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In re Application of Frank Depasquale for a Permit to Handgun

June 27, 2007

IN RE THE APPLICATION OF FRANK DEPASQUALE FOR A PERMIT TO CARRY A HANDGUN, APPELLANT.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2007

Before Judges A. A. Rodríguez and Lyons.

Appellant, Frank DePasquale, appeals from an order denying his application for a permit to carry a handgun pursuant to N.J.S.A. 2C:58-4. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Appellant is self-employed. He replaces broken automobile glass out of his van. He travels primarily to urban locations at various hours fixing broken automobile glass on site, as he does not have a shop.

On July 22, 2004, appellant was issued a permit to carry a handgun. At that time, he was a resident of Belleville and his application, therefore, was first approved by the Belleville Chief of Police and then a Superior Court judge. His permit was restricted to those business hours when appellant was actually engaged in his business as owner of "Frank's Auto Glass," or when he was transporting business receipts to the bank for deposit. Appellant moved from Belleville to West Caldwell sometime before his permit was due to expire on July 21, 2006. He, therefore, applied for and received an amended permit approved by another Superior Court judge.

On or about May 25, 2006, appellant applied to the West Caldwell Police Department to renew his expiring permit to carry a handgun.*fn1 After a review, the West Caldwell Chief of Police disapproved appellant's application on July 7, 2006 "on the basis that [he had] not sufficiently illustrated an 'urgent necessity for self-protection.'" Pursuant to N.J.S.A. 2C:58-4e, appellant appealed the denial of his application to the Superior Court and a hearing was held on August 17, 2006.

At the hearing, appellant testified that he repairs broken auto glass out of his van, primarily in urban areas. He explained that he conducts business at all hours of the day and night, conducts a cash business, and carries large amounts of cash with him while on the road. Appellant also testified that he was attacked one time in the past by two assailants with a knife when he was stopped at a red light in Irvington while on his way to Newark. Appellant testified that he did not report the incident to the Irvington police and that the incident occurred a little over two years before the hearing. He further testified that there were no other incidents in which he was threatened or assaulted in the course of his business, and that during the time he possessed his weapon, he never had to display it to any potential assailants.

The judge hearing the matter expressed that, while he understood appellant's business was conducted often times at night in urban areas, he did not find an "urgent necessity" for appellant to carry a handgun and denied the application. Specifically, the judge did not find appellant's testimony concerning the incident in Irvington two years before to be credible. This appeal followed.

On appeal, appellant presents the following arguments for our consideration:

POINT I:

THE COURT BELOW ERRED BY HOLDING THAT THE PRIOR JUDICIAL ORDER ISSUED BY THE SAME COUNTY COURT DOES NOT ...


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