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In re Lapinski

October 25, 2010

IN THE MATTER OF ROBERT LAPINSKI.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 22, 2010

Before Judges Fuentes and Gilroy.

Robert Lapinski appeals from the order of the Law Division affirming the decision of the Chief of Police of the Township of Weehawken to deny Lapinsky's application for a firearms Purchaser Identification Card and a Permit to Purchase a Handgun. The trial court reached its decision without formally identifying or admitting the evidence it relied on in support of its findings and conclusion of law. We are thus compelled to reverse and remand this matter for the court to conduct a plenary hearing in which appellant will be afforded the opportunity to present evidence in support of his application and contest the evidence presented by the State in opposition thereto.

We gather the following facts from the limited record developed by the parties.

Appellant is a 29-year-old bail bondsman who resides in the Township of Weehawken. On March 31, 2008, appellant submitted an application for a Firearms Purchaser Identification Card and a Permit to Purchase a Handgun to the Weehawken Chief of Police for approval pursuant to N.J.S.A. 2C:58-3. During the investigation of the application, appellant was interviewed several times by the Weehawken Police Department. The Chief denied appellant's application on the grounds that granting it would be contrary to public health, safety, and welfare. Specifically, the Chief found that appellant's employment as a bail bondsman, his driving record, and expunged municipal ordinance conviction*fn1 constituted sufficient grounds to deny the application.

Pursuant to N.J.S.A. 2C:58-3d, appellant filed an appeal with the Law Division challenging the Chief's decision. The matter came before the trial court on October 15, 2009. Trial counsel for appellant rested on his written submission to the court. The State, represented by the Hudson County Prosecutor's Office, did not file an opposing brief. The assistant prosecutor nevertheless advised the trial court that the State did not dispute appellant's argument that the Chief of Police should not have considered appellant's expungement or his position as a bail bondsman as factors against granting him a Firearms Purchaser Identification Card or a Permit to Purchase a Handgun. The assistant prosecutor argued, however, that the Chief properly considered what counsel characterized as appellant's "abysmal driving record" as a determining factor in his decision.

Without further comment from appellant's trial counsel, and without identifying or admitting into evidence the documents he was relying to review the matter before him, the trial judge then gave the following reasons for denying appellant's application:

The Weehawken police department denied [appellant's] application because [appellant] has amassed twenty seven traffic tickets since 2002, has failed to appear 18 times. His New Jersey driver's license has five speeding and careless driving tickets and has failed to pay his insurance surcharge twelve times; has thirteen citations for operating a vehicle in a suspended list; has failed to comply with the court orders eight times; has been cited once for leaving an abandoned vehicle on private property; has had his insurance cancelled and has twice been cited as a persistent violator.

As such we note that [sic] the Weehawken police department's concern over Mr. Lapinski's driving record . . . .

It causes alarm now that [appellant] seeks the heightened responsibilities of handgun ownership. [Appellant's] last moving violation occurred four years ago. While this time represents a positive step, the extent of his driving violations signifies a certain threat to the health, safety, and welfare of the community and I am going to deny the permit also.

The trial court also considered the circumstances surrounding appellant's expunged municipal conviction:

. . . [Appellant] had charges expunged in 2008 relating to an arrest for writing bad checks. While courts should not consider the expunged records, we are . . . nonetheless permitted to consider his involvement in the action preceding the arrest as a ...


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