In the Matter of the Appeal of the Denial of Robert Goworek's Application, Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2399-21
IN THE MATTER OF THE
APPEAL OF THE DENIAL OF
ROBERT GOWOREK'S
APPLICATION FOR A FIREARMS
PURCHASER IDENTIFICATION
CARD AND THREE HANDGUN
PURCHASE PERMITS & IN THE
MATTER OF THE REVOCATION
OF ROBERT GOWOREK'S
FIREARMS PURCHASER
IDENTIFICATION CARD AND
COMPELLING THE SALE OF HIS
FIREARMS.
______________________________
Submitted January 24, 2024 – Decided March 1, 2024
Before Judges Susswein and Vanek.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
GPA-0017-21.
Evan F. Nappen, Attorney at Law, PC, attorneys for
appellant Robert Goworek (Louis P. Nappen, on the
briefs).
Mark Musella, Bergen County Prosecutor, attorney for
respondent State of New Jersey (K. Charles Deutsch,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Petitioner, Robert Goworek, appeals a January 10, 2022 Law Division
order denying his appeal from a police chief's denial of his application for a
replacement firearms purchaser identification card (FPIC) and three handgun
purchase permits, and granting the State's motion to compel the sale of the
firearms he already owned. Goworek also appeals a February 28, 2022 Law
Division order denying his motion for reconsideration. After convening a
hearing, the trial court rejected the State's contention Goworek knowingly
falsified his application, N.J.S.A. 2C:58-3(c)(3). The court also rejected the
State's contention that issuance of the FPIC and purchase permits "would not
be in the interest of the public health, safety or welfare," N.J.S.A. 2C:58-
3(c)(5). However, the trial court ruled Goworek was ineligible for an FPIC or
purchase permit pursuant to N.J.S.A. 2C:58-3(c)(1) because he was previously
convicted of driving while intoxicated (DWI) in New York. That out-of-state
conviction was the sole basis for the trial court's conclusion Goworek was not
eligible to possess a firearm.
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On appeal, the State concedes N.J.S.A. 2C:44-4(c) was amended shortly
before the hearing so that only a prior out-of-state conviction with a sentence
in excess of one year could be a basis for disqualification under N.J.S.A.
2C:58-3(c)(1). The parties do not dispute the New York DWI offense for
which Goworek was convicted has a maximum sentence of one year.
Accordingly, that conviction cannot serve as the basis for disqualifying
Goworek from obtaining or possessing a firearm. As the State acknowledges,
the Law Division order denying Goworek's application and revoking his FPIC
must be reversed and vacated.
I.
We discern the following salient facts and procedural history from the
record. Although Goworek possessed an FPIC, he applied for a new one
because his address changed. He also applied for three handgun purchase
permits. In April 2021, the Chief of the Oakland Police Department denied the
applications because of Goworek's 1994 DWI conviction in New York State.
Goworek appealed to the Law Division. The State filed a cross-motion
seeking to revoke Goworek's existing FPIC and to compel the sale of his
existing firearms. After the January 6, 2022 hearing, the trial court denied
Goworek's appeal and granted the State's motion to revoke his existing FPIC
A-2399-21
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and compel the sale of his firearms because he had previously been convicted
of a crime.
On January 10, 2022, the trial court issued an order granting the State's
application to compel the sale of Goworek's firearms predicated on the denial
of his appeal, which reads in part:
and it is further
ORDERED that the State's motion for the revocation
of Robert Goworek's existing [FPIC] and compelling
the sale of his firearms is hereby GRANTED because
he has been convicted of a crime, N.J.S.A. 2C:58-
3(c)(1); and it is further
…
ORDERED that Robert Goworek shall immediately
contact the Oakland Police Department and coordinate
the immediate surrender of his [FPIC] firearms, and
ammunition, that are in his custody or control, or
which he possesses or owns, including but not limited
to, the following firearms:
....
Additionally, the trial court ordered Goworek to arrange for the sale of his
firearms with a Federal Firearms License dealer within 120 days; if he did not
arrange for a sale, the firearms would be subject to destruction. Goworek
moved for reconsideration, which the trial court denied at a February 28, 2022
hearing.
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Goworek raises the following contentions relevant to the surrender of the
firearms for our consideration: the court below erred when it ordered the
compelled sale of firearms that appellant already owns or possesses; the court
below erred by ordering a forfeiture of firearms pursuant to no statute
authorizing forfeiture of firearms; the court below erred because N.J.S.A.
2C:58-3(f) provides no basis to compel sale (i.e., forfeiture) of firearms; the
compelled sale of petitioner's firearms by the court below constitutes an
unconstitutional seizure; the court below erred by failing to allow the jury trial
demanded by petitioner pursuant to [State of New Jersey v.] [O]ne 1990 Honda
Accord, [154 N.J. 373 (1988)] regarding the forfeiture of his property; per
N.J.S.[A.] 2C:58-3[(d)], "no filing fee shall be required" for firearm permit
appeals, and appellant should be reimbursed the filing fee that was demanded
of him.
In his reply brief, appellant argues "issues concerning [appellant's]
firearms are not moot because [appellant] should not be saddled with an ad
infinitum order authorizing government to seize firearms from [appellant's]
residence and mandating that [appellant] may not possess firearms (in
violation of his Second Amendment rights) when [appellant] is not a certain
person not to possess firearms."
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II.
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 (1997). However, our review of "a trial court's legal
conclusions regarding firearms licenses [is] de novo." In re N.J. Firearms
Purchaser Identification Card by Z.K., 440 N.J. Super. 394, 397 (App. Div.
2015).
N.J.S.A. 2C:44-4(c), which defines "[p]rior conviction in another
jurisdiction," was amended in November 2021. L. 2021, c. 298, § 2. It
originally read "[a] conviction in another jurisdiction shall constitute a prior
conviction of a crime if a sentence of imprisonment in excess of [six] months
was authorized under the law of the other jurisdiction." (Emphasis added). As
a result of the November 2021 amendment, the statute now reads in pertinent
part: "[a] conviction in another jurisdiction shall constitute a prior conviction
of a crime if a sentence of imprisonment in excess of one year was authorized
under the law of the other jurisdiction." (Emphasis added). This amendment
went into effect on November 8, 2021—two months prior to the hearing in this
matter.
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It is undisputed the DWI offense, §1193(1)(b)(i) of the New York
Vehicle and Traffic Laws, is classified as a misdemeanor punishable by
maximum term of imprisonment of not more than a year. In making his
determination, the trial judge explained "[a] conviction in another
jurisdiction . . . shall constitute a prior conviction of a crime if a sentence of
imprisonment in excess of six months . . . was authorized under the law of the
other jurisdiction." However, the judge was relying on the statute pre-
amendment. The State concedes Goworek's prior conviction does not support
disqualification under N.J.S.A. 2C:58-3, and that Goworek "should not have
had his FPIC denied and his existing FPIC revoked based on the fact that he
had previously been convicted of a crime."
That concession also impacts the trial court's forfeiture order. As noted,
the trial court's order makes clear "the State's motion for the revocation of
Robert Goworek's existing [FPIC] and compelling the sale of his firearms is
hereby GRANTED because he has been convicted of a crime, N.J.S.A. 2C:58-
3(c)(1)." Because Goworek was not convicted of a crime within the meaning
of Title 2C, the basis for the forfeiture order evaporates.
In Matter of M.U.'s Application for a Handgun Purchase Permit, the
State attempted to compel the sale of the appellant's firearms under N.J.S.A.
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2C:58-3(f). 475 N.J. Super. 148, 199 (App. Div. 2023). That statute
provides:
A [FPIC] shall be void if the holder becomes subject
to any of the disabilities set forth in subsection c. of
this section, whereupon the card shall be returned
within five days by the holder to the superintendent,
who shall then advise the licensing authority. Failure
of the holder to return the [FPIC] to the superintendent
within the five days shall be an offense under
subsection a. of N.J.S.2C:39-10. Any [FPIC] may be
revoked by the Superior Court of the county wherein
the card was issued, after hearing upon notice, upon a
finding that the holder thereof no longer qualifies for
the issuance of the permit. The county prosecutor of
any county, the chief police officer of any
municipality or any citizen may apply to the court at
any time for the revocation of the card.
[N.J.S.A. 2C:58-3(f).]
We held N.J.S.A. 2C:58-3(f) "provides no basis for the forfeiture of firearms
already possessed." M.U., 475 N.J. Super. at 199.
While the same principle applies in this matter, we agree with the State
that Goworek's arguments pertaining to the forfeiture of his firearms are moot.
He testified he transferred his guns to a licensed firearms dealer. If Gow orek
received compensation for them, we deem the present matter closed. See id.
at 202 (noting "[a]n appeal issue is moot if the appellant 'is not entitled to any
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affirmative relief.'") (quoting Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194
N.J. 474, 484 (2008)).
We note that in his reply brief, Goworek argues,
[i]ssues concerning [p]etitioner's firearms are not
moot because [p]etitioner should not be saddled with
an ad infinitum order authorizing government to seize
firearms from petitioner's residence and mandating
that [p]etitioner may not possess firearms (in violation
of his Second Amendment rights) when [p]etitioner is
not a certain person not to possess firearms.
We agree Goworek cannot be "saddled" with an order that has no lawful
basis. We address that concern by remanding for the trial court to vacate the
order.
In view of the State's concession Goworek is not subject to a disability
under N.J.S.A. 2C:58-3(c)(3) and given the trial court's determination he is not
subject to any other disability under N.J.S.A. 2C:58-3, we need not address
Goworek's constitutional arguments. See In re Appeal of the Denial of
R.W.T.'s Application, ___ N.J. Super. ___, ___ (App. Div. 2023) (slip op. at 5)
("Courts should not reach a constitutional question unless its resolution is
imperative to the disposition of litigation.") (quoting Randolph Town Ctr., L.P.
v. Cnty. of Morris, 186 N.J. 78, 80 (2006)).
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Finally, we consider Goworek's contention that "[p]er N.J.S.[A.] 2C:58-
3D, 'no filing fee shall be required' for firearm permit appeals, and appellant
should be reimbursed the filing fee that was demanded of him." The record
shows Goworek's counsel sent a letter to the trial court that reads in pertinent
part:
Mr. Goworek has been aggrieved by his denial of
application for a New Jersey [FPIC] by the Oakland
Police Department by way of letter from [the] Chief of
Police [], (see attached). As per N.J.S.[A.] 2C:58-
3[(d)], I respectfully request a hearing on his behalf.
Kindly notify our office regarding any court dates or
other matters pertaining to the above.
Enclosed, please find our firm's check in the amount
of $50.00 payable to the "Treasurer State of New
Jersey."
Goworek's appendix includes a photocopy of the check for fifty dollars made
out to "Treasurer State of New Jersey," with the memo line reading "Robert
Goworek- FPIC Appeal Paid Under Protest/All rights reserved."
It appears this fee was not assessed or solicited by the court; rather the
payment was sent on counsel's own initiative. We nonetheless believe the
fifty-dollar payment should be refunded because no fee is required to have a
Law Division hearing as to the appeal of the denial of an FPIC or purchase
permit.
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Reversed and remanded to vacate the January 10, 2022 order and refund
the Law Division filing fee payment. We do not retain jurisdiction.
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