IN RE: THE MATTER OF APPLICATION OF SHALOM HOFFER FOR A PERMIT TO CARRY A WEAPON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN RE: THE MATTER OF APPLICATION

OF SHALOM HOFFER

FOR A PERMIT TO CARRY A WEAPON,

__________________________________

June 26, 2015

Argued June 2, 2015 Decided

Before Judges Fasciale and Whipple.

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

Robert B. Cherry argued the cause for appellant.

Kimberly Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Grace H. Park, Acting Union County Prosecutor, attorney; Nathan Hewette-Guyton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Shalom Hoffer appeals from the trial court's February 12, 2014 order denying his application for a permit to carry a handgun. We affirm.

We discern the following facts from the record. Hoffer was an auxiliary police officer in the Town of Hillside until his termination in July 2012, and is now employed as a uniformed security guard for a private security company. He applied for a permit to carry a weapon and, on March 28, 2013, his application was denied by the Chief of Police of the Town of Hillside. The reasons cited for the denial were "Public Health Safety and Welfare" and "Lack of Justifiable Need[.]" Hoffer filed an appeal.

A hearing was conducted in the Law Division on January 17, 2014. Hoffer testified that he was applying for the carry permit to use in his job as a security guard and submitted a letter from the operations manager at the security company that employed him to demonstrate his need to carry a handgun. The notarized letter indicated that Hoffer would be patrolling Walgreen's drug stores and Multiplex theaters, as well as escorting managers making bank deposits as an armed courier. The letter cited to two prior incidents from 1995 and 2001 wherein other couriers were robbed and or assaulted.

The court also heard testimony from Sergeant Michael Gennaro, the training supervisor and liaison to the Auxiliary Police for the Hillside Police Department. Relying upon notes, reports and emails concerning Hoffer's disciplinary record, Sgt. Gennaro testified that Hoffer had been terminated from the Hillside Auxiliary Police in July 2012 due to a series of rule infractions, violations, and suspensions. Sgt. Gennaro detailed four incidents for the court. During the testimony regarding one such incident Hoffer's counsel objected, saying

Judge, I'm going to object to what he believes. I mean, I understand that hearsay is permissible in this sort of a hearing but what somebody else believes, it's like double hearsay and I object to it.

The trial court ruled hearsay was permissible but instructed counsel to establish the "basis of knowledge . . . to gauge the trustworthiness of any hearsay." The trial court judge issued a decision on the record denying the application, which he followed with a supplemental written opinion and order after determining that Hoffer failed to demonstrate a justifiable need, N.J.S.A. 2C:58-4d, and that issuance of a permit would not be in the interest of the public health, safety, or welfare, N.J.S.A. 2C:58-3c(5).1

On appeal, Hoffer argues that the trial court erred in considering the hearsay testimony of Sgt. Gennaro in making his determination that the issuance of a permit was not in the interest of the public health, safety, or welfare.

We are bound to accept the trial court's fact findings if they are supported by substantial credible evidence. In re Return of Weapons to J.W.D.,149 N.J.108, 116-17 (1997). However, we exercise de novo review over the trial court's legal determinations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

At the outset, we note that the court determined that Hoffer failed to demonstrate a justifiable need by showing a particularized threat of serious bodily harm under N.J.S.A. 2C:58-4d, based upon Hoffer's submission of a notarized letter from his employer. Hoffer filed a letter reply brief which improperly enlarged the argument submitted in his initial brief by arguing that he has established a need to carry a weapon because his employment places him in substantial jeopardy. We conclude that the argument lacks merit, as the standard is not substantial jeopardy but an urgent necessity for self-protection based on specific threats or previous attacks demonstrating a special danger to the applicant's life, In re Preis, 118 N.J. 564, 571 (1990), which was not demonstrated here. That determination alone precludes granting the permit.

We are satisfied that the trial court's findings pursuant to N.J.S.A. 2C:58-3c(5) are not solely based on hearsay evidence. The evidence upon which a final administrative agency decision is reached may include hearsay evidence, provided the agency's finding are not entirely based upon hearsay evidence. Weston v. State, 60 N.J. 36, 51 (1972). Evidence that ordinarily would be excludable as hearsay may be admissible in a gun permit hearing if it is "of a credible character -- of the type which responsible persons are accustomed to rely upon in the conduct of their serious affairs[.]" Ibid.; see alsoIn re Dubov, 410 N.J. Super.190, 202 (App. Div. 2009).

For a court to sustain an administrative decision, findings must be supported by a residuum of legally competent evidence. Weston, supra, 60 N.J. at 51; see also In re Toth, 175 N.J. Super. 254, 262 (App. Div. 1980). "The residuum rule does not require that each fact be based on a residuum of legally competent evidence but rather focuses on the ultimate finding or findings of material fact." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 359 (2013).

The court found a residuum of competent evidence to conclude that multiple rule infractions had caused the Hillside Police to suspend and ultimately terminate Hoffer as an auxiliary officer. Three of the incidents about which Sgt. Gennaro testified compelled a denial of the permit on the basis of public health, safety, or welfare, N.J.S.A. 2C:58-3c(5) because of Hoffer's behavior as an auxiliary officer. In particular, the court relied upon Sgt. Gennaro's testimony about his investigation of an incident in Little Falls, wherein Hoffer was accused of driving on the shoulder of Route 46 at a high speed. Sgt. Gennaro viewed a video from the Little Falls officer's patrol car which belied the version of the events which Hoffer had reported to the Hillside Police and which led to Hoffer's termination for rule infractions. The court considered two other incidents wherein Hoffer's version of events differed from what had been reported to Sgt. Gennaro, but disregarded a fourth reported incident because Sgt. Gennaro was unable to substantiate the incident. We discern no error in the court's determination.

Affirmed.

1 Concerns regarding the public's health, safety, and welfare apply to applications for permits to carry in addition to purchase permits. See N.J.S.A. 2C:58-4c ("No application [for a carry permit] shall be approved . . . unless the applicant demonstrates that he is not subject to any of the disabilities set forth in [N.J.S.A.] 2C:58-3c.").