O'Brien v. Keegan

• Decision Date: 22 December 1994
• Citation: 621 N.Y.S.2d 121,207 A.D.2d 5
• Parties: In the Matter of Jerald O'BRIEN, Petitioner, v. Thomas W. KEEGAN, as Justice of the Supreme Court, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 121

621 N.Y.S.2d 121

207 A.D.2d 5

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

Supreme Court, Appellate Division,

Third Department.

Dec. 22, 1994.

Jeffrey Chamberlain, Albany, for petitioner.

G. Oliver Koppell, Atty. Gen. (Wayne L. Benjamin, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

CREW, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] to, inter alia, require respondent to remove certain restrictions from petitioner's pistol license.

On or about March 31, 1987, petitioner's application for a "carry concealed firearms" license (see, Penal Law § 400.00[2][f] was approved by Albany City Court. As issued, petitioner's license (No. C-3-87) was restricted to hunting and target practice only. In June 1989, petitioner applied to amend his license to cover two additional firearms and to transfer his records from the City of Albany to Albany County. It appears from petitioner's application that petitioner also requested that the "hunting and target practice" restriction be removed from his license. Supreme Court (Conway, J.) granted petitioner's application and issued petitioner a new, unrestricted carry concealed license (No. CCA-157-89). Petitioner's application did not set forth the basis underlying his request for an unrestricted license, nor does the record reveal Supreme Court's rationale for granting petitioner's request in this regard. Petitioner's subsequent application to acquire another firearm was approved by Supreme Court (Conway, J.) in February 1990.

Thereafter, on or about December 8, 1993, petitioner again applied to amend his license to delete one firearm from and add two firearms to his license. In conjunction with his application, petitioner requested that he be issued a new license. According to petitioner, he requested a new license because the revised firearms license form "allowed easier listing of registered firearms". The application was forwarded to respondent who, after reviewing petitioner's license records on file in the Albany County Clerk's Office, granted petitioner's application to amend his license and issued petitioner a license (No. CCA-157-89) restricted to hunting and target shooting only. Petitioner objected to this restriction, and respondent met with petitioner to afford petitioner the opportunity to establish "proper cause" for an unrestricted carry concealed license pursuant to Penal Law § 400.00(2)(f). Respondent subsequently concluded that although petitioner did show proper cause to carry concealed firearms for hunting and target shooting, he failed to establish proper cause for an unrestricted license. Petitioner thereafter commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondent to remove the aforementioned restrictions from petitioner's license.

The issuance of firearms licenses is governed by Penal Law article 400. In accordance with Penal Law § 400.00(2)(f), a carry concealed license shall be issued only where the applicant has demonstrated "proper cause * * * for the issuance thereof", and pistol licensing officers are vested with broad discretion in ruling on permit applications (see generally, Matter of Fromson v. Nelson, 178 A.D.2d 479, 577 N.Y.S.2d 417).

Petitioner's primary contention on review is that respondent lacked the authority to impose the "hunting and target shooting" restriction because Penal Law article 400 does not provide for a restricted, carry concealed license. Although this court previously questioned the policy, apparently adopted by many licensing officers in the State, of imposing upon pistol permits restrictions which are not specifically provided for in the statute (see, Matter of Mulligan v. Williams, 169 A.D.2d 280, 283, 572 N.Y.S.2d 471), any doubt as to the licensing officers' authority in this regard was put to rest by the recent Court of Appeals decision in Matter of O'Connor v. Scarpino, 83 N.Y.2d 919, 615 N.Y.S.2d 305, 638 N.E.2d 950. In O'Connor, the court held that "the licensing officers' power to determine the existence of 'proper cause' * * * necessarily and inherently includes the power to restrict the use to the purposes that justified the issuance" (id., at 921, 615 N.Y.S.2d 305, 638 N.E.2d 950). The court went on to note that "[w]ithout such a power to condition, the licensing officer's authority to allow possession of a handgun only for proper cause would be rendered meaningless and the obvious regulatory purpose of the statute would be frustrated" (id., at 921, 615 N.Y.S.2d 305, 638 N.E.2d 950). Thus, it is clear that licensing officers have, in the first instance, the authority to impose restrictions upon carry concealed licenses.

As petitioner correctly notes, however, the Court of Appeals decision in O'Connor does not address the scope of respondent's authority where, as here, an applicant is in possession of a valid, unrestricted carry concealed license and a subsequent licensing officer attempts to overrule the original licensing officer and impose restrictions upon the license in question. In our view, simply amending one's original license application to add or delete a firearm does not trigger the opportunity for another "proper cause" determination. Additionally, absent some evidence in the record that petitioner engaged in conduct subsequent to the granting of his unrestricted license in 1989 which renders him presently unfit to carry a pistol, ¹ it was an improvident exercise of discretion for respondent to essentially overrule Supreme Court (Conway, J.) by placing restrictions upon petitioner's license (see, Matter of Leone v. Silverman, 153 A.D.2d 862, 545 N.Y.S.2d 582). To the extent that petitioner engages in conduct warranting revocation of his license (see, Penal Law § 400.00[11] or there exists, upon amendment of his license, good cause why such application should be denied (see, Penal Law § 400.00[1], respondent may act accordingly. In the interim, however, respondent may not impose restrictions upon the license which had already been validly issued to petitioner.

ADJUDGED that the petition is granted, with costs, to the extent that the hunting and target shooting restriction placed upon petitioner's carry concealed firearms license is to be removed and petitioner is to be issued an unrestricted license in this regard.

MIKOLL, J.P., and MERCURE and YESAWICH, JJ., concur.

PETERS, Justice (dissenting).

I respectfully dissent.

Mindful that licenses issued in Nassau and Suffolk Counties and in the City of New York are subject to review upon renewal (Penal Law § 400.00[10] and that such periodic...