for a Judgment Pursuant to Civil Practice Law and Rules Article 78 Reviewing and Annulling an August 4, 2021 Final Agency Determination of the Office of the Police Commissioner, Nassau County Police Department, Affirming a February 26, 2021 Denial of Pistol License Application #R21-10 by the Pistol License Section, Nassau County Police Department, UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, including e-filed documents/exhibits numbered 2 through and including 28, this motion is decided as follows: The Petitioner Anthony Nastasi (“Petitioner”) moves the Court by Notice of Petition for a Judgment and Order pursuant to Civil Practice Law and Rules Article 78, reviewing and annulling an August 4, 2021 Final Agency Determination of the Office of the Police Commissioner, Nassau County Police Department, affirming Denial of Pistol License Application #R21-10 by the Pistol License Section, Nassau County Police Department, dated February 26, 2021, or in the alternative, holding a hearing on the matter. The Petitioner contends that Respondents’ denial of his pistol licence application was arbitrary and capricious, was devoid of a rational basis, and violated his right to due process. In contrast, the Respondents denies the Petitioner’s allegations and seeks dismissal of this special proceeding under CPLR §404[a] and CPLR §7804[f]. On or about March 20, 2020, Petitioner submitted his application to the Pistol License Section (“PLS”), Nassau County Police Department, for a Hunting/Target pistol license. By letter dated February 23, 2021, and received on February 26, 2021, Petitioner was advised by the PLS that his application for a Nassau County Target/Hunting pistol license (PLS Application Number R21-10) was denied. The basis for that denial was Petitioner’s failure to report his involvement in court proceedings, his failure to report that he was subject of a Temporary Order of Protection, the fact that his NYS driver’s license was suspended, and what the PLS determined was his purported “lack of good moral character.” The PLS advised Petitioner that he had the ability to appeal its decision by sending a letter to the PLS within ten (10) days requesting an appeal. On March 3, 2021, the PLS received correspondence from Petitioner wherein he requested an appeal pursuant to Chapter 1, Section C(1) of the PLS Handbook. On or about March 23, 2021, Petitioner, timely submitted his appeals application to review the PLS’s determination disapproving his application for a Nassau County Hunting/Target pistol license. On July 30, 2021, Appeals Officer Christopher V. Todd, Bureau of the Legal Bureau, Nassau County Police Department, denied Petitioner’s appeals application for a Hunting/Target pistol license. By written letter dated August 4, 2021, Police Commissioner Patrick J. Ryder made a final agency determination affirming the July 30, 2021 findings of Appeals Officer Christopher V. Todd which denied Petitioner’s appeals application for a Hunting/Target pistol license. In opposition, the Respondents contend that the denial of the pistol license application was not “arbitrary and capricious” or “devoid of a rational basis.” The Respondents contend that the Petitioner’s pistol license application was denied based upon a determination that the Petitioner was involved with interpersonal disputes with various entities and individuals, that Petitioner submitted “untruthful” responses throughout his pistol license application, and that the Petitioner had been subject to moving violations, tax payment-related issues, domestic incident(s), mental health hospitalization, and sustained a suspension of his driver’s license. CPLR Article 78 relief from administrative determinations is available pursuant to CPLR 7803(1) (mandamus to compel) and/or CPLR 7803(3) (mandamus to review) (see Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753 [1991]; Matter of Halperin v. City of New Rochelle, 24 AD3d 768 [2d Dept 2005]; CPLR §7801[1]). While Petitioner does not specify under which section of Article 78 he moves, CPLR §7803(3) is relevant and states that: The only questions that may be raised in a proceeding under this article are: 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed. It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion. (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 NY2d 508, 520 [1956]). “The petitioners have the burden of showing that respondent’s determination was arbitrary, capricious or affected by an error of law” (Matter of Grossman v. Rankin, 43 NY2d 493 [1977]; see Matter of Rosner v. Civil Serv. Comm., 38 AD2d 628 [3d Dept 1971]). Turning to Constitutional concerns raised by the Petitioner, a state cannot prevent law-abiding citizens from publicly carrying handguns for the failure to demonstrate a special need for self-defense (NY State Rifle & Pistol Assn. v. Bruen, _US_, _, 142 S. Ct. 2111, 2117[2022]). In Bruen, the United States Supreme Court determined that New York State’s handgun licensing regime, which issued public carry licenses only when an applicant demonstrated a special need for self defense, violated the Constitution because the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home. In District of Columbia v. Heller (554 US 570 [2008]), the Supreme Court determined that while the Constitution permits a variety of tools for combating the problem of handgun violence — including some measures regulating handguns — the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home (Heller, 554 US at 573 [2008]). It is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons that the Second Amendment protects the possession and use of weapons that are in common use at the time. (Bruen, 142 S Ct at 2117 [2022]). Ultimately, the United States Supreme Court concluded that the Second Amendment does not memorialize a second class right but rather a fundamental right to keep and bear arms. (Bruen, 142 S Ct 2111, 2121 [2022]) Self defense is a basic right and is a central component of the Second Amendment right, and the Supreme Court has recognized that this fundamental right applies to handguns, which are the preferred firearm to keep and use for protection of one’s home and family. (McDonald v. City of Chicago, 561 US 742 [2010]). Recently, in applying Bruen, New York Courts recognize that New York’s “proper cause” standard, under which gun permit applicants had to demonstrate a special need for self-protection as distinguishable from that of the general community, violates the Second and Fourteenth Amendments of the United States Constitution. (Matter of Callahan v. City of New York, 208 AD3d 422 [1st Dept 2022]) Nevertheless, this matter concerns only whether or not the Respondents acted arbitrarily or capricious in the denial of Petitioners application for a pistol permit. When substantial evidence supports an administrative agency’s determination, a court may not substitute its judgment for that of the agency, even if there is evidence supporting a contrary conclusion. (Matter of Boheln v. DiNapoli, 34 NY3d 434 [2020]). Judicial review of an administrative determination is guided by the “abuse of discretion” standard, which translates into a circumscribed judicial inquiry: the administrative determination must be upheld unless it “shock[s] the judicial conscience.” (John Paterno, Inc. by & Through Paterno v. Curiale, 88 NY2d 328, 336 [1996]). A reviewing court may not weigh the evidence or reject the choice made by the hearing officer where there is conflicting evidence and room for choice exists. (Matter of Tenemille v. Town of Ramapo, 188 AD3d 704, 705 [2d Dept 2020]) Bruen distinctly left intact a state’s ability to impose a licensing scheme. People v. Caldwell, 2022 NY Slip Op 22281 [Sup Ct. Queens County 2022]) Like other constitutionally protected rights, the right to bear arms is subject to certain reasonable, well-defined restrictions, including properly administered, even handed licensing requirements. (People v. Rodriguez, 171 NYS3d 802 [ Sup Ct, New York County 2022]). The most recent United States Supreme Court decision in Bruen clearly and finally put the “may issue” statutory scheme concerning gun permits in New York to rest as constitutionally violative. Almost immediately after Bruen, New York State Governor Hochul and the New York State Legislature subsequently passed new laws with a myriad of restrictions concerning among other things, qualifications required for the permitting process and where and how the fundamental right to keep and bear arms could be exercised. (Chapter 371 of the Laws of 2022 [enacted July 1, 2002, eff. September 1, 2022]; see also Penal Law §265.01-e and Penal Law §400 [as amended]) One may argue that these new restrictions imposed by the State of New York effectuate the same result as the prior constitutionally violative “may issue” scheme. Indeed, on October 6, 2022, a U.S. District Court issued a temporary restraining order against the enforcement of aspects of New York’s recently enacted gun laws based upon the historical analysis as set forth in Bruen. (Antonyuk v. Hochul, US Dist Ct., ND NY, 1:22 CV 0986 [Suddaby, J., 2022]) However, even after considering all of the recent developments in Second Amendment jurisprudence, this Court cannot find that Respondents have acted in an arbitrary and capricious manner in denying the Petitioner his license. In the Petitioner’s own hand he admits to having incorrectly relied upon his counsel’s advice about failing to disclose a suspended driver’s license. Additionally, the Petitioner had numerous traffic summonses issued against him that he failed to disclose, failed to disclose that he was the subject of a proceeding in a California Court, and failed to disclose that he was the subject of an Order of protection at one time. Moreover, the form filled out and signed by Petitioner before a notary public has at least two clearly marked statements that the Petitioner, by signing same, acknowledged and agreed to: 1. “Any omission of fact or any false statement will be sufficient cause to deny this application and constitutes a crime punishable by fine, imprisonment or both;” and, 2. Wherein the Petitioner signs his name contains the statement “I, [Petitioner] being duly sworn, depose and say that I am the above-named person, I have personally read and answered each and every question herein and each and every answer is full, true, and correct in every respect.” Whether or not the Petitioner now or shortly after the initial denial had possible explanations for statements that could be considered either untrue, false, misleading, inaccurate or otherwise omitted is not an issue for this Court to decide. These matters were considered and decided by the Appeals Officer, Christopher V. Todd, and while the statement that a pistol license is a privilege not a right is not an entirely accurate legal statement, the recent United States Supreme Court ruling in Bruen does not command state and local licensing authorities to accept applications with inaccurate, misleading, incomplete, or otherwise fraudulent information. Nothing in this record evinces that an arbitrary or capricious decision was made in denying Petitioner’s application. To the contrary, the Petitioner was afforded a full and fair opportunity to apply for his license as well as a full and fair opportunity to appeal the denial of same. Accordingly, it is hereby ORDERED, that the Petition herein is DENIED; and it is further ORDERED, that Respondent’s motion to dismiss the petition is GRANTED in its entirety. This constitutes the Decision and Order of the Court. Dated: October 13, 2022
