| Matter of Figel v Dwyer |
| 2010 NY Slip Op 06028 [75 AD3d 802] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jason Figel, Appellant, v Paul F. Dwyer,as Town Justice of the Town of Bethlehem, Respondent. |
—[*1] Paul F. Dwyer, Albany, respondent pro se.
Spain, J. Appeal from a judgment of the Supreme Court (O'Connor, J.), entered April 6, 2009in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent denying petitioner's request for a certificate ofrelief from disabilities.
By notice of motion, petitioner, the owner of a retail business in Brooklyn, applied torespondent for a certificate of relief from disabilities (hereinafter CRD) (see CorrectionLaw § 702) in connection with a 1994 conviction in the Town Court of the Town ofBethlehem, upon his guilty plea to criminal possession of a weapon in the fourth degree, a classA misdemeanor. This conviction is a "serious offense" for purposes of eligibility requirementsfor licenses to carry firearms (see Penal Law § 400.00 [1] [c]; § 265.00[17]). According to petitioner, the application for a CRD was made as part of his pendingapplication for a concealed handgun license to the New York City police department (seePenal Law § 400.00), which was granted with limitations on administrative appeal, butcontingent upon petitioner's acquisition of a CRD.[FN1][*2]
Respondent denied petitioner's application for a CRD in aletter decision dated April 24, 2008, which stated only, "In consideration of all of the facts, andargument by counsel for the defense and prosecution, the [c]ourt has determined to deny the. . . petition for a [CRD]." Petitioner commenced this CPLR article 78 proceedingchallenging respondent's decision as irrational and arbitrary and capricious. Supreme Court, in awritten decision, dismissed the petition, finding a rational basis in the record for thedetermination.
On petitioner's appeal, we reverse, annul respondent's determination denying the CRD andremit for reconsideration of the application. Pursuant to Correction Law § 702, a "court ofthis state may, in its discretion, issue a [CRD] to an eligible offender for a conviction thatoccurred in such court," where, as here, no term of imprisonment was imposed (Correction Law§ 702 [1]; see Correction Law § 701). The CRD may be issued at sentencingor "at any time thereafter, in which case it shall apply only to disabilities" (Correction Law§ 702 [1] [i], [ii]). Issuance of a CRD is authorized only after the court considers theenumerated statutory factors and is satisfied that the applicant is an "eligibleoffender,"[FN2]that "[t]he relief to be granted by the certificate is consistent with the rehabilitation of the eligibleoffender," and that the granting of the certificate "is consistent with the public interest"(Correction Law § 702 [2]).
Where, as here, petitioner challenges an administrative determination made where a hearingis not required, appellate review is limited to whether the determination lacks a rational basis andis, thus, arbitrary and capricious (see Matter of Arrocha v Board of Educ. of City ofN.Y., 93 NY2d 361, 363 [1999]).[FN3]In rendering a determination to either grant (in whole or in part) or deny petitioner's applicationfor a CRD, respondent is required to consider and apply the statutorily enumerated factors setforth in Correction Law § 702 (2) (see Matter of Boatman v New York State Dept. of Educ., 72 AD3d1467, 1469 [2010]; Matter of Gallov State of N.Y., Off. of Mental Retardation & Dev. Disabilities, 37 AD3d 984, 985-986[2007]; see also Matter of Arrocha v Board of Educ. of City of N.Y., 93 NY2d at364-365). The absence in respondent's cursory letter decision of any mention of the statutoryfactors or the grounds for the denial precludes meaningful review of the rationality of thedecision.
To the extent that respondent submits, for the first time in its opposition to the CPLR article78 petition, a rationale for the decision, it may not be considered given the restraint on judicialpower of review here. Notably, "[a] fundamental principle of administrative law long accepted. . . limits judicial review of an administrative determination solely to the groundsinvoked by the [respondent], and if those grounds are insufficient or improper, the court ispowerless to sanction the determination by substituting what it deems a more appropriate orproper basis" (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593[1982]). Consequently, neither Supreme Court nor this Court may search the record for a rationalbasis to support respondent's determination, or substitute its judgment for that of respondent inapplying and weighing the enumerated discretionary statutory factors, in the first instance.
Given the foregoing, we cannot conclude that a rational basis exists for respondent'sdecision, which must be annulled and the matter remitted for reconsideration of petitioner'sapplication for a CRD (see Matter of Gallo v State of N.Y., Off. of Mental Retardation &Dev. Disabilities, 37 AD3d at 986). We express no opinion on the merits of petitioner'sapplication.
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, determination annulled and matter remitted to respondent forfurther proceedings not inconsistent with this Court's decision.
Footnote 1: Petitioner's application for ahandgun license and the police department's decision are not included in the record on appeal.
Footnote 2: An eligible offender is a personconvicted of a crime or offense but not more than one felony (see Correction Law§ 700 [1] [a]). The record before us reflects only the 1994 misdemeanor conviction.
Footnote 3: We note that the parties havenot addressed the issue of whether a CPLR article 78 special proceeding in the nature ofmandamus to review (see CPLR 7803 [3]) is an appropriate vehicle for obtaining reviewof a court's denial of a CRD, as opposed to taking a direct appeal in the criminal matter.Correction Law article 23 does not specify the manner of review (compare CorrectionLaw § 755 [1] [providing for article 78 review of public agency decisions to denyemployment or licenses under Correction Law article 23-A]). It has been recognized that courtsmay act in an administrative capacity (see CPLR 7802 [a]) and "the Legislature is notprohibited by the separation of powers doctrine from conferring on the judicial branchadministrative functions . . . that are reasonably incidental to the performance ofjudicial duties" (Pringle v Wolfe, 88 NY2d 426, 434 n 3 [1996] [internal quotation marksand citation omitted], cert denied 519 US 1009 [1996]; see e.g. Matter of Schmitt v Skovira,53 AD3d 918, 919-920 [2008]). Thus, we cannot say that article 78 review is improper here.