C. Return of Seized Weapons
N.J.S.A. 2C:25-21d(3) states that weapons seized in
accordance with the statute shall be returned to the
owner except upon an order of the Superior Court. The
prosecutor in possession of the seized weapons may, upon
notice to the owner, petition a Family Part judge, within
45 days of seizure, to obtain title to the seized weapons,
or to revoke any and all permits, licenses and other
authorizations for the use, possession, or ownership of
such weapons pursuant to the law governing such use,
possession, or ownership. Alternatively, the prosecutor
may object to the return of the weapons on the grounds
provided for the initial rejection or later revocation of the
authorizations or on the grounds that the owner is unfit
or poses a threat to the public in general or a person(s) in
particular.
That provision also requires that a hearing shall be
held and a record made thereof within 15 days of the
notice provided above. In the event that the prosecutor
does not institute an action within 45 days of seizure, the
statute states that the seized weapons shall be returned to
the owner.
Under this statutory provision, after a hearing, the
court must order the return of the firearms, weapons and
any authorization papers relating to the seized weapons
to the owner in three circumstances if: (1) the complaint
has been dismissed at the request of the complainant and
the prosecutor determines that there is insufficient
probable cause to indict; or (2) the defendant is found
not guilty of the charges; or (3) the court determines that
the domestic violence situation no longer exists. Our
courts have found, however, that a defendant is not
entitled to the return of weapons in a domestic violence
action even after the dismissal of the domestic violence
complaint, if the court concludes that the defendant is a
threat to public health, safety or welfare. In the Matter of
Return of Weapons to J.W.D., 149 N.J. 108, 114-16
(1997); see also State v. Freysinger, 311 N.J. Super. 509,
513-17 (App. Div. 1998) (defendant not entitled to
return of weapons in domestic violence action even after
domestic violence complaint is dismissed by request of
complainant where defendant was a habitual drunkard
who posed a threat to public health, safety and welfare as
demonstrated by his two driving under the influence
convictions and his admission that he hit a pedestrian and
failed to stop); State v. Volpini, 291 N.J. Super. 401, 405-
15 (App. Div. 1996) (The Domestic Violence Act does
not require dismissal of forfeiture application based upon
complainant’s withdrawal of a domestic violence
complaint, overruling State v. Warrick, 283 N.J. Super.
169 (Ch. Div. 1995)); State v. One Marlin Rifle, 30/30,
319 N.J. Super. 359, 371 (App. Div. 1999) (dismissal of
domestic violence complaint for lack of evidence does not
preclude court from taking firearms from person posing
a threat to public health, safety or welfare). Nor is a
defendant entitled to the return of weapons upon
dismissal of a related criminal complaint while the
domestic violence complaint is still pending. State v.
Solomon, 262 N.J. Super. 618, 621-25 (Ch. Div. 1993).Thus, the State can seize weapons from defendants
who violate domestic violence orders and can retain them
pursuant to N.J.S.A. 2C:25-21d(3) if the trial court
deems defendant a threat to the domestic violence victim.
State v. S.A., 290 N.J. Super. 240, 249 (App. Div. 1996).
The State’s failure to seek timely forfeiture of weapons
seized pursuant to a restraining order does not give
defendant the automatic right to return of seized
weapons, as long as the order is in effect. Ibid. This
statute is consistent with 18 U.S.C. §922(g)(8). Id. at
247-49.As to the timeliness of the forfeiture proceedings, see
State (E.L.) v. G.P.N., 321 N.J. Super. 172, 176-77 (App.
Div. 1999) (discussing application of 45 day period to
bring an action to revoke a firearms permit); Matter of
Seized Firearms Identification Card of Hand, 304 N.J.
Super. 360 (Ch. Div. 1997). See also State v. Volpini, 291
N.J. Super. 401, 415-16 (App. Div. 1996) (State’s
inability to obtain a hearing within 15 day statutory
requirement did not warrant dismissal of motion for
forfeiture of weapons in light of court’s busy calendar);
State v. Saavedra, 276 N.J. Super. 289, 292-93 (App. Div.
1994) (holding that the forty-five days within which
prosecutor had to petition to court to forfeit weapons
seized pursuant to Prevention of Domestic Violence Act
does not begin to run until prosecutor came into
possession of weapon or had knowledge of its seizure).D. Release from Custody before Trial, N.J.S.A. 2C:25-26
1. Issuance of a Restraining Order
When a defendant charged with a crime or offense
involving domestic violence is released from custody
before trial on bail or personal recognizance, the court
authorizing the release may as a condition of release issue
an order prohibiting the defendant from having any
contact with the victim including, but not limited to,
restraining the defendant from entering the victim’s
residence, place of employment or business, or school,
and from harassing or stalking the victim or victim’s