November 8, 2007
IN RE: WEAPONS OF JOSEPH DULIO
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Sussex County, FO-19-155-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 24, 2007
Before Judges Axelrad and Messano.
Joseph Dulio, a former police officer, appeals from the Family Part's May 17, 2006 order denying his motion to: (1) rescind the consent order he entered into with the State on May 13, 2004 regarding the disposition of his personal weapon and custody of his firearms purchaser identification (ID) card; and (2) to declare him fit for duty. We affirm.
Dulio was employed as a police officer for the Borough of Stanhope. From 2001 to 2004, he was the subject of a series of domestic violence temporary restraining orders (TROs), all of which were ultimately dismissed. Pursuant to the February 22, 2004 TRO, Dulio was prohibited from possessing any and all firearms and was required to surrender his firearms purchaser ID card, duty weapon, and personal firearm (a 9 mm Sig Sauer) to the local authorities.
The restraining order was dismissed on February 26, 2004, pursuant to a Family Court consent order. However, the TRO led to an investigation of Dulio by the Sussex County Prosecutor's Office pursuant to Attorney General's Directive No. 2000-3.*fn1 The county prosecutor's office filed a forfeiture action in the Family Part pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-1 to -35 and N.J.S.A. 2C:58-3, and notified the Stanhope Police Chief that Dulio's duty weapon should be taken away pending a "fitness for duty" evaluation. The investigation included a psychological examination of Dulio by a licensed psychologist, Amie Wolf-Mehlman, on March 9, 2004. Dr. Wolf-Mehlman concluded that Dulio was not fit for duty, that he should not carry a weapon, and that he should engage in therapy. Based on this report and a review of Dulio's case history, by letter dated March 29, 2004, Prosecutor David Weaver informed Chief Pittigher that Dulio was not fit for duty, that he should not have access to any weapons, and that his firearms purchaser ID card should remain secured by the police department.
On April 20, 2004, Dulio and the Borough of Stanhope entered into an agreement in which he would remain on indefinite suspension pending completion of required mental health treatment. On May 13, 2004, Dulio, with the advice of counsel, entered into a consent order in the forfeiture action, agreeing to the forfeiture of his personal weapon, but allowing him sixty days to sell it in lieu of the forfeiture. The second paragraph of the consent order provided that:
[Dulio's] permit to purchase a handgun and/or Firearms Purchasers Identification Card shall remain in the custody and possession of the Sussex County Prosecutor's Office until such time as the Sussex County Prosecutor determines [Dulio] is "fit for duty" and [Dulio] is returned to active duty.
Dulio, as well as his attorney, signed the order, acknowledging their consent to its entry.
During suspension Dulio continued psychological treatment. On September 21, 2004, one of Dulio's treating psychologists, Stuart Strongin, Psy.D., issued a report opining that Dulio was fit to return to duty. Around that time, Chief Pittigher noted that Dulio had threatened another police officer. In a September 29, 2004 evaluation, Dr. Wolf-Mehlman concluded that Dulio was still not fit for duty without additional counseling. Based on a review of the above information, as well as a November 12, 2004 letter from Dulio's counsel, Prosecutor Weaver informed Chief Pittigher by letter dated November 16, 2004, that he had determined that Dulio was still not fit for duty nor could he have access to his weapons, including his duty weapon, or firearms purchaser ID card.
In November of 2004, the Borough of Stanhope initiated disciplinary proceedings to terminate Dulio's employment as a police officer based on allegations of his inability to perform duties due to his psychological condition and related charges. Following a departmental hearing, Dulio was removed from his position as a police officer effective April 4, 2005. The charges were apparently sustained by the Administrative Law Judge (ALJ), heard by the Merit System Board, and remanded to the ALJ for further consideration, which matter was pending as of submission of briefs in the present appeal.
In April 2006, two years after he signed the consent order in the forfeiture proceeding, Dulio filed a motion to have the order rescinded, arguing that continued weapons forfeiture was inappropriate in light of his recent psychological evaluation by Dr. Eugene Stefanelli declaring him fit for duty. Dulio thus urged that his permit to purchase a handgun and/or his firearms purchaser ID card should be returned to him, and the court should determine he was fit for duty and could return to active duty.
Following oral argument, by order of May 18, 2006, Judge McGovern denied the motion, holding that Dulio consented to the terms of the May 13, 2004 order, with the assistance of counsel, and had no basis to challenge it two years later. Moreover, under the terms of the consent order, Dulio agreed that the prosecutor would make the determination as to whether he was fit for duty and only then return his firearms purchaser ID card. The judge noted that after reviewing the evaluations and applicable documents, the prosecutor made a discretionary determination that Dulio was not "fit for duty." Judge McGovern further held that the Family Part did not have jurisdiction to make a determination as to whether Dulio was fit for duty and able to return to active police status. Rather, that matter was appropriately proceeding in an alternate administrative forum.
On appeal, Dulio argues there was no meeting of the minds in the consent order regarding whether he waived his right to continue his employment as a police officer or whether he was, in fact, surrendering that decision to a psychologist. Dulio claims the intention of the agreement was to allow him to receive psychological treatment and return to active duty and that such determination should be made after a plenary hearing in which the court has the opportunity to listen to the testimony and weigh the credibility of all the psychologists, rather than merely accept the prosecutor's determination of Dulio's ability to continue in his chosen profession as a police officer on the basis of affidavits and reports. Dulio further contends the prosecutor cannot prevail in any forfeiture proceeding because it is unable to prove by a preponderance of the evidence that the seized weapon was connected to an unlawful activity which amounts to an indictable crime, connected to an intended but not yet committed offense of a similar magnitude, or otherwise constitutes a threat to the public in general or a person in particular. In re Return of Weapons of J.W.D., 290 N.J. Super. 451, 461 (App. Div. 1996), certif. granted, 146 N.J. 496, aff'd in part and rev'd on other grounds, 149 N.J. 108 (1997). Finally, Dulio claims that since all TROs were dismissed and no substantive charges were brought against him, the court's decision is inconsistent with the plain meaning of the PDVA, which provides for the return of weapons in such situations.
The State counters that Dulio's motion to rescind the prior court order is untimely and barred by his and his counsel's consent to the express terms of the order in lieu of challenging the State's petition for forfeiture. The State further contends that by entering into the consent order, Dulio waived his right to a summary hearing pursuant to the PDVA, N.J.S.A. 2C:25-21d(3), and chose not to have a determination made that he was "unfit" or that he "pose[d] a threat to the public in general or a person or persons in particular." Instead, he consented to either sell his personal weapon to a registered firearms dealer or the firearm would be forfeited to the State. Regardless, the State argues it has satisfied its burden of proof for forfeiture under the PDVA. Finally, the State argues that the Family Part cannot affect Dulio's status as a police officer, i.e., his fitness for duty and his right to possess a duty weapon, as in a petition for weapons forfeiture the jurisdiction of the Family Part is limited to an individual's personally owned weapons, and the decision to rearm a law enforcement officer who was involved in a domestic violence incident is within the sole discretion of the county prosecutor.
We note at the outset that the Sussex County Prosecutor's office was not a party to the April 20, 2004 agreement between Dulio and the Borough of Stanhope. As such, the terms of that agreement cannot be imposed upon the prosecutor's office in setting forth the parameters for its determination of whether Dulio would be considered "fit for duty" for purposes of returning his firearms purchaser ID card in accordance with the second paragraph of the May 13, 2004 consent order. Moreover, in support of his argument that there was no meeting of the minds regarding the provisions of the consent order, Dulio submitted his attorney's certification, the same one that was submitted in a Law Division action instituted by the Borough of Stanhope against Dulio, and in which the Sussex County Prosecutor's Office was not a party (Docket No. SSX-L-670-04). There Dulio's attorney certified that: there was not a meeting of the minds with respect to the Agreement [of April 20, 2004] [as] [t]he intention of the Agreement was to allow Mr. Dulio to receive psychological treatment and return to active duty [but] [t]he intention of the Borough apparently changed, and instead was to have Officer Dulio removed from the Department.
The argument that Dulio advances in this regard and his reliance on the attorney's certification in the context of the consent order in the Family Part forfeiture action is thus inappropriate and misplaced.
As a result of the TRO and seizure of Dulio's weapons, the prosecutor instituted a forfeiture action under the PDVA of Dulio's personal weapons and his firearms purchaser ID card.
With the advice of counsel, Dulio voluntarily chose to forego a hearing rather than risk the possibility of a finding that he was unfit or posed a threat to others that would justify the forfeiture, and, instead, entered into the May 13, 2004 order. Whether Dulio's motion to vacate that order filed two years later is viewed as a motion for reconsideration under Rule 1:7-4 (twenty days), an appeal from the order under Rule 2:4-1 (forty-five days), or a motion for relief from judgment or order under Rule 4:50 (within a reasonable time and not more than one year after the order), it is clearly untimely and circumvents the very essence of the consent order.
Based on Dulio's voluntarily entering into the consent order and waiving the summary hearing, we need not address the merits of the State's proofs to support the forfeiture petition. We note, however, that weapons confiscated in connection with domestic violence charges do not necessarily need to be returned to an owner even if no criminal or domestic charges remain and the domestic violence situation abates where the owner poses a threat to the public or a particular person. J.W.D., supra, 290 N.J. Super. at 461. "[T]he voluntary dismissal of a domestic violence complaint does not mandate the automatic return of any firearms seized by law enforcement officers in connection therewith." State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004).
We are also satisfied the trial judge properly assessed the limits of his jurisdiction. As he noted, the Family Part was not the proper forum to determine whether Dulio was fit to return to active duty or whether the prosecutor abused his discretion in determining that Dulio was not fit for duty and in refusing to rearm him.