Klapper v. Codd
| Decision Date | 14 May 1974 |
| Citation | 78 Misc.2d 377,356 N.Y.S.2d 431 |
| Parties | Jules KLAPPER, Petitioner, v. Michael CODD, as Police Commissioner of the City of New York and his successors in office, Respondent. |
| Court | New York Supreme Court |
David I. Caplan, New York City, for petitioner.
Adrian P. Burke, Corp. Counsel, New York City (Joseph Halpern, Walter Boxer, New York City, of counsel), for respondent.
In this Article 78 proceeding the petitioner seeks a review and an annulment of respondent's determination denying him a pistol license. Petitioner's application for a pistol license is sought in connection with his interest in and hobby of marksmanship. As member of the Manhattan Rifle and Revolver Association, he appears to have had a long standing interest in this activity, and he has previously been issued a Massachusetts pistol license. The transcript of the administrative proceedings under review indicates that Police Department rules and regulations require that one issued a license such as is sought by the petitioner, may transport a pistol only in a locked metal box at which time the pistol must be unloaded.
Penal Law Section 400.00(1)(d) provides in pertinent part:
'No (firearms) license shall be issued or renewed except for an applicant . . . concerning whom no good cause exists for the denial of the license.'
This convoluted double negative is, however, qualified by Penal Law, Section 400.00(2) which proscribes the 'types of licenses' to be issued. In this regard the court observed in Zweigbaum v. Murphy, NYLJ, April 1, 1973, p. 17, col. 5:
'There is no absolute right to carry a pistol (Moore v. Gallup, 267 App.Div. 64 (45 N.Y.S.2d 63) (1943), aff'd 293 N.Y. (846) 246 (59 N.E.2d 439) (1944).
The policy of this state is that the right to carry a pistol concealed upon one's person outside the home or place of business shall be the exception rather than the rule (cf. Penal Law, Sec. 400.00, subdiv. 2(e)).'
Markmanship purposes have been recognized as a proper basis upon which to seek a pistol license (Conocico v. Leary, NYLJ, January 24, 1967, p. 17, col. 1). While the respondent has considerable discretion in determining whether an applicant will be issued a pistol license, that discretion is not unlimited; and it may not be exercised in an arbitrary and capricious manner (Payton v. Murphy, NYLJ, June 26, 1972, p. 2, col. 5; In re Goldfarb (Leary) NYLJ, April 22, 1968, p. 15, col. 6; In re Quinonies ...
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...for target practice has been recognized as a legitimate and proper basis upon which to seek a pistol permit (Klapper v. Codd, 78 Misc.2d 377, 378, 356 N.Y.S.2d 431, 432; Cononico v. Leary, N.Y.L.J. 1/24/67, p. 17, col. 1). To permi a person between the ages of 18 and 21, such as petitioner,......
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