IN THE MATTER OF APPEAL OF MISCHA CAMINITI FROM DENIAL OF FIREARMS PURCHASER IDENTIFICATION CARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3421-06T53421-06T5

IN THE MATTER OF APPEAL OF MISCHA CAMINITI

FROM DENIAL OF FIREARMS

PURCHASER IDENTIFICATION CARD

________________________________________________________________

 

Submitted October 23, 2007 - Decided

Before Judges Skillman and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County.

Evan F. Nappen, attorney for appellant (Richard V. Gilbert on the brief).

Gebhardt & Kiefer, P.C., attorney for respondents (Sharon Handrock Moore, on the brief).

PER CURIAM

On May 31, 2006, the Chief of Police of the Borough of Peapack and Gladstone denied Caminiti's application for a Firearms Purchaser Identification Card. Caminiti filed an appeal with the Superior Court, Law Division, Criminal Part. Following a hearing on March 5, 2007, the trial judge issued an order denying the application. This appeal followed.

Having reviewed the entire record, we are convinced the trial judge erred by relying exclusively upon hearsay evidence as the basis for his denial of the application. For the reasons set forth, we reverse and remand this matter for a new hearing and for reconsideration of the denial of the application based upon the evidence presented at that hearing.

Our courts have long recognized that 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." Weston v. State, 60 N.J. 36, 45 (1972). In exercising that discretion, however, the police chief is obligated "to conduct a good faith investigation . . . and to issue the identification card unless good cause for denial thereof appear[s.]" Id. at 43. A statutory presumption in favor of issuing such cards is set forth in N.J.S.A. 2C:58-3c which provides: "No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a . . . firearms purchaser identification card[.]" Except where any of the specified statutory "disabilities" is found to exist, the police chief "in all other cases, shall upon application, issue to any person qualified under the provisions of subsection c. of this section a...firearms purchaser identification card." N.J.S.A. 2C:58-3d.

An appeal to the Superior Court from a denial must be heard de novo.

"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 . . . .[T]he existence of good cause for the denial must represent a burden to be carried by the Police Chief, and to be established by a fair preponderance of the evidence."

[Weston, supra, 60 N.J. at 45-46 (emphasis added).]

The following facts of record are pertinent to our disposition of this matter. Caminiti filed his application for a firearms purchaser identification card with the police department on October 6, 2005. At that time he was 22 years old, employed as a restaurant chef, and had no prior convictions.

Caminiti submitted reference forms from three individuals, one of whom, Paul Igenito, was his boss at the restaurant. Another, Joseph Caparaso, was subsequently disregarded because he stated he did not know applicant that well nor had he spent much time with him. The third reference form was from Thomas Cadmus who had known applicant for ten years and described him as "the type of person who when [he] said he will do something, does it[,] very trustworthy, and would always help others before himself. He is also a dedicated professional, as a chef." On the form, Cadmus answered "yes" to the question of whether applicant was a person of good moral character and behavior.

Igenito, who had known applicant for fifteen months, answered "no" to that question on the form, adding: "I find the applicant to be somewhat of an intelligent young man, although he does seems to carry with him a certain amount of anger and social rage."

Corporal Ferrante of the police department conducted a telephone interview with Igenito upon receipt of his reference form; Ferrante sent a memorandum to the police chief summarizing that telephone conversation in which Igenito commented that he did not feel Caminiti should be permitted to own a firearm. Igenito told Ferrante that he noticed a decline in Caminiti's character several months earlier, prior to being let go from the restaurant.

Based on this information, the police chief denied Caminiti's application. In a letter dated May 31, 2006, the police chief informed Caminiti: "[A] final determination has been made to disapprove your application because of your anger management history."

At the de novo hearing, Police Chief Skinner acknowledged that he never contacted Caminiti "to get his side of the story." In fact, the only time he contacted Caminiti was to convey the denial of his application in the May 1 letter.

Ferrante testified that Igenito told him there had been "a few incidents in which Mr. Caminiti...was confrontational with other employees....[H]e described him as wearing camouflage outfits and listening to loud rap music, that type of thing." Igenito's explanation of why Caminiti no longer worked for him was, "[T]hey had grown apart and . . .he was not willing to have him work there anymore with some of the issues that had taken place there."

At the end of the police officers' testimony, Caminiti's counsel moved to have the identification card issued. The trial court denied the motion, stating that the police chief had the statutory discretion to deny any application that he deemed to be contrary to the interest of public health, safety and welfare.

Caminiti then explained the nature of his relationship with Igenito. He stated that he had been employed by Igenito for about two years, working six or seven days a week and fourteen hours per day. When, after one-and-a-half years, he asked Igenito for permission to take a vacation or, alternatively, for a raise, the relationship "started to fall apart[.]" He never had any "physical confrontations" with Igenito or staff, but he acknowledged having "verbal altercations" resulting from the stress of working in the "busy, hot" kitchen under pressure.

In his ruling from the bench, the trial judge framed the issue as: "[D]id [the police chief] make an appropriate decision based on the preponderance of the evidence that he had at the time?" He concluded: "I find that he did. Seems to be an appropriate decision. There is nothing here to override the decision by the chief of police based on what he was presented with by the applicant." (emphasis added).

Igenito's comments on his reference form and in his telephone conversation with Ferrante appear to have been the exclusive basis for both the police chief's denial as well as the trial judge's affirmance of that denial. Neither the police chief nor the trial judge alluded to any other evidence in support of the denial.

The deficiency warranting reversal and remand here is the complete absence of anything other than hearsay testimony supporting the trial court's denial of Caminiti's application. Igenito gave no sworn statement to the police, nor was he called as a witness at the de novo hearing. The facts in this case are analogous to those in Weston, supra. There, the Supreme Court found

that the case for denial of the application by the Police Chief at the administrative level of decision rested entirely upon the hearsay reports given to him by his investigators. This was true also in the County Court where the Chief's testimony represented double hearsay consisting solely of the ministerial act of reading the same hearsay reports of interviews his subordinates told him they had with . . . [third parties]. Obviously, it is most difficult, if not impossible, for an applicant to meet damaging hearsay testimony of the kind presented by the Chief. In justice, an adverse decision of a County Court should not rest on such a record.

[Id. at 50 (emphasis added).]

The Weston Court recognized that some reliance upon hearsay

evidence may be necessary and proper. Nonetheless, the Court clearly condemned decisions based exclusively on hearsay at both the administrative and judicial levels.

This is not to say, however, that in such a proceeding, whether administrative or on judicial review, the usual rules of evidence barring hearsay testimony should be regarded as controlling. It is common practice for administrative agencies to receive hearsay evidence at their hearings. . . . And we see no reason why on a de novo judicial review of an administrative official's decision relevant hearsay evidence of a credible character - of the type which responsible persons are accustomed to rely upon in the conduct of their serious affairs, which was received by the administrator, should not be admitted and considered by the court. . . . However, in our State as well as in many other jurisdictions the rule is that a fact finding or a legal determination cannot be based upon hearsay alone. Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony. But in the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it.

. . . Suffice it to say that much may be left to the discretion of the administrative official who should be aware of the principle which warrants reception of hearsay, as well as the qualification thereon . . . On judicial review, in deciding whether the evidence in its totality sustained the administrative conclusion, naturally the same rule of admissibility would apply. Of course more sensitive awareness would be expected of a court weighing the combined probative force of the relevant hearsay and the relevant competent evidence.

[Id. at 50-52 (emphasis added).]

Here, the only "competent" [i.e. non-hearsay] testimony before the trial court was Caminiti's sworn testimony. The judge failed to "weigh[] the combined probative forms" of Igenito's "relevant hearsay" with that sworn testimony. In fact, the trial judge never discussed Caminiti's testimony in rendering his decision.

Particularly where, as here, a statutory presumption favors issuance of a firearms purchaser identification card unless a specified disability is proven to exist, a result that overrides that presumption must be supported by competent evidence. In this situation, hearsay alone cannot satisfy the de novo standard of review to which this applicant was entitled.

We conclude the trial judge failed to consider anything other than the hearsay testimony presented by the police officials. In so doing, he failed to make the required independent findings with respect to Caminiti's application. Instead, he essentially "rubberstamped" the administrative decision and the hearsay evidence on which it was based. This constitutes an abdication of the judge's obligation to render an "independent judgment" based on the evidence adduced at the de novo hearing, as to whether the police chief met his burden by a preponderance of the evidence. Weston, supra, 60 N.J. at 45. We therefore remand this matter to the trial judge for a new de novo hearing consistent with this opinion.

Caminiti's request to have this matter heard by a different judge on remand is denied. Rule 1:12-1(f) provides for the disqualification of a judge for reasons "which might preclude a fair and unbiased hearing and judgment, or which reasonably might lead counsel or the parties to believe so." See also N.J.S.A. 2A:15-49; State v. Horton, 199 N.J. Super. 368, 377 (App. Div. 1985). A fundamental basis for a judge's disqualification is the existence of a "'personal interest in the case or the manifestation of malice or ill will towards [a party].'" Mackler v. Bd. of Educ., 16 N.J. 362, 368 (1954), (quoting Freudenreich v. Mayor of Fairview, 114 N.J.L 290, 293 (E. & A. 1935)). Caminiti has failed to establish such grounds for disqualification in this case.

Reversed and remanded.

 

For clarification, the caption has been modified.

The Weston Court's comments were predicated upon the predecessor statute to N.J.S.A. 2C:58-3, namely, N.J.S.A. 2A:151-32 to -34. This court regards those comments as "applicable to the current statute." In Re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003).

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A-3421-06T5

December 12, 2007