IN THE MATTER SEIZURE OF WEAPONS BELONGING TO CLAUDIO SMILOVIC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3764-05T13764-05T1

IN THE MATTER OF THE SEIZURE

OF WEAPONS BELONGING TO

CLAUDIO SMILOVIC.

_____________________________________________________________

 

Submitted November 8, 2006 - Decided December 11, 2006

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Bergen County, F0-02-215-06.

Lawrence A. Leven, attorney for appellant

Claudio Smilovic.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent the State of New

Jersey (Nicole L. Eiszner, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Appellant Claudio Smilovic (Smilovic) appeals from an order forfeiting his handgun and revoking his New Jersey Firearms Purchaser Identification Card (FPIC) following the dismissal of a domestic violence complaint and temporary restraining order (TRO). We reverse.

In a domestic violence complaint, Smilovic's former girlfriend, Angela Greco (Greco), alleged that on October 8, 2004, Smilovic's "right hand hit her head" while he was "in the act of throwing the victim's cell phone against a wall." Greco also alleged a history of domestic violence between the parties consisting of the following: "July 5, 2004 offender did choke victim in Paramus." However, Greco did not file a domestic violence complaint and she did not seek a TRO in connection with the Paramus incident. In accordance with the TRO entered on October 8, 2004, the Little Ferry Police Department seized Smilovic's firearm (described as a Sturm Ruger Model P98 9mm), a magazine with fourteen 9mm bullets, and his FPIC.

On October 18, 2004, Greco requested the dismissal of the domestic violence complaint and the TRO dated October 8, 2004. In her "Affidavit for Dissolution of Restraining Order," submitted in support of her dismissal request, Greco stated that she had reconsidered her relationship with Smilovic and she certified to the following:

I have had the implications of this action explained to me and have reviewed the information contained on the form "What Dissolving a Restraining Order Means". I am asking for this dissolution voluntarily and of my own free will without outside coercion or interference from any person. I am also aware that should I wish to consult an attorney, domestic violence program or counseling group that I may do so prior to completing this affidavit.

The court granted Greco's request, and it dismissed the domestic violence complaint and TRO on October 18, 2004. The dismissal order contains a finding by the Law Division judge that Greco was not "coerced or placed under duress to withdraw the complaint and dissolve the [o]rder."

N.J.S.A. 2C:25-21(d)(3), authorizes a prosecutor who has possession of seized weapons to petition a judge of the Family Part, within forty-five days of the seizure to obtain title to a seized weapon, or to revoke any "permits, licenses and other authorizations for the use, possession, or ownership of such weapons . . . ." It is undisputed, however, that the Bergen County Prosecutor's Office was not notified of the seizure of Smilovic's property until August 19, 2005. Consequently, on September 2, 2005, the Bergen County Prosecutor's Office filed a timely notice of motion to forfeit Smilovic's property. See State v. McGovern, 385 N.J. Super. 428, 431 (App. Div. 2006) (concluding that the forty-five day time period for filing petition for forfeiture does not begin to run until the prosecutor comes into possession of the weapon or has knowledge of the seizure).

At the forfeiture hearing on October 14, 2005, the State conceded that Smilovic did not have any prior arrests or convictions. Smilovic denied hitting Greco on October 8, 2004, and he advised the court that the TRO was "issued and then dropped" after he called the police in an effort to get Greco to leave his home. Smilovic explained that he had purchased the gun "many years ago for target practice," and he testified that he had been "a model citizen" for forty years and he held the "same job for twenty-two years."

The State's only witness was Ralph Verdi, the Little Ferry Police Chief, who objected to the return of Smilovic's handgun. According to Chief Verdi, when the Little Ferry Police Department "confiscate[s] weapons involved in a domestic violence dispute, . . . we strenuously object to that weapon being returned to the individual." Chief Verdi also testified that the firearm is "a high-capacity weapon. It's not a target gun. It's not a hunting gun. It's a combat gun." But the State does not contend that the weapon seized from Smilovic meets the definition of a banned assault weapon pursuant to N.J.S.A. 2C:39-1 et seq. See State v. 6 Shot Colt 357, 365 N.J. Super. 411, 418 (Ch. Div. 2003) (concluding that violation of the laws concerning possession of an assault rifle is an independent basis under N.J.S.A. 2C:25-21(d) for the court to order a forfeiture).

During the forfeiture hearing, Smilovic mentioned that he had received a voice mail message from Greco indicating that she had "faxed a letter to the [p]rosecutor stating that she doesn't feel that she's threatened . . . ." This prompted the prosecutor to provide the court with a letter Greco sent to the prosecutor's office on October 4, 2005. In her letter, Greco states that she is "requesting that [Smilovic's] weapon be returned to him" because "he has never threaten[ed] my life. He has never bother[ed] me since we broke up and I'm not in any danger." Greco also provided her telephone number and she indicated that if there were any questions, she could be "reached any time."

Based on the testimony and the letter from Greco, the trial court granted the State's forfeiture application:

See, the problem I have is Ms. Greco, who's written this letter saying that she has no objection to the weapon being returned, is also the person who's accused you of acts of domestic violence on two occasions, so my concern is I don't know how stable she is or if she's being coerced or threatened or -- I mean, it's an unfortunate situation and it makes me very concerned, and I don't feel, based upon the history of the domestic violence incidents, that it would be advisable to have the weapon returned to you, sir. I feel very uncomfortable. I don't think that . . . it's a potential general threat to the general safety of the population . . . especially in light of the fact that I don't know why anybody needs a weapon that shoots 15 rounds without reloading; and, furthermore, that there's a public threat involved because there have been two incidents of domestic violence. So -- and you don't have to be convicted of an act of domestic violence for there to be sufficient concern and legitimate basis to order the forfeiture. . . . Sir, I'm sorry. I'm going to order that the weapon be forfeited.

Title to weapons seized following an arrest for an act of domestic violence may be forfeited "on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular." N.J.S.A. 2C:25-21(d)(3). In addition, the statute "implicitly refers to N.J.S.A. 2C:58-3, the statute regulating the issuance of firearms purchaser identification cards." In re J.W.D., 149 N.J. 108, 115 (1997). N.J.S.A. 2C:58-3(c)(5) provides that no handgun permit or FPIC shall be issued "[t]o any person where the issuance would not be in the interest of the public health, safety or welfare." The Court has determined that the two statutes, when read together, reflect the Legislature's intent that courts not return confiscated weapons "to a defendant in a domestic violence action, even after the dismissal of the complaint, if the court finds that the defendant poses a threat to public health, safety, or welfare." J.W.D., supra, 149 N.J. at 116.

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 court's determination, we defer to its factual findings, so long as they are supported by substantial credible evidence, but not necessarily to its 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 116-17 (citations omitted).]

The issue on appeal is whether there was sufficient credible evidence to demonstrate that defendant posed a threat to the public health, safety, or welfare. We have previously addressed this issue in a variety of circumstances. See In re Osworth, 365 N.J. Super. 72, 81 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (finding that it does not promote public safety to issue a handgun purchase permit to "someone who has demonstrated a willingness to disregard the gun laws of this state"); State v. Freysinger, 311 N.J. Super. 509, 516-17 (App. Div. 1998) (finding sufficient proof of threat to the public health, safety, and welfare based on defendant's two driving under the influence convictions, his two convictions for refusing to submit to chemical tests, and his admission that he failed to stop after hitting a pedestrian with his car); Hoffman v. Union County Prosecutor, 240 N.J. Super. 206, 215 (Law Div. 1990) (holding that forfeiture of weapon was warranted based on pattern of violent behavior and alcohol abuse).

In each of these cases, the State presented sufficient credible evidence to demonstrate a clear threat to public welfare. In the present matter, however, there is insufficient evidence to support the trial court's determination that Smilovic poses a threat to the public health, safety, or welfare. As previously noted, the Law Division judge who dismissed the TRO and the domestic violence complaint found that Greco had not been coerced or placed under duress to dismiss the domestic violence complaint and request the dismissal of the TRO, and the State does not challenge that determination. On the contrary, in her subsequent letter to the prosecutor's office, Greco confirmed that she has no objection to Smilovic's weapon being returned to him. Moreover, it is undisputed that Smilovic has never been arrested, and he has no criminal record. And the State does not contend that Smilovic is subject to any of the disabilities set forth in N.J.S.A. 2C:58-3(c), or that he poses a threat to any particular person or persons. We therefore conclude that the evidence was insufficient to warrant forfeiture.

Reversed and remanded for entry of an appropriate order consistent with this opinion.

 

(continued)

(continued)

9

A-3764-05T1

December 11, 2006