STATE OF NEW JERSEY v. ARTHUR VINOGRADSKY

NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

ARTHUR VINOGRADSKY,

Defendant-Appellant.

_____________________________________________________

May 24, 2016

Submitted May 17, 2016 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-156-15.

Evan F. Nappen, attorney for appellant (Jeffrey A. Skiendziul, on the brief).

Gurbir S. Grewal, Acting Bergen County

Prosecutor, attorneyfor respondent (Annmarie Cozzi,Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On June 12, 2013, defendant's wife sought protection from him, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-27 to -35, by filing a complaint and obtaining a temporary restraining order, which called in part for removal of defendant's firearms from their home. Over the next few days, defendant was arrested and charged with possession of both high capacity magazines, N.J.S.A. 2C:39-3(j), and hollow point ammunition, N.J.S.A. 2C:39-3(f)(1), as well as simple assault, N.J.S.A. 2C:12-1(a)(1). A few days later, defendant's wife was permitted to dismiss her domestic violence complaint. And, later still, with regard to the pending criminal complaint, defendant was admitted into pretrial intervention, which he successfully completed.

Thereafter, the State moved for forfeiture of defendant's weapons, asserting that N.J.S.A. 2C:58-3(c)(5) disqualified defendant from firearm ownership. At an evidentiary hearing at which the State sought to prove defendant's assault of his wife and his possession of unlawful ammunition magazines were grounds for forfeiture1 the judge heard testimony from three witnesses. The judge found defendant and his wife were not credible when they claimed they could not recall the specific details of the June 12 incident; a law enforcement officer testified that defendant's wife had a splint on a finger and was "a little bit scared" when she arrived at the police station to complain of the assault.2 The judge disqualified defendant from firearm ownership for reasons expressed in a written opinion, which incorporated her credibility findings to which we must defer, In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997), and her determination that defendant assaulted his wife on June 12, 2013.3 The judge also provided the following observations regarding the significance of the criminal charges disposed of by way of pretrial intervention

The fact that the defendant completed the [p]re-trial [i]ntervention program is irrelevant to the [c]ourt's analysis of whether he poses a risk to the public health, safety or welfare. He admitted to having in his possession three illegal nine millimeter magazines. He attempted to justify his conduct by claiming ignorance of New Jersey's firearms regulations . . . . His ignorance cannot be permitted to diminish his responsibility or conduct.

The defendant offered no testimony or evidence that he has taken any steps to familiarize himself with New Jersey's firearms regulations. Under the circum-stances, the defendant continues to pose a significant risk to the health, safety and welfare.

Defendant appeals, arguing

I. VINOGRADSKY SUFFERS FROM NO STATUTORY DISQUALIFIER TO FIREARM POSSESSION UNDER [N.J.S.A.] 2C:58-3(c)(5), AND THE COURT BELOW INCORRECTLY FOUND THAT HE WOULD PRESENT A DANGER TO THE PUBLIC HEALTH, SAFETY, [OR] WELFARE IF HIS FIREARMS WERE RETURNED.

II. MERE POSSESSION OF LARGE CAPACITY MAGAZINES WHICH DID NOT EVEN FIT THE FIREARMS THAT WERE SEIZED SHOULD NOT PROHIBIT THE DEFENDANT FROM EXERCISING HIS SECOND AMENDMENT RIGHTS UNDER [N.J.S.A.] 2C:58-3(c)(5).

III. THE COURT ERRED BY MISAPPLYING THE HOLDING IN 6 SHOT COLT[4] TO THE PRESENT CASE (NOT RAISED BELOW).

IV. THE COURT BELOW ERRED BY BASING ITS DENIAL UPON MERE SPECULATION AND HEARSAY, AND FAILED TO TAKE INTO CONSIDERATION THE PRESENT CONDITION OF VINOGRADSKY (NOT RAISED BELOW).

V. DEFENDANT SHOULD NOT BE DENIED HIS FUNDA-MENTAL, INDIVIDUAL, CONSTITUTIONAL RIGHT TO KEEP ARMS UPON AN UNCONSTITUTIONALLY VAGUE AND OVERBROAD BALANCING ACT.

We find insufficient merit in these arguments to warrant further discussion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth by Judge Frances A. McGrogan in her thorough and well-reasoned written opinion.

We add only that we find no merit in defendant's criticism of the judge's reliance on the trial court opinion in 6 Shot Colt, supra, 365 N.J. Super. at 417, where it was held that possession of a banned assault rifle may be considered when determining whether forfeiture is authorized by N.J.S.A. 2C:58-3(c)(5). More recently, we expressed our agreement with 6 Shot Colt and, in fact, held that "knowing possession of an assault firearm contrary to this State's gun control laws is sufficient basis for forfeiture under N.J.S.A. 2C:25-21(d)," without a need to find a firearm owner's unfitness or a danger to the public under N.J.S.A. 2C:58-3(c)(5). State In Interest of C.L.H., 443 N.J. Super. 48, 60 (App. Div. 2015). In adhering to these principles, we similarly conclude that defendant's unlawful possession of high capacity magazines, as well as his studied indifference to our gun laws, see In re Osworth, 365 N.J. Super. 72, 81 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004), were relevant factors to be considered and weighed in determining whether to require forfeiture pursuant to N.J.S.A. 2C:58-3(c)(5).

We also reject defendant's argument that forfeiture in these circumstances infringed his Second Amendment right to keep and bear arms. To be sure, this Nation's highest court has determined the Second Amendment enacted for the purpose of ensuring "[a] well regulated Militia" guarantees an individual a "right to possess a handgun in the home for purpose of self-defense," McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S. Ct. 3020, 3050, 177 L. Ed. 2d 894, 929 (2010), to which we are bound, In re Wheeler, 433 N.J. Super. 560, 592 (App. Div. 2013). But, the Court expressly observed that it did not intend to concomitantly bar the states' enforcement of their "longstanding prohibitions" on firearm possession. See Dist. of Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 2816, 171 L. Ed. 2d 637, 678 (2008) (recognizing that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited"). We reject the argument that, in these circumstances, the application of N.J.S.A. 2C:58-3(c)(5) serves only to deprive defendant of his Second Amendment right. Defendant assaulted his wife and acknowledged possession of large capacity ammunition magazines prohibited by law; these circumstances, as well as defendant's unwillingness to familiarize himself with our gun control laws, more than justified application of N.J.S.A. 2C:58-3(c)(5), and fully warranted the judge's determination that defendant be barred from firearm ownership.

Affirmed.

1 The prosecutor took the position at the hearing's commencement that ownership of the ammunition referred to in the criminal complaint was not unlawful in the circumstances and that the State would rely on defendant's possession of high capacity magazines and his assault of his wife as grounds for forfeiture.

2 The prosecutor refreshed the wife's recollection with a copy of the police report. She then acknowledged that on the day in question defendant physically attempted to yank her engagement ring off her finger, causing bruising and a sprain. In his testimony defendant also conceded this event occurred, admitting he "went overboard" and attempted "to pull the ring off of her finger."

3 The judge found that defendant "committed an act of assault against his wife" and that the wife's "original claim that there was a history of domestic violence between them is more credible than her trial testimony."

4 State v. 6 Shot Colt 357, 365 N.J. Super. 411 (Ch. Div. 2003).