Opinion
2021-02018
10-13-2021
In the Matter of Marvin Robbins, petitioner, v. Barry E. Warhit, etc., respondent.
Tilem & Associates, P.C., White Plains, NY (Robert M. Schechter and Peter H. Tilem of counsel), for petitioner. Letitia James, Attorney General, New York, NY (Anjali Bhat of counsel), for respondent.
Tilem & Associates, P.C., White Plains, NY (Robert M. Schechter and Peter H. Tilem of counsel), for petitioner.
Letitia James, Attorney General, New York, NY (Anjali Bhat of counsel), for respondent.
CHERYL E. CHAMBERS, J.P. FRANCESCA E. CONNOLLY JOSEPH A. ZAYAS DEBORAH A. DOWLING, JJ.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review a determination of the respondent, Barry E. Warhit, a Justice of the Supreme Court, Westchester County, dated November 18, 2020, which, after a hearing, denied the petitioner's application for a pistol license.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be at least 21 years of age, of good moral character with no prior convictions of a felony or serious offense, and a person "concerning whom no good cause exists for the denial of the license" (Penal Law § 400.00[1][n]; see Matter of Tuttle v Cacace, 164 A.D.3d 678, 678). "A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause" (Matter of Orgel v DiFiore, 303 A.D.2d 758, 758; see Penal Law § 400.00[1][n]; Matter of Nelson v County of Suffolk, 171 A.D.3d 756, 756-757; Matter of Gonzalez v Lawrence, 36 A.D.3d 807, 808). "Where an applicant challenges a determination that either revokes a firearm license or denies an application for a firearm license, the court can only review 'whether a rational basis exists for the licensing authority's determination, or whether the determination is arbitrary or capricious'" (Matter of Nelson v County of Suffolk, 171 A.D.3d at 757, quoting Matter of Karagolian v Walsh, 107 A.D.3d 715, 716 [internal quotation marks omitted]).
Contrary to the petitioner's contention, the respondent's determination that good cause existed to deny the application for a pistol license was rationally based, and neither arbitrary nor capricious. The petitioner's two prior arrests were sufficient to support the respondent's determination (see Matter of Tuttle v Cacace, 164 A.D.3d at 678; Matter of Kelly v Klein, 96 A.D.3d 846, 847; Matter of Velez v DiBella, 77 A.D.3d 670, 670; Matter of Gonzalez v Lawrence, 36 A.D.3d at 808). The fact that both charges against the petitioner were dismissed does not disqualify the circumstances surrounding the arrests from consideration (see Matter of Tuttle v Cacace, 164 A.D.3d at 678; Matter of Kelly v Klein, 96 A.D.3d at 847; Matter of Gonzalez v Lawrence, 36 A.D.3d at 808).
The petitioner's claim that the respondent unlawfully abdicated his decision-making authority to the Westchester Department of Public Safety (hereinafter the Department) by following its recommendation to deny the application is without merit. The respondent's written decision denying the application demonstrates that the Department's recommendation was not the sole basis for his determination (see Matter of Velez v DiBella, 77 A.D.3d at 671).
Moreover, the petitioner's constitutional challenge to the licensing scheme is unfounded (see Matter of Jackson v Anderson, 149 A.D.3d 933, 934; Matter of Gonzalez v Lawrence, 36 A.D.3d at 808). To the extent that the petitioner contends that certain aspects of the licensing eligibility requirements of Penal Law § 400.00(1) unconstitutionally infringe upon his right to bear arms under the Second Amendment (US Const, 2d Amend), this claim is not properly before this Court in an original proceeding pursuant to CPLR article 78, as a declaratory judgment action is the proper vehicle for challenging the constitutionality of a statute (see Matter of Jackson v Anderson, 149 A.D.3d at 934).
Accordingly, we confirm the determination, deny the petition, and dismiss the proceeding on the merits.
CHAMBERS, J.P., CONNOLLY, ZAYAS and DOWLING, JJ., concur.