Opinion
DOCKET NO. A-4443-13T3
03-02-2016
IN RE RENEWAL APPLICATION FOR PERMIT TO CARRY A HANDGUN OF ALLEN DUBINSKY.
Evan F. Nappen, attorney for appellant Allen Dubinsky (Louis P. Nappen, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Union County. Evan F. Nappen, attorney for appellant Allen Dubinsky (Louis P. Nappen, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Allen Dubinsky appeals from the trial court's April 30, 2014 order denying his application to renew his permit to carry a handgun. The court denied the application, finding that Dubinsky failed to establish a "justifiable need" for the permit as required by N.J.S.A. 2C:58-4(d). The court did so notwithstanding that the Chief of Police of the town where Dubinsky resided approved Dubinsky's application after an investigation. Having reviewed defendant's arguments in light of the facts and applicable legal principles, we affirm.
Our review is hampered by Dubinsky's failure to provide the court with a complete copy of his application for the permit. See R. 2:6-1(a) (stating that the appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues . . . ."). In particular, Dubinsky omitted a copy of his "letter of need, specific in content, as to why they [sic] have a need to carry a firearm," which is a required attachment to his application form. Instead, we must rely on excerpts of Dubinsky's letter, quoted by the trial judge. Dubinsky stated:
I am a self-employed diamond wholesaler/importer, living in Westfield for the last 20 years, with an office in New York City.
As stated in my previous approved applications from 1994 through 2012: that during the course of performing my statutorily-authorized duties, I am subject to substantial threat of serious bodily harm: and that carrying a handgun is necessary to reduce the threat of unjustifiable serious bodily harm to my person.
I transport jewelry and gem quality diamonds of substantial value as part of my daily routine, have irregular hours and commute between New York and New Jersey to pickup and drop-off items.
The trial court found these reasons to be insufficient. Without hearing argument or conducting an evidentiary hearing, the court denied the application. Quoting In re Preis, 118 N.J. 564, 576-77 (1990), the court held that, to demonstrate justifiable need, an applicant must show that "in the course of performing statutorily-authorized duties, [he] is subject to a substantial threat of serious bodily harm; and . . . that carrying a handgun is necessary to reduce the threat of unjustifiable serious bodily harm to any person."
The trial court continued:
Citing to Siccardi v. State, 59 N.J. 545, 557 (1971), the New Jersey Supreme Court held that a private citizen must show an "urgent necessity for self-protection" as evidenced by "specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means." In re Preis, supra, [118 N.J.] at 571. The Court continued, "Generalized fears for personal safety are inadequate, and a need to protect property, alone, does not suffice." Ibid. [citations omitted].The court noted that in Siccardi, supra, 59 N.J. at 547-48, a theater manager who made night deposits in a high crime neighborhood and had been personally threatened, failed to establish justifiable need. Also, a diamond dealer who carried loose diamonds, In re Application of X, 59 N.J. 533, 534 (1971), and doctors who worked at urban hospitals and carried narcotics, Reilly v. State, 59 N.J. 559, 560-62 (1971), failed to establish justifiable need. The court held:
Under these precedents, the applicant here has failed to show that he is subject to a specific danger or threat. Although [appellant] mentions that he performs "statutorily authorized duties," as a diamond wholesaler/importer, he does not fall into that class of applicants. Moreover, the use of a handgun to, in effect, protect property, is not a justifiable reason to carry a handgun. Like the theater manager and the diamond dealer, the applicant has failed to show a justifiable need and his application is denied.
In short, the applicant has failed to meet the rather stringent requirements under our case law and, as such, applicant's request to add additional employment to his current permit to carry a handgun is denied.
On appeal, Dubinsky raises the following points:
POINT 1: THE COURT BELOW ERRED BY FAILING TO CONSIDER THE CHIEF POLICE OFFICER'S INVESTIGATION AND APPROVAL, WHICH REQUIRED A FINDING OF JUSTIFIABLE NEED AND REMAINS UNREBUTTED.
POINT 2: THE EXERCISE OF A FUNDAMENTAL, INDIVIDUAL RIGHT CANNOT BE BASED UPON NEED.
POINT 3: NEW JERSEY LAW UNCONSTITUTIONALLY REQUIRES "JUSTIFIABLE NEED" TO POSSESS A HANDGUN IN THE HOME OR ELSEWHERE; WITHOUT A PERMIT, ANY CITIZEN POSSESSING A HANDGUN FACES A "PRESUMPTION OF ILLEGALITY."
POINT 4: PRE-HELLER AND -MCDONALD NEW JERSEY CASE LAW UPHOLDING THE JUSTIFIABLE NEED REQUIREMENT IS NO LONGER VALID, AND DRAKE V. FILKO IS BASED ON FAULTY REASONING.
POINT 5: IF THE JUSTIFIABLE NEED REQUIREMENT IS ALLOWED TO STAND, THEN NEW JERSEY'S STATUTE PROHIBITING THE UNLAWFUL POSSESSION OF A HANDGUN WITHOUT A PERMIT IS UNCONSTITUTIONAL.
The trial court decided as a matter of law that Dubinsky did not establish "justifiable need." We therefore review the trial court's order de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995). See also In re Pantano, 429 N.J. Super. 478, 483 (App. Div. 2013), certif. granted, 214 N.J. 234 (2013), appeal dismissed as improvidently granted, 2014 N.J. LEXIS 904 (2014); In re Application of Borinsky, 363 N.J. Super. 10, 23-24 (App. Div. 2003).
We affirm the trial court's order substantially for the reasons set forth in Judge Scott Moynihan's written decision. We add the following brief comments.
Dubinsky argues that the trial court erred by failing to afford deference to the police chief's approval of his application. In particular, he asserts the judge did not indicate he read "the chief police officer's Investigation Report."
We recognize that a court must give due consideration to a police chief's denial of an application for a firearms purchaser identification card (FPIC) under N.J.S.A. 2C:58-3. See Weston v. State, 60 N.J. 36, 46 (1972); In re Application of Boyadjian, 362 N.J. Super. 463, 476 (App. Div.), certif. denied, 178 N.J. 250 (2003). However, the court's role in considering an application for a permit to carry is distinct from its role in considering an application for a FPIC. "The chief is authorized to issue the FPIC, subject to court action if there is an appeal. By contrast, although the chief may approve an application for a permit to carry, only the court may actually issue the permit." Pantano, supra, 429 N.J. Super. at 485 (citation omitted).
Furthermore, there is no investigative report of record, or other evidence of a "reasoned exercise of experience and expertise for the court to consider." Id. at 485. All that is included in the record before us is the police chief's signature on the standard application form, stating he approved the application after an investigation. We presume the trial court had nothing else from the police chief.
Finally, we shall not address Dubinsky's various challenges to the constitutionality of the permit-to-carry statute. As Dubinsky did not raise these arguments below, we decline to consider them for the first time on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), particularly inasmuch as the issues have already been addressed in depth in other cases. See Morillo v. Torres, 222 N.J. 104, 121-22 (2015) (noting that, contrary to Dubinsky's contention, New Jersey law does not require a right to carry permit for possession of a handgun in the home); In re Application of Wheeler, 433 N.J. Super. 560, 613 (App. Div. 2013) (holding that the "justifiable need" requirement does not violate the Second Amendment); Pantano, supra, 429 N.J. Super. at 486-90 (finding that the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), did not affect the constitutionality of N.J.S.A. 2C:58-4); see also Drake v. Filko, 724 F.3d 426, 429 (3d. Cir. 2013) ("[T]he requirement that applicants demonstrate a 'justifiable need' to publicly carry a handgun for self-defense . . . does not burden conduct within the scope of the Second Amendment's guarantee."), cert. denied, ___ U.S. ___, 134 S. Ct. 2134, 188 L. Ed. 2d 1124 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION