IN THE MATTER OF THE APPEAL OF THE DENIAL OF W.R.'S APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD, ETC. (BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5426-16T1
IN THE MATTER OF THE APPEAL
OF THE DENIAL OF W.R.'S
APPLICATION FOR A FIREARMS
PURCHASER IDENTIFICATION
CARD (FPIC) AND HANDGUN
PURCHASE PERMIT (HPP).
Submitted October 31, 2018 – Decided January 30, 2019
Before Judges Alvarez and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County.
Evan F. Nappen, attorney for appellant W.R. (Louis P.
Nappen, on the briefs).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent State of New Jersey (William
P. Miller, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Appellant W.R. appeals from the June 23, 2017 Law Division order
upholding a municipal police department's denial of his application for a New
Jersey Firearms Purchaser Identification Card (FPIC) and Handgun Purchase
Permit (HPP). We affirm.
The detective in charge of processing W.R.'s application through the
Allendale Police Department learned that W.R. had the following contacts with
the system: a 1982 arrest for simple assault, a charge later dismissed; in 1997,
a Division of Youth & Family Services (DYFS) (now Division of Child
Protection and Permanency) caseworker report to police that W.R.'s then-nine-
year-old daughter was left alone in his home; a DYFS caseworker 1998 report
to police that W.R.'s wife had abused their daughter; a DYFS caseworker 2002
report to police that W.R. had assaulted his daughter and his wife, resulting in
W.R.'s arrest and the issuance of a temporary restraining order under the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which was
dismissed; in 2002, W.R. appeared at the police station and asked to speak to
someone about a domestic dispute with his wife; a 2003 police visit to W.R.'s
home because of a call about a verbal altercation between him and his wife; and
in 2003, because W.R.'s daughter reported that he had struck her and her mother,
DYFS temporarily relocated the family.
The detective also testified at the Law Division hearing that his record
request regarding W.R.'s mental health history resulted in an indication by the
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Bergen Regional Medical Center (BRMC) that he had a record of "admission,
commitment, or treatment" with the facility. The detective later determined that
no actual records were available 1 and that BRMC could only confirm that an
appointment had been scheduled. When W.R.'s counsel attempted to follow up,
the facility again responded that no records were available. In addition to the
State application forms, W.R. completed an additional questionnaire created by
the department.
Based on the totality of the information, the detective forwarded a letter
to his chief recommending denial of the application. Accordingly, a letter was
sent to W.R. advising that his application had been denied. The reason given
was N.J.A.C. 13:54-1.5(a)(5), which mirrors N.J.S.A. 2C:58-3(c)(5), that
approval would be contrary to the interests of "public health, safety or welfare."
It was signed by the department's chief of police. The letter did not invite W.R.
to meet with him to discuss the application further.
At the hearing, after the detective's testimony, the judge swore in W.R.
When he began to ask questions, counsel stopped the process and said W.R. was
exercising his Fifth Amendment right not to testify. The court, W.R., and W.R.'s
counsel engaged in the following colloquy:
1
Nothing we have seen in the record even indicates a year.
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[Defense counsel]: Oh, Your Honor, if I didn't -- I
object to that -- to this questioning, based on my client
has Fifth Amendment rights and other things that I feel
he should not -- he does not want to take the stand.
THE COURT: He has Fifth Amendment, so is he
going to be asserting his Fifth Amendment right?
[Defense counsel]: Are you asserting you[r] Fifth
Amendment right, [W.R.], not to testify today?
[W.R.]: Yes.
THE COURT: Okay.
[Prosecutor]: Your Honor, this is civil --
THE COURT: On the grounds that something he
might say might incriminate him?
[Defense counsel]: Well, they're raising
allegations of things that have been written into his --
that he checked off on reports and that --
[Prosecutor]: There is no criminal case against
[W.R.] and --
THE COURT: Is this with respect to certain questions
on the [FPIC] application for which there may be an
issue as to whether or not some of them may have been
knowingly falsified?
[Defense counsel]: That could be it, one of the
issues.
THE COURT: Well, I'm asking you, is that --
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[Defense counsel]: Yes, that is one -- that has been
raised.
At the close of the hearing, the judge found as a fact that there was "a
significant history of violence" within W.R.'s home spanning the years between
1997 and 2003, and noted the earlier arrest for simple assault. The history of
domestic violence within the home included W.R.'s daughter—now an adult
who lived with her parents. The judge also noted that there was a documented
contact with BRMC, although the details were unknown. He found, based on
the officer's credible testimony, that W.R.'s receipt of an FPIC and HPC "would
not be in the interest of the public health, safety or welfare" pursuant to statute.
On appeal, appellant raises the following contentions:
POINT 1
THE COURT BELOW ERRED BY BASING ITS
DECISION SOLELY UPON HEARSAY OR
SPECULATION CONTRARY TO DUBOV,
WESTON AND ONE MARLIN RIFLE.
POINT 2
APPELLANT WAS DENIED DUE PROCESS IN
OFFENSE TO N.J.S. 2:58-3F AND Z.K., AND THE
ALLENDALE POLICE CHIEF SHOULD BE FOUND
TO HAVE DENIED APPELLANT DUE PROCESS
SINCE THE CHIEF ACTED IN VIOLATION OF THE
REGULATORY PROVISIONS RELATING TO
FIREARM PERMIT APPLICATIONS (UNDER N.J.S.
2C:39-10) AND OFFICIAL MISCONDUCT (UNDER
N.J.S. 2C:30-2).
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a. Appellant was denied procedural Due Process in
offense to N.J.S. 2C:58-3f and Z.K.
b. The Allendale Police Chief should be found to
have acted in violation of the regulatory provisions
relating to firearm permit applications (under N.J.S.
2C:39-10) and official misconduct (under N.J.S. 2C:30-
2), thereby depriving appellant of equal and fair
procedural Due Process.
c. The Allendale issuing authority failed to provide
in its denial letter an actual statutory basis for denial in
offense to Due Process and Weston.
d. The Allendale Police Chief erred ab initio by
failing to conference with the applicant prior to denying
him.
POINT 3
APPELLANT SHOULD NOT BE DENIED
HIS FUNDAMENTAL, INDIVIDUAL,
CONSTITUTIONAL RIGHT TO KEEP ARMS FOR A
REASON THAT DOES NOT RISE ABOVE
RATIONAL BASIS, IS VAGUE AND/OR
OVERBROAD, CONSTITUTES AN
UNCONSTITUTIONAL BALANCING-TEST, AND
DOES NOT PROVIDE A DUE PROCESS FORM OF
REDRESS.
a. The Court below erred by not basing its finding
upon a longstanding prohibition on the possession of
firearms, and by applying mere rational basis review to
deny Appellant his individual, fundamental right.
b. "In the interest of public health, safety or
welfare" is unconstitutionally vague or overbroad.
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c. "In the interest of public health, safety or
welfare" provides unconstitutional Due Process notice
and provides no Due Process form of redress.
We conclude that appellant's contentions are without sufficient merit to warrant
extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the
following brief comments.
"[A] judicial declaration 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). In reviewing such
determinations, we accept the trial court's fact findings so long as they are
supported by substantial credible evidence. In re Return of Weapons to J.W.D.,
149 N.J. 108, 116-17 (1997). As always, our review of the trial court's legal
determinations is de novo. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
The thrust of W.R.'s points of error center on his claim that the criminal
history relied upon by the trial judge should have been inadmissible because it
was hearsay. Since at least Weston v. State, 60 N.J. 36 (1972), a residuum of
legally competent evidence makes hearsay admissible in some cases, and may
be employed in the State's presentation in a firearms permit appeal. Pursuant to
the residuum rule, such hearsay is admissible so long as the "ultimate finding or
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findings of material facts" could be reasonably made. See Ruroede v. Borough
of Hasbrouck Heights, 214 N.J. 338, 359-60 (2013). In this case, the
documentation provided by the State sufficed to make the hearsay admissible.
Therefore, the judge's findings, which were based upon W.R.'s domestic
violence, DYFS, and arrest history even though no actual convictions resulted,
were not based solely upon hearsay. As we have also said, that charges were
dismissed does not prevent us from considering the underlying facts in this type
of hearing. In re Osworth, 365 N.J. Super. 72, 78 (App. Div. 2003).
Turning briefly to W.R.'s contention that he was denied due process
because the Allendale police chief failed to meet with him, there is no question
that the Court has required, beginning with Weston, that the chief of police
extend to the person whose application has been denied the opportunity to
discuss the matter. 60 N.J. at 43-44. We do not endorse the chief's failure to
meet the unsuccessful applicant, but note further that a trial court's de novo
hearing "compensates constitutionally for procedural deficiencies before the
administrative official." Id. at 45-46. Additionally, the reason for denial was
stated in the letter.
We decline to consider W.R.'s constitutional arguments and note that in
any event, they have been previously disposed of. In re Winston, 438 N.J. Super.
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1, 10 (App. Div. 2014); see also In re Forfeiture of Pers. Weapons & Firearms
Identification Card Belonging to F.M., 225 N.J. 487, 506-08 (2016).
Finally, it bears mention that the Law Division judge could have relied
upon W.R.'s exercise of his Fifth Amendment right not to testify during the
hearing as a basis for drawing a negative inference against him. Although the
law does not mandate an adverse inference, it is permissible. Bldg. Materials
Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 474 (App. Div. 2012).
In this case, once counsel indicated that the basis for the exercise of the Fifth
Amendment privilege was W.R.'s responses on the application, the adverse
inference was available to the judge. Since it concerned key matters related
directly to W.R.'s eligibility to possess firearms in this state, it would have been
appropriate to draw an adverse inference. Ibid.Affirmed.
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