IN THE MATTER OF THE APPLICATION OF THE STATE OF NEW JERSEY FOR DISPOSITION OF WEAPONS BELONGING TO D.S. (DVWP 16-31, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3426-16T4
IN THE MATTER OF THE
APPLICATION OF THE STATE
OF NEW JERSEY FOR
DISPOSITION OF WEAPONS
BELONGING TO D.S.
_____________________________
Submitted January 29, 2019 – Decided February 11, 2019
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. DVWP 16-31.
Law Offices of Jef D. Henninger, attorneys for
appellant D.S. (Brent DiMarco and Jef D. Henninger,
on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent State of New Jersey (Ali Y.
Ozbek, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Appellant D.S.1 appeals from a Family Part order forfeiting his handgun,
shotgun, ammunition, and firearms purchaser identification card (FPIC)
following domestic violence proceedings between appellant and his then-wife,
R.S., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.
2C:25-17 to -35.
Following the seizure of D.S.'s firearms, FPIC, and ammunition, the
Passaic County Prosecutor's Office moved for forfeiture pursuant to N.J.S.A.
2C:25-21(d)(3). The Family Part judge conducted a two-day hearing; only
appellant and North Haledon Police Chief Robert Bracco testified.
The testimony revealed a problematic marital relationship between D.S
and R.S., which included an escalating series of domestic violence incidents that
did not result in convictions. The incidents were described in five police reports
prepared by North Haledon police officers. At the request of the Passaic County
Prosecutor's Office, Chief Bracco investigated whether D.S. had any disabilities
under N.J.S.A. 2C:58-3(c). His investigation included searching the police
department's computer system for any reported incidents involving D.S. He also
checked the domestic violence registry for any current, prior, or dismissed
restraining orders involving D.S. Chief Bracco testified on the first day of the
1
We refer to appellant and his ex-wife by initials to protect their privacy.
A-3426-16T4
2
hearing regarding the domestic violence incidents based on the contents of the
police reports he found during his investigation. We briefly summarize the
pertinent aspects of his testimony.
On February 21, 2014, Officer Michael Zimmer responded to the report
of an altercation between D.S. and R.S. in a car owned by D.S. Officer Zimmer
was unable to locate anyone involved. On December 23, 2014, Detective
Sergeant David Parenta responded to a call from R.S.'s employer that R.S. was
the victim of domestic violence. Upon arrival, R.S. stated she has intense
arguments with her husband and that she is afraid of living with him. On January
19, 2015, Officer Yusef Fattah came upon D.S. and R.S. having an argument
that initiated in their home, regarding R.S.'s consumption of alcohol. On
October 6, 2015, Detective Shawn Phillips responded to D.S. and R.S.'s
residence for a welfare check as a result of a call received from R.S.'s friend
who reported R.S. told her she was having a bad day and is being beaten by her
husband. R.S. told Detective Phillips "everything was fine." No arrests were
made as a result of any of these fours incidents.
Finally, on June 13, 2016, Officer Michael Cedar responded to a possible
domestic violence call at D.S. and R.S.'s residence. Officer Cedar observed
A-3426-16T4
3
"fresh marks" on R.S.'s face. She told Officer Cedar that D.S. had struck her
face after an argument. Officer Cedar arrested D.S.
Chief Bracco testified that after reviewing the police reports, he "didn't
think it would be wise to return the weapons to the house at this time" given "the
escalation of seriousness of the domestic violence incidents from verbal
arguments to now a physical assault, and also the fact that alcohol appears to be
an issue in this ongoing problem." Chief Bracco stated on cross-examination
that none of the police reports indicated D.S. was intoxicated. The Chief's main
concern was not so much who was intoxicated but rather, that alcohol-related
problems were causing domestic violence in the home. He also testified he
could change his mind if a final divorce decree was entered or there was a signed
separation agreement.
D.S. represented himself at the hearing. He subpoenaed two police
officers involved in drafting the proffered police reports. He also subpoenaed
his wife's daughter. None of the subpoenaed witnesses appeared for the second
day of the hearing. The court advised D.S. of his rights regarding the subpoenas
and his options. Defendant expressed understanding the court's explanation and
elected to proceed with the hearing anyway.
A-3426-16T4
4
D.S. provided his own version of the five incidents, attempting to show
he was not at fault on any of those occasions. He maintained his wife abuses
alcohol and initiates violence. He argued that during the February 21, 2014
incident, he was assaulted by his intoxicated wife, and a bystander called the
police. D.S. claimed police did not arrive while he was there and was unaware
a report was generated. Regarding the December 23, 2014 incident, D.S.
claimed his wife was intoxicated and her intoxicated co-workers misunderstood
his wife's statement about fighting with him at home, leading to the co-workers
calling the police. D.S. detailed another incident in which his wife was drunk
and assaulted him in a car. D.S. claimed the welfare check was a result of a
false tip from his wife's ex-boyfriend.
Regarding the June 13, 2016 incident, D.S. claimed his wife threw herself
on the back of his reclining chair, causing the chair to tip and make D.S. throw
his hands up, accidently striking his wife in the face. D.S. also claimed the
"fresh marks" Officer Cedar observed on R.S.'s face was actually a month-old
black eye R.S. gave herself after passing out drunk.
D.S. admitted on cross-examination he had previously been admitted into
the Pre-Trial Intervention (PTI) Program for possession of a sawed-off shotgun.
A-3426-16T4
5
D.S. testified that case began with a false allegation of a threat to his wife. He
testified his ex-wife admitted under oath she had lied about the allegation.
D.S. explained he and his wife are not residing together and he had filed
for divorce. A divorce decree had not been entered by the second hearing day.
D.S. insisted he did not pressure his wife to sign a consent to return weapons
form that was admitted into evidence.
The State moved to admit the five police reports into evidence. Initially,
D.S. objected, claiming the reports were not complete. He stated the reports
omitted information for reasons that made no sense to him. The judge took the
admission of the police reports under advisement.
Following the conclusion of the testimony, the judge revisited admission
of the reports. After the judge explained the ramifications of admitting the
reports into evidence, D.S. consented to putting the reports in evidence,
"because [he] explained them." As a result, the reports were admitted into
evidence.
Before issuing her ruling, the judge stated she "did not consider the police
reports despite the fact they were entered into evidence. This way my decision
will not be, in any way, based upon those police reports," because D.S. "doesn't
A-3426-16T4
6
wish for an adjournment so that the officers can be called." Instead, the judge
stated she would "rely solely on the testimony."
The judge heard Chief Bracco and D.S. testify, enabling her to assess their
demeanor, credibility, and other aspects of their testimony. The judge found
Chief Bracco extremely credible, finding him unbiased and his answers
reasonable.
In contrast, the judge found certain aspects of D.S.'s version of the
incidents did not make logical sense. She found some of his testimony was not
reasonable, inherently believable, or internally consistent. Thus, his testimony
was not, "in totality," credible. The judge further noted his "testimony, even if
believed, indicates he has a history of getting himself involved with women
where there is domestic violence. He readily admitted . . . his first wife indicated
that he tried to kill her and that is why he was charged with the sawed -off
shotgun . . . ." The judge further noted D.S. then became involved with a woman
who is a chronic alcoholic with "some history which causes him to constantly
get in trouble with her."
In her oral decision, the judge "weigh[ed] the potential of adding firearms
into an already volatile situation." She found there is "nothing to indicate that
these parties are not going to come into contact through divorce proceedings,
A-3426-16T4
7
which are heated, [or] through any sort of other circumstances where they may
become involved." The judge determined the State met its burden of proof,
concluding that "adding a weapon to this type of volatile situation is not in the
best interest of community safekeeping." The judge ordered the forfeiture of
defendant's firearms, FPIC, and ammunition. This appeal followed.
Appellant argues the trial court erred because: (1) the police reports
admitted into evidence were double hearsay, and therefore the state's case was
unable to support a finding of forfeiture; (2) he was not provided proper notice
or discovery in his case and was thereby denied a fair hearing; and (3) the State
failed to meet its burden of proof in demonstrating defendant is disqualified
from owning a firearm.
Appellate review of a forfeiture of firearms and FPIC in an action under
the PDVA is deferential. In re Forfeiture of Pers. Weapons and Firearms
Identification Card Belonging to F.M., 225 N.J. 487, 505-06 (2016). "[A]
judicial declaration that a defendant poses a threat to the public health, safety or
welfare involves, by necessity, a fact-sensitive analysis." Id. at 505 (quoting
State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004)). Therefore, "an
appellate court should accept a trial court's findings of fact that are supported by
A-3426-16T4
8
substantial credible evidence." Ibid. (quoting In re Return of Weapons to
J.W.D., 149 N.J. 108, 116-17 (1997)).
Family Part judges are vested with great discretion because they are
specially trained in family matters. Id. at 506. "Therefore, 'we do not disturb
the factual findings and legal conclusions of the trial judge unless we are
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice.'" Ibid. (quoting Rova Farms Resort v. Inv'rs Ins. Co., 65 N.J. 474,
484 (1974)). However, legal determinations by the Family Part are not entitled
to any special deference and are reviewed de novo. Ibid. (citing Gere v. Louis,
209 N.J. 486, 499 (2012)).
Individuals seeking to purchase a firearm in New Jersey are required to
apply for a FPIC and permit. N.J.S.A. 2C:58-3(a) to (b); N.J.A.C. 13:54-2.2.
Under the statute, any "person of good character and good repute in the
community" may obtain a firearm, subject to the disabilities set forth in N.J.S.A.
2C:58-3(c). These disabilities include, in pertinent part, "any person where the
issuance would not be in the interest of the public health, safety or welfare," and
"any person whose firearm is seized pursuant to the [PDVA] . . . and whose
firearm has not been returned." N.J.S.A. 2C:58-3(c)(5) and (8). The statute is
A-3426-16T4
9
designed "to prevent firearms from coming into the hands of persons likely to
pose a danger to the public." F.M., 225 N.J. at 507 (quoting State v.
Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982)).
An FPIC may be revoked after notice and hearing "upon a finding that the
holder thereof no longer qualifies for the issuance of such permit." N.J.S.A.
2C:58-3(f). The proceedings are conducted in a summary fashion, with the
burden of proof "upon the State to show, by a preponderance of the evidence,
that forfeiture is legally warranted." Cordoma, 372 N.J. Super. at 533.
"Because the presence of weapons can heighten the risk of harm in an
incident of domestic violence, the [PDVA] contains detailed provisions with
respect to weapons." State v. Harris, 211 N.J. 566, 579 (2012). A police officer
is empowered to seize any weapon, FPIC, and gun permit on the premises when
probable cause exists to believe an act of domestic violence has been committed
and the officer "reasonably believes the weapon would expose the victim to a
risk of serious bodily harm." N.J.S.A. 2C:25-21(d)(1)(b). The seized weapons
are inventoried, turned over to the county prosecutor, and must be returned to
the owner, unless the prosecutor timely applies to the Family Part for forfeiture.
N.J.S.A. 2C:25-21(d)(2) to (3); F.M., 225 N.J. at 510. Following a summary
hearing on notice to the owner, the Family Part:
A-3426-16T4
10
shall order the return of the firearms, weapons and any
authorization papers . . . if the court determines the
owner is not subject to any of the disabilities set forth
in N.J.S.A. 2C:58-3(c) and finds that the complaint has
been dismissed at the request of the complainant and
the prosecutor determines that there is insufficient
probable cause to indict; . . . or if the court determines
that the domestic violence situation no longer exists.
[N.J.S.A. 2C:25-21(d)(3).]
"Therefore, even if a domestic violence complaint is dismissed and the
conditions abate, forfeiture may be ordered if . . . the defendant's possession of
weapons 'would not be in the interests of the public health safety or welfare.'"
F.M., 225 N.J. at 510-11 (quoting N.J.S.A. 2C:58-3(c)(5)); see In re Z.L., 440
N.J. Super. 351, 358-59 (App. Div. 2015) (holding forfeiture proper where
police officers responded to five separate complaints of domestic violence
between defendant and wife, even though no temporary or final restraining order
was ever issued).
Although hearsay is generally not admissible evidence, the summary
nature of the proceeding allows for slightly relaxed rules of evidence, much like
the "common practice for administrative agencies to receive hearsay evidence
at their hearings." Weston v. State, 60 N.J. 36, 50-51 (1972). However, factual
findings and legal conclusions "cannot be based upon hearsay alone." Id. at 51.
A-3426-16T4
11
Although the police reports constitute hearsay and were presented by a
person other than their author, the contents were not offered for the truth of the
matter asserted, nor were the contents relied upon by the court. Rather, Chief
Bracco testified he relied on the existence of the reports to deny the return of
defendant's weapons and permit. Chief Bracco personally searched department
records and discovered the police reports. He was permitted to testify regarding
the results of that inquiry.
Even if the reports were offered for the truth of the matter asserted in
contravention of the prohibition on hearsay, hearsay is admissible in these
proceedings so long as there is "sufficient legally competent evidence to support
the court's findings." Z.L., 440 N.J. Super. at 358 (citing Weston, 60 N.J. at 50-
51). Moreover, the contents of the police reports were largely corroborated by
D.S.'s testimony. See ibid. (stating "any 'hearsay' in the police reports was
essentially corroborated by appellant's testimony in court"). We thus find no
error in the trial judge's reliance upon Chief Bracco's testimony.
We further note that defendant withdrew his objection and consented to
the admission of the police reports. He did not object to Chief Bracco's
testimony. Therefore, we review the admission of the police report and related
testimony for plain error. R. 2:10-2. "Under that standard '[a]ny error or
A-3426-16T4
12
omission shall be disregarded by the appellate court unless it is of such a nature
as to have been clearly capable of producing an unjust result.'" Willner v.
Vertical Reality, Inc., 235 N.J. 65, 79 (2018) (alteration in original) (quoting R.
2:10-2). Applying that standard, we find no plain error.
D.S. complains he was denied due process by not receiving notice of the
hearing or discovery relevant to the case. We are unpersuaded by this argument.
D.S. received the State's forfeiture motion as evidenced by his attendance at the
hearing. He was able to review the police reports before the hearing began. He
was personally familiar with each of the incidents which led to the reports. D.S.
concedes there is no statutory right to discovery in this summary proceeding.
When D.S. alerted the trial court he felt surprised by the proceedings, the
judge ordered a second hearing day with the first day limited to the State putting
its case on the record. D.S. thus had sufficient time to subpoena witnesses for
the second hearing date, which was almost three months later. When the
subpoenaed witnesses did not appear to testify, the trial court did not proceed
with the hearing until it was satisfied defendant wished to proceed that day rather
than adjourning the hearing to enforce the subpoenas against the nonresponsive
witnesses. D.S. has not shown any surprise or unfair prejudice.
A-3426-16T4
13
D.S. also claims the State did not meet its burden of proof. We disagree.
The absence of lasting charges or final restraining orders is not dispositive. In
Z.L., a case with very similar facts, a series of domestic violence incidents did
not lead to lasting charges or restraining orders. 440 N.J. Super. at 353. The
defendant in Z.L., like the defendant in this case, claimed to have accidentally
struck the victim. Id. at 354. We noted the pattern of incidents and found the
cumulative impact of them controlling. We agreed that a firearm did not belong
in an environment of escalating incidents. Id. at 358-59.
The facts in this matter compel the conclusion that the forfeiture order was
proper. The incidents were not isolated or aberrational. In the course of two
years, police responded to five complaints of domestic disputes. As we
explained in Z.L., "[e]ach such complaint, despite appellant's characterizations,
wherein appellant's spouse felt compelled to require police assistance, is imbued
with the potential for violent reaction. The presence of a firearm in such a
household enhances the potential for such reactions to become lethal." Ibid.
We decline to second-guess the trial judge's conclusion that, at the time
of the hearing, denying the State's application would not be in the interest of
public health, safety, or welfare. N.J.S.A. 2C:58-3(c)(5).
Affirmed.
A-3426-16T4
14