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In re N.R. for Revocation of Firearms Purchaser Identification Card and Forfeiture of Weapons

May 14, 2010

IN THE MATTER OF N.R. FOR REVOCATION OF FIREARMS PURCHASER IDENTIFICATION CARD AND FORFEITURE OF WEAPONS.


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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2010

Before Judges Fisher and Espinosa.

N.R. appeals from an order revoking her firearms purchaser identification (I.D.) card and further ordering the forfeiture of any firearms in her possession. In this appeal, N.R. argues that the trial court committed plain error in considering matters that were the subject of an expungement order. We affirm.

N.R. was issued a firearms purchaser I.D. card in 1993. In May 2008, she filed an application for a duplicate card. In light of the significant passage of time since the original card was issued, the Hillside Police Department conducted a full investigation before determining that the application should be denied. The Union County Prosecutor's Office filed a motion on September 23, 2008 pursuant to N.J.S.A. 2C:58-3(f) and N.J.S.A. 2C:58-3(c)(5) to revoke N.R.'s firearms purchaser I.D. card and for the forfeiture of weapons that she owned and possessed. The letter brief filed in support of the motion argued, "[I]t is not in the interest of the public health, safety or welfare for a person to retain a firearms identification card and firearms when she has exhibited a propensity for violence. This is particularly true where that person has assaulted her son, and also threatened to kill herself and her son."

At a plenary hearing, the State presented the testimony of two members of the Hillside Police Department, Sergeant Angelo Lomonte, and Deputy Chief Anthony Mayer.

Sergeant Lomonte testified that, as a patrol officer, he and his partner were dispatched to N.R.'s residence in September 1999 on the report that a mother had attempted to stab her son. N.R. told him that just before the officers arrived, she cut her son with a kitchen knife because of an incident that occurred after he came home from school. She told Sergeant Lomonte that if they did not get her son out of the house, she would kill him and stated further, several times, that she wanted to kill herself. Her son confirmed that N.R. cut him after an argument. He had a cut approximately three inches long in his chest area, but declined medical attention. N.R. was arrested on a charge of aggravated assault and transported to police headquarters, where she again stated that she wanted to kill herself. Sergeant Lomonte arranged for N.R. to be transported to Elizabeth General Hospital (now Trinitas Hospital) for a psychiatric evaluation. The charge of aggravated assault was ultimately dismissed.

Deputy Chief Mayer reviewed the results of the investigation and ultimately recommended that N.R.'s application be denied. In addition to the incident described by Sergeant Lomonte, there were other circumstances that he viewed as showing a history of violence and instability. He described an event in August 2002, when N.R. refused to leave a bank after her employment was terminated. The bank manager and another employee gave statements to the police describing her conduct. N.R. followed an employee around, making demands and causing other employees to feel unsafe and threatened. N.R. was arrested on a charge of defiant trespass, pled guilty and paid a fine. In a third incident, a neighbor reported to the police that N.R. had intentionally and repeatedly backed her car into the neighbor's car during a dispute. Deputy Chief Mayer also testified that he considered N.R.'s answer to a question on the application to be incorrect. Despite the police referral in 1999, she had answered, "No," to a question asking about any prior psychological evaluation. The Chief of Police accepted Deputy Chief Mayer's recommendation and N.R. was advised that her application was denied.

N.R., who appeared pro se, did not object to any of the testimony regarding her arrests and the conduct attributed to her. She presented the testimony of a friend who attested to her good character and the problems created by her son and neighbor. The court also addressed N.R. personally and allowed her to speak on her behalf. She stated that the bank had retaliated against her for filing a complaint with the Equal Employment Opportunity Commission, that her son had abused her and that the neighbor had harassed her. She stated that she never received psychiatric treatment and that when the police took her to the hospital in 1999, the psychiatrist said that there was nothing wrong with her. She also advised the court that the charges involving the bank and her son were expunged.

An order of expungement was entered on February 6, 2009, ordering the appropriate authorities to remove all information relating to N.R.'s arrests on the charges of violating N.J.S.A. 2C:18-3(b)(1) on August 19, 2002 and violating N.J.S.A. 2C:12-1(a) on September 28, 1999. Therefore, the expungement order was entered after the Hillside Police Department reviewed and denied her application; after the State had filed its motion for the revocation of her firearms I.D. card and just two months before the plenary hearing on the State's motion.*fn1

The trial court noted that the State had presented four reasons for its motion to be granted. The court ruled that the information regarding N.R.'s referral for a psychological evaluation and the incident involving her neighbor fell short of establishing by a preponderance of the evidence that she should not be allowed to have a firearms purchaser I.D. card. However, the court found the other information provided "to be much more troubling." The court observed that Sergeant Lomonte was "exceedingly credible. . . . [and] a very impressive witness." The court found the incident was clearly an act of violence, which raises "the [public] safety issue." He then referred to N.R.'s conduct at the place of her former employment, where the employee stated that "she was following them around, they felt unsafe and threatened." The court found that the combination of "a violent act with statements that show some type of emotional overreaction or even instability . . . [and causing] another individual who also feels threatened and unsafe," met the standard set by N.J.S.A. 2C:58-3(c)(5). Therefore, the court found that the applicant's possession of a purchase permit or firearms purchaser I.D. card would not be in the interest of the public health, safety or welfare. Accordingly, the court granted the relief requested by the State.

In this appeal, N.R. argues that the court committed plain error in considering the events that were ...


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