APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
February 16, 2011
IN THE MATTER OF THE APPEAL BY STARR BARRETT OF THE DENIAL BY HILLSIDE TOWNSHIP POLICE DEPARTMENT OF HER APPLICATION FOR A NEW JERSEY FIREARMS IDENTIFICATION CARD AND PURCHASE PERMIT.
On appeal from Superior Court of New Jersey, Law Division, Union County.
NOT FOR PUBLICATION WITHOUT THE
Submitted December 7, 2010 - Decided Before Judges Payne and Koblitz.
By letter dated April 7, 2009, the Hillside Township Chief of Police (Chief) denied Starr Barrett's application for a firearms purchaser identification card (FPIC) and handgun purchase permit (permit). After a hearing on November 20, 2009, the trial court reversed the Chief's decision and granted Barrett's application. Hillside Township (Hillside) appeals the trial court's decision, claiming that the issuance of the FPIC and permit to Barrett is not "in the interest of the public health, safety or welfare" because of her association with the father of her seven-year-old child and the father's cousin. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Deputy Chief Anthony Mayer of the Hillside Police Department testified that Barrett applied for a FPIC and a permit on November 17, 2008. The police investigated her and found that two moving violations were issued to individuals while they were driving her vehicle; one to her child's father, Wayne Moore, on August 13, 2007, and the other to Moore's cousin, on February 10, 2008. Both men have a criminal record. Moore is currently incarcerated in the Garden State Youth Correctional Facility in Yardville, New Jersey and is eligible for parole in 2011. Moore's home address has been listed as Barrett's address for four years on the law enforcement database, Accurant, which Mayer admitted is at times incorrect. According to the Division of Motor Vehicles' records, Moore's current address is also Barrett's address, only a few blocks from the Hillside police station.
Mayer testified that Barrett has never been arrested and has no "personal disqualifiers." He said that he based his denial of Barrett's application on her association with Moore and, to a lesser extent, Moore's cousin, pursuant to N.J.S.A. 2C:58-3c(5) and In re Application of Clark, 257 N.J. Super. 152, 154 (Law Div. 1992), where the court held that a wife could be denied a FPIC if her husband has a criminal conviction disqualifying him from owning a handgun. Mayer testified that he did not believe Barrett's assurance that Moore would not live with her upon his release from prison, given the Accurant information and the fact that Barrett has been visiting Moore in prison regularly.
Barrett testified she brings the couple's daughter to visit her father in prison one to two times per month. She said she does not intend to live with Moore upon his release, and will not accept his mail or handle his financial matters from now on if the court so directs. She said she never lived with Moore, but merely let him visit. She produced bills sent to him at a different address and testified she helps him with his "administrative duties" while he is incarcerated because his parents live much further away, in Rocky Hill, North Carolina. She admitted allowing Moore to use her car in the past and testified that he was a good father to their child. He visited the child several times each week before he was incarcerated. She said Moore has two other children with two other women, so she is not his de facto wife as alleged by Hillside.
Barrett said that she needs a gun because she has observed criminal activity in her neighborhood. Moreover, Barrett represented that if her application for a FPIC and permit were granted, she would keep a handgun in a secure location inaccessible to her daughter. She said her father, who has a permit to carry a gun, would be the only other person to know the location of her handgun.
The court found Barrett to be credible. The court found that the contact Moore had with their child as well as Barrett's facilitation of that father-daughter relationship was laudable and should not be held against her. The court found that Barrett did not live with Moore prior to his incarceration and was not planning to do so after his release. The court conditioned its approval of Barrett's application on her living apart from Moore and ceasing to receive his mail. The court cautioned that Barrett's application would be reconsidered if she began living with him.
We must defer to the trial court's credibility findings. State v. Locurto, 157 N.J. 463, 470 (1999); State v. Cerefice, 335 N.J. Super. 375, 383 (App. Div. 2000). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
An individual's Second Amendment right to bear arms, U.S. Const. amend. II, is "subject to reasonable limitations." Crespo v. Crespo, 201 N.J. 207, 210 (2010). To purchase a handgun in New Jersey, a person must apply for a FPIC and a permit. N.J.S.A. 2C:58-3. A "person of good character and good repute in the community in which he lives . . ." must be issued a FPIC and permit unless, among other reasons not relevant for purposes of this appeal, "issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5); N.J.A.C. 13:54-1.5(a)(5).
The chief of police of the municipality where the applicant resides makes the initial decision of whether or not to grant a FPIC application. N.J.S.A. 2C:58-3(d). In making the initial decision, it is the police chief's duty to "investigate" an application for a FPIC and permit and grant it "unless good cause for the denial thereof appears." N.J.S.A. 2C:58-3(f). "In performing his administrative function the chief of police proceeds informally, acting either personally or through members of his department in gathering the information upon which his decision is then based." Weston v. State, 60 N.J. 36, 43 (1972).
Thereafter, "[a]ny person aggrieved by the denial of a permit or identification card may request a hearing" in the Law Division. N.J.S.A. 2C:58-3(d); N.J.A.C. 13:54-1.12(a). Judicial review of the chief of police's decision is de novo, but the court "should give appropriate consideration to the [c]hief's investigative experience and to any expertise he appears to have developed in administering the statute." Weston, supra, 60 N.J. at 46. The chief of police bears the burden of "proving the existence of good cause for the denial by a preponderance of the evidence." In re Appeal of Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). Judicial "review must be practical as well as responsible to the public." In re Clark, supra, 257 N.J. Super. at 154.
The court gave appropriate deference to the Chief's decision, in which he relied upon Mayer's determination that Wayne resided with Barrett prior to his incarceration and would likely reside with her when released. Nevertheless, the court gave more weight to Barrett's testimony that Wayne never resided with her and would not live with her after his release from prison. The court's credibility finding is entitled to deference on appeal. See Weston, supra, 60 N.J. at 46.
In In re Clark, supra, 257 N.J. Super. at 153-54, the trial court held that an application to purchase handguns may be denied solely because the applicant's husband, with whom she resides, has a prior burglary conviction. In that case, there was a substantial likelihood that the applicant's husband would have access to her handguns because the applicant testified that she intended to attend target practice with her husband and keep the handguns in the marital residence. Id. at 154. The facts of the present matter differ from those in In re Clark. The trial court, however, found that Barrett was credible when she testified that she will not be residing with Moore, and granted the permit subject to that condition. We will not disturb that ruling.
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