On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FO-19-0078-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2011
Before Judges Ashrafi and Fasciale.
A.S. appeals from a February 18, 2011 order pursuant to N.J.S.A. 2C:25-21d(3) for forfeiture of firearms and revocation of his firearm purchaser identification card. Because appellant was surprised at the forfeiture hearing by the grounds upon which the State sought forfeiture, we remand for further proceedings to permit him to present additional evidence of his fitness for return of his firearms and identification card.
The State's petition for forfeiture was timely filed after an unsuccessful domestic violence complaint brought by appellant's wife in July 2010. See generally In re Return of Weapons to J.W.D., 149 N.J. 108, 114-16 (1997) (the Family Part is authorized under N.J.S.A. 2C:25-21d(3) to approve the State's retention of seized weapons although a domestic violence complaint has been dismissed). The State had seized from appellant a shotgun and another firearm pursuant to N.J.S.A. 2C:25-21d(1)(b). The day after the seizure, appellant voluntarily turned over a pellet rifle as well to the County Sheriff's department. The Family Part held a domestic violence hearing on July 15, 2010, at which appellant and his wife testified. Finding that the wife's allegations of domestic violence had not been proven, the court denied a final restraining order and dismissed the wife's complaint.
At a December 2, 2010 hearing pertaining to the firearms, appellant testified that he had no criminal record and no history of violence, that the firearms were not involved in any way in his wife's allegations of domestic violence, and that he planned to move out of state and begin a new life since his wife of twenty-three years had filed for divorce on the same day as the domestic violence hearing in July 2010. The prosecutor confirmed that appellant had no criminal record and that his wife did not express fear of him. The prosecutor nevertheless insisted on a mental health evaluation based on information provided by the wife that appellant had threatened and attempted suicide in the past. The court adjourned the hearing and instructed appellant to speak to the prosecutor to learn what the State was seeking as evidence of his mental status and eligibility for return of his firearms.
The hearing resumed on January 6, 2011. The prosecutor reported that appellant had produced a letter from his psychiatrist, Viviana Galli, M.D., of Milford, Pennsylvania, stating:
This is to confirm that [A.S.] is being treated at our office since 05/03/2010 for symptoms of depression. He has been stable and his mood has been euthymic.*fn1 He has been free of any thoughts of suicide since July 2009. At this time, he poses no threats to himself or some one else.
The prosecutor complained, however, that the doctor's letter was undated.
The wife's divorce attorney also appeared at the January 6, 2011 hearing and stated her opposition to return of the firearms to appellant. The attorney accused appellant of harassing conduct toward his wife, including as recently as a few days earlier on New Year's Eve. The attorney also relayed the wife's belief that there was risk of suicide or possibly harm to her and their daughter. Appellant protested again that he was a law-abiding person, and he objected to further delay in resolution of the matter and return of his firearms. The court granted the prosecutor's request for another adjournment to investigate appellant's mental health. The court instructed the prosecutor to notify appellant by January 24, 2011, of the State's position in the dispute and any evidence the State intended to present at the adjourned hearing.
After the proceedings in court, appellant provided to the prosecutor the same letter from his psychiatrist, this time containing a date of December 6, 2010. But the prosecutor did not comply with the court's deadline for discovery. Appellant did not receive discovery from the prosecutor until January 29, 2011, just a few days before the re-scheduled hearing date.
At the hearing held on February 3, 2011, appellant protested that the late response from the State did not give him enough time to prepare, but he opted to proceed with the hearing. The prosecutor represented that the State would argue against return of the firearms and identification card both on the ground of appellant's mental unfitness, N.J.S.A. 2C:58-3c(3), and, more generally, on the ground that returning the firearms "would not be in the interest of the public health, safety or welfare," N.J.S.A. 2C:58-3c(5).
Those statutory subsections provide exceptions to the general declaration of N.J.S.A. 2C:58-3c that all law-abiding citizens have the right to possess firearms ...