IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO JUAN DELAPRIDA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE SEIZURE

OF WEAPONS BELONGING TO JUAN

DELAPRIDA

___________________________________________________

April 16, 2014

Submitted March 4, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-282-11.

Law Offices of Jef Henninger, attorney for appellant Juan Delaprida (Mr. Henninger, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Juan Delaprida appeals from the Family Part's order of January 28, 2013, that ordered the forfeiture of numerous firearms, ammunition and other weapons seized from his residence by police when they arrested Delaprida on November 8, 2010. Delaprida argues that the judge "misconstrued the 'public health, safety or welfare' disability" contained in N.J.S.A. 2C:58-3(c)(5). Having considered this argument in light of the record and applicable legal standards, we affirm.

I.

Delaprida was arrested by Park Ridge police officers who were responding to a 9-1-1 call made by M.S., Delaprida's wife of twenty-three years.1 He was charged with simple assault, N.J.S.A. 2C:12-1(a), and criminal restraint, N.J.S.A. 2C:13-2(b). After a mental health screener was contacted, Delaprida was transported by ambulance to Bergen Regional Medical Center (Bergen Regional) for evaluation. A blood test revealed the presence of cocaine and marijuana.

At the time, Delaprida's collection of weapons and ammunition was locked in a recreational vehicle parked in his driveway. He subsequently stated that he moved the weapons from the house in late summer 2010 because he was concerned about M.S.'s "moods and her access to [the weapons]."

The State moved to forfeit Delaprida's weapons pursuant to N.J.S.A. 2C:25-21(d)(3) and N.J.S.A. 2C:58-3(c). Subsequently, Delaprida was admitted into the pre-trial intervention program (PTI) with respect to the criminal charges. On June 18, 2012, his motion seeking the early termination of PTI was granted, and on November 13, the criminal charges were dismissed. In the interim, in July, Delaprida filed a motion for return of his weapons.

A forfeiture hearing was conducted before Judge Gary N. Wilcox at the end of January 2013. The State called Park Ridge police officer John Szot and M.S. as witnesses, and the parties stipulated to the admission of Delaprida's medical records from Bergen Regional, and the report of Dr. Peter M. Crain, M.D., who Delaprida had retained to conduct a psychiatric evaluation.

When Szot arrived at Delaprida's home on November 8, 2010, M.S. stated that Delaprida had struck her and appeared to be intoxicated. Szot found Delaprida "trying to be . . . calm," but "jittery . . . unable to stand still . . . constantly moving from one area to another area in the room; [he] repeatedly sat down and stood up moments later; was talking very quickly." He told the officer that he had argued with M.S. because she had hired someone to murder him.

M.S. told Szot that Delaprida had been "smoking marijuana all night, ha[d] not slept in several days, and . . . kept . . . marijuana and drug paraphernalia . . . in different locations throughout the house." According to Szot, M.S. directed him to various places where the officer found narcotic residue or paraphernalia. Szot concluded that Delaprida was under the influence of a controlled dangerous substance and an ambulance was called to transport him to Bergen Regional.

M.S. testified but could not recall much of the incident. She denied that Delaprida had been "physically violent" with her. However, the prosecutor confronted M.S. with her hand-written "probable cause statement," in which she alleged that Delaprida struck her, took her cell phone, "tossed [her] in the laundry room and . . . used a cord to 'tie [her] up . . . .'" M.S. claimed that she was "coerc[ed]" into filing for a temporary restraining order (TRO) against Delaprida, which she voluntarily withdrew two weeks later. In the TRO application, M.S. reported that Delaprida ripped the telephone line from the wall when he heard her call 9-1-1, dragged her across the living room, threw her against the laundry room wall and put his hands around her neck and mouth. She testified she could not recall any of these events either.

M.S. testified that, since the incident, Delaprida had no similar mental health or drug abuse incidents. She had no concerns for her safety, or that of her children, and did not oppose the return of the weapons.

While at Bergen Regional, Delaprida was diagnosed with "cocaine-induced psychotic disorder with delusions and cocaine abuse/dependence." He was released and returned home on November 15, 2010.

Crain's report, dated July 13, 2011, detailed Delaprida's involvement in substance abuse counseling since the November 2010 incident, as well as a negative drug screen of June 1, 2011. He also referenced a report from a substance abuse evaluation, also in June 2011, that found Delaprida was in "early recovery from a substance dependency."

Delaprida told Dr. Crain that in December 2008, M.S. called police after the two had an argument and reported that defendant was "armed and dangerous." Police confiscated the weapons then, but they were returned after a forfeiture hearing.2

Dr. Crain diagnosed defendant with "cocaine-induced psychotic disorder with delusions," which was "in remission." Dr. Crain added that "the root problem" leading to Delaprida's ingestion of cocaine or marijuana was "marital dysfunction." Dr. Crain also concluded that it was unlikely Delaprida would "use his firearms inappropriately" and that "[f]orfeiture of his permit is not warranted[,]" because defendant "does not suffer from a mental disorder that would interfere or handicap him in the handling of firearms."

In his oral opinion placed on the record at the conclusion of the hearing, Judge Wilcox noted that M.S.'s testimony "was an attempt to . . . downplay . . . the allegations of violence" and was "lacking in credibility regarding the events that happened that evening." He found more credible "the reports from that evening which allege that there was in fact violence in terms of [Delaprida] striking . . . [M.S.]."

Judge Wilcox, however, concluded that the "case really hinges . . . on the medical reports . . . ." He found Dr. Crain's report to be "very detailed," and observed that, "to a certain extent," it accepted the State's version of the November 2010 events and Delaprida's delusional conduct. Noting Dr. Crain's diagnosis, and his opinion that the weapons could safely be returned to Delaprida, Judge Wilcox stated:

[That] . . . opinion . . . does not give this Court comfort in returning weapons to someone who has been deemed to have such a disorder, even though that disorder may be in remission. I don't believe that that would be in the interest of the public health, safety or welfare.

The judge entered the order forfeiting eleven guns, a knife, some ammunition and carrying cases; the order also permitted Delaprida to arrange for the sale of the weapons within sixty days, and to thereby keep the proceeds of the sale. However, if he failed to do so, the order provided that Delaprida's "pecuniary interest" in the weapons would also be forfeited.

II.

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -34 (the PDVA), requires law enforcement officers responding to a domestic violence incident to "seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury." N.J.S.A. 2C:25-21(d)(1)(b). The statute is a manifestation of the Legislature's "clear concern with the increased danger posed by firearms in the hands of those charged with domestic violence." State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004). The prosecutor may object to the return of the weapons "on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular." N.J.S.A. 2C:25-21(d)(1)(b)(3). Subject to certain other conditions not relevant here, after a hearing, "the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the court determines the owner is not subject to any of the disabilities set forth in [N.J.S.A. 2C:58-3(c)]." Ibid.

Each of these disabilities is "legally sufficient to deny the issuance of a permit to own and possess a firearm." Cordoma, supra, 372 N.J. Super. at 534. At issue in this case is subsection (c)(5), which permits the denial of "a permit to purchase a handgun or a firearms purchaser identification card" "[t]o any person where the issuance would not be in the interest of thepublic health,safety or welfare." N.J.S.A. 2C:58-3(c)(5). ThePDVA reflectsthe Legislature's intent "that courts not return guns to a defendant in a domestic violence action, even after the dismissal of the complaint, if the court finds that the defendant poses a threat to public health, safety, or welfare." In Re Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997).

Delaprida argues that although Judge Wilcox accepted Dr. Crain's report regarding his mental health, the judge erred by concluding the "catch-all" disability applied, because subsection (c)(5) does not apply to "alleged misconduct [that] was an isolated, aberrational incident." In response, the State argues that Judge Wilcox's decision should be affirmed, as it rested on substantial credible evidence, including Dr. Crain's conclusion that defendant's disorder was only "in remission."

We begin by noting that our review of the order is limited.

Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence. 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.

[J.W.D., supra, 149 N.J. at 16-117 (citations omitted).]

On the other hand, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have said that the "public health, safety or welfare" disability in subsection (c)(5) is "broadly worded" and "eludes precise definition." Cordoma, supra, 372 N.J. Super. at 534. The provision must be "liberally construed to effectuate the overarching public policy objections of the [PDVA]." Ibid. The subsection is designed "to disqualify any unfit individual[], who,though not strictly within the [other] enumerated [statutory disabilities], shouldnot inthe public interest be entrusted with firearms." In re Dubov, 410 N.J. Super. 190, 196 (2009) (quoting Burton v.Sills, 53N.J. 86,91 (1968), appealdismissed, 394 U.S. 812,89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969)) (abrogated on other grounds, InRe Wheeler,433 N.J.Super. 560,600 (App.Div. 2013)).

Indeed, our courts have repeatedly upheld disqualification under subsection (c)(5), separately, or in conjunction with, other statutory disabilities. In State v. Freysinger, 311 N.J. Super. 509, 516 (App. Div. 1998), for example, we determined that the defendant was both a habitual drunkard, under N.J.S.A. 2C:58-3(c)(2), and posed a threat to the public health, safety or welfare under (c)(5). In Cardoma, supra, 372 N.J. Super. at 536, in deciding the defendant was disqualified under subsection (c)(5), we considered the defendant's mental condition, even though it did not rise to the level of the disabling conditions set forth in N.J.S.A. 2C:58-3(c)(2) and (3). In In re Osworth, 365 N.J. Super. 72, 80-81 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004), even though the defendant's prior conduct did not result in a disqualifying conviction under N.J.S.A. 2C:58-3(c)(1), we nonetheless determined that, under all the circumstances, denial of a handgun purchase permit was warranted by application of subsection (c)(5).

The facts of this case compel the conclusion that forfeiture was properly ordered. The November 2010 incident was notisolated andaberrational, as Delaprida claims. Only one year earlier, theweapons wereseized as the result of another domestic violencedispute; they were returned after the TRO was dismissed, and M.S. apparently admitted calling the police without cause.

Judge Wilcox rejected M.S.'s attempts to downplay the violence committed against her during the November 2010 dispute, and found the version reported to the police to be more credible. Dr. Crain's diagnosis was the same as that made by those who saw Delaprida at Bergen Memorial immediately after the incident, albeit, Dr. Crain believed the condition was in remission. However, Dr. Crain himself noted that the "root" of Delaprida's substance abuse was the dysfunctional relationship he shared with M.S. The doctor included a secondary diagnosis in the report: "Marital Problem." There was nothing presented to Judge Wilcox that would suggest this history of discord between the couple would likely abate.

That discord was the "root" of Delaprida's admitted abuse of marijuana and cocaine which led to his delusional state in November 2010. It is uncertain whether his attendance at substance abuse counseling necessarily permanently ameliorates the threat his continued possession of a cache of weapons poses to the "public health, safety or welfare[.]" N.J.S.A. 2C:58-3(c)(5).

Affirmed.

1 The actual status of the relationship between Delaprida and M.S. is unclear. He is alternatively referred to in the record as her boyfriend, fiancé and husband.

2 Delaprida told Dr. Crain that the weapons were returned after M.S. admitted to the judge that she called police whenever Delaprida did not do what she wanted.