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#290 Third Department Caselaw Round-Up for January 19, 2012, Part 4 of 4

148 Post-1 01-19-12, Part 4 Third Department January.pngAnd here, we come upon the interesting animal called an Article 78 proceeding.

The most important thing anyone needs to know about Article 78 proceedings is that they are extremely difficult to win. That’s really all you need to know. The odds are very much not in your favor.

So, unless the judge or administrator or board acted arbitrarily, capriciously, outrageously or was found to be grossly in contempt of your due process rights, you don’t have a chance. Cynical? Maybe. Realistic? Most definitely.

Case #137 #512299
Matter of Kerr v. Teresi, ___ A.D.3d ___, ___ N.Y.S.2d ___ Article 78 Proceeding Against Supreme Court Judge Specific Issue: Judicial revocation of a pistol permit Cited statutes: CPLR 506 Dismissed

In this instance, a judge revoked the petitioner’s pistol permit and he appealed.

The petitioner had the pistol permit for three (3) years when he was charged with Menacing in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree with regard to an altercation with his former girlfriend. Well, there you go, you say, he lost his pistol permit for brandishing a weapon to instill fear in his ex. But, wait, the charges were dismissed against the petitioner. So, what’s the deal?

The deal is that notwithstanding the dismissed charges, the pistol was apparently not returned to the petitioner. Unsurprisingly, the petitioner requested a hearing to determine the status of his permit. Following the hearing, it was determined that the petitioner “lacked the maturity, carefulness, prudence, and respect for others necessary to carry a pistol.” The petitioner appealed.

Unfortunately for the petitioner, the dismissed charges were overshadowed by the ex-girlfriend’s sworn statement in the police incident report. In the statement, the ex-girlfriend claimed that the petitioner had threatened to kill himself multiple times over their breakup. Furthermore, when the ex-girlfriend attempted to call 911, the petitioner is alleged to have pointed the pistol at her and threatened to shoot her.

At the hearing, while the ex-girlfriend could not recall the events underlying the statement to the police with any clarity (which is pretty strange in and of itself), “she did not repudiate the content of her written statement and, in fact, affirmed its truthfulness.” Of course not, because, if she did, she would then likely have been charged with the crime of making a false statement to the police. So it came down to this: the petitioner loses his pistol permit or the ex-girlfriend goes to jail for covering for the now ex-boyfriend. Either way, someone loses. And it’s pretty much a no-brainer who loses.

Since it is perfectly acceptable for hearsay evidence to come in at the hearing, it could also “properly form the basis of the [court’s] determination”. So, with no other witnesses, it all basically came down to a he-said, she-said situation with the court placed in the unenviable position of having to gauge who was the most credible witness. And, since the girlfriend affirmed the truthfulness of her statement to the police – which resulted in the petitioner subsequently being charged with crimes – the court was well within its discretion in crediting the ex-girlfriend’s testimony over that of the petitioner and doing so was, therefore, not “an abuse of discretion or arbitrary and capricious”.

The best lesson to take away from this case is that a pistol permit (like a driver’s license) is not a right but a privilege. You are entitled to rights; however, you are not entitled to privileges. As such, there is a higher evidentiary threshold that the state has to meet before your rights may be divested as compared to the evidentiary threshold concerning privileges. As this case makes clear, to keep your privileges you need to be more than merely law-abiding: you need to be mature, careful, prudent, and respectful of others.

Caselaw Round-Up Score Card:

Affirmed: 92 (67.15%)
Decision Withheld: 6 (4.38%)
Dismissed: 8 (5.84%)
Modified: 11 (8.03%)
Reversed: 19 (13.87%)

Total: 137