Author Archives: jefhenningeresq
This was a great case. Really nice guy looking for a gun permit was getting problems from his local police department for months. He hired me last week and today, he had his permit. I wish they were all this easy, but that’s not the case.
Client called me up today because he was denied a gun permit for a conditional discharge that he had a few years ago. Naturally, the question you will ask is how can they do this if he was not convicted. Wake up! They did it. Stop asking how and ask how can you prevent this garbage from happening to you.
The solution? Call me before applying for a permit. Otherwise, you risk getting denied like this guy did. Then if you want to file an appeal, you are going to have to pay a lot more. I know I’ve said this a million times, but so many people are not getting this, so I will keep repeating myself until it sinks in.
Check out our new firm website at www.tomsriverattorney.net
I am still ironing out a few bugs on the site so please excuse any errors that may exist.
This was a great victory. The client owns ATMs and he services them himself. As a result, he has to carry large sums of money without any protection. Many of the small bodegas he services have been robbed as they are in very bad areas. He is not a security guard or a retire police officer. So he’s screwed right?
Well that’s what I first thought but after talking to the client, I got an idea. I never tried this before but I thought that if I can show a justifiable need by showing that the places he went to were dangerous, even though he was never personally attack, then we would have a shot. That was easier said than done as it took months to put everything together. About two months after he made the application, we got the good news that we won. Thankfully for the client, it wasn’t even that expensive.
I feel a lot better about helping clients out with carry permits so I might be open to doing a few more.
This was a tough permit application. The client had physical issues which could have impacted his ability to get a permit in addition to a history of mental health issues which could have caused the police to deny him. He’s a great guy and he should have got the permit, but when you have two issues that the police can use against you, it could be very tricky.
I had him wait a while to make the application while we got his ducks in a row. Thus, the big work was done before the application was made. As a result, the review of his application was rather uneventful. It took him about 45 days to get the approval.
While I was at court for my client that was getting his carry permit, the case in front of mine was a guy that was denied because when he was in second grade (20 or so years ago) they thought he was ADD and he saw a school doctor for about a year. It never really went anywhere and the guy has never had any other problems. In fact, the guy didn’t even remember it as it was so long ago. Nevertheless, his permit was denied.
Of course, the State wasn’t really going anywhere with this as they had no proof that he suffers from any disability. Thus, his attorney was able to win the case. However, he probably spent a good amount of money for the appeal whereas he could have saved a lot of money if he had hired one to begin with.
This was a great case for a great client. He had a DWI from 3 years ago and they were given him a problem with his carry permit. The crazy thing is, the DWI was downgraded to reckless driving which was possible because the charge was out of state. So, in other words, he was simply charged with DWI and not convicted of it, so he was still having problems with the carry permit. That’s where I come in.
After he realized that he could be denied, he hired me to smooth things out. I got on the phone with the prosecutor who was actually a really good guy. He was open to the permit but he wanted to hear from his boss. I called his boss to testify and the judge and the prosecutor was impressed. I left them with hardly any questions. A few questions did come up about his application which was a big surprise but it turned out to be a big nothing. In the end the permit was approved.
My client had the type of last name that is more common as a first name so the court had the court order backwards. My client would have had a hard time if this was not corrected. Luckily I spotted it and had it fixed right there.
IN THE MATTER OF
JOHN BAMBURAK, JR.
Before Judges Sabatino and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Evan F. Nappen, attorney for appellant John Bamburak, Jr. (Richard V. Gilbert, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent, State of New Jersey (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).
Appellant John Bamburak appeals from the Law Division order denying his appeal of the denial of his application for a New Jersey Firearms Purchaser’s Identification Card and a New Jersey Permit to Purchase a Handgun (the application). We affirm.
On October 18, 2006, Bamburak submitted the application to the Woodbridge Police Department. Question 25 asks,
Have you ever been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an in-patient or outpatient basis for any mental or psychiatric conditions? If Yes, gives the names & location of the doctor, psychiatrist, hospital and the date(s) of such occurrence.
Bamburak responded, “See attached psychological evaluation supplied.”
Anthony Todaro, Ph.D., had performed the psychological evaluation on June 20, 2006. The doctor conducted a one-and-one half-hour clinical interview with Bamburak and his girlfriend, which revealed that Bamburak was previously treated for bipolar disorder with depression and had a history of domestic violence. The doctor also conducted six hours of psychological testing. Based on the interview and testing, the doctor concluded that Bamburak could safely handle a firearm.
Although the psychological evaluation mentioned Bamburak’s treatment at Raritan Bay Mental Health Center (the Center), Bamburak did not submit any records from that treatment. Rather, Detective Sergeant Joseph Velez, who conducted the investigation, obtained the Center’s records from 1986 to 1994, which revealed a much more extensive psychiatric and domestic violence history than that Bamburak revealed on the application and to Dr. Todaro. For example, and apparently unbeknownst to Dr. Todaro, Bamburak had been diagnosed with dysthymia and episodic and anti-social personality disorder, he had a history of alcohol abuse, he “dropped out of treatment and did not respond to treatment[,]” and he was “not interested in treatment.” He also had beaten his ex-wife so severely as to rupture her spleen, requiring its removal. Dr. Todaro did not review the Center’s records, did not speak to Bamburak’s ex-wife, and did not testify at the hearing.
Velez recommended denial of the application based, in part, on Bamburak’s failure to fully disclose his mental health history. The officer discounted Dr. Todaro’s psychological evaluation because it only involved one clinical interview and six hours of testing, and he credited the Center’s records because they involved treatment over several years. The officer concluded that the Center’s records gave “a very sufficient cause for denial [of the application]” on the basis of Bamburak’s mental health. The officer also recommended denial based on Bamburak’s domestic violence history, and on information the ex-wife provided. The officer also emphasized his concern that Bamburak sought to possess a gun professionally as a member of a security force.
The chief of police denied the application because Bamburak did not reveal his entire mental health history on the application, because of public health, safety and welfare concerns, and because of his mental health and domestic violence histories.
Bamburak appealed to the Law Division. Because of his concerns about the domestic violence, Judge Edward Ryan instructed the prosecutor to obtain the ex-wife’s input on the application. She subsequently submitted a letter, making unfavorable allegations about Bamburak and objecting to the application.1
Bamburak claimed to possess audio tapes of conversations with his ex-wife, which supposedly refuted her allegations. His attorney requested an adjournment in order to review those tapes. The judge reluctantly granted the adjournment and ordered Bamburak to produce the tapes to the prosecutor.2 Bamburak did not comply with the order.
Bamburak’s ex-wife testified at the ensuing hearing that he had psychologically and physically abused her throughout the course of the marriage, many times inflicting injuries requiring medical treatment, including the splenectomy. She also testified about Bamburak’s repeated violation of a restraining order and his repeated harassment after the parties had divorced. It was clear from her testimony that she still feared her ex-husband, who she described as having a “violent temper.”
Bamburak also testified at the hearing. He admitted the domestic violence resulting in the splenectomy. However, in response to a question about his ex-wife’s allegations of repeated abuse, he responded, “I discount them very much, yes.” Bamburak also provided ambiguous testimony about his treatment at the Center, claiming that he stopped treatment because of financial concerns.
Judge Ryan denied the appeal. He emphasized that Bamburak’s “demeanor at the time of the . . . hearing further calls his credibility into question[,]” and that Bamburak’s non-compliance with the court’s order to produce the audio tapes “is indicative of his lack of willingness to assume responsibility.” The judge concluded that Bamburak “knowingly falsified or failed to provide necessary information that is clearly required by the application.” The judge also concluded that Bamburak had “engaged in an act of domestic violence” resulting in the ex-wife’s splenectomy, and that his “lack of self-control and discretion is indicative of his proclivity to engage in conduct that is not in the interest of public health, safety, and welfare.”
“Our review of the [trial] judge’s findings of fact based on testimony presented during plenary hearing is limited.” Mt. Hill, L.L.C. v. Tp. Comm. of Middletown, 403 N.J. Super. 146, 192 (App. Div. 2008). The trial judge’s findings “should not be disturbed unless ‘they are so wholly insupportable as to result in a denial of justice,’ and that [we] should exercise [our] original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.” Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We should not “disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.” Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Credibility determinations are included within the trial court’s deferential factfinding authority. Ferdinand v. Agric. Ins. Co. of Watertown, 22 N.J. 482, 492 (1956).
“However, ‘[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'” and is subject to de novo review. Mt. Hill, supra, 403 N.J. Super. at 193 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we continue our analysis.
“On appeal to the Law Division [from the denial of an application for a firearms purchaser identification card], the hearing is de novo, which ‘in this context contemplates introduction of relevant evidence and material testimony and the application of an independent judgment to the testimony by the reviewing court.'” In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (quoting Weston v. State, supra, 60 N.J. 36, 45 (1972)). “The chief [of police] has the burden of proving the existence of good cause for the denial by a preponderance of the evidence.” Ibid. (citing Weston, supra, 60 N.J. at 46). Good cause for denial exists where the applicant “knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card,” or “where the issuance would not be in the interest of the public health, safety or welfare.” N.J.S.A. 2C:58-3c(3) and (5).
At the hearing, the applicant shall provide testimony regarding the application, its denial and the reasons given by the police department. Weston, supra, 60 N.J. at 46. The police department shall provide any “evidence on which [its] denial was predicated.” Ibid. Generally, this includes testimony of the police officers who investigated the application, any lay or professional witnesses who provided information which influenced the denial, and “any admissible documentary evidence which played a part in the adverse decision.” Ibid. The applicant is allowed to offer “relevant rebuttal testimony” to this evidence. Ibid.
Based on our careful review of the record, we are satisfied that Judge Ryan’s factual and credibility determinations are amply supported by credible evidence. Bamburak knowingly falsified information on the application by failing to provide all of the requested material information about his past mental and psychiatric treatment. This in and of itself is a disqualifying factor.
Also, Bamburak concealed from Dr. Todaro critical information about psychiatric history and the nature and extent of the domestic violence, thus discrediting the doctor’s conclusion. This, along with Bamburak’s domestic violence history, demonstrates his danger to the public health, safety, or welfare.
Bamburak’s contentions that Judge Ryan improperly considered his failure to produce the audio tapes, and improperly overrode the State’s initial intention to approve the application by requesting information from the ex-wife, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.
Judge Ryan’s decision did not rest on Bamburak’s failure to produce the audio tapes. Nevertheless, as part of his credibility assessment, the judge was entitled to consider Bamburak’s failure to comply with a court directive. Also, the judge’s review of the application was de novo. As part of his de novo responsibilities, the judge had the authority to request additional evidence regarding the domestic violence issue. We discern no error in the judge’s prudent request to hear cross-examined testimony from the ex-wife before rendering a final decision.
1 For example, Bamburak’s ex-wife accused him of causing her hearing loss.
2 Although no formal order was entered, the transcript reveals that the judge unambiguously directed Bamburak to produce the tapes by November 9, 2007.
While forfeiture cases are nothing new in New Jersey, it seems to me that they are increasing in number. I first really noticed it when I had a client who filed a restraining order against his wife. At the hearing date, she announced that she wanted to file one against him. Since this was clear retaliation, we easily won. His temporary restraining order was converted into final restraining order and her TRO was dismissed.
So, now that we won, it was time to get his guns back. The prosecutor informed me that she would still be moving to forfeit them. My response was, wait, he’s the victim and you still want his guns? Another client just hired me with a similar situation. He gave his guns to the police for safe keeping while the TRO situation was sorted out. They didn’t even want them. Nevertheless, the State is now moving to forfeit all of his firearms even though the TRO was dismissed.
Another problem is what happens when firearms are seized due to a TRO but they belong to a third party that is not involved in the TRO hearing? In the past, it was rather easy to get them back. However, I think we will see the State looking for any reason to take them.
Here’s the worst part. The State doesn’t have to meet any standard of proof before they make a motion for forfeiture. Thus, you are not only put on the defense but you are in a position where you have to prove that you should get your own guns back. Crazy huh? Something needs to be done about this. Maybe a few law suits against the State for filing frivolous actions will stop this.
Two clients called me up today to appeal their denial of their purchase permits. They are good examples of permits that should have been approved. The first client says that his application has been pending for 3 years! The longest that I have heard of is around 18 months. At some point during this ordeal, he got into an argument with his wife and she told the police to deny his application. Months later, she changed her mind. Apparently, the police thought she was coerced into making this statement and denied him anyway. What a bunch of garbage huh?
The next guy had a criminal charge from many years ago that was dismised. He applied for a permit and was denied. When he appealed, the judge asked him why he needed a gun and the guy didn’t have a good answer, so the judge denied it. Of course, the burden is not on you to prove why you want to exercise your rights. He applied again and was denied again.
Both men now have to either give up or spend much more money on appeal than it would have cost if they would have hired an attorney to begin with. Thus, I view this as such a waste of time and money.