STATE OF NEW JERSEY v. ANTONIO SINAGRA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7048-03T17048-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTONIO SINAGRA,

Defendant-Appellant.

________________________________________

 

Submitted October 19, 2005 - Decided February 7, 2006

Before Judges Parker, Grall, and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FO-14-164-04.

Evan F. Nappen, attorney for appellant (Richard V. Gilbert, on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Antonio Sinagra appeals his conviction for contempt of a domestic violence order. The conviction arises out of the removal of a gun by police from defendant's safe on March 5, 2004. A final restraining order (FRO) issued on July 25, 2002, prohibited defendant from possessing any and all firearms. After police recovered the weapon, defendant was arrested and charged with contempt of a domestic violence order in violation of 2C:29-9(b).

Defendant unsuccessfully moved to suppress the weapon seized. Thereafter, a bench trial was conducted before Judge John B. Dangler, Superior Court, Family Part. Defendant was found guilty of the charge and sentenced to serve ten days in the Sheriff's Labor Assistance Program (SLAP), fined $50 and assessed a $75 Safe Neighborhood Act penalty. This appeal followed.

The evidence presented during the suppression hearing and bench trial, if credited, consisted of the following. On July 18, 2002, defendant's spouse, Rosa Sinagra, sought and was granted a temporary restraining order (TRO) against defendant. The order, which was personally served upon defendant, prohibited defendant from "possessing any and all firearms or other weapons as described herein and must immediately surrender these firearms and weapons, described below to the serving officer. Firearms: HANDGUN LOCATED IN A SAFE, BACKROOM BARBERSHOP." Inexplicably, the weapon was not seized and defendant did not surrender it. A Final Restraining Order (FRO) was issued on July 25, 2002. While the FRO did not direct law enforcement officers to seize any weapons, the order prohibited defendant from possessing "Firearm(s)any and all". Defendant subsequently filed for divorce.

In June 2003, Rosa retained Fred D'Arcangelo to represent her in connection with the dissolution action. Rosa advised her attorney that she believed defendant was concealing money and a gun in a safe located in the back room of defendant's barbershop. While defendant was in Costa Rica, D'Arcangelo filed an ex parte order to show cause seeking authorization to enter defendant's premises to determine whether the items were in fact located in the safe. Despite the information provided by Rosa, D'Arcangelo's certification in support of the Order to Show Cause made no reference to a suspected weapon. He only certified that his client believed defendant was concealing marital assets.

On February 20, 2004, the court issued an ex parte order. The order authorized Rosa to retain a locksmith and, in the presence of a law enforcement officer, to change the locks on the entire first floor of the premises and to secure the safe. The locks were changed and the safe secured on February 26, 2004. In accordance with the order, D'Arcangelo served copies of the pleadings upon Vincent Kramer, the attorney representing Sinagra in connection with the divorce.

Defendant returned from Costa Rica on March 3, 2004. When he arrived at his apartment, which was located in the rear of the barbershop, he was met by Kramer. D'Arcangelo arrived shortly thereafter. The three men entered the premises and proceeded to open the safe. When opened, it contained, among other items, two locked strongboxes. Defendant opened the boxes, one of which contained bank envelopes filled with cash totaling $100,000. Underneath these envelopes was a handgun, ammunition and shells. The strongboxes were locked and defendant kept the keys. D'Arcangelo retained possession of the keys to the safe after it was locked.

The next day, D'Arcangelo contacted the Union County Prosecutor's Office, Domestic Violence Unit, and reported that a gun had been found in defendant's safe. D'Arcangelo was directed by the Prosecutor's Office to file a report with the Long Hill Township Police Department, which he did on March 5, 2004. D'Arcangelo contacted Kramer and told him the two of them were supposed to go to the Long Hill Township Police Department. Kramer was not sure why he was told to go to the police station, "other than representation," but he went and was present when D'Arcangelo provided a written statement to the police. Kramer did not give any information to the police because he thought he would be violating his relationship with his client. Once the police obtained D'Arcangelo's statement, the officers proceeded to defendant's barbershop to retrieve the weapon. Both attorneys, in separate vehicles, followed the officers to the shop. Kramer entered the shop and advised defendant of the situation. Kramer then went back outside. While Kramer was talking to D'Arcangelo, the police entered the barbershop and secured defendant's signature on the consent to search form. Kramer subsequently witnessed defendant's signature. After defendant gave the strongbox keys to the police, the officers retrieved the weapon. It was loaded with seven bullets. They also retrieved forty-seven, twelve-gauge shotgun shells. Defendant was arrested and charged with domestic violence contempt.

Defendant filed a motion to suppress the admissibility of the seized weapon. Judge Dangler conducted the suppression hearing on June 15, 2004. Defendant argued that his Fourth Amendment rights were violated because he did not validly consent to the search of his apartment. He further argued his Fifth Amendment rights against self-incrimination were violated when he was forced to surrender the weapon. Finally, defendant argued his Sixth Amendment rights were violated because his attorney's conflict of interest prejudiced him to the degree that a fair trial was impossible.

The State called D'Arcangelo and the two Long Hill Township police officers to testify at the suppression hearing. Defendant called no witnesses. At the conclusion of the hearing, Judge Dangler denied the motion. He found the evidence indicated the search was properly conducted, defendant voluntarily consented to the search, and defendant had adequate assistance of counsel. The judge also found defendant's contentions that Kramer provided ineffective assistance of counsel and should have removed himself from the case too speculative because neither Kramer nor defendant testified. The judge stated:

The area now is the area that the defendant suggests that there should have been some different actions taken by Mr. Kramer. The arguments of the defendant's attorney is that once Mr. Kramer brought forth this information about the presence of the gun and participated, in fact, in informing the police of this and -- that at that moment the defendant's attorney suggests that Mr. Kramer should have advised his client that he may very well be deemed now a witness in this matter and that it would be prudent and advisable for his client to now seek legal advice on handling this matter by another attorney. That's the argument that Mr. Nappen brings forth.

And he suggests that because that wasn't done, that there really was improper advice given to the defendant on, on how to, how to handle this matter. He doesn't suggest the outcome might have been any different. Certainly, I think, a unique set of circumstances here. But he says at that point that there was basically ineffective counsel, that is Mr. Kramer should not have continued his involvement as the attorney for Mr. Sinagra and necessarily participated in allowing this consent search to take place.

It was brought out in the papers that were submitted, particularly by Mr. Nappen, but I think the prosecutor mentioned it as well, we have a rule of professional conduct. And I, I call to the record the rule under 3.3, subsection A2, which basically puts a burden on an attorney to disclose a material fact to a tribunal, which could very well be a Court, and I trust it could also be a police department, when disclosure is necessary to avoid assisting an illegal criminal or fraudulent act by the client.

Again, we, we don't know what Mr. Kramer said to his client, nor do we know what Mr. Sinagra told Mr. Kramer. Neither [of them were] called -- and I believe it is unfair to speculate whether they did or didn't have a discussion about all of this. We do not know whether Mr. Kramer said to Mr. Sinagra that at this moment I can advise you, you should get, if you wish a separate lawyer, a different attorney to advise you. We don't know whether he said that or he didn't say that. Again, no testimony has been presented to the Court to show either way. No one else would have been -- overheard the conversation. The attorneys -- at least Mr. D'Arcangelo said there was some discussions, but he wasn't in the area when that discussion took place. And both police officers indicate that there were some discussions. I think initially they indicated that, that Mr. Kramer went into the barber shop unaccompanied by anyone and spent a few minutes -- the testimony seems to be three to five minutes in meeting with Mr. Sinagra on this.

It isn't clear whether there had been previous telephone calls between Mr. Kramer and his client to give his client a heads up that this matter would be taking place. Again, no testimony on the record to tell the Court either way.

I find from what I have heard in the testimony of the witnesses that Mr. Kramer acted properly in, in advising the police department of the findings of the gun. He, I find, should have been well aware -- I don't even know if he represented his client at that point. But there was a restraining order in place. I, I find that he should have been aware of the presence of a restraining order. The temporary restraining order particularly is very clear about the handgun. And when he discovered the gun I find that he conducted himself properly as an attorney at law, an officer of the Court in accompanying Mr. D'Arcangelo to the police department to so inform of their findings.

The next question that is presented, again, is should Mr. Kramer have stepped out of the case. Again, it's being raised that he became a witness. Well he certainly was a witness to the signature of Mr. Sinagra to the document after he had apparently spoken with Mr. Sinagra. Again, we don't know what he said and what was said. And again, I don't feel the Court is in a position to speculate either way. But at that point the argument is being made that, that there should have been a new attorney brought into the matter. And again, I can't make a finding on that because I don't know whether Mr. Kramer properly informed Mr. Sinagra and Mr. Sinagra declined to seek a new attorney, or whether Mr. Kramer never brought the subject up.

I do find that Mr. Sinagra was certainly -- he appears to be educated, professional person in his own right, seems to be of an age and, and a demeanor that he is clearly understanding of the English language and of the laws. And that I find that he did have time to speak with his attorney. From all of the testimony presented there has been no testimony to suggest that he was coerced or pressured to consent to the search of the safe.

The bench trial was also conducted before Judge Dangler on June 29 and August 10, 2004. The State called five witnesses: D'Arcangelo, Kramer, and three Long Hill Township police officers. The defendant did not testify or call any witnesses on his behalf. At the conclusion of the State's case, defendant renewed his motion to suppress the evidence, urging that the testimony of Kramer during the trial made it "clear as to what his role is and what transpired there." The judge again denied the motion. He concluded:

Again, he doesn't indicate and there's no indication that he said anything about what his client said or whether his client knew the gun was there, didn't know whether the gun was there. There's been no testimony presented by Mr. Kramer in this case to reveal any particular conversation that he had with his client, the defendant, Mr. Sinagra.

Mr. Kramer's presence again today called by the prosecutor, again to what he did, and he did in compliance with the finding of the gun. I find [he] was -- was in -- also compliance with the ethical obligations that he had as an attorney at law. I don't find that his testimony today or his cooperation with the police in any way classified him as a witness and, therefore, called upon him an obligation to inform Mr. Sinagra of the fact that perhaps at that point he should step out of the case. Again, there's been no testimony presented as to what he told Mr. Sinagra. Perhaps he did tell that to Mr. Sinagra. We don't know, because it is the attorney/client privilege, and -- and at this moment the privilege lies with Mr. Sinagra until such time as he chooses to waive it. The attorney has no right to do so.

So I do not find that the participation by Mr. Kramer, both in testimony today as well as his cooperation with the police, caused a -- a tainting, if you will, of the application to search. This was a fully consented to search. Again, he testifies he had brief discussion with this -- with Mr. Sinagra, and he indicates that Mr. Sinagra appeared to cooperate and signed the [consent to] search.

Following summations, the trial court found defendant guilty of contempt of a domestic violence order. In forming his opinion, the judge found as a fact that the gun was in the safe. He noted that only defendant had keys to the safe and there was no evidence that someone else could have put the gun in the safe. Further, he found the TRO was valid on its face and clear in its content. The TRO specifically listed the gun, described the gun, and indicated where the gun was located. The judge concluded that to the extent defendant forgot about the gun, as defendant had indicated in his written statement, the TRO would have reminded defendant of its existence and location. The judge reasoned that the fact that the police did not find the gun was immaterial because defendant's obligation to surrender was independent of the court's direction to the officers in the TRO to search and seize the weapons described.

Defendant raises the following points on appeal:

I. THE COURT BELOW ERRED BY NOT SUPPRESSING THE EVIDENCE RECOVERED FROM THE SAFE.

A. THE DEFENDANT DID NOT, AND COULD NOT HAVE KNOWINGLY AND VOLUNTARILY CONSENTED TO THE SEARCH UNDER THE CIRCUMSTANCES PRESENTED.

B. THE EVIDENCE WAS NOT OTHERWISE LAWFULLY SEIZED.

II. THE ABOVE CONFLICT AND IMPROPER LEGAL ADVICE CAUSED DEFENDANT TO SUFFER FROM INEFFECTIVE ASSISTANCE OF COUNSEL.

III. THE FAILURE OF THE POLICE TO DISCOVER THE FIREARM IN 2002 CANNOT BE USED TO PROSECUTE MR. SINAGRA FOR CONTEMPT.

I.

After carefully considering the record and the written arguments advanced by defendant, we affirm the denial of defendant's motion to suppress substantially for the reasons articulated by Judge Dangler in his oral opinions delivered on June 15 and August 10, 2004. The findings of the judge are based upon sufficient credible evidence contained in the record and could reasonably have been reached based upon that evidence. State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964).

We further conclude that even in the absence of a finding that defendant knowingly and voluntarily consented to the search of his safe, the seizure of the weapon would have been valid pursuant to the inevitable discovery doctrine. State v. Sugar, 100 N.J 214, 238 (1985) (Sugar II).

Under the doctrine, an otherwise invalid seizure may be sustained if the State can establish by a preponderance of the evidence that the evidence seized would have ultimately or inevitably been discovered by lawful means. Ibid. The Court in Sugar II set forth the requisite proofs the State must satisfy when it seeks to uphold the warrantless seizure of evidence:

We require the State to show that (1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[Id. at 238].

Here, once D'Arcangelo reported to the police the circumstances surrounding the discovery of the gun, proper, normal and specific investigatory procedures would have revealed: (1) the existence of a TRO that specifically described a gun located in defendant's safe and expressly required defendant to surrender all weapons; (2) the existence of an FRO that prohibited defendant from possessing any weapons; (3) an ex parte order issued February 20, 2004, by the Superior Court Family Part, permitting defendant's spouse to seal defendant's safe; and (4) an inventory of the safe's contents conducted by defendant's attorney and his spouse's attorney, in the presence of defendant, which revealed a weapon similar to that described in the original TRO.

These facts could have been used to establish probable cause for the issuance of a warrant to seize the weapon. Consequently, any claim that defendant did not knowingly and voluntarily consent to the search is negated by the likelihood that the weapon ultimately and inevitably would have been discovered. Ibid.

II.

We find no merit in defendant's contention that he received ineffective assistance of counsel. It is well settled that a person's Sixth Amendment right to effective assistance of counsel attaches only after the onset of formal prosecutorial proceedings. Kirby v. Illinois, 406 U.S. 682, 690, 92 S. Ct. 1877, 1882-83, 32 L. Ed. 2d 411, 418 (1972). No such proceedings had commenced against defendant as of March 5, 2004. See also State v. Sanchez, 129 N.J. 261, 264 (1992). Nonetheless, to the extent defendant contends that his consent to permit the search of his premises was improperly influenced by the conduct of his attorney, the circumstances surrounding Kramer's representation are relevant to a determination of the voluntariness of the consent to search form defendant executed. State v. Humphreys, 89 N.J. Super. 322, 325 (App. Div. 1965).

Defendant urges that Kramer's ineffective assistance of counsel was evident in three ways. First, he became a witness when he accompanied defendant, D'Arcangelo and defendant's friend into the back room of the barbershop to unlock the safe and inventory its contents. Second, Kramer should not have gone to the police station and revealed confidential information about his client. Third, Kramer may have advised his client to consent to a search when he should have advised against it.

Addressing Kramer's presence at defendant's shop when defendant first returned from Costa Rica on March 3, 2004, we are satisfied that Kramer's action can reasonably be viewed as protecting his client's interest while the inventory of the safe took place. It is appropriate for an attorney to appear with his adversary to inspect documents and other items material to a matter in dispute. See State ex rel. S.G., 175 N.J. 132, 139 (2003) (quoting In re Dolan, 76 N.J. 1, 9 (1978). Here, defendant's spouse alleged defendant was concealing marital assets in a safe located at his barbershop. Kramer, in appearing on behalf of his client, was merely safeguarding his client's interests. See Broder Credit & Collection Serv. v. Burton, 193 N.J. Super. 474, 480 (App. Div. 1984).

Next, while there is some dispute as to whether Kramer was ordered to appear at the Long Hill Township Police Department or whether that was simply his interpretation, Kramer testified that he appeared in a representative capacity and did not give any statement to the police because of his concern that such conduct would breach his professional relationship with his client. The trial judge specifically found, "there's no indication that [Kramer] said anything about what his client said or whether his client knew the gun was there." Nothing in the record demonstrates otherwise.

Finally, the specifics of any advice Kramer gave to defendant on March 5, 2004, when Long Hill Township Police arrived at defendant's shop to retrieve the weapon, were never before the trial court at the suppression hearing or trial. During the suppression hearing, the court noted that the contention Kramer provided ineffective assistance of counsel in connection with the seizure was speculative because there was no testimony presented from Kramer or defendant on that issue. Later, during the trial, defense counsel advised the court that a conscious decision had been made not to call Kramer during the suppression hearing, but that since Kramer had been called as a witness on behalf of the State during the trial, albeit over defendant's objection, Kramer's representation was now before the court.

Kramer testified he did advise defendant about whether or not to give consent for the search. Defense counsel posed no further questions in this area. While a defendant is the holder of the privilege against disclosure of confidential communications with a lawyer, and the client is the only person who may waive the privilege, assertion of the privilege is not without exceptions. An attorney, for example, may freely testify about conversations with his client concerning trial strategy if the client seeks to overturn a conviction on the ground of ineffective assistance of counsel. State v. Bey, 161 N.J. 233, 296 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000); State v. Deutsch, 229 N.J. Super. 374, 389 (App. Div. 1988) (Stern, J.A.D., concurring). Likewise, the privilege has been deemed waived where the voluntariness of a client's confession is questioned based upon allegations that a client's attorney provided improper advice regarding the validity of a confession. Humphreys, supra, 89 N.J. Super. at 325. Here, defendant alleged ineffective assistance of counsel and had the full opportunity to place the relevant facts before the trial judge to support this claim, but he chose not to do so.

Moreover, Kramer's subsequent testimony at the trial as a witness on behalf of the State breached no duty owed to defendant or created no conflict. RPC 3.7(a) allows an attorney to be a witness at a trial against a client's interests, and to remain that client's counsel if "the testimony relates to an uncontested issue[.]" "'[T]he ethical prohibition' embodied in RPC 3.7 'is not against being a witness, but against acting as trial attorney in a case where it is likely that the attorney's testimony will be necessary.'" State v. Dayton, 292 N.J. Super. 76, 84 (App. Div. 1996) (quoting State v. Tanksley, 245 N.J. Super. 390, 393 (App. Div. 1991)).

Kramer was not the trial attorney in defendant's domestic violence contempt proceeding. Further, even if he had been trial counsel, his testimony was at best cumulative as distinguished from necessary. Testimony is considered "necessary" if concealing it would prejudice the client or prevent the court from making a just decision. Id. at 86 (citing Freeman v. Vicchiarelli, 827 F. Supp. 300, 306 (D.N.J. 1993)). The presence of the gun in defendant's safe was a fact issue that was uncontested. D'Arcangelo reported the location of the gun to the Prosecutor's Office, and it was D'Arcangelo who provided a statement to the police. Kramer provided no information to the police surrounding the circumstances of the gun being in the safe. He testified only as to what happened on the day the weapon was discovered and on the day it was seized. We therefore find no basis to reverse defendant's conviction based upon a claim of ineffective assistance of counsel.

III.

Defendant contends the failure of the police to discover the firearm in 2002 cannot be used to prosecute him for contempt. To do so, defendant urges, implicates his privilege against self-incrimination. To support this position, defendant cites to Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968), where the United States Supreme Court invalidated the petitioner's prosecution under two provisions of the National Firearms Act, which imposed penalties for failing to disclose the possession of certain firearms but also allowed prosecution for possession after the disclosure was made. Id. at 100, 88 S. Ct. at 732, 19 L. Ed. 2d at 934. The Court found the Fifth Amendment privilege against self-incrimination provided a complete defense "either for failure to register [a firearm] under 5841, or under 5851, for possession of a firearm which has not been registered." Id. at 99, 88 S. Ct. at 731, 19 L. Ed. 2d at 934. See also Marchetti v. United States, 390 U.S. 39, 60-61, 88 S. Ct. 697, 709, 19 L. Ed. 2d 889, 905 (1968).

Defendant's situation is entirely distinguishable from both Haynes and Marchetti. Through the TRO, defendant was afforded the opportunity to surrender the gun without subjecting himself to prosecution. Further, as the trial court noted, if the police inadvertently overlooked the gun, defendant could have alerted them about the omission.

The facts in this case are more akin to State v. D'Orsi, 113 N.J. Super. 527 (App. Div. 1971), certif. denied, 58 N.J. 335 (1971), where defendant was charged with carrying a concealed weapon without first having obtained a permit. Id. at 529. Citing Marchetti, supra, the defendant argued that requiring him to admit he had the gun before he obtained the permit would have exposed him to criminal liability and violated his right against self-incrimination. Id. at 530-31. We distinguished Marchetti by finding that the defendant had an opportunity to lawfully apply for the permit, irrespective of the legal status of the gun. Id. at 531. We stated, "[The defendant] may not justify a distinct and separate unlawful act by a mere potential of self-incrimination when avoidance lay readily in his own hands . . . ." Ibid.

In this case, defendant's failure to surrender the weapon and his knowing possession of the weapon were separate unlawful acts. He cannot claim the Fifth Amendment protects him from self-incrimination when he had full opportunity to comply with the law without the threat of prosecution. Irrespective of whether the police should have found and retrieved the weapon, defendant was under an affirmative obligation to surrender it.

The trial judge found that defendant knowingly possessed the gun. In doing so, he rejected the argument of defense counsel, and presumably the explanation contained in defendant's written statement, that defendant had forgotten about the gun. The judge stated:

This is a criminal case, and State has to prove beyond a reasonable doubt the allegations here of possession. The Court refers to the temporary restraining order, which goes back to July 18th of 2002. Notwithstanding the argument made by Mr. Nappen, I find that the order was proper in its content. It was properly served personally by a police officer. It's not clear it's a sergeant, whether this was a officer out of Long Hill Township Police. It says Long Hill Township Police underneath the signature, so it could very well have been a Long Hill Township officer who served it, at approximately 4:52 in the morning on the 20th.

It's -- it's very clear in its -- its content. It was a restraining order, temporary restraining order issued on behalf of Mrs. Sinagra, and on particularly Page 2, Section 9, I find to be important in this case. It -- it talks about prohibition against possession of weapons. It's a very clear prohibition about possessing weapons, but in particular, and very specifically, it says firearms: handgun located in a safe, back room barbershop. Very clear. And then it says any and all others.

So I find first of all that this document signified when it was served on the defendant, the reminder if he had forgotten before that time that a handgun, that's reportedly located in the safe back room barbershop. The search warrant language contained on Page 3 of the temporary restraining order then spoke about handgun and rifle. It wasn't perhaps as particular as it normally could be, but it was sufficient, and the search took place.

We never heard testimony from the officer or officers who actually performed this search. The Court recognizes that only the rifle was confiscated. We don't know because, again, there's been no testimony, it was in the courtroom, where that rifle was located. Was the safe opened and the rifle taken out? Was the rifle previously taken out by the defendant and handed over to the officers? Was the safe ever opened? Were there questions between the officers and the defendant about the handgun, which was, again, very clear in the order. It is not clear to this Court what happened in that regard. What is clear, is obviously the handgun was not taken and it should have been, by the police officers or officers who conducted the issuing of this service of this temporary restraining order, and the following up with the execution on the warrant.

But I find at that point in time, if -- if Mr. Sinagra truly had left this gun and we don't know. It's suggested that it's been in there for years, but we don't know, because there was never any testimony presented by anyone as to how long the gun was in the safe, whether it had been removed during the search and put back. The Court can't speculate. But the Court is satisfied that S-6, the temporary restraining order, was, in fact, served on Mr. Sinagra and in that language would have reminded him had he read this. And -- and, again, he's been served with the document. Handgun located in the safe.

It's been suggested by Mr. Nappen that his client simply forgot about this, didn't recall it being there. That was the case when he was served with this, then I find that he should have turned the gun over. If the police inadvertently missed following up with securing it, he should have immediately notified the police; let them come back and get it. He certainly did not do that.

He is then served with a final restraining order, following the -- this case that was presented all in Union County. It continues with a prohibition against possessing weapons, any and all firearms. Again, if the language wasn't as specific in the temporary restraining order about the handgun in the safe in the back barbershop, perhaps there's an argument to be made by the defendant; he simply never recalled it being there, and he didn't knowingly withhold turning it over. But I don't find that to be the case here.

I find that this defendant clearly was aware of the presence of that gun, particularly at the time he was served with the temporary restraining order when it was very clearly spelled out. There was some search conducted in the house. It's not clear when and how it was done, who was present, because there was absolutely no testimony presented by either the State or the defendant on -- as to the -- as to the initial search when the restraining order was issued. But I find that there was proper notice to the defendant of the -- and if necessary refreshing his recollection of the presence of the gun.

We therefore conclude the trial judge's findings of fact and conclusions of law that defendant possessed the gun, and did so knowingly in violation of the FRO, are supported by substantial credible evidence present in the record. State v. Barone, 147 N.J. 599, 615 (1997).

Affirmed.

 

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