IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO G.Z.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0427-14T4

IN THE MATTER OF THE SEIZURE

OF WEAPONS BELONGING TO G.Z.

_____________________________________________________

July 29, 2015

Submitted March 17, 2015 Decided

Before Judges Ostrer, Hayden and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-377-14.

John L. Molinelli, Bergen County Prosecutor, attorney for appellant State of New Jersey (Keith R. Travers, Assistant Prosecutor, of counsel and on the brief).

Evan F. Nappen, attorney for respondent G.Z. (Louis P. Nappen, on the brief).

PER CURIAM

The State appeals from an August 21, 2014 Law Division order denying its application for forfeiture of weapons seized from respondent G.Z. pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because there was sufficient credible evidence supporting the trial court's determination that respondent no longer suffered from a disqualifying mental condition and that returning respondent's weapons would not be detrimental to the public health, safety, and welfare of the community, we affirm.

On September 9, 2013, I.Z. (Isadora)1 filed a domestic violence complaint against respondent G.Z., her husband. Isadora alleged that respondent insulted her and charged at her with a stool, striking her knee, which left a bruise. The court granted the requested temporary restraining order (TRO) and scheduled a hearing for a final restraining order (FRO).

When the police served the TRO on respondent, they seized his Firearm Purchaser Identification Card (FPIC), a handgun, and a number of antique knives. On September 19, the trial judge dismissed the TRO with Isadora's consent. As part of the dismissal, Isadora and respondent entered an agreement that the State would return the seized weapons to respondent, but he would store them at his parents' house during the impending divorce proceedings.

Prior to the return of respondent's weapons, Isadora obtained a second TRO against respondent on December 2, 2013. In her complaint, she alleged harassment, terroristic threats, and assault. Isadora claimed that when she and respondent were exchanging their children for visitation, respondent cursed at her. During this exchange, while Isadora was carrying a bin, she claimed respondent first spat on the bin, and then spat twice on her. Before the FRO hearing, Isadora again voluntarily dismissed the TRO because the parties were drafting a consent order with civil restraints.

After Isadora agreed to dismiss the TRO, the Bergen County Prosecutor moved for forfeiture of respondent's weapons and FPIC under N.J.S.A. 2C:25-21(d)(3) and 2C:58-3(c). When respondent failed to appear for the January 24, 2014 forfeiture hearing, the trial court entered default. Soon thereafter, respondent's counsel sent a letter advising the court that respondent was hospitalized on the date of the hearing, and respondent's counsel was not served a copy of the forfeiture notice. The State and defense counsel agreed to vacate the default and to proceed with a hearing.

At the forfeiture hearing, the State called respondent to establish that he was involuntarily confined at a hospital due to depression. While there, he was prescribed and took medication for depression. Because respondent had been confined for a mental condition, the court found that under N.J.S.A. 2C:58-3(c)(3) the burden shifted to respondent to establish that he no longer suffered from the disability that led to his confinement "in such a manner that would interfere with or handicap him in the handling of firearms."

To meet that requirement, respondent provided the testimony of Dr. Diana L. Riccioli, who qualified as an expert in psychiatry. Dr. Riccioli testified that in reaching her opinion she saw respondent on two occasions, administered psychological screenings, and spoke with his treating physician. Respondent informed her that as a result of uncharacteristic belligerence toward his brother and a veiled suicide statement to his mother, he was involuntarily committed to a psychiatric hospital in January for ten days. He received a strong antidepressant and his depression got better. According to reports from respondent and his treating physician and respondent to the doctor, he was fully compliant with his medication and attending his supportive therapy. Dr. Riccioli explained that depression is a condition that can be treated successfully and goes into remission. At the time of the hearing, respondent's treating doctor was slowly weaning him off the medication.

Respondent told Dr. Riccioli that as his marriage got worse he began using alcohol and marijuana three to four times per week, which the doctor considered substance abuse rather than dependence. Dr. Riccioli acknowledged respondent's substance abuse history and his continuing treatment of supportive therapy for substance abuse; nonetheless, she did not think this or his lessening depression made him dangerous to himself or others. She concluded, "In my opinion, [G.Z.] is currently stable and his depression is resolving with medication, therapy, and closure on a difficult marriage with imminent divorce."

In addition, Isadora testified for the State to relate the facts that led to her filing the domestic violence complaints. She also reported that on several occasions after she and respondent had been arguing, respondent would go into his closet, open the safe loudly, and make clicking noises with his gun. She also testified to his substance abuse history. Even so, she stated she was not afraid of respondent and trusted him with the children. She acknowledged that she had dismissed both domestic violence complaints because she was not afraid of him.

At the conclusion of the hearing, the trial court found that the State had not proven that either of the statutory disqualifications applied to respondent. In explaining its decision, the court emphasized Dr. Riccioli's testimony, which he found credible, that respondent no longer posed a danger to himself or others. The court acknowledged respondent's history of substance abuse, but credited Dr. Riccioli's testimony that his abuse issues were in remission. As to the public health, safety, and welfare disqualifier, the court recognized that respondent was not without "issues" and that he had been involved in two domestic violent incidents. The court found significant that neither incident involved a weapon and there was no allegation that weapons "were used or threatened to be used" during the incidents. It noted that Isadora's allegations did not compare to the facts in In re Return of Weapons to J.W.D., 149 N.J. 108 (1997), where the defendant walked around the home twirling a loaded gun and set up what appeared to be spring guns. The court concluded, "I do not find [] based upon everything that's taken place in this case that [G.Z.] is a welfare threat to himself, the public at large or anybody else."

Consequently, the court issued its order on August 21, 2014, directing the State to return respondent's FPIC and his weapons. The State requested a stay pending appeal, which the court granted. This appeal followed.

On appeal, the State argues that the trial court erred in finding that neither the mental condition disqualification nor the public health, safety, or welfare disqualification applied. It contends that the fact that respondent is still being treated for depression and substance abuse shows that he is still suffering from the condition that led to his confinement. Additionally, the State maintains that respondent is a threat to public safety because of the behavior that led up to his commitment and his violent tendencies during the marriage, including loudly clicking his gun in the closet after fighting with his wife. Having scrutinized the record, we are satisfied that it contains substantial support for the court's finding that respondent does not have a disqualification under N.J.S.A. 2C:58-3(c) that would prevent him from having the weapons returned.

Our review of a trial court's fact-findings is limited. J.W.D., supra, 149 N.J. at 116-17.

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.

[Ibid. (citations omitted).]

Nevertheless, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "'Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.'" J.D. v. M.A.D., 429 N.J. Super. 34, 43 (App. Div. 2012) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

As a key part of the PDVA, the Legislature provided that the weapons and FPIC cards of alleged abusers may be seized under certain conditions. N.J.S.A. 2C:25-21(d)(1). If the court does not grant a FRO barring weapons possession, "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:58-3c." N.J.S.A. 2C:25-21(d)(3). However, the prosecutor can file a petition objecting to the return of the weapons "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." Ibid. The State has the burden of proof to show "by a preponderance of the evidence, that the forfeiture is legally warranted." State v. Cordoma, 372 N.J. Super. 524, 533-34 (App. Div. 2004).

The State claims that it proved the weapons were subject to forfeiture under two subsections of N.J.S.A. 2C:58-3(c). First, the State points to subsection (3), which prohibits issuance of a FPIC to anyone who has been confined for a mental disorder unless he or she "produces a certificate of a medical doctor or psychiatrist licensed in NJ . . . that he [or she] is no longer suffering from that particular disability in such a manner that would interfere with or handicap him [or her] in the handling of firearms . . . ." N.J.S.A. 2C:58-3(c)(3). The State argued that respondent was still under treatment for depression and substance abuse so the condition that led to his hospitalization still existed, and its existence interfered with respondent's handling of firearms. The State ignores the specific requirement in the statute that the particular disability must not "interfere with or handicap him [or her] in the handling of firearms." Ibid. The testimony of Dr. Riccioli, which the court found credible, amply supports the court's finding that while respondent was still under treatment for the condition leading to his hospitalization, he is not a danger to himself or others and his disability did not interfere with his handling of his gun.

Second, the State contends that it met its burden to prove by a preponderance of evidence that the return of the weapons seized "would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5); see also In re Osworth, 365 N.J. Super. 72, 79 (App. Div.), certif. denied, 179 N.J. 310 (2003). Our Supreme Court has held that "the Legislature intended 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." J.W.D., supra, 149 N.J. at 116. N.J.S.A. 2C:58-3(c)(5) "is 'intended to relate 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.'" Osworth, supra, 365 N.J. Super. at 79 (citations omitted). In these matters, "a judicial declaration that a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact-sensitive analysis." Cordoma, supra, 372 N.J. Super. at 535.

Generally, direct threats to another person with a weapon implicate the public health, safety or welfare. See In re Application of Boyadjian, 362 N.J. Super. 463, 468 (App. Div. 2003) (applicant had shot an arrow from a crossbow at someone, but the charges were dismissed); J.W.D., supra, 149 N.J. at 112-13 (applicant set up a spring gun in the home and walked through the home drawing and holstering a weapon that may have been loaded); State v. Cunningham, 186 N.J. Super. 502, 504, 506 (App. Div. 1982) (applicant shot his wife, but claimed it was accidental). Cf. Cordoma, supra, 372 N.J. Super. at 529 (commenting that there was no allegation that respondent had ever "threatened his former wife with the gun or otherwise used the weapon in an inappropriate manner against her or anyone else"); State v. One Marlin Rifle, 319 N.J. Super. 359, 372 (App. Div. 1999) (finding that evidence of harassment and angry outbursts stemmed from "frustration surrounding the marital breakup, rather than psychological behavioral outbursts.").

Applying the above principles, we find sufficient evidence in the record to support the court's finding that respondent did not pose a threat to the public safety, health or welfare. Again, as the court found, Dr. Riccioli's credible testimony that respondent was not a danger to himself or others certainly supported the court's finding. Her testimony went far beyond the issue in subsection (3), whether the condition for which a person had been confined still interfered with his ability to handle weapons. It encompassed the issue in subsection (5), whether respondent was a threat to the public or any individual. Dr. Riccioli concluded that as a result of respondent's treatment, including medication and supportive therapy, he did not at the time of the evaluation pose a threat to anyone. We owe deference to the court's fact-findings based upon this evidence, which was not contradicted by other expert psychiatric evidence. J.D., supra, 429 N.J. Super. at 43. The court also noted that respondent's harassing behavior, including the incidents for which she sought TROs and the clicking of the gun in the closet, did not compare to the extreme circumstances in J.W.D. and did not demonstrate a continuing threat.

Under the totality of the circumstances here, the court's conclusion that the State failed to prove that respondent posed a threat to the public or Isadora was not so wide of the mark that an injustice occurred. See Ibid.

Affirmed.

1 We use initials for respondent and a pseudonym for his wife to respect their privacy.