STATE OF NEW JERSEY v. GEORGE USHKOWITZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3149-04T53149-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE USHKOWITZ,

Defendant-Appellant.

_______________________________

 

Argued January 24, 2006 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FO-13-56-05

Andrew L. Rochester argued the cause for appellant (McDonough, Korn & Eichhorn, attorneys; Mr. Rochester, on the brief).

Andrew S. Fried, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor;

Mr. Fried, on the brief).

PER CURIAM

Defendant, George Ushkowitz, appeals from an order forfeiting his rifle following the dismissal of a domestic violence temporary restraining order. We affirm.

I

This is what happened. Defendant's wife, Theresa Ushkowitz, obtained a domestic violence temporary restraining order (TRO) against him. In that context, police seized his rifle. Theresa later dismissed the TRO when the parties entered into a consent order for mutual restraints as part of their final judgment of divorce. But she refused to consent to defendant's getting the gun back.

At a testimonial hearing on the forfeiture, Theresa testified that defendant told her that if she "didn't cooperate with settlement agreements (in the divorce), I'd find myself dead. As a matter of fact, on August 26th he told me that even if he got his rifle back he wouldn't use it on me. He probably would have somebody else do it." She also testified that he had ripped a telephone from the wall during an argument, after she discovered that he had fathered a child by another woman. She further testified that he had tried to run her over with his car.

At the hearing, the prosecution also presented undisputed evidence that defendant had owned a handgun in the past, which he had kept in an unlocked drawer beside his night table. He admitted that he had no permit for the handgun and had transferred the weapon to a third person in another state. Despite being directed by the judge to reveal the identity of this person, he refused to do so. He also admitted that he had no firearms purchaser's card for the rifle and that he kept it in an unlocked box in a closet.

We briefly summarize the trial judge's decision. Judge Kilgallen found defendant's former wife to be an entirely credible witness. She concluded that defendant "lacks judgment. . . We are talking about an overall inability to act appropriately." She noted that he led a "double life" for a period of time in which he had a baby with another woman, but continued living with his wife without informing her of his second family. He also admitted selling drugs and using drugs. She also found that defendant had ripped a telephone out of the wall of their home in front of his wife and "tried to run Ms. Ushkowitz down with his car in April of 2004." Although the parties had children, who were ages ten and fifteen at the time of the hearing, defendant kept a pistol and a rifle unsecured in his home. The rifle had a bullet "lodged" in the chamber. He had no firearms purchasers' card for the rifle, nor did he have a permit for the handgun, which he admittedly transferred to a third person whom he refused to identify. Noting that "[i]t takes only one pull of the trigger to end someone's life," she concluded that issuing a gun permit to defendant "would not be in the interest of the public health, safety or welfare."

On this appeal, defendant raises the following issues:

POINT I: THE COURT ERRED IN FINDING THAT SUBSTANTIAL AND CREDIBLE EVIDENCE WARRANTED A FINDING THAT APPELLANT POSED A DANGER TO THE PUBLIC.

POINT II: THE COURT ERRED IN FINDING THAT DEFENDANT POSED A CURRENT THREAT TO TERESA USHKOWITZ.

POINT III: THE FORFEITURE SHOULD HAVE BEEN DENIED AS TERESA USHKOWITZ WAS USING IT TO GAIN ADVANTAGE IN THE SEPARATE CUSTODY PROCEEDING.

POINT IV: THE COURT ERRED IN RESTRICTING TESTIMONY REGARDING TERESA USHKOWITZ' MOTIVATION IN PURSUING THE WEAPONS FORFEITURE.

Having reviewed the entire record, we conclude that, except as discussed below, these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We begin by considering the law concerning possession of firearms by private citizens such as defendant. N.J.S.A. 2C:58-3 requires a permit in order to purchase or transfer a handgun, and requires a firearms purchaser identification card in order to purchase a rifle:

No person shall sell, give, transfer, assign or otherwise dispose of, nor receive, purchase, or otherwise acquire a handgun unless the purchaser, assignee, donee, receiver or holder is licensed as a dealer under this chapter or has first secured a permit to purchase a handgun as provided by this section. . .

No person shall . . . receive, purchase or otherwise acquire . . . a rifle or shotgun . . . unless the purchaser, assignee, donee, receiver or holder is licensed as a dealer under this chapter or possesses a valid firearms purchaser identification card, and first exhibits said card to the seller, donor, transferor or assignor, and unless the purchaser, assignee, donee, receiver or holder signs a written certification, on a form prescribed by the superintendent, which shall indicate that he presently complies with the requirements of subsection c. of this section and shall contain his name, address and firearms purchaser identification card number.

[N.J.S.A. 2C:58-3(a) and (b).]

The statute further provides that neither a firearms purchaser identification card nor a handgun permit shall 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(c)(5). Defendant concedes that this provision can be applied even if the victim in a domestic violence case has dismissed the underlying complaint which gave rise to the seizure of the weapon. In re Return of Weapons to J.W.D., 149 N.J. 108 (1997).

As we observed in State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004),

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.

[Id. at. 535.]

In reviewing the trial judge's determination we defer to her factual findings, so long as they are supported by substantial credible evidence, but not necessarily to her legal determinations:

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 appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice. . . . If, however, an appellate court is reviewing a trial court's legal conclusions, the same level of deference is not required.

[J.W.D., supra, 149 N.J. at 117 (citations omitted).]

There is no dispute that defendant committed multiple violations of the firearms licensing statute when he obtained the rifle without a purchaser identification card, obtained the handgun without the required permit, and later transferred the handgun without the required permit. He was unable to state whether the person to whom he transferred the handgun had a permit, and he refused to reveal the identity of the transferee. These are not minor transgressions. Violations of these statutory provisions are criminal offenses. See N.J.S.A. 2C:39-5(b) and (c), -9(d).

Further, defendant admitted that he failed to secure the weapons in a manner so as to make them inaccessible to the couple's young children. He kept a handgun in an unlocked drawer of his bedside table, and the rifle, with a bullet in the chamber, in a box in a bedroom closet. His carelessness might have resulted in tragedy. In Palmisano v. Ehrig, 171 N.J. Super. 310 (App. Div. 1979), certif. denied, 82 N.J. 287 (1980), a negligence case arising from defendant's having kept guns in an unlocked closet, we observed that "[f]irearms have been held to be inherently dangerous instrumentalities. One who possesses firearms is under a duty to use extraordinary care in their handling." Id. at 313 (citations omitted).

Defendant's admitted multiple violations of the firearms licensing statute, together with his refusal to disclose the identity of the person to whom he transferred his unlicensed handgun, and his casual approach to firearm safety despite the presence of young children in his home, are in themselves, sufficient grounds to conclude that it would not be in the public interest for him to possess firearms. See In re Osworth, 365 N.J. Super. 72, 81 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) ("[I]t does not serve public safety to issue a handgun purchase permit to someone who has demonstrated his willingness to disregard the gun laws of this State."); State v. Six Shot Colt .357, 365 N.J. Super. 411, 418 (Ch. Div. 2003). (Defendant's unlawful possession of an assault rifle constituted independent grounds to forfeit all of his weapons as well as his firearms purchasers identification card.) See also State v. Cunningham, 186 N.J. Super. 502, 512 (App. Div. 1982) (noting that negligently permitting children to handle guns could be grounds for seizure).

This conclusion is further supported by the testimony of defendant's former wife, whom the trial court found to be a credible witness. She testified that defendant threatened to kill her or have her killed, and that he tried to run her over with his car. We agree with defendant that his drug activities from many years ago, and what the trial court characterized as his "double life" with another woman, are not relevant. But it is clear from the testimony of his former wife that defendant has a temper and had made recent threats against her. We need not decide whether these facts by themselves would be sufficient to support the trial judge's decision. In light of defendant's admitted history of firearm licensing violations and his irresponsible approach to securing the guns that he had, the record in its totality amply supports the trial judge's conclusion that it would not be in the public interest for defendant to possess firearms.

Finally, we find no merit in defendant's challenge to the trial court's decision to limit cross-examination of Theresa on the child custody issue. We have reviewed the transcript and conclude that the judge properly allowed sufficient questioning to highlight the witness' possible motive for lying about the domestic violence incidents. In fact, after hearing argument, she offered defense counsel an additional opportunity to question the witness on the custody issue as it related to credibility. But the judge correctly ruled that the forfeiture hearing was not the appropriate forum in which to litigate the merits of the custody dispute.

 
Affirmed.

Defendant's testimony, that the police officer who seized the rifle told him that the rifle was inoperable because it had a round in the chamber, was hearsay and hence inadmissible for the truth of the statement.

(continued)

(continued)

9

A-3149-04T5

February 10, 2006

g