On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FO-01-135-09B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
Defendant R.B. appeals from an order of forfeiture of weapons seized pursuant to a domestic violence restraining order. He argues that a mistrial was warranted because the judge questioned his wife, utilizing photographs of injuries not produced during discovery, that the judge's decision on the merits was unfounded, and that the statute authorizing forfeiture is unconstitutional. We reject these arguments and affirm.
The record reveals that on August 16, 2008, C.B. (hereafter, Carolyn, a fictional name) obtained a temporary restraining order (TRO) against her husband, defendant R.B., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). As permitted by the Act, the TRO authorized a search of the home. N.J.S.A. 2C:25-28(j). Acting pursuant to the TRO, police seized fourteen firearms, two hunting bows, a K-bar knife, two swords, and ammunition. On September 17, 2008, the domestic violence action was dismissed at Carolyn's request and the TRO vacated. At the same time, the judge entered a consent order in a pending matrimonial action in which defendant agreed: (1) not to consume any alcohol for five months; (2) to continue treatment for post traumatic stress disorder and alcohol dependence; (3) to continue attending Alcoholics Anonymous meetings; and (4) to participate in marital therapy.
The State thereafter moved for forfeiture of the weapons. During the four-day trial, the judge heard the testimony of defendant and Carolyn; they presented competing versions of the events that led to Carolyn's filing of the domestic violence action and testimony about past conduct and their marital difficulties. The judge also heard the testimony of Gary Michael Glass, M.D., a licensed psychiatrist, who testified on defendant's behalf that there was no evidence of alcoholism or habitual drunkenness, that defendant's post-traumatic stress disorder was "mild and resolving," and that defendant was suffering from moderate stress related to the unhappy and dissolving marriage. He concluded defendant had no personality disorders or indicators for alcoholism and, in his view, there was "no reason whatsoever that [defendant] should have to forfeit or be denied the use of his private weapons as an orderly citizen."
Defendant also called character witnesses and others who had witnessed past interactions between him and Carolyn.
At the conclusion of the trial, the judge rendered an oral decision and entered judgment forfeiting the weapons. Defendant unsuccessfully moved for reconsideration and thereafter filed this appeal, arguing that: (1) his motion for a mistrial should have been granted due to "the unfair surprise involved" in the trial judge's "use of photographs not supplied to counsel and the surprise allegation of physical injury"; (2) the evidence does not support the judge's finding that defendant is a danger to the public safety*fn1; and (3) the order under review infringes on defendant's Second Amendment rights.
During the trial, the prosecutor briefly elicited from Carolyn that, in the aftermath of the act of domestic violence that led to the TRO, she went to an attorney, who advised that she have photographs taken of her injuries. Following this testimony, the trial judge showed Carolyn photographs, apparently removed from the court's file regarding her domestic violence action, which Carolyn was asked to authenticate.*fn2
Defense counsel objected, without providing any specific basis for that objection. Counsel also was given the opportunity to question Carolyn about the photographs but chose not to.
The next day, defendant moved for a mistrial on the basis that the photographs were not produced by the prosecutor during discovery; he also moved for recusal. Specifically, defendant argued that the judge "took over the [p]rosecutor's case and essentially tried the case for ...