In the Matter of R.O.R., 3rd

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3989-24 IN THE MATTER OF R.O.R., 3RD.1 ____________________ Argued October 14, 2026 – Decided October 27, 2026 Before Judges Rose and Jablonski. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Petition No. 0180- XTR-2022-000010. Melissa Rosenblum argued the cause for appellant R.O.R., 3rd (Melissa Rosenblum, LLC, attorneys; Melisssa Rosenblum, on the briefs). Kristen Nicole Pulkstenis, Assistant Prosecutor, argued the cause for respondent State of New Jersey (William Reynolds, Atlantic County Prosecutor, attorney; Kristen Nicole Pulkstenis, of counsel and on the brief). PER CURIAM 1 Although R.O.R., 3rd, is appellant on appeal, he was respondent before the trial court. We use initials in compliance with Administrative Directive #19-9, Guidelines for Extreme Risk Protective Orders (Aug. 12, 2019) (Guidelines).  Respondent R.O.R., 3rd, appeals from a July 8, 2025 final extreme risk protective order (FERPO) issued against him under the Extreme Risk Protective Order Act of 2018 (ERPO), N.J.S.A. 2C:58-20 to -32. Citing procedural and substantive flaws, respondent seeks vacatur of the FERPO and remand for a new hearing. More particularly, respondent argues issuance of the FERPO was impermissibly based on uncorroborated hearsay evidence and the State's failure to demonstrate respondent "presently posed a significant danger of causing bodily injury to himself or others" under the governing legal principles. For the reasons that follow, we vacate the FERPO, reinstate the temporary extreme risk protective order (TERPO), and remand for a new hearing. I. We summarize the facts from the trial record. On December 22, 2022, Officer John McColgan of the Hamilton Township Police Department filed a petition for a TERPO against respondent. In the petition, McColgan certified "[he] believed [r]espondent poses an immediate and present danger of causing bodily injury to self or others by owning, possessing, purchasing[,] or receiving firearms and/or ammunition." A-3989-24 2  Pursuant to information received from respondent's girlfriend, in the petition, McColgan stated respondent "threatened to kill himself with a handgun approximately 4-5 times this year" and, on the present date, he threatened to harm himself, removed a handgun from the safe, and left the residence. McColgan further asserted the girlfriend reported "respondent has an alcohol abuse problem," "recently left a rehabilitation facility after one week," "has anxiety issues," and "has taken medication in the past." In the petition, McColgan explained the girlfriend called 9-1-1 stating "respondent was 'acting crazy' and left the residence with a handgun." She also reported, on prior occasions, respondent removed the gun from the safe when he was suicidal and, on the present date, "the firearm was no longer in the safe." As set forth in the petition, the girlfriend told McColgan respondent returned home, but "a short time later" was involved in a motor vehicle accident in the City of Northfield. McColgan stated members of the Northfield Police Department (NPD) arrested respondent for driving while intoxicated (DWI) and recovered a firearm. That same day, the municipal court issued a TERPO against respondent. In the TERPO, the court authorized police to seize a Glock firearm "already recovered by [the NPD]," "various ammunition," "a BB gun," and "a firearms A-3989-24 3 [identification] card located within a safe somewhere within [respondent 's residence]." The return date for the FERPO was scheduled eight days later on December 30, 2025, before the Superior Court. See N.J.S.A. 2C: 58-24(a) (requiring a FERPO hearing "within 10 days of the filing of a [TERPO] petition"). However, the hearing was not conducted until June 27, 2025. We glean from the record, the delay was attributed to respondent's successful completion of the Veterans Diversion Program (VDP), N.J.S.A. 2C:43-23 to -31, regarding the Northfield charges. McColgan was the sole witness to testify at the FERPO hearing. McColgan's testimony was consistent with the information set forth in his petition. McColgan further explained he responded to the girlfriend's call reporting a domestic dispute. He testified the girlfriend shared a child with respondent and initially sought a restraining order, but the issuing judge requested "more information about the Northfield case." After McColgan contacted the NPD, the girlfriend changed her mind. McColgan then responded to the home and seized "ammunition, BB guns, [a] firearms [identification] card, and spare magazines." A-3989-24 4  At the conclusion of direct examination, the trial court inquired whether the NPD charged respondent with a weapons offense. McColgan responded: "I believe [respondent] got into a motor vehicle crash in Northfield. They arrested him for [DWI], and subsequent to the arrest, they found a loaded handgun." On cross-examination, respondent's counsel established McColgan's petition for the TERPO was based solely on information he received from respondent's girlfriend. Citing the "residuum rule," respondent's counsel then moved to dismiss the petition. She argued the State's petition was based solely on hearsay evidence and the State failed to present "a residuum of legal and competent evidence . . . to support the hearsay." In response, the court noted the prosecutor "didn't have an opportunity to move into evidence her packet." The court stated that packet included: a four- page police report; the TERPO petition; the NPD reports, 2 including "the arrest 2 Although not specified by the court, the NPD reports included the affidavit of probable cause and certification to the Preliminary Law Enforcement Incident Report (PLEIR) of Officer Keith Lyons. In the affidavit, Lyons averred respondent "was found to be in possession of a handgun" following a search incident to his arrest. In the PLEIR, Lyons certified respondent "operated a motor vehicle in a manner that endangered public safety" and "appeared to be under the influence of drugs or alcohol at the time of the offense." A-3989-24 5 docket," "motor vehicle operator's [driving under the influence]," "alcohol influence report," "Miranda [ 3 ] form," "Drinking Driving Questionnaire," "evidence log of a Glock 27, laser flashlight, ten 40 rounds"; respondent's "driver's license picture and motor vehicle card"; "multiple traffic violations"; and "a vehicle inspection report." Although the State then moved into evidence the entire packet, the prosecutor acknowledged she previously informed respondent's counsel she did not intend to do so. Respondent's counsel objected to the admission of all but McColgan's police reports, which supported the TERPO. She argued the remaining documents were "all hearsay." The prosecutor countered the "previous incident . . . is before the court" and the State "tender[ed] to the court video evidence." 4 The court denied the motion, finding the NPD reports memorializing defendant's motor vehicle accident and seizure of his firearm corroborated the girlfriend's account. 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 Because the video evidence was not played during the hearing, referenced by McColgan in his testimony, cited by the court in its decision, or provided on appeal, the contents of the video are unknown. We note only in his certification to PLEIR, Lyons referenced, "Dash Camera/MVR/DIVR" and "Body-Worn Camera" (BWC); and in the TERPO, McColgan stated the interview with the girlfriend was "captured on BWC." A-3989-24 6  Respondent neither testified nor called any witnesses on his behalf. He introduced into evidence, via stipulation, a June 4, 2025 letter signed by Srisai Gowda, MD. Respondent's counsel read the letter in open court: "To Whom It May Concern: The above named patient has been a patient in our practice since January 2023. During the course of treatment he has matured, been sober, responsible, and has held a steady job. He is stable on his current medications, regularly attends his appointments. He is psychologically stable and has moved on in a successful manner. [Respondent] is not a threat or risk to himself or others. If you have any questions please feel free to call us at" the number presented. Immediately following closing arguments, the court rendered an oral decision granting the FERPO. The court credited McColgan's testimony finding "[h]e knew the facts of the case." Based on the evidence presented at the hearing, the court was persuaded the State proved, by a preponderance of the evidence, factors: one ("any history of threats or acts of violence by the respondent directed toward self or others"), N.J.S.A. 2C:58-23(f)(1); seven (the respondent "has any history of drug or alcohol abuse and recovery from this abuse"), N.J.S.A. 2C:58-23(f)(7); nine (the respondent "has recklessly used, displayed, or brandished a firearm) Admin. Directive #19-19, at 5; and thirteen (the respondent "has received or is receiving mental health treatment"). Ibid. A-3989-24 7  Regarding factor one, the court cited the girlfriend's statement to McColgan that respondent threatened suicide on prior occasions and left the residence under the influence. The court found these statements were "corroborated by the [NPD] because [respondent] was involved in a one-car accident" and the NPD recovered "a loaded handgun in his possession in the vehicle." The court found factor seven based on the girlfriend's statement to McColgan that respondent "entered a program but he left without completing [it]." As corroboration, the court cited the NPD charges against respondent for DWI and weapons possession. Turning to factor nine, the court found although respondent did not brandish the firearm, "he recklessly had the handgun in his possession." The court noted respondent corroborated his girlfriend's account by "having that handgun . . . with him in an intoxicated state." The court further found respondent's weapons possession was corroborated by the charges against him and his entry into the VDP program. The court noted respondent engaged in mental health treatment under factor thirteen based on the girlfriend's statement to McColgan and Dr. Gowda's statement in her letter. However, the court further found the doctor's A-3989-24 8 note was "very cursory" as it lacked a diagnosis, did not mention the medications respondent had or was taking at the time the letter was written, and did not explain how respondent had "moved on." The court nonetheless credited the doctor's statement that respondent was "compliant recently." Accordingly, the court declined to find aggravating factor fourteen, Admin. Directive #19-19, at 5 (the respondent "has complied or has failed to comply with mental health treatment"). Addressing respondent's hearsay argument, the court found the "police reports, including the incident, the crash reports . . . corroborate[d] [respondent]'s girlfriend's statements, in which she advised on multiple occasions he's been intoxicated, got into an argument, and then left the residence with a gun." The court determined respondent "corroborate[d] her statement, making her credible" because "he left the house, intoxicated, in an agitated state, with a gun in his car, loaded." Recognizing "the doctor's report seems to indicate . . . he's not suicidal," the court nonetheless found "[respondent's] actions say otherwise" as he was involved in an accident while intoxicated. The court found further corroboration in respondent 's entrance into the VDP program for his unlawful possession of a weapon and DWI charges. This appeal followed. A-3989-24 9  II. "Our review of a forfeiture of firearms . . . is deferential." In re M.U.'s Application for a Handgun Purchase Permit, 475 N.J. Super. 148, 199 (App. Div. 2023). "[W]e give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned conclusions." Id. at 171 (alteration in original) (quoting Griepenburg v. Township of Ocean, 220 N.J. 239, 254 (2015)). "Heightened deference should be given to the trial court's assessment of witness credibility because the court was able to observe the witnesses as they testified." Ibid. Accordingly, we do not disturb the trial court's factual findings and legal conclusions "unless convinced that those findings and conclusions were 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Griepenburg, 220 N.J. at 254). Questions of law are reviewed de novo. Ibid. The New Jersey Legislature enacted ERPO to prohibit individuals who "pose[] a significant danger of bodily injury to [themselves] or others . . . from having custody or control of, owning, possessing, purchasing, or receiving a firearm." N.J.S.A. 2C:58-24(b), (d). Pertinent to this appeal, ERPO provides A-3989-24 10 a law enforcement officer the opportunity to file a petition with the Criminal Division to initiate a TERPO. Admin. Directive #19-19, at 2. 5 When presented with a TERPO petition, the trial court must "consider all relevant evidence" at the hearing. Admin. Directive #19-19, attach. 1, at 6. That evidence includes, but is not limited to, whether the 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 order issued pursuant to the "Prevention of Domestic Violence Act of 1991" (N.J.S.A. 2C:25-17 [to - 35]); (4) is the subject of a temporary or final protective order or has violated a temporary or final protective order issued pursuant to the "Sexual Assault Survivor Protection Act of 2015" (N.J.S.A. 2C:14-13 [to - 21]); (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; 5 Directives promulgated by the Acting Administrative Director of the Courts "ha[ve] the force of law" and are binding on the courts. See State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007). A-3989-24 11  (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; (8) has recently acquired a firearm, ammunition, or other deadly weapon; (9) has recklessly used, displayed, or brandished a firearm; (10) has an existing or previous extreme risk protective order issued against him or her; (11) has previously violated an extreme risk protective order issued against him or her; (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; (14) has complied or has failed to comply with any mental health treatment; and (15) has received a diagnosis of a mental health disorder. [Admin. Directive #19-19, attach. 1, at 6-7.] Only factors one through eight are enumerated in N.J.S.A. 2C:58-23(f). Directive #19-19 requires consideration of factors nine through eleven and, if A-3989-24 12 the court finds one or more of the one through eleven factors, the court is permitted to consider factors twelve through fifteen. Admin. Directive #19-19, at 5. If the trial judge grants the TERPO upon considering these factors, a search warrant shall issue for the respondent's firearms. N.J.S.A. 2C:58-26(b). Thereafter, a plenary hearing must be held to determine whether a FERPO should be granted. N.J.S.A. 2C:58-24(a). At the hearing, "[t]he rules governing admissibility of evidence at trial shall not apply to the presentation and consideration of information." Admin. Directive #19-19, attach. 1, at 10; see N.J.R.E. 802 (stating hearsay is generally inadmissible unless exempted by law). The court "may consider an affidavit and documents submitted in support of the petition" and "any information provided by the county prosecutor or designee," including "information obtained through . . . the execution of any search warrant." Id. at 10-11. We have nonetheless recognized, similar to "the caveat on using hearsay at gun permit hearings," a FERPO "cannot be based upon hearsay alone." In re D.L.B., 468 N.J. Super. 397, 406 (App. Div. 2021) (quoting Weston v. State, 60 N.J. 36, 51 (1972)). Accordingly, "there must be a residuum of legal and competent evidence in the record to support" the court's order." Ibid. "The residuum rule does not require that each fact be based on a residuum of legally A-3989-24 13 competent evidence but rather focuses on the ultimate finding or findings of material fact." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 359 (2013). Thus, the residuum rule serves "to provide assurances of reliability." N.J.A.C. 1:1-15.5(b) (permitting hearsay evidence, subject to the residuum rule, in hearings before administrative law judges). The trial court shall issue a FERPO if it "finds by a preponderance of the evidence . . . 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." N.J.S.A. 2C:58-24(b). A. With these principles in view, we turn to respondent's hearsay argument. He maintains the court's findings on factors one and nine were based entirely on uncorroborated testimony because the girlfriend did not testify at the hearing about respondent's prior threats of suicide. As to factor seven, respondent acknowledges the parties do not dispute he suffered from alcohol issues, but contends he presented evidence he was in treatment since January 2023, and the court impermissibly cited his DWI charges, which did not result in a conviction. As to factor thirteen, defendant challenges the court 's finding A-3989-24 14 that he failed to finish mental health treatment and contends that finding was based on the girlfriend's hearsay testimony. As a threshold matter, the Guidelines permit the court to "consider an affidavit and documents submitted in support of the petition." Administrative Directive #19-19, attach. 1, at 10. As noted above, in the NPD reports, Lyons provided an affidavit of probable cause and certification to the PLEIR. These sworn statements established probable cause that respondent was driving while intoxicated, endangered the public, and was in possession of a handgun when he was searched incident to his arrest. However, neither Lyons's sworn statements nor any evidence in the trial record corroborates the girlfriend's hearsay statements to McColgan concerning respondent's prior history of threats of suicide under factor one, history of alcohol abuse and recovery under factor two, or that he recklessly displayed the firearm under factor nine. Further, although the information provided in Dr. Gowda's letter demonstrated respondent was receiving mental health treatment, arguably supporting factor thirteen, the record contains no competent evidence corroborating the girlfriend's statement to McColgan that respondent left treatment in the past. Because McColgan's testimony merely A-3989-24 15 relayed the girlfriend's out-of-court statements, we conclude the State failed to satisfy the residuum requirement on respondent's on these factors. B. We turn to respondent's argument the State failed to prove he posed a present danger at the time of the June 27, 2025 FERPO hearing. He contends the State's evidence was limited to the December 22, 2022 incident and did not establish he remained a significant danger to himself or others within the meaning of the governing statute. To support his argument, respondent references Dr. Gowda's letter and argues the court abused its discretion by minimizing the doctor's findings. Citing N.J.R.E. 101(a)(5) and our decision in Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 325 (App. Div. 1997), he further asserts, because the State stipulated to Dr. Gowda's letter, the doctor's findings set forth in her letter were "generally binding on the parties." Our consideration of the issue is guided by fundamental principles of statutory construction. As with any case in which we are asked to interpret a statute, "[w]e strive to 'divine and effectuate the Legislature's intent.'" Ripp v. Cnty. of Hudson, 472 N.J. Super. 600, 609 (App. Div. 2022) (quoting N.J. Transit Corp. v. Sanchez, 242 N.J. 78, 85 (2020)). Because the "statute's plain language 'is the "best indicator" of legislative intent,'" In re Appointment of A-3989-24 16 the Council on Affordable Hous., 477 N.J. Super. 576, 588 (App. Div. 2024) (quoting State v. Courtney, 243 N.J. 77, 85 (2020)), we first look to that language, considering the words' "ordinary meaning and significance," Ripp, 472 N.J. Super. at 609 (quoting Sanchez, 242 N.J. at 86). "If the language is clear, the court's job is complete." In re Civ. Commitment of W.W., 245 N.J. 438, 449 (2021) (quoting In re Expungement Application of D.J.B., 216 N.J. 433, 440 (2014)). "A court 'may neither rewrite a plainly-written enactment of the Legislature nor presume that the Legislature intended something other than that expressed by way of the plain language.'" Cashin v. Bello, 223 N.J. 328, 335 (2015) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). Accordingly, we consider extrinsic evidence of legislative intent, such as legislative history, only "when the statutory language is ambiguous." Finkelman v. Nat. Football League, 236 N.J. 280, 289 (2019). Against these principles, we turn to the governing statute, which provides, in pertinent 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. A-3989-24 17  [N.J.S.A. 2C:58-24(b) (emphasis added).] By using the term "poses" in the present tense, we conclude the Legislature intended that provision to relate solely to a respondent 's dangerousness at the time of the hearing. Although the court was empowered to consider respondent's prior history under the governing factors, the statute clearly required the court to consider whether respondent posed a significant danger when the FERPO hearing was conducted. Notably, the Legislature also envisioned the FERPO hearing would occur within ten days of the TERPO petition's filing. N.J.S.A. 2C:58-24(a). In the present matter, the FERPO hearing was held nearly two and one-half years after the TERPO was filed. The parties have not cited, and our research has not revealed, any authority considering the issuance of a FERPO years after the TERPO was entered. We find support, however, in the sentencing scheme for criminal matters. See State v. Randolph, 210 N.J. 330, 354 (2012) (holding on resentencing the trial court "should view [the] defendant as he [or she] stands before the court on that day"); see also State v. Jaffe, 220 N.J. 114, 124 (2014) (concluding the trial court erred in failing to consider post -offense conduct where the defendant was sentenced three years after his guilty plea). A-3989-24 18  Here, the State presented no evidence on respondent's present dangerousness. Conversely, respondent presented Dr. Gowda's letter, dated June 4, 2025, indicating "[respondent] is not a threat or risk to himself or others." Although the parties stipulated to these facts, the stipulation was not binding on the trial court. See AGS Computers, Inc. v. Bear, Stearns, & Co., Inc., 244 N.J. Super. 1, 5 (App. Div. 1990). We discern no abuse of discretion in the court's reluctance to credit Dr. Gowda's letter. As the judge recognized, the letter was "a very cursory note," without pertinent details, such as respondent's diagnosis. Accordingly, we conclude the doctor's note was not dispositive on respondent's lack of dangerousness at the time of the hearing. *** In summary, having considered respondent's contentions in light of the governing legal principles, the limited trial record, and the extended time period between issuance of the TERPO and FERPO, we vacate the FERPO, reinstate the TERPO, and remand for a new hearing before another judge. See R. 1:12-1(d); Pressler and Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2027) (stating "the appellate court has the authority to direct that a different judge consider other matters on remand . . . in order to preserve the A-3989-24 19 appearance of a fair and unprejudiced hearing"). In remanding this matter, we express no opinion on the merits of the FERPO application. Reversed and remanded. Jurisdiction is not retained. A-3989-24 20