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In re Application of Echevarria


August 20, 2010


On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. G-04-09.

Per curiam.


Submitted February 22, 2010

Before Judges Lisa and R. B. Coleman.

Appellant Wilfredo Echevarria appeals a February 23, 2009 order of the Law Division denying his appeal of the denial of his application for a New Jersey Firearms Purchaser Identification Card (NJFPIC). In essence, Echevarria raises six arguments on appeal: (1) that denial of his application on the grounds of public health, safety and welfare was unjustified; (2) that he should not have been required to produce a NJFPIC in order to retrieve his weapons; (3) that the denial of his application was contrary to the doctrine of res judicata; (4) that the hearing judge did not apply the appropriate standard of review; (5) that he was denied his constitutional right to bear arms; and (6) that the hearing judge's decision runs contrary to public policy, legislative intent and precedent. We have carefully considered all of these arguments in light of the applicable facts and law, and we affirm the order from which Echevarria appeals.

On April 1, 2008, appellant was living in Winslow Township with his wife and their three children, then ages nine months, four and nine years old. Having overheard his wife say that she was going to physically harm herself, then call the police and say that he did it in order to get him out of the house, appellant, who had filed for divorce the preceding day, left the residence and filed a report of this information with the Winslow Township Police Department.

Appellant returned home and removed his Ruger 10/22 .22LR Semi-Automatic Rifle (semi-auto rifle) and Gamo .177 Pellet Rifle (pellet rifle) from a locked closet and stood the firearms against the wall in a hallway. The semi-auto rifle had a lock on it. The pellet rifle did not. Appellant allegedly removed the guns from the closet with the intention of transporting them in his motor vehicle from his home to a friend. Appellant's nine-month old baby was at home and under appellant's supervision while the firearms were uncloseted, resting against the wall.

When Mrs. Echevarria returned home that evening, she took the baby from appellant, placed and photographed the child in front of the weapons, and began a confrontation with appellant that became physical. Mrs. Echevarria called the police. Mr. Echevarria was arrested and his guns were seized. A temporary restraining order (TRO), under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, was issued on behalf of Mrs. Echevarria against appellant, and he was charged with simple assault in violation of N.J.S.A. 2C:12-1(a), a disorderly persons offense.

On April 10, 2008, the TRO was dismissed. Thereafter, the Office of the Camden County Prosecutor filed a notice of motion to forfeit the seized firearms pursuant to N.J.S.A. 2C:25-21(d)(3). On August 11, 2008, the simple assault charge was dismissed in Winslow Township municipal court, and on August 26, 2008, Judge Solomon of the Chancery Division, Family Part, Camden County, finding no prohibition on the return of appellant's weapons, ordered that the seized firearms in question be returned to appellant. On September 5, 2008, an Assistant Camden County Prosecutor sent a letter to appellant outlining the procedure for the return of his firearms. This procedure included a requirement that appellant present a valid NJFPIC issued by the chief of police of his current residential municipality.

As appellant did not possess a NJFPIC, he submitted an application for one to the Winslow Township Police Department on October 10, 2008. That application was denied by the Winslow Township police chief on the grounds that issuance would not be in the interest of the public health, safety and welfare.

Echevarria, acting pro se, appealed the denial to the Superior Court of Camden County. On February 23, 2009, Judge Samuel D. Natal of the Law Division, Criminal Part, conducted a hearing on the appeal. Detective Vincent DeBlaise testified on behalf of the State. The detective was involved in the investigation of Echevarria pursuant to his application for a NJFPIC. Noting that all charges and the TRO against Echevarria were dropped, Detective DeBlaise stated that the application for a NJFPIC was denied because issuance would not have been in the interest of public health, safety and welfare based on the handling of the weapons next to appellant's child as depicted in the photograph taken by Mrs. Echevarria.

Echevarria testified consistently with the series of events described above, and also revealed that he had purchased the firearms in North Carolina and, without a NJFPIC, transported them to New Jersey where he resided. The judge found that the photograph of the child near the weapons and appellant's circumvention of New Jersey firearm laws provided a basis for the denial of the application for a NJFPIC, and "that the Chief of Police was not acting arbitrary."

Appellant then engaged counsel and filed motions for reconsideration and a new trial. A motion hearing was held on March 23, 2009 before Judge Natal, who ruled as follows:

[B]asically there has been nothing new presented today that would change the Court's decision. I am satisfied that [Echevarria] was going to be transferring the firearm. He had it in the presence of the child. He was taking it out to give it to a friend, take it over a friend's house. All of this without a firearms identification card. And to try and get one after the fact defeats the purpose of showing that he is willing to comply with gun laws. And for that reason, I have denied it.

On March 30, 2009, the judge issued an order denying appellant's motions.

On April 6, 2009, appellant filed a notice of appeal. On April 8, 2009, the judge submitted an amplification of the court's opinion supplementing the reasons for his ruling and order of February 23, 2009. The judge wrote:

In addition to the reasons stated on the record for the denial of the appeal, the court feels that Mr. Echevarria's conduct of transporting weapons from North Carolina to New Jersey, in keeping the weapons in the house without a safety lock in the presence of a child, as well as his intent to transport the weapons and transfer them to a friend show evidence of his continued lack of compliance with New Jersey law, and . . . that the Chief of Police has met his burden by proving by a preponderance of the evidence that there was good cause for the denial of the application under the public health, safety, and welfare provisions of the statute.

Our "review of the [trial] judge's findings of fact based on testimony presented during plenary hearing is limited." Mountain Hill L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 192 (App. Div. 2008). It is well established that the trial judge's findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and that [we] should exercise [our] original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-83 (1974)). "[I]n the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it." Weston v. State, 60 N.J. 36, 51 (1972). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'" and is subject to de novo review. Mountain Hill, supra, 403 N.J. Super. at 193 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).


Appellant argues that the Law Division erred in sustaining the denial of his application for a NJFPIC on the basis that issuance would not be in the interest of the public safety, health or welfare under N.J.S.A. 2C:58-3(c)(5). The law governing the issuance of NJFPICs in this state provides in pertinent part that:

No person shall sell, give, transfer, assign or otherwise dispose of, nor receive, purchase, or otherwise acquire an antique cannon or a rifle or shotgun, other than an antique rifle or shotgun, unless the purchaser, assignee, donee, receiver or holder is licensed as a dealer under this chapter or possesses a valid firearms purchaser identification card, and first exhibits said card to the seller, donor, transferor or assignor . . . . [N.J.S.A. 2C:58-3(b).]

Upon submitting an application for a NJFPIC, "the original decision as to whether a [NJFPIC] should be granted [is within] the discretion of the chief of police . . . subject to standards which have been adjudged constitutionally adequate." Weston v. State, supra, 60 N.J. at 43. The chief of police is legislatively obligated "to look with favor upon the grant of the application[,]" and will conduct an informal investigation "[']to determine whether or not the applicant has become subject to any of the disabilities set forth in the statute.'" Id. at 41, 43 (quoting N.J.S.A. 2A:151-35; -36 (predecessor of N.J.S.A. 2C:58-3)). Appellant's application for a NJFPIC was denied solely on the basis of disability (c)(5), which states:

c. . . . . No 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 firearms purchaser identification card, except as hereinafter set forth. 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[.] [N.J.S.A. 2C:58-3(c)(5).]

The police chief based this finding on appellant's handling of the weapons in proximity to his children as represented in the photograph taken by Mrs. Echevarria. The hearing judge additionally stated in his amplification of reasons that "Mr. Echevarria's conduct . . . show[s] evidence of his continued lack of compliance with New Jersey law[.]"

Appellant now argues that his conduct was lawful and did not justify the denial of his application. We disagree.

Though there are no pending criminal charges against Echevarria, the facts admitted by him indicate that his possession of rifles without a NJFPIC likely resulted in his violating N.J.S.A. 2C:39-5(c), unlawful possession of weapons, a third-degree crime, and N.J.S.A. 2C:58-3.1, temporary transfer of firearms. Further, the admissions of appellant also establish that he illegally transported firearms over state lines in violation of 18 U.S.C.A. § 922. We have previously stated that an applicant's willingness to disregard guns laws will support the denial of a NJFPIC, even without a conviction of the offense:

Since a criminal conviction for [any] of those offenses would be an automatic bar to obtaining a [NJFPIC], N.J.S.A. 2C:58-3[(c)](1), the fact of their commission, even absent conviction, warranted denial of the [NJFPIC] in this case under subsection [(c)](5). In short, it does not serve public safety to issue a [NJFPIC] to someone who has demonstrated his willingness to disregard the gun laws of this State.

[In re Osworth, 365 N.J. Super. 72, 81 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).*fn1 ]

Appellant attempts to analogize his situation to that of "widows" inheriting guns without a NJFPIC under N.J.S.A. 2C:58-3(j), however, that analogy fails. That section of the statute does not apply to appellant and it lends no support to his arguments.

Appellant asserts that the Law Division should not have found that his purchase of guns in North Carolina, transportation of those guns to New Jersey, and subsequent possession of those guns in New Jersey was unlawful, and in turn, warranted the denial of his application for a NJFPIC. We accept there is no evidence that appellant's purchase of the rifles in North Carolina was unlawful; however, under 18 U.S.C.A. § 922(a)(3), "[i]t shall be unlawful- . . . (3) for any person other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides . . . any firearm purchased or otherwise obtained by such a person outside that State[.]" In short, the transportation of the unlicensed rifles over state lines was undoubtedly in violation of 18 U.S.C.A. § 922(a)(3), and, as the Law Division judge recognized, speaks to Echevarria's willingness not to abide by gun laws. In re Osworth, supra, 365 N.J. Super. at 81. See also N.J.S.A. 2C:58-3(c)(1), (5).

Although N.J.S.A. 2C:39-5(c)(1) provides that "[a]ny person who knowingly has in his possession any rifle or shotgun without having first obtained a [NJFPIC] in accordance with the provisions of N.J.S.A. 2C:58-3, is guilty of a crime of the third degree[,]" N.J.S.A. 2C:39-6(e) provides an exception that permits the keeping and limited carrying of firearms about a person's "place of business, residence, premises or other land owned or possessed by him[.]" Though Echevarria's keeping the firearms within his home fell under the N.J.S.A. 2C:39-6(e) exception to N.J.S.A. 2C:39-5(c), his intended transportation of the rifles to a friend would not have.

Appellant argues, nonetheless, that his intention to transfer the rifles to his friend were justified and legal. He asserts that the New Jersey State Certificate of Eligibility for the transfer of long guns*fn2 does not require that the transferor have a NJFPIC. available at See also N.J.S.A. 2C:58-3(b). This assertion is untenable. The form Certificate of Eligibility specifically requires that the transferor provide his or her "Firearms I.D. Card Number[.]" Ibid. Appellant insinuates that the form is not referring to the NJFPIC number; yet, the NJFPIC is the only form of identification required to either purchase or possess long guns such as appellant's rifles. In order for appellant to lawfully transfer his weapons to his friend, he would have been required to have a NJFPIC. Even though appellant would not have been required to complete the New Jersey Certificate of Eligibility for Transfer form if the transfer to his friend was temporary, N.J.S.A. 2C:58-3.1, appellant's journey to his friend's house with the guns absent a NJFPIC would have been illegal under N.J.S.A. 2C:39-5(c) and N.J.S.A. 2C:39-6(e).

Appellant maintains that he did not endanger the welfare of his children at any point while in possession of the subject firearms. He testified that both rifles were usually kept in a locked closet, and on April 1, 2008 when the rifles were removed from the closet, only his nine-month-old child was at home and under his supervision. He further emphasizes that the semi-auto rifle had a lock on it, though the pellet rifle did not; however, he notes that the pellet rifle was unloaded and resting against the wall in a "broken," thus, inoperable position.

Under N.J.S.A. 2C:58-15, appellant's storage of his firearms was still unlawful. The statute states in relevant part:

a. A person who knows or reasonably should know that a minor is likely to gain access to a loaded firearm at a premises under the person's control commits a disorderly persons offense if a minor gains access to the firearm, unless the person:

(1) Stores the firearm in a securely locked box or container;

(2) Stores the firearm in a location which a reasonable person would believe to be secure; or

(3) Secures the firearm with a trigger lock.

The guns, when stored as they were, typically in a locked closet, satisfied the requirements of N.J.S.A. 2C:58-15(a)(2). Even, on April 1, 2008, the uncloseted semi-auto rifle, secured with a trigger lock, would have satisfied N.J.S.A. 2C:58-15(a)(3), but the pellet gun, not securely locked or stored, and not secured with a trigger lock, did not satisfy the statutory requirements.

The statute requires where a person "knows or reasonably should know that a minor is likely to gain access to a loaded firearm at a premises under the person's control" that all firearms not "in a securely locked box or container" or "in a location which a reasonable person would believe to be secure" must be secured with a trigger lock. N.J.S.A. 2C:58-15(a). Though appellant contends that his youngest child was under his supervision at all times, it is doubtful that the child remained supervised during the ensuing altercation between the couple. At least one of the rifles was not secured by a trigger lock and the chief of police determined that appellant's handling of his firearms around his children was unsafe. We are satisfied the police chief's conclusion is supported by evidence in the record, and that the trial judge gave appropriate deference to the opinion of the police chief due to his experience and expertise in administering N.J.S.A. 2C:58-3. Weston, supra, 60 N.J. at 46.

We are not impressed by appellant's argument that his actions are not as severe as those shown in certain other cases where individuals were denied access to their firearms on the grounds of public health, safety or welfare. See, e.g., State v. Cunningham, 186 N.J. Super. 502 (App. Div. 1982) (where defendant shot his wife, the court found that the intentional wrongdoing or negligence in the handling of a weapon supported the denial of permit); State v. Freysinger, 311 N.J. Super. 509, 517 (App. Div. 1998) (firearm forfeiture was upheld where defendant had two convictions for DUI, two convictions for refusal to submit to chemical tests and admitted to hitting a pedestrian with his car and not stopping his vehicle); In re Osworth, supra, 365 N.J. Super. at 81 (holding that defendant's application for a NJFPIC was properly denied where he had clearly violated N.J.S.A. 2C:39-5(b), unlawful possession of a handgun, and N.J.S.A. 2C:39-3(f), possession of hollow point ammunition, but was never charged). The record adequately discloses that he illegally transported his rifles over state-lines, and was willing to ignore New Jersey State firearm legislation by transporting and transferring his rifles to a friend.

In In re Osworth, supra, we observed that it "does not serve public safety to issue a [NJFPIC] to someone who has demonstrated his willingness to disregard the gun laws of this State." 365 N.J. Super. at 81. Likewise, it does not serve public safety to issue a NJFPIC to an applicant who willingly disregarded federal law. In any event, the denial of appellant's application for a NJFPIC could reasonably have been reached on the credible evidence presented. State v. Locurto, 157 N.J. 463, 471 (1999). See also N.J.S.A. 2C:58-3; N.J.S.A. 2C:58-3.1; N.J.S.A. 2C:39-5(c); N.J.S.A. 2C:39-6(e).


Appellant next argues that he should not have been required to produce a NJFPIC in order for his firearms to be returned. This issue was not raised below, and typically we will "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available[.]" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We nonetheless make the following brief comments.

Appellant correctly asserts that there is nothing in either N.J.S.A. 2C:25-21(d)(3) (governing the procedure for return of weapons seized in accordance with the "Prevention of Domestic violence Act of 1991") or N.J.S.A. 2C:58-3 requiring possession of a NJFPIC to retrieve forfeited weapons that were ordered returned. However, the court in Cunningham, supra, 186 N.J. Super. at 511, clearly stated that the "return of [a] firearm to its owner at a time when the owner would be disqualified from obtaining a permit to acquire the firearm constitutes a transfer that is prohibited by" N.J.S.A. 2C:58-3. Further, where an applicant is disqualified from receiving a NJFPIC under N.J.S.A. 2C:58-3(c) "the State need not return the guns[.]" Id. at 513. Thus, appellant's arguments that he should not have been required to present a valid NJFPIC in order to retrieve his rifles are so lacking in merit as to not warrant any further discussion. R. 2:11-3(e)(1)(E).


Appellant argues that since Judge Solomon was required to find that he "[w]as not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3(c)" under N.J.S.A. 2C:25-21(d)(3) before ordering the return of his firearms, the State was barred by the doctrine of res judicata from denying his application for a NJFPIC.

The doctrine of res judicata "'contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation.'" Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989) (quoting Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960)). Res judicata "[']precludes parties from relitigating substantially the same cause of action.'" Ibid. (quoting Kram v. Kram, 94 N.J. Super. 539, 551 (Ch. Div.), rev'd on other grounds, 98 N.J. Super. 274 (App. Div. 1967), aff'd, 52 N.J. 545 (1968)). "The application of the res judicata doctrine requires substantially similar or identical causes of action and issues, parties, and relief sought." Ibid.

"To decide if two causes of action are the same, the court must consider: '(1) whether the acts complained of and the demand for relief are the same (that is, whether the wrong for which redress is sought is the same in both actions); (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4) whether the material facts alleged are the same.'" [Garvey v. Twp. of Wall, 303 N.J. Super. 93, 98-99 (App. Div. 1997) (quoting Culver, supra, 115 N.J. at 461-62) (citations omitted).]

Res judicata does not apply in this instance. There was no adjudication before Judge Solomon over the return or forfeiture of the guns. In addition, the domestic weapons forfeiture proceeding before Judge Solomon, and appellant's application to the police chief for a NJFPIC, albeit related, are not "substantially similar or identical causes of action[.]" Culver, supra, 115 N.J. at 460. Further, the applicable statute, N.J.S.A. 2C:25-21(d)(3), expressly designates the police chief, as the official making "the original decision to grant or withhold the" NJFPIC, which is an indispensable prerequisite for lawful possession of a weapon as mandated under N.J.S.A. 2C:58-3(c). Weston, supra, 60 N.J. at 45.


Appellant argues that the hearing judge based his determination on whether the police chief was acting arbitrarily rather than by the standard described in Weston and In re Osworth. We have observed that "[o]n appeal to the Law Division [from the denial of a NJFPIC], the hearing is de novo, which 'in this context contemplates introduction of relevant evidence and material testimony and the application of an independent judgment to the testimony by the reviewing court.'" In re Osworth, supra, 365 N.J. Super. at 77 (quoting Weston, supra, 60 N.J. at 45). At such a hearing, the chief of police bears the burden of showing by a preponderance of the evidence that good cause for the denial existed under N.J.S.A. 2C:58-3(c). Ibid. "The aim of [appellate] review . . . is to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

At the February 23, 2009 hearing, the judge heard testimony from Detective DeBlaise and appellant, viewed evidence, and made an independent determination. The judge found that the police chief was not acting arbitrarily in denying the NJFPIC, and that there was a sufficient basis for him to deny the application. In his amplification of reasons, the judge stated that "the chief of police has met his burden of proving by a preponderance of the evidence that there was good cause for the denial of the application[.]" The judge found that in addition to the reasoning offered by Detective DeBlaise for denying appellant's application, appellant's failure to comply with New Jersey firearm laws supported the denial of his application for a NJFPIC in the interest of public health, safety or welfare. The hearing judge clearly made an independent ruling based on the testimony and evidence presented.


This court recently held in In re Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009), that N.J.S.A. 2C:58-3(c)(5), prohibiting the issuance of a NJFPIC if the "issuance would not be in the interest of public health, safety or welfare[,]" is not affected by the Supreme Court of the United States' decision in District of Columbia v. Heller, __ U.S. __, 128 S.Ct. 2783, 181 L.Ed. 2d 637 (2008), and is not unconstitutionally vague. See McDonald v. Chicago, ___ U.S. ___,___, 130 S.Ct. 3020, ___, 177 L.Ed. 2d 894, 903 (2010) (extending Heller's holding to the States and holding "that the Second Amendment right is fully applicable to the States."). Appellant nonetheless argues that the denial of his application for a NJFPIC should have been balanced against his fundamental right to bear arms. In In re Dubov, supra, we addressed this very issue:

The issue in Heller was whether the Second Amendment protects only the right to possess and carry a firearm in connection with military service or also protects an individual's right to possess a firearm for other purposes such as self-defense and hunting. The Court held that the Second Amendment protects an individual right to keep and bear firearms, and that this holding required invalidation of District of Columbia statutes that totally prohibited handgun possession in the home and required any lawful firearm in the home to be disassembled or bound by a trigger lock, thus rendering it inoperable.

However, the Court expressly indicated that its holding did not require invalidation of statutes that require a license to purchase or possess a firearm.

In fact, the Court noted that "[r]espondent conceded at oral argument that he does not 'have a problem with . . . licensing; and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner[,]'" thus obviating the need for the Court to address the validity of the specific provisions of the District of Columbia's gun licensing statutes. Therefore, Heller has no impact upon the constitutionality of N.J.S.A. 2C:58-3(c)(5). [410 N.J. Super. at 196-97 (citations omitted).]

Moreover, while the Heller Court found the absolute prohibition of handguns unconstitutional, it also noted that the Constitution leaves "a variety of tools" to control gun violence including "laws imposing conditions and qualifications" on the sale of arms. Heller, supra,__ U.S. at __, 128 S.Ct. at 2817, 2822, 171 L.Ed. 2d at 678, 684. See also Id. at __ U.S. at __, 128 S.Ct. at 2817, 171 L.Ed. 2d at 678 n. 26. The denial of defendant's application was not a violation of his constitutional rights because the firearm regulations under N.J.S.A. 2C:58-3(c)(5) are constitutionally sound, and the application of the statute to defendant was neither arbitrary nor capricious.


Appellant makes three additional arguments: that the trial court was obligated to provide him a form of redress; that the decision below sets bad precedent; and that citizens will be dissuaded from obtaining a NJFPIC as a result of the decision below. Each of these arguments lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We merely observe that nothing in N.J.S.A. 2C:58-3 obligated the Law Division judge to provide appellant with a means to cure his disability under the statute. Further, appellant has not been "permanent[ly] depriv[ed]" of any right as neither the statute nor the ruling of the trial court prevents appellant from applying for a NJFPIC in the future. The assertion that this case sets bad precedent is nothing more than an expression of disagreement with the result, and similarly, it is sheer speculation that somehow the ruling of the trial court might dissuade citizens from complying with firearm laws. The trial court properly complied with the standards and procedures delineated in Weston, supra, 60 N.J. 36, and its ruling comports with State law.


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