Opinion
12-17-2014
In the Matter of Shahin KHOSHNEVISS, appellant, v. PROPERTY CLERK OF NEW YORK CITY POLICE DEPARTMENT, respondent.
Victor Knapp, Kew Gardens, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers of counsel; Nicholas J. Murgolo on the brief), for respondent.
Victor Knapp, Kew Gardens, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers of counsel; Nicholas J. Murgolo on the brief), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In a proceeding pursuant to CPLR article 78 to compel the respondent to return a firearm and magazine clip seized from the petitioner, the petitioner appeals from (1) a decision of the Supreme Court, Queens County (Kitzes, J.), dated February 2, 2010, and (2) a judgment of the same court dated February 22, 2012, which, upon the decision, inter alia, denied the petition and dismissed the proceeding. ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr., Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
A proceeding pursuant to CPLR article 78 may properly lie to compel the return of property, other than contraband (see Matter of Moss v. Spitzer, 19 A.D.3d 599, 600, 798 N.Y.S.2d 482 ). Here, although the petitioner alleges that he legally purchased and possessed the subject firearm in California, the petitioner did not have a license to possess a firearm in New York. Therefore, the firearm and accompanying magazine clip that were seized from the petitioner's possession were contraband, and he was not entitled to their return (see 38 RCNY § 12–35[b]; Penal Law §§ 265.01 [7 ]; 265.20[c][3]; 400.00; Best Sound & Sec., Inc. v. New York City Police Dept., 16 A.D.3d 528, 531–532, 792 N.Y.S.2d 129 ; Matter of Sea Lar Trading Co. v. Michael, 94 A.D.2d 309, 315–316, 464 N.Y.S.2d 476 ; Sullivan v. Grupposo, 77 Misc.2d 833, 835, 355 N.Y.S.2d 55 [Civ. Ct., Bronx County] ; see also United States v. Farrell, 606 F.2d 1341, 1344 [D.C.Cir.] ; cf. 38 RCNY § 12–35 [b] ). Under the circumstances of this case, the Supreme Court correctly determined that the Firearm Owners' Protection Act ( 18 U.S.C. § 926A ) was not applicable. " Section 926A permits a licensee, in certain circumstances, to transport a firearm ‘from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm’ " (Matter of Beach v. Kelly, 52 A.D.3d 436, 437, 860 N.Y.S.2d 112, quoting 18 U.S.C. § 926A ). The firearm owner must be actually engaging in travel or acts incidental to travel (see People v. Selyukov, 19 Misc.3d 669, 670, 854 N.Y.S.2d 298 [Tuckahoe Just.Ct.; see also People v. Guisti, 30 Misc.3d 1229[A], 2011 N.Y. Slip Op. 50269[U], 2011 WL 709467 [Crim.Ct., N.Y. County] ), and during the transportation, the weapon and ammunition must not be readily accessible (see Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 137 [3d Cir.] ). Here, the petitioner failed to establish that he was only engaged in travel through New York so as to invoke the protection of section 926A (see People v. Guisti, 30 Misc.3d 1229[A], 2011 N.Y. Slip Op. 50269, *3, 2011 WL 709467 ; People v. Selyukov, 19 Misc.3d at 670–671, 854 N.Y.S.2d 298 ; see also Revell v. Port Auth. of N.Y. & N.J., 598 F.3d at 130 ; Matter of Beach v. Kelly, 52 A.D.3d at 436, 860 N.Y.S.2d 112 ).
The petitioner's remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.