The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)DECISION AND ORDER Upon the foregoing documents, the Verified Petition is denied.BackgroundIn this Article 78 proceeding petitioner, John Allen, asks this Court to overturn the determination dated November 17, 2017 of respondents James O’Neill, Jonathan David, New York City Police Department License Division, and New York City Police Department that denied petitioner’s application for a premises residence handgun license. Petitioner alleges that the NYPD’s determination is: (1) arbitrary and capricious, (2) an abuse of discretion that violated petitioner’s constitutional rights; and (3) affected by multiple errors of law.On July 1, 2016, petitioner applied for a premises residence handgun license to the New York City Police Department License Division (hereinafter “License Division”). By notice dated April 25, 2017, the License Division informed petitioner that his application had been denied, citing petitioner’s arrest history from 1988 through 2009 as the reason for the denial. Petitioner’s arrest history during this period includes charges for robbery, criminal possession of a controlled substance, resisting arrest, assault, menacing, criminal possession of a weapon, and traffic violations. Petitioner administratively appealed the denial on May 17, 2017, emphasizing that of his seven arrests, three were dismissed, three resulted in convictions for which he obtained Certificates of Relief from Civil Disabilities, and one resulted in a Youthful Offender Adjudication. By notice dated November 17, 2018, the License Division informed petitioner that his appeal had been denied. In so doing, the License Division asserted that notwithstanding petitioner’s Certificates of Relief from Civil Disabilities, which it considered in evaluating his appeal, petitioner’s entire arrest history indicates a propensity to disobey the law and poses an unreasonable risk to the public and petitioner’s household when considering a premises residence license.DiscussionThe issuance of a handgun license is not a right, but a privilege subject to reasonable regulation. Parker v. Nastasi, 97 AD2d 547, 467 (2d Dep’t 1983), aff’d 62 NY2d 714 (1984). Pursuant to Administrative Code §10-131 and Penal Law §400.00, the Police Commissioner is vested with broad discretion to regulate the possession of firearms within the City of New York. Specifically, §400.00(1) states that “applicants for firearms must be of good moral character and there must be no good cause for the denial of such application.” Additionally, Title 38 of the Rules and Regulations of the City of New York, which codifies the regulations concerning the issuance of handgun licenses, provides that proper grounds for denial of a handgun license may include “[o]ther information [that] demonstrates an unwillingness to abide by the law, a lack of candor towards lawful authorities, a lack of concern for the safety of oneself and/or other persons and/or for public safety, and/or other good cause for the denial of the license.” 38 RCNY §5-10(n).In an Article 78 proceeding, the scope of judicial review is limited to the issue of whether the administrative action is rationally based. Matter of Pell v. Board of Educ., 34 NY2d 222, 230-31 (1974). 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.” Id. at 232 (internal citation omitted).The denial of petitioner’s application for a handgun license on the basis of his previous arrest and conviction history, including arrests for crimes such as robbery, assault, menacing, resisting arrest, and criminal possession of weapon, is not arbitrary and capricious. While petitioner’s submission of Certificates of Relief from Disabilities for his three convictions might remove the automatic bar to licensure occasioned by petitioner’s prior convictions, they do not prevent respondents from relying on the convictions in the exercise of discretion to deny a license for lack of good moral character or good cause. Hines v. Kelly, 222 AD2d 277, 278 (1995). The License Department found, in its discretion and judgment, that petitioner’s arrest history was indicative of a propensity to disobey the law and posed an unreasonable risk to the public and his household. We cannot say that there is no rational relationship between petitioner’s criminal history and his fitness for the license he seeks. Id.The Court has considered petitioner’s constitutional claims and finds they do not overcome the police department’s authority to evaluate a person’s fitness for a gun license. “It is beyond dispute that preventing the criminal use of firearms is an important government objective” and “keeping guns away from people who have shown they cannot be trusted to obey the law is a means substantially related to that end.” Caputo v. Kelly, 117 AD3d 644, 644 (2014).Moreover, petitioner’s reliance on Matter of Acosta, 16 NY3d 309, is misplaced. Correction Law §750 (4) specifically holds that “‘license’ shall not, for purposes of this article, include any license or permit to own, possess, carry, or fire any explosive, pistol, handgun, rifle, shotgun, or other firearm.”The Court has considered the petitioner’s other arguments and finds them to be unavailing or without merit.This Court notes in passing and in dicta that in the United States in 2017, the last year for which this statistic is available, guns killed almost 40,000 people (39,773, to be as exact as possible), a tragic and obscene number. https://www.nytimes.com/2018/12/18/us/gun-deaths.html. This opinion is not the place to address fully the fraught national gun control debate. However, all New York denizens will be safer if there is one less, not one more, gun circulating among us.ConclusionThe Verified Petition is denied, and the Clerk is directed to enter judgment dismissing this Article 78 proceeding.DATE: 1/17/2019CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHERAPPLICATION: SETTLE ORDER SUBMIT ORDERCHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
