STATE OF NEW JERSEY VS. P.Z. (FO-03-0090-19, BURLINGTON COUNTY AND…

                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5083-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

P.Z.,

     Defendant-Appellant.
________________________

                    Submitted October 5, 2020 – Decided October 22, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    FO-03-0090-19.

                    Sendzik & Sendzik, P.C., and Evan F. Nappen,
                    attorneys for appellant (Louis P. Nappen, Janice L.
                    Richter, and Jay C. Sendzik, on the briefs).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant's personal firearms and firearms purchaser identification card

(FPIC) were seized pursuant to the Prevention of Domestic Violence Act of 1991

(PDVA), N.J.S.A. 2C:25-17 to -35. The State seized these items after his former

girlfriend, J.S., obtained a temporary restraining order (TRO) against him.

Although the Family Part denied a final restraining order (FRO), the State filed

a motion to forfeit defendant's weapons and FPIC under N.J.S.A. 2C:58-3(c)(5),

contending that defendant's possession of these items would be against "the

interest of the public health, safety, or welfare." We affirm the order under

review—dated June 3, 2019—which granted the State's petition for forfeiture of

the weapons and FPIC.

        Defendant and J.S. started dating in 2006. The couple had one child, who

was born in 2010. They lived together for a brief time prior to defendant's

military deployment in 2010, when the child was approximately four months

old. When he returned from Iraq in 2011, defendant did not move back in with

J.S. Rather, they continued seeing each other, but their relationship ended in

2014.

        J.S. had residential custody of the child. At first, defendant and J.S.

amicably resolved any issues regarding the child, but over time, the relationship

deteriorated. As part of her TRO application, J.S. alleged that in April 2010,

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                                        2
while the couple lived together, defendant pointed a loaded firearm in her face

and said, "[i]f [her ex-husband] comes to my home, this is the last thing he'll

see." Defendant denied this incident occurred. The judge noted that J.S.'s

testimony at a public safety hearing, held on December 18, 2018, differed from

her testimony at the FRO hearing, and he therefore "[found] it difficult to credit

her version of the incident[.]"

      J.S. also made harassment allegations, claiming that defendant was

"tracking" her and the child's movements and was recording their parenting

exchanges without her knowledge.        She asserted defendant used offensive

language, calling her a "bitch." J.S. said defendant threatened not to let her see

the child again, to ruin her current-husband's career, and to use his attorneys

against her. J.S. also contended that defendant abused animals, had untreated

post-traumatic stress disorder (PTSD), and that he had tried to commit suicide

during deployment. Defendant denied all allegations, except those involving his

PTSD.

      These events prompted J.S. to file for the TRO. A Family Part judge in

Burlington County first issued the TRO on May 25, 2018, which the judge

amended on June 1, 2018. Because of the TRO, the Ocean County Prosecutor's

Office (OCPO) seized twenty-seven weapons and an FPIC from defendant's


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                                        3
home. On June 5, 2018, the judge dismissed the TRO and declined to issue an

FRO.

       On September 6, 2018, the Burlington County Prosecutor's Office (BCPO)

served defendant with its notice of intention to obtain title to weapons and

"revoke any and all permits, licenses and other authorizations [he] may have to

possess th[o]se weapons." On June 3, 2019, the judge granted the State's petition

for forfeiture and entered the order under review.

       On appeal, defendant argues:

            POINT I

            THE ISSUANCE OF A WARRANT FOR THE
            SEARCH AND SEIZURE OF DEFENDANT'S
            PROPERTY WAS UNCONSTITUTIONAL AND
            INVALID.

            POINT II

            THE [JUDGE] ERRED IN CONSIDERING PTSD AS
            AN ISSUE WHEN THE STATE'S FORFEITURE
            PETITION DID NOT INCLUDE N.J.S.A. 2C:58-
            3[(c)](3) AS A BASIS FOR FORFEITURE[.]

            POINT III

            THE [JUDGE] ERRED IN TAKING JUDICIAL
            NOTICE OF THE PSYCHIATRIC REFERENCE
            TEXT DSM-5 REGARDING PTSD WITHOUT
            PROVIDING DEFENDANT WITH A COPY OF THE
            TEXT, NOTICE, OR AN OPPORTUNITY TO
            RESPOND.

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                                       4
POINT IV

THE [JUDGE] ERRED IN FINDING THAT THE
CENTURY ARMS RIFLE WAS A PROHIBITED
FIREARM[.]

POINT V

THE [JUDGE] ERRED IN CONCLUDING THAT
DEFENDANT ADMITTED THAT HE KNEW HIS
CENTURY ARMS RIFLE WAS PROHIBITED IN
NEW JERSEY[.]

POINT VI

THE    [JUDGE]   ERRED       IN     DENYING
DEFENDANT'S MOTION TO DISMISS FOR THE
STATE'S VIOLATION OF N.J.S.A. 2C:25-21(d)(3).

POINT VII

THE [JUDGE] ERRED IN REQUIRING WRITTEN
SUMMATIONS PRIOR TO THE CLOSE OF
TESTIMONY[.]

POINT VIII

THE [JUDGE] ERRED IN EXCLUDING EVIDENCE
OF THE CUSTODY AND [DCPP] MATTERS
PENDING WHEN [J.S.'S] DOMESTIC VIOLENCE
COMPLAINT WAS FILED[.]

POINT IX

THE [JUDGE] EXHIBITED BIAS IN FAVOR OF
THE STATE[.] (Not Raised Below)[.]


                                                A-5083-18T2
                      5
            POINT X

            IN ARGUENDO TO POINT IV ABOVE, EVEN IF
            THE ALLEGED FIREARM AT ISSUE IS FOUND TO
            BE AN "ASSAULT FIREARM," IT IS A VIOLATION
            OF DEFENDANT'S SECOND AMENDMENT
            RIGHTS TO BAR HIM FROM FURTHER FIREARM
            POSSESSION UNDER THESE CIRCUMSTANCES.
            (Not Raised Below)[.]

Defendant also submitted a reply brief raising the following arguments, which

we have renumbered:

            POINT XI

            DISPUTED ALLEGATIONS ARE NOT FACTS.

            POINT XII

            THE NEW JERSEY DOMESTIC VIOLENCE
            PROCEDURES   MANUAL     SETS    FORTH
            PROCEDURES THAT INCLUDE NOTICE TO THE
            COUNTY THAT ISSUES A TRO AND SEARCH
            WARRANT WHEN SERVICE IS MADE IN
            ANOTHER COUNTY.

                                     I.

      We begin our discussion by addressing the search and seizure of

defendant's weapons. Defendant asserts that we should vacate the June 3, 2019

order because there was no probable cause demonstrating that the search and

seizure were necessary to protect the life and well-being of J.S. We disagree

with this assertion.

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                                     6
      "Because 'a judicial declaration that a defendant poses a threat to the

public health, safety or welfare involves, by necessity, a fact-sensitive analysis,'

'an appellate court should accept a trial [judge's] findings of fact that are

supported by substantial credible evidence.'" In re Forfeiture of Pers. Weapons

and Firearms Identification Card belonging to F.M., 225 N.J. 487, 505 (2016)

(internal citation omitted) (first quoting State v. Cordoma, 372 N.J. Super. 524,

535 (App. Div. 2004), then quoting In re Return of Weapons to J.W.D., 149 N.J.

108, 116-17 (1997)). Family Part judges' findings are entitled to deference

because "they are judges who have been specially trained" in family matters.

J.D. v. M.D.F., 207 N.J. 458, 482 (2011).

      Therefore, we "do 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[.]" Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v.

Township of North Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). A search

executed pursuant to a warrant issued by a judge carries a presumption of

validity, State v. Valencia, 93 N.J. 126, 133 (1983), therefore we must accord

substantial deference to a trial judge's decision to issue a warrant. State v.


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                                         7
Sullivan, 169 N.J. 204, 211 (2001). However, questions of law are reviewed de

novo. Gere v. Louis, 209 N.J. 486, 499 (2012). A Family Part judge's legal

determinations are not entitled to any special deference. Ibid.

      When a plaintiff files a domestic violence complaint seeking an ex parte

TRO and alleging that the defendant has committed an act of domestic violence,

and "[i]f it appears that the plaintiff is in danger of domestic violence, the judge

shall, upon consideration of the plaintiff's domestic violence complaint, order

emergency ex parte relief, in the nature of a [TRO]. A decision shall be made

by the judge regarding the emergency relief forthwith." N.J.S.A. 2C:25 -28(g).

The PDVA further provides:

            Emergency relief may include forbidding the defendant
            from returning to the scene of the domestic violence,
            forbidding the defendant from possessing any firearm
            or other weapon enumerated in subsection r. of
            N.J.S.[A.] 2C:39-1, ordering the search for and seizure
            of any firearm or other weapon at any location where
            the judge has reasonable cause to believe the weapon is
            located and the seizure of any [FPIC] or permit to
            purchase a handgun issued to the defendant and any
            other appropriate relief.

            [N.J.S.A. 2C:25-28(j).]

      The PDVA allows a judge to issue a TRO "to protect a victim of domestic

violence and to enter an order authorizing . . . police to search for and seize from

the defendant's home, or any other place, weapons that may pose a threat to the

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                                         8
victim." State v. Hemenway, 239 N.J. 111, 116 (2019). "The purpose of a

search warrant issued pursuant to N.J.S.A. 2C:25-28[(j)] is to protect the victim

of domestic violence from further violence, and not to discover evidence of

criminality."   State v. Johnson, 352 N.J. Super. 15, 19 (App. Div. 2002).

"[T]here is a strong public policy in this State of prohibiting access to firearms

for those individuals determined to have committed acts of domestic violence ,

even on a prima facie basis, where their access to weapons enhances the risk of

harm to the victim." Id. at 33.

      Before a judge can issue an order to search for weapons under the PDVA,

the judge must find:

            (1) probable cause to believe that an act of domestic
            violence has been committed by the defendant; (2)
            probable cause to believe that a search for and seizure
            of weapons is "necessary to protect the life, health or
            well-being of a victim on whose behalf the relief is
            sought," see N.J.S.A. 2C:25-28(f); and (3) probable
            cause to believe that the weapons are located in the
            place to be searched.

            [Hemenway, 239 N.J. at 117.]

      "[P]robable cause requires that the issuing court only have a well-

grounded suspicion." Ibid.; see State v. Pinkston, 233 N.J. 495, 509 (2018)

(emphasizing that a showing of probable cause "is not a high bar" (quoting

District of Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 586 (2018))).

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                                        9
"[E]ven if a domestic violence complaint is dismissed and the conditions abate,

forfeiture may be ordered if the . . . defendant's possession of weapons 'would

not be in the interests of the public health[,] safety[,] or welfare.'" F.M., 225

N.J. at 510-11 (quoting N.J.S.A. 2C:58-3(c)(5)).

      The TRO judge specifically found that there was probable cause to

execute the search. As to the first requirement of Hemenway, the judge must

find probable cause that the harassment occurred. See 239 N.J. at 117. As to

N.J.S.A. 2C:33-4(a), under which the hearing officer and TRO judge found that

there was an act of harassment, "there need only be proof of a single such

communication, as long as defendant's purpose in making it . . . was to harass

and as long as it was made in a manner likely to cause annoyance or alarm to

the intended recipient." J.D., 207 N.J. at 477.

      In making this determination, the judge relied on the findings by the

hearing officer, J.S.'s affidavit, and J.S.'s testimony. Cf. Johnson, 352 N.J.

Super. at 34 (declining to find probable cause where the judge solely relied on

the content of the recommended TRO and did not have the benefit of a victim

affidavit or testimony). Although the judge ultimately denied the FRO, probable

cause existed. Defendant informed J.S. that he knew the exact times that the




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                                      10
child was dropped off. The TRO judge found that this was done with the intent

to harass and to suggest that he may be following or tracking J.S.

      The second prong of Hemenway was satisfied. While the alleged act of

domestic violence itself did not involve the use, or threatened use, of a weapon,

J.S. testified that defendant had pointed the weapon at her in the past.

Additionally, she testified that defendant kept a loaded handgun in his vehicle.

In considering the totality of the circumstances, see Sullivan, 169 N.J. at 216,

J.S. testified that defendant abused animals in the past, attempted suicide, and

has untreated PTSD. In considering all the allegations, the TRO judge had

probable cause to find that the search and seizure of the weapons was necessary

to protect J.S.'s "life, health or well-being[.]" Hemenway, 239 N.J. at 117

(internal citation omitted).

      As to the third requirement of Hemenway, J.S. testified to the types,

quantities, and locations of weapons that defendant possessed. She described in

detail how defendant stored a weapon in his car. J.S. knew of the weapons and

their locations from living with him and from their continuous relationship.

Therefore, there was probable cause that the weapons would be located in the

places to be searched. Ibid.




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                                      11
                                       II.

      Defendant argues that the judge erred in considering his PTSD as a factor

for forfeiture of his weapons and FPIC. Defendant contends that he was not

afforded notice that the State would rely, in part, on his PTSD—under N.J.S.A.

2C:58-3(c)(3)—and that therefore he was unprepared to respond.

      In an action under the PDVA, our review of a forfeiture of firearms and

FPIC is deferential. F.M., 225 N.J. at 505-06. "[A] judicial declaration that a

defendant poses a threat to the public health, safety or welfare involves, by

necessity, a fact-sensitive analysis[.]" Id. at 505 (quoting Cordoma, 372 N.J.

Super. at 535). Therefore, we "should accept a trial [judge's] findings of fact

that are supported by substantial credible evidence." Ibid. (quoting J.W.D., 149

N.J. at 116-17).

      "The State retains the statutory right to seek the forfeiture of any seized

firearms provided it can show that defendant is afflicted with one of the legal

'disabilities' enumerated in N.J.S.A. 2C:58-3[(c)]." Cordoma, 372 N.J. Super.

at 533. N.J.S.A. 2C:58-3(c)(3) provides:

            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 [FPIC], except as hereinafter


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                                       12
            set forth. No handgun purchase permit or [FPIC] shall
            be issued:

                   ....

            To any person who suffers from a physical defect or
            disease which would make it unsafe for him to handle
            firearms . . . unless [he] 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[.]

N.J.S.A. 2C:58-3(c)(5) specifies that a handgun purchase permit or FPIC shall

not be issued "[t]o any person where the issuance would not be in the interest of

the public health, safety or welfare[.]"

      Although the notice and petition for the forfeiture of defendant's firearms

did not explicitly state that defendant's PTSD would be used as a basis to support

the State's forfeiture petition, defendant had notice that it could be used. The

State asserted multiple reasons for its petition for forfeiture, partic ularly

including N.J.S.A. 2C:58-3(c)(5), which states that it "would not be in the

interest of public health, safety or welfare" for defendant to possess weapons

and/or an FPIC.

      J.S., in her complaint against defendant, explicitly cited PTSD as one of

her reasons for filing for a TRO. She raised defendant's untreated PTSD in a


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                                       13
hearing with the hearing officer. J.S. also mentioned it to the TRO judge during

the hearing. During the FRO hearing, she testified again regarding defendant's

PTSD, including on cross-examination by defendant's counsel.             Defendant

conceded that he was diagnosed with PTSD.

      N.J.S.A. 2C:58-3(c)(5) calls for forfeiture "in the interest of the public

health," whereas N.J.S.A. 2C:58-3(c)(3) notes that "any person who suffers from

a physical defect or disease which would make it unsafe for him to handle

firearms" may produce a doctor's certification stating 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[.]" Seeing as defendant conceded that

he suffered from PTSD, it is unbelievable to think that he was unaware this could

be raised against him, especially because the State cited public health and safety

as a reason for the petition for forfeiture.

      We therefore conclude that defendant had adequate notice that his PTSD

could be raised as a basis for the forfeiture of his weapons and FPIC.

                                         III.

      Defendant argues that the judge erred in taking judicial notice sua sponte

of the definition of PTSD, as defined by the Diagnostic and Statistical Manual

of Mental Disorders, Fifth Edition (DSM-5). He alleges that the judge "picked


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                                        14
and chose those portions of . . . the DSM-5 on PTSD . . . that confirmed [his]

beliefs[] and used them as a basis for forfeiture."

      N.J.R.E. 201 provides that:

            (b) Notice of Facts. The court may judicially notice a
            fact, including: (1) such specific facts and propositions
            of generalized knowledge as are so universally known
            that they cannot reasonably be the subject of dispute;
            (2) such facts as are so generally known or are of such
            common notoriety within the area pertinent to the event
            that they cannot reasonably be the subject of dispute;
            (3) specific facts and propositions of generalized
            knowledge which are capable of immediate
            determination by resort to sources whose accuracy
            cannot reasonably be questioned; and (4) records of the
            court in which the action is pending and of any other
            court of this state or federal court sitting for this state.

            (c) When Discretionary. The court may take judicial
            notice on its own.

            (d) When Mandatory. The court shall take judicial
            notice if a party requests it on notice to all other parties
            and the court is supplied with the necessary
            information.

            (e) Opportunity to Be Heard. On timely request, a party
            is entitled to be heard on the propriety of taking judicial
            notice and the nature of the matter noticed. If the court
            takes judicial notice before notifying a party, the party,
            on request, is still entitled to be heard.

            (f) How Taken. In determining the propriety of taking
            judicial notice and the nature of the matter to be
            noticed, any source of relevant information may be
            consulted or used, whether or not furnished by a party[.]

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                                        15
"The purpose of judicial notice is to save time and promote judicial economy by

precluding the necessity of proving facts that cannot seriously be disputed and

are either generally or universally known." State v. Silva, 394 N.J. Super. 270,

275 (App. Div. 2007). It may not be used to take notice of a contested fact or

ultimate legal issue in dispute. Ibid.

      "[A] text will qualify as a 'reliable authority' if it represents the type of

material reasonably relied on by experts in the field." Jacober v. St. Peter's Med.

Ctr., 128 N.J. 475, 495 (1992).          "General acceptance of the DSM in the

psychiatric community is beyond dispute." State v. King, 387 N.J. Super. 522,

544 (App. Div. 2006); see State v. Rosales, 202 N.J. 549, 559 (2010) (deeming

DSM-5 an "authoritative treatise").

      Defendant's PTSD was undisputed—indeed, he admitted his diagnosis.

The issue on the State's petition was how severe defendant's case of PTSD was,

and whether it posed a risk to the public health, safety, or welfare. See N.J.S.A

2C:58-3(c)(5). The judge took judicial notice of the general definition of PTSD.

The definition provided the judge with some insight as to the condition

defendant conceded he had. Defendant did not argue that the DSM-5's definition

was incorrect or in dispute, presumably because the definition came from a



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                                          16
widely used and relied upon source. King, 387 N.J. Super. at 544. Therefore,

the judicial notice of the DSM-5's definition of PTSD was proper.

                                        IV.

      Defendant argues that one of the firearms seized, the Century Arms rifle,

does not meet the definition of "assault firearm" and therefore is not a banned

firearm.

      N.J.S.A. 2C:39-1(w) defines "[a]ssault firearm," and contains a lengthy

enumerated list of firearms that meet this definition. Under N.J.S.A. 2C:39-

1(w)(2), any firearm that is "substantially identical" to any of these listed

firearms also constitutes an assault firearm. We have found that "the definition

of 'substantially identical' is sufficiently clear" when read in conjunction with

the Attorney General's guidelines. State v. Petrucci, 343 N.J. Super. 536, 547

(App. Div. 2001).

      According to these guidelines:

            [A] semi-automatic rifle that has the ability to accept a
            detachable magazine and has at least [two] of the
            following:

                    1. a folding or telescoping stock;

                    2. a pistol grip that protrudes conspicuously
                    beneath the action of the weapon;

                    3. a bayonet mount;

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                                        17
                   4. a flash suppressor or threaded barrel designed
                   to accommodate a flash suppressor; and

                   5. a grenade launcher[.]

             [Guidelines Regarding the "Substantially Identical"
             Provision in the State's Assault Firearms Laws issued
             by Attorney General Peter Verniero to the Director of
             the Division of Criminal Justice, All County
             Prosecutors, and All Law Enforcement Chief
             Executives on Aug. 19, 1996 (hereinafter AG's
             guidelines) (emphasis added).]

We have held that the AG's guidelines are to be read in conjunction with

N.J.S.A. 2C:39-1(w)(1) to make clear the definition of "assault firearm." See

Petrucci, 343 N.J. Super. at 547 (affirming that "the definition of 'assault

firearm' is sufficiently clear, especially in light of the [AG's] guidelines").

      Mr. James Ryan, the State's firearms expert, testified, and the judge

acknowledged, that the weapon was able to accept a detachable magazine.

Defendant acknowledged that his weapon had a pistol grip.                He further

recognized that it had a threaded barrel. Defendant stated that the threaded

barrel allows for attachment of additional items, such as a flash suppressor, onto

the rifle. These admissions alone would meet the AG's definition of semi-

automatic rifle.




                                                                             A-5083-18T2
                                        18
      Defendant argues that the weapon cannot be considered a firearm because

there was no proof that it was presently operable. Mr. Ryan examined the

weapon and concluded it was operable, however he did not test fire it. In State

v. Elrose, 277 N.J. Super. 548, 559 (App. Div. 1994), we concluded that test-

firing a weapon was not a prerequisite to finding a weapon operable. In that

case, "[t]he trial judge . . . concluded that, even though the State's expert did not

test-fire the magazines, there were sufficient inferences based on his testimony

that they were operable, assuming that proof of operability was required." Ibid.

      Although it is true that Mr. Ryan did not fire the weapon, defendant

himself testified that he had previously fired the weapon.

             [Defense counsel:] Did you ever fire that weapon?

             [Defendant:] I believe once. One session of firing. I
             don't know how many rounds I put through it. It wasn't
             a lot, I know that.

             [Defense counsel:] The expert testified there was a
             muzzle break on that rifle. Were you aware of that?

             [Defendant:] There's I believe it's a compensator but
             that would be splitting hairs but, yes, there is a muzzle
             attachment that he described as a muzzle break on the
             end of it.

             [Defense counsel:] Okay. Were you aware of that
             when you bought it?



                                                                             A-5083-18T2
                                        19
             [Defendant:] I knew there was a barrel attachment on
             the end. I could see it.

      Defendant also testified he fired the gun within the last six months. Based

on defendant's testimony and that of the State's expert, the judge found by a

preponderance of the evidence that the weapon was an assault rifle . The record

supports this finding.

                                         V.

      We reject defendant's argument that the judge unfairly concluded that the

rifle was "substantially identical" to a specific firearm listed on the banned list.

Defendant asserts the conclusion was unfair because he did not knowingly

possess an assault firearm.

      "The knowing violation of the gun laws in and of itself is a sufficient

statutory basis for the [judge] to order a forfeiture of seized weapons, without

the necessity of the [judge] also finding that the defendant is unfit or a danger

to the public in general[.]" State v. 6 Shot Colt .357, 365 N.J. Super. 411, 417

(Ch. Div. 2003); see State ex rel. C.L.H.'s Weapons, 443 N.J. Super. 48, 60

(App. Div. 2015) (affirming that the "knowing possession of an assault firearm

contrary to this State's gun control laws is sufficient basis for forfeiture"); accord

In re Osworth, 365 N.J. Super. 72, 81 (App. Div. 2003) (noting that "it does not



                                                                              A-5083-18T2
                                         20
serve public safety to issue a handgun purchase permit to someone who has

demonstrated his willingness to disregard the gun laws of this State").

      There was sufficient evidence that defendant knew the weapon was illegal

in New Jersey. The judge noted that defendant was familiar with New Jersey

firearms laws based on the fact that defendant was charged with possessing

illegal assault weapons in 1999. In fact, defendant stipulated to the police report

from the incident. The judge pointed out that defendant continued to possess

this weapon, even though he testified that he thought it was a prohibited weapon.

When asked whether the rifle is prohibited in New Jersey, defendant responded

"[i]n its current . . . configuration, yes." Moreover, defendant testified that he

was aware of and "generally" familiar with the AG's guidelines.

      The record establishes that defendant knowingly possessed an illegal

firearm. However, even if the judge did err in holding that defendant knowingly

possessed an illegal rifle—which is not the case—the error would be harmless,

as it has been established that the weapon was an illegal assault rifle, and

therefore it was not necessary for the State to prove that defendant knowingly

possessed the firearm. See C.L.H., 443 N.J. Super. at 60; see also R. 2:10-2.




                                                                           A-5083-18T2
                                       21
                                       VI.

      Defendant contends that the judge erred by dismissing his motion to

dismiss because the forfeiture was not filed within forty-five days of the seizure

of his weapons.

      According to N.J.S.A. 2C:25-21(d)(3):

            Weapons seized in accordance with the [PDVA] shall
            be returned to the owner except upon order of the
            Superior Court. The prosecutor who has possession of
            the seized weapons may, upon notice to the owner,
            petition a judge of the Family Part of the Superior
            Court, Chancery Division, within [forty-five] days of
            seizure, to obtain title to the seized weapons, or to
            revoke any and all permits, licenses and other
            authorizations for the use, possession, or ownership of
            such weapons pursuant to the law governing such use,
            possession, or ownership, or may object to the return of
            the weapons on such grounds as are provided for the
            initial rejection or later revocation of the
            authorizations, or on the grounds that the owner is unfit
            or that the owner poses a threat to the public in general
            or a person or persons in particular.

            A hearing shall be held and a record made thereof
            within [forty-five] days of the notice provided above.
            No formal pleading and no filing fee shall be required
            as a preliminary to such hearing. The hearing shall be
            summary in nature. Appeals from the results of the
            hearing shall be to [this court], in accordance with the
            law.

Time does not begin to run until the prosecutor either comes into possession of

the weapons or learns of the seizure. State v. McGovern, 385 N.J. Super. 428,

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                                       22
431 (App. Div. 2006); see also State v. Saavedra, 276 N.J. Super. 289, 294 (App.

Div. 1994) (presuming that the prosecutor could not take the required evaluation

to make an informed decision whether to seek forfeiture until the prosecutor

actually received the weapon or notice of the seizure). "If the statute [was]

applied literally, and if the clock began to run on the date of the seizure, . . . the

statutory scheme [may] be frustrated." McGovern, 385 N.J. Super. at 431.

      On July 24, 2018, the OCPO notified the BCPO that it was in possession

of a number of weapons that it had seized from defendant in connection with the

domestic violence action. Prior to this date, the BCPO had no knowledge of the

seizure and thus could not file a petition for forfeiture. The BCPO filed its

petition for forfeiture on September 6, 2018—forty-four days after July 24.

      In his reply brief, defendant argues, for the first time, that the State failed

to follow the procedures laid out in New Jersey's Domestic Violence Procedures

Manual. Defendant failed to raise this below, and therefore we decline to

address this argument. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

We briefly add that the manual provides that:

             [The] designated law enforcement agency in the issuing
             county must bring or fax the order and related
             documents to the sheriff's department or other
             designated law enforcement agency in the county of the
             defendant's residence or business.


                                                                              A-5083-18T2
                                         23
                   ....

            The return of service should then be faxed back to the
            sheriff's department or other designated law
            enforcement agency in the issuing county, which in turn
            must immediately deliver or fax the return of service to
            the Family Division in the issuing county.

            [Domestic Violence Procedures Manual § 4.7 (2008).]

The manual further provides that the weapons "shall be secured by the

prosecutor in the seizing county for storage. At such time that the seized

property is needed by the prosecutor or Family Division in the issuing county,

the prosecutor in the seizing county shall forward same." Id. at § 3.14.3(B)(2).

      The manual "is intended to provide procedural and operational guidance

for two groups with responsibility for handling domestic violence complaints i n

the state of New Jersey—judges and Judiciary staff and law enforcement

personnel." Domestic Violence Procedures Manual, Notice at I (2008); see

T.M.S. v. W.C.P., 450 N.J. Super. 499, 504-05 (App. Div. 2017).             "Th[e]

[m]anual is not intended to change any statute or court rule, and in the event a

statute or court rule differs from th[e] manual, the statute or rule will control."

Domestic Violence Procedures Manual, Notice at I (2008).

      As it has been established, N.J.S.A. 2C:25-21(d)(3) requires that the

petition for forfeiture be filed within forty-five days of the prosecutor either


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                                       24
coming into possession of the weapons or learning of the seizure.                  See

McGovern, 385 N.J. Super. at 431; see also Saavedra, 276 N.J. Super. at 294.

Because the manual is not intended to change any statute or court rule, we find

that the BCPO promptly filed for forfeiture, and thus the judge did not err by

denying defendant's motion to dismiss.

                                        VII.

      Defendant argues that the judge erred by excluding evidence of an

ongoing custody matter and the DCPP investigation into J.S.'s husband.

Defendant claims that he sought to introduce this evidence not for the truth of

the matter asserted, but rather for his state of mind, for J.S.'s credibility, and for

her motivation for filing for a TRO.

      "Appellate review of a trial [judge's] discovery order is governed by the

abuse of discretion standard." State ex rel. A.B., 219 N.J. 542, 554 (2014).

"Thus, an appellate court should generally defer to a trial [judge's] resolution of

a discovery matter, provided its determination is not so wide of the mark or is

not 'based on a mistaken understanding of the applicable law.'" Ibid. (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).

However, "[i]n construing the meaning of a statute, court rule, or case law, 'our

review is de novo,'" and we owe no deference to the trial judge's legal


                                                                              A-5083-18T2
                                        25
conclusions. Id. at 554-55 (quoting Farmers Mut. Fire Ins. Co. v. N.J. Prop.-

Liab. Ins. Guar. Ass'n, 215 N.J. 522, 535 (2013)).

      Reports and information of child abuse reports are confidential and may

only be disclosed to a court "upon its finding that access to such records may be

necessary for determination of an issue before it[.]" N.J.S.A. 9:6-8.10a(b)(6);

see also N.J. Div. of Youth and Family Servs. v. N.S., 412 N.J. Super. 593, 637

(App. Div. 2010) (holding that release of DCPP records may only be made upon

demonstration that disclosure is necessary for determination of an issue before

the court). "[A]llowing a defendant to forage for evidence without a reasonable

basis is not an ingredient of either due process or fundamental fairness in the

administration of the criminal laws." State v. R.W., 104 N.J. 14, 28 (1986). The

party seeking the review "should at least advance 'some factual predicate which

would make it reasonably likely that the file will bear such fruit and that the

quest for its contents is not merely a desperate grasping at a straw.'" State v.

Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980) (citation omitted).

      The judge addressed defendant's proffer of the DCPP investigation

records and ultimately denied it, stating that admitting evidence of litigation that

was not between J.S. and defendant "runs the . . . severe risk of undue

consumption of time, and merely cumulative of other evidence which is clear to


                                                                            A-5083-18T2
                                        26
[the judge]." The judge explained that he did not wish to "throw a net . . . so

wide that it encompasses the possibility that any possible interactions between

. . . defendant and [J.S.] may have had over the many years of their relationship."

      J.S. was neither the subject nor the filer of the inquiry. The allegations

surrounding the investigation do not involve the child. Defendant failed to

reasonably demonstrate why this confidentiality should be breached, especially

considering that it involved the protected matter of another child. Further, the

judge noted that he found the introduction of this evidence would be repetitive

of what defendant already demonstrated. Therefore, there has been no abuse of

discretion, and the judge did not err by excluding evidence of the DCPP

investigation.

                                       VIII.

      Defendant argues that it is a violation of his Second Amendment rights to

bar him from further firearm possession. He argues that the statute's use of

"public safety" is not narrowly tailored, nor limited in time, and therefore is

unconstitutionally broad and vague. Defendant failed to raise this argument

below, and therefore we decline to address it. See Nieder, 62 N.J. at 234.

However, we add the following brief comments.




                                                                           A-5083-18T2
                                       27
      The Supreme Court recently addressed this argument and summarily

rejected it. F.M., 225 N.J. at 507-08 (noting that N.J.S.A. 2C:58-3(c)(5) and

(c)(8) have been upheld against Second Amendment challenges); see In re

Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009) (expressly finding that

N.J.S.A. 2C:58-3(c)(5) is not unconstitutionally vague); see also Crespo v.

Crespo, 201 N.J. 207, 210 (2010) (holding PDVA constitutional because "the

right to possess firearms clearly may be subject to reasonable limitations"); In

re Winston, 438 N.J. Super. 1, 10 (2014) (holding that District of Columbia v.

Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742

(2010), do not render N.J.S.A. 2C:58-3(c)(5) unconstitutional).

      To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude that they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      28
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