Klapper v. Codd , 356 N.Y.S.2d 431 ( 1974 )

Jacob Markowitz, J.

In this article 78 proceeding the petitioner seeks a review and an annulment of respondent’s determination denying him a pistol license. Petitioner’s application for a pistol license is sought in connection with his interest in and hobby of marksmanship. As member of the Manhattan Rifle and Revolver Association, he appears to have had a longstanding interest in this activity, and he has previously been issued a Massachusetts pistol license. The transcript of the administrative proceedings under review indicates that Police Department rules and regulations require that one issued a license such as is sought by the petitioner, may transport a pistol only in a locked metal box at which time the pistol must be unloaded.

Section 400.00 (subd. 1, par. [d]) of the Penal Law provides in pertinent part: “ No [firearms] license shall be issued or renewed * * * except for an applicant * * * concerning whom no good cause exists for the denial of the license.”

This convoluted double negative is, however, qualified by subdivision 2 of section 400.00, which prescribes the ‘1 types of licenses ” to be issued. In this regard the court observed in Zweigbaum v. Murphy, N. Y. L. J., April 11, 1973, p. 17, col. 5:

1 ‘ There is no absolute right to carry a pistol (Moore v. Gallup, 267 App. Div. 64 [1943], aff’d. 293 N. Y. 846 [1944]).

“ The policy of this state is that the right to carry a pistol concealed upon one’s person outside the home or place of business shall be the exception rather than the rule (cf. Penal Law, sec. 400.00, subdiv. 2 [e]). ”

•Marksmanship purposes have been recognized as a proper basis upon which to seek a pistol license (Cononico v. Leary, N. Y. L. J., Jan. 24, 1967, p. 17, col.1). While the respondent has considerable discretion in determining whether an applicant will be issued a pistol license, that discretion is not unlimited; and it may not be exercised in an arbitrary and capricious manner (Payton v. Murphy, N. Y. L. J., June 26, 1972, p. 2, col. 5; Matter of Goldfarb, N. Y. L. J., April 22, 1968, p. 15, col. 6; Matter of Quinones, N. Y. L. J. May 3, 1968, p. 16, col. 3; Cononico v. Leary, supra).

Tn the instant proceeding the Teas on given by the respondent for the denial of petitioner’s application for a pistol license was ‘‘ Unstable Employment ”. Although the petitioner has had. a number of jobs in the last several years, that, in and of itself, may not be proper basis upon which to have denied petitioner’s application. Under the circumstances presented, the court directs that the matter be remanded to the respondent for a new hearing, before a new hearing officer, after which the respondent is again directed to pass upon whether petitioner is entitled to a pistol license for the purpose stated.