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In the Matter of the Application of Harry Barbosa For A Firearms


April 14, 2011


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

Per curiam.


Submitted March 23, 2011

Before Judges Cuff and Fasciale.

Harry Barbosa appeals from a Law Division order which upheld the denial of his application for a Firearms Purchaser Identification Card (FPIC) and Permit to Purchase a Handgun. We affirm.

In August 2009, Barbosa submitted an application for a FPIC and permit to purchase a handgun to the Police Department of the Township of Haledon, which conducted an investigation of the matter. On October 19, 2009, Sergeant Mohammad Abaza notified Barbosa that his application was denied because Barbosa failed to appeal a previous denial from the Passaic Police Department of a similar application in 2005. Sergeant Abaza stated in his October 19 letter that "[g]ranting your requests for Firearms Permits would [be] tantamount to a judicial reversal of the Passaic P.D. decision." Barbosa appealed from the denial by the Haledon Police Department to the Law Division, which conducted an evidentiary hearing on the appeal.

The Law Division judge considered various exhibits and testimony from Sergeant Abaza, Deputy Chief Kevin Gottheiner, and Barbosa. Sergeant Abaza testified that the application was denied for two reasons. First, Barbosa acted carelessly when he failed to timely report that a previously-owned gun was missing. Second, Barbosa did not appeal the 2005 denial of a similar application to the Passaic Police Department. The sergeant also stated that Barbosa had "some [prior] arrests," but no convictions.

Deputy Chief Gottheiner testified that he agreed with Sergeant Abaza's investigation and authorized the denial. The deputy chief arrived at his independent decision primarily because Barbosa failed to timely report his missing gun. The deputy chief explained that several years before Barbosa applied to the Haledon Police Department, Barbosa owned a gun that he stored above a ceiling panel in his apartment. Barbosa noticed his gun was missing after someone had entered his apartment without permission, but waited four days before reporting the missing gun. The deputy chief learned that the delay occurred because Barbosa claimed he did not know where he left his gun.

Barbosa testified that he returned from vacation and his landlord reported to him that she had seen a prowler on the property. Barbosa entered his apartment and discovered that it had been "more or less" ransacked. At that time, Barbosa had a permit to carry a gun and stated that he always stored the gun and magazine above a drop-ceiling cubbyhole that he accessed by using a chair to remove a ceiling panel. When he entered the apartment, Barbosa observed immediately that the ceiling panel had been removed and that his gun was not in its designated storage spot. The following exchange occurred between the judge and Barbosa:

Q: And where did you store - where exactly in your apartment did you store this weapon? A: The weapon was in this drop-ceiling cubbyhole.

Q: Did you ever store it any other place?

A: No.

Q: Always in that same place?

A: Yes.

Q: So, why did you look in the apartment and take[] four days to look for the gun, when you only stored it in one place?

A: Because I wasn't sure -- at the time I was surprised that my apartment was like broke[n] into, things were moved around, I just wanted to make sure I checked every room, turned everything upside down.

Q: Notwithstanding the fact that you only stored it in one place, in one location?

A: Yes.

Q: And you never stored the weapon in any other place or location in that apartment? A: No.

The judge denied the application and issued his oral opinion at the end of the hearing. The judge had "serious question[s about Barbosa's] credibility," finding his lack of candor "very disturbing." The judge concluded that "issuance of this permit would not be in the interests of the public health, safety or welfare," pursuant to N.J.S.A. 2C:58-3c(5). This appeal followed.

On appeal, Barbosa argues that (1) the judge erred by considering he was a victim of a crime that he reported to the police; (2) failure to report a missing gun is not a basis to deny his application; (3) his due process rights were violated;

(4) he has been denied his constitutional right to bear arms; and (5) a denial of his application sets a bad precedent and runs contrary to legislative intent and public policy.

At the outset, we acknowledge that the scope of appellate review in a non-jury proceeding is limited. In Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), the Court stated:

Considering first the scope of our appellate review of judgment entered in a non-jury case, as here, we note that our courts have held that the findings on which it is based should not be disturbed unless ". . . they are so wholly insupportable as to result in a denial of justice," and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter. That the finding reviewed is based on factual determinations in which matters of credibility are involved is not without significance. Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. [(Citations omitted).]

On the other hand, an appellate court is not obligated to defer to the legal analysis of a trial court sitting without a jury. Marino v. Marino, 200 N.J. 315, 334 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "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, supra, 140 N.J. at 378.

We focus on Barbosa's arguments that the judge erred by considering the events surrounding the missing gun, and that a failure to report a missing gun is not fatal to the issuance of a FPIC and Permit to Purchase a Handgun. While the failure of Barbosa to report the missing gun is not determinative,*fn1 the judge correctly considered the events surrounding the missing gun to determine his fitness to possess a firearm.

The judge denied Barbosa's application pursuant to N.J.S.A. 2C:58-3c, which provides that:

[n]o person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare[.]

Subsection 3c(5) is "'intended to relate to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.'" In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003) (quoting Burton v. Sills, 53 N.J. 86, 91 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969)), certif. denied, 179 N.J. 310 (2004). We employ a qualitative and fact-sensitive analysis to determine the applicant's fitness to possess firearms. State v. Cordoma, 372 N.J. Super. 524, 536-37 (App. Div. 2004).

Based on our careful review of the record, we are satisfied that the judge's credibility and factual determinations that issuance of a permit would not be in the interests of the public health, safety or welfare are amply supported by credible evidence. Barbosa failed to appreciate the importance of knowing the whereabouts of his gun. When he finally reported the missing gun, Barbosa stated to the police that "the last time he saw the gun was three weeks ago." As the judge stated, "if you don't know where you're storing your weapon, then that's really negligent." To add to his carelessness of not knowing where the gun was, Barbosa incredibly spent days looking through his three-room apartment while knowing that the only place he stored the gun was in the cubbyhole above a ceiling tile. The judge found that Barbosa displayed a lack of candor that was "very disturbing," and correctly concluded that Barbosa was not fit to possess a firearm.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that Barbosa's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).


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