O'Brien v. Keegan

• Decision Date: 15 February 1996
• Citation: 87 N.Y.2d 436,663 N.E.2d 316,639 N.Y.S.2d 1004
• Parties: , 663 N.E.2d 316 In the Matter of Jerald O'BRIEN, Respondent, v. Thomas W. KEEGAN, as Justice of the Supreme Court, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1004

639 N.Y.S.2d 1004

87 N.Y.2d 436, 663 N.E.2d 316

In the Matter of Jerald O'BRIEN, Respondent, v. Thomas W. KEEGAN, as Justice of the Supreme Court, Appellant.

Court of Appeals of New York.

Feb. 15, 1996.

Dennis C. Vacco, Attorney-General, Albany (Wayne L. Benjamin, Victoria A. Graffeo and Peter H. Schiff, of counsel), for appellant.

Chamberlain and Kaufman, Albany (Jeffrey Chamberlain, of counsel), for respondent.

OPINION OF THE COURT

CIPARICK, Judge.

A licensing officer will issue a license to possess and carry a concealed firearm only when "proper cause exists" (see, Penal Law § 400.00[2][f] ). Other than in New York City and Nassau and Suffolk Counties, where licenses are subject to renewal every three or five years, respectively, the procedure to amend a "carry concealed license" to add or delete weapons is by application to the licensing officer (see, Penal Law § 400.00[9], [10] ). In furtherance of both the regulatory and public safety purposes of Penal Law § 400.00, we hold that a licensing officer is authorized to engage in a "proper cause" inquiry when presented with an application to amend a carry concealed license.

On March 31, 1987, Albany City Court granted petitioner's application for a carry concealed license, restricted to hunting and target practice. In 1989, petitioner applied to amend his license to cover two additional firearms and remove the hunting and target shooting restrictions. On June 29, 1989, petitioner's application was granted, without a proper cause inquiry, and he was issued an unrestricted carry concealed license for his two semiautomatic pistols and one revolver. In early 1990, petitioner again sought to amend his license to reflect the acquisition of another semiautomatic handgun. On February 1, 1990, the same licensing officer approved the amendment, again without conducting a proper cause inquiry.

The third time petitioner applied to amend his license he sought to substitute one revolver for another and add another semiautomatic handgun, and requested the issuance of a license that conformed with the recently redesigned license format. This application was reviewed by a different licensing officer who concluded that petitioner failed to demonstrate proper cause to hold an unrestricted carry concealed license under Penal Law § 400.00(2)(f). Thus, the licensing officer granted petitioner's application to amend his license to the extent of authorizing the addition of one weapon and deletion of one weapon--for a total of five firearms--and restricting the license to hunting and target shooting.

Petitioner protested, and the licensing officer agreed to meet with him to consider his request for removal of the hunting and target shooting restrictions. According to the licensing officer, petitioner could not articulate any valid reason when he was asked why he needed to carry up to five concealed weapons at virtually any time. Indeed, petitioner informed the licensing officer that he wanted an unrestricted carry concealed license because "[i]t just makes me feel better." The licensing officer adhered to the original determination that the proper cause shown by petitioner only supported a license restricted to hunting and target shooting.

Petitioner challenged this determination in a CPLR article 78 proceeding, initiated in the Appellate Division pursuant to CPLR 506(b)(1), to compel the licensing officer to remove the restrictions from petitioner's license on the ground that the licensing officer was not authorized to modify his valid unrestricted license. Petitioner argued that under Penal Law § 400.00(10) his unrestricted license remains "in force and effect until revoked" and the licensing officer improperly revoked the license issued by the prior licensing officer. The Appellate Division, with one Justice dissenting, granted the petition to the extent of directing the removal of the hunting and target shooting restrictions and the issuance of an unrestricted license, ruling that an application to amend a license "does not trigger the opportunity for another 'proper cause' determination" (see, Matter of O'Brien v. Keegan, 207 A.D.2d 5, 7-8, 621 N.Y.S.2d 121). We disagree, and now reverse.

Eligibility for a license in the first instance or for renewal is contingent upon an investigation by the licensing officer, and a finding that all statements in the application are true (see, Penal Law § 400.00[1] )...