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In re Bamburak

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 14, 2009

IN THE MATTER OF JOHN BAMBURAK, JR.

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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2009

Before Judges Sabatino and Simonelli.

Appellant John Bamburak appeals from the Law Division order denying his appeal of the denial of his application for a New Jersey Firearms Purchaser's Identification Card and a New Jersey Permit to Purchase a Handgun (the application). We affirm.

On October 18, 2006, Bamburak submitted the application to the Woodbridge Police Department. Question 25 asks,

Have you ever been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an in-patient or outpatient basis for any mental or psychiatric conditions? If Yes, gives the names & location of the doctor, psychiatrist, hospital and the date(s) of such occurrence.

Bamburak responded, "See attached psychological evaluation supplied."

Anthony Todaro, Ph.D., had performed the psychological evaluation on June 20, 2006. The doctor conducted a one-and-one half-hour clinical interview with Bamburak and his girlfriend, which revealed that Bamburak was previously treated for bipolar disorder with depression and had a history of domestic violence. The doctor also conducted six hours of psychological testing. Based on the interview and testing, the doctor concluded that Bamburak could safely handle a firearm.

Although the psychological evaluation mentioned Bamburak's treatment at Raritan Bay Mental Health Center (the Center), Bamburak did not submit any records from that treatment. Rather, Detective Sergeant Joseph Velez, who conducted the investigation, obtained the Center's records from 1986 to 1994, which revealed a much more extensive psychiatric and domestic violence history than that Bamburak revealed on the application and to Dr. Todaro. For example, and apparently unbeknownst to Dr. Todaro, Bamburak had been diagnosed with dysthymia and episodic and anti-social personality disorder, he had a history of alcohol abuse, he "dropped out of treatment and did not respond to treatment[,]" and he was "not interested in treatment." He also had beaten his ex-wife so severely as to rupture her spleen, requiring its removal. Dr. Todaro did not review the Center's records, did not speak to Bamburak's ex-wife, and did not testify at the hearing.

Velez recommended denial of the application based, in part, on Bamburak's failure to fully disclose his mental health history. The officer discounted Dr. Todaro's psychological evaluation because it only involved one clinical interview and six hours of testing, and he credited the Center's records because they involved treatment over several years. The officer concluded that the Center's records gave "a very sufficient cause for denial [of the application]" on the basis of Bamburak's mental health. The officer also recommended denial based on Bamburak's domestic violence history, and on information the ex-wife provided. The officer also emphasized his concern that Bamburak sought to possess a gun professionally as a member of a security force.

The chief of police denied the application because Bamburak did not reveal his entire mental health history on the application, because of public health, safety and welfare concerns, and because of his mental health and domestic violence histories.

Bamburak appealed to the Law Division. Because of his concerns about the domestic violence, Judge Edward Ryan instructed the prosecutor to obtain the ex-wife's input on the application. She subsequently submitted a letter, making unfavorable allegations about Bamburak and objecting to the application.*fn1

Bamburak claimed to possess audio tapes of conversations with his ex-wife, which supposedly refuted her allegations. His attorney requested an adjournment in order to review those tapes. The judge reluctantly granted the adjournment and ordered Bamburak to produce the tapes to the prosecutor.*fn2

Bamburak did not comply with the order.

Bamburak's ex-wife testified at the ensuing hearing that he had psychologically and physically abused her throughout the course of the marriage, many times inflicting injuries requiring medical treatment, including the splenectomy. She also testified about Bamburak's repeated violation of a restraining order and his repeated harassment after the parties had divorced. It was clear from her testimony that she still feared her ex-husband, who she described as having a "violent temper."

Bamburak also testified at the hearing. He admitted the domestic violence resulting in the splenectomy. However, in response to a question about his ex-wife's allegations of repeated abuse, he responded, "I discount them very much, yes." Bamburak also provided ambiguous testimony about his treatment at the Center, claiming that he stopped treatment because of financial concerns.

Judge Ryan denied the appeal. He emphasized that Bamburak's "demeanor at the time of the . . . hearing further calls his credibility into question[,]" and that Bamburak's non-compliance with the court's order to produce the audio tapes "is indicative of his lack of willingness to assume responsibility." The judge concluded that Bamburak "knowingly falsified or failed to provide necessary information that is clearly required by the application." The judge also concluded that Bamburak had "engaged in an act of domestic violence" resulting in the exwife's splenectomy, and that his "lack of self-control and discretion is indicative of his proclivity to engage in conduct that is not in the interest of public health, safety, and welfare."

"Our review of the [trial] judge's findings of fact based on testimony presented during plenary hearing is limited." Mt. Hill, L.L.C. v. Tp. Comm. of Middletown, 403 N.J. Super. 146, 192 (App. Div. 2008). The trial judge's findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and that [we] should exercise [our] original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We should not "disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Credibility determinations are included within the trial court's deferential factfinding authority. Ferdinand v. Agric. Ins. Co. of Watertown, 22 N.J. 482, 492 (1956).

"However, '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'" and is subject to de novo review. Mt. Hill, supra, 403 N.J. Super. at 193 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we continue our analysis.

"On appeal to the Law Division [from the denial of an application for a firearms purchaser identification card], the hearing is de novo, which 'in this context contemplates introduction of relevant evidence and material testimony and the application of an independent judgment to the testimony by the reviewing court.'" In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (quoting Weston v. State, supra, 60 N.J. 36, 45 (1972)). "The chief [of police] has the burden of proving the existence of good cause for the denial by a preponderance of the evidence." Ibid. (citing Weston, supra, 60 N.J. at 46). Good cause for denial exists where the applicant "knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card," or "where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c(3) and (5).

At the hearing, the applicant shall provide testimony regarding the application, its denial and the reasons given by the police department. Weston, supra, 60 N.J. at 46. The police department shall provide any "evidence on which [its] denial was predicated." Ibid. Generally, this includes testimony of the police officers who investigated the application, any lay or professional witnesses who provided information which influenced the denial, and "any admissible documentary evidence which played a part in the adverse decision." Ibid. The applicant is allowed to offer "relevant rebuttal testimony[]" to this evidence. Ibid.

Based on our careful review of the record, we are satisfied that Judge Ryan's factual and credibility determinations are amply supported by credible evidence. Bamburak knowingly falsified information on the application by failing to provide all of the requested material information about his past mental and psychiatric treatment. This in and of itself is a disqualifying factor.

Also, Bamburak concealed from Dr. Todaro critical information about psychiatric history and the nature and extent of the domestic violence, thus discrediting the doctor's conclusion. This, along with Bamburak's domestic violence history, demonstrates his danger to the public health, safety, or welfare.

Bamburak's contentions that Judge Ryan improperly considered his failure to produce the audio tapes, and improperly overrode the State's initial intention to approve the application by requesting information from the ex-wife, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.

Judge Ryan's decision did not rest on Bamburak's failure to produce the audio tapes. Nevertheless, as part of his credibility assessment, the judge was entitled to consider Bamburak's failure to comply with a court directive. Also, the judge's review of the application was de novo. As part of his de novo responsibilities, the judge had the authority to request additional evidence regarding the domestic violence issue. We discern no error in the judge's prudent request to hear cross-examined testimony from the ex-wife before rendering a final decision.

Affirmed.


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