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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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 not have credited Sabia's testimony. We find no merit in either argument.
Under certain circumstances, the prior sworn testimony of an unavailable witness may be admitted in evidence. See N.J.R.E. 804(a)(4); N.J.R.E. 804(b). There is no dispute in this case that Sabia was unavailable. The issue is whether her prior testimony in the domestic violence trial falls within the following hearsay exception of N.J.R.E. 804(b)(1)(A):
Testimony given by a witness at a prior trial of the same or a different matter, . . . , if the party against whom the testimony is now offered had an opportunity and similar motive in the prior trial, hearing or proceeding to develop the testimony by examination or cross-examination.
All components of the rule must be satisfied to establish the admissibility of the testimony. See United States v. Salerno, 505 U.S. 317, 321, 112 S.Ct. 2503, 2507, 120 L.Ed. 2d 255, 261-62 (1992).
In construing the analogous Federal Evidence Rule, the test has been described as follows:
The proper approach, therefore, in assessing similarity of motive under Rule 804(b)(1) must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. The nature of the two proceedings -- both what is at stake and the applicable burden of proof -- and, to a lesser extent, the cross-examination at the prior proceeding -- both what was undertaken and what was available but forgone -- will be relevant though not conclusive on the ultimate issue of similarity of motive. [United States v. DiNapoli, 8 F.3d 909, 914-15 (2d Cir. 1993)].
We have no hesitation in concluding that Mancuso had a similar, if not stronger, motive to cross-examine Sabia in the domestic violence hearing as he would have had in the forfeiture hearing. And, in fact, his attorney cross-examined Sabia vigorously and at length on the same issue that was crucial in the forfeiture hearing, i.e., whether Mancuso threatened her with a shotgun.
In addition to having a similar motive to cross-examine the now-absent witness, the party must have had the "opportunity" to cross-examine the witness. Defendant's central contention here is that he discovered new evidence after the domestic violence trial which he contends casts doubt on Sabia's credibility, and he did not have a chance to cross-examine her on that evidence at the forfeiture hearing. However, this is not what the Rule means by "opportunity."
In the context of N.J.R.E. 804(b), the term refers to a proceeding in which defendant had the right to cross-examine the witness. See State v. Wooters, 228 N.J. Super. 171, 179 (App. Div. 1988)(A requisite element of a Graves Act offense "may not be based upon testimony of a witness at a trial to which the Graves Act defendant was not a party and whom he had no opportunity to cross-examine."); State v. Moody, 169 N.J. Super. 177, 179 (Law Div. 1978)(In reviewing the history of N.J.R.E. 804(b), the court concluded that it "was intended to provide only for the admissibility of evidence given at a prior trial, and was intended to exclude testimony given at preliminary hearings for the reason that cross-examination in such proceedings is either nonexistent or inadequate.") We find no basis to conclude that the term "opportunity" means the chance to cross-examine as to evidence that a defendant may later discover, particularly if the State is not offering new evidence as to which the absent witness might have knowledge.
Defendant had ample opportunity to cross-examine Sabia in the prior domestic violence hearing. He also had the opportunity in the forfeiture hearing to attack her credibility with evidence to which she had no opportunity to respond. This evidence included telephone records intended to cast doubt on her claim that she was present in defendant's house on the day of the domestic violence incident, and testimony of a witness whom Sabia allegedly told a police officer was the person who helped her search for listening devices in her apartment. Defendant's inability to cross-examine Sabia about this specific evidence did not vitiate his prior "opportunity" for cross-examination within the meaning of N.J.R.E. 804(b).
Moreover, in the domestic violence case, defendant testified that he was in California on April 23, the date of the alleged assault, and he produced an airline ticket for that date. It is not clear why defendant did not also produce his telephone records in the domestic violence hearing. In any event, the judge found that Sabia's testimony was credible even if she might have been mistaken about the exact date when the incident occurred. Further, the testimony about the listening devices concerned a side issue which, at most had some relevance to Sabia's general credibility.
Turning to Mancuso's next issue, our review of the trial judge's factfinding is limited.
Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence. 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. Ibid. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). [In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997).]
Having reviewed the entire record, we find no basis to disturb Judge Jerejian's findings of fact, which were based not only on his evaluation of Sabia's credibility but on his evaluation of Mancuso's credibility. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In light of his factual findings, there is substantial credible evidence to support his legal conclusion that returning Mancuso's weapons would pose a threat to the public health, safety and welfare. N.J.S.A. 2C:58-3c(5). Mancuso's remaining arguments on this issue are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Finally, we address an additional issue not raised by the parties but which bears noting. While neither party has addressed the propriety of the order vacating the FRO, our review of the record provided to us on this appeal reveals there is no evidence that the motion was properly served on Sabia or that she ever received it. In fact, the evidence presented to us suggests the contrary.
The State included a copy of the motion in its appendix. The notice of motion contains defense counsel's certification of service that he caused the motion to be mailed to Sabia at "274 Spring Street, Naugatuck, CT." However, at the N.J.R.E. 104 hearing before Judge Jerejian to determine whether Sabia was unavailable to testify at the forfeiture hearing, the State presented testimony from Detective Sergeant Weinberg, who was assigned to try to find Sabia. According to Sergeant Weinberg, he mailed a letter to Sabia at 274 Spring Street, Naugatuck, but it was returned, because "[t]he Naugatuck address was a large apartment complex, and the Federal Express envelope didn't have a unit number on it." Since defendant's motion was also not mailed to a specific apartment number, there is no basis in this record on which to conclude that Sabia ever got notice of the motion to vacate the finding of domestic violence.
Moreover, according to Weinberg, he actually drove to Connecticut looking for Sabia. He testified that when he "went to 274 Spring Street" there was "nobody listed there" at the apartment number he had obtained for Sabia. He was told by the apartment manager that Sabia's father had lived there, but had "moved in August of 2005." According to the manager, Sabia "never actually lived there." Although the manager's statements are hearsay, they certainly suggest that when defendant mailed the motion to Sabia in September 2005, neither she nor her father were living there.
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