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State v. Heritage

December 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD HERITAGE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FO-21-99-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued October 23, 2007

Before Judges Payne and Messano.

After the issuance of a final restraining order (FRO) authorized by the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35 (PDVA), the State of New Jersey moved to forfeit defendant Donald Heritage's firearms purchaser identification (FPID) card and a cache of eight weapons previously seized. By the time a plenary hearing was held on the State's application, defendant's wife, whose complaint led to the FRO, had successfully sought dismissal of the restraining order. On November 15, 2001, after hearing the testimony of defendant and his wife on the issue, Judge Amy O'Connor concluded that despite the dismissal of the FRO, defendant posed "a risk" and was "dangerous to others." On December 20, 2001, the judge entered an order (the order) forfeiting the weapons and defendant's FPID card pursuant to N.J.S.A. 2C:25-21(d)(3). Defendant's motion for reconsideration was denied on February 1, 2002.

In August 2006, defendant sought relief from the order by moving, pursuant to Rule 4:50-1(e), to vacate the order because circumstances had changed since its entry, and because it was "no longer equitable that the . . . order should have prospective application." Ibid. In support of the motion, defendant argued the circumstances that gave rise to the finding of domestic violence had been eliminated. He and his wife had since divorced and there was no longer any animosity between the parties. His now ex-wife filed a certification in support of the motion noting that she and defendant had "ongoing, cordial contact" since the divorce, that she had no "objection to the return of [d]efendant's seized firearms and/or [his] [FPID card]," and that she had "no reason to believe that [d]efendant [would] physically harm [her] or anyone else." Defendant's motion was also supported by a report from a psychiatrist who opined that defendant was not longer a danger to himself or others.*fn1

Defendant also relied upon a change in N.J.S.A. 2C:58-3 that he claimed, in conjunction with the continued existence of the order, denied him the ability to secure another FPID card. Effective January 14, 2004, the Legislature adopted N.J.S.A. 2C:58-3(c)(8), which provides that, "No handgun purchase permit or firearms purchaser identification card shall be issued . . .

[t]o any person whose firearm is seized pursuant to the [PDVA] and whose firearm has not been returned." Defendant argued, therefore, that the order should be vacated because its continued prospective application denied him the ability to obtain another FPID card and hence was inequitable.*fn2

After hearing oral argument on two separate days, Judge O'Connor denied defendant's motion. In a written letter opinion dated November 16, 2006, citing the Supreme Court's decision in F.B. v. A.L.J., 176 N.J. 201 (2003), the judge concluded that in order to prevail on a motion brought pursuant to Rule 4:50-1(e), defendant needed to demonstrate not only a change in circumstances, but also that he "would suffer [an] extreme and unexpected hardship" by the prospective application of the order, in this case, the inability to get a FPID card. She paraphrased defendant's expression of the significance of this hardship as follows:

[U]nless the defendant is able to get a [FPID card], he will not be able to get a gun and thus he will not be able to exercise his rights under the Second Amendment of the United States Constitution and such rights should not be taken away from him "except sparingly."

Judge O'Connor concluded that she "d[id] not need to address whether or not there has been a change in circumstances since the entry of the December 20, 2001 Order." Instead, she reasoned defendant had failed to "show in the certifications that he filed in connection with his motion how he will suffer extreme and unexpected hardship if he is not permitted to obtain a [FPID card]." Citing United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), and Burton v. Sills, 99 N.J. Super. 516 (Law Div. 1967), aff'd 53 N.J. 86 (1968), she observed that, "[A] citizen does not have a personal, individual constitutional right to bear arms."*fn3 She denied defendant's motion and this appeal ensued.

Defendant argues Judge O'Connor erred by failing to find the existence of significant factual and legal changes since the entry of the order. He further contends that he was denied due process because Judge O'Connor failed to conduct a plenary hearing on his application. Defendant claims that the judge applied N.J.S.A. 2C:58-3(c)(8) "retroactively" because it was not in effect at the time the order was entered, thus giving the law ex post facto effect. Lastly, defendant claims the balance of the disqualifiers contained in N.J.S.A. 2C:58-3(c) deal with an applicant's present circumstances; only subsection (8) improperly disqualifies an applicant for a FPID card based upon past conduct.

We have considered these arguments in light of the record and applicable legal standards. We affirm the denial of defendant's motion to vacate the order substantially for the reasons set forth in Judge O'Connor's written decision. We add only these brief comments.

The relief provided by Rule 4:50-1 is to be granted sparingly. Pressler, Current N.J. Court Rules, comment 1 on R. 4:50-1 (2007); Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283-84 (1994). "The decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity." F.B., supra, 176 N.J. at 207. An appellate court will reverse ...


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