STATE OF NEW JERSEY VS. S.A. (2018-014, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-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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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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