STATE OF NEW JERSEY v. R.G.

NOT FOR PUBLICATION WITHOUT THE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 binding only 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

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.G.,

Defendant-Appellant.

January 18, 2017

Submitted October 19, 2016 Decided

Before Judge Alvarez and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. WF-05-14-049.

Law Offices of Jef Henninger, attorneys for appellant (Jef Henninger, on the briefs).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

R.G. appeals from the February 26, 2015 Family Part decision forfeiting weapons seized by the Long Branch Police Department, incidental to the issuance of a temporary restraining order (TRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to 35. See N.J.S.A. 2C:2521(d)(3) and 2C:58-3(c). The judge determined that R.G. was not fit to own weapons or hold permits, licenses, or other authorization for possession or use of firearms in this state, within the meaning of the relevant statutes, and that permitting him to do so posed a danger to the public. In light of the judge's credibility findings, we affirm.

During the forfeiture hearing, the State presented M.K. as its chief witness. She testified about R.G.'s excessive consumption, and her own, of alcohol during the course of the evening of May 6, 2014. The couple had been arguing, and R.G. fell asleep on a sofa downstairs. M.K. went upstairs to the couple's bedroom. At approximately 3:00 a.m. on May 7, M.K. went downstairs to attempt to convince R.G. to go to bed with her. A melee ensued that at times spilled out into the street.

When M.K. awakened R.G., he became enraged and assaulted her almost immediately. Over the course of the incident, which M.K. testified lasted some ninety minutes, she tore R.G.'s shirt and jumped on his back. R.G. punched her repeatedly, threw her aside by picking her up by the hair, and kicked her in the stomach. She was knocked unconscious momentarily at least two or three times during the course of the altercation.

R.G. also testified. He is several inches taller and sixty pounds heavier than M.K., and admitted punching her in the stomach twice and pulling her aside by the hair to get her out of his way. R.G. claimed that when he struck M.K., he did so solely to defend himself or remove her from his path because she would not let him leave. After he finally got out, R.G. slept in his car in a friend's driveway and returned home at around 7:00 or 8:00 a.m. M.K. asked him to take her to the hospital. He refused. A few hours later, she was driven there by another friend.

At the hospital, M.K.'s friend, who testified as the State's witness, photographed bruising and scratches on M.K.'s arms and torso. That she was visibly injured was corroborated by the officer who responded to the call from hospital staff.

R.G. testified that he too was injured during the confrontation, suffering bruised ribs and a broken bone in the area of his little toe, the result of M.K. closing the door on his foot. When police arrested him for assault in the early afternoon, and processed him at the station, he made no mention of his injuries. In fact, it was not until after he filed for a TRO the next day that he mentioned incurring injuries during the confrontation.

M.K. also obtained a TRO. Ultimately both were dismissed, and the assault complaint police filed against R.G. was withdrawn.

M.K. testified that as a result of the incident, she had a serious concussion. The blows to the head resulted in significant "neurological problems," including seizures. M.K. claimed that from being thrown, her coccyx was injured, which has made walking difficult for her and still causes her pain.

In addition to his own testimony, R.G. presented an expert witness, Shannon Hughes, a licensed social worker. She met with R.G. on several occasions, reviewed the domestic violence filings and assault paperwork, but was unaware that M.K. had been injured. Defendant also presented a longtime acquaintance as a character witness.

The forfeiture hearing was conducted over four days. The judge rendered a lengthy decision from the bench memorialized in a forty-seven-page transcript. Among her findings were that M.K. was credible and R.G. was not, for which conclusions she gave extensive detailed support. Among other reasons, the judge found M.K.'s testimony regarding her injuries corroborated by both the testimony of the friend who photographed the injuries, as well as the police officer who wrote the assault complaint.

The judge acknowledged that some of the details in M.K.'s account of the incident made little sense. However, the judge also opined that some of M.K.'s puzzling behavior, such as not calling for police or an ambulance once she was injured, but only calling a friend, was attributable to her state of intoxication and the effect of the beating on her ability to think logically. She explained that M.K. failed to call her own family for help, not only because her thinking was confused by the injuries and level of intoxication, but because she was "probably embarrassed." When M.K. was asked if she thought the weapons should be returned to R.G., she said she really could not answer the question. As the judge noted, M.K. had no reason to lie.

In contrast, although the judge found M.K., the officer, M.K.'s friend, R.G.'s character witness, and R.G.'s expert to be credible, she found R.G.'s testimony incredible. The judge said, for example, that it was not believable that R.G. would recall the exact time M.K. awakened him out of a sound sleep at precisely 3:48 a.m. She believed his testimony "was entirely rehearsed[,]" not just because of the details, but because he "was talking very fast, as if to prevent himself . . . from forgetting what to say."

The judge also noted that R.G. claimed that when he awakened, he drove home, washed up, and went to Home Depot to purchase locks to keep M.K. from returning as he had assumed she left after the fight. It was doubtful he would have been able to do so with an injury he described as "a broken foot." Upon his return, he located his cell phone upstairs and saw M.K. R.G. said M.K. told him "that she had keys for the gun safe and . . . said they're going to come get your guns, look, okay, and -- so she was sort of dangling the keys." R.G. was implying that M.K. charged him solely to have his guns taken from him. He also denied that she was bruised. The judge found this testimony to lack "a ring of truth . . . ."

R.G. testified that the officers arrived at approximately 1:40 p.m., took him to the station for processing, and returned him home at approximately 3:30 or 4:00 p.m. It was only then that he went to the hospital to be x-rayed and decided to file assault charges against M.K. "to get her out of the house . . . ." The officer testified that when he booked R.G., he saw no injuries on his person.

With regard to the expert, the judge found that she specialized in the treatment of sexual offenders, not persons with domestic violence issues. The expert's opinions were "based on conclusions drawn mostly from the defendant's own self-serving statements." She had not known that R.G. had been trained in martial arts prior to this incident, nor was she aware of his prior drunken driving conviction from years earlier. The judge did not give the expert's opinion any weight.

At the time of the assault R.G. knew the difference in size and strength between himself and M.K., but also that she suffered from a number of physical ailments that required her to consume some fifteen prescribed medications per week. Thus the judge concluded the State had met its burden of proving by a preponderance of the evidence that R.G. was unfit to own weapons and presented a danger to the public if permitted to do so.

On appeal, R.G. raises the following issues for our consideration

I. THE TRIAL JUDGE ERRONEOUSLY FOUND DEFENDANT TO BE UNFIT AND/OR THAT HE POSED A THREAT TO THE PUBLIC IN GENERAL OR A PERSON OR PERSONS IN PARTICULAR BY IMPROPERLY APPLYING THE BURDEN OF PRODUCTION.

A. The trial judge failed to consider the evidence necessary to determine whether or not defendant posed a threat to the public in general or to a person in particular.

B. There was insufficient evidence to support the trial court's finding that defendant was unfit to possess a firearm.

I.

A trial court's fact-findings should not be disturbed "unless those findings would work an injustice" and "there is no doubt about the matter." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). However, such deference is not required in reviewing a trial court's legal conclusions. Ibid. (citing Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The Act authorized the seizure of R.G.'s weapons. See N.J.S.A. 2C:25-21(d)(1). A law enforcement officer having probable cause, upon learning that the continued presence of weapons on the premises exposes the victim of domestic violence to risk of serious bodily injury, shall "seize any firearm purchaser identification card or permit to purchase a handgun" in addition to the weapons themselves. N.J.S.A. 2C:25-21(d)(1)(b). The weapons and related documents are to be returned, except where the prosecutor files a complaint with the Family Part to "obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons . . . on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular." N.J.S.A. 2C:25-21(d)(3). Such petitions may be filed even if litigation brought under the Act is dismissed. J.W.D., supra, 149 N.J. at 116. The reason is firearms may not be returned "if the court finds that the defendant poses a threat to public health, safety, or welfare." Ibid. Whether an owner poses such a threat "requires a careful consideration of both the individual history of [the] defendant's interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may pose to the general public." State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004).

In order to establish the threat, the State must present evidence of more than verbal "outbursts" resulting from "frustration surrounding [a] break-up[.]" State v. One Marlin Rifle, 319 N.J. Super. 359, 372 (App. Div. 1999). Violent behavior, however, can satisfy the standard. See Hoffman v. Union Cty. Prosecutor, 240 N.J. Super. 206, 214 (App. Div. 1990). The conduct need not involve weapons in order to support the conclusion that the owner is unfit or poses a threat to the public in general or person or persons in particular. Ibid.

In Hoffman, the weapons forfeiture was affirmed because of the owner's history of violence and alcoholism. Id. at 213. In that case, Hoffman had assaulted "police, an adult female and juveniles." Id. at 213-14. In State v. Freysinger, 311 N.J. Super. 509, 586 (App. Div. 1998), weapons were forfeited when the owner had a history of driving while under the influence and had on one occasion struck a pedestrian and fled the scene. Id. at 516-17.

R.G. contends that the judge erred in this case because she did not correctly apply the Cordoma test, which he characterizes as having two steps. Cordoma states that in order to determine when an owner poses a threat to public safety, careful consideration must be made "of both the individual history of [the] defendant's interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may pose to the general public." Cordoma, supra, 372 N.J. Super. at 535. R.G. asserts that by focusing solely on the incident that triggered the filing of the criminal complaint against R.G. and the issuance of a TRO, the court did not consider the "second part" of the test, namely, whether he posed a threat to the public.

We disagree that Cordoma requires application of a two-pronged test. In Cordoma, the owner's relationship with his former wife, and confrontations with her, were evaluated to determine the extent to which he posed a threat to the general public. Id. at 535-38. Additionally, Cordoma retired as a corrections officer on a mental health disability, which the trial court did not explore, and that also posed a potential risk to the public if Cordoma continued to own weapons. Id. at 536-39.

Cordoma does not establish a two-part test, however. The decision merely requires a fact-sensitive examination: of an owner's conduct towards the domestic violence victim, the implications of that conduct with regard to the risk from gun ownership towards the public and others, in addition to all other factors. Id. at 535.

In this case, the judge thoroughly considered the testimony. She made specific and detailed credibility and factual findings. Those findings are entitled to deference because only the trial judge observed the witnesses' demeanor. "[I]f the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified." State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). The record strongly supports the judge's reasons for her decision.

Moreover, R.G. struck M.K. with enough force and frequency that she lost consciousness on more than one occasion during the encounter. He inflicted injuries serious enough that a year later she still suffers their after-effects. R.G.'s actions were undertaken against a member of his own household whose health issues made her particularly vulnerable to injury, in addition to the vulnerability engendered by the disparity in size and weight between them. R.G. had been educated in the martial arts, so his act of twice kicking M.K. in the stomach was particularly egregious.

R.G. reiterates that he did not strike M.K. in the fashion found by the trial judge, however, our review of the record indicates to the contrary. He acknowledged punching her and lifting her up bodily by the hair. The judge ruled that M.K. was a credible witness, meaning that we must assume M.K.'s description of the confrontation to be more accurate than R.G.'s.

Although M.K.'s inability to get herself medical attention for many hours is disturbing, ultimately, when she did so, she had visible bruising and swelling. Her injuries, photographs of which were examined by the trial judge, were so significant that hospital staff contacted police. Finally, as the judge pointed out, of the two parties, only R.G. had motive to lie.

Reviewing this record and the judge's credibility findings with the appropriate deference, we conclude that upholding her decision does not "work an injustice" and should not be disturbed. The State met its burden to establish that, by a preponderance of the evidence, pursuant to N.J.S.A. 2C:25-21(d)(3) and 2C:58-3(f), R.G.'s weapons and firearm permits, licenses, and other authorizations should be forfeited.

Affirmed.