On appeal from Superior Court, Law Division, Bergen County.
Botter, Antell and Furman. The opinion of the court was delivered by Botter, P.J.A.D. Antell, J.A.D. (dissenting).
The State appeals from an order requiring the Bergen County Prosecutor to return to defendant a .38-caliber handgun and a Winchester rifle which were seized by the police following a shooting for which defendant was arrested. On December 23, 1978 defendant shot his wife with the handgun in their home. Defendant was arrested and charged in a complaint with assault with an offensive weapon in violation of N.J.S.A. 2A:90-3. The charge was no-billed by the grand jury (we are told that defendant's wife would not testify), and the arrest records and related documents were thereafter ordered expunged on defendant's application pursuant to N.J.S.A. 2C:52-1 et seq. Thereafter defendant moved for the return of the handgun and rifle, and the prosecutor opposed the motion.*fn1 The principal issue in the case is whether returning the guns to defendant would violate the statutory provisions concerning the acquisition and transfer of firearms now contained in N.J.S.A. 2C:58-1 et seq.
Defendant's motion was first heard by the trial judge on January 16, 1981. At that time defendant produced a purchaser identification card issued on November 28, 1973 by the State of New Jersey and a permit to purchase a pistol issued by the State
on May 21, 1976. He also produced a receipt for the purchase of a .38-caliber handgun dated August 14, 1976. The State took the position that defendant's conduct demonstrated that he was disqualified under N.J.S.A. 2C:58-3(c)(5) from obtaining a permit for the acquisition of a firearm because "the issuance [of the permit] would not be in the interest of the public health, safety or welfare." The State contended that defendant was therefore disqualified from receiving back the handgun and rifle.
The trial judge adjourned the motion to give the State the opportunity to make a showing by affidavit setting forth "allegations as contained in that affidavit [that] appear on the surface to be sufficient to warrant the exercise of judgment to negate the permit." The trial judge said that if such a showing were made, "then we will have a hearing and the defendant will have an opportunity to cross-examine whatever witnesses the State may have." The judge added that if, "on the face of it," the affidavits do not demonstrate facts that justify negating the permit, defendant's motion would be granted.
The motion was considered again on March 13, 1981. Affidavits submitted by the State showed that two police officers went to defendant's home in Englewood in response to a report of a shooting. They observed defendant's wife lying unconscious on the kitchen floor, bleeding from the right shoulder from an apparent gunshot wound. Defendant was also in the kitchen. The affidavit of Officer Alston recited that defendant said he accidentally shot his wife. The affidavit of Sergeant Gaglione recited that defendant "appeared to be shaken and was speaking at a rapid pace," that defendant said "he did not mean to shoot his wife and that he did not understand how it had happened," and that defendant said, "Mrs. Cunningham had come at him and then the gun just went off." The gun used in the shooting was the .38-caliber revolver.
An affidavit of an assistant prosecutor was also produced. This recited that the following statements were contained in the State's file:
a) One statement made by Ernest Graham, Jr., who is the brother of the victim in this matter. Mr. Graham states that he was a witness to the shooting in question and that he observed defendant state, 'No woman puts me in the hospital.' He then observed defendant put his right hand in his coat pocket, pull out a gun, and shoot the victim.
b) One statement made by Patrolman Guitian who asserted that he helped transport the victim to the Englewood Hospital Emergency Room. He was advised that the bullet shot by defendant's gun stopped approximately 1/2 inch from the victim's heart.
c) One statement made by Patrolman Timpone who asserted that he arrived at the Cunningham house and observed Mrs. Cunningham on the kitchen floor. Officer Timpone further observed Mr. Cunningham standing in the kitchen, stating that he had shot his wife by accident. Mr. Cunningham then stated that the gun used in said shooting was in the kitchen cabinet. Officer Timpone removed the gun with a screwdriver and put it in a plastic bag.
d) One statement made by Patrolman Feinstein, who also arrived at the Cunningham house on December 23, 1978. He observed Mrs. Cunningham lying on the kitchen floor. He further observed Mr. Cunningham state that he had ...