County Court, Monroe County, July 15, 2020

No appearances of counsel.

On March 25, 2020, the court received notification from the New York State Division of Criminal Justice Services (DCJS) that Douglas James Crane, a New York State pistol permit licensee, was convicted of the misdemeanor offense of criminal possession of stolen property in the third degree^[FN1] on May 26, 1982, in Walton Village Court. The notice from DCJS indicates that the "division has determined that the individual is ineligible to possess such a license or is no longer a valid license holder based upon their criminal conviction. This determination is being provided to you as the licensing authority for appropriate action (see Penal Law §§ 400.02 and 400.00)."

For the reasons set forth herein, this court declines to revoke Mr. Crane's pistol permit, which was granted to him in 1991 with the issuing County Court Judge's full knowledge of the conviction now being reported to this court, 38 years after its entry in Walton Town Court.

Douglas James Crane applied for a pistol permit in Monroe County on January 22, 1991. He attached a one-page letter, dated January 11, 1991, to the application. The letter outlined Mr. Crane's criminal contacts including: a 1980 arrest for unlawful possession of marijuana which was dismissed; a 1980 arrest for petit larceny which resulted in a youthful offender adjudication; a 1980 arrest for DWI which resulted in conviction and a $100 fine; a 1981 arrest for petit larceny which resulted in conviction and a $100 fine; and finally the 1982 arrest and conviction of criminal possession of stolen property in the third degree which resulted in a $200 fine. The letter argues that the arrests were "mistakes [he] made as a teenager" and explains that he left the bad environment and went on to graduate with a bachelor's degree.{**68 Misc 3d at 964}

On July 15, 1991, Monroe County Court Judge William H. Bristol informed Mr. Crane that his application had been denied due to his criminal convictions. Mr. Crane's counsel sent a letter dated July 30, 1991, asking Judge Bristol to reconsider his denial of the pistol permit [*2]application. On August 21, 1991, Mr. Crane wrote a letter to Judge Bristol expressing remorse for his prior behavior and explaining that in his view he had "paid the price for my mistakes and will never forget them. Now I only want to be treated as the honest, hardworking person I am."

On August 22, 1991, the court informed counsel for Mr. Crane that his prior conviction for criminal possession of stolen property in the third degree constituted a "serious offense" as defined in Penal Law § 265.00 (17) (b) and therefore the denial was mandatory unless Mr. Crane obtained a certificate of relief from disabilities on that conviction.

Mr. Crane obtained a certificate of relief from disabilities dated October 17, 1991, signed by Justice Carl Gregory of Walton Town Court that "specifically includ[es] the right to apply for and receive a pistol permit." Mr. Crane submitted a copy of the certificate of relief from disabilities to Judge Bristol. Judge Bristol then exercised his discretion and after full consideration of the factors in Penal Law § 400.00 (1), granted Mr. Crane's pistol permit application on November 12, 1991. Mr. Crane has held his pistol permit, without issue, since then.

In January 2013, in the wake of mass shootings including at Sandy Hook Elementary School on December 12, 2012, and at the West Webster Fire Department on December 24, 2012, the New York State Legislature enacted sweeping gun-safety reform legislation known as the NY SAFE Act (L 2013, ch 1).

This legislation included the creation of a statewide database to be maintained by DCJS (Penal Law § 400.02). Pursuant to the statute, DCJS became responsible for periodic review of licensees to determine the continued accuracy of criminal convictions, mental health, and all other records and to determine whether an individual is "no longer a valid license holder" (id.). The Division also

"upon determining that an individual is ineligible to possess a license, or is no longer a valid license holder, shall notify the applicable licensing official of such determination and such licensing official{**68 Misc 3d at 965} shall not issue a license or revoke^[FN2] such license and any weapons owned or possessed by such individual shall be removed consistent with the provisions of subdivision eleven of section 400.00 of this article." (Id.)

The DCJS now seeks to have this court apply Penal Law § 400.02 retroactively and revoke Mr. Crane's permit because that agency has determined that he is now, as a result of his 1982 conviction, "ineligible to possess a license, or is no longer a valid license holder."

Under the circumstances of this case, was it the legislature's intent to apply Penal Law § 400.02 retroactively so that the DCJS's determination that Mr. Crane is now "ineligible to possess such a license or is no longer a valid license holder" would override Judge Bristol's decision to grant the pistol permit with full knowledge of the licensee's 1982 misdemeanor conviction?

In most of New York State, county court judges are the licensing officials for pistol permits (Penal Law § 265.00 [10]). As the licensing officer the assigned county court judge "has broad discretion to grant or deny a permit under Penal Law § 400.00 (1)" (Matter of Parker v Randall, 120 AD3d 946, 947 [4th Dept 2014]; see also Matter of Fromson v Nelson, 178 AD2d 479, 479 [2d Dept [*3]1991]; see also Matter of Covell v Aison, 153 AD2d 1001, 1002 [3d Dept 1989]).

In Monroe County, pistol permit applications are submitted to the County Clerk's Office, then forwarded to either the Monroe County Sheriff's Office or the Rochester Police Department to complete the investigation required by Penal Law § 400.00 (4).

The application, the findings of the investigation, and a recommendation from the investigating law enforcement official are then provided to the assigned county court judge for review. If the application is disapproved, the court is required to provide a specific and concise reason for the denial (Penal Law § 400.00 [4-a]) and the applicant may request an opportunity to present proof in order to respond to the objections. (See Matter of Parker v Randall, 120 AD3d 946, 947 [4th Dept 2014],{**68 Misc 3d at 966} quoting Matter of Savitch v Lange, 114 AD2d 372, 373 [2d Dept 1985]; see also Matter of Anderson v Mulroy, 186 AD2d 1045, 1045 [4th Dept 1992]; see also Matter of Guida v Dier, 54 AD2d 86, 87 [3d Dept 1976].)

For the reasons that follow, I find that it was not the legislature's intent to have Penal Law § 400.02 apply retroactively to override a decision of the licensing official when that decision was made with full knowledge of the conviction that is the subject of the notification, absent a change in the disqualifying nature of the conviction.

Mr. Crane received a certificate of relief from disabilities from the Walton Town Court Justice back in 1991 for his 1982 conviction for criminal possession of stolen property in the third degree, the same conviction that is the subject of the current DCJS notice.^[FN3] The certificate "relieve[d] the holder of all disabilities and bars to employment" and in a typewritten addition to the document specifically included "the right to apply for and receive a pistol permit."

It is well settled that a certificate of relief from disabilities is sufficient to remove the statutory prohibition against holding a pistol permit. (See Matter of Hecht v Bivona, 306 AD2d 410, 411 [2d Dept 2003]; see also Correction Law § 701 [2]; Matter of Hines v Kelly, 222 AD2d 277, 278 [1st Dept 1995]; 1975 Ops Atty Gen 306; 1971 Ops Atty Gen 8.)^[FN4] Therefore, the court declines to follow the decision from Monroe County Court in Matter of Alarie (168 Misc 2d 329, 330 [Monroe County Ct 1996]), as it is abrogated by the Appellate Division's ruling.

This court finds, and indeed Judge Bristol agreed, that the certificate of relief from disabilities overcame the statutory bar and vested the decision of whether to grant or deny a pistol permit in the broad discretion of the licensing official (see Correction Law § 701 [3]).

{**68 Misc 3d at 967}Now, the DCJS asks this court to apply Penal Law § 400.02 retroactively to overrule Judge Bristol's proper exercise of discretion and revoke Mr. Crane's pistol permit based [*4]only on his 1982 conviction, which Judge Bristol was fully aware of and for which Mr. Crane received a certificate of relief from disabilities which specifically included the right to apply for and receive a pistol permit.

The right to bear arms is a fundamental constitutional right (US Const 2d Amend; District of Columbia v Heller, 554 US 570 [2008]). When enacting the NY SAFE Act, the New York State Legislature noted that the right to keep and bear arms is protected by the Second Amendment, but that right is "not unlimited" (see Senate Introducer's Mem in Support, Bill Jacket, L 2013, ch 1 at 10, citing Heller at 595).

A statute has retroactive effect if "it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed," thus impacting "substantive" rights (Landgraf v USI Film Products, 511 US 244, 278-280 [1994]; see also American Economy Ins. Co. v State of New York, 30 NY3d 136, 147 [2017], cert denied 584 US —, 138 S Ct 2601 [2018]). Where the retroactive application of a statute would impact "substantive rights" there is a well settled and " 'deeply rooted' presumption against retroactivity is based on '[e]lementary considerations of fairness [that] dictate that individuals should have an opportunity to know what the law is and to conform their [behavior] accordingly' " (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 370 [2020], quoting Landgraf at 265). It therefore " 'takes a clear expression of the legislative purpose' . . . 'to justify a retroactive application' " of a statute (Gleason v Gleason, 26 NY2d 28, 36 [1970]) to ensure that "the legislature contemplated the retroactive impact on substantive rights and intended that extraordinary result" (Regina, 35 NY3d at 370-371).

There is no clear expression of legislative purpose which would justify a retroactive application of the statute under these circumstances.

Penal Law § 400.00 (11) (a) supports this conclusion; "[t]he conviction of a licensee anywhere of a felony or serious offense or a licensee at any time becoming ineligible to obtain a license under this section shall operate as a revocation of the license" {**68 Misc 3d at 968}(emphasis added).^[FN5] It appears that the legislature intended to have DCJS monitor convictions that occur both at the time of application and following license issuance or to notify the licensing official if an offense that was previously not a disqualifying offense becomes disqualifying; then the conviction may alter the determination of the licensee's eligibility to hold a pistol license.^[FN6]

The Senate Introducer's Memorandum in Support also supports this position. The legislative history explains that the "[l]ack of a renewal procedure means there is no periodic review of a licensee's qualifications. Thus, if a license holder becomes disqualified from carrying a gun subsequent to obtaining a license, he or she will likely retain the license." (Senate Introducer's Mem in Support, Bill Jacket, L 2013, ch 1 at 14 [emphasis added].) The [*5]NY SAFE Act established a procedure for DCJS to maintain a database that "will permit regular matching by the State against records of prohibited persons (e.g. those with criminal histories, orders of protection, and mental illnesses that bar gun ownership and licensing)." (Senate Introducer's Mem in Support, Bill Jacket, L 2013, ch 1 at 14.)

The clear legislative intent was to create a process for DCJS to notify the licensing official of disqualifying events mandating revocation of the licensee's permit. It is therefore also clear that this law was not meant to override the discretionary authority of a licensing official who acts with full knowledge of a conviction when there is no statutory prohibition.

To apply Penal Law § 400.02 retroactively in the manner requested by the DCJS would produce exactly the extraordinary result that the presumption against retroactivity is intended to prevent. It would deprive the licensee of his constitutional right to bear arms and the chance to know what the law is and conform his behavior accordingly. The licensee has held a pistol permit for the last 28 years. The fact that his permit has never been suspended or revoked shows that he has comported himself as a responsible permit holder.{**68 Misc 3d at 969}

Applying the statute as DCJS requests would also deprive the license holder of his due process rights. There is no provision allowing Mr. Crane to object to or be heard in opposition to the revocation. Penal Law § 400.02 states that the DCJS,

"upon determining that an individual is ineligible to possess a license, or is no longer a valid license holder, shall notify the applicable licensing official of such determination and such licensing official shall not issue a license or [sic] revoke such license and any weapons owned or possessed by such individual shall be removed consistent with the provisions of subdivision eleven of section 400.00 of this article" (emphasis added).

However, subdivision (11) (a) of section 400.00 states, in relevant part, that "[a] license may be revoked or suspended as provided for in section 530.14 of the criminal procedure law." Criminal Procedure Law § 530.14 sets forth, in subdivision (7), that an individual is entitled to a hearing. Therefore, a hearing is appropriately provided to the licensee as an opportunity to present proof to address the objections set forth in a DCJS determination of ineligibility.^[FN7]

Further, the Due Process Clause of both the State and Federal Constitutions requires that an opportunity be provided to the licensee to address the disqualification determination by DCJS. The licensee in this case is exercising his constitutional right to bear arms, therefore due process requires that an adequate opportunity be provided to the licensee to respond to DCJS's determination. (See Matter of DiMonda v Bristol, 219 AD2d 830, 830 [4th Dept 1995].)

Therefore, it is hereby ordered that the request from the Department of Criminal Justice Services to revoke Mr. Crane's pistol permit is hereby denied.