Matter of Imberman v Kelly

[*1] Matter of Imberman v Kelly 2005 NY Slip Op 51946(U) [10 Misc 3d 1054(A)] Decided on August 29, 2005 Supreme Court, New York County Stone, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 29, 2005
Supreme Court, New York County

In the Matter of Mitchell Imberman, Petitioner,

against

Raymond Kelly, as the Statutorily Designated Handgun Licensing Officer, and as Police Commissioner of the City of New York, and His Successors in Office, Respondent.



107255/05

Lewis Bart Stone, J.

Petitioner Mitchell Imberman ("Imberman") moved pursuant to Article 78 of the Civil Practice Laws and Rules ("CPLR"), to challenge and set aside the determination (the "Revocation") of respondent New York Police Department ("NYPD") made on June 29, 2004, to revoke his gun licenses.

STATEMENT OF FACTS

The New York Penal Law, Article 4, and the New York City Administration Code, Section 10-131, authorize the NYPD to grant licenses for keeping and carrying pistols. These licenses are further regulated by Title 38 of the Rules of the City of New York ("RCNY").

RCNY § 5-22, which sets forth such conditions of issuance and revocation of licenses requires licensees to immediately report to the NYPD the occurrence of incidents listed in RCNY Section 5-30, which include arrests and protection orders issued against the licensee. RCNY Section 5-30C(5)(g) states that "Failure to comply with the license division's direction may result in permanent revocation. RCNY Title 38 Section 3-05 sets forth similar requirements and grounds for suspension or revocation of Rifle/Shotgun permit.

Imberman was issued a Premise Residence License in December 1999, and a Rifle/Shotgun permit in October 1990. He had five firearms registered on his Premise Residence License and three rifles on his Rifle/Shotgun Permit. On February 15, 2004, Imberman was arrested and charged with Aggravated Harassment in the Second Degree, and Harassment in the Second Degree, based on allegations of his former girlfriend, Sharon Gordon ("Gordon"). [*2]Gordon asserted that Imberman wanted the telephone number of one of her friends, which she refused to give him. Imberman thereafter started sending her threatening and annoying e-mails and threatened to write her employer to accuse her of divulging insurance client information. Gordon failed to report these incidents immediately, further alleging that she was afraid of retaliation from Imberman because she believed he owned a gun.

On February 23, 2004, about six days after his arrest, Imberman advised NYPD of his arrest and the charge, and that he had sold his handguns on the prior day and presented the bills of sale. Imberman was told that his license was suspended and that he was to return his license and voucher his rifles immediately at the local precinct. This advice was confirmed by letter dated that day which also sought a written explanation of the incident leading to his arrest.

Imberman immediately surrendered one of his three rifles. He vouchered the remaining two on March 30, 2004, but only after he received a second suspension letter from NYPD dated March 22, requiring that he comply with the NYPD request to voucher his rifles immediately.

On March 22, 2004, the Queens County Criminal Court issued a temporary protection order against Imberman. The criminal charges were adjourned in contemplation of dismissal and later dismissed in September, 2004.

On April 1, 2004, Imberman wrote NYPD to explain the arrest and charges. On April 23, NYPD gave Imberman a final notice to comply with its requirements. On June 29, 2004, after concluding his investigation, the NYP investigating officer who was assigned Imberman's case , recommended Imberman's license and permit be revoked.

Imberman appealed the recommendation of the investigating officer to NYPD, submitting evidence that the charges against him were adjourned in contemplation of dismissal and later dismissed. In a hearing on November 30, 2004, the NYPD appeal hearing officer found Imberman to have violated the RCNY and Penal Law in that 1) he sold his firearms without NYPD's permission, 2) failed to notify NYPD of the protection order issued against him, and 3) failed to voucher all his rifles at the time he was initially ordered to so by NYPD. The officer further concluded that Imberman's behavior was "an effort to circumvent the agency," and recommended his appeal be denied on the basis that "the weight of this decision rests with the Licensee's noncompliance with the rules." NYPD issued the Revocation on January 27, 2004.

Imberman commenced this proceeding to challenge the Revocation and action as unreasonable, arbitrary and capricious.[FN1]

CONCLUSION OF LAW

Under CPLR Article 78, an administrative decision may only be vacated if the "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode or penalty or discipline imposed." CPLR §7803(3).

The sole issue for this Court is whether the Revocation was arbitrary and capricious or an abuse of discretion. Matter of Pell v. Board of Education, 34 NY2d 222, 230 (1974). In the review process, the role of this Court is to ascertain whether a rational basis exists for such a [*3]administrative decision. A rational basis exists where the administration's determination rests on adequate evidence. Sewell v. City of New York, 182 AD2d 469, 473 (1st Dept. 1992).

This Court will not disturb the administrative determination if a rational basis is found. Under Penal Law §400.00, the NYPD has broad discretion to grant or revoke licenses, and the court must give great weight the decision in this regard, particularly when the public safety is at issue, and the court lacks the expertise required for such decision. Even if the court could have reached a contrary conclusion if the case were actually brought before it for a determination, the court may not overturn the NYPD determination without finding that the decision lacks a rational basis.

The Court may set aside the Revocation only if it finds it to be so "disproportionate to the offenses in light of all the circumstances as to be shocking to one's sense of fairness." See Pell, 34 NY2d at 233 (1974). The Court must review all the records before it to determine whether the agency's decision stands upon a sound exercise of discretion.

Imberman argues in substance that the NYPD acted in a arbitrary and capricious way by failing to consider that 1) the criminal charges had already been dismissed; 2) his failure to report the protection order "meant absolutely nothing"; 3) he had cooperated with NYPD in "all ways," and "whatever minor infractions" did not justify a revocation, which was "shocking to one's sense of fairness and equity." 4) he has a "stellar background," and there were instances where applicants with similar or worse records have been granted licenses.

This Court is unpersuaded. After a full review of the record, this Court finds that the Revocation was neither arbitrary nor capricious.

Imberman first claims that the NYPD could not rationally base the Revocation on the criminal charges because it had been dismissed, and an arrest record alone, provides no "probative value." He further argued that since the charges were dismissed, the arrest alone did not suffice to support the Revocation. While an arrest record by itself might not constitute adequate ground for a Revocation (Michael v. Arato Safir, INDEX No. 109242/99 (Sup. Ct., NY Co., Zweibel, J.)), the record does not show that the Revocation was solely based on the arrest. The record shows that the Revocation also took into consideration violations of the licensing request as well as the investigating officer's impression of Imberman's improper behavior.

In Arato, the NYPD based its decision solely on the petitioner's failure to correctly answer a single question about a 7 year old arrest, where the charge was dismissed. The court in Arato found that NYPD acted arbitrarily and capriciously because it irrationally narrowed its attention to that one long dismissed charge instead of reviewing the full record. Here there was a full review, and the arrest was recent.

Imberman asserted that his failure to report the protection order, considered in light of present standards, was insignificant. This Court disagrees. The fact that temporary protection orders may now be more commonly issued than before is irrelevant. Imberman cannot simply ignore such an order in any event. It is not for him to judge the importance of such an Order. The obligation to report such orders remains whether or not the order was later dissolved. Failing to report the Order is an issue that would be properly considered by NYPD within the framework of the licensing scheme.

Imberman argues that he had cooperated with NYPD, and his "whatever minor infractions" could not possibly result in a revocation, Imberman claiming that the Revocation [*4]was "shocking to one's sense of fairness and equity." This Court remains unshocked and the record does not support this charge.

The issuance of license to carry gun is a privilege, not a right. In re Williams v. Bratton, 238 AD2d 269 (1st Dept. 1997). NYPD may well consider a licensee's behavior and suspend or revoke a license if the licensee fails in any material way to comply with the regulations. RCNY Title 38, §5-22 clearly provides "licensees shall cooperate with all reasonable requests by the Police Department" for information and assistance in this matter. While Imberman eventually reported his arrest, and vouchered his handguns, he avoided the prompt surrender of his long guns. Accordingly, the Revocation could have been supported solely on the basis of his unauthorized sales. It also took Imberman nearly a month to finally surrender his last long gun and thus comply with NYPD's directive.

Imberman claimed that at the time he got NYPD's request to surrender his guns, he had already removed them to Westchester, where he could still possess them legally. This argument fails. Imberman's license required him so surrender the guns without delay and did not allow, as an alternative, their removal to a more diffident jurisdiction. Imberman's right to possess firearms somewhere else does not excuse him from violating the terms of his New York license. It does not take a month to move to guns from Westchester to New York City.

Imberman also accused NYPD being contradictory in requiring him to voucher his guns because the agency did not have a proper "mechanism," namely a "log system" to process the request of gun sale. The NYDP's procedures for processing has little to do with Imberman's own behavior, especially as he did not seek such permission before the sale.

Imberman finally argues that the NYPD abused its discretion and acted capriciously when it grants licenses to applicants with similar or worse records. Imberman claims NYPD failed to consider his "stellar background." The record contains no facts to support such assertion.

The Revocation was based on many factors and was a proper and lawful exercise of NYPD's discretion and was not arbitrary and capricious.

The petition is denied.

This constitutes the Decision and Order of the Court.

DATED:AUGUST 29, 2005

NEW YORK, NEW YORK

Hon. Lewis Bart Stone

Justice of the Supreme Court Footnotes

Footnote 1: In its brief submitted in support of the defense, NYPD has requested this Court forward this proceeding to the Appellate Division because Imberman raised issue of the sufficiency of evidence to support the Revocation. A review of Imberman's petition discloses no such claim.