Opinion
DOCKET NO. A-5051-12T4
08-12-2014
IN THE MATTER OF THE SEIZURE OF WEAPONS OF JOSEPH W. RADLER
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for appellant State of New Jersey (Daniel A. Matos, Assistant Prosecutor, of counsel and on the brief). Respondent Joseph W. Radler has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FO-11-68-13. Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for appellant State of New Jersey (Daniel A. Matos, Assistant Prosecutor, of counsel and on the brief). Respondent Joseph W. Radler has not filed a brief. PER CURIAM
The State, represented by the Mercer County Prosecutor's Office, filed a petition in the Family Part under the Prevention of Domestic Violence Act (Domestic Violence Act), N.J.S.A. 2C:25-17 to 2C:25-35, seeking the forfeiture of firearms and ammunition owned by Joseph W. Radler, together with all permits, licenses, and authorizations for the use, possession, or ownership of weapons pursuant to N.J.S.A. 2C:25-21d(3)(c). At a hearing based on stipulated facts, the Family Part denied the State's forfeiture petition, finding that the State failed to show, by a preponderance of the evidence, that ownership and possession of these firearms and ammunition by Radler presented a threat to public health, safety, and welfare.
The Family Part ordered all weapons, ammunition, and other related items originally seized by the State to be returned to Radler. Upon the State's motion, the Family Part stayed the execution of its order pending the State's motion for leave to seek appellate review before this court. By leave granted, the State now argues the Family Part erred and should be reversed. After reviewing the record developed before the trial court, and mindful of our standard of review, we agree with the State and reverse.
I
In her domestic violence complaint that led the Family Part to issue a temporary restraining order (TRO) against her former husband, Radler's first wife alleged that Radler told "their children that he wanted [their mother] dead." She claimed that Radler had made several "harassing postings" on Facebook since their divorce in 2004. The record before us shows that the Family Part issued a final restraining order (FRO) against Radler in 2003, which was subsequently dismissed after the entry of a final judgment of divorce.
However, Radler was charged with fourth degree contempt under N.J.S.A. 2C:29-9b in March 2003, while the FRO was still legally viable and enforceable. The indictable charge was downgraded to a disorderly persons offense and remanded to municipal court, where the charge was eventually dismissed in April 2004. Radler's first wife described a history of domestic violence while they were married that included "physically and mentally abusive" behavior by Radler while she was pregnant. She certified in her domestic violence complaint that Radler once "held a loaded gun [to her] head."
On October 12, 2012, detectives from the Mercer County Sheriff's Office responded to Radler's residence to serve him with a copy of a TRO obtained by his former wife under the Domestic Violence Act. As authorized under N.J.S.A. 2C:25-21d(1)(b), the detectives seized eleven different kinds of firearms, including pistols, shotguns, carbines, and rifles, as well as an assortment of blade weapons, including two bayonets with holders.
The detectives also seized thirty different kinds of ammunition and magazines, including "[t]wo .22 [caliber] high capacity magazines capable of holding 30 rounds of ammunition." These two "high capacity magazines" hold twice the number of rounds authorized under N.J.S.A. 2C:39-1y, which defines a "[l]arge capacity ammunition magazine" as "a box, drum, tube or other container which is capable of holding more than 15 rounds of ammunition to be fed continuously and directly therefrom into a semi-automatic firearm."
We note, in fairness, that the Family Part dismissed the TRO on January 9, 2013, at the request of Radler's first wife. The State included as part of the appellate record a copy of the order of dismissal entered by the Family Part reflecting that the plaintiff (Radler's first wife) was thoroughly questioned by the court to ensure she was acting voluntarily and without coercion. The order also contained clear language indicating that the plaintiff was told, and she acknowledged understanding, that "withdrawals are not prejudicial and if she may need protection in the future, she may apply for a new restraining order[.]"
II
On November 30, 2012, a Mercer County Grand Jury indicted Radler on one count of fourth degree possession of "two large capacity ammunition magazines," in violation of N.J.S.A. 2C:39-3j. By order dated February 28, 2013, the Superior Court, Criminal Part, in Mercer County, granted Radler's application for admittance into Pretrial Intervention (PTI), "[i]n accordance with the provisions of N.J.S.A. 2C:43-12 & 13 & R. 3:28, and upon the recommendation of the PTI Director and with the consent of the Prosecutor[.]" As a result, the criminal indictment against Radler was "postponed for a period of 36 months, beginning 2/28/13."
The Mercer County probation officer who interviewed and recommended Radler for admission into PTI noted that Radler "admitted to his involvement in this instant offense." The probation officer described Radler as a "married 41 year old father of six children." Four of his children were from his first marriage, ranging in age from thirteen to eighteen years old. He has two children with his current wife, ages eight and five. Radler is a high school graduate and has been employed with the same employer for the past twenty-two years. As a condition of admittance into PTI, Radler was ordered to pay a number of statutory fees totaling $125, ordered to perform forty hours of community service, and directed "to report to Mercer County Probation" on a regular basis, commencing on February 28, 2013.
The State's forfeiture petition came before the Family Part on this stipulated record. No witnesses were called by either side. Without citation to legal authority, the Family Part merely stated: "I don't find this [referring to Radler's admission into PTI for the fourth degree offense of possession of unlawful high capacity magazine] to be a bar nor that Mr. Radler himself to be a threat to health, safety, and welfare simply based upon the pendency -- of an indictable offense."
Because the trial court's decision was based entirely on the judge's application of a legal standard to undisputed facts, our standard of review is de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). We do not owe any deference to the trial court's legal interpretation or application of a legal standard to undisputed facts. Zabilowicz v. Kelsey, 200 N.J. 507, 512-513 (2009).
As a key part of the Domestic Violence Act, the Legislature provided, in relevant part, that "the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the court determines the owner is not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3c." N.J.S.A. 2C:25-21d(3) (emphasis added). The applicable standard here requires the court to grant the State's forfeiture petition if it establishes, by a preponderance of the evidence, that the return of the weapons seized "would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c(5).
In applying this standard to the uncontested facts before us, we emphasize that our Supreme Court has held that "the Legislature intended that courts not return guns to a defendant in a domestic violence action, even after the dismissal of the complaint, if the court finds that the defendant poses a threat to public health, safety, or welfare." In re Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997) (emphasis added). We reached a similar conclusion in determining the importance or relevance of dismissed criminal charges. In re Osworth, 365 N.J. Super. 72 (App. Div. 2003), certif. denied, 170 N.J. 310 (2003). Specifically citing In re Return of Weapons to J.W.D., we held that "the dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm or recover one previously taken by the police." Id. at 78.
Against this standard and the undisputed record, we are satisfied the State has met its burden of proof under N.J.S.A. 2C:25-21d(3) and N.J.S.A. 2C:58-3c(5) to warrant the forfeiture of the arsenal of weapons seized from Radler's residence by the detectives who served the TRO. Radler has a history of domestic violence that has resulted in the issuance of one FRO by a Family Part judge. We infer from this that Radler was found to have committed an act of domestic violence after a plenary hearing in which he had the right to dispute the ex parte allegations that led the court to issue the preliminary TRO.
Equally troubling is the fact that Radler admitted to his PTI probation officer to knowingly violating our State's firearm laws prohibiting the possession of high capacity magazines. Our nation's recent history is stained with the blood of far too many innocent victims who have died at the hands of people using these high capacity magazines. The Chancery Division, Family Part has found that
the illegal possession of the weapon, based upon violation of the laws governing use, possession or ownership of firearms, which constitutes grounds for forfeiture under [N.J.S.A.] 2C:25-21(d). The knowing violation of the gun laws in and of itself is a sufficient statutory basis for the court to order a forfeiture of seized weapons, without the necessity of the court also finding that the defendant is unfit or a danger to the public in general or persons in particular.
[State v. 6 Shot Colt .357, 365 N.J. Super. 411, 417 (Ch. Div. 2003) (emphasis added).]
Forfeiture under N.J.S.A. 2C:25-21d(3) is warranted here because of Radler's alleged history of domestic violence involving threats of using firearms and his admitted display of an untenable disrespect for our State's firearm regulations. The order of the Family Part denying the State's petition is reversed, and the matter is remanded for the entry of judgment of forfeiture with respect to the weapons and documents seized by the Mercer County Sheriff's Office on October 12, 2012. Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPLLATE DIVISION