Opinion
OP 03-02332.
Decided April 30, 2004.
Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506[b][1]) to annul a determination of respondent Honorable Ronald H. Tills, Acting Supreme Court Justice.
ROBSHAW ASSOCIATES, P.C., WILLIAMSVILLE (JEFFREY F. VOELKL OF COUNSEL), FOR PETITIONER.
FREDERICK A. WOLF, COUNTY ATTORNEY, BUFFALO (FREDERICK G. ATTEA OF COUNSEL), FOR RESPONDENT ERIE COUNTY PISTOL PERMIT DEPARTMENT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PATRICK BARNETT-MULLIGAN OF COUNSEL), FOR RESPONDENT HONORABLE RONALD H. TILLS, ACTING SUPREME COURT JUSTICE. The determination revoked petitioner's firearms license.
Before: PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of Honorable Ronald H. Tills, Acting Supreme Court Justice (respondent), revoking his firearms license. We reject the contention of petitioner that he was entitled to an evidentiary hearing because respondent initially scheduled one on the matter. "Due process requires that a licensee be given notice of the charges and evidence against him and an opportunity to appear and to rebut the charges" ( Matter of Maye v. Dwyer, 295 A.D.2d 890, 890, lv dismissed 98 N.Y.2d 764; see Matter of Gordon v. LaCava, 203 A.D.2d 290, 290-291; Matter of St.-Oharra v. Colucci, 67 A.D.2d 1104). In this case, petitioner was given notice of the charges and evidence against him, and he submitted evidence to respondent, including a written statement. On the day scheduled for the hearing, respondent notified petitioner that respondent would not hold a hearing because he had sufficient evidence before him to render a determination. Petitioner, however, was given an opportunity to be heard on the matter and, contrary to petitioner's contention, respondent did not render a determination until after petitioner was given that opportunity. Petitioner was thus not denied due process ( see Matter of Dlugosz v. Scarano, 255 A.D.2d 747, 748, appeal dismissed 93 N.Y.2d 847, lv denied 93 N.Y.2d 809, cert denied 528 U.S. 1079).
Respondent's determination that "good cause exists to revoke" petitioner's firearms license is supported by the record and is not an abuse of discretion or arbitrary and capricious ( see Matter of Gerard v. Czajka, 307 A.D.2d 633, 634; Matter of Lang v. Rozzi, 205 A.D.2d 783, lv denied 84 N.Y.2d 809; Matter of Marlow v. Buckley, 105 A.D.2d 1160; see generally Matter of Eddy v. Kirk, 195 A.D.2d 1009, 1010-1011, affd 83 N.Y.2d 919). Petitioner had been convicted of a fourth alcohol-related offense, and his firearms license had previously been suspended based on charges of reckless endangerment and unlawful discharge of a firearm. We agree with respondent that petitioner demonstrated "poor judgment and inability to abide by the laws of this state." The penalty of revocation does not shock the judicial conscience ( see Maye, 295 A.D.2d at 891; Matter of Alfonso v. New York City Police Dept. [License Div.], 283 A.D.2d 188, lv dismissed 98 N.Y.2d 764; see generally Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554).