Wheeler v. Town of Ulster

Papers considered: Verified Petition with Exhibits A-D; Verified Answer; Affirmation in Reply of Craig M. Wallace For a Judgment Pursuant to CPLR Article 78 Directing a Return of Firearms to Petitioner, Decision & Order   Petitioner Daniel Wheeler (hereinafter “Wheeler”) commenced this Article 78 proceeding seeking an order directing Respondents Town of Ulster and Town of Ulster Police Department (hereinafter referred to together as “Town Police”) to release to him four handguns, a Marlin 336RC 30-30 caliber rifle, a Winchester model 1300 20-gauge shotgun, a Ruger model 10 22 Lr caliber rifle and a light-colored wooden billy club with leather strap.¹ Wheeler holds a valid pistol license for the handguns.² The Town Police have answered the petition alleging that they do not have the authority to return Wheeler’s weapons to him without an order from this court. Otherwise, they take no position on the relief requested in this proceeding. The factual background of the case is not disputed. On July 2, 2019, Wheeler had a verbal confrontation with another individual, C.S., during which he is alleged to have displayed a “billy-club.” As a result, Wheeler was arrested and charged on July 3, 2019, in the Town of Ulster justice court with criminal possession of a weapon in the fourth degree, a class A misdemeanor.³ At arraignment, the town justice issued an order of protection prohibiting Wheeler from contacting or communicating with C.S. and further directing Wheeler to surrender all firearms owned by him to the Town Police.⁴ Wheeler surrendered the weapons to the Town Police, who continue to hold them. On or about February 28, 2020, the Town of Ulster justice court dismissed and sealed the misdemeanor weapons charge against Wheeler.⁵ The temporary order of protection has expired by its terms as of January 3, 2020. Nonetheless, the Town Police refuse to return the firearms to Wheeler, absent a court order, and suggest that this court order a hearing prior to directing a return of the weapons. Under New York Criminal Procedure Law §530.13 a local criminal court may issue a temporary order of protection prohibiting the defendant in a criminal proceeding from engaging in various types of conduct with the alleged victim, including a directive that the defendant refrain from any contact with him or her (see N.Y. Criminal Procedure Law s530.13 [1] [a]). In addition, of relevance here, the order of protection may order the defendant to surrender to a designated law enforcement agency by a specified date and time, any or all firearms, rifles or shotguns owned or possessed by him or her (see NY Criminal Procedure §530.14). Although these statutes authorize the local criminal court to order the surrender of designated firearms, previously they did not provide a procedural mechanism for the subsequent return of the firearms to the owner upon dismissal or other termination of the criminal proceeding. New York courts described the absence of a firearms return mechanism as a “legislative oversight” (see e.g., Aloi v. Nassau Cty Sheriff’s Dept, 9 Misc 3d 1050, 1052-1053 [2005]). One potential remedy for the party seeking return of the firearms was to make an application to the officer with custody of the firearms for their return (Blauman v. Blauman, 2 AD3d 727 [2d Dept 2003]). Not surprisingly, the law enforcement agency having custody of the firearms will often refuse to return them without a court order, which is the present situation before this ourt. At that point, the owners next step is typically to start an Article 78 proceeding in the Supreme Court seeking an order directing the custodian of the firearms to return them (Aloi, 9 Misc 3d at 1052-1053). Under prior law, the burden of deciding whether to return the firearms was placed entirely on Supreme Court, leaving that determination to a judge who was not familiar with the incident that resulted in the order of protection or the parties or their backgrounds. Further, no guidance existed as to who were the proper parties to the Article 78 proceeding or who should receive notice thereof, including potentially the alleged victim and/or the District Attorney’s office. The “legislative oversight” has been corrected through enactment of Chapter 60 of the Laws of 2018, Chapter 60, §4. This legislation added a new subdivision 5 (b) to Criminal Procedure Law §530.14 authorizing any court exercising criminal jurisdiction, upon termination of a suspension order, to order the return of a firearm, rifle or shotgun, upon a written finding that there is no legal impediment to the subject’s possession of the weapon. Significantly, the statute now requires that the district attorney, the county attorney, the protected party and the licensing officer responsible for issuance of the firearms license receive notice of the proceeding and an opportunity to be heard (see Criminal Procedure Law §530.14 [5] [b]). Plainly, the application for return of the firearms is triggered by the termination of the order suspending the firearms license which is mandatory in all cases where the owner of the firearms hold a license to own them (CPL §530.14 [6]). Although the town justice court in this case ordered the surrender of Wheeler’s firearms, it appears to have overlooked the requirement that his license be suspended by failing to check the appropriate box on the order of protection.⁶ Nonetheless this court will treat the surrender order as a de facto suspension of Wheeler’s license privileges since by operation of law in surrendering the weapons to law enforcement the right to possession or ownership under his license was temporarily negated. However, now that the underlying criminal proceeding against Wheeler has been dismissed and the order of protection terminated, he has the right to assert that the suspension of his license privilege should be lifted and, with that, in the absence of any legal impediments, he has the right to have the weapons returned to him from the Town Police. This court has the statutory authority to exercise criminal jurisdiction over the present proceeding because it is a statewide court of general jurisdiction (Judiciary Law §140-b). It is “a court of record exercising criminal jurisdiction” within the meaning of CPL §530.14 [5] [b]) authorized to hear the instant application for return of the weapons. However, all of the parties set forth in the current statute including the district attorney, county attorney, protected party and licensing authority must receive notice of this proceeding and have an opportunity to be heard (see CPL §530.14 [5] [b]). These individuals may be able to offer input on the issue before this court of whether there is any legal impediment to the return of the weapons to Wheeler. Given the absence of the required notice to potentially interested parties in this case, this proceeding must be dismissed, without prejudice. Accordingly, it is hereby ORDERED, that this Article 78 proceeding is hereby dismissed without prejudice and without costs. This shall constitute the Decision and Order of the court. The original Decision and Order and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry. SO ORDERED. Dated: December 4, 2020