IN RE APPLICATION FOR PERMIT TO CARRY A HANDGUN OF MICHAEL P. SIDERIO (15-003, CAPE MAY COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0603-17T2
IN RE APPLICATION
FOR PERMIT TO CARRY
A HANDGUN OF
MICHAEL P. SIDERIO.
________________________
Submitted October 3, 2018 – Decided November 8, 2018
Before Judges Fuentes and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Cape May County, Municipal Appeal No.
15-003.
Evan F. Nappen, attorney for appellant Michael P.
Siderio (Louis P. Nappen, on the brief).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent State of New Jersey (Michelle
L. DeWeese, Chief Assistant Prosecutor, on the brief).
PER CURIAM
Michael P. Siderio appeals from Judge John C. Porto's order, entered after
a plenary hearing, denying appellant's application for a permit to carry a
handgun as a retired municipal police officer. Appellant contends:
THE COURT BELOW ERRED BY NOT FINDING
THAT APPELLANT MEETS THE REQUIREMENTS
FOR ISSUANCE OF A RETIRED LAW
ENFORCEMENT IDENTIFICATION CARD
[UNDER THE PROVISIONS OF THE FEDERAL
LAW ENFORCEMENT OFFICERS SAFETY ACT OF
2004, 18 U.S.C. § 926C (LEOSA)].
a. The Court below erred by finding that the granting of
the identification card as a LEOSA "qualified officer"
is limited to former full-time service.
b. The Court below erred because, under the LEOSA
section, a "qualified retired law enforcement officer"
does not need to be "retired" but merely "separated"
from service; and N.J.S.[A.] 2C:39-6[(l)] does not
otherwise define "retired."
c. The Court below erred in finding that appellant must
provide a retired photographic identification from his
former employer before being issued this card.
We scrutinized the record developed before the trial court and, mindful of
prevailing standards of review, we reject these arguments and affirm.
After concluding the documentary evidence presented was more credible
than appellant's testimony, Judge Porto found appellant was appointed as a full-
time police officer with the City of Wildwood on December 7, 1981 and resigned
in good standing on May 3, 1991. 1 Appellant contends in his merits brief, and
1
The judge viewed the evidence favorably for appellant. Civil service
documents supplied by appellant list later employment-start dates: December
A-0603-17T2
2
Judge Porto found from appellant's testimony, that when appellant "separat ed
from service in good standing in 1991, no mechanism exist[ed] by which he
could 'retire' with less than [twenty-five] years of service." In his merits brief
he also confirms his testimony that he "resigned for family reasons and because,
at that time, he did not want to touch his pension," which he later cashed out.
Judge Porto reviewed N.J.S.A. 2C: 39-6(l) and concluded that, in order to
qualify for a permit to carry a firearm, appellant "must be a retired law
enforcement officer and not one who simply left the police force in good
standing." Relying on our decision in In re Wheeler, 433 N.J. Super. 560 (2013),
in perpending the references to LEOSA in N.J.S.A. 2C: 39-6(l), the judge also
held "satisfying the requirements of LEOSA does not entitle an applicant a
higher standing to . . . carry a permit under [N.J.S.A.] 2C:39-6(l)."
We are bound to accept the trial judge's factual findings if they are
supported by substantial credible evidence. In re Return of Weapons to J.W.D.,
149 N.J. 108, 116 (1997). We exercise de novo review, however, over the
judge's legal determinations. Manalapan Realty, LP v. Twp. Comm. of
17, 1981 and February 20, 1982. Appellant's letter of resignation is dated April
29, 1991.
A-0603-17T2
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Manalapan, 140 N.J. 366, 378 (1995). We also review questions of statutory
interpretation de novo. Tumpson v. Farina, 218 N.J. 450, 467 (2014).
N.J.S.A. 2C: 39-6(l) sets forth the qualifications for the issuance of special
permits to carry a handgun to a retired law enforcement officer:
Nothing in [the Criminal Code provision criminalizing
the unlawful possession of handguns] shall be
construed to prevent a law enforcement officer who
retired in good standing, including a retirement because
of a disability[,] . . . who semi-annually qualifies in the
use of the handgun he is permitted to carry in
accordance with the requirements and procedures
established by the Attorney General pursuant to
subsection j. of this section and pays the actual costs
associated with those semi-annual qualifications, who
is 75 years of age or younger, and who was regularly
employed as a full-time member of [various law
enforcement agencies]; or is a qualified retired law
enforcement officer, as used in the federal [LEOSA],
domiciled in this State from carrying a handgun in the
same manner as law enforcement officers exempted
under paragraph (7) of subsection a. of this section
under the conditions provided herein . . . .
We are in full accord with Judge Porto's statutory interpretation. In
construing N.J.S.A. 2C: 39-6(l), he recognized the "overriding philosophy of the
Legislature and of the judiciary is to limit the use of guns" and our Supreme
Court's holding that "exemptions from gun statutes should be strictly construed
to better effectuate the policy of gun control." State v. Rovito, 99 N.J. 581, 586-
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87 (1985). He correctly noted the Court's determination that carry-permit
requirements are "the most closely-regulated aspect of [this State's] gun-control
laws." In re Preis, 118 N.J. 564, 568 (1990). The judge also followed the Court's
mandate:
In construing any statute, we must give words
"their ordinary meaning and significance," recognizing
that generally the statutory language is "the best
indicator of [the Legislature's] intent." DiProspero v.
Penn, 183 N.J. 477, 492 (2005); see also N.J.S.A. 1:1-
1 (stating that customarily "words and phrases shall be
read and construed with their context, and shall . . . be
given their generally accepted meaning"). Each
statutory provision must be viewed not in isolation but
"in relation to other constituent parts so that a sensible
meaning may be given to the whole of the legislative
scheme." Wilson ex rel. Manzano v. City of Jersey
City, 209 N.J. 558, 572 (2012). We will not presume
that the Legislature intended a result different from
what is indicated by the plain language or add a
qualification to a statute that the Legislature chose to
omit. DiProspero, 183 N.J. at 493.
On the other hand, if a plain reading of the
statutory language is ambiguous, suggesting "more than
one plausible interpretation," or leads to an absurd
result, then we may look to extrinsic evidence, such as
legislative history, committee reports, and
contemporaneous construction in search of the
Legislature's intent. Id. at 492-93.
[Tumpson, 218 N.J. at 467-68 (alterations in original).]
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Judge Porto concluded, a plain reading of the statute requires first and
foremost that an applicant be a law enforcement officer who retired in good
standing. As we held in In re Wheeler:
These special carry permits may be issued to retirees
who either served in an enumerated law enforcement
agency or served with an agency in another state and
are "qualified retired law enforcement officer[s], as
[that term is] used in the federal [(LEOSA)] domiciled
in this State." N.J.S.A. 2C:39-6[(l)]; In re Casaleggio,
420 N.J. Super. 121, 128-29 (App. Div. 2011).
[433 N.J. Super. at 571 (first two bracketed alterations
in original) (emphasis, third, and fourth bracketed
alterations added).]
In addition to the retirement prerequisite, N.J.S.A. 2C: 39-6(l) also
mandates the permittee: (1) semi-annually qualify in the use of the handgun and
pay the costs associated with those qualifications; (2) be age seventy-five years
or younger; (3) have had prior regular employment as a full-time member of the
listed law enforcement agencies or qualification as a retired law enforcement
officer, as used in LEOSA, domiciled in New Jersey. As we recognized in In re
Wheeler, the statute's LEOSA provision did not create a separate eligibility
classification. 433 N.J. Super. at 582-83. After reviewing the eight categories
related to "employment with state, interstate and local law enforcement
agencies," we observed,
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[t]he two remaining categories of retirees eligible for
special permits are those who were "full-time federal
law enforcement officer[s]" and those domiciled in this
State who are eligible as a retiree who is "a qualified
retired law enforcement officer" within the meaning of
that term as it was defined in LEOSA when adopted in
2004.
[Ibid. (quoting N.J.S.A. 2C: 39-6(l)).]
The enumerated procedures for the issuance of a permit pursuant to
N.J.S.A. 2C:39-6(l) make clear that retirement is an essential requirement;
"retire" or some derivative thereof is mentioned eighteen times. N.J.S.A. 2C:39-
6(l)(1) to (7). The pertinent sections provide:
(1) The retired law enforcement officer shall make
application in writing to the Superintendent of State
Police for approval to carry a handgun for one year. An
application for annual renewal shall be submitted in the
same manner.
(2) Upon receipt of the written application of the retired
law enforcement officer, the superintendent shall
request a verification of service from the chief law
enforcement officer of the organization in which the
retired officer was last regularly employed as a full-
time law enforcement officer prior to retiring. The
verification of service shall include:
(a) The name and address of the retired officer;
(b) The date that the retired officer was hired and the
date that the officer retired;
....
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(d) A statement that, to the reasonable knowledge of
the chief law enforcement officer, the retired officer is
not subject to any of the restrictions set forth in
subsection c. of N.J.S.2C:58-3; and
(e) A statement that the officer retired in good standing.
(3) If the superintendent approves a retired officer’s
application or reapplication to carry a handgun pursuant
to the provisions of this subsection, the superintendent
shall notify in writing the chief law enforcement officer
of the municipality wherein that retired officer resides.
In the event the retired officer resides in a municipality
which has no chief law enforcement officer or law
enforcement agency, the superintendent shall maintain
a record of the approval.
(4) The superintendent shall issue to an approved
retired officer an identification card permitting the
retired officer to carry a handgun pursuant to this
subsection. This identification card shall be valid for
one year from the date of issuance and shall be valid
throughout the State. The identification card shall not
be transferable to any other person. The identification
card shall be carried at all times on the person of the
retired officer while the retired officer is carrying a
handgun. The retired officer shall produce the
identification card for review on the demand of any law
enforcement officer or authority.
....
(6) A judge of the Superior Court may revoke a retired
officer’s privilege to carry a handgun pursuant to this
subsection for good cause shown on the application of
any interested person.
[Ibid. (emphasis added).]
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Appellant did not retire in good standing; he resigned. He is not entitled,
according to the stated terms of the statute, to a permit to carry. In light of the
plain meaning of the statute, we need not look to extrinsic evidence to glean the
Legislature's intent. See Tumpson, 218 N.J. at 467-68. If we had, we would
conduct the same analysis as did Judge Porto in his thorough and well-reasoned
oral opinion, relying on our holdings in In re Wheeler and In re Casaleggio, 420
N.J. Super. 121.
The balance of appellant's arguments is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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