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State v. One Marlin Rifle

March 16, 1999


Before Judges Petrella and D'Annunzio.

The opinion of the court was delivered by: Petrella, P.j.a.d.


Submitted February 22, 1999

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County.

This is an appeal from a weapons forfeiture decision after a prior dismissal of a domestic violence complaint. John Silvaria, owner of the subject weapons, appeals from the Family Part Judge's decision ruling that he must forfeit his weapons as he was found in the forfeiture case to "pose a threat to public health, safety, or welfare" pursuant to N.J.S.A. 2C:58-3(c)(5). Silvaria argues that the Judge erred in ordering forfeiture, and specifically in treating his estranged wife as an expert witness on mental illness, notwithstanding her being a certified clinical nurse specialist and an advanced practice nurse in mental health and psychiatric nursing. Silvaria also argues that his estranged wife expressed nothing more than a net opinion which should have been rejected.

Prior to the events that gave rise to the confiscation of Silvaria's weapons, he and his wife mutually agreed to separate and obtain a divorce. A consent order was entered on December 31, 1997 giving Mrs. Silvaria sole custody of their two-and-one-half year old daughter. The consent order also included visitation and child support arrangements.

Silvaria worked as a licensed physical therapist on a contract basis, accepting temporary thirteen-week assignments at health care facilities around the country. In November 1997, as Silvaria was preparing to leave for a new job assignment in Wisconsin, he returned to the marital residence to collect his belongings. Mrs. Silvaria stated that "[she] was actually helping him move out and it was...going very well, very cooperative, it was a team effort." However, as the day went on, Mrs. Silvaria inquired when her husband was going to leave.

At some point in the evening, Silvaria approached his wife desiring to talk about what was going wrong with their marriage. Because Mrs. Silvaria was holding her daughter in her arms and one of Mrs. Silvaria's friends was in another room of the home, she felt it was "not the time nor the place" to discuss this matter and an argument ensued. Mrs. Silvaria testified that her husband "became louder and louder and got closer to closer [sic] to her." Feeling uneasy, Mrs. Silvaria "asked him to back up." Silvaria did so and left the room without incident.

Disturbed about what had just happened, Mrs. Silvaria called the Oaklyn Police. When police arrived, Mrs. Silvaria insisted that "she wanted her husband out of the house, he was supposed to move out, get all of his things and just leave." The officer on the scene described Mrs. Silvaria's demeanor as "very scared, fearful." The officer said Mr. Silvaria was very cooperative and that:

"He was ready to leave and we said you have to come back to the station. Called the Prosecutor's Office, they said take all of his weapons. We took them all out of his truck and that was basically it."

The police confiscated three rifles, two shotguns, a "BB" gun, a bow and arrows, a sword and various ammunition that apparently had already been loaded in Silvaria's truck. At the police station, Silvaria indicated that he owned a pistol, which he kept locked in a gun cabinet at the marital residence. A police officer returned to the marital residence and confiscated the pistol from that location.

On December 16, 1997, the State served notice of its intent to seek forfeiture of Silvaria's weapons. However, because it thereafter became known that Silvaria had moved to Wisconsin, Mrs. Silvaria and the State had no objections to returning the weapons to Silvaria and that was done pursuant to court order of December 31, 1997.

Although Silvaria had left the state of New Jersey, Mrs. Silvaria subsequently filed a domestic violence complaint on February 13, 1998 based upon several telephone contacts with Silvaria during the weeks following his relocation to Wisconsin.The first telephone call occurred when Silvaria called to offer Christmas greetings. Eventually, the conversation deteriorated and Mrs. Silvaria decided that it would "not be a good idea" for Silvaria to see his daughter over the New Year's holiday. A second phone call occurred on February 7, 1998. At that time Silvaria called to arrange a date to collect some additional possessions from the marital residence. Mrs. Silvaria decided it was "not a good idea" for her husband to come alone and remove the remaining possessions. Also during this phone call, Silvaria apparently indicated that he was going to reclaim his weapons.

A third telephone call occurred on February 11, 1998. During this conversation Silvaria asserted that he wanted joint custody of his daughter and that he would stop support payments. He also indicated that he wanted to take his daughter to visit her grandmother in Massachusetts. Mrs. Silvaria would not consent and Silvaria is quoted as saying "We'll see, we'll see who's going to stop me from seeing my daughter whenever and with whomever I want." Also during this conversation, Mrs. Silvaria inquired about the guns asking Silvaria, "And where are you going to put them?" Silvaria replied "I certainly can't tell you that." Mrs. Silvaria said this made her feel vulnerable because ...

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