IN THE MATTER OF THE APPLICATION FOR PERMIT TO CARRY A HANDGUN OF ELIOENAI FERNANDEZ (UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5621-17T2
IN THE MATTER OF THE
APPLICATION FOR PERMIT
TO CARRY A HANDGUN OF
ELIOENAI FERNANDEZ.
___________________________
Argued September 17, 2019 – Decided October 2, 2019
Before Judges Yannotti and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Union County.
Elioenai Fernandez, appellant, argued the cause pro se.
Michele C. Buckley, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lyndsay V. Ruotolo, Acting Union
County Prosecutor, attorney; Reana Garcia, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Appellant Elioenai Fernandez appeals from a June 22, 2018 order denying
his application for a permit to carry a handgun. The trial judge found it was
against the public interest for appellant to obtain a carry permit because of a
previous disorderly persons plea and two dismissed charges. See N.J.S.A.
2C:58-3(c)(5). Because appellant explained that the criminal charges related to
his prior employment as a "bounty hunter," and because all of the charges were
either downgraded or dismissed, we reverse and remand the matter to the trial
court for reconsideration and further proceedings on the petition. On remand,
the court should conduct an evidentiary hearing, review the facts and
circumstances of the criminal charges and their dispositions, and assess
defendant's credibility. The court should also evaluate and make specific
findings on whether appellant has established the justifiable need for the carry
permit.
Appellant submitted an application for a permit to carry a handgun. He
asserted he had accepted employment with GDNJ Protective Services, LLC
(GDNJ) as an armed security officer and required a handgun for his
employment. The letter provided by GDNJ in support of the application advised
that appellant's contract required him to carry a handgun because appellant was
"subject to a substantial threat of serious bodily harm" when performing his
duties. GDNJ's employees work as armed cash couriers, armed payroll escorts,
and armed bank guards, and provide services as special protectors of individuals
and transporters of valuables.
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The letter explained some GDNJ clients had experienced armed robberies,
shopliftings, issues with disgruntled employees and fights at their workplaces.
Because of those incidents, the clients employed GDNJ guards. The letter
detailed one example of an assignment where guards were needed to protect
individuals who repair ATM machines. To perform such repairs, the ATM
machine is opened, exposing sizeable amounts of currency. The guard is needed
to protect the technician from being hurt or robbed. Appellant's position as an
armed guard was contingent on his obtaining a handgun carry permit.
In its review of appellant's application, the Rahway Police Department
conducted a criminal background check. The federal and state criminal history
checks were devoid of any felony convictions. As revealed by appellant, he had
two arrests in Pennsylvania in 1997. Both arrests occurred in the course of his
employment as a bail bonds agent. In each instance, the individuals he sought
to return to New Jersey as fugitives signed complaints against him. Appellant
stated he pled guilty to one disorderly persons charge and paid a fine. The
remaining charges were dismissed.
Appellant stated, that in 2011, after he arrested someone in Puerto Rico
during the course of his employment, a civilian signed a complaint against him
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for kidnapping. The charge was dismissed for lacking probable cause and later
expunged. Appellant provided all of the documentation to the Rahway police.
Although there was no record of any additional incidents, appellant
affirmatively noted on his application a disorderly persons summons issued by
a civilian in Woodbridge in 2003. In circumstances similar to the prior charges,
the civilian complaint was filed after appellant arrested a fugitive while
employed as a bail bondsman. The summons was dismissed by the court.
Woodbridge police advised, in its supplemental investigation report, there was
no record of the incident.
The Rahway Police recommended approval of the application. Following
a judicial review, the Law Division judge denied the application without a
hearing. She stated she found "a pattern of concerning behavior starting in
1997," and referred to the incidents in 2003 and 2011. The judge concluded "it
was against the public interest to allow the applicant to obtain a permit to carry,"
and denied the application.
Appellant contends on appeal that the trial judge accorded undue weight
to his prior charges as they were either downgraded to disorderly persons
offenses or dismissed and the three incidents occurred long ago. He also asserts
each occurrence was incident to his employment.
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We recognize our scope of review of the trial court's decision in the denial
of a handgun carry permit is limited. See In re Z.L., 440 N.J. Super. 351, 355
(App. Div. 2015). We "accept a trial court's findings of fact that are supported
by substantial credible evidence." Ibid. (quoting In re Return of Weapons to
J.W.D., 149 N.J. 108, 116-17 (1997)). However, our review of a trial court's
legal conclusions does not require the same level of deference. See ibid.; see
also In re N.J. Firearms Purchaser Identification Card by Z.K., 440 N.J. Super.
394, 397 (App. Div. 2015) (citing In re Sportsman's Rendezvous Retail Firearms
Dealer's License, 374 N.J. Super. 565, 575 (App. Div. 2005)) (noting that an
appellate court "review[s] a trial court's legal conclusions regarding firearms
licenses de novo").
The acquisition of a permit to carry a gun in New Jersey is a highly-
regulated process. The applicable statute requires that a handgun carry
application be first "submitted to the chief police officer of the municipality in
which the applicant resides . . . ." N.J.S.A. 2C:58-4(c).1 The chief police officer
should not approve the application unless the applicant demonstrates that "he is
1
The trial court relied on N.J.S.A. 2C:58-3 to -4, as they existed on June 22,
2018. The statutes were subsequently amended, most recently in 2019. The
amendments to the statutes were largely formalistic and do not affect the
relevant legal analysis.
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not subject to any of the disabilities set forth in [N.J.S.A. 2C:58-3(c)], that he is
thoroughly familiar with the safe handling and use of handguns, and that he has
a justifiable need to carry a handgun." Ibid.
Following the police review, the application is presented to the "Superior
Court of the county in which the applicant resides . . . ." N.J.S.A. 2C:58-4(d).
"The court shall issue the permit to the applicant if, but only if, it is satisfied
that the applicant is a person of good character[,]" not subject to any of the
N.J.S.A. 2C:58-3(c) disqualifications, "that he is thoroughly familiar with the
safe handling and use of handguns, and that he has a justifiable need to carry a
handgun . . . ." Ibid.
N.J.S.A. 2C:58-3(c)(5) provides, in relevant part, that no handgun permit
"shall be issued . . . [t]o any person where the issuance would not be in the
interest of the public health, safety or welfare. . . ." Id. The statute enumerates
multiple separate categories of disqualification from the right to a handgun
permit or firearms purchaser identification card. See Z.L., 440 N.J. Super. at
356; N.J.S.A. 2C:58-3(c). However, section 58-3(c)(5) is "'intended to relate to
cases of individual unfitness, where, though not dealt with in the specific
statutory enumerations, the issuance of [a] permit . . . would nonetheless be
contrary to the public interest.'" In re Osworth, 365 N.J. Super. 72, 79 (App.
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Div. 2003) (quoting Burton v. Sills, 53 N.J. 86, 91 (1968)). Accordingly, "even
though [an applicant] might not be disqualified from possessing a firearm under
[another section], he may nonetheless be disqualified under [section 58-3(c)(5)]
. . . ." In re Forfeiture of Pers. Weapons and Firearms Identification Card
Belonging to F.M., 225 N.J. 487, 513 (2016).
A court's determination "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). This "requires a careful
. . . assessment of the threat a defendant may impose to the general public." Ibid.
Moreover, in considering section 58-3(c)(5) of the statute, "[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 . . . ." Osworth,
365 N.J. Super. at 78 (citations omitted); accord Z.L., 440 N.J. Super. at 356
(citations omitted).
In his application, appellant informed of three incidents in which criminal
charges were levied against him. The first of these events occurred twenty years
ago; the last was more than six years ago. None of the charges resulted in a
criminal conviction. Appellant pled guilty to a disorderly persons offense and
paid a fine regarding the 1997 charge. The two more recent charges were
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dismissed in court. It was uncontroverted that the charges all arose from
complaints filed against appellant stemming from the performance of his duties
as a bail bonds agent.
Although we agree a trial judge may consider the factual underpinnings
of an applicant's dismissed charges when reviewing an application to carry a
handgun, Osworth, 365 N.J. Super. at 78, the judge erred by finding, based on
this record, that the three incidents demonstrated a "concerning pattern of
behavior."
In Osworth, the applicant did not advise the police of his arrest for
weapons offenses incurred during the pendency of his carry permit application.
The police chief denied the application. Because the applicant had successfully
completed a pretrial intervention program and the charges were dismissed, the
Law Division judge reversed the denial. In our reversal of the trial judge, we
stated,
Since Osworth's application for a permit to carry a
handgun was pending when he was arrested, we infer
that his violation of the law against carrying without a
permit was intentional. Since a criminal conviction for
either of th[e] offenses would be an automatic bar to
obtaining a permit to purchase a handgun, N.J.S.A.
2C:58- 3c(1), the fact of their commission, even absent
conviction, warranted denial of the permit in this case
under subsection c(5). In short, it does not serve public
safety to issue a handgun purchase permit to someone
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who has demonstrated his willingness to disregard the
gun laws of this State.
[Id. at 81.]
We are unconvinced that Osworth requires a denial of the carry permit in
this case. Here, appellant's charges were either downgraded or dismissed. They
were incurred between six and twenty years prior to the submission of his
application. Appellant has explained the charges were all related to his job as a
bail bondsman where his encounters with fugitives resulted in the filing of
criminal complaints against him.
Without a hearing, the trial judge was not fully apprised of the
circumstances that led to appellant's criminal charges nor was she able to assess
appellant's credibility. The judge also did not address whether appellant
demonstrated the requisite need required under N.J.S.A. 2C:58-4(c) for a carry
permit. Therefore, on remand, the judge should consider GDNJ's letter and any
other information or testimony appellant may present regarding his need to carry
a handgun during his employment.
Because of the unique circumstances underlying appellant's prior criminal
history, we remand for a hearing, thus allowing appellant the opportunity to
further explain the criminal charges and for the judge to assess appellant's
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credibility prior to a determination of whether appellant "poses a threat to the
public health, safety or welfare."
Reversed and remanded for proceedings in accordance with this opinion.
We do not retain jurisdiction.
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