On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-583-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Waugh and Newman.
Appellant Michael Olley appeals from an order of forfeiture of certain weapons seized during a domestic violence response. We reverse the order granting forfeiture.*fn1
The relevant facts center on the events that occurred on November 5, 2006. Olley and his wife Jeanine went on a boat cruise around Manhattan. During the cruise they consumed alcohol and later went to a bar where they continued drinking. At some point, Olley cut his hand on a broken glass. They then returned home. In the couple's bedroom, they began an argument which escalated. Olley became enraged and went over to the closet where he stored his hunting weapons, saying: "That's it. I can't take it anymore."
Frightened by her husband's behavior, she went to the bedroom closet where two shotguns were stored, grabbed one of them and took it downstairs to the laundry room. She explained that her husband was irrational and she took the shotgun to keep it from him, even though a second shotgun remained in the closet. She returned to the bedroom and saw her husband holding the other shotgun. Olley shut the bedroom door with his wife standing on the other side. She then contacted the police.
She then went downstairs, waking her sister who was sleeping. They left the house and waited in her sister's car, parked in the Olley driveway, until the police arrived.
Patrolman Travis J. Canning of the Mahwah Police Department responded with other officers. The police dispatcher had indicated there were weapons involved and that "one of the parties might have been suicidal."
On arrival, Officer Canning observed the husband in the living room of the house through the front porch window. Officers drew their guns, ordered Olley out of the house and he complied. He was confused why the police were there. He did not resist arrest, was handcuffed and placed into a patrol car. Officer Canning saw that Olley had a cut on his thumb and that his hand and shirt were bloody.
In the upstairs bedroom, Officer Canning found a cracked open shotgun laying on the floor and a box of shells on the dresser located approximately six feet from the shotgun. Officer Canning recovered the other shotgun from the laundry room, as well as a BB gun and a bow and arrows.
Olley was transported to police headquarters and placed in a holding cell. While in the holding cell, Olley questioned why he was at the police station because he claimed he had not done anything wrong. Officer Canning completed the necessary forms for the arrest, asked Olley if he suffered from any medical condition and purportedly was advised that he suffered from depression and had taken anti-depressants. His wife declined a temporary restraining order.
Olley was later transported to Valley Hospital for treatment of the laceration on his thumb. After treatment, he was referred to the Bergen County Regional Medical Center by the 263 HELP screener for evaluation. He was interviewed at the center and discharged. He was never "committed" to Bergen County Regional.
Chief James Batelli of the Mahwah Police Department testified that he had learned through one of his officers that, since the incident, Olley was involved with marriage counseling, psychiatric counseling, had stopped drinking and was not taking anti-depressants. Chief Batelli spoke to Olley on the phone and was reassured that what happened on November 5, 2006, was an aberration, that there had been drinking that night, but that he was no longer having problems and that he and his wife had sought counseling. He also mentioned that Olley's wife did not oppose the return of the weapons to him. In her own testimony, she also indicated that she did not oppose the weapons return and, in fact, she supported their return. After the Chief spoke to the Assistant Prosecutor assigned to the case, he did not withdraw his recommendation that the weapons not be returned because he believed the issue should be resolved by the courts.
The defense presented Dr. David J. Gallina, a board certified psychiatrist who had evaluated Olley. The evaluation was based on seven tests administered to Olley, four of which were objectively scored by a computer. Dr. Gallina also interviewed Olley and spoke to Olley's treating psychologist, Dr. Pepper, who confirmed that there was no significant psychiatric diagnosis and that he had not prescribed any medication. Dr. Gallina was of the opinion that Olley did not suffer from any significant psychiatric disability and that he was not in need of medication. He was of the opinion, to a reasonable degree of medical certainty, that the weapons could safely be returned to Olley.
Olley testified on his own behalf. He corroborated that both he and his wife had been drinking during the cruise and at a bar in Manhattan. They both drank too much and got into an argument at home, which escalated. According to him, his wife began flailing her hands coming toward him and he accidentally struck her with his head, attempting to keep her away from him. In her handwritten statement at the time, she stated that "Olley" had "head-butted" her, but she did not testify to that at trial.
Olley stated that his wife was the one who grabbed the weapon from the closet and ran out of the room. He testified that he took the second shotgun to make sure it was not loaded. He denied that he intended to use the weapon nor did he threaten anyone. There was no testimony that any threat with a weapon was made that evening.
Olley denied telling Officer Canning that he suffered from depression and that he was taking medication for this condition. He admitted that a year earlier, in November 2005, his family practitioner prescribed Wellbutrin, an anti-depressant medication, which he disliked and discontinued taking after three weeks. He further stated that when he was taken to the Bergen County Regional Medical Center, he had spoken to a psychiatrist for fifteen minutes and was released.
Olley indicated that through marriage and psychiatric counseling he has learned that there is a lot more compromise involved in marriage and believed that the counseling has helped improve the marital relationship. There was no domestic violence before that particular incident, nor has there been any since that single occurrence.
Olley testified that he has been married for approximately seven years, has two young children and runs a successful trucking ...