July 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID PYSKATY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FO-13-190-10A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2011 - Decided
Before Judges Fuentes, Ashrafi and Newman.
Defendant David Pyskaty appeals from a final judgment dated March 16, 2010, ordering the forfeiture of firearms, other weapons, ammunition, and related items seized from his home. We reverse and remand for further proceedings.
On the evening of September 23, 2009, defendant and his wife argued about family finances. Defendant had been drinking alcohol. He became distraught and said in the presence of their two children "your mom is making me want to kill myself." He then went to the basement, where he kept his shotguns, rifles, and other weapons in a locked cabinet in a locked room. His wife heard a loud sound, like a "pop" or a "bang." Uncertain of what had occurred, she called the police and took the children outside. When the police arrived, defendant was also outside standing on the other side of the street from his wife and children.
An officer entered the basement and observed that the gun cabinet was open, but no firearms or other weapons appeared to have been removed from it. He detected no other evidence of the use or handling of a firearm in the basement, although he saw ammunition on a work bench. According to the officer, defendant told him he had loaded a rifle and he had struck a .22 caliber round with a hammer causing a loud bang. Defendant disputed that account and claimed he had merely struck the workbench with a hammer to frighten his wife into thinking she had caused him to fire a shot.
From the basement, the police seized twenty-seven shotguns and rifles, three shotgun replacement barrels, a starter pistol, seven crossbows, and ammunition for the firearms. Defendant requested that the police take him to a hospital for crisis intervention services. He was admitted and remained hospitalized for five days. His wife did not seek a domestic violence restraining order, and no criminal charges were brought against defendant.
The State filed a motion pursuant to N.J.S.A. 2C:25-21d(3) and 2C:58-3c for forfeiture of the weapons and for revocation of any permit or identification card held by defendant for possession or purchase of firearms. See In re Return of Weapons to J.W.D., 149 N.J. 108 (1997). The trial court held a hearing in which defendant, defendant's wife, and one of the police officers testified.
Defendant's wife testified that he had never committed an act of domestic violence against her or their children, and that she had no fear of defendant or his ownership of guns. The police had never been called to their house other than for this one incident of September 2009. She took some blame for the incident, but also admitted she thought at the time that defendant had fired a gun in the basement. She stated their marriage had grown stronger since the incident occurred, and she wanted his guns returned to him.
Defendant testified he has no history of criminal charges or involvement with prior incidents of domestic violence or drug abuse. He sought to get his firearms back because he had enjoyed hunting since the age of ten, and the seizure of his guns meant he could no longer hunt with his father or teach his son to hunt as his father had taught him.
Defendant and his wife acknowledged that he was drinking on the evening of the incident and that he had a prior conviction for driving while intoxicated in 2005. His wife said that he was a social drinker in the past and denied that he had a drinking problem. Defendant admitted in cross-examination that in the past he had drunk four or five beers or three drinks of liquor at a time and on a regular basis, and that he sometimes became drunk when he had not eaten before drinking. Both husband and wife declared that he had not taken a drink since the September 2009 incident. Defendant also testified he was being mentored by his father, who was a recovered alcoholic and had remained abstinent for some thirty years.
To rebut further the State's contention that he was a drunkard or alcoholic, defendant offered in evidence an eleven-page written report of psychologist Anthony Todaro, Ph.D. The court sustained the State's hearsay objection to Dr. Todaro's conclusions in the report that defendant's alcohol abuse was in remission, that he did not present a risk in the handling of firearms, and that he was not a threat to himself or others. At the same time, the court permitted the State to cross-examine defendant regarding his own statements as contained in the report. Defendant had admitted to Dr. Todaro that, in the past, he had engaged in binge drinking and he sometimes drank alone.
Surprised by the court's ruling on Dr. Todaro's report, defense counsel requested the opportunity to call Dr. Todaro to give live testimony. However, that part of the colloquy between the court and counsel turned to another subject, and the court did not specifically respond to defense counsel's request.
At the conclusion of the hearing, the court rejected the opinion of defendant's wife regarding his drinking habits, stating she had "shaded" her testimony. The court relied on defendant's statements contained in Dr. Todaro's report to find that he had a serious drinking problem. The court concluded that defendant was disqualified from possessing any firearms because he was a "habitual drunkard," N.J.S.A. 2C:58-3c(2), and because it would not be "in the best interests of the public health, safety and welfare," N.J.S.A. 2C:58-3c(5), for defendant to possess firearms.
On appeal, defendant challenges the court's judgment on several grounds. He alleges evidentiary and procedural error in the court's rulings with respect to Dr. Todaro's report and proposed testimony. He also alleges error in the court's conclusion that the State had proven the two statutory grounds for forfeiture.
Defendant argues that the United States Supreme Court's recent decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. ___, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), establish that the Second Amendment protects an individual's right to bear arms, and that the trial court's judgment in this case infringed on that right. He contends the recent Supreme Court decisions abrogate the earlier holding of the New Jersey Supreme Court in Burton v. Sills, 53 N.J. 86 (1968), which upheld the constitutionality of gun control laws in New Jersey.
We need not address defendant's Second Amendment argument on this appeal. We conclude that the trial court erred in its application of the relevant statutes and with respect to the report and testimony of Dr. Todaro. N.J.S.A. 2C:58-3c provides that all persons "of good character and good repute in the community" are entitled to a permit or firearms purchaser identification card unless one of the disabilities listed in the statute applies. N.J.S.A. 2C:58-3c states in relevant part that a permit or identification card shall not be issued:
(2) To any drug dependent person . . . , to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;
(5) To any person where the issuance would not be in the interest of the public health, safety or welfare.
The only provision of subsection (2) that potentially applies in this case is its reference to a person "who is presently an habitual drunkard." Because defendant and his wife denied that he had taken any alcoholic drink since the time of the incident more than six months earlier, the court relied on the contents of Dr. Todaro's report and other circumstantial evidence, such as the 2005 DWI conviction, to conclude that defendant met the meaning of "habitual drunkard" in the statute. But in doing so, the State and the court unfairly selected evidence from Dr. Todaro's report that was detrimental to defendant while at the same time denying him the opportunity to present Dr. Todaro's evaluation in its entirety.
Defendant proffered Dr. Todaro's whole report, including his conclusions that were entirely favorable to defendant. The court sustained the State's hearsay objection, stating it would not permit in evidence under any circumstances the conclusions of an expert through a written report rather than the expert's live testimony in the courtroom. Counsel for defendant responded that he had relied on his experience in similar hearings and on N.J.S.A. 2C:58-3c(3) to conclude that the expert's report would be admissible in a firearms forfeiture proceeding. The cited subsection of the statute lists additional statutory disabilities from gun ownership in the following relevant language:
(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or 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 the handling of firearms. [(Emphasis added).]
Defense counsel argued that the detailed written report of a licensed psychologist such as Dr. Todaro was "other satisfactory proof that [defendant was] no longer suffering from" alcoholism. Defendant sought to rely on the following concluding diagnosis in Dr. Todaro's report: "[a]lcohol abuse - in remission - controlled by post detox, AA meetings and his father's precept as a mentor and role model." The court disregarded the statute and ruled that hearsay rules barred the evidence proffered.
We read the statute as permitting an exception to the hearsay rules for a medical doctor's certification that a person is no longer suffering from a listed disability, including alcoholism. Here, defendant did not have such a certification but the detailed report of a licensed psychologist. The trial court retains discretionary authority to admit or reject such a report as "satisfactory proof" under the statute. In this case, however, the court did not acknowledge its discretionary authority to assess the reliability of the document in accordance with the statute.
The court had been provided Dr. Todaro's report and was familiar with it. The court should have considered its reliability and persuasiveness and exercised its discretion in determining whether it met the statutory standard of "other satisfactory proof." The court's inflexible ruling that the report was inadmissible hearsay was legal error in the circumstances of this case.
Furthermore, upon determining that Dr. Todaro's conclusions were either not admissible or not sufficiently persuasive without live testimony and the opportunity for cross-examination, the court should have granted defendant an opportunity to produce the doctor in court before deciding the matter. Defense counsel had in good faith relied upon his experience with similar forfeiture or gun permit hearings. He apparently attempted to avoid the expense and potential delay of engaging the expert for in-court testimony. Under these circumstances, defendant should not have been precluded from presenting Dr. Todaro's testimony.
We also conclude that the evidence did not support the court's conclusion that defendant was "presently an habitual drunkard."
We recognize the standard of review we must apply to a trial judge's findings of fact. "Our role is solely to examine the record to determine whether the facts found by the trial judge are reasonably supported by the record in its entirety." State v. Freysinger, 311 N.J. Super. 509, 515 (App. Div. 1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, we need not defer to the court's legal conclusions reached from the established facts, in particular, "[i]f the trial court acts under a misconception of the applicable law[.]" State v. Brown, 118 N.J. 595, 604 (1990). The trial court's understanding and application of the law is subject to plenary review on appeal. See State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
The court erred as a matter of law in failing to distinguish between the statutory disability contained in N.J.S.A. 2C:58-3c(2) for a person who is "presently an habitual drunkard" and the one contained in N.J.S.A. 2C:58-3c(3) for an "alcoholic." While the evidence in this case appears to support a conclusion that defendant is an alcoholic, whose disease was in remission at the time of the hearing, there was insufficient evidence of present habitual drunkenness.
We acknowledge that the statutory phrase does not mean a person must be a "drunkard" at the very time of the court proceeding; a short period of abstention does not negate a finding of habitual drunkenness. See Freysinger, supra, 311 N.J. Super. 509; Scully v. Scully, 122 N.J. Super. 94, 97 (Ch. Div. 1972). But the cases cited by the State in which habitual drunkenness was found are notable for more egregious misconduct than shown in this case. See Freysinger, supra, 311 N.J. Super. at 516-17; Scully, supra, 122 N.J. Super. at 97-98; McVey v. McVey, 119 N.J. Super. 4, 6 (Ch. Div. 1972).
Here, defendant had abstained from the use of alcohol for more than six months and was well on his way to controlling its abuse. There were no prior failed efforts at rehabilitation.
Defendant had no history of prior misconduct other than one DWI conviction from several years earlier. There was no evidence of domestic violence. He had not caused injury as a result of his intoxication, and there was no evidence of public drunkenness. His wife had no fear or need of protection from his conduct. The evidence supported a conclusion that the September 2009 incident was an aberration in defendant's otherwise lawful life.
In sum, defendant should have been permitted to present evidence that he was a recovering alcoholic and that he did not presently suffer from that disability.
Finally, the court also concluded that defendant was disqualified under N.J.S.A. 2C:58-3c(5) because his ownership and possession of firearms would "not be in the interest of the public health, safety or welfare." But that conclusion was closely tied to the court's finding that he was a habitual drunkard. Consequently, we must set aside the court's finding of disability under subsection (5) as well and remand for further proceedings and a fresh and independent assessment of whether the disqualification under that subsection was proven by the State's evidence.
On remand, defendant should be afforded the opportunity to present evidence that his alcoholism is in remission and that he is not a danger to himself or others. The court shall consider in the first instance whether the report of Dr. Todaro is admissible under N.J.S.A. 2C:58-3c(3), and defendant shall also be given the opportunity, if he chooses, to present testimony from Dr. Todaro. In that regard, we note that the State disclaims a contention that defendant is disqualified as an alcoholic under subsection (3). If that remains the State's position on remand, the court shall consider only whether the State has proven disqualification under subsection (5). The court shall evaluate that issue in the light of evidence that defendant's misconduct was an isolated, aberrational incident, and relevant case law applying subsection (5). See, e.g., State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004); State v. One Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999); State v. Cunningham, 186 N.J. Super. 502 (App. Div. 1982).
Reversed and remanded. We do not retain jurisdiction.
© 1992-2011 VersusLaw Inc.