IN THE MATTER OF D.L.B. (0119-XTR-2020-000001, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED), 468 N.J. Super. 397

Background

Police filed an extreme risk protective order (TERPO) against respondent D.L.B. after a neighbor posted a video of her dancing in her driveway while handling a pink-and-black handgun; municipal court granted an ex parte TERPO and a search warrant.
Detective Morillo averred in the petition that the video showed reckless brandishing, that D.L.B. admitted carrying the firearm in her car for protection, and that her adult son was afraid to visit her; he cited his police report, body-worn camera (BWC) recordings, and the neighbor video.
At the Law Division FERPO hearing the county prosecutor called only Detective Morillo; the neighbor video was played, but the prosecutor did not present the detective’s BWC footage or police report and withdrew testimony about the son after a hearsay objection.
The trial judge credited the parties’ testimony, concluded the gun appeared unloaded, found insufficient proof by a preponderance that D.L.B. posed a significant danger, dissolved the TERPO, and ordered return of the firearms (stay in place pending appeal).
The Appellate Division reversed and remanded: it held the trial court failed to require/consider evidence the State was obligated to produce under AOC Guidelines (BWC and police report), did not resolve key factual factors (carrying in vehicle, son’s fear, neighbor fear, recklessness), and did not make adequate findings; the court reinstated the TERPO pending remand and recommended reassignment to a different judge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved by a preponderance that D.L.B. poses a significant danger justifying a FERPO	The video and officer testimony show reckless brandishing and impulsive animus; combined with statements that she carried the gun for protection and a family member’s fear, this meets the statutory factors and preponderance standard	D.L.B. argued the gun was unloaded, she was on her own property, no one was injured, neighbors mocked not feared her, and the State’s delay and failure to produce required materials undermined its case	Reversed: court remanded because trial judge failed to consider required evidence and make findings—cannot sustain dismissal on the incomplete record
Whether the trial court complied with AOC Guidelines/AG Directive production requirements (BWC, reports)	The prosecutor could and should have produced the BWC and police report per Guidelines 3(e)/5(e); the court must ensure the State supplies such information when an officer is the petitioner	The respondent did not dispute that Guidelines apply but contested the weight and admissibility of some hearsay; trial court sustained some objections and the prosecutor chose not to offer certain materials	Held that the Guidelines have force of law; the court erred by not requiring/ensuring production of material evidence and by sustaining evidentiary limitations without addressing mandatory production
Whether the trial court made sufficient factual findings and stated reasons on the record	State argued the court’s oral and written orders failed to identify which statutory/Guideline factors were found and omitted resolution of disputed factual allegations	D.L.B. argued the court’s credibility findings and oral ruling were adequate to deny the FERPO	Held insufficient findings: trial court must state explicit fact-findings and reasons under R.1:7-4(a) and Guideline 6(a); remand required for fuller findings
Whether a different judge should hear remand proceedings	State implied a fair retrial by the same judge is possible	Respondent did not press strongly against reassignment	Appellate Division recommended reassignment because prior credibility findings were based on an incomplete record and a fresh, impartial hearing is appropriate

Key Cases Cited

Cesare v. Cesare, 154 N.J. 394 (scope of appellate review of trial fact-finding)
Gnall v. Gnall, 222 N.J. 414 (trial courts must make explicit findings and reasoning)
State v. Hemenway, 239 N.J. 111 (probable cause standard for search warrants)
State v. S.N., 231 N.J. 497 (interpretation of "may" v. "shall" and mandatory duties)
Weston v. State, 60 N.J. 36 (limitations on basing firearms decisions on hearsay alone)
State v. Morales, 390 N.J. Super. 470 (court directives/guidelines can have force of law)