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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 subject to an expungement order.
At the outset, we note that N.R. did not obtain an expungement order until after the Hillside Police Department had decided not to issue a replacement firearms I.D. card to her. Therefore, it was entirely proper for the Hillside Police Department to review and rely upon the records pertaining to the subsequently expunged arrests and guilty plea in making its determination, a decision that she did not appeal. Further, although she advised the court of the expungement order in her opposition to the State's motion, N.R. did not object to any of the testimony by Sergeant Lomonte or Deputy Chief Mayer regarding the arrests or the underlying facts.
The revocation and forfeiture order was sought and granted pursuant to N.J.S.A. 2C:58-3(c)(5), which provides that No handgun purchase permit or firearms purchaser identification card shall be issued:
. . . . (5) To any person where the issuance would not be in the interest of the public health, safety or welfare[.]
This provision is "intended to relate to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest." In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). Unlike the other categories of statutory disqualification, the application of this provision does not turn upon an explicit condition,*fn2 but rather, rests upon a qualitative and fact-sensitive analysis to determine the applicant's fitness to possess firearms. Therefore, the finding that an applicant poses a threat to the public health, safety or welfare does not require proof of any particular category of behavior such as a criminal conviction, evidence of intentional wrongdoing or any specific diagnosis of mental disorder. Rather, the court must conduct a fact-sensitive analysis that carefully considers the applicant's history of interactions with specific individuals as well as an assessment of the threat he or she may pose to the general public. See State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004).
In light of this focus on the applicant's fitness, the dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm or recover one previously taken by the police. Osworth, supra, 365 N.J. Super. at 79. In fact, in Osworth, we concluded that a trial court erred in failing to consider evidence leading to an arrest when the charges were dismissed because the applicant had successfully completed a pretrial program and, further, that the court should have determined whether that evidence warranted denial of the permit. Ibid. Similarly, although a grand jury failed to indict the defendant on charges arising from shooting his wife in State v. Cunningham, 186 N.J. Super. 502 (App. Div. 1982), we found that, even if accidental, a finding of negligence in the use of a loaded gun would support the denial of a permit pursuant to N.J.S.A. 2C:58-3(c)(5). Id. at 507. In State v. Freysinger, 311 N.J. Super. 509 (App. Div. 1998), we found a proper basis for denying a permit based upon the defendant's disregard for the welfare of others, as demonstrated, in part, by his hitting a pedestrian and choosing to go home and to bed rather than stopping. Id. at 516-17.
The question here is whether the expungement of N.R.'s arrest for aggravated assault and conviction for defiant trespass precluded a finding that she was unfit to possess a weapon pursuant to N.J.S.A. 2C:58-3(c)(5). N.R. argues that the "incidents" were expunged and therefore, could not be considered by the trial court. Our review of the relevant statutes does not support that position.
The Legislature defined the effect of expungement in N.J.S.A. 2C:52-27:
Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred . . . .
N.J.S.A. 2C:52-1(a) defines expungement as the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system. [(Emphasis added).]
This statute does not require the destruction of expunged records, only their "extraction and isolation." See State v. XYZ Corp., 119 N.J. 416, 421 (1990); State v. A.N.J., 98 N.J. 421, 425 (1985) (quoting Statement to Senate, Bill No. 3203 (June 18, 1979)). The "records on file" subject to such "extraction and isolation" are defined in N.J.S.A. 2C:52-1(b) as including complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records.
After expungement, the records remain available for designated uses.*fn3 And, even in circumstances in which the use of expunged records is not specifically authorized by statute, the information underlying the matters expunged is not necessarily treated as if the events did not occur. See, e.g., G.D. v. Kenny, 411 N.J. Super. 176 (App. Div. 2009) (defense of truth remained available to defendants sued for defamation for circulating flyers referring to plaintiff's criminal record, despite the fact that plaintiff's conviction had been expunged); E.A. v. N.J. Real Estate Comm'n, 208 N.J. Super. 65 (App. Div. 1986) (because Real Estate Commission was not subject to expungement order, it could not be compelled to correct its records concerning a lapse in plaintiff's real estate and insurance licenses because of a criminal conviction that was expunged).
In this case, the expungement order required the extraction and isolation of the "records on file" as defined by N.J.S.A. 2C:52-1(b) that related to the aggravated assault arrest and the defiant trespass. If revocation and forfeiture were sought based upon the existence of a conviction, see N.J.S.A. 2C:58- 3(c)(1); N.J.S.A. 2C:58-3(c)(7), the expungement of those records would not support revocation and forfeiture. However, here the State did not seek revocation and forfeiture and the court did not grant such relief based upon the existence of arrests or a conviction.
The State's interest in preventing persons who are unfit from possessing firearms is a substantial one. Therefore, in the face of evidence that provides a rational basis to question an applicant's fitness to possess a firearm, we have held that a defendant's right to maintain the confidentiality of medical information "is subordinate to the public's interest in preventing individuals deemed statutorily unfit from possessing firearms." Cordoma, supra, 372 N.J. Super. at 537. Similarly, although the Domestic Violence Act, N.J.S.A. 2C:25-21(d)(3), required the return of weapons to a defendant after a dismissal of the domestic violence complaint prior to its amendment in 2003,*fn4 the Supreme Court concluded that the Legislature did not intend such a result if a court found that the defendant posed a threat to public health, safety or welfare. In re Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997). In the cases that followed, we adhered to the principle that a court could take firearms away, provided that the facts available to the court supported a finding that the person posed a threat to public health, safety or welfare, even if a domestic violence complaint was ultimately dismissed for lack of evidence. See State v. One Marlin Rifle, 319 N.J. Super. 359, 371 (App. Div. 1999); State v. Volpini, 291 N.J. Super. 401, 413 (App. Div. 1996).
The trial court did not rely merely upon the records of arrest and conviction to find that N.R. posed a threat to public safety. Instead, the court reviewed the facts underlying these events, which included the testimony of the officer who had responded when N.R. assaulted her son, had seen the injury inflicted upon her son and heard N.R.'s own threats to kill her son and herself. These facts revealed N.R. to have violent propensities, to act on those propensities, inflicting injury upon her son and even telling the responding police officers that if they did not remove her son, she would kill him. Even if we accepted N.R.'s argument as excluding consideration of the evidence contained in the records that were expunged, the expungement order did not erase these underlying events, which were presented through competent testimony. In light of the public's interest in preventing individuals deemed statutorily unfit from possessing firearms, Cordoma, supra, 372 N.J. Super. at 537, the State's interest in having such information available outweighs any legitimate interest in having the information excluded from consideration. See State v. Zemak, 304 N.J. Super. 381, 384-85 (Law Div. 1997).
Moreover, as previously noted, N.R. did not object to the testimony of Sergeant Lomonte or Deputy Chief Mayer. "The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Because this issue is raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2006). Even if we accepted N.R.'s argument that the expunged "records on file" could not be considered, Sergeant Lomonte's testimony based upon his first-hand knowledge of her assault and threats to kill her son and herself are sufficient to support a finding that she was unfit to possess firearms pursuant to N.J.S.A. 2C:58-3(c)(5). See Cunningham, supra, 186 N.J. Super. at 507. Therefore, we do not find plain error here.