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Case Summaries
Published: Thursday, Apr. 7, 2005
New Hampshire Supreme Court
May 5, 2005
Oral Argument Case Summaries
Case #2
STATE OF NEW HAMPSHIRE v. ALFRED GERO, No. 2004-0331
Attorney James Davis for the appellant, Alfred Gero (15 minutes)
Attorney Stephen LaBonte for the appellee, State of New Hampshire (15 minutes)
Legal Issues Presented:
Criminal Threatening; felony; misdemeanor; public interest; personal property rights; trial court discretion
What is this case about?
-If the police reduce a charge in exchange for a guilty plea from the defendant, can the police still seize and destroy property (e.g., weapons) that would have been related to the original charge?
- Does the public interest require that the police destroy firearms and ammunition seized from a defendant who has been convicted of a domestic violence misdemeanor?
- Can a guilty party prevent police from destroying seized personal property on the basis that the property has monetary and sentimental value?
Procedural History
The trial judge issued an order that transferred four of the firearms to the appellant/defendant’s brother and two to the appellant/defendant’s son, while ordering that the rest of the firearms and ammunition be destroyed. Alfred Gero and his lawyer have taken this matter to the Supreme Court and asked that the seized property be released to the defendant’s brother, Paul Gero.
Statement of Facts
On February 9, 2002, the defendant stood near his gun cabinet and told his girlfriend and some of her assembled family members that he would “blow them away.†At the time that he said this, the defendant had one of his guns out from the cabinet. The defendant, who owned approximately 24 firearms and associated ammunition that he stored in his home, was arrested by the police. In the course of the arrest, the police seized the defendant’s firearms and ammunition.
Initially, the defendant was indicted for the Class B felony of criminal threatening “by means of a deadly weapon.†However, in exchange for a guilty plea, the State agreed to reduce the defendant’s charge to a Class A misdemeanor, which does not allege use of a weapon.
On January 21, 2004, the State submitted a Motion to Destroy Seized Property Pursuant to RSA 595-A:6. RSA 595-A:6 directs that lawfully seized property be returned to the owner, sold or destroyed, whichever “the public interest requires.†The defendant objected because some of the firearms were family heirlooms alleged to have significant monetary and sentimental value. The defendant asked that the firearms and ammunition be transferred to his brother, Paul Gero. Paul Gero holds a Bill of Sale for the firearms, given to him by the defendant. The trial court ordered that the defendant’s brother receive four guns, including two that belonged to the brother but were stored by the defendant and two that were family heirlooms. Additionally, two air rifles were returned to their proper owner, the defendant’s son. These transfers were made on the condition that they be kept be the receiving parties and that the defendant be denied access to the guns. The trial court ordered that the remaining firearms and ammunition be destroyed on the basis that such a result was required by the public interest.
The defendant argues that the trial court exercised “unsustainable discretion†in ordering the destruction of property that is not contraband and was not used by the defendant in the commission of his crime. For these reasons, the defendant contends that there is no reason to destroy the property and that doing so would be contrary to his private property rights under the state and federal constitutions. Additionally, the defendant argues that the public interest does not require the taking of his private property. Finally, the defendant argues that his substantive due process rights have not been protected because his private property rights have been ignored.
The State, meanwhile, argues that the defendant has failed to meet his burden of demonstrating that the trial court exercised an “unsustainable exercise of discretion†when it ordered the destruction of his firearms. This determination is made by reviewing the support in the record. The State notes that under RSA 595-A:6, the trial court has discretion to dispose of seized items when doing so is in the public interest. The court determines the “public interest†by considering the public need and the rights of the individual involved with the matter. Furthermore, the State observes that the defendant can no longer legally possess a firearm under 18 U.S.C. § 922(g)(9) (2000) because he has been convicted of a domestic violence misdemeanor. Also, under RSA 173-B:5 (2000), the defendant was prohibited from possessing a firearm at the time of the trial court’s hearing because he was party to a domestic violence restraining order. Accordingly, the State reasons that his private interest is minimal. The State also notes that the defendant’s due process rights have not been violated because the lower court’s order to destroy the firearms is rationally related to the public interest in denying the defendant future access to firearms. Finally, the State argues that while the defendant was not charged with an offense involving a deadly weapon, the firearms can be seized and destroyed because they were related to the threats he made when he committed his class A misdemeanor offense.
Published: Thursday, Apr. 7, 2005
New Hampshire Supreme Court
May 5, 2005
Oral Argument Case Summaries
Case #2
STATE OF NEW HAMPSHIRE v. ALFRED GERO, No. 2004-0331
Attorney James Davis for the appellant, Alfred Gero (15 minutes)
Attorney Stephen LaBonte for the appellee, State of New Hampshire (15 minutes)
Legal Issues Presented:
Criminal Threatening; felony; misdemeanor; public interest; personal property rights; trial court discretion
What is this case about?
-If the police reduce a charge in exchange for a guilty plea from the defendant, can the police still seize and destroy property (e.g., weapons) that would have been related to the original charge?
- Does the public interest require that the police destroy firearms and ammunition seized from a defendant who has been convicted of a domestic violence misdemeanor?
- Can a guilty party prevent police from destroying seized personal property on the basis that the property has monetary and sentimental value?
Procedural History
The trial judge issued an order that transferred four of the firearms to the appellant/defendant’s brother and two to the appellant/defendant’s son, while ordering that the rest of the firearms and ammunition be destroyed. Alfred Gero and his lawyer have taken this matter to the Supreme Court and asked that the seized property be released to the defendant’s brother, Paul Gero.
Statement of Facts
On February 9, 2002, the defendant stood near his gun cabinet and told his girlfriend and some of her assembled family members that he would “blow them away.†At the time that he said this, the defendant had one of his guns out from the cabinet. The defendant, who owned approximately 24 firearms and associated ammunition that he stored in his home, was arrested by the police. In the course of the arrest, the police seized the defendant’s firearms and ammunition.
Initially, the defendant was indicted for the Class B felony of criminal threatening “by means of a deadly weapon.†However, in exchange for a guilty plea, the State agreed to reduce the defendant’s charge to a Class A misdemeanor, which does not allege use of a weapon.
On January 21, 2004, the State submitted a Motion to Destroy Seized Property Pursuant to RSA 595-A:6. RSA 595-A:6 directs that lawfully seized property be returned to the owner, sold or destroyed, whichever “the public interest requires.†The defendant objected because some of the firearms were family heirlooms alleged to have significant monetary and sentimental value. The defendant asked that the firearms and ammunition be transferred to his brother, Paul Gero. Paul Gero holds a Bill of Sale for the firearms, given to him by the defendant. The trial court ordered that the defendant’s brother receive four guns, including two that belonged to the brother but were stored by the defendant and two that were family heirlooms. Additionally, two air rifles were returned to their proper owner, the defendant’s son. These transfers were made on the condition that they be kept be the receiving parties and that the defendant be denied access to the guns. The trial court ordered that the remaining firearms and ammunition be destroyed on the basis that such a result was required by the public interest.
The defendant argues that the trial court exercised “unsustainable discretion†in ordering the destruction of property that is not contraband and was not used by the defendant in the commission of his crime. For these reasons, the defendant contends that there is no reason to destroy the property and that doing so would be contrary to his private property rights under the state and federal constitutions. Additionally, the defendant argues that the public interest does not require the taking of his private property. Finally, the defendant argues that his substantive due process rights have not been protected because his private property rights have been ignored.
The State, meanwhile, argues that the defendant has failed to meet his burden of demonstrating that the trial court exercised an “unsustainable exercise of discretion†when it ordered the destruction of his firearms. This determination is made by reviewing the support in the record. The State notes that under RSA 595-A:6, the trial court has discretion to dispose of seized items when doing so is in the public interest. The court determines the “public interest†by considering the public need and the rights of the individual involved with the matter. Furthermore, the State observes that the defendant can no longer legally possess a firearm under 18 U.S.C. § 922(g)(9) (2000) because he has been convicted of a domestic violence misdemeanor. Also, under RSA 173-B:5 (2000), the defendant was prohibited from possessing a firearm at the time of the trial court’s hearing because he was party to a domestic violence restraining order. Accordingly, the State reasons that his private interest is minimal. The State also notes that the defendant’s due process rights have not been violated because the lower court’s order to destroy the firearms is rationally related to the public interest in denying the defendant future access to firearms. Finally, the State argues that while the defendant was not charged with an offense involving a deadly weapon, the firearms can be seized and destroyed because they were related to the threats he made when he committed his class A misdemeanor offense.
