Covell v. Aison

Appellate Division of the Supreme Court of New York

Covell v. Aison

153 A.D.2d 1001, 545 N.Y.S.2d 622, 1989 N.Y. App. Div. LEXIS 11971

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 28, 1989

StatusPublished

Cited by8 cases

This text of 153 A.D.2d 1001 (Covell v. Aison) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Covell v. Aison, 153 A.D.2d 1001, 545 N.Y.S.2d 622, 1989 N.Y. App. Div. LEXIS 11971 (N.Y. Ct. App. 1989).

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Opinion

Harvey, J.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506 [b] [1]) to review a determination of respondent County Judge of Montgomery County which denied petitioner’s application for a limited use pistol permit.

Petitioner challenges the denial of his application by respondent County Judge of Montgomery County (hereinafter respondent) for a limited use pistol permit as being arbitrary and capricious or an abuse of discretion. We do not agree. Such denial was mandatory, given petitioner’s 1971 conviction for criminal possession of a dangerous drug in the sixth degree (Penal Law former § 220.05), which constituted a "serious offense” for purposes of firearm licensing at that time (see, Penal Law § 265.00 [17] [b]; § 400.00 [1] [b]). Although the marihuana offense in question was downgraded by the Legislature from a misdemeanor to a violation and removed from Penal Law article 220 by the Marihuana Reform Act of 1977 (L 1977, ch 360), petitioner’s drug-related conviction was considered a "serious offense” at the time of its commission and it should be considered as such for purposes of firearm licensing despite its subsequent downgrading (cf., People v McMillen, 80 [1002]*1002AD2d 966). Accordingly, the denial of the permit by respondent was legally mandated (see, Penal Law § 400.00 [1] [b]; Matter of Schnell v Spano, 120 AD2d 669).

Respondent also denied the permit as a matter of discretion in light of the existence of and circumstances surrounding petitioner’s marihuana conviction as well as his prior conviction for criminal trespass. Considering respondent’s broad discretion in ruling on such matters (see, Matter of Anderson v Mogavero, 116 AD2d 885), we find nothing improper in his determination. Petitioner’s remaining arguments have been examined and have been found to be without merit.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.

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Harvey, J.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506 [b] [1]) to review a determination of respondent County Judge of Montgomery County which denied petitioner’s application for a limited use pistol permit.

Petitioner challenges the denial of his application by respondent County Judge of Montgomery County (hereinafter respondent) for a limited use pistol permit as being arbitrary and capricious or an abuse of discretion. We do not agree. Such denial was mandatory, given petitioner’s 1971 conviction for criminal possession of a dangerous drug in the sixth degree (Penal Law former § 220.05), which constituted a "serious offense” for purposes of firearm licensing at that time (see, Penal Law § 265.00 [17] [b]; § 400.00 [1] [b]). Although the marihuana offense in question was downgraded by the Legislature from a misdemeanor to a violation and removed from Penal Law article 220 by the Marihuana Reform Act of 1977 (L 1977, ch 360), petitioner’s drug-related conviction was considered a "serious offense” at the time of its commission and it should be considered as such for purposes of firearm licensing despite its subsequent downgrading (cf., People v McMillen, 80 [1002]*1002AD2d 966). Accordingly, the denial of the permit by respondent was legally mandated (see, Penal Law § 400.00 [1] [b]; Matter of Schnell v Spano, 120 AD2d 669).

Respondent also denied the permit as a matter of discretion in light of the existence of and circumstances surrounding petitioner’s marihuana conviction as well as his prior conviction for criminal trespass. Considering respondent’s broad discretion in ruling on such matters (see, Matter of Anderson v Mogavero, 116 AD2d 885), we find nothing improper in his determination. Petitioner’s remaining arguments have been examined and have been found to be without merit.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.

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Bluebook (online)

153 A.D.2d 1001, 545 N.Y.S.2d 622, 1989 N.Y. App. Div. LEXIS 11971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/covell-v-aison-nyappdiv-1989.

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