IN THE MATTER OF THE SEIZURE OF WEAPONS BELONGING TO R.M. (FO-02-0085-18, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1029-17T3

IN THE MATTER OF THE
SEIZURE OF WEAPONS
BELONGING TO R.M.
______________________________

Submitted July 23, 2018 – Decided November 19, 2018

Before Judges Whipple and Suter.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FO-02-0085-18.

Dennis Calo, Acting Bergen County Prosecutor,
attorney for appellant State of New Jersey (Justin M.
Blasi, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

Breslin & Breslin, PA, attorneys for respondent R.M.
(Kevin C. Corriston, on the brief).

PER CURIAM

The State appeals the October 24, 2017 order denying its weapons

forfeiture motion against respondent R. M., following a bench trial. We affirm

the order.
 On July 5, 2017, the Bergen County Prosecutor (State) filed a forfeiture

motion to prevent the return of a handgun to respondent and related items seized

by the Englewood Police Department (Englewood), pursuant to N.J.S.A. 2C:25-

21, when respondent was arrested two months earlier and charged with second-

degree assault, N.J.S.A. 2C:12-1(b)(1).1 The items included a Glock model 23

and its magazine, two permits to purchase handguns, respondent's firearms

purchaser identification card, and a handgun case. The State requested forfeiture

under N.J.S.A. 2C:25-21(d)(3) and N.J.S.A. 2C:58-3(c). Englewood also

objected to returning the weapon because respondent had "shown himself to be

an irresponsible and unqualified gun owner and that his possession of any

handgun, or other weapon, may endanger the well-being and safety of others

involved in his life as well as the general community."

We relate the facts from the bench trial. On May 13, 2017, the Englewood

police responded to a report of a domestic violence assault at respondent's

residence. He was not present when they arrived. Officer Dylan Donegan found

T.L. there with "scratches on both of her hands and forearms." She also "started

getting red marks around her wrists." Donegan described the wounds as

1
This charge subsequently was dismissed.
A-1029-17T3
2
"defensive." He was not permitted to testify, however, about what T.L. told him

of the incident because T.L. was not present to testify and there was no "other

competent evidence, corroborating evidence to allow the hearsay to be

considered by the [c]ourt." Donegan did not speak with respondent nor observe

whether he had defensive wounds.

Detective Christopher Quirk testified that T.L. "had a few fingernails

ripped off of her hands, she had some bruising around her neck and [possibly]

some lacerations in her face, or might have been her lip . . . ." The lacerations

were described as "minor."

The police made contact with respondent and he turned himself in, as

directed. Respondent acknowledged to Quirk that he had been involved in a

physical altercation with T.L., but said T.L. was the "primary aggressor,"

requiring him to defend himself. Respondent had physical signs of injuries.

Respondent told Detective Quirk that T.L. became upset with him because he

was wearing a necklace with the initial "T" from another girlfriend (T.D.), who

was pregnant with his twins.

T.D. was an eyewitness to the physical altercation with T.L. She now is

the mother of respondent's twin children, but at the time, she was five months

pregnant. She gave respondent a necklace with her initial "T." On May 13,

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3
2017, she went to respondent's house where she found T.L. "attacking"

respondent, who was "sitting in the kitchen on a chair." According to T.D., T.L.

was "slapping him, scratching him and was smacking [him] in his face."

Respondent was "pushing his hand out and trying to stop [T.L.]." When T.L.

saw T.D., she "tried to come after [her]." T.D. returned to her car, with

respondent, but T.L. followed. T.L. tried to "hit [T.D.'s] car from the side and

in the back." T.D. testified respondent had scratches on his chest, neck and face,

"[h]is shirt was ripped," and he had a bite mark on his hand.

Respondent's testimony confirmed that T.L. had given him a ride from the

airport, but she became upset because of the necklace he was wearing with the

initial for his girlfriend. T.L. was hitting him when T.D. arrived. He left with

T.D.

Respondent was arrested once he turned himself in. Officer Juan Moreno

testified the police reviewed a questionnaire with respondent to determine if he

had any illnesses. Moreno testified that "one of the questions is do you want to

harm yourself in any way," to which respondent answered "yes." The police

followed up, asking respondent "when did [he] want to harm himself, and he

said right now."

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4
 Respondent admitted he told the police he had thought of harming himself

"in situations like this when I did nothing, yes, 'cause I'm upset." He explained

to the police that he was "not going to hurt [him]self, [he] was joking with the

officer when [he] said it . . . ." He admitted he was "very upset" and cursed at

the officer who would not let him use the bathroom.

Respondent was taken by ambulance to the Bergen Regional Medical

Center (Bergen Medical) emergency room, arriving at about 11 p.m. Moreno

testified respondent was not cooperative with the nurses. Because respondent

was under arrest, Moreno stayed at the hospital all night and one of respondent's

hands was handcuffed to the bed. Moreno testified respondent was "upset at

me, he was cursing me out, telling me to fuck myself all night."

The Bergen Medical records were admitted in evidence by consent of the

parties. They showed that following a fifteen minute medical examination,

respondent was diagnosed with an "unspecified depressive disorder" and

suggested ruling out "an adjustment disorder with mixed disturbance of emotion

and conduct." Outpatient treatment was recommended. Respondent testified he

was not given any medications.

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 He was released from Bergen Medical at about 10 a.m. the next day and

was taken to jail because he remained under arrest. He was released later in the

day, but was required to wear an ankle monitor.

Respondent owned two handguns. The Ruger was confiscated by the New

York City Police Department (NYPD), following a motor vehicle stop about two

months earlier. He was arrested and later pled guilty to a disorderly conduct

misdemeanor, but as part of that plea, he agreed to forfeit the gun to the NYPD.

His second gun, the Glock model 23, is the subject of the State's forfeiture

motion.

When respondent was released from jail, he returned to the police station,

as agreed, with his Glock model 23, the magazine, two permits to purchase

handguns, his firearms purchaser identification card, and a handgun case.

Respondent also had a document that showed the Ruger was in the possession

of the NYPD. Englewood confirmed that with the NYPD.

T.D. testified respondent had not previously expressed a desire to commit

suicide, nor was she aware that he had any mental health issues. He was

employed, was not aggressive, and did not threaten her. He used his gun for

target practice because he was hoping to become a police officer. Their twins

were born in August 2016. She was not concerned if he had a gun; it was not

A-1029-17T3
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accessible to the children. Respondent had not received any mental health

treatment either before or after this incident.

After the October 24, 2017 bench trial, the court ordered the Glock and

other items returned to respondent.2 In an oral opinion, the court found no legal

justification to bar return of the weapon. The court found respondent to be

credible based on the "very forthright manner" in which he answered questions.

He was "non-hesitant," and was not "stumbling over his testimony." He made

"good eye contact with the [c]ourt." Based on all of the testimony, the court

found "he acted in self-defense and that [T.L.] was the aggressor here . . . ." The

court gave "a lot of weight to the fact that [respondent] did testify" even though

he was not required.

Based on Detective Quirk's testimony, the court concluded that T.L "was

upset with [respondent] because she found out he had another girlfriend."

Although respondent cursed at the police and was not cooperative, the court

looked at the totality of the circumstances, concluding "this all was one series

of events" and that because he was not "released from the get-go…one thing led

to another." She found respondent was "angry and frustrated" and he made an

2
This was subject to an NCIC check, proof of ownership and of safety
equipment to secure the weapon.
A-1029-17T3
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"offhand comment to the police." The court found T.D. to be a truthful witness

who was "concise, level-headed [and] rational." The court found her testimony

"persuasive and compelling" because she knew respondent well and "had no

problem with any guns going back to [him]."

The court rejected the State's argument that respondent was disqualified

because he had been "confined for a mental disorder" within the meaning of the

statute. After thoroughly reviewing the records from Bergen Medical, including

the lack of any affidavits from a psychiatrist and the unspecified diagnoses in

the records, the court concluded this was a "quick screening" and not a

confinement. "He was under arrest, he had no choice but to get screened…."

The court dismissed the complaint under N.J.S.A. 2C:58-3(c)(3), finding

respondent did not suffer from:

a physical disorder, mental disorder, or alcoholism. He
has never been treated, by his testimony and the
hospital record . . . he has no history of mental illness
. . . he's never taken any psychotropic medication, he's
not taking psychotropic medication, he's not treated by
a psychologist or psychiatrist at the present time.

The court also found the State had not met its burden under N.J.S.A.

2C:58-3(c)(5), because it had not proven respondent was a "threat to the health,

safety or welfare of the public at large under the c(5) disqualifier." The officers

A-1029-17T3
8
who testified "really just described the res gestae or the happenings of the

evening."

We granted a stay of the October 24, 2017 order on December 6, 2017.

On appeal, the State contends the return of respondent's weapon is

contrary to the public's health, safety and welfare under N.J.S.A. 2C:58-3(c)(5).

It also argues the trial court erred by finding respondent was not disqualified

under N.J.S.A. 2C:58-3(c)(3) because, following his statement about suicide, he

was "confined for a mental disorder." The State asserts the court erred by ruling

the police officers could not testify about what T.L. told them about the incident.

We do not agree with these arguments.

In reviewing a trial court's decision in a forfeiture case, we defer to the

judge's factual findings, so long as they are supported by substantial credible

evidence. State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004). We

owe particular deference to the trial court's credibility determinations. State v.

Locurto, 157 N.J. 463, 474 (1999); Cesare v. Cesare, 154 N.J. 394, 412 (1998).

In matters involving firearm permits and the forfeiture of weapons in

conjunction with domestic violence, we may only "set aside a trial court's

forfeiture ruling when it was not supported by sufficient competent evidence."

Cordoma, 372 N.J. Super. at 535. Nevertheless, it is well established that our

A-1029-17T3
9
review of a judge's conclusions of law is plenary. Manalapan Realty, LP v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation

of the law and the legal consequences that flow from established facts are not

entitled to any special deference.").

Under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -

35, an officer who finds 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." N.J.S.A.

2C:25-21(d)(1)(b). This includes seizure of the purchaser identification card

and permit to purchase a handgun. These weapons and items are to be returned

except upon order of the Court. The State can petition to obtain title to the

weapons seized and to revoke any permits, licenses or authorizations. N.J.S.A.

2C:25-21(d)(3). It may object to the return of the weapons "on the ground that

the owner is unfit or that the owner poses a threat to the public in general or a

person or persons in particular." Ibid.

"It is now well-settled that the voluntary dismissal of a domestic violence

complaint does not mandate the automatic return of any firearms seized by law

enforcement officers in connection therewith." Cordoma, 372 N.J. Super. at 533

A-1029-17T3
10
(citations omitted). After a summary hearing, the court can order a return of the

seized weapons if the court

determines the owner is not subject to any of the
disabilities set forth in N.J.S.A. 2C:58-3(c) and finds
that the complaint has been dismissed at the request of
the complainant and the prosecutor determines that
there is insufficient probable cause to indict; or if the
defendant is found not guilty of the charges; or if the
court determines that the domestic violence situation no
longer exists.

[N.J.S.A. 2C:25-21(d)(3).]

Here, the State requested the forfeiture of respondent's weapon, under

N.J.S.A. 2C:58-3(c), subsections (3) and (5), which provide that "no handgun

purchase permit or firearms purchaser identification card shall be issued:"

(3) To any person who suffers from a physical defect or
disease which would make it unsafe for him to handle
firearms, to any person who has ever been confined for
a mental disorder, or to any alcoholic unless any of the
foregoing persons produces a certificate of a medical
doctor or psychiatrist licensed in New Jersey, or other
satisfactory proof, that he is no longer suffering from
that particular disability in a manner that would
interfere with or handicap him 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.

A-1029-17T3
11
 [N.J.S.A. 2C:58-3(c)(3) and (5) (emphasis added).]

We conclude the trial court did not err by finding the State did not meet

its burden of proving by a preponderance of the evidence that the statutory

disqualifiers were met. We defer to the court's credibility findings. "Because a

trial court 'hears the case, sees and observes the witnesses, [and] hears them

testify,' it has a better perspective than a reviewing court in evaluating the

veracity of witnesses." Cesare, 154 N.J. at 412 (alterations in original) (quoting

Pascale v. Pascale, 113 N.J. 20, 33 (1988)).

Here, the trial court found respondent's testimony to be "very forthright."

T.D.'s testimony was "concise, level-headed, [and] rational." The police officers

testified about a domestic violence incident, but other than proving an

altercation had occurred, which respondent admitted, the State did not show

respondent was the aggressor. T.L. did not testify. The only other eyewitness,

T.D., testified for respondent that he was defending himself against T.L.

Respondent had no history of violence nor was T.D afraid of him. There was

no medical testimony that respondent was a threat to others.

The State contends respondent is disqualified under N.J.S.A. 2C:58-

3(c)(3) because he was "confined for a mental disorder." We agree with the trial

A-1029-17T3
12
court, however, that the screening which occurred here, was not confinement for

a mental disorder within the meaning of that statute.

The legislature did not define confinement. It is generally defined as

"[t]he act of imprisoning or restraining someone; the quality, state or condition

of being imprisoned or restrained." Black's Law Dictionary 362 (10th ed. 2014).

Under N.J.S.A. 30:4-27.6(a), a police officer is authorized to "take custody" of

a person and to take them immediately to a "screening service" if "[o]n the basis

of personal observation, the law enforcement officer has reasonable cause to

believe that the person is in need of involuntary commitment to treatment." A

screening service is a:

facility in the public mental health care treatment
system wherein a person believed to be in need of
involuntary commitment to outpatient treatment, a
short-term care facility, psychiatric facility or special
psychiatric hospital undergoes an assessment to
determine what mental health services are appropriate
for the person and where those services may be most
appropriately provided in the least restrictive
environment.

[N.J.S.A. 30:4-27.5(a).]

That screening service can provide "emergency and consensual treatment to the

person receiving the assessment" and may "detain the person up to [twenty-four]

hours for the purposes of providing the treatment and conducting the

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assessment." Ibid. The mental health screener completes a "screening document

prescribed by the division." Then "[i]f a psychiatrist, in consideration of this

document and in conjunction with the psychiatrist's own complete assessment,

concludes that the person is in need of commitment to treatment, the psychiatrist

shall complete the screening certificate." N.J.S.A. 30:4-27.5(b).3

Here, respondent was under arrest when he was taken for a mental health

assessment because he acknowledged he told the police he wanted to harm

himself. The medical records from Bergen Medical emergency room were in

evidence by consent. There was no indication that a psychiatrist made more

than a fifteen-minute examination rather than a complete assessment based on a

screening document. The State did not present the testimony of a medical doctor

or psychiatrist. Instead, it relied simply on the fact that the police took

respondent to the facility while he was under arrest where he remained for eleven

3
In contrast, a "short-term care facility" is defined in part as "an inpatient,
community based mental health treatment facility which provides acute care and
assessment services to a person with mental illness whose mental illness causes
the person to be dangerous to self or dangerous to others property." N.J.S.A.
30:4-27.2(bb). "A short-term care or psychiatric facility . . . may detain a
person, admitted to the facility involuntarily by referral from a screening service
without a temporary court order, for no more than [seventy-two] hours from the
time the screening certificate was executed." N.J.S.A. 30:4-27.9(c). There was
no conclusion in the records that respondent was a danger to himself or others
or that he advanced beyond the initial screening.
A-1029-17T3
14
hours for an assessment. We agree with the trial court that in these

circumstances, this assessment was not "confine[ment] for a mental disorder"

within the meaning of N.J.S.A. 2C:58-3(c)(3), disqualifying him from the return

of his weapon.

The case of Perona v. Township of Mullica, 270 N.J. Super. 19 (App. Div.

1994) does not lead to a different result. In Perona, we held that the term

"confine a person for mental illness or drug dependence" as used in N.J.S.A.

59:6-6(a)(1) was satisfied by the actions of the police in taking custody of a

person under N.J.S.A. 30:4-27.6 to take them to a screening service. Id. at 28.

However, that case addressed the Tort Claims Act and not the statute in question

here. There is no indication the use of the term in one statute was to be construed

the same in others.

The State also argues that respondent was disqualified under N.J.S.A.

2C:58-3(c)(5) because the return of his weapon "would not be in the interest of

the public health, safety or welfare." In Cordoma, we said:

a judicial declaration that a defendant poses a threat to
the public health, safety or welfare involves, by
necessity, a fact-sensitive analysis. 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.

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 [372 N.J. Super. at 535.]

The trial court carefully analyzed the full record including all of the medical

records provided by the State in concluding respondent was not a threat. It found

respondent credible in his assertion that he was defending himself. There was

an eyewitness, who also was found to be credible. T.D. knew respondent well

and was not afraid or concerned with his possession of a gun. The comment

about suicide was made at a time when respondent was frustrated and angry.

There was no evidence to support Englewood's claim that respondent was

"irresponsible" or an "unqualified gun owner."

The State argues that the court erred by not allowing the officers to testify

about what T.L. said to them on May 13, 2017, about the altercation. We review

this evidence ruling based on an abuse of discretion standard.

"[T]he decision to admit or exclude evidence is one firmly entrusted to the

trial court's discretion." State v. Scott, 229 N.J. 469, 479 (2017) (alteration in

original) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.

369, 383-84 (2010)). We therefore apply a deferential standard in reviewing a

trial court's evidentiary rulings and uphold its determinations "absent a showing

of an abuse of discretion." State v. Perry, 225 N.J. 222, 233 (2016) (quoting

State v. Brown, 170 N.J. 138, 147 (2001)). A reviewing court must not

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"substitute its own judgment for that of the trial court," unless there was a clear

error in judgment — a ruling "so wide of the mark that a manifest denial of

justice resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

Hearsay testimony is admissible in cases such as this provided there is

"sufficient legally competent evidence to support the court's findings." In re

Z.L., 440 N.J. Super. 351, 358 (App. Div. 2015). However, "a fact finding or a

legal determination cannot be based upon hearsay alone." Weston v. State, 60

N.J. 36, 51 (1972). Hearsay can be used to "corroborate competent proof." Ibid.

"[I]n the final analysis for a court to sustain an administrative decision, which

affects the substantial rights of a party, there must be a residuum of legal and

competent evidence in the record to support it." Ibid.

Here, the proffered testimony by the officers about what T.L. said, was

hearsay. T.L. was subpoenaed, but did not appear. She lived out of state and

the State had not asked for a commission. There was no corroborating testimony

that respondent was the aggressor. There was a physical altercation and T.L.

had defense wounds according to one officer. However, that officer did not see

the wounds on respondent to determine if they also were defensive. There was

eyewitness testimony that T.L. was the aggressor, not respondent. The letter

from Englewood that respondent had "shown himself to be an irresponsible and

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unqualified gun owner" was not supported by the evidence. As such, the court

did not abuse its discretion by excluding the hearsay testimony.

Affirmed.

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