Here is the law on inheriting guns. As always, be very careful if you plan to do this without an attorney.
13:54-1.13 Firearms passing to heirs or legatees
(a) Notwithstanding the provisions of this subchapter concerning the acquisition of a firearm, a permit to purchase a handgun or a firearms purchaser identification card shall not be required of an heir or legatee for the passing of a firearm, upon the death of its owner. A person so acquiring ownership may retain the firearm if he or she meets the requirements of N.J.A.C. 13:54-1.5 and 1.6.
(b) If an heir or legatee is not qualified to acquire a firearm, he or she may retain ownership of the firearm for the purpose of sale for a period of 180 days, which period may be extended by the chief of police or the Superintendent.
During such period the firearm must be placed in the custody of the chief of police or Superintendent.
(c) In the case of assault firearms or machine guns disposition shall be in accordance with N.J.A.C. 13:54-5.
I had two calls this week that illustrate the difference between getting an attorney for a permit application and not getting one.
One new client called me because he was denied a purchase permit. He did not have an attorney during the process. He was denied because there was a warrant for his arrest out of California. The problem is, there does not seem to really be any arrest warrant as every court he calls tells him that there is nothing in their system. Nevertheless, he would have to pay me a lot more money to clear this up.
Contrast that to a client that did hire me. A Sgt from the State Police called me and advised me that my client failed to disclose an arrest and that he was not happy. The Sgt said that he could file criminal charges against my client for lying on the application but that he wouldn’t. In fact, he is going to put the application on hold while we gather the missing information. My client can then amend the application to include this new information.
If avoiding thousands of dollars of legal fees and possible criminal charges doesn’t provide you with incentive to hire an attorney for the permit application, I don’t know what will.
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.
Guy called me today to handle an appeal for a gun permit. He was denied because he had a conditional discharge and his ex-girlfriend filed false complaints against him several years ago, all of which were dismissed. In fact, she actually pled guilty to making false complaints!
Luckily for this guy, I think he has a great shot on appeal. However, it will just cost him more money than if he hired me to do the permit application in the first place.
This case is a major win against the war against 2nd Amendment rights in New Jersey!
SUPERIOR COURT OF NEW JERSEY
IN THE MATTER OF THE APPLICATION
OF R.M.1 FOR A PERMIT TO PURCHASE
A HANDGUN AND A FIREARMS PURCHASER
January 23, 2009
Submitted December 16, 2008 – Decided
Before Judges Graves and Grall.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County.
R.M. appeals from an order dated December 20, 2007, denying his application for a permit to purchase a handgun and a firearms purchaser identification card. N.J.S.A. 2C:58-3(a) and (b). After reviewing the record, the briefs, and the applicable law in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun and a firearms purchaser identification card to any person of “good character and good repute” who is not subject to any of the enumerated exceptions. The statute provides, in part, as follows:
No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:
(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L.1991,c.261(C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense;
(2) To any drug dependent person as defined in section 2 of P.L.1970,c.226 (C.24:21-2), to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;
(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 such 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;
“[T]he statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public.” State v. Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982). See Application of Marvin, Jr., 53 N.J. 147, 156 (1969) (“[T]he sole issue is [the applicant’s] current qualification to purchase . . . weapons.”). The broad catch-all provision of section (5) relates “to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.” In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).
In this case, R.M. was a forty-one-year-old carpenter, residing in Hoboken, when he applied to the Hoboken Police Department for a permit to purchase a handgun and a firearms purchaser ID card in January 2007. On his application form, R.M. certified he had not been convicted of a crime or a disorderly persons offense, and he was not subject to any of the other statutory disqualifications. The investigation conducted by the Hoboken Police Department, however, disclosed he had two drug-related arrests and “a problem with drugs and alcohol in the past.” In a letter dated April 30, 2007, R.M. was notified by the chief of police that his application was denied pursuant to N.J.S.A. 2C:58-3(c)(5), because “disapproval is in the interest of the public health, safety or welfare.”
After his application was rejected by the chief of police, R.M. requested a hearing in the Superior Court. N.J.S.A. 2C:58-3(d). Hoboken Police Lt. James Roofe, the person who had investigated R.M.’s application, testified at the hearing. According to Roofe, R.M. had been arrested in New York in 1997 and charged with possession of crack cocaine, and he was also arrested in Hoboken in 1999 and charged with possession of marijuana. Roofe testified that the New York case was “dismissed and sealed,” and “the charge of possession of marijuana was amended to disturbing the peace, a city ordinance violation,” which resulted in a $175 fine. Because of R.M.’s past problems with both alcohol and drugs, Roofe recommended to the chief of police that R.M.’s application be denied:
Q. [A]s part of this application process, did you speak to any references of [R.M.’s]?
A. Yes I spoke to [R.M.’s] sister.
Q. Okay. And did you ask her about these arrests?
A. I asked her if her brother, who indicated to me that he had a problem with drugs and alcohol in the past, if she was aware of this? And she said that she was, that he had a problem with both drug[s] and alcohol in the past, but has been sober for the past five years.
Q. Okay. Now based on all of your investigation, did you make a recommendation as to . . . his permit application?
A. Yes, I recommended a denial of the application.
Q. What was that based on?
A. That was based on his past arrest history, and the fact that he had admitted to and confirmed by his sister a problem with both alcohol and drugs. The type of drugs involved in this case marijuana and crack/cocaine, we felt that it would be a safety issue somewhere down the line if there were any other problems with these areas.
Q. The results of your investigation and this recommendation [were] passed on to the police chief?
A. That’s correct.
In an effort to demonstrate that he was no longer suffering from drug or alcohol addiction, R.M. presented testimony from Dr. Anthony Todaro, a psychologist. Dr. Todaro’s testimony was consistent with his written evaluation, in which he stated:
Background and General Alcohol Involvement. This is a 42-year-old white male who is currently being seen in an outpatient setting. He does not show clear preference for any particular type of alcohol, beer, wine or liquor. The largest amount of alcohol consumed on any particular day is reported to be 16 or more cans of beer and that was over five years ago.
This person acknowledges some involvement with the use of alcohol, but that is no longer an issue since he is now a committed member of Alcoholics Anonymous. There is no preoccupation with alcohol at this time or any other drugs. [R.M.’s] close friend [J.H.] and coworker . . . confirms the fact that [R.M.] is a completely sober, honest, and dependable person. There is no concern for any type of deviant behavior. [T.J.], a 60 year old who he sponsors, also confirms this.
. . . .
The client does report historically, in an open and honest fashion, that he had an addictive disposition and that he did use illicit and street agents at the time. . . . At this time, however, he has withdrawn completely from the use of street drugs and alcohol and thereby the past diagnoses of psychoactive substance abuse and alcohol abuse are both in remission. . . .
. . . .
In summary, it can be stated with reasonable psychological certainty that [R.M.] has demonstrated himself to be completely safe and drug free for seven years and alcohol free for a minimum of a five-year period. He attends AA meetings with great regularity and has been endorsed by his friends as being a reliable, conscientious, and committed person who they can trust implicitly and explicitly. . . .
There is absolutely no evidence that he has any propensity whatsoever to indulge in alcohol or any psychoactive substances. At this point, he appears to be perfectly safe in handling firearms. There was no evidence to the contrary and there has never been any report of his misuse of any type of weapon nor any type of altercation or domestic violence.
When R.M. testified, he admitted that he had abused alcohol and drugs in the past, but he also testified that he had been “drug and alcohol free for over five years.” During cross-examination, he testified as follows:
Q. [R.M.], when you were arrested in I believe it was March of 1997 that was in Brooklyn, New York; correct?
Q. And you were arrested for possession of crack/cocaine?
Q. Were you using crack/cocaine at that time?
Q. Okay. And that charge was later dismissed in 1997; correct?
. . . .
Q. All right. Now in 1999 you were again arrested for possession of marijuana in Hoboken?
Q. [Y]ou later pled guilty to an amended charge of disturbing the peace?
Q. [W]ere you using marijuana at that time in 1999?
Q. All right. Now between ’96 and ’99 were you using marijuana and crack/cocaine?
A. Between ’96 and ’99.
Q. You had told Dr. Todaro that you had a substance abuse problem?
Q. When did that start approximately?
A. It was, you know, probably as a — you know, . . . as a teenager.
Q. Teenage years. So approximately 20, 30 years you were using, 20 years.
A. After I was arrested in Hoboken in 1999 . . . I stopped.
Q. You were still drinking at that point though?
Q. [Y]ou never sought any type of outpatient program or alcohol programs[?]
Q. You did join AA however?
. . . .
Q. And . . . you said [it is] about five years, eight months [since] you’ve stopped drinking?
During his closing remarks, R.M.’s attorney argued that his client had presented “satisfactory proof” that he no longer suffers from a “disability in such a manner that would interfere with or handicap him in the handling of firearms.” He also argued that R.M.’s application should have been approved because R.M. “is a person of good repute in his community,” who is not subject to any of the statutory disabilities. On the other hand, the prosecutor argued that the police chief was justified in denying R.M.’s application due to concerns regarding his prior abuse of alcohol and drugs and because: (1) R.M. had failed to produce a certificate from a medical doctor or psychiatrist under N.J.S.A. 2C:58-3(c)(3); and (2) Dr. Totaro acknowledged he never administered any test to determine whether R.M. was using alcohol or drugs.
In its oral decision on December 20, 2007, the trial court found that: (1) R.M. pled guilty to a disorderly persons offense following his arrest for possession of marijuana in 1999; and (2) R.M.’s prior substance abuse problems demonstrated “his general willingness to break the law and his ill repute in the community.” We recognize, of course, that findings by a trial judge are “binding on appeal when supported by adequate, substantial and credible evidence.” Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nevertheless, there is no evidence in the record before us that R.M. ever pled guilty to a disorderly persons offense, and we cannot agree that two arrests, which occurred approximately ten years ago, demonstrate a present willingness to break the law.
With respect to R.M.’s character and reputation, we note that “a reputation witness restates the community’s assessment of the subject’s character.” Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 309 (2006). Reputation has been defined as a “resultant picture of forgotten incidents, passing events, habitual and daily conduct . . . a multitude of trivial details.” Id. at 313 (quoting Michelson v. United States, 335 U.S. 469, 477, 69 S. Ct. 213, 219, 93 L. Ed. 168, 174-75 (1948)). In this case, R.M. provided the Hoboken Police Department with the names and addresses of “two reputable persons,” who were contacted by Lt. Roofe, and there was no testimony by Lt. Roofe that he received any negative information regarding R.M.’s character or reputation during his investigation. Thus, the record does not support the court’s finding that R.M.’s application should be denied because he is not a “person of good character and good repute in the community in which he lives.” N.J.S.A. 2C:58-3(c).
In light of these errors, R.M.’s attorney urges us to approve R.M.’s application. Alternatively, R.M. argues the order denying his application should be vacated, and he “should be granted a fair procedural application process, utilizing proper forms and applying proper standards of law.” However, because it has been more than a year since the court denied the application, and there is a need to focus on current circumstances, we will remand the matter to the trial court for further proceedings.
Finally, although N.J.S.A. 2C:58-3(e) provides for the use of standardized application forms, we are satisfied R.M. was not prejudiced by the firearms application form he was required to submit to the Hoboken Police Department. Dr. Totaro reported that R.M. “was open about his arrests” in 1997 and 1999, and “[t]he dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm.” In re Osworth, supra, 365 N.J. Super. at 78.
The order appealed from is reversed, and the matter is remanded to the trial court. Both parties shall be afforded an opportunity to supplement the record, if they elect to do so.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
1 We are using initials for appellant pursuant to Motion Order No. M-5881-07 filed on July 8, 2008.
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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