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In re Appeal of the Denial of the Application of Fennell

July 20, 2007

IN THE MATTER OF THE APPEAL OF THE DENIAL OF THE APPLICATION OF SAMUEL S. FENNELL, FOR A FIREARMS IDENTIFICATION CARD


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2007

Before Judges Yannotti and Messano.

Samuel S. Fennell appeals from an order entered on July 6, 2006, denying his application for a Firearms Purchaser Identification Card (FPIC), issued pursuant to N.J.S.A. 2C:58-3b. After conducting a plenary hearing, Judge Wendel E. Daniels concluded that Fennell no longer suffered from any "particular disability" that would "interfere with or handicap him in the safe handling of a firearm," and, thus, was not disqualified pursuant to N.J.S.A. 2C:58-3c(3). The judge also determined that the State failed to prove "the existence of a restraining order issued pursuant to the Prevention of Domestic Violence Act of 199[1]," and, therefore, Fennell was not disqualified pursuant to N.J.S.A. 2C:58-3c(6).

However, the judge denied the application because in 1998 Fennell's BB gun was "seized pursuant to the Prevention of Domestic Violence Act . . . and ha[d] not been returned." N.J.S.A. 2C:58-3c(8). In addition, Judge Daniels determined Fennell "knowingly falsified . . . his answers on the application to questions 18, 21 and 22a," which, pursuant to N.J.S.A. 2C:58-3c(3), was another statutory basis for denial. See also N.J.S.A. 2C:39-10 (making it a third-degree crime to provide false information when applying for a FPIC).

Fennell raises the following points for our consideration:

POINT I

AN ALLEGED SEIZURE OF A BB GUN -- FOR WHICH THE STATE NEVER PETITIONED FOR FORFEITURE, WHICH MAY HAVE OR MAY NOT HAVE ACTUALLY BEEN RETURNED, AND WHICH APPELLANT WAS NEVER AFFORDED ANY HEARING OR NOTICE OF A HEARING IN ACCORDANCE WITH N.J.S.A. 2C:25-21[d](3) TO CONTEST THE ALLEGED TAKING -- MAY NOT BE USED AGAINST APPELLANT AS A REASON TO DENY HIS APPLICATION.

POINT II

THE COURT BELOW ERRED BY UNCONSTITUTIONALLY APPLYING, EX POST FACTO, A 2004 STATUTE TO ACTIVITY OCCURING IN 1998.

POINT III

THE COURT BELOW ERRED IN FINDING THAT [APPELLANT] KNOWINGLY FALSIFIED HIS APPLICATION.

We have carefully considered these contentions in light of the record and applicable legal standards. Because there is ample support in the record for Judge Daniels' finding that Fennell knowingly provide false information on his application, we affirm. R. 2:11-3(e)(1)(A). We therefore choose not ...


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