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Marino v. Hubert

Supreme Court, Appellate Division, Second Department, New York.
May 14, 2014
985 N.Y.S.2d 706 (N.Y. App. Div. 2014)

Opinion

2014-05-14

In the Matter of Jason MARINO, petitioner, v. James W. HUBERT, etc., respondent.

The Bellantoni Law Firm, LLP, Scarsdale, N.Y. (Amy L. Bellantoni of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael A. Berg of counsel), for respondent.



The Bellantoni Law Firm, LLP, Scarsdale, N.Y. (Amy L. Bellantoni of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael A. Berg of counsel), for respondent.
PETER B. SKELOS, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent, James W. Hubert, a Judge of the County Court, Westchester County, entered January 3, 2013, which denied the petitioner's application for a pistol license.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner sought a “carry concealed” pistol license. This type of license is defined by Penal Law § 400.00(2)(f) as a “license for a pistol or revolver ... issued to ... have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.” “A [pistol] licensing officer has broad discretion in determining whether ‘proper cause’ exists for the issuance of a ‘carry concealed’ license” (Matter of Sarro v. Smith, 8 A.D.3d 395, 395, 777 N.Y.S.2d 710, quoting Penal Law § 400.00[2][f]; see Matter of Santagata v. Currier–Woods, 84 A.D.3d 821, 921 N.Y.S.2d 868). A licensing officer's determination regarding proper cause will not be disturbed unless it is arbitrary and capricious ( see Matter of O'Brien v. Keegan, 87 N.Y.2d 436, 440, 639 N.Y.S.2d 1004, 663 N.E.2d 316;Matter of Kachalsky v. Cacace, 65 A.D.3d 1045, 1045, 884 N.Y.S.2d 877;Matter of Bando v. Sullivan, 290 A.D.2d 691, 692, 735 N.Y.S.2d 660).

Here, as the respondent correctly contends, the petitioner never asserted or made any showing that proper cause exists for the issuance to him of a carry concealed license. Contrary to the petitioner's claim that he did not apply for such a license, the record shows that he checked the appropriate box on the application form to indicate that he sought a carry concealed license. Thus, the respondent's determination that the petitioner failed to demonstrate any proper cause for the issuance of a carry concealed license was not arbitrary and capricious, and should not be disturbed ( see Matter of Kachalsky v. Cacace, 65 A.D.3d at 1045, 884 N.Y.S.2d 877;Matter of Hecht v. Bivona, 11 A.D.3d 614, 614, 782 N.Y.S.2d 666). Since the petitioner did not apply for a “residence only” license, there is no merit to his contention that the respondent's failure to grant him such a license was arbitrary and capricious.

Moreover, Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be a person “concerning whom no good cause exists for the denial of the license” (Penal Law former § 400.00[1][g], now 400.00[1][n] ). “A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause” (Matter of Orgel v. DiFiore, 303 A.D.2d 758, 758, 756 N.Y.S.2d 870;see Matter of Velez v. DiBella, 77 A.D.3d 670, 670, 909 N.Y.S.2d 83;Matter of Gonzalez v. Lawrence, 36 A.D.3d 807, 808, 831 N.Y.S.2d 180; Penal Law former § 400.00[1][g], now 400.00[1] [n] ). Contrary to the petitioner's contention, the respondent's determination that good cause existed to deny his application based upon the petitioner's criminal history, the unexplained “uncharacterized” discharge of the petitioner from the armed services, and the petitioner's admitted history of mental illness, was also not arbitrary and capricious, and should not be disturbed ( see Matter of Gonzalez v. Lawrence, 36 A.D.3d at 808, 831 N.Y.S.2d 180;Matter of Peric v. New York City Police Dept., License Div., Rifle/Shotgun Section, 5 A.D.3d 142, 772 N.Y.S.2d 507).

We reject the petitioner's implicit claim that the respondent failed to comply with “the requirement set forth in Penal Law § 400.00(4–a) that he state in writing the specific reasons for his denial of the petitioner's application for a pistol permit” (Matter of Pacis v. Nelson, 224 A.D.2d 698, 698, 639 N.Y.S.2d 717;seePenal Law § 400.00[4–a] ). The respondent, in his decision and order, more than adequately set forth his reasons for denying the petitioner's application. As such, the respondent's written decision denying the application demonstrates that he fully complied with the requirements of Penal Law § 400.00(4–a). Thus, contrary to the petitioner's contention, he was provided with an adequate explanation of the reasons for the denial of his application that allowed him to intelligently reargue the grounds for his application before the respondent, which the petitioner elected not to do ( see e.g. Matter of Velez v. DiBella, 77 A.D.3d 670, 909 N.Y.S.2d 83;Matter of Blank v. Adler, 74 A.D.3d 802, 903 N.Y.S.2d 449).

There is no merit to the petitioner's contention that the respondent deprived him of an opportunity to be heard before denying the application. An applicant for a pistol license is not automatically entitled to a hearing ( see e.g. Matter of Graefe v. County of Westchester, 85 A.D.3d 789, 924 N.Y.S.2d 833;Matter of Bando v. Sullivan, 290 A.D.2d 691, 692–693, 735 N.Y.S.2d 660). The record demonstrates that the petitioner was not entitled to a formal evidentiary hearing, and that he was nonetheless afforded ample opportunity to submit evidence in support of his application ( see Matter of Bando v. Sullivan, 290 A.D.2d at 692–693, 735 N.Y.S.2d 660).


Summaries of

Marino v. Hubert

Supreme Court, Appellate Division, Second Department, New York.
May 14, 2014
985 N.Y.S.2d 706 (N.Y. App. Div. 2014)
Case details for

Marino v. Hubert

Case Details

Full title:In the Matter of Jason MARINO, petitioner, v. James W. HUBERT, etc.…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: May 14, 2014

Citations

985 N.Y.S.2d 706 (N.Y. App. Div. 2014)
117 A.D.3d 829
2014 N.Y. Slip Op. 3516

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