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In re Appeal of Denial of Osworth

November 24, 2003

IN THE MATTER OF APPEAL OF DENIAL OF PERMIT TO PURCHASE A HANDGUN BY DANIEL OSWORTH*FN1


On appeal from Superior Court of New Jersey, Law Division, Somerset County.

Before Judges Coburn, Wells and Fisher.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2003

Pursuant to N.J.S.A. 2C:58-3, Osworth applied to the Chief of Police of Franklin Township for a permit to purchase a handgun. The application was denied, and Osworth appealed to the Law Division for a hearing to review the Chief's decision.

After taking testimony from Osworth and two members of the police department, the trial judge ruled in Osworth's favor and entered an order authorizing him to receive the permit. This appeal ensued. We reverse.

I - FACTS

Osworth filed his application for a permit to purchase a handgun on June 17, 2002. On September 20, 2002, the Chief marked the application disapproved, citing as his only reason"PUBLIC HEALTH, SAFETY AND WELFARE." On that date, Lieutenant Carter, the commander of the Franklin Police Departments Professional Services Division, wrote to Osworth, explaining that the Chief's"disapproval is based on the provisions of N.J.S.A. 2C:58-3c(5), which states that [no handgun purchase permit] shall be issued'to any person where the issuance would not be in the interest of the public health, safety or welfare.'" (Emphasis omitted).

Osworth appealed pro se to the Law Division. Counsel appeared for Franklin Township, and the proceeding began with the trial judge asking Osworth why he thought the Chief was mistaken. Although Osworth indicated he was unsure, he said that the Chief was probably relying on his previous indictment for firearms charges, which had been resolved by his successful participation in a pretrial intervention program in Hunterdon County. The trial judge then invited Franklin Township to present its evidence.

Detective Gary R. Karwoski testified first, indicating that a record check showed that Osworth, who was a federally licensed firearms dealer, had been arrested in Hunterdon County for weapons offenses on August 19, 2000. He then related that

[t]he police report indicated that Mr. Osworth was coming along a piece of property near a roadway when a West Amwell Township police officer stopped him along with, I believe, two other friends of his. They were carrying rifles, and when they were stopped, the police officer subsequently saw a bulge in, along the waist of Mr. Osworth. He then found [on Osworth] a loaded Glock... handgun, loaded with hollow point bullets.

[Emphasis added.] According to the police report, none of the men had firearm identification cards or hunting licenses, although they claimed the owner of the land had given them permission to hunt coyotes.

Detective Karwoski added that he was also concerned about Osworth's failure to advise the Montgomery Police Department of his arrest while he had then pending in that township an application to carry a handgun. Finally he noted that the denial letter sent to Osworth at the address he had listed as his residence in his application was returned undelivered, and that further investigation revealed that there was no such address.

Lieutenant Jeffrey J. Carter, Karwoski's superior, summarized the results of their investigation, and added the following with respect to ...


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