IN THE MATTER DENIAL APPLICATION OF JAMES HAMMER FOR A FIREARMS PURCHASER IDENTIFICATION CARD CHANGE OF ADDRESS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4621-04T14621-04T1

IN THE MATTER OF THE DENIAL OF THE

APPLICATION OF JAMES HAMMER FOR A

FIREARMS PURCHASER IDENTIFICATION

CARD CHANGE OF ADDRESS.

______________________________________________________

 

Submitted November 1, 2005 - Decided

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County.

Evan P. Nappen, attorney for appellant.

Gilmore & Monahan, attorneys for respondent (Lawrence L. McIver, on the brief).

PER CURIAM

James Hammer appeals from an order entered in the Law Division on April 1, 2005, which affirmed a determination by the police chief of Lacey Township denying Hammer's application for the re-issuance of a New Jersey Firearms Purchaser Identification Card. We reverse and remand.

On August 11, 2004, Hammer sought and received a temporary restraining order (TRO) against his estranged wife who started hitting, scratching and choking him after she became irate over the parenting schedule he proposed. Seven days later, Mrs. Hammer, filed for her own TRO, alleging the following:

[Defendant] was screaming an inch away from [plaintiff's] face calling her a whore & fat ass bitch. [Defendant] told [plaintiff] he wishes she would die. [Defendant] took picture off wall & threw it hitting [plaintiff] in the foot. [Defendant] went to grab clock & pull it down [plaintiff] attempts to stop.

Both TROs were eventually dismissed, but as a consequence of the wife's TRO, Hammer's handgun was seized, as was his firearms purchaser identification card. There was no final restraining order issued against either party under the Prevention of Domestic Violence Act and Hammer was not convicted of any offense.

Based upon statements or representations made by the prosecutor, Hammer consented to the entry of a September 20, 2004 order requiring him to sell his handgun and surrender his purchaser identification card for destruction. Hammer testified that he was told by the prosecutor that the surrender of the card was necessary because a Domestic Violence complaint had been filed and because his firearms purchaser identification card had been issued for an address at which he no longer resided. According to Hammer, the prosecutor told him that he could reapply for a new firearms purchaser identification card reflecting his new address. When Hammer did reapply, the chief of police of Lacey Township denied the application "in the interest of public health, safety and welfare," which was simply because of the connection with the Domestic Violence complaint.

Although the trial court found Hammer's testimony credible, it concluded that the surrender of the credentials for destruction caused Hammer to be disqualified under N.J.S.A. 2C:58-3c. That provision states, in pertinent part:

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. 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 as defined in section 3 of P.L. 1991, c.261 (C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense.

Further, subparagraph (8) of N.J.S.A. 2C:58-3c prohibits the issuance of a purchase permit or firearms identification card "[t]o any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991,' P.L. 1991, c.261 (C.2C:25-17 et seq.) and whose firearm has not been returned."

It is uncontroverted that Hammer was never convicted of a disorderly persons offense under the Prevention of Domestic Violence Act and no final restraining order was ever entered. The trial court did not make a determination that Hammer committed an act of domestic violence. Also, while Hammer's handgun and firearms identification card may have been seized due to a domestic violence allegation, absent an adverse determination in the domestic violence proceeding, Hammer presumably would have been entitled to have those items returned.

The trial court accepted and found that Hammer voluntarily agreed to sell the handgun within one-hundred twenty days and to surrender the firearms purchaser identification card for distribution based upon representations made by the prosecutor that a reapplication for a change of address was necessary. The court further found that:

Through the testimony with his attorney he made clear that he's not involved in drugs, alcohol. There was never any conviction against him whatsoever. He was never committed and he never had to undergo any treatment that would preclude him from actually handling firearms.

Nevertheless, the trial court was troubled by the fact that the handgun and purchaser identification card were not returned. No other disqualifying fact was established.

The court plainly did not decide that any basis existed to disqualify defendant other than the order to which he assented. Because there is a cloud of confusion concerning the basis for the destruction of the purchaser identification card, other than for a change of address, we remand to the trial court. The court should determine whether the handgun and firearms purchaser identification card would have been returned to Hammer had he not agreed to surrender his purchaser identification card in reliance upon the representation made by the prosecutor. The trial court must draw its own conclusion as to whether there is sufficient credible evidence offered by the State that Hammer otherwise poses a threat to the public health, safety or welfare. State v. One Martin Rifle, 319 N.J. Super. 359, 372 (App. Div. 1999). No factual basis for that conclusion was recited on the record. See R. 1:7-4(a).

Reversed and Remanded.

 

Judge Wendell E. Daniels sat below, however, the transcript incorrectly identifies Judge James N. Citta as the trial judge.

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A-4621-04T1

December 12, 2005