STATE OF NEW JERSEY v. J.V.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1268-05T11268-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.V.B.,

Defendant-Appellant.

_________________________________________

 

Argued: September 27, 2006 - Decided October 31, 2006

Before Judges A. A. Rodr guez and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Chancery Division, Family Part, Morris County, FO-14-37-06.

Sara Sencer McArdle argued the cause for appellant.

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor; Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

J.V.B. appeals from the September 30, 2005 Law Division order that: denied his application for return of five pistols; and required that a third party sale of the pistols be arranged through a licensed firearms dealer within sixty-days, with the sale proceeds going to J.V.B. We reverse and remand for further proceedings in accordance with this opinion and the procedures set forth in State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004).

These are the salient facts. As a result of a marital dispute in December 2004, J.V.B.'s wife obtained a temporary restraining order (TRO) against him pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (DVA). In accordance with the TRO, the police seized "for safekeeping" five pistols from J.V.B., who had acquired these pistols after obtaining permits issued by his local police chief. On January 5, 2005, J.V.B.'s wife withdrew the complaint. The TRO was vacated.

The Prosecutor did not seek forfeiture of the pistols or revocation of the permits pursuant to N.J.S.A. 2C:25-21d(1)(3).

Five months later, after the complaint was withdrawn, J.V.B. moved for the return of the pistols. The judge held an evidentiary hearing. J.V.B.'s wife testified that during their marriage, both she and her husband were treated for depression. Their psychiatrist prescribed anti-depressant medication for both of them. They also underwent marriage counseling for three and one-half years. She claimed that J.V.B. had threatened to harm himself and had once written a suicide note.

J.V.B. also testified and admitted taking anti-depressant medication. However, he did so only because his wife had refused to take her medication unless he did also. The medication "put him in a fog." Therefore, he discontinued it.

The Prosecutor sought to review J.V.B.'s psychiatric records. However, J.V.B. refused to authorize their release. Instead, he presented a letter from Lee J. Suckno, M.D., the psychiatrist who had treated him and his wife for marital therapy. Dr. Suckno opined that J.V.B. is not "imminently dangerous to self, others or property" and that "the present time," J.V.B. is on "no psychotropic medications."

The judge found that J.V.B.'s wife's testimony established a reasonable basis to question J.V.B.'s fitness to possess firearms. Because J.V.B. refused to authorize the release of his psychiatric records, he denied his request for the return of his five pistols.

On appeal, J.V.B. contends that, "the State is required to initiate court forfeiture proceedings within 45 days of possession or knowledge of weapons seized from a domestic violence defendant." The State has not filed a forfeiture action within forty-five days pursuant to N.J.S.A. 2C: 25-21d(1)(3). We will treat the State's refusal to turn over the pistols as a de-facto forfeiture action. However, if the State has not done so, a formal action must be filed by November, 15, 2006. If the State does not file an action for forfeiture by that date the pistols must be returned to J.V.B.

J.V.B. also contends that the State has failed "to show that the record below justified either forfeiture of the defendant's firearms or to permit the State's review of the defendant's therapy records." This court held in State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004), that during a forfeiture hearing certain procedures must be maintained to ensure the confidentiality of health records with regard to the examination of defendant's alleged "disability" pursuant to N.J.S.A. 2C:58-3c. This court acknowledged that a defendant has a right to confidentiality of his medical records unless circumstances arise in which a court may override this privilege. Cordoma, supra, 372 N.J. Super. at 537. Our Supreme Court in In Re Kozlov, 79 N.J. 232 (1979), articulated three "foundations" that must be established in order to find an implied waiver of a recognized privilege. Cordoma, supra, 372 N.J. Super. at 537. "There must be (1) a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) by a fair preponderance of the evidence, the party must show that the information cannot be secured from any less intrusive source." In Re Kozlov, supra, 79 N.J. at 243-44; Home News Pub. Co. v. State, 224 N.J. Super. 7, 18-19 (App. Div. 1988) (stating factors for the judge's consideration during review in camera of privileged documents.)

In this case, the judge deviated from the procedures enumerated in Cordoma and Kozlov. J.V.B. has a privilege with regard to his psychiatric records and the State is not automatically permitted to review them without a prior court evaluation. Cordoma, supra, 372 N.J. Super. at 537. In order to protect J.V.B.'s privilege from undue exposure of his psychiatric records, the judge deviated from Cordoma by failing to examine this confidential information in camera. Cordoma, supra, 372 N.J. Super. at 537; see Irval Realty v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 375, (1972) (holding that with regard to disputes pursuant to, The Right to Know Law, N.J.S.A. 47:1A-1, "the decision should be made by the trial judge to whom the issue will be presented, either on motion or otherwise. He should call for and examine the report or other record.").

Because J.V.B. directly placed his fitness to possess a firearm into question by requesting a hearing for the return of his property, the Kozlov factors are applicable. Cordoma, supra, 372 N.J. Super. at 537. While we acknowledge that pursuant to N.J.S.A. 2C:58-3c, the State has a clear interest in preventing statutorily "unfit" persons from possessing firearms, the judge still must provide safeguards to ensure J.V.B.'s privilege with regard to his psychiatric records. Cordoma, supra, 372 N.J. Super. at 538. We reverse because the Prosecutor and the trial court deviated from the procedures that govern return of weapons following a seizure pursuant to the DVA.

The voluntary dismissal of a domestic violence complaint does not mandate the automatic return of any firearms seized by law enforcement officers in connection therewith. State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004); In re Return of Weapons to J.W.D., 149 N.J. 108, 110 (1997). That is so because the issuance of a permit to purchase a firearm or firearms purchaser identification card is limited by N.J.S.A. 2C:58-3c(1) to (8) to persons who are not subject to any of eight enumerated disabilities. Disability (1) pertains to persons who have been convicted an act of domestic violence, and disability (6) to "any person who is subject to a restraining order issued pursuant to the [DVA] prohibiting the person from possessing any firearms." Thus, a permit previously issued may be revoked if the person becomes subject to any of the statutory disabilities. The Prosecutor retains the statutory right to seek the forfeiture of any seized firearms, provided it can show that defendant is afflicted with one of the legal "disabilities" enumerated in N.J.S.A. 2C:58-3c.

There is a statutory procedure. Within forty-five days of seizure, the State can petition the Family Part for a forfeiture order "to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for use, possession, or ownership of such weapons." N.J.S.A. 2C:25-21d(3); State v. Wahl, 365 N.J. Super. 356, 362 (App. Div. 2004). The proceedings are to be conducted in a summary fashion and the burden of proof is upon the State to show, by a preponderance of the evidence, that forfeiture is legally warranted.

After the hearing the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the court determines the owner is not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3c and finds that the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation no longer exists.

[N.J.S.A. 2C:25-21d(3).]

 
The September 30, 2005 order is reversed. The matter is remanded to the Law Division, Morris County.

(continued)

(continued)

7

A-1268-05T1

RECORD IMPOUNDED

October 31, 2006