IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO W.W. (FO-02-0234-20, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 6, 2021
• Docket: A-0634-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0634-20

IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO W.W.1 _________________________

Submitted September 20, 2021 – Decided October 6, 2021

Before Judges Mayer and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-0234-20.

The Tormey Law Firm, attorneys for appellant (Brent DiMarco, on the brief).

Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel; Catherine A. Foddai, Legal Assistant, on the brief).

PER CURIAM

Defendant W.W. appeals from an October 19, 2020 order granting the

State's application for forfeiture of his firearms and Firearms Purchaser

1 We refer to the parties by initials to protect their privacy. R. 1:38-3(c)(7). Identification Card (FPIC) based on the judge's finding he posed a threat to

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

The judge conducted a testimonial hearing over the course of three non-

consecutive days in August, September, and October 2020. The following

witnesses testified on behalf of the State: W.W.'s ex-wife, K.W.; Ryan Sokerka,

a detective sergeant with the Emerson Police Department; and detective Randy

Velez, also with the Emerson Police Department. In addition to his own

testimony, W.W. presented the testimony of Robert Hoffman and Fred Maltzam.

The following facts are derived from the testimony and documentary

evidence presented to the judge.

On October 18, 2018, W.W. was arrested for harassment and cyber-

harassment of K.W. As a result of his arrest, the Emerson Police Department

seized W.W.'s firearms and FPIC. Although these charges were eventually

dismissed on December 18, 2018, the State petitioned for forfeiture of W.W.'s

firearms and revocation of his FPIC.

By way of background, W.W. and K.W. were married from 1992 to 2018.

On September 18, 2018, K.W. contacted the police because she saw flyers

"posted all over town that were disparaging to [K.W.], trying to embarrass [her]

and [her] family." The flyers accused K.W. of infidelity and showed a picture

A-0634-20 2 of K.W.'s uncut and untidy lawn. K.W. was running for re-election to a position

on the township council when the flyers appeared. She suspected W.W. posted

the documents in retribution for her seeking a divorce.

Additional flyers disparaging K.W. appeared throughout the township

around October 19, 2018. K.W. again contacted the police, decided to press

charges, and W.W. was arrested. A final judgment of divorce was issued about

two weeks after W.W.'s arrest. Ultimately, K.W. elected not to pursue the

harassment and cyber-harassment charges and signed a consent order for civil

restraints as part of the final judgment of divorce.

Regarding W.W.'s fitness to possess weapons, K.W. testified, "guns are

[W.W.'s] favorite thing in life. I know that he collected them for hunting and

for whatever other purpose . . . . [H]e never used a gun on anyone . . . , myself

or my children, never threatened me with one. However, they were present in

the house, they were locked." K.W. testified regarding prior incidents of

domestic violence that included the destruction of property. During one

incident, K.W. explained W.W. threw an iPad at her and injured her nose. K.W.

described W.W. as "verbally and emotionally abusive" and stated she "walk[ed]

around on tip toes . . . because you never knew how he would react if he was in

A-0634-20 3 a bad mood." None of the incidents identified by K.W. were reported to the

police.

Detective Sergeant Sokerka, responsible for background investigations

and management of applications for firearms permits, also testified. According

to Sokerka, his department reviewed several incidents involving W.W.

In April 2018, Sokerka received a phone call from the department's retired

police chief,2 expressing concern regarding W.W.'s mental health and well-

being. The retired police chief explained W.W. had a large collection of

firearms and ammunition and was acting strangely toward his family members.

In August 2018, Velez 3 responded to shouting from outside the family

home. On that date, W.W. was yelling at his son for removing political lawn

signs so the son could mow the grass at the family home. Velez described

W.W.'s reaction as inappropriate for the situation.

Sokerka also testified regarding the flyer incident in September 2018.

According to Sokerka, "[t]here were signs that were hung up on all the telephone

poles, all over vehicles, all around the schools, it was all defamatory in nature

2 The retired police chief is W.W.'s cousin. 3 Velez's testimony was consistent with the testimony offered by Sokerka. A-0634-20 4 towards [W.W.]'s ex-wife. It was almost like an anti-political flyer that was

hung all around town."

Sokerka further testified about derogatory letters mailed to various people

in the township. The letters accused K.W. of having an affair and claimed she

was a poor candidate for reelection to the township council. The letters and

flyers caused K.W. distress. After collecting the letters, Sokerka launched an

investigation, and compared the handwriting on envelopes with the handwriting

on W.W.'s firearms application. According to Sokerka, the handwriting was

consistent, with "a couple of characters that were almost identical."

The police investigation then paused until October 2018 when the

harassment against K.W. turned to online postings. W.W. posted disparaging

messages about K.W. on the township's Facebook page. Soon after these

postings, flyers reappeared around town. On October 19, 2018, the police

charged W.W. with harassment and cyber-harassment "based on the totality of

the circumstances and the online harassment in conjunction with continued

ongoing harassment with the flyers."

During the investigation, the police received a handwritten note from a

friend of W.W. and K.W. The friend provided "pretty good detail about

[W.W.]'s mental well-being and how [the author] was worried for [K.W.]."

A-0634-20 5 W.W. was arrested on October 20, 2018, held over the weekend, and

released from jail on October 22, 2018. Upon his release, W.W. was not allowed

to possess any firearms. The police seized W.W.'s weapons4 and FPIC. Most

of the guns were seized from the residence of W.W.'s friend in Emerson. One

gun was seized in Staten Island.

Sokerka told the judge W.W. should not have weapons because "during

the totality of this investigation, and multiple cases that were involved it was

determined that [W.W.] was unstable from family members, close family

members that were worried for his well-being, and the well-being of his children

and also ex-wife."

Robert Hoffman, the township's administrator, testified on behalf of W.W.

According to Hoffman, on September 19, 2018, he noticed a flyer near the

municipal building. Hoffman took down the flyer because it related to a political

campaign and he felt it was appropriate to remove the document. He testified

the flyer "was out of the ordinary for any election[] at the municipal level ."

4 At total of fifteen weapons were confiscated, including handguns and long guns. A-0634-20 6 W.W. then testified on his own behalf. Prior to college, W.W. enlisted in

the military and then joined the National Guard. W.W. received weapons

training during his time in the military.

In 2008, W.W. believed K.W. was having an affair and asked for police

assistance in removing K.W. from the home. He subsequently reconciled with

K.W., and the two lived together until K.W. filed for divorce in March 2018.

According to W.W., upon receiving the divorce complaint, the "the first

thing [he] did was . . . remove the weapons from the house as a safety

precaution," giving most of his guns to a close friend in Emerson. After his

arrest, W.W. declined to provide the location of his weapons. After the police

advised him of the requirement to forfeit his guns, W.W. provided the address

where his guns were stored. The charges against W.W. were subsequently

dismissed, and W.W.'s arrest record was expunged in December 2019.

During his testimony, W.W. provided a different version of the events.

W.W. explained he was campaigning for political office and placed a campaign

sign in support of his candidacy on the lawn in front of his house. According to

W.W., his son removed the campaign sign from the lawn and the two argued.

The son eventually called the police who spoke to W.W. and his son regarding

their argument.

A-0634-20 7 W.W. also disputed K.W.'s testimony regarding his destruction of

property, including an iPad. W.W. admitted he threw the iPad, but explained

there was no intent to hit K.W. with the computer.

W.W.'s friend for twenty years, Fred Maltzman, testified on W.W.'s

behalf. Maltzman told the judge he and W.W. spend a lot of time together. He

described W.W. as honest, helpful, and charitable. Maltzman never witnessed

W.W. exhibit anger problems and did not consider W.W. to be a violent person.

After hearing the testimony and reviewing the documentary evidence, the

judge granted the State's motion to compel the forfeiture of W.W.'s weapons.

The judge found the State met its burden under N.J.S.A. 2C:58-3(c)(5) by a

preponderance of the evidence, finding "no handgun purchase, permit, or

firearms purchaser identification number may be issued to any person where the

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

The judge made his determination after "careful consideration of both the

individual history of [W.W.'s] interaction with [K.W.], as well as an assessment

of the threat that [W.W.] may pose to the general public."

In determining the credibility of the testifying witnesses, the judge applied

the factors enumerated in the credibility section of the Model Jury charge. The

judge noted W.W.'s response upon learning K.W. wanted a divorce was to

A-0634-20 8 "take[] the weapons and . . . give[] them to a third party." The judge found

W.W.'s reaction "to be out of the ordinary." The judge did not accord much

weight to the retired police chief's opinion about W.W. possessing weapons

"because the [c]ourt doesn't know the family dynamics between . . . former chief

. . . and [W.W.]." Overall, the judge "found the testimony of the police officers

and [K.W.] to be credible" and "the testimony of [W.W.] not to be credible"

because W.W. "had a certain revisionist version of history."

The judge concluded W.W. lacked sound judgment based on following

findings: (1) the posting of disparaging flyers throughout the municipality on

two separate dates; (2) sending letters accusing K.W. of infidelity just before

her re-election effort; (3) arguing with his son on the front lawn of the home,

causing a patrolling police officer to investigate; (4) ripping a bathroom door

off the hinges; (5) tossing an iPad over his shoulder and striking K.W. on the

nose; and (6) self-reporting an incident of driving while intoxicated. Based on

these events, the judge found "there was a general lack of stability in the

judgment of [W.W.]." The judge expressed concern that W.W. "didn't trust

himself enough to have guns in the house, that he had to give those guns to a

third party." The Emerson Police Department also recommended against

returning W.W.'s firearms. The judge stated, "these issues indicate to this

A-0634-20 9 [c]ourt that this individual should not in fact have the return of his FPIC and his

weapons" and "the activities described and testified to depict [W.W.] as

someone who poses a danger to the general public." He concluded, "giving

weapons back to [W.W.] would in fact be an invitation to tragedy."

On appeal, W.W. argues the following point:

POINT I

THE STATE FAILED TO ESTABLISH THAT [W.W.] POSED A DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE.

Our review of a forfeiture of firearms and FPIC is deferential. In re

Forfeiture of Pers. Weapons & 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)). We "should accept a trial [judge's] findings of fact that

are supported by substantial credible evidence." Ibid. (quoting In re Return of

Weapons to J.W.D., 149 N.J. 108, 116-17 (1997)). "The State retains the

statutory right to seek the forfeiture of any seized firearms provided it can show

that defendant is afflicted with one of the legal 'disabilities' enumerated in

N.J.S.A. 2C:58-3(c)." Cordoma, 372 N.J. Super. at 533.

A-0634-20 10 The Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21, provides

"a law enforcement officer may arrest a person . . . where there is probable cause

to believe that an act of domestic violence has been committed." N.J.S.A.

2C:25-21(b). A law enforcement officer who has probable cause to believe an

act of domestic violence has been committed, shall determine whether there are

any weapons, N.J.S.A. 2C:25-21(d)(1)(a), and may "seize any weapon that the

officer reasonably believes would expose the victim to a risk of serious bodily

injury." N.J.S.A. 2C:25-21(d)(1)(b). "[T]he Domestic Violence Forfeiture

Statute applies to defendants against whom no domestic violence was ever

proved[.]" State in the Int. of C.L.H.'s Weapons, 443 N.J. Super. 48, 58 (App.

Div. 2015).

Under N.J.S.A. 2C:58-3(c)(5), firearms or FPIC shall not be issued "[t]o

any person where the issuance would not be in the interest of the public health,

safety or welfare." The statute was "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." In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003)

(quoting Burton v. Sills, 53 N.J. 86, 91 (1968)).

A-0634-20 11 W.W. asserts the State did not meet its burden of establishing he was a

danger to the public health, safety, or welfare, arguing the lack of a criminal

record and the absence of any filed domestic violence complaint. 5 Here, the

police had probable cause to arrest defendant based on his harassment of K.W.

even though she did not seek a temporary restraining order. The police

investigated the flyer incidents and the letters sent to K.W.'s family and friends

and concluded W.W. was the source of the harassing conduct. The absence of

a filed domestic violence complaint does not require the automatic return of

firearms seized by law enforcement officers. N.J.S.A. 2C:25-21. In this case,

the judge reviewed the evidence and concluded the return of the weapons to

W.W. was not "in the interest of public health, safety, or welfare." N.J.S.A.

2C:58-3(c)(5).

We are satisfied the State met its burden of proving by a preponderance

of the evidence that forfeiture of W.W.'s firearms and FPIC was warranted. The

judge conducted the required fact-sensitive analysis, weighed the credibility of

the witnesses, and considered the totality of the evidence in concluding W.W.'s

5 Harassment, if proven, would have supported the issuance of a temporary or final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The fact that K.W. elected not to seek a restraining order under the PDVA does not alter the State's right to seek forfeiture of W.W.'s weapons and FPIC under N.J.S.A. 2C:58-3. A-0634-20 12 firearms and FPIC must be forfeited. Based on the evidence, the judge held

W.W. failed to exhibit proper restraint and judgment and his decision is

supported by sufficient credible evidence in the record.

Affirmed.

A-0634-20 13