STATE OF NEW JERSEY v. S.A.

NOT FOR PUBLICATION WITHOUT THE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-1583-18T4

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,

v.

S.A.,

          Defendant-Appellant.
_____________________________

                    Argued October 17, 2019 – Decided October 23, 2019

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. 2018-014.

                    Paul E. Zager argued the cause for appellant (Paul E.
                    Zager, attorney; Paul E. Zager and Jeff Edward
                    Thakker, of counsel and on the briefs).

                    Lisa Sarnoff Gochman argued the cause for respondent
                    (Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney; Lisa Sarnoff Gochman, of counsel
                    and on the brief).

PER CURIAM
      Appellant S.A. appeals from a November 1, 2018 Law Division order

upholding a municipal police department's denial of his application for a New

Jersey Firearms Purchaser Identification Card (FPIC) and a handgun purchase

permit. Because the trial judge based his decision solely upon hearsay presented

by a detective and the chief of police at the evidentiary hearing, we are

constrained to reverse the decision denying the application and remand for

further proceedings.

      The parties are fully familiar with the procedural history and facts of this

case. After appellant submitted his application, a detective assigned to the

township police department conducted an investigation, which included a

routine records check. As a result of this investigation, the detective determined

that appellant "ha[d] a criminal history as well as a history of domestic violence

incidents." Specifically, the detective learned that appellant had been charged

with simple assault in 2001 after he allegedly pushed his sister. This charge was

later dismissed.

      In 2002, appellant was charged with theft, which was also dismissed after

appellant was accepted into the pre-trial intervention program. Ten years later,

in 2012, appellant was charged with aggravated assault and criminal restraint

after he allegedly choked his former spouse. These charges were subsequently


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downgraded to a "local ordinance violation." That same year, while appellant

and his former spouse were in the midst of divorce proceedings, appellant was

arrested for defiant trespass after he allegedly entered his spouse's home without

permission. This matter was also dismissed.

      The detective also found four other matters during his investigation that

did not result in appellant's arrest. In the first incident, appellant's former spouse

filed a complaint against him for allegedly accessing her email account during

their divorce proceedings. In 2004, he allegedly had a verbal dispute with his

former spouse; in 2013, there was a custody dispute; and, in 2016, appellant was

purportedly involved in a "road rage" incident.

      In his application, appellant correctly answered that he had never been

convicted of a crime, a disorderly persons offense, or a domestic violence

offense. However, the detective asserted "that that was not the case[,]" and

recommended that the chief deny the application because appellant "lied on the

application." On March 12, 2018, the chief of police (chief) agreed with the

detective's assessment and denied appellant's application.

      Appellant's attorney contacted the detective to point out that appellant had

accurately answered the pertinent questions on the application form. He also

appealed the chief's determination to the Law Division.


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      In May 2018, the detective reopened his investigation as appellant

requested. The detective also contacted appellant's former wife, his wife's

father, and appellant's sister. The detective testified that appellant's ex-wife told

him that she was "[o]ne hundred percent against" the idea of appellant obtaining

a firearm because he "still has anger issues" and is a "loose cannon." The

detective stated that appellant's sister generally supported his permit application,

but understood the concerns the detective had about his prior arrests.

Appellant's sister allegedly told the detective that appellant had pushed her,

threw her to the ground, and punched her. Appellant's father-in-law advised the

detective "that he did not want to participate in the interview because he did not

want his answers to upset the current positive aspects of his relationship with"

appellant.

      Based on this information, the detective concluded that even though

appellant had not falsified his application, the application should still be denied

because issuing a FPIC and a purchase permit would not be in the interest of

public health, safety, or welfare under  N.J.S.A. 2C:58-3(c)(5).           The chief

concurred with the detective's recommendation. Before the evidentiary hearing,

appellant successfully applied for an expungement of his arrest reco rd.




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      At the hearing, appellant acknowledged that he previously had an arrest

record prior to its expungement, reviewed each arrest and complaint during his

testimony, and steadfastly denied that any of the incidents occurred in the

manner described in the detective's investigation report.        Significantly, the

detective conceded during his testimony that appellant had never been convicted

of a crime, and that all the detective had discovered were "unproven

allegations[.]" In spite of this fact, the State did not call appellant's former

spouse, his sister, or his father-in-law to testify about the details of any of the

incidents discussed in the detective's report.

      At the conclusion of the hearing, the judge rendered a written opinion

denying appellant's application. The judge rejected appellant's contention that

the chief should not have considered the facts underlying each of his arrests

because his arrest record had been expunged. 1




1
  We agree with the judge's ruling on this issue. It is well established that "[t]he
dismissal of criminal charges does not prevent a court from considering the
underlying facts in deciding whether a person is entitled to purchase a firearm
or recover one previously taken by the police." In re Osworth,  365 N.J. Super. 72, 78 (App. Div. 2003) (citing In re Return of Weapons to J.W.D.,  149 N.J. 108, 110 ((1997)); see also In re J.D.,  407 N.J. Super. 317, 327-29 (Law Div.
2009) (holding that an applicant for a FPIC and handgun purchase permit is
required to waive privilege of expungement "because government has a duty to
determine whether the applicant qualifies lawfully to own a handgun").
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      In thereafter considering those facts, however, the judge relied solely upon

the detective's testimony and investigative reports, which contained his hearsay

accounts of what the arrest records alleged had occurred and what appellant's

character references had told him. None of this hearsay was corroborated in any

way at the hearing. Appellant denied committing any of the offenses. The judge

did not refer to this testimony in his decision, and made no findings concerning

appellant's credibility. Although appellant's former spouse and his sister were

presumably available to testify, the State did not call them as witnesses 2 to

provide competent evidence to support the admittedly "unproven allegations"

contained in the detective's written reports and testimony. 3



2
   At the hearing, the judge mistakenly asked appellant why his character
references were not "coming here to testify today[.]" However, the State, rather
than appellant, had the burden of producing competent evidence to support the
chief's determination to deny appellant's application. Weston v. State,  60 N.J. 36, 46 (1972). Thus, we reject the State's assertion on appeal that it "had no
obligation to present the in-court testimony [of these witnesses] in lieu of [the
detective's] own testimony recounting his interview with each" of them.
3
  As for appellant's former father-in-law, who refused to provide a statement to
the detective concerning appellant's application because he wanted to maintain
a good relationship with appellant, the judge stated that he was drawing an
inference that the father-in-law's testimony would have been adverse to
appellant. However, there was no competent evidence in the record to
corroborate the detective's hearsay statement concerning what this individual
told him. Under those circumstances, the judge should not have drawn an
adverse inference with regard to the father-in-law's alleged statement.
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      Based solely on the hearsay evidence presented by the detective and the

chief, the judge concluded that "the State had shown by a preponderance of the

evidence that the issuance of [appellant's] gun permit would lead to concerns for

the public health, safety, or welfare" under  N.J.S.A. 2C:58-3(c)(5). Therefore,

the judge denied the application. This appeal followed.

      On appeal, appellant primarily argues that the judge based his decision to

deny his application solely on the hearsay information contained in the

detective's investigation reports concerning his review of defendant's arrest

records and the complaints filed against him, even though defendant testified

that none of these incidents occurred in the manner described in those records.

We agree.

      On appeal, we are bound to accept the judge's fact findings if they are

supported by substantial credible evidence, J.W.D.,  149 N.J. at 116-17, but we

exercise de novo review over the judge's legal determinations.       Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      The standards for reviewing an application for a FPIC and handgun

purchase permit are well-settled. A municipal police chief has the discretion,

"subject to standards which have been adjudged constitutionally adequate," to

grant or deny an individual's application for a handgun permit or identification


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card. State v. Weston,  60 N.J. 36, 43 (1972); see also  N.J.S.A. 2C:58-3(d).

"'The function of the Police Chief as the local administrative official charged

with responsibility for the original decision to grant or withhold . . . involves

largely the exercise of an informal discretion,' based upon the information

disclosed by a 'good faith investigation.'" In re Application of Boyadjian,  362 N.J. Super. 463, 475 (App. Div. 2003) (citations and internal quotation marks

omitted).

      When reviewing an application, a police chief must consider the interests

of the community and must not make a decision that is "arbitrary, capricious or

unreasonable."    Boyadjian,  362 N.J. Super. at 478.         After completing the

investigation, if the police chief decides to deny the application, there is "no

obligation to hold a trial-type hearing before doing so." Weston,  60 N.J. at 43.

If the chief decides, however, to deny the application, the applicant should be

given "an opportunity . . . to discuss the matter . . . to be informed of the reasons

for the denial and to offer any pertinent explanation or information for the

purpose of meeting the objections being raised." Id. at 44.




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      The chief's decision to deny an application is subject to de novo review 4

by the Law Division, which "in this context contemplates introduction of

relevant and material testimony and the application of an independent judgment

to the testimony by the reviewing court." Id. at 45. The police chief bears the

burden of establishing the existence of good cause for the denial by a fair

preponderance of the evidence. Id. at 46. In evaluating the facts and the reasons

given for rejection, "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." Ibid.5

      In Weston, the Supreme Court stated that the trial court is to follow the

following procedure in conducting its review:

                   At the outset of the [court] hearing, therefore,
            orderly and logical procedure calls for introduction
            through the testimony of the applicant of his application
            for the identification card, the rejection thereof and the
            reasons given by the Chief, if any. At this point he may
            be subjected to cross-examination by counsel for the

4
  Appellant complains that there were procedural deficiencies during the review
process conducted by the detective and the chief. However, under Weston, the
trial court's de novo hearing "compensate[d] constitutionally" for any procedural
mistakes made by these officials. Id. at 45.
5
  Appellant argues that the judge erred by considering the chief's prior expertise
in reviewing gun permit applications. Based on Weston, we conclude that this
argument is without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
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                                        9
            Chief. Thereafter, the Chief should proceed with the
            evidence on which his denial was predicated.
            Ordinarily, this would include presentation of his own
            testimony, that of members of the police department
            who made the investigation and furnished reports to the
            Chief, any available lay or professional persons who
            furnished information which influenced the action
            taken by the Chief, and any admissible documentary
            evidence which played a part in the adverse decision.
            Upon completion of the Chief's proof, the applicant
            may offer relevant rebuttal testimony.

            [Id. at 46 (emphasis added).]

      The Court also recognized in Weston that the usual rules of evidence

barring hearsay testimony are not necessarily controlling in an appeal from the

denial of an application for a gun purchaser permit. Id. at 50. "However, a

decision in such an appeal 'cannot be based upon hearsay alone.'" In re Dubov,

 410 N.J. Super. 190, 202 (quoting Weston,  60 N.J. at 51). "[T]here must be a

residuum of legal and competent evidence in the record to support it." Ibid. If

this standard is not met, the denial of a gun permit application should be

reversed. Id. at 202-03.

      Here, the State solely relied upon hearsay evidence in support of its denial

of appellant's application. The only witnesses who testified, the detective and

the chief, based their accounts entirely upon what was contained in written

records concerning appellant's arrests, the complaints filed against him, and the


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alleged comments made by his three character references. No one personally

familiar with the specific facts concerning the incidents contained in those

records testified to corroborate them or subjected themselves to the crucible of

cross-examination concerning these incidents. The State did not call any of the

character references to provide competent evidence concerning the positions

they were taking with regard to appellant's application even though Weston

plainly states that such witnesses should ordinarily be called when available.

      Appellant did nothing to corroborate the State's allegation that he engaged

in any improper conduct during his testimony. He testified that none of the

allegations that led to his arrests were true and, as a result, the matters were

dismissed. Indeed, the detective admitted that the "allegations" made against

appellant were "unproven." Significantly, the judge failed to discuss appellant's

testimony in his decision, make any credibility determinations concerning it, or

adequately address the Weston residuum rule issue raised by appellant.

      Because the hearing was not conducted in conformance with Weston, we

reverse the judge's denial of appellant's application, and remand for a new

evidentiary hearing conducted in accordance with the procedures set forth in that




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seminal opinion.6 Nothing within this opinion forecasts any views on the merits

of applicant's permit application nor on the question of whether the State may

be entitled to prevail after a fuller record is developed and presented to the trial

court as mandated by Weston. We say no more than that the issues were not

fully ripe for decision.

      Reversed and remanded for further proceedings.            We do not retain

jurisdiction.




6
  We reject appellant's request that the case be assigned to a different judge on
remand. An appellate court's authority to direct that a case be assigned to a new
judge "may be exercised when there is a concern that the trial judge has a
potential commitment to his or her prior findings." Graziano v. Grant,  326 N.J.
Super. 328, 349 (App. Div. 1999). However, this authority should be exercised
"sparingly[.]" Id. at 350. "In addition, consideration must be given to the fact
that, to some extent, it would be counterproductive to require a new judge to
acquaint himself or herself with the litigation." Ibid. Here, we discern no basis
to remand this matter to a different judge. Thus, we direct the Assignment Judge
to assign the case as he or she sees fit.
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