Fulco v. McGuire
| Decision Date | 07 April 1981 |
| Citation | 81 A.D.2d 509,437 N.Y.S.2d 353 |
| Parties | In re Application of Joseph FULCO, Petitioner-Respondent, for a judgment etc. v. Robert J. McGUIRE, etc. et al., Respondents-Appellants. In re Application of John MAGLIOCCO, Petitioner-Respondent, for a judgment etc. v. Robert J. McGUIRE, etc. et al., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
P. J. Maloney, Albany, for petitioner-respondent.
D. Schorr, Brooklyn, D. Drueding, New York City, for respondents-appellants.
Before MURPHY, P. J., and SANDLER, SULLIVAN and FEIN, JJ.
Judgment, Supreme Court, New York County, entered June 17, 1980, which in an Article 78 proceeding directed respondents to issue a permit to petitioner to carry a pistol, unanimously modified on the law, without costs, to vacate direction to issue permit, and petition granted only to the extent of remanding to respondent for further consideration.
Judgment, Supreme Court, New York County, entered September 12, 1980, which in an Article 78 proceeding directed respondents to issue a permit to petitioner to carry a pistol, unanimously modified on the law, without costs, to vacate direction to issue permit, and petition granted only to the extent of remanding to respondent for further consideration.
Respondents appeal from judgments in two Article 78 proceedings directing them to issue permits to carry pistols to two applicants. The factual pattern with regard to both applications for permits are sufficiently similar to make it appropriate to consider the appeals together.
In substance, the applicants are businessmen who allege without contradiction that they carry substantial sums of cash incident to their respective businesses and who also assert a variety of other circumstances in support of the claim that they are more likely than the average person to become the victims of robberies.
One application was denied with the following observation:
"Insufficient Need (daily cash receipts $2-300-Banks daily)"
The second application was disapproved with the following explanation:
"Insufficient Need (business not operated on cash basis, few public contacts)"
The controlling statute, Penal Law, § 400.00(2)(e), provides in pertinent part that a license for a pistol or revolver shall be issued to "have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof."
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O'Connor, Application of
...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 ......
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...of the controlling considerations is necessary for us to determine the reasonableness of the actions taken" (Matter of Fulco v. McGuire, 81 A.D.2d 509, 510, 437 N.Y.S.2d 353). Additionally, the Commissioner's argument that the petitioner never made an application for a "full carry" permit i......
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