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DENYING THE APPLICATION FOR A PISTOL PERMIT WITHOUT A HEARING BASED UPON PRIOR ARRESTS WHICH DID NOT INVOLVE VIOLENCE OR A WEAPON WAS ARBITRARY AND CAPRICIOUS; MATTER REMITTED FOR A HEARING (SECOND DEPT).

The Second Department, reversing County Court in this Article 78 proceeding, determined that the respondent-judge’s denial of petitioner’s application for a pistol permit without a hearing was arbitrary and capricious. Although petitioner had prior arrests, none involved violence or a weapon:

Although the respondent was entitled to consider the petitioner’s prior arrests, the record reflects, among other things, that none of the petitioner’s arrests involved violent crimes or a weapon. The record also contains the petitioner’s explanation of the circumstances surrounding his prior arrests; his activities since, which include employment, home ownership, charitable work, and abstinence from alcohol; evidence of the petitioner’s having successfully completed a firearms course; and the opinion of a psychologist that the petitioner has no current risk factors that renders him unsuitable to own and carry a firearm. Further, based upon the record before us, it is apparent that the respondent did not give the petitioner an opportunity to respond to the stated objections to his pistol permit application … .

Accordingly, we annul the determination denying the petitioner’s application for a pistol permit and remit the matter to the respondent to afford the petitioner the opportunity to respond to the stated objections to his pistol permit application at a hearing, after which the respondent shall make a new determination of the petitioner’s application. In remitting this matter to the respondent for a new determination, we express no opinion as to the merits of the new determination. Matter of Maher v Hyun Chin Kim, 2024 NY Slip Op 00425, Second Dept 1-31-24

Practice Point: Although prior arrests which were not violence- or weapon-related can be considered by the judge re: an application for a pistol permit, the application should not be denied without a hearing allowing the applicant to address the objections to the application.

 

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