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In re D'Agostino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 8, 2007

IN THE MATTER OF LAYNE JOHN D'AGOSTINO

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. GLO-05-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 24, 2007

Before Judges Gilroy and Lihotz.

Appellant Layne John D'Agostino appeals from the July 11, 2006, order of the Law Division, denying his motion to amend a permit to carry a handgun. We affirm.

Appellant is a licensed private detective of this State; a former federal law enforcement officer with past training in the use of firearms; and an experienced fugitive recovery agent, having engaged in that work for approximately eleven years.

Appellant possesses four permits to carry firearms that are reciprocal in thirty-one states, including the States of Delaware and Pennsylvania, where he is authorized to carry a firearm while acting as a fugitive recovery agent.

On April 21, 2003, appellant filed an application to carry a handgun while performing fugitive recovery services. The application was denied by order of November 17, 2003. In 2005, appellant applied for a permit to carry a handgun while performing certain services as a private investigator but not while performing services as a fugitive recovery agent. On April 26, 2005, an order was entered approving appellant's application to carry a handgun for the limited purposes of providing armed security for: 1) technicians servicing automated teller machines at banks and other remote sites; and 2) transporting and guarding prisoners under contracts with agencies of the Federal and State Governments.

In March 2006, appellant filed a motion to amend the permit to allow him to carry a handgun while acting as a fugitive recovery agent. On June 15, 2006, a hearing was conducted on the motion. Appellant testified that he sought to carry a handgun while acting as a fugitive recovery agent because certain police departments had policies prohibiting police officers from assisting with fugitive recovery; his work as a fugitive recovery agent requires him to enter into dangerous surroundings; certain fugitives have been convicted or charged with weapon offenses; weapons have been found in the possession of or in close proximity to several fugitives; he has been threatened and assaulted by several fugitives while attempting apprehension; and his inability to carry a firearm has detrimentally impacted on the performance of his work. On July 11, 2006, Judge Walter L. Marshall, Jr., issued a six-page written decision denying the motion, determining that appellant "ha[d] not made a sufficiently particularized showing of justifiable need to carry a handgun in pursuit of his voluntarily undertaken, private activities." (Quoting In re Borinsky, 363 N.J. Super. 10, 26 (App. Div. 2003)). A confirming order was entered the same day.

On appeal, appellant argues:

POINT I.

EXISTING LAW DOES NOT SUPPORT THE TRIAL COURT'S DENIAL OF THE APPLICANT'S REQUEST FOR PERMISSION TO CARRY A HANDGUN AS A PART OF HIS FUGITIVE RECOVERY WORK.

POINT II.

THE RECENTLY EFFECTIVE LAW[,] REQUIRING THE LICENSING OF BOUNTY HUNTERS BY THE STATE OF NEW JERSEY[,] DOES NOT SUPPORT THE TRIAL COURT'S DENIAL OF THE APPLICANT'S REQUEST FOR PERMISSION TO CARRY A HANDGUN AS A PART OF HIS FUGITIVE RECOVERY WORK.

POINT III.

THE TRIAL COURT ERRED IN FAILING TO ARTICULATE ITS CONSIDERATION OF THE REQUIRED FACTORS ON THE RECORD.

At oral argument on appeal, we learned that the permit to carry a handgun issued in April 2005 had expired pursuant to N.J.S.A. 2C:58-4a ("[a]ll permits to carry handguns shall expire two years from date of issuance . . . ."), and that appellant had not filed an application to renew the permit. Because our decision would not have any practical effect on the existing controversy, we conclude that the appeal should be dismissed as moot. Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006).

"Issues that have been rendered moot by subsequent developments render legal issues abstract and outside the proper realm of courts." In re Park Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004) cert. denied, 182 N.J. 630 (2005). "We will not render advisory opinions or function in the abstract . . . ." Zamboni v. Stanler, 199 N.J. Super. 378, 383 (App. Div. 1985). Here, appellant appeals from the denial of his motion to amend a permit to carry a handgun that was issued in April 2005, which has expired and is no longer valid. N.J.S.A. 2C:58-4a. Accordingly, even if we were to have considered the appeal on its merits and reversed the decision of the trial court, because there is no longer a valid permit in existence to amend, our decision would have been meaningless. The issue at this time is purely hypothetical. We recognize that under certain circumstances, we may reach the merits of a moot issue, even if the issue will no longer impact the individuals involved in the appeal, "because of [the issue's] public importance or likelihood of recurrence, or both." Pressler, Current N.J. Court Rules, comment 1.21 on R. 2:8-2 (2007). However, we are satisfied that neither of these two exceptions apply. Moreover, because decisions on applications to carry a handgun are fact sensitive and are addressed on a case-by-case basis, not by a categorical pre-determined rule, In re Borinsky, 363 N.J. Super. 10, 24 (App. Div. 2003), we are satisfied that appellant may present his arguments concerning the applicability of the Bounty Hunter Licensing Act, N.J.S.A. 45:19-28 to -42, which became effective post-decision on the Law Division, when and if appellant files a new application to carry a handgun.

Appeal dismissed.

20070808

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