STATE OF NEW JERSEY v. RODNEY JENNINGS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4812-04T34812-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY JENNINGS,

Defendant-Appellant.

_______________________________________

 

Submitted May 15, 2006 - Decided June 9, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. WF-10-03-113.

Shamy, Shipers, & Lonski, attorneys for appellant (Thomas R. Ryan, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Lisa Commentucci, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rodney Jennings appeals from an order entered on March 28, 2005 mandating the forfeiture of his weapons, permits, licenses and authorization to possess or own weapons. We affirm.

A State Police officer confiscated defendant's weapons on September 22, 2003 after responding to a domestic violence complaint at defendant's home. The State thereafter moved in the trial court for forfeiture of the weapons as well as defendant's permit to use, possess and own the firearms. The judge conducted a hearing on the State's motion on January 21, 2005.

The State presented evidence from defendant's wife, Michelle Jennings, who testified that she and defendant have been married for ten years. Ms. Jennings asserted that in the past defendant at times used physical force against her because "he was a little crazy when he was drinking." Ms. Jennings stated that on September 22, 2003, she called the police to the family home because defendant had been drinking "a lot" that day. At or around that time, defendant would drink at least five nights out of seven each week. Ms. Jennings said that defendant would drink beer and he would become "very cocky" and "very angry too." Ms. Jennings testified that, when she saw defendant drunk, she also would become "very angry."

Ms. Jennings further testified that a State Police officer responded to the home on September 22, 2003. She said that she "probably" told the officer that defendant was drunk and she wanted him out of the house. Ms. Jennings recalled advising the officer that defendant had been "physical towards" her in the past when he was drinking. She told the officer that she wanted a divorce. She also recalled telling the officer of her concern that defendant might physically abuse her. She testified, "He was very, very angry. He was very angry because he knew I wanted to divorce him. I wanted to leave him. And he didn't, so he was just, he was just very angry."

Ms. Jennings additionally testified that eight years before, she and defendant had gotten drunk at a party and fought. Ms. Jennings said that defendant took out one of his guns and held it to her head. Ms. Jennings asserted that, when the police responded to the home on September 22, 2003, she told the officer about this prior incident. She also told the officer that defendant had guns in the home and there was "a lot of anger between" the couple. Ms. Jennings also recounted that she informed the officer that defendant assaulted her with a telephone on Mother's Day 2003. She testified, however, that defendant had not actually assaulted her but she told the police that he did in order to obtain a restraining order and get defendant out of the house.

Ms. Jennings also testified that after the incident on September 22, 2003, she applied to the court for a temporary restraining order and obtained the order. At that time, Ms. Jennings filed an action for divorce. Later, Ms. Jennings had the restraining order dismissed because "at that point" she "knew" defendant was going to stay out of the home. It appears that defendant had moved to the shore.

Defendant returned to the home in November 2003. Ms. Jennings explained that by this time defendant had received counseling for alcohol abuse and she "gave him another chance." Ms. Jennings said that her relationship with defendant had been "great" since that time. She asserted that she had no concerns about the return of defendant's weapons.

The State also presented testimony from Trooper Michelle Palmisano (Palmisano), the State Police officer who responded to the Jennings home on September 22, 2003. Palmisano testified that Ms. Jennings was upset and scared at the time. Ms. Jennings told Palmisano that defendant had been drinking and had verbally abused her. Ms. Jennings also said that in the past, defendant had physically abused her. In addition, Ms. Jennings advised Palmisano that a few years before, defendant held a gun to her head during a domestic dispute. Ms. Jennings told Palmisano that she had not called the police at the time because she was afraid of defendant. Palmisano wrote in her report that Ms. Jennings was afraid "because there were numerous weapons in the house."

Defendant presented a report dated November 1, 2004 by Anthony Todaro, Ph. D., ABPP (Todaro), a licensed clinical psychologist. Todaro performed a psychological evaluation of defendant on October 19, 2004. In his report, Todaro found that defendant had an adjustment disorder with "mixed emotional features going into remission." Defendant had alcohol dependence in remission, as well as tobacco dependence. Todaro diagnosed narcissistic traits with "very mild histrionic and obsessive/compulsive features." He also found marital stress, "due to the legal situation [defendant] encountered with the loss of his weapons which seems currently resolved as per discussion with" Ms. Jennings on the telephone. Todaro opined that defendant is "capable, confident and reliable in handling of weapons and should prove to be at no risk to anyone in our society or himself."

The judge placed his decision on the record on February 18, 2005. The judge reviewed the testimony of Ms. Jennings and Trooper Palmisano. The judge noted that Todaro's report indicated that Todaro had not met personally with Ms. Jennings. Todaro rendered the report after speaking with Ms. Jennings on the phone. The judge stated:

There was no chance [for Todaro] to observe her and no discussion about the fears she expressed to the Trooper regarding the weapons. There was also no mention of the incident on Mother's Day. There was no indication by the Doctor of concern regarding the alcohol treatment.

In addition, the judge found that Ms. Jennings was "obviously motivated to get the guns returned to her husband." He stated that Ms. Jennings had testified that the "primary purpose" of her call to the police on September 22, 2003 and obtaining a restraining order was "to get her husband to slow down with his drinking." That, she claimed, was "the main issue and not the weapons." The judge stated, however, that

the testimony of the Trooper stands in contradistinction to that. [Ms. Jennings] was, from the testimony of the Trooper who I found to be credible, . . . in genuine fear. [Ms. Jennings] mentioned her fear of guns, her fear of the husband, the incident of 2003. And how she feared what he would do. And the fact that she was afraid to call the police back in, when he pointed the gun at her head because of fear of what he would do.

The Court feels that [Ms. Jennings'] testimony, that her main intent was to get the husband to stop drinking, . . . stands in contradiction to what she had told the Trooper.

I find that [Ms. Jennings'] . . . main reason for calling the police and getting the restraining order [was] fear of what [defendant] might do. And the drinking was absolutely a factor in that. But she was afraid of the weapons that were in the house.

[Ms. Jennings] told the Trooper that she was afraid because there were numerous weapons in the house. And the fact of the matter is that she had testified that she told the Trooper that [defendant] pointed a gun at her head. . . . [Ms. Jennings] tried to back off that somewhat [at] trial but that, nevertheless, . . . is what her fear was. And she was also physically abused back on Mother's Day.

So the Court feels that the main thrust of [Ms. Jennings'] complaint here was the fear of what the husband would do with the weapons.

She was in genuine fear of the guns in the house and the incident of 2003 and the incident that had occurred several years earlier.

The judge also gave no weight to Todaro's report because Ms. Jennings had not provided Todaro with "pertinent facts" concerning the gun incident or the physical assault on Mother's Day.

The judge therefore concluded that it would not be in the interest of the public health, safety or welfare to return the weapons to defendant. An order was entered on March 28, 2005 granting the State's application for forfeiture of defendant's weapons and his permit to use, possess or own the weapons. Defendant was ordered to sell or transfer his weapons to a licensed firearms dealer within 60 days. This appeal followed.

Defendant argues that the State failed to prove by a preponderance of the evidence that his possession of the firearms was a danger to the public heath, safety or welfare. Defendant asserts that the judge erred in admitting testimony from Trooper Palmisano concerning statements that Ms. Jennings made on September 22, 2003. Defendant further argues that Ms. Jennings' testimony and Todaro's report established that his possession of weapons would not be a threat to Ms. Jennings or the public generally.

Where, as in this case, weapons are seized in connection with a domestic violence complaint, and the action is voluntarily dismissed, the State may petition the court pursuant to N.J.S.A. 2C:25-21d(3) for the forfeiture of any seized firearms, and the revocation of any permit to use, possess or own such weapons, provided the State "can show that defendant is afflicted with one of the legal 'disabilities' enumerated in N.J.S.A. 2C:58-3c." State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004). Forfeiture may be ordered if possession of the weapons "would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c(5).

We are convinced that there is ample support in the record for the judge's conclusion that forfeiture was warranted in this case under N.J.S.A. 2C:58-3c(5). The record clearly established that defendant used a weapon to threaten his spouse after the couple got drunk and a fight ensued. In fact, defendant held a gun to his wife's head in that domestic dispute. The record also established that defendant had a serious drinking problem and there was a history of domestic violence in the marital relationship. Although defendant subsequently received alcohol counseling and the couple purportedly reconciled, there was more than enough evidence for the judge's conclusion that defendant's possession of firearms is not in "the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c(5).

The judge's findings are binding on appeal because they are supported by adequate, substantial and credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Moreover, deference is warranted when, as in this case, the findings are "substantially influenced" by the judge's "opportunity to hear and see the witnesses." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

 
We additionally reject defendant's contention that the judge erred in permitting Trooper Palmisano to testify concerning statements made by Ms. Jennings on September 22, 2003. The testimony was admissible under N.J.R.E. 803(c)(2). Ms. Jennings' statements to Palmisano clearly related to a "startling event." They were made when she was "under the stress of excitement caused by the event." In addition, Ms. Jennings made her statements under circumstances in which she did not have an "opportunity to deliberate or fabricate." Ibid.

Affirmed.

(continued)

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A-4812-04T3

June 9, 2006