Opinion
Index No. 103067/2010
01-30-2012
In the Matter of the Application of NEHEMIA ZEDEK, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules v. RAYMOND KELLY, Police Commissioner of the City of New York, and his successors in office; NEW YORK CITY POLICE DEPARTMENT; THOMAS M. PRASSO, Director, License Division of the New York City Police Department; LICENSE DIVISION OF THE CITY OF NEW YORK; and CITY OF NEW YORK, Respondents
For Petitioner Michael T. Hopkins Esq. Hopkins & Kopilow For Respondents Ji Kim, Special Assistant Corporation Counsel
DECISION AND ORDER
APPEARANCES:
For Petitioner
Michael T. Hopkins Esq.
Hopkins & Kopilow
For Respondents
Ji Kim, Special Assistant Corporation Counsel
LUCY BILLINGS, J.S.C.:
Petitioner seeks to annul the Final Agency Determination November 10, 2009, by respondent Prasso, Director of the New York City Police Department License Division, which revoked petitioner's handgun license, and to restore his license. C.P.L.R. § 7803(3) and (4). After oral argument and for the reasons explained below, the court grants the petition to the extent of annulling the November 2009 Final Agency Determination and remands the proceeding to respondents for a new hearing consistent with this decision. C.P.L.R. §§ 7803(3), 7806.
I. UNCONTESTED FACTS
Petitioner is a psychiatrist, licensed to practice psychiatry and to prescribe medication, who conducts his practice in an office at his Queens County residence. Before the suspension and revocation challenged in this proceeding, he possessed a handgun license for those premises since at least 2001.
On September 6, 2006, petitioner was arrested on charges of selling prescriptions for controlled substances. He did not immediately report this arrest to respondents' License Division as required by 38 R.C.N.Y. §§ 5-22(c) (1) and 5-30(c) (1) governing handgun licensees, but subsequently complied with the License Division's direction to surrender his firearm after he received its notice dated September 28, 2006, that his handgun license was suspended. On October 3, 2006, petitioner also complied with the direction to send the License Division a sworn letter detailing the circumstances of his arrest. Over a year later, on October 26, 2007, the Licensing Division revoked petitioner's handgun license. 38 R.C.N.Y. § 5-21.
On January 15, 2009, petitioner informed the Licensing Division that he had been acquitted of all charges in the criminal action and requested an administrative hearing to review the revocation of his handgun license. On April 30, 2009, respondents' Hearing Officer held a hearing recorded by a tape recorder. Petitioner claims numerous inaccuracies in the transcript respondents produced of the recorded hearing. Respondents deny that the transcript is inaccurate. Although hearing the original tape recording and determining its accurate contents might bear on whether substantial evidence supports respondents' final decision, C.P.L.R. § 7803(4), and this court has not been afforded an opportunity to hear the recording, the differences between the parties' versions of its contents do not bear on this court's decision, which is based on other grounds. C.P.L.R. § 7803 (3) .
In a report dated November 5, 2009, the Hearing Officer recommended revocation of petitioner's license. On November 10, 2009, respondent Prasso adopted the Hearing Officer's recommendation in the Final Agency Determination.
II. CONSTITUTIONAL ISSUES
McDonald v. City of Chicago. 561 U.S. ___, 130 S. Ct. 3020, 3026 (2010), applied to the states the right of individuals to keep and bear arms under the Second Amendment to the United States Constitution, recognized in District of Columbia v. Heller. 554 U.S. 570, 592 (2008). Unlike the local laws addressed in Heller and McDonald, however, the New York State and City statutes and regulations governing petitioner's possession of a handgun are only licensing requirements, not an outright or effective ban on handguns or even a restriction severe enough to infringe on Second Amendment rights. N.Y. Penal Law § 400.00; N.Y.C. Admin. Code § 10-131 (a) (1) ; 38 R.C.N.Y. §§ 5-22, 5-30; McDonald v. City of Chicago, 130 S. Ct. at 3026; People v. Hughes, 83 A.D.3d 960, 961 (2d Dep't 2011); People v. Perkins, 62 A.D.3d 1160, 1161 (3d Dep't 2009); People v. Foster, 30 Misc. 3d 596, 599-600 (Crim. Ct. Kings Co. 2010) . These requirements bar only possession of unlicensed handguns. Reasonable licensing of and other regulatory restrictions on possession of handguns are constitutionally permissible. District of Columbia v. Heller, 554 U.S. at 626-27; People v. Perkins, 62 A.D.3d at 1161; People v. Nivar. 30 Misc. 3d 952, 957-58, 961-62 (Sup. Ct. Bronx Co. 2011); People v. Foster, 30 Misc. 3d at 599-600.
Respondents revoked petitioner's license in part based on the statutory and regulatory requirements restricting handgun licenses to persons "of good moral character," finding that petitioner failed to meet that standard. N.Y. Penal Law § 400.00(1); 38 R.C.N.Y. § 5-02(a). A standard of "good character" or "good moral character" may be unconstitutionally vague, depending on how it may be interpreted and how it is applied. E.g., Coates v. Cincinnati, 402 U.S. 611, 614 (1971); 164th Bronx Parking, LLC v. City of New York, 20 Misc. 3d 796, 803-804 (Sup. Ct. Bronx Co. 2008). Legislative enactments are presumed constitutional, however, and therefore must be interpreted, as far as possible, to preserve their constitutionality. People v. Stuart, 100 N.Y.2d 411, 422 (2003); LaValle v. Hayden, 98 N.Y.2d 155, 161 (2002); Matter of Travis S.. 96 N.Y.2d 818, 820 (2001); Amazon.com, LLC v. New York State Dept. of Taxation & Fin., 81 A.D.3d 183, 194 (1st Dep't 2010). Where a "good moral character" standard is overbroad in its application, the standard may be interpreted and implemented with a narrower scope according to the regulated conditions to which it applies, rather than held unconstitutional. Konigsberg v. State Bar of Cal., 353 U.S. 252, 264, 273-74 (1957); Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc. 3d at 806. The "good moral character" standard under Penal Law § 400.00(1) and 38 R.C.N.Y. § 5-02(a) thus is interpreted as "moral character and fitness to possess a firearm," Kozhar v. Kelly, 62 A.D.3d 540 (1st Dep't 2009), and repeatedly applied in the firearm licensing context without questioning the requirement's constitutionality. Rucker v. NYC/NYPD License Div., 78 A.D.3d 535 (1st Dep't 2010); Rombom v. Kelly, 73 A.D.3d 508 (1st Dep't 2010); Kozhar v. Kelly, 62 A.D.3d 540; Cohen v. Kelly, 30 A.D.3d 170 (1st Dep't 2006); Robertson v. Kerik, 300 A.D.2d 90 (1st Dep't 2002).
Rules "articulating objective standards for respondents' determinations" based on lack of good moral character also set a "framework for interpreting and applying" the standard with constitutional precision. 164th Bronx Parking, LLC v, City of New York. 20 Misc. 3d at 806. See Nicholas v. Kahn, 47 N.Y.2d at 31, 34; 164th Bronx Parking, LLC v. City of New York, 20 Misc. 3d at 812-13. Violations of respondents' rules, as cited above, delineating licensees' specific obligations, thus provide a constitutional standard as well as substantial evidence supporting and demonstrating lack of "good moral character." Cohen v. Kelly, 30 A.D.3d 170. See Rucker v. NYC/NYPD LicenseDi., 78 A,D.3d 535; Papaioannou v. Kelly, 14 A.D.3d 459, 460 (1st Dep't 2005); Cerciello v. Kelly, 8 A.D.3d 128, 129 (1st Dep't 2004). Here, respondents revoked petitioner's license based not solely on a lack of "good moral character," but based also on petitioner's violation of his more specific obligation to report his arrest. 38 R.C.N.Y. §§ 5-21, 5-22 (c) (1) , 5-30(c)(l). See V. Pet. Ex. 6, at 1, 6; V. Answer Ex. M, at 1, 6. III. C.P.L.R. § 7803
The court may vacate a determination after an administrative hearing if that "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." C.P.L.R. § 7803(3). This court may not rule on whether a determination after a hearing was unsupported by substantial evidence, but must transfer that question to the Appellate Division. C.P.L.R. §§ 7803(4), 7804(g). Before transferring the proceeding, however, this court must rule out the other grounds for vacating or remanding the administrative decision. C.P.L.R. §§ 7803(3), 7804(g); Earl v. Turner, 303 A.D.2d 282 (1st Dep't 2003) . The record here sets forth independent grounds to vacate respondents' determination after the hearing held April 30, 2009.
A. Lack of Notice of the Charges
First, respondents failed to provide petitioner advance notice of a principal basis on which they upheld the revocation of his license, as required by 38 R.C.N.Y. § 5-30 (e) and (h) . See Block v. Ambach, 73 N.Y.2d 323, 333 (1989); Wolfe v. Kelly, 79 ArD.3d 406, 410 (1st Dep't 2010); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d 470, 472 (1st Dep't 2009); Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d 1104, 1106 (4th Dep't 1997). "Due process requires that a licensee be given notice of the charges and evidence against him and an opportunity to appear to rebut the charges," Strom v. Erie County Pistol Permit Dept., 6 A.D.3d 1110, 1111 (4th Dep't 2004); to prepare adequately to defend the charges; and "to submit proof in response." Pacicca v. Allesandro, 19 A.D.3d 500, 501 (2d Dep't 2005) . See Wolfe v. Kelly, 79 A.D.3d at 410; Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 472-73; Gordon y. LaCava, 203 A.D.2d 290, 291 (2d Dep't 1994); Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d 996, 997 (3d Dep't 1992). In particular:
In the context of an administrative hearing, the charges need to be "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense" ....N.Y.2d at 333. Even if wrongdoing is shown by the evidence, if that wrongdoing was not charged, it may not furnish a reason for terminating petitioner's license. Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 472; Rice v. Hilton Cent. School Dist. Bd. of Educ, 245 A.D.2d at 1106.
Wolfe v. Kelly, 79 A.D.3d at 410 (quoting Block v. Ambach, 73
Respondents' Notice of Determination dated October 26, 2007, informed petitioner that his handgun license was revoked "based upon the facts and circumstances surrounding your arrest on September 6, 2007 that cast grave doubt upon your ability to maintain the requisite good character for possession of a firearm license." V. Pet. Ex. 2; V. Answer Ex. E. This notice makes no reasonably specific reference to petitioner's failure to report his arrest, so as to apprise him reasonably and fairly that respondents premised their revocation on this omission, rather than his encounters with respondents' detective that led to the charges of selling prescriptions for controlled substances. 38 R.C.N.Y. § 5-30(e) and (h); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 472; Benson v. Board of Educ . of Washingtonville Cent. School Dist.. 183 A.D.2d at 997. This interpretation is particularly reasonable in light of respondents' prefatory notice to petitioner dated September 28, 2006, informing him that his license was suspended, and referring only to the "arrest that occurred on 09/06/06" itself, not to any subsequent failure to report the arrest. V. Pet. Ex. 1; V. Answer Ex. B.
While "the facts and circumstances surrounding your arrest on September 6, 2007," conceivably might encompass the subsequent failure to report, it is then difficult to conceive that that omission "cast grave doubt upon your ability to maintain the requisite good character for possession of a firearm license." V. Pet. Ex. 2; V. Answer Ex. E. Even if a notice is susceptible of more than one interpretation, reasonable notice of charges must not relegate the licensee to guesswork. Block v. Ambach, 73 N.Y.2d at 333; Wolfe v. Kelly, 79 A.D.3d at 410-11; Mayo v.Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 473.
Whether or not respondents disclosed reliance on this failure to petitioner, the record does not disclose that, before the Hearing Officer's report, respondents even considered petitioner's failure to report his arrest a basis for revoking his license. E.g., New York State Ch., Inc., Associated Gen. Contrs. of Am. v. New York State Thruway Auth., 88 N.Y.2d 56, 75 (1996); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 471, 475; Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d at 997. If not charged and presented by respondents, then it was not the Hearing Officer's function as an impartial adjudicator to invoke an additional basis for the revocation. 38 R.C.N.Y. § 15-26(a) (1); 1616 Second Ave. Rest, v. New York State Liq. Auth., 75 N.Y.2d 156, 161 (1990). See V. Pet. Ex. 6, at 1, 6; V. Answer Ex. M, at 1, 6; Earl v. Turner, 303 A.D.2d 282; Artists & Craftsmen Bldrs. v. Shapiro, 232 A.D.2d 265, 266 (1st Dep't 1996). Yet, even if petitioner's failure to report his arrest was an additional undisclosed basis, and even though it was not respondents' only basis for their final determination revoking his license, petitioner was entitled to notice of and an opportunity to prepare fully to address all the bases relied on for the agency's action at his hearing. 38 R.C.N.Y. § 5-30(e) and (h); Block v. Ambach, 73 N.Y.2d at 333; Wolfe v. Kelly, 79 A.D.3d at 410; Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d at 997.
B. Failure to Obtain a Complete Record
At the hearing, petitioner was entitled to an opportunity to present evidence in his defense. 38 R.C.N.Y. § 15-25(a) (1); Pacicca v. Allesandro, 19 A.D.3d at 501. Toward that end, the Hearing Officer bore a duty not only to hear evidence that the parties presented, but also "to inquire fully . . . and to obtain a full and complete record." 38 R.C.N.Y. § 15-26(1)(a). In fact she specifically acknowledged her duty to make her own inquiries and not merely sit by as a passive audience, when she instructed petitioner's attorney that, "if you don't ask him [petitioner] what I want to hear, then I will do the same." V. Pet. Ex. 5, at 8; V. Answer Ex. L, at 8.
Nevertheless, the Hearing Officer further departed from lawful procedures when she failed to carry out her duty to inquire fully into the circumstances precipitating the revocation and to obtain a complete record. Earl v. Turner, 303 A.D.2d 282; Feliz v. Wang, 285 A.D.2d 426, 427 (1st Dep't 2001); Hakeem v. Coombe, 233 A.D.2d 805, 806 (3d Dep't 1996). Instead, on the sole stated ground that petitioner did not present corroborating witnesses, the Hearing Officer found incredible petitioner's claim that he could not produce his contemporaneous medical records because the police had seized them. V. Pet. Ex. 6, at 5; V. Answer Ex. M, at 5. The Hearing Officer not only ignored her own duty to fill that gap in the record, by requesting evidence of the records' seizure from respondents and, if in their custody, the documents themselves, but affirmatively rebuffed petitioner's offer to present a corroborating witness to the seizure. V. Pet. Ex. 5, at 46; V. Answer Ex. L, at 46. The Hearing Officer thus failed to follow lawful procedures both by disregarding her duty to inquire fully and obtain a complete record and by denying petitioner an opportunity to present a witness or other evidence in his defense. C.P.L.R. § 7803(3); 38 R.C.N.Y. §§ 15-25(a) (1) , 15-26 (a) (1) .
In contrast, the Hearing Officer found respondents' failure to produce two witnesses, whom petitioner testified had impersonated patients to whom he provided prescriptions, only supported respondents' claim that petitioner wrote the prescriptions to unknown persons without examining anyone. This assumption was valid, however, only if petitioner was guilty of that charge. Wolfe v. Kelly, 79 A.D.3d at 410. She never conside red that respondents lacked any incentive to produce such impersonators or that it was impossible for petitioner to produce them, since their identifying information concededly was impersonated. Nor did the unexplained failure of the recording device worn by respondents' undercover detective, either to record or to transmit to his investigative team each of his four sessions with petitioner, impair the detective's version of events. Again, respondents' loss and nonproduction of corroborating evidence, without exploration by the Hearing Officer, only denied petitioner a means of rebuttal. Id. In sum, the Hearing Officer's reliance on the absence of corroborating evidence as her basis to discredit petitioner and credit the detective, when that evidence remained in respondents' control, allowed their actions to frustrate petitioner's defense. Id. at 411.
C. Arbitrary or Biased Consideration of Unauthenticated and Unreliable Evidence
Finally, even though the Hearing Officer was not bound by the rules of evidence applicable in a judicial proceeding, 38 R.C.N.Y. § 15-25(a)(2), the record discloses no evidence establishing a chain of custody or other foundation for the identity and authenticity of vials of pills that respondents presented as unused and hence medically unnecessary controlled substances that petitioner prescribed. People v. Joyner, 240 A.D.2d 282, 285-86 (1st Dep't 1997); People v. Rutter, 202 A.D.2d 123, 135-36 (1st Dep't 1994); People v. Rivera, 184 A.D.2d 153, 156-57 (1st Dep't 1993); People v. Layou, 71 A.D.3d 1382, 1383 (4th Dep't 2010). Respondents' detective who testified did not offer any details as to when, where, or how he collected the vials, their contents when collected, or where and how they were kept until produced at the hearing. People v. Joyner, 240 A.D.2d at 285-86; People v. Layou, 71 A.D.3d at 1383; People v. Roberts, 66 A.D.3d 1135, 1136 (3d Dep't 2009). See American Tr. Ins. Co. v. Wason, 50 A.D.3d 609 (1st Dep't 2008); Matter of Perry B., 309 A.D.2d 710 (1st Dep't 2003); People v. Harris, 29 A.D.3d 1027, 1028 (3d Dep't 2006); People v. Beverly, 5 A.D.3d 862, 864 (3d Dep't 2004) . The Hearing Officer conducted no inquiry to determine, for example, how the detective impersonated four differently named patients in filling the prescriptions; having given them to the pharmacy, whether and how he retained them; or whether "the integrity of the evidence was intact" from the point of collection. Dhillon v. Bryant Assoc., 26 A.D.3d 155, 156 (1st Dep't 2006). She thus obtained no reasonable assurances that the vials and their contents produced were what was collected and remained in an unaltered condition. People v. Joyner, 240 A.D.2d at 285-86; People v. Layou, 71 A.D.3d at 1383; People v. Roberts, 66 A.D.3d at, 1136. See American Tr. Ins. Co. v. Wason, 50 A.D.3d 609; Matter of Perry B., 309 A.D.2d 710; People v. Beverly, 5 A.D.3d at 864; People v. Evans, 210 A.D.2d 501, 502 (2d Dep't 1994).
Without reaching the question whether these vials, if reliably authentic, were relevant and would contribute to substantial evidence supporting respondents' determination, and looking simply at the Hearing Officer's evaluation, the Hearing Officer considered "viewing the 7 vials filled with the prescribed controlled substances . . . dramatically conclusive." V. Pet. Ex. 6, at 6; V. Answer, Ex. M, at 6. Therefore her report's lack of foundation for crediting the detective's conclusory and incompetent attempt to identify the vials as containing unused medications prescribed for a person never diagnosed with a medical need for them or never even examined by petitioner, over petitioner's more detailed and competent personal and professional knowledge, is equally dispositive. V. Pet. Ex. 6, at 4; V. Answer, Ex. M, at 4. See People v. Joyner, 240 A.D.2d at 287. The Hearing Officer's comment that the detective had "no reason ... to 'frame' Dr. Zedek," V. Pet. Ex. 6, at 5; V. Answer, Ex. M, at 5, provides no support for considering the vials and only reflects, in the absence of any such support, that her reliance on this evidence was either biased toward respondents or, at best, completely arbitrary. 1616 Second Ave. Rest, v. New York State Liq. Auth., 75 N.Y.2d at 161-62, 164. See 38 R.C.N.Y. § 15-26(a)(1); Earl v. Turner, 303 A.D.2d at 283; Artists & Craftsmen Bldrs. v. Shapiro, 232 A.D.2d at 266. In fact, the detective readily admitted that his entire undercover operation was designed specifically to capture petitioner in incriminating circumstances.
IV. CONCLUSION
For the foregoing reasons, the court grants the petition to the extent of annulling the Final Agency Determination November 10, 2009, by respondent Prasso, and remands the proceeding to respondents for a new hearing based on their notices to petitioner preceding the original hearing April 30, 2009. Wolfe v. Kelly, 79 A.D.3d at 411; Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d at 475; Rice v. Hilton Cent. School Dist. Bd. of Educ., 245 A.D.2d at 1106; Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d at 997. Before proceeding with a new hearing, however, given the length of time petitioner's license already has been suspended or revoked, respondents are to consider modifying their penalty to a suspension covering September 2006 to the present. Wolfe v. Kelly, 79 A.D.3d at 411; Rice v. Hilton Cent. School Dist. Bd. ofBduc., 245 A.D.2d at 1106; Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d at 997.
In the event of a hearing, both respondents' administrative review and the court's judicial review reguire a fully accurate transcript of the hearing record. Although the Hearing Officer is required only to preserve an audio recording of the hearing, 38 R.C.N.Y. § 15-27(d), respondents must exercise care in preparing a fully accurate transcript if one is requested and, toward that end, are to consider a more accurate means of recording the hearing. id.
The court denies the remaining relief sought in the petition. This decision constitutes the court's order and judgment on the petition. C.P.L.R. §§ 7803(3), 7806.
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LUCY BILLINGS, J.S.C.