IN THE MATTER OF THE APPEAL OF DENIAL OF A FIREARMS PURCHASER IDENTIFICATION CARD AND PERMIT TO PURCHASE HANDGUNS FOR C.P. (MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2862-19
IN THE MATTER OF
THE APPEAL OF DENIAL
OF A FIREARMS PURCHASER
IDENTIFICATION CARD
AND PERMIT TO PURCHASE
HANDGUNS FOR C.P.1
___________________________
Argued March 15, 2021 – Decided April 27, 2021
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County.
Michael J. Pappa argued the cause for appellant
(Rudnick Addonizio Pappa & Casazza, attorneys;
Michael J. Pappa, of counsel; Jeffrey Zajac, on the
brief).
Lisa Sarnoff Gochman argued the cause for respondent
(Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney; Lisa Sarnoff Gochman, on the
brief).
PER CURIAM
1
We use initials to protect the confidentiality of participants in these
proceedings. R. 1:38-3(c)(12); (d)(10).
C.P., a retired police officer, appeals from the March 10, 2020 Law
Division order, issued following a plenary hearing, which affirmed the police
chief's denial of a firearms purchaser identification card (FPIC) and permit to
purchase handguns (PPH). The denial was based on C.P.'s involvement in drunk
driving and domestic violence incidents and relied on N.J.S.A. 2C:58-3(c)(5),
prohibiting the issuance of a FPIC or PPH "[t]o any person where the issuance
would not be in the interest of the public health, safety or welfare . . . ." At the
two-day hearing conducted on January 28 and 29, 2020, C.P., his licensed
alcohol and drug counselor, and the Matawan Police Chief testified, after which
Judge Joseph W. Oxley made detailed findings. We affirm substantially for the
reasons articulated by Judge Oxley in his comprehensive and well-reasoned
March 10, 2020 written opinion.
Based on the evidence presented at the hearing, the judge made the
following factual findings:
On September 7, 2011, [C.P., then] a Lieutenant
for the Old Bridge Police Department, arrived at work
intoxicated. [C.P.] was given a breathalyzer, which
indicated his blood alcohol concentration was 0.09%.
[C.P.] was subsequently given a ticket for driving under
the influence of alcohol. The ticket was transferred to
the Monroe Township Municipal Court and ultimately
dismissed.
A-2862-19
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On May 21, 2012, [C.P.] was charged with
making terroristic threats towards his ex-wife. An
audio recording of [C.P.] making these threats was
played before this [c]ourt. The recording consisted of
[C.P.]'s intoxicated ranting for thirty-five minutes.
[C.P.] made five threats to shoot and kill his ex-wife
during the rant. Also, on May 30, 2012, a [TRO] was
issued against [C.P.]. [C.P.]'s wife ultimately withdrew
the TRO on August 6, 2012. Subsequent to this
incident, on September 10, 2012, [C.P.] consented to
the sale of his firearms.
On March 2, 2017, [C.P.] was arrested and
charged with harassment after allegedly placing a
plastic bag over his ex-wife's head. This event led to
another seizure and transfer of [C.P.]'s firearms, and the
forfeiture of his FPIC and PPH on November 3, 2017.
A TRO was granted as a result of this incident. The
TRO was ultimately dismissed on March 20, 2017.
On March 24, 2017[,] [C.P.] was involved in a
single car motor vehicle accident in Old Bridge, New
Jersey. [C.P.] caused damage to a highway guard rail
and pole. Subsequent testing of [C.P.]'s blood revealed
that he had a blood alcohol concentration of 0.266%.
Police issued [C.P.] tickets for reckless driving and
driving under the influence. The tickets were
transferred to Perth Amboy Municipal Court and
ultimately dismissed.
The judge credited the Chief's testimony at the hearing that C.P.'s
"application was denied due to his prior involvement in domestic violence
incidents with his ex-wife and his record of driving under the influence of
alcohol." The Chief "also testified that the May 2012 audio recording of [C.P.]
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had a significant impact on his decision to deny the application." The judge
found the Chief's testimony to be "clear, candid, and convincing[,]" and the
Chief to be "honest and very straightforward." The judge also found that C.P.'s
counselor testified "credibl[y] and forthright[ly]" that "she began counseling
[C.P.]" on "March 30, 2017," and "recommended that [C.P.] attend outpatient
group therapy sessions" which he has continued to attend to date. Additionally,
the judge acknowledged C.P.'s testimony that "he no longer suffers from
alcoholism" and "has not been in contact with his ex-wife in three years."
In addition to the testimony, the judge considered numerous exhibits,
including C.P.'s March 2, 2019 permit application; the May 7, 2019 Matawan
police department firearms applicant investigation report; the May 8, 2019
Matawan police department denial letter; a September 7, 2011 driving while
under the influence (DWI) Old Bridge police department incident report and
related courtroom disposition printout; a September 10, 2012 order authorizing
the sale of weapons; a March 2 and 6, 2017 Jackson Township police department
investigation report and related complaint-summons; a March 3, 2017 order
dismissing a temporary restraining order (TRO) against C.P.; a March 24, 2017
New Jersey State Police crash investigation report and related traffic summonses
and courtroom disposition printout; a May 5, 2017 petition by the State to forfeit
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weapons;2 a November 3, 2017 order authorizing the seizure of weapons; a July
25, 2019 Family Automated Case Tracking System printout related to a domestic
violence case involving C.P. and his ex-wife; an audio recording of C.P.; 2019
counseling center records for C.P.; and 2017 detox records for C.P.
After applying the governing principles, the judge concluded that issuance
of an FPIC and PPH to C.P. would not be in the best interest of the public health,
safety, or welfare within the meaning of N.J.S.A. 2C:58-3(c)(5). The judge
acknowledged that his "primary responsibility [was] to determine [C.P.'s]
current fitness to possess a firearm by conducting a fact-sensitive analysis" and
"carefully consider[ing C.P.'s] history of interactions with specific individuals
as well as an assessment of the threat he . . . may pose to the general public."
See Cordoma, 372 N.J. Super. at 535 ("[A] judicial declaration that a defendant
poses a threat to the public health, safety or welfare involves, by necessity, a
fact-sensitive analysis" and "requires a careful consideration of both the
individual history of defendant's interaction with the former plaintiff in the
2
Notwithstanding "the voluntary dismissal of a domestic violence complaint,"
"[w]ithin forty-five days of seizure, the State can petition the Family Part for a
forfeiture order 'to obtain title to the seized weapons, or to revoke any and all
permits, licenses and other authorizations for use, possession, or ownership of
such weapons.'" State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004)
(quoting N.J.S.A. 2C:25-21(d)(3)).
A-2862-19
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domestic violence matter, as well as an assessment of the threat a defendant may
impose to the general public.").
The judge reasoned:
[C.P.] has been involved in two incidents of drunk
driving, two incidents of domestic violence, and has
had his guns seized on two separate occasions.
Although [C.P.] continues to seek treatment to address
his alcohol addiction and has not had an encounter with
his ex-wife in three years, this [c]ourt does not find that
issuing [C.P.] a FPIC and [PPH] would be in the best
interest of the public health, safety, or welfare.
On appeal, C.P. makes the following arguments for our consideration:
BECAUSE [C.P.] WAS NOT A HABITUAL
DRUNKARD AND DID NOT POSE A THREAT TO
THE PUBLIC HEALTH, SAFETY, OR WELFARE,
THE LAW DIVISION ERRED IN AFFIRMING THE
DENIAL OF [C.P.'S] FIREARMS APPLICATION.
A. At the Time of His Firearms Application, [C.P.]
Was Not a "Habitual Drunkard" Under Subsection
(c)(2) Of N.J.S.A. 2C:58-3.
B. Denial Of [C.P.'S] Firearms Permit Under
Subsection (c)(5) Lacks Merit and Constitutes
Reversible Error.
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We reject both of C.P.'s contentions. First, Judge Oxley did not rely on
subsection (c)(2) 3 in upholding the denial of the firearms application. Second,
in light of the record and the law, the judge's reliance on subsection (c)(5) is
amply supported by the evidence and legally sound. We add the following
comments for elucidation.
We defer to a trial court's factual findings when they are "supported by
adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Invs.
Ins. Co. of America, 65 N.J. 474, 484 (1974). "Deference is especially
appropriate 'when the evidence is largely testimonial and involves questions of
credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return
of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). This is because the trial court
has the opportunity to see and observe witnesses and hear them testify. Ibid.Only when "they are so wholly insupportable as to result in a denial of justice,"
should we disturb the factual findings of a trial court. Rova Farms, 65 N.J. at
483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.
1960)). On the other hand, "[w]e review a trial court's legal conclusions
3
N.J.S.A. 2C:58-3(c)(2) provides in pertinent part that "[n]o handgun purchase
permit or firearms purchaser identification card shall be issued . . . to any person
who is presently an habitual drunkard. . . ."
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regarding firearms licenses de novo." In re N.J. Firearms Purchaser
Identification Card by Z.K., 440 N.J. Super. 394, 397 (App. Div. 2015).
In order to purchase a handgun or firearm in New Jersey, a person must
first acquire a PPH or FPIC. N.J.S.A. 2C:58-3(a)(1); (b)(1). "The initial
determination of whether to grant a permit or an identification card is made by
the chief of police of the municipality where the applicant resides." In re
Forfeiture of Pers. Weapons & Firearms Identification Card belonging to F.M. ,
225 N.J. 487, 508 (2016). See N.J.S.A. 2C:58-3(d). Following an investigation,
"[t]he police chief must grant a permit and identification card 'unless good cause
for the denial thereof appears.'" In re F.M., 225 N.J. at 508 (quoting N.J.S.A.
2C:58-3(f)). "Thereafter, a denied applicant may request a hearing in the Law
Division," ibid. (citing N.J.S.A. 2C:58-3(d); N.J.A.C. 13:54-1.12(a)), where
"the police chief has the burden of proof by a preponderance of the evidence."
In re Z.L., 440 N.J. Super. 351, 358 (App. Div. 2015).
In the Law Division, the police chief's decision is reviewed de novo, which
"contemplates introduction of relevant and material testimony and the
application of an independent judgment to the testimony by the reviewing
court." Weston v. State, 60 N.J. 36, 45 (1972). However, "in evaluating the
facts . . . and the reasons given for rejection of the application, the court should
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give appropriate consideration to the Chief's investigative experience and to any
expertise he appears to have developed in administering the statute." Id. at 46.
To be sure, a "person of good character and good repute in the community
in which he lives, and who is not subject to any of the [enumerated] disabilities
set forth [in the law]," may obtain these permits. N.J.S.A. 2C:58-3(c). However,
"where the issuance would not be in the interest of the public health, safety or
welfare," a person is not eligible to secure a PPH or FPIC. N.J.S.A. 2C:58-
3(c)(5). Our Supreme Court has determined that the public health, safety, and
welfare disqualifier is "intended to relate to cases of individual unfitness, where,
though not dealt with in the specific statutory enumerations, the issuance of the
permit or identification card would nonetheless be contrary to the public
interest." In re F.M., 225 N.J. at 507 (quoting In re Osworth, 365 N.J. Super 72,
79 (App. Div. 2003)).
Contrary to C.P.'s contention, "[e]ven in the absence of evidence that [an
applicant] was convicted of any offenses, the New Jersey statute permits denial
of his [permit] application if the underlying facts of any arrests or reported
domestic disputes support . . . the public safety disqualification." In re Z.L., 440
N.J. Super. at 356. In State v. Cunningham, 186 N.J. Super. 502, 504-08 (App.
Div. 1982), we determined that the grand jury no billing criminal charges related
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to the defendant shooting his wife could be sufficient grounds to deny a permit
application within the meaning of N.J.S.A. 2C:58-3(c)(5). Likewise, in In re
Osworth, we concluded that the "dismissal of the charges following successful
participation in a pretrial intervention program" did "not prevent a court from
considering the underlying facts in deciding whether a person is entitled to
purchase a firearm or recover one previously taken by the police." 365 N.J.
Super. at 78.
Similarly, in In re J.W.D., our Supreme Court found that "the Legislature
intended that courts not return guns to a defendant in a domestic violence action,
even after the dismissal of the complaint, if the court finds that the defen dant
poses a threat to public health, safety, or welfare." 149 N.J. at 116. Indeed, "the
return of weapons to a defendant who is a threat to the public--would be an
invitation to a tragedy." Ibid. See also State v. Freysinger, 311 N.J. Super. 509,
514-17 (App. Div. 1998) (finding that the legislature intended that "confiscated
firearms should not be returned to defendants" after the dismissal of a domestic
violence complaint if they are a threat to the public health, safety or welfare).
Additionally, "in deciding the defendant was disqualified under subsection
(c)(5)," in In re Z.L., we considered the defendant's mental condition, even
though it did not rise to the level of the disabling conditions set forth in N.J.S.A.
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2C:58-3(c)(2) and (3). 440 N.J. Super. at 357 (citing Cordoma, 372 N.J. Super.
at 536).
The facts of this case compel the conclusion that the order upholding
denial of the permits was proper. We decline to second-guess Judge Oxley's
well-founded determination that, at the time of the hearing, granting C.P.'s
application would not be in the interest of the public health, safety or welfare.
N.J.S.A. 2C:58-3(c)(5).
Affirmed.
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