Opinion
CW# 12-79
05-13-2013
In the Matter of the Application of Terry H. Loesch for a License to Carry a Pistol.
Richard W. Youngman, Esq. Attorney for Applicant
Richard W. Youngman, Esq. Attorney for Applicant
, J.
Terry H. Loesch filed an application, sworn to October 3, 2012, for a license to carry a pistol. Review of said application revealed that the applicant's previous pistol permit had been revoked.
This Court then advised the applicant by letter dated November 28, 2012 that due to the prior revocation he was ineligible to have a pistol permit pursuant to Penal Law (PL) §400.00(1)(e). Applicant requested a hearing which was held on April 16, 2013, where applicant and counsel appeared. The Court reserved decision at the conclusion of the proof.
The proof shows that the applicant was issued pistol permit No.C18043 on April 30, 1984 in Niagara County. The applicant was later arrested for the misdemeanor of Driving While Intoxicated in the Town of Gorham, County of Ontario, State of New York on December 23, 1988. He was later found guilty on June 20, 1989, for the traffic infraction of Driving While Ability Impaired under Vehicle and Traffic Law §1192(1).
The record shows that after his arrest, but before conviction, the Ontario County Judge revoked the applicant's pistol permit on March 17, 1989 for the DWI arrest. No hearing was ever conducted regarding this revocation. After the revocation by the Ontario County Judge but before any conviction, the Niagara County Judge conducted a hearing on April 6, 1989 resulting in the reinstatement of the applicant's pistol license. However, no formal Order of Reinstatement was entered or filed
Clearly, the Ontario County Judge had the authority to revoke the applicant's pistol permit pursuant to PL§ 400.00(11) after notice. Furthermore, it is clear that the Niagara County Judge could not review or overrule an order of another Judge of co-ordinate jurisdiction in the same proceeding. Spahn v Griffith, 101 AD2d 1011 (4th Dept 1984). In retrospect, applicant should have either moved before the Ontario County Judge or brought an CPLR Article 78 proceeding regarding the revocation.
The applicant subsequently applied to the Niagara County Court on March 16, 2011, to transfer his pistol license to his current County of record, to wit: Yates County. Upon notification of the transfer, this Court advised the Niagara County pistol permit clerk on April 12, 2011, that it would not accept applicant's transfer request until the issue of the prior revocation was resolved.
The Niagara County Judge temporarily suspended applicant's pistol license on April 18, 2011 based on the revocation issue and ultimately revoked it on May 6, 2011. Applicant then made the application now before the Court.
Clearly the applicant was not afforded a hearing on the initial revocation by the Ontario County Judge nor did he pursue an Article 78 proceeding to overrule this revocation. This could have occurred even though the Niagara County Judge reinstated Mr. Loesch's permit as it was within the four month statute of limitations for a proceeding under CPLR Article 78. Although this did not occur Mr. Loesch operated without incident for the next 22 years under the assumption that he possessed a valid New York State Pistol Permit. However this does not negate the fact that the revocation by the Ontario County Judge was in effect.
The issue before this Court is whether or not the applicant is permanently barred from having a license to carry a pistol pursuant to PL §400.00(1)(e) which states that a person is eligible for a permit unless he is one, "who has not had a license revoked or who is not under a suspension or an ineligibility order issued pursuant to the provisions of §530.14 (CPL) or §842(a) of the Family Court Act".
Applicant's counsel argues that a prior revocation is a permanent bar only when the revocation was due to ineligibility under CPL §530.14 or Family Court Act (FCA) §842(a). However, the McKinney's Practice Commentary for PL §400, at p. 68 asserts that the entire section 400.00(1)(e) is a permanent ban on eligibility in the future if an applicant has had a license revoked or the suspension language of the CPL or FCA applies.
A license may be revoked at any time, by any Judge or Justice of a Court of record. PL §400.00(11). In the case at bar the Ontario County Judge had the authority to revoke a pistol permit issued in a county other than Ontario as long as there was notice of the charges and an adequate opportunity for the applicant to submit proof in response. Matter of Salem v Geraci, 27 AD3d 1175 (4th Dept 2006). Equally clear is that no hearing or notice was held prior to the revocation, especially since it was revoked while charges were still pending and there had been no conviction at the time. However, since the revocation was entered, the time to commence a CPLR Article 78 Proceeding has long past so the revocation by the Ontario County Judge must be considered final. Matter of Panas v Traficanti, 147 AD2d 795 (3rd Dept 1989).
Confusing the situation further is the Niagara County Judge's subsequent reinstatement, after a hearing, while the arrest was still pending, even though there had not yet been a conviction. However, being a co-ordinate jurisdiction with the Ontario County Judge, the Niagara County Judge did not have the authority to order a such reinstatement.
A Court has certain discretion in issuing a pistol permit and it must view the eligibility criteria and in the final analysis determine if there is good cause to then deny the license applied for.
Clearly, the record shows that Mr. Loesch was arrested for a misdemeanor under the Vehicle and Traffic Law. However, his license was revoked without proper notice and an opportunity to be heard. It was later reinstated one month later by another Judge of co-ordinate jurisdiction, before being found guilty of a traffic infraction, not a crime. Furthermore, the applicant's current application before this Court shows that he has been totally forthcoming with the prior events and he has operated for many years assuming his permit had been properly reinstated. He has no mental health record. His references speak highly of him and his criminal history is clear except for the traffic infraction of driving while ability impaired. For all practical purposes, Mr. Loesch would, except for the prior revocation, not be denied issuance of a permit for good cause. Clearly, Mr. Loesch possesses the essential temperament and character to entrust him with a dangerous instrument. Therefore, in this case, the underlying facts and circumstances of the previous revocation and subsequent reinstatement, do not rise to the level of a permanent ban for a subsequent issuance of a pistol permit nor do these facts require an automatic denial of the application for cause.
"The state has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument". Matter of Dorsey v Teresi, 26 AD3d 635, 636 (3rd Dept 2006).
The Court must look to the underlying facts as it relates to the applicant's fitness and eligibility to hold a pistol license. And the Court is not bound by a standard beyond a reasonable doubt but rather "good cause". Clearly, the facts of this case do not reflect negatively on the applicant's fitness to possess a pistol permit.
Therefore, the Court concludes that the circumstances underlying the revocation of the Niagara County pistol permit do not permanently foreclose the applicant from reapplying in this instance.
The Court finds that upon the proof presented and considered in its totality there is no good cause to deny the application of Terry H. Loesch sworn to October 3, 2012 and therefore orders that he be issued a pistol permit. The Clerk shall forward a copy of this Memorandum - Decision and subsequent Order to applicant and applicant's counsel.
This constitutes the Decision and Judgment of the Court.
The Court to submit an Order with even date herewith.
SO ORDERED.
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W. Patrick Falvey
Yates County Judge