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In re Appeal of the Denial of Application for Firearms Identification Card by Preto

August 30, 2007

IN THE MATTER OF THE APPEAL OF THE DENIAL OF APPLICATION FOR FIREARMS IDENTIFICATION CARD (CHANGE OF ADDRESS) BY FRANCIS J. PRETO.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2007

Before Judges R.B. Coleman and Sapp-Peterson.

Appellant Francis J. Preto appeals from the September 1, 2006 order denying his November 15, 2005 application for a duplicate Firearms Purchaser Identification Card (FPIC). The trial court denied the application after finding that Preto falsified prior firearms purchaser applications. In addition, the court also concluded that denial was warranted because Preto's conduct demonstrated that issuance of a duplicate FPIC was not in the interest of the public health, safety, or welfare, and because Preto failed to apply for the card within thirty days of his change in residence, as required by N.J.A.C. 13:54-1.11(a). We affirm.

On May 4, 2004, Preto submitted an application for a duplicate FPIC to the Chief of Police of the North Hanover Police Department (Chief). The Chief denied the application citing Preto's false response to Question 3, "Have you ever had a permit to purchase a handgun refused?" Preto responded "No[,]" despite the fact that his application for a permit to purchase a handgun had been denied in 1974. In addition, the Chief noted that Preto had given a similar response in previous applications.

Pursuant to N.J.S.A. 2C:58-3(d), Preto appealed the denial to the Law Division. The court scheduled a hearing on the matter for July 26, 2005. At that time Preto appeared with his attorney, who advised the court that Preto was withdrawing his appeal.

Preto reapplied for a duplicate FPIC on November 16, 2005, noting on this application that he had previously been denied a FPIC. In a letter dated February 27, 2006, the Chief denied the application, citing Preto's misrepresentations in prior applications. The Chief also referenced Preto's failure to comply with N.J.A.C. 13:54-1.11(a), which requires that an application for a duplicate FPIC based upon a new residence be filed within thirty days of the address change.

Preto appealed the denial to the Law Division. The hearing on the matter commenced on June 5, 2006. Preto was the only witness who testified. During the State's closing argument, Preto objected to the State's argument that Preto had not filed for a duplicate FPIC within thirty days of the change in his residence. Preto's attorney argued that there were no facts in evidence to support this contention. The State responded that it did not "realize that the issue of whether once someone had transferred their voting rights would constitute a change of legal residence or not was going to become an issue." The court agreed and, albeit over the objection of Preto's attorney, continued the hearing to August 21, 2006, to permit the State to "bring in whatever witnesses [the State] need[s] to bring in to establish whatever you think you need to establish."

At the August 21, 2006 hearing, the State did not produce any witnesses. Rather, the State sought to introduce Preto's voting records. Preto's attorney objected to the admissibility of the records because they were submitted late and because they were irrelevant. Although the records were not formally marked into evidence, the court considered them, remarking at one point during the proceeding,

It took a lot of effort by the chief to get this voting information . . . before the Court and I don't want to divert the focus now that the State went through this hurdle which is what I thought the defense's biggest objection was into an analysis of 2C:58-3 because I don't think the State's position has ever been that it meets one of the statutory disqualifiers under 2C:58-3.

It's always been the change, even the chief's letter the essential point was the change of address, 30 day time period.

In a letter opinion dated September 1, 2006, Judge Almeida denied the application. The judge rejected Preto's argument that denial based upon false responses on the FPIC application should be limited to cases of present falsifications. The judge stated,

[T]o adopt such an interpretation and prevent a police department or the court from considering falsifications of prior gun permit or identification card applications would frustrate the regulatory goal of encouraging disclosure by firearms applicants and preventing ...


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