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In re Firearms Application of Durga

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 pro se brief:

A. The issues in the appeal

B. To what extent hearsay information can be admissible to corroborate "facts" for which there is no substantial evidence other than a "coerced confession"?

1. The legal basis for reconsideration of facts/hearsay evidence

2. The contradictory and inadmissible testimonies of Ptlm. Andre Springer, Ptlm. Sammy Hernandez, and Cpl. Phillip Rizzo.

a) Factual contradictions in the testimony of Ofc. Andre Springer

b) The rebuttable facts of Ofc. Sammy Hernandez

c) The hearsay testimony of Cpl. Phillip Rizzo

d) The Inadmissible Hearsay Information

e) The "coerced confession" to Det. Patrick Albani

C. Can the Chief of Police change legislative laws as a result of his negligence and default via untimely actions?

D. Can an order/judgment denying the application for a handgun license and firearm purchaser identification card be entered after the ten-day Rule stipulated by R 4:42-1(b)?

E. Can an allegation of "discharging a weapon" pursuant to N.J.S.A. 2C:33-2(a)2 criminalize a behavior absent concrete evidence other than a "coerced confession"?

F. Conclusion

In a supplemental brief submitted by petitioner's counsel, he argues:

POINT ONE

THE COURT BELOW ERRED BY FAILING TO FOLLOW THE APPELLATE DIVISION ORDER AND DECIDE THE SEPARATE WEAPONS RETURN ISSUE

POINT TWO

REGARDLESS OF WHETHER CPL. DURGA IS QUALIFIED FOR A NEW JERSEY FIREARM PURCHASER IDENTIFICATION CARD, HE IS NOT DISQUALIFIED FROM FIREARMS POSSESSION

Petitioner contends that the FTPD erred in rejecting his applications because the denial was not made "in good faith and a fair manner." He further argues that the decision "represents a capricious and unreasonable intent of the FTPD that was targeted specifically at supporting that decision so that [petitioner] cannot get back his weapons illegally seized from him."

N.J.S.A. 2C:58-3c provides that a handgun permit or firearms purchaser identification card shall not be denied to any "person of good character and good repute" unless found to be "subject to any of the disabilities set forth in this section." The statute provides that no permit or card shall be issued "[t]o any person who has been convicted of any crime . . . whether or not armed with or possessing a weapon at the time of such offense." N.J.S.A. 2C:58-3c(1). Even if an applicant has not been convicted of a crime, however, no permit or card shall be issued "[t]o any person where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c(5).

The municipal police chief has the discretion, "subject to standards which have been adjudged constitutionally adequate," to grant or deny an individual's application for a handgun permit or identification card. Weston v. State, 60 N.J. 36, 43 (1972); N.J.S.A. 2C:58-3d. "'The function of the Police Chief as the local administrative official charged with responsibility for the original decision to grant or withhold . . . involves largely the exercise of an informal discretion,' based upon information disclosed by a 'good faith investigation.'" In re Application of Boyadjian, 362 N.J. Super. 463, 475 (App. Div.), review or hearing denied by 178 N.J. 250 (2003) (quoting Weston, supra, 60 N.J. at 43, 45) (internal citations omitted).

When reviewing an application, a police chief must consider the interests of the community and must not make a decision that is "arbitrary, capricious or unreasonable." Boyadjian, supra, 362 N.J. Super. at 478. After completing the investigation, if the police chief decides to deny the application, there is "no obligation to hold a trial-type hearing before doing so." Weston, supra, 60 N.J. at 43. If the chief decides, however, to deny the application, the applicant should be given "an opportunity . . . to discuss the matter . . . to be informed of the reasons for the denial and to offer any pertinent explanation or information for the purpose of meeting the objections being raised." Id. at 43-44.

The chief's decision to deny an application is subject to de novo review by the Law Division, which "in this context contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court." Weston, supra, 60 N.J. at 45. The police chief bears the burden of establishing the existence of good cause for the denial by a fair preponderance of the evidence. Id. at 46. In evaluating the facts and the reasons given for rejection, "the court should give appropriate consideration to the Chief's investigative experience and to any expertise he appears to have developed in administering the statute." Ibid.

Upon review of the Law Division's decision, "[a]n appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence." In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997). Where the evidence is mostly testimonial and involves questions of credibility, deference to a trial court's findings of fact is particularly appropriate. Id. at 117. We will not, therefore, disturb a trial court's findings of fact unless those findings would result in an injustice. Ibid. (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)).

Petitioner contends that the Law Division decision was not based upon substantial credible evidence because: (1) he was not convicted of an offense; (2) the accusation that he fired the rifle was not proven; (3) there was "no credible evidence or facts to substantiate [the] allegation" that he fired the rifle; and (4) his arrest for possession of weapons was illegal. He argues that the decision to deny his application based upon his "'intentional or negligent handling of the weapon demonstrates that [petitioner's] possession of a weapon in a civilian capacity would not be in the interest of public health, safety and welfare' is highly illogical, capricious, arbitrary and whimsical."

"The dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm or recover one previously taken by the police." In re Osworth, 365 N.J. Super. 72, 78 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (citing In re Return of Weapons to J.W.D., supra, 149 N.J. at 110). N.J.S.A. 2C:58-3c(5) "is 'intended to relate to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.'" Osworth, supra, 365 N.J. Super. at 79 (quoting Burton v. Sills, 53 N.J. 86, 91 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed. 2d 748 (1969)).

We addressed the meaning of "public health, safety or welfare" in State v. Cunningham, 186 N.J. Super. 502, 504 (App. Div. 1982), when we considered the return a .38-caliber handgun and Winchester rifle to the defendant after they were seized by the police following a shooting for which the defendant was arrested. In Cunningham, the defendant was arrested and charged with assault with an offensive weapon in violation of N.J.S.A. 2A:90-3. Ibid. The grand jury "no-billed" the charge, purportedly because the defendant's wife would not testify. Ibid. When the defendant moved for the return of the weapons, the State opposed, arguing that "the issuance [of the firearms permit] would not be in the interest of the public health, safety and welfare." Id. at 504-05.

This court observed that an intentional wrongdoing or negligence in handling a weapon could support the denial of a permit. Id. at 507. In making this observation, the court relied upon the affidavits of the officers responding to the incident and the statements of witnesses contained in the police file. Id. at 506-07. The court also noted that the return of a firearm to an owner, even when charges against him have been dismissed, is prohibited when the owner is "likely to pose a danger to the public." Id. at 511. Here, FTPD's decision denying petitioner's application for a firearms purchaser identification card and a permit to purchase a handgun was based on the provisions of N.J.S.A. 2C:58-3c.

In affirming the FTPD's decision, the Law Division recognized the "broad parameter [of] the Chief of Police to review applicants." The Law Division found "[t]hat this would not be in the public health, safety and welfare of the community, given the circumstances of this person firing off what appears to be an AR-15 in the back of the high school in the middle of the night. . . . And being a marine, he knew better than anybody." We agree. We have carefully considered the entire record and we are satisfied that there is substantial credible evidence to support the decision of the Law Division.

R. 2:11-3(e)(1)(A).

Petitioner next contends that the Law Division erred in affirming the denial because the decision was based upon evidence that was "inconsistent, disputable and/or based upon hearsay information."

When considering an appeal of a denial of a firearms purchaser identification card or permit to purchase, the Law Division, during its de novo hearing, should adhere to the following procedure

At the outset of the [court] hearing . . . orderly and logical procedure calls for introduction through the testimony of the applicant of his application for the identification card, the rejection thereof and the reasons given by the Chief, if any.

. . . Thereafter, the Chief should proceed with the evidence on which his denial was predicated. Ordinarily, this would include presentation of his own testimony, that of the members of the police department who made the investigation and furnished reports to the Chief, any available lay or professional persons who furnished information which influenced the action taken by the Chief, and any admissible documentary evidence which played a part in the adverse decision. Upon completion of the Chief's proof, the applicant may offer relevant rebuttal testimony. [Weston, supra, 60 N.J. at 46.]

There is "no reason why, on a de novo judicial review of an administrative official's decision, relevant hearsay evidence of a credible character . . . should not be admitted and considered by the court." Id. at 51; In re Osworth, supra, 365 N.J. Super. at 78.

Here, petitioner cites multiple examples of alleged contradictory statements made by the arresting officers including: (1) where the shots were purportedly heard and where the weapon was discharged; (2) whether the SUV hatch was opened or closed and where petitioner was standing when the officers approached; (3) whether the type of weapon involved in the incident was or was not an assault rifle; (4) the initial charges that were brought and then dismissed; and (5) whether petitioner had been drinking at the time of the incident. These alleged inconsistent statements go to the witnesses credibility and the weight of the evidence. Where the evidence is mostly testimonial and involves questions of credibility, we must give deference to the trial court's findings of fact. Return of Weapons to J.W.D., supra, 149 N.J. at 116-17; State v. Locurto, 157 N.J. 463, 474 (1999). Moreover, none of the examples proffered by petitioner were cited by the trial court to support its findings and conclusion.

Petitioner claims that the Law Division improperly relied on a "coerced confession" and denies making a voluntary confession. He maintains that the statement he made was "under duress and upon certain favors which were promised to him but subsequently were never delivered." He suggests that he "was willing to tell the Detective whatever he wanted to hear and made the confession so that he could get out of there in a hurry." There is nothing in the record, however, to indicate that there was any overriding of his free will that would make this statement involuntary. State v. Galloway, 133 N.J. 631, 654-55 (1993). The trial court properly considered the testimony and evidence presented.

Petitioner argues here for the first time that because the FTPD failed to issue its decision within sixty days of filing his applications and because the Law Division delayed signing the order memorializing its decision, the two decisions are invalid. Because petitioner did not raise these issues in the Law Division, they are now subject to the plain error rule. R. 2:10-2 provides:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

Pursuant to N.J.S.A. 2C:58-4c, if an application for a handgun permit is not approved by the chief police officer within 60 days of filing, it is considered approved. Petitioner claims to have applied for the identification card and handgun permit on September 25, 2005. The undisputed testimony from Corporal Rizzo indicated that petitioner's first two applications were submitted prior to his twenty-first birthday and could not have been considered. Both of those applications were returned to him as deficient. The application submitted in January 2006 -- after petitioner's twenty-first birthday -- was decided well within the sixty-day time limit.

Petitioner further argues that the trial court delayed in signing the order memorializing its April 17, 2006 decision. In short, there is no time limit within which a court must enter an order memorializing its decision.

Petitioner next argues that the trial court failed to separately decide his motion for the return of his weapons. He contends that the argument under his then-pending appeal of denial of the permits was not an identical question to the return of his firearms and, therefore, res judicata does not apply. We find insufficient merit in this argument to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). The record clearly indicates the matters were considered and decided separately.

Petitioner finally argues that regardless of whether he is qualified for a New Jersey Firearm Purchaser Identification Card, he is not disqualified from firearms possession under N.J.S.A. 2C:39-6. N.J.S.A. 2C:39-5c provides that "[a]ny person who knowingly has in his possession any rifle or shotgun without having first obtained a firearms purchaser identification card in accordance with the provisions of N.J.S.A. 2C:58-3, is guilty of a crime of the third degree." The statute does not apply to:

(1) Members of the Armed Forces of the United States or of the National Guard while actually on duty, or while traveling between places of duty and carrying authorized weapons in the manner prescribed by the appropriate military authorities; [N.J.S.A. 2C:39-6a (emphasis added).]

For members of the armed forces, "[t]here is a real distinction between their employment status generally and being 'on duty.'" State v. Suarez, 144 N.J. Super. 98, 101 (App. Div. 1976). The term "on duty" has a clear meaning, that means on "active duty," as opposed to "on leave" or "at liberty." Ibid. The legislative intent of the armed forces exception was "to exempt military personnel who are required to carry weapons in New Jersey in conjunction with their military duties. It was never intended to permit those who happen to be employed by the armed forces to possess weapons anywhere and at anytime . . . ." Id. at 101-02.

By petitioner's own admission, he was not "on duty" when he was arrested. Rather, he was in New Jersey on his own personal time to visit his cousin and teach him how to shoot. He even expressed concern while at the FTPD headquarters that he had to "get back to his military duties [at Camp Lejeune] in a timely manner" and "he was due back at barracks at 7:00 a.m." the next morning.

In addition to the "armed forces" exemption, petitioner cites N.J.S.A. 2C:39-6f, which states that:

Nothing in subsection b., c. and d. of N.J.S.A. 2C:39-5 shall be construed to prevent:

(2) A person carrying a firearm or knife in the woods or fields upon the waters of this State for the purpose of hunting, target practice or fishing, provided that the firearm or knife is legal and appropriate for hunting or fishing purposes in this State and he has in his possession a valid hunting license.

[(Emphasis added).]

There is nothing in the record indicating that petitioner had a valid hunting license in his possession at the time of his arrest.

We have carefully considered all of petitioner's arguments in light of the applicable law, and we are satisfied that there are no other issues having sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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