In the Matter of R.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3022-22

IN THE MATTER OF R.C. 1

_________________________

Argued November 19, 2024 – Decided December 23, 2024

Before Judges Chase and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Bergen County, Petition No. XTR-2022-

000001.

Gabrielle M. Bamberski argued the cause for appellant

R.C. (Dimin Fierro, LLC, attorneys; William N. Dimin,

of counsel; Gabrielle M. Bamberski, on the briefs).

Edward F. Ray, Assistant Prosecutor, argued the cause

for respondent State of New Jersey (Mark Musella,

Bergen County Prosecutor, attorney; Edward F. Ray, on

the brief).

PER CURIAM

1

Records relating to FERPO proceedings are confidential and shall not be

disclosed to persons other than the respondent except for good cause shown.

Admin. Off. of the Cts., Admin. Directive #19-19, Guidelines for Extreme Risk

Protective Orders attach. 1, Guideline 8(a) (Aug. 12, 2019) (hereinafter AOC

Directive). We also refer to certain individuals whose statements and testimony

are included in the record by their initials to protect their privacy and the

confidentiality of these proceedings. R. 1:38-3(d)(9).

Defendant R.C. appeals from an April 24, 2023 final extreme risk

protective order (FERPO) entered against him pursuant to the Extreme Risk

Protective Order Act of 2018 (the Act), N.J.S.A. 2C:58-20 to -32. Since the trial

court's entry of the FERPO was supported by substantial credible evidence, we

affirm.

I.

We discern the salient facts from the record developed during the April

24, 2023 FERPO hearing, at which Detective Sergeant William Phayre,

defendant's mother (C.C.), and defendant's father (S.C.) testified.

On March 17, 2022 (the 2022 incident), the Maywood Police Department

(MPD), received a 911 call reporting an erratic driver. When police officers

Elias Atie and Lieutenant Derk Smith arrived at the scene, a witness told the

officers they saw a black Ford F-150 with a New Jersey license plate "drive on

the sidewalk, strike a tree and the front of the residence" before fleeing the

scene.

After identifying defendant as the registered car owner, MPD officers

arrived at defendant's address where they observed "damage to the front end of

[defendant's] vehicle." The officers knocked on defendant's door and he

answered, appearing to be intoxicated. Atie observed that defendant's eyes were

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"watery and droopy," and "that [defendant's] jeans were wet, which led [Atie]

to [believe] that [defendant] urinated in his pants during the [car] accident." The

officers conducted two field sobriety tests, which defendant failed.

As Atie placed defendant under arrest, defendant was "talking in an

aggressive manner" using expletives and "proceeded to turn and strike [Atie]

with his arm causing [Atie] to slam into the front of the patrol car." By that

time, Officer Timothy Cook had arrived at the scene to support Atie and Smith.

After defendant struck Atie, Cook brought him to the ground, with Smith and

Atie assisting Cook in placing defendant in handcuffs. During the struggle, Atie

injured his back and sustained a laceration to his face; Cook also injured his

right elbow and back and sustained a laceration to his hand and face. During

transport, defendant continued to curse and made a derogatory statement

regarding his perception of Atie's national origin.

When Phayre arrived to assist the officers at the MPD headquarters, they

were processing defendant. Defendant did not follow the officers' directions

and appeared to attempt to manipulate the Alcotest results by not blowing into

the mouthpiece with enough force for the required duration, resulting in a refusal

charge against him.

During Phayre's testimony, he recounted the events that occurred at

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headquarters, stating, as his officers were processing defendant, they "came into

my office . . . and advised me [defendant] was making some comments about

their ballistic vests and their firearms and ammunition, which was kind of out

of the ordinary." Defendant asked Phayre directly if he "considered [whether

the .40 caliber gun contained] enough stopping power to stop a human." Phayre

also testified that defendant's statements were concerning because he "appeared

fixated on our weapons and [] vests," and referenced C4 explosives.

Phayre then conducted a firearms records check, which revealed that

defendant owned a Glock 17 handgun. Atie called defendant's mother, C.C.,

and asked her to retrieve defendant from police headquarters. During this

conversation, defendant' mother "made comments indicating that she was

concerned about her son's mental state." C.C. also stated that defendant "has

[had a drinking problem] in the past but has been really good lately."

At headquarters, C.C. told Phayre that following an incident on August 9,

2021 (the 2021 incident), she called 911 to report a dispute between defendant

and his father. During the 2021 incident, she "was concerned" about her son's

mental state and alcohol consumption, so she hid her son's gun and ammunition.

When Phayre asked if defendant had a drinking problem, C.C. responded she

"could only recall one time where he was intoxicated and had an argument with

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his father." The magazines of ammunition remained hidden as of the 2022

incident. C.C. revealed that her son was very insecure and "becomes angry

sometimes and has made comments in the past stating that he was 'good for

nothing.'"

After speaking with C.C., Phayre contacted the Bergen County

Prosecutor's Office, which advised him to apply for a temporary extreme risk

protective order (TERPO). On March 18, 2022, Phayre signed a petition for a

TERPO on behalf of the MPD seeking an order prohibiting defendant from

owning, possessing, purchasing, or receiving firearms and ammunition. The

municipal court granted the TERPO. Shortly thereafter, the officers retrieved

defendant's firearm from his home. Defendant was charged with a variety of

crimes, including aggravated assault on an officer and resisting arrest, and was

also issued several motor vehicle summonses, including driving under the

influence and leaving the scene of an accident involving property damage.

A few months later, defendant was approved for a twelve-month Pretrial

Intervention (PTI) program, conditioned on receiving mental health, drug, and

alcohol treatment, agreeing to forfeit the weapons seized under the TERPO, and

pleading guilty to DWI. Clinician Jeanne Marvel wrote a letter to the court

stating defendant attended his Addiction Recovery Program assessment at Care

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Plus on August 10, 2022, and his drug screens were all negative aside from

prescribed medication. Marvel recommended defendant continue sessions with

his private psychiatrist.

C.C. testified at the FERPO hearing that defendant has been receiving

treatment for attention-deficit hyperactivity disorder (ADHD) for the past seven

years. To her knowledge, defendant has never seen a private psychiatrist, but in

the past has seen a school psychologist, and has been compliant with taking

prescribed ADHD medication.

C.C.'s testimony at the FERPO hearing contradicted statements she made

to Phayre at headquarters, testifying that she removed the magazines from the

gun because "I don't like guns. That's just me personally." On cross

examination, C.C. maintained she removed the magazines from the gun, and

"kept them separate[d]," because "that's just what [she] wanted to do." She also

asserted defendant does not have alcohol abuse issues and has never seen

defendant intoxicated before. C.C. testified she told an MPD officer at

headquarters "flat out" this incident was "a one-off" and the 2021 incident did

not involve alcohol or weapons.

S.C., who is a professor of textile science, testified that defendant's

comments regarding the Kevlar vests were not unusual because they had a

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previous discussion about the material based on one of his student's research

project. S.C. testified the 2021 incident was "just a verbal argument," and he

was not sure why C.C. called the police.

S.C. testified he had never seen defendant intoxicated prior to the 2022

incident and had only seen defendant drink "a beer . . . like at Christmas." S.C.

testified defendant has "been very good" about taking his ADHD medication,

but S.C. did not know the name or specialty of defendant's doctor.

After the hearing, the trial court granted the FERPO in an oral decision,

followed by a written amplification pursuant to Rule 2:5-1(d). The trial court

found Phayre's testimony credible, stating "Phayre spoke clearly and answered

all of counsels' questions directly without hesitation."

The trial court did not find C.C. credible, stating she was "repeatedly

evasive and resisted answering questions that were asked of her by the

Prosecutor." The trial court observed that C.C. testified she had never seen

defendant intoxicated before, "directly contradict[ing] what officers [reported]

she told them regarding [the 2021 incident]" at headquarters. The trial court

also specifically did not find C.C.'s testimony about defendant's ADHD

treatment credible. As a whole, the court found C.C. not to be credible because

"the vast majority of her testimony [was] untrustworthy." The court also found

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S.C.'s testimony was "overall not credible."

In analyzing the required FERPO factors, the trial court found in favor of

factor one, that defendant had a "history of threats or acts of violence against

self or others" based on his actions and statements during the 2021 and 2022

incidents. The trial court considered Phayre's credible testimony that defendant

was aggressive and confrontational during his arrest in the 2022 incident. The

trial court also considered Phayre's testimony credible regarding defendant's

comments and C.C.'s actions in hiding defendant's magazines as of the 2021

incident. The trial court also found in favor of factor two, that defendant had a

"history of use, attempted use, or threatened use of physical force against

another person," relying on the same facts.

As to factor seven, the trial court found defendant had "a history of alcohol

abuse due to his . . . 2022 arrest for [DWI], his mother's statement to police, and

the 2021 argument with his father . . . ." The trial court determined defendant's

parents tried to minimize the altercation and deny defendant's intoxication,

concluding the 2022 incident is evidence of an individual who has a problem

with alcohol or who acts erratically and dangerously while intoxicated.

As to factors thirteen and fifteen, the trial court "placed a small amount of

weight" on defendant's ADHD diagnosis. After analyzing the required factors,

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the trial court held petitioner met its burden and entered the FERPO, concluding:

[D]ue to [defendant's] assault of officers during his

March 2022 arrest, his statements to police while being

processed for that same incident, his 2021 argument

between [defendant] and his father, his instances of

alcohol abuse, and his diagnosis and treatment for

ADHD, . . . [defendant] showed by a preponderance of

the evidence that [defendant] poses a significant danger

of bodily injury to self or others by owning or

possessing a firearm.

This appeal followed.

II.

Defendant argues the following points on appeal:

POINT I

THIS COURT SHOULD REVERSE THE TRIAL

COURT'S APRIL 24, 2023 ORDER BECAUSE THE

TRIAL JUDGE ERRED IN APPLYING THE LAW,

INEXPLICABLY DEPARTED FROM

ESTABLISHED POLICIES, EXERCISED ITS

DISCRETION IN A MANNER THAT IS

MANIFESTLY UNJUST, AND RESTED ITS

DECISION ON AN IMPERMISSIBLE BASIS.

POINT II

THE TRIAL COURT'S FACTUAL FINDINGS AND

CREDIBILITY FINDINGS ARE NOT SUPPORTED

BY ADEQUATE, SUBSTANTIAL, OR CREDIBLE

EVIDENCE.

Defendant argues the trial court improperly relied on the 2022 incident in

evaluating factors one, two, and seven and failed to support its determination to

enter the FERPO with credible evidence. In response, the State argues the

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Legislature intended the definition of "any history" to broadly encompass a

defendant's past acts and the credible evidence in the record substantiates the

entry of the FERPO.

Our review of a trial court's fact-finding function is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "A reviewing court is bound by the trial

court's findings 'when supported by adequate, substantial, credible evidence.'"

Peterson v. Peterson, 374 N.J. Super. 116, 121 (App. Div. 2005) (quoting

Cesare, 154 N.J. at 412). Deference is particularly appropriate where the

evidence is largely testimonial and hinges upon a court's ability to make

assessments of credibility. Cesare, 154 N.J. at 412. We therefore will "not

disturb the factual findings and legal conclusions of the trial judge unless [we

are] convinced that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to offend the

interests of justice." Ibid.

However, the interpretation of a statute is a legal question. State v. Revie,

220 N.J. 126, 132 (2014). As such, we review disputes of statutory

interpretation de novo, "unconstrained by deference to the decisions of the trial

court . . . ." State v. Grate, 220 N.J. 317, 329 (2015).

III.

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We conclude the trial court did not err in entering the FERPO based on

the substantial, credible evidence adduced at the hearing.

A.

Under New Jersey law, the Act "permits the emergent removal of weapons

from any person who poses a danger to self or others," In re D.L.B.,

"supplement[ing] other statutory mechanisms for removing firearms from

persons who legally possess them." 468 N.J. Super. 397, 401 (App. Div. 2021)

(citing N.J.S.A. 2C:58-3(f)). There is a two-step process to removing firearms:

first the court decides if "it will issue a temporary order to remove firearms" and

then, "after a plenary hearing, the court will consider issuing a final order to

remove the firearms indefinitely." Id. at 401-02 (citing N.J.S.A. 2C:58-23 and

N.J.S.A. 2C:58-24).

In granting a TERPO, N.J.S.A. 2C:58-23(f) requires a court to consider

whether a respondent:

(1) has any history of threats or acts of violence by the

respondent directed toward self or others;

(2) has any history of use, attempted use, or threatened

use of physical force by the respondent against another

person;

(3) is the subject of a temporary or final restraining

order or has violated a temporary or final restraining

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order issued pursuant to the 'Prevention of Domestic

Violence Act of 1991,' . . . ;

(4) is the subject of a temporary or final protective order

or has violated a temporary or final protective order

issued pursuant to the 'Victim's Assistance and

Survivor Protection Act' . . . ;

(5) has any prior arrests, pending charges, or

convictions for a violent indictable crime or disorderly

persons offense, stalking offense pursuant to [N.J.S.A.

2C:12-10], or domestic violence offense enumerated in

[N.J.S.A. 2C:25-19];

(6) has any prior arrests, pending charges, or

convictions for any offense involving cruelty to animals

or any history of acts involving cruelty to animals;

(7) has any history of drug or alcohol abuse and

recovery from this abuse; or

(8) has recently acquired a firearm, ammunition, or

other deadly weapon.

N.J.S.A. 2C:58-24(b) governs the issuance of FERPOs, providing in part

If the court finds by a preponderance of the evidence at

the hearing that the respondent poses a significant

danger of bodily injury to the respondent's self or others

by having custody or control of, owning, possessing,

purchasing, or receiving a firearm, the court shall issue

an extreme risk protective order.

N.J.S.A. 2C:58-23(f) and N.J.S.A. 2C:58-24(b) must be read in harmony

with each other and the AOC Directive, which "summarizes the Act and

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promulgates Guidelines . . . that prescribe the process for obtaining orders under

the Act." D.L.B., 468 N.J. Super. at 402. In D.L.B., we concluded, "[b]ecause

the AOC Directive implements the Court's constitutional power to promulgate

rules governing practice and procedure and administration of the courts, the

AOC Guidelines have 'the force of law.'" Ibid. (citing State v. Morales, 390 N.J.

Super. 470, 472 (App. Div. 2007)).

In addition to statutory factors one through eight, the AOC Directive's

Guideline 3(d) also requires a trial court to consider "whether respondent: (9)

has recklessly used, displayed, or brandished a firearm; (10) has an existing or

previous [extreme risk protective order] issued against [them]; and (11) has

previously violated an [extreme risk protective order] issued against [them]."

Id. at 404 (citing AOC Directive Guideline 3(d)). The eleven factors together

comprise the "behavioral" factors. Ibid.

A trial court must first find one of the eleven "behavioral" factors before

considering factors twelve through fifteen. Ibid. In pertinent part, these include

whether a defendant:

(12) has any prior involuntary commitment in a

hospital or treatment facility for persons with

psychiatric disabilities;

(13) has received or is receiving mental health

treatment;

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(14) has complied or has failed to comply with

any mental health treatment; and

(15) has received a diagnosis of a mental health

disorder.

[Ibid. (citing AOC Directive Guideline 3(d)).]

No single factor is determinative, rather, in weighing each of the factors,

"[t]he court shall issue the FERPO . . . if it finds 'by a preponderance of the

evidence at the hearing that the [individual] poses a significant danger of bodily

injury to the [individual]'s self or others' by possessing a firearm." Id. at 406-

07 (quoting N.J.S.A. 2C:58-24(b)).

We affirm the trial court's entry of the FERPO determining the trial court's

findings are supported by adequate, substantial, and credible evidence. The trial

court's factual findings related to factors one and two were based on credible

testimony from Phayre, in addition to the police reports of the responding

officers. The trial court found C.C. and S.C. not credible, pointing to the

contradictory statements provided by C.C. to the police, which were

subsequently recanted at the hearing, and its finding that S.C.'s testimony lacked

believability. Based on our review of the record, the trial court did not go " so

wide of the mark [such] that the judge was clearly mistaken." N.J. Div. of Youth

& Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007).

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B.

We turn to defendant's arguments that the trial court erred in broadly

applying factor seven, concerning defendant's "history of drug or alcohol abuse

and recovery from this abuse." See N.J.S.A. 2C:58-23(f)(7). When interpreting

a statute, "[t]he overriding goal is to determine as best we can the intent of the

Legislature, and to give effect to that intent." State v. Robinson, 217 N.J. 594,

604 (2014) (quoting State v. Hudson, 209 N.J. 513, 529 (2012)). If a plain

language reading of the statute "leads to a clear and unambiguous result, then

our interpretive process is over." Richardson v. Bd. of Trs., Police & Firemen's

Ret. Sys., 192 N.J. 189, 195 (2007). Only if we find an ambiguity in the

statutory language, do we turn to extrinsic evidence. State v. Olivero, 221 N.J.

632, 639 (2015).

We conclude since N.J.S.A. 2C:58-23(f)(1) and (2) unambiguously

qualify "history" with the term "any," the statute was meant to be expansive

allowing the trial court to consider "any history" of violence or physical force.

"Any" is defined as "one or some indiscriminately of whatever kind . . . ."

Merriam-Webster's Collegiate Dictionary, 647 (11th ed. 2022). In this case, the

plain meaning of the statute is clear, and therefore, we should "apply that plain

meaning and end our inquiry." In re H.D., 241 N.J. 412, 418 (2020) (citing

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Garden State Check Cashing Serv., Inc. v. Dep't of Banking & Ins., 237 N.J.

482, 489 (2019)).

We are unpersuaded by defendant's argument that the court conducting a

FERPO hearing should only consider events prior to the incident triggering the

entry of a TERPO because during FRO hearings "courts consider 'history'

separate and distinct from the triggering act . . . ." Defendant has not cited any

legal authority for the proposition that courts conducting FERPO hearings are

obligated to follow the same procedures required for FRO hearings.

We conclude the trial court did not err in considering defendant's injury

to the police officers in the 2022 incident as evidence of factors one and two

because the statute unambiguously states the trial court may consider "any"

history of violence or threat of physical force. The same rationale applies to

factor seven, which requires consideration of "any history of drug or alcohol

abuse and recovery from this abuse . . . ." See N.J.S.A. 2C:58-23(f)(7)

(emphasis added). Defendant does not support his argument that considering

the 2022 incident for more than one factor violates principles of collateral

estoppel and double jeopardy with any prevailing law.

We defer to the trial court's factual findings based on its credibility

determinations because they were not "clearly mistaken." See N.J. Div. of

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Youth & Fam. Servs., 191 N.J. at 605. The trial court did not find C.C.'s and

S.C.'s testimony related to this factor credible, pointing out the inconsistencies

that were apparent upon a comparison of C.C.'s testimony to the statements she

made to the police.

The credible testimony in the record contains ample evidence establishing

defendant's history of substance abuse. We are also unconvinced that factor one

requires a formal diagnosis that defendant has a history of substance abuse. The

trial court properly considered the credible facts in the record, including

defendant's 2022 incident and subsequent DWI arrest, his disrespect and

aggression to the arresting officers that caused injuries, and his comments about

weapons and ballistic vests.

The trial court found that during defendant's processing at police

headquarters for the 2022 incident, defendant was clearly intoxicated and

accepted the evidence in the record that defendant was intoxicated during the

2021 altercation with his father. We discern no error with the trial court's factual

findings that defendant was engaging in services related to alcohol abuse,

considering defendant's acceptance into the PTI Program, where a condition of

acceptance into the program was that defendant must engage in drug and alcohol

counseling. The trial court also evaluated the letter from Marvel, stating

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defendant's drug screening was negative aside from his prescribed medication,

attributing a small amount of weight to this evidence.

C.

Having found factors one, two, and seven (the "behavioral" factors), the

trial court properly considered factors thirteen and fifteen. The trial court's

determinations surrounding factors thirteen and fifteen are supported by

adequate, substantial, and credible evidence, and were accorded appropriate

weight. See Cesare, 154 N.J. at 412. Here, defendant had been diagnosed with,

and took medications for, ADHD, a mental health disorder. Despite this

diagnosis, there is nothing in the record indicating defendant sought continuous

treatment outside of his prescribed medications with a private mental health

professional, as recommended by Marvel, defendant's clinician at the Alcohol

Recovery Program. Thus, the trial court properly considered factors thirteen

and fifteen.

D.

We are unconvinced defendant was deprived of due process by way of the

State's proffering only Phayre's testimony, rather than from all officers involved.

Our jurisprudence establishes a FERPO may be predicated in part, on

hearsay. There must be a residuum of competent evidence in the record to

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support the issuance of a FERPO. D.L.B., 468 N.J. Super. at 406 (citing Weston

v. State, 60 N.J. 36, 51 (1972)).

Here, we are satisfied the trial court did not base its decision solely on

hearsay. Phayre testified on personal knowledge regarding defendant's

intoxication and interaction with the other officers, and defendant's concerning

statements, his conversations with C.C. Phayre also authenticated the police

reports from the 2022 incident. Defendant had the ability to subpoena other

police officers to testify if he sought to elicit contrary facts, but failed to do so.

We conclude the State's failure to proffer the testimony of all officers involved

does not constitute a constitutional defect in the process afforded to defendant.

E.

For purposes of being thorough, we briefly address defendant's argument

that the MPD was an improper petitioner despite defendant's failure to raise the

issue below. 2

Without providing law defendant argues a law enforcement agency is not

included in the definition of "petitioner" in N.J.S.A. 2C:58-21, which allows a

2

During oral arguments, defense counsel conceded the entry of the TERPO was

not at issue for the purposes of this appeal. However, because the issues related

to the entry of the TERPO were in the merits brief, even though they were not

raised below, we nonetheless address them.

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family or household member or a law enforcement officer to petition the court

for an order under the Act. Nonetheless, we find the State complied with the

requirements of the Act because the petition was supported by Phayre's affidavit

made on personal knowledge. Since this issue was not raised to the trial court,

our review under the plain error standard underpins our conclusion that any

technical error was not clearly capable of producing an unjust result. See R.

2:10-2; State v. Singh, 245 N.J. 1, 12 (2021) (". . . an unchallenged error

constitutes plain error if it was 'clearly capable of producing an unjust result.'" ).

To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude they lack sufficient merit to warrant

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

Affirmed.

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