Opinion
2012-01-19
In the Matter of Eric J. KERR, Petitioner, v. Joseph C. TERESI, as Justice of the Supreme Court, Respondent.
O'Connell & Aronowitz, Albany (Stephen R. Coffey of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
O'Connell & Aronowitz, Albany (Stephen R. Coffey of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: PETERS, J.P., ROSE, KAVANAGH, McCARTHY and GARRY, JJ.
PETERS, J.P.
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to review a determination of respondent which revoked petitioner's pistol permit.
Petitioner was issued a pistol permit in 2007. In 2010, respondent suspended petitioner's permit after he was arrested and charged with menacing in the second degree and criminal possession of a weapon in the fourth degree in connection with a domestic incident involving his former girlfriend. When the charges against petitioner were dismissed, petitioner requested a hearing to determine the status of his permit. Following the hearing, respondent determined that petitioner lacked the “maturity, carefulness, prudence, and respect for others” necessary to carry a pistol, and revoked his permit. Petitioner commenced this proceeding seeking annulment of respondent's determination.
“Respondent is vested with broad discretion to revoke a pistol permit and may do so for any good cause” ( Matter of Biggerstaff v. Drago, 65 A.D.3d 728, 728, 883 N.Y.S.2d 657 [2009]; see Matter of Nichols v. Richards, 78 A.D.3d 1453, 1454, 913 N.Y.S.2d 352 [2010]; Matter of Peterson v. Kavanagh, 21 A.D.3d 617, 618, 799 N.Y.S.2d 640 [2005] ). Upon review, we accord deference to respondent's factual findings and credibility assessments ( see Matter of Hassig v. Nicandri, 2 A.D.3d 1118, 1119, 768 N.Y.S.2d 691 [2003], lv. denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004]; Matter of Gerard v. Czajka, 307 A.D.2d 633, 633–634, 762 N.Y.S.2d 533 [2003] ) and will not disturb his determination unless it was made in an arbitrary and capricious manner or constituted an abuse of discretion ( see Matter of Biggerstaff v. Drago, 65 A.D.3d at 728, 883 N.Y.S.2d 657; Matter of Dorsey v. Teresi, 26 A.D.3d 635, 636, 809 N.Y.S.2d 617 [2006] ).
Here, respondent considered and credited the sworn incident report filed in connection with the menacing and weapon possession charges, in which petitioner's former girlfriend stated that petitioner threatened multiple times to kill himself during an argument over their recent breakup and that, when she picked up the telephone to dial 911, he pointed his gun at her and threatened to shoot her. Although the former girlfriend testified at the hearing that she could not recall the events that transpired, she did not repudiate the content of her written statement and, in fact, affirmed its truthfulness. Furthermore, a police officer testified that he had received information from the former girlfriend immediately after the incident to the effect that petitioner had pointed a loaded gun at her head. Despite petitioner's assertion to the contrary, this hearsay evidence could properly form the basis of respondent's determination ( see Matter of Gray v. Adduci, 73 N.Y.2d 741, 742, 536 N.Y.S.2d 40, 532 N.E.2d 1268 [1988]; Matter of Butts v. Dwyer, 6 A.D.3d 1101, 1101, 775 N.Y.S.2d 631 [2004] ). To the extent that petitioner provided a differing version of the events, this created issues of credibility for respondent to resolve ( see Matter of Seamon v. Coccoma, 281 A.D.2d 824, 825, 721 N.Y.S.2d 884 [2001]; Matter of Finley v. Nicandri, 272 A.D.2d 831, 831–832, 708 N.Y.S.2d 190 [2000] ). On this record, we cannot say that respondent's decision to revoke petitioner's pistol permit was an abuse of discretion or arbitrary and capricious ( see Matter of Dorsey v. Teresi, 26 A.D.3d at 636, 809 N.Y.S.2d 617; Matter of Hassig v. Nicandri, 2 A.D.3d at 1119, 768 N.Y.S.2d 691).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.