IN THE MATTER OF THE SEIZURE OF CERTAIN WEAPONS BELONGING TO Y.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1987-08T41987-08T4

IN THE MATTER OF THE SEIZURE

OF CERTAIN WEAPONS BELONGING

TO Y.A.

 

Submitted: September 30, 2009 - Decided:

Before Judges Collester and Fall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-142-09.

Y.A., appellant pro se.

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent State of New Jersey (Jamin Cooper, Assistant Prosecutor, on the brief).

PER CURIAM

The State applied to the Family Part for an order directing the forfeiture of a certain firearm and ammunition owned by appellant Y.A. and revoking his firearms purchaser identification card pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-21d(3). The trial court granted that application, and Y.A. appeals. The following factual and procedural is relevant to our consideration of the issues advanced on appeal.

On August 24, 2008, defendant's wife, C.A., filed a complaint pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 in South Bound Brook Municipal Court, alleging that appellant had committed acts of harassment against her, contrary to N.J.S.A. 2C:33-4, reciting the following:

On 8/24/2008 the victim stated that she was in the throws of a verbal argument with her husband. Once at home, the victim wanted to leave with her daughter.. The defendant stated that if she take[s] one step out of the house he would kill her. The victim is 6 months pregnant and has a three year old who was present.

The domestic violence complaint, signed by C.A., also recites that a criminal complaint had been filed against appellant for harassment arising out of that incident, and that the responding South Bound Brook police officers had seized "A Black 40 Cal. Sig Sauer hand gun" pursuant to the authority set forth in N.J.S.A. 2C:25-21d(1)(b). Upon review of the complaint, Municipal Court Judge John Leonard telephonically authorized issuance of a temporary restraining order (TRO) against appellant pursuant to the authority set forth in N.J.S.A. 2C:25-18 and R. 5:7A(b). In addition to the usual restraints removing appellant from the marital domicile and prohibiting contact by him with C.A., the TRO prohibited appellant from possessing "any and all firearms or other weapons[,]" and required him to immediately surrender any such weapons along with his firearms purchaser identification card. The TRO also issued a warrant, authorizing any law enforcement officer to enter the marital domicile to search for any weapons. A final domestic violence hearing was scheduled in the Family Part for August 28, 2008.

On August 28, 2008, C.A. appeared in the Family Part and requested that the complaint and TRO be dismissed. After conducting a hearing on that request, the Family Part judge issued an order on August 28, 2008, dismissing the complaint and TRO. On August 29, 2008, the Somerset County Prosecutor filed a petition in the Family Part seeking an order prohibiting the return of the seized firearm and firearms purchaser identification card to appellant pursuant to N.J.S.A. 2C:25-21d(3), which provides as follows:

Weapons seized in accordance with the "Prevention of Domestic Violence Act of 1991", P.L. 1991, c. 261 (C. 2C:25-17 et seq.) shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.

A hearing shall be held and a record made thereof within 45 days of the notice provided above. No formal pleading and no filing fee shall be required as a preliminary to such hearing. The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.

If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall be returned to the owner.

After the hearing the court shall order the return of the firearms, weapons and any authorization papers related 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 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. Nothing in this act shall impair the right of the State to retain evidence pending a criminal prosecution. Nor shall any provision of this act be construed to limit the authority of the State or a law enforcement officer to seize, retain or forfeit property pursuant to chapter 64 of Title 2C of the New Jersey Statutes.

If, after the hearing, the court determines that the weapons are not to be returned to the owner, the court may:

(a) With respect to weapons other than firearms, order the prosecutor to dispose of the weapons if the owner does not arrange for the transfer or sale of the weapons to an appropriate person within 60 days; or

(b) Order the revocation of the owner's firearms purchaser identification card or any permit, license or authorization, in which case the court shall order the owner to surrender any firearm seized and all other firearms possessed to the prosecutor and shall order the prosecutor to dispose of the firearms if the owner does not arrange for the sale of the firearms to a registered dealer of the firearms within 60 days; or

(c) Order such other relief as it may deem appropriate. When the court orders the weapons forfeited to the State or the prosecutor is required to dispose of the weapons, the prosecutor shall dispose of the property as provided in N.J.S.A. 2C:64-6.

[Emphasis added.]

A hearing on the Prosecutor's petition was conducted in the Family Part before Judge Thomas H. Dilts on November 6, 2008. The State presented testimony from South Bound Brook Police Officer Edward McGovern, who had responded to the domestic violence call at the residence of Y.A. and C.A. on August 24, 2008. Officer McGovern stated when he arrived at the residence he waited outside the front door for his partner to arrive because "there was an allegation that there was a gun in the house." Officer McGovern stated that while waiting outside:

I heard some yelling inside. I heard a female voice crying. I could hear it through the door. It appeared she was directly on the other side of the door, and I heard a male voice telling the person to get the fuck back upstairs now.

Officer McGovern radioed the police dispatcher, requesting that if the victim was still on the telephone to tell her to exit the residence. Shortly thereafter, C.A. and their three year-old daughter exited the home and he described C.A. as being "[u]pset, crying, shaken." Officer McGovern stated he immediately encountered appellant, who was following C.A. and the child out of the residence. Officer McGovern testified he took appellant into custody "and asked him if there was a weapon in the house, and he stated there was, and he gave us permission to go into his bedroom, as well as the victim gave us permission to go in too." Officer McGovern explained that he and his partner entered the bedroom and they found a handgun in an unlocked closet on the side of the bed under a pile of clothes on a shelf. The weapon seized was a .40 caliber handgun containing a full clip of nine rounds of hollow point ammunition. On cross-examination, Officer McGovern stated that upon questioning at the scene, appellant had informed him that his statement "get the fuck back upstairs" was directed at the family's dog, not to C.A. Officer McGovern also stated there were no bruises or injuries noticed on C.A.

Appellant testified that the municipal court complaint filed against him for harassment was disposed of by him pleading guilty to "disturbing the peace," a municipal ordinance violation and paying a fine. He stated that he has no criminal record; the domestic violence case had been dismissed; he and C.A. and their daughter were living together; he was working as a corporate paralegal with a law firm; and he has a Juris Doctor (J.D.) degree and was taking the bar examination in February 2009. With respect to the handgun, Y.A. testified he always stored it on the top shelf of a six-foot high closet with a trigger lock affixed to it.

Upon Y.A. testifying that the weapon contained a trigger lock, Judge Dilts recalled Officer McGovern, who testified that the handgun had been found in the middle level of the unlocked closet, about three feet from the floor, and it did not contain a trigger lock. At the request of the State, the hearing was continued until the afternoon session to allow the State to produce the seized handgun. During the afternoon session, Officer McGovern retook the stand he identified what had been marked as S-1 as the handgun he had seized from appellant's bedroom on August 24, 2008. Officer McGovern testified under direct examination, in pertinent part, as follows:

Q. Is that gun in the same condition today as when you seized it back from the [appellant's] home on August 24th?

A. Absolutely. I cleared it and I left it in the open position with the slide back.

Q. When did you clear it? That means unloading it, right?

A. Yes.

Q. When did you unload it?

A. The minute it was taken from the residence.

Q. No, had there been - - there is a trigger lock on that firearm?

A. No, there is not.

Q. If there had been a trigger lock on the firearm, would you have been able to unload it as you did?

A. No, I would not - - I might have been able to take the magazine out or if there was a bullet in it, but it wouldn't be able to fire, and I would need a key to open any lock that would be on the - -

* * * *

THE COURT: Well, officer, to your knowledge, are trigger locks required for weapons when they're stored in the State of New Jersey?

A. Yes, they are.

The State also presented testimony from David Takleszyn, Supervisor of the Evidence Unit at the Somerset County Prosecutor's Officer. Mr. Takleszyn testified that S-1, the handgun, was received by him from the South Bound Brook Police Department, and was still in the same condition as when he had received it. Appellant testified further, stating it had been his practice to keep the trigger lock on the handgun at all times, and could not explain why the trigger lock was not in place when it was seized.

In rendering his decision, Judge Dilts stated, in pertinent part:

The officer testified, and I find with credibility, that he was . . . in the room; that he saw his partner take the weapon that has been received in evidence today as S-1, that he saw him take it from the middle area of the cabinet, and he said in his testimony, and I find credible, about three feet from the floor, that he took the weapon and - - that is, the other officer took it, gave it to Officer McGovern, who cleared the weapon to remove - - to insure that it was cleared of bullets, that there were .40 caliber hollow-point bullets that were in a magazine that was in the weapon. The magazine was in the weapon at the time it was taken. There was no bullet in the chamber at the time the weapon was taken.

I find that in terms of chain of custody, . . . I find credible the officer's testimony that the weapon, in its condition as presented to me in court today, is the same as it was when he cleared the weapon in the bedroom at the residence of the [appellant].

I find that the testimony of the officer with respect to the trigger lock is credible, although [Y.A.] insists that the trigger lock was there and on the weapon. I find credible the officer's testimony that it was not removed by him or his partner, and that it was not on whenever the weapon was taken by the officer in his presence and handed to Officer McGovern right in the bedroom, and, therefore, I find that the weapon was on the shelf without the safety lock in place.

The law in the State of New Jersey does not require that safety locks be on weapons when stored. The language that was referenced by the Assistant Prosecutor and read in the record indicates a strong policy of the State to encourage the use of . . . trigger locks, but that it is not required as a matter of law.

The court is mindful of the Appellate Division decision in State v. Cordoma, Appellate Division 2004, which indicated that - - among other things, that where . . . a law enforcement officer receives a weapon as a result of a domestic violence matter and that TRO is voluntarily dismissed, that the State, nonetheless, has the right to come forward under two separate provisions of law to seek to challenge the right or to forfeit the right of the gun owner to possess the weapon and firearms ID card.

We are here today in such a proceeding. The burden is on the State to show by a preponderance of the evidence that the [appellant] gun owner is unfit to possess weapons. In this case, I'm referring to N.J.S.A. 2C:58-3c(5), which provides: No handgun purchase permit or firearms purchaser identification card shall be issued to . . . any person where the issuance would not be in the interest of the public health, safety or welfare.

The court is also mindful of N.J.S.A. 2C:25-21d(3), which deals with seizure of weapons at the time of . . . domestic violence response at the scene, and it recognizes the right of the State to obtain title to the seized weapons and to revoke all permits and may object to the return of the weapons on such grounds as they are provided in the initial rejection, which is the language that we just read under N.J.S.A. 2C:58-3c, or later revocation . . . on the ground that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.

In this case, the State has not sought to prove, and certainly the record does not support, the finding that [Y.A.] poses a danger to the public at large or to a particular person. . . . Therefore, the court does not take into account anything with respect to [the underlying domestic violence matter].

* * * *

In this case, there is no testimony that the weapon was, in fact, used or involved in any way in the alleged domestic violence. Therefore, the only basis asserted by the State to declare that [Y.A.] is unfit, is because the weapon . . . was about three feet above the floor, and that [the closet] was not locked. It had no trigger lock. It was under a pile of clothes, and did have a magazine with bullets . . . in the handgun. There was no bullet in the chamber. The State contends that the owner is unfit because he had a three-year-old child and that the weapon was not properly secured.

The court, considering all of these matters, decides that the State has met the burden of proof in this case, that the State has established by a preponderance of the evidence that because of the careless manner in which this weapon was stored, that he . . . is not fit and, therefore, loses his right to possess this firearm and his right to have firearms [purchaser] identification cards.

* * * *

So this court's decision is based solely with respect to the issue of storage and nothing else, and if that would be deemed on appeal to be insufficient, then there is no other basis to support the conclusion that the court has reached today.

The judge issued an amended order on December 18, 2008, reciting that Y.A. was prohibited from possessing firearms or a firearms purchaser identification card based on the finding that he is unfit pursuant to N.J.S.A. 2C:25-21d(3) and N.J.S.A. 2C:58-3c(5).

On appeal, Y.A. presents the following argument for our consideration:

THE TRIAL JUDGE ERRONEOUSLY FOUND APPELLANT TO BE " UNFIT, AND/OR POSES A THREAT TO THE PUBLIC IN GENERAL OR A PERSON OR PERSONS IN PARTICULAR " BY NOT PROPERLY APPLYING THE BURDEN OF PRODUCTION AS MANDATED BY PRECEDENT CASE LAW.

It is clear that title to firearms seized in conjunction with the investigation of a domestic violence incident may be forfeited "on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular." N.J.S.A. 2C:25-21d(3). In addition, the Court has held that N.J.S.A. 2C:25-21d(3) "implicitly refers to N.J.S.A. 2C:58-3, the statute regulating the issuance of firearms purchaser identification cards." In re J.W.D., 149 N.J. 108, 115 (1997), noting that N.J.S.A. 2C:58-3c(5) prohibits the issuance of a handgun permit or a firearms purchaser identification car "to any person where the issuance would not be in the interest of the public health, safety or welfare." Ibid. This provision, N.J.S.A. 2C:58-3c(5), and the "unfitness" provision contained in N.J.S.A. 2C:25-21d(3), were relied upon by Judge Dilts in reaching his conclusion that appellant was unfit to possess a firearm. The Court held that these two statutes, when read together, reflect the Legislature's intent that courts not return confiscated firearms "to a defendant in a domestic violence action, even after the dismissal of the complaint, if the court finds that the defendant poses a threat to public health, safety, or welfare." J.W.D., supra, 149 N.J. at 116.

In Cordoma, supra, we ruled 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.

[372 N.J. Super. at 535.]

The scope of appellate review of a trial court's fact-finding function is limited. In Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), the Court explained:

The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Because a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App.Div.1961)) (alterations in original). Therefore, an appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484.

Here, appellant represented to the court in his testimony that the firearm had been stored on the top shelf of a six-foot high closet and had been secured with a trigger lock. In his findings, Judge Dilts specifically rejected that testimony, finding credible the police officer's testimony that the firearm had been located in the closet on a shelf about three feet from the floor, was loaded with a full magazine of hollow-point bullets, and was not secured with a trigger lock nor locked within its gun case. Those credibility findings are unassailable. We recognize, of course, that the same level of deference given to the factual findings of a trial judge is not accorded when applying those factual findings to applicable legal principles. J.W.D. supra, 149 N.J. at 117.

Appellant cites to State v. 6 Shot Colt 357, 365 N.J. Super. 411, 416 (Ch. Div. 2003) for the proposition that in order to conclude that a person is unfit to possess a firearm on the basis he poses a danger to the public health, safety or welfare, the trial court must "have found exceptional and compelling evidence that the defendant was a threat to the public health, safety or welfare." We disagree that this is the standard against which the fitness conclusions of trial judges must be measured in weapons forfeiture cases. We first note that we are not bound by reported trial-court opinions. Moreover, the phrase "exceptional and compelling" is qualitative and abstract in nature, and is a characterization given by that judge to circumstances existing in the cases cited by him in his opinion. Subsequent to the decision in 6 Shot Colt 357, as we have already noted, we held that "a judicial declaration that a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact-sensitive analysis[,]" requiring "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." Cordoma, supra, 372 N.J. Super. at 535.

Here, Judge Dilts carefully limited his decision to a determination that appellant was unfit to possess a firearm and purchaser identification card based on the careless manner in which he had stored the weapon, given the circumstances of this case. We conclude that the judge engaged in a careful assessment of the threat that appellant's possession of a firearm may pose to the general public, focusing on the fitness criteria set forth in N.J.S.A. 2C:58-3c(5), which prohibits the issuance of a handgun purchase permit or firearms purchaser identification card to any person "where the issuance would not be in the interest of the public health, safety or welfare." Appellant had a loaded handgun containing a full magazine of hollow point ammunition sitting on a shelf three feet off the floor under some clothing in an unlocked closet, with no trigger lock, and not locked in its gun case. The dangers posed by such carelessness are evident. Even disregarding the domestic violence incident; the allegations of a conditional threat to kill in a domestic violence complaint signed by C.A.; his plea of guilty to a municipal ordinance "disturbing the peace" violation; and the failure of C.A. to testify or provide any evidence concerning her position about return of the firearm, we cannot find that the trial judge abused his discretion or misapplied the law in concluding that the careless manner in which this firearm was stored, particularly in a household where his three-year-old child resides, establishes his unfitness, and forfeited his privilege to possess a firearm and firearm purchaser identification card. Accordingly we affirm substantially for the reasons stated by Judge Dilts in his comprehensive and thoughtful oral decision delivered on November 6, 2008.

 
Affirmed.

Because the matter involved a domestic violence case, we have elected to utilize initials to identifying the appellant and his family members.

It was later established and stipulated by the parties that although N.J.S.A. 2C:58-2.2 encourages the use of trigger locks on firearms, they are not statutorily mandated.

State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004).

(continued)

(continued)

18

A-1987-08T4

RECORD IMPOUNDED

October 23, 2009