IN THE MATTER OF THE APPEAL OF THE DENIAL OF THE APPLICATION BY DANIEL PICORELLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE APPEAL OF

THE DENIAL OF THE APPLICATION

BY DANIEL PICORELLI FOR A FIREARMS

PURCHASER IDENTIFICATION CARD

AND PERMIT TO PURCHASE A HANDGUN

November 14, 2013

Submitted October 1, 2013 Decided

Before Judges Reisner and Alvarez.

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

Evan F. Nappen, attorney for appellant Daniel Picorelli (Louis P. Nappen, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent State of New Jersey (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Daniel Picorelli appeals from the January 27, 2012 Law Division denial of his application for the issuance of a Firearms Purchaser Identification Card (FPIC) and a Permit to Purchase a Handgun (PPH). See N.J.S.A. 2C:58-3. We affirm.

On January 6, 2011, after an investigation by Wood-Ridge Police Department Sergeant William Wolfsohn, Chief of Police Joseph T. Rutigliano denied the application. Rutigliano concluded, after review of the investigation reports, that issuance would be contrary to "the public health, safety or welfare." See N.J.S.A. 2C:58-3(c)(5).

The investigation revealed that Picorelli's former girlfriend, K.C., had obtained two separate temporary restraining orders (TROs) under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-1 to -35. Picorelli had also been charged with contempt of the first TRO. After trials, during which only Picorelli was represented by counsel, the TROs were dissolved, he was not found guilty of contempt, and no final restraining orders (FROs) were issued.

At the Law Division hearing, K.C. testified on behalf of the State. She said that during her short-term relationship with Picorelli, on one occasion while arguing, Picorelli "shoved [her]" and threw objects around a room. This, in part, led to the issuance of the first TRO.

Picorelli explained the incident as follows:

I had not disconnected the DVD player from my TV, so the only place to put the blu-ray player was on the drawer, so I pulled out the drawer and placed the blu-ray player on top of it, and while [K.C.] and I were having sexual relations, I wasn't aware that the Tempur-Pedic mattress molds to everyone's body, I fell backwards off the bed, elbowed the drawer, and I pushed her forward on to the bed so the catapulting blu-ray player would not hit her. It actually happened that the $300 blu-ray player fell on the floor and broke into pieces.

K.C. also testified about a second incident that occurred on October 13, 2009. At approximately midnight, the couple was arguing while seated in Picorelli's car, resulting in Picorelli terminating the relationship. He told K.C. he never wanted to see her again, threw his cell phone at her, and said that she should walk the several miles to her home: "b[]tch get the f[]ck out of my car." K.C. left, and immediately afterwards, Picorelli proceeded to call K.C. twenty-one times and text her seventy times.

Picorelli explained this incident as follows:

Round trip from my house to her house is about 25 miles. I had just picked her up, brought her to my house, we had just pulled in the driveway, and her roommate, who I believe was jealous of our relationship, had called her and told her that she had just watched . . . Paranormal Activity, and that she was afraid to sleep at home, and Kaitlin would have to go back to her house to sleep. I raised the argument that it's not really her roommate, it's a friend, she still lives with her parents and fiancé, [sic] so there's four other people in the house at the time, and if she wanted to go back there, that the roommate would have to come pick her up. But I didn't physically kick her out of the car, I told her you need to get out then and have her pick you up. Then I noticed her walking down the block, and she's a very petite girl, and it's about 12 miles away, she can't be walking home, so I tried calling her and texting her a few times, and I couldn't find her on the street, and she had, I found out later, gotten picked up by her roommate and went home.

. . . .

I was actually very nervous for her, that's why, you know, on the cell phone [sic] just keep hitting the send button. I didn't know if she was on the phone with someone, I was actually very worried about her, a very small girl 11:00 at night walking by herself.

At some unspecified later date, K.C. contacted Picorelli, because she was concerned that she might be pregnant. The couple met in the parking lot at her place of employment, and, according to K.C., during the course of the conversation, Picorelli told her that he would kill her if they did not reconcile. At one point, Picorelli drove his car towards a wall, telling K.C. that they were both going to die.

When asked on direct about this incident, Picorelli said the following:

Absolutely not. I had just gotten that car, it was a brand new car, it was a college graduation present.

Q. So you had no intention of destroying that?

A. Absolutely not.

Q. Did you have any intention of hurting her in any way?

A. Definitely not. She was supposedly carrying my unborn child. There is no way that I would ever threaten to harm her at all.

K.C. obtained the second TRO after she was told by a mutual acquaintance that Picorelli was posting threatening messages about her on Facebook, a social network site. This included him stating that he had been picked up by a sheriff while approaching her house. K.C. also said that Picorelli later changed the post, erasing her name and inserting the initials "K.C." in its place.

Picorelli completely denied that this event occurred, explaining the Facebook reference to K.C. thus:

At the present time I was playing a video game for Xbox 360 that allows you to play on the Internet called Halo 3. It's a video game in which aliens are taking over the earth, it's pretty much a war game between aliens and humans, and you play it four versus four online. I played, my character's name was SiggyMoos, . . . there was a character named Casey1966, Relentless One, and also Noodles . . . was on my team, and we played this game religiously, every day for about five, six hours.

And what happened was, when I started my part-time job working at Fairway and Stew Leonard's, I didn't have enough time for the team, couldn't put in a great effort, so they replaced me, so I had a couple of Facebook posts saying that I would seek revenge on K.C. and all three of them, and the three people that I was referring to was [sic] Casey1966, Relentless One and BoogieNoodles for kicking me off of the team, that I probably put in over 400 hours of gameplay.

. . . .

Actually, I was home playing the game when, you know, Wood-Ridge police came to my house, and I said what is this about, and they said Facebook comments, and I had no idea even what comments they were referring to until we actually, you know, got the discovery or the temporary restraining order, and I looked at those . . . comments, and I was like this is a complete misunderstanding, it's about a video game and three people that are like hundreds of miles away from me.

Picorelli also explained the reference to being picked up by a sheriff in this fashion:

I believe what that was referring to was New Years Eve, I left Pub 46, we were waiting for a cab, and there was actually a Sheriff's Officer that said hey, come on, you know, get out of here, because a big fight had broken out at Pub 46, it was a mass exodus, me and a couple people walked away, and we were walking down the street. A Sheriff's Officer actually pulled up to us and asked what was going on, we told him what happened and they said hey, you know, I'm going to drive you down to the station, wait in my car and have one of your parents, you know, come and get you and bring you home safe, because waiting for a cab is like a two hour wait.

When asked during the course of Wolfsohn's investigation about her opinion regarding Picorelli having a gun, K.C. responded that she did not think that would be a good idea. At the time of the permit hearing, they were on friendly terms. When asked on cross-examination, K.C. said she had no issue with Picorelli having a gun.

In rendering his decision, Judge Edward Jerejian found K.C. credible and Picorelli incredible. As he said, Picorelli had "an excuse for everything, [and] den[ied] everything." He further found that Picorelli's actions demonstrated that he had difficulty controlling his temper, had made threats, acted out impulsively, and was potentially abusive. Therefore, the judge, employing the preponderance of the evidence standard, could not conclude that Picorelli would not "be a threat to the public health, safety and welfare if issued a permit." Hence he denied the application.

On appeal, Picorelli raises the following points:

POINT 1: DANIEL PICORELLI PRESENTS NO DISQUALIFIER TO FIREARM POSSESSION, AND THE POLICE CHIEF BASED HIS DENIAL UPON IRRELEVANT CRITERIA.

POINT 2: THE COURT BELOW APPLIED THE WRONG STANDARD OF LAW.

POINT 3: THE COURT BELOW ERRED BY REVERSING THE STATUTORY BURDEN FROM THE STATE TO THE APPLICANT.

POINT 4: DANIEL PICORELLI SHOULD NOT BE DENIED HIS INDIVIDUAL, FUNDAMENTAL SECOND AMENDMENT RIGHT UNDER THESE CIRCUMSTANCES.

A. The Court below applied an unconstitutional "interest-balancing" test as a basis for denial.

B. N.J.S. 2C:58-3c(5)'s "interest of public health, safety or welfare" is unconstitutionally vague and overbroad, particularly as applied in the present matter, and the standard itself is nothing more than rational basis review and, thereby, violates the Second Amendment.

C. The Court below's scrutiny level constituted nothing more than rational basis review, and this right may not be denied under rational basis review.

POINT 5: WOOD-RIDGE POLICE FAILED TO PERFORM AFFIRMATIVE DUTIES, RESULTING IN A DENIAL OF DUE PROCESS.

A. Chief Rutigliano failed to discuss the matter with the applicant before making his decision, per Weston.

B. Chief Rutigliano failed to grant the permit within the statutorily mandated time, per N.J.S. 2C:58-3F.

POINT 6: THE COURT BELOW ERRED BY SUBSTITUTING ITS OWN SUBJECTIVE "MATURITY" REQUIREMENT FOR THE LEGISLATURE'S SPECIFIC AND ENUMERATED DISQUALIFIERS, AND THIS CONSTITUTIONAL RIGHT SHOULD NOT BE DENIED WITHOUT A SPECIFIC FORM OF REDRESS.

We find Picorelli's contentions of error on appeal do not warrant specific discussion in a written opinion. See R. 2:11-3(e)(1)(E). We address only the argument that Judge Jerejian's decision did not comport with the statute, but was improperly grounded on his finding that Picorelli was immature.

In order to purchase a firearm in New Jersey, one must apply for a FPIC and a PPH. N.J.S.A. 2C:58-3(a), (b). A FPIC and a PPH are issued to applicants who are "person[s] of good character and good repute in the community in which [they] live[]," unless a statutory disqualifier applies. N.J.S.A. 2C:58-3(c). One such disqualifier is for "any person where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5).

Initially, the chief of police in an applicant's home municipality decides whether to grant the application. N.J.S.A. 3C:58-3(d),(f). The chief must "conduct a good faith investigation," and grant the application "unless good cause for the denial thereof appears." N.J.S.A. 3C:58-3(f); see Weston v. State, 60 N.J. 36, 43 (1972).1 In performing this function, "the chief of police proceeds informally, acting either personally or through members of his [or her] department in gathering the information upon which his [or her] decision is then based." Weston, supra, 60 N.J. at 43.

If the application is denied, the aggrieved applicant "may request a hearing in the Superior Court," Law Division. N.J.S.A. 3C:58-3(d); In re Dubov, 410 N.J. Super. 190, 200 (App. Div. 2009). The trial court's review of the chief's decision is de novo, and the introduction of new evidence is permissible. Weston, supra, 60 N.J. at 45.

Nonetheless, "[t]he chief has the burden of proving the existence of good cause for the denial by a preponderance of the evidence." Osworth, supra, 365 N.J. Super. at 77 (citing Weston, supra, 60 N.J. at 46). In weighing the evidence, the "court should give appropriate consideration to the Chief's investigative experience and to any expertise he [or she] appears to have developed in administering the statute." Weston, supra, 60 N.J. at 46. Overall, this "judicial review compensates constitutionally for procedural deficiencies before the [police chief]." Id. at 45.

Appellate review of the factual findings of a trial court "should not be disturbed unless . . . 'they are so wholly insupportable as to result in a denial of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

On the other hand, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Therefore, an appellate court's "review of the judge's interpretations of law and the applications of law to facts is de novo." Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (2008), certif. denied, 197 N.J. 475 (2009).

As a threshold matter, we find the judge's assessment of credibility to comport with the evidence on the record. As he observed, Picorelli did not just have a different perspective on the incidents K.C. described, he flatly denied that they occurred and offered no reason K.C. would have made such detailed and baseless claims against him. Additionally, Picorelli's own explanations lacked candor. For example, the description that he gave of the gymnastics that he allegedly engaged in while trying to protect K.C. from being struck on the head by his DVD player was simply not believable.

Once K.C.'s version of events is determined to be closer to the truth, then it follows that Picorelli's history raises concerns whether issuance of a gun permit would be in the public health, safety, or welfare. In other words, whether good cause for denial has been demonstrated by a preponderance of the evidence. Osworth, supra, 365 N.J. Super. at 77.

The intent of the Legislature "was to keep guns out of the hands of unfit persons," and "disqualify any unfit individuals who, though not strictly within the enumerated classes, should not in the public interest be entrusted with firearms." 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).

Issuance of an PFIC and PPH to an individual with a volatile temper, poor judgment, and an impulsive personality can rationally be said to pose a threat to the public health, safety, or welfare. Cf. State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004) (upholding the trial court's N.J.S.A. 2C:58-3(c)(5) disqualification finding because the court "had a rational basis to question the defendant's fitness to possess a firearm"). Thus, in this case the denial of a FPIC and PPH under the N.J.S.A. 2C:58-3(c)(5) disqualification was established by a preponderance of the evidence.

In our view, the hearing judge correctly concluded as a matter of law that it was not bound by the earlier Family Part decisions regarding the issuance of FROs. The proceedings were entirely different in nature. In one, the judge was assessing factors such as whether Picorelli posed an immediate danger to K.C. N.J.S.A. 2C:25-29(a); J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). In the other, the judge was assessing whether Picorelli's possession of a firearm was contrary in a more general sense to the public's health, safety, or welfare. The judge therefore properly made his own independent judgment, including as to credibility, a judgment reasonably supported by the record in its entirety. See State v. Freysinger, 311 N.J. Super. 509, 515 (App. Div. 1998) (citing Rova Farms Resort, Inc., supra, 65 N.J. at 484).

As the judge also said:

[P]erhaps in time with more maturity, more of a track record without any incidents, without any problems, [Picorelli] can apply again. Perhaps at that point the State's position, and ultimately the Court's position, will be different. But I cannot conclude that these things did not happen. That's what you said. I can't find that. I think they did happen. And maybe they were exaggerated and you didn't mean them, but I have to weigh the evidence, and I think, again, with the standard of preponderance of the evidence, I cannot conclude that you wouldn't be a threat to the public health, safety and welfare, so I'm going to deny the application.

In our view, the denial was not based, as Picorelli argued, on a subjective assessment that he was too "immature" to be issued permits. Rather, as the judge explained, it was based on his legal conclusion that the Chief's reasons for denial met the statutory standard.

1 In Weston, the Supreme Court of New Jersey interpreted the statutory predecessor to N.J.S.A. 3C:58-3. In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004). But "the Court's comments on the earlier statute in Weston . . . are applicable to the modern version." Ibid. (internal citation omitted).