IN THE MATTER OF WEAPONS SEIZED PURSUANT TO THE PREVENTION OF DOMESTIC VIOLENCE ACT FROM J.C.H. (FO-21-0180-17, WARREN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 13, 2019
• Docket: A-3180-17T4
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3180-17T4

IN THE MATTER OF WEAPONS SEIZED PURSUANT TO THE PREVENTION OF DOMESTIC VIOLENCE ACT FROM J.C.H.

Submitted April 3, 2019 – Decided May 13, 2019

Before Judges Koblitz and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FO-21-0180-17.

Richard T. Burke, Warren County Prosecutor, attorney for appellant State of New Jersey (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the briefs; Carolynn C. O'Dell, Assistant Prosecutor, on the briefs).

Benner, Trovato & Bender, attorneys for respondent J.C.H. (Paul J. Bender, on the brief).

PER CURIAM In this matter, we consider the State's appeal from the March 13, 2018

order denying its motion for forfeiture of J.C.H.'s (Josh) 1 firearms and Firearms

Purchaser Identification card (FPIC) seized from his home following the grant

of a temporary restraining order (TRO) against him. Because we conclude the

State satisfied its burden under N.J.S.A. 2C:58–3(c) in demonstrating Josh is a

habitual drunkard and unfit to possess weapons, we reverse.

In May 2017, Josh's wife, Grace, was granted a TRO against Josh in which

she alleged assault as the predicate act of domestic violence. In the TRO, Grace

described nine prior incidents of domestic violence, including threats to kill her

and physical violence. As required by the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25–17 to –35, the police seized thirty-four firearms from

Josh's residence and his FPIC, and transferred them to the Warren County

Prosecutor's Office. Grace later dismissed the TRO. 2

As a result of the TRO, Josh, a police officer, was placed on administrative

leave by his employer. Before Josh could be cleared to return to work, he was

1 We use initials and pseudonyms to protect the identity of the parties. R. 1:38-3(c)(12). 2 Josh filed a cross-complaint against Grace alleging harassment. He also dismissed that TRO.

A-3180-17T4 2 required to undergo a Fitness for Duty (FFD) 3 examination. Josh was previously

subjected to an FFD in 2013, following Grace's social media posting that he had

"issues with control, anger, alcohol, and suicidal ideation." Although the

examiner found Josh was fit for duty at that time, Josh was encouraged to seek

marital counseling. The report stated further, "any future police response with

respect to [Josh's] marital relationship should be taken seriously and his fitness

status at that point should be reconsidered." Therefore, this marital incident

triggered another FFD.

Without waiting for the results of the FFD examination, the Police Chief

permitted Josh to return to full duty in late May. Both examining doctors

testified at the forfeiture hearing that Josh had not been cleared for full duty and

their report on his fitness for duty had not yet been completed when the Chief

reinstated him.

On June 5, 2017, police officers responded to a 911 call at Josh and

Grace's home. A "visibly upset" Grace answered the door with an icepack on

her head, and told the officers she had an "altercation" with Josh. She stated

that Josh, after taking prescription medication and consuming a bottle of liquor,

3 An FFD is conducted to determine whether a police officer is psychologically or physically able to carry out his or her duties. A-3180-17T4 3 put a firearm to his head and threatened to take his own life. Grace's struggle

with Josh for the firearm had left bruising on her arm. When Josh tried to leave

the house in his car, Grace attempted to stop him by holding onto the car but she

was thrown off the vehicle and fell onto the pavement, bumping her head and

scraping her knee. Grace did not request a TRO.

Because Grace was concerned Josh might be suicidal, area law

enforcement officials were instructed to keep a "lookout" for him. Josh was

eventually located in upstate New York, where he was taken to a hospital for

evaluation and later released.

Josh was subsequently charged with assault by auto, N.J.S.A. 2C:12–

1(c)(1), and simple assault, N.J.S.A. 2C:12–1(a)(1). After Grace refused to

testify, the charges were dismissed.

Following the June events, Josh was placed on administrative leave. The

details regarding the incident were provided to the FFD examiners for

consideration in their report. On August 25, 2017, the examining doctors

released their report, concluding Josh was not fit for duty because he

"evidence[d] a psychological condition or impairment that would likely interfere

with his ability to effectively function as a [p]olice [o]fficer." The examining

A-3180-17T4 4 psychologist testified at the forfeiture hearing that "the finding of unfit for duty

implies that . . . there should not be [access to] guns."

In support of their conclusion, the doctors described Josh's marital

problems, his symptoms of depression and anxiety, his proneness to anger, "[his]

prescribed mood stabilizing psychotropic medication," and his alcohol

consumption, which occurred "two to three times per week [with] usually three

to [ten] drinks per occasion." The doctors had spoken with Josh's treating

psychiatrist regarding his treatment and medication. 4 They had also interviewed

Grace, who stated she "[did] not have any reservations about [Josh] carrying a

weapon."

The State filed a petition for the forfeiture of the seized weapons pursuant

to N.J.S.A. 2C:25–21(d)(3), alleging Josh was unfit and posed a threat to the

public, and it was "not in the interest of the public health, safety or welfare for

[him] . . . to possess weapons." During the subsequent hearings, the State

presented the Chief of Police, several officers, the FFD psychologists, Grace,

and several other witnesses. Josh presented a psychologist as his expert witness.

4 To manage Josh's "anger issues," the psychiatrist had prescribed a medication used to treat bipolar disorder and schizophrenia, and a mood stabilizer. A-3180-17T4 5 Josh's expert testified as to the psychological examinations he conducted

in January 2018. He found Josh had "a long history of alcohol abuse"; he was

"alcohol dependent"; Josh met the "diagnostic criteria for Generalized Anxiety

Disorder"; and he was "still at risk for difficulties with alcohol if he [chose] to

use it [at] any level." The doctor noted there were indications that Josh

"experiences some struggle with anger issues which [are] greatly exacerbated"

when he drinks alcohol. The expert also advised Josh had maintained his

sobriety since June 2017, and "continued to participate in both individual and

marital counseling with [his psychiatrist]." He concluded that Josh was "at a

low risk for future violence and acting out behavior, provided he maintain [ed]

his sobriety" and counseling.

In his February 18, 2018 oral decision, the trial judge determined Josh was

not "presently a[] habitual drunkard" as required under N.J.S.A. 2C:58–3(c) for

a declaration of unfitness. Although he noted the evidence demonstrated Josh

had a history of excessive drinking, he stated Josh did not drink on the job, he

had maintained his sobriety since June 2017, and he was receiving psychiatric

counseling. Therefore, the judge stated, "[Josh's] behavior for the last nine

A-3180-17T4 6 months is indicative of someone who is not a habitual drunkard." 5 The judge

concluded that the "State[] failed to prove that returning [Josh's] weapons and

[FPIC] would not be in the interest of the public health, safety, or welfare."

Following the denial of the State's petition for forfeiture, the State was ordered

to return the firearms and FPIC. 6

On appeal, the State contends the trial judge erred in its finding that Josh

was not a habitual drunkard and in the subsequent denial of its forfeiture

petition.

In reviewing a trial court's decision on firearm forfeiture, we owe no

deference to the trial court's legal conclusions, but must uphold factual findings

supported by substantial credible evidence. In re J.W.D., 149 N.J. 108, 116-17

(1997). "Deference to a trial court's fact-findings is especially appropriate when

the evidence is largely testimonial and involves questions of credibility." Id. at

117 (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). However,

"[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation

5 Josh's expert testified in January 2018 that he had examined Josh earlier that month. During that examination, Josh informed the expert he was working with an alcohol counsellor and he had been sober since the June incident. He, therefore, had been sober for seven months. 6 That order was entered March 13, 2018. The trial judge stayed the order pending appeal. A-3180-17T4 7 of the underlying facts and the implications to be drawn therefrom,' we expand

the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.

596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-

89 (App. Div. 1993)). A trial court's determination is subject to greater scrutiny

when it fails to assess witnesses' credibility. See In re Forfeiture of Pers.

Weapons & Firearms Identification Card belonging to F.M., 225 N.J. 487, 515

(2016) (reversing Family Part's order returning seized weapons where court

failed to assess expert witnesses' credibility).

The seizure of weapons and firearm permits, authorized by N.J.S.A.

2C:25–21(d), supports the PDVA's policy to protect domestic abuse victims.

See State v. Cassidy, 179 N.J. 150, 163–64 (2004); State v. Volpini, 291 N.J.

Super. 401, 408–09 (App. Div. 1996). After the taking, the State may petition

the Family Part for a hearing to obtain title to the weapons and revoke the

permits, or object to the return of the weapons, "on the grounds that the owner

is unfit or that the owner poses a threat to the public in general or a person or

persons in particular." N.J.S.A. 2C:25–21(d)(3). The State carries the burden

of proof to show "by a preponderance of the evidence, that forfeiture is legally

warranted." State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004);

N.J.S.A. 2C:25–21(d)(3).

A-3180-17T4 8 The trial court must order the return of the seized weapons and firearm

permits if it

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 request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is found not guilty of the charges; 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 the TRO has been dismissed, weapons and firearm permits

can still be forfeited if the court determines the owner is unfit under N.J.S.A.

2C:58–3(c).

We turn, then, to N.J.S.A. 2C:58–3(c) to begin our analysis. The statute

provides that an owner of seized weapons is deemed unfit if he or she is subject

to any one of nine listed disabilities. The State contends Josh was prevented

from possessing firearms under the following portions of the statute:

(2) . . . [A]ny person who is presently an habitual drunkard;

(3) . . . [A]ny person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, . . . any person who has ever been confined for a mental disorder, or . . . any alcoholic. . .

....

A-3180-17T4 9 (5) . . . [A]ny person where the issuance would not be in the interest of the public health, safety or welfare.

[N.J.S.A. 2C:58–3(c).]

In light of the uncontroverted evidence regarding Josh's long history of

excessive drinking presented by both the State's witnesses and Josh's own expert

psychologist, we are compelled to conclude the trial judge erred in his finding

that Josh's declaration of sobriety during the seven-month span of the forfeiture

proceedings negated a finding of "habitual drunkard" under N.J.S.A. 2C:58–

3(c).

Josh has a long history with alcohol. His expert testified that Josh began

drinking in high school. He stated that Josh was consuming excessive amounts

of alcohol on a regular basis for many years, resulting in his classification as

alcohol dependent. During the 2017 FFD examination, Josh divulged he

consumed three to ten alcoholic drinks a day three times a week, and even

admitted to consuming eighteen drinks in a single day. The expert further

reported that Josh said he had consumed a "bottle of prescription medication

along with . . . alcohol" the day of the June incident. Grace also stated many of

the domestic violence incidents occurred while Josh was under the influence of

alcohol.

A-3180-17T4 10 In reaching his conclusion that Josh was not a habitual drunkard, the trial

judge disregarded the prior allegations of domestic violence and the undisputed

expert evidence that Josh was alcohol dependent. Instead, he determined that

Josh's sobriety of several months "is indicative of someone who is not a habitual

drunkard."

Our Supreme Court has held that "[w]hen a forfeiture action is brought

because of domestic violence, that assessment necessarily involves an

evaluation by the Family Part judge of the parties' relationship and their history

of domestic violence." In re F.M., 225 N.J. at 512. Criminal charges, even if

dismissed, should also be considered. In re Z.L., 440 N.J. Super. 351, 356 (App.

Div. 2015) (finding dismissed criminal charges could support a finding that a

defendant was unfit). The trial court also disregarded the August 2017 FFD

report that found Josh unfit for duty.

In State v. Freysinger, 311 N.J. Super. 509, 516 (App. Div. 1998), we

considered the meaning of "presently an habitual drunkard" as contained in

N.J.S.A. 2C:58–3(c)(2). We noted "habitual drunkenness" had been described

in matrimonial cases as

"a fixed, frequent, irresistible or regular habit of drinking alcoholic beverages in such excessive quantities as to produce drunkenness." McVey v. McVey, 119 N.J. Super. 4, 6 (Ch. Div. 1972); see also

A-3180-17T4 11 Scully v. Scully, 122 N.J. Super. 94, 96 (Ch. Div. 1972). In McVey, the defendant was declared an habitual drunkard based on corroborated evidence demonstrating that he was drunk four or five times a week. . . . In Scully, we emphasized that the entire conduct over the qualifying period had to be examined and a period of abstention did not negate a finding of habitual drunkenness. 122 N.J. Super. at 97.

[Ibid.]

Here, there is evidence Josh had "a fixed, frequent, irresistible or regular

habit of drinking alcoholic beverages in such excessive quantities as to produce

drunkenness." McVey, 119 N.J. Super. at 6. He admitted during his FFD

interview that he consumed excessive quantities of alcohol two to three times a

week. On the day of the June 2017 incident, Josh had taken a bottle of

prescription medication and consumed liquor before putting a gun to his head

and threatening to take his own life. All of the experts, including Josh's, testified

that Josh was dependent on alcohol.

We cannot agree that a seven-month period of sobriety incident to a

forfeiture litigation can negate a twenty-nine-year history of constant and

excessive alcohol abuse associated with incidents of physical abuse and

domestic violence allegations. The credible evidence in the record compels a

A-3180-17T4 12 finding that Josh was presently a habitual drunkard, and therefore, unfit to

possess firearms and a FPIC. 7

Reversed.8

7 We are also satisfied the State met its burden as to subsection five of the statute, that Josh is unfit to possess a firearm as a "person where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58–3(c)(5). 8 In an October 30, 2018 order, we deferred consideration to the merits panel of the State's motion to strike certain portions of Josh's brief. We now grant the motion. A-3180-17T4 13