IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO MICHAEL OLLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2019-07T42019-07T4

IN THE MATTER OF THE SEIZURE OF

WEAPONS BELONGING TO MICHAEL OLLEY,

____________________________________

 

Submitted November 19, 2008 - Decided

Before Judges Waugh and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FO-02-583-07.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for appellant Michael Olley (Robert C. Scrivo, of counsel; Mr. Scrivo and Joseph R. McCarthy, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Yomara Castro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant Michael Olley appeals from an order of forfeiture of certain weapons seized during a domestic violence response. We reverse the order granting forfeiture.

The relevant facts center on the events that occurred on November 5, 2006. Olley and his wife Jeanine went on a boat cruise around Manhattan. During the cruise they consumed alcohol and later went to a bar where they continued drinking. At some point, Olley cut his hand on a broken glass. They then returned home. In the couple's bedroom, they began an argument which escalated. Olley became enraged and went over to the closet where he stored his hunting weapons, saying: "That's it. I can't take it anymore."

Frightened by her husband's behavior, she went to the bedroom closet where two shotguns were stored, grabbed one of them and took it downstairs to the laundry room. She explained that her husband was irrational and she took the shotgun to keep it from him, even though a second shotgun remained in the closet. She returned to the bedroom and saw her husband holding the other shotgun. Olley shut the bedroom door with his wife standing on the other side. She then contacted the police.

She then went downstairs, waking her sister who was sleeping. They left the house and waited in her sister's car, parked in the Olley driveway, until the police arrived. Patrolman Travis J. Canning of the Mahwah Police Department responded with other officers. The police dispatcher had indicated there were weapons involved and that "one of the parties might have been suicidal."

On arrival, Officer Canning observed the husband in the living room of the house through the front porch window. Officers drew their guns, ordered Olley out of the house and he complied. He was confused why the police were there. He did not resist arrest, was handcuffed and placed into a patrol car. Officer Canning saw that Olley had a cut on his thumb and that his hand and shirt were bloody.

In the upstairs bedroom, Officer Canning found a cracked open shotgun laying on the floor and a box of shells on the dresser located approximately six feet from the shotgun. Officer Canning recovered the other shotgun from the laundry room, as well as a BB gun and a bow and arrows.

Olley was transported to police headquarters and placed in a holding cell. While in the holding cell, Olley questioned why he was at the police station because he claimed he had not done anything wrong. Officer Canning completed the necessary forms for the arrest, asked Olley if he suffered from any medical condition and purportedly was advised that he suffered from depression and had taken anti-depressants. His wife declined a temporary restraining order.

Olley was later transported to Valley Hospital for treatment of the laceration on his thumb. After treatment, he was referred to the Bergen County Regional Medical Center by the 263 HELP screener for evaluation. He was interviewed at the center and discharged. He was never "committed" to Bergen County Regional.

Chief James Batelli of the Mahwah Police Department testified that he had learned through one of his officers that, since the incident, Olley was involved with marriage counseling, psychiatric counseling, had stopped drinking and was not taking anti-depressants. Chief Batelli spoke to Olley on the phone and was reassured that what happened on November 5, 2006, was an aberration, that there had been drinking that night, but that he was no longer having problems and that he and his wife had sought counseling. He also mentioned that Olley's wife did not oppose the return of the weapons to him. In her own testimony, she also indicated that she did not oppose the weapons return and, in fact, she supported their return. After the Chief spoke to the Assistant Prosecutor assigned to the case, he did not withdraw his recommendation that the weapons not be returned because he believed the issue should be resolved by the courts.

The defense presented Dr. David J. Gallina, a board certified psychiatrist who had evaluated Olley. The evaluation was based on seven tests administered to Olley, four of which were objectively scored by a computer. Dr. Gallina also interviewed Olley and spoke to Olley's treating psychologist, Dr. Pepper, who confirmed that there was no significant psychiatric diagnosis and that he had not prescribed any medication. Dr. Gallina was of the opinion that Olley did not suffer from any significant psychiatric disability and that he was not in need of medication. He was of the opinion, to a reasonable degree of medical certainty, that the weapons could safely be returned to Olley.

Olley testified on his own behalf. He corroborated that both he and his wife had been drinking during the cruise and at a bar in Manhattan. They both drank too much and got into an argument at home, which escalated. According to him, his wife began flailing her hands coming toward him and he accidentally struck her with his head, attempting to keep her away from him. In her handwritten statement at the time, she stated that "Olley" had "head-butted" her, but she did not testify to that at trial.

Olley stated that his wife was the one who grabbed the weapon from the closet and ran out of the room. He testified that he took the second shotgun to make sure it was not loaded. He denied that he intended to use the weapon nor did he threaten anyone. There was no testimony that any threat with a weapon was made that evening.

Olley denied telling Officer Canning that he suffered from depression and that he was taking medication for this condition. He admitted that a year earlier, in November 2005, his family practitioner prescribed Wellbutrin, an anti-depressant medication, which he disliked and discontinued taking after three weeks. He further stated that when he was taken to the Bergen County Regional Medical Center, he had spoken to a psychiatrist for fifteen minutes and was released.

Olley indicated that through marriage and psychiatric counseling he has learned that there is a lot more compromise involved in marriage and believed that the counseling has helped improve the marital relationship. There was no domestic violence before that particular incident, nor has there been any since that single occurrence.

Olley testified that he has been married for approximately seven years, has two young children and runs a successful trucking company which employs fifteen workers.

Since the age of twelve he has been an avid hunter and still hunts with his father. He would like to pass the sport of hunting on to his own children, just as his father had taught him to hunt when he was just a teenager.

In terms of safety, Olley stores ammunition on the top shelf of his bedroom closet in a separate case and places trigger locks on all of his shotguns. He has never injured himself or anyone else while hunting. He understands the importance of gun safety and subscribes to the belief that "too much safety is not safe enough." He intends to get a safe for the ammunition if the weapons are returned.

In deciding that weapons should not be returned to Olley, the court relied solely on N.J.S.A. 2C:58-3(c)(5), "where the issuance would not be in the interest of the public health, safety or welfare. . . ." The trial judge was concerned that what happened on November 5, 2006, could repeat itself and, if it did, it would be contrary to the interest of the public health, safety and welfare to have guns along with a firearms purchaser identification card in the house.

In so deciding, the trial judge indicated that he found that Olley, as well as Dr. Gallina, downplayed the events of the night in question. He inaccurately stated that Olley had been "involuntarily committed" regardless of the time period involved. He emphasized that the Domestic Violence Act is to be liberally construed to effectuate the "maximum protection to victims of domestic violence."

On appeal, Olley contends that he is fit to possess his weapons and that he is not subject to the disabilities enumerated in N.J.S.A. 2C:58-3(c). In support of his fitness, he notes that he has no other history of domestic violence, no criminal history or other history of violent behavior. He points out that he cooperated with the police on the night in question. Olley asserts that he does not suffer from any psychological disorder, nor is he on any medication. He is not a habitual drunkard or drug user. Nothing in his background, he maintains, suggests that he poses any threat to the public, to anyone in his household or to himself.

He also contends that the State failed to satisfy the express requirements of N.J.S.A. 2C:25-21(d) by failing to bring the forfeiture proceeding within forty-five days of the seizure and for not holding a hearing within that time period. Lastly, he contends the court erred in finding that he committed an act of domestic violence.

Our role as an appellate court is limited in its review of a trial judge's factual findings. They are ordinarily binding on appeal when supported by adequate, credible evidence in the record. Rova Farm Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974). Notwithstanding, we do not defer to a trial court's interpretation of the law and legal consequences that may flow from established facts. Manalapan Realty v. Twp. Committee, 140 N.J. 366, 378 (1995). Thus we are not bound by a trial court's application of the law to the facts or an evaluation of legal implications which form facts where credibility is not an issue. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). With these principles in mind, we address the issues raised by Olley.

I.

N.J.S.A. 2C:58-3(c)(5) provides in pertinent part "[n]o handgun purchase permit or firearms purchaser identification card shall be issued: . . . (5) To any person where the issuance would not be in the interest of the public health, safety or welfare."

Subsection 5 is not susceptible to precise definition. In State v. Cunningham, we commented that the section was ". . . intended to relate to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest." 186 N.J. Super. 502, 507 (App. Div. 1982) (quoting Burton v. Sills, 53 N.J. 86, 91 (1968)). We explained further in State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004) that:

a judicial declaration that a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact-sensitive analysis. It requires a careful consideration of both the individual history of defendant's interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may impose to the general public.

In granting forfeiture, the trial judge explained his reasoning as follows:

In this case, this was a standoff, if you will, where police had to come and he had to be removed from the house. He was charged criminally for the assault. He had an open -- cracked open shotgun. The shells were right there. The wife and the sister removed themselves from the house. They were extremely concerned, and there was an indication that he had some sort of disorder, was on medication, and ends up being involuntarily committed.

I mean, the Court has concerns. If I return these weapons to him, is it to say that there won't be another domestic incident, or fight, or drinking, or whatever? Who wants weapons to be back in the house.

I mean, I find that all the evidence, the wife who doesn't object now, the -- the officer who arrived at the scene, the police chief, is all consistent with the fact that when intoxicated, and when pushed to the limit of a matrimonial unrest led to an ugly situation where, you know, the guns came out. They -- they weren't locked. He, in essence, put himself in a room, I'm not gonna use the word barricaded, but where the gun was there, it was open, the shells were there, and led to a situation which was quite dangerous and unnerving. And the Court has, you know, concerns. In using his wife's own words, "that Michael was enraged and flipped out, and then head butted her and then took out his hunting rifle." I mean, that's what he did on that night.

I mean, I find her completely credible. That's what the officer observed when he got there. And, in essence, defendant in essence denies what happened. Says that it didn't happen that way. He was rational not irrational. They had a fight. He got too close to her, and then he head butted her, and he actually tried to be -- be the one who was safe by taking weapons away from her, because somehow she was gonna maybe use them.

The evidence is not sup -- there's no evidence to support. He wasn't cooperative with the police. He was uncooperative. And the way he acted after the fact, the Court finds that he acted in a manner, which certainly on that occasion, was contrary to the public health, safety, and welfare.

But based on that evidence which I have heard, and which I find, and I realize it's -- it's fact sensitive, the Court has serious reservations if such an incident, you know, were to occur. They're in counseling. He's been in counseling. He's been on medications. I don't give that a lot of weight. I think that it's good for individuals to get help, but under 2C:58-3C, I think based on the reasons that I have outlined, that the State's met its burden by a preponderance of the evidence. That for him to have the guns back along with the firearms safety I.D. card, would be contrary to the interest of the public health, safety, and welfare. So I'm gonna grant the State's petition.

The trial court's decision rests entirely on the events that occurred on the single evening, where both parties had consumed too much alcohol which led to an argument that escalated into a situation where petitioner's wife believed that police intervention was necessary. The trial judge's concern, that if it were to happen again it would be inappropriate to have weapons in the household, is understandable. The problem with the trial judge's conclusion, however, is that it posits a situation based on pure speculation that is not supported by the record. Indeed, the trial judge's finding that Olley poses a threat to the public safety cannot, in our view, be supported solely by the single incident that led to the seizure in light of all the facts in the record.

The record shows that there is no prior history of domestic violence, nor any subsequent history since this single event. Both parties have participated in marriage counseling, which has been of mutual benefit to their marriage. Petitioner has gone a step further and sought psychotherapy. He does not have any significant psychiatric diagnosis, according to Dr. Pepper, his treating psychologist. Dr. Gallina's opinion, in light of his testing and clinical observations, was that the weapons could safely be returned to Olley.

Petitioner runs his own business and has responsibility for fifteen employees. He has no criminal record. The initial assault charge was dismissed. His wife never even sought a temporary restraining order. They still live under the same roof, and she supports the return of the weapons to the household.

Unlike the trial judge's characterization that petitioner did not cooperate with the police, the testimony makes it clear that he did. He complied with the police request that he come out of the house and offered no resistance to being placed under arrest. While in the holding cell, he questioned why all of this was necessary when he was behind bars. This hardly resembles an uncooperative scenario.

It is also clear that he was not on medication, nor did he suffer from any psychiatric disorder. He and his wife both had too much to drink and that is what led to the marital dispute. The marital issues between them had to be sorted out which, through counseling, has led to positive results.

The suggestion that Olley was involuntarily committed to the Bergen County Regional Health Center is mistaken. An involuntary commitment is defined by statute. N.J.S.A. 30:4-27.10. Even if the referral by 263 HELP could be deemed for a screening service, there was no screening certificate provided to show that there was compliance with the required procedure. R. 4:74-7(b)(1). At best, there was an involuntary admission for an evaluation. Once the evaluation took place, petitioner was released. The only testimony of record is from petitioner who described the interview as lasting fifteen minutes.

Decisions where a threat to the public safety was found, warranting a forfeiture of weapons, contain factual patterns of violence or misconduct. In State v. Freysinger, 311 N.J. Super. 509 (App. Div. 1998), in affirming the forfeiture order, we were satisfied that defendant was not only a habitual drunkard, but posed a threat to the public health, safety and welfare. He had two driving under the influence convictions and two convictions for refusing to submit to chemical tests. Id. at 516. Defendant admitted he hit a pedestrian with his car but did not bother to stop. Id. at 516-17. Instead, he drove straight home and went to bed. Ibid. We pointed out that:

[t]he record allows the inference that defendant may have hit his girlfriend purposefully after the two argued in the bar. This may explain his lack of concern for the person he struck. If defendant was being truthful when he stated that he did not know it was his girlfriend whom he hit, then defendant's actions demonstrate a complete disregard for the stranger he struck and left unattended in a roadway.

[Id. at 517.]

The facts here contrast sharply with those in Freysinger. Here, there is no prior or subsequent history of any criminal, much less civil, violations of the law. Nor is there any prior or subsequent domestic violence allegations or charges. Unlike the overwhelming proofs in Freysinger, the proofs here are underwhelming.

In Hoffman v. Union County Prosecutor, 240 N.J. Super. 206 (Law Div. 1990), plaintiff Charles Hoffman brought a replevin action for the return of his rifles, shotguns and a Japanese saber that was turned over to the Rahway Police Department by his wife. Id. at 208. The prosecutor counterclaimed, seeking revocation of his New Jersey firearms purchaser identification card. Ibid. The weapons had been removed as a result of a domestic dispute. Ibid.

Plaintiff had a history of arrest for an assault on a police officer. Id. at 209. There were prior responses to domestic disputes at plaintiff's home. Ibid. On both occasions, plaintiff had been intoxicated and argued with his wife. Ibid. Plaintiff had a street fight on another occasion where he was treated at a hospital and had threatened to use one of the shotguns against one of the individuals who had struck him. Ibid. He had another arrest for possession of a weapon and aggravated assault when he responded against juveniles who had thrown rocks at his son's car. Id. at 209-10. There were additional domestic disputes where intoxication was involved and his wife had been struck on one occasion. Id. at 210. In Hoffman, there was a pattern of violent behavior and alcohol abuse extending over a period of years along with a disturbing pattern of domestic violence. The court found that plaintiff no longer qualified for a firearms purchaser identification card and dismissed his replevin complaint. Id. at 215.

Where there is a threat to the public safety, the proofs are generally evident in terms of a prior history with no appreciable effort to address problems that have caused the domestic disputes to percolate. See, State v. One Marlin Rifle, 319 N.J. Super. 359, 372 (App. Div. 1999) (finding insufficient evidence that husband posed a threat to public safety).

The only basis to posit that petitioner poses a threat to the public safety is the events of the evening that required a police response. The petitioner and his wife have been successful in addressing their marital problems. There are no subsequent events and there was an absence of any prior domestic discord that required any police intervention. The weapons were for hunting, a sport which Olley learned from his father and wishes to pass on to his children.

Under these circumstances, we are satisfied that the State failed to carry its burden of proof by a preponderance of the evidence where there is no factual basis on which the court could draw a conclusion that petitioner poses a threat to the public safety.

II.

Here, the testimony showed that Therese Leonard, the person responsible for forfeiture proceedings in the prosecutor's office, learned of the seizure on May 22, 2007, when Olley's attorney telephoned to inquire about a return of the weapons. At that juncture, Leonard secured the paperwork from the Mahwah Police Department. On June 12, 2007, the notice of motion to forfeit weapons was filed. Since the notice of motion was filed within forty-five days of learning of the seizure, the trial court properly denied relief on this ground. State v. Saveedra, 276 N.J. Super. 289, 294 (App. Div. 1994).

Petitioner also contends that the forty-five day forfeiture action subsequent to seizure presumes that delivery of the weapons to the prosecutor will occur sufficiently in advance of the expiration of that period. That did not happen here. No weapons delivery was made to the prosecutor's office. It did not occur in this case, nor does it apparently occur in any case.

On cross examination of Terese Leonard, she was asked the following questions and gave the following answers:

Q. Ms. Leonard, I just have a couple of questions for you. Does the prosecutor's office on occasion actually come into possession of the weapons?

A. No.

Q. Never.

A. Never.

N.J.S.A. 2C:25-21(d)(2) provides "[a] law enforcement officer shall deliver all weapons, firearm purchaser identification cards and permits to purchase a handgun seized pursuant to this section to the county prosecutor and shall append an inventory of all seized items to the domestic violence report." Thus, once an officer has seized weapons they must be turned over to the prosecutor along with an inventory of all weapons seized. In State v. Saavedra, supra, we explained:

The statutory command is without equivocation.

The delivery of the seized weapon to the prosecutor takes on special significance in light of the operation of the forfeiture provision embodied in N.J.S.A. 2C:25-21(d)(3). The timetable imposed on the prosecutor for filing a petition to obtain title to the weapon runs from the date of the seizure, but the running of the time presupposes that the prosecutor has possession of the seized weapon. When the weapon has not been delivered to the prosecutor, as here, the prosecutor lacks knowledge of the seizure and is obviously in no position to decide whether or not to pursue a forfeiture.

[276 N.J. Super. at 293-94.]

We continued by commenting:

[r]equiring the delivery of the seized weapon to the county prosecutor is not a legislative accident. As the chief law enforcement official in the county under the authority of N.J.S.A. 2A:158-1 et seq., the prosecutor is in the best position to assure evenhanded approaches to the disposition of seized weapons and to present consistent positions to the court in the summary hearings held in connection with forfeitures. N.J.S.A. 2C:25-21d(3).

[Id. at 294-95.]

Here, Ms. Leonard's testimony has made it indelibly clear that the weapons in this case, and indeed, in any case of seizure pursuant to the Domestic Violence Act, are not delivered to the prosecutor. This is in clear violation of what the law requires as elaborated upon in Saavedra. The violation does not impact on the order of forfeiture which we have reversed on other grounds. We do not speculate on what the result might be in future cases, were the issue to surface. The prosecutor should take immediate steps to remedy the present practice where weapons are retained by municipal police departments after seizure in a domestic violence setting.

III.

We need not address Olley's remaining argument that the trial judge exceeded his jurisdiction in finding that Olley committed an act of domestic violence in view of our disposition.

Reversed and remanded for return of the seized weapons to petitioner.

 

The weapons seized were: (1) Invector PBS special steel twenty-gauge field model - twenty-six shotgun, (2) Weatherby twenty-gauge shotgun (3) Daisy Red Ryder BB air rifle, (4) Brown and tan cloth case containing bow and several arrows, and (5) one plastic bag containing one bullet and three boxes containing twenty-gauge shells.

(continued)

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A-2019-07T4

December 22, 2008