Opinion
1289-91
07-15-2020
In the MATTER OF the Pistol Permit of Douglas J. CRANE
On March 25, 2020, the Court received notification from the New York State Division of Criminal Justice Services ("DCJS") that Douglas James Crane, a New York State pistol permit licensee, was convicted of the misdemeanor offense of Criminal Possession of Stolen Property in the Third Degree on May 26, 1982 in Walton Village Court. The notice from DCJS indicates that the "division has determined that the individual is ineligible to possess such a license or is no longer a valid license holder based upon their criminal conviction. This determination is being provided to you as the licensing authority for appropriate action (see Penal Law §§ 400.02 and 400.00 )."
Penal Law § 165.40 was subsequently amended by L. 1986, c. 515, § 4 to modify the degree from "Criminal Possession of Stolen Property in the Third Degree" to "Criminal Possession of Stolen Property in the Fifth Degree". Therefore, this conviction is the same as the present-day misdemeanor offense of Criminal Possession of Stolen Property in the Fifth Degree.
For the reasons set forth herein, this Court declines to revoke Mr. Crane's pistol permit, which was granted to him in 1991 with the issuing County Court Judge's full knowledge of the conviction now being reported to this Court, 38 years after its entry in Walton Town Court.
Background
Douglas James Crane applied for a pistol permit in Monroe County on January 22, 1991. He attached a one-page letter, dated January 11, 1991, to the application. The letter outlined Mr. Crane's criminal contacts including: a 1980 arrest for unlawful possession of marijuana which was dismissed; a 1980 arrest for petit larceny which resulted in a youthful offender adjudication; a 1980 arrest for DWI which resulted in conviction and a $100 fine; a 1981 arrest for petit larceny which resulted in conviction and $100 fine; and finally the 1982 arrest and conviction of criminal possession of stolen property in the third degree which resulted in a $200 fine. The letter argues that the arrests were "mistakes [he] made as a teenager" and explains that he left the bad environment and went on to graduate with a bachelor's degree. On July 15, 1991, Monroe County Court Judge William H. Bristol informed Mr. Crane that his application had been denied due to his criminal convictions. Mr. Crane's counsel sent a letter dated July 30, 1991, asking Judge Bristol to reconsider his denial of the pistol permit application. On August 21, 1991, Mr. Crane wrote a letter to Judge Bristol expressing remorse for his prior behavior and explain that in his view he had "paid the price for my mistakes and will never forget them. Now I only want to be treated as the honest, hardworking person I am."
On August 22, 1991, the court informed counsel for Mr. Crane that his prior conviction for criminal possession of stolen property in the third degree constituted a "serious offense" as defined in Penal Law Section 265.00[17][b] and therefore the denial was mandatory unless Mr. Crane obtained a Certificate of Relief from Disabilities on that conviction.
Mr. Crane obtained a Certificate of Relief from Disabilities dated October 17, 1991 signed by Justice Carl Gregory of Walton Town Court that "specifically includ[es] the right to apply for and receive a pistol permit." Mr. Crane submitted a copy of the Certificate of Relief from Disabilities to Judge Bristol. Judge Bristol then exercised his discretion and after full consideration of the factors in Penal Law § 400.00[1], granted Mr. Crane's pistol permit application on November 12, 1991. Mr. Crane has held his pistol permit, without issue, since then.
January 2013, in the wake of mass shootings including at Sandy Hook Elementary School on December 12, 2012, and at the West Webster Fire Department on December 24, 2012, the New York State legislature enacted sweeping gun-safety reform legislation known as the NY SAFE Act.
This legislation included the creation of a statewide database to be maintained by DCJS (PL § 400.02). Pursuant to the statute, DCJS became responsible for periodic review of licensees to determine the continued accuracy of criminal convictions, mental health, and all other records and to determine whether an individual is "no longer a valid license holder" (Id ). The Division also "upon determining that an individual is ineligible to possess a license, or is no longer a valid license holder shall notify the applicable licensing official of such determination and such licensing official shall not issue a license or revoke such license and any weapons owned or possessed by such individual shall be removed consistent with the provisions of subdivision eleven of section 400.00 of this article." (Id ).
The clause appears to be intending to say, "shall revoke such license", as noted in Montgomery v. Cuomo , 291 F. Supp.3d 303, FN 26 (W.D.N.Y. 2018).
The DCJS now seeks to have this Court apply Penal Law Section 400.02 retroactively and revoke Mr. Crane's permit because that agency has determined that he is now, as a result of his 1982 conviction, "ineligible to possess such a license or is no longer a valid license holder."
Analysis
Under the circumstances of this case, was it the legislature's intent to apply Penal Law Section 400.02 retroactively so that the DCJS's determination that Mr. Crane is now "ineligible to possess such a license or is no longer a valid license holder" would override Judge Bristol's decision to grant the pistol permit with full knowledge of the licensee's 1982 misdemeanor conviction? In most of New York State, County Court Judges are the licensing official for pistol permits (PL § 265.00[10] ). As the licensing officer the assigned County Court Judge "has broad discretion to grant or deny a permit under Penal Law § 400.00(1)" ( Parker v. Randall , 120 A.D.3d 946, 947, 990 N.Y.S.2d 402 [4th Dept. 2014] ; see also , Matter of Fromson v. Nelson , 178 A.D.2d 479, 479, 577 N.Y.S.2d 417 [2d Dept. 1991] ; see also Matter of Covell v. Aison , 153 A.D.2d 1001, 1002, 545 N.Y.S.2d 622 [3rd Dept. 1989] ).
In Monroe County, pistol permit applications are submitted to the County Clerk's Office, then forwarded to either the Monroe County Sherriff's Office or the Rochester Police Department to complete the investigation required by Penal Law § 400.00[4].
The application, the findings of the investigation, and a recommendation from the investigating law enforcement official are then provided to the assigned County Court Judge for review. If the application is disapproved, the Court is required to provide a specific and concise reason for the denial (PL § 400.00[4-a] ) and the applicant may request an opportunity to present proof in order to respond to the objections. (See Parker v. Randall , 120 A.D.3d 946, 947, 990 N.Y.S.2d 402 [4th Dept. 2014] ; quoting , Matter of Savitch v. Lange , 114 A.D.2d 372, 373, 493 N.Y.S.2d 889 [2d Dept. 1985] ; see also , Anderson v. Mulroy , 186 A.D.2d 1045, 1045, 590 N.Y.S.2d 777 [4th Dept. 1992] ; see also , Guida v. Dier , 54 A.D.2d 86, 87, 387 N.Y.S.2d 720 [2d Dept. 1976] ).
For the reasons that follow, I find that it was not the legislature's intent to have Penal Law Section 400.02 apply retroactively to override a decision of the licensing official when that decision was made with full knowledge of the conviction that is the subject of the notification, absent a change in the disqualifying nature of the conviction.
Mr. Crane received a certificate of relief from disabilities from the Walton Town Court Justice back in 1991 for his 1982 conviction for criminal possession of stolen property in the third degree, the same conviction that is the subject of the current DCJS notice. The certificate "relieve[d] the holder of all disabilities and bars to employment" and in a typewritten addition to the document specifically included "the right to apply for and receive a pistol permit".
The Certificate of Relief from Disabilities should have been issued by the Walton Village Court Justice rather than the Town Court Justice based on the conviction being out of the Village Court. However, at this time, the Walton Town Court Justice is still in office 29 years later as issued the original Certificate of Relief from Disabilities and the court clerk is currently the same individual for both the Town Court and Village Court. Therefore, this Court believes it may have been an oversight or clerical error.
It is well settled that a certificate of relief from disabilities is sufficient to remove the statutory prohibition against holding a pistol permit. (See Hecht v. Bivona , 306 A.D.2d 410, 411, 761 N.Y.S.2d 485 [2d Dept. 2003] ; see also , Correction Law § 701[2] ; Matter of Hines v. Kelly , 222 A.D.2d 277, 278, 635 N.Y.S.2d 31 [1st Dept. 1995], 1975 Ops. Atty..Gen., at 306, 1971 Ops. Atty. Gen., at 8). Therefore, the Court declines to follow the decision from Monroe County Court in Matter of Alarie , 168 Misc. 2d 329, 330, 643 N.Y.S.2d 926 [Monroe Cty. 1996], as it is abrogated by the Appellate Division's ruling.
While the certificate of relief from disabilities removes the automatic bar, the licensing official retains discretion to deny or revoke a license based upon the conviction, as the Certificate of Relief from Disabilities does not remove the ability for the licensing official to consider the underlying conviction.
This Court finds, and indeed Judge Bristol agreed, that the certificate of relief from disabilities overcame the statutory bar and vested the decision of whether to grant or deny a pistol permit in the broad discretion of the licensing official (See Correction Law § 701[3] ). Now, the DCJS asks this Court to apply Penal Law Section 400.02 retroactively to overrule Judge Bristol's proper exercise of discretion and revoke Mr. Crane's pistol permit based only on his 1982 conviction, which Judge Bristol was fully aware of and for which Mr. Crane received a certificate of relief from disabilities which specifically included the right to apply for and receive a pistol permit.
The right to bear arms if a fundamental Constitutional right ( U.S. Const., 2nd Amend; District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 [2008] ). When enacting the SAFE ACT, the New York State legislature noted that the right to keep and bear arms is protected by the Second Amendment, but that right is "not unlimited" (See 2013 NY S.B. 2230 [NS] citing Heller at 596, 128 S.Ct. 2783 ).
A statute has retroactive effect if "it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed," thus impacting "substantive" rights ( Landgraf v. USI Film Prods., 511 U.S. 244, 278—280, 114 S.Ct. 1483, 128 L.Ed.2d 229 [1994] ; see also American Economy Ins. Co. v. State of New York, 30 N.Y.3d 136, 147, 65 N.Y.S.3d 94, 87 N.E.3d 126 [2017], cert denied, ––– U.S. ––––, 138 S.Ct. 2601, 201 L.Ed.2d 1003 [2018] ). Where the retroactive application of a statute would impact "substantive rights" there is a well settled and "deeply rooted presumption against retroactivity that is based on elementary considerations of fairness that dictate that individuals should have an opportunity to know what the law is and to confirm their behavior accordingly" ( Regina Metropolitan Co., LLC v. New York State Division of Housing and Community Renewal , ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 N.Y. Slip Op. 02127, 2020 WL 1557900 [2020] ; quoting Landgraf at 265, 114 S.Ct. 1483 ). It therefore "takes a clear expression of the legislative purpose ... to justify a retroactive application" of a statute ( Gleason v. Gleason, 26 N.Y.2d 28, 36, 308 N.Y.S.2d 347, 256 N.E.2d 513 [1970] ) to ensure that "the Legislature contemplated the retroactive impact on substantive rights and intended the extraordinary result" ( Regina ––– N.Y.S.3d ––––, ––– N.E.3d at ––––, at 13 ).
There is no clear expression of legislative purpose which would justify a retroactive application of the statute under these circumstances.
Penal Law Section 400.02[11] supports this conclusion, "[t]he conviction of a licensee anywhere of a felony or serious offense or a licensee at any time becoming ineligible to obtain a license under this section shall operate as a revocation of the license" [emphasis added] . It appears that the legislature intended to have DCJS monitor convictions that occur both at the time of application and following license issuance or to notify the licensing official if an offense that was previously not a disqualifying offense becomes disqualifying then the conviction may alter the determination of the licensee's eligibility to hold a pistol license .
This section of law was also changed in 2013 by L. 2013, c. 98, § 3 to add in the "becoming " portion.
There is an issue over whether, without express language in the statute, the law allows DCJS to retroactively make determinations on convictions that had already occurred prior to the issuance of this new law. Since this case can be decided on the narrower issues set forth in this Decision, the Court does not address this retroactive issue in this decision, but courts may be required to address that issue in future cases.
The New York State Senate's Statement of Support of the bill also supports this position. The legislative history explains that the "[l]ack of a renewal procedure means there is no periodic review of a licensee's qualifications. Thus, if a license holder becomes disqualified from carrying a gun subsequent to obtaining a license, he or she will likely retain the license." (2013 New York Senate Bill No. 2230, Statement in Support, Licensing) [emphasis added]. The NY SAFE Act established a procedure for DCJS to maintain a database that "will permit regular matching by the State against records of prohibited persons (e.g. those with criminal histories, orders of protection, and mental illnesses that bar gun ownership and licensing) ..." (2013 New York Senate Bill No. 2230, Statement in Support, Licensing).
The clear legislative intent was to create a process for DCJS to notify the licensing official of disqualifying events mandating revocation of the licensee's permit. It is therefore also clear that this law was not meant to override the discretionary authority of a licensing official who acts with full knowledge of a conviction when there is no statutory prohibition.
To apply CPL Section 400.02 retroactively in the manner requested by the DCJS would produce exactly the extraordinary result that the presumption against retroactivity is intended to prevent. It would deprive the licensee of his constitutional right to bear arms and the chance to know what the law is and conform his behavior accordingly. Licensee has held a pistol permit for the last 28 years. The fact that his permit has never been suspended or revoked shows that he has comported himself as a responsible permit holder. Applying the statute as DCJS requests would also deprive the license holder of his due process rights. There is no provision allowing Mr. Crane to object to or be heard in opposition to the revocation. Penal Law § 400.02 states that the DCJS, "upon determining that an individual is ineligible to possess a license, or is no longer a valid license holder, shall notify the applicable licensing official of such determination and such licensing official shall not issue a license or [sic] revoke such license and any weapons or possessed by such individual shall be removed consistent with the provisions of subdivision eleven of section 400.00 of this article".
However, subdivision eleven of section 400.00 states, in relevant part, that "[a] license may be revoked or suspended as provided in section 530.14 of the criminal procedure law ...". Criminal Procedure Law § 530.14 sets forth, in subsection 7, that an individual is entitled to hearing. Therefore, a hearing is appropriately provided to the licensee as an opportunity to present proof to address the objections set forth in a DCJS determination of ineligibility.
The licensing official has the ability to suspend or revoke the license pending the hearing.
Further, the Due Process Clause of both the state and federal constitutions require that an opportunity be provided to the licensee to address the disqualification determination by DCJS. The licensee in this case is exercising their Constitutional right to bear arms, therefore due process requires that an adequate opportunity be provided to the licensee to respond to DCJS's determination. (See DiMonda v. Bristol , 219 A.D.2d 830, 830, 631 N.Y.S.2d 968 [4th Dept. 1995] ).
Therefore, it is hereby ordered that the request from the Department of Criminal Justice Services to revoke Mr. Crane's pistol permit is hereby denied.