On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. GP#7-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...