STATE OF NEW JERSEY v. S.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00008-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.P.,

Defendant-Appellant.

_________________________________

December 20, 2016

 

Submitted December 5, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. 6-FAA-13.

Jef Henninger, attorney for appellant.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent (John P. Belardo, of counsel and on the brief; Everett E. Gale, III, on the brief).

PER CURIAM

Defendant S.P.1appeals the trial court's July 8, 2015 order denying her application for a firearms purchaser identification card ("FPIC") and handgun purchase permit (collectively, a "firearms permit"). The court denied her application largely based upon a determination that she had knowingly falsified information on her permit application, in violation of N.J.S.A.2C:58-3(c)(3) and N.J.A.C.13:54-1.5(a)(3). For the reasons that follow, we remand for an evidentiary hearing to develop the record more fully and clearly concerning appellant's alleged knowingly false statement on her application, and also to address other facets of the case in more depth.

I.

This case has an unusual procedural history. The idiosyncrasies of that history are attributable at least in part to the fact that appellant's request for a firearms permit was litigated in tandem with a permit application by her husband.2

In her certified responses on the form, appellant checked "No" to the following question

Have you ever been attended [to], treated or observed by any doctor or psychiatrist or at any hospital or mental institutionon an inpatient or outpatient basis for any mental or psychiatric condition?

[(Emphasis added).]

As we discuss, infra, the truthfulness of appellant's response to this question, and her state of mind in providing it, comprise a key aspect of the proceedings below and the present appeal.

After receiving the applications from appellant and her husband, the township's police department conducted background investigations. As a result of those investigations, the Chief of Police rejected both applications on January 18, 2013.

With respect to appellant's application, the background investigation revealed that she had been arrested twice for driving while under the influence of alcohol ("DWI"). The first DWI incident occurred in July 2004. According to the associated police report, appellant acknowledged that she had been drinking that night after a patrolman smelled alcohol on her breath. Testing indicated that appellant had a blood-alcohol content ("BAC") of 0.16 to 0.17%. When she was brought to the police station, she suffered what the report described as "a panic attack." In September 2004, defendant pled guilty to operating a vehicle under the influence of alcohol, N.J.S.A.39:4-50.

Appellant was again arrested for DWI in November 2006. In that incident, a police officer noticed appellant's car parked alongside the road. When the officer approached the car, he noticed that appellant's "head was slumped downward, the window was open, and [he] immediately smelled the odor of alcoholic beverages[.]" Appellant claimed that she was lost and did not know where she was. She was not able to successfully complete any of the field sobriety tests administered, and was subsequently placed under arrest. She was later taken to the hospital for an asthma attack, where she refused to give a breath sample. Although she ultimately consented to providing a blood sample, the nurse was unable to draw a sample from her due to her "small veins[.]" Appellant eventually pled guilty to refusing to submit to a chemical test, N.J.S.A.39:4-50.2.

The permit investigation further revealed that appellant and her husband had been involved in a domestic dispute in May 2008. According to the police report, officers observed a vehicle parked on the side of the road with appellant, who smelled of alcohol, sitting in the passenger seat. Appellant explained that she was on the way home from a bar with her boyfriend (now-husband), and that he had stopped the car and walked away after an argument. The husband told police that appellant wanted to go to another bar, and when he refused, she hit him in the face. However, the husband did not apply for a restraining order after this incident.

Based on this information, the Chief of Police denied appellant's application. On the standard form and in a related cover letter, the Chief identified, without elaboration, two reasons for the denial: (1) "Public Health, Safety and Welfare," and (2) "Medical, Mental or Alcoholic Background." The Chief simultaneously denied the husband's application, limited to public health, safety and welfare reasons. Those reasons related to the husband's multiple prior driving offenses, as well as his conduct in leaving his intoxicated wife alone in a car on the side of a road.

Represented by the same attorney, appellant and her husband jointly appealed their permit denials to the Law Division, pursuant to N.J.S.A.2C:58-3(d). In support of their appeals, defendants were each evaluated by a licensed psychologist, Mike Abrams, Ph.D., in April 2013. Dr. Abrams obtained a history from defendants, conducted psychological testing with the MCMI-III assessment tool, and evaluated their respective mental health.

With respect to appellant, Dr. Abrams noted in his written report her two prior arrests for DWI, but concluded that her use of alcohol "is not concordant with alcoholism." He further noted that the MCMI-III testing of appellant did not reveal "any mental defects or pathology," although she "responded to the test in a somewhat defensive manner."

On the whole, Dr. Abrams concluded that appellant and her husband had each presented themselves in a manner "concordant with that of generally stable individuals." The expert found, although appellant was "somewhat anxious[,]" both spouses were "both open and cooperative[,]" spoke in "a fluent, rational and appropriate" manner, did not demonstrate "any deficits in memory functioning, concentration, or conversational fluency[,]" and "exhibited thought processes that were coherent and logically connected." He also found that no psychotic symptoms were either "observed or elicited."

Prior to the Law Division proceeding, appellant also saw Gerald Opthof, LPC, LCADC,3for a substance abuse evaluation.4 According to Opthof's report dated April 8, 2013, appellant admitted to him the two DWI incidents and one domestic dispute. However, she characterized the domestic dispute to Opthof as inconsequential, stating that "[o]n the way home they were joking around, when her husband stated that she [] would not hit him. She jokingly hit him and he got upset and pulled the over and exited the vehicle." Appellant also stated to Opthof that "[s]he never moved into the driver's seat since she knew better from her 1st DWI."

Appellant also explained the 2006 DWI incident to Opthof. As he described it, "she had a few drinks. It was bad weather, raining very hard and that she was on her way to her new home, but was unsure of the way and could not see the street signs." She further explained to Opthof that she was pulled over by police because her car was "crooked as she was looking at the street sign."

Notably, appellant did acknowledge to Opthof that she had received mental health treatment in the past. His report states in this regard as follows

[Appellant] reports she has been in psychotherapy in her lifetime. She reports that she was seeing a psychotherapist for anxiety/panic attacks due to her last D.W.I. offense. She is not currently in psychotherapy.

When questioned about various psychological/emotional problems [appellant] reports that she has only experienced anxiety/panic attacks. She reports that her last panic attack was in 2006. She denies ever being prescribed any medication for psychological/emotional symptoms.

[Appellant] denies having suicidal thoughts or plans. She denied having any homicidal thoughts or plans at this time.

The report does not identify the name or professional status of the "psychotherapist" who treated appellant. Nor is there any testimony or other proof in the record that specifies that information.

Opthof's report concludes

It is in my professional opinion that [appellant] does [not]5have a substance dependence disorder. She does not meet the DSM IV criteria for having a substance abuse disorder. She does not appear to be a threat to herself or others. It is not recommended that [appellant] need any substance abuse counseling.

Appellant and her husband appeared with their counsel for the hearing before a Law Division judge on July 24, 2013. The State's interests were represented at the hearing by the township's attorney. The hearing, which began in the middle of the afternoon, first focused on the denial of the husband's permit application.

The State presented two witnesses in support of the denial: the Chief of Police and a township detective. The detective had investigated a DWI incident involving the husband (but not appellant) in Kentucky, in which he had pled guilty after being stopped by police and producing an unlawful BAC test result. The State also moved into evidence the husband's driving record, an investigation report, and a report detailing the husband's Kentucky DWI.

Defense counsel presented testimony from the husband. His testimony mainly concerned his own application and personal circumstances, although he also tangentially discussed his wife's circumstances and the professional evaluations that had been performed by Dr. Abrams and Opthof. The defense moved into evidence Dr. Abrams' report.6 The State presented no competing expert reports or testimony.

Following the husband's cross-examination by the State, counsel presented closing argument concerning his application. The judge then immediately issued an oral opinion granting the husband's application. In that ruling, the judge concluded the husband's history did not "rise[] to the level of severe danger to public safety should [he] be issued a firearms purchaser ID[.]" The judge therefore found the husband "qualified" for the issuance of a permit.7

Due to the late hour, the trial court decided to reschedule to a future date the presentation of testimony and argument concerning appellant's own application. For reasons that are not entirely clear, including the impact of judicial retirements in the vicinage, difficulties arose in rescheduling that hearing. According to clarifying letters we have received at our invitation from counsel, the parties eventually agreed to forego a continued evidentiary hearing as to appellant. Counsel further agreed to allow appellant to submit a written certification in lieu of her testimony.

Appellant's certification,8which is dated January 21, 2014, is essentially confined to addressing the possible discrepancy between appellant's conceded past treatment by an unidentified "psychotherapist," and her "No" answer to Question 26 on the permit form concerning whether she had been treated in the past by "a doctor or psychiatrist or at any hospital or mental health institution." According to her certification, appellant answered "No" on the form "because [she] saw a therapist, not a doctor or psychiatrist. This was at the advice from a previous [defense] attorney with regard to [her] refusal ticket. [She] only went once or twice. Since question 26 doesn't ask about therapists, [she] answered no."

The matter ultimately was referred to a Law Division judge who had not presided over the husband's July 2013 hearing. On July 8, 2015,9that successor judge issued a nine-page written opinion and accompanying order denying appellant's firearms permit request.

As a significant aspect of the trial court's reasoning, it focused upon what it perceived to be a knowingly false response by appellant to Question 26 on the application form, concerning her mental health treatment history

[T]he Police Chief's denial of [appellant]'s FPIC application was predicated upon careful investigation and sound reasoning. For example, her answer in Section 26 of the application, wherein she indicated that she had never been treated by a doctor, hospital, psychiatrist or mental institution was contradictedby the report of her own doctor/expert . . . This alone serves to disqualify [appellant] from receiving a FPIC[.]

[(Emphasis added).]

The court was unpersuaded by appellant's attempt in her certification to explain why she had answered Question 26 in the negative. The court concluded that her explanation was "a disingenuous attempt to mitigate the fact that [she] withheld information under the guise of 'splitting hairs' in an effort to have her application viewed in a more favorable light."

The trial court separately found that appellant's "prior [DWI/refusal] convictions, which occurred within the past eleven years, support a finding that she is a habitual drunkard [within the meaning of that term in N.J.S.A.2C:58-3(c)(2)] and a threat to the public health, safety and welfare." In reaching this conclusion, the court relied on the reasoning in State v. Freysinger, 311 N.J. Super. 536 (App. Div. 1997) (granting the State's application for forfeiture of the defendant's firearms based on the statute's "habitual drunkard" standard).

II.

Appellant argues that the record and the applicable law do not support the trial court's denial of her permit application. She maintains that the court erred in finding that she knowingly falsified her response to Question 26 on the application. She also contends that the record fails to show that she poses a threat to the public health, safety, or welfare, because she is not presently a habitual drunkard or an alcoholic. She further argues that the trial court's approval of a firearms permit for her husband should call for the same outcome as to her, under "law of the case" principles.

A.

Under N.J.S.A. 2C:58-3, New Jersey residents who apply for firearms permits are eligible to receive an FPIC unless they fail because of one of the statutory "disabilities" under N.J.S.A.2C:58-3(c). That section states that no handgun purchase permit or FPIC will be issued, in pertinent part

(2) To any drug dependent person as defined in section 2 of P.L.1970, c.226 (C.24:21-2), to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;

(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card;

. . . .

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare;

[N.J.S.A.2C:58-3(c) (emphasis added).]

In considering decisions by trial courts applying these and the other statutory factors, well-settled principles of appellate review apply. Specifically, "[w]e review a trial court's legal conclusions regarding firearms licenses de novo." In re N.J. Firearms Purchaser Identification Card by Z.K., 440 N.J. Super. 394, 397 (App. Div. 2015) (citing In re Sportsman's Rendezvous Retail Firearms Dealer's License, 374 N.J. Super. 565, 575 (App. Div. 2005)). However, appellate review of a trial court's factual findings on such matters is "limited." In re Z.L., 440 N.J. Super. 351, 355 (App. Div.), certif. denied, 223 N.J.280 (2015).

"Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence." In re Return of Weapons to J.W.D., 149 N.J.108, 116-17 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J.599, 607 (1989)). Even so, the record should be sufficiently complete and definitive to support such factual findings. Because of the importance of developing an appropriate record to generate factual findings, the statutory scheme has been interpreted to call for evidentiary hearings in the Law Division to prove or disprove the critical facts bearing on a contested permit application. SeeIn re Dubov, 410 N.J. Super. 190, 200 (App. Div. 2009) (noting that "the informality of a chief of police's initial consideration of an application for a gun permit requires an evidentiary hearing when an applicant appeals a denial to the [Superior] Court"); see also Weston v. State, 60 N.J. 36, 45 (1972).

B.

The non-testimonial record in the present case, in which appellant's individual evidentiary hearing was ultimately cancelled upon the mutual consent of the parties, is inadequate for proper appellate review of the trial court's factual findings and legal conclusions. In addition, certain pertinent aspects of the submitted record are not discussed in the trial court's otherwise-detailed written opinion.

The most significant deficiency in the record concerns appellant's response to Question 26 on the application. The question, which appears on a standard form issued by the State Police, ambiguously asks the applicant whether she has been treated in the past by "any doctor or psychiatrist" for "any mental or psychiatric condition[.]" The form does not specify exactly what kind of "doctor" is envisioned by the question. It does not make clear whether the inquiry is confined to a doctor of medicine, which would include a psychiatrist, or whether it extends to non-physicians who may have professional degrees, such as psychologists who have a Ph.D. and thereby may be referred to as a "doctor." The form does not take into account the fact that psychotherapy can be performed by a variety of professionals, not all of whom have the title or status of a "doctor." These professionals may include psychologists who have only master's degrees, professional counselors, licensed social workers, and other recognized mental health providers who are not "doctors."

In her certification, appellant tried to clarify why she responded "no" to Question 26 by explaining that she had been treated by a therapist who was not a psychiatrist or physician. She further asserted that she had considered the past advice of her counsel in the DWI matters when she was filling out this portion of the permit application.

The record in its present state is insufficient to evaluate conclusively whether or not appellant's "No" response to Question 26 was false, let alone "knowingly" false. The record is silent on exactly what credentials were possessed by appellant's treating psychotherapist, and whether or not he or she holds a Ph.D. or other equivalent degree. The expert report by Opthof, who is himself neither a physician nor "doctor," does not identify the credentials of the professional(s) who treated appellant in the past. The trial court's finding that appellant's assertion was "contradicted" by Opthof's report is not supported by the present record.

If appellant had testified at her originally-planned hearing, these critical omissions from the record presumably could have been cured and the ambiguities clarified. In addition, the trial court would have had the opportunity to evaluate appellant's testimonial demeanor and make a more informed assessment of whether or not she had "knowingly" provided false material information on her application form in violation of N.J.S.A.2A:58-3(c)(3). Given the shortcomings of the existing record, we cannot and will not pass judgment on whether the trial court had a sound basis to find that appellant's response to Question 26 was "disingenuous" and that she had "knowingly" responded to that query in a "false" manner.

We appreciate that in "waiving" an evidentiary hearing, counsel were attempting to save time and further expense in a case that already had long remained on the docket since the time of the July 24, 2013 hearing concerning the husband's application. Nevertheless, the terse certification provided by appellant to supplement the record unfortunately raised as many questions as it definitively resolved.

We also do not lose sight of the difficult situation of the trial judge, who inherited this partially-completed matter long after another judge had presided over the July 2013 initial hearing. Even so, the incomplete and ambiguous paper record supplied to us is insufficient to enable meaningful appellate review. Moreover, the parties' decision to waive a hearing is contrary to the principles of Dubov, supra, 410 N.J. Super. at 200, favoring the development of an appropriate record at an evidentiary hearing in gun permit cases.

In addition, we are not convinced that the record in its present state is adequate to support the trial court's finding that appellant is "presently an habitual drunkard" who is thus disqualified from obtaining a firearms permit under N.J.S.A.2C:58-3(c)(2). The trial court's opinion fairly describes appellant's past offenses for DWI and refusal to submit to a chemical test. However, the decision does not explain why Opthof's unrebutted expert opinions that appellant has no substance dependence disorder, and that she does not need any substance abuse counseling, are incredible. The court's opinion does mention Opthof's report, but it unfortunately does not explain why his expert findings are unpersuasive.

The trial court's citation to Freysinger, supra, was appropriate with respect to that case's general discussion of the legal criteria for what constitutes an "habitual drunkard" under the statute. However, the factual situation in Freysinger, which involved firearms forfeiture by someone who had been found guilty of four drunk driving related infractions (two DWI convictions and two refusal convictions) and who struck a pedestrian with his car without stopping, is more extreme than appellant's circumstances. Id., 311 N.J. Super. at 539-40.

The sole evidence in the record on the subject of appellant's drinking habits reflects that she tested negative for alcohol during her April 2013 evaluation by Opthof, and that she reported to Opthof in their session that she had not consumed alcohol in the past twelve months. There is no competing proof to the contrary. Nor was this information the subject of any cross-examination or judicial questioning at an evidentiary hearing. Moreover, given the intervening passage of time between Opthof's April 2013 report and the court's July 2015 decision, the record was not well suited to concluding whether, as the statute requires under this exception, appellant was "presently" in July 2015 what the law deems to be a "habitual drunkard."10

To be sure, appellant's past commission of two alcohol-related offenses is troubling and has significant relevance to the critical question under N.J.S.A.2C:58-3(c)(5) of whether she poses a sufficient risk to public health, safety and welfare to be denied a firearms permit. Despite the fact that her circumstances appear less extreme than those in Freysinger, we will not resolve at this time whether or not she meets the "habitual drunkard" disqualification under the statute. The record on that score must be more fully developed on remand, with her testimony and, perhaps, that of Opthof and any competing expert that the State may choose to retain.

For these many reasons, the matter must be remanded to the Law Division for an evidentiary hearing, in light of the concerns we have outlined in this opinion. In the interim, appellant's permit application shall remain denied unless and until the trial court determines otherwise.

We reject appellant's claim that her permit should be granted under the "law of the case" doctrine, which does not mandate the same outcome in her own case as was attained in her husband's case. SeeState v. Reldan, 100 N.J. 187, 203 (1985). It would not be illogical for a court to conclude that appellant, because of her own personal conduct and characteristics, is disqualified from obtaining a firearms permit, even though her spouse does not pose a similar threat to the public health, safety and welfare. Appellant's reliance on In re Application of Kathleen Clark to Purchase a Handgun, 257 N.J. Super. 152 (App. Div. 1992), is misplaced. That case simply recognizes that the State and the court are authorized but not required to deny a spouse's application when a person disqualified from possessing a firearm resides in the same household. Id.at 153-54. Clark does not signify that a permit approval as to one spouse guarantees approval as to the other spouse.

The balance of appellant's remaining points lack sufficient merit to warrant discussion. R.2:11-3(e)(1)(E).

Remanded for an evidentiary hearing and reconsideration of appellant's application, based upon the expanded record to be developed. We do not retain jurisdiction.

1 We use initials because of the necessity to discuss appellant's mental health assessment and past treatment.

2 Because appellant's spouse shares the initials "S.P.", we shall refer to him as "her husband," recognizing that the couple was married by the time they submitted their respective applications.

3 The professional initials "LPC, LCADC" refer to "Licensed Professional Counselor, Licensed Clinical Alcohol and Drug Counselor."

4 Neither Dr. Abrams nor Opthof testified. No objection was made to the trial court's consideration of their hearsay reports. But see N.J.R.E. 808 (authorizing parties to object to the admission of complex expert opinions contained in hearsay reports).

5 Based on the context of Opthof's written impressions, it appears that the word "not" was left out of this passage inadvertently.

6 It is undisputed that the court was also supplied at some point with Opthof's written report, although it does not appear to be part of Exhibit "D-1" moved into evidence at the hearing, which contained the report of Dr. Abrams.

7 The State apparently has not appealed the court's decision concerning the husband.

8 The certification was not supplied in the parties' appendices on appeal, but was thereafter furnished to us at our request.

9 The record and correspondence supplied to us does not fully account for the delay of over a year from the January 2014 submission of appellant's certification to the July 2015 final disposition, although it may well have been a result of transitional events related to judicial retirements and reassignments.

10 We reject appellant's argument that the trial court improperly found her to be an "alcoholic" under N.J.S.A. 2C:58-3(c)(3). The court made no such finding.