IN THE MATTER OF THE APPEAL OF THE DENIAL OF W.R.'S APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD AND HANDGUN PURCHASE PERMIT

NOT FOR PUBLICATION WITHOUT THE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-5426-16T1

IN THE MATTER OF THE APPEAL
OF THE DENIAL OF W.R.'S
APPLICATION FOR A FIREARMS
PURCHASER IDENTIFICATION
CARD (FPIC) AND HANDGUN
PURCHASE PERMIT (HPP).


                Submitted October 31, 2018 – Decided January 30, 2019

                Before Judges Alvarez and Reisner.

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

                Evan F. Nappen, attorney for appellant W.R. (Louis P.
                Nappen, on the briefs).

                Dennis Calo, Acting Bergen County Prosecutor,
                attorney for respondent State of New Jersey (William
                P. Miller, Special Deputy Attorney General/Acting
                Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

       Appellant W.R. appeals from the June 23, 2017 Law Division order

upholding a municipal police department's denial of his application for a New
Jersey Firearms Purchaser Identification Card (FPIC) and Handgun Purchase

Permit (HPP). We affirm.

      The detective in charge of processing W.R.'s application through the

Allendale Police Department learned that W.R. had the following contacts with

the system: a 1982 arrest for simple assault, a charge later dismissed; in 1997,

a Division of Youth & Family Services (DYFS) (now Division of Child

Protection and Permanency) caseworker report to police that W.R.'s then-nine-

year-old daughter was left alone in his home; a DYFS caseworker 1998 report

to police that W.R.'s wife had abused their daughter; a DYFS caseworker 2002

report to police that W.R. had assaulted his daughter and his wife, resulting in

W.R.'s arrest and the issuance of a temporary restraining order under the

Prevention of Domestic Violence Act,  N.J.S.A. 2C:25-17 to -35, which was

dismissed; in 2002, W.R. appeared at the police station and asked to speak to

someone about a domestic dispute with his wife; a 2003 police visit to W.R.'s

home because of a call about a verbal altercation between him and his wife; and

in 2003, because W.R.'s daughter reported that he had struck her and her mother,

DYFS temporarily relocated the family.

      The detective also testified at the Law Division hearing that his record

request regarding W.R.'s mental health history resulted in an indication by the


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Bergen Regional Medical Center (BRMC) that he had a record of "admission,

commitment, or treatment" with the facility. The detective later determined that

no actual records were available 1 and that BRMC could only confirm that an

appointment had been scheduled. When W.R.'s counsel attempted to follow up,

the facility again responded that no records were available. In addition to the

State application forms, W.R. completed an additional questionnaire created by

the department.

        Based on the totality of the information, the detective forwarded a letter

to his chief recommending denial of the application. Accordingly, a letter was

sent to W.R. advising that his application had been denied. The reason given

was N.J.A.C. 13:54-1.5(a)(5), which mirrors  N.J.S.A. 2C:58-3(c)(5), that

approval would be contrary to the interests of "public health, safety or welfare."

It was signed by the department's chief of police. The letter did not invite W.R.

to meet with him to discuss the application further.

        At the hearing, after the detective's testimony, the judge swore in W.R.

When he began to ask questions, counsel stopped the process and said W.R. was

exercising his Fifth Amendment right not to testify. The court, W.R., and W.R.'s

counsel engaged in the following colloquy:


1
    Nothing we have seen in the record even indicates a year.
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[Defense counsel]:         Oh, Your Honor, if I didn't -- I
object to that -- to this questioning, based on my client
has Fifth Amendment rights and other things that I feel
he should not -- he does not want to take the stand.

THE COURT:         He has Fifth Amendment, so is he
going to be asserting his Fifth Amendment right?

[Defense counsel]:   Are you asserting you[r] Fifth
Amendment right, [W.R.], not to testify today?

[W.R.]:      Yes.

THE COURT:          Okay.

[Prosecutor]:       Your Honor, this is civil --

THE COURT:        On the grounds that something he
might say might incriminate him?

[Defense counsel]:       Well,      they're      raising
allegations of things that have been written into his --
that he checked off on reports and that --

[Prosecutor]:       There is no criminal case against
[W.R.] and --

THE COURT: Is this with respect to certain questions
on the [FPIC] application for which there may be an
issue as to whether or not some of them may have been
knowingly falsified?

[Defense counsel]:          That could be it, one of the
issues.

THE COURT:          Well, I'm asking you, is that --



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            [Defense counsel]:        Yes, that is one -- that has been
            raised.

      At the close of the hearing, the judge found as a fact that there was "a

significant history of violence" within W.R.'s home spanning the years between

1997 and 2003, and noted the earlier arrest for simple assault. The history of

domestic violence within the home included W.R.'s daughter—now an adult

who lived with her parents. The judge also noted that there was a documented

contact with BRMC, although the details were unknown. He found, based on

the officer's credible testimony, that W.R.'s receipt of an FPIC and HPC "would

not be in the interest of the public health, safety or welfare" pursuant to statute.

      On appeal, appellant raises the following contentions:

            POINT 1
            THE COURT BELOW ERRED BY BASING ITS
            DECISION SOLELY UPON HEARSAY OR
            SPECULATION  CONTRARY     TO DUBOV,
            WESTON AND ONE MARLIN RIFLE.

            POINT 2
            APPELLANT WAS DENIED DUE PROCESS IN
            OFFENSE TO N.J.S. 2:58-3F AND Z.K., AND THE
            ALLENDALE POLICE CHIEF SHOULD BE FOUND
            TO HAVE DENIED APPELLANT DUE PROCESS
            SINCE THE CHIEF ACTED IN VIOLATION OF THE
            REGULATORY PROVISIONS RELATING TO
            FIREARM PERMIT APPLICATIONS (UNDER N.J.S.
            2C:39-10) AND OFFICIAL MISCONDUCT (UNDER
            N.J.S. 2C:30-2).


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a.    Appellant was denied procedural Due Process in
offense to N.J.S. 2C:58-3f and Z.K.

b.     The Allendale Police Chief should be found to
have acted in violation of the regulatory provisions
relating to firearm permit applications (under N.J.S.
2C:39-10) and official misconduct (under N.J.S. 2C:30-
2), thereby depriving appellant of equal and fair
procedural Due Process.

c.     The Allendale issuing authority failed to provide
in its denial letter an actual statutory basis for denial in
offense to Due Process and Weston.

d.     The Allendale Police Chief erred ab initio by
failing to conference with the applicant prior to denying
him.

POINT 3
APPELLANT SHOULD NOT BE DENIED
HIS      FUNDAMENTAL,       INDIVIDUAL,
CONSTITUTIONAL RIGHT TO KEEP ARMS FOR A
REASON THAT DOES NOT RISE ABOVE
RATIONAL   BASIS,  IS  VAGUE    AND/OR
OVERBROAD,        CONSTITUTES       AN
UNCONSTITUTIONAL BALANCING-TEST, AND
DOES NOT PROVIDE A DUE PROCESS FORM OF
REDRESS.

a.    The Court below erred by not basing its finding
upon a longstanding prohibition on the possession of
firearms, and by applying mere rational basis review to
deny Appellant his individual, fundamental right.

b.    "In the interest of public health, safety or
welfare" is unconstitutionally vague or overbroad.



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            c.    "In the interest of public health, safety or
            welfare" provides unconstitutional Due Process notice
            and provides no Due Process form of redress.

We conclude that appellant's contentions are without sufficient merit to warrant

extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the

following brief comments.

      "[A] judicial declaration that a defendant poses a threat to the public

health, safety or welfare involves by necessity, a fact-sensitive analysis." State

v. Cordoma,  372 N.J. Super. 524, 535 (App. Div. 2004). In reviewing such

determinations, we accept the trial court's fact findings so long as they are

supported by substantial credible evidence. In re Return of Weapons to J.W.D.,

 149 N.J. 108, 116-17 (1997). As always, our review of the trial court's legal

determinations is de novo.      Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan,  140 N.J. 366, 378 (1995).

      The thrust of W.R.'s points of error center on his claim that the criminal

history relied upon by the trial judge should have been inadmissible because it

was hearsay. Since at least Weston v. State,  60 N.J. 36 (1972), a residuum of

legally competent evidence makes hearsay admissible in some cases, and may

be employed in the State's presentation in a firearms permit appeal. Pursuant to

the residuum rule, such hearsay is admissible so long as the "ultimate finding or


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findings of material facts" could be reasonably made. See Ruroede v. Borough

of Hasbrouck Heights,  214 N.J. 338, 359-60 (2013).           In this case, the

documentation provided by the State sufficed to make the hearsay admissible.

Therefore, the judge's findings, which were based upon W.R.'s domestic

violence, DYFS, and arrest history even though no actual convictions resulted,

were not based solely upon hearsay. As we have also said, that charges were

dismissed does not prevent us from considering the underlying facts in this type

of hearing. In re Osworth,  365 N.J. Super. 72, 78 (App. Div. 2003).

      Turning briefly to W.R.'s contention that he was denied due process

because the Allendale police chief failed to meet with him, there is no question

that the Court has required, beginning with Weston, that the chief of police

extend to the person whose application has been denied the opportunity to

discuss the matter.  60 N.J. at 43-44. We do not endorse the chief's failure to

meet the unsuccessful applicant, but note further that a trial court's de novo

hearing "compensates constitutionally for procedural deficiencies before the

administrative official." Id. at 45-46. Additionally, the reason for denial was

stated in the letter.

      We decline to consider W.R.'s constitutional arguments and note that in

any event, they have been previously disposed of. In re Winston, 438 N.J. Super.


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1, 10 (App. Div. 2014); see also In re Forfeiture of Pers. Weapons & Firearms

Identification Card Belonging to F.M.,  225 N.J. 487, 506-08 (2016).

      Finally, it bears mention that the Law Division judge could have relied

upon W.R.'s exercise of his Fifth Amendment right not to testify during the

hearing as a basis for drawing a negative inference against him. Although the

law does not mandate an adverse inference, it is permissible. Bldg. Materials

Corp. of Am. v. Allstate Ins. Co.,  424 N.J. Super. 448, 474 (App. Div. 2012).

In this case, once counsel indicated that the basis for the exercise of the Fifth

Amendment privilege was W.R.'s responses on the application, the adverse

inference was available to the judge. Since it concerned key matters related

directly to W.R.'s eligibility to possess firearms in this state, it would have been

appropriate to draw an adverse inference. Ibid.

      Affirmed.




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