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In re Seizure of Weapons of Mancuso

May 30, 2008

IN THE MATTER OF THE SEIZURE OF WEAPONS OF FRANK MANCUSO


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-101-05A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 12, 2008

Before Judges Parrillo, S.L. Reisner and Gilroy.

Frank Mancuso (Mancuso or defendant) appeals from a trial court order dated December 8, 2007, ordering forfeiture of Mancuso's collection of nine assorted firearms, plus ammunition and knives, and revoking his firearms purchaser identification card. We affirm.

I.

This matter had its genesis in a domestic violence complaint filed by Mancuso's former girlfriend, Elaine Sabia. After a plenary hearing at which Sabia testified and was cross-examined at length by Mancuso's attorney, Judge Lipton found Sabia to be a credible witness and found that defendant had committed domestic violence by pointing a shotgun at Sabia. Accordingly, the judge entered a final restraining order (FRO) on May 24, 2004. We affirmed that order on Mancuso's appeal. Sabia v. Mancuso, Docket No. A-5646-03 (App. Div. June 24, 2005).

When Sabia filed her domestic violence complaint, the police confiscated Mancuso's weapons. Mancuso was also indicted based on Sabia's charge that he pointed the gun at her. However, after the FRO was entered, Sabia moved to Connecticut and refused to further participate in any prosecution of Mancuso. Therefore, the State dismissed the indictment. Mancuso then sought the return of his weapons.

To be able to move for return of his weapons, defendant needed to have the FRO vacated. See N.J.S.A. 2C:25-29b. Accordingly, in September 2005, defendant filed a motion to vacate Judge Lipton's finding of domestic violence and to dissolve the FRO entered on May 24, 2004. The motion was granted as "unopposed" by order dated November 4, 2005.

Thereafter, defendant filed a motion for return of his weapons, and the State in turn pressed its claim for forfeiture, pursuant to N.J.S.A. 2C:58-3c(5). When the State was unable to locate Sabia to testify at the forfeiture hearing, its attorney sought permission to introduce the transcript of Sabia's prior testimony at the domestic violence trial. After holding a Rule 104 hearing, Judge Jerejian determined that Sabia was unavailable within the meaning of N.J.R.E. 804(b), and permitted the State to rely on the transcript of her testimony.

After reading the transcript of Sabia's testimony, and hearing Mancuso's live testimony, Judge Jerejian concluded that Sabia's testimony was credible. He explained that he found her testimony believable because it was so detailed and, even on a cold record, had the ring of truth. On the other hand, he did not find Mancuso to be as credible and found that Mancuso tried to "downplay" the controlling nature of his relationship with Sabia. In light of the incident with the shotgun, the judge concluded that giving Mancuso back his weapons would pose a threat to the public health, safety and welfare and that the weapons should be forfeited.

II.

On this appeal, Mancuso contends that the trial judge should not have permitted the State to introduce the transcript of Sabia's testimony from the domestic violence trial, in lieu of presenting her live testimony. He also contends, in two separate points, that the trial judge should ...


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