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In re Denial of the Application of Hammer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2008

IN THE MATTER OF THE DENIAL OF THE APPLICATION OF JAMES HAMMER FOR A FIREARMS PURCHASER IDENTIFICATION CARD CHANGE OF ADDRESS.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2008

Before Judges Parker and R. B. Coleman.

Petitioner James Hammer (Hammer) appeals from a March 6, 2006 order denying his application for a Firearms Purchaser Identification Card Change of Address. In light of the arguments advanced on appeal, we reverse and remand in accordance with the instructions provided herein.

We have previously encountered this matter on appeal. In re Denial Of The Application Of James Hammer For A Firearms Purchaser Identification Card Change Of Address, No. A-4621-04T1 (App. Div. Dec. 12, 2005). In our opinion on that occasion, we reversed and remanded an order of the Law Division, which had affirmed a determination by the Lacey Township police chief to deny Hammer's application for re-issuance of a New Jersey Firearms Purchaser Identification Card. We instructed the trial court as follows:

Because there is a cloud of confusion concerning the basis for the destruction of the purchaser identification card, other than for a change of address, we remand to the trial court. The court should determine whether the handgun and firearms purchaser identification card would have been returned to Hammer had he not agreed to surrender his purchaser identification card in reliance upon the representation made by the prosecutor. The trial court must draw its own conclusion as to whether there is sufficient credible evidence offered by the State that Hammer otherwise poses a threat to the public health, safety or welfare.

State v. One Marlin Rifle, 319 N.J. Super. 359, 372 (App. Div. 1999). [Id. (slip op. at 5).]

Hammer's weapons had been confiscated pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. In accordance with N.J.S.A. 2C:25-21d(3), the Ocean County Prosecutor's Office filed a petition to have a hearing to determine whether Hammer's weapons should come into the prosecutor's possession. The record contains limited information pertaining to that hearing. What is known is that it resulted in an order, in which Hammer consented to sell a handgun, turn over his firearms credentials and destroy another weapon. At some time prior to entering the consent order, Hammer had been informed by a prosecutor that his purchaser identification card was no longer valid because he had moved to a different address than the one indicated on his card, rendering it invalid. The prosecutor further informed Hammer that he could surrender it and apply for a new one. At the time Hammer signed the consent order, he was not informed that by agreeing to surrender his weapons and credentials, he might be deemed ineligible for another card because they had been seized in connection with an alleged domestic violence incident and not returned. See N.J.S.A. 2C:58-3c. Hammer later submitted a Firearm Purchaser Identification Card Change Of Address Application, which was denied, ultimately leading to this appeal.

On remand, Ocean County Assistant Prosecutor Andrew Megill testified that weapons and a purchaser identification card would not be returned to an individual if that person had a conviction, including a disorderly persons offense arising out of domestic violence. He further stated that weapons and a card would not be returned to an individual while simple assault charges were pending. According to Megill, if charges were pending against an applicant, his or her application would be adjourned until the pending case was resolved in municipal or criminal court.

Relying on the representation of Megill, the remand judge concluded that: "It's clear, abundantly clear, on September 24, 2000 [the date Hammer surrendered his weapons and card], it [the card] would not have been returned." At best, the matter should have been adjourned. The judge did not consider, however, what would have occurred if an adjournment had been granted, allowing the process to play out as it did, resulting in the dismissal of the domestic violence charges without any finding of assault and without the entry of a Final Restraining Order against Hammer. The judge did not make a decision on the merits of the case or answer the question posed by our remand: whether or not Hammer's weapons and card would have been returned to him, if the totality of the facts and circumstances were considered. No determination was made as to whether Hammer posed a threat to the public health, safety or welfare. Instead, the judge only considered the likely disposition of the matter as of September 20, 2004, when unresolved charges, which ultimately were resolved favorably to Hammer, were still pending.

That response to our opinion ignored our direction that "[t]he trial court must draw its own conclusion as to whether there is sufficient credible evidence offered by the State that Hammer otherwise poses a threat to the public health, safety or welfare." In re Hammer, No. A-4621-04T1 (slip op. at 5). "[I]f the Appellate Division remands to the trial court with instructions, the trial court has no choice but to follow those instructions . . . ." Pressler, Current N.J. Court Rules, comment on R. 2:11-3 (2008). "It is the peremptory duty of the trial court, on remand, to obey the mandate of the appellate tribunal precisely as it is written." Jersey City Redevelopment Agency v. Mack Props. Co., 280 N.J. Super. 553, 562 (App. Div. 1995); see also Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) ("[A] trial judge has the responsibility to comply with pronouncements of an appellate court."). Because the remand judge did not fully comply with our instructions, we reverse and remand so that the judge may determine whether or not Hammer's weapons and card would have been returned had the case been assessed on its merits, i.e., whether Hammer otherwise posed a threat to the public health, safety or welfare. See One Marlin Rifle, supra, 319 N.J. Super. at 372; N.J.S.A. 2C:25-21d.

Reversed and remanded.

20080519

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