Opinion
DOCKET NO. A-3211-10T4
11-18-2011
IN THE MATTER OF THE MOTION TO REVOKE THE FIREARMS PURCHASER IDENTIFICATION CARD AND RETIRED LAW ENFORCEMENT OFFICER'S PERMIT TO CARRY A HANDGUN BY ANTHONY F. PASQUARELLI.
Glen L. Schemanski, attorney for appellant Anthony F. Pasquarelli. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Glen L. Schemanski, attorney for appellant Anthony F. Pasquarelli.
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This is a gun permit case involving a retired law enforcement officer who formerly was a Deputy United States Marshall. The Law Division, without an evidentiary hearing, stripped appellant Anthony F. Pasquarelli of his firearms purchaser identification card (FPIC) and privilege to carry a handgun pursuant to N.J.S.A. 2C:39-6(L). We reverse and remand for further proceedings.
We will use the convention established in In re Carry Permit of Andros, 403 N.J. Super. 271, 272 n.1 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009), of capitalizing the letter L for ease of understanding in a written opinion.
I.
We gather the following facts from the paper record. In October 2010, the Burlington County Prosecutor initiated proceedings — by notice of motion — in the Law Division to revoke the FPIC and retired law enforcement officer's identification card (N.J.S.A. 2C:39-6(L)(4)) that had been issued to Pasquarelli. The basis for this action was the Prosecutor's belief that Pasquarelli had violated N.J.S.A. 2C:58-3(c) because he "knowingly falsified his various gun permit applications." This, according the Prosecutor's application, permitted it to seek revocation relief pursuant to N.J.S.A. 2C:58-3(f), and N.J.S.A. 2C:39-6(L)(6). Under the former statute "[t]he county prosecutor of any county, the chief police officer of any municipality or any citizen may apply to [the Superior Court] at any time for the revocation of such [FPIC]." Under the latter statute "[a] judge of the Superior Court may revoke a retired officer's privilege to carry a handgun pursuant to this subsection for good cause shown on the application of any interested person."
In light of these plain legislative references, we note the incongruity of the Prosecutor's motion, which identified the movant as the "State of New Jersey." We also observe that the motion characterized the proceeding as a civil action. Puzzlingly, as a civil action, we cannot account for how the Prosecutor utilized Grand Jury subpoenas to obtain Pasquarelli's medical records from a physician and prescription medication data from a CVS pharmacy.
The Prosecutor alleged that Pasquarelli had knowingly falsified answers in more than twenty gun permit applications spanning more than twenty-three years, which asked if Pasquarelli had "ever been attended, treated, or observed by a doctor or psychiatrist, or at any hospital or mental institution on an in-patient or out-patient basis for any mental or psychiatric condition." On each application Pasquarelli had responded "No," to the question about having a mental or psychiatric condition. The Prosecutor contended that it had evidence to the contrary, contained in Pasquarelli's almost-three-year-old deposition testimony given in an unrelated civil action in 2007, which came unsolicited to the Prosecutor's attention from the attorney who represented Pasquarelli's adversary. Excerpts from the deposition indicated that Pasquarelli had been experiencing an anxiety disorder since 1981, and had sought treatment and medication therefor on several occasions.
Chang v. Pasquarelli, Superior Court of New Jersey, Burlington Vicinage, Docket No. L-898-07.
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The Law Division heard oral argument on the Prosecutor's motion and considered several documentary pieces of evidence, including excerpts from the Chang v. Pasquarelli deposition and a written report from Pasquarelli's psychiatric expert. Testimony was not offered by either side. The Prosecutor contended that Pasquarelli had sought medical treatment for his anxiety condition and was still being medicated with Valium. Pasquarelli's attorney did not dispute his client's medical history, but contended that Pasquarelli did not understand his anxiety translated into a mental or psychiatric condition. He further argued that the Valium was used as a muscle relaxant for a back injury and the applications' question about mental health issues permitted a reasonable person to answer "No." The attorney suggested that even if his client's answers over the years were incorrect, the Prosecutor's proofs still did not demonstrate that Pasquarelli had engaged in knowing falsifications.
Without inviting any live testimony from Pasquarelli or from any other witness, the court found that Pasquarelli "had this [anxiety] condition since 1981, a long history of getting help and treatment, a long history of taking prescriptions for this. But somehow he says, 'Well, I didn't know I should have filled that out.' That's what I can't accept here." The court made clear that "the issue is not that [Pasquarelli] has a condition and not that [Pasquarelli] properly sought treatment for it," but that Pasquarelli "never disclosed it on any of these application forms." Furthermore, the court held, "I think there is and I find that there is a knowing falsification here."
Accordingly, the court entered an order on February 17, 2011, revoking the FPIC and retired law enforcement officer's permit to carry a handgun. Additionally, Pasquarelli was ordered to surrender his FPIC and current retired law enforcement officer's identification card to the Mount Laurel police department and make arrangements for the orderly surrender of his firearms. This appeal followed.
II.
A gun permit revocation proceeding is quintessentially a judicial, not an administrative, proceeding. Because it resembles an appeal from the denial of an application for a permit to purchase firearms or a permit to carry a handgun, all of the trappings of due process of law must be present. See Weston v. State, 60 N.J. 36 (1972); In re Dubov, 410 N.J. Super. 190 (App. Div. 2009). Notice, an opportunity to be heard, and the ability to present testimony are paramount.
A judicial declaration that a gun permit holder is disqualified pursuant to N.J.S.A. 2C:58-3(c) involves, by necessity, a fact-sensitive analysis. The lack of an evidentiary hearing deprived the Law Division of the ability to accurately answer the question that was essential to its conclusion: whether Pasquarelli's answers on the relevant gun permit applications were knowingly false.
Although directed primarily towards the state of mind of a defendant for purposes of assessing culpability for an offense, N.J.S.A. 2C:2-2(b)(2) defines knowingly as follows:
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.When the determination of a state of mind such as acting knowingly is an essential element of a disposition, a paper record is ordinarily eschewed. See Auto Lenders Accept. Corp. v. Gentilini Ford, Inc., 181 N.J. 245, 271-72 (2004); Wilson v. Amerada Hess Corp., 168 N.J. 236, 253-54 (2001). We are unable to condone such a process that resulted in the revocation in this case.
The record plainly demonstrates the inaptness of resolving the dispute between the Prosecutor and Pasquarelli without at least affording — even encouraging (but not compelling) — Pasquarelli's testimony to explain his thought process in completing the multiple gun permit applications. In this way, not only would the Law Division benefit from the face-to-face observations of the witness, but its exposure to the direct and cross-examination of witnesses would markedly enhance the credibility assessments needed to be made in this case as well as fortify its assessment of Pasquarelli's state of mind.
The Prosecutor's brief on appeal ironically suggests a compelling argument for such live testimony because it confirms that Pasquarelli's state of mind in this matter was founded upon once-removed documentary evidence:
[T]he revocation was not based upon the existence of a mental or physical condition that would make it unsafe for [Pasquarelli] to handle firearms, but rather upon [Pasquarelli's] continuous knowingBecause we cannot agree that such a basis for a gun permit revocation was contemplated by the Legislature's commitment of such proceedings to the judicial processes of the Superior Court, the Law Division's order of February 17, 2011 must be vacated and the matter remanded for an evidentiary hearing.
falsifications. As such, there was no need for medical testimony establishing that [Pasquarelli] suffered from anxiety to the extent that it was unsafe for him to handle firearms. Rather, [Pasquarelli's] deposition_testimony_[in_Chang_v. Pasquarelli] established his state of mind and the knowingness of his falsification.
[(Emphasis added).]
In so ordering a remand, we emphasize that we take no position on the ultimate outcome of the Prosecutor's motion. In like vein, we do not circumscribe the manner of conducting the evidentiary hearing or the witnesses who may be permitted to testify, leaving those details to the principled discretion of the Law Division. At the conclusion of the evidentiary hearing, which may or may not achieve the Prosecutor's goal, an aggrieved party may seek appropriate review.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.