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In re Appeal of Mischa Caminiti From Denial of Firearms Purchaser Identification Card

December 12, 2007

IN THE MATTER OF APPEAL OF MISCHA CAMINITI FROM DENIAL OF FIREARMS PURCHASER IDENTIFICATION CARD*FN1


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 23, 2007

Before Judges Skillman and LeWinn.

On May 31, 2006, the Chief of Police of the Borough of Peapack and Gladstone denied Caminiti's application for a Firearms Purchaser Identification Card. Caminiti filed an appeal with the Superior Court, Law Division, Criminal Part. Following a hearing on March 5, 2007, the trial judge issued an order denying the application. This appeal followed.

Having reviewed the entire record, we are convinced the trial judge erred by relying exclusively upon hearsay evidence as the basis for his denial of the application. For the reasons set forth, we reverse and remand this matter for a new hearing and for reconsideration of the denial of the application based upon the evidence presented at that hearing.

Our courts have long recognized that the "function of the Police Chief as the local administrative official charged with responsibility for the original decision to grant or withhold the firearms purchaser identification card involves largely the exercise of an informal discretion." Weston v. State, 60 N.J. 36, 45 (1972). In exercising that discretion, however, the police chief is obligated "to conduct a good faith investigation . . . and to issue the identification card unless good cause for denial thereof appear[s.]" Id. at 43. A statutory presumption in favor of issuing such cards is set forth in N.J.S.A. 2C:58-3c which provides: "No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a . . . firearms purchaser identification card[.]" Except where any of the specified statutory "disabilities" is found to exist, the police chief "in all other cases, shall upon application, issue to any person qualified under the provisions of subsection c. of this section a...firearms purchaser identification card." N.J.S.A. 2C:58-3d.

An appeal to the Superior Court from a denial must be heard de novo.

"De novo in this context contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court. Such a judicial review compensates constitutionally for procedural deficiencies before the administrative official . . . .[T]he existence of good cause for the denial must represent a burden to be carried by the Police Chief, and to be established by a fair preponderance of the evidence." [Weston, supra, 60 N.J. at 45-46 (emphasis added).]

The following facts of record are pertinent to our disposition of this matter. Caminiti filed his application for a firearms purchaser identification card with the police department on October 6, 2005. At that time he was 22 years old, employed as a restaurant chef, and had no prior convictions.

Caminiti submitted reference forms from three individuals, one of whom, Paul Igenito, was his boss at the restaurant. Another, Joseph Caparaso, was subsequently disregarded because he stated he did not know applicant that well nor had he spent much time with him. The third reference form was from Thomas Cadmus who had known applicant for ten years and described him as "the type of person who when [he] said he will do something, does it[,] very trustworthy, and would always help others before himself. He is also a dedicated professional, as a chef." On the form, Cadmus answered "yes" to the question of whether applicant was a person of good moral character and behavior.

Igenito, who had known applicant for fifteen months, answered "no" to that question on the form, adding: "I find the applicant to be somewhat of an intelligent young man, although he does seems to carry with him a certain amount of anger and social rage."

Corporal Ferrante of the police department conducted a telephone interview with Igenito upon receipt of his reference form; Ferrante sent a memorandum to the police chief summarizing that telephone conversation in which Igenito commented that he did not feel Caminiti should be permitted to own a firearm. Igenito told Ferrante that he noticed a decline in Caminiti's character several months earlier, prior to being let go from the restaurant.

Based on this information, the police chief denied Caminiti's application. In a letter dated May 31, 2006, the police chief informed Caminiti: "[A] final determination has been made to disapprove your ...


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