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In re Sbitani

New Jersey Superior Court, Appellate Division


Decided: March 18, 1987.

IN THE MATTER OF AMEEN N. SBITANI, APPLICATION FOR FIREARM PURCHASER'S IDENTIFICATION CARD

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, whose opinion is reported at 212 N.J. Super.. 266.

Brody, Long and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.

Brody

[216 NJSuper Page 76] Ameen Sbitani wants to purchase a shotgun to hunt birds. N.J.S.A. 2C:58-3b requires a person to exhibit a valid firearms purchaser identification card in order to acquire a rifle or a shotgun. In an opinion reported at 212 N.J. Super. 266, 514 A.2d 873, the Law Division ordered a chief of police to issue Sbitani a firearms purchaser identification card. The chief had "disapproved" the application because Sbitani had been convicted of a "narcotics/dangerous drug offense." The conviction occurred in Virginia and was based on Sbitani's possession of less than 25 grams of marijuana, a disorderly persons offense had the offense occurred in New Jersey. N.J.S.A. 24:21-20a(4). The trial judge concluded that because a criminal conviction bars a person from obtaining a purchaser identification card, a disorderly persons conviction cannot be a bar. That would only be so if conviction of a crime were the only statutory bar.

[216 NJSuper Page 77]

N.J.S.A. 2C:58-3c defines five categories of persons to whom a card may not be issued.*fn1 Persons convicted of a crime constitute one category. Among the other four is one "where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c(5).

Under N.J.S.A. 2C:39-7, a person in one of several defined categories "who purchases, owns, possesses or controls any [weapon enumerated in N.J.S.A. 2C:39-1r] is guilty of a crime of the fourth degree." A "weapon" includes a "firearm." N.J.S.A. 2C:39-1r. A "firearm" includes a rifle and a shotgun. N.J.S.A. 2C:39-1f. One category of persons who under N.J.S.A. 2C:39-7 may not purchase, own or possess weapons is "any person who has been convicted for the unlawful use, possession or sale of a controlled dangerous substance as

[216 NJSuper Page 78]

defined in . . . [ N.J.S.A. ] 24:21-3 et seq." Marijuana is defined in N.J.S.A. 24:21-5(e)(10) as a controlled dangerous substance.

It would obviously not be "in the interest of the public health, safety or welfare" under N.J.S.A. 2C:58-3c(5) to issue a firearms purchaser identification card to a person who would be committing a crime under N.J.S.A. 2C:39-7 were he to use the card to purchase a rifle or a shotgun. It therefore follows that a person may not obtain a purchaser identification card if he "has been convicted for the unlawful . . . possession" of marijuana.

The Legislature expressly anticipated that a disorderly persons offense may be a bar to issuance of a purchaser identification card. N.J.S.A. 2C:58-3e provides that an application for a card shall "set forth . . . whether [the applicant] has ever been convicted of a . . . disorderly persons offense. . . ." An affirmative response to that question could not only disclose one or more disqualifying CDS convictions but also one or more convictions for such dangerous conduct as assault,*fn2 which may properly prompt a police chief to deny the applicant a firearms purchaser identification card because "issuance would not be in the interest of the public health, safety or welfare."

Reversed.


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