IN THE MATTER OF THE RETURN OF WEAPONS TO JOHN H. OTTOMANELLI JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0082-10T4

IN THE MATTER OF THE

RETURN OF WEAPONS TO

JOHN H. OTTOMANELLI, JR.,

Appellant.

December 19, 2011

Submitted October 24, 2011 - Decided

Before Judges Alvarez and Skillman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FO-00016-0357-10.

Miller, Meyerson & Corbo, attorneys for appellant (Gerald D. Miller, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondentState of New Jersey (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John H. Ottomanelli, Jr., appeals the issuance of an August 19, 2010 order of forfeiture of weapons seized pursuant to the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we reverse.

In 1995, a final restraining order (FRO) under the Act was entered against defendant in Bergen County. Sometime shortly thereafter, as authorized by the version of the Act then in effect, the order was modified to permit the return to defendant of his firearms: two Mossberg twelve-gauge shotguns, a Mauser rifle, and a Smith & Wesson .357 magnum revolver. The FRO, however, was not dissolved.

In January 2010, a second, unrelated complaint under the Act was filed against defendant. That complainant obtained a temporary restraining order (TRO), but dismissed the proceeding, effectively dissolving the TRO, before a final hearing. The weapons, however, which had been seized again when the 2010 TRO issued, remained in the possession of the Passaic County Prosecutor's Office (PCPO), presumably because it learned of the existence of the 1995 FRO.

Eventually, the PCPO filed an action for forfeiture of the weapons, and at the hearing defendant appeared pro se. Upon learning that the 1995 Bergen County FRO continued in effect, despite the dismissal of the 2010 Passaic County proceeding, the Family Part judge granted forfeiture. This appeal followed.

In its appeal brief, the PCPO took the position that the forfeiture order issued in error but that defendant nonetheless was not entitled to the return of his firearms. The PCPO acknowledged that given the dissolution of the 2010 TRO, and the right to possess the weapons granted defendant in the modified Bergen County FRO, there was no impediment under state law to defendant's possession. But since the Bergen County FRO continued in effect, defendant's firearms could not be returned because under federal law, persons subject to restraining orders are prohibited from possessing weapons. 18 U.S.C.A. 922(a)(8). Subsequently, on August 31, 2011, after the briefs were filed, defendant advised that the Bergen County FRO was dissolved.1

We note that N.J.S.A. 2C:25-29(b) ordinarily bars a defendant from purchasing, owning, controlling, or possessing firearms, or a firearm purchaser identification card or a permit to purchase a handgun during the time an FRO, as opposed to a TRO, is in place or two years thereafter, whichever is greater. N.J.S.A. 2C:25-29(b). In 1995, N.J.S.A. 2C:25-29(b) did not contain this language regarding possession of weapons. N.J.S.A. 2C:25-29(b) (1991) (amended 2003).

Because defendant was lawfully in possession of the firearms pursuant to the FRO as modified under the prior version of the Act, that is the version of the law that we should apply. Otherwise, if we imposed the two-year ban found in the current version of N.J.S.A. 2C:25-29(b), we would effectively be giving the 2003 revisions retroactive application, a legislative intent we cannot discern from the statute or its legislative history. And absent such intent it would be improper for us to apply the statute retroactively. See Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J. 33, 45-46 (2007) (generally, as a matter of statutory construction, statutes are applied prospectively unless a clear legislative intent is expressed to the contrary).

Accordingly, we reverse the order of forfeiture and direct the return to defendant of his weapons.

1 The State does not challenge our consideration of this important fact despite the absence of an application by defendant to expand the record to include it.