Matter of Bando v. Sullivan

• Decision Date: 10 January 2002
• Docket Number: 3,89915
• Parties: In the Matter of JOSEPH BANDO, Petitioner, v W. HOWARD SULLIVAN, as Chenango County Judge, Respondent. 89915 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

In the Matter of JOSEPH BANDO, Petitioner v W. HOWARD SULLIVAN, as Chenango County Judge, Respondent

89915

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: November 13, 2001

Decided and Entered: January 10, 2002

Vitanza, Shabus & Fertig L.L.P. (Diane M. Di Stefano of counsel), Norwich, for petitioner.

Eliot Spitzer, Attorney-General (Edward Lindner of counsel), Albany, for respondent.

MEMORANDUM AND JUDGMENT

Before: Cardona, P.J., Peters, Spain, Mugglin and Lahtinen, JJ.

Spain, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to review a determination of respondent which denied petitioner's application for an unrestricted pistol permit.

Petitioner commenced this CPLR article 78 proceeding, initiated in this Court (see, CPLR 506 [b] [1]), challenging respondent's issuance of a carry concealed pistol license (see, Penal Law § 400.00 [2] [f]) restricted to "hunting and target practice". Petitioner essentially challenges the attachment of restrictions to the license, contending that he needs an unrestricted license to start a private security business and use his State watch guard license (see, General Business Law art 7).

Petitioner, an unemployed former security guard, applied for a carry-concealed license in October 2000, disclosing that he had been arrested in 1996 and charged with criminal solicitation in the second degree and conspiracy in the second degree, charges later dismissed and that, in 1999, the New York City Police Department denied his request for a carry-concealed pistol permit for failure to document need. Respondent reviewed all materials in petitioner's file and then personally interviewed him on March 6, 2001, observing his demeanor and temperament, and giving petitioner the opportunity to explain the circumstances surrounding his prior arrest and the New York City permit denial, his need for the permit and intent to open a private security business in Chenango County. With respondent's permission, petitioner thereafter submitted additional related materials for consideration.

By letter dated March 26, 2001, respondent approved issuance of petitioner's permit but indicated that it was "limited to hunting and target practice". Petitioner's attorney submitted a letter to respondent requesting an explanation or reasons for the restrictions and a hearing. Respondent then issued a letter decision stating that, based upon his review of petitioner's file and interview, petitioner had not shown "proper cause" to carry a concealed firearm as required by Penal Law § 400.00 (2) (f), citing the dismissed charges and permit denial. Respondent also determined that petitioner's planned security business, which contemplated responding to a customer's alarm as an armed civilian, would pose a "greater hazard" to responding law enforcement.

It is well settled that respondent has broad discretion as a licensing officer to determine whether "proper cause" exists to issue a carry-concealed pistol license (Penal Law § 400.00 [2] [f]) and may deny, revoke or limit a pistol license for any "good cause" (see, Matter of Boyark v Czajka, 248 A.D.2d 772; Matter of Eddy v Kirk, 195 A.D.2d 1009, 1010, affd 83 N.Y.2d 919; Matter of Anderson v Mogavero, 116 A.D.2d 885; see also, Penal Law § 400.00 [1] [g]), a determination that will not be disturbed unless it is arbitrary and capricious (see, Matter of Eddy v Kirk, supra, at 1010-1011; see also, Matter of O'Brien v Keegan, 87 N.Y.2d 436, 440; Matter of King v Ingraham, 113 A.D.2d 977; Matter of Davis v Clyne, 58 A.D.2d 947, lv denied 44 N.Y.2d 646). The burden was on petitioner to establish the requisite "proper cause" for the issuance of a "full-carry" permit under Penal Law § 400.00 (2) (f) (see, Matter of Eddy v Kirk, supra, at 1011; see also, Matter of O'Connor v Scarpino, 83 N.Y.2d 919, 921; Matter of Bernstein v Police Dept. of City of N.Y., 85 A.D.2d 574) and "[respondent's] power to determine the existence of 'proper cause' for the issuance [of a license] necessarily and inherently includes the power to restrict the use of a license to the purposes that justified the issuance" (Matter of O'Connor v Scarpino, supra, at 921; see, Matter of O'Brien v Keegan, supra, at 439).

Here, prior to his application being denied, petitioner was afforded ample opportunity to submit evidence in support of his application, to explain in person and in writing his arrest record, permit denial and business plans, and to respond to all factors considered and issues raised by respondent (see, Matter of Demyan v Monroe, 108 A.D.2d 1004, 1005; contrast, Matter of Novick v Hillery, 183 A.D.2d 1007, 1007-1008; Matter of Lukovic v Cahill, 130 A.D.2d 751, 752; Matter of Savitch v Lange, 114 A.D.2d 372, 373; Matter of Bobrick v Leggett, 71 A.D.2d 869, 870; Matter of Guida v Dier, 54 A.D.2d 86, 87). Respondent was not precluded from considering the dismissed criminal charges in restricting the license (see, Matter of Van Vorse v Teresi, 257 A.D.2d 938, 939) and petitioner was not entitled to a formal evidentiary hearing (see, Matter of Dlugosz v Scarano, 255 A.D.2d 747, 748, appeal dismissed 93 N.Y.2d 847, lv denied 93 N.Y.2d 809, cert denied 528 US 1079; Matter of Di Monda v Bristol, 219 A.D.2d 830,...