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APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE.

The Second Department determined petitioner’s application to add more handguns to his pistol permit was properly denied based upon his criminal history, despite the dismissal of most of the charges. The court noted that the Article 78 proceeding was not the proper venue for attacking the constitutionality of the licensing scheme. That should be done in a declaratory judgment action:

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… [G]ood cause existed, based on the petitioner’s criminal history, to deny the petitioner’s application to amend his license to include additional handguns was not arbitrary and capricious, and should not be disturbed… . The fact that the majority of the petitioner’s arrests resulted in the dismissal of the charges against him, or were ultimately resolved in his favor, did not preclude the respondent from considering the underlying circumstances surrounding those arrests in denying the application … .

Moreover, the petitioner’s constitutional challenge to the licensing scheme is unfounded … . We further note that the petitioner’s contention that certain aspects of the licensing eligibility requirements of Penal Law § 400.00(1) unconstitutionally infringe upon his right to bear arms under the Second Amendment (US Const, 2d Amend) is not properly before this Court in an original proceeding pursuant to CPLR article 78, as a declaratory judgment action is the proper vehicle for challenging the constitutionality of a statute … . Matter of Jackson v Anderson, 2017 NY Slip Op 02985, 2nd Dept 4-19-17

 

PISTOL PERMITS (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/CIVIL PROCEDURE  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/DECLARATORY JUDGMENT  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)

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SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS.

In a matter of first impression, the Second Department determined the SAFE ACT, which allows holders of pistol permits to apply to have their names and addresses removed from the public record, does not affect the application of the Freedom of Information Law (FOIL) exemptions to holders of pistol permits which remain on the public record. Therefore, the newspaper’s (Gannett’s) request for the names and addresses of pistol permit holders (those not “excepted” under the SAFE ACT) was properly granted because none of the FOIL exemptions applied:

The County parties’ argument that, pursuant to Public Officers Law §§ 87(2)(b) and 89(2)(b)(ii), disclosure of the names and addresses of pistol permit holders would constitute an unwarranted invasion of privacy because Gannett intends to use the names and addresses of pistol permit holders for solicitation purposes is without merit. Gannett’s status as a commercial enterprise does not demonstrate that Gannett intends to use the names and addresses to solicit business … , and it represented that it did not intend to do so.

Moreover, the County parties failed to establish that disclosure of the names and addresses would ” be offensive and objectionable to a reasonable [person] of ordinary sensibilities'” … . The County parties also failed to establish that any other exemptions to the FOIL disclosure requirement are applicable to the records at issue. Matter of Inc. v County of Putnam, 2016 NY Slip Op 05999, 2nd Dept 9-14-16

FREEDOM OF INFORMATION LAW (FOIL) (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)/SAFE ACT (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)/PISTOL PERMITS (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)

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FAILURE TO DISCLOSE DETAILS OF ARRESTS JUSTIFIED DENIAL OF PISTOL PERMIT.

The Second Department determined the petitioner’s failure to disclose the details of his prior arrests justified denial of a pistol permit:

Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be at least 21 years of age, of good moral character with no prior convictions of a felony or serious offense, a person who has not had a license revoked or who is not under a suspension or ineligibility order, and a person “concerning whom no good cause exists for the denial of the license” … . “A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause” … .

Contrary to the petitioner’s contention, the licensing officer’s determination that good cause existed to deny his application for a pistol license was not arbitrary and capricious. The petitioner failed to disclose all of the required details of his three prior arrests, thus hindering the licensing officer’s ability to determine his moral fitness to possess a pistol. Matter of Praino v Forman, 2016 NY Slip Op 05572, 2nd Dept 7-20-16

 

PISTOL PERMITS (FAILURE TO DISCLOSE DETAILS OF ARRESTS JUSTIFIED DENIAL OF PISTOL PERMIT)

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PISTOL PERMIT PROPERLY REVOKED BY FAMILY COURT.

The Third Department determined Family Court properly revoked petitioner's pistol permit:

Here, the evidence included the report of a police investigator who interviewed both petitioner and his former spouse regarding the 2008 domestic dispute. The former spouse recounted that, during a heated dispute over the status of their marriage, petitioner punched several holes in the wall, removed his pistol from a drawer in his bedroom, began to load it and told her that “he was going to give her something to call the police about.” Contrary to petitioner's claim, respondent was entitled to rely on the hearsay statements contained in the report … . Although petitioner denied threatening his former spouse and testified that he was merely packing the gun with the rest of his belongings in an effort to leave the marital home, respondent expressly found the former spouse's account to be more credible, and we defer to such credibility determinations … . Accordingly, we find no abuse of discretion in respondent's determination that petitioner handled his pistol in an irresponsible manner and that revocation of his permit was therefore justified … . Matter of Schmitt v Connolly, 2016 NY Slip Op 03775, 3rd Dept 5-12-6

PISTOL PERMITS (PISTOL PERMIT PROPERLY REVOKED BY FAMILY COURT)

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DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITIONS JUSTIFIED REVOCATION OF PISTOL PERMIT.

The Second Department determined County Court properly revoked petitioner's pistol permit based upon evidence of deplorable living conditions, deteriorating mental health, and petitioner's inability to care for himself:

“The State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument” … . Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be of good moral character with no prior convictions of a felony or serious offense, and a person “concerning whom no good cause exists for the denial of the license” (Penal Law § 400.00[1][n]…). ” Where a licensee challenges a determination, made after a hearing, to revoke his or her pistol license,' or to deny reinstatement of a permit previously revoked, we review only whether a rational basis exists for the licensing authority's determination, or whether the determination is arbitrary or capricious'” … .

Here, at the hearing, testimony was elicited regarding the petitioner's deplorable living conditions, the deteriorating state of his mental health, and his inability to properly care for himself, his environment, or his possessions. Contrary to the petitioner's contention, this evidence, which was credited by the respondent, was sufficient to provide a rational basis for the determination revoking his pistol license.  Matter of Warmouth v Zuckerman, 2016 NY Slip Op 02659, 2nd Dept 4-6-16

PISTOL PERMITS (DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)/MENTAL HYGIENE LAW (PISTOL PERMITS, DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)

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FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF AN ORDER OF PROTECTION.

The Fourth Department determined Family Court did not have the authority to revoke respondent’s firearm permit as part of an order of protection:

Under Family Court Act § 846-a, the court may revoke a license to carry and possess a firearm “[i]f the court determines that the willful failure to obey [a protective] order involves violent behavior constituting the crimes of menacing, reckless endangerment, assault or attempted assault.” Where, as here, no such determination is made, the court is not authorized to revoke a respondent’s firearms permit … . Moreover, restriction of respondent’s right to use or possess firearms was not warranted under Family Court Act § 842-a, inasmuch as the court did not find, and could not find based on the evidence at the hearing, “that the conduct which resulted in the issuance of the order of protection involved (i) the infliction of physical injury . . . , (ii) the use or threatened use of a deadly weapon or dangerous instrument . . . , or (iii) behavior constituting any violent felony offense” (§ 842-a [2] [a]), or that there is a “substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection is issued” (§ 842-a [2] [b]). We thus modify the order by vacating the provision directing that respondent is not to use or possess firearms nor hold or apply for a pistol permit during the pendency of the order. Matter of Schoenl v Schoenl, 2016 NY Slip Op 01060, 4th Dept 2-11-16

FAMILY LAW (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)/ORDER OF PROTECTION (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)/FIREARMS PERMIT (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)

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Licensing Officer Has Broad Discretion Re: Denial of Application for a Pistol Permit

In upholding the denial of an application for a pistol permit, the Second Department explained the broad discretion afforded the licensing officer:

Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be at least 21 years of age, of good moral character with no prior convictions of a felony or serious offense, who has not had a license revoked or who is not under a suspension or ineligibility order, and a person “concerning whom no good cause exists for the denial of the license” (Penal Law § 400.00[1][n]…). “A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause” (… see Penal Law § 400.00[1][n]…).

Contrary to the petitioner’s contention, the licensing officer’s determination that good cause existed to deny the application was not arbitrary and capricious. The determination was rationally based, inter alia, on the petitioner’s criminal history … . Moreover, the licensing officer, by her own observation, found that the petitioner had issues with judgment, credibility, the ability to stay in control, and general moral fitness. Matter of Lawtone-Bowles v Klein, 2015 NY Slip Op 06669, 2nd Dept 8-26-15

 

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Revocation of Pistol Permit Upheld Despite Petitioner’s Acquittal on Related Criminal Charges—No Formal Revocation Hearing Is Required

In affirming the revocation of a pistol permit, the Third Department explained the criteria for review.  Here the petitioner had displayed a weapon during an altercation with a neighbor and had been acquitted of the related menacing charges.  The Third Department noted that no formal revocation hearing is required as long as petitioner has notice of the charges and an opportunity to respond:

There is no question that “[r]espondent [the judge who revoked the permit] is vested with broad discretion in determining whether to revoke a pistol permit and may do so for any good cause, including a finding that the petitioner lack[s] the essential temperament or character which should be present in one entrusted with a dangerous instrument. . . , or that he or she does not possess the maturity, prudence, carefulness, good character, temperament, demeanor and judgment necessary to have a pistol permit” … . No formal revocation hearing is required, and due process will be satisfied where the petitioner has been provided with notice of the charges and afforded an adequate opportunity to respond thereto … . Upon review, “respondent’s resolution of factual issues and credibility assessments are accorded deference, and the determination will not be disturbed absent an abuse of discretion or a showing that [such determination] was made in an arbitrary and capricious manner” … . Matter of DeAngelo v Burns, 2015 NY Slip Op 00669, 3rd Dept 1-29-15

 

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Denial of Pistol Permit Application Was Based Upon a Misinterpretation of Penal Law 400.00

The Third Department determined County Court had based its denial of petitioner’s pistol permit application upon a misreading of Penal Law 400.00.  County Court interpreted the statute to mean that the prior revocation of a pistol permit for any reason rendered the petitioner ineligible.  However, the statute should have been interpreted to refer only to prior revocations pursuant to Criminal Procedure Law 530.14 and Family Court Act 842-a:

Respondent denied petitioner’s pistol permit application based upon Penal Law § 400.00 (1) (k) (formerly Penal Law § 400.00 [1] [e]), finding that petitioner was ineligible for a pistol permit because of the prior revocation of his permit. Penal Law § 400.00 (1) (k) provides that no permit may be issued to an individual “who has [] had a license revoked or who is [] under a suspension or ineligibility order issued pursuant to the provisions of [CPL] 530.14 . . . or [Family Ct Act § 842-a].” Respondent interpreted this statute as two separate clauses and automatically barred petitioner from being issued a permit because his license had previously been revoked, despite the fact that the revocation was unrelated to either CPL 530.14 or Family Ct Act § 842-a.

We agree with petitioner that this was erroneous, as our reading of the statute indicates that the bar to issuance of a pistol permit “applies only in conjunction with the application of the Criminal Procedure Law and Family Court Act sections cited therein, which deal with orders of protection, and provides that a person who has previously had a firearms license revoked pursuant to those sections is ineligible to hold such a license”… .  * * *

Although the revocation of petitioner’s pistol permit and the reasons therefor unquestionably could have some bearing on whether there is “good cause” to deny his current application (Penal Law § 400.00 [1] [n]), respondent’s denial of the application was based, not on a finding of “good cause” but, rather, upon respondent’s misinterpretation of Penal Law § 400 (1) (k). Matter of Gerard v Koweek, 2014 NY Slip Op 08084, 3rd Dept 11-20-14

 

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Part-time Resident of New York Can Apply for Pistol Permit

In a full-fledged opinion by Judge Pigott, the Court of Appeals answered a certified question from the Second Circuit and determined a person who has a part-time residence in New York State, but who is not domiciled in New York, can apply for a pistol permit in New York (based upon the language of the controlling statute):

Penal Law § 400 (3) (a) states that applications for a license to carry a pistol or revolver “shall be made and renewed . . . to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.” The applicant's residence is referred to in the context of delineating the procedure whereby an individual files an application for a license.  The applicant is instructed to apply to the licensing officer in the city or county where he resides (or is principally employed, etc.).  The plain language of the statute is not consistent with the theory that the law requires an applicant to establish domicile as an eligibility requirement. Were it so, we would expect to see the manner of proof of domicile set out in the statute. Osterweil v Bartlett, 167, CtApp 10-15-13

 

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