IN THE MATTER OF THE APPEAL OF THE DENIAL OF KENNETH ERICKSON, JR.'S APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD (FPIC) AND HANDGUN PURCHASE PERMIT (HPP) (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NOT FOR PUBLICATION WITHOUT THE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-4775-16T1

IN THE MATTER OF THE APPEAL
OF THE DENIAL OF KENNETH
ERICKSON, JR.'S APPLICATION
FOR A FIREARMS PURCHASER
IDENTIFICATION CARD (FPIC)
AND HANDGUN PURCHASE PERMIT
(HPP).
_____________________________

Submitted July 3, 2018 – Decided August 14, 2018

Before Judges O'Connor and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County.

Evan F. Nappen, Attorney at Law, PC, attorneys
for appellant Kenneth Erickson, Jr. (Evan F.
Nappen, on the brief).

Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent State of New Jersey
(Jenny X. Zhang, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM

Appellant Kenneth Erickson, Jr., appeals from an order

denying his application for a firearms purchaser identification

card (FPIC) and handgun purchase permit (HPP), arguing:
 [POINT I]

THE COURT BELOW ERRED BY BASING ITS DECISION
UPON HEARSAY CONTRARY TO DUBOV,[1] WESTON[2] AND
ONE MARLIN RIFLE.[3]

[POINT II]

THE COURT BELOW ERRED IN FINDING THAT THE
APPELLANT IS A THREAT TO THE PUBLIC HEALTH,
SAFETY, OR WELFARE, HAD A MENTAL HEALTH
DISQUALIFIER AND FALSIFIED HIS APPLICATION.

[POINT III]

APPELLANT SHOULD NOT BE DENIED HIS
FUNDAMENTAL, INDIVIDUAL, CONSTITUTIONAL RIGHT
TO KEEP ARMS FOR A REASON THAT DOES NOT RISE
ABOVE RATIONAL BASIS, IS VAGUE AND/OR
OVERBROAD, CONSTITUTES AN UNCONSTITUTIONAL
BALANCING-TEST, AND DOES NOT PROVIDE A DUE
PROCESS FORM OF REDRESS.

We determine that sufficient, competent evidence supported the

trial court's decision and affirm.

In considering Erickson's appeal, the judge listed the

documentary evidence he weighed: Erickson's FPIC application; a

written statement from Erickson to the Haworth Police Department;

letters from Erickson's treating psychiatrist, Lorraine Chiorazzi,

M.D., and therapist, Marcia Stamberg, L.C.S.W. to the former

Haworth police chief; the denial letter from the Haworth police

1
In re Dubov, 410 N.J. Super. 190 (App. Div. 2009).
2
Weston v. State, 60 N.J. 36 (1972).
3
State v. One Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999).

2 A-4775-16T1
chief; a 1980 permit to purchase a handgun; and a signed consent

form – introduced into evidence by Erickson — to obtain his mental

health records. The judge also considered testimony from Detective

Alex Yannuzzi, Dr. Chiorazzi and Erickson.

The judge denied Erickson's appeal, determining he was

disqualified under N.J.S.A. 2C:58-3(c)(3)4 and -(5)5 because he

falsified his application by answering "no" to questions 24 and

26, and the issuance of a permit or FPIC would not be in the

interest of the public health, safety or welfare given Erickson's

mental health history.

We are bound to accept the trial court's fact findings if

they are supported by substantial credible evidence, In re Return

4
N.J.S.A. 2C:58-3(c)(3), provides in pertinent part, that no HPP
or FPIC shall be issued

[t]o 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
. . . 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; to any person
who knowingly falsifies any information on the
application form for a [HPP] or [FPIC].
5
N.J.S.A. 2C:58-3(c)(5) prohibits the issuance of such documents
to "any person where the issuance would not be in the interest of
the public health, safety or welfare."

3 A-4775-16T1
of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997); "[d]eference

to a trial court's fact-finding is especially appropriate when the

evidence is largely testimonial and involves questions of

credibility," id. at 117. We exercise de novo review of the trial

court's legal determinations, Manalapan Realty, LP v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

Contrary to Erickson's contention, we are satisfied the

judge's findings were not solely based on hearsay evidence. The

evidence upon which a final administrative agency decision is

reached may include hearsay evidence, provided the agency's

findings are not entirely based upon hearsay evidence. Weston v.

State, 60 N.J. 36, 50-52 (1972). 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." Id. at 51; see also In re Dubov, 410 N.J. Super. 190,

202 (App. Div. 2009).

For a court to sustain an administrative decision, findings

must be supported by a residuum of legally competent evidence.

Weston, 60 N.J. at 51; 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 finding or findings of material

4 A-4775-16T1
fact." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 359

(2013).

Yannuzzi – who conducted the background investigation

regarding the application — testified Erickson answered "no" to

question 26 on his application and, after initially leaving

question 24 blank, answered "no" to that question at a meeting

between Yannuzzi and Erickson to clarify the omission. In doing

so, Erickson denied being "confined or committed to a mental

institution or hospital for treatment or observation of a mental

or psychiatric condition on a temporary, interim, or permanent

basis," and being "attended, treated or observed by any doctor or

psychiatrist or at any hospital or mental institution on an

inpatient or outpatient basis for any mental or psychiatric

condition."6

The judge determined these were false answers based upon his

review of: the application; Yannuzzi's testimony – found credible

by the judge – regarding his interaction with Erickson about

question 24; and evidence that proved Erickson was brought to the

Bergen Regional Medical Center (BRMC) on October 4, 2014, where

6
We quote questions 24 and 26, respectively, of the "Application
for Firearms Purchaser Identification Card and/or Handgun Purchase
Permit."

5 A-4775-16T1
he received mental health treatment prior to submitting his

application.

We determine, based on our review of the record, that the

judge's findings are well-supported by competent evidence, with

or without the buttressing hearsay evidence. Yannuzzi testified

that his application-related investigation revealed Erickson was

transported to BRMC for evaluation after police responded to his

home on a report that "Erickson had threatened harm either to

himself or [his] former brother-in-law by threatening to put a

bullet in that person's head." Disregarding the reason why the

police were called,7 Erickson, during his testimony, confirmed he

was brought to BRMC after the police response, and there underwent

an evaluation. So too, Erickson admitted he had been treated for

anxiety and depression since "around 2000, 2001" by Dr. Stamberg,8

by Dr. Chiorazzi for five years prior to the 2014 incident, and

by Dr. Wolpe prior to that "for a period of some years." He also

testified he had been taking medications for anxiety and depression

since 2000, and listed his then-current medications for anxiety

and depression: Tofranil, Buspar and one other he could not recall.

7
That multiple-hearsay evidence was never found to be a fact by
the judge.
8
Erickson referred to her as "Dr. Stamberg," but she identifies
herself as an L.C.S.W. in her signature on the letter she sent to
the police chief.

6 A-4775-16T1
Dr. Chiorazzi testified she diagnosed Erickson with "General

Anxiety Disorder, panic attacks. He has a history of agoraphobia.

He has a history of depression, but I don't call it major . . . I

don't think that [is] his major diagnosis. I think his major

diagnosis is the anxiety and some depression follows that." Dr.

Chiorazzi opined that if Erickson discontinued his prescribed

medication,

he'd become paralyzed again, the way I saw him
during the year following his wife's death. I
mean, he had such anxiety that he was afraid
to go to the mailbox to look at the mail to
see if there were any bills that would come
in that couldn't be paid. . . . I thought he
was suffering tremendously.

The documentary evidence buttressed the testimonial evidence.

In his letter to the Haworth Police Department, Erickson said he

had anxiety and depression, and that he "was brought to [BRMC] for

an evaluation." Dr. Chiorazzi and Stamberg sent letters to the

then police chief in support of Erickson's attempt to gain the

return of firearms seized from his home during the incident that

resulted in his transport to BRMC. Chiorazzi confirmed she had

been treating Erickson weekly for "severe Anxiety with Panic

Attacks" since September 2011, and despite a recent exacerbation

of his anxiety caused by family dysfunction, she opined "his

firearms [could be] safely . . . returned to him" because his

anxiety had "never resulted . . . [in threats] to harm himself or

7 A-4775-16T1
another person." Stamberg confirmed her treatment of Erickson

since June 11, 2014 for "severe Panic Disorder and anxiety" and

her conversation with the doctor at BRMC after the doctor

"evaluated him the night of October 4[], 2014." She said there

was "no reason whatsoever" why Erickson's firearms should not be

returned to him, claiming he had "no history of suicidal or

homicidal [ideation] nor has he exhibited any inclination to harm

any other person in the time I have seen him."

We defer to the judge's findings that Erickson's explanations

for the answers he provided to questions 24 and 26 were incredible.

The judge found evidence of Erickson's "lengthy history of mental

health treatment" belied the proffered explanations, concluding

he falsified information on his application. Given our standard

of review, we see no reason to disturb those findings and

conclusion, proved by competent evidence and buttressing hearsay.

The same evidence supports the judge's conclusion that the

issuance of the FPIC and HPP would not be in the interest of the

public health, safety or welfare. The judge made no finding as

to the truth of the allegation that brought police to Erickson's

home just prior to his transport to BRMC. The judge stated only

that he was unsatisfied Dr. Chiorazzi's explanations allayed

concerns relating to the N.J.S.A. 2C:58-3(c)(5) disqualifier that

arose from the evidence regarding Erickson's long history of mental

8 A-4775-16T1
health afflictions. The judge, as fact-finder, was free to reject

or accept that expert testimony. Brown v. Brown, 348 N.J. Super.

466, 478 (App. Div. 2002) (citing Carey v. Lovett, 132 N.J. 44,

64 (1993)).

We are unpersuaded by Erickson's argument that the judge

misapprehended the law by expressing his concern about the prior

return of Erickson's firearms. The judge clearly applied the

correct statutes in making his final decision; he merely commented

that the return of the firearms, "simply based" on Dr. Chiorazzi's

letter, was disconcerting in light of the mental health evidence

presented.

We decline to consider Erickson's constitutional arguments,

not raised before the Law Division judge. State v. Robinson, 200

N.J. 1, 20 (2009). We also note our prior discussion in In re

Winston, 438 N.J. Super. 1, 10 (App. Div. 2014), renders the

argument meritless. See also In re Forfeiture of Pers. Weapons &

Firearms Identification Card belonging to F.M., 225 N.J. 487, 506-

08 (2016).

Affirmed.

9 A-4775-16T1