IN RE THE APPLICATION OF KEITH S. RUSSELL FOR A PERMIT TO CARRY A HANDGUN AS A RETIRED LAW ENFORCEMENT OFFICER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN RE THE APPLICATION OF

KEITH S. RUSSELL FOR A

PERMIT TO CARRY A HANDGUN

AS A RETIRED LAW ENFORCEMENT

OFFICER.

October 12, 2016

Argued September 20, 2016 Decided

Before Judges Yannotti and Gilson.

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

Frank Pisano, III, argued the cause for appellant Keith S. Russell (Needleman and Pisano, attorneys; Mr. Pisano, on the briefs).

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Keith S. Russell appeals from an order entered by the Law Division on April 27, 2015, which affirmed the denial by the Superintendent of the New Jersey State Police (NJSP) of Russell's application for a permit to carry a handgun. We affirm.

Russell was an officer in the Jersey City Police Department (JCPD). He retired on November 1, 2011, and thereafter filed an application pursuant to N.J.S.A. 2C:39-6(l) for approval to carry a handgun as a retired law enforcement officer. By letter dated October 3, 2012, the NJSP advised Russell that the Superintendent had denied his application because the JCPD had refused to endorse and certify the application. Russell appealed the decision to the Law Division and the trial court conducted a hearing on August 23, 2013.

Lieutenant Mark Miller of the JCPD's Internal Affair's Unit (IAU) testified. Miller stated that the JCPD had not certified Russell's application because of three "road rage" incidents in which Russell had been involved. Miller presented the court with the IAU's investigative reports concerning the three incidents.

Miller testified that the first incident occurred on April 23, 2010. On that date, S.O., an Assistant Attorney General of New York, was travelling with her husband, who was driving a Toyota Prius on Route 280. S.O. reported that Russell was driving a truck and cut off her husband. S.O.'s husband tried to get away from the truck, but Russell continued to follow them. S.O. and her husband exited Route 280 and Russell followed. He positioned his truck so that they were forced to stop on a side street. Russell then approached their vehicle and slammed his badge on the window. S.O. called the police because she did not think Russell was exhibiting "normal behavior." S.O. also stated that Russell had been cursing a lot. She described his behavior as "out of control."

Miller noted that officers from the Essex County College Police Department (ECCPD) responded to the scene and asked Russell for his identification. Russell and one of the officers had a confrontational exchange. Russell had refused to cooperate with the officer. Initially, Russell displayed his badge quickly, but put it back in his pocket before the officer could read it.

Miller further testified that the IAU investigated an incident involving Russell and A.C., a landscaping contractor, who had filed a complaint against Russell for assault by auto and harassment. A.C. said Russell had attempted to cause him bodily harm by striking A.C.'s vehicle with his vehicle, and by attempting to run A.C. off the road.

Miller explained that Russell had hired A.C. to perform certain landscaping, but apparently A.C. had not completed the work. On May 29, 2010, Russell went to a residence in West Orange where A.C. and his employees were working. Russell told the homeowners that A.C. had a criminal history, and he recounted his experience with A.C. Thereafter, A.C. left to get lunch for his workers and Russell followed him.

Miller testified that A.C. reported that, at one point, Russell drove his vehicle straight at A.C.'s vehicle, but A.C. avoided a head-on collision. A.C. continued to travel in the other direction, but Russell turned his vehicle around and pursued him. Russell passed A.C. on the left and cut him off. According to A.C., Russell nearly ran him off the road.

They both continued to drive on, and Russell again passed A.C. on the left. A.C. slammed on his brakes and put his vehicle in reverse to get away from Russell. Russell also went in reverse and drove alongside A.C.'s vehicle. A.C. called the West Orange police, and the dispatcher told him to pull over and wait for the police. A.C. drove forward and Russell followed close behind. At some point, the police arrived.

Miller testified that the IAU investigators found and interviewed an independent witness to this incident. She stated that she observed Russell pass A.C.'s truck on the left at a high rate of speed. She also saw Russell cut off A.C. at an intersection. In addition, the owners of the home where A.C. had been working confirmed that Russell had spoken to them and warned them about A.C.

Miller also testified that A.C. had reported that Russell had threatened him. Russell told him that he knew he was on probation. According to A.C., Russell said that if A.C. did not finish the job he had hired him to perform, Russell "would make his life a living hell and ensure that he went back to jail."

Miller further testified regarding the IAU's investigation of a third incident. J.A. reported that she was at a gas station in East Whippany on September 10, 2010, when she observed a pick-up truck pass two vehicles and drive up to the pump.

J.A. exited her car and approached the operator of the pick-up truck, who was later identified as Russell. J.A. told Russell he had passed a line of vehicles who were waiting to purchase gas. Russell responded with a profanity and said he was getting diesel fuel. J.A. and Russell engaged in a verbal dispute and she began to return to her vehicle.

J.A. said Russell followed her back to her car. According to J.A., Russell displayed a pocket knife, with a blade that was approximately five inches long. Russell asked J.A. if she would like her tires slashed and he waved the knife back and forth. J.A. got into her car and Russell began to walk away.

Russell then turned around and approached J.A. at the window of her car. J.A. said Russell continued to wave the knife and stated that she would need a new window and top for her car. J.A. was driving a soft-top Jeep at the time. Miller stated that J.A. told Russell to, "[g]o ahead, everyone is watching you." J.A. reported the incident to the police.

Miller testified that a police officer had spoken to Russell and Russell did not deny that he had a pocket knife in his possession. Russell showed Miller the pocket knife, and claimed that it was on a key chain. Miller did not believe Russell's assertion was credible, because the knife was "a lot smaller than" J.A. had indicated. The police charged Russell with possession of a weapon and disorderly conduct. Russell later pled guilty to loitering and paid a fine.

Miller stated that the JCPD issued twenty-four disciplinary charges to Russell with regard to the three incidents. Russell was told that he would be terminated; however, the JCPD and Russell had reached a settlement. Russell retired and the charges were withdrawn.

At the hearing, Russell admitted that he was involved in the altercation with S.O. and her husband in Newark and that he spoke with officers from the ECCPD who responded to the scene. Russell said he had been driving on Route 280. According to Russell, a Toyota was impeding the flow of traffic, and the driver of the car "opened his sunroof and was throwing change or whatever out of his car." Russell claimed that one of the objects hit and damaged the hood of his truck. He pulled away and exited Route 280 at First Street in Newark, and the Toyota exited behind him. Russell testified that he "yelled at the guy for throwing stuff" and hitting his truck.

Russell stated that he drove on and stopped at another light. The Toyota was behind him and the "guy got out and started to come at [his] truck." When Russell opened the door of his truck, the driver ran back to his car and got in. According to Russell, the driver was "irate."

The driver flagged down an officer. An officer from the ECCPD responded. Russell testified that he gave the ECCPD officer his identification card and badge. Russell claimed the officer said he was there to "hold the scene down" until the Newark police arrived. Russell was released ten minutes after the other car left.

Russell also testified about the incident involving A.C. Russell said he paid A.C. $30,000 to do landscaping work, but A.C. did not complete the job. Russell investigated A.C. and learned he had convictions for fraud, and that he owed almost $100,000 in restitution in Somerset County. Russell's wife contacted A.C.'s probation officer. Thereafter, A.C. threatened Russell and his wife, and made certain unspecified allegations about them. Russell conceded that he went to the home where A.C. was working and "warned" the homeowners about him.

In addition, Russell testified about the incident at the gas station in East Whippany. He said a line of cars had been waiting to purchase gasoline, and he pulled past the line to the diesel pump. Russell claimed a woman walked up to him and called him a "fat fuck." She said he had cut the line, and he should "go eat a few more donuts." Russell said the woman threatened to punch him while he was seated in his vehicle.

Russell testified that he exited his truck and walked to the passenger side of his vehicle. The woman followed him through the gas station and she yelled at him. She got into her vehicle. Russell told her "that people had been killed in gas station lines." She responded by telling him to "calm down." Russell claimed that someone had already broken the windshield of the woman's vehicle.

Russell said the woman's vehicle had new tires and top. He told her he guessed "someone already stabbed your tires," and walked back to his truck. Russell acknowledged that he had keys on a chain with a pocket knife. Russell got into his truck and drove away. Later, Russell went to the police station and spoke with an officer. He showed the officer his key chain with the knife, but said he no longer carried that key chain because he did not want anyone to see the knife. The officer issued two summonses to Russell.

Russell admitted that he had gotten into a verbal altercation with the woman at the gas station. He said he could have remained in his truck and kept quiet, but he got out of his truck and "tried to educate [the woman] for her own safety . . . because she was acting so irrationally." Russell said he never identified himself as a police officer.

After hearing summations by the attorneys, the judge placed his decision on the record. The judge noted that the IAU had investigated the three incidents involving Russell and found that there was sufficient cause to charge him with various disciplinary infractions, including violating departmental rules, failure to obey the law, and conduct unbecoming a public employee.

The judge pointed out that Russell had entered into a consent agreement to resolve the charges and retired. The judge found that, based on the totality of the evidence, Russell should not be allowed to carry a handgun. He found that granting Russell the permit would not be in the interests of the public health, safety or welfare. The judge entered an order dated April 27, 2015, affirming the Superintendent's decision to deny Russell's application. This appeal followed.

On appeal, Russell argues that: (1) the trial court erred by affirming the denial of his application because the court's decision was based entirely upon hearsay testimony and evidence; and (2) the court erred to the extent that it imposed a "justifiable need" requirement for an application by a retired law enforcement officer for a permit to carry a handgun. We are convinced from our review of the record and the applicable law that neither argument has merit.

N.J.S.A. 2C:39-5(b) makes it unlawful to possess a handgun without first having obtained a permit to do so. However, N.J.S.A. 2C:39-6(l) provides that nothing in N.J.S.A. 2C:39-5(b) shall be construed to prevent a law enforcement officer who has retired in good standing from possessing and carrying a firearm, if the officer meets certain requirements. The retired law enforcement officer must apply to the Superintendent of the NJSP for approval to carry the handgun. N.J.S.A. 2C:39-6(l)(1).

Upon receipt of the application, the Superintendent must seek verification of service by the chief law enforcement officer (CLEO) of the entity where the applicant was last regularly employed as a law enforcement officer. N.J.S.A. 2C:39-6(l)(2). The CLEO must certify that the officer retired in good standing. N.J.S.A. 2C:39-6(l)(2)(e). In addition, the CLEO must certify that the officer is "not subject to any of the restrictions set forth in [N.J.S.A. 2C:58-3(c)]." N.J.S.A. 2C:58-3(c) allows for the denial of a gun-permit application "where [its] issuance would not be in the interest of the public health, safety or welfare."

As noted, Russell argues that the trial court erred by relying upon hearsay testimony and evidence. Russell contends that in his testimony, Lieutenant Miller essentially read from the IAU's investigative reports concerning the three road rage incidents. Russell notes that Miller only investigated one of the incidents, and wrote only one of the three reports presented to the trial court. He asserts that Miller's testimony was based exclusively upon hearsay and double hearsay.

In State v. Weston, 60 N.J. 36, 39-40 (1972), an individual filed an application with the police chief of the municipality in which he resided for issuance of a firearms purchaser identification card pursuant to N.J.S.A. 2A:151-33. On the application, the individual indicated that he had been treated for a mental or psychiatric condition. Id. at 41. The police chief went to the facility where the applicant had been treated and spoke to a doctor who advised against granting the application. Id. at 41-42. The police chief denied the application. Id. at 42.

The applicant later obtained a certificate from a physician who indicated that the applicant had never shown any signs or symptoms of a mental illness. Ibid. The physician did not, however, mention the applicant's treatment at the facility. Ibid. The chief's subordinates undertook a further investigation, but the chief adhered to his determination that issuance of the identification card would not be "in the interest of the public health, safety or welfare." Ibid. (quoting N.J.S.A. 2A:151-33(d)).

The Supreme Court held that the responsibility for determining whether to grant or deny a firearms identification card rests with the police chief, but that determination may be reviewed by the trial court. Id. at 46. The police chief has the burden of showing that the application was denied for good cause, which must be established by a fair preponderance of the evidence. Ibid.

The Court noted that the chief of police had testified based upon reports of interviews his subordinates had conducted. Id. at 50. The Court held that the denial of the application could not be upheld because it had been based "entirely upon hearsay evidence." Id. at 52. The Court noted, however, that hearsay may be admitted in administrative proceedings. Id. at 50-51. The Court also stated that, in a de novo trial court proceeding to review an administrative officer's decision, the court may admit "hearsay evidence of a credible character[.]" Id. at 51. The Court indicated, however, that a legal determination could not be based on "hearsay alone." Ibid.

The Court said, "[h]earsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony." Ibid. The Court stated that, "there must be a residuum of legal and competent evidence in the record" to support a final agency decision. Ibid. (citations omitted).

In this case, the trial court's decision denying Russell's application for a handgun carry permit did not rest exclusively upon hearsay testimony or evidence. Miller had interviewed Russell regarding the incident at the East Whippany gas station, and found that his statements about the knife were not credible. Miller's testimony also was based in part upon statements made by third parties that were set forth in the IAU investigative reports.

However, Russell's admissions at the hearing in the trial court provided sufficient corroboration for Miller's testimony. As we have explained, Russell admitted he was involved in the incident with the driver of a Toyota on Route 280, and he acknowledged that he yelled at the driver for "throwing stuff." Russell did not deny that he had slammed his badge on the window of the car, cursed at its occupants, and failed to cooperate with the ECCPD officers.

In addition, Russell acknowledged that he had a dispute with A.C. concerning the work that Russell hired him to perform. He admitted that he went to the home where A.C. and his employees were working, and that he "warned" the homeowners about A.C. He acknowledged that he had investigated A.C.'s criminal record. He did not refute the evidence that he had attempted to drive his truck into A.C.'s vehicle, nor did he deny threatening A.C.

Furthermore, Russell admitted critical facts about the incident at the East Whippany gas station. He admitted that he cut ahead of other motorists who were waiting to purchase gas, although he claimed he did so to access the diesel pump. Russell acknowledged that he got into a verbal altercation with a woman who had been waiting in line for gasoline. Russell further admitted that he displayed a knife. He noted that the woman had new tires on her car, and he told her that someone had stabbed the tires. He also admitting telling the woman that "people get killed" waiting on line at gas stations.

We are convinced that Russell's admissions provided sufficient corroboration for Miller's testimony about the three incidents. The evidence established that Jersey City's chief of police had sufficient cause to refuse to certify Russell's application, and that the Superintendent of the NJSP had good cause to deny the application.

Russell further argues that the trial court erred by imposing a "justifiable need" standard for approving an application by a retired law enforcement officer to possess and carry a handgun. Here, Russell testified that he wanted to operate a business that would provide armored vehicles to persons who "fly in with their security teams." Russell was not going to provide armed escorts for the vehicles, but said he needed to carry a weapon to provide security for his family. He stated that he did not want "somebody using [his] family as leverage to take a security vehicle[.]" The court found that Russell's testimony did not "make sense" or have a logical relationship to the need to carry a firearm.

We are convinced that the court did not impose a "justifiable need" standard for Russell's application. The court's observations regarding Russell's reasons for seeking authorization to carry a handgun were essentially an assessment of his credibility and they did not represent the imposition of a "justifiable need" standard for the application.

Affirmed.