STATE OF NEW JERSEY v. 1-H&R 1871 PARDNER PUMP

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-5729-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

1-H&R, 1871 PARDNER PUMP, 12 GA,

SERIAL NO. 553783; 1-S&W, MODEL MP,

40 CAL., SERIAL NO. DTV5644, PISTOL

WITH MAGAZINE; 1 FIREARMS ID CARD;

10-12 GA, REMINGTON SHELLS;

and EXTRA MAGAZINES,

Defendant-Appellant.

______________________________________

December 15, 2016

Submitted November 3, 2016 Decided

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FO-04-0134-13.

Wayne Powell, attorney for appellant.

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Matthew T. Spence, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tahron Miles appeals from a June 26, 2014 Family Part order forfeiting and transferring title of his weapons to the Camden County Prosecutor's Office and forfeiting his Firearms Purchaser Identification (FPI) card.1 We vacate the order under review and remand for a new hearing.

I

In June 2012, N.L. (Nancy)2 filed a domestic violence complaint and obtained a temporary restraining order (TRO), see N.J.S.A. 2C:25-17 to -35, against Miles, with whom she was in a dating relationship. In her complaint, Nancy alleged Miles hit her in the forehead with the palm of his hand and threatened to kill her if she reported his conduct to the police and caused him to lose his job. The TRO directed Miles to surrender all of his firearms, weapons, and permits to carry weapons; the parties do not dispute he complied with this provision.

At the time, Miles was a police officer in the Camden City Police Department. Because of the entry of the TRO, Miles was disarmed of his duty weapon. Two weeks later, Nancy dismissed the TRO, explaining to the court she did not want Miles to lose his position as a police officer because of his conduct. Notwithstanding, the State moved for forfeiture of Miles' weapons and FPI card on the ground he posed a threat to public safety. See N.J.S.A. 2C:25-21(d)(3) and N.J.S.A. 2C:58-3.

Thereafter, Miles and the State agreed that if he completed an anger management course and submitted to a psychological evaluation, the State would consider allowing Miles to be rearmed as a police officer. Miles fulfilled these conditions and after its review of the psychological evaluation, the State consented to Miles possessing his duty weapon. In a letter dated November 9, 2012, to the Camden City Police Department, an assistant prosecutor advised Miles' personal weapons would likely be returned to him by court order at a later date.

However, two days later, the State revoked its consent to Miles possessing his duty weapon when it discovered he had been charged with simple assault, N.J.S.A. 2C:12-1(a)(1), as the result of his conduct during an incident at a local nightclub. Although in February 2013 a municipal court dismissed the charge,3 the State determined to pursue the weapons forfeiture action. The Camden City Police Department disbanded, but Miles secured a position as a police officer with the Newark Police Department.

In July 2013, the parties appeared for the weapons forfeiture hearing, but the matter was adjourned to September 10, 2013, when Miles requested time to retain counsel. By the time the parties appeared in court on September 10, 2013, Miles determined he would represent himself; however, the hearing was adjourned to October 8, 2013, because the court was too busy with other matters to start the hearing.

When the parties appeared before the court on October 8, 2013, Miles requested an adjournment to retain counsel. He explained he had been prepared to represent himself until he noticed a number of individuals in the courtroom who had been present during the nightclub incident. None of them had been present when the parties previously appeared in court. Miles then realized the State was going to use the nightclub incident, in addition to the domestic violence one, to prove its case against him.

Until then, Miles assumed the State was going to rely upon only the domestic violence incident to prove its case, because it was that incident that led to the removal of his weapons. He also told the court he had not received any documents to suggest "the two incidents were linked," and the nightclub incident was one in which there were "no charges or anything coming from it[.]" Because he was not capable of defending himself against the nightclub incident, he requested an adjournment to retain an attorney.

The assistant prosecutor confirmed the State was going to use both incidents to show why Miles' weapons and FPI card should be forfeited. The assistant prosecutor did not assert Miles had been on notice the nightclub incident would be raised at the hearing. The assistant prosecutor merely noted Miles had "known about both matters" and, in the State's "mind," both incidents were linked.

The court denied the adjournment request and the hearing commenced that day. The State called six witnesses and rested. When the hearing resumed three days later, Miles had managed to retain the attorney who represented him in the nightclub incident. After the hearing, the court determined Miles' conduct during the domestic violence and nightclub incidents precluded the return of his weapons and FPI card because he posed a threat to public health, safety, and welfare.

II

On appeal, Miles contends the trial court abused its discretion when it denied his request to adjourn the hearing. In addition, he contends there was insufficient evidence he posed a threat to public safety, health, and welfare, and was thus ineligible to possess a weapon or FPI card. We start with the first argument.

Whether to grant an adjournment lies within the discretion of the trial court, which will be reversed only if the action was unreasonable in light of the accompanying and surrounding circumstances and resulted in irremediable prejudice to the moving party. Stott v. Greengos, 95 N.J. Super. 96, 100 (App. Div. 1967). We note reaching and disposing of matters on the calendar is a laudable objective, but it is one that does not take priority over the "real business of the courts, which is to dispense substantial justice on the merits." Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). "We must never forget that courts exist for the sole purpose of rendering justice according to law." State v. Volpini, 291 N.J. Super. 401, 416 (App. Div. 1996) (quoting Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div.), certif. denied, 7 N.J. 80 (1951)).

Here, on July 30, 2013, the court granted Miles' request for an adjournment of the hearing so he could obtain counsel, adjourning the hearing to September 10, 2013. Miles then resolved to represent himself and was ready to proceed on the latter date. Through no fault of either party, the matter was adjourned to October 8, 2013. It was at that time Miles became aware the incident at the nightclub was going to be raised at the hearing, and asked for an adjournment to secure counsel.

Under the circumstances, Miles' request was not unreasonable. He was ready to proceed on September 10, 2013, and would have proceeded on October 8, 2013, but for discovering at that time the nightclub incident was going to be raised during the hearing. There is no indication the adjournment request was made in bad faith or with a purpose to unduly delay the hearing or prejudice the State. To the contrary, the record suggests Miles' request was motivated by a genuine desire to be represented by counsel when he realized he could not competently represent himself. Before that realization, he was ready to proceed, unrepresented. In addition, there was no evidence the State could not have re-called its witnesses at a later date or would have been otherwise prejudiced by an adjournment.

On the other hand, the failure to grant the adjournment prejudiced Miles. We reviewed the testimony of the six witnesses called by the State before Miles retained an attorney. The testimony of five of these witnesses was pivotal to the court's finding Miles was not fit to possess a weapon. We note the State's direct examination of these witnesses included objectionable and prejudicial leading questions, to which Miles did not object, and some of the witnesses' answers contained inadmissible hearsay. Likely these questions and answers would have been objected to by counsel had Miles been represented. Miles' cross-examination of the State's witnesses was unskilled. Many of his questions drew out or repeated testimony damaging to his case, questions the average attorney would know not to ask. In essence, Miles was "unable to match the ability of a competent attorney to expose weaknesses in the opponent's case." See In re Patricia L. v. Steven L., 506 N.Y.S.2d 198, 201 (N.Y. App. Div. 1986).

Given the circumstances under which Miles requested the adjournment and the prejudice to Miles by not having counsel from the outset of the hearing, we conclude the trial court erred by not adjourning the matter to enable him to retain counsel. He was entitled to "a reasonable modicum of judicial indulgence." Tucci v. Tropicana Casino, 364 N.J. Super. 48, 54 (App. Div. 2003); see also Pepe, supra, 11 N.J. Super. at 389 ("No eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case.")

In light of our disposition of this issue, we need not address Miles' remaining argument. The June 26, 2014 order is vacated, and the matter remanded for a new trial.

Vacated and remanded. We do not retain jurisdiction.

1 A list of the weapons forfeited was not provided, but we surmise from the caption they included one Harrington & Richardson (H&R) firearm and a twelve-gauge shotgun.

2 In this opinion we use initials or pseudonyms to protect the privacy of witnesses.

3 The record does not explain why the charge was dismissed.