NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 23, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FO-21-0167-12.
Richard T. Burke, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief.)
Respondent has not filed a brief.
Before Judges Espinosa and Hoffman.
The State appeals from a November 26, 2012 order entered by the Family Part, denying its motion for reconsideration of the court's denial of its application to forfeit weapons seized from defendant P.M.,  a State of New Jersey corrections officer, and to revoke his firearms identification card, pursuant to N.J.S.A. 2C:25-21(d)(3). The State contends that the trial judge erred in refusing to consider newly discovered evidence in the form of a psychological report the State received five days after the conclusion of the hearing on its forfeiture application. For reasons that follow, we agree.
The following evidence was introduced during the forfeiture hearing in the Family Part. On February 26, 2012, defendant's wife, D.M., signed a domestic violence complaint against him, alleging that he had made threatening statements to her, specifically, "[y]ou don't know what I'll be capable of when I get home[, ]" and that she had "not seen nothing yet as to what he will do to [her, ]" as well as calling her "a little bitch." The complaint referenced a history of domestic violence, which resulted in the issuance of a temporary restraining order (TRO) on two prior occasions, in February 2007 and July 2008.
D.M.'s request for a TRO was granted and defendant was ordered to immediately surrender any and all firearms as well as his firearms purchaser identification card. Two hours later, defendant turned over twelve firearms and his firearms identification card to the local police department.
On March 8, 2012, the Family Part granted D.M.'s request to dismiss her domestic violence complaint, and the TRO was vacated. The first two TROs were similarly dismissed at D.M.'s request before final hearing.
On April 5, 2012, the State filed a petition pursuant to N.J.S.A. 2C:25-21(d)(3) for forfeiture of the weapons and for revocation of defendant's firearms purchaser identification card. See In re Return of Weapons to J.W.D., 149 N.J. 108 (1997).
Despite the dismissal of the TRO, the Department of Corrections required defendant to submit to a psychological evaluation by Dr. Komal Saraf on May 1, 2012. In a report dated May 4, 2012, Dr. Saraf described defendant as a "passive-aggressive individual" and recommended that he not be permitted to carry an off-duty weapon due to his on-going marital strife and his "related expression of verbal anger." He further recommended that defendant "complete [eight] months of psychological treatment" to address his relationship, communication, and anger-related problems. The record indicates that defendant received the report in mid-June but the prosecutor did not receive a copy until August 1, 2012, five days after the hearing on the State's petition. Upon receipt of the report, the State immediately moved for reconsideration, but the judge denied the motion, finding a lack of due diligence to obtain the report in a timely manner.
Although the judge described the report as "concerning" and stated that the report "might have arguably changed the result if presented at trial, " he nevertheless refused to reconsider his previous decision to return defendant's twelve guns and purchaser identification card to him.
Only D.M. testified at the forfeiture hearing, relating that she and defendant have been married seventeen years and have one child, a fourteen-year-old daughter. While she did not disavow the allegations contained in her domestic violence complaint, she expressed regret regarding her decision to seek a TRO. She acknowledged that this was the third time she had obtained a TRO against defendant, and that she had filed a divorce complaint shortly after the TRO was issued. By the time of the hearing, D.M. had dismissed the divorce proceeding and defendant had returned to the marital home.
The defense was aware of Dr. Saraf's opinions having received a copy of the report on June 14, 2012. The forfeiture hearing was originally scheduled for the following day. While the hearing was postponed, we find significant the following comment of the assistant prosecutor:
And just for the record, Your Honor, as [defense counsel] has indicated [P.M.] is a State Corrections Officer. He has a fitness-for-duty evaluation that was completed by the Attorney General's Office. If the State is made aware that the Attorney General's Office has found him fit for duty we may be able to withdraw . . . this petition, but I have not heard from the Attorney General's Office as of today.
At the forfeiture hearing, the assistant prosecutor again alerted the court to the State's position that the court's decision should await the outcome of the fitness-for-duty ...