IN THE MATTER OF THE REVOCATION OF EMANUEL BRICE'S FIREARMS PURCHASER IDENTIFICATION CARD

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0820-21
IN THE MATTER OF
THE REVOCATION OF
EMANUEL BRICE'S
FIREARMS PURCHASER
IDENTIFICATION CARD
AND COMPELLING THE
SALE OF HIS FIREARMS.
________________________
Submitted March 13, 2023 – Decided August 4, 2023
Before Judges Whipple, Mawla, and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. GPA-016-21.
Evan F. Nappen Attorney at Law, PC, attorneys for
appellant (Louis P. Nappen, on the briefs).
Robert J. Carroll, Morris County Prosecutor, attorney
for respondent (Paula Jordao, Assistant Prosecutor, on
the brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
Petitioner Emanuel Brice appeals from a trial court's order revoking his
firearms purchaser identification card (FPIC) and compelling the sale of his
firearms. Petitioner's FPIC and firearms had been surrendered as a condition of
NOT FOR PUBLICATION WITHOUT THE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-0820-21
bail in connection with a 2013 sexual assault investigation. Petitioner and two
others were indicted for sexual assault, but the matter was dismissed when the
complaining witness died. Petitioner then moved for the return of his FPIC and
weapons. The court denied the application, finding that returning petitioner's
card and weapons were not in the interest of the public health, safety, and
welfare pursuant to N.J.S.A. 2C:58-3(c)(5).
Among other things, petitioner argues on appeal that N.J.S.A. 2C:58-
3(c)(5) is unconstitutional. In the alternative, he argues the trial court abused
its discretion in its analysis of the facts, erring in its findings. For the reaso ns
that follow, we affirm.
I.
A.
On June 9, 2013, Detective Sergeant Brett Rothenburger of the Bergen
County Prosecutor's Office (BCPO) received a call at 4:00 a.m. reporting a
sexual assault. The victim, N.R., was taken to Hackensack University Medical
Center, and the sergeant met her there to take her statement. N.R. told Sergeant
Rothenburger she went to a bar in Teaneck to celebrate her twenty-fourth
birthday with some friends, where they socialized and drank alcohol. N.R. and
her friends met some individuals in the bar, who introduced themselves as NFL
football players.
3 A-0820-21
N.R. decided to stay with the alleged players after her friends went home.
The three men identified were petitioner, Frank Simmons, and Muron Damus.
N.R. left the bar with the three men in a "white or silver sedan[,]" who offered
to give her a ride back home. N.R. was in the backseat with petitioner, while
Simmons and Damus occupied the front of the vehicle. She told the sergeant
petitioner "tried to kiss her at one time and she pushed him away and said she
was in a relationship." She then reported petitioner and the man in the front
passenger seat "pinned her down in the backseat where she was sexually
assaulted by [petitioner] putting his penis in her vagina."
The car then pulled into a driveway, and N.R. "was pushed out onto the
roadway . . . [and t]he driver . . . exited [and] inserted his penis in her mouth
while [another] held her arms." N.R. "recalled being pushed to the ground where
she was knocked out . . . [and] when she regained her consciousness, she heard
[someone say] '[w]as she alive? Was she alive?'" She heard someone else say
they were going to call the police. The three men got back in the vehicle and
drove off. N.R. ran home and told her mother, who called the police.
N.R.'s forensic exam yielded 150 photographs depicting "several
abrasions, cuts, bruises, [and] contusions on . . . [her] body . . . head to toe
. . . ." Later, N.R. and her mother gave statements to the police, which Sergeant
Rothenburger described as "very similar to the account from the first time . . . ."
4 A-0820-21
N.R.'s phone contained a picture of her with a man from the bar taken that
night. The man was described as an "African American male with [a] buzz cut,
black t-shirt, white insignia." The picture was sent to a phone number believed
to belong the man in the photograph, and the number corresponded to
petitioner's address.
Petitioner voluntarily reported to the prosecutor's office, where he was
read his Miranda1 rights. Petitioner then stated his recollection of the night's
events. He said he was celebrating his birthday at a bar in Teaneck where he
used to be a manager. He recalled interacting with N.R. and telling her friends
he and the other two men "would take care of her and drive her home later that
evening."
Petitioner told police he was in the backseat of the car with N.R. and "he
had no contact at all physically with" her. He stated he may "have held her hand
or touched her hand on the walk to the car . . . ." When their car arrived in
petitioner's neighborhood, "Simmons . . . got out and hooked up with . . . [N.R.]
and then they departed the area." Petitioner told Sergeant Rothenburger
Simmons "was trying to have sex with . . . [N.R.]; [h]e was being rough and
. . . there was some type of oral sex that took place" between her and Simmons
1 Miranda v. Arizona, 384 U.S. 436 (1966).
5 A-0820-21
outside of the vehicle. He heard someone2 say they were going to call the police,
so the three men got back into the car and drove away.
Simmons and Damus were also interviewed by the BCPO. Simmons
stated when the car reached the driveway "[h]e got out and . . . bent . . . [N.R.]
over the vehicle and tried to have sexual intercourse with her and penetrate her."
He told Sergeant Rothenburger he could not sexually perform because of his
intoxication and "[a]t some point . . . [N.R.] was pushed to the ground." He told
the officer that he "kind of pushed her away from him," and she fell, hitting her
head.
Simmons returned to the BCPO to make an additional statement. In his
second statement he told police he "was touching and kissing . . . [N.R.] in the
back seat during the car ride." Simmons told Sergeant Rothenburger "[w]hen in
the driveway . . . receiving oral sex, he stated that he waited for . . . [petitioner]
to exit the vehicle and come . . . over to where he was to participate in the sex
act . . . ." N.R. protested petitioner joining them and so petitioner went back
into the vehicle, where he put the car "in reverse and backed it out of the
driveway, causing [Simmons and N.R.] to fall . . . onto the ground . . . ."
2 The record shows that the neighbor who threatened to call the police was
Patricia Magnero.
6 A-0820-21
Sergeant Rothenburger then interviewed petitioner a second time. He
admitted to kissing and touching N.R. in the backseat of the car before the group
reached the driveway. When N.R. was outside with Simmons, he admitted that
he got out of the "vehicle with his penis exposed as he walked over to [her and]
she pushed him away . . . and he . . . put his penis back in his pants and returned
to [the] vehicle." Petitioner told Sergeant Rothenburger "Simmons had gotten
rough with [N.R.]." He said N.R. fell to the ground and had lost consciousness.
Petitioner stated that shortly after she fell, he got into the driver's seat, backed
the car out of the driveway, and left.
B.
In January 2020, Captain Stuart Greer of the Morristown Police
Department received a request from the BCPO for information regarding a
firearms investigation the Morristown Police Department conducted on
petitioner. They sought this information because petitioner had applied to get
his guns and FPIC back. Captain Greer learned there were two master index
(MI) files for petitioner. According to Captain Greer, an MI file "is a master
file for a single person so any documentation or applications [for firearms] . . .
would go into one file." Noting the presence of two files for one applicant was
unusual, Captain Greer concluded there had to be some sort of administrative
mistake, which led to the creation of two MI files for petitioner.
7 A-0820-21
Captain Greer reviewed the two MI files, which included petitioner's FPIC
applications from 2007, 2009, and 2012. He learned that the Morristown Police
Department received petitioner's first FPIC application on November 27, 2007.
The Department denied the petition in 2008 because of concerns regarding
missing equipment from petitioner's time working with the Morristown
Ambulance Squad and petitioner lying about being related to a police officer in
Morristown. In 2009, petitioner filed a second application. At that time, Captain
Greer recommended denial of petitioner's second FPIC application because he
learned there was missing equipment from petitioner's time working as a
seasonal officer with another police department. The Morristown Police
Department denied the second FPIC application on December 29, 2009.
Captain Greer also learned petitioner applied for employment as a police
officer with the Morristown Police Department on July 2, 2012. Petitioner was
not considered for employment at the time because he did not rank high enough
on the list of eligible candidates.
Petitioner filed a third application for an FPIC on December 8, 2012,
which the department inadvertently filed under a different MI file. On this
application, petitioner answered "no" to the question: "have you ever had a[n
FPIC], permit to purchase a handgun, permit to carry a handgun or any other
firearms license or application refused or revoked . . . ?" Petitioner answered in
8 A-0820-21
the negative despite his previous FPIC rejection by the very same police
department.
Petitioner applied for employment a second time with the Morristown
Police Department in June 2013. As part of his background questionnaire,
petitioner answered he had not been denied "any license or permit, issued by
any [s]tate or [f]ederal agency . . . ." The 2013 background check revealed
petitioner owned a Glock handgun. Petitioner was ultimately recommended for
employment on June 7, 2013, one day before the events of N.R.'s alleged sexual
assault.
C.
Petitioner, Simmons, and Damus were arrested on June 29, 2013, in
connection with the alleged sexual assault of N.R. On October 25, 2013, the
Bergen Vicinage Superior Court issued an order for the surrender of petitioner's
passport, firearms, and FPIC as a condition of bail. In addition to the Glock,
petitioner surrendered a Mossberg shotgun. Petitioner was indicted on June 27,
2014. The case was dismissed on June 27, 2019, because the complaining
witness, N.R., had committed suicide.
Petitioner moved for return of his weapons and FPIC. The State opposed,
citing the sexual assault allegations as well as petitioner's FPIC application
9 A-0820-21
misrepresentations. The State cross-moved for an order revoking petitioner's
FPIC and compelling petitioner to sell the firearms.
The trial court conducted five hearings between June 30, and September
20, 2021. Captain Greer and Sergeant Rothenburger testified. The court found
petitioner had not engaged in a knowing falsification of his FPIC application,
rejecting the State's automatic disqualifier argument under N.J.S.A. 2C:58-
3(c)(3). The trial court then turned to the June 8, 2013 incident, and whether
petitioner's role in it merited discretionary disqualification under N.J.S.A.
2C:58-3(c)(5). Calling the criminal investigation "well documented," and its
written reports "comprehensive," the trial court found, "there were sexual
activities going on," and that "[petitioner] in his second statement acknowledged
that he had at some point exposed his private parts to the complaining witness
. . . ." The court further found N.R. suffered "non-trivial injuries" as a result of
her encounter with the three men, an encounter the court described as "unwanted
sexual misconduct." Finding the State had met its burden under N.J.S.A. 2C:58-
3(c)(5) by a preponderance of the credible evidence, the court concluded:
My assessment is that the allegations of
misconduct in the sexual assault case were serious
enough and corroborated enough by physical evidence
and observations of the victim to lead me to the
conclusion by a preponderance of the evidence that it
would be inappropriate to authorize possession of a
weapon.
10 A-0820-21
Petitioner raises numerous points on appeal, some of which are repetitive,
and many which overlap. We summarize them as follows:
I. N.J.S.A. 2C:58-3 Is Unconstitutional Under the
United States Supreme Court Decision in New York
State Rifle And Pistol Assn v. Bruen, 142 S.Ct. 2111
(2022).
II. The Trial Court Had No Authority to Compel the
Forfeiture of Petitioner's Firearms.
III. The Trial Court Abused Its Discretion in Denying
the Return of Petitioner's Weapons Pursuant to N.J.S.A.
2C:58-3(c)(5).
IV. Petitioner Was Entitled to A Jury Trial on the Issue
of Forfeiture under N.J.S.A. 2C:64-1, -13.
II.
A.
In the review of an order granting forfeiture, the court shall "accept a trial
court's findings of fact that are supported by substantial credible evidence[,]" In
re Forfeiture of Pers. Weapons & Firearms Identification Card belonging to
F.M., 225 N.J. 487, 505 (2016) (quoting In re J.W.D., 149 N.J. 108, 116-17
(1997)), "[b]ecause 'a judicial declaration that [a person] poses a threat to the
public health, safety or welfare involves, by necessity, a fact-sensitive
analysis.'" Ibid. (quoting State v. Cordoma, 372 N.J. Super. 524, 535 (App. Div.
2004)). The findings of a trial judge are "binding on appeal when supported by
11 A-0820-21
adequate, substantial and credible evidence." New Gold Equities Corp. v. Jaffe
Spindler Co., 453 N.J. Super. 358, 373 (App. Div. 2018) (quoting Rova Farms
Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474 (1974)).
A reviewing court shall "'not disturb the factual findings and legal
conclusions of the trial [court] unless' [it is] convinced [they were] 'so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice.'" In re Twp. of
Bordentown, 471 N.J. Super. 196, 217 (App. Div. 2022) (quoting Rova Farms
Resort, 65 N.J. at 484.). However, "[a] trial court's interpretation of the law and
the legal consequences that flow from established facts are not entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
B.
The decision to grant an FPIC "is made by the chief of police of the
municipality where the applicant resides." F.M., 225 N.J. at 508 (citing N.J.S.A.
2C:58-3(d)). An FPIC must be granted "unless good cause for the denial thereof
appears." Ibid. (quoting N.J.S.A. 2C:58-3(f)). "Similarly, the procedure for
revoking an [FPIC], which may be initiated upon application of the county
prosecutor . . . is governed by N.J.S.A. 2C:58-3(f)." Ibid. "That statute provides
that '[a]ny [FPIC] may be revoked by the Superior Court of the county wherein
12 A-0820-21
the card was issued, after hearing upon notice, upon a finding that the holder
thereof no longer qualifies for the issuance of such permit.'" Ibid. (first
alteration in original) (quoting N.J.S.A. 2C:58-3(f)).
The State "has the burden of proving the existence of good cause for the
denial by a preponderance of the evidence." In re Osworth, 365 N.J. Super. 72,
77 (App. Div. 2003) (citing Weston v. State, 60 N.J. 36, 51 (1972)). Hearsay
evidence is admissible, but there must be sufficient legally competent evidence
to support the court's findings. Weston, 60 N.J. at 45.
III.
A.
Petitioner argues the trial court deprived him of his constitutional right to
bear arms under the Second Amendment to the United States Constitution when
it used N.J.S.A. 2C:58-3 as the statutory basis for its order compelling forfeiture
of his weapons. Petitioner further contends the statute fails the test established
by the United States Supreme Court in Bruen, that is, the statute "is not
consistent with this nation's historical tradition of firearms regulation."
We have recently addressed the constitutionality of a weapons forfeiture
grounded in N.J.S.A. 2C:58-3(c)(3) and N.J.S.A. 2C:58-3(c)(5) in light of
Bruen. In re Appeal of the Denial of M.U.'s Application for a Handgun Purchase
Permit, 475 N.J. Super. 148 (App. Div. 2023).
13 A-0820-21
M.U. appealed from a trial court order denying his application for a
handgun purchasing permit (HPP), revoking his FPIC, and requiring him to sell
his firearms. M.U., 475 N.J. Super at 162. M.U. argued N.J.S.A. 2C:58-3(c)(5)
was unconstitutional under Bruen. Id. at 170. In the alternative, M.U. argued
the trial court engaged in a mistaken exercise of discretion when it considered
the evidence and concluded that M.U.'s acquisition of additional firearms would
not be in the interest of the public health, safety, and welfare under subsection
(c)(5). Ibid.
The facts bear some resemblance to the matter before us. M.U. obtained
an FPIC in 2017 and subsequently applied for an HPP. Id. at 164. After an
investigation by local police, the police chief denied the request, citing
subsection (c)(5). Id. at 164-65. The chief referenced "[M.U.'s] 'multiple
instances of negative police interactions, including the theft of a trailer and
criminal mischief.'" Id. at 164. M.U. appealed to the trial court, which
conducted a hearing. Ibid. Testimony at the hearing adduced evidence that
M.U. was implicated in the crimes of criminal mischief and theft in four separate
incidents between 20123 and 2017. Id. at 164-65. The testifying officer
3 The November 2012 incident was expunged. Id. at 165.
14 A-0820-21
addressed each incident and "concluded they reflected a pattern of 'poor
judgment,' which made [M.U.] 'unfit to possess a firearm.'" Id. at 165.
In weighing the witnesses' testimony, the trial court found M.U. not
credible and noted he had lied to the police during their investigation of his
crimes. Id. at 167. "The [trial] court found that granting the HPP permit and
allowing appellant to continue to own firearms was not in the interest of public
health, safety, and welfare." Id. at 167. Declining to consider the vandalism
and drink-throwing incidents because M.U. was not charged, the court
nonetheless found M.U. posed a risk that he would improperly cause harm to
others with a firearm. Id. at 168.
The court issued an order which: denied M.U.'s HPP application; granted
the State's motion to revoke M.U.'s FPIC; and required M.U. to sell his firearms.
Ibid. While the matter was pending before us, the U.S. Supreme Court decided
Bruen. Writing for the panel, Judge Richard J. Geiger undertook an exhaustive
review of the historical record, as required by the Bruen Court. He concluded:
The historical record reveals three principles. First,
legislatures traditionally imposed status-based
restrictions that disqualified categories of persons from
possessing firearms. Second, the status-based
restrictions were not limited to individuals who
demonstrated a propensity for violence—they also
applied to entire categories of people due to the
perceived threat they posed to an orderly society and
compliance with legal norms. Third, legislatures had
15 A-0820-21
broad discretion to determine when people's status or
conduct indicated a sufficient threat to warrant
disarmament.
[Id. at 189.]
Rejecting M.U.'s arguments that N.J.S.A. 2C:58-3(c)(5) was void for
vagueness or unconstitutionally overbroad, Judge Geiger held that neither
Bruen, nor its predecessors, Heller4 and McDonald5, rendered the statute
unconstitutional. Id. at 192-93. We see no reason to deviate from Judge Geiger's
well-reasoned analysis and conclude N.J.S.A. 2C:58-3(c)(5) is constitutional for
the same reasons.
B.
We turn to petitioner's argument that the trial court, like in M.U., "erred
in its assessment of the evidence and in its conclusion under N.J.S.A. 2C:58 -
3(c)(5) that it would not be in the interest of the 'public health, safety or welfare'"
to return the FPIC and weapons he surrendered as a condition of bail. Id. at 163.
The trial court denied petitioner's motion for return of his property, and it
granted the State's request for revocation of petitioner's FPIC and to compel sale
of his firearms on October 12, 2021. We note N.J.S.A. 2C:58-3(c)(5) was
4 District of Columbia v. Heller, 554 U.S. 570, 635 (2008)
5 McDonald v. City of Chicago, 561 U.S. 742, 791 (2010)
16 A-0820-21
amended effective December 22, 2022. The current version of the statute is not
before us. The version of the statute we analyze reads as follows:
c. Who may obtain. 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 [FPIC],
except as hereinafter set forth. No [HPP] or [FPIC]
shall be issued:
. . . .
(3) . . . to any person who knowingly
falsifies any information on the application
form for a [HPP] or [FPIC];
. . . .
(5) To any person where the issuance
would not be in the interest of the public
health, safety or welfare[.]
Our thorough review reveals a comprehensive record from which the trial
court reached its findings of fact and conclusions of law. The court made
detailed and nuanced credibility findings.
In its oral statement of reasons, the court rejected some aspects of the
State's cross-motion, finding the State failed to demonstrate petitioner engaged
in a knowing falsification of his FPIC application. However, the record supports
the court's finding that N.R. was sexually assaulted inside and outside of the car
she and petitioner were riding in, and then abandoned by the side of the road.
17 A-0820-21
The record also amply supports the court's finding petitioner played a role in the
incident. Noting petitioner admitted that he had exposed himself to N.R. while
she was being sexually assaulted by the driver of their car, the court found the
greater weight of the evidence led it to conclude "there was sexual misconduct
against [N.R.] and that [petitioner] was part of it." To quote Judge Geiger:
The record supports the finding that appellant fits
squarely within the category of individuals who would
pose a risk to "public health, safety or welfare" if
permitted to purchase handguns. We therefore
conclude that appellant's history of misconduct placed
him outside of "the people" protected by the Second
Amendment. We discern no abuse of discretion.
[M.U., 475 N.J. Super. at 196.]
C.
Petitioner contends that N.J.S.A. 2C:58-3(c)(5) solely addresses HPP and
FPIC licensing issues, and that it does not authorize the court to order forfeiture
of his weapons. Petitioner contends that the State should have moved under the
forfeiture statute, N.J.S.A. 2C:64-1, -13 to take his weapons. Proceeding under
this statute, argues petitioner, would have entitled him to litigate the matter in
civil court pursuant to N.J.S.A. 2C:64-3. Petitioner posits that the court's order
compelling him to sell his weapons outside of the process established by the
forfeiture statute is error. We are unpersuaded.
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Petitioner's FPIC and firearms were turned over as a condition of
petitioner's bail in 2013. When the first-degree and second-degree sexual assault
charges against petitioner were dismissed after the complainant's death, the State
moved, as it had statutory authority to do, for revocation of petitioner's FPIC.
Making findings, the court granted the State's request. It follows that, once the
court revoked petitioner's right to acquire firearms under N.J.S.A. 2C:58 -
3(c)(5), the State can proffer the same evidence of petitioner's conduct and seek
an order compelling sale of the weapons petitioner had already surrendered. We
find no forfeiture in this scenario because a compelled sale through an
authorized firearms dealer results in petitioner receiving compensation for his
property. A forfeiture under N.J.S.A. 2C:64-1, -13, the process recommended
by petitioner, would result in petitioner receiving no compensation for the
weapons retained by the State.
Petitioner's firearms were never "unlawfully possessed, carried, acquired
or used" during his commission of the acts which led to revocation of his FPIC.
See N.J.S.A. 2C:64-1(1). There is no evidence that petitioner's weapons were
used or intended to be used in furtherance of an unlawful activity. See N.J.S.A.
2C:64-1(2). We discern no basis for the State to "seize" petitioner's weapons
under the statute, especially where the State came into possession of those
weapons by surrender as a condition of bail.
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To the extent that we have not addressed any remaining arguments by
petitioner, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.