Matter of Nicolo
2006 NY Slip Op 52354(U) [13 Misc 3d 1245(A)]
Decided on December 7, 2006
Yates County Ct
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This opinion is uncorrected and will not be published in the printed Official Reports.
Matter of Nicolo
Decided on December 7, 2006
Yates County Ct
In the Matter of the Termination Of the License to Carry A Pistol Issued to John Edward Nicolo, Respondent.
John Edward Nicolo
W. Patrick Falvey, J.
The respondent was issued a license (CW-84-4) to carry a pistol on January 27, 1984. This Court, by Order to Show Cause dated December 29, 2005, suspended said pistol license pending further proceedings. Any handgun(s) owned by the respondent were surrendered to the Ontario County Sheriff's Department (until sold to respondent's attorney) while the original pistol permit CW-84-4 was presented to the Yates County Sheriff on January 9, 2006, pending these proceedings (See Court's Exhibit I). The Respondent's pistol permit was previously suspended but reinstated on November 26, 2002, after disposition on a misdemeanor Driving While Intoxicated charge.
A hearing was held on September 26, 2006 whereupon proof was taken from various witnesses including the respondent who proceeded Pro Se. His retained counsel having notified the Court by letter dated May 30, 2006 that he had been relieved by respondent with regard to his representation of him.
The Court now having had the unique opportunity to closely observe the witnesses as to their responses, demeanor and credibility on the witness stand, and having heard the allegations, various proofs, all proceedings herein and due deliberation having been had therein, and now after considering the proof herein, the exhibits, arrest reports and all submissions, I do hereby decide and find the essential facts and conclusions of law, which I deem established by the evidence as follows:
Ontario County Sheriff's Deputy Durgan responding to a "911" call arrived at respondent's residence on December 7, 2005 as a backup officer to Deputy Chatterson. He was responding to an apparent domestic dispute between respondent and his wife. He spoke with the respondent who blamed everything on his wife saying that she assaulted the respondent and he did nothing. He also noted that the respondent was belligerent and uncooperative, even telling him to "get the fuck out of his house". Durgan also opined that the respondent was very intoxicated. [*2]
Officer Durgan placed the defendant under arrest for Disorderly Conduct as the respondent kept approaching Deputy Chatterson and respondent's wife during Chatterson's investigation. Respondent was then transported to the Town of Manchester Justice Court for arraignment where he continued to be belligerent. The charge was then modified at the Court to the class A misdemeanor of Obstructing Governmental Administration in the Second Degree.
A Stay Away Order of Protection was entered against respondent at Mrs. Nicolo's request. Durgan took the Order of Protection to Mrs. Nicolo and secured the respondent's long guns. Durgan also gave the Order of Protection to the respondent. The Order of Protection was later modified to a "no offensive" conduct order.
The Obstructing charge was later withdrawn and the order of protection vacated on or about May 17, 2006, after respondent's then counsel moved the Manchester Town Court on April 5, 2006, requesting that respondent's agreement with the District Attorney, to wit: dismiss the Obstructing charge and vacate the order of protection in exchange for the respondent surrendering his pistol permit be honored. (Court Exhibit I and Exhibit B).
The respondent now argues that when he agreed to this, his pistol permit had already been surrendered in accordance with this Court's December 29, 2005 suspension order. But, he acknowledged in his written closing statement, "I do admit that I pulled a fast one on Ritts (the Assistant District Attorney) with the deal he offered." The Court notes that the Respondent received the benefit of the bargain and should not now be able to disavow it.
Ontario County Deputy Cirencione arrived at respondent's home on March 19, 2006 at approximately 9:00 P.M. When he arrived, he observed the respondent in the driveway with two friends. The deputy opined that the respondent was highly intoxicated as he had "slurred" speech, acted belligerently toward the officers and spoke obscenities in front of Cirencione. He testified that both respondent and his wife had called 911 reporting trouble at the family residence. Deputy Cirencione took pictures of the residence and of the respondent (Court
Exhibits XIV through XVIII).
The respondent knew of the Order of Protection and he had been drinking. Respondent was arrested for Criminal Contempt, placed in the patrol vehicle. He continued a belligerent
attitude toward the officer.
Ontario County Sheriff's Deputy Martin arrived at the respondent's home, on March 19, 2006, at approximately 9:00 A.M. just after Deputy Cirencione. When Martin arrived he met the respondent who said that he had been assaulted by his wife. Deputy Martin spoke with respondent's wife in a neighbor's trailer and observed various injuries, to wit: a swollen right eye/cheek, scratched chin, an abrasion on her left hand, and a scratch under the chin. (Court Exhibits II through V). He also observed an injury on respondent (Court Exhibit XIV). At this time the respondent was yelling obscenities and told the officer that his wife had been drinking and the officer could not go into his house. The wife told the officer that the injuries were caused by the respondent as he held her down on the bed so she couldn't call "911". The respondent's wife had also been drinking but was not drunk. Martin took photographs (Court Exhibits VI through XIII) including showing a cell phone broken in two places (Court Exhibit VIII).
Earl Toth, an acquaintance of the respondent, testified that he was present at the March 19, 2006 incident. He stated that there was "drinking going on" and Mrs. Nicolo had consumed several alcoholic beverages. He indicated that Mr. Nicolo called him to pick him up at his [*3]residence. He noted that the respondent was upset but was not yelling when the police arrived.
The Criminal Contempt charge was later presented to the Ontario County Grand Jury which returned a "No Bill" (Exhibit C).
The respondent testified that he felt the Criminal Contempt charges were a retaliation by the Sheriff and Assistant District Attorney. Furthermore, he has had a pistol permit for twenty-two years and never committed a crime with a gun. He also noted that no gun was a part of either the December 7th or March 19th incidents which should be considered by the Court.The proofs were closed. Mr. Nicolo was given five days to submit a written closing argument. The case was marked, "submitted" on October 2, 2006.
A pistol license may be revoked and cancelled at any time if the Court determines that a licensee is no longer fit to continue to possess a firearm "for any good cause". PL §400.00(1) ; Matter of Vale v. Eidens, 290 AD2d 612, 613; also see Penal Law §400.00(1).
The standard of proof required to revoke a pistol permit is "substantial evidence". Perlov v. Kelly, 21 AD3d 270, 1st Dept, 2005, citing Mtr of Abramaowitz v. Safir, 293 AD2d 352, noting that "our obligation is limited to insuring that respondent (Court) met the very minimal evidentiary requirement necessary to uphold its determination', quoting Mtr of Scully v. Safir, 282 AD2d 305, 308. This also may include suspension of a pistol permit, and then following dismissal of a criminal charge, finding, after a hearing, that the permit holder lacked the requisite maturity, good judgment and temperament to carry a pistol and thus revoking same. Dorsey v. Teresi, 26 AD3d 635, 3rd Dept, 2006.
"The State has a substantial and legitimate interest and indeed, a grave responsibility, 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." Dorsey, at 636, quoting Mtr of Pelose v. Westchester County Court, 53 AD2d 645, 645.
"In determining whether to revoke a pistol permit pursuant to Penal Law §400.00(11), the respondent (Court) is vested with broad discretion to resolve factual and credibility issues, and his (its) determination is accorded great weight." Pacicca v. Allesandro, 19 AD3d 500, 500. In Butts v. Dwyer, 6 AD3d 1101, 4th Dept, 2004, the court noted that hearsay evidence can be the basis of an administrative determination.
The First Department, in Robertson v. Kerik, 300 AD2d 90, 90-91, (2002) upheld a revocation by stating:
"The revocation of petitioner's pistol license was supported by substantial evidence that he lacked the good moral character required of pistol licensees (see Penal Law §400.00[b]). The duly credited proof adduced at his revocation hearing showed that petitioner had recently assaulted his girlfriend and violated a Criminal Court restraining order. Given the evidence of petitioner's poor judgment and inability to manage his anger, revocation of his pistol permit does not shock our sense of fairness" (cite omitted).
Even dismissal of the underlying criminal charges does not bar any subsequent administrative proceeding to revoke a license based upon the circumstances underlying the criminal charges. Mtr of Zalmanov v. Bratton, 240 AD2d 173.
In Dlugosz v. Scarano, 255 AD2d 747 (1998), the 3rd Department noted that the arrests of petitioner "demonstrate a repeated inability to resolve conflicts in a nonviolent manner or [*4]without police intervention" in upholding the revocation of the petitioner's permit. Id., 748.
After reviewing the proof herein, including the arrest reports, the Court finds that even though the Criminal Contempt charge was "No Billed" by the Grand Jury, the Obstructing Governmental Administration Second Degree charge was withdrawn and the order of protection vacated, the Court must look to the underlying facts as they relate to the respondent's fitness and eligibility to continue to hold a pistol license. Here, two domestic incidents occurred between respondent and his wife, within a short period of time, to wit: December 7, 2005 where an Order of Protection was entered against the respondent; and March 19, 2006 where respondent was arrested for violating the Order of Protection. In both incidents the police were called to the respondent's residence where he was found to be under the influence of alcohol, the wife had been drinking and there was evidence that an altercation had occurred resulting in some physical injury to one or both parties, and on both occasions the respondent exhibited an uncooperative and belligerent attitude with the police officers.
The respondent's conduct when viewed in the totality of circumstances reflects negatively on his fitness to posses a pistol license, as he exhibits poor judgment and an inability to manage his anger.
Furthermore, the fact that the respondent and his attorney formally moved the Manchester Town Court to enforce their "agreement" with the Assistant District Attorney to wit: surrender of his pistol license, in exchange for withdrawal of the Obstructing charge and vacating of the order of protection is dispositive in this instance. Clearly, the actions of the respondent and his attorney indicate a conscious decision to give up his pistol permit in exchange for the benefit of the withdrawal of the misdemeanor charge and order of protection.
The Court therefore finds that the proof presented considered in its totality is substantial evidence of good cause for the Court to revoke respondent's pistol permit CW-84-4 issued on January 17, 1984.
Furthermore, any weapon or weapons previously taken by Order to Show Cause shall be retained, if not already transferred to a valid licensee, by the Ontario County Sheriff's Department for a period not to exceed one year from the date of this order.
The respondent shall have the right within said one year to arrange for the sale, or transfer of said weapon(s) to a dealer in firearms, of the respondent's choice, who is licensed in accordance with Article 400 of the Penal Law for legal disposal as the respondent directs. If no such disposition is made within said time period, said weapon or weapons shall be declared a nuisance and shall be disposed of in accordance with §400.05 of the Penal Law of the State of New York.
The respondent may appeal this Court's determination in accordance with Article 78 of the Civil Practice Law and Rules (CPLR) of the State of New York State. Separate Order to follow.
This constitutes the Decision and Judgement of the Court.
Dated: December ___, 2006.
W. Patrick Falvey
Yates County Judge