IN RE FIREARMS APPLICATION OF PETER SOFKO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2070-07T42070-07T4

IN RE FIREARMS APPLICATION

OF PETER SOFKO.

_________________________________________________

 

Submitted October 21, 2008 - Decided

Before Judges Skillman and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County.

Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, P.C., attorneys for appellant Peter Sofko (Robert D. Rosenwasser, of counsel and on the brief).

McManimon & Scotland, L.L.C., attorneys for respondent Township of Franklin (Leslie G. London, of counsel; Ms. London and Ted J. DelGuercio, III, on the brief).

PER CURIAM

This is an appeal from a judgment of the Law Division affirming the denial of a firearms purchaser identification card.

On March 29, 2007, appellant Peter Sofko applied to the Franklin Township Police Department for the card. By letter dated July 26, 2007, Lieutenant Robert Vornlocker notified Sofko that the Chief of Police had denied his application. The letter stated that the reason for the denial was that: "Corporal Rizzo's investigation revealed [that] [o]n 8/28/2006 you were involved in an incident [where] you discharged your Ruger 10/22 rifle from your back porch within 450 feet of occupied dwellings. The report of the incident indicated that you were advised that this act was unlawful at a prior incident."

Pursuant to N.J.S.A. 2C:58-3(d), Sofko requested a hearing in the Superior Court regarding the denial of his application. Corporal Rizzo testified at the hearing in support of the denial. He testified that Sofko had been charged as a result of an incident occurring on August 28, 2006 with a violation of a municipal ordinance prohibiting the discharge of a firearm under circumstances specified in that ordinance. However, the complaint charging this violation was dismissed. Despite the dismissal of the complaint, Rizzo testified that the alleged violation of the ordinance was the sole basis for the denial of Sofko's application.

Sofko also testified. Sofko, who is a hunter, acknowledged that he had discharged a firearm on his property on August 28, 2006. He stated that he had "brought a new scope . . . [which he] was sighting . . . on [his] property."

The trial court recognized that it had an obligation to make a de novo determination of whether a firearms purchaser identification card should be issued to Sofko. See Weston v. State, 60 N.J. 36, 45 (1972). The court found based on the testimony presented at the hearing that Sofko had "discharg[ed] his firearms off his back porch near other homes, near other public properties that are open to the public, open space areas." Based on this finding, the court denied Sofko's application without finding that his conduct had violated any municipal ordinance or posed any risk of harm to other persons or damage to property.

The denial of Sofko's application was based on N.J.S.A. 2C:58-3(c)(5), which provides in pertinent part: "No . . . firearms purchaser identification card shall be issued . . . [t]o any person where the issuance would not be in the interest of public health, safety or welfare." In Weston, supra, 60 N.J. 36, the Court construed and upheld the constitutionality of the predecessor to this section. The Court held that before an application for a firearms purchaser identification card is denied, "an opportunity should be given to the applicant to discuss the matter with the Chief, to be informed of the reasons for the denial and to offer any pertinent explanation or information for the purpose of meeting the objections being raised." Id. at 44; see also In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). Sofko's application was denied without affording him this opportunity.

The Court in Weston also held that the Chief of Police bears the burden of proof at a hearing on the denial of an application for a firearm purchaser identification card, and that the Chief's proofs "[o]rdinarily . . . would include presentation of his own testimony, that of the members of the police department who made the investigation and furnished reports to the Chief, any available lay or professional persons who furnished information which influenced the action taken by the Chief, and any admissible documentary evidence which played a part in the adverse decision." Id. at 46; see also Osworth, supra, 365 N.J. Super. at 78. The Chief's proofs obviously fell far short of this requirement. The Chief himself did not testify at the hearing, nor did the police officer who investigated the August 28, 2006 incident. As a result, the record does not contain any information regarding the details of that incident.

For these reasons, we conclude that the Chief's actions failed to comply with the procedural requirements of Weston both in his administrative review of Sofko's application and in his presentation of evidence at the hearing in Superior Court.

More fundamentally, however, the evidence presented at the hearing does not justify the trial court's conclusion that the issuance of a firearm purchaser identification card to Sofko "would not be in the interest of the public health, safety or welfare[.]" Although the dismissal of the municipal court complaint did not foreclose the trial court from finding that Sofko had violated the municipal ordinance prohibiting the discharge of firearms, see Osworth, supra, 365 N.J. Super. at 78-79, the court did not make such a finding, and it is not evident to us from the meagre proofs presented at the hearing that Sofko, in fact, violated the ordinance. Moreover, even if such a violation had been committed, this would not by itself justify the conclusion that the issuance of a firearm purchaser identification card to Sofko would not be in the interest of public health, safety and welfare. There is no evidence that Sofko's conduct posed any risk of harm to other persons or damage to property. The record does not indicate the manner or direction in which Sofko discharged his firearm other than the statements in the incident report that he was shooting at a groundhog and his testimony that he was testing a new scope purchased for his hunting rifle. Furthermore, there is no basis for inferring that Sofko would be likely to repeat this conduct in the future even though he is now aware the Franklin Township Police Department considers it to be prohibited. As far as the record indicates, the Chief did not undertake any inquiry to determine Sofko's personal character or general reputation. Therefore, we conclude that the Chief failed to carry his burden of demonstrating that the issuance of a firearms purchaser identification card to Sofko would not be in the interest of public health, safety or welfare.

 
Accordingly, the December 5, 2007 order affirming the denial of Sofko's application for a firearms purchaser identification card and the April 7, 2008 order of forfeiture of his JC Higgins Model 66 twelve-gauge shotgun are reversed, and the case is remanded to the Chief of Police to issue Sofko a firearms purchaser identification card and return the shotgun to him.

We note that the incident report stated: "On a prior incident Mr. Sofko was advised of the township discharge ordinance." However, the record does not disclose the nature of that incident, whether Sofko was charged with a violation of a municipal ordinance, or what he was told about the "discharge ordinance" at that time.

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A-2070-07T4

November 21, 2008