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In re Appeal of the Denial of the Application of Fennell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 to consider the other points raised by Fennell and add only these comments.

The scope of our review is quite limited. The findings and conclusions of the motion judge should not be disturbed if they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

The testimony and documentary evidence adduced at the plenary hearing revealed that Fennell submitted his application for the FPIC on September 13, 2005 to the South Toms River Police Department. Question (18) on the application form asked:

Have you ever been confined to a mental institution or hospital for treatment or observation of a mental or psychiatric condition on a temporary, interim, or permanent basis? If Yes, give the name and location of the institution or hospital and the date(s) of such confinement or commitment.

Question (21) asked:

Have you ever been attended, treated or observed by any doctor or psychiatrist, or at any hospital or mental institution on an inpatient or outpatient basis for any mental or psychiatric condition? If Yes, give the name and location of the doctor, psychiatrist, hospital or institution and the dates of such occurrence.

Fennell answered "no" to both questions.*fn1

South Toms River Police Officer John Wissell who was "in charge of firearms applications" in the department testified. He had conducted between seventy-five and one hundred investigations of applicants including Fennell.

Wissell's investigation revealed that on three occasions, most recently in May of 2001, police responded to Fennell's home and called emergency psychiatric services for assistance. As a result, psychiatric treatment was provided to Fennell.

Fennell testified and acknowledged that he had voluntarily committed himself for psychiatric treatment in the past on more than one occasion. However, he answered "no" to questions (18) and (21) because his commitments were voluntary, and "not forced by a judge." In short, he claimed he did not knowingly submit a false application.

Judge Daniels found there was "sufficient credible evidence to establish that [Fennell] was confined, treated, and observed at a hospital for a mental or psychiatric condition." He further found Fennell's "explanations as to why he said no to the questions . . . incredible." He determined Fennell "knowingly falsified the application."

Because Judge Daniels had the opportunity to "observe the demeanor" of the witnesses, his "findings of credibility" are entitled to our deference. Locurto, supra, 157 N.J. at 474. N.J.S.A. 2C:58-3c(3) provides in pertinent part, No handgun purchase permit or firearms purchaser identification card shall be issued:

(3) . . . to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card.

In order to deny a request for a FPIC, the State must demonstrate, by "a fair preponderance of the evidence," "good cause . . . for the denial." Weston v. State, 60 N.J. 36, 46 (1972). The judge's finding that Fennell knowingly falsified the application is adequately supported by the evidence and establishes good cause for denial of the FPIC.

Affirmed.


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