Matter of Wilson v N.Y.C. Police Dept. License Div.

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Matter of Wilson v N.Y.C. Police Dept. License Div. 2012 NY Slip Op 32191(U) July 25, 2012 Supreme Court, New York County Docket Number: 401475/10 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: , COUNTY PART I U I - NEW YORK Justice uG I The fpllowlng papers, numbered 1 to were read on thla motion to/for //k?co?$0 PAPER$ NUMBERED Notice of Motton/ Order to Show Cause - Affldavlta - Exhlbita ... I z Anawering Affidavlts - Exhibits Replying Affidavits >heck one: aFINAL DISPOSITION Check if appropriate: 17 0 NON-FINAL DISPOSITION DO NOT POST 0 SUBMIT ORDER/ JUDG. REFERENCE c SETTLE ORDER/ JUDG. ] [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PaRT 4 6 In the Matter of the Application of NANCY WILSON, Index No. 4 0 1 4 7 5 / 2 0 1 0 Petitioner - against - DECISION AND ORDER POLICE DEPT. LICENSE DIVISION, N.Y.C. AU6 20 2Mz APPEARANCES : For Petitioner Jerold E. Levine Esq. 5 Sunrise P l a z a , Valley Stream, NY 11580 NEW YORK COUNTY CLERK~S OFFICE For Remondent Jacqueline Hui, Assistant Corporation Counsel Corporation Counsel of the City of New York 100 Church S t r e e t , N e w York, N Y 10007 LUCY BILLINGS, J.S.C.: I. THE BASE$ FOR POST-JITQGMENT RELIEF Petitioner moves t o vacate the p r i o r order dated January 10, 2011, denying her petition to reverse respondent's denial of a handgun license because she failed to disclose an arrest for a charges that eventually were dismissed: application specifically requests. c.P.L.R. § 5015(a)(3), information the license She bases her motion on because respondent failed to disclose to the court that the circumstances of the dismissal triggered New York Criminal Procedure Law ( C . P . L . ) § 160.60, under which the arrest and prosecution a r e considered a nullity. Ins. Co. v. Roqers, 84 A.D.3d 469 (1st Dep't wilson.140 1 Travelers 2011); Zasranichnay [* 3] v. Zaqraaichnay, 68 A.D.3d 1103, 1104 (2d Dep t 2009); Thakur v. Thakur, 49 A.D.3d 861, 8 6 2 (2d Dep t 2008). Petitioner alternatively may invoke C . P . L . R . 5 5015(a) (2), based on her Certificate of Disposition of t h e dismissed charges, which she did not present previously. American Comm. for Weizmann Inat. of Science v . Dunn, 10 N.Y.3d 8 2 , 95-96 (2008); Atienza v. MBBCO 11, LLC, 75 A.D.3d 424 (let Dep t 2010); Ramoa v , City of New York, 61 A.D.3d 51, 54 (1st Dep t 2009). See C.P.L.R. § 2221(e)(2); Sirico v . F , G . G . 429, 433-34 ( 1 s t Dep t 2010). P r o d s . , Inc., 71 A.D.3d Respondent conceded that the charges were dismissed, so petitioner, who previously was unrepresented, did not realize that the Certificate of Disposition would include any o t h e r relevant information. See C.P.L.R. § 2221(e) (3); Atienza v. MBBCO 11, LLC, 75 A.D.3d at 425; Sirico v . F . G . G . Prods., Inc., 71 A.D.3d at 4 3 3 - 3 4 . The Certificate of Disposition reveals, however, that the charges were dismissed upon the B r o n x County District Attorney s motion, to which C.P.L. 5 160.60 applies. Since respondent, in denying petitioner the license, knew of petitioner s arrest and the charges against her, petitioner contends that respondent surely knew t h e circumstances of the dismissal, triggering § 160.60 s nullification provision, yet failed to reveal this fact and thus i t s legal ramifications to t h e court. Whether or not respondent s nondisclosure amounts to misrepresentation or other misconduct sufficient to vacate t h e dismissal of this proceeding, C.P.L. R. 5 5015(a) (3); wil~on.140 2 [* 4] Travelerg Ins. Co. v. Rosers, 84 A.D.3d 469; Voqelqesanq v . Voselqesanq, 71 A.D.3d 1131, 1 1 3 2 ( 2 d Dep't 2 0 1 0 ) ; Sieqer v. Sieqer, 51 A.D.3d 1004, 1006 ( 2 d Dep't 2 0 0 8 ) ; Thakur v . Thakur, 49 A.D.3d at 8 6 2 , petitioner's offer of t h i s more specific I evidence in any event bears on t h e court's prior determination, §§ 2221(e) C.P.L.R. A.D.3d at 4 2 5 ; (2) , 5 0 1 5 ( a ) (2); Atienza v. MBBCO 11, LLC, Sirico v, F , G . G . 75 PrQds., I n c . , 71 A.D.3d at 433, 435; Rarr(os v. Citv of New York, 61 A.D.3d at 54, and, albeit delayed, has neither exceeded any definitive time constraint, n o r hampered reapondent's defense of the proceeding. C.P.L.R. 2221(e) , 5015(a) ( 2 ) ; _Sirico v. F . G . G . §§ Prods., Iqc., 71 A.D.3d at 433; Ramoe v , City of New York, 61 A.D.3d at 54-55. Reapondent has been provided ample opportunity to respond to petitioner's motion and the Certificate of Disposition presented. A s respondent concedes, this evidence is more than a "mere allegationi1 r "specious claim,Il American Comm. for Weizmann o Inst, of Science v. Dynn, 10 N.Y.3d at 9 6 ; it is uncontroverted. In light of the Certificate of Disposition and the consequent application of C . P . L . R . § 160.60, petitioner maintains that respondent's denial of the handgun license was based on an error of law and uneupported by any evidence that petitioner had failed to make a required disclosure. 11. C.P.L.R. § 7803(3) and (4). THE RESULT DICTATED BY C.P.L. , § 160.60 Criminal Procedure Law 5 160.60 provides that upon termination of the criminal action againat petitioner in her favor: wilson.140 3 [* 5] (1) Her arrest and prosecution were considered a nullity. ( 2 ) She was restored to her Eltatus before the arrest and prosecution. (3) Neither the arrest nor the prosecution would operate to disqualify her from any occupation. (4) She was not required to divulge information regarding h e r arrest or proBecution, except where a statute specifically requires. New York Penal L a w (P.L.) § 4 0 0 . 0 0 confem on respondent the authority to issue handgun licenses. Section requires 400.00(1) that: No license shall be issued or renewed pursuant to this section except by the licensing officer, and then only after investigation and finding that a l l statements in a Proper anplicatioq for a licenae are t r u e . P.L. (emphasis added). The application f o r a handgun § 400.00(1) license that petitioner completed specifically asks: EVER . . (23) Been arrested . . . ? . "HAVE YOU . . . ( F a l s e statements are grounds f o r disapproval)." V. Answer Ex. A § B, at 2 . The application's instructions require that: If you were ever arrested . . . you must answer Yes to queetion-23 and submit a certificate of diBpoeition . . . Also, you must submit a detailed, notarized statement YO1J describing the circumstances surrounding each arrest. MUST DO THIS EVEN IF: the case was dismissed, the record sealed or the case nullified by operation of law. V. Answer Ex. B § 7(A). Thus the only statutory requirement governing the information to be disclosed in a handgun liceme application is that " a l l statements in a p r o p e r application for a license are wilson.140 4 [* 6] true.Ii P.L. 5 400.00(1). The requirement to divulge information regarding an arrest or prosecution "EVEN IF: the case was dismissed, the record sealed or t h e case nullified by operation of l a w i i is only in respondent's handgun license application instructions. A s the court's prior determination recognized, petitioner's violation of this requirement, to divulge her arrest, and her false answer lINOii to the application question llHAVE YOU EVER § 400.00(1), . . . Been arrested . . . ?I1 in violation of P . L . not the arrest itself, formed the basis for denying her the handgun license. V. Answer Ex. A 5 B , at 2 . Inaccuracies in the information provided in the handgun license application by an applicant, in violation of P.L. 5 400.00(1), constitute a valid basis to deny the application. & Tartaqlia v, Kelly, 215 A.D.2d 166, 167 (1st Dep't 1 9 9 5 ) . Depleo v. Byatton, 2 3 7 A.D.2d 111, 1 1 2 (1st Dep't 1 9 9 7 ) . This r u l e applies equally when the inaccuracy is a statement that the applicant has never been arrested. Conciatori v. Browq, 201 A.D.2d 323 (1st Dep't 1994); Panineau v. Martusewicz, 35 A.D.3d 12114 (4th Dep't 2006); Hanna v. Police Dept. of County of N3ssau, 205 A.D.2d 689 (2d Dep't 1994). & Fortuniewicz v. Cohen, 54 A.D.3d 952 (2d Dep't 2008). Because C . P . L . 5 160.60 applies to the dismissal of the charges f o r which petitioner was arrested, however, h e r answer was true when she did not divulge her arrest, because it was a nullity, and she was restored to her status before the arrest, as if it never occurred. wilson.140 People v. Patterson, 7 8 N.Y.2d 711, 7 1 5 5 [* 7] (1991). Even though she attributed her nondisclosure to an unknowing or inadvertent oversight, which, as the court previously recognized, P . L . 5 4 0 0 . 0 0 ( 1 ) doee not forgive, she was entitled under C.P.L § 160.60 to deny her arrest. Peonle v. Patterson, 78 N.Y.2d at 715; Taylor v. LoquerciQ, 106 A.D.2d 391, 392 (2d Dep't 1984). Penal Law 5 4 0 0 . 0 0 ( 1 ) did not require petitioner to divulge information regarding h e r arrest; the statute only required that her statements in her license application be true. Pursuant to C . P . L . § 160.60, they were. While the license application may have required her to disclose any arrest, C . P . L . § 160.60 relieved her from any such non-statutory requirement. Reapondent may not create a duty to disclose a fact t h a t never occurred. Pursuant to C . P . L . § 160.60, no arrest ever occurred. 111. VACATIJR OF THE C O v r C T ~ S ORPER AND REVERSAI; OF RESPONDENT'S DETERMINATION Because petitioner's nondisclosure of h e r arrest formed the sole basis for respondent's denial of a handgun license to petitioner, and under the law her arrest never occurred, respondent's denial of the license was based on an error of law and unsupported by any evidence that petitioner had failed to make a required disclosure. C . P . L . R . 5 7803(3) and (4). Because and respondent's denial was "without regard to the factsii "without sound b a s i s , ' I it must be reversed. P a l l v. Board of Educ., 34 N.Y.2d 222, 231 (1974). See G Q o d w i n v. P e r a i e s , 88 N.Y.2d 383, 392 (1996); Soho Alliance v , New York State Lis. Auth., 3 2 A.D.3d 363 (1st Dep't 2006). Therefore the court wilson.140 6 [* 8] grants petitioner's motion to vacate the court's order dated January 10, 2011, C . P . L . R . 5 5015(a) ( 2 ) , and grants the petition to the extent of remanding the proceeding to respondent f o r a new determination of h e r handgun license application without Consideration of an arrest June 9, 2000, and without consideration of any nondisclosure of s u c h an arrest, IV. LIMITATIONS UPON REMAND Respondent's Notice of Disapproval dated June 11, 2 0 0 9 , referring to petitioner's arrest June 9, 2000, informed petitioner that respondent denied her handgun license application because : YOU NEGLECTED TO REVEAL THIS ARREST ON YOUR NOTARIZED PISTOL LICENSE APPLICATION. THIS ARREST ALSO WAS NOT MENTIONED AT YOUR PERSONAL INTERVIEW WITH YOUR INVESTIGATOR . . , THE FALSE STATEMENTS REGARDING THIS INCIDENT IS GROUNDS FOR DISAPPROVAL. . V. Pet. Ex. A. This notice makes no reference to any grounds other than petitioner's failure to disclose her arrest, SO as to apprise h e r that respondent premised its denial on an additional ground. Mavo v, Personnel 3 8 R.C.N.Y. § 5 - 0 7 ( e ) and ( f ) . Review Bd. of Health & H o s ~ s .Corp., 65 A.D.3d 470, 472 (1st Dep't 2009); Benson v . Board of Educ, Qf Wapbinstpnville Cent, School Diet., 183 A.D.2d 996, 997 (3d Dep't 1992). Even if this notice were susceptible of another interpretation, reasonable notice of the grounds f o r adverse action must not relegate the B l o c k v. Ambach, 73 N.Y.2d 323, 333 (1989); Wolfe v, Kelly, 7 9 A.D.3d 4 0 6 , 410-11 ( l e t Dep't 2 0 1 0 ) applicant to guesswork. Mayo v, PerBonnel Review Bd. of Health wilaon.140 7 & ; Hosps. Corp., 65 A.D.3d [* 9] at 473. Nor does the record d i s c l o s e that respondent considered any other basis for denying petitioner the license. York State Ch., Inc., Associated Gen. Contra. of E,q., New Am. v. New York State Thruway Auth., 88 N.Y.2d 56, 75 (1996). See Mayo v , Personnel Review Bd. of Health 475; Benson v. Board of & HQSPS. CQrp., 65 A.D.3d at 471, Educ. of Washinqtonville C e n t . School Dist., 183 A.D.2d at 997. Since respondent presented no other ground f o r the denial, respondent may not now, upon remand, invoke any additional or different ground for denial. 3 8 R.C.N.Y. § 5 - 0 7 ( e ) and ( f ) ; Pantelidis v. New York City B d . of Stds. 314, 316-17 (1st Dep't 2007). & Appeala, 43 A.D.3d Earl v. Turner, 303 A.D.2d 282 (1st Dep't 2003). Due process requires that petitioner "be given notice of the charges and evidence" against her and "an opportunity to appear to rebut the charges,ll Strorn v. Erie County P i s t o l Permit Dent., 6 A.D.3d 1110, 1111 (4th Dep't 2004); to prepare adequately to defend the agency'8 charged grounds for its action; and "to submit proof in response.Ii Racicca v. AlleeandrQ, 19 A.D.3d 500, 501 (2d Dep't 2005). See Wolfe v. Kellv, 79 A.D.3d at 410; Mavo v. PersonneJ, Review Bd, of Health YOSP~, CorD,, 6 5 A.D.3d at 472-73; Gordon & v. LaCava, 203 A.D.2d 290, 291 (2d Dep't 1994); Benaon v. Board of Educ. of Washinqtonville Cent. School Dist., 183 A.D.2d at 9 9 7 . In the particular context of an administrative appeal: the charges need to be llreasonably specific, in light of all the relevant circumstances, to apprise the p a r t y whose rights are being determined of the charges against him . . and to allow f o r the preparation of an a d e q u a t e defense" wilson.140 8 [* 10] . . . . Wolfe v. pel.ly, (quoting Block v. Ambach, 73 7 9 A.D.3d a t 4 1 0 N.Y.2d at 333). Petitioner was entitled to notice of and an opportunity to prepare fully to address all the bases relied on for the agency's action in her prior administrative appeal, a8 well as through thils judicial review. 38 R.C.N.Y. § 5 - 0 7 ( e ) and (f); Block v. Ambach, 73 N.Y.2d at 3 3 3 ; Wolfe v. Kelly, 79 A.D.3d at 410; Pantelidis v. New York C i t y Bd. of S t d s . & Appeals, 43 A.D.3d at 316-17; Benaon v. Board of Educ. of w q t o n v i l l e Cent. School Dist., 183 A.D.2d at 9 9 7 . Even if the evidence were to show another basis for denying her a license, if that basis was not cited, it may not furnish a reason for denying her a license. Pantelidis v , New York City Bd. of S t d a . & Appeal8, 43 A.D.3d at 316-17. See Mayo v , Fexsonnel Review Bd. of Health C Q ~ D , , 5 A.D.3d at 6 472; & osp 8 . Rice v. Hilton Cent. $ch001 Dist. Bd. of Educ., 245 A.D.2d 1104, 1106 (4th Dep't 1997). V. CONCLUSION Consequently, upon the remand of t h e proceeding to respondent for a new determination of petitioner's application, respondent only may consider new circumstances that have arisen since its final determination July her application. 27, 2009, as grounds to deny Respondent still may not consider, however, any subsequent arrest or prosecution or nondisclosure of an arrest or prosecution to which C . P . L . 5 160.60 or any comparable provision of the Criminal Procedure Law applies. wilson.140 9 F,q,, C . P . L . 5 170.55(8). [* 11] This decision constitutes this court s order and judgment granting petitioner s motion to vacate the court s order dated January 10, 2011, and granting t h e petition to the extent set forth; denying any o t h e r r e l i e f sought by t h e petition or petitioner s motion; and dismissing this proceeding. 5015(a) (2)I 7 8 0 3 ( 3 ) ) and ( 4 ) DATED: I C.P.L.R. §§ 7806. July 25, 2 0 1 2 L Wm p l y 3 LUCY BILLINGS, J . S . C . FILED AU6 202012 NEW YORK C O U N n CLERKS OFFICE wilson.140 10

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