Client called me for a domestic violence criminal charge to attempt to get the charge dismissed. He wants to get a gun permit and did not want to have any problems. Over the years, he had some domestic violence issues with his family which included a restraining order from the 80’s. Not only was the final restraining order still in place, but he is living with the person and has been for many years! Thus, not only is he looking at criminal charges if the police ever figure this out but he will never get a gun permit with that FRO in place. He just never gave it any thought or realized that it was still in place. So the criminal charge he was worried about is nothing compared to the problem of having a FRO against him. He had he applied for the gun permit, the police would have put two and two together and he would have been arrested for the contempt.
After speaking with me, he should be on track to getting everything worked out. It may take a while, but he should be able to get a gun permit sooner or later.
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.
If you are reading this blog, you are probably a big fan of the 2nd amendment already. However, if you could care less or if you think that an attorney isn’t necessary when applying for a permit or dealing with other legal issues, then consider this scenario.
Husband, a volunteer firefighter and civil war reenactor is the victim of years of domestic violence from his wife. He finally decides to file for divorce. When she is served, she flips out and tries to kill herself. After she spends a few weeks in the hospital, she assaults her husband during an argument. He files for a temporary restraining order (TRO) and she is forced to leave the residence.
At the return date for the TRO, the wife decides she wants to file for a TRO as well so everyone has to come back on another date. Problem is, now Husband gets his guns taken away until the TRO issue is resolved. At the hearing for both TROs, the husband wins and defeats the wife’s TRO. Thus, in New Jersey, the TRO is converted into a final restraining order.
Great. Case over right? Husband can go pick up his guns now because he is obviously the victim right? WRONG! The prosecutor still decides that Husband should not have his firearms back. The reason? Because there is a restraining order in place. You know, the one where the Husband is the victim!
I have lived this scenario for about the last 10 months and today, we finally ended it. At first, the prosecutor tried to argue that a victim of domestic violence could not own guns if they are protected by a restraining order. Of course, that is ridiculous. But, this is New Jersey so you have to actually fight this as a court will not look at this and throw this out of court. I showed the court and the prosecutor that the prosecutor’s theory is crazy and that my client should get his firearms back. The prosecutor suggests we wait until after the divorce is over to see if everything calms down. Fine.
Many months later, the divorce is now over. However, the now ex-wife still doesn’t want my client to have his firearms back. In fact, right as the divorce case was ending, she files another TRO which is also denied. However, there were some more firearms that were left in her house that were also taken when this new TRO was first signed. Thus, my client, at that point, had lost even more firearms.
This week, we finally had the hearing. The prosecutor moved under the theory that returning the weapons to my client would be against the safety and welfare of the general public. Keep in mind that, unlike almost every other case an attorney handles, there is no discovery and no deposition. The State puts on their witness and you don’t really know what they will say or what evidence they will introduce. To say you need to be a damn good attorney to process everything, develop cross examination on the fly, and then come up with a good summation is an understatement. To complicate this matter even further, the law on this issue is rather vague.
The ex-wife got on the stand and lied about my client. However, she can make up a good sob story. I was genuinely worried that the judge would buy her garbage and side with the prosecutor. One thing I forgot to mention is that my client is a really good guy. While I like all of my clients, this guy is one of the best people you will ever find. It really came out in the stand and I asked all the right questions.
I was a little concerned because the judge is new to family court and I don’t know how many of these cases she has handled. She decided to research the issue and place her decision on the record several days later which, from then, is today. So, I came back to court today and I anxiously awaited the decision. Basically, I won hands down. It wasn’t even close. However, that is only because the judge actually listened to what I had to say, paid attention to the testimony and researched the law. In New Jersey, you don’t find a judge like this every day.
If you are every facing a situation like this, I do not suggest you handle this by yourself. If you are an attorney and you don’t handle these issues, I don’t suggest you just wing it. For those attorneys who handle these issues, here’s a few tips, some of which are rather basic:
1. Like any case, your client’s demeanor is key.
2. Know the law. The prosecutor had nothing to say when it came to the law.
3. I didn’t feel the need to cross examine her to death. It was rather easy to tear down her credibility due to the two dismissed TRO’s, my client’s FRO, and the fact that she said that an entire police department conspired against her because my client is a volunteer fireman. Oh yeah, the fact that she tried to kill herself didn’t help her either.
4. I stressed many positive aspects about my client. He has never been pulled over for DWI and has never been arrested. He works hard, volunteers his time has a fireman, etc. Basically, he’s a great guy as I’ve said before.
5. I refuted every allegation she made. This is important and is often over looked by some attorneys. If she brings it up, you have to knock it down.
6. Explain why your client has guns. Again, another big point often over looked. No one likes a “gun nut”. Yeah, I know, I’m using their terms, not mine. You have to fight against that perception if your client has more than just one or two guns. My client explained that some guns were used for shooting while others were used for the civil war reenacting. Thus, the judge felt that he had a legitimate need for his weapons. Keep in mind that his isn’t a factor or some other requirement, but it helps the court.
I hate to make one case seem more important than any other, but lets face it, that happens. Because my client is just a cool guy and he was getting screwed, I just had to win this case. I felt that I needed to send the message that this is wrong and they should know that they cannot do this to anyone else. It feels good that even in New Jersey, preparation, skill and a judge that is willing to apply the law will win the day in the end so that the rights of everyone else will be protected.
SUPERIOR COURT OF NEW JERSEY
Submitted October 20, 2008 – Decided
Before Judges Reisner and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FV-15-0648-08.
Defendant Thomas Guzenski appeals from an October 18, 2007 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm the court’s finding that defendant committed domestic violence within the meaning of the Act but vacate that portion of the order prohibiting defendant from possessing martial arts weapons and remand for further proceedings.
On September 25, 2007, plaintiff Jessica McAteer filed a complaint seeking the ex parte issuance of a temporary restraining order (TRO) against defendant, whom she had dated for a short period of time. Plaintiff alleged that after she discontinued the relationship, defendant engaged in acts of harassment by watching her, appearing at her house, walking up her street, bringing gifts to her children, and holding her down on his bed when she came to his home to request that he return money that was hers. Plaintiff also alleged that defendant called her crazy, a maniac, a slut, and a liar. The complaint identified martial weapons that defendant allegedly possessed as consisting of a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives, and nunchucks.
The matter was conferenced before a hearing officer, who recommended that the court issue a TRO. The court issued a TRO after taking testimony on the record that was limited, however, to plaintiff’s expressed concern that defendant possessed martial arts weapons. Based upon this testimony, the TRO included the issuance of a search warrant directing police to search defendant’s premises and seize any of the items described in the complaint for safekeeping.
On October 18, 2007, the court conducted a final hearing at which both parties appeared and were represented by counsel. Plaintiff testified that she and defendant started dating in early September and the relationship continued for a few weeks until September 23, when she broke off the relationship. On that date, she had gone to Atlantic City and called defendant to tell him that she wanted to talk to him. Upon her return, he picked her up at the bus station and, rather than taking her home as she requested, he took her to his residence, where they went to his bedroom and talked. While there, she questioned him about money she had left with him to deposit in her bank account. Defendant, however, pressed her for an explanation why she no longer wanted to be with him. When she attempted to leave, he grabbed her and held her down on his bed until his mother entered the room. Plaintiff testified that she then ran out of the room and left the house. The next day, defendant started text messaging her and making telephone calls to her at all hours of the day and night. He also sent e-mails to her and placed disparaging comments about her on a website known as MySpace. On cross-examination, she acknowledged that she responded to some of the e-mails and also admitted that in none of the text messages, e-mails, or telephone calls to her did he threaten her.
Plaintiff called her grandmother as a witness, who testified that plaintiff and plaintiff’s children lived with her. She recalled that police came to her home on September 24, at which time her granddaughter provided information to them about defendant. She testified that defendant called the house on September 25 and asked for plaintiff, and when she told him plaintiff was not there, he proceeded to ask her how she felt about the “fiasco” from the previous evening. When she asked him to what “fiasco” he was referring, he responded, “[W]ell, that’s okay. . . . [I]f Jessica wants to get dirty, I’ll get dirty too.” He told her that he would call the Division of Youth and Family Services (DYFS) and tell them that her granddaughter was on drugs, a stripper, and that her children sleep on the floor. Plaintiff’s grandmother testified that the next day, a representative from DYFS appeared at her home and the conversation she had with the representative was “almost verbatim what he [defendant] said to [her] on the phone. But [defendant] claim[ed] he didn’t call DYFS.”
Plaintiff’s next witness was the father of one of her children. He testified that defendant called him and they had a discussion for about one hour, during which he told defendant that he did not want him to “bring drama to the house where my baby lives.” He explained that he and defendant had been friends but that he had not talked to him in a long time. Defendant thereafter called him on two other occasions. Defendant told him that he was lonely. He invited defendant to his home and defendant accepted the invitation. On the final occasion when defendant called him, defendant asked whether he wanted defendant to contact DYFS “being that he [defendant] was upset with [plaintiff].” He also testified that he saw defendant around 5:30 p.m. on Sunday, September 23. He explained that he had gone to plaintiff’s home to drop off his daughter as he usually did every Sunday. While he and plaintiff were outside talking by his car, he saw defendant, who lived down the block from plaintiff. Defendant approached and the two of them spoke while plaintiff was in the house. When plaintiff came back outside, defendant handed her some movies that apparently belonged to her and that defendant was returning.
Defendant testified and acknowledged that he sent plaintiff text messages between September 24 and 25. He indicated that his purpose in doing so was to “return money and to speak with a friend.” According to defendant, when they broke up, he told plaintiff that he could not talk to her anymore but that she convinced him to be friends. He also testified that plaintiff “never told [him] once not to contact her or not to — if she would have told [him] to leave her alone, [he] would have gladly left her alone.” He denied that he grabbed plaintiff and held her down on his bed as plaintiff had testified, stating that he “never laid a finger on her ever.” He confirmed that he had martial arts weapons in his home, some of which were collectibles, but denied that he ever threatened to harm plaintiff with the weapons. He testified that the only time plaintiff would have seen him in actual possession of the weapons would have been while he was practicing martial arts. He explained that until the events before the court happened, he was preparing for a career in martial arts. Additionally, he admitted to placing thoughts about plaintiff on his MySpace account. Finally, defendant acknowledged that he had spoken with plaintiff’s grandmother. He described the telephone call as his effort to apologize for the “confusion” and “mess” but the conversation was cut short when plaintiff came on the phone.
At the conclusion of the testimony, the court made the following findings:
In this case the victim alleges that after she said enough, it’s over, the defendant refused to recognize that and continued to make communications by text message, by phone, by showing up at the home unannounced, by calling other people, by putting a blog in, I guess, on his My Space page, a reference on his MySpace.
The victim has been most emotional when she testified. Also testifying were two other witnesses, her grandmother and her friend. And she’s been crying, and she’s still crying as we speak now.
And she points out — and I have P-1 — a number of text messages that were sent at very inconvenient hours to her. And I’ve read the text messages and they speak for themselves. And I don’t need to go into each and every one of them, but there are certain text messages here that are chilling to the Court.
I saw a text message of an accident. Obviously, the defendant did not have an accident, and he did not deny this message.
“I thought you were different” is another one. “I guess the one of a kind shooting star was just for me, or I thought it was just for me. You hurt me so much. I’ve never shed a tear over a woman until you. Jessie, I’m sorry, but you hurt me so bad,” etc., “I hope it’s not too late. You don’t care about my feelings. I can’t believe I” — and the one that’s chilling is on September 23rd at 8:45 p.m. “I can’t believe I bought into your shit. You’re a lying cheater just like the rest. You get what you give. And I am way out of your league,” etc.
Now, defendant says he still wanted to be friends. If his idea of friendship is calling DYFS — and I do believe he called DYFS and I do believe the testimony of the grandmother that he threatened the grandmother that he was going to call DYFS. And that’s not one’s idea of friendship. And, clearly, he was looking for retribution. Clearly, these phone calls and text messages were not to give money back, which the money is still not returned, and could have obviously been put, simply put in the mail, but they were for a different reason. This was a jilted person who wanted his girlfriend back.
. . . .
The question — it’s a two-prong analysis. And the second prong is a restraining order now necessary to protect the victim. And I think that after a police officer speaks — and he’s acknowledged that the police officer came. He’s acknowledged that. And then recalled he could have. If the police officer says he did, he did; I don’t recall. On another occasion he said I don’t recall, he might have, he might have told me to leave her alone. And he still calls the grandmother and he still continues his conduct. And it’s dangerous conduct, and it’s putting the plaintiff in severe apprehension.
I see before me what looks like a mature young man, and sincerely sorry that he got involved in this, he got caught up in this. But I believe he did it.
The court entered an FRO prohibiting defendant from engaging in any future acts of domestic violence. The order also prohibited defendant from having any contact with plaintiff, her former spouse, her grandparents and children. Finally, the order prohibited defendant from possessing firearms and other weapons. The court advised defendant that its finding that defendant committed an act of domestic violence required “an automatic prohibition against owning any firearms or other weapons.” The present appeal followed.
On appeal defendant raises the following points for our consideration:
THE CASUAL, SHORT-TERM RELATIONSHIP BETWEEN MR. GUZENSKI AND MS. MCATEER DID NOT QUALIFY AS A “DATING RELATIONSHIP” UNDER NEW JERSEY’S DOMESTIC VIOLENCE PREVENTION ACT.
THE TRIAL COURT WRONGLY HELD THAT SEIZURE OF MR. GUZENSKI’S MARTIAL-ARTS COLLECTION WAS “AUTOMATIC” UPON ENTRY OF A DOMESTIC VIOLENCE FRO.
Defendant first argues that the allegedly casual, short-term relationship that existed between the parties is not the type of relationship the Act was designed to address for purposes of the issuance of a domestic violence restraining order. While there is no dispute that the dating relationship between plaintiff and defendant lasted less than one month, defendant did not raise this issue below and we therefore decline to address the matter on appeal. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, the duration of the relationship is but one factor in determining whether a dating relationship exists. See Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003) (noting that other factors should be considered, including the quality and frequency of the “interpersonal bonding” between the parties; the parties’ expectations; how the parties interacted with others in terms of their relationship; and any other factors unique to the relationship that point to the existence of a dating a relationship within the meaning of the Act).
Defendant next contends that the court improperly held that seizure of defendant’s martial arts collection was “automatic.” Specifically, the court stated that “there is a prohibition that is attendant to this finding [of the commission of an act of domestic violence] . . . against owning any firearms or other weapons.” We agree the court erred in reaching this conclusion.
The question of whether the entry of an FRO is automatically accompanied by a provision in the order prohibiting a defendant from possessing any weapons is a question of law. In determining whether the trial court’s application of the law was correctly applied here, we accord no special deference to its legal conclusions. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
N.J.S.A. 2C:25-29(b)(16) provides that in addition to entering an order prohibiting a defendant found to have committed an act of domestic violence from possessing any firearm, a “court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.A. 2C:39-1.” (emphasis added). Plaintiff claimed that defendant possessed martial arts weapons consisting of a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives, and nunchucks. Although martial arts items are not specifically identified as weapons in N.J.S.A. 2C:39-1, we are satisfied that the definition of “weapon” contained in this section as, “anything readily capable of lethal use or of inflicting serious bodily injury,” includes martial arts equipment. Ibid. Thus, the entry of an order permanently prohibiting defendant from possessing martial arts weapons is the type of relief a court is expressly permitted to grant under the Act. However, as the language of the Act makes clear, such a prohibition is permissive, not mandatory. N.J.S.A. 2C:25-29(b)(16). Because the court believed forfeiture of the martial arts collection was automatic, it made no findings that defendant’s continued possession of the martial arts collection would pose a threat to plaintiff or others. We are therefore constrained to vacate that portion of the FRO prohibiting defendant from possessing his martial arts collection.
In summary, beyond challenging whether the parties engaged in a dating relationship as contemplated under the Act and challenging the automatic prohibition against possessing martial arts weapons, defendant raises no further challenges to the court’s findings. We are satisfied that there is substantial credible evidence in the record to support the court’s finding that defendant committed a domestic violence offense and that an FRO was necessary to protect plaintiff. Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006). We defer to those findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), (holding a trial court’s findings of fact “are binding on appeal when supported by adequate, substantial, credible evidence.”) However, we vacate that portion of the FRO prohibiting defendant from possessing his martial arts collection and remand to the trial court for further proceedings to determine whether defendant should be permanently prohibited from possessing martial arts weapons.
Affirmed in part, vacated in part. We do not retain jurisdiction.
January 21, 2009
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