Babernitz v. Police Dept. of City of New York

• Decision Date: 21 December 1978
• Citation: Babernitz v. Police Dept. of City of New York, 411 N.Y.S.2d 309, 65 A.D.2d 320 (N.Y. App. Div. 1978)
• Parties: John BABERNITZ, Petitioner-Appellant, v. The POLICE DEPARTMENT OF the CITY OF NEW YORK, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 309

411 N.Y.S.2d 309

65 A.D.2d 320

John BABERNITZ, Petitioner-Appellant, v. The POLICE DEPARTMENT OF the CITY OF NEW YORK, Respondent-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1978.

Alan E. Wolin, Mineola, of counsel (Jack B. Solerwitz, Mineola, attorney), for petitioner-appellant.

Carolyn E. Demarest, New York City, of counsel (L. Kevin Sheridan and Lillian S. Gewirtz, law student, with her on the brief), for respondent-respondent.

Before LUPIANO, J. P., and EVANS, MARKEWICH, YESAWICH and SULLIVAN, JJ.

LUPIANO, Justice.

Petitioner-appellant, John Babernitz, is licensed to carry a pistol in Suffolk County where he is a security manager for three sporting goods stores. He endeavored to have his Suffolk County Full carry pistol permit validated within the City of New York. Penal Law § 400.00(6) provides, in pertinent part:

"Any license issued pursuant to this section shall be valid notwithstanding the provisions of any local law or ordinance. . . . A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, Shall be effective throughout the state, except that the same Shall not be valid within the city of New York unless a special permit granting validity Is issued by the police commissioner of that city" (Emphasis supplied).

His application for a special permit (not a regular carry permit), that is, one which seeks the validation in New York City of an out-of-city existing permit, was denied on the ground that he did not demonstrate sufficient need. Petitioner was formerly employed in the Customs Service of the United States Treasury Department as a criminal investigator for thirty years, and during twenty-two of those years served as a firearms training instructor. He is the current president of the United States Treasury Rifle and Pistol Club and for four years was employed as a New York State Supreme Court officer. His present job as security manager requires him to transport large sums of money of from $6,000 to $30,000 Each evening to the local depository bank after his employer's business closes at 9:00 P.M. After depositing the money at the bank, petitioner would proceed to his home in New York City which is five blocks across the city line. The electric protective alarm system at his employer's premises prevented petitioner from returning to the store to leave his pistol there, and thus the only recourse to secure the pistol was to take it home, that is, five blocks within the city line.

Despite the unassailability of the aforesaid, the hearing officer, at the conclusion of the police department hearing on petitioner's application for a special permit, concluded that petitioner "has no business reason to bring weapon into N.Y.C. and is seeking a special permit merely as a convenience. An accommodation could reasonably be made with his employer to allow the weapon to be returned to the store." This conclusion is imbued with an inherent inconsistency. Apart from the hearing officer's speculation as to whether an accommodation could be made with the employer (which speculation conflicts with the record that the electronic protective system at the store premises prevents return of the pistol to such location for safekeeping), the very fact that such speculation was engaged in buttresses the conclusion that the pistol is needed by the petitioner in connection with his employment, I. e., there is a business reason underlying petitioner's special permit request.

The need exists because the record, that is, the entire surrounding circumstances viewed as a whole and not in insolation, and with common sense, dictate that the pistol could not be adequately secured at any point between the store, the bank, and petitioner's home. What is perplexing is the hearing officer's correctly proclaimed basis of analysis at the hearing that petitioner's need would be determined on "The total need " as compared with the "need to take the gun home." Obviously, the test of need requires consideration of all relevant factors, and to this end the occupation, the background and the place of work of petitioner and the fact of the Suffolk County permit must be considered. While Suffolk and Nassau Counties might have different criteria regarding permits to carry a pistol, the fact that petitioner met the requirements of such criteria obtains some relevance and may not be arbitrarily discounted.

The plaint of petitioner at the administrative hearing under the circumstances herein is most eloquent: "I'm just trying to stay within the law. And right now I'm being forced to violate the law due to my job and the fact that I live five blocks within the City of New York." Indeed,...