Matter of Wisotsky v Kelly

[*1] Matter of Wisotsky v Kelly 2009 NY Slip Op 51162(U) [23 Misc 3d 1137(A)] Decided on June 2, 2009 Supreme Court, New York County Rakower, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2009
Supreme Court, New York County

In the Matter of the Application of Daniel P. Wisotsky, Petitioner,

against

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



104213/09



Appearances of Counsel:

John S. Chambers

Law Offices of John S. Chambers

89 Fifth Avenue

New York, NY 10003

(for Petitioner)

Louise Moed

Corporation Counsel of the City of New York

100 Church Street

New York, NY 10007

Eileen A. Rakower, J.

Petitioner Daniel Wisotsky ("Petitioner") brings this Article 78 Petition by order to show cause seeking that the court annul the November 26, 2008 decision of Respondent Raymond Kelly ("Respondent"), Commissioner of the New York Police Department ("NYPD"), denying Petitioner the issuance of a "premises residence" pistol license. [*2]

According to the Petition, Petitioner is a 46 year old male who served in the United States Marine Corps for twenty years and retired as a Warrant Officer. Petitioner states that he is presently employed by the Rockefeller family as a Security Supervisor. This position entails being responsible for the security of the Rockefeller offices at 30 Rockefeller Plaza, New York, NY during the week, and providing personal security for the 93 year old David Rockefeller, as well as security to the Rockefellers' private residence in Manhattan. Petitioner states that he has been employed in this capacity, in which he supervises six other security officers, for the past nine years. In addition, Petitioner states that he has no convictions of any kind on his record, and that he is of sound mind.

Petitioner first applied for a premises residence license with the NYPD on November 15, 2001. The License Division initially denied Petitioner's application on the grounds that, as indicated by Petitioner in his application form, Petitioner's discharge from the Marines was under "other than honorable conditions." Specifically, discharge records submitted by Petitioner indicated that Petitioner's discharge from the armed forces was "involuntary" and predicated upon "unacceptable conduct." After Petitioner's appeal of the License Division's initial denial of his application, Petitioner commenced an Article 78 proceeding in December of 2002. By order of the Hon. Louise Gruner Gans, the court remanded the matter to the License Division to adduce more evidence for the denial of a premises residence license, and to provide a more detailed explanation of the reasoning underlying the determination. The matter was ultimately settled by the parties and Respondent agreed to issue a premises residence license to Petitioner. Petitioner was issued a premises residence license on October 12, 2004.

Petitioner's license was thereafter suspended and subsequently revoked by Respondent in connection with Petitioner's involvement in an incident outside of Petitioner's house on January 22, 2005 for which Petitioner was arrested. On that date, Petitioner was arrested and charged with criminal possession of a weapon in the third degree (in violation of Penal Law §265.02(4), a class D felony); criminal impersonation in the third degree (in violation of Penal Law §190.26(1), a class E felony); and assault in the third degree (in violation of Penal Law §120.00(1), a class A misdemeanor). The circumstances surrounding Petitioner's arrest are disputed by the parties.

According to Petitioner, Petitioner was in his basement cleaning his handgun [*3]when he responded to a ring at his doorbell. The person at the door was a young man who was offering to shovel the snow in front of Petitioner's house for a fee (Petitioner states that it was snowing heavily at the time). Petitioner and the young man agreed on a price and the young man went to work. At this time, Petitioner observed two men outside who appeared to be looking into his house from the sidewalk. Petitioner found the presence of these two individuals to be somewhat peculiar since, due to the inclement weather, there were virtually no cars out on the street, and no pedestrians at all - save for these two individuals. Petitioner adds that he was in the process of having the windows in his house replaced, and that passers-by could look into his house because he did not have any curtains or blinds installed yet. Petitioner went back downstairs and returned to cleaning his handgun.

Petitioner returned upstairs fifteen minutes later, responding to another ring on his doorbell. It was young man who was shoveling the snow in front of Petitioner's house, telling Petitioner that he had finished the work. When Petitioner opened the front door, he became concerned when he noticed that the two men were still outside, looking into his home. Petitioner is a father of three children, aged 4, 7, and 10 at the time. Petitioner had received a notification from the school his children attend twelve days earlier informing parents that there had been reports of two males following students and directing "verbal vulgarities" toward them. Petitioner also notes that six months earlier, the school notified parents that a former sex offender was released to "a residence within the school's region."

Petitioner states that, given the circumstances, he decided to go outside and see what the two men were doing "[w]ithout thinking any further about it." As Petitioner went outside, the two men, in Petitioner's words, "bolted" down the street. Petitioner then got into his car and "took off after them." Petitioner claims that, upon driving down the block, he realized that he had inadvertently taken his handgun with him (the handgun was on his waist). He removed it from his waist and placed it under the front seat of his vehicle. He immediately made a left turn at the corner with the intent to return to his home, aware that his premises residence license allowed only for possession of a handgun inside his residence or transporting it to or from a target range unloaded and in a locked case.

However, upon making the turn, Petitioner observed two men on the corner who appeared to be similar in build and wearing similar clothing to the men he had previously observed outside his house. Unsure as to whether these two individuals [*4]were the men who were previously outside his house, Petitioner approached them, reasoning that either these were the individuals, or that they may have seen them as they ran by. He displayed his security badge, identifying him as a security officer. As he approached the men and began to speak, one of the men responded "you're not a [expletive] cop." Petitioner explained that he never identified himself as a police officer. He then slipped on some ice and fell, and one of the men held Petitioner to the ground by placing his boot on Petitioner's face. At this time, the other man went to Petitioner's car, where he found Petitioner's handgun. The police subsequently arrived, and Petitioner was arrested.

According to the NYPD (based upon the License Division's investigation, which relies upon NYPD reports generated after the incident), Petitioner approached two individuals - a male and a female ("complainants") - as they were crossing the street and said, "You, get over there," to the female complainant. Petitioner then exited his vehicle and asked the female complainant what was going on and what she had in her bag. Petitioner also showed a badge to the complainants. When the male complainant asked to see the badge again, Petitioner refused and told him that he worked for the state. Petitioner and the male complainant got into a verbal dispute, and Petitioner punched the male complainant in the left eye with a closed fist. Petitioner was subsequently arrested by the NYPD. A search incident to arrest uncovered bullets and two magazines from Petitioner's front right jacket pocket. In addition, a loaded black handgun was found in plain view on the driver's seat of Petitioner's car. Petitioner's handgun was seized and vouchered upon his arrest, as per NYPD procedure. Several days later, Petitioner was notified that his premises residence license was suspended.

On April 6, 2006, a temporary order of protection was issued in Queens Criminal Court against Petitioner in favor of the two complainants in connection with the January 22, 2005 incident. Two more orders of protection were issued against Petitioner on June 20, 2006 in favor of the complainants.

Based upon the License Division's investigation, which involved reviewing Petitioner's permit and arrest report, as well as conversations with Petitioner, the License Division revoked Petitioner's premises residence license by Notice of Determination dated September 21, 2006. This letter advised Petitioner that the revocation was [*5]

based upon the facts and circumstances surrounding your arrest on January 22, 2005 that cast grave doubt upon your ability to maintain the requisite good character for your possession of a firearm license; and your failure to abide by the Rules and Regulations governing your firearm license.

In addition, the letter advised Petitioner that he was entitled to request a hearing within thirty days of the date of the determination letter. Petitioner did not request a hearing.

On December 19, 2006, Petitioner's criminal case was adjourned in contemplation of dismissal, and was dismissed on June 18, 2007.

On June 8, 2008, Petitioner submitted a new application for a premises residence license to the License Division. On his application, Petitioner checked "yes" to question No.23, which asks if the applicant has ever been either arrested, indicted, or summonsed, and provided a letter of explanation as required if an applicant answers the question in the affirmative. Petitioner gave his account of events (noted above), and acknowledged that he violated the conditions of his license by taking his handgun outside of his house. However, Petitioner stated that his doing so was unintentional, and asked that the License Division take Petitioner's otherwise upstanding background (including his military service) into account and grant him a premises residence license. Petitioner checked "no" to question #24, which asks whether the applicant has ever had an order of protection issued against him, despite having three orders of protection issued against him in the past (two involving the January 22, 2005 incident, and one involving a domestic dispute with Petitioner's wife which did not culminate in an arrest, or any further action by police). Petitioner later stated that he had no recollection of having any orders of protection against him.

On July 10, 2008, Petitioner was interviewed by a License Division investigator, who subsequently recommended that Petitioner's application be disapproved. Petitioner received a written Notice of Disapproval on September 16, 2008, which stated the grounds for disapproval as follows:

The events involving your arrest for criminal possession of a weapon in which you were charged with impersonating a police officer by [flashing] a fake shield are very disturbing. The incident is even more alarming because you were [outside] of your residence with your handgun on your person not properly secured in locked container. Your license was for a premise residence and your violation of the rules and [*6]regulations and the poor judgment you displayed with your weapon out of your home is inexcusable.

The letter also advised Petitioner he could file a written appeal of the determination with thirty days of the date of the Notice of Disapproval.

Petitioner, by counsel, submitted a letter dated November 11, 2008 appealing the License Division's determination. The letter reiterated Petitioner's account of the January 22, 2005 incident, and also stated that Petitioner is a responsible individual, as evidenced by his employment as a security officer for the Rockefeller family and his years of military service. The appeal letter also states that Petitioner is an active and respected member of the community.

Petitioner's appeal was denied by Thomas M. Prasso, Director of the License Division, by letter dated November 26, 2008. The letter stated that the License Division did not find Petitioner's account of events on January 22, 2005 to be credible. Moreover, the letter notes that Petitioner violated the Rules of the City of New York governing handgun possession and licensure when taking his handgun outside of his premises, failing to report his arrest after the incident, and failing to disclose the prior orders of protection. The letter stated that Petitioner's asserted lack of memory as to having orders of protection against him was not credible. The letter also notes that Petitioner did not request a hearing to challenge the License Division's prior revocation of his premises residence license. Based upon the foregoing, the License Division found that Petitioner "lack[s] the necessary character and fitness for a license to possess a handgun."

Petitioner subsequently commenced this Article 78 proceeding by order to show cause on March 26, 2009. Petitioner argues that Respondent's denial of a premises residence license to Petitioner is arbitrary and capricious, in that Respondent's denial of a pistol license to Petitioner is based upon a single arrest, for which charges were subsequently dismissed against Petitioner, and ignores Petitioner's otherwise "stellar" history, including twenty years of military service, and his present position as a security officer for the Rockefeller family. Petitioner also argues that Respondent's decision violates his rights under the Second Amendment to the United States Constitution, citing District of Columbia v. Heller, (1289 S. Ct. 2783 [1998]). [*7]

Penal Law §400.00[1] provides, in pertinent part,

No license shall be issued... except by the licensing officer, and then only after investigation and finding that all statements in a proper application for a license are true. No license shall be issued ... except for an applicant,

(b)of good moral character; and

(g)concerning whom no good cause exists for the denial of the license.

Penal Law §400.00[2] provides, in pertinent part,

A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to

(a)have and possess in his dwelling by a householder

Pursuant to §10-131 of the NYC Admin. Code The Commissioner of the NYPD is the licensing officer for firearms in the City of New York.

In addition to the New York State Penal Law, Chapter 5 of the Rules of the City of New York governs the issuance of pistol licenses in the City of New York. 38 RCNY §5-01(a) defines "premises license" as follows:

This is a restricted handgun license, issued for a specific business or residence location. The handgun shall be safeguarded at the specific address indicated on the license. This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately.

38 RCNY §5-02 sets forth the parameters for issuance of a premises license as follows, in pertinent part:

The applicant shall

(a)Be of good moral character;

(c)Disclose whether s/he is or has been the subject or recipient of an order of protection or a temporary order of protection;

(h)Be an applicant concerning whom no good cause exists for the denial of [*8]such license.

It is well settled that Penal Law Article 400 confers "extraordinary power" upon Respondent with respect to the issuance of pistol licenses in the City of New York, and that Respondent's determinations in such matters are not to be overturned by a reviewing court in an Article 78 proceeding unless the decision is found to be arbitrary and capricious or an abuse of discretion. Conversely, Respondent's decision must stand if supported by a rational basis. A rational basis exists when the evidence adduced is sufficient to support Respondent's determination. (Papaioannou v. Kelly, 14 AD3d 459, 460 [1st Dept. 2005]) (citations omitted). It is also firmly established that a reviewing court is to defer to Respondent's weighing of the evidence and assessments of credibility (Sewell v. City of New York, 182 AD2d 469, 473 [1st Dept. 1992]) (citations omitted).

Here, even if the court were to take Petitioner's account of events as true, a rational basis exists for the denial of a premises residence license. By Petitioner's own admission, Petitioner violated the terms of his license when he left his house with his handgun and ammunition in pursuit of the two individuals outside of his house. While Petitioner maintains that this was inadvertent, Petitioner's own account has Petitioner stopping his car, exiting his vehicle, and approaching two people whom he believes might be the individuals who were standing outside his house after realizing that he had left his house with his handgun and clips of ammunition. Crediting Petitioner's recitation of facts, his approaching the two individuals - again, whom Petitioner believed might have been dangerous criminals - actually led to one of these individuals gaining access to his firearm. Even assuming the worst of the two individuals, they clearly presented no immediate danger to Petitioner or his family, and Petitioner was free to call the police to report any suspicious activity. Indeed, if Petitioner's account of events is accurate, Petitioner demonstrated "a startling lack of judgment" that calls into question his fitness to possess a handgun license (Tolliver v. Kelly, 41 AD3d 156, 158 [1st Dept. 2007]).

Moreover, Petitioner failed to disclose in his 2008 application that he had been the subject of three separate orders of protection in the past - a violation of 38 RCNY §5-02(c) and the Penal Law (see Kozhar v. Kelly, 2009 NY Slip Op 3950 [1st Dept. 2009]; Broadus v. The City of New York Police Department (License Division), 2009 NY Slip Op 3934 [1st Dept. 2009]. While Petitioner claims that this omission was due to a lack of memory and was inadvertent, Respondent was acting within his discretion in discrediting Petitioner's proffered excuse. Indeed, Respondent has [*9]submitted evidence establishing that Petitioner was advised in court of the orders of protection against him regarding the January 22, 2005 incident no more than two years prior to his most recent application.

Accordingly, even based upon the facts which are not in dispute, Petitioner's challenge fails.

Nor is it of any consequence that Petitioner has an otherwise unblemished record. While Petitioner cites to a number of cases in which the Supreme Court has reversed the NYPD's denial of a pistol license to applicants whose pasts are arguably more checkered than Petitioner's, there is no authority which states that pistol licensees and applicants are automatically entitled to a "second chance." A decision to deny issuance of a pistol license will invariably depend a number of variables, including the applicant's need to possess a pistol license, mitigating factors such as the applicant's involvement in his/her community, as well as other factors (see Tolliver) (reversing Supreme Court's granting of petitioner's Article 78 petition on the grounds of his "unblemished record of outstanding character... his military service, his higher education, and his acknowledgment that his behavior during the [underlying] incident was inappropriate."). Moreover, unlike any of the authority supplied by Petitioner, the instant matter involves conduct by Petitioner specifically pertaining to his possession and use of a firearm as a premises resident licensee.

Nor does the United States Supreme Court's decision in Heller alter the court's analysis in any way. Heller involved an outright ban of possession of handguns - including in one's own home. In striking down the District of Columbia statute, the Supreme Court noted that nothing in the Court's decision should be interpreted as disapproval of longstanding regulations on ownership or possession of firearms such as, for example, bans against convicted felons, mentally ill persons, or the carrying of firearms in sensitive areas such as government buildings (id. at 2816-17). Importantly, the Court noted that it named but a few examples of permissible regulations, not a list that purported to be exhaustive (id. at 2817 n.26).

Moreover, the Second Circuit has recently held that the Heller decision does not apply to the states, since the Second Amendment only applies to the federal government (Maloney v. Cuomo, 554 F.3d 56 [2d Cir. 2008]; see also People v. Abdullah, 2008 NY Slip Op 28527 [Sup. Ct. Kings 2008]). However, even if the Heller decision is applicable in the case at bar, the Appellate Division, Third [*10]Department recently held that "New York's [pistol] licensing requirement remains an acceptable means of regulating the possession of firearms and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner." (People v. Perkins, 2009 NY Slip Op 3962 [3rd Dept. 2009]).

Wherefore, it is hereby

ADJUDGED that the petition is denied and the proceeding is dismissed.

This constitutes the decision and order of the court. All other relief requested is denied.

Dated: June 2, 2009______________________________

EILEEN A. RAKOWER, J.S.C.