC in an action under

the PDVA is deferential. In re Forfeiture of Pers. Weapons and Firearms

Identification Card Belonging to F.M., 225 N.J. 487, 505-06 (2016). "[A]

judicial declaration that a defendant poses a threat to the public health, safety or

welfare involves, by necessity, a fact-sensitive analysis." Id. at 505 (quoting

State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004)). Therefore, "an

appellate court should accept a trial court's findings of fact that are supported by

A-3426-16T4 8 substantial credible evidence." Ibid. (quoting In re Return of Weapons to

J.W.D., 149 N.J. 108, 116-17 (1997)).

Family Part judges are vested with great discretion because they are

specially trained in family matters. Id. at 506. "Therefore, 'we do not disturb

the factual findings and legal conclusions of the trial judge unless we are

convinced that they are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend the interests

of justice.'" Ibid. (quoting Rova Farms Resort v. Inv'rs Ins. Co., 65 N.J. 474,

484 (1974)). However, legal determinations by the Family Part are not entitled

to any special deference and are reviewed de novo. Ibid. (citing Gere v. Louis,

209 N.J. 486, 499 (2012)).

Individuals seeking to purchase a firearm in New Jersey are required to

apply for a FPIC and permit. N.J.S.A. 2C:58-3(a) to (b); N.J.A.C. 13:54-2.2.

Under the statute, any "person of good character and good repute in the

community" may obtain a firearm, subject to the disabilities set forth in N.J.S.A.

2C:58-3(c). These disabilities include, in pertinent part, "any person where the

issuance would not be in the interest of the public health, safety or welfare," and

"any person whose firearm is seized pursuant to the [PDVA] . . . and whose

firearm has not been returned." N.J.S.A. 2C:58-3(c)(5) and (8). The statute is

A-3426-16T4 9 designed "to prevent firearms from coming into the hands of persons likely to

pose a danger to the public." F.M., 225 N.J. at 507 (quoting State v.

Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982)).

An FPIC may be revoked after notice and hearing "upon a finding that the

holder thereof no longer qualifies for the issuance of such permit." N.J.S.A.

2C:58-3(f). The proceedings are conducted in a summary fashion, with the

burden of proof "upon the State to show, by a preponderance of the evidence,

that forfeiture is legally warranted." Cordoma, 372 N.J. Super. at 533.

"Because the presence of weapons can heighten the risk of harm in an

incident of domestic violence, the [PDVA] contains detailed provisions with

respect to weapons." State v. Harris, 211 N.J. 566, 579 (2012). A police officer

is empowered to seize any weapon, FPIC, and gun permit on the premises when

probable cause exists to believe an act of domestic violence has been committed

and the officer "reasonably believes the weapon would expose the victim to a

risk of serious bodily harm." N.J.S.A. 2C:25-21(d)(1)(b). The seized weapons

are inventoried, turned over to the county prosecutor, and must be returned to

the owner, unless the prosecutor timely applies to the Family Part for forfeiture.

N.J.S.A. 2C:25-21(d)(2) to (3); F.M., 225 N.J. at 510. Following a summary

hearing on notice to the owner, the Family Part:

A-3426-16T4 10 shall order the return of the firearms, weapons and any authorization papers . . . if the court determines the owner is not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3(c) and finds that the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; . . . or if the court determines that the domestic violence situation no longer exists.

[N.J.S.A. 2C:25-21(d)(3).]

"Therefore, even if a domestic violence complaint is dismissed and the

conditions abate, forfeiture may be ordered if . . . the defendant's possession of

weapons 'would not be in the interests of the public health safety or welfare.'"

F.M., 225 N.J. at 510-11 (quoting N.J.S.A. 2C:58-3(c)(5)); see In re Z.L., 440

N.J. Super. 351, 358-59 (App. Div. 2015) (holding forfeiture proper where

police officers responded to five separate complaints of domestic violence

between defendant and wife, even though no temporary or final restraining order

was ever issued).

Although hearsay is generally not admissible evidence, the summary

nature of the proceeding allows for slightly relaxed rules of evidence, much like

the "common practice for administrative agencies to receive hearsay evidence

at their hearings." Weston v. State, 60 N.J. 36, 50-51 (1972). However, factual

findings and legal conclusions "cannot be based upon hearsay alone." Id. at 51.

A-3426-16T4 11 Although the police reports constitute hearsay and were presented by a

person other than their author, the contents were not offered for the truth of the

matter asserted, nor were the contents relied upon by the court. Rather, Chief

Bracco testified he relied on the existence of the reports to deny the return of

defendant's weapons and permit. Chief Bracco personally searched department

records and discovered the police reports. He was permitted to testify regarding

the results of that inquiry.

Even if the reports were offered for the truth of the matter asserted in

contravention of the prohibition on hearsay, hearsay is admissible in these

proceedings so long as there is "sufficient legally competent evidence to support

the court's findings." Z.L., 440 N.J. Super. at 358 (citing Weston, 60 N.J. at 50-

51). Moreover, the contents of the police reports were largely corroborated by

D.S.'s testimony. See ibid. (stating "any 'hearsay' in the police reports was

essentially corroborated by appellant's testimony in court"). We thus find no

error in the trial judge's reliance upon Chief Bracco's testimony.

We further note that defendant withdrew his objection and consented to

the admission of the police reports. He did not object to Chief Bracco's

testimony. Therefore, we review the admission of the police report and related

testimony for plain error. R. 2:10-2. "Under that standard '[a]ny error or

A-3426-16T4 12 omission shall be disregarded by the appellate court unless it is of such a nature

as to have been clearly capable of producing an unjust result.'" Willner v.

Vertical Reality, Inc., 235 N.J. 65, 79 (2018) (alteration in original) (quoting R.

2:10-2). Applying that standard, we find no plain error.

D.S. complains he was denied due process by not receiving notice of the

hearing or discovery relevant to the case. We are unpersuaded by this argument.

D.S. received the State's forfeiture motion as evidenced by his attendance at the

hearing. He was able to review the police reports before the hearing began. He

was personally familiar with each of the incidents which led to the reports. D.S.

concedes there is no statutory right to discovery in this summary proceeding.

When D.S. alerted the trial court he felt surprised by the proceedings, the

judge ordered a second hearing day with the first day limited to the State putting

its case on the record. D.S. thus had sufficient time to subpoena witnesses for

the second hearing date, which was almost three months later. When the

subpoenaed witnesses did not appear to testify, the trial court did not proceed

with the hearing until it was satisfied defendant wished to proceed that day rather

than adjourning the hearing to enforce the subpoenas against the nonresponsive

witnesses. D.S. has not shown any surprise or unfair prejudice.

A-3426-16T4 13 D.S. also claims the State did not meet its burden of proof. We disagree.

The absence of lasting charges or final restraining orders is not dispositive. In

Z.L., a case with very similar facts, a series of domestic violence incidents did

not lead to lasting charges or restraining orders. 440 N.J. Super. at 353. The

defendant in Z.L., like the defendant in this case, claimed to have accidentally

struck the victim. Id. at 354. We noted the pattern of incidents and found the

cumulative impact of them controlling. We agreed that a firearm did not belong

in an environment of escalating incidents. Id. at 358-59.

The facts in this matter compel the conclusion that the forfeiture order was

proper. The incidents were not isolated or aberrational. In the course of two

years, police responded to five complaints of domestic disputes. As we

explained in Z.L., "[e]ach 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." Ibid.

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

of the hearing, denying the State's application would not be in the interest of

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

Affirmed.

A-3426-16T4 14