Opinion
119154/03.
Decided May 18, 2004.
Robert D'Onofrio ("petitioner") filed this Article 78 petition after the New York City Police Department, License Division ("NYPD") revoked his premises residence license and rifle/shotgun permit. Petitioner is a steam fitter for the New York City Police Department. Petitioner was arrested on unrelated sexual abuse charges. These charges were later dismissed as the underlying charges were found to be falsified by his girlfriend's son. During the arrest, policemen took petitioner to his car and requested the keys for a search. While searching the vehicle, they discovered petitioner's .9mm semi-automatic handgun in a locked case in the trunk and a loaded magazine in the glove compartment. Shortly thereafter, the firearms and permits were confiscated and vouchered. Petitioner alerted the NYPD of the arrest and confiscation as required by statute. Petitioner was then notified, by letter, his permits were revoked for failure to safeguard his firearm and because of a violation of the terms and conditions of his premises residence license. At an administrative hearing, petitioner testified he had taken the firearm to work because he was then later going to have it repaired at a shooting range. Petitioner insists that his firearm was safeguarded because it was locked inside of his vehicle and parked inside a secure NYPD parking facility. However, the license restricts possession to his residence or to and from an authorized range, in a locked container with ammunition held separately. The hearing officer found petitioner violated a material restriction of the license and recommended both licenses be revoked. The agency's final determination, issued by Director Thomas M. Prasso, provided for the revocation of petitioner's residence license and rifle/shotgun permit. Petitioner then initiated this Article 78 proceeding.
"The State has a substantial and legitimate interest in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument or who have exercised poor judgment in the handling of a weapon". La Grange v. Bruhn, 291 A.D.2d 601, 738 N.Y.S.2d 99 (3d Dep't 2002). CPLR 7803 limits the scope of review, in any court, to questions of law and the sanction imposed. Pell v. Bd. of Educ., et. al., 34 N.Y.2d 222 (1974); see also Alfonso v. New York City Police Department, 283 A.D.2d 188, 726 N.Y.S.2d 9 (1st Dep't 2001). Section 7803 of the CPLR provides that the only questions that may be raised under this article are:
(1) Whether the body or officer failed to perform a duty enjoined upon it by law; or
(2) Whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
(3) Whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or was 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.
"Neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact." Pell, 34 N.Y.2d at 230. Court interference is only justified if there is no rational basis or the action is arbitrary and capricious. Id. at 231. Review of a sanction is limited to if the determination shocks the conscience of the court. Alfonso, 283 A.D.2d at 188. In addition, the review is limited to the record set before the agency at the time of the determination. Levine v. N.Y.S. Liquor Authority, 23 N.Y.2d 863 (1969).
The primary question is whether the agency acted within the scope of its powers. Pell, 34 N.Y.2d. at 238. "Extraordinary power has been delegated to respondent by statute in these matters". Trimis v. New York City Police Department, 300 A.D.2d 162, 752 N.Y.S.2d 47 (1st Dep't 2002). After the agency makes a determination, the court can determine if the record was sufficient thereby rendering the agency's decision not arbitrary or capricious. Levine, 23 N.Y.2d. at 864. "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Heintz v. Brown, 80 N.Y.2d 998 (1992) accord Alster v. Bratton, 225 A.D.2d 505, 639 N.Y.S.2d 692 (1st Dep't 1996) (petitioner failed to establish a special need to carry a gun therefore denial of a license was not arbitrary or capricious).
If a petitioner fails to comply with the conditions of his license, the determination of revocation by the agency will be confirmed. Trimis, 752 N.Y.S.2d at 48. Also, a license may be revoked where there is a sufficient predicate based upon the poor judgment of petitioner in the use of his weapon. La Grange, 738 N.Y.S.2d at 100. Moreover, even if arrest charges were dismissed, petitioner has a commendable career or other licenses were not revoked, the agency can still use its discretion to revoke a hand gun license. Nash v. Police Dep't of the City of New York, 271 A.D.2d 384, 708 N.Y.S.2d 61 (1st Dep't 2000). Petitioner claims his clean record should be considered in this proceeding along with the fact his Florida license and Federal gun license have not been revoked. The respondent need not consider such information in considering whether or not to revoke petitioner's gun license.
Petitioner violated a New York statutory requirement which would affect his New York gun licenses. Petitioner's gun licenses may be revoked at any time. Failure to comply with license conditions will result in a revocation of that license. Petitioner was only permitted to carry the hand gun from his place of residence to a shooting range. An eight hour stopover for work is not a de minimus detour. The fact that the parking garage was police protected does not negate the violation. Petitioner violated the statute by having the gun in the garage. As gun licensing is so highly regulated for the protection of the state's citizens', the courts must give deference to the agency's expertise.
Therefore, the court denies petitioner's application and directs the Clerk to enter judgment accordingly.
This shall constitute the order and judgment of the court.