On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-142-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 30, 2009
Before Judges Collester and Fall.
The State applied to the Family Part for an order directing the forfeiture of a certain firearm and ammunition owned by appellant Y.A. and revoking his firearms purchaser identification card pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-21d(3). The trial court granted that application, and Y.A. appeals. The following factual and procedural is relevant to our consideration of the issues advanced on appeal.
On August 24, 2008, defendant's wife, C.A., filed a complaint pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 in South Bound Brook Municipal Court, alleging that appellant had committed acts of harassment against her, contrary to N.J.S.A. 2C:33-4, reciting the following:
On 8/24/2008 the victim stated that she was in the throws of a verbal argument with her husband. Once at home, the victim wanted to leave with her daughter.. The defendant stated that if she take[s] one step out of the house he would kill her. The victim is 6 months pregnant and has a three year old who was present.
The domestic violence complaint, signed by C.A., also recites that a criminal complaint had been filed against appellant for harassment arising out of that incident, and that the responding South Bound Brook police officers had seized "A Black 40 Cal. Sig Sauer hand gun" pursuant to the authority set forth in N.J.S.A. 2C:25-21d(1)(b). Upon review of the complaint, Municipal Court Judge John Leonard telephonically authorized issuance of a temporary restraining order (TRO) against appellant pursuant to the authority set forth in N.J.S.A. 2C:25-18 and R. 5:7A(b). In addition to the usual restraints removing appellant from the marital domicile and prohibiting contact by him with C.A., the TRO prohibited appellant from possessing "any and all firearms or other weapons[,]" and required him to immediately surrender any such weapons along with his firearms purchaser identification card.
The TRO also issued a warrant, authorizing any law enforcement officer to enter the marital domicile to search for any weapons. A final domestic violence hearing was scheduled in the Family Part for August 28, 2008.
On August 28, 2008, C.A. appeared in the Family Part and requested that the complaint and TRO be dismissed. After conducting a hearing on that request, the Family Part judge issued an order on August 28, 2008, dismissing the complaint and TRO. On August 29, 2008, the Somerset County Prosecutor filed a petition in the Family Part seeking an order prohibiting the return of the seized firearm and firearms purchaser identification card to appellant pursuant to N.J.S.A. 2C:25- 21d(3), which provides as follows:
Weapons seized in accordance with the "Prevention of Domestic Violence Act of 1991", P.L. 1991, c. 261 (C. 2C:25-17 et seq.) shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.
A hearing shall be held and a record made thereof within 45 days of the notice provided above. No formal pleading and no filing fee shall be required as a preliminary to such hearing. The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.
If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall be returned to the owner.
After the hearing the court shall order the return of the firearms, weapons and any authorization papers related to the seized weapons to the owner if the court determines the owner is not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3c and finds that the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient cause to indict; or if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation no longer exists. Nothing in this act shall impair the right of the State to retain evidence pending a criminal prosecution. Nor shall any provision of this act be construed to limit the authority of the State or a law enforcement officer to seize, retain or forfeit property pursuant to chapter 64 of Title 2C of the New Jersey Statutes.
If, after the hearing, the court determines that the weapons are not to be returned to the owner, the court may:
(a) With respect to weapons other than firearms, order the prosecutor to dispose of the weapons if the owner does not arrange for the transfer or sale of the weapons to an appropriate person within 60 days; or
(b) Order the revocation of the owner's firearms purchaser identification card or any permit, license or authorization, in which case the court shall order the owner to surrender any firearm seized and all other firearms possessed to the prosecutor and shall order the prosecutor to dispose of the firearms if the owner does not arrange for the sale of the firearms to a registered dealer of the firearms within 60 days; or
(c) Order such other relief as it may deem appropriate. When the court orders the weapons forfeited to the State or the prosecutor is required to dispose of the weapons, the prosecutor shall ...