IN THE MATTER WEAPONS FORFEITURE HEARING S.C.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5811-04T35811-04T3

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IN THE MATTER OF THE WEAPONS

FORFEITURE HEARING S.C.C.

 
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Submitted May 8, 2006 - Decided June 20, 2006

Before Judges Fall and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. FO-02-536-01.

Abdy, Kane & Nardella, attorneys for appellant (Timothy P. Kane, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

S.C.C. appeals from an order entered in the Family Part on May 23, 2005, forfeiting the return of his weapons that had been seized by law enforcement authorities pursuant to a restraining order entered against him under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 and revoking his Firearms Purchaser Identification Card (FPIC). We reverse and remand for a new hearing.

On July 19, 2000, K.J.C., the wife of S.C.C., filed a domestic violence complaint in the Township of Wykoff, alleging that S.C.C. had committed acts of harassment against her on that date. The description of the acts contained in the complaint, docket FV-02-394-01, provided:

Defendant arrived at a family/friends' gathering and became very loud, angry and abusive towards the plaintiff (his wife) stating he has to have a meeting with her. She refused. Defendant became angrier and verbally attacked the plaintiff's father. He then left the scene and called the police stating he wants his weapons which were removed from his residence in April. 1900 hours on 7-19-00.

The complaint stated there was no prior history of domestic violence; defendant had no criminal history; and no criminal complaint involving the matter was filed.

The complaint also stated that the police responded and seized two handguns, one rifle, one shotgun, and a compound bow. The municipal court judge for that municipality issued a temporary restraining order (TRO) authorizing the seizure of the weapons, directing that there be psychological testing for defendant, and scheduled a final hearing to be held in the Family Part on July 31, 2000. On August 11, 2000, upon the request of K.J.C., the domestic violence complaint against S.C.C. was dismissed.

S.C.C. and K.J.C. were married on March 24, 1984. Two children were born of their marriage. They separated in the summer of 2000. K.J.C., except for the divorce proceedings, has had no contact with S.C.C. and no incidents have taken place in this interim period of almost five years.

The Bergen County Prosecutor's Office filed an undated request, pursuant to N.J.S.A. 2C:25-21d(3), seeking forfeiture of the seized weapons, and a hearing was scheduled for December 8, 2000. An order was entered in the Family Part on that date, stating that S.C.C. did not appear for the hearing, and adjourning the hearing to January 5, 2001, only to be rescheduled to January 12, 2001. On that date, upon the request of counsel for S.C.C., the court entered an order rescheduling the weapons forfeiture hearing to January 26, 2001.

On January 26, 2001, the trial court issued an order adjourning the matter for a period of four months, with the "parties to be evaluated by Dr. [Daniel A.] Sugarman[,] with each party to pay [half] of [the doctor's] fee." By letter to the trial court dated April 24, 2001, Dr. Sugarman enclosed his report of his psychological evaluation of S.C.C. and K.J.C. In his report, Dr. Sugarman stated that "my diagnostic impression [of S.C.C.] is of a severe, chronic adjustment reaction of adulthood. Features of anxiety and somatization predominate the clinical picture. There is also the possibility of some minimal neurological dysfunction, which needs to be investigated."

On the issue of weapons, Dr. Sugarman enumerated various factors to consider and stated:

Considering all of these factors, it is my professional opinion that there is absolutely no justification at the present time for returning [S.C.C.'s] weapons to him. [S.C.C.] needs to be protected not only from his own possible impulsive, angry behavior towards others; but also, probably more seriously, he needs to be protected from a sudden, impulsive surge of suicidal ideation.

Should [S.C.C.] stabilize during the next two years with the continuation of psychiatric or neurological assistance, the question of returning his weapons to him could then be revisited.

A further order was entered in the Family Part on May 4, 2001, adjourning the hearing to June 1, 2001. Interestingly enough, even though Dr. Sugarman's report was sent to the court by letter dated April 24, 2001, the order recites that there was no report from Dr. Sugarman because the parties have not paid his fee. On June 1, 2001, the court issued an order adjourning the hearing to June 29, 2001, and stating that "[t]his matter will go forward with or without Dr. Sugarman's report." Yet another order, entered on June 29, 2001, further adjourned the matter to July 13, 2001. An order dated August 10, 2001 inactivated the case for a period of one year, stating that the "case will be reviewed at that time, upon motion."

Apparently nothing happened until the State made a motion returnable February 25, 2005, seeking an order forfeiting S.C.C.'s weapons and revocation of his firearms purchaser identification card. The matter was adjourned to March 11, 2005, and then to May 20, 2005. On that date, the request by counsel for S.C.C. for a further adjournment was denied, and the weapons' hearing proceeded.

The State produced testimony from K.J.C., now K.J.S., the former wife of S.C.C., who was now remarried. She testified concerning the incidents that led to her filing the domestic violence complaint, and stated that during their marriage S.C.C. had been violent towards her. She recalled several incidents when he had beat and punched her and, notably, an incident when S.C.C. held a loaded .44 Magnum handgun with a broken mechanism to her head after he discovered she was pregnant. K.J.S. stated that was the only incident where he had threatened her with a handgun. K.J.S. testified that there were occasions when she took S.C.C. to hospitals and for appointments with psychiatrists to deal with his mental health problems. She also stated she has witnessed S.C.C. exhibit violence towards their two children.

When asked why she had requested dismissal of the domestic violence complaint, she testified she "was afraid if he didn't get what he wanted, he would retaliate." K.J.S. stated that she was fearful that should his weapons be returned that she would be subjected to a heightened sense of danger. On cross-examination, K.J.S. admitted she never called the police as a result of the incidents about which she had testified, and that most of the episodes of violence had occurred prior to March 1998.

R.S., the daughter of K.J.S. and S.C.C. also testified. She stated that as a child she witnessed two or three occasions when S.C.C. would verbally abuse K.J.S., but did not see him strike her mother. She stated that she did witness S.C.C. choke her brother, but that he did not physically abuse her. R.S. stated that S.C.C. is a violent person and that returning his weapons would place her in danger.

The hearing continued on May 23, 2005. The State rested, and moved admission of the April 23, 2001 report of Dr. Sugarman. Counsel for S.C.C. objected to its admission, contending it was outdated, did not reflect current circumstances, and that there was no opportunity to cross-examine Dr. Sugarman. Noting that either party had full opportunity to request an updated examination and report by Dr. Sugarman, the trial judge admitted Dr. Sugarman's April 23, 2001 report, citing to R. 5:3-3 as authority for its admission. The judge observed that N.J.S.A. 2C:25-21d describes weapons forfeiture hearings as summary in nature.

At the conclusion of the State's evidence, counsel for S.C.C. moved for dismissal of the State's forfeiture request on the ground that the State had filed its forfeiture application more than forty-five days after the seizure of the weapons, as required by N.J.S.A. 2C:25-21d(3). S.C.C. also moved for dismissal on the basis that the State had failed to establish sufficient grounds to warrant forfeiture. The trial judge denied both motions, noting that the procedural issue had been raised and disposed of previously. Even if Dr. Sugarman's report was disregarded, the State had presented sufficient testimony to withstand the dismissal motion.

S.C.C. produced testimony from L.F., his girlfriend of two years, who stated that S.C.C. was not a violent person. S.C.C. testified that he takes medication for pain due to his previously undiagnosed condition of fibromyalgia. He explained that his condition prevents him from walking distances in excess of 300 feet and often requires him to use a wheelchair.

S.C.C. denied any history of domestic violence, denied holding a handgun to his ex-wife's head, and stated he defended himself against her on one occasion, alleging his wife was the aggressor. He claimed that K.J.S. has alienated the children from him.

The trial judge found the testimony of K.J.S. and R.S. to be credible, and found S.C.C.'s testimony "not to be persuasive." The judge relied upon the content of Dr. Sugarman's report describing it to be "the only competent medical evidence" presented.

On appeal, S.C.C. presents the following arguments for our consideration:

POINT I

THE MOTION TO FORFEIT WEAPONS WAS NOT FILED IN A TIMELY MANNER AND MUST BE DISMISSED ON THAT BASIS.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT AN ADJOURNMENT TO PERMIT THE DEFENDANT TO BE REEVALUATED BY DR. SUGARMAN.

POINT III

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE REPORT OF DR. SUGARMAN OVER THE HEARSAY OBJECTION OF THE DEFENDANT.

POINT IV

THE RULING OF THE TRIAL COURT WAS BASED ON INSUFFICIENT EVIDENCE AND WAS AGAINST THE GREAT WEIGHT OF THE EVIDENCE.

In Point III, the State concedes that the trial court erroneously admitted Dr. Sugarman's report into evidence without affording S.C.C. the opportunity for cross-examination, but contends that such admission was harmless error. We disagree. R. 5:3-3(g) makes clear that "report by an expert appointed by the court may be entered into evidence upon the court's own motion or the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties." Dr. Sugarman was not available for cross examination, rendering his report inadmissible. The trial judge relied substantially on this report because it contained medical evidence, which supported the conclusion that the weapons could not be returned to S.C.C. We need not elaborate further because it was so obvious that the trial court needed the evaluation of Dr. Sugarman to buttress the conclusion that the weapons not be returned to S.C.C.

We further observe that Dr. Sugarman indicated in his April 23, 2001 report that the situation with S.C.C. could stabilize during the next two years with "the continuation of psychiatric or neurological assistance" and the issue of returning his weapons to him "could then be revisited." In a sense, Dr. Sugarman's report was stale by the time it was used by the court in May 2005. Additionally, the testimony by his former wife and daughter made clear that there was no contact for a five-year time period. We therefore consider it essential that Dr. Sugarman re-evaluate S.C.C. so that his current mental status can be assessed to determine if the forfeiture of weapons still is necessary because S.C.C. constitutes a threat to the public health, safety or welfare. N.J.S.A. 2C:58-3.

S.C.C. has indicated the funds that he previously lacked to pay his share of Dr. Sugarman's fee are now available to him because of a refinancing of the house he inherited from his mother. He should therefore be in a position to pay his share of Dr. Sugarman's fee and thereby expedite this matter, especially in view of the extended period of time in which it remained untried at the trial level.

With regard to the remaining issues, in Point I, S.C.C. argues that the state forfeiture motion was filed in an untimely manner. There is nothing to indicate that a jurisdictional motion had ever been made and the matter was carried numerous times since 2000. It is also clear that the time period from which the motion runs is the date the prosecutor's office becomes aware of the seizure, not from the date of the seizure. State v. Saavedra, 276 N.J. Super. 289, 293-94 (App. Div. 1994). Therefore, the time period would not run from July 19, 2000, when the weapons were first seized, but from when the prosecution was made aware of the seizure. The motion to forfeit was undated but the hearing on the motion was initially scheduled for December 8, 2000. The postmark on the letter mailed to S.C.C. containing the notice of motion for forfeiture of the weapons was postmarked September 22, 2000 from the Bergen County Prosecutor's office. In any event, because S.C.C. had not filed a timely motion to dismiss, the trial court found that there was no evidence that the State was aware of the motion on the date of the seizure, and concluded the State was not aware earlier than late 2000. On the present record, we can not disagree with the trial court's conclusion.

Moreover, the eligibility to possess a weapon or a permit is controlled by N.J.S.A. 2C:58-3(c) which states that a permit is void at any time upon the finding that the permit holder is subject to any of the disabilities enumerated in the statute, including that the issuance of the permit would not be in the interest of the public safety, health, or welfare. State v. G.P.N., 321 N.J. Super. 172, 177 (App. Div. 1999). Thus, the permit may be revoked anytime upon a finding that the permit holder no longer qualifies for the permit. As a consequence, the 45 day provision would not bar the State from seeking to forfeit the weapons and revoke the FPIC permit.

Additionally, since we rule that it was erroneous not to produce Dr. Sugarman at trial and provide S.C.C. with an opportunity for cross-examination, the issue of adjournment is moot. S.C.C. sought adjournment to allow Dr. Sugarman a chance to reevaluate S.C.C.; this would yield the same result as the new trial we now order.

The weight of the evidence argument does not require extended discussion. With the admission and reliance on Dr. Sugarman's report, it is clear that the trial court's decision was based on sufficient evidence. We cannot substitute our findings for those made by the trial court when supported by substantial credible evidence in the record as a whole. In re Return of Weapons, 149 N.J. 108, 116-17 (1997).

 
Reversed and remanded for further proceedings consistent with this opinion.

The record on appeal reflects that sometime in April 2000, S.C.C.'s weapons were removed from the marital residence and were being kept in the home of K.J.C.'s father.

The weapons seized were more specifically identifed as: Smith & Wesson .38 caliber; Ruger Model Blackhawk .44 Magnum; Glenfield Model 60.22 caliber rifle; Remington Magnum; and 1 Compound Bow.

R.S. testified that she changed her name from R.C. to R.S. because S.C.C. "isn't a father figure to me. My mom is a mother figure to me and I wanted to have her last name."

(continued)

(continued)

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A-5811-04T3

RECORD IMPOUNDED

June 20, 2006