| Matter of Velez v DiBella |
| 2010 NY Slip Op 07178 [77 AD3d 670] |
| October 5, 2010 |
| Appellate Division, Second Department |
| In the Matter of Ralph Velez, Jr., Petitioner, v Robert M.DiBella, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael J. Siudzinski of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Robert M.DiBella, Acting Justice of the Supreme Court, Westchester County, entered January 15, 2010, which,upon reargument, adhered to a prior determination entered July 21, 2009, denying the petitioner'sapplication for a pistol license.
Adjudged that the determination entered January 15, 2010, is confirmed, the petition is denied, andthe proceeding is dismissed on the merits, without costs or disbursements.
Penal Law § 400.00 (1), which sets forth the eligibility requirements for obtaining a pistollicense, requires, inter alia, that the applicant be at least 21 years of age, of good moral character withno prior convictions of a felony or serious offense, and a person "concerning whom no good causeexists for the denial of the license." (Penal Law § 400.00 [1] [g].) "A pistol licensing officer hasbroad discretion in ruling on permit applications and may deny an application for any good cause"(Matter of Orgel v DiFiore, 303 AD2d 758, 758 [2003]; see Penal Law §400.00 [1] [g]; Matter of Gonzalez vLawrence, 36 AD3d 807, 808 [2007]). Contrary to the petitioner's contention, therespondent licensing officer's determination that good cause existed to deny his application based uponthe petitioner's criminal history, which consisted of six arrests and a conviction for the violation ofdisorderly conduct, was not arbitrary and capricious and should not be disturbed (see Matter ofGonzalez v Lawrence, 36 AD3d at 808; Matter of Peric v New York City Police Dept., License Div., Rifle/ShotgunSection, 5 AD3d 142 [2004]; Matter of Servedio v Bratton, 268 AD2d 356[2000]). The fact that five of the petitioner's arrests resulted in the dismissal of the charges against himor were resolved in his favor, did not preclude the respondent from considering the underlyingcircumstances surrounding those arrests in denying the application (see Matter of Gonzalez vLawrence, 36 AD3d at 808; Matter ofPeric v New York City Police Dept., License Div., Rifle/Shotgun Section, 5 AD3d 142[2004]; Matter of Abramowitz v Safir, 293 AD2d 352, 353 [2002]; Matter of Servedio vBratton, 268 AD2d 356 [2000]).
We reject the petitioner's claim that the respondent unlawfully abdicated his decision-makingauthority to the Westchester Department of Public Safety (hereinafter the Department) by following itsrecommendation to deny the application. The respondent's written decision denying the applicationdemonstrates that the Department's recommendation was not the sole basis for his determination(cf. Matter of Buffa v Police Dept. of Suffolk County, 47 AD2d 841 [1975]).[*2]
The petitioner's contention that certain aspects of the licensingeligibility requirements of Penal Law § 400.00 (1) unconstitutionally infringe upon his SecondAmendment right to bear arms is not properly before this Court in an original proceeding pursuant toCPLR article 78. A declaratory judgment action is the proper vehicle for challenging theconstitutionality of a statute (see Matter ofHighland Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66 AD3d678, 681 [2009]; Matter of Parry vCounty of Onondaga, 51 AD3d 1385, 1387 [2008]; P & N Tiffany Props., Inc. v Village of Tuckahoe, 33 AD3d 61, 64[2006]). Rivera, J.P., Dickerson, Eng and Austin, JJ., concur.