Guida v. Dier
| Decision Date | 21 October 1976 |
| Parties | In the Matter of Salvatore GUIDA, Respondent, v. John G. DIER, as Warren County Judge, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John C. Mannix, County Atty., Lake George (David B. Krogmann, Glens Falls, of counsel), for appellant.
Lionel Sacks, Albany, for respondent.
Before GREENBLOTT, J.P., and KANE, MAIN, HERLIHY and REYNOLDS, JJ.
OPINION FOR MODIFICATION
The petitioner operates a retail business at Lake George in Warren County. By an application dated February 24, 1975 he applied for a pistol license to carry a concealed firearm after a prior application had been denied. The appellant, the Warren County Judge, is the duly authorized licensing officer (Penal Law, §§ 265.00 et seq., 400.00 et seq.) and he denied the second application in April of 1975.
The appellant does not dispute the petitioner's allegation that the first application was denied because the character witnesses listed thereon were not personally familiar with him. The second application contained new character witnesses and the appellant denied it upon the ground that the New York State Police reported that 'applicant does not possess the necessary qualifications and should not favorably be considered to possess a pistol permit'. Special Term found that the mere 'recommendation' of an investigative agency is not sufficient to establish a basis for exercising discretion so as to refuse a license.
The appellant contends that the granting of a license is entirely within his discretion and, accordingly, the Special Term erred in directing a reconsideration.
The First Department has held that the reason for denial of a license must be established by evidence where the record upon its face does not establish that the license should otherwise be denied (Matter of Falk v. City of New York, 41 A.D.2d 530, 340 N.Y.S.2d 127). The Second Department has applied the Falk case to a license revocation based simply upon a 'withdrawal of police support' (Matter of Buffa v. Police Dept. of Suffolk County, 47 A.D.2d 841, 366 N.Y.S.2d 162). In Matter of Moore v. Gallup, 267 App.Div. 64, 45 N.Y.S.2d 63, affd. no opn. 293 N.Y. 846, 59 N.E.2d 439 this Department held that the question of 'proper cause' for the issuance of a license was within the discretion of the County Judge. The appellant's reliance on the Moore case is misplaced as the court in Moore did not hold that a 'recommendation' by the investigative officer was itself sufficient to sustain the denial of a license. The discretion exercised by the County Judge in the Moore case was whether or not the purpose of 'target practice' was a sufficient reason to constitute 'proper cause' for the issuance of the license. The question of 'proper cause' is not in issue in this proceeding and the petitioner's allegation that his store has been robbed at gunpoint is undisputed.
As noted by Special Term in its decision, the investigative officer is not authorized to issue or withhold the license and it is the facts disclosed by the investigation which must be evaluated by the ...
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