IN THE MATTER OF THE APPEAL OF CARLO ALTILIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3657-05T13657-05T1

IN THE MATTER OF THE APPEAL

OF THE DENIAL OF CARLO ALTILIA,

FOR A RETIRED LAW ENFORCEMENT

OFFICER PERMIT TO CARRY A HANDGUN.

________________________________________________________________

 

Submitted October 31, 2006 - Decided November 20, 2006

Before Judges Weissbard and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County.

Evan F. Nappen, attorney for appellant Carlo

Altilia (Louis P. Nappen, on the brief).

Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent State of New Jersey,

(Andrew M. Megill, Assistant Prosecutor,

on the brief).

PER CURIAM

Carlo Altilia appeals from an order of the Law Division denying his application for a permit to carry a handgun. We affirm.

On appeal, Altilia presents the following arguments:

POINT I

APPELLANT MEETS NEW JERSEY STATUTORY STANDARDS TO CARRY A HANDGUN, SPECIFICALLY N.J.S. 2C:39-6 AND N.J.S. 2C:58-3.

A. APPELLANT MEETS THE CRITERIA SET FORTH IN N.J.S. 2C:39-6.

B. IT IS UNREBUTTED THAT APPELLANT IS NOT SUBJECT TO ANY DISABILITIES LISTED IN N.J.S. 2C:58-3.

POINT II

DENIAL OF APPELLANT'S PERMIT UNLAWFULLY DISCRIMINATES IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT (ADA).

POINT III:

DENIAL OF APPELLANT'S PERMIT IS UNLAWFUL DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE AND NEW JERSEY'S DOCTRINE OF FUNDAMENTAL FAIRNESS.

Altilia's arguments in Points II and III lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). "The permit to carry a gun is the most closely-regulated aspect of gun-control laws." In re Preis, 118 N.J. 564, 568 (1990). There are rational reasons for these regulations, and Altilia has failed to demonstrate that the denial of his application to carry a handgun constitutes unlawful discrimination or that it contravenes either the Equal Protection Clause or "New Jersey's doctrine of fundamental fairness."

Preliminarily, we note that certain facts are not in dispute. The State concedes that Altilia is an individual of good character, who served as a corrections officer in Essex County and received several commendations. On December 4, 2003, Altilia was involved in a confrontation with an inmate, which resulted in his total and permanent disability, precluding him from performing his duties as a corrections officer. Altilia described the incident as follows:

I was the sergeant in charge of the main building and I was called to an area that we refer to as Satellite 3. It was an off-shoot of the main building. Two inmates were fighting, of the alternate lifestyle. . . . [T]he officers had already broken up the encounter. The officers informed me of what happened.

I made a decision to take one of the inmates to the nursing area because he was full of blood. And on the way down -- his name was Miguel Torres -- he asked me was I going to lock-up. I told him . . . we call it pre-hearing detention. Am I going to lock-up?

. . . I knew the inmate. I said, Miguel, . . . I want to get [you] cleaned up and then I'll decide if you're going to go to lock-up.

He became very belligerent when we were standing at the nurse's station waiting for him to get cleaned up. . . . [T]hen I informed him that you are going to go to lock-up because you're the one that started the fight; you just got the worst end of it.

He stated -- may I say exactly what --

THE COURT: Yes, yes.

A. (Continuing) He said, fuck you, I have AIDS. I have nothing to lose. And I didn't even notice, as he was saying that, he was full of blood and started spitting blood on my face. It went into my eyes, my mouth. I was full of blood. I got washed up the best I could because the County didn't have what was required anyway.

So, I immediately drove myself to St. Barnabas Hospital, which is in Livingston. They gave me all kinds of shots, gave me medication. Supposedly, that if you get this sort of [shot] within 72 hours, it might combat -- if you're in danger of getting the AIDS, it might combat it. And that's the incident.

Following this initial incident, Altilia did not report to work for approximately one month. In an accident investigation report dated December 5, 2003, Altilia noted that he was unable to perform his duties as a corrections officer because he was suffering from "anxiety and phobia."

After Altilia returned to work, there was a second incident involving two inmates who were fighting. Altilia testified that one of the inmates "was full of blood again." Altilia responded appropriately to the second incident, but when it was over he told his lieutenant, "I'm done; I don't want to go through this again."

Shortly after the second incident, Altilia filed an accidental disability retirement application and on December 7, 2004, he was evaluated by Dr. Chester Trent. Dr. Trent found that Altilia was "totally and permanently disabled with post traumatic stress disorder as a result of the injury on 12/4/03. He will not be able to return to work as a correction officer. The disability is the direct result of the incident on 12/4/03." Based on Dr. Trent's report, and its review of other medical records, the Medical Review Board concluded that Altilia was "totally and permanently disabled with post traumatic stress disorder as a result of an injury on [December 4, 2003]. He will not be able to return to work as a corrections officer." Altilia's Accidental Disability Retirement application was approved by the Division of Pensions and Benefits, which subsequently confirmed that Altilia had retired due to a "mental medical disability."

Pursuant to N.J.S.A. 2C:39-6(l)(1), Altilia made a timely application to the Superintendent of the State Police (Superintendent) for a retired law enforcement officer permit to carry a handgun. The Superintendent informed Altilia by letter dated May 5, 2005, that his application to carry a handgun had been denied. The letter contained the following explanation:

Your application for a Retired Law Enforcement Officer Permit to Carry a Handgun has been disapproved by the Superintendent of State Police, as your former employer has refused to endorse and certify your application. Furthermore, an inquiry made to the State of New Jersey, Department of the Treasury, Division of Pensions and Benefits had disclosed that you retired on a mental incapacity/medical disability.

Please understand that pursuant to [N.J.S.A. 2C:39-6(l)(2)], your former employer is required to certify your application prior to the approval and issuance of a Retired Law Enforcement Officer Permit to Carry a Handgun. Since your former employer has refused to certify your application, and since you retired as a law enforcement officer on a mental incapacity/medical disability on the basis that you are totally and permanently disabled from the performance of your job duties, you are not entitled to a permit to carry a handgun as a retired law enforcement officer under the exemption of [N.J.S.A. 2C:39-6(l)] which states in part ". . . provided the officer was a regularly employed, full-time law enforcement officer for an aggregate of five or more years prior to his disability retirement and further provided that the disability which constituted the basis for the officer's retirement did not involve a certification that the officer was mentally incapacitated for the performance of his usual law enforcement duties . . . ." As such, you do not meet the requirements of [N.J.S.A. 2C:39-6(l)], and the Superintendent cannot continue the process to issue you a Retired Law Enforcement Officer Permit to Carry a Handgun. However, you may still apply for a permit to carry a firearm pursuant to [N.J.S.A. 2C:58-4] by making requisite application with the police chief of the municipality where you reside.

Altilia appealed the Superintendent's determination to the Superior Court pursuant to N.J.S.A. 2C:39-6(l)(5). During an evidentiary hearing on January 27, 2006, Det. Sgt. Joseph Genova of the New Jersey State Police Firearms Unit testified that he was the "supervisor for the retired law enforcement officer permit to carry a handgun program." He confirmed that Altilia's application was processed in the normal fashion, and it was denied because Altilia's former employer did not provide a verification of service (N.J.S.A. 2C:39-6(l)(2)), and because Altilia had retired with a mental medical disability, which is a disqualifier. On February 24, 2006, the trial court set forth its reasons for denying Altilia's application in a written decision. The court gave appropriate consideration to the investigative experience and expertise of the Superintendent in denying Altilia's application. Weston v. State, 60 N.J. 36, 46 (1972).

The scope of our review is limited. "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In this case, the trial court's findings are firmly supported by substantial credible evidence in the record, and it correctly concluded that Altilia was not entitled to a permit to carry a handgun because the disability, which constituted a basis for his retirement, involved "a certification that [he] was mentally incapacitated for the performance of his usual law enforcement duties. . . ." N.J.S.A. 2C:39-6(l).

Affirmed.

 

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A-3657-05T1

November 20, 2006