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In re Return of J.M.

Superior Court of New Jersey, Appellate Division

May 28, 2013

IN THE MATTER OF THE RETURN OF J.M., SR.'S FIREARMS.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 16, 2013

On appeal from the Superior Court of New Jersey, Chancery and Law Divisions, Passaic County, Docket Nos. FV-16-117-12 and FO-16-245-12.

Frank Pisano, III, argued the cause for appellant J.M., Sr. (Needleman and Pisano, attorneys; Mr. Pisano, on the brief).

Christopher W. Hsieh, Chief Assistant Prosecutor, argued the cause for respondent State of New Jersey (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).

Before Judges Fisher and Waugh.

PER CURIAM

Petitioner appeals the March 22, 2012 order forfeiting three firearms (handguns) and his New Jersey Firearms Purchaser Identification Card (Firearms Card). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

The handguns and Firearms Card were taken from petitioner's residence in the City of Passaic as the result of a domestic violence incident on October 22, 2011. Passaic police officers went to petitioner's home in response to a report that there was an assault in progress. They found petitioner's two adult sons, V.M. and J.M., in front of the house. V.M. informed the officers that he and his father had engaged in an argument initiated by petitioner, who objected to V.M. storing things on top of the refrigerator. According to V.M., petitioner pulled his arm, punched him, and threatened to shoot him. Because he believed his father was going to punch him again, V.M. grabbed a metal pipe and struck petitioner several times. V.M. told the officers that he "lost it." V.M. later told the police that petitioner also hit him with a crutch at the start of the incident and that he had attempted to spray his father with pepper spray.

J.M. told the officers that, after he heard a commotion, he entered the house and saw V.M. punching his father. The officers entered the house and found petitioner "profusely" bleeding. Petitioner told them that V.M. assaulted him with a metal pipe, but he was somewhat disoriented and unable to give further details. He was taken to a hospital.

J.M. turned several weapons over to the police officers, including the three handguns belonging to his father. Two of the three handguns were found to be registered to petitioner. Petitioner explained later that the third handgun had been left to him by a deceased friend. See N.J.S.A. 2C:58-3(j). The State subsequently applied for the forfeiture of the handguns and petitioner's Firearms Card pursuant to N.J.S.A. 2C:58-3(c)(5) and -3(f).

The forfeiture hearing was held on March 22, 2012. One of the investigating officers testified to the events at the scene of the incident and the officers' conversations with the participants.[1] Petitioner testified about the handguns and about the altercation with V.M. He described V.M. as the aggressor and denied having "laid a hand" on him. The judge delivered an oral decision in which he granted the State's application. The order of forfeiture was entered the same day. This appeal followed.

II.

On appeal, petitioner contends that the judge erred in granting the State's forfeiture application. He argues that the judge improperly relied on the police reports concerning clutter in the house, that V.M. was the sole aggressor during the domestic violence incident, that the handguns at issue were not involved in that incident, that they were appropriately stored, and that there was no ammunition in the house.

When reviewing a decision resulting from a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings 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." Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484) (internal quotation mark omitted); see also Beck v. Beck, 86 N.J. 480, 496 (1981).

In matters involving firearm permits and the forfeiture of weapons in conjunction with domestic violence, "a judicial declaration that a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact-sensitive analysis." State v. Cordoma, 372 N.J.Super. 524, 535 (App. Div. 2004). Accordingly, we may only "set aside a trial court's forfeiture ruling when it was not supported by sufficient competent evidence." Ibid.

Nevertheless, it is also well-established that our review of a judge's conclusions of law is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Our review of a trial judge's statutory interpretation is also de novo. See Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002) (citing Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999)).

The State regulates firearm licensing under the New Jersey Gun Control Law, N.J.S.A. 2C:58-1 to -19, which embodies "the conscientious legislative efforts aimed at keeping firearms out of the hands of all dangerously unfit persons, noncriminal as well as criminal." Burton v. Sills, 53 N.J. 86, 94 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 748 (1969); accord In re Dubov, 410 N.J.Super. 190, 198 (App. Div. 2009). An individual's firearm purchase or request for a Firearms Card must be preceded by a determination that the applicant is "of good character and good repute in the community in which he [or she], lives, and . . . is not subject to any of the disabilities" described in N.J.S.A. 2C:58-3(c). See N.J.S.A. 5C:58-3(c) to (f).

Denial of an application must be based on one of the factors enumerated in N.J.S.A. 2C:58-3(c), as follows:

No handgun purchase permit or firearms purchaser identification card shall be issued:
(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence . . .;
(2) To any drug dependent person as defined in section [N.J.S.A. 24:21-2], to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;
(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic . . .; to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card;
(4) To any person under the age of 18 years for a firearms purchaser identification card and to any person under the age of 21 years for a permit to purchase a handgun;
(5) To any person where the issuance would not be in the interest of the public health, safety or welfare;
(6) To any person who is subject to a restraining order issued pursuant to the "Prevention of Domestic Violence Act of 1991, " . . .;
(7) To any person who as a juvenile was adjudicated delinquent . . .; or
(8) To any person whose firearm is seized pursuant to the "Prevention of Domestic Violence Act of 1991, " . . . .

Cases involving the return of seized weapons apply the same statutory standard. State v. Cunningham, 186 N.J.Super. 502, 511 (App. Div. 1982). In that regard, confiscated weapons should not be returned to defendants who pose "a threat to the public health, safety, or welfare." In re Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997) (concluding the Legislature intended to authorize courts to retain the weapons of defendants who are threats to the public); accord State v. Freysinger, 311 N.J.Super. 509, 515 (App. Div. 1998).

We agree with petitioner that the way in which his handguns were stored does not support the judge's determination that they should be subject to forfeiture. There are no general statutory requirements governing the storage of firearms. N.J.S.A. 2C:58-15(a), which applies only to the owners of firearms who know or should know that a minor is likely to have access to their weapons, requires that weapons without trigger locks be stored "in a securely locked box or container" or "in a location which a reasonable person would believe to be secure." N.J.S.A. 2C:58-15(a)(1) to (3). The uncontroverted evidence was that petitioner's firearms were unloaded and stored in either a locked closet in an upstairs bedroom or a locked toolbox in the basement. If petitioner's methods of storage satisfied the requirements of N.J.S.A. 2C:58-15(a), which they appear to have done, we see no basis for using them as grounds for a forfeiture. We note as well that the State did not introduce any evidence that a minor was likely to have access to petitioner's handguns.

We also agree with petitioner's argument that there is no support in the statutes or case law for the judge's reliance on the clutter in his residence as a reason for not returning the firearms. The judge failed to articulate a specific reason why the existence of extreme clutter rendered possession of unloaded firearms, locked in a closet or box, sufficiently dangerous to warrant forfeiture, alone or in connection with other reasons. The State's citation of N.J.S.A. 2C:58-3(c)(3) (prohibiting issuance of permit or Firearms Card to "any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms") does not cure the problem because there was no testimony that petitioner suffered from any such disease.

We disagree however with petitioner's argument that there was no factual basis in the record for the judge's conclusion that his handguns and the Firearms Card should be forfeited Although petitioner was the only witness at the trial who had participated in the dispute the police officer testified without objection to the version of events given by VM and JM at the scene and during subsequent questioning VM told the officer that petitioner started the altercation and threatened to shoot him while JM stated that disputes were common in the household and that his father was usually the aggressor

Despite the fact that the judge relied on some factors that we conclude are not appropriate we are convinced that his decision to forfeit the weapons was more than adequately supported by the record before him with respect to petitioner's role in starting the altercation on October 22 2011 and his generally aggressive relationship with his sons Those facts relied upon by the trial judge fully support the judge's finding that the return of the weapons and the Firearms Card "would not be in the interest of the public health safety or welfare" NJSA 2C:58-3(c) (5) Consequently we affirm the order on appeal.

Affirm.


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