IN RE APPEAL OF K.J. FOR A FIREARMS PURCHASERS IDENTIFICATION CARD (PASSAIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5667-18T3
IN RE APPEAL OF K.J. FOR A
FIREARMS PURCHASERS
IDENTIFICATION CARD.1
_____________________________
Submitted October 27, 2020 — Decided November 12, 2020
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County.
Evan F. Nappen Attorney at Law, PC, attorneys for
appellant K.J. (Louis P. Nappen, 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
1
We use initials to protect K.J.'s privacy. The State has no objection to this
request, which is made in point six of K.J.'s appellate brief.
Appellant K.J. challenges an August 19, 2019 order denying her firearms
purchaser identification card (FPIC) application. We reverse and remand the
matter.
K.J. resides in Brooklyn, New York and is employed by a New Jersey
firearm range as a chief range safety officer. She is certified by the New Jersey
State Police to sell firearms and prepares documents for background checks for
firearm purchasers. In order to maintain her credentials and ultimately become
a manager at the range, K.J. applied for an FPIC in December 2018. The FPIC
application asked the following "yes" or "no" questions:
24. Have you ever been confined or committed to a
mental institution or hospital for treatment or
observation of a mental or psychiatric condition on a
temporary, interim, or permanent basis?
....
26. Have you ever been attended, treated, or observed
by any doctor or psychiatrist or at any hospital or
mental institution on an inpatient or outpatient basis for
any mental or psychiatric condition?
K.J. answered "no" to both questions.
Because K.J. resides outside of New Jersey, her application was handled
by a New Jersey State Police investigator. The investigation revealed K.J. had
no criminal convictions, juvenile delinquency adjudications, restraining orders,
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or substance abuse issues. She never had a firearm seized from her, nor is she
on the terrorism watchlist. As required by her application, K.J. furnished her
consent to search her mental health records in New Jersey. The search was
negative. The investigator requested she provide a consent to search for mental
health records in New York. According to the investigator's testimony, the New
York mental health records check showed "NO RECORD" of any commitment;
however, the New York State Division of Criminal Justice files for mental health
records returned a "hit" connecting K.J. to a mental health professional.
As a result, the investigator called K.J. to inform her the FPIC application
"would be denied if there was no further information provided" regarding the hit
and to advise her how to appeal the denial. K.J. did not provide additional
information and the investigator sent her a letter stating her application was
denied because she "failed to disclose information pertaining to a mental health
issue associated with questions #24 and/or #26." The letter stated the New York
mental health records search "revealed that you have been attended, treated, or
observed by a doctor or psychiatrist in direct contradiction of your answers to
the questions on that application making you subject to the disabilities of
N.J.S.[A.] 2C:58-3[(]c[)](3)."
A-5667-18T3
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K.J. appealed from the denial in the Law Division. In a written
submission, she claimed she "was unaware there was a mental health note on
[her] record because [she] believed it was never recorded. This event had never
shown up on previous background checks." She explained she was involved in
an altercation and the "police . . . chose to hold me in a mental facility without
due process rather than arrest me. I was released and had no idea this would
appear on my record. I have not had such an event before or since." K.J. also
provided a letter from her treating psychiatrist to the trial court. The letter was
not admitted into evidence because the judge found the State was unable to
cross-examine the doctor. Notwithstanding, K.J. testified regarding her
treatment and revealed she had been treating with the doctor since April 2016
for anxiety and initially took a course of Klonopin and Wellbutrin but was
currently only on Wellbutrin.
Regarding the hit on her mental health records search, K.J. testified that
in April 2016, she "was attacked in [a] club . . . was very upset, and . . . was
trying to talk to the cops and they wouldn't listen. . . . And instead of . . .
remaining very calm, [she] was yelling at the cops because [she] was very upset
. . . they had arrested [her] instead of the people that had attacked [her]." As a
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result of the incident, K.J. explained she was housed in a psychiatric ward of a
New York hospital for four days, and then began seeing her psychiatrist.
Regarding her responses to the FPIC questions, K.J. explained she
answered question 24 "no" because she believed her psychiatric hospitalization
was expunged when the charges from the nightclub incident were dismissed.
Regarding question 26, K.J. stated:
I answered no because I misread the question
unfortunately. . . . I would have said yes. . . . I thought
it said ["]and["] instead of ["]or["]. . . . I thought it said
in a hospital. I know that's a very small technical thing,
but [my psychiatrist] is not in a hospital. . . . [I]f I had
read it . . . more carefully . . . I would have said yes.
At the conclusion of the proceeding the trial judge engaged in the
following colloquy with K.J.:
THE COURT: I've listened to all the testimony and I
have some concerns. . . . [Y]ou know people do make
a mistake sometimes on these applications. . . . . But I
have two questions on here, numbers 24 and . . . 26,
both of which . . . you answered no to. You may have
misunderstood them, but I don't know how you could
[mis]understand two [questions] or think that the . . .
hospitalization . . . would be expunged. . . . [A]ny
hospitalizations, . . . are always in your record.
[K.J.]: I thought it all had to do with one case.
THE COURT: Okay.
[K.J.]: So I didn't believe it would still be on there.
A-5667-18T3
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THE COURT: Okay. But that's the one question. Then
on the other question, you know, you were seeing [a
psychiatrist] and you still answered no. . . . If it was
just one or the other . . . .
....
I understand what you're saying, but based on all
the testimony that I've heard today and the
documentation that I've observed, I'm going to deny the
appeal. And . . . I just want to . . . make it clear that it
is not because you are taking medication; that has
nothing to do with this application or decision
whatsoever. But it's the fact that the two answers are
not correct. Okay. That's it.
The trial judge entered the August 19, 2019 order, which stated: "Pursuant to
N.J.S.A. 2C:58-4 . . . [i]t is . . . [ordered] that under N.J.S.A. 2C:39-6.1, the
appeal by [K.J.] for a[n FPIC] is [denied]."
K.J raises the following points on this appeal:
POINT 1. THE COURT BELOW SHOULD BE
REVERSED FOR FAILING TO SPECIFY ANY
N.J.S.[A.] 2C:58-3C DISQUALIFIER TO DENY THIS
SHALL-ISSUE LICENSE AND FOR RELYING
UPON IRRELEVANT STATUTES TO DENY THIS
SHALL-ISSUE LICENSE.
POINT 2. THE DECISION OF THE COURT
BELOW SHOULD BE REVERSED SINCE NO
N.J.S.[A.] 2C:58-3C DISQUALIFIER OR MATERIAL
REASON FOR DISQUALIFICATION WAS FOUND
BY THE COURT BELOW.
A-5667-18T3
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POINT 3. THE SUPERINTENDENT OF STATE
POLICE ERRED: BY FAILING TO PROVIDE A DUE
PROCESS CONFERENCE WITH APPELLANT
PRIOR TO DENYING HER, BY REQUIRING AN
ADDED FORM CONTRARY TO N.J.S.[A.] 2C:58-3F,
AND BY NOT APPEARING AT THE HEARING
BELOW OR BY OTHERWISE PROFFERING GOOD
CAUSE FOR DELEGATING ANOTHER'S
APPEARANCE IN HIS ABSENCE. (Not Raised
Below).
a. The Initial Issuing Authority Erred
By Failing To Conference With Appellant
Prior To Denying Her. (Not Raised
Below).
b. The Initial Issuing Authority Erred
By Requiring An Added Form Contrary To
N.J.S.[A.] 2C:58-3F. (Not Raised Below).
c. The Superintendent Erred By Failing
To Appeal At The Hearing Below Or
Otherwise Proffer Good Cause For
Delegating Another's Appearance In His
Absence. (Not Raised Below).
POINT 4. NEW JERSEY'S FIREARM
PURCHASER IDENTIFICATION CARD
APPLICATION FORM FAILS TO PROVIDE
PROPER DUE PROCESS REGARDING
EXEMPTIONS.
POINT 5. APPELLANT SHOULD NOT BE
DENIED HER FUNDAMENTAL, INDIVIDUAL,
CONSTITUTIONAL SECOND AMENDMENT
RIGHTS FOR A REASON THAT DOES NOT RISE
ABOVE RATIONAL BASIS OR CONSTITUTE A
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"LONGSTANDING PROHIBITION" TO FIREARM
POSSESSION. (NOT RAISED BELOW).
POINT 6. IT IS RESPECTFULLY REQUESTED
THAT THIS MATTER REFERENCE APPELLANT
BY HER INITIALS. (NOT RAISED BELOW).
The findings by a trial judge are "binding on appeal when supported by
adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Invs.
Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will "'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 Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App.
Div. 1963)). However, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
At the outset, we do not address points three, four, and five of K.J.'s
arguments because they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). With respect to points one and two of her brief,
we agree the trial judge erred because he did not make a finding and did not
apply the correct law.
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K.J. applied for an FPIC, pursuant to N.J.S.A. 2C:58-3, which states: "No
person of good character and good repute in the community in which [they]
live[], and who is not subject to any of the disabilities set forth in this section or
other sections of this chapter, shall be denied a . . . firearms purchaser
identification card." The statute further states:
No handgun purchase permit or firearms purchaser
identification card shall be issued:
....
. . . to any person who has ever been confined for a
mental disorder, . . . unless any of the foregoing persons
produces a certificate of a medical doctor or
psychiatrist licensed in New Jersey, or other
satisfactory proof, that [they are] no longer suffering
from that particular disability in a manner that would
interfere with or handicap [them] in the handling of
firearms; to any person who knowingly falsifies any
information on the application form for a handgun
purchase permit or firearms purchaser identification
card;
[N.J.S.A. 2C:58-3(c)(3).]
A denial of an application for an FPIC is subject to a de novo appeal in
the Law Division. In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003) (citing
Weston v. State, 60 N.J. 36, 45 (1972)). The State "has the burden of proving
the existence of good cause for the denial by a preponderance of the evidence."
Osworth, 365 N.J. Super. at 77. Hearsay is admissible, but there must be
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sufficient legally competent evidence to support the court's findings. Weston,
60 N.J. at 50-51.
Notwithstanding the judge's ability to admit hearsay, the letter from K.J.'s
psychiatrist, which contained medical diagnoses, was not admitted into
evidence. We find no error because evidentiary determinations are a matter of
the trial judge's discretion and "[w]e will only reverse if the error 'is of such a
nature as to have been clearly capable of producing an unjust result.'" Ehrlich
v. Sorokin, 451 N.J. Super. 119, 128 (App. Div. 2017) (quoting Parker v. Poole,
440 N.J. Super. 7, 16 (App. Div. 2015)). Moreover, K.J. does not raise the
evidential determination as a reason for reversal.
This leaves the portion of N.J.S.A. 2C:58-3(c)(3), which requires the State
to prove K.J. knowingly falsified her FPIC application. Although the State
presented evidence in this regard, the trial judge did not make the critical finding
of whether K.J. knowingly falsified the application. Contrary to the State's
arguments on appeal, we do not agree that the order contained mere
"typographical error[s]" or that the decision was "clearly based" on N.J.S.A.
2C:58-3. The lack of statutory findings, the citation to inapplicable statutes, and
the ramifications for K.J. impel us to remand this matter to the trial judge to
make the appropriate findings and apply the correct law.
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Reversed and remanded. We do not retain jurisdiction.
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