IN THE MATTER OF JOHN SOTO PERMIT TO CARRY A FIREARM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2907-10T4

IN THE MATTER OF JOHN SOTO,

PERMIT TO CARRY A FIREARM

___________________________________________________

December 14, 2011

Submitted November 1, 2011 - Decided

Before Judges Carchman and Fisher.

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

Gonzalez & Caride, attorneys for appellant John Soto (Ramon M. Gonzalez, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent State of New Jersey (Frank J. Morano, Assistant Prosecutor, on the brief).

PER CURIAM

Appellant John Soto seeks review of an order denying his application to carry a firearm. We find no merit in his arguments and affirm.

At the time of the permit application in question, Soto was employed by a company that provides security services; he was licensed to purchase a firearm. The Hoboken Chief of Police approved the application to carry a firearm, but the Hudson County Prosecutor's Office sought additional information regarding Soto's arrest on August 6, 2005. On that date, Soto was charged with being knowingly in possession of a handgun "without first having obtained a permit to carry the same," a third-degree offense, N.J.S.A. 2C:39-5(b). Soto responded to the Prosecutor's request, explaining that the charge had been dismissed and that his weapon, purchasing permit and other credentials were returned to him; in addition, he provided the following explanation of the circumstances that led to his arrest:

On August 6, 2005, I had been shooting at the Bullet Hole range located in Belleville, New Jersey. I was called to my office to [obtain] documents regarding my application for a carrying permit. As I arrived to my office on Oxford Street in Newark, New Jersey, there appeared to be some disturbances and a crowd in the area near the office and where I would park my car. Due to the fact that my car had a lock and window that w[ere] not functioning properly I thought it would be safer to remove my belongings, which included my weapon, from my car as I went into my office. Due to the disturbances, the police came to the area. As I exi[]ted my vehicle and walked towards my office, a policeman stopped me. I was questioned and I advised the officer that I had a weapon in my personal belongings which resulted in my arrest.

Thereafter, the Prosecutor's Office objected to Soto's application, advising the trial court, among other things, that when Soto was arrested on August 6, 2005, he was in possession of a .45 caliber automatic handgun with eight rounds in the magazine and one in the chamber. The Prosecutor argued that it was "of grave concern to the State that a person seeking a permit to carry a handgun would demonstrate "such a clear lack of regard for firearms safety laws." Specifically, the Prosecutor asserted that even if, under the circumstances, it was prudent for Soto to remove the weapon from his vehicle when he saw the disturbance near his office on August 6, 2005, he provided no reason for loading the weapon when he removed it from his vehicle and carried it out onto the street.1

The trial judge conducted an evidentiary hearing at which Soto testified and explained the circumstances leading to his arrest in a manner consistent with his explanatory letter, quoted above. The Prosecutor's Office pressed its objection, arguing that Soto had disregarded the gun laws by carrying a loaded gun in a holster without a permit.

The judge denied Soto's application, as well as a later motion for reconsideration, and Soto appealed, arguing:

I. THE TRIAL COURT DID NOT PROPERLY EXERCISE DISCRETION IN DENYING SOTO'S APPLICATION.

II. THE TRIAL COURT INCORRECTLY CONCLUDED THAT THE EXISTENCE OF THE PRIOR CONDUCT CONSTITUTED AN AUTOMATIC DISQUALIFICATION OF LICENSURE.

We reject these arguments and affirm.

N.J.S.A. 2C:58-4(d) directs that, in instances where the chief police officer has approved the application, "[t]he court shall issue the permit to the applicant if, but only if, it is satisfied that the applicant is a person of good character who is not subject to any of the disabilities set forth in [N.J.S.A. 2C:58-3(c)], that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun." The trial judge found Soto had a justifiable need but did not prove he was free of the disability set forth in N.J.S.A. 2C:58-3(c)(5), which prohibits the issuance of a gun permit to "any person where the issuance would not be in the interest of the public health, safety or welfare." The judge also determined that Soto's conduct demonstrated he was not thoroughly familiar with the safe handling and use of handguns or that he had acted with studied indifference to those standards.

In arguing that the judge abused his discretion in denying the application, Soto claims that too much emphasis was placed on the August 6, 2005 arrest and too little on the fact that the criminal matter was ultimately dismissed. We disagree. As we have held, "[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 or recover one previously taken by the police." In re Osworth, 365 N.J. Super. 72, 78 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). That the details of this case may vary from those before us in Osworth, or in other comparable circumstances, see Matter of J.W.D., 149 N.J. 108 (1997),2 makes no difference. The trial judge was entitled to look behind both the arrest and the dismissal in considering the impact of the prior incident on Soto's fitness to carry a handgun. The judge's findings regarding that event are entitled to our deference, State v. Robinson, 200 N.J. 1, 15 (2009), and certainly supported the judge's conclusion that Soto had not demonstrated a thorough understanding of how to safely handle and use handguns and that the issuance to Soto of a permit to carry a firearm would not be in the interest of the public health, safety, or welfare.

We find insufficient merit in Soto's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1The arresting officer explained in his report that he was dispatched to Oxford Street due to a call about a "suspicious person with a weapon." Upon arriving, the officer observed Soto carrying the automatic weapon "inside a pancake holster on his right side of his hip." The officer explained that he asked Soto if he had a permit to carry the weapon; Soto stated he did but that it was inside his office. Soto's co-worker then went into the office to retrieve the permit, but returned, according to the police officer, "with negative results," and Soto thereafter acknowledged he did not have a permit to carry only a purchaser permit. With that, he was arrested.

2In J.W.D., the Court held that weapons seized as a result of the filing of a domestic violence complaint need not be returned -- even if the domestic violence action is dismissed -- if the facts suggest that the defendant poses a threat to public health, safety, or welfare. Id. at 110.