SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5426-16T1

IN THE MATTER OF THE APPEAL 

OF THE DENIAL OF W.R.'S

APPLICATION FOR A FIREARMS 

PURCHASER IDENTIFICATION 

CARD (FPIC) AND HANDGUN 

PURCHASE PERMIT (HPP).

Submitted October 31, 2018 – Decided

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law 

Division, Bergen County.

Evan F. Nappen, attorney for appellant W.R. (Louis P. 

Nappen, on the briefs).

Dennis Calo, Acting Bergen County Prosecutor, 

attorney for respondent State of New Jersey (William 

P. Miller, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant W.R. appeals from the June 23, 2017 Law Division order 

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

NOT FOR PUBLICATION WITHOUT THE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.

January 30, 2019
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Jersey Firearms Purchaser Identification Card (FPIC) and Handgun Purchase 

Permit (HPP). We affirm.

The detective in charge of processing W.R.'s application through the 

Allendale Police Department learned that W.R. had the following contacts with 

the system: a 1982 arrest for simple assault, a charge later dismissed; in 1997, 

a Division of Youth & Family Services (DYFS) (now Division of Child 

Protection and Permanency) caseworker report to police that W.R.'s then-nineyear-old daughter was left alone in his home; a DYFS caseworker 1998 report 

to police that W.R.'s wife had abused their daughter; a DYFS caseworker 2002 

report to police that W.R. had assaulted his daughter and his wife, resulting in 

W.R.'s arrest and the issuance of a temporary restraining order under the 

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which was

dismissed; in 2002, W.R. appeared at the police station and asked to speak to 

someone about a domestic dispute with his wife; a 2003 police visit to W.R.'s 

home because of a call about a verbal altercation between him and his wife; and 

in 2003, because W.R.'s daughter reported that he had struck her and her mother, 

DYFS temporarily relocated the family. 

The detective also testified at the Law Division hearing that his record 

request regarding W.R.'s mental health history resulted in an indication by the 
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Bergen Regional Medical Center (BRMC) that he had a record of "admission, 

commitment, or treatment" with the facility. The detective later determined that 

no actual records were available1and that BRMC could only confirm that an 

appointment had been scheduled. When W.R.'s counsel attempted to follow up, 

the facility again responded that no records were available. In addition to the 

State application forms, W.R. completed an additional questionnaire created by 

the department. 

Based on the totality of the information, the detective forwarded a letter 

to his chief recommending denial of the application. Accordingly, a letter was 

sent to W.R. advising that his application had been denied. The reason given 

was N.J.A.C. 13:54-1.5(a)(5), which mirrors N.J.S.A. 2C:58-3(c)(5), that 

approval would be contrary to the interests of "public health, safety or welfare." 

It was signed by the department's chief of police. The letter did not invite W.R. 

to meet with him to discuss the application further.

At the hearing, after the detective's testimony, the judge swore in W.R. 

When he began to ask questions, counsel stopped the process and said W.R. was 

exercising his Fifth Amendment right not to testify. The court, W.R., and W.R.'s 

counsel engaged in the following colloquy:

 

1

 Nothing we have seen in the record even indicates a year.
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[Defense counsel]: Oh, Your Honor, if I didn't -- I 

object to that -- to this questioning, based on my client 

has Fifth Amendment rights and other things that I feel 

he should not -- he does not want to take the stand.

THE COURT: He has Fifth Amendment, so is he 

going to be asserting his Fifth Amendment right?

[Defense counsel]: Are you asserting you[r] Fifth 

Amendment right, [W.R.], not to testify today?

[W.R.]: Yes.

THE COURT: Okay.

[Prosecutor]: Your Honor, this is civil --

THE COURT: On the grounds that something he 

might say might incriminate him?

[Defense counsel]: Well, they're raising 

allegations of things that have been written into his --

that he checked off on reports and that --

[Prosecutor]: There is no criminal case against 

[W.R.] and --

THE COURT: Is this with respect to certain questions 

on the [FPIC] application for which there may be an 

issue as to whether or not some of them may have been 

knowingly falsified?

[Defense counsel]: That could be it, one of the 

issues.

THE COURT: Well, I'm asking you, is that --
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[Defense counsel]: Yes, that is one -- that has been 

raised.

At the close of the hearing, the judge found as a fact that there was "a 

significant history of violence" within W.R.'s home spanning the years between 

1997 and 2003, and noted the earlier arrest for simple assault. The history of 

domestic violence within the home included W.R.'s daughter—now an adult 

who lived with her parents. The judge also noted that there was a documented 

contact with BRMC, although the details were unknown. He found, based on 

the officer's credible testimony, that W.R.'s receipt of an FPIC and HPC "would 

not be in the interest of the public health, safety or welfare" pursuant to statute.

On appeal, appellant raises the following contentions:

POINT 1

THE COURT BELOW ERRED BY BASING ITS 

DECISION SOLELY UPON HEARSAY OR 

SPECULATION CONTRARY TO DUBOV, 

WESTON AND ONE MARLIN RIFLE. 

POINT 2

APPELLANT WAS DENIED DUE PROCESS IN 

OFFENSE TO N.J.S. 2:58-3F AND Z.K., AND THE 

ALLENDALE POLICE CHIEF SHOULD BE FOUND 

TO HAVE DENIED APPELLANT DUE PROCESS 

SINCE THE CHIEF ACTED IN VIOLATION OF THE 

REGULATORY PROVISIONS RELATING TO 

FIREARM PERMIT APPLICATIONS (UNDER N.J.S. 

2C:39-10) AND OFFICIAL MISCONDUCT (UNDER 

N.J.S. 2C:30-2).
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a. Appellant was denied procedural Due Process in 

offense to N.J.S. 2C:58-3f and Z.K.

b. The Allendale Police Chief should be found to 

have acted in violation of the regulatory provisions 

relating to firearm permit applications (under N.J.S. 

2C:39-10) and official misconduct (under N.J.S. 2C:30-

2), thereby depriving appellant of equal and fair 

procedural Due Process.

c. The Allendale issuing authority failed to provide 

in its denial letter an actual statutory basis for denial in 

offense to Due Process and Weston.

d. The Allendale Police Chief erred ab initio by 

failing to conference with the applicant prior to denying 

him.

POINT 3

APPELLANT SHOULD NOT BE DENIED 

HIS FUNDAMENTAL, INDIVIDUAL,

CONSTITUTIONAL RIGHT TO KEEP ARMS FOR A 

REASON THAT DOES NOT RISE ABOVE 

RATIONAL BASIS, IS VAGUE AND/OR 

OVERBROAD, CONSTITUTES AN 

UNCONSTITUTIONAL BALANCING-TEST, AND 

DOES NOT PROVIDE A DUE PROCESS FORM OF 

REDRESS.

a. The Court below erred by not basing its finding 

upon a longstanding prohibition on the possession of 

firearms, and by applying mere rational basis review to 

deny Appellant his individual, fundamental right.

b. "In the interest of public health, safety or 

welfare" is unconstitutionally vague or overbroad.
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c. "In the interest of public health, safety or 

welfare" provides unconstitutional Due Process notice 

and provides no Due Process form of redress.

We conclude that appellant's contentions are without sufficient merit to warrant 

extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the 

following brief comments.

"[A] judicial declaration that a defendant poses a threat to the public 

health, safety or welfare involves by necessity, a fact-sensitive analysis." State 

v. Cordoma, 372 N.J. Super. 524, 535 (App. Div. 2004). In reviewing such 

determinations, we accept the trial court's fact findings so long as they are 

supported by substantial credible evidence. In re Return of Weapons to J.W.D., 

149 N.J. 108, 116-17 (1997). As always, our review of the trial court's legal 

determinations is de novo. Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995).

The thrust of W.R.'s points of error center on his claim that the criminal 

history relied upon by the trial judge should have been inadmissible because it 

was hearsay. Since at least Weston v. State, 60 N.J. 36 (1972), a residuum of 

legally competent evidence makes hearsay admissible in some cases, and may 

be employed in the State's presentation in a firearms permit appeal. Pursuant to 

the residuum rule, such hearsay is admissible so long as the "ultimate finding or 
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findings of material facts" could be reasonably made. See Ruroede v. Borough 

of Hasbrouck Heights, 214 N.J. 338, 359-60 (2013). In this case, the 

documentation provided by the State sufficed to make the hearsay admissible. 

Therefore, the judge's findings, which were based upon W.R.'s domestic 

violence, DYFS, and arrest history even though no actual convictions resulted, 

were not based solely upon hearsay. As we have also said, that charges were 

dismissed does not prevent us from considering the underlying facts in this type 

of hearing. In re Osworth, 365 N.J. Super. 72, 78 (App. Div. 2003). 

Turning briefly to W.R.'s contention that he was denied due process 

because the Allendale police chief failed to meet with him, there is no question 

that the Court has required, beginning with Weston, that the chief of police 

extend to the person whose application has been denied the opportunity to 

discuss the matter. 60 N.J. at 43-44. We do not endorse the chief's failure to 

meet the unsuccessful applicant, but note further that a trial court's de novo 

hearing "compensates constitutionally for procedural deficiencies before the 

administrative official." Id. at 45-46. Additionally, the reason for denial was 

stated in the letter.

We decline to consider W.R.'s constitutional arguments and note that in 

any event, they have been previously disposed of. In re Winston, 438 N.J. Super. 
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1, 10 (App. Div. 2014); see also In re Forfeiture of Pers. Weapons & Firearms 

Identification Card Belonging to F.M., 225 N.J. 487, 506-08 (2016). 

Finally, it bears mention that the Law Division judge could have relied 

upon W.R.'s exercise of his Fifth Amendment right not to testify during the 

hearing as a basis for drawing a negative inference against him. Although the 

law does not mandate an adverse inference, it is permissible. Bldg. Materials 

Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 474 (App. Div. 2012). 

In this case, once counsel indicated that the basis for the exercise of the Fifth 

Amendment privilege was W.R.'s responses on the application, the adverse 

inference was available to the judge. Since it concerned key matters related 

directly to W.R.'s eligibility to possess firearms in this state, it would have been 

appropriate to draw an adverse inference. Ibid. 

Affirmed.