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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...