IN THE MATTER OF THE APPLICATION OF R.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2265-07T42265-07T4

IN THE MATTER OF THE APPLICATION

OF R.M. FOR A PERMIT TO PURCHASE

A HANDGUN AND A FIREARMS PURCHASER

IDENTIFICATION CARD.

_______________________________________________________________

 

Submitted December 16, 2008 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County.

Evan F. Nappen, attorney for appellant

R.M. (Louis P. Nappen, on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent State of New Jersey

(Joel S. Silberman, Assistant Prosecutor, on

the brief).

PER CURIAM

R.M. appeals from an order dated December 20, 2007, denying his application for a permit to purchase a handgun and a firearms purchaser identification card. N.J.S.A. 2C:58-3(a) and (b). After reviewing the record, the briefs, and the applicable law in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun and a firearms purchaser identification card to any person of "good character and good repute" who is not subject to any of the enumerated exceptions. 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:

(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L.1991,c.261(C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense;

(2) To any drug dependent person as defined in section 2 of P.L.1970,c.226 (C.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; . . .

. . . .

(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).]

"[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 (1969) ("[T]he sole issue is [the applicant's] current qualification to purchase . . . weapons."). 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).

In this case, R.M. was a forty-one-year-old carpenter, residing in Hoboken, when he applied to the Hoboken Police Department for a permit to purchase a handgun and a firearms purchaser ID card in January 2007. On his application form, R.M. certified he had not been convicted of a crime or a disorderly persons offense, and he was not subject to any of the other statutory disqualifications. The investigation conducted by the Hoboken Police Department, however, disclosed he had two drug-related arrests and "a problem with drugs and alcohol in the past." In a letter dated April 30, 2007, R.M. was notified by the chief of police that his application was denied pursuant to N.J.S.A. 2C:58-3(c)(5), because "disapproval is in the interest of the public health, safety or welfare."

After his application was rejected by the chief of police, R.M. requested a hearing in the Superior Court. N.J.S.A. 2C:58-3(d). Hoboken Police Lt. James Roofe, the person who had investigated R.M.'s application, testified at the hearing. According to Roofe, R.M. had been arrested in New York in 1997 and charged with possession of crack cocaine, and he was also arrested in Hoboken in 1999 and charged with possession of marijuana. Roofe testified that the New York case was "dismissed and sealed," and "the charge of possession of marijuana was amended to disturbing the peace, a city ordinance violation," which resulted in a $175 fine. Because of R.M.'s past problems with both alcohol and drugs, Roofe recommended to the chief of police that R.M.'s application be denied:

Q. [A]s part of this application process, did you speak to any references of [R.M.'s]?

A. Yes I spoke to [R.M.'s] sister.

Q. Okay. And did you ask her about these arrests?

A. I asked her if her brother, who indicated to me that he had a problem with drugs and alcohol in the past, if she was aware of this? And she said that she was, that he had a problem with both drug[s] and alcohol in the past, but has been sober for the past five years.

Q. Okay. Now based on all of your investigation, did you make a recommendation as to . . . his permit application?

A. Yes, I recommended a denial of the application.

Q. What was that based on?

A. That was based on his past arrest history, and the fact that he had admitted to and confirmed by his sister a problem with both alcohol and drugs. The type of drugs involved in this case marijuana and crack/cocaine, we felt that it would be a safety issue somewhere down the line if there were any other problems with these areas.

Q. The results of your investigation and this recommendation [were] passed on to the police chief?

A. That's correct.

In an effort to demonstrate that he was no longer suffering from drug or alcohol addiction, R.M. presented testimony from Dr. Anthony Todaro, a psychologist. Dr. Todaro's testimony was consistent with his written evaluation, in which he stated:

Background and General Alcohol Involvement. This is a 42-year-old white male who is currently being seen in an outpatient setting. He does not show clear preference for any particular type of alcohol, beer, wine or liquor. The largest amount of alcohol consumed on any particular day is reported to be 16 or more cans of beer and that was over five years ago.

This person acknowledges some involvement with the use of alcohol, but that is no longer an issue since he is now a committed member of Alcoholics Anonymous. There is no preoccupation with alcohol at this time or any other drugs. [R.M.'s] close friend [J.H.] and coworker . . . confirms the fact that [R.M.] is a completely sober, honest, and dependable person. There is no concern for any type of deviant behavior. [T.J.], a 60 year old who he sponsors, also confirms this.

. . . .

The client does report historically, in an open and honest fashion, that he had an addictive disposition and that he did use illicit and street agents at the time. . . . At this time, however, he has withdrawn completely from the use of street drugs and alcohol and thereby the past diagnoses of psychoactive substance abuse and alcohol abuse are both in remission. . . .

. . . .

In summary, it can be stated with reasonable psychological certainty that [R.M.] has demonstrated himself to be completely safe and drug free for seven years and alcohol free for a minimum of a five-year period. He attends AA meetings with great regularity and has been endorsed by his friends as being a reliable, conscientious, and committed person who they can trust implicitly and explicitly. . . .

There is absolutely no evidence that he has any propensity whatsoever to indulge in alcohol or any psychoactive substances. At this point, he appears to be perfectly safe in handling firearms. There was no evidence to the contrary and there has never been any report of his misuse of any type of weapon nor any type of altercation or domestic violence.

When R.M. testified, he admitted that he had abused alcohol and drugs in the past, but he also testified that he had been "drug and alcohol free for over five years." During cross-examination, he testified as follows:

Q. [R.M.], when you were arrested in I believe it was March of 1997 that was in Brooklyn, New York; correct?

A. Yes.

Q. And you were arrested for possession of crack/cocaine?

A. Yes.

Q. Were you using crack/cocaine at that time?

A. Yes.

Q. Okay. And that charge was later dismissed in 1997; correct?

A. Yes.

. . . .

Q. All right. Now in 1999 you were again arrested for possession of marijuana in Hoboken?

A. Yes.

Q. [Y]ou later pled guilty to an amended charge of disturbing the peace?

A. Yes.

Q. [W]ere you using marijuana at that time in 1999?

A. Yes.

Q. All right. Now between '96 and '99 were you using marijuana and crack/cocaine?

A. Between '96 and '99.

Q. You had told Dr. Todaro that you had a substance abuse problem?

A. Yes.

Q. When did that start approximately?

A. It was, you know, probably as a -- you know, . . . as a teenager.

Q. Teenage years. So approximately 20, 30 years you were using, 20 years.

A. After I was arrested in Hoboken in 1999 . . . I stopped.

Q. You were still drinking at that point though?

A. Yes.

Q. [Y]ou never sought any type of outpatient program or alcohol programs[?]

A. No.

Q. You did join AA however?

A. Yes.

. . . .

Q. And . . . you said [it is] about five years, eight months [since] you've stopped drinking?

A. Yes.

During his closing remarks, R.M.'s attorney argued that his client had presented "satisfactory proof" that he no longer suffers from a "disability in such a manner that would interfere with or handicap him in the handling of firearms." He also argued that R.M.'s application should have been approved because R.M. "is a person of good repute in his community," who is not subject to any of the statutory disabilities. On the other hand, the prosecutor argued that the police chief was justified in denying R.M.'s application due to concerns regarding his prior abuse of alcohol and drugs and because: (1) R.M. had failed to produce a certificate from a medical doctor or psychiatrist under N.J.S.A. 2C:58-3(c)(3); and (2) Dr. Totaro acknowledged he never administered any test to determine whether R.M. was using alcohol or drugs.

In its oral decision on December 20, 2007, the trial court found that: (1) R.M. pled guilty to a disorderly persons offense following his arrest for possession of marijuana in 1999; and (2) R.M.'s prior substance abuse problems demonstrated "his general willingness to break the law and his ill repute in the community." We recognize, of course, that findings by a trial judge are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nevertheless, there is no evidence in the record before us that R.M. ever pled guilty to a disorderly persons offense, and we cannot agree that two arrests, which occurred approximately ten years ago, demonstrate a present willingness to break the law.

With respect to R.M.'s character and reputation, we note that "a reputation witness restates the community's assessment of the subject's character." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 309 (2006). Reputation has been defined as a "resultant picture of forgotten incidents, passing events, habitual and daily conduct . . . a multitude of trivial details." Id. at 313 (quoting Michelson v. United States, 335 U.S. 469, 477, 69 S. Ct. 213, 219, 93 L. Ed. 168, 174-75 (1948)). In this case, R.M. provided the Hoboken Police Department with the names and addresses of "two reputable persons," who were contacted by Lt. Roofe, and there was no testimony by Lt. Roofe that he received any negative information regarding R.M.'s character or reputation during his investigation. Thus, the record does not support the court's finding that R.M.'s application should be denied because he is not a "person of good character and good repute in the community in which he lives." N.J.S.A. 2C:58-3(c).

In light of these errors, R.M.'s attorney urges us to approve R.M.'s application. Alternatively, R.M. argues the order denying his application should be vacated, and he "should be granted a fair procedural application process, utilizing proper forms and applying proper standards of law." However, because it has been more than a year since the court denied the application, and there is a need to focus on current circumstances, we will remand the matter to the trial court for further proceedings.

Finally, although N.J.S.A. 2C:58-3(e) provides for the use of standardized application forms, we are satisfied R.M. was not prejudiced by the firearms application form he was required to submit to the Hoboken Police Department. Dr. Totaro reported that R.M. "was open about his arrests" in 1997 and 1999, and "[t]he dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm." In re Osworth, supra, 365 N.J. Super. at 78.

The order appealed from is reversed, and the matter is remanded to the trial court. Both parties shall be afforded an opportunity to supplement the record, if they elect to do so.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

We are using initials for appellant pursuant to Motion Order No. M-5881-07 filed on July 8, 2008.

(continued)

(continued)

12

A-2265-07T4

RECORD IMPOUNDED

January 23, 2009