On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FO-13-388-03A.
Before Judges Kestin, Fuentes and Falcone.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2004
Defendant, David Cordoma, is a former State Corrections Officer who retired after the State Division of Pensions and Benefits found him to be permanently and completely disabled. Defendant appeals from the judgment of the Family Part ordering the forfeiture of his service handgun, ammunition, other gun paraphernalia, and firearm identification card. The seizure order was issued as part of a domestic violence temporary restraining order (TRO) obtained by his former wife. She voluntarily withdrew the TRO before any final restraining order was issued.
Based on the record before us, we conclude that there was insufficient evidence to support the trial court's finding that defendant was unfit to possess a firearm. We hold, however, that the evidence presented by the State provided a rational basis, pursuant to N.J.S.A. 2C:58-3c, to question defendant's suitability to possess a firearm. Under the doctrine of implied waiver, defendant's right to confidentiality in the medical information kept on file by the Division of Pensions and Benefits is subordinate to the State's interest in preventing the possession of firearms by individuals deemed statutorily disqualified.
The parties are former husband and wife. They were married for approximately eight years and had three children who were ten, eight and five years old at the time this matter came before the trial court.
The incident that gave rise to the issuance of the TRO against defendant occurred on June 6, 2002. The record does not contain a copy of the domestic violence complaint filed by his former wife, but she gave the following description of the incident in the course of her testimony at the forfeiture hearing:
I was leaving my house in Freehold, and I was driving to the woman's house who used to provide day care for me, to make a final payment to her. And I was driving down Route 9 and I noticed in my rear view mirror, a car driving fairly close to me. And I thought it was just somebody that wanted to pass me.
So I went, I was in the fast lane, went to the slow lane. The car went behind me and I proceeded to drive down. And then I got into Lakewood on West County Line Road, and I was stopped at a traffic light, and I looked in my rear view mirror and I noticed that this car was behind me at this traffic light.
And I kind of got a little taken aback by it, because it was from Freehold to Lakewood. So, I made the left onto Hope Chapel Road and I pulled over on the side of the road, and the car went past me. So, I proceeded to go to this house where I was going to make the payment. And I walked in the house and there was a couple people in there, and I had just explained that I believed that I was being followed. And they said, what do you mean --
And I proceeded to make the payment. And they went outside for whatever reason, and came back in. They said that there's a car that you described sitting out in front of the house. And there was a man in the car taking pictures of your car and the house. And I went to go outside and at that point the car was gone. So then I called the Lakewood Police to come.
THE COURT: So you never realized who was in the car?
THE WITNESS: Absolutely not. Uh hum. I didn't know.
She also testified that, in the course of their marriage, defendant was occasionally"verbally abusive," a term she defined as"yelling, being aggravated at stuff, blaming me for problems with bills." There was also one incident of physical abuse that occurred on Christmas Eve in 1998. According to the former Mrs. Cordoma, defendant physically threw her down onto the ground, causing her to strike her head against sheetrock that had been placed there. Although she did not receive medical attention, she had scratches and a bump on her head. She did not summon the police nor seek judicial relief in the form of a domestic violence TRO. The couple separated in November 1999.
The ex parte TRO issued in connection with the forfeiture proceedings contained the standard provision, pursuant to N.J.S.A. 2C:25-29b, barring defendant from possessing any firearm. The police officer who served the TRO described defendant's demeanor at the time of service as"relaxed." The officer permitted defendant to leave the room to retrieve the handgun that he kept unloaded and locked in a secure container. The officer also confiscated twenty rounds of.40 caliber ammunition.
It is undisputed that defendant possessed this weapon incident to his former position as a State Corrections Officer. It is equally undisputed that defendant never threatened his former wife with the gun or otherwise used the weapon in an inappropriate manner against her or anyone else. The TRO remained in effect from June 7, 2002, until July 26, 2002, when the former Mrs. Cordoma voluntarily moved before the Family Part to dismiss the complaint and vacate the restraints.
On October 9, 2003, the State instituted forfeiture proceedings before the Family Part pursuant to N.J.S.A. 2C:25-21d(3). As part of the testimony received concerning defendant's fitness to possess a firearm, the court heard the following from defendant's former wife:
Q: Are you aware if [defendant] has any kind of physical disability?
A: I know that, it was after we were separated, but I know that he's retired from his job as a corrections officer for a disability. I know ...