Opinion
OP 01-02429
June 14, 2002.
Original CPLR article 78 proceeding commenced in this Court on November 27, 2001, seeking to annul the determination of respondent revoking petitioner's pistol permit.
LAW OFFICES OF LEON R. KOZIOL, UTICA (LEON R. KOZIOL OF COUNSEL), FOR PETITIONER.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (EDWARD LINDNER OF COUNSEL), FOR RESPONDENT.
PRESENT: PINE, J.P., HAYES, HURLBUTT, BURNS, AND LAWTON, 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 respondent revoking his pistol permit. We disagree with petitioner that the determination is arbitrary and capricious, an abuse of discretion, and not supported by substantial evidence ( see Matter of Romanoff v. Lange, 281 A.D.2d 551, 551-552; Matter of Porter v. Kelly, 272 A.D.2d 333). The finding of respondent that petitioner misused his firearm in incidents described by the witnesses at the revocation hearing constitutes a sufficient factual basis for the determination. "[T]he exercise of poor judgment in the handling of a weapon is a sufficient ground for revocation of a pistol permit" ( Matter of Brookman v. Dahaher, 234 A.D.2d 615, 616; see Matter of La Grange v. Bruhn, 291 A.D.2d 601, 601-602). "Although conflicting testimony was presented at the hearing, we cannot say that the testimony found credible by [respondent] was incredible as a matter of law" ( Matter of Lloyd v. County of Suffolk Police Dept., 141 A.D.2d 644, 645; see also Matter of Lipton v. Ward, 116 A.D.2d 474, 477; see generally Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444).
Petitioner further contends that he was not apprised of the charges against him and afforded a sufficient opportunity to defend against them. 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 ( see La Grange, 276 A.D.2d 974, 975; Matter of Burke v. Colabella, 113 A.D.2d 794, 795; see also Matter of Demchik v. Hannigan, 182 A.D.2d 1133). Here, petitioner had notice of the charges prior to the hearing and did not request a continuance of the hearing to call additional witnesses. Contrary to the further contention of petitioner, he received a fair hearing before an impartial hearing officer ( see Matter of Lang v. Rozzi, 205 A.D.2d 783, lv denied 84 N.Y.2d 809). Finally, the penalty of revocation of petitioner's pistol license does not "shock the judicial conscience" ( Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554; see Matter of Alfonso v. New York City Police Dept. [License Div.], 283 A.D.2d 188; Matter of Zalmanov v. Bratton, 240 A.D.2d 173, 174).