Matter of Delgado v Kelly

Matter of Delgado v Kelly 2015 NY Slip Op 03475 Decided on April 28, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 28, 2015
Tom, J.P., Sweeny, Manzanet-Daniels, Clark, Kapnick JJ.
14955 104061/12

[*1] In re Carlos R. Delgado, Petitioner-Appellant,

v

Raymond Kelly, etc., Respondent-Respondent.

Law Offices of John S. Chambers, New York (John S. Chambers of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Drake A. Colley of counsel), for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 16, 2013, denying the petition seeking an order directing respondent to, inter alia, grant petitioner's application for a premises residence handgun license, denied by a determination of the Police Department's Handgun Licensing Division (NYPD-LD), dated June 20, 2012, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The NYPD-LD based its determination upon evidence indicating that petitioner made an untruthful statement on his application regarding a domestic violence incident that involved him, his wife and the police. This provided a rational basis for the NYPD-LD to conclude that petitioner did not meet the good moral character standard, given the totality of the information submitted in connection with the application (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 NY2d 222, 231 [1974]). Petitioner's argument that the licensing eligibility standards in Penal Law 400.00, et seq. , as applied herein, including the requirements of truthful entries on the license application and demonstration of good moral character, impermissibly impinge upon his Second Amendment right to have a firearm in his home, is unavailing. The licensing scheme at issue satisfies the requisite constitutional standard, intermediate scrutiny, as it serves a governmental interest in maintaining public safety (see Kachalsky v County of Westchester , 701 F3d 81, 94 n 17 [2d Cir 2012], cert denied __ US __, 133 S Ct 1806 [2013]; The New York State Rifle & Pistol Assoc. v The City of New York , 2015 WL 500172, *7, 2015 US Dist LEXIS 13956, *17-18 [SD NY 2015]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 28, 2015

CLERK