Matter of DeAngelo v. Burns , 3 N.Y.S.3d 767 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 517549
________________________________
In the Matter of ROCCO V.
DeANGELO,
Petitioner,
v MEMORANDUM AND JUDGMENT
BRIAN D. BURNS, as Judge of
the County Court of Otsego
County,
Respondent.
________________________________
Calendar Date: November 18, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.
__________
Gozigian, Washburn & Clinton, Cooperstown (Ryan W. Miosek
of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondent.
__________
Egan Jr., J.
Proceeding pursuant to CPLR article 78 (initiated in this
Court pursuant to CPLR 506 [b] [1]) to review a determination of
respondent which revoked petitioner's pistol permit.
Petitioner obtained a pistol permit in 2009 and, insofar as
is relevant here, was the registered owner of a .380 caliber
handgun. In August 2012, petitioner became embroiled in a
confrontation with two of his neighbors; according to petitioner,
he (and others) had an ongoing dispute with the neighbors in
question, who allegedly (and routinely) resorted to various
intimidation tactics. This long-standing discord apparently
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extended to a four-year-old child who resided with the neighbors,
who purportedly would "flip [petitioner] off" every time he
passed by the neighbors' house.
On the day of the incident, petitioner was driving by the
neighbors' house when he saw a woman, whom he believed to be the
mother of the offending child, standing outside. Petitioner
slowed his vehicle and informed the woman, "You know, your little
girl is not very ladylike." Later that day, as petitioner
approached the neighbors' house in his truck, the neighbors
purportedly blocked the narrow road with one of their vehicles.
A verbal altercation between petitioner and the neighbors ensued,
during the course of which one of the neighbors produced a
baseball-size rock and petitioner displayed his loaded handgun.
As a result of this incident, petitioner was charged with two
counts of menacing in the second degree, and his pistol permit
temporarily was suspended.
Respondent thereafter scheduled a hearing to determine the
status of petitioner's pistol permit. Following various
adjournments pending resolution of the criminal charges, which
resulted in petitioner's acquittal, the hearing ensued, at which
time respondent questioned petitioner regarding the incident with
the neighbors. Respondent ultimately concluded that petitioner
"no longer [was] fit to possess a pistol license" and revoked
petitioner's permit, prompting petitioner to commence this CPLR
article 78 proceeding to challenge respondent's determination.
There is no question that "[r]espondent 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 instrument
. . . , 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 AD3d 1391, 1392 [2013] [internal quotation marks and
citations omitted]; see Matter of Finkle v Herrick, 112 AD3d
1278, 1278 [2013]; Matter of Galletta v Crandall, 107 AD3d 1632,
1632 [2013]). No formal revocation hearing is required, and due
process will be satisfied where the petitioner has been provided
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with notice of the charges and afforded an adequate opportunity
to respond thereto (see Matter of Cuda v Dwyer, 107 AD3d 1409,
1409 [2013]; Matter of Dlugosz v Scarano, 255 AD2d 747, 748
[1998], appeal dismissed 93 NY2d 847 [1999], lv denied 93 NY2d
809 [1999], cert denied 528 U.S. 1079 [2000]). Upon review,
"respondent's resolution of factual issues and credibility
assessments are accorded deference, and the determination will
not be disturbed absent an abuse of discretion or a showing that
[such determination] was made in an arbitrary and capricious
manner" (Matter of Finkle v Herrick, 112 AD3d at 1278 [internal
quotation marks and citations omitted]; see Matter of Gaul v
Giardino, 95 AD3d 1456, 1457 [2012], lv denied 19 NY3d 810
[2012]; Matter of Kerr v Teresi, 91 AD3d 1153, 1154 [2012]).
In view of the acrimonious history between petitioner and
his neighbors, petitioner's decision to respond to the nonverbal
taunt of a four-year-old child by chastising the woman whom he
believed to be the child's mother was, at best, ill advised.
Indeed, petitioner acknowledged as much at the hearing, agreeing
that, with the benefit of hindsight, he should have "[kept his]
mouth shut." As for the confrontation that followed, petitioner
testified that he was afraid that the neighbor who was holding
the rock would "bash [his] brains in," that he could not simply
drive away because an oncoming vehicle prevented him from doing
so, that he routinely carried a handgun in his truck due to the
nature of his business and that he displayed the loaded weapon
only because he felt threatened. Respondent did not credit
petitioner's testimony, however, noting that petitioner could
have put his vehicle in reverse and backed away1 and finding
that, all things considered, the presence of a weapon in
petitioner's truck at that point in time "was not a coincidence."
"[T]he exercise of poor judgment in the handling of a weapon is a
sufficient ground for revocation of a pistol permit" (Matter of
Maye v Dwyer, 295 AD2d 890, 890 [2002], appeal dismissed 98 NY2d
764 [2002] [internal quotation marks and citation omitted]; see
Matter of La Grange v Bruhn, 291 AD2d 601, 601-602 [2002]; Matter
of Brookman v Dahaher, 234 AD2d 615, 616 [1996]) and, based upon
1
When questioned by respondent as to why he did not simply
back up, petitioner replied, "I didn't think of it."
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petitioner's own testimony (see Matter of Butts v Dwyer, 6 AD3d
1101, 1101 [2004]), we do not find that respondent abused his
discretion in revoking petitioner's pistol permit.2 Petitioner's
remaining contentions, to the extent not specifically addressed,
have been examined and found to be lacking in merit.
Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court
2
The fact that petitioner was acquitted of the related
criminal charges is not dispositive of this proceeding (see
Matter of Saccoccio v Lange, 194 AD2d 794, 794 [1993]; cf. Matter
of County of Westchester v D'Ambrosio, 244 AD2d 334, 335 [1997]).