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In re Banic

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 24, 2009

IN THE MATTER OF THE APPEAL OF MIODRAG M. BANIC FROM DENIAL OF A DUPLICATE FIREARMS PURCHASER IDENTIFICATION CARD

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically on August 11, 2009

Before Judges Rodríguez and LeWinn.

Petitioner Miodrag M. Banic appeals from the August 29, 2008 order of the Law Division upholding the decision of the Township of Scotch Plains denying his application for a duplicate firearms purchaser identification card (FPIC). For the reasons that follow, we affirm.

The pertinent factual background may be summarized as follows. In 2000, petitioner resided in Roselle Township and obtained an FPIC in that municipality. In 2008, petitioner moved to Scotch Plains and, on February 11, 2008, applied for a duplicate FPIC. On March 13, 2008, the Chief of the Scotch Plains Police Department informed petitioner by letter that the "application for a change of address within this jurisdiction[]" was denied because the police investigation "ha[d] concluded that the issuance of this permit [wa]s not in the interest of public health, safety and welfare."

On April 8, 2008, petitioner filed an appeal with the Law Division. In a letter dated April 28, 2008, Scotch Plains Township Attorney Brian J. Levine advised petitioner's counsel that an additional reason for denying petitioner's application was because of falsification of his application.

As set forth in Detective [Jason] Fiore's Investigative Report, [petitioner] indicated that he had never been convicted of a disorderly persons offense that had not been expunged or sealed, when in fact a criminal history background check revealed that [petitioner] pled guilty or was found guilty of improper behavior stemming from an incident in Scotch Plains on January 1, 1999.

Levine's letter enclosed discovery including Fiore's report. In that report, Fiore stated that Scotch Plains police officers had described petitioner's conduct on January 1, 1999, as "extremely belligerent and violent. His attempt to flee the scene prior to apprehension and falsifying his identity when interviewed show[ed] a genuine disrespect for authority."

Fiore also reported that petitioner had "a poor driving record involving traffic violations such as speeding and careless driving." Therefore, Fiore recommended that petitioner not be issued a duplicate FPIC based on his "previous behavior involving the arrest, the lengthy poor driving record, and the lie of never being convicted of a disorderly persons offense on the application . . . [which] all demonstrate a lack of law abiding behavior."

The trial judge heard oral argument on August 22, 2008. Levine stipulated that petitioner's prior conviction had been for a "petty disorderly persons offense, not a disorderly persons offense" and, therefore, withdrew the charge that petitioner had falsified his application.

Petitioner argued that only his driving record remained as a potential barrier, and noted that, over the course of eleven years, he had one speeding ticket, one careless driving citation and a fictitious plate ticket. Petitioner also pointed out that he was twenty-two years old when the 1999 charge arose; notwithstanding that charge, Roselle had issued him an FPIC, which he held without incident for eight years.

On August 29, 2008, the trial judge rendered his decision from the bench. In denying the petitioner's application, the judge stated:

Now when we're looking at this, the [petitioner] had pled guilty to a petty disorderly offense. And when . . . asked . . . whether he had been convicted of a . . . disorderly persons offense . . . on the application, the fact that he had been convicted of a petty disorderly is not a lie, and therefore that reason that the chief espoused is not valid.

The [c]court did look at . . . [exhibits] . . . which . . . [were] admitted into evidence, and ha[s] examined the statements of the witnesses and the police.

This incident . . . arose out of a fight at Snuffy's [restaurant] in Scotch Plains. The [petitioner] . . . apparently broke a bottle over another person's head and after . . . [that], he fled to avoid apprehension and was found in the bushes. His behavior was violent and belligerent and he falsified also his identity when he was arrested.

Those factors, although he did not plead guilty to it due to the lenity of the people who were handling this matter, does not remove the issue that would concern the [c]court.

Now he was a young man . . . . And the concern is, what if he would have had a gun on that occasion. That should not be something that should have been available to him, and for that reason, the [c]court finds that the chief's rejection of him for public safety and . . . health reasons and welfare is appropriate.

On appeal, petitioner raises the following arguments for our consideration:

POINT I

THE DENIAL BY SCOTCH PLAINS OF PETITIONER'S APPLICATION FOR A DUPLICATE FIREARMS PURCHASER IDENTIFICATION CARD BASED UPON A NINE YEAR OLD PETTY DISORDERLY PERSONS CHARGE WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE

POINT II

IN LIGHT OF THE FACT THAT PETITIONER POSSESSED A VALID FIREARMS PURCHASER IDENTIFICATION CARD AND AT ALL TIMES MET THE CRITERIA TO POSSESS THE IDENTIFICATION CARD PURSUANT TO N.J.S.A. 2C:58-3([c]), SCOTCH PLAINS' DENIAL OF PETITIONER'S CHANGE OF ADDRESS APPLICATION WAS ARBITRARY AND CAPRICIOUS

POINT III

THE LAW DIVISION ABUSED ITS DISCRETION BY FAILING TO RECOGNIZE THAT SCOTCH PLAINS DID NOT MEET ITS BURDEN OF PROOF, PURSUANT TO N.J.S.A. 2C:58-3(c), OF GOOD CAUSE FOR THE DENIAL OF THE APPLICATION FOR A DUPLICATE FIREARMS PURCHASER IDENTIFICATION CARD PERMIT

POINT IV

BECAUSE PETITIONER ENGAGED IN NO DISABLING BAD ACTS WITHIN THE AMBIT OF N.J.S.A. 2C:58-3(c), UPON REMAND, SCOTCH PLAINS MUST DEMONSTRATE, BY A PREPONDERANCE OF THE EVIDENCE, HOW THE DIFFERENCE FROM ITS COMMUNITY STANDARDS TO THAT OF THE TOWNSHIP OF ROSELLE CREATES SUFFICIENT GOOD CAUSE FOR THE DENIAL OF THE ISSUANCE OF A DUPLICATE FIREARMS PURCHASER IDENTIFICATION CARD PERMIT

We have reviewed these issues in light of the record and the controlling legal principles; we conclude they are without merit and affirm.

The trial judge did not premise the denial of petitioner's application upon either his driving record or the charge that he had falsified his application. Rather, the trial court focused exclusively on the grounds set forth in N.J.S.A. 2C:58-3(c)(5), namely that "the issuance [of an FPIC] would not be in the interest of the public health, safety or welfare."

A municipality's chief of police has the discretion, "subject to standards which have been adjudged constitutionally adequate," to grant or deny an application for an FPIC. Weston v. State, 60 N.J. 36, 43 (1972); N.J.S.A. 2C:58-3(d). "'The function of the [p]olice [c]hief as the local administrative official charged with responsibility for the original decision to grant or withhold the [FPIC] involves largely the exercise of an informal discretion[,]' based upon the information disclosed by a 'good faith investigation[.]'" In re Application of Boyadjian, 362 N.J. Super. 463, 475 (App. Div.) (quoting Weston, supra, 60 N.J. at 43, 45), certif. denied, 178 N.J. 250 (2003).

A police chief's decision to deny an FPIC application is subject to de novo review in the Law Division, which "contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court." Weston, supra, 60 N.J., at 45. The police chief bears the burden of establishing good cause for the denial by a preponderance of the evidence. Id. at 46. In evaluating the facts and the reasons given for the rejection, "the court should give appropriate consideration to the [c]hief's investigative experience and to any expertise he appears to have developed in administering the statute." Ibid.

Here, the parties agreed to proceed on stipulated facts in the trial court; no testimony was adduced. The court reviewed the police reports from the 1999 incident, which included witnesses' statements. Petitioner submitted no documentation to refute those reports and statements.

Petitioner claims that Roselle "considered [his] 1999 incident and, nonetheless, approved a[n FPIC] as requested . . . ." However, as respondent points out, the record is "completely silent on what information or documentation was in the possession of" the Roselle police chief when petitioner's original FPIC was approved.

In any event, Roselle's grant of an FPIC is not binding upon Scotch Plains. Boyadjian, supra, 362 N.J. Super. at 478. The Scotch Plains police chief was required to render an independent determination based upon his own investigation and evaluation before issuing an FPIC. Ibid.; N.J.A.C. 13:54-1.11(c). It is worth noting that the "disab[ling]" bad act, N.J.S.A. 2C:58-3(c), underlying the denial occurred in Scotch Plains, further enhancing the police chief's discretion to weigh petitioner's prior conduct in the interest of the very community the chief serves.

We are satisfied that the trial judge accorded appropriate consideration to the local interest factors implicated in N.J.S.A. 2C:58-3(c)(5). The passage of nine years since the incident at Snuffy's restaurant is not, in and of itself, sufficient to render the denial of this application arbitrary, capricious or unreasonable.

The reason for reposing authority over the grant of FPICs in local chiefs of police seems obvious. Given their responsibilities for public safety, they have compelling interests in firearm control in their communities; and their investigative experience and familiarity with investigative techniques, as well as their experience in evaluating the data obtained through investigation, furnish presumptively reliable bases for determining whether an individual's access to firearms is likely to compromise public safety in that community.

[In re Boyadjian, supra, 362 N.J. Super. at 476.]

In light of the deference accorded to the "presumptive[] reliab[ility]" of the "bas[i]s for" the police chief's "determin[ation,]" ibid., we conclude that the trial judge's decision upholding the denial of petitioner's duplicate FPIC application is supported by the record and, therefore, will not be disturbed. In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997).

Affirmed.

20090824

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