Opinion
DOCKET NO. A-4645-11T4
03-03-2014
IN THE MATTER OF THE SEIZURE OF WEAPONS FROM APURBA NATH.
James S. Friedman, attorney for appellant Apurba Nath. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FO-16-305-12.
James S. Friedman, attorney for appellant Apurba Nath.
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After multiple complaints of domestic violence against defendant Apurba Nath, and repeated seizures of his handgun, a judge ruled that his gun and firearm purchaser identification (FPI) card should not be returned. Defendant appeals. We affirm because the evidence showed their return would not be "in the interest of the public health, safety or welfare" under N.J.S.A. 2C:58-3(c)(5) (Subsection (c)(5)).
I.
On four occasions, the police were called to the home of defendant and his wife because they were having a domestic dispute. Three times defendant's wife called the police; one time defendant called. Each incident was related to alcohol consumption by defendant, who had consumed approximately one or two drinks. He was arrested at least twice.
During these incidents, the police asked if defendant had a weapon, and his wife said that he did. Three times, police officers seized defendant's Beretta 9 mm handgun, which he kept at his mother's house. On the other occasion, the handgun was still in police custody from a prior seizure. Twice the police returned the handgun. Police also seized his ammunition and FPI card.
The fourth occasion when the police were called to defendant's residence for domestic violence occurred on February 2, 2012. Defendant's wife told the officer that defendant and she had a verbal dispute, and that he had assaulted her, causing her pain. The officer arrested defendant, transported him to his mother's house, and seized his handgun.
After defendant's wife dropped the domestic violence charges, he requested that his handgun be returned. The State petitioned that the handgun should not be returned, citing Subsection (c)(5).
At an evidentiary hearing on April 30, 2012, the officer's testimony to the facts above was corroborated by defendant and his wife. Nonetheless, defendant's wife said the handgun should be returned to defendant because he had not threatened her with it. Defendant stated that on each of the four occasions, the couple's behavior was "childish," and that he knew that the conduct would result in the seizure of his handgun. However, he asked for another chance.
The judge expressed concern at the number of domestic disputes related to defendant's drinking. The judge found that defendant had access to the handgun even when it was at his mother's house. In an oral opinion, the judge ruled that defendant was disqualified under Subsection (c)(5), because allowing him to possess a gun "would not be in the interest of the public health, safety or welfare." In a subsequent written opinion, the judge reiterated the number of incidents and the involvement of alcohol, and that defendant's continued possession of the handgun and FPI card "would not be in the interest of public health, safety or welfare pursuant to N.J.S.A. 2C:58-3." He also found that defendant presented a threat to his wife under these circumstances.
The judge ordered the handgun not be returned, and gave defendant sixty days to sell it to a licensed dealer before it would be forfeited. See N.J.S.A. 2C:25-21(d)(3)(a). The judge also revoked defendant's FPI card, and barred him from obtaining a new card or possessing a firearm without further order of court. N.J.S.A. 2C:25-21(d)(3)(b); see N.J.S.A. 2C:58-3(c)(8).
II.
Defendant appeals, arguing that the evidence failed to demonstrate that he had a drinking problem, or that his possession of the handgun and FPI card was contrary to the public's health, safety, or welfare. We must hew to our standard of review:
Ordinarily, an appellate court 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, an appellate court 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) (citations omitted).]
This case is governed by the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. "Because the presence of weapons can heighten the risk of harm in an incident of domestic violence, the statute contains detailed provisions with respect to weapons." State v. Harris, 211 N.J. 566, 579 (2012). The Act provides that "a law enforcement officer who has probable cause to believe that an act of domestic violence has been committed shall[] . . . seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury," and "seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence." N.J.S.A. 2C:25-21(d)(1). Here, defendant does not contest the propriety of the seizure of his handgun, but seeks its return.
The Act provides that the prosecutor
may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations [for the use, possession, or ownership of such weapons], or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.
[N.J.S.A. 2C:25-21(d)(3).]
Even if the domestic violence "complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict," the court is not required to order the return of the firearm or authorization papers if it determines the owner is "subject to any of the disabilities set forth in N.J.S. 2C:58-3c." Ibid.
Subsection (c)(5) is one of those disabilities precluding persons from possessing firearms. It states that "[n]o handgun purchase permit or firearms purchaser identification card shall be issued . . . (5) To any person where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5). Thus, "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." J.W.D., supra, 149 N.J. at 116.
The United States Supreme Courts Second Amendment decision in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), "has no impact upon the constitutionality of" Subsection (c)(5). In re Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009).
We have emphasized that Subsection (c)(5) "must be liberally construed to effectuate the overarching public policy objectives of the" Act, namely, "to afford 'maximum protection' to victims of domestic violence." State v. Cordoma, 372 N.J. Super. 524, 534 (App. Div. 2004) (quoting N.J.S.A. 2C:25-18); State v. Volpini, 291 N.J. Super. 401, 408-12 (App. Div. 1996). "[A] judicial declaration that a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact- sensitive analysis." Cordoma, supra, 372 N.J. Super. at 535. "It requires a careful consideration of both the individual history of defendant's interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may impose to the general public." Ibid.
Here, the history of defendant's interactions with his wife supports the finding that return of his handgun would not be in the interest of the public health, safety or welfare. Four times, police have been summoned to defendant's home upon complaints of domestic violence. In the most recent incident, defendant's wife reported that he assaulted her, inflicting pain. Although his wife dismissed the domestic violence complaint, the judge was nonetheless free to credit her factual allegations. See id. at 533.
This conduct was more serious, and more frequent, than the conduct found insufficient in State v. One Marlin Rifle, 319 N.J. Super. 359, 364-65, 372 (App. Div. 1999) (defendant made three argumentative phone calls), and State v. 6 Shot Colt .357, 365 N.J. Super. 411, 414 (Ch. Div. 2003) (defendant blocked plaintiff's exit during an argument).
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Furthermore, each incident was fueled by defendant's consumption of alcohol. Alcohol use has a well-known capacity to increase the risk of escalation of a domestic dispute, which danger is multiplied by the availability of a handgun. Defendant contends that he is only a social drinker, and that the State failed to prove that he was "an habitual drunkard" or an "alcoholic" under N.J.S.A. 2C:58-3(c)(2) or (3), respectively. The judge did not rely on those grounds for disqualification, however. Rather, the judge disqualified defendant under Subsection (c)(5), which is meant "'to disqualify any unfit individuals who, though not strictly within the enumerated classes [in other subsections of N.J.S.A. 2C:58-3(c)], should not in the public interest be entrusted with firearms.'" Dubov, supra, 410 N.J. Super. at 196 (citation omitted). In this catch-all category, the judge may consider defendant's alcohol use together with other factors. State v. Freysinger, 311 N.J. Super. 509, 516 (App. Div. 1998); Hoffman v. Union Cnty. Prosecutor, 240 N.J. Super. 206, 215 (Law Div. 1990).
The judge may consider defendant's alcohol use under Subsection (c)(5) even if it does not rise to alcoholism or habitual drunkness. We have similarly considered a defendant's mental condition under Subsection (c)(5), even though it did not rise to the level of the mental conditions specified in N.J.S.A. 2C:58-3(c)(1) and (2). Cordoma, supra, 372 N.J. Super. at 536. We have likewise considered a defendant's criminal conduct or disorderly person's offense under Subsection (c)(5), even though they did not result in the convictions listed in N.J.S.A. 2C:58- 3 (c)(1). In re Osworth, 365 N.J. Super. 72, 80-81 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004); In re Sbitani, 216 N.J. Super. 75, 76 (App. Div. 1987).
Finally, this was the third time defendant engaged in conduct justifying the seizure of his handgun. Defendant repeatedly engaged in domestic disputes that he termed childish, and that his wife alleged became violent, even though he knew seizure of his firearm would result. Defendant's conduct indicates his casual minimization of the responsibilities of gun ownership. Though not itself a violation of the gun laws, this is "a factor that could be utilized in . . . an analysis" of whether he poses a threat to the public. See 6 Shot Colt .357, supra, 365 N.J. Super. at 417.
We need not decide whether each of these factors would be sufficient in isolation. Here, defendant repeatedly engaged in domestic disputes. Those disputes were fueled by his alcohol consumption, which resulted in domestic violence calls to the police and culminated in an assault upon his wife that caused her pain. Defendant engaged in these disputes despite knowing that seizure of his firearm would result. Combined, those factors provide sufficient evidence that return of his handgun would not be "in the interest of the public health, safety or welfare," under Subsection (c)(5).
The judge also found that defendant "does pose a threat to his wife in these circumstances." We need not determine if that finding was justified under N.J.S.A. 2C:25-21(d)(3), because we find return of the handgun forbidden by Subsection (c)(5). See J.W.D., supra, 149 N.J. at 118 (reversing our conclusion that the defendant does not pose a threat to his wife, and remanding to consider whether the defendant was disqualified under Subsection (c)(5)). We note defendant's wife's testimony, that she did not feel threatened by the handgun and that it should be returned, is not dispositive. See Volpini, supra, 291 N.J. Super. at 412 (ruling that courts should not "place[] the discretion over the exercise of prosecutorial authority in the hands of an alleged victim of domestic violence").
The Supreme Court has warned that "a court should not return weapons to a defendant who is a threat to the public health, safety, or welfare. The contrary result-the return of weapons to a defendant who is a threat to the public-would be an invitation to a tragedy." J.W.D. , supra, 149 N.J. at 116. We conclude that the judge's decision not to return the handgun was supported by sufficient credible evidence and is consonant with Subsection (c)(5).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION