Opinion
No. 3684–1994.
2012-07-24
The PEOPLE of the State of New York, Plaintiff, v. Benjamin HODGE, Defendant.
Benjamin Hodge, pro se defendant.
COLLEEN D. DUFFY, J.
In 1993, Defendant Benjamin Hodge was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree, PL § 220 .03, a misdemeanor. Defendant was sentenced to “time served.”
In 1994, Defendant was convicted of Criminal Possession of a Weapon in the Third Degree, PL § 265.02(4), a felony.Defendant was sentenced to a definite term of imprisonment of one year.
In 2011, Defendant sought, and received, Certificates of Relief from Civil Disabilities (“CRD”) from the Honorable John P. Collins, S.C.J., with respect to each of these two separate convictions. Pursuant to each CRD, Defendant was relieved from the “forfeitures, disabilities or bars hereinafter enumerated.” The Court then specifically enumerated one item in each CRD: “Security (Unarmed),” meaning that the Court removed the bar preventing Defendant from working in the field of security, but the relief granted to Defendant did not include permission to seek a pistol permit.
Pursuant to Correction Law § 702, Defendant now seeks to enlarge the relief previously granted by the Court in these CRDs. Specifically, Defendant requests that the Court issue new CRDs which remove the bar preventing him from applying for a permit to carry a pistol.
The Court has reviewed Defendant's submissions pursuant to Correction Law § 702, and finds no basis to enlarge the relief previously granted by Judge Collins. Accordingly, for the reasons set forth below, Defendant's application is denied.
I. PROCEDURAL HISTORY
Pursuant to Penal Law § 400.00(1) and General Business Law, Art. 7–A, § 89–f (13), Defendant's 1994 conviction of Criminal Possession of a Weapon in the Third Degree, a felony, precluded him from obtaining a license to carry a pistol and even from working as an unarmed security guard. Defendant's 1993 conviction for Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor, did not act as an automatic bar to obtaining a pistol permit, but could be considered by any licensing agency in its determination as to whether to grant Defendant a license to carry a pistol or to work as a security guard.
Penal Law § 400.00(1); General Business Law, Art. 7–A, § 89–h(5).
In New York, the State Division of Licensing Services issues licenses for unarmed security guards. In order to obtain such license, the prospective security guard must have no convictions for serious crimes or felonies. See http://www.dos.ny.gov/licensing/securityguard/sguard_ faq.html # 1.
Pursuant to the Security Guard Act governing the granting of such licenses, Criminal Possession of a Weapon in the Third Degree is deemed to be a serious crime. General Business Law, Art. 7–A, § 89–f (13)(“serious offense” is defined to include all crimes against public safety pursuant to Article 265 of the Penal Law).
While the crime of Criminal Possession of a Controlled Substance in the Seventh Degree, PL § 220.03, is not deemed a “serious offense,” it is a misdemeanor which would be evaluated by the licensing agency as to whether it bears a relationship to the performance of the duties of a security guard. General Business Law, Art. 7–A, § 89–h(5).
In 2011, Defendant submitted an application to Judge Collins seeking CRDs with respect to each of these convictions.
After reviewing Defendant's application, on May 20, 2011, Judge Collins granted Defendant CRDs for each of his convictions. The relief provided in the CRDs eliminated the automatic bar preventing Defendant from working as an unarmed security guard; Judge Collins did not, however, remove the bar preventing Defendant from obtaining a pistol permit.
The court file does not contain a copy of Defendant's application to Judge Collins. Therefore, this Court does not know the extent of the original relief requested by Defendant.
Defendant now requests that this Court enlarge the relief provided in the CRDs to eliminate the automatic bar preventing him from seeking to obtain a pistol permit.
In support of his application, Defendant submitted to the Court an unsworn letter from the Defendant indicating that Defendant recently applied for a gun permit in Bridgeport, Connecticut, in connection with his pursuit of a career as an armed security guard, and that he was informed by the Bridgeport Board of Firearms Permit Examiners that they would be willing to grant him a permit if he received a pardon from New York State. Defendant also attached copies of correspondence, dated April 1, 2012, from Defendant to New York State Governor Andrew M. Cuomo seeking a pardon and requesting that Defendant's “past record ... be expunge[d].” Defendant also provided a copy of a response letter he contends that he received from Donald D. Fries, Director of the Executive Clemency Bureau, dated April 10, 2012.
II. RELEVANT LAW
Pursuant to Article 23 of the Correction Law, a court may issue a CRD to an eligible offender
for a conviction that occurred in that court, if the court either (a) imposed a revocable sentence or (b) imposed a sentence other than one executed by commitment to an institution under the jurisdiction of the state Department of Corrections and Community Supervision (hereinafter “DOCCS”). Correction Law § 702(1) and (3).
“Eligible offender” is defined a “a person who has been convicted of a crime or of an offense, but who has not been convicted more than once of a felony.” Correction Law § 700(a).
A CRD does not eradicate or expunge the underlying conviction. Correction Law § 706 (CRD is not a pardon); Able Cycle Engines v. Allstate Insurance Co., 84 A.D.2d 140, 143–44, 445 N.Y.S.2d 469 (2d Dept.1981), app. denied,57 N.Y.2d 607, 455 N.Y.S.2d 1027, 442 N.E.2d 69 (1982). However, a CRD may relieve the convicted person of certain civil liabilities which may have resulted from his or her conviction.
In determining whether to grant a CRD, the application submitted to the Court must be verified and, if so, the Court must consider whether the applicant is eligible for such relief. Correction Law § 702(1), (2), and (3). If the applicant is eligible for a CRD, then the Court must determine if the relief to be granted by the certificate is consistent with the rehabilitation of such eligible offender and with the public interest. Correction Law § 702(2).
Once issued, the relief provided in a CRD may be modified or enlarged by the court that has issued the CRD.
Correction Law § 702(5). Upon submission of a verified application, the court may enlarge the relief provided by a CRD if the relief to be granted meets the same criteria as for the grant of the original CRD. Correction Law § 702(3) and (5).
In this case, the application to enlarge the relief provided in the CRD cannot be made to Judge Collins, as he has retired. In general, where a judge has retired since a prior order was issued, it is appropriate for a motion seeking to modify that order to be assigned to a new judge of the same court. See e.g., Albers v. Luizzi Enterprises, Inc., 127 Misc.2d 190, 191, 485 N.Y.S.2d 710 (Sup.Ct., Schenectady Co.1985)(motion affecting prior order); People v. Skinner, 154 A.D.2d 216, 217, 552 N.Y.S.2d 932 (1st Dept.1990)(CPL 440 motion), app. denied,76 N.Y.2d 796, 559 N.Y.S.2d 1001, 559 N.E.2d 695 (1990). Accordingly, the Court finds that it is appropriate that it determine Defendant's application for enlarged relief in the CRD.
In New York, conviction of a felony ordinarily acts as an automatic bar to receiving a pistol permit. Penal Law § 400.00(1). However, the Court's approval of a CRD which provides relief from all disabilities, or which specifically provides that a convict may receive a pistol permit, may remove the automatic bar of a felony conviction. Hecht v. Bivona, 306 A.D.2d 410, 761 N.Y.S.2d 485 (2d Dept.2003)(CRD relieving defendant of “all disabilities” removed automatic bar to application for, and issuance of, pistol permit); Matter of Hines v. Kelly, 222 A.D.2d 277, 278, 635 N.Y.S.2d 31 (1st Dept.1995)(while defendant's CRD might have removed bar to granting of a pistol license, Police Commissioner's denial of license was within statutory discretion), app. denied,87 N.Y.2d 810, 642 N.Y.S.2d 859, 665 N.E.2d 661 (1996); see also1998 N.Y. Op. Att'y Gen. 23; 1998 N.Y. AG LEXIS 41;but see In the Matter of Alarie, 168 Misc.2d 329, 330, 643 N.Y.S.2d 926 (Sup.Ct., Montgomery Co.1996)(CRD cannot remove the statutory bar to apply for a license to apply for a NYS pistol license).
III. CONCLUSIONS OF LAW
For the reasons set forth below, Defendant's application to enlarge the relief provided in the CRDs he obtained one year ago is denied.
As an initial matter, the Court notes that, although Defendant has two convictions, he appears to meet the eligibility criteria necessary to receive a CRD. Correction Law § 702(1). According to the court file, neither of Defendant's convictions imposed a sentence for which Defendant was committed to an institution under the jurisdiction of DOCCS.
However, Defendant's application must be denied as Defendant has failed to submit a verified application, as required by statute. Defendant's submission of unsworn correspondence does not meet the requirements of the statute. Correction Law § 702(3) and (5).
Even if Defendant's application had been verified, however, it would still be denied. Defendant has not shown that there has been any change in circumstances to warrant disturbing the determination made by Judge Collins just one year ago. Defendant has provided no information to substantiate that there has been any change in his status or circumstance to warrant enlarging the relief provided in the CRDs granted by Judge Collins.
Indeed, Defendant's contention that such relief is necessary for him to obtain a gun permit in Connecticut is belied by his own contention that the Bridgeport Board of Firearms Permit Examiners requires him to receive a pardon [ emphasis added ] from the State of New York in order to obtain a pistol permit.
A CRD is not a pardon, and does not expunge the prior convictions. Correction Law § 706; Able Cycle Engines v. Allstate Insurance Co. ., 84 A.D.2d at 143–44, 445 N.Y.S.2d 469. Therefore, it appears that any such CRD would not satisfy the requirements that Defendant contends have been set forth by the Bridgeport Board of Firearms Permit Examiners to enable Defendant to obtain such permit.
Finally, the Court finds that Defendant's possession of a gun is not consistent with his rehabilitation or in the public interest. Correction Law § 702(2) and (5).
According to Defendant, despite his conviction, he has gained steady employment, manages his own business, and recently purchased his own home without the benefit of a firearms permit. Accordingly, the Court sees no reason to lift the bar to obtaining such permit. See People v. Sande, 26 Misc.3d 1224A (Sup.Ct., Kings Co.2010) (defendant's apparent rehabilitation and rebuilding of his life without a firearms permit supports court's decision to deny CRD removing bar to pistol ownership).
For the reasons set forth herein, Defendant's application to enlarge the relief provided in the CRDs granted to Defendant by Judge Collins is denied.
This constitutes the Decision and Order of this Court.