April 8, 2009
IN THE MATTER OF THE SEIZURE OF CERTAIN WEAPONS BELONGING TO JOHN PERNINI
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-154-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 24, 2009
Before Judges Winkelstein and Fuentes.
The State applied to the Family Part for an order directing the forfeiture of certain firearms owned by appellant John Pernini and revoking his firearms purchaser identification card pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-21d(3). After initially denying the State's application based on a lack of evidence, the trial court granted the State's motion for reconsideration and thereafter entered the order of forfeiture as requested.
Appellant now appeals, arguing that the State did not prove, by a preponderance of the evidence, that he poses a threat to the public in general, nor to his former wife, the recipient of a predicate restraining order. We reject this argument and affirm substantially for the reasons expressed by Judge Bartlett. These are the relevant facts.
On May 26, 2006, Patricia Pernini filed a domestic violence complaint and obtained a temporary restraining order (TRO) against appellant, her husband of approximately eighteen years. Thereafter, pursuant to N.J.S.A. 2C:25-21d(1), the State seized eleven firearms that defendant owned and kept in the marital residence. Six days later, acting on Mrs. Pernini's request, the court dismissed the complaint and vacated the TRO. The State thereafter returned the firearms to appellant.
On September 27, 2006, Mrs. Pernini filed a second domestic violence complaint against appellant, again resulting in the seizure of his weapons. After reaching an agreement with her husband, Mrs. Pernini again moved to dismiss the action. This time, however, the State objected to the return of the firearms. On December 23, 2006, the State petitioned the Family Part for an order of forfeiture of the firearms, alleging as grounds that appellant was a "habitual drunkard" pursuant to N.J.S.A. 2C:58-3c. The matter came before the court for trial on April 4, 2007.
At the hearing, Mrs. Pernini testified that appellant had threatened to kill her on multiple occasions. One of those occasions occurred approximately six years earlier. While visibly intoxicated, appellant threatened to "blow [her] head off." The threat had a particularly ominous quality because appellant kept a number of firearms in the marital home. According to Mrs. Pernini, she continued to feel unsafe in the home during most of her marriage. Appellant was often angry, belligerent, intoxicated, and in a depressed mood. In the summer of 2003, he allegedly picked up one of his handguns and told Mrs. Pernini that he was going to kill himself.
According to Mrs. Pernini, "a couple [of] years" before the commencement of trial, appellant removed his firearms, including two handguns and several rifles and shotguns, from a lock box in the basement and lined them up against a wall in the couple's bedroom. The guns remained there for approximately a year and a half, during which time she was "fearful every day." She explained that she took no action in removing the weapons from the room because she did not "know how to handle them." Appellant finally removed the weapons in the spring of 2006.
The event that led to the filing of her first domestic violence complaint occurred on May 26, 2006. Mrs. Pernini testified that appellant threatened to kill her, cut the phone wires, and broke her cell phone. She requested that the court dismiss the case because appellant had agreed: (1) not to return to the marital home; (2) to take the firearms to his cousin's house; and (3) to participate in anger management counseling and attend Alcoholics Anonymous (AA) meetings. Her fears were briefly allayed because her husband was getting help and showed a "100 percent different personality."
This success proved to be short lived. According to Mrs. Pernini, appellant soon retrieved the firearms from his cousin's house and, without her knowledge, brought the weapons back to her home, keeping them in a lock box in the basement. Appellant also stopped attending therapy sessions, AA meetings and marriage counseling. Mrs. Pernini also said that within two months of the dismissal of the TRO, appellant began to drink again. His substance abuse was quickly followed by violent behavior and resentment against her for her decision to file a domestic violence complaint against him.
On September 27, 2006, Mrs. Pernini filed her second domestic violence complaint against appellant. She alleged that, while visibly drunk, appellant began yelling and biting her, forcing her to flee to a neighbor's house. The State once again seized appellant's firearms and applied for forfeiture of the firearms. Mrs. Pernini subsequently withdrew her domestic violence complaint based on appellant's willingness to enter into a consent order promising to undergo an anger management assessment, and agreeing to have his cousin take possession of the firearms.
Mrs. Pernini testified that she was more optimistic this time around. Notwithstanding her optimism, on October 10, 2006, she wrote a letter to the prosecutor requesting that the State not return appellant's firearms to him. She stated that she feared for the safety of herself and her children.
On October 26, 2006, Mrs. Pernini filed a third domestic violence complaint and obtained a third TRO against appellant. This time, appellant also filed a domestic violence complaint against her. Mrs. Pernini alleged appellant had called her thirty-eight times on that date and left her threatening messages. The trial court dismissed the complaint for lack of evidence. In February 2007, Mrs. Pernini filed her fourth domestic violence complaint seeking a TRO against appellant. She thereafter consented to its dismissal.
During the forfeiture hearing, Mrs. Pernini testified that she feared appellant would use the weapons against her. She admitted, however, that he had never pointed a weapon at her, had never been arrested, had no driving while intoxicated convictions, had no criminal record, and no motor vehicle points.
Appellant denied ever striking his wife or threatening her or anyone else with a firearm. He denied breaking his wife's phone or threatening her, being frequently intoxicated, and threatening to commit suicide. Conversely, appellant testified that his wife had slapped him on one occasion.
Appellant admitted, however, that he lined up his firearms against the bedroom wall, but contended that he left them there for only approximately a month. He brought them to the bedroom in order to clean and oil them.*fn1 He emphasized that, at that point, he no longer shared the bedroom with his wife. Due to their marital difficulties, he had been sleeping on the couch in the living room for approximately two years. The trial court also heard a phone message left by appellant on his wife's answering machine subsequent to her testimony at that very hearing.
After a five-day trial, Judge Bartlett denied the State's petition, determining that the State had not proven, by a preponderance of the evidence, that appellant was a habitual drunkard. The State moved for reconsideration under R. 4:49-2, arguing that it had presented sufficient evidence to support the forfeiture petition based on appellant's threat to Mrs. Pernini in particular, or to the public in general pursuant to N.J.S.A. 2C:25-21d(3). The court granted the State's motion on January 23, 2008.
Appellant now argues that the trial court's conclusion that forfeiture is necessary to protect his former wife or the general welfare is not supported by the evidence. We disagree. The trial court's findings and conclusions of law are well-supported by the record and applicable law. Forfeiture under N.J.S.A. 2C:25-21d(3) is warranted because appellant's conduct makes him a danger to the public welfare, and to his former wife in particular. State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004). We affirm substantially for the reasons expressed by Judge Bartlett in her memorandum of opinion dated October 2, 2007.