In this CPLR article 78 proceeding, petitioner Terry E. Kittle ("petitioner") seeks a judgment annulling the determination of respondent Joseph A. D'Amico, Superintendent of the State Police ("respondent") denying petitioner's request for the issuance of a State [*2]Police Retired Member Identification ("ID") card. Respondent opposes the petition, arguing that the determination was not arbitrary and capricious nor an abuse of discretion.

Petitioner was employed as a New York State Trooper from July 25, 1987 until his retirement on March 29, 2012. Prior to his retirement, he requested that respondent issue him a Retired Member ID card pursuant to NYSP Administrative Manual Article 18.^[FN1] Petitioner also applied for a Superintendent's Firearms License pursuant to Penal Law § 400.01. In a letter dated April 8, 2012, respondent denied his application for a Superintendent's Firearms License, but did not address his request for a Retired Member ID card. Thereafter, counsel for petitioner wrote to respondent seeking further review and direct the issuance of the firearms license and Retired Member ID card. When respondent failed to respond, petitioner commenced an Article 78 proceeding challenging respondent's refusal to issue him a Superintendent's Firearms License and respondent's failure to issue him a Retired Member ID card. On January 10, 2014, this Court (Ceresia, J.) granted the petition "with respect to petitioner's application for a State Police retiree identification card, to the limited extent that the matter is remanded to the respondent for further proceedings..."

Upon remand, on May 20, 2014, respondent denied petitioner's application for a Retired Member ID card on the following grounds:

"[t]he issuance of a retirement identification conveys to the individual or entity presented with it that I attest to the fact that you retired in good standing. I do not support this attestation given the fact that you left State Police service while facing charges of serious misconduct. It is important to note that my decision to deny your request for a retirement identification card is consistent with my refusal to grant you a pistol permit under Penal Law section 400.01. With a retirement identification approved and signed by me, you would be able to carry a concealed handgun anywhere in the United States under a federal law the "Law Enforcement Officers Safety Act," also known as H.R. 218. Given that I would not issue you a NYS pistol permit because of the circumstances under which you retired, I likewise cannot endorse you receiving the benefits conveyed under the Law Enforcement Officers Safety Act."

Petitioner now brings this petition seeking an order annulling and reversing respondent's determination, on the grounds that it was arbitrary and capricious, irrational, made in error of law and an abuse of discretion.

Respondent bases his denial on a pre-retirement incident in which it is alleged that on December 30, 2011, petitioner responded to a vehicle stopped on the New York State Thruway and grossly failed to take appropriate police action. Respondent alleges that the an Internal [*3]Affairs Bureau investigation into the incident revealed that when petitioner came into contact with the motorist, despite observing two bottles of vodka in the center console of the motorist's Jeep, he made no efforts to ascertain whether or not the motorist was in fact intoxicated. The investigation revealed that instead of conducting a DWI investigation, petitioner had the vehicle towed off of the Thruway and instructed the tow operator that the car could be released immediately upon arrival at the tow company garage. The investigation further revealed that approximately seventy-four minutes later, the motorist petitioner had encountered earlier was observed leaning against a guard rail with his vehicle stopped in the driving lane on the Thruway. The investigation revealed that the Trooper who responded conducted a DWI investigation, determined the motorist was intoxicated and placed him under arrest.

With regard to this incident, petitioner states that when he encountered the individual later arrested for DWI, the individual did not appear intoxicated to him. He states that the individual did not have slurred speech, he was not unsteady on his feet and he did not have the smell of an alcoholic beverage on his breath. Nor did the passenger compartment of his vehicle smell of an alcoholic beverage.

Petitioner states that during his career as a Trooper, he received numerous commendations for his service from civilians, the New York State Legislature and the New York State Thruway Authority. Petitioner continues to possess a New York State Firearms License C110-83 issued by Schenectady County, New York pursuant to Penal Law § 400.00. Petitioner argues that he was in good standing when he retired, as there were no formal disciplinary charges pending against him at the time. Petitioner claims that for reasons not associated with the incident, he decided to retire. He argues that he retired on March 29, 2012 with respondent's approval (see, Executive Law § 215).

In an Article 78 proceeding, the Court may only consider whether an administrative determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion (CPLR § 7803). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." In re Peckham v Calogero, 12 NY3d 424, 431 (2009). The Court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision (In re Peckham v Calogero, 12 NY3d 424, 431 [2009]). Once it has been determined that an agency's conclusion has a "sound basis in reason," the judicial function is at an end (In re Peckham v Calogero, 12 NY3d 424, 431 [2009]).

The Court finds that respondent's determination rendering petitioner not in "good standing" and not entitled to a Retired Member ID card was not arbitrary and capricious, unreasonable and unfounded in fact (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 — 231 [1974]). In this regard, respondent's assertion that petitioner engaged in "serious misconduct" in failing to conduct a DWI test investigation on a motorist after observing [*4]two bottles of vodka in the center console of his car and that petitioner retired while the IAB investigation into the matter was still pending was not an arbitrary or fabricated reason to deem petitioner not in "good standing."

Accordingly, the petition is dismissed.

This Memorandum constitutes the Decision and Order of the Court. This Decision and Order is returned to the Attorney General. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of CPLR Rule 2220 respecting filing, entry and Notice of Entry.

SO ORDERED.

ENTER.