SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4220-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARIAN VITELLO,

Defendant-Appellant.

__________________________

Submitted September 11, 2017 – Decided

Before Judges Sabatino and Ostrer.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth 

County, Docket No. FO-13-0282-11.

David P. Schroth, attorney for appellant.

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outeiro, Assistant Prosecutor, of counsel and 

on the brief; Mary R. Juliano, Assistant 

Prosecutor, on the brief).

PER CURIAM

After an evidentiary hearing, Judge Lisa Thornton granted the 

State's motion, pursuant to N.J.S.A. 2C:25-21(d)(3) and N.J.S.A.

2C:58-3(c)(5), to forfeit any firearms of defendant Darian 

NOT FOR PUBLICATION WITHOUT THE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.

July 9, 2018
2 A-4220-14T4

Vitello, and to revoke his permits, licenses and authorizations

to use, possess or own firearms. The court found Vitello's 

continued firearm ownership would not be in the interest of the 

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

court thereafter denied Vitello's motion for a new trial based on 

Rule 4:50-1(b) and (f), and a motion for reconsideration. In his 

appeal, Vitello argues the court lacked jurisdiction because the 

State's motion was untimely; the decision lacked support of 

sufficient credible evidence in the record; and the court abused 

its discretion in denying his Rule 4:50-1 and reconsideration 

motions. We affirm.

I.

The court found that Vitello, while a Belmar police officer, 

mishandled his handgun on "at least three occasions against the 

policies of the Belmar police department and against all operating, 

standard operating procedures for law enforcement at times in a 

reckless manner, pointing them at his colleagues." The court 

found that on two separate occasions, several months apart, Vitello 

unholstered and pointed his service handgun at the ground near the 

feet of Luis Abreu, an unarmed Class One special police officer. 

Abreu testified that Vitello activated the laser sight and 

continued to point the weapon for roughly five minutes. In one 

incident, Vitello asked Abreu how he would feel if Vitello shot 
3 A-4220-14T4

him. Abreu did not believe Vitello would actually shoot, but his 

behavior made Abreu nervous, because accidents could happen. Abreu

testified that one of the incidents was witnessed by another 

officer, Paul Smikovecus. The two incidents occurred in 2006 and 

2007, one in the parking lot and the second inside police 

headquarters. 

On another occasion, after a disagreement, Vitello pointed 

his weapon at the body of Michael Allen, then a civilian 

dispatcher. Allen testified that Vitello activated the laser 

sight and pointed his service weapon at his chest. A fellow 

officer, James Burdick, testified he witnessed this incident and 

told Vitello, in coarse language, to put his weapon away. Vitello 

answered he was just goofing around. Another officer, Thomas Cox, 

testified he observed Vitello while the weapon was unholstered, 

apparently after the pointing.1

None of the officers involved promptly reported the 

incidents, although Burdick stated that unholstering a service 

weapon under the circumstances described would violate 

departmental rules. However, Smikovecus, who had a prior 

 

1 We recognize that Abreu testified there were three incidents 

involving Vitello pointing a weapon at his feet. The court 

addressed only two in its findings, along with the one involving 

Allen, and concluded there were "at least three" incidents in 

which Vitello mishandled his weapon. 
4 A-4220-14T4

disagreement with Vitello, prompted an internal affairs 

investigation of the incidents in 2009. Chief Thomas Palmisano 

testified about the internal affairs investigation that he 

conducted. Palmisano was a lieutenant or captain at the time. 

The investigation led to grand jury proceedings. Apparently before 

any indictment was returned, Vitello pleaded guilty to an 

accusation charging he harassed Abreu by threatening to physically 

harm him; the accusation did not allege use of a weapon. See

N.J.S.A. 2C:33-4(b). Defendant forfeited his public employment,

and the Belmar police seized his police and personal firearms. 

However, Vitello did not surrender his firearms purchaser 

identification card (Card), because he claimed that he lost it. 

Vitello also did not seek a judicial order compelling the return 

of his weapons.

The next year, Vitello obtained a replacement Card and a 

Handgun Purchase Permit (Permit) upon application to the Neptune 

Township Police Department. He thereafter purchased a handgun for 

personal use. At the court's suggestion, a Neptune detective 

testified at the hearing about his investigation of Vitello's 

application. He said he never spoke to Belmar about the 

circumstances of Vitello's firing. He consulted with the county 

prosecutor's office only to confirm that the harassment conviction 

was not a legal impediment to issuing the Card or Permit. 
5 A-4220-14T4

A few months after Vitello purchased his new firearm, his

girlfriend obtained a domestic violence temporary restraining 

order (TRO) against him, which led to the seizure of his handgun. 

After the girlfriend voluntarily dismissed the TRO, the State 

filed a motion within forty-five days of the seizure, apparently 

under N.J.S.A. 2C:25-21(d)(3), for the forfeiture of Vitello's 

weapon and revocation of his permits, licenses and authorizations 

for the use, possession, or ownership of such weapons; however, 

the State withdrew the motion without prejudice.

2 More than three 

months later, the State filed its motion under N.J.S.A. 2C:25-

21(d)(3) and N.J.S.A. 2C:58-3, that is the subject of this appeal.

The court credited, and relied on the testimony of Abreu, 

Allen, Burdick and Cox, whom the State presented. The court 

discredited and rejected the testimony of Vitello, who denied that 

any of the incidents occurred. The court acknowledged various 

discrepancies in the testimony of the State's witnesses. However, 

the court generally attributed those to the passage of time between 

the incidents and the hearing in 2011. Allen said his incident 

occurred in December 2005. Burdick recalled it occurred in 2006

or 2007. Cox was even more uncertain about the timing.

 

2 A copy of the notice of motion is not included in the record. 
6 A-4220-14T4

In granting the State's motion, the court noted that Vitello 

continued to deny the events occurred, refused to accept 

responsibility for his actions, and failed to learn from them or 

to demonstrate the ability to act responsibly with firearms. As 

noted above, the court found that defendant mishandled his firearms 

on at least three occasions. 

Vitello appealed and, through new counsel, sought to expand 

the record before us. We denied his motion, permitting him instead 

to present that request to the trial court. Vitello's motion 

under Rule 4:50-1 followed. Vitello grounded his request for 

relief on subsection (b) – "newly discovered evidence, which would 

probably alter the judgment or order and which by due diligence 

could not have been discovered in time to move for a new trial 

under R. 4:49"; and subsection (f) – "any other reason justifying 

relief from the operation of the judgment or order." In support 

of his request for a new trial, Vitello contended that an Internal 

Affairs investigation concluded in 2005 that allegations he 

mishandled his weapon were unfounded. He also relied on Burdick's 

employment records to demonstrate he could not have been present 

when Allen claimed the pointing at him occurred. He also presented 

emails between Vitello and Abreu, and statements from other police 

officials.
7 A-4220-14T4

The court denied the motion. The court found the proffered 

evidence was either not newly discovered, or not material. With 

respect to the 2005 letter, the court noted that Vitello had 

testified there was no earlier Internal Affairs investigation; the 

letter was not newly discovered as Vitello claimed to have received 

it; and even if there were such a finding, it would not have 

changed the court's decision, as the letter did not prove that the 

three incidents did not occur. The court also held that Burdick's 

employment records would not have changed the result. Too much 

time elapsed for the court to hold an individual to a specific 

date claimed. Finally, the court found no merit in Vitello's 

remaining arguments and denied the motion for a new trial. The 

court thereafter denied a motion for reconsideration.

II.

We are obliged to "accept a trial court's findings of fact 

that are supported by substantial credible evidence," particularly 

"when the evidence is largely testimonial and involves questions 

of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 

116-17 (1997). We review de novo the court's legal conclusions. 

Id. at 117. 

Applying that deferential standard of review, and having 

carefully reviewed the record of the 2011 testimonial hearing, we 
8 A-4220-14T4

discern no basis to disturb Judge Thornton's finding, based on her

thoughtful consideration of the testimony and evidence presented. 

The court properly allocated to the State the burden to 

establish grounds for revoking Vitello's Card and Permit by a 

preponderance of the evidence. See In re Forfeiture of Pers.

Weapons and Firearms Identification Card Belonging to F.M., 225 

N.J. 487, 508 (2016) (allocating burden and standard of proof).

The court's determination that defendant poses a threat to the 

public health, safety, or welfare was based on a careful, factsensitive analysis, consistent with State v. Cordoma, 372 N.J. 

Super. 524, 535 (App. Div. 2004). 

We reject Vitello's argument, which he based on State v. One 

Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999) and an 

unpublished decision, that the State was obliged to present 

"'overwhelming' evidence that Vitello currently presents a 'clear 

threat' to the public welfare." As noted, the standard of proof 

is preponderance of the evidence. The State proceeded under 

N.J.S.A. 2C:58-3(c)(5), which "is meant to address '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.'" F.M., 225 

N.J. at 513 (quoting In re Osworth, 365 N.J. Super. 72, 79 (App. 

Div. 2003)). The panel in One Marlin Rifle used the phrase 
9 A-4220-14T4

"generally overwhelming" simply to characterize the evidence 

presented in cases in which forfeiture had been ordered, in 

contrast to the paltry proofs before it. 319 N.J. Super. at 371-

72 (citing State v. Freysinger, 311 N.J. Super. 509, 515-16 (App. 

Div. 1998) and Hoffman v. Union Cnty. Prosecutor, 240 N.J. Super. 

206 (Law Div. 1990)). There was no finding that the firearm owner 

in One Marlin Rifle mishandled his weapon in any way, as Vitello 

did in this case.

We also discern no merit in Vitello's argument that the trial 

court lacked jurisdiction to entertain the State's application, 

because it was untimely. Vitello relies on N.J.S.A. 2C:25-

21(d)(3), which provides that the State shall return seized weapons 

to a domestic violence defendant within forty-five days of seizure, 

absent a court order of forfeiture. However, by its plain 

language, the provision does not impose a time-bar for the filing 

of a forfeiture and revocation motion; it simply provides for the 

return of seized weapons in the absence of a timely application 

and order. Notably, Vitello did not formally seek the return of 

weapons seized after the domestic violence TRO was issued. 

In any event, the State exercised its authority under chapter 

58, which states that "[t]he county prosecutor . . . may apply

. . . at any time for the revocation of the card," and "[a]ny 

firearms purchaser identification card may be revoked by the 
10 A-4220-14T4

Superior Court wherein the card was issued, after hearing upon 

notice, upon a finding that the holder thereof no longer qualifies 

for the issuance of the permit." N.J.S.A. 2C:58-3(f) (emphasis 

added); see also Hoffman, 240 N.J. Super. at 215 (ordering the 

forfeiture of weapons and revocation of Card based on a finding 

that it would not be in the interest of the public health, safety 

or welfare, N.J.S.A. 2C:58-3(c)(5), based on holder's "disturbing 

pattern of domestic violence and violence in general" and alcohol 

abuse).

3

We also shall not disturb the trial court's decisions (1) to 

deny Vitello's motion to vacate the order and for a new trial, 

pursuant to Rule 4:50-1, and (2) to deny his motion for 

reconsideration of that denial. Both decisions were vested in the 

trial court's reasoned exercise of discretion. See Hous. Auth. 

of Morristown v. Little, 135 N.J. 274, 283 (1994) (stating that 

decision granting or denying relief "will be left undisturbed 

unless it represents a clear abuse of discretion"); Cummings v. 

Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (stating that 

reconsideration is left to the court's "sound discretion . . . to 

 

3 While a Card remains valid until revoked, a Permit expires after 

ninety days, unless renewed by the issuing authority for good 

cause. N.J.S.A. 2C:58-3(f).
11 A-4220-14T4

be exercised in the interest of justice") (quoting D'Atria v. 

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). 

As Judge Thornton noted, much of what Vitello sought to 

present to the court was not newly discovered evidence, as it was 

available to him in the exercise of due diligence before the 

original hearing. In particular, Vitello received in 2005 the

purported letter concluding allegations against him were 

unfounded. Also, well before the hearing, Vitello had already 

obtained an unsworn letter from an officer who all but insinuated 

that Allen alleged that Vitello pointed his weapon at him in order 

to get Vitello fired. Besides, during cross-examination, Allen 

was asked if he leveled the charges at Vitello in order to secure 

his own position with the police department. In any event, Judge 

Thornton concluded that nothing Vitello unearthed would have 

materially affected her credibility determinations, and resulting 

fact-findings.

To the extent not addressed, Vitello's remaining arguments 

lack sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3(e)(1)(E). 

Affirmed.