May 29, 2008
IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO ANTHONY PETICCA.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FO-02-120-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 2, 2008
Before Judges Wefing and R. B. Coleman.
Appellant Anthony Peticca appeals from a December 12, 2006 order forfeiting his weapons and revoking his Firearms Purchaser Identification Card. We have considered the contentions advanced on appeal, and we affirm the order of the trial court.
On June 2, 2004, the Ridgefield Police Department arrested Peticca and charged him with terroristic threats, contrary to N.J.S.A. 2C:12-3a. On the morning of the incident, Peticca was preparing to go to the shooting range as he did every morning.
During the course of a disagreement over the need for his wife, Gail, to keep a doctor's appointment, Peticca placed his hands on top of guns on a table and commented to Gail, whose health was deteriorating due to alcoholism, that she should take one of the guns and "blow [her] brains out." Afterwards, Peticca left to go to the shooting range.
Later that day, Gail's sister, Jane Avjean, and Gail's stepdaughter, Laura Ciccia, accompanied her to the doctor's office. There, Avjean and Ciccia discussed the events that transpired between Peticca and Gail and asked Gail's doctor to call the police because they were concerned that Gail had been a victim of domestic violence. Gail allowed her doctor to call the police. The three women then drove to the Ridgefield Police station at which time Ciccia and Avjean provided written statements. Ciccia indicated the following:
There are many instances of mental and physical abuse that has occurred in the Peticca household. I have been present when a gun was put to my mother's head. Today, my father placed a gun on the table (loaded gun) and told my mother to shoot her brains out. My mother has become an alcoholic due to his abuse. I have suffered many years of abuse from my father. As soon as I left his house the abuse stopped. My mother needs to leave him so the abuse stops.
Avjean's statement was as follows:
I am her [Gail's] sister and I witnessed Tony Peticca physically punch her in the nose and face. Heard that Tony had sliced leg with a knife before married. I have seen him beat his daughter as a child with a belt, I have heard his daughter admit to me that he has pointed a gun to Gale*fn1 and Laura's head. And most recently today 6-2-04 Gale admitted to me and Laura that Tony has pulled a loaded gun on the table and asked Gale to blow out her brains because she's not feeling well. I have seen bruises on her body over the years with the same excuses that were not convincing. Gale has been an alcoholic due to this continued physical and mental abuse. She is living the life of a battered woman and fears anything bad happening to Tony.
Although Gail did not file a complaint or seek a restraining order under the New Jersey Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, (the Act), Peticca was arrested and charged with making terroristic threats. In connection with that charge, Peticca consented to participate in Pretrial Intervention (PTI) and the indictment against him was dismissed. Nevertheless, in accordance with the Act, N.J.S.A. 2C:25-21, the Bergen County Prosecutor moved for the forfeiture or other disposal of weapons seized from Peticca at the time of his arrest. Upon completion of PTI, Peticca requested to have a hearing regarding the return of his weapons.
At the hearing, the State called six witnesses to testify:
(1) Avjean; (2) Ciccia; (3) Gail; (4) Investigator Jason Wejnert, a Ridgefield Police Officer that investigated the incident and authored a report in connection with the incident; (5) Chief John Bogovich, an officer involved in the investigation of the incident and a personal friend of Peticca; and (6) Michelle Sherer, a nurse practitioner from Gail's doctor's office that called the police on the day of the incident. Peticca testified on his own behalf and presented four other witnesses: (1) Dr. Donald Oh, a psychiatrist who conducted a psychiatric evaluation of Peticca; (2) Edward J. Catherina, a neighbor offered as a character witness; (3) Jim Pashall, a friend offered as a character witness; and (4) Alfred Canino, another friend testifying to Peticca's character. Rather than repeating the specific testimony of all of the witnesses, suffice it to say that the testimony produced at trial was inconsistent and was elicited through leading questions and hearsay. At trial, both Avjean and Ciccia recanted their written statements that Peticca had committed acts of domestic violence against Gail. Both women claimed that they were pressured by the police to provide the written statements recited above and that their anger towards Peticca at that time prompted them to make such statements.
Evaluating the conflicting evidence, the trial court refused to believe Avjean's and Ciccia's trial testimony, accepting their written statements as true. In a decision delivered from the bench, the court stated:
This case began right off the bat with Ms. Avjean and then [Ciccia] testifying. I recall thinking to myself at the time it almost caught the Court off guard as to what are these people testifying to? They were evasive. In my opinion, they were dishonest. And they took an oath and they got up there and it was very questionable if they told the truth . . . .
At the police department, in their own handwriting, they wrote statements against [Peticca]. And it's very difficult for this Court to believe that to be in a doctor's office and tell [Sherer] that [Gail] cannot go home to [Peticca] because [Peticca was] a threat to [Gail]. Put her in the hospital or do whatever you have to do because [Peticca] is a threat . . . .
Now can you imagine at eleven p.m. at the Ridgefield police station, [Ciccia] is sitting there writing this in her own handwriting and just telling lies. Its pretty hard to imagine that, Mr. Peticca.
I think [Ciccia] was telling lies when she came here and she could be doing so because maybe it's going to lead to more turmoil in the family, or maybe now the family's patched things up and they feel that everybody's gotten over the abusive periods and you're a new man. I really don't know. But . . . they testified here that they didn't recall these statements, they're not sure if they made them, they might have signed them, they really don't know when, and that they didn't know this.
The court continued:
You know, the funny thing is that Mr. Peticca, in almost denying all of this, admits that on this occasion, 6/2/04, you did put a gun on the table and made the comment pretty much the way they're saying. . . . [Y]ou concede the incident which occurred on June 2nd.
But at the end, [the prosecutor's] right, they said . . . Investigator Bogovich, what do you think about Mr. Peticca and his guns? And he said, well, from a law enforcement prospective, he'd rather him not have them back in the house. The Court found him to be credible.
Concluding its decision, the court held as follows:
As a result of this, the Court finds that based on S-1 and S-2 [Avjean's and Ciccia's written statements], based on the testimony of Chief Bogovich, based on Investigator Wejnert's testimony of the circumstances that gave rise to the investigation of this incident and the statements. The fact that in one of the worst moments in your wife's life in terms of her health, her well being, her safety, that you dealt with it by sliding a loaded gun in front of her and telling her to shoot herself . . . .
As a result of this and the standard of proof is by a preponderance of the evidence, the Court finds by a preponderance of the evidence, it would be contrary to the interest of the public health, safety and welfare to return these weapons or the Firearm Purchaser's ID card. So the Court's going to grant the State's application for forfeiture.
Although we recognize that this trial was by no means perfect, we are bound to issue our decision with the appropriate standard of review in mind. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999) (citing State v. Jamerson, 153 N.J. 318, 341 (1998)).
"Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice." In re Return of Weapons To J.W.D., 149 N.J. 108, 117 (1997) (internal citation omitted); see also Laurtek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 541 (App. Div. 1994) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)) ("[I]n our review of the results of a bench trial the factual findings of the trial judge, his assessments of credibility, and the discretionary decisions he may have made are entitled to great deference.").
It is clear that at some point in time, either at the police station on June 2, 2004, or during their testimony at trial, Avjean and Ciccia were not truthful. We, however, are not in a better position than the trial judge to make a determination as to which statements were more credible. Our review of the witnesses' testimony leads us to believe that the trial court's determination, that Avjean's and Ciccia's written statements were more credible than their trial testimony, was supported by the evidence. An appellate court may make its own findings and conclusion if a trial court's credibility evaluation is undoubtedly mistaken. Laurtek Corp., supra, 276 N.J. Super. at 541. In light of the record and the testimony produced at trial, the present case does not warrant such a conclusion.