August 28, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 evaluation, which led to the following exchange:
[PROSECUTOR]: The State would ask that you hold off making any decision with respect to returning his weapons until the completion of a fitness-for-duty evaluation. I have been in contact with the Attorney General's Office. They have not received the ——
[DEFENSE COUNSEL]: Judge, objection as to any communication with the — And I apologize to interrupt, but in terms of what's going on conversation-wise with her and the Attorney General's Office, if she wanted to present a witness at the hearing on that issue ——
[THE COURT]: Okay. I'm in agreement.
[PROSECUTOR]: Well, Your Honor, there —— just for the record, there's a fitness-for-duty evaluation that's pending.
[DEFENSE COUNSEL]: Judge, she continued on, notwithstanding your ruling on that issue. She told you what apparently ——
[THE COURT]: I agree. I agree. It's stricken. It's not before me.
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:
(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 [forty-five] 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).
The State's interest in preventing persons who are unfit from possessing firearms is a substantial one. Therefore, in the face of evidence that provides a rational basis to question an applicant's fitness to possess a firearm, we have held that a defendant's right to maintain the confidentiality of medical information "is subordinate to the public's interest in preventing individuals deemed statutorily unfit from possessing firearms." State v. Cordoma, 372 N.J.Super. 524, 537 (App. Div. 2004).
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). In matters involving firearm permits and the forfeiture of weapons in conjunction with domestic violence, we may only "set aside a trial court's forfeiture ruling when it was not supported by sufficient competent evidence." Cordoma, supra, 372 N.J.Super. at 535.
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.").
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); In re Dubov, 410 N.J.Super. 190, 198 (App. Div. 2009). An individual's firearm purchase or request for a firearms identification 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. 2C: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." J.W.D., supra, 149 N.J. at 116 (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). As Judge Fuentes observed in Cordoma:
[A] judicial declaration that a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact-sensitive analysis. It requires a careful consideration of both the individual history of defendant's interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may impose to the general public.
[Cordoma, supra, 372 N.J.Super. at 535.]
While the State referred to its post-trial motion as one for "reconsideration, " on appeal it argues the court should have granted relief under Rule 4:50-1(b), which permits the court to relieve a party from a final judgment based on "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule 4:49.]" In this case, however, the motion was filed within the time period for filing a motion for a new trial, and thus Rule 4:49-1 "Motion for New Trial" is the applicable rule, and provides, in pertinent part:
(a) Grounds of Motion. A new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. On a motion for a new trial in an action tried without a jury, the trial judge may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
We recognize that a new trial motion is "addressed to the sound discretion of the trial court and will not be disturbed unless that discretion has been clearly abused." Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 446 (1980).
"To obtain relief from a judgment based on newly discovered evidence, the party seeking relief must demonstrate 'that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) (quoting Quick Chek Food Stores, supra, 83 N.J. at 445). The party seeking relief must satisfy all three requirements. Ibid.
The trial judge's own comments indicate that the report and recommendation of Dr. Sharaf would likely have changed the result, at least based upon the limited record before the court. Because of safeguards implemented to protect the confidentiality of mental health records, it is not uncommon to encounter delays in securing needed reports and records. The record does not support a finding that the State's delayed receipt of Dr. Sharaf's report and recommendation was the result of a lack of due diligence.
We are satisfied that due to the highly unusual procedural circumstances presented, the trial judge mistakenly exercised his discretion in concluding that the perceived lack of diligence on the part of the State should cause the court to not consider evidence that was highly relevant to the very important issue presented. Further, while the trial judge made a finding that the State's claim of newly discovered evidence lacked merit, he did not set forth facts to substantiate his finding. As we have noted, the mere fact that the State encountered a delay in securing the confidential records does not, by itself, support a finding of lack of diligence on the part of the State.
Because the defense already possessed the subject expert report and recommendation for over a month before the hearing, and the State had alerted both the court and defense counsel of its intention to rely upon the report and recommendations, we conclude that a proper exercise of the court's discretion required it to consider: "'(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.'" State v. LaBrutto, 114 N.J. 187, 205 (1989) (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. Id. at 415.
The record clearly shows defendant was on notice that the State considered the fitness-for-duty evaluation important and evidential. Comments of the trial judge indicate that he likewise appreciated the importance of the evaluation.
The record also indicates a complete absence of any design to mislead by the State or any surprise on the part of defendant. Regarding prejudice, defendant had over five weeks to decide how to respond to the report. We conclude the judge mistakenly exercised his discretion in refusing to open the judgment and consider the report and recommendation of Dr Saraf and take additional testimony if appropriate so as to insure compliance with the statutory mandate that confiscated weapons not be returned to persons who pose "a threat to the public health safety or welfare" JWD supra 149 N.J. at 116
We do not reach any conclusion as to whether the firearms and identification card should be returned or forfeited The trial court shall reconsider its decision with the aid of Dr Sharaf's report and recommendation as well as any additional evidence offered by either party and as otherwise the court permits in its discretion Certainly an updated evaluation by Dr Saraf may be appropriate The judge shall engage in a careful assessment of the threat that defendant's possession of a firearm may pose to his wife and daughter as well as the general public focusing on the fitness criteria set forth in NJSA 2C:58-3(c)(5) which prohibits the issuance of a handgun purchase permit or firearms purchaser identification card to any person "where the issuance would not be in the interest of the public health safety or welfare"
Remanded for proceedings in conformity with our opinion We do not retain jurisdiction.