| Matter of Corbett v City of New York |
| 2018 NY Slip Op 02298 [160 AD3d 415] |
| April 3, 2018 |
| Appellate Division, First Department |
[*1]
| In the Matter of Jonathan Corbett, Appellant, v City ofNew York et al., Respondents. |
Jonathan Corbett, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Elina Druker of counsel), forrespondents.
Judgment (denominated an order) of Supreme Court, New York County (Carol R. Edmead,J.), entered February 7, 2017, insofar as it denied the petition and dismissed the proceedingseeking a judgment declaring the "proper cause" requirement of New York's firearms licensinglaw (Penal Law § 400.00 [2] [f]) to be facially unconstitutional "insofar as it isinterpreted to mean that a citizen must demonstrate a greater need than that of the averagecitizen, and in combination with the state's blanket ban on open carry" of handguns; declaringthree questions on the New York City Police Department's (NYPD) concealed carry licenseapplication, relating to applicants' discharge from employment, prior use of "narcotics ortranquilizers," and prior subpoena or testimony before any governmental hearing, to be arbitraryand capricious and violative of the US Constitution 2nd Amendment; and directing respondentsto issue petitioner a concealed carry handgun license, unanimously affirmed, without costs.Appeal from that portion of the judgment denying petitioner's request for an order directingNYPD to produce documents responsive to petitioner's request, under the Freedom ofInformation Law (FOIL), for documents demonstrating how NYPD evaluates concealed carryhandgun license applications, unanimously dismissed, without costs, as moot.
The "proper cause" element of New York's handgun licensing scheme (see Penal Law§ 400.00 [2] [f]) passes intermediate constitutional scrutiny, as it is substantiallyrelated to the state's important interest in protecting public safety (see Kachalsky v County ofWestchester, 701 F3d 81, 96-97 [2d Cir 2012], cert denied sub nom. Kachalsky vCacace, 569 US 918 [2013]; seegenerally People v Hughes, 22 NY3d 44, 52 [2013]; Matter of Delgado v Kelly, 127 AD3d 644 [1st Dept 2015];New York State Rifle & Pistol Assn., Inc. v City of New York, 883 F3d 45, 64 [2d Cir2018]). Moreover, viewed as a whole, New York's handgun licensing scheme does not imposeany blanket or near-total ban on gun ownership and possession (see Kachalsky, 701 F3dat 94-99).
In addition to the "proper cause" requirement specific to concealed carry licenses, the statutesets forth other requirements, including that the applicant be "of good moral character" (PenalLaw § 400.00 [1] [b]). The three questions on the handgun license applicationchallenged by petitioner, which he refused to answer, relate to (1) whether he has beendischarged from any employment; (2) past use, if any, of narcotics or tranquilizers; and (3) pasttestimony before any executive, legislative or judicial body. These questions are designed toelicit information that can assist the background investigation that is undertaken by the NewYork Police Department in connection with the application, and accordingly, are justifiedbecause they serve to promote the government's "substantial and legitimate interest. . . in insuring the safety of the general public from individuals who, by theirconduct, have shown themselves to be lacking the essential temperament or character whichshould be present in one entrusted with a dangerous instrument" (Matter of Warmouth v Zuckerman, 138AD3d 752, 753 [2d Dept 2016] [internal quotation marks [*2]omitted]; see also Matter of Delgado v Kelly, 127 AD3d 644 [2015],supra).
Petitioner has not established that the denial of his application was the result of corruption orother impropriety (see Matter of Hughes v Suffolk County Dept. of Civ. Serv., 74 NY2d833, 834 [1989]; Matter of Sunnen v Administrative Rev. Bd. for Professional Med.Conduct, 244 AD2d 790, 791 [3d Dept 1997], lv denied 92 NY2d 802 [1998]).
Respondents' production of responsive documents, albeit beyond the statutory 10-day limitand "subsequent to the commencement of this article 78 proceeding," mooted his challenge to thedenial of his FOIL request, and we accordingly dismiss that portion of the appeal (Matter of Alvarez v Vance, 139 AD3d459, 460 [1st Dept 2016]; seeMatter of Babi v David, 35 AD3d 266, 267 [1st Dept 2006]). Even if the proceeding hadnot been mooted, the remedy for NYPD's failure to timely respond to the administrative appealfrom the denial of the FOIL request would not have been an order directing full production, butrather a "remand for respondent to comply" (Alvarez, 139 AD3d at 460; see Matter of Molloy v New York CityPolice Dept., 50 AD3d 98, 100 [1st Dept 2008]). Concur—Friedman, J.P.,Sweeny, Gesmer, Kern, Singh, JJ.