STATE OF NEW JERSEY IN THE INTEREST OF DANNY BURT'S WEAPONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY IN THE

INTEREST OF DANNY BURT'S WEAPONS

__________________________________

September 15, 2015

Argued July 21, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FO-06-266-13.

Vincent J. Pancari argued the cause for appellant Danny Burt (Capizola, Pancari, Lapham & Fralinger, attorneys; Mr. Pancari, on the brief).

Elizabeth K. Tornese, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Danny Burt appeals from a final order of the Family Part requiring that he forfeit twenty-one firearms and his firearms purchaser's identification card seized pursuant to N.J.S.A. 2C:25-21d(3), the Domestic Violence Forfeiture Statute, and denying his motion for reconsideration. We affirm.

The matter proceeded on a stipulated record. The parties, through counsel, stipulated that a temporary restraining order (TRO) had been entered against Burt in April 2013, resulting in members of the State Police visiting his home to confiscate his weapons. Among the twenty-one firearms seized was an M1 carbine meeting the definition of an assault firearm pursuant to N.J.S.A. 2C:39-1w. All twenty-one weapons seized were owned and possessed by Burt, who also possessed a valid New Jersey firearms purchaser identification card. The TRO was dismissed the following month, and the prosecutor filed a timely petition for forfeiture. Burt has no criminal history. The Cumberland County Prosecutor's Office and the Cumberland County Sheriff's Office conducted eleven separate "Gun Buy Backs" between June 1997 through June 2010.

Following oral argument on the application, the court issued a written opinion in which it ordered the M1 carbine forfeited to the State pursuant to N.J.S.A. 2C:64-1a(1), based on the parties' stipulation "that the M-1 carbine is an illegal weapon and is therefore improper to possess." Relying on M.S. v. Millburn Police Dep't, 197 N.J. 236, 246 (2008), the court found Burt's weapons were seized pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, that the M1 carbine cannot be returned because it is an illegal firearm under N.J.S.A. 2C:39-1w, thereby satisfying the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21d(3), and disqualifying Burt from obtaining a firearms purchaser identification card pursuant to N.J.S.A. 2C:58-3c(8), or legally possessing the remaining twenty firearms seized from him.

Burt filed a motion for reconsideration raising new facts relating to his possession of the M1 carbine. Specifically, Burt certified that he acquired the rifle in 2006 from his grandfather who had served in WWII. Burt claimed the rifle had considerable sentimental value to him, and that he had no knowledge as to whether the gun was operable. The court expressed its sympathy but found "that the parties stipulated, and [Burt] continues to admit, that the gun in question is an illegal weapon under current New Jersey law," giving the court "no alternative" but to grant the prosecutor's petition for forfeiture.

Burt raises only one issue on appeal

THE MERE FACT THAT APPELLANT WAS IN POSSESSION OF A PROHIBITED WEAPON IN VIOLATION OF N.J.S.A. 2C:39-1(w) DOES NOT AUTOMATICALLY MAKE HIM SUBJECT TO THE PROVISIONS OF N.J.S.A. 2C:25-21(d)(3) AND THE REVOCATION OF HIS FIREARMS PURCHASER CARD AND THE FORFEITURE OF WEAPONS WHICH HE OTHERWISE LEGALLY POSSESSED.

Burt's argument is that he was "not provided the opportunity for the hearing required under Millburn" because "the mere fact that appellant's weapon, the M-1 Carbine, was not returned to him does not in and of itself satisfy the requirements of N.J.S.A. 2C:25-21(d)(3)." The argument is utterly without merit.

The plaintiff in Millburn agreed in a consent judgment to sell or otherwise surrender his weapons in order to resolve a 1997 forfeiture petition brought under the Domestic Violence Forfeiture Statute. 197 N.J. at 238. The judgment did not require the forfeiture of the plaintiff's firearms purchaser identification card; there was no hearing to determine whether the plaintiff had committed an act that would disqualify him from obtaining a firearm, and the plaintiff never admitted to any disqualifying act. Id. at 239.

In 2005, the plaintiff filed an action to compel the Millburn police department to return his firearms purchaser identification card. Id. at 243. The department refused, contending that his previously seized weapons were not "returned" and thus he was permanently barred from possessing a firearm under N.J.S.A. 2C:58-3c(8), a then-newly enacted disability provision of the Gun Control Law, which provides that "[n]o handgun purchase permit or firearms purchaser identification card shall be issued: To any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991,' P.L.1991, c.261 (C.2C:25-17 et seq.) and whose firearm has not been returned." Id. at 239; N.J.S.A. 2C:58-3c(8).

The Court construed N.J.S.A. 2C:58-3c(8), "to impose a statutory bar to obtaining a gun permit only when a firearm seized in a domestic violence matter is not returned for a reason set forth in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3)." Millburn, supra, 197 N.J. at 246. Because the plaintiff in Millburn "did not admit to a statutory basis for forfeiting his right to possess a firearms card or a firearm under the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3)" and there was no judicial finding to that effect, the Court held the "plaintiff is entitled to a hearing to determine whether, at the time he entered into the consent judgment, the Prosecutor's Office was capable of proving that he had committed an act that warranted the forfeiture of his firearms." Millburn, supra, 197 N.J. at 239.

Here, of course, plaintiff had not one but two hearings in which he stipulated to a statutory basis for forfeiture, namely his possession of an illegal assault firearm, the M1 carbine, resulting in a judicial finding disqualifying him from gun ownership in New Jersey and revoking his firearms purchaser identification card. Possession of an assault firearm is a second-degree crime under N.J.S.A. 2C:39-5f. As the prosecutor correctly asserts, "the weapon is contraband [which] can never be returned to [Burt]." Accordingly, because Burt has had a weapon seized as a result of a domestic violence complaint that has not and can never be lawfully returned to him, he is subject to the specific disability under the Gun Control Law contained in N.J.S.A. 2C:58-3c(8).

Because of our disposition of the appeal and that the prosecutor has not cross-appealed, we do not address her argument that plaintiff's admission of facts that would constitute the crime of possession of an assault firearm, subjecting him to the Graves Act should have also "disqualified [plaintiff] as a hazard to public health, safety and welfare."

Affirmed.