Summary
affirming denial of pistol license under N.Y. Penal Law § 400.00 based on applicant's five arrests, two of which he failed to report on his application, and explaining that "[t]he fact that the charges against the petitioner were dismissed and/or adjourned in contemplation of dismissal and eventually dismissed does not disqualify the circumstances surrounding the arrests from consideration"
Summary of this case from Abekassis v. N.Y.C.Opinion
2018–01640
08-15-2018
In the Matter of Robert K. TUTTLE, petitioner, v. Susan CACACE, etc., respondent.
Robert K. Tuttle, New Rochelle, NY, petitioner pro se. Barbara D. Underwood, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
Robert K. Tuttle, New Rochelle, NY, petitioner pro se.
Barbara D. Underwood, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review a determination of the respondent, Susan Cacace, a Judge of the County Court, Westchester County, dated January 3, 2018, which, without 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, without costs or disbursements.
The standard for reviewing the denial of an application for a pistol license is whether the determination of the licensing officer was arbitrary and capricious (see CPLR 7803[3] ; Matter of Armacida v. Reitz, 141 A.D.3d 713, 714, 34 N.Y.S.3d 636 ; Matter of Kelly v. Klein, 96 A.D.3d 846, 847, 946 N.Y.S.2d 218 ). 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, a person who has not had a license revoked or who is not under a suspension or ineligibility order, and a person "concerning whom no good cause exists for the denial of the license" ( Penal Law § 400.00[1][n] ; see Matter of Velez v. DiBella, 77 A.D.3d 670, 670, 909 N.Y.S.2d 83 ). "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, 756 N.Y.S.2d 870 ; see Penal Law § 400.00[1][n] ; Matter of Velez v. DiBella, 77 A.D.3d at 670, 909 N.Y.S.2d 83 ; Matter of Gonzalez v. Lawrence, 36 A.D.3d 807, 808, 831 N.Y.S.2d 180 ).
Contrary to the petitioner's contention, the respondent's determination that good cause existed to deny the application for a pistol license was not arbitrary and capricious. The petitioner's five prior arrests, two of which he failed to disclose on his application, were sufficient to support the respondent's determination (see Matter of Fortuniewicz v. Cohen, 54 A.D.3d 952, 864 N.Y.S.2d 145 ; Matter of Gonzalez v. Lawrence, 36 A.D.3d at 808, 831 N.Y.S.2d 180 ). The fact that the charges against the petitioner were dismissed and/or adjourned in contemplation of dismissal and eventually dismissed does not disqualify the circumstances surrounding the arrests from consideration (see Matter of Gonzalez v. Lawrence, 36 A.D.3d at 808, 831 N.Y.S.2d 180 ). Accordingly, the determination should be confirmed, the petition denied, and the proceeding dismissed on the merits.
LEVENTHAL, J.P., SGROI, LASALLE and BRATHWAITE NELSON, JJ., concur.