RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0546-20

IN THE MATTER OF

D.J.

___________________

Submitted October 21, 2021 – Decided November 3, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. 0217-XTR-2020-

1.

Adam M. Lustberg, attorney for appellant D.J. 

Mark Musella, Bergen County Prosecutor, attorney for 

respondent State of New Jersey (William P. Miller, 

Assistant Prosecutor, of counsel; Catherine A. Foddai, 

Legal Assistant, on the brief).

PER CURIAM

D.J. appeals from the Law Division's September 9, 2020 decision to grant 

a law enforcement officer's petition for a final extreme risk protective order 

(FERPO) that compelled D.J. to surrender his firearms. We affirm.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-0546-20

By way of background, the Extreme Risk Protective Order Act of 2018

(the Act), N.J.S.A. 2C:58-20 to -32, 

creates a two-stage process for issuing temporary and 

final orders to remove a person's firearms and 

ammunition, firearms purchaser identification card, 

handgun purchase permit, and handgun carry permit. 

N.J.S.A. 2C:58-23 (authorizing [the issuance of a 

temporary extreme risk protective order] TERPO); 

N.J.S.A. 2C:58-24 (authorizing [the issuance of a] 

FERPO). The court first decides, based on an ex parte 

documentary record, if it will issue a temporary order 

to remove firearms. See N.J.S.A. 2C:58-23. Then, 

after a plenary hearing, the court decides if it will issue 

a final order to remove firearms indefinitely. See

N.J.S.A. 2C:58-24.

[In re D.L.B., ___ N.J. Super. ___ (App. Div. 2021) 

(slip op. at 3).]

To obtain a TERPO, the petitioner must allege that "the respondent poses 

a significant danger of bodily injury to self or others by having custody or 

control of, owning, possessing, purchasing, or receiving a firearm." N.J.S.A. 

2C:58-23(a). The court "shall issue the order if [it] finds good cause to believe 

that the respondent poses an immediate and present danger of causing bodily 

injury to the respondent or others by having custody or control of, owning, 

possessing, purchasing, or receiving a firearm." N.J.S.A. 2C:58-23(e).

After issuing a TERPO, the court forwards the TERPO and information 

about the FERPO hearing to the petitioner. N.J.S.A. 2C:58-23(i)(1); N.J.S.A. 
3 A-0546-20

2C:58-24(a). "If the court finds by a preponderance of the evidence at the 

hearing that the respondent poses a significant danger of bodily injury to the 

respondent's self or others by having custody or control of, owning, possessing, 

purchasing, or receiving a firearm, the court shall issue" a FERPO. N.J.S.A. 

2C:58-24(b).

Here, D.J.'s wife, H.J., called 911 to report that she and D.J. had argued 

over his excessive drinking. When the police arrived at the home, H.J. and the 

couple's two adult sons told them that after the argument, D.J. went into the 

basement and then left the house. He later returned, entered the basement, and 

exited the house again. After D.J. left, the sons looked through the basement 

and noticed that D.J.'s shotgun and 9mm pistol cases were out of the safe. The 

pistol's safety was off and there were two loaded magazines nearby. One of 

D.J.'s sons told the police "he was afraid because of the threats his father had 

made a couple months ago to shoot the family." H.J. and the other son also said 

they were afraid of D.J. due to his alcohol abuse.

One of D.J.'s sons gave D.J.'s weapons and ammunition to the police, who 

secured a TERPO from the municipal court. The Law Division subsequently 

scheduled the FERPO hearing for September 9, 2020.
4 A-0546-20

Pursuant to Administrative Directive #12-20, "Principles and Protocols 

for Virtual Court Operations During the COVID-19 Coronavirus Pandemic – (1) 

Methods of Conducting Remote Court Events; (2) Access to the Public Record; 

and (3) Posting of Events Guidance" (April 27, 2020) (the Directive), a court 

may conduct a hearing remotely "[i]n all matters where the participants consent 

. . . ." Accordingly, the court held D.J.'s FERPO hearing by Zoom. 

At the beginning of the hearing, the court ensured that D.J. consented to 

the remote hearing by engaging in the following colloquy with him:

THE COURT: I want to make sure, [D.J.], are you 

consenting to proceeding virtually, that this is via 

Zoom? Are you consenting --

[D.J.]: Yes.

THE COURT: -- to having this proceeding done via 

Zoom on the video screen?

[D.J.]: Yes, Your Honor.

THE COURT: You have no objection to proceeding 

in this way, correct?

[D.J.]: Yes, right.

THE COURT: All right.

D.J. represented himself at the hearing. He called H.J. and one of his sons 

as witnesses. He never asked for an interpreter, never sought clarification of 
5 A-0546-20

any of the court's questions, and fully responded to each inquiry posed to him 

by the court and during cross-examination. 

At the conclusion of the hearing, the trial court rendered a detailed oral 

decision granting the FERPO. The court subsequently filed an equally thorough 

written amplification of its findings of fact and conclusions of law pursuant to 

Rule 2:5-1(b). In its written decision, the court explained that it issued the 

FERPO "based upon the prior incidents of domestic violence, the possession of 

weapons, [D.J.'s] history of alcohol abuse[,] and his threats to use his weapons 

against his family. These actions are not mere errors in judgment, they are red 

flags." 

On appeal, defendant does not challenge the trial court's findings of fact 

or conclusions of law. Instead, he raises the following two contentions for the 

first time:

POINT I

THE COURT'S FAILURE TO INQUIRE IF THE 

APPELLANT WOULD BENEFIT FROM THE AID 

OF A COURT APPOINTED INTERPRETER 

VIOLATED APPELLANT'S FUNDAMENTAL DUE 

PROCESS RIGHTS.

POINT II

CONDUCTING THE PROCEEDING VIRTUALLY 

DUE TO THE COVID-19 PANDEMIC WITHOUT 
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THE KNOWING AND INFORMED CONSENT OF 

THE APPELLANT VIOLATED APPELLANT'S 

RIGHT TO HAVE THIS MATTER HEARD IN 

PERSON.

We have considered D.J.'s contentions in light of the record and the 

applicable law and conclude they are without sufficient merit to warrant 

extended discussion. D.J. offered no evidence that he could not speak or 

understand English. The hearing transcript demonstrates that D.J. fully 

participated throughout the entire proceeding and was able to respond to each 

question the court and opposing counsel asked him. As the trial court stated in 

its amplified findings, D.J. "engaged with questions not only at length, but with 

great depth." Thus, D.J. presented no basis for the assignment of an interpreter

and the court did not err by failing to appoint one.

The trial court also properly conducted the hearing virtually using Zoom. 

Before the hearing began, the judge twice asked D.J. if he consented to this 

procedure. He replied affirmatively both times. Because the court fully 

complied with the requirements of the Directive, D.J.'s contention to the 

contrary plainly lacks merit.

Affirmed.