RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3912-16T4
IN THE MATTER OF THE
SEIZURE OF WEAPONS
BELONGING TO
J.D.M.
Submitted April 11, 2018 – Decided June 25, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FO-02-0197-17.
Joseph L. Nackson, attorney for appellant
J.D.M. (Joseph L. Nackson, of counsel; Jeffrey
Zajac, on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent State of New Jersey
(James W. Sukharev, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Appellant J.D.M. appeals from the March 17, 2017 Family Part
order directing he forfeit a weapon and his firearms purchaser
I.D. card (FPIC). We affirm.
On September 29, 2016, S.P. filed a complaint and obtained a
temporary restraining order (TRO) against J.D.M. See Prevention
of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35. The
TRO required him to surrender "any and all firearms or other
weapons . . . and [his] firearms purchaser ID card." On October
13, 2016, after the weapon was seized, the TRO was dismissed.
The State moved for forfeiture of J.D.M.'s weapon and the
revocation of his FPIC, arguing that N.J.S.A. 2C:25-21(d)(3) and
2C:58-3(c) disqualified him from firearm ownership. Judge Eugene
H. Austin conducted a hearing at which the State proffered two
witnesses, a Borough of Cliffside Park police officer and S.P.,
J.D.M.'s former wife. J.D.M. testified in support of his
application for the return of the weapon and his continued ability
to hold a FPIC. Judge Austin found that all the witnesses were
credible and that none deliberately lied.
The officer testified regarding the 2002 investigation
conducted when J.D.M. applied for the FPIC. At that juncture,
police were unaware of J.D.M.'s mental health history, and the
only criminal charge against him had been dismissed, as had another
TRO.
S.P. testified that J.D.M., who is a veteran, had told her
that upon his discharge from military duty, he had been diagnosed
with post-traumatic stress disorder (PTSD) and anxiety. Shortly
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before the parties' divorce in 2014, J.D.M. called S.P. from
Englewood Hospital, where he had signed himself in to the
psychiatric unit. His hospital stay lasted approximately one
week. Later, J.D.M. told S.P. that he had almost overdosed and
was having suicidal thoughts.
In ruling, the judge reiterated J.D.M.'s testimony that he
did not continue with the medications prescribed by the Veteran's
Administration (VA), because he experienced serious side-effects.
J.D.M. denied ever attempting suicide and said he had no mental
health problems before his military service.
Based principally on J.D.M.'s own words, the judge found that
the return of his firearm was barred by N.J.S.A. 2C:58-3(c)(3).
That statutory section stated that a FPIC should not issue, or a
firearm be owned by
any person who has ever been confined for a
mental disorder[] . . . unless . . . the[y]
. . . produce[] 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 . . . .
Understanding that J.D.M.'s stay at the psychiatric unit was
a voluntary, not involuntary, commitment, Judge Austin nonetheless
concluded it fit within the parameters of the statute. J.D.M.
acknowledged when he testified that he still participated in
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regular mental health treatment. We defer to the trial judge's
credibility findings. See In re Return of Weapons to J.W.D., 149
N.J. 108, 116-17 (1997).
On appeal, J.D.M. raises the following points:
POINT I:
BECAUSE THE RECORD FAILS TO ADEQUATELY SHOW
THAT [J.D.M.] WAS HOSPITALIZED FOR A MENTAL
DISORDER, THE CHANCERY DIVISION ERRED IN
FORFEITING HIS RIGHT TO RETAIN HIS HUNTING
RIFLE.
A. The State Failed To Satisfy Its Burden
of . . . Proof Under N.J.S.A. 2C:58-3(c).
B. The Reasoning of the Law Division Does
Not Support a Finding of a Mental
Disorder Under N.J.S.A. 2C:58-3(c)(3).
POINT II:
BECAUSE [J.D.M.] WAS NOT "CONFINED" FOR A
MENTAL DISORDER, N.J.S.A. 2C:58-3 DOES NOT
APPLY TO THE INSTANT CASE.
POINT III:
THE DECISIONS IN HELLER AND MCDONALD BY THE
UNITED STATES SUPREME COURT REQUIRE AN
ENHANCED BURDEN OF PROOF UNDER N.J.S.A.
2C:58-3(c).
With one exception, we do not discuss the alleged errors as
they lack merit. See R. 2:11-3(e)(1)(E). We affirm for the
reasons stated by Judge Austin. Additionally, we comment upon an
argument the State raises.
A trial court must grant the State's forfeiture motion if,
by a preponderance of the evidence, it is proven that the return
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of the weapons seized "would not be 'in the interest of the public
health, safety or welfare'" In re Forfeiture of Pers. Weapons &
Firearms Identification Card Belonging to F.M., 225 N.J. 487, 513
(2016) (quoting N.J.S.A. 2C:58-3(c)(5)). In matters involving
firearms permits and the forfeiture of weapons, we only set aside
those rulings which are not supported by sufficient credible
evidence. See State v. Cordoma, 372 N.J. Super. 524, 535 (App.
Div. 2004).
J.D.M. alleges that the landmark United States Supreme Court
decisions in District of Columbia v. Heller, 554 U.S. 570 (2008),
and McDonald v. City of Chicago, 561 U.S. 742 (2010), require an
enhanced burden of proof under N.J.S.A. 2C:58-3(c). Judge Austin
applied the current standard, by the preponderance of the evidence.
Years after those cases were decided, our Supreme Court reiterated
that New Jersey's standard of proof for forfeiture remains the
preponderance of the evidence. In re F.M., 225 N.J. at 508. We
see no reason to deviate from binding precedent.
The State argues in the alternative that the judge could have
also found J.D.M. disqualified by application of N.J.S.A. 2C:58-
3(c)(5). We see no need to reach that issue given our affirmance.
Affirmed.
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