July 31, 2008
IN THE MATTER OF RICHARD MACZUGA, APPLICATION FOR A PERMIT TO PURCHASE A HANDGUN
On appeal from Superior Court of New Jersey, Law Division, Hudson County.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 1, 2008
Before Judges Cuff and Fuentes.
Appellant Richard Maczuga appeals from the order of the Law Division affirming the decision of the Chief of Police of the City of Bayonne which denied appellant's application for the issuance of a firearm purchaser identification card (FPIC). N.J.S.A. 2C:58-3(b). After conducting a de novo review of the information provided by appellant to the Chief of Police, and considering the testimony presented at an evidentiary hearing, the court concluded that appellant was statutorily ineligible for an FPIC under N.J.S.A. 2C:58-3(c)(3). We affirm.
Appellant is sixty years old. He served in the military from 1966 to 1967. He is a licensed chiropractor and has resided in the City of Bayonne for the past eighteen years. A year prior to this application, he had been issued an FPIC by the Bayonne Chief of Police. On February 12, 2007, appellant submitted an application for the issuance of an FPIC to the Bayonne Chief of Police. Among the questions appellant was required to answer, under oath, were questions number twenty-two and twenty-five, which read as follows:
(22) Have you ever been confined or committed to a mental institution or hospital for treatment or observation of a mental or psychiatric condition on a temporary interim or permanent basis? If Yes, give the name and location of the institution or hospital and the date(s) of such confinement or commitment.
(25) Have you ever been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an inpatient or outpatient basis for any mental or psychiatric condition? If Yes, give the name & location of the doctor, psychiatrist, hospital or institution and the date(s) of such occurrence.
Appellant answered "no" to both of these questions.
An investigation conducted by the relevant law enforcement revealed that on February 10, 1995, officers from the Bayonne Police Department responded to a call alleging that appellant was in his chiropractic office, in possession of a handgun, and was threatening to commit suicide. Responding to questions posed by the Assistant Prosecutor at the evidentiary hearing, appellant gave the following description of what occurred:
Q: Okay. Let's go back to the incident back in 1995. You worked -- you had a gun at that time; correct?
Q: Some point you locked yourself in your office, work in your office [sic]?
A: I was in my office, yes.
Q: Other people at work with you?
A: One person.
Q: One person. You thought about killing yourself?
Q: You had a gun?
Q: And you honestly, raised the attention enough of the person that you were working with, that she called the police?
Appellant was transported to the emergency room of Bayonne Hospital where he was admitted for psychiatric evaluation. From this point, the record is not clear about appellant's course of treatment. Despite his availability as a witness, appellant was not asked to explain or elaborate on the circumstances that led him to contemplate taking his own life. He was also not asked any questions about the treatment he received, where he received it, and what follow up care he had after this crisis subsided.
The only information available in the record as to appellant's psychiatric history comes from the report prepared by Dr. Anthony Todaro, a psychologist retained by appellant in connection with this case, to offer an opinion as to his mental fitness to possess firearms. In his report, Dr. Todaro states as follows:
Dr. Maczuga applied for a permit to purchase pistols for target shooting with his daughter and he received from the National Instant Criminal Background Check System (NICS) that he was hospitalized at Elizabeth General Hospital (now named Trinitas Hospital) in 1989. He then made a suicidal gesture with his [sic] and was admitted to St. Barnabas in 1993. He did not answer with PTSD [post traumatic stress disorder] since he thought it was an acquired illness and not one that he was born with in terms of mental status. Dr. Maczuga was seeing a licensed clinical social worker and he said it was very helpful. . . .
While at Elizabeth Hospital (now Trinitas) [appellant] was there for five days and not sleeping. Dr. Maczuga threatened himself with a pistol and Dr. Lisa Mieth, another chiropractor, called 911. No charges were filed. A psychiatrist saw Dr. Maczuga while he was at the hospital and after being released from the hospital he went into therapy for six months to resolve depressive issues.
Dr. Todaro testified that he was unable to obtain any records from either Elizabeth General Hospital or St. Barnabas Hospital. He indicated, however, that appellant confirmed that he had been hospitalized for at least five to six days in connection with the 1995 suicidal episode.
In light of this history, when asked to explain why he had answered "no" to questions twenty-two and twenty-five on the application form, appellant indicated as follows: he answered "no" as to question twenty-two, because he had voluntarily admitted himself to the hospital. (This question reads: "Have you ever been confined or committed to a mental institution or hospital for treatment or observation of a mental or psychiatric condition on a temporary interim or permanent basis?" (Emphasis added)).
With respect to question twenty-five, which asks,
Have you ever been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an inpatient or outpatient basis for any mental or psychiatric condition? If Yes, give the name & location of the doctor, psychiatrist, hospital or institution and the date(s) of such occurrence, appellant testified that he answered "no" because:
When I -- you know, fill this out, what I was in the hospital for was post traumatic -- post traumatic stress disorder.
From Vietnam. I didn't personally look at it as the illness. So that's why I kind of -- I answered the way I did. Because it was something that was acquired while I was in Vietnam and in the service and not something that I was, you know, born with, developed.
Dr. Todaro testified on appellant's behalf as an expert witness in the field of psychology. He diagnosed appellant as suffering from: 1) Post traumatic stress disorder arising from his military service, now in remission; 2) "[o]bsessive/compulsive personality traits. As indicated by his conscientiousness, conformity and need to have structure and regulations"; and 3) "[n]arcissistic personality traits due to his slight feeling of being entitled to some consideration due to the fact that he did work hard to become a doctor of chiropractic medicine."
He based his diagnosis on a clinical evaluation of appellant, interviewing his wife and adult daughter, and psychological testing. He also opined, within a reasonable degree of psychological certainty, that appellant was safe for the handling of firearms.
In light of this record, the trial court found appellant disqualified under N.J.S.A. 2C:58-3(c)(3) for the issuance of an FPIC. The court found particularly troublesome that Dr. Todaro did not have a complete picture of appellant's medical history, especially the disturbing 1995 suicidal incident.
We start our analysis by focusing on the relevant statutory criteria. N.J.S.A. 2C:58-3(c)(3) provides that:
No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:
(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card.
Here, the record amply supports the court's decision denying appellant's application. The 1995 incident involved a suicide episode by appellant using a handgun. The history of this incident, and what precise course of treatment appellant received remains unclear. His unfitness to possess a firearm under N.J.S.A. 2C:58-3(c)(3) is thus properly established by a preponderance of the evidence. See In re Appeal of Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).
We also conclude that appellant knowingly answered question twenty-five falsely. His explanation for his answer of "no" is nonsensical and belies credulity. Discounting appellant's medical training, any ordinary reasonable person with a similar history of psychiatric problems would be expected to answer "yes" to question number twenty-five. Appellant's explanation for doing otherwise here is simply untenable.
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