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State v. Freysinger

May 29, 1998


Before Judges King, Muir, Jr., and Cuff.

The opinion of the court was delivered by: Cuff, J.A.D.

[9]    Argued: April 29, 1998

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County whose decision is reported at N.J. Super.

Defendant, Raymond Freysinger, appeals from an order granting the State's application to forfeit firearms and a knife seized from his home according to the terms of a temporary restraining order issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33. Following an evidentiary hearing, Judge O'Hagan found that the State sustained its burden that Freysinger was presently an habitual drunkard and granted the State's motion for forfeiture while denying Freysinger's motion for the return of his seized guns and hunting knife. On appeal, Freysinger argues that the record does not support the finding that he is presently an habitual drunkard as defined by N.J.S.A. 2C:58-3c(2). We affirm.

Defendant and his girlfriend, Jane Schappert, have lived together for fourteen years. Ms. Schappert's daughter, who was seventeen at the time of this incident, also lives with the couple.

On August 22, 1995, Ms. Schappert and a friend, Linda Conway, arrived at a local bar between 4 and 5 p.m. to celebrate Jane Schappert's passing her nursing boards. The bar is a short distance from the house in which defendant and Jane Schappert reside.

At around 9:30 p.m., defendant got off work and went to the same bar. According to Ms. Schappert, she did not have a conversation with defendant and immediately left the bar and proceeded to walk home. According to defendant, he had a brief conversation with Ms. Schappert about why she was out with her friend but they did not argue. Defendant stated that when she got up and walked away, he believed that she was going to the ladies room. Defendant claims that, without speaking further to her, he decided to leave the bar in his car which was parked outside.

According to Ms. Schappert, after she began walking home from the bar, she stopped briefly to sit down by the side of the road. She then got up and walked across the street and proceeded toward her house. At this point she remembers being struck by a car and falling to the ground. She was taken to the hospital and was released early the next morning. She suffered only bumps and bruises.

Defendant admitted that he was aware that he "clipped somebody down the road" on his way home from the bar that evening but did not stop to investigate. He claimed he did not know he hit his girlfriend. He also insisted that he was not drunk.

Moments after the collision, defendant arrived at his home, parked his car in the driveway and went to bed. After arriving at the accident scene and speaking with several witnesses, Patrolman George Hoff and his partner went to defendant's home. The officers observed defendant's vehicle in the driveway, noticed the missing right side view mirror, and determined that it was the vehicle involved in the accident. The officers knocked on the door for several minutes until defendant finally awakened and opened the door.

According to the officers, defendant was cooperative and allowed them to search his room. The officers located a tan shirt which matched a description of what defendant was wearing that evening at the bar. The officers then placed defendant under arrest. The officer in charge, Patrolman White, ordered that the incident be treated as a domestic violence incident. Pursuant to N.J.S.A. 2C:25-21d(1)(b), the officers confiscated three shotguns and one knife from defendant's gun case.

As a result of this incident, defendant was charged with a variety of offenses including assault by auto, driving while under the influence of alcohol, reckless driving, and leaving the scene of an accident. Pursuant to a plea bargain, defendant plead guilty to driving under the influence of alcohol.

Also as a result of this incident, Ms. Schappert filed a domestic violence complaint and obtained a temporary restraining order on August 23, 1995. On September 5, 1995, Ms. Schappert and defendant appeared before Judge O'Hagan to dismiss the complaint and dissolve the restraining order because she and defendant had reconciled. At the hearing, Ms. Schappert admitted that in June 1995, she filed a domestic violence complaint after defendant threw an ashtray at a china closet during an argument. She also dismissed this complaint. Ms. Schappert and defendant continue to reside together.

On May 21, 1996, the State filed a motion for the forfeiture of weapons seized and for the revocation of any and all permits, licenses and other authorizations held by defendant for the use, possession and ownership of weapons. A hearing ...

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