Pelose v. County Court

Appellate Division of the Supreme Court of New York

Pelose v. County Court

53 A.D.2d 645, 384 N.Y.S.2d 499, 1976 N.Y. App. Div. LEXIS 13366

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

DecidedJune 14, 1976

StatusPublished

Cited by24 cases

This text of 53 A.D.2d 645 (Pelose v. County Court) 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

Pelose v. County Court, 53 A.D.2d 645, 384 N.Y.S.2d 499, 1976 N.Y. App. Div. LEXIS 13366 (N.Y. Ct. App. 1976).

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Opinion

Proceeding pursuant to CPLR article 78 inter alia to review a determination of the respondent County Court Judge, dated February 13, 1975, which, after a hearing, revoked petitioner’s license to carry a pistol. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. The procedure employed in revoking the petitioner’s pistol license involved no infringement of his constitutional rights and complied sufficiently with the requirements of the due process clause of the Fourteenth Amendment. The State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument. While a validly issued pistol license is an entitlement which should be protected from arbitrary and unreasonable government action adversely affecting its continued enjoyment, the due process protection of an article 78 proceeding is sufficient to serve this purpose (see Matter of Horodner v Fisher, 38 NY2d 680). We hold, upon the record in this proceeding, that the determination of the licensing officer was neither arbitrary nor capricious. It is uncontroverted that the petitioner was arrested in April, 1968 for unlawfully carrying a pistol aboard an airplane. As the licensing officer concluded, this conduct not only constituted a violation of Federal and State law, but also evinced an insensibility to the rights and safety of the crew and passengers of that flight. Additionally, the apparent lack of candor and the irritability of the petitioner at the hearing, as noted by the licensing officer, in and of themselves would warrant the revocation of the license. Although not crucial to our determination, it also appears that the petitioner has been recently convicted of tax evasion. Finally we note that Special Term should have determined the proceeding; however, it having been transferred to this court, we may determine all of the issues [646]*646(see Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174). Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.

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Proceeding pursuant to CPLR article 78 inter alia to review a determination of the respondent County Court Judge, dated February 13, 1975, which, after a hearing, revoked petitioner’s license to carry a pistol. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. The procedure employed in revoking the petitioner’s pistol license involved no infringement of his constitutional rights and complied sufficiently with the requirements of the due process clause of the Fourteenth Amendment. The State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument. While a validly issued pistol license is an entitlement which should be protected from arbitrary and unreasonable government action adversely affecting its continued enjoyment, the due process protection of an article 78 proceeding is sufficient to serve this purpose (see Matter of Horodner v Fisher, 38 NY2d 680). We hold, upon the record in this proceeding, that the determination of the licensing officer was neither arbitrary nor capricious. It is uncontroverted that the petitioner was arrested in April, 1968 for unlawfully carrying a pistol aboard an airplane. As the licensing officer concluded, this conduct not only constituted a violation of Federal and State law, but also evinced an insensibility to the rights and safety of the crew and passengers of that flight. Additionally, the apparent lack of candor and the irritability of the petitioner at the hearing, as noted by the licensing officer, in and of themselves would warrant the revocation of the license. Although not crucial to our determination, it also appears that the petitioner has been recently convicted of tax evasion. Finally we note that Special Term should have determined the proceeding; however, it having been transferred to this court, we may determine all of the issues [646]*646(see Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174). Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.

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Bluebook (online)

53 A.D.2d 645, 384 N.Y.S.2d 499, 1976 N.Y. App. Div. LEXIS 13366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pelose-v-county-court-nyappdiv-1976.

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