IN THE MATTER OF BENJAMIN ACEVEDO (PASSAIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5508-15T4
IN THE MATTER OF
BENJAMIN ACEVEDO.
_____________________
Submitted September 24, 2018 – Decided October 2, 2018
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County.
Evan F. Nappen, attorney for appellant Benjamin
Acevedo (Louis P. Nappen, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent State of New Jersey (Marc A.
Festa, Senior Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Benjamin Acevedo appeals from a June 21, 2016 order granting the State's
motion to revoke his Firearms Purchaser Identification Card (FPIC); denying his
handgun purchase permit application; denying his handgun carry permit
application; voiding and requiring him to surrender his FPIC; and ordering him
to forfeit his firearms. We reverse, without prejudice, that part of the order
requiring he forfeit his weapons. We otherwise affirm.
In 2005, Acevedo was a constable for the City of Paterson and emplo yed
as a security guard. In December 2005, Acevedo provided security for a private
party, where he possessed, without a permit, an unloaded handgun and a loaded
magazine. The police arrested Acevedo and charged him with third-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). He entered into the
pretrial intervention (PTI) program for one year, which he successfully
completed.
At the time of his arrest, the police seized his handgun and FPIC. The
police returned Acevedo's FPIC after he completed PTI, and in 2010, he applied
for permits to purchase handguns. The Paterson Police Department (PPD)
granted the applications, and thereafter, he legally purchased handguns.
In December 2012, Acevedo applied for a permit to carry a handgun, and
in March 2013, he applied for a permit to purchase a handgun. In October 2013,
the PPD denied both of his applications in the interest of "Public Health, Safety
and Welfare." Acevedo appealed the denials to the Law Division.
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In July 2014, the State filed a motion to revoke Acevedo's FPIC and forfeit
his firearms. In 2016, after several days of an evidentiary hearing, the judge
issued an oral decision, and subsequently entered the order under review.
On appeal, Acevedo argues:
POINT I
THE [JUDGE'S] . . . DECISION REGARDING
FORFEITURE OF APPELLANT'S ALREADY
POSSESSED FIREARMS IS ULTRA VIRES AND
NOT AUTHORIZED UNDER NEW JERSEY LAW.
POINT II
THE [JUDGE] . . . ERRED BECAUSE APPELLANT
IS NOT PRESENTLY A DANGER TO THE PUBLIC
HEALTH, SAFETY OR WELFARE.
POINT III
THE [JUDGE] . . . ERRED REGARDING [HIS]
RELIANCE UPON OSWORTH[1] SINCE THE
PRESENT CASE IS DISTINGUISHABLE FROM
OSWORTH.
POINT IV
ASSUMING APPELLANT SUFFERS FROM NO
N.J.S.A. 2C:58-3(C)(5) DISQUALIFIER,
REGARDING APPELLANT'S PERMIT TO CARRY
APPLICATION: THE [ORDER] SHOULD BE
REVERSED OR THE MATTER SHOULD BE
REMANDED FOR A FINDING UNDER NEW
JERSEY'S PRESENT (AS OF MARCH 6, 2017)
REGULATORY "JUSTIFIABLE NEED"
STANDARD OF "SERIOUS THREATS" OR
1
In re Osworth, 365 N.J. Super. 72 (App. Div. 2003).
A-5508-15T4
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"SPECIAL DANGER TO HIS LIFE THAT CANNOT
BE AVOIDED BY OTHER REASONABLE MEANS."
POINT V
THE [JUDGE] . . . ERRED BY DENYING A
FUNDAMENTAL, INDIVIDUAL,
CONSTITUTIONAL RIGHT FOR A REASON THAT
DOES NOT CONSTITUTE A "LONGSTANDING
PROHIBITION ON THE POSSESSION OF
FIREARMS." (Not raised below).
POINT VI
THE [JUDGE] . . . ERRED BECAUSE [HE] FAILED
TO CONSIDER THE MATTER UNDER
HEIGHTENED SCRUTINY. (Not raised below).
POINT VII
THE [JUDGE'S] . . . DECISION APPL[]YING
"INTEREST OF PUBLIC HEALTH, SAFETY OR
WELFARE" CONSTITUTES AN
UNCONSTITUTIONAL INTEREST-BALANCING
TEST. (Not raised below).
POINT VIII
APPELLANT SHOULD NOT BE DENIED HIS
FUNDAMENTAL, INDIVIDUAL,
CONSTITUTIONAL RIGHT TO KEEP ARMS FOR A
REASON THAT IS VAGUE AND OVERBROAD.
(Not raised below).
POINT IX
APPELLANT SHOULD NOT BE DENIED HIS
FUNDAMENTAL, INDIVIDUAL,
CONSTITUTIONAL RIGHT FOR A REASON THAT
PROVIDES NO DUE PROCESS NOTICE. (Not raised
below).
A-5508-15T4
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POINT X
THE [JUDGE'S] . . . DECISION
UNCONSTITUTIONALLY BARS APPELLANT
FROM EXERCISING A FUNDAMENTAL,
INDIVIDUAL CONSTITUTIONAL RIGHT AD
INFINITUM WITH NO FORM OF REDRESS.
The law governing this appeal is 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 card. Weston v. State, 60 N.J. 36, 43 (1972).
The police chief's decision to deny an application is subject to de novo review
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 State bears the burden
of establishing the existence of good cause for the denial "by a fair
preponderance of the evidence." Id. at 46.
Because "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), "an appellate court
should accept a trial [judge'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
(1997). Where the evidence is mostly testimonial and involves questions of
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credibility, deference to a judge's findings of fact is particularly appropriate. Id.
at 117. We will not disturb a judge's findings of fact unless those findings would
result in an injustice. Ibid. (citing Rova Farms Resort v. Inv'rs Ins. Co., 65 N.J.
474, 483-84 (1974)). Nevertheless, a judge's "interpretation of the law and the
legal consequences that flow from established facts are not entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
We begin by addressing Acevedo's argument that the judge improperly
ordered him to forfeit his already possessed firearms. He asserts that the State
moved solely under N.J.S.A. 2C:58-3(f), which governs the granting and
revocation of FPICs, not the forfeiture of already possessed firearms, and th at
the judge only considered this statute in his oral decision.
N.J.S.A. 2C:58-3(f) in part states, "[a]ny [FPIC] may be revoked by the
Superior Court of the county wherein the card was issued, after hearing upon
notice, upon a finding that the holder thereof no longer qualifies for the issuance
of the permit." The statute explicitly concerns FPICs and does not mention
possession or forfeiture of firearms – N.J.S.A. 2C:58-3 is entitled "Purchase of
firearms."
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The judge relied solely on N.J.S.A. 2C:58-3(f) to explain the Superior
Court's authority to revoke an FPIC, and in the same breath granted the State's
motion for FPIC revocation and forfeiture of firearms. N.J.S.A. 2C:58-3(f)
provides no basis for the forfeiture of already possessed firearms. The judge
improperly relied on N.J.S.A. 2C:58-3(f) to require Acevedo to forfeit his
already possessed firearms. We reverse without prejudice, however, this
requirement, and afford the parties the opportunity – if desired – to address anew
whether forfeiture is warranted under the appropriate law and facts of this case.
We do so especially because the record is incomplete for us to resolve the issue
ourselves.
As to Acevedo's argument that the judge improperly found him to be a
danger to the public health, safety or welfare under N.J.S.A. 2C:58-3(c)(5), we
disagree. N.J.S.A. 2C:58-3(c)(5) states, "[n]o handgun purchase permit or
[FPIC] shall be issued . . . [t]o any person where the issuance would not be in
the interest of the public health, safety or welfare." This FPIC disqualifier
"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. at 79 (quoting Burton v. Sills, 53 N.J. 86, 91
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(1968)). "This broadly worded disqualification criterion eludes precise
definition. We are satisfied, however, that it must be liberally construed . . . ."
Cordoma, 372 N.J. Super. at 534.
We are satisfied that the judge's credibility findings and factual
determination that issuance of a permit would not be in the interests of the public
health, safety or welfare are amply supported by credible evidence. The judge
engaged in a fact-sensitive analysis of all of the testimony and evidence
presented. See id. at 535.
The judge properly analyzed various events in determining Acevedo's
fitness to carry a handgun and FPIC. He considered the underlying facts of
Acevedo's 2005 arrest and subsequent PTI. Although Acevedo contends that he
carried a firearm without a permit as a result of a custom that allowed constables
to do so, the judge heard testimony to the contrary, and Acevedo failed to
establish that he was working as a constable on the night of his arrest. In fact,
Acevedo's testimony established that he was working as a security guard for a
private party at the behest of a councilman. The judge acknowledged the lapse
of time since the arrest, yet supported his decision with additional incidents
between Acevedo and the police.
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One such incident occurred in October 2014, when Acevedo entered his
child's school without permission to voice his concerns for how traffic was being
directed at the school's closing time. The principal testified that Acevedo
"presented very angry, combative, and screaming, . . . questioning if [she] was
the principal," and he was "very aggressive in his approach," but she did not
contact the police.
When Acevedo entered the school building without permission for the
second time – to retrieve traffic cones from inside the building so that he could
direct traffic – the principal testified that he appeared "very upset, very
disgruntled," and acted "[v]ery similar to the first incident." This time, she had
to call security. She explained that she felt threatened by Acevedo, was fearful
for her own safety and that of her students, and that "his reaction to the fact that
there were no crossing guards . . . escalated from zero to 100" – factors that
prompted her to file a police report. The responding police officer also testified
that the principal appeared to be afraid.
On a separate occasion, Acevedo was attempting to direct traffic at the
school, when a woman ran over his foot. The police were called, and upon
arrival, Acevedo identified himself first as a county peace officer, and then
corrected himself and stated that he was a Passaic County constable. The officer
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testified that when the woman challenged Acevedo's authority to direct traffic,
he told her that he was a constable and then stood behind her vehicle. The judge
took particular note of this because Acevedo gave "the impression that he had
more authority than he actually had, which leads me to the initial problem that
. . . Acevedo had back in 2005 . . . ."
Lastly, the judge considered Acevedo's behavior at the PPD Headquarters,
which occurred months after he applied for the carry permit and permit to
purchase. Officer Katy Santana testified that she encountered Acevedo when he
arrived at headquarters to see Detective Keith Rotsaert, and he became
"boisterous, loud, aggressive," "yelling he wanted to see [Detective Rotsaert],"
and "cursed a little bit, just getting disruptive." She explained that she "would
have probably arrested him had he not had to see [Detective Rotsaert] that day."
Detective Rotsaert stated that on that afternoon, Acevedo called him sixteen
times in twenty minutes. He testified that Acevedo asserted that he was "joking"
with Officer Santana and that they were friends. And yet, Officer Santana
testified that she took Acevedo's actions seriously and did not know him. This
behavior concerned the judge and evinced Acevedo's impatience.
We reject Acevedo's contention that N.J.S.A. 2C:58-3(c)(5) provides no
statutory limit or due process form of redress, and that the judge provided no
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relief to its effect. The judge did not specify a time period in which Acevedo
will remain disqualified from obtaining an FPIC, and instead stated that the
statute does not "specify a time period." Although the prosecutor advocated that
the FPIC should be revoked into perpetuity, the judge did not make that
determination.
Acevedo's constitutional arguments were not raised to the Law Division
judge. We therefore decline to consider them. State v. Robinson, 200 N.J. 1,
20 (2009). Even considered, though, we find them meritless, noting our prior
discussion in In re Winston, 438 N.J. Super. 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); In re Dubov, 410 N.J. Super. 190, 196-97
(App. Div. 2009).
We conclude that Acevedo's remaining arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed as to the revocation of the FPIC; reversed without prejudice as
to the forfeiture of firearms. We do not retain jurisdiction.
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