IMO DENIAL OF FPIC AND HANDGUN PURCHASE PERMIT BY ANDRIY YAREMIY (GPA-0047-20, BERGEN COUNTY AND STATEWIDE) ( 2022 )


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  •                              NOT FOR PUBLICATION WITHOUT THE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-2534-20
    IN THE MATTER OF DENIAL
    OF FPIC AND HANDGUN
    PURCHASE PERMIT
    BY ANDRIY YAREMIY.
    ___________________________
    Argued March 2, 2022 – Decided March 15, 2022
    Before Judges Hoffman, Whipple and Geiger.
    On appeal from the Superior Court of New Jersey,
    Law Division, Bergen County, Docket No. GPA-0047-
    20.
    Richard G. Potter argued the cause for appellant
    Andriy Yaremiy (Galantucci & Patuto, attorneys;
    Richard G. Potter, on the brief).
    Deepa S.Y. Jacobs, Assistant Prosecutor, argued the
    cause for respondent State of New Jersey (Mark
    Musella, Bergen County Prosecutor, attorney; Deepa
    S.Y. Jacobs, on the brief).
    PER CURIAM
    Appellant Andriy Yaremiy appeals from a Law Division order denying
    his appeal of the denial of a Firearms Purchaser Identification Card (FPIC) and
    Handgun Purchase Permit. Having considered the facts and applicable legal
    principles, we reverse and remand.
    We take the following facts from the record. Appellant applied for a
    FPIC and Handgun Purchase Permit. The application was denied by the Chief
    of the Borough of Wood-Ridge Police Department. In his letter to appellant
    notifying him of the denial, the Chief stated that investigation revealed
    appellant had been arrested for driving while intoxicated (DWI) in 2015. The
    Chief concluded that the following statutes applied: N.J.S.A. 2C:25-19 (any
    person who has been convicted of any crime, or a disorderly persons offense
    involving an act of domestic violence whether or not armed with or possessing
    a weapon at the time of the offense); N.J.S.A. 24:21-2 (any person who is
    confined for a mental disorder to a hospital, mental institution or sanitarium, or
    to a person who is presently a habitual drunkard); and N.J.S.A. 2C:58-3(c)(5)
    (issuance would not be in the interest of the public health, safety or welfare).
    Appellant filed a timely appeal in the Superior Court.           The court
    conducted a two-day hearing. The Chief testified that in 2015, appellant was
    arrested in New York on a "2C violation," and in 2008, appellant received a
    summons for an open container violation in Harrison, New Jersey. However,
    the Chief later corrected himself, acknowledging the 2008 incident involved a
    summons for consumption of alcohol by a passenger while the vehicle is being
    A-2534-20
    2
    operated, in violation of N.J.S.A. 39:4-51a(a). Appellant was fined $256 and
    costs for that violation; his license was not suspended, and he was not
    sentenced to jail time.
    On the 2015 offense, defendant pled guilty to a reduced charge of
    driving while ability impaired (DWAI), in violation of New York Vehicle and
    Traffic Law (VTL) § 1192.1, and was sentenced to a one-year conditional
    discharge, no jail time, a ninety-day suspension of driving privileges, and a
    $500 fine.
    The Chief testified that he denied the application because of appellant's
    history of alcohol, "falsification on the application," and "it not being in the
    best interest" of the public safety, health, and welfare of our citizens. The
    Chief related that he had never granted a firearm purchase application to
    someone with a DWI conviction.
    Detective David Marchitelli testified that he believed appellant's prior
    involvement with alcohol and motor vehicles showed a lack of judgment and
    disregard for the law. Marchitelli was also concerned that appellant was not
    truthful when questioned about the 2015 DWI arrest.          He concluded the
    application should be denied based on a risk to public health, safety, and
    welfare.
    A-2534-20
    3
    The State presented no evidence that appellant was a habitual drunkard,
    suffered from mental health conditions, had been confined for a mental
    disorder to a hospital or psychiatric treatment facility, or had any history of
    committing domestic violence. The Chief confirmed that no domestic violence
    complaints or drunk and disorderly complaints had ever been filed against
    appellant. He also acknowledged that other than the DWI arrest, he did not
    know appellant to be a habitual drunkard and was not aware if appellant had
    any psychological problems.
    The State alleged appellant omitted pertinent information from his
    application regarding the alleged criminal violation. The application asked
    appellant if he had ever been convicted of a crime in New Jersey or of any
    criminal offense in any other jurisdiction where he could be sentenced to more
    than six months in jail. Appellant did not report his DWI conviction or open
    container violation on his application. The State argued that appellant was
    barred by N.J.S.A. 2C:58-3(c)(3) from obtaining a FPIC and handgun purchase
    permit because he falsified his application by omitting the DWI conviction.
    The State contended that the New York DWI conviction was a criminal
    offense. However, the Certificate of Disposition issued by Criminal Court of
    the City of New York, County of Richmond states that appellant pled guilty to
    violating VTL § 1192.1, which is a motor vehicle violation, not a crime, under
    A-2534-20
    4
    New York law. Therefore, the court found appellant answered the question
    truthfully.
    Appellant contended he had never been convicted of a crime in New
    Jersey or any other jurisdiction. He asserted his DWI offense was a motor
    vehicle violation, as was his consumption of alcoholic beverage in a motor
    vehicle violation. The State did not introduce evidence proving otherwise.
    Appellant testified that he is thirty-eight years old, has been married for
    eleven years, has three children, and owns a business. He was born in Ukraine
    and is an American citizen. He has never been treated by a psychologist or
    psychiatrist and has never been hospitalized for a psychiatric problem.
    Regarding the 2008 consuming an alcoholic beverage in a vehicle charge,
    appellant testified he pled guilty without the advice of counsel. He claimed he
    was a passenger in a van driven by a friend and was unaware there was an
    open container in the vehicle.
    The court issued an order and accompanying written decision denying
    the appeal. Despite the uncontroverted evidence introduced at the hearing and
    the court's conclusion that appellant answered the question regarding criminal
    convictions truthfully, the court found appellant's "connection with the truth "
    was "tenuous." The court found the evidence showed appellant had consumed
    alcohol in a motor vehicle and pled guilty. The court concluded that appellant
    A-2534-20
    5
    minimized the "significance of the arrest and consequences" to the police and
    during the hearing.
    Although the court found the DWI conviction was not a per se
    disqualification, nor was his "less-than-truthful response to the detective's
    questioning," the court determined that appellant's lack of "insight into the
    gravity of his past involvement with alcohol within motor vehicles" justified
    the denial of the application.
    The court found the Chief and Detective Marchitelli had "excellent
    recall" and their testimony was "consistent and highly credible." The court
    found appellant's "testimony was less credible. His testimony conflicted with
    Marchitelli's testimony." The court opined that appellant
    seemed oblivious to the gravity of his prior conduct.
    When questioned about follow-up treatment after his
    arrest for driving while impaired, the perfunctory
    nature of his response was particularly troubling. He
    provided little detail about the program that he
    attended and offered no evidence that he learned
    anything from the experience.
    The court noted, however:
    When questioned about any subsequent treatment, he
    responded that he was, "advised by the court to attend,
    I forgot what it was called, I had to be present for an
    entire day and I listened to the presentation by a
    mother and a father who had their daughter killed by a
    drunk person and so they had this big presentation
    about that and there [were] a lot of people in the room
    A-2534-20
    6
    and, you know, that was the only thing that I was
    required to do . . . ."
    The court made the following findings.         Appellant "has no prior
    involvement with the criminal justice system, no history of any involvement in
    domestic violence matters, and no mental health issues." When interviewed by
    Marchitelli, appellant acknowledged he was arrested in 2015, "but denied he
    was ever charged and reported he was found not guilty." The police report
    indicated that a preliminary alcohol breath test measured a 0.158 Blood
    Alcohol Content (BAC), and appellant was arrested for DWI under New York
    statute VTL § 1192.1. Appellant pled guilty and was fined $500, and his
    driving privileges were suspended for ninety days. He completed a conditional
    discharge.
    The court noted that because a conviction of driving while impaired
    under New York statute VTL § 1192.1 only exposes the defendant to up to
    fifteen days in jail and a fine of $300 to $500, appellant "has never been
    convicted of a crime and his response on the application was truthful."
    The court found that "[t]he public health, safety, or welfare disqualifier
    is intended to relate to cases of individual unfitness, where, though not dealt
    with in the specific statutory enumerations, the issuance of a permit or
    identification card would nonetheless be contrary to the public interest." The
    court considered appellant's alcohol use even though it did "not rise to
    A-2534-20
    7
    alcoholism or habitual drunkenness."           The court likewise considered
    appellant's motor vehicle convictions even though those offenses were not
    "listed in N.J.S.A. 2C:58-3(c)."
    The court found the State met its burden of showing "[b]y a
    preponderance of the evidence, [that] the issuance of [a] FPIC or Handgun
    Purchase Permit to appellant would pose a threat to the public health, safety,
    and welfare." The court concluded appellant "lacks insight into the gravity of
    his past involvement with alcohol within motor vehicles" and "appeared to
    have not gained any benefit from the program he was required to attend after
    his conviction." While recognizing that "the right to bear arms is guaranteed
    in the [United States] Constitution," the court found good cause to deny
    appellant's application.
    This appeal followed. Appellant argues:
    UPHOLDING     THE  DENIAL    OF  THE
    APPLICATION FOR A FIREARMS PURCHASE
    IDENTIFICATION CARD AND/OR HANDGUN
    PURCHASE PERMIT WAS NOT SUPPORTED BY
    SUBSTANTIAL CREDIBLE EVIDENCE.
    A judicial determination that a defendant poses a threat to the public
    health, safety, and welfare is a fact-sensitive analysis. In re Forfeiture of Pers.
    Weapons & Firearms Identification Card belonging to F.M., 
    225 N.J. 487
    , 505
    (2016) (citing State v. Cordoma, 
    372 N.J. Super. 524
    , 535 (App. Div. 2004)).
    A-2534-20
    8
    Therefore, "an appellate court should accept a trial court's findings of fact that
    are supported by substantial credible evidence." 
    Ibid.
     (quoting In re Return of
    Weapons to J.W.D., 
    149 N.J. 108
    , 116-17 (1997)). "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.'" Id. at 506 (quoting Rova Farms Resort v. Inv'rs Ins. Co.,
    
    65 N.J. 474
    , 484 (1974)); see also J.W.D., 
    149 N.J. at 117
     (explaining that this
    is especially true when "the evidence is largely testimonial and involves
    questions of credibility.").   However, questions of law are reviewed by the
    appellate division de novo. In re F.M., 225 N.J. at 506.
    Although the right to bear arms is guaranteed by the Second Amendment
    of the U.S. Constitution, a state's police power allows it to place "reasonable
    limitations" on firearms ownership. Ibid. (quoting D.C. v. Heller, 
    554 U.S. 570
    , 626 (2008)). As a result, our legislature requires a person seeking to own
    firearms to apply for an identification card and permit. Id. at 507.
    Balancing those competing interests—the right to bear arms and
    reasonable limitations on gun ownership to protect the public—N.J.S.A.
    2C:58-3(c) provides:
    No person of good character and good repute in the
    community in which he lives, and who is not subject
    A-2534-20
    9
    to any of the disabilities set forth in this section or
    other sections of this chapter, shall be denied a permit
    to purchase a handgun or a firearms purchaser
    identification card, except as hereinafter set forth.
    The statute was enacted to prevent "statutorily 'unfit' persons from
    possessing firearms." Cordoma, 372 N.J. Super. at 538. Relevant to this case,
    the disabilities preventing firearm ownership include "any person who has
    been convicted of any crime or a disorderly persons offense involving an act of
    domestic violence[,]" N.J.S.A. 2C:58-3(c)(1); "any drug-dependent person"
    and "any person who is confined for a mental disorder to a hospital [or] mental
    institution" or "any person who is presently an habitual drunkard[,]" N.J.S.A.
    2C:58-3(c)(2); "any person who knowingly falsifies any information on an
    application form for a handgun purchase permit or firearms purchaser
    identification card[,]" N.J.S.A. 2C:58(c)(3); and "any person where the
    issuance [of the permit] would not be in the interest of the public health, safety
    or welfare[,]" N.J.S.A. 2C:58(c)(5). Any one of these disabilities is legally
    sufficient to deny the issuance of a permit to own or possess a firearm.
    Cordoma, 372 N.J. Super. at 534.
    The initial determination to grant or deny a FPIC or permit to purchase a
    handgun is made by the chief of police of the municipality where the applicant
    resides. N.J.S.A. 2C:58-3(d). The police chief must grant a FPIC and permit
    "unless good cause for the denial thereof appears[.]" N.J.S.A. 2C:58-3(f). A
    A-2534-20
    10
    denied applicant may request a hearing in the Law Division. In re F.M., 225
    N.J. at 508 (citing N.J.S.A. 2C:58-3(d); N.J.A.C. 13:54-1.12(a)). The Law
    Division court conducts a de novo hearing to review the facts and
    independently determine whether the applicant is entitled to a FPIC or
    handgun purchase permit. In re Z.L., 
    440 N.J. Super. 351
    , 357 (App. Div.
    2015). At the hearing, "the police chief has the burden of proving an applicant
    is not qualified to receive a handgun permit." 
    Ibid.
     (citing In re Osworth, 
    365 N.J. Super. 72
    , 77 (App. Div. 2003)).        The police chief must prove the
    disqualification by a preponderance of the evidence.         
    Id.
     at 358 (citing
    Osworth, 
    365 N.J. Super. at 77
    ).
    N.J.S.A. 2C:58-3(c)(5) governs "cases of individual unfitness, where,
    though not dealt with in the specific statutory enumerations, the issuance of the
    permit or identification card would nonetheless be contrary to the public
    interest." Id. at 356 (quoting Osworth, 
    365 N.J. Super. at 79
    ). The court may
    consider the underlying facts even if a criminal charge is dismissed. Osworth,
    
    365 N.J. Super. at
    78 (citing J.W.D., 
    149 N.J. at 110
    ).
    In State v. Freysinger, a defendant had to forfeit his firearms and was
    found to be a "habitual drunkard" because he had two DWI convictions, two
    convictions for refusing to submit to chemical tests, and admitted that he hit a
    pedestrian (whom he claimed did not know was his girlfriend) with his car but
    A-2534-20
    11
    did not stop and drove straight home and went to bed. 
    311 N.J. Super. 509
    ,
    516-17 (1998). In contrast, appellant had one DWI conviction in 2015, and a
    consumption of alcohol in a motor vehicle conviction in 2008, twelve years
    before he applied for the FPIC and handgun purchase permit.
    As the Law Division judge found, appellant did not falsify his
    application. Appellant is not disqualified by any of the disabilities set forth in
    subsections (1), (2), (3), (6) or (8) of N.J.S.A. 2C:58-3. Only subsection (5) is
    at issue. The State was required to prove by a preponderance of the evidence
    that granting a FPIC or handgun purchase permit to appellant "would not be in
    the interest of the public health, safety or welfare[.]" N.J.S.A. 2C:58-3(c)(5).
    Our careful review of the record convinces us that the State did not satisfy that
    burden.
    The consumption of alcohol in a motor vehicle incident as a passenger
    occurred twelve years before the application was filed. Alcohol consumption
    by a passenger does not pose a risk to public health, safety, or welfare. The
    DWI occurred five years before the application. There have been no repeat
    offenses. Neither conviction was related to weapons or domestic violence.
    Both were motor vehicle offenses. Appellant is thirty-eight years old. He has
    never been convicted of a crime or disorderly persons offense, let alone one
    A-2534-20
    12
    related to domestic violence.     Nor is there any evidence that defendant
    currently abuses alcohol.
    Any misinformation relayed to Detective Marchitelli may well have been
    caused by the technical aspects of the New York DWI statute and the fact that
    neither the New York charge that he pled guilty to, nor the New Jersey offense
    involved crimes or disorderly persons offenses. The confusion of the Chief
    that the New York offense was a 2C violation appears to have resulted from
    appellant originally being charged with DWI, in violation of VTL § 1192.2,
    but pleading guilty to the reduced charge of DWAI, in violation of VTL §
    1192.1.
    DWI is a misdemeanor under New York law that is punishable by a jail
    term of up to one year and probation for up to three years, a fine of up to
    $2500, and a license suspension of up to one year. Penalties for Alcohol or
    Drug-related Violations, N.Y. DEP'T OF MOTOR VEHICLES.1 It is a per se
    offense that involves driving with a BAC of 0.08 or higher. Ibid. In contrast,
    DWAI by alcohol is a "violation," not a felony or misdemeanor under New
    York law, and for a first offense is punishable by a jail term of up to fifteen
    days, a fine up to $500, and a license suspension of up to ninety days. Ibid. It
    1
    https://dmv.ny.gov/tickets/penalties-alcohol-or-drug-related-violations (last
    visited Mar. 7, 2022).
    A-2534-20
    13
    involves driving with a BAC more than 0.05 but less than 0.07. Ibid. While
    perhaps confusing to the Chief, Detective Machitelli, and appellant, the
    offenses and their respective sentencing ranges are clearly different.      And
    while DWI is punishable in New York by up to one year in jail, by being
    labelled a misdemeanor, it is hardly surprising that appellant, who lives in
    New Jersey and is not an attorney, would not know that it technically falls
    within the definition of a crime under N.J.S.A. 2C:1-4(a) because it is
    punishable by imprisonment in excess of six months.
    Moreover, even if a misdemeanor under New York law largely equates
    to a disorderly persons offense under New Jersey law, disorderly persons
    offenses are not crimes under our Criminal Code.         N.J.S.A. 2C:1-4(b).
    Therefore, by answering that he had never been convicted of a crime or
    disorderly persons offense in New Jersey or a criminal offense in another
    jurisdiction where he could have been sentenced to six or more months in jail,
    appellant was neither untruthful nor misleading.
    Reversed and remanded for the Law Division to enter an order granting a
    FPIC and handgun purchase permit to appellant. We do not retain jurisdiction.
    A-2534-20
    14
    

Document Info

Docket Number: A-2534-20

Filed Date: 3/15/2022

Precedential Status: Non-Precedential

Modified Date: 3/15/2022