IN THE MATTER OF THE APPLICATION OF D.B. FOR A FIREARMS PURCHASER INDENTIFICATION CARD AND PERMIT TO PURCHASE A HANDGUN (17-042, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0053-17T3
IN THE MATTER OF THE
APPLICATION OF D.B. FOR
A FIREARMS PURCHASER
IDENTIFICATION CARD
AND PERMIT TO PURCHASE
A HANDGUN.
___________________________
Submitted December 10, 2018 – Decided December 19, 2018
Before Judges Haas and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Municipal Appeal No. 17-
042.
Evan F. Nappen, attorney for appellant D.B. (Louis P.
Nappen, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent State of New Jersey
(Christopher W. Hsieh, Chief Assistant Prosecutor, on
the brief).
PER CURIAM
Appellant D.B. appeals from an August 4, 2017 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. We affirm.
Appellant filed his application on February 24, 2017. During the routine
records check that followed, Lieutenant Ricciardi on behalf of the chief of
police, learned that appellant had two disorderly persons convictions in 1987
and 1989 in New York. In January 1998, appellant was convicted of driving
while intoxicated (DWI). He was again convicted for DWI in November 2006.
Just six months later, in May 2007, appellant was convicted of operating a motor
vehicle while suspended. In January 2008, he was again convicted of driving
while his license was suspended. 1
Based upon his criminal history record, Lieutenant Ricciardi denied
appellant's application by letter dated April 10, 2017. The lieutenant gave
appellant his telephone number and advised him that he could call if he
"need[ed] to discuss this matter further." Appellant did not contact Lieutenant
Ricciardi, but did file an appeal to the Law Division. Following a de novo
hearing at which appellant and a different lieutenant testified, the judge found
that in light of appellant's criminal history, giving appellant a FPIC and a
1
In addition, appellant's then-wife obtained three temporary restraining orders
against him during the period between May 2001 and July 2006, with each one
being subsequently dismissed.
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handgun permit "would not be in the interest of the public health, safety or
welfare" under N.J.S.A. 2C:58-3(c)(5). This appeal followed.
On appeal, appellant raises the following contentions:
POINT 1
THE COURT BELOW ERRED BECAUSE
ISSUANCE OF FIREARM PURCHASE PERMITS
ARE BASED ON PRESENT CONDITION, AND
APPELLANT HAS NO PRESENT DISQUALIFYING
CONDITION.
POINT 2
THE COURT BELOW ERRED BY BASING ITS
DENIAL SOLELY UPON HEARSAY AND
SPECULATION CONTRARY TO DUBOV,
WESTON AND ONE MARLIN RIFLE.
POINT 3
APPELLANT WAS DENIED DUE PROCESS IN
OFFENSE TO N.J.S.A. 2C:58-3(f) AND IN RE
FIREARMS PURCHASER ID BY Z.K. (Not raised
below).
POINT 4
THE WEST MILFORD POLICE CHIEF ERRED BY
FAILING TO CONFERENCE WITH APPELLANT
PRIOR TO DENYING HIM, BY NEVER
(APPARENTLY) MAKING A DECISION
REGARDING THE APPLICATION, AND BY
FAILING TO APPEAR AT COURT AT THE
HEARING BELOW OR OTHERWISE PROFFERING
GOOD CAUSE FOR DELEGATING ANOTHER'S
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APPEARANCE IN HIS ABSENCE. (Not raised
below).
POINT 5
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. (Not raised below).
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. (Not
raised below).
b. "In the interest of public health, safety or
welfare" is unconstitutionally vague or overbroad. (Not
raised below).
c. "In the interest of public health, safety or
welfare" provides unconstitutional Due Process notice
and provides no Due Process form of redress. (Not
raised below).
d. "In the interest of public health, safety or
welfare" does not pass heightened scrutiny generally
and as applied below as it constitutes a mere
unconstitutional interest-balancing test. (Not raised
below).
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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 comments.
We are bound to accept the trial court's fact findings if they are supported
by substantial credible evidence, In re Return of Weapons to J.W.D., 149 N.J.
108, 116-17 (1997), but we exercise de novo review over the trial court's legal
determinations, Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995). Here, the judge's findings were based upon appellant's
undisputed criminal history as revealed by the standard background check.
Based upon that history, which includes two DWI offenses, two driving while
suspended offenses, and two disorderly persons offenses, we discern no basis
for disturbing the judge's conclusion that the issuance of a FPIC and handgun
permit would be contrary to the public interest.
Contrary to appellant's contentions, the judge's findings were not based
"solely upon hearsay and speculation" because everything the judge relied upon
was based upon appellant's criminal history. We also find no merit in appellant's
contention that he was denied due process because the police chief did not meet
with him before denying his application. As the Supreme Court held in Weston
v. State, 60 N.J. 36, 43-44 (1972), a denied applicant should have an opportunity
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to discuss the reasons for denial with the chief of police "and to offer an y
pertinent explanation or information for the purpose of meeting the objections
being raised." Here, Lieutenant Ricciardi specifically advised appellant that he
could call if he wanted to discuss the application further. Moreover, under
Weston, the trial court's de novo hearing "compensates constitutionally for
procedural deficiencies before the administrative official." Id. at 45-46.
Finally, appellant's constitutional arguments were not raised to the Law
Division judge. We therefore decline to consider them. State v. Robinson, 200
N.J. 1, 20 (2009). Even considered, we find them meritless, noting our prior
discussion in In re Winston, 438 N.J. Super. 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) (explaining the limitations on the right to
possess firearms).
Affirmed.
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