On appeal from Superior Court, Chancery Division, Family Part, Monmouth County.
Approved for Publication June 18, 1996.
Before Judges Petrella and P.g. Levy.
The State appeals from an order dismissing its application for a forfeiture hearing regarding certain firearms seized from defendant Charles Volpini. The application, made pursuant to the prevention of Domestic Violence Act of 1991 (Act), see N.J.S.A. 2C:25-21d(3), was denied by the Family Part Judge on the ground that the court lacked jurisdiction because an underlying domestic violence complaint had been dismissed. In addition, the Judge concluded that relief was not warranted because the State had neither produced a subpoenaed, material witness (Mrs. Volpini) to testify at the forfeiture hearing nor complied with the fifteen-day hearing requirement of N.J.S.A. 2C:25-21d(3). On appeal, the State argues that the Judge erred in declining to hear the State's timely filed weapons forfeiture application and in ordering the immediate return of defendant's weapons.
The events leading up to the forfeiture application commenced on February 26, 1995, when Manalapan Township police responded to a domestic violence call made by Mr. Volpini's wife from the couple's home. She claimed that her husband had physically assaulted her, which was partially corroborated by a bruise on her left cheek. Although Mrs. Volpini refused to file a complaint or seek a temporary restraining order (TRO) against her husband, a police officer arrested Mr. Volpini for simple assault and seized his Browning 12-gauge shotgun, his Marlin .22 caliber rifle, and a bag of ammunition.
Mrs. Volpini went to the police department the following day to report that her husband had since telephoned her six times at her place of employment, threatening to kill her and their son "if he did not straighten out his problem and get his guns back." She indicated that her husband had been undergoing psychiatric treatment and taking medication for depression. These charges resulted in Mr. Volpini's arrest on a charge of terroristic threats. *fn1 In addition, Mrs. Volpini signed a domestic violence complaint against her husband.
Upon issuance of an ex parte TRO pursuant to her complaint, Mr. Volpini was notified to appear for a final hearing on his wife's application for restraints. The TRO directed him to turn over to the police a Ruger .357 Magnum handgun and "possibly one rifle." The police seized from the Volpini home the handgun, a Remington .308 caliber rifle, and another bag of ammunition. At a March 7, 1995 final hearing, the domestic violence complaint was dismissed after Mrs. Volpini had requested its withdrawal; the TRO was also vacated.
The Monmouth County Prosecutor moved the next day for forfeiture of Mr. Volpini's weapons and revocation of his weapons permits and licenses. The motion was filed within "45 days of seizure," as required by the first unnumbered paragraph of N.J.S.A. 2C:25-21(d)(3), but was not calendared for argument until May 25, 1995. The State's application was twice adjourned at Mr. Volpini's request. The State then sought the adjournment of a September 14, 1995 hearing because Mrs. Volpini failed to appear. The prosecutor maintained that the State had mailed a subpoena to her and "had anticipated calling her as a hostile witness." The State was nonetheless prepared to examine the two police officers who had answered the original domestic violence call.
At a September 21, 1995 proceeding, the State sought another adjournment because it had been unable to personally serve Mrs. Volpini with a second subpoena. Mr. Volpini advised the police officers who had attempted to serve the subpoena that his wife had left the jurisdiction. The State informed the Judge that it was nevertheless prepared to proceed with its case in her absence. The Judge questioned, however, whether he had jurisdiction to hear the motion because Mrs. Volpini's domestic violence complaint had been dismissed. He relied upon the decision in State v. Warrick, 283 N.J. Super. 169, 661 A.2d 335 (Ch. Div. 1995), which held that a weapons forfeiture action may not proceed if the domestic violence complaint upon which the motion is based has been dismissed. Mr. Volpini's defense was equally predicated upon the State's failure to produce the testimony of the complaining witness and to hold the forfeiture hearing within fifteen days of the State's notification of the defendant of its intention to seek forfeiture. Concluding that the mandatory language of the fourth unnumbered paragraph of N.J.S.A. 2C:25-21d(3) denied the court jurisdiction, the Judge dismissed the motion and ordered the return of the defendant's weapons upon finding that each of the aforementioned arguments was fatal to the State's cause.
N.J.S.A. 2C:25-21d(3), the statute at issue in the instant appeal, states:
Weapons seized in accordance with the above *fn2 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 persons in particular.
A hearing shall be held and a record made thereof within 15 days of the notice provided above. ... The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.
If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall ...