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In Re Application of


August 1, 2012


On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. 09-3496.

Per curiam.


Submitted July 24, 2012 -

Before Judges Graves and Yannotti.

Euclides Moya appeals from a Law Division order entered on March 31, 2011, denying his motion for the return of his handgun. The order also revoked Moya's firearms purchaser identification card (FPIC) and required him to forfeit all other firearms he owns "because his possession of firearms is contrary to the interest of the public health, safety and welfare." For the reasons that follow, we affirm.

In his certification in support of the motion for the return of his handgun, Moya stated that he and his family were the victims of an attempted armed burglary at approximately 8:00 a.m. on February 2, 2006. According to Moya, he saw "a masked man" run across his driveway after his front doorbell rang. Moya placed his handgun in his bathrobe pocket and went to the door. As he was opening the door, another man with a gun "kicked the door open." Moya then "pulled out his gun." According to Moya, the man with the gun, who was subsequently identified as Rafael Cabrera, jumped down the stairs and fired his gun in Moya's direction as he was running away. Moya said he "was afraid for [his] life," and he fired his handgun at the two suspects as they fled the scene.

The investigation by the Paterson Police Department revealed that Moya fired a total of five shots. Moya does not dispute that three of the bullets he fired "landed in his neighbors' property." The police determined that one bullet went into the front right bedroom of a neighbor's house; a second bullet was recovered in the bedroom closet of another neighbor's house; and a third bullet struck a Toyota parked in the driveway of the same neighbor's home. Following the investigation, charges were filed against Cabrera and another individual. No charges were filed against Moya, but the police seized his handgun.

In November 2010, Moya filed a motion for the return of his handgun. When the matter was heard on March 25, 2011, Moya's attorney argued that Moya's behavior on February 2, 2006, was reasonable because he had the right to protect himself from the "two armed criminals at his door." The State opposed the motion and argued that Moya was so negligent when he fired the five shots at the would-be intruders that he was unfit to possess a firearm or a FPIC.

In a written decision dated March 31, 2011, the motion judge concluded it would be "contrary to the interest of the public health, safety and welfare" for Moya to possess a firearm. The judge based his conclusion on the following findings:

Here, the Court finds that although Moya was the victim of an attempted home invasion, it was nonetheless an unreasonable use of force when he fired five shots at the suspects as they ran away through his residential neighborhood. First, the Court notes that Moya fired the shots as the suspects were running away from his home and that Moya followed the suspects out onto his front porch so that he could continue to fire shots as they fled the scene. Although the suspects did initially pose a very serious threat to Moya's safety, the Court finds that this threat had largely subsided by the time that Moya fired his first shot because, at that point, the suspects were already retreating. In fact, the armed intruder turned around and jumped down the front stairs at the sight of Moya's gun before any shots were fired. Second, Moya created a very dangerous situation in his neighborhood when he fired his gun five times. It is undisputed that Moya intentionally fired his weapon into a residential neighborhood and that three of his shots came to rest in two of his neighbors' bedrooms and in a car that was parked in a neighbor's driveway.

Any of these bullets could have injured or killed innocent bystanders and the Court finds that this is careless handling of a firearm. As such, the Court finds that Moya handled his firearm so negligently when he fired his handgun at the suspects as they were retreating through his residential neighborhood that his possession of firearms is contrary to the public health, safety and welfare.

On appeal, Moya advances the same arguments he presented to the trial court. In addition, he contends the court erred by not conducting an evidentiary hearing before ordering him to forfeit his handgun, FPIC, and any other firearms he owned. After considering these arguments in light of the record and the applicable law, we conclude they are clearly without merit. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Rudolph Filko, Rule 2:11-3(e)(1)(A), with only the following comments.

Pursuant to N.J.S.A. 2C:58-3(c)(5) no permit to purchase a firearm or FPIC shall be issued "[t]o any person where the issuance would not be in the interest of the public health, safety or welfare." A request for the return of seized weapons is subject to the same standard. See In re Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997) (stating that "a court should not return weapons to [an individual] who is a threat to the public"); see also State v. Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982) ("Clearly, the statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public.").

In the present matter, an evidentiary hearing was not required because the essential facts were not disputed. Moreover, we have concluded from our review of the record that Judge Filko's findings are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).



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