Opinion
INDEX NUMBER: 260615/2019
02-26-2020
RUBEN REMBERT, Petitioner, v. NYPD LICENSE DIVISION, Respondent.
Present: HON. ALISON Y. TUITT The following papers numbered 1 - 2, Read on this Article 78 Petition
On Calendar of 10/21/19
| Notice of Petition-Exhibits, Affidavit | 1 |
|---|---|
| Verified Answer and Memorandum of Law | 2 |
| Reply Affirmation | 3 |
Upon the foregoing papers, the Petition pursuant to Article 78 of the CPLR is dismissed for the reasons set forth herein.
Petitioner, pro-se, brings the within Article 78 proceeding seeking a judgment annulling the respondent the New York City Police Department, License Division ("License Division") determination denying petitioner's application for a Premises Residence Handgun License ("License Application"). Petitioner applied for a pistol license on March 9, 2018. The application was denied by the License Division by Notice of Disapproval dated February 15, 2019, the License Division disapproved petitioner's License Application. Specifically citing 38 RCNY §5-10 (a) and (h), the Notice of Disapproval provided that in relevant part the License Application had been denied for the following reasons:
| Arrest History | |
|---|---|
| 5/19/1999 | Assault |
| 10/22/1990 | Criminal Sale of a Controlled Substance |
| 7/20/1990 | Grand Larceny |
| Driver History | |
| 9/30/1990 - 9/30/1990 | (4) Driver License Suspensions |
| 5/31/1999 - 8/19/2015 | (7) Moving Violations |
| C-Summons History | |
| (1) Reckless Driving | |
| Domestic Incident History | |
| 1/28/1996 | Harassment |
| Warrant History | |
| 2/18/2000 | Bench Warrant |
On or about February 19, 2019, petitioner submitted a notarized letter appealing the decision, characterizing his arrests as "bogus", emphasizing that all of his arrests occurred when he was "younger" and he has never been convicted of any crimes. Petitioner acknowledged that his driver's license had been suspended, but stated that it resulted from "forget[ting] to pay a fine. He further argued that, with the exception of one "human mistake" involving speeding, his driving record is "impeccable". Petitioner dismissed his other Department of Motor Vehicle's infractions as things he "tried to fight". Petitioner also stated that he "truly forgot" to disclose the Order of Protection for Asia Dinkins that had been issued against him and asserted that the Order of Protection was issued "out of retaliation" after he had filed an Order of Protection against her. No Orders of Protection were identified in the NYPD records. Petitioner did not disclose any Orders of Protection in his License Application. The victim identified in the Harassment Complaint Report discovered by the License Division was Michelle Winter, not Asia Dinkins.
By letter dated April 23, 2019, the License Division notified petitioner that his appeal was denied based on a review of the entire record. It advised that his appeal was denied because of his arrest record, the circumstances for which, though "not current in time", still raised"serious safety concerns about [his] application for a gun license" and were thus "grounds supporting denial of [the] application", the 1996 domestic violence incident in which he was involved and which, "although not current, was violent in nature and raise[d] serious concerns about [his] application" and "moral character" , and his poor driving record which demonstrated "a disregard for the law". Based on the entire administrative record, the License Division stated: "In summation, your multiple arrests, your domestic incident, your traffic violations, and your suspensions, portray a disregard for the law, a lack of the requisite good moral character, and, therefore, constitute good cause for disapproval of your handgun license application. Accordingly, your appeal is denied."
On August 19, 2019, petitioner commenced the instant Article 78 proceeding seeking to reverse, annul and set aside the determination of the License Division to deny petitioner's application for a handgun license and directing the License Division to grant petitioner a handgun license. Petitioner makes the same argument in this Article 78 proceeding that he did to the License Division on his appeal. Petitioner states that he has "good moral character" and is not a "prohibited person". He currently holds pistol permits in Virginia and Florida. He is a New York State licensed Notary and a real estate salesperson. Petitioner states that "all of his arrests" occurred when he was younger and he was never convicted of any crime. He further states that "all Orders of Protection were bogus and unproven, I've never hurt anyone" and "8 traffic tickets don't mean I'm not a person of good moral character, by law." "I've made so (sic) minor mistakes, even forgot about tickets which lead (sic) to suspension. But no DWI or DUI ever. Title 38 says that I shouldn't be classified as prohibited person for traffic violations."
Pursuant to Section 400.00 of the New York State Penal Law ("Penal Law") and Section 10-131 of the New York City Administrative Code ("Administrative Code"), the NYPD has promulgated regulations governing the issuance, revocation and suspension of handgun licenses in the City of New York. These rules are codified in Title 38, Chapter 5 of the Rules the City of New York ("RCNY"). Penal Law § 400.00 provides that, "no license shall be issued except for an applicant... (b) of good moral character... and; (n) concerning whom no good cause exists for the denial of the license." In determining whether the applicant is of good moral character or if good cause exists to deny the application, the License Division may consider the applicant's history for arrests, domestic incidents and driving record. See, 38 RCNY §§5-10(a), (g), (h) & (n).
Article 78 of the CPLR provides for limited judicial review of administrative actions. Administrative agencies enjoy broad discretionary power when making determinations on matters they are empowered to decide. Section 7803 provides in relevant part that "[t]he only questions that may be raised in a proceeding under this article are... (3) whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or (4) whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence."
In deciding whether an agency's determination was supported by substantial evidence or was arbitrary, capricious or an abuse of discretion, the reviewing court is limited to assessing whether the agency had a rational basis for its determination and may overturn the agency's decision only if the record reveals that the agency acted without having a rational basis for its decision. See, Heintz v. Brown, 80 N.Y.2d 998, 1001 (1992) citing Pell v. Board of Education, 34 N.Y.2d 222, 230-31 (1974); Sullivan County Harness Racing Association v. Glasser, 30 N.Y.2d 269, 277 (1972). Substantial evidence is more than "bare surmise, conjecture, speculation or rumor" and "less than a preponderance of the evidence." 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 180 (1978). Substantial evidence consists of "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Id. See, also Consolidated Edison v. New York State DHR, 77 N.Y.2d 411, 417 (1991). Where the Court finds the agency's determination is "supported by facts or reasonable inference that can be drawn from the record and has a rational basis in the law, it must be confirmed." American Telephone and Telegraph Co. v. State Tax Commissioner, 61 N.Y.2d 393, 400 (1984). The arbitrary and capricious test "chiefly 'related to whether a particular action should have been taken or is justified... and whether the administrative action is without foundation in fact." Pell, supra, quoting 1 N.Y. Jur., Administrative Law, §184, p. 609). The reviewing Court does not examine the facts de novo to reach an independent determination. Marsh v. Hanley, 50 A.D.2d 687. Furthermore, a Court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary, unreasonable and an abuse of discretion. Pell, supra. The Court must also defer to the administrative fact finder's assessment of the evidence and the credibility of the witnesses. Lindenmann v. American Horse Shows Association, 222 A.D.2d 248, 250 (1st Dept. 1995) citing Berenhaus v. Ward, 70 N.Y.2d 436, 443 (1987).
In the instant matter, the License Division's Final Determination denying petitioner's application for a Premises Residence Handgun License was reasonable and rational, and not arbitrary and capricious. Petitioner's negative driving history, consisting of seven moving violations, four driver's license suspensions, a reckless driving summons, and a designation as a scofflaw by the Department of Motor Vehicles, as well as history of arrests, and a domestic incident, collectively comprise a rational and reasonable basis to determine that petitioner lacked the requisite good moral character, or that there was good cause to deny petitioner's License Application. The Commissioner of the NYPD is vested with broad discretion to regulate the possession of firearms within the City of New York. See, Matter of Campbell v. Kelly, 924 N.Y.S.2d 269 (1st Dept. 2011); Servedio v. Bratton, 702 N.Y.S.2d 264 (1st Dept. 2000). The possession of a handgun is a privilege, not a right, that is subject to the broad discretion of the Commissioner of the NYPD. Matter of Papaioannou v. Kelly, 788 N.Y.S.2d 378 (1st Dept. 2005); Sewell v. City of New York, 583 N.Y.S.2d 255, lv. denied 80 N.Y.2d 756 (1992).
Since a court may overturn an administrative determination denying a handgun license only if the record reveals no rational basis for it, and may not substitute its own judgment for that of the agency, the instant petition must be denied and dismissed. See, Tolliver v. Kelly, 837 N.Y.S.2d 128 (1st Dept. 2007). Here, the administrative determination was not arbitrary and capricious or an abuse of discretion. Moreover, there was a rational basis for the License Division's determination. The License Division properly considered petitioner's negative driving history, as well as his history of arrests, and a domestic incident collectively comprise a rational and reasonable basis for the determination.
Accordingly, the petition is denied and dismissed.
This constitutes the decision and Order of this Court. Dated: 2/26/20
/s/ _________
Hon. Alison Y. Tuitt