The issue before this court is one of first impression and raises questions of when and under what circumstances must confiscated weapons seized pursuant to N.J.S.A. 2C:25-21(d) be returned to the lawful owner who is a named defendant under a domestic violence complaint and a criminal complaint lodged against him.
The factual background giving rise to this issue can be briefly summarized. Imelda Solomon, wife of the defendant, contacted the Millville Police Department on July 6, 1992 regarding alleged terroristic threats made by the defendant, James Solomon. Mrs. Solomon alleged that the defendant tried to kill her and tried to take her children away. She signed a domestic violence complaint which gave rise to a temporary
restraining order issued by Judge Salvo of Millville Municipal Court, finalized by Judge McDonnell of the Superior Court on July 15, 1992. A criminal complaint was also filed against the defendant by the Millville Police Department for terroristic threats in violation of N.J.S.A. 2C:12-3. The criminal complaint was dismissed by the Millville Municipal Court, but the restraints from the order entered by Judge McDonnell remain in place.
The act giving rise to this litigation was the seizure of weapons owned by defendant under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17, et seq. On July 7, 1992, a twelve gauge double barrel shotgun, model number 335 and a sixteen gauge shotgun, both owned by the defendant, were seized by the Millville Police Department in accordance with N.J.S.A. 2C:25-21(d). The Cumberland County prosecutor's office filed a motion on August 20, 1992 to have these guns surrendered to the prosecutor's office as well as other firearms owned by the defendant, and for disposal unless the defendant arranged for sale of the weapons within sixty days. The prosecutor's office also requested revocation of the defendant's firearms purchaser identification card or any permit, license or authorization with respect to the firearms held by the defendant.
Section 2C:25-21(d)(3) states:
Weapons seized in accordance with the above shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a Judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or person in particular . . .
After the hearing the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if 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 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) (emphasis added).
There is no dispute that the prosecutor gave notice to the defendant within 45 days of the seizure. The dispute lies in the interpretation of ...