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In re Application of Echevarria

August 20, 2010

IN THE MATTER OF THE APPLICATION OF WILFREDO ECHEVARRIA TO APPEAL THE DENIAL OF AN APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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