IN THE MATTER OF THE APPLICATION OF JANINE WHITAKER FOR A FIREARMS PURCHASER IDENTIFICATION CARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2249-13T3

IN THE MATTER OF THE

APPLICATION OF

JANINE WHITAKER

FOR A FIREARMS PURCHASER

IDENTIFICATION CARD AND PERMIT

TO PURCHASE A HANDGUN.

__________________________________

December 29, 2015

Argued December 2, 2015 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. 12-073.

James S. Friedman argued the cause for appellant Janine Whitaker.

RobertJ. Wisse,Assistant Prosecutor, argued the cause for respondent State of New Jersey (CameliaM. Valdes,Passaic County Prosecutor, attorney; Mr. Wisse, on the brief).

PER CURIAM

Janine Whitaker, a former Passaic County Sheriff's Department (PCSD) corrections officer, appeals from the December 6, 2013 order, which upheld the Chief of the Paterson Police Department's (Department) August 8, 2012 denial of her second application for a firearms purchaser identification card and a permit to purchase a handgun pursuant to N.J.S.A. 2C:58-3(c)(5). After reviewing the record in light of the contentions advanced on appeal, we affirm.

The trial judge conducted a two-day hearing after Whitaker appealed the Chief's denial of her second request. Whitaker was employed by the PCSD from 1996 until she officially retired in March 2011.1 She initially applied for a permit to purchase a handgun and a firearms purchaser identification card in August 2011. Two months later, the Department issued the permit after conducting a records check that reflected one prior arrest on July 7, 2000, for aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and resisting arrest, N.J.S.A. 2C:29-2(a)(1); charges that were subsequently dismissed. Detective Keith Rotsaert of the Firearms Investigation Unit was responsible for investigating firearms permit applications. At the hearing, Rotsaert testified that he had been responsible for reviewing "all gun permit applications" submitted to the Department "for the past seven years." Because Whitaker was employed as a law enforcement officer, Rotsaert did not investigate the arrest further, nor talk to Smith and Sergeant Joseph Laws, the two law enforcement references Whitaker listed. He merely checked that no records existed reflecting any mental health issue and called Internal Affairs to confirm that Whitaker "had nothing pending." By statute, issued permits are valid for a period of ninety days, with an additional ninety-day extension available upon application. N.J.S.A. 2C:58-3(f).

Whitaker attempted to obtain her departmental weapon from the PCSD. Laws, the Vice President of the Patrolmen's Benevolent Association, represented Ms. Whitaker in her efforts. Smith was the PCSD's representative who Whitaker contacted directly to obtain the weapon. According to Smith, Whitaker's discussions with him were difficult; he testified, "she became very accusatory" and "agitated," switching between "Dr. Jekyll and Mrs. Hyde, almost like exhibiting . . . two personalities." These interactions caused their relationship to sour. Whitaker was unable to timely obtain her service weapon from the PCSD; she did not purchase another weapon and the permit's 180-day time period expired. She reapplied for a new permit in April 2012.

Her new application again listed Smith and Laws as references. On July 12, 2012, Rotsaert called Laws and left a message. On July 19, 2012, Whitaker began calling Rotsaert to express the urgency of her application as her property had been vandalized a few days prior. Rotsaert testified that Whitaker was "talking fine" one minute, but "the next minute [she was] yelling and screaming." Whitaker also went to Rotsaert's office. There, the discussion became heated so he asked her to leave. The two disagreed in their testimony as to the content of their interactions, but Whitaker was dissatisfied with the speed of the process, and Rotsaert undertook a more thorough investigation of Whitaker's second application.

When Rotsaert spoke to Smith, Smith no longer wished to be a reference, stating that Whitaker "goes from hot to cold in a minute." Rotsaert also claimed that Laws told him "off the record" that Whitaker should not have a gun. Laws stated under oath only that he would not want to be Whitaker's reference in the future because he did not wish to be involved in further proceedings.

Rotsaert also spoke to Officers Jeffrey Wolfe and Frank Trofa, the arresting officers in Whitaker's 2000 arrest. Both officers described Whitaker to Rotsaert as "unstable" and "crazy." Rotsaert testified that he and the Chief of Police discussed Whitaker's July 2000 arrest. They concurred that Whitaker's application should be denied for reasons of public health, safety, and welfare.

Neither Wolfe nor Trofa had a present detailed recollection of the arrest, but they testified, relying on their police report,2 that they were dispatched to Whitaker's apartment where a visitation dispute was ongoing between Whitaker and her ex-husband. Whitaker pushed Trofa; and then as Trofa attempted to handcuff her, "she pulled away, stepped back and assumed a combative stance" with both fists raised. Whitaker then "struck Officer Trofa in the upper torso with a closed fist." They both fell to the ground and the struggle continued, with Whitaker "kicking and punching Officer Trofa." Whitaker testified that she was assaulted by Trofa.3 A contemporaneous follow-up investigation, required because the incident involved two law enforcement officers, reflected that interviews with approximately twenty to thirty witnesses within the apartment complex supported Trofa's version of events.

At the hearing, Whitaker also called a character witness, who had met Whitaker years ago when they both worked in the court system. The character witness testified that Whitaker is "[a] wonderful person."

The trial judge found the State's witnesses credible. The judge also found that: "After listening to the testimony of all of the witnesses who testified in this matter, I cannot find . . . Ms. Whitaker's version of the events to be credible." The judge found that Whitaker's "relationship with her ex-husband is still a volatile relationship" and the eyewitnesses supported the two officers' version of the events. The judge also found that Whitaker's recollection of her August phone calls to Rotsaert was not credible because Rotsaert "prepared contemporaneous notes" and sought to obtain an internal tape recording of the conversation, before determining that their conversation was not recorded.

The trial judge found that Rotsaert, "on behalf of the Chief of Police," met his "burden of proving the existence of good cause for the denial by a preponderance of the evidence." The judge stated that

the good cause is that [Whitaker's] own references no longer want to be references, that she was involved in a domestic dispute in July of 2000, wherein she assaulted [two] officers, [two] police officers who were called to the scene, she resisted arrest, although she herself was a corrections officer at the time. By her own admission, her relationship with her ex-husband is still a volatile one.

"We review a trial court's legal conclusions regarding firearms licenses de novo." In re N.J. Firearms Purchaser Identification Card & Permit to Purchase a Handgun by Z.K., 440 N.J. Super. 394, 397 (App. Div. 2015) (citing In re Sportsman's Rendezvous Retail Firearms Dealer's License, 374 N.J. Super. 565, 575 (App. Div. 2005)). With regard to findings of fact, however, "our review of the trial court's decision is limited." In re Z.L., 440 N.J. Super. 351, 355 (App. Div.), certif. denied, 223 N.J. 280 (2015). "Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence." In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). We also defer to the judge's credibility findings. State v. Legette, 441 N.J. Super. 1, 14 (App. Div. 2015) (quoting State v. Kuropchak, 221 N.J. 368, 382 (2015)) ("[A]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record."), certif. granted, __ N.J. __ (2015).

Rejection of a permit less than nine months after approval of the same application raises questions as to the legitimacy of the permit investigation process. The only incidents that took place between the approval and the denial was Whitaker's badgering of Smith to obtain her service weapon and her subsequent badgering of Rotsaert to process the second application. This perhaps unpleasant interpersonal way of dealing with people in authority does not satisfy the Chief of Police's burden of demonstrating that granting the permit "would not be in the interest of the public health, safety or welfare." See Z.L., supra, 440 N.J. Super. at 358-59 (citing N.J.S.A. 2C:58-3(c)(5)). Nonetheless, whether goaded by Whitaker's unpleasantness, or by conscientious concern, Rotsaert's more thorough investigation of Whitaker's second permit application turned up genuine public health, safety and welfare concerns.

The public health, safety, and welfare "provision is '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.'" In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003) (quoting 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); and citing State v. Cunningham, 186 N.J. Super. 502, 507 (App. Div. 1982)), certif. denied, 179 N.J. 310 (2004). "[I]n evaluating the facts presented by the Chief, and the reasons given for rejection of the application, the court should give appropriate consideration to the Chief's investigative experience and to any expertise he appears to have developed in administering the statute." Weston v. State, 60 N.J. 36, 46 (1972). The trial judge properly deferred to Rotsaert, who, as the representative of the Department's Chief of Police, determined that the issuance of a firearms permit to Whitaker would be contrary to public health, safety, or welfare. See J.W.D., supra, 149 N.J. at 116-17.

Accepting the credibility assessments of the trial judge, as we should, the judge's factual findings were well-grounded. See Legette, supra, 441 N.J. Super. at 14. Whitaker's prior assaultive behavior, coupled with her current volatile relationship with her ex-husband and the failure of at least one of her listed references to vouch for her, represents substantial credible evidence on which to base a finding that the issuance of a gun permit "would not be in the interest of the public health, safety or welfare." See N.J.S.A. 2C:58-3(c)(5).

1 Whitaker stopped working in December 2008 due to unexplained non-psychological health issues, but did not officially sever ties with the PCSD until she reached a confidential settlement agreement with the PCSD. Lieutenant Terry Smith interacted with Whitaker on behalf of the PCSD.

2 "[T]he usual rules of evidence barring hearsay testimony are not controlling in an appeal from the denial of an application for a gun purchaser permit." In re Dubov, 410 N.J. Super. 190, 202 (App. Div. 2009).

3 Whitaker testified that she filed criminal charges against Trofa, but allowed them to be dismissed when the charges against her were dismissed.