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In the Matter of Anthony Dubov.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 14, 2012

IN THE MATTER OF ANTHONY DUBOV.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. GP#7-2007.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically January 4, 2012 --

Before Judges Payne and Simonelli.

Following a remand hearing required by In re Dubov, 410 N.J. Super. 190, 203 (App. Div. 2009), appellant Anthony Dubov appeals from the October 29, 2010 Law Division order, which upheld the denial of his application for a permit to purchase a handgun and a Firearms Purchaser Identification Card (FPIC) pursuant to N.J.S.A. 2C:58-3c(5). We affirm.

On November 7, 2006, appellant submitted an application to the East Windsor Township Police Department pursuant to N.J.S.A. 2C:58-3 for a permit to purchase a handgun and a FPIC. In re Dubov, supra, 410 N.J. Super. at 193. The application contained two references, William Seymour and Brian Johnson, as required by N.J.S.A. 2C:58-3e. Ibid. At the time of the application, appellant was twenty-eight years old and worked as an unarmed security guard.

Detective Brad Petagno, who was assigned to investigate the application, stated in a January 2007 report that he met with appellant about the application, and appellant "hesitated answering, stuttered and seemed confused" when asked why he wanted a gun permit. Det. Petagno advised appellant that the application was strictly for issuance of a permit to purchase a handgun and a FPIC, and that "[t]his process did not permit him to carry a weapon." Appellant eventually said he wanted a gun permit for "target shooting."

Det. Petagno expressed his concern that Seymour and Johnson had not responded to reference questionnaires mailed to them, "as this normally does not occur with applicants and the references that they use in the application process." He eventually spoke to Seymour, who subsequently submitted a positive reference; however, Johnson made very negative comments about appellant, was unwilling to answer any questions about him, and stated, "I don't want anything to do with him." Det. Petagno recommended that Chief of Police William Spain deny the application based on this conversation with Johnson.

Chief Spain notified appellant in a January 15, 2007 letter that he had denied the application. Ibid. He gave no explanation for the denial, and did not offer to meet with appellant to discuss the reasons for the denial, as required by Weston v. State, 60 N.J. 36, 43-44 (1972). Ibid.

Appellant filed an appeal in the Law Division. Ibid. He later submitted new references from John Sochacki and William Nazario, and a March 27, 2007 report from a psychiatrist, Vin Gooriah, M.D. Dr. Gooriah diagnosed appellant as having a learning disability not otherwise specified and borderline intellectual functioning; however, appellant had "no overt manifestation of any mood, anxiety, or psychotic features," did "not suffer from any mental illness on Axis I," and could "be entrusted with the use of a gun in the course of his employment as [a] security officer." (Emphasis added.)

Prior to the remand hearing, Peter Horne, Ph.D., a criminal justice professor at Mercer County College and former police officer, wrote to the trial judge about his concern that appellant could legally possess a firearm. Horne, who knew appellant for approximately two years,*fn1 described instances where appellant displayed what Horne believed was compulsive, repetitive, and paranoid behavior, which had been "a topic of concern of several individuals across campus." Horne concluded, "For the good of society I would recommend that [appellant] not be granted a gun permit."

The trial judge considered the matter on the documents submitted, including Horne's letter, without hearing testimony, as required by Weston, supra, 60 N.J. at 46. The judge denied the application, reasoning as follows: several of [appellant's] references and another source [who] contacted this [c]court independently (see copy of Dr. Horne's June 18, 2008 letter . . . ) provided a negative response as to [appellant's] fitness to possess a firearm. As a result, this [c]court finds that the issuance of the requested permits would not be in the interest of the public's health, safety or welfare pursuant to [N.J.S.A.] 2C:58-3c(5).*fn2

[In re Dubov, supra, 410 N.J. Super. at 195.]

Defendant appealed, arguing, in part, that the proceedings violated procedural due process, and that N.J.S.A. 2C:58-3c(5) is unconstitutionally vague. This court disagreed with appellant's latter argument, concluding that "[i]n Burton v. Sills, 53 N.J. 86 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969), [our Supreme] Court rejected a similar challenge to the constitutionality of the predecessor to N.J.S.A. 2C:58-3(c)(5)[.]" Id. at 196. We also concluded that the holding in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), had no impact upon the constitutionality of N.J.S.A. 2C:58-3c(5) because it did not require the invalidation of statutes that require a license to purchase or possess a firearm. Id. at 196-97.*fn3

However, we reversed and remanded for an evidentiary hearing in accordance with Weston. Id. at 199-201, 203.

At the remand hearing, Chief Spain testified that he and Det. Petagno reviewed Det. Petagno's report and discussed the results, including appellant's confusion about why he wanted a gun permit and Johnson's negative reference. He denied the application based on the interest of the public health, safety and welfare.

Det. Petagno, who had investigated hundreds of gun permit and FPIC applications since 1998, testified that he was concerned that appellant was not clear about why he wanted a gun permit. He also testified that he normally received positive responses from references, he had never received a response such as Johnson's response, and what Johnson said alarmed and concerned him. He recommended the application's denial because he wanted to be "on the side of caution" rather than approve the application and later be questioned as to why he did so given the results of his investigation.

Horne testified that he was extremely concerned that appellant would have legal access to a firearm based on his observations of appellant's compulsive, repetitive, paranoid and lurking behavior while appellant was a student at Mercer County College. Horne gave examples of appellant's behavior to the judge.

Dr. Gooriah re-examined appellant prior to the remand hearing. He testified that he performed forensic evaluations at the Ann Klein Forensic Center for Krol*fn4 hearings on the issue of dangerousness resulting from mental illness, and that appellant had retained him "to do a psychiatric evaluation to make a decision whether [appellant] would be able to carry weapons." (Emphasis added.) During the evaluation, appellant told the doctor that he wanted the gun permit in order to obtain employment as an armed security guard or in law enforcement.

Dr. Gooriah confirmed his previous diagnosis of a learning disorder not otherwise specified and borderline intellectual functioning. He explained that appellant's language barrier,*fn5

cognitive ability, borderline intellectual functioning, and learning disability accounted for his inability to quickly articulate his reason for the application, and that the behavior Horne observed resulted from appellant's difficulty processing information, low self esteem, and occasional difficulty understanding the English language. He concluded that because appellant was not diagnosed with any major mental illness, he was not a danger to himself or others.

On cross-examination, the doctor admitted that he never treated appellant, and had only met with appellant twice for a total of two hours. In addition, the doctor performed no testing to confirm his diagnosis or corroborate his findings and conclusions.

Sochacki testified that he had known appellant since high school, but that they had a "loose acquaintanceship[,]" they "[d]idn't really hang out or do much of anything . . . with each other[,]" he only saw appellant once a week at martial arts classes that he attended for approximately one year, he had not spoken to appellant "too much" since leaving the class in 1998, and he only saw appellant occasionally when appellant came to purchase something from the store where he worked. As for his knowledge of appellant's reputation, Sochacki testified, "as far as I know, he . . . hasn't hurt anybody, . . . he's been . . . a good guy . . . respectful, . . . mindful[,] . . . quiet, not . . . hurting anybody or anything. At least that's what I understand."

Appellant testified that he was employed as an unarmed security guard, and he wanted a gun permit in order to practice shooting and improve his opportunity to obtain higher-paying employment as an armed security guard or in law enforcement. He also testified that the gun permit he applied for would allow him to carry a gun on his person during the course of his employment. Contrary to Sochacki's testimony, appellant testified that he saw Sochacki two or three times a week.

A different Law Division judge affirmed the denial of appellant's application, concluding that it was not in the interest of the public safety, health and welfare to grant it. The judge mentioned, but did not rely on, Horne's testimony because Horne was not an expert. The judge also rejected Dr. Gooriah's opinion regarding appellant's dangerousness. The judge noted that Dr. Gooriah incorrectly believed that appellant had applied for a permit to carry a firearm. He concluded that Dr. Gooriah's opinion on dangerousness relating to appellant's ability to carry a gun was irrelevant because the issue was whether appellant was fit to possess a firearm and whether granting the application was in the interest of the public health, safety and welfare, both of which the doctor failed to address. The judge also found that appellant's testimony was not credible, and emphasized that appellant did not understand that the gun permit he applied for did not permit him to carry a firearm.

The judge considered Johnson's statement to Det. Petagno, which he found was reliable and consistent with other credible evidence, as well as appellant's diagnosis of borderline intellectual functioning. The judge also found that Sochacki "did not qualify as someone who could make a reference at all[,]" Sochacki did not provide a satisfactory reference based on his testimony, and Sochacki's testimony contradicted appellant's testimony about the nature and extent of their relationship. The judge also rejected appellant's reliance on Heller and McDonald v. City of Chicago, ___ U.S. ___, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) on the issue of the unconstitutionality of N.J.S.A. 2C:58-3c(5). This appeal followed.

On appeal, appellant contends that N.J.S.A. 2C:58-3c(5) is unconstitutionally vague and unconstitutional as applied, and violates his Second Amendment*fn6 right to possess a firearm. He also contends that the judge's decision was against the weight of the evidence, and was arbitrary, capricious and unreasonable. We disagree with these contentions.

To purchase a firearm in New Jersey, a person must apply for a permit and a FPIC. N.J.S.A. 2C:58-3. A "person of good character and good repute in the community in which he lives," must be issued a permit and FPIC unless, among other "disabilities" not relevant to this appeal, "issuance would not be in the interest of the public health, safety or welfare[.]" N.J.S.A. 2C:58-3c(5); N.J.A.C. 13:54-1.5(a)(5). N.J.S.A. 2C:58-3c(5) relates to cases of individual unfitness not otherwise considered in the specific statutory "disabilities" where issuance of the permit or FPIC would nonetheless be contrary to the public interest. Burton v. Sills, 53 N.J. 86, 90-91 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969).

The chief of police of the municipality where the applicant resides makes the initial decision of whether or not to grant the application, subject to standards which have been adjudged constitutionally adequate. Id. at 91; N.J.S.A. 2C:58-3d. In making this decision, the chief of police must investigate the application and grant it "unless good cause for the denial thereof appears." N.J.S.A. 2C:58-3f. "In performing his administrative function the chief of police proceeds informally, acting either personally or through members of his department in gathering the information upon which his decision is then based." Weston, supra, 60 N.J. at 43.

"Any person aggrieved by the denial of a permit or identification card may request a hearing" in the Law Division. N.J.S.A. 2C:58-3d. Judicial review of the chief of police's decision is de novo and the introduction of new evidence is permitted; however, the court "should give appropriate consideration to the [c]hief's investigative experience and to any expertise he appears to have developed in administering the statute." Weston, supra, 60 N.J. at 45-46. "[Judicial] review must be practical as well as responsible to the public." In re Clark, 257 N.J. Super. 152, 154 (Law. Div. 1992); see also Weston, supra, 60 N.J. at 45. Ultimately, the chief of police bears the burden of "proving the existence of good cause for the denial by a preponderance of the evidence." In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).

This court has addressed, and rejected, appellant's argument that N.J.S.A. 2C:58-3c(5) is unconstitutionally vague. In re Dubov, supra, 410 N.J. Super. at 197. McDonald does not change this result, as it merely extended Heller's holding to the States and held "that the Second Amendment right is fully applicable to the States." McDonald, supra, ___ U.S. at ___, 130 S. Ct. at 3026, 177 L. Ed. 2d at 903.

This court has also addressed defendant's Second Amendment contention:

The issue in Heller was whether the Second Amendment protects only the right to possess and carry a firearm in connection with military service or also protects an individual's right to possess a firearm for other purposes such as self-defense and hunting. The Court held that the Second Amendment protects an individual right to keep and bear firearms, and that this holding required invalidation of District of Columbia statutes that totally prohibited handgun possession in the home and required any lawful firearm in the home to be disassembled or bound by a trigger lock, thus rendering it inoperable.

However, the Court expressly indicated that its holding did not require invalidation of statutes that require a license to purchase or possess a firearm. In fact, the Court noted that "[r]espondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner[,]'" thus obviating the need for the Court to address the validity of the specific provisions of the District of Columbia's gun licensing statutes. Therefore, Heller has no impact upon the constitutionality of N.J.S.A. 2C:58-3(c)(5). [In re Dubov, supra, 410 N.J. Super. at 196-97 (citations omitted).]

If an issue has been determined on the merits in a prior appeal it cannot be re-litigated in a later appeal of the same case, even if of constitutional dimension. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971). Nonetheless, while the Heller Court found the absolute prohibition of handguns was unconstitutional, it also noted that the Constitution leaves "a variety of tools" to control gun violence, including "laws imposing conditions and qualifications" on the sale of arms. Heller, supra, 554 U.S. at 626-27, 636, 128 S. Ct. at 2817, 2822, 171 L. Ed. 2d at 678, 684. Thus, the denial of appellant's application did not violate his constitutional rights because firearm regulations under N.J.S.A. 2C:58-3c(5) are constitutionally sound. We thus focus on whether the judge's decision was against the weight of the evidence, or was arbitrary, capricious or unreasonable.

Our "review of the [trial] judge's findings of fact based on the testimony presented during [a] plenary hearing[] is limited." Mountain Hill L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 192 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009). "'The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)); see also In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997). We "should not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Seidman, supra, 205 N.J. at 169 (internal quotation omitted).

"However, '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'" and are subject to de novo review. Mountain Hill L.L.C., supra, 403 N.J. Super. at 193 (first alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

As noted above, N.J.S.A. 2C:58-3c(5) relates to cases of individual unfitness. Burton, supra, 53 N.J. at 91. The Legislature's intent "was to keep guns out of the hands of unfit persons[,]" and "disqualify any unfit individuals who, though not strictly within the enumerated classes, should not in the public interest be entrusted with firearms." Id. at 91, 93. The issue in this case, therefore, is whether appellant is fit to possess a firearm, not whether he suffers from a mental illness rendering him dangerous to carry a firearm.*fn7 Dr. Gooriah did not address appellant's fitness to possess a firearm or whether the grant of the application was in the interest of the public safety, health, and welfare. Accordingly, the judge did not abuse his discretion in rejecting the doctor's testimony. See Pansini Custom Design Assocs., L.L.C. v. City of Ocean City, 407 N.J. Super. 137, 143 (App. Div. 2009).

As for appellant's fitness to possess a firearm, we discern nothing inherently inadmissible in Horne's testimony about appellant's behavior, which provided independent factual evidence that appellant is unfit to possess a firearm. In addition, the evidence established that appellant did not understand that the permit he applied for did not allow him to carry a firearm in the course of his employment, and that he intended to carry the firearm in the course of his employment if granted a permit, which would violate N.J.S.A. 2C:39-5b (it is a second-degree crime to unlawfully possess a handgun without a permit to carry granted pursuant to N.J.S.A. 2C:58-4). Appellant's lack of understanding and his intent to illegally carry a handgun supports the conclusion that he is unfit to possess a firearm and the grant of his application would be contrary to the interest of the public safety, health and welfare. See In re Osworth, supra, 365 N.J. Super. at 81 (observing that "it does not serve public safety to issue a [FPIC] to someone who has demonstrated his willingness to disregard the guns laws of this State"). Accordingly, we are satisfied that there is ample credible evidence in the record that appellant is unfit to possess a firearm, and that issuance of a gun permit and FPIC would not be in the interest of the public safety, health and welfare.

Moreover, N.J.S.A. 2C:58-3e requires two references from persons acquainted with the applicant. Presumably, this means that the reference has a personal relationship with the applicant such that he or she can establish that the applicant has good character and repute in the community, is not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3c, and is fit to possess a firearm. See N.J.S.A. 2C:58-3c. Sochacki's reference testimony was far from meeting this requirement. Accordingly, because appellant lacked two references, there was good cause to deny his application.*fn8

Affirmed.


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