Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Candia District Court No. 2009-525

THE STATE OF NEW HAMPSHIRE v. RICHARD S. PESSETTO Submitted: June 10, 2010 Opinion Issued: October 19, 2010 Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the memorandum of law), for the State. Richard S. Pessetto, by brief, pro se.

HICKS, J. The defendant, Richard S. Pessetto, appeals an order from the Candia District Court (LeFrancois, J.) denying his motion for return of property. See RSA 595-A:6 (2001). We vacate and remand. The parties do not dispute the following facts. The defendant was convicted of carrying a loaded firearm without a license, see RSA 159:4 (2002), and transporting alcoholic beverages, see RSA 265-A:44 (Supp. 2009). After the conclusion of the criminal proceedings, the defendant moved for the return of his firearm pursuant to RSA 595-A:6. With this motion, the defendant

submitted an affidavit that stated his name, address, and asserted legal ownership of a confiscated Glock Model 17. The affidavit also stated: I am not subject to a Domestic Violence/Stalking Protective Order. . . . I have no outstanding civil protection orders issued against me, nor bail orders and I have not been convicted of any misdemeanor or felony offenses in any state or federal court which would make it unlawful for me to possess any firearm and ammunition pursuant to the Gun Control Act of 1968, as amended, nor am I under any other legal status that would render my possession of a firearm or ammunition illegal. This statement is similar to the information required in Form NHJB-2055-DFS, the standard form and affidavit for the return of a firearm upon the expiration of a domestic violence protective order. See RSA 173-B:5 (amended 2007). Upon receipt of his affidavit, the trial court requested the defendant fill out Form NHJB-2055-DFS so it could complete a background check to ensure there were no outstanding protective orders or qualifying domestic violence misdemeanor convictions that would prohibit him from owning a firearm. The defendant did not fill out the form and the trial court held a hearing on June 15, 2009. At the hearing, the defendant asserted that his firearm should be returned under RSA 595-A:6 and that his affidavit was sufficient to satisfy the requirements of the statute. He maintained that there was no requirement under RSA 595-A:6 that he submit to a background check. While he further contended that submitting to a background check would violate his privacy rights and right to bear arms, he has abandoned those arguments on appeal. RSA 595-A:6 reads, in pertinent part: If an officer in the execution of a search warrant, or by some other authorized method, finds property or articles he is empowered to take, he shall seize and safely keep them under the direction of the court or justice so long as necessary to permit them to be produced or used as evidence in any trial. Upon application . . . the court . . . shall, upon notice to a defendant and hearing, and except for good cause shown, order returned to the rightful owner[]. . . any other property of evidential value not constituting contraband. RSA 595-A:6 (emphasis added). At the hearing, the State introduced no evidence that the firearm was contraband or that the defendant could not lawfully possess it, asserting

2

merely, "I don't think this [c]ourt has the authority to give back his firearms until there's been a determination that he, in fact, is able to possess them." The State added, "I don't know if this conviction would qualify as a misdemeanor which would exclude him [from] being able to carry a firearm or to have a firearm." The trial court found "good cause" to withhold return of the defendant's firearm until the defendant submitted to a background check to ensure that the defendant was not ineligible under federal or state law, such as 18 U.S.C.

Download 2009-525, State of New Hampshire v. Richard S. Pessetto.pdf

New Hampshire Law