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In re Dubov

October 19, 2009

IN THE MATTER OF ANTHONY DUBOV.


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

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 15, 2009

Before Judges Skillman, Gilroy and Simonelli.*fn1

This appeal involves the procedures that govern a trial court's consideration of an appeal from a police chief's denial of an application for a permit to purchase a firearm.

On November 7, 2006, appellant Anthony Dubov applied to the East Windsor Chief of Police for a firearms purchaser identification card and handgun purchase permit. The application listed two references, as required by N.J.S.A. 2C:58-3(e), one of whom was Brian Johnson. In response to a telephone inquiry by a member of the East Windsor Police Department, Johnson allegedly made negative comments concerning appellant's fitness to own a firearm.

On January 15, 2007, the East Windsor Chief of Police sent appellant a letter notifying him that his application has been denied. The letter did not give any reason for the denial. In addition, the Chief did not offer to meet with appellant to discuss the reasons for the denial, as required by Weston v. State, 60 N.J. 36, 43-44 (1972).

On February 9, 2007, appellant appealed to the Law Division from the denial of his application. Thereafter, a criminal case manager sent appellant a form he was required to complete before the matter would be scheduled.

On the same day the appeal to the Law Division was filed, appellant's counsel sent a letter to the Chief of Police, which requested a statement of reasons for the denial of appellant's application as well as any documents the Chief relied upon in denying the application, a list of witnesses, and the notes and/or transcripts of any interviews of witnesses. As far as the record before us indicates, the Chief of Police did not respond to this discovery request.

Appellant did not submit the required form to the Law Division until November 13, 2007. Appellant's submission included a letter from his counsel, which stated that he had spoken with the Chief of Police, who informed him that the denial of the application had been "based on the lack of cooperation by one of my client's references, as well as the lack of a supportive reference from my client's other reference." Appellant's submission also included the names of two additional references and a report by a psychiatrist, which concluded that appellant "does not suffer from any mental illness on Axis I and that he can be entrusted with the use of a gun in the course of his employment as security officer."

The trial court heard the appeal from the denial of appellant's application on February 28, 2008. However, the court did not hear testimony, as required by Weston, supra, 60 N.J. at 46, by the appellant, the Chief of Police, police officers who investigated and forwarded reports to the Chief, or other witnesses who furnished information that influenced the denial. Instead, the court considered the appeal based solely on documentary evidence, including letters from two of appellant's references and the report of his psychiatrist. The court also considered factual representations set forth in the County Prosecutor's brief regarding Brian Johnson's negative comments about appellant's fitness to own a gun.

At the end of oral argument on the appeal, the trial court asked the parties whether they would have any objection to the court communicating directly with appellant's former employers regarding his fitness to own a gun. The parties consented to this unusual procedure.

The trial court did not decide this case until six months later. During the intervening period, the prosecutor sent a letter to the court which stated that two persons had approached his office "with information on the applicant's character and repute relevant to his fitness to own a firearm" and requested the court's permission to submit those persons' comments. Appellant's counsel sent a letter to the court objecting to this request. Insofar as the record before us indicates, the trial court did not respond to the prosecutor's request. However, on June 18, 2008, Peter Horne, who is coordinator of the criminal justice program at Mercer County College and taught several classes in which appellant was enrolled, sent the trial court a letter that questioned appellant's psychological stability and recommended the denial of his application for a firearms purchaser permit. The court apparently did not transmit this letter to either of the parties, but nevertheless relied upon it in affirming the denial of appellant's application and appended it to the order reflecting this ruling.

The trial court did not issue any opinion. However, the court's reasons for affirming the denial of appellant's application are set forth in summary form in the order ...


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