Opinion
No. 2022-04247 Index No. 615970/21
04-17-2024
In the Matter of Brian Gerson, appellant, v. Patrick J. Ryder, etc., et al., respondents.
Wolin & Wolin, Jericho, NY (Alan E. Wolin of counsel), for appellant. Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Ian Bergström of counsel), for respondents.
Wolin & Wolin, Jericho, NY (Alan E. Wolin of counsel), for appellant.
Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Ian Bergström of counsel), for respondents.
ANGELA G. IANNACCI, J.P. WILLIAM G. FORD HELEN VOUTSINAS LOURDES M. VENTURA, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Nassau County Police Department dated September 3, 2021, which, without a hearing, upheld the determination of the Pistol License Section of the Nassau County Police Department to revoke the petitioner's target/hunting pistol license, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered May 4, 2022. The judgment denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
On or about March 11, 2013, the petitioner was issued a target/hunting pistol license. In a letter dated January 15, 2019, the Pistol License Section (hereinafter the PLS) of the Nassau County Police Department (hereinafter the NCPD) informed the petitioner that, following an investigation, his pistol license had been revoked. The petitioner thereafter pursued an administrative appeal. Following a review by an appeals officer of the NCPD's Legal Bureau, the appeals officer found that the "totality" of the petitioner's "conduct bears negatively on his fitness to possess a pistol" and, therefore, that the PLS's determination should be upheld. In a determination dated September 3, 2021, the Commissioner of the NCPD (hereinafter the Commissioner), without a hearing, upheld the PLS's revocation of the petitioner's pistol license.
In December 2021, the petitioner commenced this CPLR article 78 proceeding to review the Commissioner's determination, alleging, among other things, that the revocation of his pistol license was arbitrary and capricious. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
In determining whether to revoke a pistol license pursuant to Penal Law § 400.00(11), a licensing officer is vested with broad discretion to resolve factual and credibility issues, and the licensing officer's determination is accorded great weight (see Matter of Ogundele v Zambelli, 159 A.D.3d 1002, 1003; Matter of Moreno v Cacace, 61 A.D.3d 977, 978; Matter of Simmons v New York City Police Dept. License Div., 35 A.D.3d 748, 749). "While a formal adversarial hearing is not required before a pistol license is revoked, the licensee must be given notice of the charges and evidence against him [or her], and be given an opportunity to appear with his [or her] lawyer to rebut the charges" (Matter of Burke v Colabella, 113 A.D.2d 794, 795; see Matter of McAvoy v Klein, 117 A.D.3d 1058, 1059-1060; Matter of Pacicca v Allesandro, 19 A.D.3d 500, 501).
Contrary to the petitioner's contention, the record reflects that the petitioner was given sufficient opportunity to appear with his lawyer to rebut the charges (see Matter of Pacicca v Allesandro, 19 A.D.3d at 500-501; Matter of Strom v Erie County Pistol Permit Dept., 6 A.D.3d 1110, 1111; Matter of Dlugosz v Scarano, 255 A.D.2d 747, 748; Matter of Gordon v LaCava, 203 A.D.2d 290, 290-291). Moreover, the Commissioner's determination had a rational basis and was not arbitrary and capricious (see Matter of Nash v Nassau County, 150 A.D.3d 1120, 1121; Matter of Gurnett v Bargnesi, 147 A.D.3d 1319, 1320; Matter of Peters v Randall, 111 A.D.3d 1391, 1392; Matter of Martino v Nassau County Police Dept., 66 A.D.3d 781, 781-782; Matter of Dlugosz v Scarano, 255 A.D.2d at 748; Matter of Panaro [County of Westchester], 250 A.D.2d 616, 617; Matter of Brookman v Dahaher, 234 A.D.2d 615, 616; Matter of Kaplan v Kelly, 219 A.D.2d 653, 653; Matter of Gordon v LaCava, 203 A.D.2d at 291). The PLS's investigation revealed a history of domestic incidents that involved, among other people, the petitioner and the petitioner's former girlfriend. In addition, the PLS's investigation revealed evidence that the petitioner had mishandled his firearm. "The exercise of poor judgment in handling a weapon is a sufficient ground for revocation of a pistol license" (Matter of Gordon v LaCava, 203 A.D.2d at 291).
The respondents' remaining contention is without merit.
IANNACCI, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.