Zedek v. Kelly, Index No. 103067/2010
| Decision Date | 30 January 2012 |
| Docket Number | Index No. 103067/2010 |
| Citation | 2012 NY Slip Op 30209 |
| Parties | In the Matter of the Application of NEHEMIA ZEDEK, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules v. RAYMOND KELLY, Police Commissioner of the City of New York, and his successors in office; NEW YORK CITY POLICE DEPARTMENT; THOMAS M. PRASSO, Director, License Division of the New York City Police Department; LICENSE DIVISION OF THE CITY OF NEW YORK; and CITY OF NEW YORK, Respondents |
| Court | New York Supreme Court |
For Petitioner
Michael T. Hopkins Esq.
Hopkins & Kopilow
Ji Kim, Special Assistant Corporation Counsel
Petitioner seeks to annul the Final Agency Determination November 10, 2009, by respondent Prasso, Director of the New York City Police Department License Division, which revoked petitioner's handgun license, and to restore his license. C.P.L.R. § 7803(3) and (4). After oral argument and for the reasons explained below, the court grants the petition to the extent of annulling the November 2009 Final Agency Determinationand remands the proceeding to respondents for a new hearing consistent with this decision. C.P.L.R. §§ 7803(3), 7806.
Petitioner is a psychiatrist, licensed to practice psychiatry and to prescribe medication, who conducts his practice in an office at his Queens County residence. Before the suspension and revocation challenged in this proceeding, he possessed a handgun license for those premises since at least 2001.
On September 6, 2006, petitioner was arrested on charges of selling prescriptions for controlled substances. He did not immediately report this arrest to respondents' License Division as required by 38 R.C.N.Y. §§ 5-22(c) (1) and 5-30(c) (1) governing handgun licensees, but subsequently complied with the License Division's direction to surrender his firearm after he received its notice dated September 28, 2006, that his handgun license was suspended. On October 3, 2006, petitioner also complied with the direction to send the License Division a sworn letter detailing the circumstances of his arrest. Over a year later, on October 26, 2007, the Licensing Division revoked petitioner's handgun license. 38 R.C.N.Y. § 5-21.
On January 15, 2009, petitioner informed the Licensing Division that he had been acquitted of all charges in the criminal action and requested an administrative hearing to review the revocation of his handgun license. On April 30, 2009, respondents' Hearing Officer held a hearing recorded by a taperecorder. Petitioner claims numerous inaccuracies in the transcript respondents produced of the recorded hearing. Respondents deny that the transcript is inaccurate. Although hearing the original tape recording and determining its accurate contents might bear on whether substantial evidence supports respondents' final decision, C.P.L.R. § 7803(4), and this court has not been afforded an opportunity to hear the recording, the differences between the parties' versions of its contents do not bear on this court's decision, which is based on other grounds. C.P.L.R. § 7803 (3) .
In a report dated November 5, 2009, the Hearing Officer recommended revocation of petitioner's license. On November 10, 2009, respondent Prasso adopted the Hearing Officer's recommendation in the Final Agency Determination.
McDonald v. City of Chicago. 561 U.S. ___, 130 S. Ct. 3020, 3026 (2010), applied to the states the right of individuals to keep and bear arms under the Second Amendment to the United States Constitution, recognized in District of Columbia v. Heller. 554 U.S. 570, 592 (2008). Unlike the local laws addressed in Heller and McDonald, however, the New York State and City statutes and regulations governing petitioner's possession of a handgun are only licensing requirements, not an outright or effective ban on handguns or even a restriction severe enough to infringe on Second Amendment rights. N.Y. Penal Law § 400.00; N.Y.C. Admin. Code § 10-131 (a) (1) ; 38 R.C.N.Y. §§ 5-22, 5-30;McDonald v. City of Chicago, 130 S. Ct. at 3026; People v. Hughes, 83 A.D.3d 960, 961 (2d Dep't 2011); People v. Perkins, 62 A.D.3d 1160, 1161 (3d Dep't 2009); People v. Foster, 30 Misc. 3d 596, 599-600 (Crim. Ct. Kings Co. 2010) . These requirements bar only possession of unlicensed handguns. Reasonable licensing of and other regulatory restrictions on possession of handguns are constitutionally permissible. District of Columbia v. Heller, 554 U.S. at 626-27; People v. Perkins, 62 A.D.3d at 1161; People v. Nivar. 30 Misc. 3d 952, 957-58, 961-62 (Sup. Ct. Bronx Co. 2011); People v. Foster, 30 Misc. 3d at 599-600.
Respondents revoked petitioner's license in part based on the statutory and regulatory requirements restricting handgun licenses to persons "of good moral character," finding that petitioner failed to meet that standard. N.Y. Penal Law § 400.00(1); 38 R.C.N.Y. § 5-02(a). A standard of "good character" or "good moral character" may be unconstitutionally vague, depending on how it may be interpreted and how it is applied. E.g., Coates v. Cincinnati, 402 U.S. 611, 614 (1971); 164th Bronx Parking, LLC v. City of New York, 20 Misc. 3d 796, 803-804 (Sup. Ct. Bronx Co. 2008). Legislative enactments are presumed constitutional, however, and therefore must be interpreted, as far as possible, to preserve their constitutionality. People v. Stuart, 100 N.Y.2d 411, 422 (2003); LaValle v. Hayden, 98 N.Y.2d 155, 161 (2002); Matter of Travis S.. 96 N.Y.2d 818, 820 (2001); Amazon.com, LLC v. New York State Dept. of Taxation & Fin., 81 A.D.3d 183, 194 (1st Dep't 2010). Where a "good moral character"standard is overbroad in its application, the standard may be interpreted and implemented with a narrower scope according to the regulated conditions to which it applies, rather than held unconstitutional. Konigsberg v. State Bar of Cal., 353 U.S. 252, 264, 273-74 (1957); Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc. 3d at 806. The "good moral character" standard under Penal Law § 400.00(1) and 38 R.C.N.Y. § 5-02(a) thus is interpreted as "moral character and fitness to possess a firearm," Kozhar v. Kelly, 62 A.D.3d 540 (1st Dep't 2009), and repeatedly applied in the firearm licensing context without questioning the requirement's constitutionality. Rucker v. NYC/NYPD License Div., 78 A.D.3d 535 (1st Dep't 2010); Rombom v. Kelly, 73 A.D.3d 508 (1st Dep't 2010); Kozhar v. Kelly, 62 A.D.3d 540; Cohen v. Kelly, 30 A.D.3d 170 (1st Dep't 2006); Robertson v. Kerik, 300 A.D.2d 90 (1st Dep't 2002).
Rules "articulating objective standards for respondents' determinations" based on lack of good moral character also set a "framework for interpreting and applying" the standard with constitutional precision. 164th Bronx Parking, LLC v, City of New York. 20 Misc. 3d at 806. See Nicholas v. Kahn, 47 N.Y.2d at 31, 34; 164th Bronx Parking, LLC v. City of New York, 20 Misc. 3d at 812-13. Violations of respondents' rules, as cited above, delineating licensees' specific obligations, thus provide a constitutional standard as well as substantial evidence supporting and demonstrating lack of "good moral character." Cohen v. Kelly, 30 A.D.3d 170. See Rucker v. NYC/NYPD LicenseDi., 78 A,D.3d 535; Papaioannou v. Kelly, 14 A.D.3d 459, 460 (1st Dep't 2005); Cerciello v. Kelly, 8 A.D.3d 128, 129 (1st Dep't 2004). Here, respondents revoked petitioner's license based not solely on a lack of "good moral character," but based also on petitioner's violation of his more specific obligation to report his arrest. 38 R.C.N.Y. §§ 5-21, 5-22 (c) (1) , 5-30(c)(l). See V. Pet. Ex. 6, at 1, 6; V. Answer Ex. M, at 1, 6. III. C.P.L.R. § 7803
The court may vacate a determination after an administrative hearing if that "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." C.P.L.R. § 7803(3). This court may not rule on whether a determination after a hearing was unsupported by substantial evidence, but must transfer that question to the Appellate Division. C.P.L.R. §§ 7803(4), 7804(g). Before transferring the proceeding, however, this court must rule out the other grounds for vacating or remanding the administrative decision. C.P.L.R. §§ 7803(3), 7804(g); Earl v. Turner, 303 A.D.2d 282 (1st Dep't 2003) . The record here sets forth independent grounds to vacate respondents' determination after the hearing held April 30, 2009.
First, respondents failed to provide petitioner advance notice of a principal basis on which they upheld the revocation of his license, as required by 38 R.C.N.Y. § 5-30 (e) and (h) . See Block v. Ambach, 73 N.Y.2d 323, 333 (1989); Wolfe v. Kelly,79 ArD.3d 406, 410 (1st Dep't 2010); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d 470, 472 (1st Dep't 2009); Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 1106 (4th Dep't 1997). "Due process requires that a licensee be given notice of the charges and evidence against him and an opportunity to appear to rebut the charges," Strom v. Erie County Pistol Permit Dept., 6 A.D.3d 1110, 1111 (4th Dep't 2004); to prepare adequately to defend the charges; and "to submit proof in response." Pacicca v. Allesandro, 19 A.D.3d 500, 501 (2d Dep't 2005) . See Wolfe v. Kelly, 79 A.D.3d at 410; Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 472-73; Gordon y. LaCava, 203 A.D.2d 290, 291 (2d Dep't 1994); Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d 996, 997 (3d Dep't 1992). In particular:
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