On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. FO-10-101-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2010
Before Judges Payne and C.L. Miniman.
Respondent R.B. appeals from a November 18, 2008, order for forfeiture of sixty-two weapons and one New Jersey firearms purchaser identification card to the State. Because R.B. is an habitual drunkard within the meaning of N.J.S.A. 2C:58-3c(2), we now affirm.
R.B. and V.B. (wife) were married in the early 1990s. One child was born of the marriage in 1995. The couple initially separated in 1999, but reconciled in 2001. On May 9, 2008, the wife sought a temporary restraining order (TRO) and alleged that R.B. threatened to kill her if she took their son and that there was a prior history of R.B. threatening to kill her pets. The municipal judge denied the TRO, and the wife moved out of the house that day. She then appealed the municipal court judge's denial of a TRO to the Law Division, and the judge granted her a TRO on May 12, 2008. That same day, R.B. sought and obtained a TRO against his wife. In accordance with the wife's TRO, the police confiscated R.B.'s weapons and firearms purchaser identification card.
R.B. and his wife appeared before the Law Division judge on June 12, 2008. Both parties agreed to dismiss their respective TROs and entered into a consent order. The wife filed a complaint for divorce in or about May 2008. When R.B. sought the return of his weapons and identification card, the Hunterdon County Prosecutor's Office objected and sought forfeiture of same under N.J.S.A. 2C:25-21d(3) and 2C:58-3f. The hearings on the forfeiture took place on August 6, August 21, and November 6, 2008.
The following facts were elicited during the forfeiture hearings. In support of the TRO obtained by the wife, she alleged that her husband was an alcoholic who constantly threatened to kill her with various weapons in the home. She testified that he would leave his weapons carelessly around the house and would threaten her with them if she "got out of hand."
The wife also testified that R.B. habitually drank alcohol and often flew into rages when intoxicated. She would visit a terminally ill friend in hospice care, and if she returned late, R.B. would accuse her of infidelity and threaten to shoot her. She testified to a prior history of TROs while they lived in a different county.
After moving to their then-current county, R.B. would sleep with a loaded weapon under his pillow and often threatened to shoot his wife with it. He refused to secure the weapon even after their young son discovered it one day. Loaded guns and ammunition were strewn around their house. Although he had two gun safes, they were never locked. Once, his wife saw him shooting a firearm from a second floor window at an abandoned house located across Route 31. R.B. also threatened to kill the family pets.
During their thirteen-year marriage, the wife formed a belief that R.B. was a chronic alcoholic. He drank beer, vodka, and brandy until he became unconscious. He refused to attend Alcoholics Anonymous (AA) when she would suggest it. At least once when R.B. was drunk, he allegedly raped his wife. He also threatened to kill himself. V.B. also alleged that in 1999 R.B. had two convictions expunged, one for domestic abuse and one for unlawful possession of certain weapons. The exact nature of these allegedly expunged convictions does not appear in the record.*fn1
The wife admitted that she had in the past assaulted and threatened her husband with a gun and has been charged with aggravated assault, possession of a firearm for an unlawful purpose, and illegal possession of a firearm. These charges were resolved through the Pretrial Intervention Program. A subsequent aggravated assault charge was filed against her, but she was found not guilty.
L.W., the wife's maternal aunt, testified about one telephone conversation she overhead in April 2008 between R.B. and his wife during which she heard R.B. threaten to blow off his wife's head if she did not return. This was not the first time she heard such threats. Additionally, R.B. would be verbally abusive toward his wife and once called her a dumb bitch. L.W. had observed R.B. passed out drunk outside his home on several occasions.
M.R., the wife's mother, testified that she would often, if not daily, see R.B. in a drunken stupor. She observed him being physically and verbally abusive toward his wife. According to M.R., once, he struck M.R. in the eye, requiring treatment in an emergency room.
R.B. called two witnesses to refute the testimony of his wife and her relatives and then testified at the hearing himself, asserting that it was he who was the victim of abuse. He denied ever threatening to kill his wife or their dog and claimed that he did not have a temper or anger-management problem. He denied forcing his wife to have sexual relations with him. He testified that he had never been arrested for or charged with hitting or raping his wife. He had never been convicted of domestic violence. He denied having anything expunged from his record, but he admitted that he had a prior conviction for driving while intoxicated.
With respect to his mother-in-law, R.B. claimed that she barged through the door as he was trying to close it and pushed him down on the couch. She then reached into her purse and threatened him by saying that she was going to cut his throat. He then hit her in the face to escape. R.B. was arrested and charged with assault. The matter proceeded to trial, and both his wife and her mother testified. R.B. testified that he was acquitted of assault based on this incident.*fn2 After the trial, the municipal judge sentenced his wife to two weeks in the county jail for perjury and contempt of court.
R.B. further testified that after his wife was released from jail, she learned that he had sex with her sister. She took one of his shotguns, and an altercation occurred. When the police arrived and conducted an investigation, they arrested his wife. On another occasion, they had an altercation when his wife hit him over the head with a bottle because they had a dispute about submitting a property damage claim under their car insurance. R.B. went to the hospital to get stitches for his wound, and the hospital called the police, resulting in the arrest of his wife.
R.B. denied having an alcohol problem and testified that he had inherited many of his guns from his father and grandfather. Some of them were 100 years old, and they were very valuable. He explained that he had been taught gun safety, never left his guns lying around the house, was a hunter, and was a member of the National Rifle Association. He also explained the importance to him of his firearms purchaser identification card because it allowed him to possess his heirloom guns.
At the conclusion of the hearing, the judge placed his findings of fact and conclusions of law on the record as required by Rule 1:7-4(a). With respect to the issues raised by R.B., the judge made the following findings:
So there are obviously issues of credibility here particularly with respect to the extent to which the defendant uses alcohol, the extent to which he handles guns properly or improperly, and whether he's made threats to his wife.
The aunt and defendant's mother[-inlaw] I find to have been credible witnesses[,] and they both confirmed that defendant had been violent to his wife. The aunt describing one incident where[,] actually more than one incident where the defendant had threatened to blow the wife's head off and the mother confirmed that defendant had pushed the wife to the floor and threatened to kill her in addition to the incident when she intervened to protect her in 1995.
So, I'm satisfied based upon the evidence that the plaintiff's version is more credible than the defendant so that I conclude that the plaintiff--strike that--the defendant's wife's version that the defendant has threatened her on numerous occasions, he has been drunk on numerous occasions to the point that he's fall down drunk as he was in 1995 when he assaulted the defendant's wife's mother [M.R.]
And I conclude that there were times when the defendant mishandled weapons, used them as threats by pointing to them and telling the wife to be careful.
I'm satisfied she also--she certainly would feel threatened, felt threatened by the defendant at the time of her testimony[,] and it appears from the history that that has been true for a protracted period of time.
Obviously the weapons cannot be returned to the defendant if he is not a person who would be eligible to maintain firearms under N.J.S.[A.] 2C:58-3(c).
The defendant argues--strike that. The State argues that there are three sections that prohibit the weapons being returned to the defendant.
(1) to any person that has been convicted of any crime or disorderly persons offense involving an act of domestic violence as defined in Section 3 of P.L. 1991, Chapter 261 whether or not armed with or possessing a weapon at the time of such offense.
It is true that the incident on April 28th, 1995[,] the defendant was assaulting his wife when the mother intervened and the defendant in a drunken state struck the wife.
I do conclude that that is involving an act of domestic violence within the meaning of 2C:58-3(c)(1) and N.J.S.[A.] 2C:25-19. One of the offenses of domestic violence is assault.
The parties were living together at that time so the defendant and his wife were living with the mother so I conclude that that does fit within that definition.
The State also argues that Section (2) applies and would prevent it. To any drug dependent person as defined in Section (2) of P.L. 1970, Chapter 226, Chapter 24:21-2.
To any person who is confined for a mental disorder to a hospital or mental institution or sanitarium or to any person who is presently an habitual drunk.
I find notwithstanding the testimony of the defendant that he does fit within the standard of a habitual drunk. Certainly there's obvious testimony from the aunt, the defendant's wife, the defendant's wife's aunt and mother[,] and the defendant has been a habitual drunkard during the period of their living together and therefore he would be prevented under Section (2) from having possession of weapons.
Paragraph (3) or (3) of 2C:58-3(c) indicates to any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms or any person who has ever been confined for a mental disorder or to any alcoholic unless any of the foregoing persons produce a certificate by a medical doctor or a psychiatrist licensed in New Jersey or other satisfactory proof that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in handling firearms; to any person who knowingly falsifies any information on the application form for handgun purchase, permit or firearms purchaser identification card.
While I concluded that he does have a-- that he is an alcoholic within the meaning of this section and there has been no production of a certificate from a doctor that he is no ...