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In re Lapinski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 reflection of his character if it poses a threat to public safety . . . .

From this record, appellant now appeals, arguing that by proceeding in the manner described, the trial court denied him his right to a due process hearing in which he could have presented evidence in support of his application and challenged, through cross-examination, the assertions and findings reached by the Chief of Police. Without expressing any opinion on the merits of appellant's underlying application to obtain a Firearms Purchaser Identification Card, we are compelled to reverse and remand for a plenary hearing.

It is well-settled that the denial of an application for a Firearms Purchaser Identification Card is governed by the procedural due process requirements set forth in Weston v. State, 60 N.J. 36 (1972). In re Dubov, 410 N.J. Super. 190, 199 (App. Div. 2009). Under Weston, trial courts must provide de novo review of denials of these applications. Id. at 200 (quoting Weston, supra, 60 N.J. at 45).

The kind of de novo review envisioned by the Court in Weston must conform with basic and fundamental notions of due process. Such hearings must involve the "introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court." Weston, supra, 60 N.J. at 45. Under Weston, "the existence of good cause for denial . . . represent[s] a burden to be carried by the Police Chief, and to be established by a fair preponderance of the evidence." Id. at 46. As the Court explained:

[a]t the outset of the [the Law Division] hearing, therefore, orderly and logical procedure calls for introduction through the testimony of the applicant of his application for the identification card, the rejection thereof and the reasons given by the Chief, if any. At this point he may be subjected to cross-examination by counsel for the Chief. Thereafter, the Chief should proceed with the evidence on which his denial was predicated. Ordinarily, this would include presentation of his own testimony, that of the members of the police department who made the investigation and furnished reports to the Chief, any available lay or professional persons who furnished information which influenced the action taken by the Chief, and any admissible documentary evidence which played a part in the adverse decision. Upon completion of the Chief's proof, the applicant may offer relevant rebuttal testimony. [Ibid. ]

Stated differently, a Weston hearing requires testimony before the trial court "by the appellant, the Chief of Police, police officers who investigated and forwarded reports to the Chief, or other witnesses who furnished information that influenced the denial." In re Dubov, supra, 410 N.J. Super. at 194 (citing Weston, supra, 60 N.J. at 46).

Here, the approach employed by the trial court is wholly inconsistent with these well-established principles. The court did not hear testimony from witnesses under oath and subject to cross-examination, nor were the documents relied on by the court identified and formally admitted in evidence. Indeed, the Chief of Police, as represented by the Hudson County Prosecutor's Office, did not produce any evidence to meet his burden of proof as required under Weston. The decision reached from such a process therefore cannot stand as a matter of law.

On remand, we expect the State to submit a formal written position that not only sets forth the legal arguments in support of its position, but identifies with particularity the evidence it will seek to admit to meet its burden of proving there is good cause for the denial. Weston, supra, 60 N.J. at 46.

Reversed and remanded. We do not retain jurisdiction.


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