Clarkson S. Fisher, Jr., J.s.c.
The opinion of the court was delivered by: Fisher
CLARKSON S. FISHER, JR., J.S.C.
This forfeiture action raises interesting questions concerning the weapons provisions of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, "the Act").
Ellyn Warrick (Ellyn) filed a domestic violence complaint against Willis Warrick (Willis) in the Municipal Court of the Township of Neptune on November 28, 1993 (the first complaint). She alleged that Willis endangered her life, health or well-being by "punching her in the face and throwing a hammer at her and threatening to kill her." The municipal Judge entered a temporary restraining order which ordered, among other things, seizure of a Remington shotgun and 9-MM automatic pistol (the weapons). At Ellyn's request, the Honorable Mark A. Sullivan, Jr., J.S.C., entered an order on December 23, 1993, dismissing the complaint and dissolving the temporary restraining order. Thereafter, the State moved for the forfeiture of the weapons. On April 19, 1994, the Honorable Robert A. Coogan, J.S.C., ordered that the weapons be returned to Willis because the State was "unable to provide a basis for forfeiting the weapons" and was "unable to present any evidence that any disability set forth in N.J.S.A. 2C:58-3" applied to Willis.
On November 7, 1994, Ellyn filed another domestic violence complaint (the second complaint), which alleged that Willis endangered her life, health or well-being by "harassing [her] and also making sexual advances at her and to the point that she has to push him off and away from her." On November 28, 1994, a temporary restraining order was entered by the Honorable James F. Mulvihill, J.S.C., which, among other things, ordered another seizure of the weapons. On December 5, 1994, this court entered an order, again at Ellyn's request, dismissing the complaint and dissolving the temporary restraining order.
Two days after the second complaint was dismissed, the State again moved for forfeiture of the weapons. A hearing was held on March 9, 1995, at which time both Ellyn and Willis testified.
This relatively simple matter gives rise to two issues which are not easily resolved by reference to the Act. The first issue requires a determination as to how much of the prior history briefly outlined above is relevant to this forfeiture action. The second issue raises what appears to be a disturbing inconsistency between two paragraphs of N.J.S.A. 2C:25-21d(3).
A. Is There Relevance to the Domestic Violence Allegations made Prior to the Dismissal of the First Forfeiture Action?
The State offered the testimony of Ellyn who swore to the truth of to the allegations of the first complaint. Willis, who testified to the contrary, argued that this evidence is not relevant to whether the weapons should be forfeited.
As a basis for the forfeiture of the weapons, the State claims only that Willis "poses a threat to the public in general or a person or persons in particular." N.J.S.A. 2C:25-21d(3). The State argues that evidence of past domestic violence is relevant in determining whether Willis poses a threat, at the very least, to Ellyn. Willis forcefully argues that evidence of the allegations of the first complaint are irrelevant, since Ellyn voluntarily dismissed that complaint prior to the final hearing and, moreover, because Judge Coogan entered an order requiring the return of the weapons shortly thereafter. In a ...