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In re Application of Piasecki

Superior Court of New Jersey, Appellate Division

July 22, 2013



Argued: January 9, 2013

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 2011-36.

Arnold M. Mellk argued the cause for appellant Christopher Peter Piasecki (Mellk O'Neil, attorneys; Mr. Mellk, on the briefs).

William P. Fisher, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Fisher, of counsel and on the brief).

Before Judges Axelrad and Sapp-Peterson.


Petitioner Christopher Peter Piasecki appeals from the Law Division's March 19, 2012 order denying the appeal of his application for a firearm purchaser identification card and/or handgun purchase permit (firearms card). We affirm the order as modified.

On August 23, 1994, petitioner was arrested and charged in Lawrence Township with simple assault, N.J.S.A. 2C:12-1(a)(1), "by grabbing [his girlfriend] with his hands around her neck and face and causing injury, red marks and a headache [for] which she requested to seek medical attention . . . ." The complaint further reflected the matter as "Domestic Violence, " and provided for no contact between the parties. On April 4, 1995, the charge was dismissed in municipal court.

As a result of events occurring the evening of October 5, 1995, Plainsboro Township police arrested petitioner and charged him the next day with stalking, N.J.S.A. 2C:12-10(b); burglary, N.J.S.A. 2C:18-2(a)(1); harassment, N.J.S.A. 2C:33-4(c); and defiant trespass, N.J.S.A. 2C:18-3(b). According to the charges, petitioner forcefully entered [his girlfriend's] residence and searched through rooms and closets, after he had repeatedly followed her, waited outside her residence, watched her, and telephoned her. The police characterized this as a "Domestic Violence" matter, so they seized petitioner's firearms and his firearms card.

The Middlesex County Prosecutor's Office then filed a petition in the Family Part seeking the forfeiture of petitioner's firearms and his firearms identification card.[1] At the hearing on November 17, 1995, the assistant prosecutor read into the record a letter from petitioner's attorney, [2] stating, "Consistent with our telephone conversation this afternoon, please be advised that [petitioner] waives his right to appear on November 17th at the forfeiture proceeding where your office is seeking to obtain a forfeiture of any and all weapons owned or possessed by him, and also to revoke any firearms licenses that he may hold." The assistant prosecutor requested an order forfeiting the weapons and prohibiting possession in the future. Judge Nicholas Stroumtsos signed an order dated December 4, 1995 (FO-12-532-96) directing that the weapons and other items listed on Schedule A were forfeited to the State and that "all N.J. firearms licenses held by [petitioner] are revoked and it is further ordered that [petitioner] is forbidden to apply for any said licenses or possess in any way, any firearms until further order of this Court." (Emphasis added).

On December 21, 1995, petitioner was indicted by a Middlesex County grand jury on charges of third-degree stalking, N.J.S.A. 2C:12-10, in connection with the October 5, 1995 incident. On February 1, 1996, upon motion of the Middlesex County Prosecutor's Office, the Assignment Judge entered an order dismissing the indictment. The prosecutor explained that the victim signed an affidavit stating she declined to pursue the matter, but the complaints were nevertheless presented to the grand jury, which returned the one-count indictment based on the officer's testimony. The prosecutor further represented that:

Review of the evidence presented to the Grand Jury fails to reveal a sufficient factual/legal predicate for the charge of stalking. Among other things, the proofs do not establish "following" or a "course of conduct" or any basis for an apprehension of injury of death. The Grand Jury proofs are confined to a single, non-violent incident and do not present a stalking case. At most, they support a disorderly persons charge of harassment.

The prosecutor remanded the companion disorderly persons complaint, which charged petitioner with harassment and defiant trespass, to the Plainsboro Municipal Court for disposition. On February 28, 1996, petitioner pled guilty in municipal court to Plainsboro local ordinance "73.2A Nuisance" and all other charges were dismissed.

In response to petitioner's subsequent application to the Middlesex County Criminal Division, Judge Glenn Berman entered an order on September 13, 1996, expunging petitioner's records relating to: (1) the August 1994 assault charge dismissed in municipal court in April 1995, and (2) the October 1995 arrest and resulting charges of stalking, burglary, harassment, and trespass set forth in the municipal complaint, summons, and indictment. The order noted that the indictment was dismissed in February 1996, the complaint was downgraded to a charge of nuisance under the municipal ordinance, and the complaint was dismissed in open court. The order further provided that petitioner was "relieved from all disabilities as may exist by reason of said arrest." The order was silent as to the December 4, 1995 forfeiture order.

On April 14, 2011, petitioner applied for a firearms purchaser identification card and three firearms permits from the Lawrence Township police department. He selected the box on the application that indicated his identification card had been "lost or stolen." Petitioner responded "no" to questions seventeen and twenty-seven on the application, which asked whether he was "subject to any court order issued pursuant to Domestic Violence" and whether he "ever had a firearms purchaser identification card, permit to purchase a handgun, permit to carry a handgun or any other firearms license or application refused or revoked in New Jersey or any other state?"

Following an investigation, the Chief of Police denied petitioner's application by letter of July 5, 2011, pursuant to N.J.S.A. 2C:58-3(c)(3) and -3(c)(8), for falsification of information on the application and being subject to the December 4, 1995 Middlesex County forfeiture order.

Petitioner appealed the denial to the Superior Court. At the February 28, 2012 hearing, his attorney represented that before filing this application, he sought to file in Middlesex County because the forfeiture order was issued by a Middlesex County Superior Court judge, but was directed by that court to bring the application in the Mercer County court. He believed he had filed moving papers there but was not positive. Neither the trial record nor our appendix contains any such documents.

Petitioner testified that in l999 he asked his attorney "whether [he] would ever be able to apply for a gun permit." The attorney responded with a letter dated July 27, 1999, stipulated into evidence, including in the last paragraph the following advice: "The three exceptions that may apply to the general provision are not applicable in your case. . . . Consequently, you can [] reply that you have never been arrested. For your assistance I am enclosing the order of expungement file[d] in your case."[3]

In response to questioning by the court, petitioner explained that he checked the box "lost or stolen" because although he surrendered the firearms card to police when he was arrested in October 1995 and it was ultimately forfeited by the December 1995 order, it was not in his "possession" so state law required him to apply for the new card before he applied for the permit. He also stated his understanding that the expungement order "pretty much expunged everything" concerning the l995 and l996 incidents, including the 1995 forfeiture order.

The officer testified about his investigation that disclosed the discrepancies in petitioner's application. He explained that the denial was based on petitioner's falsification of the application and the existing forfeiture order that he had ascertained was still in "good standing."

By written opinion and order of March 19, 2012, the judge denied the appeal. The judge credited petitioner's testimony "with respect to his mistaken understanding of the scope of the Expungement Order as described by his attorney in his attorney's letter of July 27, 1999" and found petitioner "did not knowingly falsify the information on his initial application" regarding questions seventeen and twenty-seven. See N.J.S.A. 2C:58-3(c)(3) (prohibiting issuance of a handgun purchase permit or firearms purchaser card to "any person who knowingly falsifies any information on the application form"). Although the judge noted that neither witness "adequately address[ed]" the issue of the checked "lost or stolen identification card" box discrepancy, he did not address it as it did not form the basis for the Police Chief's denial of petitioner's application.

The judge did conclude, however, that the forfeiture order, which formed the basis for the denial, was fatal to petitioner's application. He explained that the guns were seized pursuant to an arrest for domestic violence offenses under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-19; the prosecutor's petition for forfeiture "was filed consistent with N.J.S.A. 2C:25-21(d)(3) and N.J.S.A. 2C:58-3(f)"; petitioner "chose not to contest [the December 4, 1995 forfeiture] hearing at which he had the right to satisfy the court that he was entitled to the return of his licenses and firearms seized"; and petitioner "failed to appeal the results of that hearing to the Superior Court Appellate Division as per N.J.S.A. 2C:25-21(d)(3)." Moreover, petitioner was later indicted for stalking, a PDVA predicate offense, and even though the indictment was dismissed and petitioner's case was remanded to the municipal court, the PDVA "charges remained in effect at the time of the" forfeiture order. The judge thus concluded that N.J.S.A. 2C:58-3(c)(8), stating that "[n]o handgun purchase permit or firearms purchaser identification card shall be issued . . . [t]o any person whose firearm is seized pursuant to the [PDVA] and whose firearm has not been returned[, ]" was the "applicable disability which precludes the issuance of the handgun purchase permit or the firearms purchaser identification card to [petitioner]."[4]

On appeal, petitioner argues that we should review the matter de novo, he did not waive his right to apply for a firearm purchaser identification card, and the trial court misconstrued M.S. v. Millburn Police Department, 197 N.J. 236 (2008) and, by extension, N.J.S.A. 2C:58-3(c)(8). He urges us to grant the relief afforded in M.S., namely, remand to the Law Division to conduct a hearing to determine whether the Prosecutor's Office would have succeeded at the N.J.S.A. 2C:25-21(d)(3) forfeiture proceeding. See M.S., supra, 197 N.J. at 252.

We generally defer to a trial court's fact finding "when the evidence is largely testimonial and involves questions of credibility[, ]" and accept those facts that are "supported by substantial credible evidence." In re Return of Weapons by J.W.D., 149 N.J. 108, 116-17 (1997). We "exercise our original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter[, ]" and do not disturb the trial court's findings "unless they are so wholly insupportable as to result in a denial of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We do not defer, however, to "[a] trial court's interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). Rather, we conduct a de novo review. Ibid.

Petitioner argues that his failure to appeal the 1995 forfeiture order was not a waiver of his right to apply for a firearms card and permit at a later date, relying on the procedural history of M.S. He also argues that the forfeiture order stemmed from a hearing that he chose not to attend is akin to the consent judgment entered in M.S. Petitioner urges that he chose not to contest the seizure because he just he wanted to get his life back in order, his decision not to appear was not an admission of domestic violence, and the State did not establish that he committed any acts of domestic violence. Thus, he should not have been disqualified from possessing firearms under N.J.S.A. 2C:58-3(c)(8).

In M.S., in 1997 police served the plaintiff with a temporary restraining order under the PDVA and seized his handguns and firearms card. Supra, 197 N.J. at 240-41. The plaintiff was charged with the third-degree crime of threat to kill, which was later downgraded to the petty disorderly persons offense of harassment, and with the disorderly persons offense of simple assault. Id. at 242, n.4. At the domestic violence hearing the parties consented to the entry of mutual final restraining orders, which they dismissed three years later. Id. at 241, 243. Shortly after entry of the final restraining orders, the prosecutor's office filed a petition to forfeit the seized handguns pursuant to N.J.S.A. 2C:25-21(d)(3) and N.J.S.A. 2C:58-3, alleging the plaintiff committed acts of domestic violence and referencing the criminal complaints. Id. at 238, 241-42.

About a week later, the criminal complaints against the plaintiff were dismissed in municipal court. Id. at 242. The following month, the plaintiff entered into a consent judgment on the forfeiture complaint permitting him to sell the firearms to a dealer within a deadline or, otherwise, surrender title to the weapons to the State. Ibid. The judgment was silent as to the forfeiture of his firearms card, which remained in the possession of the police department. Ibid. Accordingly, no hearing was held to determine whether the plaintiff committed an act that disqualified him from obtaining a firearm, nor did the plaintiff make such an admission. Id. at 239.

In 2005, the police department refused to return the plaintiff's firearms card on the basis that because his handguns were seized in connection with the 1997 domestic violence complaint and not returned to him, he was permanently barred from possessing a firearm under N.J.S.A. 2C:58-3(c)(8). Id. at 243-344. The plaintiff filed an action in lieu of prerogative writs for the return of the firearms card. Id. at 239. The Law Division granted the plaintiff summary judgment and ordered the return of the card, finding the 2004 law did not apply retroactively to the 1997 consent judgment. Ibid. We reversed, concluding the new law applied because, under its plain language, the previously-seized firearms were not "returned" to the plaintiff. Ibid.

The Supreme Court reversed and remanded. Ibid. The Court framed the "essential issue" in the case as "whether N.J.S.A. 2C:58-3(c)(8), which became effective in January 2004, by its terms, permanently bars [the] plaintiff from being issued a handgun purchase permit or firearms card." Id. at 246. The Court did not conclude, as did we, "that the statute applies whenever a firearm seized pursuant to the [PDVA] is not returned to the owner." Ibid. The Court explained, "[r]ather, we construe N.J.S.A. 2C:58-3(c)(8) to impose a statutory bar to obtaining a gun permit only when a firearm seized in a domestic violence matter is not returned for a reason set forth in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3)." Ibid.

The Court explained that if the plaintiff were currently subject to a legal disability that arose in 1997 that now disqualified him from possessing a firearm or card, the police would have no obligation to return the card to him regardless of the fact that there was no provision in the consent judgment forfeiting the card. Ibid. The ultimate determination was whether the plaintiff's sale of the weapons pursuant to the consent judgment that resolved the forfeiture complaint meant that his weapons were not "returned" for a reason enumerated in N.J.S.A. 2C:25-21(d)(3). Ibid.

The Supreme Court held that, "[i]n the circumstances of this case, we cannot conclude that the consent judgment--without a stipulation by [the] plaintiff that his firearms were subject to forfeiture--constitutes an admission that the Prosecutor's Office had a reason grounded in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3), for not returning his weapons." Id. at 252. Accordingly, the Court directed a remand forfeiture hearing to determine whether in 1997 the State was capable of proving the plaintiff had committed an act that warranted the forfeiture of his firearms, and also permitted the State to demonstrate whether the plaintiff was otherwise currently disqualified from possessing a weapon under N.J.S.A. 2C:58-3(c). Id. at 239-40.

The "circumstances" of M.S. included that no hearing was ever held to determine whether the plaintiff committed an act that disqualified him from obtaining a firearm, he never admitted a disqualifying act and the consent judgment did not contain an admission that he was subject to one of the forfeiture provisions of N.J.S.A. 2C:25-21(d)(3), and there was no judicial finding that the plaintiff forfeited his right to a firearms card or to possess a firearm, so "whether the Prosecutor's Office would have succeeded on its forfeiture petition is entirely a matter of speculation." Id. at 239, 249.

Moreover, referencing N.J.S.A. 2C:25-21(d)(3), [5] the court found significant that the criminal charges filed against the plaintiff were dismissed four days after the prosecutor's office filed the forfeiture complaint and before the entry of the consent judgment. Id. at 249. The Court additionally noted that the final restraining order against the plaintiff was voluntarily dismissed in 2000, so at that time there did not appear to be any legal impediment prohibiting him from obtaining a firearms permit and purchasing a weapon. Ibid.

Contrary to petitioner's assertions, M.S. is factually inapposite in several critical respects. It is true that petitioner did not admit to any disqualifying act. However, through counsel, petitioner expressly waived his right to appear at the hearing and contest the prosecutor's application for both the forfeiture of his weapons and the revocation of his firearms license. It certainly would have been preferable for Judge Stroumtsos to have made specific findings as to the statutory factors for forfeiture, but the failure to do so was not fatal to the order in view of petitioner's waiver, the summary nature of the proceeding, and the undisputed facts before the judge at that time.

In further contrast with M.S., and what we view as a critical distinction, the criminal charges filed against petitioner that constituted acts of domestic violence under the PDVA were pending at the time of the forfeiture hearing and petitioner was indicted on one of the charges less than three weeks after the hearing, and entry of the forfeiture order. Thus, although the indictment was subsequently dismissed, as of the date of the hearing the State had a legal basis to pursue the forfeiture and revocation under N.J.S.A. 2C:25-21(d)(3). See id. at 248-49 ("A well-grounded criminal charge, one with sufficient 'probable cause to indict, ' is [] an adequate basis to justify the forfeiture of firearms.").

Also distinct from M.S., here there was a judicial finding, encompassed in the December 4, 1995 order, that petitioner's firearms were forfeited and his firearms license was revoked. This case is unique in that petitioner was expressly forbidden to apply for a license or possess a firearm until further order of the Family Court. Based on this last clause we part company somewhat with the rationale and ultimate determination by the trial court. We do not agree that petitioner's recourse was an appeal of the order to this court, N.J.S.A. 2C:25-21(d)(3). Rather, based on the qualifying language of the order, which presumably gave petitioner an opportunity for judicial reconsideration should his circumstances improve, petitioner's recourse was to file a subsequent application with Judge Stroumtsos or another Family Part judge ("until further order of this Court") seeking removal of the future disqualification, preferably after dismissal of the indictment and entry of his plea to the ordinance violation in February 1996. Petitioner would then have had the burden of demonstrating he was not unfit, did not pose a threat to his former girlfriend or to the public, or fall within any of the statutory disabling categories. Petitioner, however, chose to obtain the expungement order in the Criminal Division, which did not address the outstanding forfeiture order.

Because we are not convinced petitioner's forfeiture order is akin to the consent judgment in M.S., we do not conclude the remand fashioned in that case is an appropriate remedy under the circumstances of this case. Rather, the burden should be on petitioner to file a Rule 4:50 motion with the Family Part as envisioned in the forfeiture order. We thus affirm the trial court's order denying petitioner's appeal of the application with the modification that it is without prejudice to petitioner's right to seek relief from the forfeiture order in the Family Part consistent with this opinion. In addition, based on the trial judge's express findings that petitioner's "testimony was credible with respect to this mistaken understanding of the scope of the Expungement Order" and he "did not knowingly falsify the information on his initial application as it relates to [his] responses to Questions No. 17 and No. 27[, ]" and our deference to those fact findings, J.W.D., supra, 149 N.J. at 116-17, such findings shall be deemed the law of the case and res judicata for purposes of any related proceedings.

Affirmed as modified. We do not retain jurisdiction.

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