STATE OF NEW JERSEY v. R.B

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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4323-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

R.B.,

Defendant-Appellant.

______________________________________________________

Submitted April 14, 2010 - Decided April 30, 2010

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Atlantic County, Docket No. FO-01-135-09B.

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

Theodore F. L. Housel, Atlantic County Pros-
ecutor, attorney for respondent (Jack R.
Martin, Assistant County Prosecutor, of
counsel and on the brief).

PER CURIAM

Defendant R.B. appeals from an order of forfeiture of

domestic violence restraining
weapons seized pursuant to a

order. He argues that a mistrial was warranted because the

judge questioned his wife, utilizing photographs of injuries not

the judge's decision on the
produced during discovery, that

merits was unfounded, and that the statute authorizing

forfeiture is unconstitutional. We reject these arguments and

affirm.

The record reveals that on August 16, 2008, C.B.

(hereafter, Carolyn, a fictional name) obtained a temporary

restraining order (TRO) against her husband, defendant R.B.,

pursuant to the Prevention of Domestic Violence Act, N.J.S.A.

2C:25-17 to -35 (the Act). As permitted by the Act, the TRO

authorized a search of the home. N.J.S.A. 2C:25-28(j). Acting

pursuant to the TRO, police seized fourteen firearms, two

hunting bows, a K-bar knife, two swords, and ammunition. On

September 17, 2008, the domestic violence action was dismissed

at Carolyn's request and the TRO vacated. At the same time, the

judge entered a consent order in a pending matrimonial action in

which defendant agreed: (1) not to consume any alcohol for five

months; (2) to continue treatment for post traumatic stress

disorder and alcohol dependence; (3) to continue attending

Alcoholics Anonymous meetings; and (4) to participate in marital

therapy.

The State thereafter moved for forfeiture of the weapons.

During the four-day trial, the judge heard the testimony of

defendant and Carolyn; they presented competing versions of the

events that led to Carolyn's filing of the domestic violence

A-4323-08T4
2

action and testimony about past conduct and their marital

difficulties. The judge also heard the testimony of Gary

Michael Glass, M.D., a licensed psychiatrist, who testified on

defendant's behalf that there was no evidence of alcoholism or

habitual drunkenness, that defendant's post-traumatic stress

disorder was "mild and resolving," and that defendant was

suffering from moderate stress related to the unhappy and

dissolving marriage. He concluded defendant had no personality

disorders or indicators for alcoholism and, in his view, there

was "no reason whatsoever that [defendant] should have to

forfeit or be denied the use of his private weapons as an

orderly citizen."

Defendant also called character witnesses and others who

had witnessed past interactions between him and Carolyn.

At the conclusion of the trial, the judge rendered an oral

decision and entered judgment forfeiting the weapons. Defendant

unsuccessfully moved for reconsideration and thereafter filed

this appeal, arguing that: (1) his motion for a mistrial should

have been granted due to "the unfair surprise involved" in the

trial judge's "use of photographs not supplied to counsel and

the surprise allegation of physical injury"; (2) the evidence

does not support the judge's finding that defendant is a danger

A-4323-08T4
3

to the public safety1; and (3) the order under review infringes

on defendant's Second Amendment rights.

During the trial, the prosecutor briefly elicited from

Carolyn that, in the aftermath of the act of domestic violence

that led to the TRO, she went to an attorney, who advised that

she have photographs taken of her injuries. Following this

testimony, the trial judge showed Carolyn photographs,

apparently removed from the court's file regarding her domestic

authenticate.2
violence action, which Carolyn was asked to

Defense counsel objected, without providing any specific basis

for that objection. Counsel also was given the opportunity to

question Carolyn about the photographs but chose not to.

The next day, defendant moved for a mistrial on the basis

that the photographs were not produced by the prosecutor during

discovery; he also moved for recusal. Specifically, defendant

argued that the judge "took over the [p]rosecutor's case and

1
Defendant's brief actually contains four separate points. In
the third, defendant argues that the judge erred in finding that
he went hunting at a time when the TRO was still in existence as
evidence of the danger posed by his possession of firearms.
That argument is considered in Section II of this opinion along
with our discussion of the sufficiency of the evidence.
2
We assume, as is the practice in family cases, that the clerk's
office provided the judge in advance of this trial with all the
files that involved these parties.

A-4323-08T4
4

essentially tried the case for the prosecutor" when the judge

questioned Carolyn about the photographs.

This argument is entirely without merit. The judge's brief

examination of Carolyn merely sought her authentication of

photographs that were apparently in the court's domestic

violence file. After the photographs were identified, the judge

then asked the following few questions:

Q. When were those photographs taken?

A. The day after the incident, so it would
have been --

Q. Do those photographs show certain bruises
on your arms?

A. Yes.

Q. How did those bruises get there?

A. From my husband.

Q. And what did your husband do to cause
those bruises?

A. He grabbed my arm to pull me from the
door to get in the door.

THE COURT: Show them to [defense counsel].

Q. Ma'am, who took those photographs?

A. My daughter.

The judge then asked defense counsel and the prosecutor whether

they had any questions about the photographs; they both declined

the opportunity.

A-4323-08T4
5

Carolyn's testimony, during the examination of both the

prosecutor and defense counsel, spanned ninety-seven transcript

pages; the judge's examination of the witness consumed less than

one. Accordingly, we find defendant's claim that the judge

"took over the prosecution" to be utterly frivolous, as was his

motion to recuse the judge. We, thus, reject the arguments in

Point I that defendant was treated unfairly at trial and that

the trial judge should have ordered a mistrial.

Defendant additionally contends he was deprived of due

process and fundamental fairness because the prosecutor did not

notify him in advance of trial that the photographs would be

used. We find insufficient merit in that argument, or any other

argument that may be found in Point I, to warrant discussion in

R. 2:11-3(e)(1)(E).3
a written opinion. Defendant was aware of

the existence of the photographs before the trial ever began and

3
Included in the record on appeal is a transcript of the
incomplete hearing regarding Carolyn's domestic violence action
against defendant; as noted above, that action was later
voluntarily dismissed by Carolyn. At that hearing, Carolyn
testified about the bruises she received as a result of
defendant's alleged manhandling of her. The photographs in
question here were also identified at that hearing, discussed
during Carolyn's testimony, and admitted into evidence.
Defendant was then represented by the same attorney who
represented him in the trial court here. Defendant was also
shown the photographs and testified at the domestic violence
hearing that he did not cause the bruises depicted in the
photographs. The use of these photographs in this forfeiture
action could hardly have been surprising or unexpected.

A-4323-08T4
6

he was given a full and fair opportunity to cross-examine

regarding their content or to present other evidence or

testimony to rebut or question what those photographs depicted.4

Defendant also contends the evidence was inadequate to

support a finding on any of the statutory grounds for forfeiture

of his weapons. Specifically, defendant argues that the trial

judge's decision that he presented a danger to the general

public was unfounded and based on speculation. We disagree.

N.J.S.A. 2C:58-3(c)(5) provides that "[n]o handgun purchase

permit or firearms purchaser identification card shall be

issued: . . . (5) [t]o any person where the issuance would not

be in the interest of the public health, safety or welfare."

The State's burden of proof is by preponderance of the evidence.

N.J.S.A. 2C:1-13(f); State v. Masculin,
355 N.J. Super. 250, 255

(Ch. Div. 2002).

2C:58-3(c)(5) (hereafter subsection (5)) "was
N.J.S.A.

intended to relate to cases of individual unfitness, where,

though not dealt with in the specific statutory enumerations,

4
It is noteworthy that the judge's questioning of Carolyn
occurred at the end of the day on February 5, 2009. The hearing
continued the next day and again on February 20, 2009.
Accordingly, defendant had a considerable amount of time and a
full opportunity to respond to the photographs before the judge
rendered his decision on March 2, 2009.

A-4323-08T4
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the issuance of the permit or identification card would

nonetheless be contrary to the public interest." Burton v.

Sills,
53 N.J. 86, 91 (1968), appeal dismissed,
394 U.S. 812,
89 S. Ct. 1486,
22 L. Ed. 2d 748 (1969); see also State v.

Cunningham, 186 N.J. Super. 502, 507 (App. Div. 1982). It

requires "a judicial declaration that a defendant poses a threat

to the public health, safety or welfare," which "involves, by

necessity, a fact-sensitive analysis." State v. Cordoma,
372 N.J. Super. 524, 535 (App. Div. 2004). That is, the analysis

necessitates "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." Ibid.

The scope of what may be in the interest of "public health,

safety or welfare" is not easily defined, but it is not limited,

as suggested by defendant, to applicants who have engaged in

past acts of actual violence or lawlessness. For example, we

upheld a denial based on subsection (5) where the applicant

failed to disclose an arrest on a weapons charge despite the

absence of a conviction on that charge; we focused instead on

the applicant's willing disregard of the gun laws in affirming

365 N.J.
the rejection of his application. In re Osworth,

A-4323-08T4

8 Super. 72, 80-81 (App. Div. 2003), certif. denied,
179 N.J. 310

(2004).

The judge's findings here resulted from his "opportunity to

make first-hand credibility judgments about the witnesses who

appear[ed] on the stand . . . ." N.J. Div. of Youth & Family

Servs. v. E.P.,
196 N.J. 88, 104 (2008) (citing N.J. Div. of

Youth & Family Servs. v. M.M.,
189 N.J. 261, 293 (2007)). In

deferring to the judge's credibility findings, we conclude the

decision was well-supported by "competent, relevant and

reasonably credible evidence." Rova Farms Resort, Inc. v.

Investors Ins. Co.,
65 N.J. 474, 484 (1974).

Carolyn's testimony, which the judge was entitled to

credit, In re Return of Weapons to J.W.D.,
149 N.J. 108, 116-17

(1997), reveals that defendant was both verbally and physically

abusive to the point where police assistance was required; the

extent of that abuse was supported by Carolyn's testimony and

revealed by the photographs referred to above. Further,

defendant invoked his Fifth Amendment right to remain silent

regarding whether he had gone hunting during the pendency of the

forfeiture hearing, in violation of N.J.S.A. 2C:39-7(b)(3).5 The

5
That section provides that "[a] person whose firearm is seized
pursuant to the "Prevention of Domestic Violence Act of 1991,"
. . . and whose firearm has not been returned . . . who
(continued)

A-4323-08T4
9

judge was entitled to draw an adverse inference from defendant's

silence and conclude that defendant had, in fact, gone hunting

during that period of time.6 Moreover, the judge was entitled

to rely upon this evidence to conclude that defendant had an

inadequate respect for the gun laws of this State. Indeed, in

considering this evidence, the judge focused on what he viewed

as a more significant consequence of this conduct; in the

judge's words, this conduct is "an indication to me and

[supports] a concern of mine that [defendant] is going to do

what he wants to do . . . no matter what the effect it would

have upon his family." In other words, we discern from the

judge's comments that defendant presented a danger because he

was unwilling to recognize any parameters on his conduct, even

those imposed by law with regard to the use of firearms.7

(continued)
purchases, owns, possesses or controls a firearm is guilty of a
crime of the third degree . . . ."
6
Although defendant refused to testify as to whether he went
hunting in that time frame, he claims that if he did he did not
knowingly violate the law because he acted upon his attorney's
advice. The judge was correctly dismissive of this argument.
See, e.g., In re Two Seized Firearms,
127 N.J. 84, 88, cert.
denied,
506 U.S. 823,
113 S. Ct. 75,
121 L. Ed. 2d 40 (1992).
7
Defendant's reliance on State v. One Marlin Rifle,
319 N.J.
Super. 359 (App. Div. 1999) is misplaced. In that case, we
considered whether the testimony of defendant's ex-wife was
sufficient to sustain the judge's order of forfeiture under
Id. at 366. Defendant's ex-wife, a certified
subsection (5).
(continued)

A-4323-08T4
10

Ultimately, the judge's determination was based upon his

view of the parties' continued relationship in the same

household. He found that defendant's anger, which has "been

able to fester and continue for an extended period of time,"

coupled with "the unhappiness and anger that's inside this

household" rendered defendant's possession of weapons "a recipe

for disaster," and contrary to the interest of public safety,

health or welfare. The judge viewed the parties as "sitting on

a powder keg," which is subject to being further fueled by what

the judge referred to as defendant's occasional "need to go out

and get drunk." Thus, even though the judge said in his

decision that he "d[id] not think [defendant] is an alcoholic,"

he concluded there was enough anger in this "powder keg" of a

household that it would not be in the interest of the public

(continued)
clinical nurse specialist in psychiatric nursing, testified that
defendant had a psychiatric condition that caused outbursts of
On review, we found that the judge impermissibly
rage. Ibid.
"relied upon the expert testimony of [the defendant's] estranged
wife who basically intimates that [the defendant] suffers from a
violent form of depression and that it was 'possible' that [the
defendant's] actions amounted to a threat to the public
Id. at 148. And, we reversed because the judge's
welfare."
conclusions were "at best speculative, and based on events which
were previously found not to have constituted domestic violence
at a domestic violence hearing." Id. at 148. Unlike One Marlin
Rifle, the judge's conclusions here were not speculative.
Unquestionably, the judge attributed more weight to Carolyn's
testimony than defendant's or his other witnesses, but this is
permissible and nothing like the judge's acceptance in One
Marlin Rifle of speculative expert testimony.

A-4323-08T4
11

health, safety or welfare to have the weapons returned to

defendant. After careful review, we conclude that the judge's

findings and conclusions were supported by sufficient credible

evidence and well-founded on accepted legal principles.

III

Defendant lastly argues that the order under review

infringes his constitutional right to keep arms, as defined by

District of Columbia v. Heller, U.S. ,
128 S. Ct. 2783,
171 L. Ed. 2d 637 (2008). Defendant did not raise this argument in

the trial court, and for that reason alone, we could decline to

consider it. Neider v. Royal Indem. Ins. Co.,
62 N.J. 229, 234

(1973).

Notwithstanding, we find the argument has no merit because

the right announced in Heller is not immune from "reasonable

limitations," Crespo v. Crespo,
201 N.J. 207, 210 (2010), as the

Heller majority, in fact, acknowledged, Heller, supra, __ U.S.

at __,
128 S. Ct. at 2816-17, 2819,
171 L. Ed. 2d at 678, 680-

81. As a result, we have held that Heller "has no impact upon

the constitutionality of N.J.S.A. 2C:58-3(c)(5)." In re Dubov,

410 N.J. Super. 190, 197 (App. Div. 2009).

Affirmed.

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