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In Re Application of Roy Vonder Heyden For

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 19, 2011

IN RE APPLICATION OF ROY VONDER HEYDEN FOR A FIREARM PURCHASER'S IDENTIFICATION CARD AND
A PERMIT TO PURCHASE A HANDGUN

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. 10-034.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2011

Before Judges A.A. Rodriguez and LeWinn.

Roy Vonder Heyden appeals from the September 10, 2010 order denying his application to obtain a firearms purchaser identification card (FPIC).*fn1 The Chief of the Paterson Police Department denied appellant's application on the basis that he had falsely stated his residence was on Redwood Avenue in Paterson.*fn2

Until February 15, 2005, appellant was a lifelong resident of Paterson at that address.*fn3 On that date, appellant's home was burglarized, and he moved in with his girlfriend who lives in Verona. He has not slept at his Paterson residence since that date, although he still receives mail, keeps furniture, pays taxes and utilities, and tends to the garden at that address; it is also the address listed on his driver's license.

On September 21, 2009, appellant filed his application, listing the Paterson address. Detective Keith Rotsardt investigated the application. He stated that "[u]pon doing a residency check [on April 21, 2010], it was found that [appellant] does not reside at th[e] location" listed on his application. Because appellant had "falsified the application[,]" Rotsardt recommended that the Police Chief deny it.

Appellant represented himself in his appeal to the Law Division. When he attempted to cross-examine Rotsardt, he engaged in various irrelevant statements and explanations. The judge attempted to guide him in conducting proper cross-examination of the detective, but to no avail.

The judge then questioned appellant. When asked if he lived on Redwood Avenue on September 21, 2009, appellant answered that he was staying at a Lewisburg Square address in Verona, "because of the situation of [his] life." When the judge pressed appellant on whether he "lived" at the Redwood Avenue address, appellant replied that he was "there every other day or every three days . . . with the garden, with the house .. . ."

Under cross-examination by the prosecutor, appellant acknowledged that he did not sleep at the Redwood Avenue residence; however, he "[s]ometimes" eats meals there, and there is furniture in the house. He testified that he was a "house guest" at his girlfriend's Verona residence. Appellant stated that he had not applied for an FPIC in Verona because he does not reside there.

The judge affirmed the denial of appellant's application, stating that he was "convinced by a preponderance of the evidence that [appellant] falsified the application by putting a residence on there, even though [he] hadn't lived there for more than four years . . . ."

Appellant now contends that (1) he did not knowingly falsify his application; and (2) he did not receive a fair hearing in the Law Division. Because we are satisfied that the record does not support a finding that appellant knowingly falsified his FPIC application, we reverse the order denying that application.

The judge concluded that appellant's application contained "fals[e]" information, namely an address where he has not "lived" for four years. The judge did not find, however, that appellant put his Paterson home address on the application with the intent to file a false application. In other words, the judge did not find that appellant knowingly falsified his application.

Initially, we note that "'[r]esidence' is a word with many meanings. For example, a person may have only one domicile, but a person may have more than one residence." Am. Emp'rs Ins. Co. v. Elf Atochem N.A., Inc., 157 N.J. 580, 590 (1999). "'It is not uncommon in our way of life for persons to have one or more residences based on reasons of health, society, business or employment, without in any wise relinquishing their domicile.'" Gibson v. Callaghan, 158 N.J. 662, 674 (1999) (quoting Collins v. Yancey, 55 N.J. Super. 514, 521 (Law Div. 1959)).

"Domicile is a place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning." In Re Seyse, 353 N.J. Super. 580, 586 (App. Div.), certif. denied, 175 N.J. 80 (2002). See Cromwell v. Neeld, 15 N.J. Super. 296, 300 (App. Div. 1951) ("domicile" is "the place with which [one] has a settled connection for certain legal purposes, . . . because his home is there").

N.J.S.A. 2C:58-3(c) establishes a presumption of eligibility to apply for an FPIC, subject to certain statutory "disabilities." The "disability" pertinent here is the claim that appellant "knowingly falsifie[d] . . . information on the application form for a handgun purchase permit or [FPIC,]" in violation of N.J.S.A. 2C:58-3(c)(3) (emphasis added).

"Knowingly" is defined as follows:

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. [N.J.S.A. 2C:2-2(b)(2).]

Thus, in order to be subject to the "disability" of "knowingly falsif[ying] . . . information on the application," appellant would have had to be "aware" that "the nature of his conduct" was to provide false information. State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999).

Notwithstanding the length of time appellant has spent his nights sleeping in Verona, it is clear from his testimony that he still considers his Paterson home as his domicile. Therefore, the record does not support a finding by a preponderance of the evidence that appellant "knowingly falsifie[d]" his residence information on his FPIC application. N.J.S.A. 2C:53-8(c)(3).

The order of September 10, 2010 is reversed and the matter is remanded to the Law Division for entry of an order in conformity with this opinion.


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