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In re Girolamo Stucci for Revocation of Firearms Purchaser Identification Card And Forfeiture of Weapons


January 22, 2008


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

Per curiam.


Submitted October 31, 2007

Before Judges Cuff and Lihotz.

Appellant Girolamo Stucci appeals from the following three Law Division orders: (1) an order dated July 20, 2006, denying Stucci's application for a duplicate Firearms Purchaser Identification Card (FPIC); (2) an order dated October 20, 2006, denying Stucci's motion for reconsideration of the July 20, 2006 order; and (3) an order dated October 20, 2006, granting the State's motion to revoke Stucci's FPIC and to forfeit his weapons.

After considering testimony about a 1999 domestic violence incident between Stucci and his son, the trial judge declined Stucci's request for a duplicate FPIC. Upon the State's motion, the judge ordered the surrender of any previously issued FPIC and forfeiture of Stucci's weapons because Stucci posed a threat to the safety and welfare of the community. Stucci argues the State is barred from relying on the alleged domestic violence incident because his son admitted he lied to the 911 operator, the domestic violence complaint had been dismissed, and the weapons returned in 1999. We disagree. Because there was no prior adjudication in 1999 of whether Stucci was disqualified to retain a FPIC and his firearms, a factual review of that past incident may be made and may form a basis for a current finding of disqualification to possess firearms.

The Borough of Kenilworth issued a FPIC to Stucci on November 26, 1972. Stucci moved to Cranford in 1999. On January 22, 2004, Stucci filed a request with the Cranford Police Department for a duplicate FPIC based on a change of address.

Eric Mason, Cranford's Chief of Police, made "an independent determination based on his own investigation and evaluation," as required by N.J.A.C. 13:54-1.11(c). In re Application of Boyadjian, 362 N.J. Super. 463, 477 (App. Div. 2003). In a letter dated June 9, 2004, Mason denied Stucci's FPIC application because Stucci failed to apply for a duplicate card within thirty days of his change of residence, N.J.A.C. 13:54-1.11(a), and Mason determined Stucci posed a threat to the safety and welfare of the community. N.J.S.A. 2C:58-3(c)(5) and N.J.A.C. 13:54-1.5(a)8.

Stucci appealed to the Law Division on July 12, 2004. As a result of a scheduling mistake, the Law Division hearing was not held until July 20, 2006.

At the hearing, Officer Patrick Fay testified that after the receipt of a domestic violence call, he responded as a backup officer to Stucci's home on September 19, 1999. Stucci's son, Vito, had called 911 reporting an altercation with his father. In the call, Vito stated: "My father has a gun, please come fast." When Fay arrived, Stucci was lying on the ground handcuffed, "yelling and screaming," while surrounded by three police officers.

Fay told Stucci he was being arrested "because he had threatened his son with a shotgun." Fay testified that Stucci replied: "You're arresting me for that. My son, Vito, he punched me in the mouth yesterday and chipped my tooth." Stucci did not deny threatening his son. At the time of arrest, the Cranford police seized eleven weapons from Stucci's residence. N.J.S.A. 2C:25-21(d)(1)(a) and (b).

During the hearing on his FPIC application, Stucci did not testify. Vito was called as a witness on behalf of his father. Vito said his father did not have a gun during the September 19, 1999 argument, contrary to what he told the 911 operator. Vito acknowledged he had recanted his statements and the domestic violence complaint was dismissed. Also, the State did not proceed with its complaint for forfeiture of Stucci's weapons and FPIC. A November 5, 1999 order provided that Stucci's weapons would be returned upon presentation of a valid FPIC and installation of trigger locks on the guns.

The Superior Court judge made findings and conclusions. Despite Vito's testimony, he found Stucci admitted he had had an argument with his son while he was "cleaning his gun," a shotgun,*fn1 and "there was some bad blood between the father and son for which the son was either showing such disrespect to his father that the father lost control of the situation, or the father overreacted to whatever the son was doing." The court denied Stucci's application for an FPIC on two grounds, explaining:

The first ground is that the Court finds that there is enough here and it has to be done by a preponderance on the evidence . . . and there is a real safety situation here.

Now[,] it may very well be that the son and the father have matured so that the son does not show disrespect and the father does not overreact now five years later and, hopefully, that is the case. But the police chief who has to protect society wants to make sure that whatever the confrontation again that this does not happen. And I think the chief was right.

Plus, in a strict compliance of the statute which was [N.J.S.A. 13:54-1.11(c)] indicates that it has to be done within 30 days. That was not done.

Subsequently, the State filed a motion for forfeiture of Stucci's weapons, pursuant to N.J.S.A. 2C:58-3(c)(5) because he did not have a valid FPIC and sought his surrender of the previously issued FPIC. Stucci filed a cross-motion for reconsideration of the July 20, 2006 order. The trial judge denied Stucci's motion reiterating his prior determination, stating:

[T]he evidence that was presented to the officers at the scene and which was then reviewed by the police chief indicates that something had happened, which was a very, serious by nature[;] there was a father and a son who had come into a confrontation[,] which had escalated to the point where the father felt compelled to use the weapon to threaten his son to assert his authority as a father, and, the Court finds those factual findings were appropriate by a preponderance.

The trial judge reserved his decision on the State's motion, framing the issue as whether forfeiture is compelled after the court denied an application to issue an FPIC when finding the State proved an issue of public safety was present. And further, whether the State is estopped from advancing the public safety argument to support forfeiture because the weapons at the time of the incident were returned and no further incidents have occurred for almost seven years.

Judge Heimlich issued a letter opinion granting the State's request for forfeiture dated October 20, 2006. He again based his determination on the prior finding that Stucci presented a current risk to the public health, safety and welfare as a result of his conduct in 1999.

On appeal, Stucci maintains that "no legitimate basis exists for the denial of [the duplicate FPIC]." He presents two arguments. First, Stucci contends that the initial domestic violence allegations were "admitted to have been falsely made" and "cannot form a basis for the denial of the issuance of the [FPIC]" because there is "no evidence that [Stucci] poses a threat to the public or any person." Stucci reasons that because his weapons were returned upon dismissal of the domestic violence complaint, the State is barred from re-litigating the forfeiture issue. Second, Stucci argues that since he was issued a FPIC in 1972, he cannot be denied a duplicate permit to reflect his current address merely because he failed to make his request within thirty days of his relocation.

To apply the doctrines of collateral estoppel or res judicata, an issue between the parties must have been fairly litigated and determined preventing relitigation of the same matter. First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007). This serves the important policy goals of "'finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness[.]'" Ibid. (quoting Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)).

The Supreme Court has articulated a five-pronged test to foreclose relitigation of an issue. Id. at 352; Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005); In re Estate of Dawson, 136 N.J. 1, 20-21 (1994). The party asserting application must show that: "(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding." First Union, supra, 190 N.J. at 352.

In this case, we need not examine each factor to reject Stucci's argument of application of the doctrine because the only adjudication of whether Stucci's conduct in 1999 satisfactorily subjects him to forfeiture of his guns occurred at the July 20, 2006 hearing. Therefore, there was no prior adjudication of the issue in a prior proceeding.

A common past practice was to return seized weapons once a domestic violence complaint was dismissed. See In re Return of Weapons to J.W.D., 149 N.J. 108, 115 (1997) (statutory anomaly in Domestic Violence Act which did not expressly permit the court to authorize the prosecutor to retain a defendant's weapons on dismissal of the domestic violence complaint conflicted with legislative intent). On November 5, 1999, the previously seized weapons were returned to Stucci when the domestic violence complaint was dismissed, without a determination of whether he "pose[d] a threat to public health, safety or welfare" of the community. "For a judicial decision to be accorded res judicata effect, it must be a valid and final adjudication on the merits of the claim." Velasquez v. Franz, 123 N.J. 498, 506 (1991). Accordingly, we conclude issue preclusion is inapplicable. We now review the trial judge's denial of the duplicate FPIC and the grant of forfeiture.

Our standard of review requires that we accept a trial court's findings of fact that are supported by substantial credible evidence. J.W.D., supra, 149 N.J. at 116 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Id. at 117. Thus, we will not disturb a trial court's determination unless its findings "are so wholly insupportable as to result in a denial of justice." Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). However, we do not afford the same level of deference to a trial court's legal conclusions. Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).

N.J.S.A. 2C:58-1 to -18 enumerates the licensing and other provisions relating to firearms. The statute reflects "New Jersey's commitment to firearm safety [which] is unrivaled anywhere in the nation." N.J.S.A. 2C:58-2.2(a). Identification of who may obtain a FPIC is found at N.J.S.A. 2C:58-3(c). Generally, an applicant's request "shall not be denied" except that "[n]o handgun purchase permit or [FPIC] shall be issued: . . . . (5) [t]o any person where the issuance would not be in the interest of the public health, safety or welfare[.]" N.J.S.A. 2C:58-3(c)(5).

"The Legislature [has] committed the original decision as to whether a firearms purchaser identification card should be granted to the discretion of the chief of police . . . subject to standards which have been adjudged constitutionally adequate." Weston v. State, 60 N.J. 36, 43 (1972). "Any [FPIC] may be revoked by the Superior Court of the county wherein the card was issued, after hearing upon notice, upon a finding that the holder thereof no longer qualifies for the issuance of such permit." N.J.S.A. 2C:58-3(f).

Further, the statute authorizes the Attorney General to "promulgate rules and regulations to effectuate [its] purposes" N.J.S.A. 2C:58-2.6. Those regulations appear at N.J.A.C. 13: 54-1.1 to -7.1. Relevant regulations require that a FPIC remains valid "until such time as the holder becomes subject to any of the disabilities set forth by law and this subchapter pertaining to an applicant's eligibility." N.J.A.C. 13:54-1.7(a). To replace a lost, stolen or mutilated FPIC or in the case of a change of residence, N.J.A.C. 13:54-1.11(a) provides that "[p]ersons shall apply for a duplicate [FPIC] . . . within 30 days of such loss, theft, mutilation or change of residence."

In this matter, Chief Mason denied Stucci's application based on subparagraph (5) of N.J.S.A. 2C:58-3(c). Mason's decision was bottomed on the fact that Stucci threatened Vito during the 1999 domestic violence incident while holding his shotgun. Stucci argues that Vito recanted not only the claim of domestic violence, but also insisted that the presence of a gun was a lie. Therefore, Stucci reasons that those facts cannot be the basis of denial of his request for a duplicate FPIC.

Judge Heimlich properly considered the facts surrounding the initial domestic violence incident. Notwithstanding Vito's protests to the contrary, he found that the evidence revealed Stucci used a shotgun to reinforce his authority over his son during their altercation, and concluded that these facts provided a sufficient basis to discredit Stucci's fitness for possession of a weapon. This conclusion rested on credibility determinations made after considered assessment of the witnesses' testimony and demeanor during the hearing, to which we defer. See Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (stating the appellate court should defer to decisions based on trial judge's "feel of the case"). After our review, we concur with Judge Heimlich that Stucci's single misuse of a firearm affords sufficient credible evidence from which to conclude that Stucci posed a threat to the public health, safety or welfare. Accordingly, we affirm the trial court's forfeiture ruling.

Based upon this determination, we need not address the error asserted in the trial judge's reliance on a procedural basis for denial of a duplicate FPIC.


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