STATE OF NEW JERSEY v. DONALD HERITAGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2322-06T52322-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD HERITAGE,

Defendant-Appellant.

________________________________________________________________

 
Telephonically Argued October 23, 2007 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FO-21-99-01.

Louis P. Nappen argued the cause for appellant (Evan F. Nappen, attorney; Mr. Nappen, on the brief).

Tara J. Kirkendall, Assistant Prosecutor, argued the cause for respondent (Thomas F. Ferguson, Warren County Prosecutor, attorney; Ms. Kirkendall, on the brief).

PER CURIAM

After the issuance of a final restraining order (FRO) authorized by the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35 (PDVA), the State of New Jersey moved to forfeit defendant Donald Heritage's firearms purchaser identification (FPID) card and a cache of eight weapons previously seized. By the time a plenary hearing was held on the State's application, defendant's wife, whose complaint led to the FRO, had successfully sought dismissal of the restraining order. On November 15, 2001, after hearing the testimony of defendant and his wife on the issue, Judge Amy O'Connor concluded that despite the dismissal of the FRO, defendant posed "a risk" and was "dangerous to others." On December 20, 2001, the judge entered an order (the order) forfeiting the weapons and defendant's FPID card pursuant to N.J.S.A. 2C:25-21(d)(3). Defendant's motion for reconsideration was denied on February 1, 2002.

In August 2006, defendant sought relief from the order by moving, pursuant to Rule 4:50-1(e), to vacate the order because circumstances had changed since its entry, and because it was "no longer equitable that the . . . order should have prospective application." Ibid. In support of the motion, defendant argued the circumstances that gave rise to the finding of domestic violence had been eliminated. He and his wife had since divorced and there was no longer any animosity between the parties. His now ex-wife filed a certification in support of the motion noting that she and defendant had "ongoing, cordial contact" since the divorce, that she had no "objection to the return of [d]efendant's seized firearms and/or [his] [FPID card]," and that she had "no reason to believe that [d]efendant [would] physically harm [her] or anyone else." Defendant's motion was also supported by a report from a psychiatrist who opined that defendant was not longer a danger to himself or others.

Defendant also relied upon a change in N.J.S.A. 2C:58-3 that he claimed, in conjunction with the continued existence of the order, denied him the ability to secure another FPID card. Effective January 14, 2004, the Legislature adopted N.J.S.A. 2C:58-3(c)(8), which provides that, "No handgun purchase permit or firearms purchaser identification card shall be issued . . . [t]o any person whose firearm is seized pursuant to the [PDVA] and whose firearm has not been returned." Defendant argued, therefore, that the order should be vacated because its continued prospective application denied him the ability to obtain another FPID card and hence was inequitable.

After hearing oral argument on two separate days, Judge O'Connor denied defendant's motion. In a written letter opinion dated November 16, 2006, citing the Supreme Court's decision in F.B. v. A.L.J., 176 N.J. 201 (2003), the judge concluded that in order to prevail on a motion brought pursuant to Rule 4:50-1(e), defendant needed to demonstrate not only a change in circumstances, but also that he "would suffer [an] extreme and unexpected hardship" by the prospective application of the order, in this case, the inability to get a FPID card. She paraphrased defendant's expression of the significance of this hardship as follows:

[U]nless the defendant is able to get a [FPID card], he will not be able to get a gun and thus he will not be able to exercise his rights under the Second Amendment of the United States Constitution and such rights should not be taken away from him "except sparingly."

Judge O'Connor concluded that she "d[id] not need to address whether or not there has been a change in circumstances since the entry of the December 20, 2001 Order." Instead, she reasoned defendant had failed to "show in the certifications that he filed in connection with his motion how he will suffer extreme and unexpected hardship if he is not permitted to obtain a [FPID card]." Citing United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), and Burton v. Sills, 99 N.J. Super. 516 (Law Div. 1967), aff'd 53 N.J. 86 (1968), she observed that, "[A] citizen does not have a personal, individual constitutional right to bear arms." She denied defendant's motion and this appeal ensued.

Defendant argues Judge O'Connor erred by failing to find the existence of significant factual and legal changes since the entry of the order. He further contends that he was denied due process because Judge O'Connor failed to conduct a plenary hearing on his application. Defendant claims that the judge applied N.J.S.A. 2C:58-3(c)(8) "retroactively" because it was not in effect at the time the order was entered, thus giving the law ex post facto effect. Lastly, defendant claims the balance of the disqualifiers contained in N.J.S.A. 2C:58-3(c) deal with an applicant's present circumstances; only subsection (8) improperly disqualifies an applicant for a FPID card based upon past conduct.

We have considered these arguments in light of the record and applicable legal standards. We affirm the denial of defendant's motion to vacate the order substantially for the reasons set forth in Judge O'Connor's written decision. We add only these brief comments.

The relief provided by Rule 4:50-1 is to be granted sparingly. Pressler, Current N.J. Court Rules, comment 1 on R. 4:50-1 (2007); Hous. Auth. of Town of Morristown v. Little, 135 N.J. 274, 283-84 (1994). "The decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity." F.B., supra, 176 N.J. at 207. An appellate court will reverse the motion judge's decision only if it presents a clear abuse of that discretion. Little, supra, 135 N.J. at 283.

"A motion to vacate a judgment pursuant to subsection (e) 'on the ground that it is no longer equitable that the judgment should have prospective application must be supported by evidence of changed circumstances.'" F.B., supra, 176 N.J. at 208 (quoting Little, supra, 135 N.J. at 285). "In order to outweigh the public interest in the 'finality of judgments,' a moving party must demonstrate 'that events have occurred subsequent to the entry of a judgment that, absent the relief requested, will result in 'extreme' and 'unexpected' hardship.'" Ibid. (quoting Little, supra, 135 N.J. at 285-86).

Judge O'Connor correctly determined that defendant had failed to demonstrate such an extreme and unexpected hardship as a result of the order. While we agree that defendant's inability to obtain a new FPID card does not result in the denial of any constitutional right, and, hence, cannot support his claim of hardship, there are other reasons why the order cannot be the foundation for any claim of hardship. These provide an independent basis for affirming Judge O'Connor's decision. Home Properties of N.Y. v. Ocino, 341 N.J. Super. 604, 616 (App. Div. 2001).

Defendant's claimed inability to obtain a FPID card was not caused by the existence of the order. Since defendant's weapons were seized in 2001 pursuant to a PVDA order and never returned to him, N.J.S.A. 2C:58-3(c)(8) served to deny his eligibility for a FPID card. It mattered little whether the order was vacated or not because the statutory disability would still exist. In other words, the prospective application of the order worked no hardship upon defendant; any alleged hardship was caused by the adoption of N.J.S.A. 2C:58-3(c)(8) and not by the existence of the order.

This inescapable conclusion demonstrates why the balance of defendant's arguments are entirely unavailing. At oral argument before Judge O'Connor, the State contended that defendant's motion for relief brought pursuant to Rule 4:50-1 was improper because defendant never actually applied for a new FPID card and was never denied one pursuant to N.J.S.A. 2C:58-3. The prosecutor implicitly understood that defendant's challenge was not to the proceedings that led to the order or even the order's continued prospective application to defendant. It was instead a challenge to the validity of N.J.S.A. 2C:58-3(c)(8) and it was improperly brought as a motion for relief from the order.

We agree. Defendant's arguments regarding the alleged "ex post facto" application of the statute and the impermissible nature of a disqualification based not upon present circumstances, but rather upon past conduct, are contentions addressed to the statute, not the order. To raise such issues, defendant needed to demonstrate his application for a FPID card was denied because of the conditions set forth in subsection (8) of the statute. Having failed to do so, defendant should not be permitted to raise these assaults upon the legislation by way of a Rule 4:50-1 motion.

Although the timeliness of defendant's motion was apparently not considered by Judge O'Connor, we agree with the State that the failure to file his motion until nearly five years after the entry of the order provides an independent basis to deny defendant's request. Pursuant to Rule 4:50-2, the motion needed to be brought within a reasonable time.

Defendant contends that only the adoption of N.J.S.A. 2C:58-3c(8) triggered the need to bring his motion to vacate the order. He also argues that the delay was occasioned by the desire to demonstrate a significant change of factual circumstances regarding his relationship with his ex-wife. Accepting those contentions arguendo, defendant waited more than two and one-half years after the statutory change to file his request and more than three years after his divorce. This delay is unexplained and is therefore not reasonable.

Lastly, defendant's claim that he was entitled to a plenary hearing and that the failure to conduct one was a denial of his due process rights is also unpersuasive. There were no contested facts to be decided, and, hence, no need for a plenary hearing. Judge O'Connor correctly made her ruling based solely upon the applicable legal principles.

Affirmed.

The actual report is not part of the appellate record.

Defendant was aware that the State no longer possessed the seized weapons having disposed of them long ago. He sought relief solely for the purposes of being able to obtain a new FPID.

Recently, by granting certiorari in District of Columbia v. Heller, ___ U.S. ___, ___ S. Ct. ___, 169 L. Ed. 2d 417 (2007), the United States Supreme Court seems poised to consider the continued vitality of Miller and thus its support for the proposition cited by Judge O'Connor.

(continued)

(continued)

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A-2322-06T5

December 27, 2007