In the Matter of the Revocation of Robert Sanders's Firearms Purchaser Identification Card, 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NOT FOR PUBLICATION WITHOUT THE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-1721-22
IN THE MATTER OF THE
REVOCATION OF ROBERT
SANDERS'S FIREARMS
PURCHASER IDENTIFICATION
CARD AND COMPELLING THE
SALE OF HIS FIREARMS.
_____________________________
Submitted March 5, 2024 – Decided April 30, 2024
Before Judges Natali and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. GPR-0009-21.
The Tormey Law Firm, LLC, attorneys for appellant
Robert Sanders (Travis J. Tormey, of counsel; Jeffrey
Anthony Skiendziul, on the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent State of New Jersey (William P. Miller,
Assistant Prosecutor, of counsel; Catherine A. Foddai,
Legal Assistant, on the brief).
PER CURIAM
Appellant Robert Sanders appeals from the Law Division's January 25,
2023 order revoking his firearms purchaser identification card (FPIC) and
compelling the sale of his firearms. We affirm.
In September 2018, the Bergen County Prosecutor's Office Narcotics Task
Force received information from a confidential informant that appellant was
selling narcotics in Bergen County. A detective arranged for two separate
controlled buys of Adderall and methadone pills from appellant; the first buy
was $120 for eight Adderall and six methadone pills and the second was $160
for ten Adderall and eight methadone pills.
Appellant was subsequently arrested and charged with four counts of
distribution of a controlled dangerous substance (CDS). His release from jail
was conditioned on the surrender of his seven firearms to police. Appellant was
admitted into the pretrial intervention program (PTI), N.J.S.A. 2C:43-12 to -22,
and after he successfully completed one year of supervision, the charges against
him were dismissed.
The forfeiture of appellant's firearms was not imposed as a condition of
PTI. Instead, the State filed a motion to revoke appellant's FPIC and compel the
sale of his firearms pursuant to N.J.S.A. 2C:58-3(f), which permits the county
prosecutor to apply to the court for revocation of an FPIC when the holder
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becomes subject to a disqualifying disability under N.J.S.A. 2C:58-3(c).
Pertinent to this case, the statute provides:
[A] person shall not be denied a permit to purchase a
handgun or a firearms purchaser identification card,
unless the person is known in the community in which
the person lives as someone who has engaged in acts or
made statements suggesting the person is likely to
engage in conduct, other than justified self-defense,
that would pose a danger to self or others, or is subject
to any of the disabilities set forth in this section or other
sections of this chapter. A handgun purchase permit or
firearms purchaser identification card shall not be
issued:
...
(3) To any person who suffers from a physical defect
or disease which would make it unsafe for that person
to handle firearms, to any person with a substance use
disorder involving drugs as defined in [N.J.S.A. 2C:24-
21-2], . . . unless any of the foregoing persons produces
a certificate of a medical doctor, treatment provider, or
psychiatrist licensed in New Jersey, or other
satisfactory proof, that the person is no longer suffering
from that particular disability in a manner that would
interfere with or handicap that person in the handling
of firearms; . . .
...
(5) To any person where the issuance would not be in
the interest of the public health, safety or welfare
because the person is found to be lacking the essential
character of temperament necessary to be entrusted
with a firearm.
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[N.J.S.A. 2C:58-3(c) (Dec. 2022).]
A hearing on the motion was held on January 20, 2023, before Judge
Christopher R. Kazlau. At the time of the hearing, appellant was self-employed
in the computer business for twenty-five years, where he set up and built
computers. He had no prior indictable convictions or juvenile adjudications and
no history of mental health commitments or in-patient treatment for substance
abuse. Appellant had not been arrested since the 2018 CDS offenses and
possessed his FPIC for twenty-three years in two different towns without any
issues. He believed he was not a danger to the public, nor did he lack the
essential character to be entrusted with a firearm.
The State cross-examined appellant about his prior criminal history,
including a conviction in 1990 for theft by deception. Appellant's explanation
of the offense was that, while he was having a party, someone else used his
house phone to charge $225 to his neighbor's credit card. Appellant said he did
not commit the offense and pleaded guilty to something he did not do because
he "wanted it to go away." The State then produced appellant's sworn statement
he provided to detectives at the time. In that statement, appellant admitted he
saw his neighbor's mail in the street, opened it, and used the information from a
bank statement to call a phone sex line. When questioned by the motion judge,
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appellant maintained that he had been placed under oath, admitted to something
he did not do and, by doing so, lied to the judge during his guilty plea.
Although appellant also had arrests for possession of marijuana in 1992
and criminal mischief in 1998, the judge did not afford these prior arrests any
weight in his decision because they were remote and predated the issuance of
appellant's FPIC.
Appellant presented a report dated June 2, 2021 from his treating
psychiatrist, Dr. Joseph Siragusa, but did not produce him to testify. Dr.
Siragusa documented appellant's prior history of alcohol and opioid abuse,
diagnosed him with "unspecified anxiety disorder, history of adjustment
disorder with mixed anxiety and depressed mood, as well as opioid-use disorder
severe in full, sustained remission." However, Dr. Siragusa opined "[a]t no time
has [appellant] demonstrated excessive anger or inability to control his
impulses," nor did appellant suffer from any disability that would interfere with
or handicap him in the handling of a firearm.
Despite his own treating psychiatrist's diagnosis, appellant repeatedly
denied ever having a substance abuse problem. He testified he had sustained a
fractured disc in his back so he was put on "medication." At the time of the
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hearing, he had been taking Percocet four times a day, every day for more than
five years.
Appellant recalled he was diagnosed with anxiety at some point after his
parents took him to an emergency room in April 2016 because he was "feeling
unwell." He had been treating with a psychiatrist since at least 2019 and was
taking Xanax as needed for anxiety and to help him sleep, since he was in pain.
Appellant estimated he took fifteen Xanax per week.
When asked about the two controlled buys of CDS in 2018, the details of
which the investigating detective testified, appellant admitted to selling
Adderall and methadone but offered an implausible explanation of why he did
so. Appellant said he studied to be a certified alcohol and drug counselor and
claimed he was only trying to help a friend who was addicted to pain medication
by selling him methadone. The judge asked a few follow-up questions:
Q: Okay. Now, you testified on direct that you were
studying to be a certified alcohol and drug
counselor, and you were just trying to help out a
friend?
A: Yeah.
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Q: Why would you charge the friend for the drugs
that you were getting him?
A: It was a friend's friend.
Q: So it was a friend's friend.
A: I had never met the person.
Q: And you stated that you were trying to—basically
trying to help out and assess that person?
A: That is correct.
Q: So the way that you were going to do that was to
sell—disregard the law and sell CDS to that
person, that's the way you were going to help
them?
A: I was going to help them by evaluating them and
giving them a name of a psychiatrist so they
could get medication to get off drugs.
Q: By selling drugs to them in exchange for money
for yourself?
A: That's what happened.
Q: Is that what you did?
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A: Yes.
After considering the testimony and evidence presented, Judge Kazlau
granted the State's motion. In his oral decision on the record, the judge
determined the detective's testimony to be "most credible, most direct, [and]
consistent throughout." With regard to the CDS transactions, the judge found:
It's not the fact of the arrest. It's not the fact of the
disposition to PTI. It's the underlying conduct that I'm
concerned about. And that underlying conduct in
selling drugs in exchange for money—and quite
frankly, I don't find [appellant]'s testimony to be
credible at all regarding his intentions on selling the
CDS that he was training to be a certified drug
counselor and he was just trying to help out a friend.
He changes that up later on upon questioning from the
[c]ourt that he was trying to help out a friend of a friend,
when I asked him, well, you know, you're going to help
out a friend, you're going to do that in exchange for
money, as though that would make it okay. I find his
testimony regarding that to be incredible. I mean, it's
clear, based upon the testimony before me from
[appellant] and [the detective], who was intimately
involved in the investigation that [appellant] was
selling CDS for profit.
Certainly, in evidence is the disregard for the law. The
evidence is a disregard for the law that certainly causes
harm to the community.
But also in some ways the evidence is [appellant] . . .
in some ways minimizing his conduct and almost trying
to justify his conduct in disregarding the law in selling
CDS.
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The judge also found appellant was "trying to minimize the conduct"
regarding his 1990 conviction for theft. While the judge acknowledged the
conduct was remote in time and appellant had not had any issues with a firearm
since obtaining his FPIC, he found it "relevant with respect to his demeanor
throughout the course of his testimony." The judge recognized appellant
suffered from anxiety, which could have impacted his demeanor in court , but
noted he "displayed a palpably anxious demeanor throughout his testimony. At
times, even coming across angry in his testimony and minimizing his conduct."
The judge also discussed his concerns about appellant's substance abuse
when considering the totality of the evidence:
[A]t the outset of his testimony . . . [counsel] asked
[appellant] whether or not he's ever had a problem with
substance abuse. And [appellant] denied that. Says he
hasn't had a problem with substance abuse. Actually,
even doubled down on it after I asked for some
clarification and still maintains that.
Quite frankly, given—when I view that denial
that he's ever had a problem with substance abuse
through the lens of the totality of the evidence, I simply
don't find that credible. It's actually very concerning
because it's completely contrary to the findings of his
own psychiatrist who's treated him for a number of
years, that being Dr. Siragusa.
. . . At the request of [appellant] and his counsel,
I admitted Dr. Siragusa's report 2021 psychiatric
evaluation of [appellant] into evidence. And the
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diagnostic impression of Dr. Siragusa in his report is
unspecified anxiety disorder, history of adjustment
disorder with mixed anxiety and depressed mood, and
opioid-use disorder severe, in full sustained remission.
That is completely contrary to [appellant]'s own
testimony. I infer from that that [appellant] remains
and perhaps is in some level of denial of . . . either a
current or a past substance-abuse disorder. And that
. . . he would even offer and wants this [c]ourt to accept
certain aspects of Dr. Siragusa's opinion, when
[appellant] himself disagrees with one of the actual
diagnoses of Dr. Siragusa I find to be quite remarkable.
The judge further discussed Dr. Siragusa's report:
I have other concerns about Dr. Siragusa's report.
You know, quite frankly, I do not accept the opinion of
Dr. Siragusa and his report. Let's make this clear. Dr.
Siragusa was not called to testify as a witness. He
wasn't placed under cross-examination so that his
opinion, his findings, the basis for his opinion could be
more fleshed out and examined by [the State] on cross-
examination.
And I'm not obligated to accept the opinion of Dr.
Siragusa that whatever psychiatric conditions that
[appellant] suffers from or has suffered from in the past.
I do not accept his opinion that there's nothing about
those conditions presently that would not interfere with
or handicap [appellant] in the safe handling of firearms
presently.
Quite frankly, given the level of past psychiatric
treatment, medication for anxiety disorder, adjustment
disorder with mixed anxiety and depressed mood, the
history of severe opioid-use disorder, the history of
selling narcotics to an undercover officer as well as a
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[confidential informant] on more than one occasion, it
almost boggles my mind that the conclusion of Dr.
Siragusa and the opinion of Dr. Siragusa is that it would
be safe not only for the public.
. . . [M]y concern here, you know, isn't just the
safety of others besides [appellant]. It's [appellant]
himself.
After placing his findings on the record, the judge found the State had met
its burden by a preponderance of the evidence and granted the motion to revoke
appellant's FPIC and compel the sale of his firearms. This appeal follows.
"We review a trial court's legal conclusions regarding firearms licenses de
novo." In re N.J. Firearms Purchaser Identification Card by Z.K., 440 N.J.
Super. 394, 397 (App. Div. 2015) (citing In re Sportsman's Rendezvous Retail
Firearms Dealer's License, 374 N.J. Super. 565, 575 (App. Div. 2005)).
However, our review of a trial court's factual findings on such matters is
"limited." In re Z.L., 440 N.J. Super. 351, 355 (App. Div. 2015). "Ordinarily,
an appellate court should accept a trial court's findings of fact that are supported
by substantial credible evidence." In re Return of Weapons to J.W.D., 149 N.J.
108, 116 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607
(1989)). We also defer to the trial judge's credibility findings. State v.
Kuropchak, 221 N.J. 368, 382 (2015) (noting we "should defer to trial courts'
credibility findings that are often influenced by matters such as observations of
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the character and demeanor of witnesses and common human experience that
are not transmitted by the record").
Appellant first contends the trial court erred by refusing to accept Dr.
Siragusa's report as "satisfactory proof" that he is no longer suffering from a
disability that would interfere with his handling of firearms, because the statute
does not require live testimony. We disagree. A trial judge may accept or reject
an expert report and weigh it appropriately. Maison v. N.J. Transit Corp., 460
N.J. Super. 222, 232 (App. Div. 2019); see also State v. S.N., 231 N.J. 497, 514
(2018) ("[R]egardless of whether the evidence is live testimony, a videotaped
statement, or documentary evidence, deference is owed to the trial court 's
determinations of fact and credibility.") (citing State v. S.S., 229 N.J. 360, 379
(2017)). There may be instances where a judge may accept a psychiatric
evaluation without having the doctor testify and be subject to cross-examination,
but here the judge detailed his reasons for rejecting the report's conclusions,
particularly in light of appellant's own testimony. We find no abuse of discretion
in that decision.
Appellant next argues the judge erred by failing to make specific findings
as to how appellant's past conduct presently reflects on his fitness for firearms
ownership. We reject this argument as belied by the record. The judge fully
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explained the serious concerns raised by appellant's current prescribed
medication use and mental health issues and his denial of any substance abuse,
which was "completely contrary to his own doctor." This lack of insight and
appreciation for the seriousness of his conduct, along with his denial of a
substance abuse disorder, amplified the judge's concern about appellant's
"egregious disregard for the law that[ was] very recent." Thus, the record plainly
reflects the judge's careful consideration of appellant's current mental health and
wellbeing in light of his prior history.
Appellant also contends N.J.S.A. 2C:58-3(c)(5) is unconstitutionally
vague, overbroad and violative of United States Supreme Court case law. We
rejected this argument in In re M.U.'s Application for a Handgun Purchase
Permit, 475 N.J. Super. 148 (App. Div. 2023), and discern no reason to deviate
from our previous decision. We also find without merit appellant's contention
this matter should be stayed pending resolution of the petition for certification
in M.U. because he has not shown any of the requisite elements to justify a stay.
See Garden State Equality v. Dow, 216 N.J. 314, 320 (2013); Crowe v. De
Gioia, 90 N.J. 126, 132-34 (1982) (an applicant seeking a stay must demonstrate
his claim rests on settled law and has a reasonable probability of succeeding on
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the merits, the relief is needed to prevent irreparable harm, a balancing of the
hardships favors relief, and the relief is consistent with the public interest.)
Affirmed.
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