STATE OF NEW JERSEY v. RAYMOND V. LUCY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1593-08T41593-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND V. LUCY,

Defendant-Appellant.

___________________________________

 

Submitted October 28, 2009 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Somerset County.

Evan F. Nappen, P.C., attorneys for appellant (Louis P. Nappen, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Jamin Cooper, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Raymond V. Lucy appeals the Law Division's November 31, 2008, order granting the State's application for an order prohibiting the return of certain firearms. We affirm.

I.

In January 2008, Lucy was the owner of four firearms that he had lawfully purchased in the State of Connecticut. At that time, the firearms were located at his residence in North Plainfield. They were removed by members of the North Plainfield Police Department on January 9, 2008, as the result of a 9-1-1 call made by Lucy's wife, Amy Marcus.

According to Lucy's testimony, he had driven the firearms to his mother's home in Connecticut on January 8, intending to leave them there in anticipation of a job interview with the United States Border Patrol. However, he testified that he got a late start because of "discussions" with Marcus that "led to some hurt feelings back and forth." Although he had intended to stay overnight with his mother, Lucy decided not to disturb her because he arrived at her home at about 10:30 p.m. Consequently, he returned to his home in North Plainfield with the firearms.

Lucy arrived home early on the morning of January 9. He and his wife "entered directly back into the argument." At some point, Marcus left the bedroom to get a heating pad, and when she returned "the argument started again." According to Lucy, he said: "[W]hat if I had a gun to my chin now, what would that make you do?" Marcus then left the room again, and Lucy followed her into the living room. He described her as using the antenna of a cordless telephone as "a teacher with a pointer in [his] face." He became "agitated" and "took the phone out of her hand and broke it."

Marcus's testimony was different:

A. There had been a lot of different issues that went on. I know Ray hadn't slept for a couple of days. I didn't sleep the night before. But basically he wanted to go up to Connecticut. He discussed that with me. To see his family. I pretty much refused and we had had issues with me going up to see his family. That was an issue of contention. And that started to escalate a lot of different things. He did go up to Connecticut. We have one car. So there's that -- that's part of the issue too. I -- I spent time with a male friend of mine who I had had relations with many years ago and that also escalated the situation.

Q. And when was that? What --

A. While he was up in Connecticut. So, with all of that going on and us having had history of lots of arguments and lack of sleep and not knowing how to handle a situation, there was a big blow up when he got back. I actually convinced him to come back because he wasn't going to come back, and he was just going to sleep wherever. It was -- it was one of those situations, and he came back and the argument just exploded from there. And we were saying things that just got out of hand.

Marcus further testified that, after she returned to the bedroom with the heating pad and the argument continued, Lucy was in bed with the covers pulled up. He asked her: "What if I had a gun to my chin right now?" She demanded several times that he pull the covers down, but he refused. Marcus then left the room. When Lucy followed her, he had nothing in his hands. However, when the police subsequently retrieved the firearms, they found one of them, a loaded Ruger pistol, underneath the mattress in the couple's bedroom.

Marcus also testified that when they were in the living room, Lucy opened a sliding door and shouted: "I told my wife I wanted to kill myself and she doesn't care, she told me to do it." She then picked up the telephone to call the police, telling Lucy what she was going to do. She testified that he grabbed the phone out of her hand and broke it. She was eventually able to call 9-1-1 from another telephone.

The police report for the incident related the following interchange between Marcus and the investigating officer:

Upon my arrival, I spoke with Amy Marcus, who related that she was engaged in a verbal argument with her husband, Raymond Lucy, over personal matters when Lucy went into their bedroom. Lucy then yelled, "I'm laying in the bed with a 9MM and I'm going to blow my head off." Marcus related that she called the police when Lucy opened the sliding glass door and yelled, "I'm going to kill myself." Marcus related that Lucy is Bi-Polar, and she is afraid that he may hurt himself because he owns several firearms.

The police eventually retrieved four firearms from the couple's bedroom. Two flintlock pistols and "a loaded Bersa cal. 380 ACP pistol" were found in a black handbag in the closet. And, as previously mentioned, a "loaded cal. 40 Ruger F94 pistol" was found under the mattress of the couple's bed.

Lucy was evaluated by the psychiatric emergency screening services at Somerset Hospital, after which he was treated on an in-patient basis at the Carrier Clinic for eleven days. The treatment at Carrier was voluntary, although Lucy apparently felt pressured into agreeing to go there.

On January 24, 2008, Lucy requested that the North Plainfield Police Department return the weapons, stating that they "were due to be returned to Connecticut on the day of the confiscation" and that he was "still intent" on returning them to Connecticut. The Somerset County Prosecutor objected to the return of the firearms by letter dated May 1, 2008. Lucy again requested return of the firearms, through a letter from counsel dated May 9, 2008.

On October 14, 2008, the Law Division judge held a hearing to determine whether the firearms should be returned. The State offered the testimony of North Plainfield Police Lt. Gerard Clyne, who testified about the Department's investigation and concerns with respect to Lucy's request that the firearms be returned to him. Marcus testified about the incident, as well as her belief that Lucy would not be a danger to her, to himself, or to others if the weapons were returned. Lucy also testified in support of his application.

Lucy offered the report of Dr. Anthony Todaro, a licensed psychologist. Todaro, who did not testify, reached the following conclusions in his report:

In summary, it can be stated with reasonable psychological certainty that Mr. Lucy poses no threat to himself or the environment or to our society. He is definitely safe in handling of firearms and he has been trained to do so with his stay in the service. There is no evidence of any malfeasants or any misuse of any weapons. In speaking with his wife, she feels perfectly safe with his handling firearms or she would have made an active effort to prohibit them due to the fact that she is a psychiatric nurse and is knowledgeable in such matters. Her assessment of him is one that is positive and essentially she feels that their relationship has progressed significantly due to the efforts of Dr. Jeffrey Danco, a psychologist at the American Institute for Counseling where they attend psychotherapy on a regular basis.

. . . .

In speaking with Dr. Danco subsequent to this incident and since he has been treating him for five months since the incident, it is clear that a bipolar II disorder would be the possibility of hypormania at one time. Perhaps there was some rebound affect from his being in a semi-depressed mode in an argument and it is not uncommon for psychiatric hospitals to focus in on bipolar disorder II that is a single episode and not as serious as bipolar 1, and can easily go into remission. He obviously defers Axis II which is one which has had an underlying dysthymia with this gentleman which is not danger[ous] to him, but because of his somatic difficulties have caused a great deal of problems.

Carrier Clinic, not dealing with the GERD, colitis, and motor vehicle accident that exacerbates the somatization type disorder, minimized his Axis III. Axis IV - relationship with family, support group and financial as stressors, part of this is definitely true and is being addressed at this time by Dr. Danco who feels that they have made significant progress as well as by his wife, Amy Marcus, who feels that he has made substantial progress.

Dr. Danco is concerned that this record at Carrier Clinic and PESS will leave him with an unjustified stigma insofar as his mental health is concerned, this was a transient incident and there is absolutely no danger that Dr. Danco can see in this person's functioning.

Following the completion of testimony and argument by counsel, the judge granted the State's request and prohibited the return of the firearms to Lucy. The judge first found, based largely on Todaro's evaluation, that Lucy was not barred from possessing firearms pursuant to N.J.S.A. 2C:58-3(c)(3) (any person who has ever been confined for a mental disorder), based upon the differential diagnosis of bipolar disorder or the inpatient treatment at the Carrier Clinic:

Now what's pointed out by State is under three, and discussed by counsel, [being] confined for a mental disorder. And then the second part of that. Unless any of the foregoing persons produces a certificate from a medical doctor, psychiatrist, I take it psychologist would be included, licensed in the state of New Jersey that he is no longer suffering from particular disability in such a matter that would interfere with him handling firearms. Clearly we have Dr. Todaro's report indicating that presently he voices the opinion that there shouldn't be [a] fear with regard to his hospitalization at Carrier Clinic which is a psychiatric hospital. For eleven days.

Clearly Mr. Lucy had an episode on January the 9th which led to the police being called, which led to his being brought to PES, which is the Psychiatric Emergency Screening Services crisis team at Somerset Medical, and that they reviewed the case and apparently over -- over his objection had him committed to Carrier Clinic for a period of time, and he stayed there for about eleven days receiving medication and treatment.

As part of the admission process they indicated that his judgment at that point was impaired. And on their axis it's listed as a mood disorder not otherwise specified, personality disorder not otherwise specified. They point out as to recommendations, patient offered voluntary hospitalization but refuses. Patient meets criteria for committal [a]nd so he was committed to Carrier Clinic.

On the other hand, with regard to that issue, looking at the report offered by Dr. Todaro, given the passage of time, given the treatment, given the testing that occurred with Dr. Todaro, including the clinical interview and seven hours of psychological testing and interview of family, comes to the conclusion that there's no particular diagnosis on axis one, but on axis two adjustment disorder not otherwise specified in remission with alleged bipolar disorder tendencies. So you have to conclude that he's not suffering from a psychiatric illness at this time.

Then we get to where the issuance would not be in the interest of public health, safety, welfare. And I think that is where the heart of the issue comes, because now we're hearing from the police department about their concerns about Mr. Lucy and his conduct and the fact that he has firearms, loaded firearms. Clearly Ms. Marcus became very concerned for the welfare of her husband, thought that he was going to commit suicide. Thought that he threatened to commit suicide and she called the police. She obviously knew he had guns and he says things to her like I'm laying in bed with a nine millimeter. I am going to blow my head off. Obviously anybody would be concerned. And then he apparently yells out the window, I am going to kill myself. Obviously anybody would be concerned about that type of conduct. She did the right thing to call the police.

Obviously the police are concerned. They don't want people killing themselves. They don't want people who are in the process of killing themselves killing somebody else in the process. Like the neighbor next door when the bullet goes through his head and into the head of the guy next door. Police have legitimate concern for that kind of conduct. You would expect they would. You would hope that they would have that kind of concern. For the safety of the community.

It's apparent to me that [on] this particular night two people were extremely upset, angry. Ms. Marcus decides -- describes herself as very angry, that she flew into a rage and that he was angry. That she was afraid for her own welfare. And she apparently has some of her own issues.

Frankly, Mr. Lucy's testimony falls apart when he describes his conduct that evening. I was sitting here listening to him wondering how this could possibly fit together because it doesn't fit together. I get into a big argument with my wife and I know that sometime in the future I'm going to go be tested by the Border Patrol police, so I decide to take my guns to Connecticut. But my wife says I'm not going with you, so I drive umpteen hours to get there and I then arrive at 10:30 at night and I decide it's too late. I don't want to wake my mother. So I turn around and drive back.

And he first tells me that he keeps all of his guns in a safe condition. Meaning the magazine is not inserted into the gun. It's kept in a case. It's all secure. Why would you load the gun to take it to mom up in Connecticut? And then have to come back and have to go through the process of unloading it and making it clear again. See, that doesn't make sense. That -- that testimony doesn't make sense. I've learned that what doesn't make sense isn't the truth.

That most people normally operate in a sensi[ble] fashion. And why [do] you keep some guns in the closet and another gun under the bed? It is under the bed because that is where he put it when he knew the police were on their way. See, that makes sense. [The] question comes down to, is there a legitimate concern for the health, safety and welfare of this community? For this person to have guns? Given his conduct, yes, there is. A very legitimate concern for the health, safety and welfare of the community.

When the police lawfully take possession of a firearm [the] Court concludes that the return of the firearm to its owner at a time when the owner would be disqualified from obtaining a permit to acquire the firearms constitutes a transfer that is prohibited by the statute. State v. Cunningham, 186 N.J. Super. 502 [(App. Div. 1982)]. [The] question put forth in Cunningham is not whether the owner presently has a firearm purchaser identification card but whether he has the ability to obtain a firearm purchaser identification card. [In] Cunningham the Appellate Division was explicit that there could be situations when without the owner using the gun unlawfully the police would be authorized to seize the gun in order to protect the public from danger.

One such situation may be where seizure might be appropriate when a person loses the mental capacity to appropriately handle the firearm, putting the public at risk. This is not criminal conduct. But it doesn't have to be criminal conduct. We don't have to wait for the gun to go off. We don't have to wait for Mr. Lucy to shoot somebody in order to prevent him from doing so.

Under this section, public health, safety and welfare, the language means that the statute can be tailored to individuals, and if a particular individual is deemed unfit to carry a gun he may be denied a permit even though no specific statutory enumeration excluding him [because] the issuance of permit would be contrary to the public interest. See Burton v. Sims, 53 N.J. 86 [(1968)]. Appeal denied to the U.S. Supreme Court, 89 S. Ct. 1486 [(1969)].

There is a sound reason to prevent Mr. Lucy from obtaining a purchasers identification card and that is the safety, health, [and] welfare of the community. Given what's gone on in this case, I agree that the police acted in an appropriate manner in confiscating the guns, and they're acting in an appropriate manner in denying him a permit to purchase so that he can get his guns back.

This appeal followed.

II.

We first address our standard of review. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999) (citing State v. Jamerson, 153 N.J. 318, 341 (1998)). "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." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (internal citation omitted); see also Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 541 (App. Div. 1994) ("[I]n our review of the results of a bench trial the factual findings of the trial judge, his assessments of credibility, and the discretionary decisions he may have made are entitled to great deference." (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974))). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Because the firearms had been lawfully purchased in another state, the judge correctly viewed the issue as whether Lucy was then qualified to obtain a permit to purchase firearms in New Jersey. N.J.S.A. 2C:58-3(c) governs the issuance of handgun purchase permits and firearms purchaser identification cards. The statute provides, in part, as follows:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:

. . . .

(2) To any drug dependent person as defined in section [N.J.S.A. 24:21-2], to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;

(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card;

. . . .

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare[.]

[N.J.S.A. 2C:58-3(c).]

In seeking to bar the issuance of a permit, or in this case the return of the weapons, the State bears the burden of proof "by a fair preponderance of the evidence." Weston v. State, 60 N.J. 36, 46 (1972). "[T]he statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public." State v. Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982). See Application of Marvin, Jr., 53 N.J. 147, 156 ("[T]he sole issue is [the applicant's] current qualification to purchase . . . weapons."), cert. denied, 396 U.S. 821, 90 S. Ct. 62, 24 L. Ed. 2d 72 (1969). The broad catch-all provision of section (5) relates "to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest." In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).

III.

We now turn to the application of the law to the facts of this case, as found by the hearing judge. It is apparent from our review of the record that Lucy misinterprets the judge's factual findings. The judge was not "confused" about how the firearms were transported to Connecticut, as Lucy asserts. Instead, the judge did not believe Lucy's testimony that they had been transported to Connecticut. We repeat that section of the oral decision.

And he first tells me that he keeps all of his guns in a safe condition. Meaning the magazine is not inserted into the gun. It's kept in a case. It's all secure. Why would you load the gun to take it to mom up in Connecticut? And then have to come back and have to go through the process of unloading it and making it clear again. See, that doesn't make sense. That -- that testimony doesn't make sense. I've learned that what doesn't make sense isn't the truth.

That most people normally operate in a sensi[ble] fashion. And why you keep some guns in the closet and another gun under the bed? It is under the bed because that is where he put it when he knew the police were on their way. See, that makes sense.

(emphasis added.)

Although the findings might have been articulated with greater clarity, it is clear to us that the judge concluded that Lucy's story about taking the guns to Connecticut and then bringing them back because he did not want to wake his mother was a fabrication to cover up the fact that he was actually holding a loaded gun under the bed covers when he told his wife he would kill himself.

That finding is supported by the record. Marcus's testimony and written statement merely state that Lucy wanted to visit his family in Connecticut. Neither mentioned that Lucy had taken the firearms with him. Lucy testified that he normally kept the Ruger in his dresser drawer and the magazine in his wife's dresser drawer, and that the Ruger was not loaded going to and returning from Connecticut. Yet, in explaining why it was loaded when found by the police, Lucy testified that he had not had a chance to "break down," or unload, the Ruger before he began arguing with his wife upon his return. Lucy's testimony does not make sense or appear credible when read in the transcript. It understandably did not appear credible to the judge when it was given in court. In addition, we note Marcus's testimony that Lucy repeatedly refused to put down the bed covers so she could see what, if anything, he had in his hands when he was claiming he had a loaded gun.

In terms of "the interest of the public health, safety or welfare," the issue before the hearing judge was not primarily whether Lucy would be a danger to Marcus if the firearms were returned. There was never a suggestion that he threatened to harm her with the Ruger. The issue was whether he would be a danger to himself if the firearms were returned. In light of the judge's factual findings, we conclude that the judge's legal conclusion was supported by the facts. A finding that an applicant "handled" a firearm "negligently or recklessly" can be disqualifying. State v. Cunningham, supra, 186 N.J. Super. at 507. See also In re Osworth, supra, 365 N.J. Super. at 79.

Consequently, we affirm the order prohibiting the return of the firearms to Lucy for all of the reasons set forth above.

 
Affirmed.

On April 30, 2008, the State of Connecticut revoked Lucy's permit to carry firearms, based on the incident described above.

Lucy's citation of District of Columbia v. Heller, ___ U.S. ___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), suggesting that New Jersey's firearms statute is unconstitutional, is inapposite. Heller involved a total ban on handguns, whereas N.J.S.A. 2C:58-3(c) creates a presumption of entitlement to a permit absent a statutory disqualification.

(continued)

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A-1593-08T4

November 19, 2009