SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1583-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.A.,

Defendant-Appellant.

_____________________________

Argued October 17, 2019 – Decided

Before Judges Haas and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. 2018-014.

Paul E. Zager argued the cause for appellant (Paul E. 

Zager, attorney; Paul E. Zager and Jeff Edward 

Thakker, of counsel and on the briefs).

Lisa Sarnoff Gochman argued the cause for respondent 

(Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney; Lisa Sarnoff Gochman, of counsel 

and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

October 23, 2019
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A-1583-18T4

Appellant S.A. appeals from a November 1, 2018 Law Division order 

upholding a municipal police department's denial of his application for a New 

Jersey Firearms Purchaser Identification Card (FPIC) and a handgun purchase 

permit. Because the trial judge based his decision solely upon hearsay presented 

by a detective and the chief of police at the evidentiary hearing, we are 

constrained to reverse the decision denying the application and remand for 

further proceedings.

The parties are fully familiar with the procedural history and facts of this 

case. After appellant submitted his application, a detective assigned to the 

township police department conducted an investigation, which included a 

routine records check. As a result of this investigation, the detective determined 

that appellant "ha[d] a criminal history as well as a history of domestic violence 

incidents." Specifically, the detective learned that appellant had been charged 

with simple assault in 2001 after he allegedly pushed his sister. This charge was 

later dismissed.

In 2002, appellant was charged with theft, which was also dismissed after 

appellant was accepted into the pre-trial intervention program. Ten years later, 

in 2012, appellant was charged with aggravated assault and criminal restraint 

after he allegedly choked his former spouse. These charges were subsequently 
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downgraded to a "local ordinance violation." That same year, while appellant 

and his former spouse were in the midst of divorce proceedings, appellant was 

arrested for defiant trespass after he allegedly entered his spouse's home without 

permission. This matter was also dismissed.

The detective also found four other matters during his investigation that 

did not result in appellant's arrest. In the first incident, appellant's former spouse 

filed a complaint against him for allegedly accessing her email account during 

their divorce proceedings. In 2004, he allegedly had a verbal dispute with his 

former spouse; in 2013, there was a custody dispute; and, in 2016, appellant was 

purportedly involved in a "road rage" incident.

In his application, appellant correctly answered that he had never been 

convicted of a crime, a disorderly persons offense, or a domestic violence 

offense. However, the detective asserted "that that was not the case[,]" and 

recommended that the chief deny the application because appellant "lied on the 

application." On March 12, 2018, the chief of police (chief) agreed with the 

detective's assessment and denied appellant's application.

Appellant's attorney contacted the detective to point out that appellant had 

accurately answered the pertinent questions on the application form. He also 

appealed the chief's determination to the Law Division.
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In May 2018, the detective reopened his investigation as appellant 

requested. The detective also contacted appellant's former wife, his wife's 

father, and appellant's sister. The detective testified that appellant's ex-wife told 

him that she was "[o]ne hundred percent against" the idea of appellant obtaining 

a firearm because he "still has anger issues" and is a "loose cannon." The 

detective stated that appellant's sister generally supported his permit application, 

but understood the concerns the detective had about his prior arrests. 

Appellant's sister allegedly told the detective that appellant had pushed her, 

threw her to the ground, and punched her. Appellant's father-in-law advised the 

detective "that he did not want to participate in the interview because he did not 

want his answers to upset the current positive aspects of his relationship with" 

appellant.

Based on this information, the detective concluded that even though 

appellant had not falsified his application, the application should still be denied 

because issuing a FPIC and a purchase permit would not be in the interest of 

public health, safety, or welfare under N.J.S.A. 2C:58-3(c)(5). The chief 

concurred with the detective's recommendation. Before the evidentiary hearing, 

appellant successfully applied for an expungement of his arrest record.
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At the hearing, appellant acknowledged that he previously had an arrest 

record prior to its expungement, reviewed each arrest and complaint during his 

testimony, and steadfastly denied that any of the incidents occurred in the 

manner described in the detective's investigation report. Significantly, the 

detective conceded during his testimony that appellant had never been convicted 

of a crime, and that all the detective had discovered were "unproven 

allegations[.]" In spite of this fact, the State did not call appellant's former 

spouse, his sister, or his father-in-law to testify about the details of any of the 

incidents discussed in the detective's report.

At the conclusion of the hearing, the judge rendered a written opinion 

denying appellant's application. The judge rejected appellant's contention that 

the chief should not have considered the facts underlying each of his arrests 

because his arrest record had been expunged.1

 

1

 We agree with the judge's ruling on this issue. It is well established that "[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 

or recover one previously taken by the police." In re Osworth, 365 N.J. Super. 

72, 78 (App. Div. 2003) (citing In re Return of Weapons to J.W.D., 149 N.J. 

108, 110 ((1997)); see also In re J.D., 407 N.J. Super. 317, 327-29 (Law Div. 

2009) (holding that an applicant for a FPIC and handgun purchase permit is 

required to waive privilege of expungement "because government has a duty to 

determine whether the applicant qualifies lawfully to own a handgun").
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In thereafter considering those facts, however, the judge relied solely upon 

the detective's testimony and investigative reports, which contained his hearsay 

accounts of what the arrest records alleged had occurred and what appellant's 

character references had told him. None of this hearsay was corroborated in any 

way at the hearing. Appellant denied committing any of the offenses. The judge 

did not refer to this testimony in his decision, and made no findings concerning 

appellant's credibility. Although appellant's former spouse and his sister were 

presumably available to testify, the State did not call them as witnesses2to 

provide competent evidence to support the admittedly "unproven allegations" 

contained in the detective's written reports and testimony. 3

 

2

 At the hearing, the judge mistakenly asked appellant why his character 

references were not "coming here to testify today[.]" However, the State, rather 

than appellant, had the burden of producing competent evidence to support the 

chief's determination to deny appellant's application. Weston v. State, 60 N.J. 

36, 46 (1972). Thus, we reject the State's assertion on appeal that it "had no 

obligation to present the in-court testimony [of these witnesses] in lieu of [the 

detective's] own testimony recounting his interview with each" of them.

3

 As for appellant's former father-in-law, who refused to provide a statement to 

the detective concerning appellant's application because he wanted to maintain 

a good relationship with appellant, the judge stated that he was drawing an 

inference that the father-in-law's testimony would have been adverse to 

appellant. However, there was no competent evidence in the record to 

corroborate the detective's hearsay statement concerning what this individual 

told him. Under those circumstances, the judge should not have drawn an 

adverse inference with regard to the father-in-law's alleged statement.
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Based solely on the hearsay evidence presented by the detective and the 

chief, the judge concluded that "the State had shown by a preponderance of the 

evidence that the issuance of [appellant's] gun permit would lead to concerns for 

the public health, safety, or welfare" under N.J.S.A. 2C:58-3(c)(5). Therefore, 

the judge denied the application. This appeal followed.

On appeal, appellant primarily argues that the judge based his decision to 

deny his application solely on the hearsay information contained in the 

detective's investigation reports concerning his review of defendant's arrest 

records and the complaints filed against him, even though defendant testified 

that none of these incidents occurred in the manner described in those records. 

We agree.

On appeal, we are bound to accept the judge's fact findings if they are 

supported by substantial credible evidence, J.W.D., 149 N.J. at 116-17, but we 

exercise de novo review over the judge's legal determinations. Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The standards for reviewing an application for a FPIC and handgun 

purchase permit are well-settled. A municipal police chief has the discretion, 

"subject to standards which have been adjudged constitutionally adequate," to 

grant or deny an individual's application for a handgun permit or identification 
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card. State v. Weston, 60 N.J. 36, 43 (1972); see also N.J.S.A. 2C:58-3(d). 

"'The function of the Police Chief as the local administrative official charged 

with responsibility for the original decision to grant or withhold . . . involves 

largely the exercise of an informal discretion,' based upon the information

disclosed by a 'good faith investigation.'" In re Application of Boyadjian, 362 

N.J. Super. 463, 475 (App. Div. 2003) (citations and internal quotation marks 

omitted).

When reviewing an application, a police chief must consider the interests 

of the community and must not make a decision that is "arbitrary, capricious or 

unreasonable." Boyadjian, 362 N.J. Super. at 478. After completing the 

investigation, if the police chief decides to deny the application, there is "no 

obligation to hold a trial-type hearing before doing so." Weston, 60 N.J. at 43. 

If the chief decides, however, to deny the application, the applicant should be 

given "an opportunity . . . to discuss the matter . . . to be informed of the reasons 

for the denial and to offer any pertinent explanation or information for the 

purpose of meeting the objections being raised." Id. at 44.
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The chief's decision to deny an application is subject to de novo review4

by the Law Division, which "in this context contemplates introduction of 

relevant and material testimony and the application of an independent judgment 

to the testimony by the reviewing court." Id. at 45. The police chief bears the 

burden of establishing the existence of good cause for the denial by a fair 

preponderance of the evidence. Id. at 46. In evaluating the facts and the reasons 

given for rejection, "the court should give appropriate consideration to the 

Chief's investigative experience and to any expertise he appears to have 

developed in administering the statute." Ibid.5

In Weston, the Supreme Court stated that the trial court is to follow the 

following procedure in conducting its review:

At the outset of the [court] hearing, therefore, 

orderly and logical procedure calls for introduction 

through the testimony of the applicant of his application 

for the identification card, the rejection thereof and the 

reasons given by the Chief, if any. At this point he may 

be subjected to cross-examination by counsel for the 

 

4

 Appellant complains that there were procedural deficiencies during the review 

process conducted by the detective and the chief. However, under Weston, the 

trial court's de novo hearing "compensate[d] constitutionally" for any procedural 

mistakes made by these officials. Id. at 45.

5

 Appellant argues that the judge erred by considering the chief's prior expertise 

in reviewing gun permit applications. Based on Weston, we conclude that this 

argument is without sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3(e)(1)(E).
10 A-1583-18T4

Chief. Thereafter, the Chief should proceed with the 

evidence on which his denial was predicated. 

Ordinarily, this would include presentation of his own 

testimony, that of members of the police department 

who made the investigation and furnished reports to the 

Chief, any available lay or professional persons who 

furnished information which influenced the action 

taken by the Chief, and any admissible documentary 

evidence which played a part in the adverse decision. 

Upon completion of the Chief's proof, the applicant 

may offer relevant rebuttal testimony.

[Id. at 46 (emphasis added).]

The Court also recognized in Weston that the usual rules of evidence 

barring hearsay testimony are not necessarily controlling in an appeal from the 

denial of an application for a gun purchaser permit. Id. at 50. "However, a 

decision in such an appeal 'cannot be based upon hearsay alone.'" In re Dubov, 

410 N.J. Super. 190, 202 (quoting Weston, 60 N.J. at 51). "[T]here must be a 

residuum of legal and competent evidence in the record to support it." Ibid. If 

this standard is not met, the denial of a gun permit application should be 

reversed. Id. at 202-03.

Here, the State solely relied upon hearsay evidence in support of its denial 

of appellant's application. The only witnesses who testified, the detective and 

the chief, based their accounts entirely upon what was contained in written 

records concerning appellant's arrests, the complaints filed against him, and the 
11 A-1583-18T4

alleged comments made by his three character references. No one personally 

familiar with the specific facts concerning the incidents contained in those 

records testified to corroborate them or subjected themselves to the crucible of 

cross-examination concerning these incidents. The State did not call any of the 

character references to provide competent evidence concerning the positions 

they were taking with regard to appellant's application even though Weston

plainly states that such witnesses should ordinarily be called when available.

Appellant did nothing to corroborate the State's allegation that he engaged 

in any improper conduct during his testimony. He testified that none of the 

allegations that led to his arrests were true and, as a result, the matters were 

dismissed. Indeed, the detective admitted that the "allegations" made against 

appellant were "unproven." Significantly, the judge failed to discuss appellant's 

testimony in his decision, make any credibility determinations concerning it, or 

adequately address the Weston residuum rule issue raised by appellant.

Because the hearing was not conducted in conformance with Weston, we 

reverse the judge's denial of appellant's application, and remand for a new 

evidentiary hearing conducted in accordance with the procedures set forth in that 
12 A-1583-18T4

seminal opinion.6 Nothing within this opinion forecasts any views on the merits 

of applicant's permit application nor on the question of whether the State may 

be entitled to prevail after a fuller record is developed and presented to the trial 

court as mandated by Weston. We say no more than that the issues were not 

fully ripe for decision.

Reversed and remanded for further proceedings. We do not retain 

jurisdiction.

 

6

 We reject appellant's request that the case be assigned to a different judge on 

remand. An appellate court's authority to direct that a case be assigned to a new 

judge "may be exercised when there is a concern that the trial judge has a 

potential commitment to his or her prior findings." Graziano v. Grant, 326 N.J. 

Super. 328, 349 (App. Div. 1999). However, this authority should be exercised 

"sparingly[.]" Id. at 350. "In addition, consideration must be given to the fact 

that, to some extent, it would be counterproductive to require a new judge to 

acquaint himself or herself with the litigation." Ibid. Here, we discern no basis 

to remand this matter to a different judge. Thus, we direct the Assignment Judge 

to assign the case as he or she sees fit.