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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...