In Re Appeal of the Denial of the Application of Z.L. for a Firearms Purchaser Identification Card and Three Handgun Permits ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5848-12T1
APPROVED FOR PUBLICATION
IN RE APPEAL OF THE DENIAL OF
April 22, 2015
THE APPLICATION OF Z.L. FOR
A FIREARMS PURCHASER IDENTIFICATION APPELLATE DIVISION
CARD AND THREE HANDGUN PERMITS.1
_______________________________________
Submitted January 7, 2015 – Decided April 22, 2015
Before Judges Fuentes, Kennedy and O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Municipal Appeal No. 2013-024.
Evan F. Nappen, attorney for appellant Z.L.
(Louis P. Nappen, on the brief).
Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney for respondent
State of New Jersey (Mary R. Juliano,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief; Ashley L. Behre, Legal Assistant, on
the brief).
The opinion of the Court was delivered by
KENNEDY, J.A.D.
Appellant, Z.L., appeals an order of the Law Division
upholding the denial of his application for a firearms purchaser
1
We have corrected the caption to eliminate the appearance of a
criminal appeal.
identification card and three permits to purchase a handgun
("the permits"). Appellant argues that the Law Division
improperly considered his history of domestic disputes as
evidence that granting his application for the permits creates a
present danger to "public health, safety and welfare" under
N.J.S.A. 2C:58-3(c)(5). Appellant further argues that the Law
Division denied his right to "procedural due process"; erred by
requiring him to testify before the State presented its case;
and erred by basing its ruling upon "speculation and hearsay."
We have considered these arguments in light of the record and
the law, and we affirm the order of the Law Division.
In January 2013, appellant applied to the Aberdeen Police
Department for the permits. A detective undertook an
investigation into appellant's background, and learned that,
while he had never been convicted of a crime or any disorderly
persons or domestic violence offenses, he had been arrested in
1998 for domestic violence and police responded to his home on
five occasions from 2003 to 2011 to resolve disputes between him
and his wife.
In 1998, appellant's wife called police and charged him
with simple assault. Although a domestic violence complaint was
filed, appellant's wife did not seek a temporary restraining
order, and the charge was not thereafter sustained. Also,
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police responded to appellant's home on five occasions, between
2003 and 2011, based on various domestic dispute complaints
reported by his wife. The Aberdeen Police Chief denied
appellant's application for the permits, explaining that the
investigation "revealed a past history of domestic violence.
This in itself may indicate a public safety concern." He then
appealed to the Law Division.
The Law Division judge conducted a hearing, at which both
appellant and the investigating detective testified. Appellant,
represented by counsel, elected to testify and essentially
confirmed the accuracy of his application, stating, among other
things, that he had never been convicted of a "domestic
violence" offense and had never been the subject of a temporary
or a final restraining order. Defense counsel objected as beyond
the scope of direct examination to the State's questioning of
appellant regarding the domestic disputes upon which the police
chief had denied his application for the permits. The judge
overruled the objection.
The State then cross-examined appellant about the 1998
domestic violence complaint and the five other domestic disputes
in which police responded to his home, and appellant essentially
confirmed the core facts. Appellant conceded he had struck his
wife in 1998, but stated it was "accidental." He said he had
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inadvertently struck his wife in the mouth with his hand when
she walked up behind him, after a disagreement about their
child's dishwashing techniques. He said he had never
intentionally struck her, and added he was "acquitted" after a
brief trial. He also explained the other police responses to
the home arose from ordinary disputes between spouses, and none
involved violence or threats. Further, he described his
relationship with his wife as "better than at that time" and
ascribed her decision to sleep separately to her "sleep
disorder."
After both sides rested and made their closing arguments,
the judge found, in pertinent part, as follows:
In this case, there had been a number of
visits by the police over an eight-year
period. And when they were -- if you were
to today to look at each one of these
incidents, if that were judge one incident,
that would be, certainly perhaps a different
case before us. But we don't have just one
incident. We have a series of instances
starting back in August 24, 1998, and the
final incident that was testified to, and as
part of this record, was made [September 4,]
2011.
That series of incidents, one compounded
upon the other, I think that gives us a
picture and certainly something that this
Court feels is compelling and convincing.
The record does not show why [appellant's
wife] feels compelled to call the police
every time her and [appellant] have a
dispute. But the fact is that the police
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have still been to this house a number of
different times. The inclusion of firearms
or handgun into this unpredictable situation
only stands to strain the relationship
further.
It is evident from the 1998 domestic
violence arrest and multiple subsequent
police interactions that the [appellant] and
[appellant's wife] are unable to amicably
resolve minor disputes. Accordingly, the
volatile situation between [appellant] and
[appellant's wife] is not place, in this
Court's opinion, to add firearms.
Accordingly, it's going to be the ruling of
this Court that [] the appeal is going to be
denied.
This appeal followed.
We address appellant's argument that the Law Division gave
improper weight to his history of domestic disputes first. We
then turn to appellant's argument that the Law Division erred by
requiring him to testify first, and by relying upon speculation
and hearsay in issuing the order under appeal. We find
appellant's remaining arguments to be without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
On this appeal, our review of the trial court's decision is
limited. The Supreme Court has stated:
Ordinarily, an appellate court should accept
a trial court's findings of fact that are
supported by substantial credible evidence.
Deference to a trial court's fact-findings
is especially appropriate when the evidence
is largely testimonial and involves
questions of credibility. Thus, an
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appellate court should not disturb a trial
court's fact-findings unless those findings
would work an injustice. Consequently, "an
appellate court should exercise its original
fact finding jurisdiction sparingly and in
none but a clear case where there is no
doubt about the matter." If, however, an
appellate court is reviewing a trial court's
legal conclusions, the same level of
deference is not required.
[In re Return of Weapons to J.W.D., 149 N.J.
108, 116-17 (1997) (citations omitted).]
The Gun Control Law recognizes that the right to possess
firearms is presumed, except for certain good cause:
No person of good character and good repute
in the community in which he lives, and who
is not subject to any of the disabilities
set forth in this section or other sections
of this chapter, shall be denied a permit to
purchase a handgun or a firearms purchaser
identification card, except as hereinafter
set forth.
[N.J.S.A. 2C:58-3(c)].
In relevant part, the statute provides that handgun permits
shall not be issued "[t]o any person where the issuance would
not be in the interest of the public health, safety or
welfare[.]" N.J.S.A. 2C:58-3(c)(5). Section (c)(5) "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
6 A-5848-12T1
Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003), certif.
denied, 179 N.J. 310 (2004).
The statute also lists eight categories of
disqualifications. An arrest that did not result in conviction
is not one of the listed disqualifications. However, as we
explained earlier, N.J.S.A. 2C:58-3(c)(5) is intended to address
issues of individual unfitness, not otherwise categorized in the
statute. In Osworth, supra, we considered the quoted subsection
(5) disqualification and held that "[t]he dismissal of criminal
charges does not prevent a court from considering the underlying
facts in deciding whether a person is entitled to purchase a
firearm." Id. at 78; see also In re Return of Weapons to
J.W.D., supra, 149 N.J. at 110 (a court may determine, even
after dismissal of a domestic violence complaint, that firearms
may be forfeited by a defendant pursuant to N.J.S.A. 2C:58-3(c)
and 2C:25-21(d)(3) because "the defendant poses a threat to
public health, safety, or welfare"); State v. One Marlin Rifle,
319 N.J. Super. 359, 371 (App. Div. 1999); State v. Cunningham,
186 N.J. Super. 502, 504-08 (App. Div. 1982) (State could refuse
to return lawfully-purchased gun to defendant despite grand
jury's no billing of charge that he shot his wife). Even in the
absence of evidence that appellant was convicted of any
offenses, the New Jersey statute permits denial of his
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application if the underlying facts of any arrests or reported
domestic disputes support one of the eight listed categories of
disqualification or the public safety disqualification.
Indeed, our courts have repeatedly upheld disqualification
under subsection (c)(5), separately, or in conjunction with,
other statutory disabilities. In State v. Freysinger, 311 N.J.
Super. 509, 516 (App. Div. 1998), for example, we determined
that the defendant was both a habitual drunkard, under N.J.S.A.
2C:58-3(c)(2), and posed a threat to the public health, safety
or welfare under (c)(5). In State v. Cordoma, 372 N.J. Super.
524, 536 (App. Div. 2004), in deciding the defendant was
disqualified under subsection (c)(5), 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. 2C:58-
3(c)(2) and (3). Further, as we explained earlier, in Osworth,
supra, 365 N.J. Super. at 80-81, even though the defendant's
prior conduct did not result in a disqualifying conviction under
N.J.S.A. 2C:58-3(c)(1), we nonetheless determined that, under
all the circumstances, denial of a handgun purchase permit was
warranted by application of subsection (c)(5).
In Osworth, supra, we also explained the proper procedure
in the Law Division under N.J.S.A. 2C:58-3(d) for review of the
police chief's decision. Osworth, supra, 365 N.J. Super. at 77-
8 A-5848-12T1
78. We stated that the hearing in the Law Division is "de novo"
and that the judge must independently determine whether the
applicant is entitled to a handgun permit. Id. at 77. Citing
Weston v. State, 60 N.J. 36, 46 (1972), we explained that the
applicant must present his evidence and then the police chief,
or the police chief's designee who conducted the investigation,
must explain why the application was denied. Osworth, supra,
365 N.J. Super. at 78. Significantly, we held that the police
chief has the burden of proving an applicant is not qualified to
receive a handgun permit. Id. at 77 (citing Weston, supra, 60
N.J. at 46).
Appellant argues that the Law Division reversed the burden
of proof and placed it upon him by requiring that he prove the
dispositions and the facts pertinent to the domestic violence
arrest and domestic disputes. We disagree. The trial judge
properly allocated the burden of proof. Appellant nonetheless
argues otherwise, asserting that the trial judge "required" him
to testify first. This contention is belied by the record.
Moreover, the fact that the judge overruled a "beyond the scope"
objection adds nothing to the argument and, in any event, is the
type of evidential ruling committed to the discretion of a trial
judge. See N.J.R.E. 611(b); State v. Rose, 112 N.J. 454, 459
(1988); Ostroski v. Mount Pleasant ShopRite, Inc., 94 N.J.
9 A-5848-12T1
Super. 374 (App. Div.), certif. denied, 49 N.J. 369 (1967). We
discern no error in that ruling.
On an appeal from the denial of firearms permits, the trial
court hears the matter de novo, and the police chief has the
burden of proof by a preponderance of the evidence. Id. at 77.
Hearsay is admissible, but there must be sufficient legally
competent evidence to support the court's findings. Weston v.
State, 60 N.J. 36, 50-51 (1972). Even if an applicant was
previously charged with an offense but not convicted, in a later
permit hearing the chief may still present to the court the
evidence underlying the charges. "The dismissal of criminal
charges does 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."
Osworth, supra, 365 N.J. Super. at 78 (citing In re Return of
Weapons to J.W.D., supra, 149 N.J. at 110). Accordingly, the
admission of such evidence here was not improper in any respect,
and any "hearsay" in the police reports was essentially
corroborated by appellant's testimony in court. We find no
error in the trial judge's reliance upon that testimony.
Finally, the facts of this case compel the conclusion that
the order upholding denial of the permits was proper. The 1998
incident was not isolated and aberrational, as appellant claims.
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Five times, between 2003 and 2011, police officers responded to
appellant's home on complaints by his wife of domestic disputes.
Each such complaint, despite appellant's characterizations,
wherein appellant's spouse felt compelled to require police
assistance, is imbued with the potential for violent reaction.
The presence of a firearm in such a household enhances the
potential for such reactions to become lethal.
The judge rejected appellant's attempts to downplay the
significance of the serial number of domestic disputes after
1998, and determined that there was nothing to suggest that this
history of discord between the couple would likely abate. In
addition, the trial judge manifestly found appellant's
characterization of his "great" relationship with his wife and
his ascribing of aspects of her conduct to sleep difficulties,
unconvincing. After reading the transcript, we are inclined to
agree. Moreover, the judge had the opportunity, which we did
not, to observe appellant's demeanor and hear him testify. We
are aware that live testimony can convey nuances that a cold
record cannot. See State v. Locurto, 157 N.J. 463, 474 (1999).
We decline to second-guess the trial judge's conclusion that, at
the time of the hearing, granting appellant's application, in
effect, would not be in the interest of the public health,
safety or welfare. N.J.S.A. 2C:58-3(c)(5).
11 A-5848-12T1
Affirmed.
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