Bernstein v. Police Department

85 A.D.2d 574, 445 N.Y.S.2d 716, 1981 N.Y. App. Div. LEXIS 16369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1981
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Callahan, J.),‘entered December 2,1980, which annulled respondent’s determination denying petitioner’s application for a license to carry a concealed pistol and directed the issuance of said license, unanimously reversed, on the law, without costs or disbursements, and the petition dismissed. The burden of establishing “proper cause” for the issuance of a full-carry permit (see Penal Law, § 400.00, subd 2, par [e]) is on the applicant. (Hochreich v Codd, 68 AD2d 424, 426; Archibald v Codd, 59 AD2d 867.) The responsibility for determining whether an applicant has demonstrated proper cause is entrusted to the discretion of the licensing official (Hochreich v Codd, supra), whose administrative determination should not be disturbed unless it is arbitrary or capricious (Matter of Sullivan County Harness Racing Assn. v Glosser, 30 NY2d 269). On this record, it is clear that respondent’s determination to deny, on the basis of insufficient need, petitioner’s application for a permit to carry a concealed pistol on his person was neither arbitrary nor capricious. Petitioner, a 39-year-old attorney, specializing in criminal and matrimonial law and whose practice is such that he must often carry large amounts of cash in areas “noted for criminal activity”, failed to “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” (Matter of Klenosky v New York City Police Dept., 75 AD2d 793, affd 53 NY2d 685.) Concur — Sullivan, J. P., Ross, Markewich, Lupiano and Silverman, JJ.