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M.S. v. Millburn Police Dep't

August 28, 2007

M.S., PLAINTIFF-RESPONDENT,
v.
MILLBURN POLICE DEPARTMENT, DEFENDANT,
AND OFFICE OF THE ESSEX COUNTY PROSECUTOR, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7535-05.

The opinion of the court was delivered by: A. A. RODRÍGUEZ, P.J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 6, 2007

Before Judges Stern, A. A. Rodríguez and Sabatino.

The Essex County Prosecutor appeals from the June 2, 2006 summary judgment in favor of M.S., and against it and the Township of Millburn (Millburn), directing the latter to return to M.S. his firearms purchaser identification (FPI) card within three days. We reverse.

The pertinent facts are as follows. M.S. was issued a FPI card in January 1995. During late December 1996, M.S. and his wife became involved in a contentious divorce. As a result of a confrontation at the marital home in front of the children, M.S. and the wife signed domestic violence complaints against each other. Police were called to the marital home and removed the wife. A final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, was issued against M.S. and the ex-wife on January 15, 1997. The FRO does not prohibit M.S. from possessing firearms. The Millburn police seized from M.S. five weapons, various firing paraphernalia and the FPI card from M.S..

Thereafter, the Prosecutor filed a petition, seeking forfeiture of the five seized weapons. The petition alleged that M.S. "was charged with threatening and assaulting . . . his wife, which constitutes acts of domestic violence as defined by N.J.S.A. 2C:25-19." The petition asserted that the State, [u]nder the provisions of N.J.S.A. 2C:25-21(d)(3) . . . may obtain title to the said seized weapon(s), revoke any and all permits, licenses or other authorizations to own, use or possess firearms issued to the potential claimant and object to the return of the weapon(s).

M.S. signed a consent judgment, permitting him to sell the five weapons to a registered firearms dealer. Neither the petition nor the judgment for forfeiture mentioned revocation of the FPI card, which remained in the possession of the Millburn Police Department.

Subsequently, M.S. sued for divorce. At the conclusion of the divorce proceedings, the FROs against M.S. and the now ex-wife were vacated by mutual agreement.

In April 2005, M.S. moved in the Family Part to vacate the forfeiture judgment in order to receive his FPI card back from the Millburn police. The Prosecutor opposed the motion and cross-moved for an order to enforce the consent judgment. Ex-wife notified the court that she did not oppose M.S.'s request for the return of his FPI card. The judge denied M.S.'s motion without prejudice, reasoning that the matter should not be venued in the Family Part. The judge suggested that M.S. simply request that Millburn return the card. The judge also denied without prejudice the Prosecutor's motion.

M.S. requested twice that Millburn return his FPI card.

After getting no response, M.S. moved in the Criminal Part for the return of his FPI card. The Prosecutor opposed the motion, arguing that the Criminal Part lacked jurisdiction and M.S. should have filed an action in lieu of prerogative writs in the ...


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