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In re Application of R.M.

January 23, 2009

IN THE MATTER OF THE APPLICATION OF R.M.*FN1 FOR A PERMIT TO PURCHASE A HANDGUN AND A FIREARMS PURCHASER IDENTIFICATION CARD.


On appeal from Superior Court of New Jersey, Law Division, Hudson County.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Graves and Grall.

R.M. appeals from an order dated December 20, 2007, denying his application for a permit to purchase a handgun and a firearms purchaser identification card. N.J.S.A. 2C:58-3(a) and (b). After reviewing the record, the briefs, and the applicable law in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun and a firearms purchaser identification card to any person of "good character and good repute" who is not subject to any of the enumerated exceptions. The statute provides, in part, as follows:

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:

(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L.1991,c.261(C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense;

(2) To any drug dependent person as defined in section 2 of P.L.1970,c.226 (C.24:21-2), to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;

(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; . . .

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare;

[N.J.S.A. 2C:58-3(c).]

"[T]he statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public." State v. Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982). See Application of Marvin, Jr., 53 N.J. 147, 156 (1969) ("[T]he sole issue is [the applicant's] current qualification to purchase . . . weapons."). The broad catch-all provision of section (5) relates "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." In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).

In this case, R.M. was a forty-one-year-old carpenter, residing in Hoboken, when he applied to the Hoboken Police Department for a permit to purchase a handgun and a firearms purchaser ID card in January 2007. On his application form, R.M. certified he had not been convicted of a crime or a disorderly persons offense, and he was not subject to any of the other statutory disqualifications. The investigation conducted by the Hoboken Police Department, however, disclosed he had two drug-related arrests and "a problem with drugs and alcohol in the past." In a letter dated April 30, 2007, R.M. was notified by the chief of police that his application was denied pursuant to N.J.S.A. 2C:58-3(c)(5), because "disapproval is in the interest of the public health, safety or welfare."

After his application was rejected by the chief of police, R.M. requested a hearing in the Superior Court. N.J.S.A. 2C:58- 3(d). Hoboken Police Lt. James Roofe, the person who had investigated R.M.'s application, testified at the hearing. According to Roofe, R.M. had been arrested in New York in 1997 and charged with possession of crack cocaine, and he was also arrested in Hoboken in 1999 and charged with possession of marijuana. Roofe testified that the New York case was "dismissed and sealed," and "the charge of possession of marijuana was amended to disturbing the peace, a city ordinance violation," which resulted in a $175 fine. Because of R.M.'s past problems with both alcohol and drugs, Roofe recommended to the chief of police that R.M.'s application be denied:

Q: [A]s part of this application process, did you speak to any references of [R.M.'s]?

A: Yes I spoke to [R.M.'s] sister.

Q: Okay. And did you ask her about these arrests?

A: I asked her if her brother, who indicated to me that he had a problem with drugs and alcohol in the past, if she was aware of this? And she said that she was, that he had a problem with both drug[s] and alcohol in the past, but has been sober for the past five years.

Q: Okay. Now based on all of your investigation, did you make a recommendation as to . . . ...


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