On appeal from Superior Court of New Jersey, Law Division, Union County.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...