78 Misc. 2d 377 | N.Y. Sup. Ct. | 1974
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).