June 26, 2013
IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO D.P.P.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-403-09.
Jay R. Atkins argued the cause for appellant D.P.P. (Sunshine, Atkins, Minassian, Tafuri, D'Amato, Beane & Buckner, attorneys; Mr. Atkins and Joshua T. Buckner, on the brief.
David A. Malfitano, Assistant Prosecutor, argued the cause for respondent State of New Jersey (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Malfitano, Assistant Prosecutor, of counsel and on the brief).
Before Judges Reisner, Hayden and Hoffman.
Defendant D.P.P. appeals from a December 9, 2011 order entered by the Family Part, granting the State's motion to forfeit his seized weapons and to revoke his firearms permits and licenses, pursuant to N.J.S.A. 2C:25-21(d)(3). He contends that the trial judge erred in permitting the State to retain an expert witness after the trial had commenced, and that the trial judge's factual findings were against the weight of the evidence. We disagree and affirm, substantially for the reasons stated by Judge Lisa A. Firko, in her comprehensive oral opinion issued December 9, 2011.
To put the evidence in context, we begin with a discussion of the pertinent statutory provisions. The Prevention of Domestic Violence Act (PVDA), N.J.S.A. 2C:25-17 to –35, authorizes the police to seize weapons while responding to a domestic violence complaint:
d. (1) In addition to a law enforcement officer's authority to seize any weapon that is contraband, evidence or an instrumentality of crime, a law enforcement officer who has probable cause to believe that an act of domestic violence has been committed shall:
(a) question persons present to determine whether there are weapons on the premises; and
(b)upon observing or learning that a weapon is present on the premises, seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury. If a law enforcement officer seizes any firearm pursuant to this paragraph, the officer shall also seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence.
Thereafter, the weapons must be returned to the owner unless the court permits them to be forfeited, on application by the prosecutor:
(3) Weapons seized in accordance with the [PDVA] shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons . . . on the grounds that . . . the owner poses a threat to the public in general or a person or persons in particular.
Even if a domestic violence complaint is dismissed, the court is authorized to order forfeiture of a defendant's weapons upon a finding that the defendant's possession of weapons "would not be in the interests of the public health safety or welfare." N.J.S.A. 2C:58-3(c)(5); In re Return of Weapons to J.D., 149 N.J. 108, 115-16 (1997). Hence, the trial court must determine whether "the defendant poses a threat to public health, safety, or welfare." Id. at 116.
In reviewing a trial court's decision in a forfeiture case, we defer to the judge's factual findings, so long as they are "supported by substantial credible evidence." Ibid. We owe particular deference to the trial court's credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
The following evidence was introduced during the extensive forfeiture hearing before Judge Firko. Defendant is a former police officer, who was awarded an accidental disability pension based on his having job-related post-traumatic stress disorder (PTSD). At the hearing, several police witnesses testified to incidents in which defendant, while still employed as an officer, gave vent to violent outbursts of temper. Some of those outbursts included physical displays of anger, such as throwing an oxygen tank into the trunk of a car. As part of his application for a disability retirement, he submitted a report from his treating therapist indicating that defendant suffered from PTSD, with flashbacks of incidents in which suspects tried to seize his service weapon or pull a gun on him.
Defendant and his wife had a volatile relationship during their marriage. They each filed domestic violence complaints against each other, although they later withdrew them or resolved them through consent orders in the context of their divorce. Defendant's former wife testified to several incidents in which she claimed defendant physically assaulted her. On cross-examination, she recalled a 1994 incident in which defendant pointed a gun at her head.
In a 2008 incident, the police were called to the marital home and arrested defendant based on his wife's complaint that he put her in a headlock and threatened her with a belt. One of the arresting officers testified that defendant was intoxicated and so violent after his arrest that he had to be handcuffed to a restraining bar at the police station. Ultimately, defendant was taken from the police station to a psychiatric facility, where he was involuntarily committed for several days.
Expert witnesses for both sides confirmed that defendant has an explosive temper and a serious anger management problem that he has not yet successfully addressed. His treating therapist, Dr. Steven Gruntfest, a licensed clinical social worker, diagnosed defendant with obsessive–compulsive disorder as well as PTSD. Dr. Gruntfest explained that defendant is prone to extremely loud verbal outbursts, which even the therapist found frightening on occasion. Dr. Gruntfest described defendant as having flashbacks, triggered by situations "of perceived danger or attack, " and stated that he would "react reflexively and instinctively beyond his immediate conscious control as if immediately threatened." However, Dr. Gruntfest opined that those reactions would be limited to verbal outbursts, and that there was no risk that defendant would physically act out his anger by misusing a weapon.
The State's expert psychiatrist, Dr. Steven S. Simring, diagnosed defendant with mood disorder (a mild form of bipolar disorder), and personality disorder. Dr. Simring noted defendant's intense commitment to regaining his guns, and described his demeanor during their interviews as "scary." Dr. Simring also opined that defendant had a complete lack of insight into the ways in which his explosive temper contributed to his conflicts with others, including his former wife and his colleagues. Dr. Simring opined that defendant's mental illness, for which he refused to take medication, and his as-yet unsuccessfully treated explosive temper, posed a risk that he would misuse a firearm.
In his testimony, defendant denied ever threatening his wife with a gun. He asserted that she filed several false domestic violence complaints against him, in an attempt to gain an advantage in their divorce case. He denied engaging in any domestic violence. He testified that his expressions of anger against fellow police officers were a response to their unfair treatment of him. He testified that his PTSD was exacerbated by his observation of corruption in the police department and his fear that his fellow officers would retaliate against him for whistle-blowing activity. Defendant insisted that when he was arrested in 2008, he faked his apparently violent out-of-control conduct at the police station, so that he would be taken to a psychiatric facility rather than to the county jail.
Defendant testified that his guns were important to him because he was an avid hunter. He denied that he ever had threatened anyone with a gun, except as required to arrest suspects in the line of duty as a police officer. He testified that in 2010, he attended a six-month anger management program, although he did not present testimony from the therapist concerning his participation or progress.
In a twenty-four page oral opinion, Judge Firko credited the testimony of defendant's wife that defendant threatened her with a gun in 1994. She also credited the testimony of the police officer who arrested defendant in connection with the 2008 domestic violence complaint. That incident resulted in defendant's psychiatric hospitalization.
Judge Firko believed the officer's testimony that defendant was intoxicated, used obscenities, resisted arrest, was "screaming and yelling" at the police station, "tried to pull the [restraining] bar off the wall, " and threw water from the toilet in the holding cell. She credited the officer's testimony that he observed a red mark on defendant's wife's neck, and he heard defendant say that "he was going to get his wife and called her an F'ing whore." The judge noted defendant's records from the psychiatric facility, indicating that he "suffered from behavioral and personality defects, bipolar disorder, and a mood disorder."
The judge also credited the testimony of a police dispatcher, who testified to two incidents in which defendant behaved in an intimidating manner toward him. In one incident, defendant was furious that the dispatcher sent him out on a late-night call. Defendant "charged" toward the dispatcher, cursed at him, spit at him, and threatened to "kick his ass." In another incident, defendant threatened to arrest the dispatcher in retaliation for sending him out on what he felt was an undesirable assignment. The judge found that the dispatcher's testimony "supports the finding of defendant's aggressive, violent behavior, and inappropriate conduct in the face of non-threatening work-related issues."
Judge Firko believed the testimony of a police sergeant concerning several instances when defendant was "loud and confrontational" and physically aggressive, "throwing an oxygen tank, " as well as "throwing up his arms, kicking chairs, and slamming the soda machine." She also credited evidence that defendant threatened to "kill" a colleague "when that officer called in [to] work sick, and defendant had to work on his birthday."
The judge found Dr. Simring to be a more credible expert than Dr. Gruntfest. She accepted Dr. Simring's opinion that "defendant's history shows a lack of control, combined with his mental illness, psychiatric hospitalization, and his inability to control himself, defendant also has a mood disorder, [and] personality disorder." She credited Dr. Simring's testimony that defendant "had a stunning lack of insight" into his anger management problems, and that his PTSD could cause flashbacks, startled reactions and temper outbursts. She found that Dr. Simring's opinion "that defendant is not someone who should own, possess, or carry a firearm is based upon compelling, persuasive, and uncontroverted evidence in the record." She noted Dr. Gruntfest's agreement that defendant had PTSD, "has flashbacks, and relives life-threatening situations." However, she did not otherwise find Dr. Gruntfest's testimony credible, for reasons she explained in detail.
The judge noted her observation of defendant's odd demeanor during his testimony:
[H]e often looked confused. . . . he also . . . was mumbling during a lot of his testimony, speaking softly, looking side to side, rocking in his chair, rolling his eyes. He was also anxious, jittery, and jumpy during most of his testimony.
After listening to defendant's testimony and that of his ex-wife, the judge believed the ex-wife's description of the 2008 incident in which defendant tried to choke her.
Based on defendant's mental illness and his history of violence and threats of violence toward his co-workers and his ex-wife, the judge concluded that the State carried its burden of proving that allowing defendant to have firearms would pose a danger to the public health, safety or welfare.
On this appeal, defendant contends that Judge Firko's factual findings were not supported by the record and her legal conclusions were erroneous. After reading the eleven volumes of hearing transcripts and reviewing the documentary record, we find no basis to disturb Judge Firko's factual findings or her legal conclusions. Defendant's arguments to the contrary are without sufficient merit to warrant discussion beyond the following comments. See R. 2:11-3(e)(1)(E).
The result in this case was not based solely on the statements of defendant's ex-wife, whose contentious relationship with defendant might cast some doubt on the reliability of her testimony. Nor was the result based on the testimony of any other single witness. Rather, all of the State's evidence combined to produce an overwhelming picture of a very troubled individual with insufficiently-treated mental illness and an explosive, violent temper. The facts, as Judge Firko found them, are based on sufficient credible evidence and strongly support her conclusion that allowing defendant to possess weapons would be contrary to public safety. See N.J.S.A. 2C:58-3(c)(3) (defendant's "mental disorder" precludes the safe handling of firearms); N.J.S.A. 2C:58-3(c)(5) (defendant's possession of a firearm "would not be in the interest of the public health, safety or welfare").
Nor can we agree with defendant's argument that the judge erred in allowing the state to present testimony from Dr. Simring. Absent an abuse of discretion, we will not disturb a trial judge's decision to permit an expert witness to testify. See State v. LaBrutto, 114 N.J. 187, 205 (1989). "Factors that should result in permitting the expert to testify include '(1) the absence of any design to mislead, (2) the absence of the element of surprise if the evidence is admitted and (3) the absence of prejudice which would result from the admission of evidence.'" Ibid. (quoting Amaru v. Stratton, 209 N.J.Super. 1, 11 (App. Div. 1985)).
"'Prejudice' in this context refers not to the impact of the testimony itself, but the aggrieved party's inability to contest the testimony because of late notice." State v. Heisler, 422 N.J.Super. 399, 415 (App. Div. 2011). "A trial court is vested with broad discretion to determine what remedy, if any it should impose because of a failure to make expert disclosures" Id at 414-15 Courts are not required to bar untimely requested expert testimony Ibid
Ordinarily a forfeiture hearing is a summary action NJSA 2C:25-21(d) However in this case Judge Firko gave defendant the benefit of an eleven-day trial conducted on various dates between January 28 2011 and August 2011 After considering the public safety implications of weapons forfeiture cases the judge permitted the State to file an expert report out of time However although the court granted the State's application on March 31 2011 which was the second day of the trial Dr Simring did not testify until May 18 2011
The defense had time to prepare a response to Dr Simring's testimony and was permitted to re-call Dr Gruntfest after Dr Simring testified As a sanction the judge ordered the State to pay defendant's expert's fee There was no evidence of prejudice to the defense See Heisler supra 422
N.J.Super. at 415 We find no abuse of the judge's discretion in allowing the State to present testimony from Dr Simring