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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 possession of firearms by those likely to pose a threat to public safety.

Under Mr. Preto's interpretation, a firearms applicant who, because of some statutory disability feared denial of his firearms application, could falsify the application safe in the knowledge that should his falsification be discovered, he could nonetheless reapply in another county or even in the same county claiming, as Mr. Preto does here, an honest misunderstanding of his disclosure obligation. Such a result would be unacceptable.

New Jersey's gun control laws must be narrowly construed, State v. Rovito, 99 N.J. 581, 587 (1985), and the language of N.J.S.A. 2C:58-3(c)(3) is unambiguous: no handgun purchase permit or firearms purchaser identification card shall be issued "to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card." Applying this statute, the court finds that Mr. Preto's falsification of firearms purchaser applications in 1975, 1977, 1979, 1985, and 2004 is a sufficient basis for the denial of his present application.

Judge Almeida also found that issuance of a FPIC to persons who falsify applications "would not be in the interest of the public health, safety, or welfare." Finally, the judge agreed that Preto's application was untimely. The present appeal followed.

On appeal, Preto contends that the court erred in denying him the FPIC in that (1) the State produced no witnesses at either the June or August 2006 hearings and the denial cannot be based entirely on hearsay; (2) the court's grounds for denying the FPIC did not rise to the level of a disqualifier; (3) his out-of-time application is not a disqualifier to obtaining the FPIC, especially since the State failed to follow its statutory time restraint; and (4) his present application does not contain any falsifications and his alleged past falsifications do not constitute a reason for denial.

An appeal to the Law Division of a local police chief's denial of an application for a duplicate FPIC is heard de novo. The trial judge, after considering all relevant and material testimony and documentary evidence, must reach an independent judgment as to whether there was good cause for denial of the permit. In Re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). The police chief bears the burden of proving the existence of good cause for the denial by the preponderance of the evidence. Ibid.

In our review of the trial court's determination, we defer to the trial court's fact-finding determinations that are supported by substantial credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); In re Application of Boyadjian, 362 N.J. Super. 463, 475 (App. Div. 2003). We are not bound, however, by the trial court's interpretation of the law. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (stating that, on appellate review, no special deference is given to "[a] trial court's interpretation of the law and the legal consequences that flow from established facts").

The hearsay evidence the court considered consisted of certified copies of Preto's Burlington County voting records, including his nominating petition to run for elected office in Burlington County, as well as copies of Preto's FPIC applications from 1975, 1977, 1979, 1985, and 2004. Apart from Preto's objection raised during closing argument at the June 2006 hearing that the State was making arguments about facts not in evidence, there was never a hearsay objection raised as to the court's consideration of these specific records.

When the issue was raised by the court at the beginning of the second hearing, the following colloquy occurred between the court and Preto's attorney:

THE COURT: I suppose the first item that needs to be addressed is [defense counsel's] letter that was faxed on Friday afternoon at four o'clock objecting to the State's submission that was received on Friday. Let me hear you on that first, [plaintiff's counsel].

[DEFENSE COUNSEL]: Thank you, Judge. I apologize. I wouldn't have objected had we got that earlier and had the opportunity to deal with it. Offhand, as I recall, the State's talking about going into great detail about when he changed the voting records and so forth. As I pointed out in the letter, Your Honor, and my primary point simply to that, that is basically irrelevant.

THE COURT: You're going to permit the Court then to consider this submission that was received by the Court at four o'clock on Friday and I must tell you that I was not here. I was on vacation.

[DEFENSE COUNSEL]: No, Judge, actually we're objecting to it. That's the underlying basis and of course the fact is on top of that it was only received at the 11th hour. And so based on that as well we object to the admission of that as information.

During the remainder of the proceeding, the sole objection to any portion of the records on hearsay grounds was limited to an objection to the State citing the police investigative report as evidence that Preto admitted to having a gun collection. Preto's attorney objected, but then had no objection to Preto providing testimony on the issue. Counsel advised the court, "[w]e can do that Your Honor, and we can have him explain his situation with his residence."

In any event, had counsel objected to the voting records on hearsay grounds, the records were nonetheless admissible as "Records of regularly conducted activity" under N.J.S.A. 803(c)(6) and as "Public records, reports, and findings" under N.J.S.A. 803(c)(8). Moreover, pursuant to N.J.R.E. 1005, the contents of those records were properly proved in accordance with N.J.R.E. 902, "Self-Authentication." Further, the nominating petition and firearms applications were admissible as party admissions pursuant to N.J.R.E. 803(b).

Preto also argues that his untimely application is not a disqualifier to obtaining the FPIC. While we agree that applying for a duplicate FPIC more than thirty days after he changed his residence is not one of the disqualifying factors under N.J.S.A. 2C:58-3, it is a disqualifying factor for issuance of a duplicate FPIC under N.J.S.A. 13-54-1.11(a), which provides in pertinent part, "[p]ersons shall apply for a duplicate firearms purchaser identification card . . . in the case of change of residence by the holder, within 30 days of such . . . change of address."

Here, there was substantial evidence in the record demonstrating that Preto had changed his residence from Mercer County to Burlington County twelve years prior to applying for the duplicate FPIC. Additionally, we note that a duplicate FPIC application requires no references or employment information, as does an initial FPIC. In our view, a twelve-year delay in complying with the change of address requirements, as Judge Almeida noted, is good cause to deny issuance of a duplicate FPIC. See Adler v. Livak, 308 N.J. Super. 219, 223 (App. Div. 1998) (recognizing that good cause for denial is not limited to the statutory disabilities listed in N.J.S.A. 2C:58-3(c)).

Next, Preto argues his present application does not contain any falsifications and his alleged past falsifications should not constitute a basis for denial. Judge Almeida reasoned that the falsifications reflected an effort to "subvert the determination of whether someone is fit to possess or carry firearms." The judge had the opportunity to evaluate and weigh Preto's testimony. We defer to his factual findings drawn from that testimony. Rova Farms Resort, Inc., supra, 65 N.J. at 484. In our view, the judge's conclusion that Preto's repeated falsification of prior firearms applications satisfies the good cause standard for denial of his application for a duplicate FPIC. Adler, supra, 308 N.J. at 223.

The remaining arguments advanced by Preto are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20070830

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