STATE OF NEW JERSEY v. MICHAEL MIRAYES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3397-04T53397-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MIRAYES,

Defendant-Appellant.

_____________________________________________

 

Submitted May 3, 2006 - Decided June 6, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Chancery Division, Warren County,

FO-21-026-01.

Evan F. Nappen, attorney for appellant

(Richard V. Gilbert, on the brief).

Thomas S. Ferguson, Warren County Prosecutor,

attorney for respondent (James D. Donegan,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant Michael Mirayes appeals from an order of February 10, 2005 denying his motion for reconsideration of an order entered on June 29, 2004, which rejected his request for return of certain firearms that had been ordered forfeited under the pertinent provisions of the Domestic Violence Act. N.J.S.A. 2C:25-21d. The forfeiture order in question was entered on the State's petition and after a hearing on August 1, 2002. At that time, after hearing testimony from defendant and his ex-wife, Judge Amy O'Connor made the following findings:

The Court has listened to the testimony of Mrs. Mirayes and Mr. Mirayes. The Court found Mrs. Mirayes very, very credible. I believe and find that, in fact, Mr. Mirayes did inflict the assault that he did on her in 1992 or 1993 and gave her the bruising that she described, which was in 1997 or 1998 and grabbed her on the arm, leaving bruising in May of 2000 as she described and hit her across the leg in 1999.

Given those facts, the fact that there was violence ten years ago and, again, in '97 and '98 and as recently as two years ago, the Court has concerns about returning the personal weapons to Mr. Mirayes, given his actions and finds that he would be a danger to Mrs. Mirayes if that were to happen.

So under State v. J.W.D., the Court won't be returning the personal weapons to Mr. Mirayes because of the -- based upon the testimony of Mrs. Mirayes. She was shaking and scared. I could see it, from where I sit, . . . . I believe her, what she described, in fact, happened. The Court finds he's a danger to her.

The order provided for the forfeiture and destruction of three weapons and the forfeiture of defendant's Firearms Identification Card. On June 2, 2004, defendant moved to vacate the forfeiture order pursuant to R. 4:50-1(e), on the basis that it was "no longer equitable" for the order to be continued in force. Defendant argued that circumstances had changed in the intervening two years. Specifically, in his employment as a New Jersey State Trooper, defendant had been cleared as of March 20, 2001 to have full access to his service weapon twenty-four hours a day and had done so without incident. He pointed out that he and his wife are now divorced. In addition, defendant's motion pointed out that he had not been provided the statutory sixty days to sell his weapons. N.J.S.A. 2C:25-21d(3)(a); Hoffman v. Union County Prosecutor, 240 N.J. Super. 206, 212-15 (Law Div. 1990). After argument on June 25, 2004, Judge O'Connor reserved decision, but issued an order denying the application on June 29, 2004.

On defendant's motion for reconsideration, the judge heard more argument on October 1, 2004. Believing that she had overlooked the thrust of defendant's motion, the judge granted the request for reconsideration and once again reserved decision. After submission of post-argument briefs, the judge denied the application on February 10, 2005, with an accompanying memorandum of reasons which stated:

Following a weapons forfeiture hearing, the court entered an Order on August 19, 2002, which directed that the defendant's weapons, previously seized pursuant to the Domestic Violence Act, be forfeited to the State of New Jersey and destroyed. In the same Order, the defendant's Firearms Identification Card was also forfeited to the State. The court made the decision to enter the August 19, 2002 Order after finding that the defendant had assaulted his former spouse on four occasions between 1993 and 2000, and therefore posed a threat to her safety and welfare, pursuant to Return of Weapons to J.W.D., 149 N.J. 108 (1997).

The defendant now requests that the August 19, 2002 Order be vacated, under R. 4:50-1(e). Specifically, the defendant argues that circumstances have changed and it is now no longer equitable that the August 19, 2002 Order have prospective application. The alleged changes in circumstances are as follows:

1) that the parties divorced in 2003, and thus any "flashpoints," such as disputes over alimony or equitable distribution, have passed;

2) that the defendant has been in a relationship with another person for four years;

3) that the victim has not made any allegations that the defendant has physically touched her since the entry of the August 19, 2002 Order and for "some time" before that;

4) that there is not any evidence that the defendant presents any physical threat to the victim at this time;

5) that the victim and defendant have had ongoing and "mutually tolerant" contact regarding the children since the entry of the August 19, 2002 Order; and

6) that the defendant is a state trooper, and was cleared by the Department of Law and Public Safety to have full access to his service weapon 24 hours per day. The court notes here that at the time of the weapons forfeiture hearing, the fact that the defendant was permitted access his service weapon in association with his job was in evidence and thus such fact is not a change in circumstance. The defendant does argue, however, that there have not been any incidents involving his service weapon since August 19, 2002.

The court notes here that the defendant did not certify to any of the above alleged facts. The above facts were raised in the Brief filed by the defendant's attorney.

The Supreme Court in F.B. v. Monmouth County Division of Social Services, 176 N.J. 201 (2003) stated that a motion to vacate a judgment pursuant to R. 4:50-1(e) must be supported by evidence of changed circumstances and that such changes are such that it is no longer equitable that an Order or Judgment have prospective application. In addition, in order to outweigh the public interest in the finality of judgments, the movant must show ". . . that events have occurred subsequent to the entry of a judgment that, absent the relief requested, will result in 'extreme' and 'unexpected hardship.'" Id. at 208. Accordingly, what the defendant must now show is that not only have circumstances changed such that he is no longer a danger to his former spouse, but also that he will suffer extreme and unexpected hardship if he is not able to possess personal weapons.

The court does not need to address whether or not the alleged facts asserted in the defendant's Brief are a change in circumstance because the defendant did not certify to such facts. Secondly, the defendant did not show how he will suffer extreme and unexpected hardship if he is not permitted to possess personal firearms. The defendant's attorney asserts in his Brief that the August 19, 2002 Order could have an impact on the defendant's ability to be promoted in his job, because the defendant is required to possess a firearm. Such assertion, however, is speculation. Secondly, the defendant is able to carry his duty weapon.

The defendant also argues that any restriction of his constitutional rights is itself an extreme and unexpected hardship. The defendant does not, however, have a personal, individual constitutional right to bear arms. See Burton v. Sills, 99 N.J. Super. 516, 527 (Law Div. 1967). The Second Amendment to the United States Constitution provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." As set forth in State v. Miller, 307 U.S. 174 (1936), the Second Amendment does not guarantee an individual's right to bear arms absent "some reasonable relationship" between the "instrument" and the "preservation or efficiency of a well regulated militia." Id. at 178-79.

The defendant also argues that the August 19, 2002 Order, which was drafted by the State, did not provide the three options available to defendants when firearms are forfeited, as set forth in N.J.S.A. 2C:25-21d(3). The defendant argues that the guns should be sold and the proceeds provided to him. The court notes that the defendant, who was represented by counsel at the time (who is not the same attorney who is representing him now), did not object to the form of Order when same was submitted to the within court in 2002. During oral argument on the within motion, however, the State indicated that it still had the weapons and that it did not oppose the weapons being sold to a dealer and the proceeds forwarded to the defendant, or the weapons being transferred to an appropriate third party.

This appeal followed, in which defendant presents the following arguments:

POINT 1: THE COURT BELOW DENIED APPELLANT'S DUE PROCESS RIGHTS BY REFUSING TO GRANT AN EVIDENTIARY HEARING ON THE MATTER AND THEN CONTRADICTORILY DECIDING THAT THERE WAS NO EVIDENCE TO SUPPORT APPELLANT'S POSITION.

POINT 2: THE COURT BELOW ERRED BY DISREGARDING APPELLANT'S UNREBUTTED PROFFER THAT HE MEETS THE CRITERIA FOR VACATING THE ORDER UNDER RULE 4:50-1(e).

We have carefully considered defendant's contentions in light of the record and applicable law. We reject the arguments and affirm substantially for the reasons set forth by Judge O'Connor in her memorandum of February 10, 2005.

Affirmed.

 

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A-3397-04T5

June 6, 2006