De Trano v. Looney
| Decision Date | 04 December 1970 |
| Citation | 66 Misc.2d 183,320 N.Y.S.2d 141 |
| Parties | In the Matter of Frank DE TRANO, Petitioner, v. Francis LOONEY, Commissioner of Police of the County of Nassau, Respondent. |
| Court | New York Supreme Court |
Baratta & Solleder, Mineola, for petitioner.
Morris H. Schneider, County Atty. of Nassau County, Mineola, for respondent.
By this Article 78 proceeding the petitioner seeks to annul the determination of the Nassau County Commissioner of Police by which a pistol permit which was issued in March of 1969 was revoked on March 19, 1970.
On January 3, 1970, while examining a gun in his home which had been handed to him by a friend for examination and possible purchase, the gun was fired by the petitioner and as a result his friend was struck on the side of his left knee. The petitioner claims that the firing was the 'result of a hidden defect * * * without any fault or neglect on the part of the petitioner.' The matter was investigated by the Nassau County Police Department, and as a result the respondent concluded that the petitioner had been careless in the handling of the pistol and for that reason revoked his permit.
Section 400.00, subd. 11 of the Penal Law provides that 'a license may be revoked and cancelled at any time in the * * * county of Nassau cy the licensing officer * * *.' This statute places the determination of whether or not a pistol permit should be issued completely within the discretion of the Police Commissioner, and his determination will not be disturbed unless it is clearly arbitrary. (See Matter of Moore v. Gallup, 267 App.Div. 64, 45 N.Y.S.2d 63, affd. 293 N.Y. 846, 59 N.E.2d 439.) The power to revoke stands on the same discretionary basis, and any revocation likewise will not be disturbed unless shown to be clearly arbitrary.
At that hearing held before this Court in this matter, a weapons expert was called in petitioner's behalf. He testified that the gun in question was defective, and that the discharge that caused the accident was due to the defect rather than the petitioner's handling of the gun. Specifically, he stated that the magazine was not the proper one for the gun, and needed to be forced into the gun. On cross-examination the expert was asked, 'When a pistol jams because a round fails to feed into the chamber, wouldn't you say, sir, that the correct safety procedure would be to remove the magazine?' He answered, ...
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