STATE OF NEW JERSEY VS. DARIAN VITELLO (F0-13-0282-11, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-4220-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARIAN VITELLO,
Defendant-Appellant.
__________________________
Submitted September 11, 2017 – Decided July 9, 2018
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FO-13-0282-11.
David P. Schroth, attorney for appellant.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and
on the brief; Mary R. Juliano, Assistant
Prosecutor, on the brief).
PER CURIAM
After an evidentiary hearing, Judge Lisa Thornton granted the
State's motion, pursuant to N.J.S.A. 2C:25-21(d)(3) and N.J.S.A.
2C:58-3(c)(5), to forfeit any firearms of defendant Darian
Vitello, and to revoke his permits, licenses and authorizations
to use, possess or own firearms. The court found Vitello's
continued firearm ownership would not be in the interest of the
public health, safety or welfare. N.J.S.A. 2C:58-3(c)(5). The
court thereafter denied Vitello's motion for a new trial based on
Rule 4:50-1(b) and (f), and a motion for reconsideration. In his
appeal, Vitello argues the court lacked jurisdiction because the
State's motion was untimely; the decision lacked support of
sufficient credible evidence in the record; and the court abused
its discretion in denying his Rule 4:50-1 and reconsideration
motions. We affirm.
I.
The court found that Vitello, while a Belmar police officer,
mishandled his handgun on "at least three occasions against the
policies of the Belmar police department and against all operating,
standard operating procedures for law enforcement at times in a
reckless manner, pointing them at his colleagues." The court
found that on two separate occasions, several months apart, Vitello
unholstered and pointed his service handgun at the ground near the
feet of Luis Abreu, an unarmed Class One special police officer.
Abreu testified that Vitello activated the laser sight and
continued to point the weapon for roughly five minutes. In one
incident, Vitello asked Abreu how he would feel if Vitello shot
2 A-4220-14T4
him. Abreu did not believe Vitello would actually shoot, but his
behavior made Abreu nervous, because accidents could happen. Abreu
testified that one of the incidents was witnessed by another
officer, Paul Smikovecus. The two incidents occurred in 2006 and
2007, one in the parking lot and the second inside police
headquarters.
On another occasion, after a disagreement, Vitello pointed
his weapon at the body of Michael Allen, then a civilian
dispatcher. Allen testified that Vitello activated the laser
sight and pointed his service weapon at his chest. A fellow
officer, James Burdick, testified he witnessed this incident and
told Vitello, in coarse language, to put his weapon away. Vitello
answered he was just goofing around. Another officer, Thomas Cox,
testified he observed Vitello while the weapon was unholstered,
apparently after the pointing.1
None of the officers involved promptly reported the
incidents, although Burdick stated that unholstering a service
weapon under the circumstances described would violate
departmental rules. However, Smikovecus, who had a prior
1
We recognize that Abreu testified there were three incidents
involving Vitello pointing a weapon at his feet. The court
addressed only two in its findings, along with the one involving
Allen, and concluded there were "at least three" incidents in
which Vitello mishandled his weapon.
3 A-4220-14T4
disagreement with Vitello, prompted an internal affairs
investigation of the incidents in 2009. Chief Thomas Palmisano
testified about the internal affairs investigation that he
conducted. Palmisano was a lieutenant or captain at the time.
The investigation led to grand jury proceedings. Apparently before
any indictment was returned, Vitello pleaded guilty to an
accusation charging he harassed Abreu by threatening to physically
harm him; the accusation did not allege use of a weapon. See
N.J.S.A. 2C:33-4(b). Defendant forfeited his public employment,
and the Belmar police seized his police and personal firearms.
However, Vitello did not surrender his firearms purchaser
identification card (Card), because he claimed that he lost it.
Vitello also did not seek a judicial order compelling the return
of his weapons.
The next year, Vitello obtained a replacement Card and a
Handgun Purchase Permit (Permit) upon application to the Neptune
Township Police Department. He thereafter purchased a handgun for
personal use. At the court's suggestion, a Neptune detective
testified at the hearing about his investigation of Vitello's
application. He said he never spoke to Belmar about the
circumstances of Vitello's firing. He consulted with the county
prosecutor's office only to confirm that the harassment conviction
was not a legal impediment to issuing the Card or Permit.
4 A-4220-14T4
A few months after Vitello purchased his new firearm, his
girlfriend obtained a domestic violence temporary restraining
order (TRO) against him, which led to the seizure of his handgun.
After the girlfriend voluntarily dismissed the TRO, the State
filed a motion within forty-five days of the seizure, apparently
under N.J.S.A. 2C:25-21(d)(3), for the forfeiture of Vitello's
weapon and revocation of his permits, licenses and authorizations
for the use, possession, or ownership of such weapons; however,
the State withdrew the motion without prejudice.2 More than three
months later, the State filed its motion under N.J.S.A. 2C:25-
21(d)(3) and N.J.S.A. 2C:58-3, that is the subject of this appeal.
The court credited, and relied on the testimony of Abreu,
Allen, Burdick and Cox, whom the State presented. The court
discredited and rejected the testimony of Vitello, who denied that
any of the incidents occurred. The court acknowledged various
discrepancies in the testimony of the State's witnesses. However,
the court generally attributed those to the passage of time between
the incidents and the hearing in 2011. Allen said his incident
occurred in December 2005. Burdick recalled it occurred in 2006
or 2007. Cox was even more uncertain about the timing.
2
A copy of the notice of motion is not included in the record.
5 A-4220-14T4
In granting the State's motion, the court noted that Vitello
continued to deny the events occurred, refused to accept
responsibility for his actions, and failed to learn from them or
to demonstrate the ability to act responsibly with firearms. As
noted above, the court found that defendant mishandled his firearms
on at least three occasions.
Vitello appealed and, through new counsel, sought to expand
the record before us. We denied his motion, permitting him instead
to present that request to the trial court. Vitello's motion
under Rule 4:50-1 followed. Vitello grounded his request for
relief on subsection (b) – "newly discovered evidence, which would
probably alter the judgment or order and which by due diligence
could not have been discovered in time to move for a new trial
under R. 4:49"; and subsection (f) – "any other reason justifying
relief from the operation of the judgment or order." In support
of his request for a new trial, Vitello contended that an Internal
Affairs investigation concluded in 2005 that allegations he
mishandled his weapon were unfounded. He also relied on Burdick's
employment records to demonstrate he could not have been present
when Allen claimed the pointing at him occurred. He also presented
emails between Vitello and Abreu, and statements from other police
officials.
6 A-4220-14T4
The court denied the motion. The court found the proffered
evidence was either not newly discovered, or not material. With
respect to the 2005 letter, the court noted that Vitello had
testified there was no earlier Internal Affairs investigation; the
letter was not newly discovered as Vitello claimed to have received
it; and even if there were such a finding, it would not have
changed the court's decision, as the letter did not prove that the
three incidents did not occur. The court also held that Burdick's
employment records would not have changed the result. Too much
time elapsed for the court to hold an individual to a specific
date claimed. Finally, the court found no merit in Vitello's
remaining arguments and denied the motion for a new trial. The
court thereafter denied a motion for reconsideration.
II.
We are obliged to "accept a trial court's findings of fact
that are supported by substantial credible evidence," particularly
"when the evidence is largely testimonial and involves questions
of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108,
116-17 (1997). We review de novo the court's legal conclusions.
Id. at 117.
Applying that deferential standard of review, and having
carefully reviewed the record of the 2011 testimonial hearing, we
7 A-4220-14T4
discern no basis to disturb Judge Thornton's finding, based on her
thoughtful consideration of the testimony and evidence presented.
The court properly allocated to the State the burden to
establish grounds for revoking Vitello's Card and Permit by a
preponderance of the evidence. See In re Forfeiture of Pers.
Weapons and Firearms Identification Card Belonging to F.M., 225
N.J. 487, 508 (2016) (allocating burden and standard of proof).
The court's determination that defendant poses a threat to the
public health, safety, or welfare was based on a careful, fact-
sensitive analysis, consistent with State v. Cordoma, 372 N.J.
Super. 524, 535 (App. Div. 2004).
We reject Vitello's argument, which he based on State v. One
Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999) and an
unpublished decision, that the State was obliged to present
"'overwhelming' evidence that Vitello currently presents a 'clear
threat' to the public welfare." As noted, the standard of proof
is preponderance of the evidence. The State proceeded under
N.J.S.A. 2C:58-3(c)(5), which "is meant to address '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.'" F.M., 225
N.J. at 513 (quoting In re Osworth, 365 N.J. Super. 72, 79 (App.
Div. 2003)). The panel in One Marlin Rifle used the phrase
8 A-4220-14T4
"generally overwhelming" simply to characterize the evidence
presented in cases in which forfeiture had been ordered, in
contrast to the paltry proofs before it. 319 N.J. Super. at 371-
72 (citing State v. Freysinger, 311 N.J. Super. 509, 515-16 (App.
Div. 1998) and Hoffman v. Union Cnty. Prosecutor, 240 N.J. Super.
206 (Law Div. 1990)). There was no finding that the firearm owner
in One Marlin Rifle mishandled his weapon in any way, as Vitello
did in this case.
We also discern no merit in Vitello's argument that the trial
court lacked jurisdiction to entertain the State's application,
because it was untimely. Vitello relies on N.J.S.A. 2C:25-
21(d)(3), which provides that the State shall return seized weapons
to a domestic violence defendant within forty-five days of seizure,
absent a court order of forfeiture. However, by its plain
language, the provision does not impose a time-bar for the filing
of a forfeiture and revocation motion; it simply provides for the
return of seized weapons in the absence of a timely application
and order. Notably, Vitello did not formally seek the return of
weapons seized after the domestic violence TRO was issued.
In any event, the State exercised its authority under chapter
58, which states that "[t]he county prosecutor . . . may apply
. . . at any time for the revocation of the card," and "[a]ny
firearms purchaser identification card may be revoked by the
9 A-4220-14T4
Superior Court 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." N.J.S.A. 2C:58-3(f) (emphasis
added); see also Hoffman, 240 N.J. Super. at 215 (ordering the
forfeiture of weapons and revocation of Card based on a finding
that it would not be in the interest of the public health, safety
or welfare, N.J.S.A. 2C:58-3(c)(5), based on holder's "disturbing
pattern of domestic violence and violence in general" and alcohol
abuse).3
We also shall not disturb the trial court's decisions (1) to
deny Vitello's motion to vacate the order and for a new trial,
pursuant to Rule 4:50-1, and (2) to deny his motion for
reconsideration of that denial. Both decisions were vested in the
trial court's reasoned exercise of discretion. See Hous. Auth.
of Morristown v. Little, 135 N.J. 274, 283 (1994) (stating that
decision granting or denying relief "will be left undisturbed
unless it represents a clear abuse of discretion"); Cummings v.
Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (stating that
reconsideration is left to the court's "sound discretion . . . to
3
While a Card remains valid until revoked, a Permit expires after
ninety days, unless renewed by the issuing authority for good
cause. N.J.S.A. 2C:58-3(f).
10 A-4220-14T4
be exercised in the interest of justice") (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
As Judge Thornton noted, much of what Vitello sought to
present to the court was not newly discovered evidence, as it was
available to him in the exercise of due diligence before the
original hearing. In particular, Vitello received in 2005 the
purported letter concluding allegations against him were
unfounded. Also, well before the hearing, Vitello had already
obtained an unsworn letter from an officer who all but insinuated
that Allen alleged that Vitello pointed his weapon at him in order
to get Vitello fired. Besides, during cross-examination, Allen
was asked if he leveled the charges at Vitello in order to secure
his own position with the police department. In any event, Judge
Thornton concluded that nothing Vitello unearthed would have
materially affected her credibility determinations, and resulting
fact-findings.
To the extent not addressed, Vitello's remaining arguments
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
11 A-4220-14T4