IN THE MATTER OF THE DENIAL OF THE APPLICATION FOR A FIREARMS PURCHASER'S IDENTIFICATION CARD

NOT FOR PUBLICATION WITHOUT THE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 DENIAL OF

THE APPLICATION FOR A FIREARMS

PURCHASER'S IDENTIFICATION CARD

AND FOR A PERMIT TO PURCHASE A

HANDGUN BY RENAUDE TUTT.

_______________________________________

January 6, 2015

Submitted December 9, 2014 Decided

Before Judges Messano and Sumners.

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

Renaude Tutt, appellant pro se.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Matthew Lynch, Assistant Prosecutor, of counsel and on the statement in lieu of brief).

PER CURIAM

Renaude Tutt appeals from the order of the Law Division affirming the decision of the Burlington Township Police Chief to deny Tutt's application for a firearms Purchaser Identification Card and a Permit to Purchase a Handgun, and seeks to have his application approved. We discern the following facts from the record.

After several gun permit applications were denied, Tutt filed an appeal to the Law Division. Without taking any testimony or allowing for the admission of any documentary evidence, the court asked Tutt to explain why he did not reveal that he had prior applications rejected. The court then denied Tutt's appeal without the State presenting any witnesses.

Tutt now appeals to us, contending that the Law Division did not have sufficient evidence to conclude he knowingly falsified prior applications, the Police Chief did not meet with him to discuss the reasons for denial, and thus his application should be granted. The State concedes that the trial court reached its decision without allowing the State to present testimony to establish a basis for the denial of Tutt's application, and consents to a remand. Upon review of the record and applicable legal principles, we are compelled to reverse and remand for further proceedings. We add only the following brief comments.

It is well-settled that the denial of an application for a Firearms Purchaser Identification Card is governed by the procedural due process requirements set forth in Weston v. State, 60 N.J. 36 (1972). In re Dubov, 410 N.J. Super. 190, 199 (2009). Trial courts must provide de novo review of denials of these applications. Id. at 200 (quoting Weston, supra, 60 N.J. at 45).

The de novo review must conform with basic and fundamental notions of due process. Such hearings must involve the "introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court." Weston, supra, 60 N.J. at 45. Under Weston, "the existence of good cause for denial . . . represent[s] a burden to be carried by the [police], and to be established by a fair preponderance of the evidence." Id. at 46. There must be testimony before the trial court "by the appellant, the Chief of Police, police officers who investigated and forwarded reports to the Chief, or other witnesses who furnished information that influenced the denial." In re Dubov, supra, 410 N.J. Super. at 194 (citing Weston, supra, 60 N.J. at 46).

Here, the trial court did not apply these procedures. The court did not hear testimony from witnesses under oath and subject them to cross-examination, nor were the documents relied on by the court identified and formally admitted in evidence. Indeed, the Chief of Police, as represented by the Burlington County Prosecutor's Office, did not produce any evidence to meet his burden of proof as required under Weston. Thus, the decision reached below cannot stand as a matter of law.

The State concedes these procedures were not followed and consents to a remand. Defendant contends that there should not be a remand but that his application should be granted. We disagree with defendant. He cites no statute or New Jersey court decision which calls for the de facto granting of his handgun permit application where the court did not adhere to the due process requirements. In fact, a remand is consistent with our holding in Dubov that the legislature could not have intended a person obtain a permit solely due to the court's failure to conduct a timely hearing. Id. at 198-99. The appropriate recourse is a remand for the Law Division to conduct a plenary hearing in which the State will be afforded the opportunity to present evidence in support of the denial and Tutt be allowed to contest the State's evidence.

Reversed and remanded. We do not retain jurisdiction.