O'Connor, Application of

• Citation: 585 N.Y.S.2d 1000,154 Misc.2d 694
• Court: New York County Court
• Decision Date: 08 June 1992
• Parties: In the Matter of the Application of Michael V. O'CONNOR, Applicant, for an Amended Pistol License Pursuant to Penal Law, § 400.00.

Page 1000

585 N.Y.S.2d 1000

154 Misc.2d 694

In the Matter of the Application of Michael V. O'CONNOR,

Applicant, for an Amended Pistol License Pursuant

to Penal Law, § 400.00.

Westchester County Court.

June 8, 1992.

Jeffrey Chamberlain, Nassau, for applicant.

ANTHONY A. SCARPINO, Judge.

The applicant is the holder of New York State Amended Pistol License No. 39608. This license is "restricted to target shooting and hunting". The applicant seeks an order amending his license by removing all "restrictions" upon the grounds that such restrictions are not authorized by State law (see Penal Law § 400.00).

The issue is whether a Pistol Licensing Officer outside of New York City has the legal authority to place "restrictions" on a pistol license issued pursuant to Penal Law § 400.00(2)(f). At the applicant's request, the Court has received and reviewed written argument and a memorandum of law submitted by the applicant's attorney. Upon the Court's review of the record and the applicable statutes, the Court holds that Penal Law, § 400.00(2)(f) authorizes licensing officers to restrict a license to the purposes which justified its issuance.

Penal Law, § 400.00 is the exclusive procedure for the issuance of licenses to possess and/or carry pistols or revolvers (Op.Atty.Gen., 82-9). Pursuant to Penal Law, § 400.00(1), "[n]o license shall be issued or renewed except for an applicant (a) of good moral character; (b) who has not been convicted anywhere of a felony or a serious offense; (c) who has stated whether he has ever suffered any mental illness or been confined to any hospital or institution, public or private, for mental illness; and (d) concerning whom no good cause exists for the denial of the license." Subdivision 2 of that section defines the seven "types" of licenses which may be issued (see PL 400.00(2)(a-g)). Subdivision (2)(f) is the only "type" of license for which this applicant is eligible. That subdivision authorizes the issuance of a license for a pistol or revolver to "have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof." (emphasis added).

The determination of this application turns upon the statutory construction afforded the above quoted statutory language. Construction is the process of determining the meaning of statutes and involves "drawing of conclusions with respect to subjects which lie beyond the direct expression of the text from elements known from, and given in, the text" (McKinney's Statutes, § 71 citing C.J.S. Statutes, § 311). While a prior judicial interpretation may bind subsequent Courts (McKinney's Statutes, § 72), the applicant and Court agree that this issue has not been previously decided by any Court in this state (but see 1972 Op.Atty.Gen. 4, 5 wherein the Attorney General concluded that "the broad discretion given to local officers with respect to gun licenses implies the power to issue licenses subject to conditions or restrictions based on local circumstances").

While a Court should avoid judicial legislation (McKinney's Statutes, § 73), reasonable implications drawn from the statutory language are preferable to a strict construction which is inconvenient, absurd, or which leads to other objectionable consequences contrary to the purposes and intent of the statute (McKinney's Statutes, § 74). Thus, the construction to be adopted is one that suppresses the evil sought to be remedied by the statute (McKinney's Statutes, § 95) and, a statute should not be construed so as to lead to evil, unjust, oppressive, or absurd consequences or to self contradiction (McKinney's Statutes, § 141).

Penal Law, § 400.00 is derived from former Penal Law, § 1897. As far back as 1884, New York prohibited the possession of a pistol without a license by persons under 18 years old (see L.1884, ch. 46, § 8). In 1905, the licensing provision was extended to persons over sixteen (L.1905, ch. 92; former Penal Law, § 410). The license was to be issued by a magistrate "or in such manner as may be prescribed by ordinance of such city or village" (id). In 1913, the reference to local cities, towns, and villages was deleted and replaced by the words "as hereinafter prescribed". The statute then set forth the various conditions which either required issuance or merely authorized issuance. Thus, with respect to employees of specified institutions (e.g. prisions, banks, etc.), the statute required issuance upon proper application. However, with respect to other persons not engaged in these specified occupations, the statute authorized, but did not require, issuance upon proof of good moral character and "proper cause" (L.1913, ch. 608).

The Courts have repeatedly interpreted the current statutory language to confer a great deal of discretion upon licensing officers in determining what constitutes "proper cause" for the issuance of a pistol license (See Moore v. Gallup, 267 App.Div. 64, 45 N.Y.S.2d 63, aff'd. 293 N.Y. 846, 59 N.E.2d 439, mot. granted 294 N.Y. 699, 60 N.E.2d 847; Davis v. Clyne, 58 A.D.2d 947, 397 N.Y.S.2d 186, appeal denied 44 N.Y.2d 646, 406 N.Y.S.2d 1026, 378 N.E.2d 127, reargument denied 45 N.Y.2d 776, 408 N.Y.S.2d 1027, 380 N.E.2d 350; Fulco v. McGuire, 81 A.D.2d 509, 437 N.Y.S.2d 353; Marlow v. Buckley, 105 A.D.2d 1160, 482 N.Y.S.2d 183; Sable v. McGuire, 92 A.D.2d 805, 460 N.Y.S.2d 52; Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 826, mod. on other grounds 54 A.D.2d 86, 387 N.Y.S.2d 720). While no Court has squarely decided the issue herein, at least one Court has premised their reversal of a licensing officer's denial of a pistol license on the grounds that a desire to engage in target shooting is a legitimate purpose and "a license to use a pistol under such controlled and structured conditions should not be withheld, particularly, where as here, the issuing officer may restrict the license so as to limit the use of the pistol ..." (Davis v. Clyne, supra citing Klapper v. Codd, 78 Misc.2d 377, 356 N.Y.S.2d 431 and PL § 400.00, subd. 2 par. (e) which was renumbered (f) by L.1981, ch. 175, § 5).

The term "proper cause" denotes a legitimate reason, a circumstance or combination of circumstances justifying the granting of a privilege. A generalized desire to carry a concealed weapon to protect one's person and property does not constitute "proper cause" (see for example 38 RCNY Chapter 5, § 5-03; also see Bernstein v. Police Dept. of the City of New York, 85 A.D.2d 574, ...