                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-5848-12T1


                                               APPROVED FOR PUBLICATION
IN RE APPEAL OF THE DENIAL OF
                                                     April 22, 2015
THE APPLICATION OF Z.L. FOR
A FIREARMS PURCHASER IDENTIFICATION                APPELLATE DIVISION
CARD AND THREE HANDGUN PERMITS.1
_______________________________________

         Submitted January 7, 2015 – Decided April 22, 2015

         Before Judges Fuentes, Kennedy and O'Connor.

         On appeal from the Superior Court of New
         Jersey,   Law  Division,   Monmouth County,
         Municipal Appeal No. 2013-024.

         Evan F. Nappen, attorney for appellant Z.L.
         (Louis P. Nappen, on the brief).

         Christopher J. Gramiccioni, Acting Monmouth
         County Prosecutor, attorney for respondent
         State of New Jersey (Mary R. Juliano,
         Special   Deputy   Attorney   General/Acting
         Assistant Prosecutor, of counsel and on the
         brief; Ashley L. Behre, Legal Assistant, on
         the brief).

    The opinion of the Court was delivered by

KENNEDY, J.A.D.

    Appellant,     Z.L.,   appeals   an    order   of   the   Law     Division

upholding the denial of his application for a firearms purchaser


1
  We have corrected the caption to eliminate the appearance of a
criminal appeal.
identification        card    and    three      permits     to    purchase      a   handgun

("the     permits").          Appellant      argues        that    the    Law       Division

improperly      considered        his     history     of     domestic      disputes        as

evidence that granting his application for the permits creates a

present    danger     to     "public      health,     safety      and    welfare"      under

N.J.S.A. 2C:58-3(c)(5). Appellant further argues that the Law

Division denied his right to "procedural due process"; erred by

requiring him to testify before the State presented its case;

and erred by basing its ruling upon "speculation and hearsay."

We have considered these arguments in light of the record and

the law, and we affirm the order of the Law Division.

    In January 2013, appellant applied to the Aberdeen Police

Department      for        the      permits.      A    detective         undertook          an

investigation       into     appellant's         background,      and    learned       that,

while he had never been convicted of a crime or any disorderly

persons or domestic violence offenses, he had been arrested in

1998 for domestic violence and police responded to his home on

five occasions from 2003 to 2011 to resolve disputes between him

and his wife.

    In 1998, appellant's wife called police and charged him

with simple assault.             Although a domestic violence complaint was

filed, appellant's wife did not seek a temporary restraining

order,    and   the    charge       was   not     thereafter      sustained.           Also,




                                             2                                      A-5848-12T1
police responded to appellant's home on five occasions, between

2003   and    2011,          based   on    various        domestic      dispute      complaints

reported      by    his        wife.          The       Aberdeen    Police      Chief     denied

appellant's        application          for    the       permits,    explaining        that   the

investigation       "revealed          a    past        history    of   domestic      violence.

This in itself may indicate a public safety concern."                                   He then

appealed to the Law Division.

       The Law Division judge conducted a hearing, at which both

appellant and the investigating detective testified.                                  Appellant,

represented        by    counsel,          elected        to    testify    and       essentially

confirmed the accuracy of his application, stating, among other

things,      that       he     had     never    been       convicted       of    a     "domestic

violence" offense and had never been the subject of a temporary

or a final restraining order. Defense counsel objected as beyond

the scope of direct examination to the State's questioning of

appellant regarding the domestic disputes upon which the police

chief had denied his application for the permits.                                     The judge

overruled the objection.

       The    State          then    cross-examined            appellant   about       the    1998

domestic violence complaint and the five other domestic disputes

in which police responded to his home, and appellant essentially

confirmed the core facts.                  Appellant conceded he had struck his

wife in 1998, but stated it was "accidental."                                He said he had




                                                    3                                   A-5848-12T1
inadvertently struck his wife in the mouth with his hand when

she   walked   up    behind    him,   after   a   disagreement      about     their

child's    dishwashing        techniques.         He   said    he    had      never

intentionally struck her, and added he was "acquitted" after a

brief trial.        He also explained the other police responses to

the home arose from ordinary disputes between spouses, and none

involved     violence   or     threats.       Further,    he    described        his

relationship with his wife as "better than at that time" and

ascribed     her    decision    to    sleep   separately       to   her     "sleep

disorder."

      After both sides rested and made their closing arguments,

the judge found, in pertinent part, as follows:

           In this case, there had been a number of
           visits by the police over an eight-year
           period.   And when they were -- if you were
           to today to look at each one of these
           incidents, if that were judge one incident,
           that would be, certainly perhaps a different
           case before us. But we don't have just one
           incident.    We have a series of instances
           starting back in August 24, 1998, and the
           final incident that was testified to, and as
           part of this record, was made [September 4,]
           2011.

           That series of incidents, one compounded
           upon the other, I think that gives us a
           picture and certainly something that this
           Court feels is compelling and convincing.

           The record does not show why [appellant's
           wife] feels compelled to call the police
           every time her and [appellant] have a
           dispute.  But the fact is that the police



                                        4                                  A-5848-12T1
           have still been to this house a number of
           different times.  The inclusion of firearms
           or handgun into this unpredictable situation
           only stands to strain the relationship
           further.

           It is evident from the 1998 domestic
           violence arrest and multiple subsequent
           police interactions that the [appellant] and
           [appellant's wife] are unable to amicably
           resolve minor disputes.     Accordingly, the
           volatile situation between [appellant] and
           [appellant's wife] is not place, in this
           Court's opinion, to add firearms.

           Accordingly, it's going to be the ruling of
           this Court that [] the appeal is going to be
           denied.

This appeal followed.

      We address appellant's argument that the Law Division gave

improper weight to his history of domestic disputes first.              We

then turn to appellant's argument that the Law Division erred by

requiring him to testify first, and by relying upon speculation

and   hearsay   in   issuing   the   order   under   appeal.    We    find

appellant's remaining arguments to be without sufficient merit

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

      On this appeal, our review of the trial court's decision is

limited.   The Supreme Court has stated:

           Ordinarily, an appellate court should accept
           a trial court's findings of fact that are
           supported by substantial credible evidence.
           Deference to a trial court's fact-findings
           is especially appropriate when the evidence
           is   largely    testimonial   and   involves
           questions   of   credibility.     Thus,   an



                                     5                           A-5848-12T1
            appellate court should not disturb a trial
            court's fact-findings unless those findings
            would work an injustice.   Consequently, "an
            appellate court should exercise its original
            fact finding jurisdiction sparingly and in
            none but a clear case where there is no
            doubt about the matter."    If, however, an
            appellate court is reviewing a trial court's
            legal   conclusions,   the  same   level  of
            deference is not required.

            [In re Return of Weapons to J.W.D., 149 N.J.
            108, 116-17 (1997) (citations omitted).]

       The Gun Control Law recognizes that the right to possess

firearms is presumed, except for certain good cause:

            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 firearms purchaser
            identification card, except as hereinafter
            set forth.

            [N.J.S.A. 2C:58-3(c)].

In    relevant    part,     the   statute        provides      that   handgun     permits

shall not be issued "[t]o any person where the issuance would

not    be   in    the      interest    of    the       public    health,    safety      or

welfare[.]"           N.J.S.A.     2C:58-3(c)(5).               Section    (c)(5)       "is

'intended to relate to cases of 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.'"        In    re




                                             6                                  A-5848-12T1
Osworth,       365      N.J.   Super.    72,       79   (App.    Div.    2003),       certif.

denied, 179 N.J. 310 (2004).

       The        statute        also      lists             eight      categories           of

disqualifications.             An arrest that did not result in conviction

is not one of the listed disqualifications.                              However, as we

explained earlier, N.J.S.A. 2C:58-3(c)(5) is intended to address

issues of individual unfitness, not otherwise categorized in the

statute.       In Osworth, supra, we considered the quoted subsection

(5) disqualification and held 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."         Id. at 78;       see also In re Return of Weapons to

J.W.D., supra, 149 N.J. at 110 (a court may determine, even

after dismissal of a domestic violence complaint, that firearms

may be forfeited by a defendant pursuant to N.J.S.A. 2C:58-3(c)

and   2C:25-21(d)(3)           because   "the        defendant       poses    a    threat   to

public health, safety, or welfare"); State v. One Marlin Rifle,

319 N.J. Super. 359, 371 (App. Div. 1999); State v. Cunningham,

186 N.J. Super. 502, 504-08 (App. Div. 1982) (State could refuse

to    return      lawfully-purchased           gun      to   defendant       despite      grand

jury's no billing of charge that he shot his wife).                               Even in the

absence      of      evidence     that    appellant           was    convicted       of     any

offenses,         the    New    Jersey    statute            permits    denial       of     his




                                               7                                     A-5848-12T1
application if the underlying facts of any arrests or reported

domestic disputes support one of the eight listed categories of

disqualification or the public safety disqualification.

       Indeed, our courts have repeatedly upheld disqualification

under   subsection    (c)(5),    separately,    or    in    conjunction       with,

other statutory disabilities.          In State v. Freysinger, 311 N.J.

Super. 509, 516 (App. Div. 1998), for example, we determined

that the defendant was both a habitual drunkard, under N.J.S.A.

2C:58-3(c)(2), and posed a threat to the public health, safety

or welfare under (c)(5).          In State v. Cardoma, 372 N.J. Super.

524,    536   (App.   Div.    2004),   in   deciding       the    defendant     was

disqualified     under       subsection     (c)(5),    we        considered     the

defendant's mental condition, even though it did not rise to the

level of the disabling conditions set forth in N.J.S.A. 2C:58-

3(c)(2) and (3).      Further, as we explained earlier, in Osworth,

supra, 365 N.J. Super. at 80-81, even though the defendant's

prior conduct did not result in a disqualifying conviction under

N.J.S.A. 2C:58-3(c)(1), we nonetheless determined that, under

all the circumstances, denial of a handgun purchase permit was

warranted by application of subsection (c)(5).

       In Osworth, supra, we also explained the proper procedure

in the Law Division under N.J.S.A. 2C:58-3(d) for review of the

police chief's decision.         Osworth, supra, 365 N.J. Super. at 77-




                                       8                                 A-5848-12T1
78.   We stated that the hearing in the Law Division is "de novo"

and   that    the   judge    must     independently   determine   whether     the

applicant is entitled to a handgun permit.               Id. at 77.      Citing

Weston v. State, 60 N.J. 36, 46 (1972), we explained that the

applicant must present his evidence and then the police chief,

or the police chief's designee who conducted the investigation,

must explain why the application was denied.                   Osworth, supra,

365 N.J. Super. at 78.          Significantly, we held that the police

chief has the burden of proving an applicant is not qualified to

receive a handgun permit.             Id. at 77 (citing Weston, supra, 60

N.J. at 46).

      Appellant argues that the Law Division reversed the burden

of proof and placed it upon him by requiring that he prove the

dispositions and the facts pertinent to the domestic violence

arrest and domestic disputes.                 We disagree.     The trial judge

properly allocated the burden of proof.                Appellant nonetheless

argues otherwise, asserting that the trial judge "required" him

to testify first.            This contention is belied by the record.

Moreover, the fact that the judge overruled a "beyond the scope"

objection adds nothing to the argument and, in any event, is the

type of evidential ruling committed to the discretion of a trial

judge.    See N.J.R.E. 611(b); State v. Rose, 112 N.J. 454, 459

(1988);      Ostroski   v.    Mount    Pleasant    ShopRite,    Inc.,   94   N.J.




                                          9                             A-5848-12T1
Super. 372 (App. Div.), certif. denied, 99 N.J. 369 (1967). We

discern no error in that ruling.

      On an appeal from the denial of firearms permits, the trial

court hears the matter de novo, and the police chief has the

burden of proof by a preponderance of the evidence.                Id. at 77.

Hearsay     is   admissible,    but    there   must   be   sufficient    legally

competent evidence to support the court's findings.                    Weston v.

State, 60 N.J. 36, 50-51 (1972).                 Even if an applicant was

previously charged with an offense but not convicted, in a later

permit hearing the chief may still present to the court the

evidence underlying the charges.               "The 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."

Osworth, supra, 365 N.J. Super. at 78 (citing In re Return of

Weapons to J.W.D., supra, 149 N.J. at 110).                  Accordingly, the

admission of such evidence here was not improper in any respect,

and   any    "hearsay"     in    the    police   reports     was   essentially

corroborated by appellant's testimony in court.                    We find no

error in the trial judge's reliance upon that testimony.

      Finally, the facts of this case compel the conclusion that

the order upholding denial of the permits was proper.                   The 1998

incident was not isolated and aberrational, as appellant claims.




                                        10                              A-5848-12T1
Five times, between 2003 and 2011, police officers responded to

appellant's home on complaints by his wife of domestic disputes.

Each     such   complaint,          despite           appellant's     characterizations,

wherein      appellant's        spouse      felt       compelled    to    require     police

assistance, is imbued with the potential for violent reaction.

The    presence      of    a   firearm      in    such     a   household      enhances    the

potential for such reactions to become lethal.

       The   judge    rejected           appellant's       attempts      to   downplay    the

significance of the serial number of domestic disputes after

1998, and determined that there was nothing to suggest that this

history of discord between the couple would likely abate.                                   In

addition,       the        trial     judge        manifestly        found      appellant's

characterization of his "great" relationship with his wife and

his ascribing of aspects of her conduct to sleep difficulties,

unconvincing.         After reading the transcript, we are inclined to

agree.       Moreover, the judge had the opportunity, which we did

not, to observe appellant's demeanor and hear him testify.                                  We

are aware that live testimony can convey nuances that a cold

record cannot.            See State v. Locurto, 157 N.J. 463, 474 (1999).

We decline to second-guess the trial judge's conclusion that, at

the time of the hearing, granting appellant's application, in

effect,      would    not      be   in    the    interest      of   the   public    health,

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




                                                 11                                 A-5848-12T1
Affirmed.




            12   A-5848-12T1
