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In re Firearms Application of Durga

July 25, 2008

IN RE FIREARMS APPLICATION OF DAVEANAND DURGA.
IN RE THE RETURN OF SEIZED FIREARMS FROM CPL. DAVEANAND DURGA.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. 1808 and 66-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 27, 2008

Before Judges Parker and Lyons.

These consolidated appeals arise from the denial of petitioner's applications (1) for a Firearms Purchaser Identification Card and a Permit for Purchase of a handgun and (2) to return firearms purchased by him out-of-state and transported to New Jersey without the necessary Firearms Purchaser Identification card and Permit to purchase a handgun. We affirm on both applications.

Petitioner is a United States Marine Corporal who, prior to his deployment to the Middle East in March 2006, was stationed at Camp Lejeune, North Carolina. While stationed at Camp Lejeune, petitioner maintained a residence in Somerset, New Jersey. In May 2004, while stationed at Camp Lejeune, petitioner purchased a Bushmaster AR-15 rifle, a BB handgun and ammunition for both weapons at the military post exchange. On May 22, 2004, petitioner left North Carolina, with the weapons and ammunition in the trunk of his vehicle, and drove to New Jersey to meet with his cousin.

On May 23 2004, Franklin Township Police Officer Sammy Hernandez was on patrol in the area of Franklin Township Middle School, now the Franklin Township High School, around midnight when he heard what he thought were gunshots from an automatic weapon. Officer Hernandez radioed headquarters to report what he heard and request back-up to assist him in searching the area.

Officers Andre Springer and Drewery Lea were dispatched to the area to investigate the shots. Shortly after arriving in the neighborhood, they observed petitioner standing at the back of a sports utility vehicle (SUV) parked near the school property. As the officers approached the SUV, they observed petitioner placing a flat black case into the rear of the vehicle and then closing the hatch. When asked by Officer Springer if he had a gun in the car, petitioner responded, "Yes." Officer Springer opened the SUV hatch and found what appeared to be a black rifle case with the name "Bushmaster" on the outside. The officer found, what he thought, was a Bushmaster AR-15 assault rifle inside the case. The police also recovered from petitioner's vehicle two high capacity magazines, a pellet (BB) handgun and multiple boxes of ammunition.

The police reports indicate that at this point, petitioner voluntarily admitted he fired three to four rounds from the assault rifle into the ground in a nearby grassy area. The officers took petitioner into custody and transported him to the station.

Petitioner disputes that he voluntarily admitted to shooting the rifle. Rather, petitioner alleges that, after being taken to police headquarters, he "agreed to confess" to firing the rifle on the condition that he would be released "within fifteen minutes," allowing him to return to his military post. Petitioner also claims that an officer volunteered to "sugar coat" the incident.

Petitioner was arrested and charged with unlawful possession of the weapons, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b, and the large capacity ammunition magazine, N.J.S.A. 2C:39-3j. The Grand Jury issued a No Bill of Indictment. The charges were downgraded and the matter was transferred to the municipal court for prosecution. The charges were ultimately dismissed because they were, by then, barred by the statute of limitations.

In September 2005, petitioner filed an application for a firearms identification card and handgun permit. Petitioner was not yet twenty-one, however, and the application was returned to him on October 31, 2005. When petitioner reapplied on November 8, 2005, the application was denied again because petitioner had still not reached his twenty-first birthday. The statute requires an applicant for a handgun permit to be at least twenty-one years old. N.J.S.A. 2C:58-3c(4).

Petitioner resubmitted the application for the identification card and handgun permit in January 2006, after he turned twenty-one.*fn1 The background check was done by Corporal Philip Rizzo and reviewed by Captain Joseph Lombardo, Jr. and Chief Craig Novick. Petitioner's actions in transporting the AR-15 rifle into New Jersey from North Carolina and his admission to discharging the weapon in a school field were considered in the background check. His application was denied on February 26, 2006, pursuant to N.J.S.A. 2C:58-3c(5), which prohibits issuance of a Firearms Purchaser Identification Card or Permit to Purchase a Handgun to any person to whom the issuance of such would not be in the interest of the public health, safety and welfare.

Shortly thereafter, petitioner requested that the firearms confiscated during the May 23, 2004 incident be returned to him. The request was denied by the Franklin Township Police Department (FTPD) because petitioner could not legally possess the weapons without a Firearms Purchase Identification Card and a Permit to Purchase a Handgun.

In March 2006, petitioner filed an appeal of the denial of his applications in the Law Division. In April 2007, the Law Division conducted a hearing on the appeal. Petitioner, who had been deployed to the Middle East in March 2006, waived his right to appear at the hearing, but was represented by counsel who appeared on his behalf. Officer Springer testified as to the events that occurred the evening petitioner was arrested. Springer testified as to his observations of the weapons in petitioner's possession, the smell of the gunpowder from the rifle, and the voluntary admission by petitioner of firing the gun.

Corporal Rizzo also testified with respect to his reasons for recommending denial of petitioner's application. The Law Division reviewed the criminal complaint file, including dismissal of charges, petitioner's interviews with Officers Springer and Hernandez, and the confession made by petitioner on the night of his arrest. Based upon that evidence, the Law Division affirmed the FTPD denial of the applications.

Petitioner, through counsel, had the opportunity to present and cross-examine witnesses and argue his cause in the Law Division. He did not offer any physical evidence, such as letters of commendation, Grand Jury testimony, or U.S. Marine Corp. correspondence. Nor did he offer any witnesses on his own behalf.

In rendering its decision on the record of April 17, 2006, the Law Division found that "given all the circumstances in this case, . . . this is an appropriate case to deny the purchaser I.D. card and the permit to purchase handguns." Respondent submitted an order memorializing the decision to the Law Division pursuant to the five-day rule, but the order was misplaced, causing a delay in its entry. The order was finally entered on September 29, 2006, affirming denial of petitioner's application for the "reasons placed on record on April 17, 2006."

On July 18, 2006, the Law Division granted petitioner's application for expungement and entered an Order of Expungement directing the Somerset County clerk to "remove from the court records all information relating to the petitioner's arrest in Franklin Township, Somerset County, on May 23, 2004 for alleged violations of N.J.S.A. 2C:58-4, N.J.S.A. 2C:39-5b, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-3j." The order further directed "any law enforcement agency which possesses records which include information relating to the arrest and guilty plea [sic] which is subject of this Order remove from its records of all such information . . . ."

Petitioner filed a timely appeal from the September 29, 2006 order. On March 8, 2007, the Law Division entered an order denying petitioner's motion for the return of the seized weapons and dismissing petitioner's case. On April 4, 2007, petitioner filed an Amended Notice of Appeal, adding the March 8, 2007 order.

In this appeal, petitioner argues in his ...


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