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In re Novello

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 15, 2010

IN THE MATTER OF NICHOLAS C. NOVELLO, DENIAL OF A FIREARMS PURCHASER IDENTIFICATION CARD AND PERMIT TO PURCHASE A HANDGUN.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 1, 2010

Before Judges Reisner, Yannotti and Chambers.

Nicholas C. Novello appeals from an order entered by the Law Division on August 31, 2009, which upheld the denial of his application for a permit to purchase a handgun and a Firearms Purchaser Identification Card (FPIC). We affirm.

In January 2009, Novello submitted an application for a permit to purchase a handgun and FPIC to the Police Department of the Township of Scotch Plains, which conducted an investigation of the matter. By letter dated March 11, 2009, Brian T. Mahoney, the Chief of Police, informed Novello that his application was denied because "issuance of [the] permit is not in the interest of public health, safety and welfare." Novello filed an appeal to the Law Division, which conducted an evidentiary hearing on the appeal.

At the hearing, Novello's ex-wife, Maria Pissucci (Pissucci), testified that she and Novello divorced in 2006. She stated that, on one occasion, she and Novello argued. According to Pissucci, Novello became angry at times, slammed doors with force and caused damage.

Pissucci also testified that she told the detective who was investigating Novello's application that she was concerned and afraid that Novello might obtain a gun. She explained that the reason for her concern and fear was "the past abuse" and a threat Novello made around in Christmas, 2008. According to Pissucci, Novello stated that his stomach was "turned" by the idea of her having a boyfriend and he was going to get a gun.

Novello testified that he married Pissucci in November 2003 and filed for divorce in July 2005. He acknowledged that he and Pissucci argued at times. He admitted that, on one occasion, he slammed a door and a piece of the door stop "snapped off."

Novello also presented testimony from Donald James Franklin Ph.D. (Dr. Franklin), who was qualified as an expert in the field of psychology. Dr. Franklin testified that he administered certain psychological tests to Novello and the test results did not indicate that Novello was suffering from any psychological disorder. Dr. Franklin also testified that the test results did not indicate "any psychological issues related to anger that were outside of the normal range."

On cross examination, Dr. Franklin acknowledged that he did not know whether Novello broke a door after an argument with his wife but acknowledged that if Novello had broken the door, that would be an example of anger. Dr. Franklin also acknowledged that Pissucci had a fear of her husband owning or maintaining a handgun but stated that he did not have an opinion as to whether her fear was reasonable.

After hearing argument from counsel for the parties, the court rendered an opinion from the bench. The court noted that Pissucci's behavior probably contributed "to the situation." The court found that Novello's relationship with Pissuci involved "a great deal of acrimony" and was "very argumentative[.]" The court stated that Novello and Pissucci trigger each other into verbal arguments.

They trigger each other into losing their temper[s]. They trigger each other so that doors are slammed. They trigger each other so that doors are slammed and broken. They trigger each other so that the wife is now fearful [that] if he gets a gun... she is going to be killed.

The trial judge stated that it was difficult for him to determine whether Novello had actually threatened to kill Pissucci if she dated someone else. The judge also stated that, while Novello said that he wanted to obtain a gun to protect himself in Scotch Plains, there were "very little incidents of crime, at least incidents of violent crime" in that municipality.

The judge concluded that, based upon the totality of the circumstances, there was no reason to overturn the Police Chief's decision to deny Novello's application for a handgun purchase permit and FPIC. The judge found that the Police Chief had a sufficient basis to deny Novello's application because Pissucci's behavior, although unreasonable at times, triggered an angry reaction on Novello's part which created "a volatile situation." The judge found that, under the circumstances, the Police Chief "had an absolute[ly] correct basis" for his decision.

The court entered an order dated August 31, 2009, affirming the denial of Novello's application for a handgun purchase permit and FPIC. This appeal followed. Novello raises the following arguments for our consideration: 1) denial of an application for a gun permit pursuant to N.J.S.A. 2C:58-3(c)(5) requires evidence of a threat that is overwhelming; 2) the evidence presented here was insufficient to support the court's findings that he is unfit to possess a firearm. We reject these contentions and affirm.

"Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence." In re J.W.D., 149 N.J. 108, 116-17 (1998) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). Moreover, "[d]eference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Id. at 117 (citing Bonnco Petrol, supra, 115 N.J. at 607).

As our courts have often acknowledged, when a judge hears witnesses testify and observes their character and demeanor, the judge can develop a feel for the case that is not readily apparent on a cold record. State v. Locurto, 157 N.J. 463, 474 (1999). We note that, while we defer to a trial court's factual findings when they are supported by substantial evidence, we need not defer to a trial court's legal conclusions. Ibid.

(citing Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995)).

Here, the trial court affirmed the Police Chief's denial of Novello's application for a handgun purchase permit and FPIC pursuant to N.J.S.A. 2C:58-3(c)(5). The statute provides that:

[n]o person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a [FPIC], except as hereinafter set forth. No handgun purchase permit or [FPIC] shall be issued: * * *

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare[.]

The court found that the Police Chief had properly determined that issuance of a handgun purchase permit and FPIC to Novello would not be in the interest of the public health, safety or welfare. In our view, the court's finding is supported by credible evidence.

As we have explained, the testimony presented at the hearing established that Novello and his former wife have a volatile and argumentative relationship, which has at times prompted Novello to act in an angry manner. It is undisputed that Novello's actions have included the forceful slamming of doors, which has resulted in property damage, although the damage was relatively minor. Furthermore, Novello failed to establish that he had a legitimate need for the weapon.

We are satisfied that the court's factual findings support its conclusion that it would not be in the interest of the public's health, safety and welfare for Novello to possess a handgun, particularly in view of his volatile relationship with his former wife. We note that, because Novello and his former wife have a child, they will probably need to interact with each other on a regular basis.

Novello argues, however, that the evidence did not establish that his possession of a handgun would pose a threat to the public health, safety or welfare. In support of this argument, Novello relies upon State v. One Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999). In that case, the trial court ordered the forfeiture of an individual's weapons pursuant to N.J.S.A. 2C:58-3(c)(5) after dismissing the domestic violence complaint of the individual's former wife. Id. at 362. In the domestic violence case, the ex-wife had testified that her former husband made several phone calls in which he said that he was going to reclaim his weapons, insisted upon seeing his daughter "'whenever and with whomever'" he wanted, and refused to tell her what he intended to do with his weapons. Id. at 364-65.

In One Marlin Rifle, we held that the evidence was insufficient to justify the forfeiture of the weapons pursuant to N.J.S.A. 2C:38-3(c)(5). Id. at 372. We stated that the circumstances described by the ex-wife in the domestic violence case appeared to be evidence of "frustration surrounding the marital break-up, rather than psychological behavioral outbursts." Ibid. We also pointed out that the complainant had "conceded that this was a distinctly possible explanation [for] her estranged husband's behavior." Ibid. We concluded that the evidence did not "rise to [the] level of [a] threat to the public health, safety or welfare such as would warrant forfeiture" of the weapons. Ibid.

In our judgment, Novello's reliance upon One Marlin Rifle is misplaced. In that case, the possessor of the weapons merely engaged in certain verbal outbursts. It involved verbal outbursts prompted by "frustration surrounding the marital breakup[.]" Ibid. In this case, Novello did more than express himself verbally. His words were accompanied by angry actions.

Novello also argues that his application for the handgun purchase permit and FPIC should have been granted because he presented unrebutted expert testimony from Dr. Franklin which established that he does not have any psychological disorder or an anger management problem.

Here, the trial court had the discretion to accept or reject Dr. Franklin's testimony, in whole or in part. Pansini Custom Design Assocs., L.L.C. v. City of Ocean City, 407 N.J. Super. 137, 143 (App. Div. 2009) (citing Torres v. Schripps, Inc., 342 N.J. Super. 419, 431 (App. Div. 2001)). We are satisfied that the court did not abuse its discretion by failing to give dispositive weight to Dr. Franklin's opinions.

Dr. Franklin merely opined that, based on the results of his tests, Novello was not suffering from any psychological disorders and there were no "psychological issues related to anger that were outside the normal range." Furthermore, Dr. Franklin's testimony only related to one of the factors that are relevant as to whether the issuance to Novello of the FPIC and handgun purchase permit would be in the interest of the public's health, safety and welfare.

Novello additionally argues that his application for a handgun purchase permit and FPIC decision should have been considered in light of District of Columbia v. Heller, U.S., 128 S.Ct. 2783, 171 L.Ed. 2d 637 (2008), where the Supreme Court held that the Second Amendment to the United States Constitution protects an individual's right to keep and bear firearms. Heller, supra, ___ U.S. at ___, 128 S.Ct. at 2799, 171 L.Ed. 2d at 659. However, we have held that "Heller has no impact upon the constitutionality of N.J.S.A. 2C:58-3(c)(5)." In re Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009). Heller also has no bearing on whether the Chief of Police had a sufficient basis to conclude that issuance to Novello of the handgun purchase permit and FPIC would not be in the interest of the public's health, safety and welfare.

We have considered Novello's other contentions and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20100715

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