IN THE MATTER OF THE APPLICATION OF KEVIN QUALE

 
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The status of this decision is

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(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3147-04T53147-04T5

IN THE MATTER OF

THE APPLICATION OF KEVIN QUALE

_________________________________

 

Submitted November 2, 2005 - Decided

Before Judges Wefing and Fuentes.

On appeal from an order of the Superior

Court of New Jersey, Essex County.

Evan F. Nappen, attorney for appellant Kevin

Quale (Richard V. Gilbert, on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent State of New Jersey

(Kenneth P. Ply, Assistant Prosecutor,

on the brief).

PER CURIAM

Kevin Quale appeals from a trial court order denying his application for a permit to purchase a firearm. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

In June 2002 Quale, then twenty-six years old and a resident of Orange, filed an application with the chief of the Orange Police Department for a permit to purchase a handgun. He answered all the questions on the application. He had never been convicted of a disorderly persons offense or adjudged a juvenile delinquent, had never been convicted of a crime that had been expunged or sealed, had never been refused a permit to purchase a handgun or had a carry permit or firearms identification card revoked. He was not an alcoholic and not dependent upon narcotics and was not being treated for a drug abuse problem. He had no physical defects or illness and had never been confined for treatment of a mental or psychiatric condition; neither had he been treated by a doctor for any such condition. He was not subject to a domestic violence order and had never been convicted of domestic violence. Finally, he was not a member of any organization which advocated or approved of violence to overthrow the government. N.J.S.A. 2C:58-3c. Quale did not get an immediate response to his application, and in October 2002, a representative of the Essex County Sheriff's Department wrote to inquire if the application could be processed. The representative noted in the letter that Quale was enrolled in the Essex County Police Academy as a recruit for the position of deputy sheriff and, as such, Quale would be required to purchase his own firearm. No response was received. In July 2003, more than one year after the initial application had been filed and had not been acted on, Quale's attorney wrote on his behalf, noting that N.J.S.A. 2C:58-3f requires that an application be acted upon within thirty days. In August 2003 the application form was returned to Quale with the notation that it had been denied. The reason cited was that issuing the permit "would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c(5).

Quale's attorney, by letter dated August 20, 2003, promptly requested a hearing before the trial court pursuant to N.J.S.A. 2C:58-3d. The statute directs that such a hearing shall be held within thirty days. Despite regular letters from the attorney requesting that the trial court schedule such a hearing, the hearing did not take place until January 2005, nearly a year and a half after the attorney's initial request.

Two witnesses testified at this hearing, Detective Sergeant John Lay of the Orange Police Department and Quale. We note that the hearing was not structured in the manner recommended by Weston v. State, 60 N.J. 36 (1972), but Quale makes no argument in that regard.

Detective Lay testified first. He said that during the course of his investigation of Quale's application, he learned that Quale had filed an earlier application to purchase a firearm, in 1999, that had been approved. The weapon that Quale had purchased, however, had been subsequently stolen.

Lay had not been involved in the investigation of that theft. It is not clear from the record before us whether Lay's testimony as to the circumstances surrounding the theft was based upon his review of records of the incident created at the time or his interviews of officers who investigated it. McLelland v. Moore, 343 N.J. Super. 589, 607 (App. Div. 2001) (noting that a permit to purchase a firearm may not be denied solely upon hearsay evidence). In any event, Lay testified that Quale had been at a local pistol range for target practice with an individual named Rasheed Wilson. When the two men finished practicing, Quale unloaded the gun, placed it in the box in which it had been purchased and locked the box in the trunk of the car Wilson was driving. Wilson drove to Quale's house and parked the car. Quale went into the house to use the bathroom. When he returned, the car, and the gun locked in its trunk, was gone. Quale called the police and reported that the vehicle and the gun had been stolen.

Lay testified that the car was registered in the name of Elliot Barrian. Barrian never reported the car missing, and it was later discovered at Barrian's address, but the gun was missing from the trunk. Lay said that the detectives investigating the incident concluded Barrian had taken the car but that he, Lay, had been unable to locate Barrian.

The gun was recovered two years later, in 2001, when it was used in a gang-related shooting. A check of the serial numbers identified the weapon used in the shooting as the one Quale had left locked in the trunk of the car. There is absolutely no evidence linking Quale in any way to that shooting. Lay admitted on cross-examination that it would be correct to say that Quale had been the victim of a crime.

Lay testified that two factors led him to deny Quale's 2002 application for a permit to purchase a firearm. First, he considered Quale negligent in leaving the weapon in the car when he went to use the bathroom. Further, he testified that when Wilson was interviewed by the police in connection with the disappearance of the car, he initially supplied a fictitious name. The combination of those two factors led to the determination that it would not be in the interest of the public health, safety and welfare to issue a permit to Quale.

Quale testified in support of his application. He said he had applied for the gun permit because he was trying to get a job in law enforcement. He also detailed the various civic and volunteer activities in which he had been engaged.

Quale recounted what occurred at the time of the theft. He said that when Wilson drove him home from the pistol range, he got out of the car to go inside and use the bathroom, and Wilson locked the car. He said he told Wilson he wanted to get the gun, but Wilson said they would retrieve it after using the bathroom. The car was taken while they were inside, before Quale had the opportunity to go back and get the gun. He immediately contacted the police.

Quale testified that he and Wilson were questioned separately at the police station about the incident and that he had no knowledge that Wilson had supplied a fictitious name to the police until the police told him. He testified that he had had no dealings with Wilson since the incident occurred.

After hearing closing arguments, in which Quale's attorney urged that his client had been "set up" in 1999, the trial court gave its oral opinion. It noted that it considered it "curious" that the vehicle's owner, Barrian, had never reported the car stolen and that the car was recovered within several feet of Barrian's residence.

The trial court proceeded, however, to consider the matter in terms of whether the denial of a permit to Quale constituted an abuse of discretion. It said that Quale had had a continuing obligation in 1999 to see to the security of the gun and that he had failed to do so and that there had been no abuse of discretion in denying him a permit.

The trial court, however, employed the wrong standard of review. The Supreme Court addressed the question at length in Weston v. State, supra.

The function of the Police Chief as the local administrative official charged with responsibility for the original decision to grant or withhold the firearms purchaser identification card involves largely the exercise of an informal discretion. Both his investigation of the application and his decision are made ex parte (except for the conference referred to above which the Chief should hold with the applicant in the future in instances where he decides to deny the application). When the investigation is completed, the results are related to the qualifications laid out in the statute (and to them alone, see N.J.S.A. 2A:151-36), and a determination reached by the Chief to grant or deny the application. The finality of that decision considered in the light of (1) the absence of any meaningful participation by the interested party in the process by which it is reached, and (2) the mandate of the statute that the applicant should receive the identification card "unless good cause for the denial appears," invests the Chief's action with a quasi-judicial patina or informal adjudicatory character. So viewed, it follows that the basic justice aimed at by the Legislature in expressly providing for judicial review, can be achieved fairly only by a de novo hearing in the County Court. De novo in this context contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court. Such a judicial review compensates constitutionally for procedural deficiencies before the administrative official.

[60 N.J. at 45.]

The trial court here, however, by viewing the matter within the framework of an abuse of discretion standard, did not bring to bear the independent judgment it was obligated to exercise to conduct a de novo review. This independent judgment, moreover, must be exercised with a recognition that the department, having denied the permit, bears the burden of "proving the existence of good cause for the denial by a preponderance of the evidence." In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003).

We have considered whether it would be appropriate for this court to exercise its original jurisdiction to decide the merits of the question. We are satisfied such a course of action would not be warranted. From certain portions of the trial court's oral opinion we are uncertain whether it merely did not accept Quale's contention that he had been the victim of a "set up" at the time the car was taken or did not accept Quale's testimony as to what had occurred. The distinction may be of significance in determining whether good cause had been demonstrated for the denial of a permit. We thus remand the matter to the trial court for further proceedings. In light of the protracted delays Quale has encountered in his attempts to obtain a permit, we direct that the remand proceedings be completed within forty-five days of this opinion.

 
Reversed and remanded for further proceedings. We do not retain jurisdiction.

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A-3147-04T5

December 23, 2005