IN THE MATTER OF THE DENIAL OF THE APPLICATION OF M.I., ETC. (GPA-0002-20, HUNTERDON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0910-20
IN THE MATTER OF THE
DENIAL OF THE APPLICATION
OF M.I. FOR A FIREARMS
IDENTIFICATION CARD.
_____________________________
Submitted December 8, 2021 – Decided February 2, 2022
Before Judges Hoffman, Whipple, and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Hunterdon County, Docket No. GPA-
0002-20.
Wronko Loewen Benucci, attorneys for appellant M.I.
(James R. Wronko, of counsel and on the brief).
Renee Robeson, Hunterdon County Prosecutor,
attorney for respondent State of New Jersey (Jeffrey
L. Weinstein, Assistant Prosecutor, on the brief).
PER CURIAM
Petitioner M.I. appeals from an order denying his firearms appeal.
Petitioner applied for a Firearms Purchaser Identification Card (FPIC) in
November 2019. In January 2020, the Tewksbury Township Police
Department denied the application. The Superior Court denied petitioner's
appeal in December 2020. We affirm.
The record informs us that petitioner applied for the FPIC with the
Tewksbury Police Department on November 1, 2019. On January 3, 2020,
Chief Timothy P. Barlow denied petitioner's application citing the public
health, safety, or welfare pursuant to N.J.S.A. 2C:58-3(c)(5). Petitioner
appealed and the trial court heard the matter de novo on September 23, 2020.
There, Barlow testified for the state and petitioner testified on his own
behalf. Barlow worked for the Tewksbury Police Department and served as
Chief for two years, where he reviewed approximately 150 FPIC applications.
This was his first denial. Although Barlow never personally met petitioner, he
reviewed petitioner's application and determined it should be denied.
Before Barlow reviewed the application, the police searched several
databases for relevant information. When petitioner applied for his FPIC card,
he, like every applicant, submitted fingerprints to the New Jersey Firearms
Application and Registration System (FAR). The fingerprints were checked
against state criminal history and mental health records. The police then
performed a name search against a nationwide criminal database, verified the
applicant's residency and employment, checked motor vehicle records, and
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searched the Automated Traffic System (ATS), Automated Criminal System
(ACS), juvenile central registry, domestic violence registry, and local
databases used by municipal courts. Outside of the automated searches,
Detective Sergeant Hanft performed additional searches and completed the
department's checklist for FPIC applicants.
After Hanft finished his checks, Barlow reviewed petitioner's
application. Barlow noted four municipal court matters: three involving
ordinance violations at petitioner's restaurant, two of which he pleaded guilty
to and one that was dismissed; and one citizen complaint from an employee at
petitioner's restaurant in July 2013. The latter complaint accused petitioner of
grabbing the employee's arm when he approached petitioner's table, yelling
profanities at the employee, and following the employee around the restaurant.
This citizen complaint was dismissed.
Barlow noted two domestic disputes in the Tewksbury database. First,
in December 2017, petitioner's then-girlfriend said petitioner choked her, so
her sister called Mount Olive police. Petitioner's then-girlfriend recanted the
allegation via text message to her sister, saying she was okay. Mount Olive
forwarded the call to the Tewksbury Police Department, which arrived with
two units. Upon arrival, officers met with petitioner and his then-girlfriend,
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and he denied anything physical but admitted they were having a verbal
disagreement. The officer noted petitioner had alcohol on his breath. The
alleged victim told officers petitioner did not choke her, and she just wanted to
go home, but petitioner would not let her because she had been drinking.
There were no visible injuries, both parties signed the victim notification form
and declined to request a restraining order. Petitioner ripped up his copy of
the victim notification form.
The second domestic event occurred on January 23, 2019. Barlow
recalled reading that report within seventy-two hours of that date; thus, Barlow
heard about that incident before reviewing the FPIC application. That night,
the Tewksbury police received a phone call about a possible assault at
petitioner's home. The officers met the alleged victim in Oldwick, after she
had left petitioner's home. The victim looked upset, had a scratched and
swollen lip, and stated petitioner had assaulted her while she was at his home.
The alleged victim and the police went back to headquarters for more details
about the incident and to photograph her injuries.
Petitioner and the alleged victim had been at his house drinking wine
and watching movies; she recalled him drinking multiple bottles. The victim
reported she had gone to bed, but he had stayed up a bit longer. Then, he came
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up the stairs and started making "obscene" comments towards her, shook her
by the shoulders, and struck her in the face. While she ran away, petitioner
chased her, allegedly catching her, and pushing her down the stairs. She stated
he then chased her, punching and kicking her as they ran. The victim was
attempting to get to her car outside, through the garage, where she fell. T he
victim admitted the conditions were slippery. She then got into her car and
called the police.
Barlow also reviewed petitioner's driving record and abstract. Petitioner
had numerous motor vehicle violations, including a Driving While Intoxicated
(DWI), five speeding tickets, one for disregarding a stop sign, a seatbelt
violation, failure to follow a traffic control device, and unsafe operation.
Petitioner's license was suspended three times, once for too many accumulated
points, once for the DWI, and once for an unpaid insurance surcharge. Barlow
concluded petitioner had a long history of disregarding motor vehicle laws in
New Jersey.
After considering petitioner's whole application, Barlow denied granting
him an FPIC, concluding that doing so would not be in the best interest of the
health, safety, and welfare of the general public. Petitioner sent Barlow a
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letter on January 17, 2020, indicating he would appeal the denial of his
application.
During cross-examination at the September 23, 2020, hearing, Barlow
conceded petitioner's license had not been suspended since 1991; thus,
between 2010 and 2020, petitioner only failed to wear a seatbelt in 2013,
operated a vehicle unsafely in 2015, and failed to observe a traffic control
device in 2019. Barlow also acknowledged he did not personally meet with
any of the victims of the domestic disputes and that the officers could not tell
if the second victim's photographed injuries were caused by petitioner, or from
her falling on ice.
Barlow never spoke with petitioner, over the phone or in person,
regarding his FPIC application. Barlow made his decision based on the
totality of the circumstances, while considering the general welfare of the
public. The court affirmed the denial on September 24, 2020.
Three weeks later, petitioner moved to vacate the court's denial, after
learning that another lawyer at the law firm representing petitioner was
representing the judge's niece in an unrelated matter. Petitioner's counsel
asserted a conflict could exist because he had cases before the judge, and his
firm was representing her niece. Counsel had not informed petitioner of any
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potential conflict prior to the FPIC denial appeal hearing and asserted
petitioner would have requested a different judge, if he knew.
The court denied the motion and issued a written decision on the same
day. This appeal followed.
Petitioner first argues that the trial court erred by denying his motion to
vacate the decision because the trial court should have recused itself on its own
motion. Petitioner alleges an appearance of impropriety because the judge
heard this FPIC appeal brought by the firm representing the judge's niece in an
unrelated matter. We disagree.
"The Judiciary derives its authority from the State Constitution but earns
the public's confidence through acts of unquestioned integrity." DeNike v.
Cupo, 196 N.J. 502, 506; see also In re Advisory Letter No. 7-11 of the Sup.
Ct. Advisory Comm., 213 N.J. 63, 70 (2013) (recognizing that "[c]ertainly, the
public will lose faith in our justice system if it believes that judges are hearing
cases despite conflicting interests that strain their ability to be impartial").
Rule 1:12-2 authorizes a party to file a motion seeking to disqualify the judge
presiding over the case. "The motion for disqualification must state the
reasons supporting the moving party's position, [R. 1:12-2], and must be made
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directly to the judge presiding over the case." P.M. v. N.P., 441 N.J. Super.
127, 140 (App. Div. 2015) (citing State v. McCabe, 201 N.J. 34, 45 (2010)).
Pursuant to Rule 1:12-1(a), a judge is disqualified from sitting in any
matter if the judge "is by blood or marriage the second cousin of or is more
closely related to any party to the action[.]" Under Rule 1:12-1(g), the judge is
disqualified "when there is any other reason which might preclude a fair and
unbiased hearing and judgment, or which might reasonably lead counsel or the
parties to believe so." Canon 3(C)(1) of the Code of Judicial Conduct provides
that "[a] judge should disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned . . . ." The rules, thus,
"address actual conflicts and bias as well as the appearance of impropriety."
McCabe, 201 N.J. at 43. The standard to assess whether a judge's personal
behavior creates an appearance of impropriety is whether "an individual who
observes the judge's personal conduct [would] have a reasonable basis to doubt
the judge's integrity and impartiality[.]" In re Reddin, 221 N.J. 221, 223
(2015).
This standard to assess defendant's request for recusal was set forth in
DeNike: "[w]ould a reasonable, fully informed person have doubts about the
judge's impartiality?" 196 N.J. at 517. The standard calls for an
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individualized and objective consideration of the facts in a case. See id. at
516-18. DeNike did not set forth any bright line rules. See ibid. It noted,
however, the record did not show that the judge "conducted the trial or post-
trial proceedings in a biased or unfair way. To be clear, though, 'it is not
necessary to prove actual prejudice on the part of the court' to establish an
appearance of impropriety; an 'objectively reasonable' belief that the
proceedings were unfair is sufficient." Id. at 517 (quoting State v. Marshall,
148 N.J. 89, 279 (1997)). Still, it is inappropriate for a judge to withdraw from
a case "unless the alleged cause of recusal is known by [the judge] to exist or
is shown to be true in fact." Hundred E. Credit Corp. v. Eric Schuster Corp.,
212 N.J. Super. 350, 358 (App. Div. 1986).
The decision to grant or deny the motion for disqualification rests
entirely within the sound discretion of the trial judge. Chandok v. Chandok,
406 N.J. Super. 595, 603 (App. Div. 2009). "We review de novo whether the
proper legal standard was applied" in deciding the motion. McCabe, 201 N.J.
at 45.
Turning to this case, the judge's niece was not a party to the action.
Furthermore, a fully informed, reasonable person would not view the judge's
niece being represented by the same firm as petitioner's counsel in an unrelated
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matter as creating an issue of partiality. DeNike, 196 N.J. at 517. Thus, we
discern no error in the trial court's declining to recuse itself.
Petitioner next argues that the trial court erred denying his appeal of the
denial of his FPIC application because (1) Barlow's testimony and the hearsay
reports were insufficient evidence for the trial court to affirm the denial; and
(2) Barlow failed to grant petitioner a pre-denial meeting. We reject both
arguments.
An applicant is not automatically entitled to receive an FPIC card. In re
Dubov, 410 N.J. Super. 190, 198 (App. Div. 2009). N.J.S.A. 2C:58-3(c)(5)
states, "[n]o handgun purchase permit or [FPIC] shall be issued . . . [t]o any
person where the issuance would not be in the interest of the publi c health,
safety or welfare . . . ." This FPIC disqualifier "provision is 'intended to relate
to 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.'" In re Osworth, 365 N.J. Super.
72, 79 (App. Div. 2003) (quoting Burton v. Sills, 53 N.J. 86, 91 (1968)). "This
broadly worded disqualification criterion eludes precise definition. We are
satisfied, however, that it must be liberally construed . . . ." State v. Cordoma,
372 N.J. Super. 524, 534 (App. Div. 2004).
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"[A] judicial declaration that [a petitioner] poses a threat to the public
health, safety or welfare involves, by necessity, a fact-sensitive analysis[.]" In
re Forfeiture of Pers. Weapons & Firearms Identification Card Belonging to
F.M., 225 N.J. 487, 505 (2016) (quoting Cordoma, 372 N.J. Super. at 535).
Ordinarily, [we] should accept a trial court's findings
of fact that are supported by substantial credible
evidence. Deference to a trial court's fact-findings is
especially appropriate when the evidence is largely
testimonial and involves questions of credibility.
Thus, [we] should not disturb a trial court's fact-
findings unless those findings would work an
injustice.
[In re Return of Weapons to J.W.D., 149 N.J. 108,
116-17 (1997) (internal citations omitted).]
Thus, we reject petitioner's argument that Barlow's testimony and the hearsay
reports on which he relied upon were insufficient evidence for the trial court to
affirm the denial of his FPIC.
The chief's decision to deny an application is subject to de novo review
by the Law Division, which means the court "contemplates introduction of
relevant and material testimony and the application of an independent
judgment to the testimony by the reviewing court." Weston v. State, 60 N.J.
36, 45 (1972). The police chief bears the burden of establishing the existence
of good cause for the denial by a fair preponderance of the evidence. Id. at 46.
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In evaluating the facts and the reasons given for rejection, "the court should
give appropriate consideration to the Chief's investigative experience and to
any expertise he appears to have developed in administering the statute." Ibid.Application "review must be practical as well as responsible to the public." In
re Application of Clark, 257 N.J. Super. 152, 154 (Law Div. 1992).
The trial court may consider hearsay evidence, provided its findings are
not entirely based upon hearsay evidence. Weston, 60 N.J. at 51. Evidence
that ordinarily would be excludable as hearsay may be admissible in a gun
permit hearing if it is "of a credible character—of the type which responsible
persons are accustomed to rely upon in the conduct of their serious affairs
. . . ." Ibid.; see also Dubov, 410 N.J. Super. at 202. Hearsay evidence must,
however, be corroborated by substantive and competent proof. Weston, 60
N.J. at 51; see also In re Z.L., 440 N.J. Super. 351, 358 (App. Div. 2015)
(holding that hearsay from police reports was admissible where the petitioner
corroborated their contents with his in-court testimony).
The trial court's findings must be supported by a residuum of legally
competent evidence. Ibid.; see also In re Toth, 175 N.J. Super. 254, 262 (App.
Div. 1980). "The residuum rule does not require that each fact be based on a
residuum of legally competent evidence but rather focuses on the ultimate
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finding or findings of material fact." Ruroede v. Borough of Hasbrouck
Heights, 214 N.J. 338, 359 (2013). If this standard is not met, the denial of a
gun permit application should be reversed. See Dubov, 410 N.J. Super. at 202-
03.
Here, there was ample competent evidence in the record for the court to
affirm the denial of petitioner's FPIC application. The trial court considered
petitioner's testimony, Barlow's testimony, and the following items:
petitioner's application; checklists for reviewing petitioner's background;
police incident reports from Red Bank and Tewksbury, photos, and a victim
statement from the various police encounters; petitioner's driving abstract; and
Barlow's letter rejecting petitioner's application. Barlow testified that "in
reviewing the totality of the circumstances, it was his opinion that it would not
be in the best interest of the health, safety, and welfare of the public to approve
[petitioner's] application, especially when considering that alcohol was
involved in the two incidents at the [petitioner's] residence." The court found
Barlow's testimony credible.
The court made the following additional findings. Petitioner's testimony
corroborated the police report, particularly that the petitioner " engaged in a
verbal argument with an intimate partner while intoxicated, resulting in a call
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to the police." The court added that this incident, "coupled with [petitioner]'s
act of ripping up the Victim Notification Form in front of the officers, causes
this court to question [petitioner's] ability to practice self-control." The court
thus found that petitioner "demonstrated a pattern of inability to control his
anger while intoxicated. In both instances, whether verbal or physical, the
arguments in each case had risen to the level that law enforcement was
required to intervene." The court did not find that applicant's driving record
alone was sufficient to affirm the denial of the FPIC. The court did find,
however, that petitioner's "driving record further illustrates a lack of control
and a potential attitude of disrespect for the law."
Because petitioner's and Barlow's testimony corroborated the hearsay
evidence and petitioner did not dispute the contents of the police reports, the
trial court's findings are not entirely based on hearsay evidence and are
supported by a "residuum of legal and competent evidence." Weston, 60 N.J.
at 51-52. Thus, we discern no reason to disturb the trial court's ruling.
We next reject petitioner's argument that Weston required Barlow to
directly speak with him about his application. The standards for reviewing an
application for a FPIC and handgun purchase permit are well-settled. A
municipal police chief has the discretion, "subject to standards which have
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been adjudged constitutionally adequate," to grant or deny an individual's
application for a handgun permit or identification card. Id. at 43; see also
N.J.S.A. 2C:58-3(d). "'The function of the Police Chief as the local
administrative official charged with responsibility for the original decision to
grant or withhold the [FPIC] involves largely the exercise of an informal
discretion,' based upon the information disclosed by a 'good faith
investigation.'" In re Application of Boyadjian, 362 N.J. Super. 463, 475
(App. Div. 2003) (alteration in original) (quoting Weston, 60 N.J. at 43, 45).
When reviewing an application, a police chief must consider the
interests of the community and must not make a decision that is "arbitrary,
capricious or unreasonable." Boyadjian, 362 N.J. Super. at 478. After
completing the investigation, if the police chief decides to deny the
application, there is "no obligation to hold a trial-type hearing before doing
so." Weston, 60 N.J. at 43. The applicant should, however, have "an
opportunity . . . to discuss the matter with the Chief, to be informed of the
reasons for the denial and to offer any pertinent explanation or information for
the purpose of meeting the objections being raised." Id. at 44.
In Osworth, we emphasized the importance of a pre-hearing explanation
from the chief so that an applicant has a fair opportunity to prepare his case
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and arrange for witnesses. 365 N.J. Super. at 81. The purpose of the pre-
decision conference "is not only to inform the applicant of the reasons for the
police chief's denial, but also to afford the applicant an opportunity to
convince the chief, by submission of additional information and informal
discussion, to change his [or her] decision, thus obviating the need for judicial
review." Dubov, 410 N.J. Super. at 200-01, n.2.
The Court in Weston, however, explained that a de novo hearing
"contemplates introduction of relevant and material testimony and the
application of an independent judgment to the testimony by the reviewing
court." 60 N.J. at 45. Thus, a de novo hearing "compensates constitutionally
for procedural deficiencies before the administrative official." Ibid. (citing
Jennings v. Mahoney, 404 U.S. 25 (1971)). Here, although Barlow did not
give petitioner a chance to meet and explain the reason for his denial, the de
novo hearing in the trial court satisfied petitioner's procedural due process
rights. Id. at 45.
Affirmed.
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