Opinion
DOCKET NO. A-5388-14T4
11-21-2016
STATE OF NEW JERSEY IN THE MATTER OF FORTUNATO M. SOTO
Carlos E. Jimenez, attorney for appellant Fortunato M. Soto. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Koblitz and Sumners. On appeal from Superior Court of New Jersey, Law Division, Middlesex County. Carlos E. Jimenez, attorney for appellant Fortunato M. Soto. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Fortunato M. Soto appeals from the June 25, 2015 order denying his application for a permit to carry a handgun. For the reasons that follow, we reverse and remand.
In May 2015, Soto filed an application with the New Jersey State Police to renew his handgun permit. Carrying a firearm was required by his employer to perform his job as an armored car driver and guard. After the application had been reviewed by the State Police, it was forwarded to the trial court for approval. Soto was contacted by the court to appear on June 25, 2015, to pick up his new permit which apparently had been approved and signed by the judge.
When Soto appeared in court, however, the judge advised him that there was a "problem." The judge stated that similar permits held by his co-workers were altered to remove restrictions on the use of handguns. The judge told Soto that his current permit had been altered and that Soto was aware of the alteration. Further, the judge instructed Soto "that perhaps you should not speak to this because altering one of these permits is a criminal offense and it could get you in trouble." The judge further stated, "I don't know whether you did it, someone did it at your behest. I don't know exactly what happened." The judge revoked Soto's current permit which was set to expire on August 15, 2015, and informed him that he was not going to get a new permit. When Soto inquired when he could get a new permit, the judge responded "indefinitely" and informed him that he would have a problem getting a permit in the future. At no point during the brief proceeding did the State present any testimony or evidence to revoke Soto's current permit or deny his application for a new permit. An order was entered that day denying Soto's application.
There is no indication in the record that an order was entered revoking Soto's current permit.
Before us, Soto contends that the trial court erred by not providing him with notice and a hearing before revoking his permit to carry a handgun and denying his application for a new permit. We agree.
A gun permit revocation requires a judicial proceeding to which procedural due process applies. In re Preis, 118 N.J. 564, 576 (1990) ("[T]he Legislature has designated the judiciary as the issuing authority for gun permits."); In re Dubov, 410 N.J. Super. 190, 199 (App. Div. 2009) (evaluating whether the hearing conducted conformed with the essential requirements of procedural due process). To revoke a handgun permit, N.J.S.A. 2C:58-4(f) provides, "[a]ny permit may be revoked by the Superior Court, after hearing upon notice to the holder, if the court finds that the holder is no longer qualified for the issuance of such a permit."
Soto's new permit to carry was effectively revoked by an after-the-fact denial of his application, because the permit had already been granted and was then "denied" sua sponte by the court. The court's denial and revocation of Soto's existing permit was done without notice and an opportunity to be heard given to Soto, or for that matter, to the law enforcement authorities. This did not comport with the statute or due process. Thus, we vacate the order and remand this matter to the court for an evidentiary hearing to develop a factual record to determine whether Soto will be permitted to renew his permit. In doing so, we render no opinion on the merits of Soto's application to renew his permit to carry a handgun.
Our ruling is not meant to imply that the court is without means to address its concerns when it has reason to be believe a handgun permit has been altered. A sua sponte Order to Show Cause with temporary restraints under Rule 4:52-1, could have been issued to require Soto and his employer to appear and show cause why the carry permit should not have been revoked in light of the alleged alteration. --------
Lastly, out of an abundance of caution, we direct that the evidentiary hearing be held before a different judge because it appears that the judge presiding over the challenged proceeding may have already made credibility determinations adverse to Soto. See State v. Micelli, 215 N.J. 284, 295 (2013). A case management conference shall be conducted within thirty days where consideration should be given to updating Soto's application to carry a handgun. We also stay Soto's carry permit pending further order of the trial court.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION