Expert: Robert P. Firriolo - 6/27/2011

Question
I applied for a unrestricted concealed carry and after all was said and done I was granted a restricted (sportsman) concealed carry. I was charged with 265.01(1) unlawful possession after I had been stopped at a traffic stop. Criminal charge pending. At the hearing for pistol license suspension or revocation, the judge found that I violated the sportsman restriction and my license was revoked for "me making up and substituting my own rules". Criminal charges later dismissed after spending gobs of cash to decriminalize myself. Now, I wish to file an article 78 to nullify the licensing official's decision, but the order of revocation delivered to me has no reason as it directs the reader to the record of the hearing proceedings.  I immediately wrote a letter last week pleading to the court to revise the document with a definitive reason for revocation that satisfies the penal mandate for suspension and revocation as the reason given at the hearing did not seem to. I have no criminal history whatsoever and I am a CEO of a small corporation in NYS. Do I have grounds for a successful article 78 appeal to nullify the decision of the licensing officer because the arrest was based on wrongful, dismissed charges?  Does the state's penal code give the administrative body permission to create additional laws by which it may revoke a pistol licensee's permit for violating.

Answer
Q1: Do I have grounds for a successful article 78 appeal to nullify the decision of the licensing officer because the arrest was based on wrongful, dismissed charges?

As stated in the instructions, I cannot give you legal advice in this forum. If you want legal advice, you must contact an attorney directly. I can give you general information.

New York's highest court has ruled that licensing officers have the authority to place restrictions on licenses. Violation of those restrictions is not a crime. However, somebody who is found to have violated those restrictions may have their license suspended or revoked. Courts in New York reviewing such actions tend to recognize that licensing officers have broad discretion to suspend or revoke a firearm license for violation of rules and regulations.

From the limited facts you provide, it does not appear that the revocation was "based on wrongful, dismissed charges." In fact, you stated, "the judge found that I violated the sportsman restriction and my license was revoked for" violating the judge's rules. So, by your own account, your revocation does not appear to be based on the criminal charge. It appears that the charges led to the judge learning that you were found in possession of a firearm in violation of his restrictions. Generally speaking, I do not consider an Article 78 proceeding challenging a violation of administrative restrictions on the manner of carry (i.e., "carrying out of class") to have a high probability of success.

Again, I cannot offer any opinion as to the strength of your particular case because I do not have enough information and cannot provide legal opinions here. Consult with an attorney if you want a specific answer to whether you, in particular, have a good case.

Q2: Does the state's penal code give the administrative body permission to create additional laws by which it may revoke a pistol licensee's permit for violating.

Licensing officers may not create new gun laws. However, as stated above, licensing officers in New York are authorized to place restrictions on licenses such as the time, place and manner of carry. Such restrictions are not criminal laws but administrative rules, and carry with them potential penalties of suspension or revocation of a license.