GURNETT, MICHAEL A. v. BARGNESI, HONORABLE JAMES F. ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
38
OP 16-00837
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF MICHAEL A. GURNETT, PETITIONER,
V MEMORANDUM AND ORDER
JAMES F. BARGNESI, ACTING NIAGARA COUNTY COURT
JUDGE, IN HIS CAPACITY AS LICENSING OFFICER FOR
PISTOL PERMITS IN NIAGARA COUNTY AND INDIVIDUALLY,
RESPONDENT.
JAMES OSTROWSKI, BUFFALO, FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF
COUNSEL), FOR RESPONDENT.
Proceeding pursuant to CPLR article 78 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department pursuant to CPLR 506 [b] [1]) to annul a determination of
respondent. The determination revoked the pistol permit of
petitioner.
It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking, inter alia, to annul the determination revoking his pistol
permit. We reject the contention of petitioner that he was denied his
right to due process of law. “It is well settled that a formal
hearing is not required prior to the revocation of a pistol permit
[where, as here,] the licensee is given notice of the charges and has
an adequate opportunity to submit proof in response” (Matter of Chomyn
v Boller, 137 AD3d 1705, 1706, appeal dismissed 27 NY3d 1119, lv
denied 28 NY3d 908 [internal quotation marks omitted]; see Matter of
Cuda v Dwyer, 107 AD3d 1409, 1409-1410; Matter of Strom v Erie County
Pistol Permit Dept., 6 AD3d 1110, 1111). Contrary to petitioner’s
further contention, we conclude that the determination is neither
arbitrary and capricious nor an abuse of discretion (see Chomyn, 137
AD3d at 1706). “It is well established that ‘[a licensing officer] is
vested with broad discretion in determining whether to revoke a pistol
permit and may do so for any good cause,’ including ‘a finding that
the petitioner lack[s] the essential temperament or character which
should be present in one entrusted with a dangerous [weapon] . . . ,
or that he or she does not possess the maturity, prudence,
carefulness, good character, temperament, demeanor and judgment
necessary to have a pistol permit’ ” (Matter of Peters v Randall, 111
-2- 38
OP 16-00837
AD3d 1391, 1392; see Chomyn, 137 AD3d at 1706). Here, the record
before the licensing officer demonstrated that petitioner had been
involved in several verbal or physical altercations with his then
wife, that the second of such altercations had resulted in
petitioner’s being charged with harassment in the second degree and
the issuance of a temporary order of protection, and that the third
had occurred in violation of that temporary order of protection,
giving rise to a charge of criminal contempt. Further, the transcript
of petitioner’s appearance before the licencing officer supports the
determination that the petitioner lacked credibility and was not
forthcoming about his history of mental health treatment and his
apparently ongoing treatment for depression. Finally, to the extent
that the contention is properly before us, we conclude that
petitioner’s contention that the revocation of his pistol permit
violates his rights under the Second and Fourteenth Amendments of the
United States Constitution is without merit (see Chomyn, 137 AD3d at
1706-1707; Cuda, 107 AD3d at 1410; see also Kachalsky v County of
Westchester, 701 F3d 81, 93-101, cert denied ___ US ___, 133 S Ct
1806).
Entered: February 3, 2017 Frances E. Cafarell
Clerk of the Court