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State v. S.A.

May 14, 1996

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
S. A., DEFENDANT-RESPONDENT, CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County.

Approved for Publication May 14, 1996.

Before Judges King, Landau and Kleiner. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by

KING, P.J.A.D.

This case involves the right of a defendant in a domestic violence action to the return of three handguns. The State failed to move for forfeiture under N.J.S.A. 2C:25-21(d)(1) within 45 days and defendant demanded return of the guns. The State claims that 18 U.S.C.A. § 922 (g)(8) of the federal firearms statute prohibits return of the guns. We agree that defendant has no immediate right to the guns and reverse the order of the Family Part Judge requiring their return to the defendant.

I.

A.V., of Jersey City, was involved in a romantic relationship with defendant for about ten months in 1993-1994. During this period, defendant had the keys to A.V.'s apartment, where he kept some clothes and stayed overnight on a few occasions each month. A.V. claimed that on several occasions defendant threatened that he "was gonna put drugs in me, he was gonna shoot me or he was gonna burn my car down." A.V. also testified that defendant hit her on one occasion and slapped her son, age four, in the face with an open hand, apparently in April 1994.

On the evening of June 20, 1994 defendant became upset. On the day before, A.V. had said she could not go to the beach with him because she had to care for her son who was ill. Defendant was friendly with A.V.'s brothers and he went to the beach with them. When defendant returned from the beach, he cursed repeatedly at A.V., cut the cord on her air conditioner, broke her car radio, ripped and burned personal photographs, broke her picture frames, and took her dining-room furniture and most of her clothes. A.V. testified at a later proceeding that defendant "wanted to hit me [during the beach argument] and I did not let him hit me."

A.V. testified that she was afraid of defendant "because he's really crazy," but admitted she waited two months before seeking a domestic violence restraining order because she "thought that he was only talking." A.V. believed defendant was following her to her work. He told her over the phone that he knew where she was working at a new job in Hoboken. As a homemaker for Health Force, A.V. assisted patients at various locations; she testified that defendant knew all of them. A.V. first stated, unambiguously, that "I know that he's following me to my job," but then moments later stated, "I'm not saying that he's following me,...."

At the time of the August 17, 1994 hearing on the temporary restraining order (TRO), A.V. said she had not seen or spoken with defendant for three weeks but that defendant had always asked her brothers and brother-in-law about her. A.V. stated that she "beeped" defendant in July and he told her to call him "to continue talking about these things." They also argued over whether defendant would compensate A.V. for her car radio which he broke. She refused to accept $100 which defendant sent through her brother because the radio cost more. A.V. testified in general terms that "he used to say to me," including when they last spoke three weeks before the hearing, "that whenever he sees me, he's gonna do something to me." She later testified, at the final hearing on the restraining order, that defendant had never threatened her with a gun. She did not believe he was going to shoot her with one of his guns.

A.V. testified that defendant always carried, on his person or in a bag, at least one small gun. He once showed her what she understood was a permit to carry. Defendant carried the gun, A.V. said, because "he has a lot of problems, not only with me but with a lot of people." A.V. said defendant was employed but she did not know what type of work he did. She thought perhaps he was a truck driver and had a trailer truck. He told her that he formerly was a police officer and had worked for the FBI. A.V. recalled that the police frequently came to her house and picked up defendant "at any time." She could not identify whether the police who picked up defendant were Jersey City police, Hudson County police, or some other kind of police. She did not know where defendant went with them. A.V. also said that the Jersey City police officers were "all very good friends with" defendant. She did not believe that defendant was a police officer but remembered that he had a uniform and a badge which he never used. She did not say what kind of uniform, but she apparently meant a police uniform. Defendant remarked in his testimony that he knew the local prosecutor, Mr. Posner.

II.

On August 17, 1994 the hearing officer granted A.V. a TRO under N.J.S.A. 2C:25-12(f) as necessary to protect her life, health or well-being. The TRO prohibited defendant from returning to A.V.'s apartment; appearing in or around any of A.V.'s places of work; committing any future acts of domestic violence; having any contact with A.V. or any of her household members; and making any harassing communications to A.V. or her roommate or clients. The TRO also prohibited defendant from possessing any weapons.

The return date of the August 17, 1994 TRO was August 26, 1994. Defendant did not appear. Notice had been sent to him at 47 Logan Avenue, Jersey City, which A.V. testified was his last known address, to the best of her knowledge. At the TRO hearing on August 17, A.V. testified that while defendant was dating her he lived and received his mail at 47 Logan Avenue, Jersey City, where his relatives lived. A.V. said the house at 47 Logan belonged to defendant's father but she did not know who actually lived there because his parents lived on a "Van Ripen" Avenue. She then said that in June 1994 defendant lived with his parents not at 47 Logan but at another address on "Van Ripen." The hearing officer concluded, "we have no address on him...." The State later conceded, "We've checked with the post office and apparently the defendant has not been there [47 Logan] in the past five years."

At the August 26 continued TRO proceeding, the Judge decided to send notice to defendant by certified mail at 47 Logan Avenue and continued the TRO hearing until September 2, 1994 because defendant was again not present. On September 2, 1994, at the final restraining order hearing, the Judge made the order final and issued a warrant for defendant's arrest, relying on N.J.S.A. 2C:33-4(a) (petty disorderly-persons offense, offensive communication to another). The order also provided that the police confiscate defendant's guns and firearm purchaser identification card.

On September 6, 1994 defendant finally appeared in court. He claimed that he was not aware that a restraining order had been issued against him because the notice of hearing had been sent to his "old address." He explained that he found out about the warrant for his arrest from his brother. The Judge issued an amended TRO on September 6, 1994 making two changes from the September 2 order: first, it prohibited defendant from having contact with A.V.'s family or household members rather than just A.V.; second, it prohibited defendant from making harassing communications to A.V.'s son also, rather than just A.V.. The Judge's September 6, 1994 order recalled the warrant for defendant's arrest, with the understanding that he would arrange to turn his guns in to the police. The Hudson County Sheriff confiscated defendant's guns.

The final restraining order hearing originally scheduled for September 27, 1994 was rescheduled for October 12, 1994 at the request of defendant's attorney because of a conflicting trial obligation. The Judge continued the restraining order against defendant until the new October 12, 1994 hearing date. On this date, defendant and A.V. stipulated before the Judge that each had committed acts of domestic violence against the other and that they sought mutual restraining orders. On September 8 defendant had filed a domestic violence complaint alleging that A.V. had committed an act of domestic violence against him on August 25. A.V. acknowledged that she "beeped" defendant on his pager for no reason at all but denied that she had gone to his home uninvited. Defendant, in turn, admitted that he had threatened A.V. with some unspecified consequence if she did not stop calling him ...


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