In the Matter of the Denial of the Application by George Winston, Jr., for a Firearms Purchaser Identification Card ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1512-12T1
IN THE MATTER OF THE DENIAL APPROVED FOR PUBLICATION
OF THE APPLICATION BY
GEORGE WINSTON, JR., FOR A October 31, 2014
FIREARMS PURCHASER IDENTIFICATION
CARD. APPELLATE DIVISION
____________________________________
Submitted January 29, 2014 – Decided October 31, 2014
Before Judges Grall, Waugh and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Municipal
Appeal No. 11-061.
Evan F. Nappen, attorney for appellant
George Winston, Jr. (Richard V. Gilbert, on
the brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent State of
New Jersey (Robert J. Wisse, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
The question presented by this appeal is whether the Full
Faith and Credit Clause of the United States Constitution
requires New Jersey to treat appellant George Winston's New York
criminal convictions, for which he has obtained certificates of
relief from disabilities, as not disqualifying him from
obtaining a firearms purchaser identification card or a permit
to purchase a handgun under N.J.S.A. 2C:58-3c(1). Because we
conclude that the Constitution does not compel that result, we
affirm the denial of those firearms permits to Winston.
Winston was convicted in New York in 1974 of attempted
assault in the second degree, an offense carrying a penalty of
up to four years' imprisonment. N.Y. Penal Law §§ 120.05;
110.05; 70.00 (McKinney 2008). He was convicted in 1989 of
criminal possession of a controlled substance in the seventh
degree, a class A misdemeanor carrying a maximum penalty of
one year's imprisonment. N.Y. Penal Law §§ 220.03; 70.15
(McKinney 2008). In 2011, he obtained certificates of relief
for both convictions from courts in New York. Each certificate
bears the following legend:
This certificate is issued to the holder to
grant relief from all or certain enumerated
disabilities, forfeitures, or bars to his
employment automatically imposed by law by
reason of his conviction of the crime or of
the offense specified herein.
This certificate shall NOT be deemed nor
construed to be a pardon.
Each certificate further provides that it "relieve[s] the holder
of all disabilities and bars to employment, excluding the right
to be eligible for public office." Each also notes that the
"certificate shall be considered permanent."
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After obtaining the certificates, Winston submitted an
application to the Chief of Police in Clifton for a firearms
purchaser identification card and a handgun purchase permit. In
response to questions nineteen and twenty on the application
form, which ask whether one has ever been convicted in New
Jersey or elsewhere of any crime or misdemeanor "that has not
been expunged or sealed," Winston disclosed his New York
convictions and his attendant certificates of relief. Following
investigation, the Chief denied Winston's application on account
of his criminal record and advised Winston of his right to
appeal.
Winston filed a timely appeal and the Law Division judge
held a hearing at which the detective responsible for reviewing
Winston's application appeared. The detective testified that
Winston's background check revealed not only the two New York
convictions but also instances of domestic violence, one of
which resulted in a temporary restraining order in late 2005, a
twenty-year old conviction for driving under the influence, and
some "neighbor disputes," from 2007 to 2009, culminating in
cross-complaints that were ultimately mediated and dismissed.
The detective testified that following the background check,
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Winston's application was denied on the basis of his criminal
record.1
After hearing the testimony and the arguments of counsel,
the judge announced her decision, later amplified in a written
statement of reasons, finding that the New York certificates are
not the equivalent of an expungement under New Jersey law and
thus "the two prior New York state convictions bar [Winston]
from obtaining a firearms purchaser identification card under
N.J.S.A. 2C:58-3c(1), which states that said card shall not be
issued to anyone who has been convicted of any crime."
On appeal, Winston renews the argument he made to the Law
Division that the Full Faith and Credit Clause forbids New
1
The transcript reveals that counsel for the parties disputed
the extent to which Clifton could rely on the domestic violence
incident in this proceeding apparently because of a related
expungement obtained in New Jersey. After supplemental briefing
and a discussion in chambers, the judge asked the prosecutor to
"place on the record what the State ultimately is relying on in
its denial of [Winston's] application." The prosecutor
responded that the State was "relying on the fact that this
applicant has two prior convictions in the State of New York,
one for [attempted] assault and one for possession of CDS."
Accordingly, although the nature and contours of the dispute
over Winston's involvement in a domestic violence incident are
unclear from the record, what is clear is the State's election
to rely solely on the New York convictions in meeting its burden
before the Law Division. See Weston v. State, 60 N.J. 36, 46
(1972) (explaining that burden of proof of the existence of good
cause for denial of a firearms purchaser identification card at
review hearing under prior statute was on the State); In re
Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003) (applying
Weston to current statute), certif. denied, 179 N.J. 310,
(2004).
4 A-1512-12T1
Jersey from viewing his New York criminal convictions, for which
he has received certificates of relief from disabilities, as
disqualifying under New Jersey's gun permitting law, N.J.S.A.
2C:58-3. He also argues that to the extent the judge rested her
decision on the "public health, safety or welfare" exception
found in N.J.S.A. 2C:58-3c(5), she erred as the State stated
expressly that the decision to deny Winston the permits was
based solely on his New York convictions, and there is
inadequate evidence in the record to support a finding that
issuance of the permits to Winston would not be in the interest
of the public health, safety or welfare. Finally, he argues
that application of the "public health, safety or welfare"
exception violates his rights under the Second Amendment. We
reject those arguments.
Article IV, section 1 of the Constitution provides that
"Full Faith and Credit shall be given in each state to the
public acts, records, and judicial proceedings of every other
state. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof." The clause applies to matters
between states, see, e.g., Sun Oil Co. v. Wortman, 486 U.S. 717,
722-24, 108 S. Ct. 2117, 2122-23, 100 L. Ed. 2d 743, 752-54
(1988), and to matters between a state and the federal
5 A-1512-12T1
government, see, e.g., Migra v. Warren City Sch. Dist. Bd. of
Ed., 465 U.S. 75, 81, 104 S. Ct. 892, 896, 79 L. Ed. 2d 56, 61-
62 (1984). Although characterizing the command of the clause as
"exacting" with respect to "'[a] final judgment . . . rendered
by a court with adjudicatory authority over the subject matter
and persons governed by the judgment,'" the Supreme Court has
deemed it "less demanding with respect to choice of laws."
Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494, 123 S. Ct. 1683,
1687, 155 L. Ed. 2d 702, 709 (2003) (quoting Baker v. General
Motors Corp., 522 U.S. 222, 233, 118 S. Ct. 657, 663-64, 139
L. Ed. 2d 580, 592 (1998)).
Against that backdrop, we turn to consider New Jersey's
permit law, part of the "'careful grid' of regulatory
provisions" comprising our firearms law. In re Preis, 118 N.J.
564, 568 (1990) (quoting State v. Ingram, 98 N.J. 489, 495 n.1
(1985)).
In order to lawfully acquire a firearm in New Jersey, one
must have first secured a firearms purchaser identification card
and, in the case of a handgun, a permit to purchase a handgun.
N.J.S.A. 2C:58-3a and b. State v. Cunningham, 186 N.J. Super.
502, 508 (App. Div. 1982). Those permits are not available to a
person who has been convicted of a crime. N.J.S.A. 2C:58-3c(1).
A 1979 amendment which removed the words "in this State" from
6 A-1512-12T1
paragraph c(1), leaves no doubt as to the Legislature's intent
that a person convicted of a crime in another state is
disqualified from gun ownership in this State. See L. 1979,
c. 179, §11. Both of Winston's New York convictions qualify as
crimes under our law as each carries a sentence in excess of six
months. N.J.S.A. 2C:44-4c; State (E.L.) v. G.P.N., 321 N.J.
Super. 172, 175-76 (App. Div. 1999). Accordingly, Winston's New
York convictions, without consideration of their attendant
certificates of relief from disabilities, would disqualify him
from obtaining a firearms purchaser identification card or a
permit to purchase a handgun under N.J.S.A. 2C:58-3c(1).
The question then is whether the certificates alter that
result. For that answer, we turn first to consider the statutes
pursuant to which the certificates were issued to understand the
purpose and effect of such certificates under New York law. Cf.
Ritz v. Motor Vehicle Com'n, 426 N.J. Super. 608, 611 (App. Div.
2012) (considering whether a violation of a South Carolina
statute imposing a "civil fine" constitutes a conviction for a
drug offense within the intent of N.J.S.A. 39:5-30.13).
The provision of the New York statutes creating the
certificates on which Winston relies is not in New York's
criminal code but in Article 23 of its Correction Law, entitled
"Discretionary Relief from Forfeitures and Disabilities
7 A-1512-12T1
Automatically Imposed by Law." Section 701, "Certificates of
Relief from Disabilities" provides in pertinent part:
1. A certificate of relief from
disabilities may be granted as provided in
this article to relieve an eligible offender
of any forfeiture or disability, or to
remove any bar to his employment,
automatically imposed by law by reason of
his conviction of the crime or of the
offense specified therein. Such certificate
may be limited to one or more enumerated
forfeitures, disabilities or bars, or may
relieve the eligible offender of all
forfeitures, disabilities and bars.
Provided, however, that no such certificate
shall apply, or be construed so as to apply
to the right of such person to retain or to
be eligible for public office.
. . . .
3. A certificate of relief from
disabilities shall not, however, in any way
prevent any judicial, administrative,
licensing or other body, board or authority
from relying upon the conviction specified
therein as the basis for the exercise of its
discretionary power to suspend, revoke,
refuse to issue or refuse to renew any
license, permit or other authority or
privilege.[2]
[N.Y. Correct. Law § 701 (McKinney 2014).]
2
Winston's argument that this section does not apply to him
based upon the explanation on the reverse of the certificates is
meritless. The reverse of the form itself notes that the law is
as set forth in Article 23 and that the excerpted portions are
summarized for convenience and "are not intended as
administrative interpretations and they do not relieve any party
of full knowledge of and compliance with the applicable
provisions of law."
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Section 706 of the statute further provides:
Nothing contained in this article shall
be deemed to alter or limit or affect the
manner of applying for pardons to the
governor, and no certificate issued
hereunder shall be deemed or construed to be
a pardon.
[N.Y. Correct. Law § 706 (McKinney 2014).]
The courts of New York have explained "that the intent of
the legislature in enacting [the certificate provision] was to
enable eligible offenders who have shown certain indications of
having been rehabilitated to avoid some of the restrictions
immediately flowing from their convictions, such as the bar
against holding certain civil service positions and the loss of
the right to vote." Able Cycle Engines, Inc. v. Allstate Ins.
Co., 445 N.Y.S.2d 469, 473 (N.Y. App. Div. 1981). There is no
question but that the certificates relieve Winston from the
automatic disqualification his convictions would otherwise pose
to his possessing a firearm in New York. See N.Y. Penal Law
§ 400.00 (McKinney 2008), Matter of Hecht v Bivona, 761 N.Y.S.2d
485, 485 (N.Y. App. Div. 2003).
New York's courts, however, have not found that the
legislature intended "that all indirect consequences of the
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conviction . . . be eradicated."3 Able Cycle Engines, supra, 445
N.Y.S.2d at 473. Most important for our purposes, those courts
have been explicit in holding "[the] granting of a certificate
of relief from disabilities in no way eradicates or expunges the
underlying conviction." Id. at 472 (quoting Matter of Da Grossa
v. Goodman, 339 N.Y.S.2d 502, 505 (N.Y. Sup. Ct. 1972)). New
York's Attorney General agrees. In an informal opinion
published in 1981, the Attorney General opined that "the
certificate is to be used to mitigate the impact of a criminal
record, not to eliminate it." 1981 N.Y. Op. (Inf.) Att'y Gen.
281, No. 81-124.
A review of these New York authorities plainly establishes
that a New York certificate of relief from disabilities does not
3
New York's highest court has noted that the statute expressly
does not preclude a court or authority from relying on the
conviction for which a certificate has been obtained in
exercising its discretionary function. Matter of Arrocha v. Bd.
of Ed., 712 N.E.2d 669, 671-73 (N.Y. 1999) (upholding denial
of teaching license based on prior felony drug conviction
notwithstanding applicant's possession of certificate of relief
from disabilities). Accordingly, even in New York a convicted
felon possessing a certificate of relief from disabilities for
the conviction can lawfully be denied a gun permit on the basis
of the conviction. See Matter of Caputo v. Kelly, 987 N.Y.S.2d
46, 47 (N.Y. App. Div. 2013) ("Although petitioner's Certificate
of Relief from Disabilities removed the automatic bar to
licensure occasioned by his prior convictions, it 'did not
prevent respondent from relying on the convictions in the
exercise of his statutory discretion to deny a [firearm] license
for lack of good moral character or good cause.'" (quoting Hines
v. Kelly, 635 N.Y.S.2d 31, 32 (N.Y. App. Div. 1985)).
10 A-1512-12T1
alter or affect the criminal conviction to which it relates.
Instead, it merely removes certain disabilities and bars to
employment normally attendant to the conviction under New York
law. As such, full faith and credit is not implicated in New
Jersey's reliance on the existence of the convictions to bar
Winston from gun ownership in New Jersey. Cf. People v. Laino,
87 P.3d 27, 37 (Cal. 2004) (holding full faith and credit no bar
to California determining under its law whether guilty plea in
Arizona resulting in judgment of dismissal constituted prior
conviction for purposes of three strikes law).
There is no constitutional requirement that New Jersey deem
Winston not disqualified for a permit under its firearms law
just because New York has seen fit to do so under its law. The
Supreme Court has long held that the Full Faith and Credit
Clause "does not require one state to substitute for its own
statute, applicable to persons and events within it, the
conflicting statute of another state, even though that statute
is of controlling force in the courts of the state of its
enactment with respect to the same persons and events." Pacific
Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493,
502, 59 S. Ct. 629, 633, 83 L. Ed. 940, 945 (1939). That
Winston argues that the certificates remove a disability under
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federal firearms law is irrelevant as the federal firearms
statutes are not at issue here.4
Accordingly, we hold that Winston's New York convictions
disqualify him from gun ownership in New Jersey under N.J.S.A.
2C:58-3c(1), notwithstanding his certificates of relief from
disabilities for those convictions. The Full Faith and Credit
Clause does not require New Jersey to ignore its law that treats
such convictions as automatically disqualifying simply because
the certificates remove that automatic disqualifier under New
York's gun laws.
Winston's remaining arguments require only brief comment.
While noting that a decision to deny a permit as not in the
interest of public health, safety or welfare under N.J.S.A.
2C:58-3c(5), requires a fact-sensitive analysis, the Law
Division judge clearly based her decision on the
disqualification presented by Winston's New York convictions
under N.J.S.A. 2C:58-3c(1) and not the public health, safety and
4
The question of whether full faith and credit required the
federal government to give effect to a state pardon under
federal firearms law was resolved by Congressional action. See
Thrall v. Wolfe, 503 F.2d 313, 316 (7th Cir. 1974) (holding full
faith and credit did not require elimination of federal
statutory disability based on state conviction despite existence
of state pardon, where pardon not expressly based on a
determination of innocence), cert. denied, 420 U.S. 972, 95
S. Ct. 1392, 43 L. Ed. 2d 652 (1975), superseded by statute,
Firearms Owners Protection Act, Pub. L. 99-308, 100 Stat. 450.
12 A-1512-12T1
welfare provision of N.J.S.A. 2C:58-3c(5). Accordingly, while
Clifton may have uncovered reasons beyond the convictions that
would allow a court to find that issuance of the permits to
Winston would not be in the interest of public health, safety or
welfare, it elected to proceed solely upon his New York
convictions and the judge limited her decision accordingly. We
need not address whether the evidence would have supported
denial of the permits on other grounds.
Although hardly critical here as the decision under review
rested elsewhere, we note that this court has addressed, and
rejected post District of Columbia v. Heller, 554 U.S. 570, 128
S. Ct. 2783, 171 L. Ed. 2d 637 (2008), Winston's argument that
the public health and safety exception of N.J.S.A. 2C:58-3c(5)
is unconstitutionally vague. In re Dubov, 410 N.J. Super. 190,
196-97 (App. Div. 2009). We do not find that McDonald v. City
of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3026, 177 L. Ed. 2d
894, 903 (2010), alters our thinking, as it did not address due
process issues but merely extended Heller's holding to the
States. "We cannot conclude that the [Second] Amendment or the
Court's recent decisions require this State to dismantle its
statutory scheme addressing the risks of misuse and accidental
use [of firearms] in public places devised long ago and
developed over many years. This scheme is crafted to burden the
13 A-1512-12T1
exercise of the right to use handguns for lawful purposes as
little as possible, without abandoning this effort to maintain
order and safety in public places." In re Wheeler, 433 N.J.
Super. 560, 617 (App. Div. 2013) (addressing constitutionality
of the State's carry permit law).
Affirmed.
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