Citizens of New York who want to carry a pistol concealed on their person must obtain a license to do so. Possession without a license is a crime. The licensure requirements that an applicant must meet are detailed at Penal Law §400.00. The determination of whether to issue a license is made by a statutorily designated licensing officer. Outside of Nassau County, Suffolk County and the City of New York, the licensing officer must be "a judge or justice of a court of record having [their] office in the county of issuance." (PL §265.00[10]). Justices of the Supreme Court are accordingly eligible to serve as pistol licensing officers and this Court has been designated as one of the licensing officers for Ulster County.

Applicant M.G. [Name Redacted] is a resident of Ulster County. He has applied for a license to carry concealed a pistol in the State of New York under PL §400.00[2][f]. M.G.'s application paperwork is complete, he has fulfilled the safety and live-fire training requirements and the Court is in receipt of four references attesting to his good character. The Court is also in possession of background investigation materials, including M.G.'s extensive criminal history, assembled by the Ulster County Sheriff's Office, which recommends against issuance of the license. M.G. appeared for a hearing on his application on November 15, 2024, and answered questions under oath.

The standard for assessing eligibility for a conceal carry permit in New York has changed in recent years. For at least a century, applicants seeking to carry concealed were required to show "proper cause," defined as "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." (In re Klenosky, 75 AD2d 793, 793 [1980], aff'd, 53 NY2d 685 [1981]). In 2022, however, the United States Supreme Court struck down the "proper cause" standard, concluding that it violated the Second Amendment to the United States Constitution. (New York State Rifle & Pistol Ass'n, Inc. v Bruen, 597 U.S. 1 [2022]). Distilled to its essence, Bruen found that the proper cause standard infringed the right to bear arms because it placed the burden on citizens to establish their entitlement to a license, rather than starting with a presumption to such entitlement. (Id. at 70-71). The Court drew an express contrast between the former type of legal regime (referred to as "may-issue"), compared to the constitutionality of the latter form of licensing regime (referred to as "shall-issue"). (Id. at 13-14). The Court explained that shall-issue regimes passed constitutional muster because "authorities must issue concealed carry licenses whenever applicants satisfy certain threshold requirements, without granting license officials discretion to deny licenses based on a perceived lack of need or suitability." (Id. [emphasis added]). In a concurring opinion, Justice Kavanagh emphasized that "New York's outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officers[.]" (Id. [*2]at 79 [Kavanagh, J., concurring]). With the proper cause standard struck down, any new licensing regime enacted by New York necessarily had to reduce the discretion of licensing officers in order to comply with Bruen.

New York did amend its conceal carry licensing rules after Bruen, including by adding new objective criteria such as enhanced training requirements. Further, while conceal carry applicants need no longer show proper cause, they must still be persons of "good moral character" — a standard that was in the statute before Bruen but, post-Bruen, was defined by the legislature to mean "having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others[.]" (PL §400.00[1][b]). Whether this "good moral character" requirement violates the Bruen standard is the subject of ongoing litigation. At present, the U.S. Court of Appeals for the Second Circuit has upheld the standard, concluding that Bruen did not preclude allowing licensing officers from exercising "a modicum" of discretion, centered on a reasoned assessment of whether the applicant, "if permitted to wield a lethal weapon, would pose a danger to himself, others, or to public safety." (Antonyuk v Chiumento, 89 F 4th 271, 314 [2d Cir 2023]).

Applying the foregoing principles, the Court concludes that it must approve M.G.'s application.

The Penal Law contains numerous criteria which automatically disqualify an applicant from obtaining a pistol license. None of them bar M.G. Of chief interest, in connection with this application, is the legislature's determination as to when an applicant's criminal history is disqualifying. PL §400.00[1] provides that eligibility for a permit is limited to those persons who have "not been convicted anywhere of a felony or serious offense[.]" Crimes classified as "serious offenses" are defined at PL §265.00[17] which contains a long list of misdemeanors deemed grave enough by the legislature to bar a convicted person from obtaining a pistol permit.

M.G. has not been convicted of a felony or any serious offense. He does, however, have a troublingly long criminal history. He has been arrested at least 16 times, with many of those arrests involving multiple charges. Many of his charges are indisputably minor, including numerous instances of fare evasion or possession of marijuana. However, the charges in some of his cases were more serious. A felony burglary charge was adjourned in contemplation of dismissal and then duly dismissed. Another burglary charge was resolved by plea to misdemeanor trespassing. A robbery charge at the age of 18 resulted in a Youthful Offender finding.

M.G. accurately reported his arrest history on his application and provided certificates of disposition. Most of his arrests occurred between 1987 and 1997. He has not been arrested since 2001. At the hearing, M.G. recounted a troubled youth in foster housing in crime-ridden neighborhoods. He provided additional details regarding the circumstances of the more significant charges in his criminal history. While these incidents were unquestionably a long time ago, with respect to most of them M.G. was not a child, literally or in the eyes of the law, but rather a young man in his 20s.

Pre-Bruen jurisprudence made clear that a judicial licensing officer could deny a license on the grounds of an applicant's non-disqualifying criminal activity. (See, e.g., Robbins v Warhit, 198 AD3d 790, 791 [2nd Dept. 2021]["petitioner's two prior arrests were sufficient to support" denial even though "both charges against petitioner were dismissed[.]"]). This was expressly grounded in the "broad discretion" afforded a licensing officer to deny an application "for any good cause." (Matter of Orgel v DeFiore, 303 AD2d 758, 758 [2nd Dept. 2003]). The principle has been re-affirmed post-Bruen but, so far as the Court is aware, without analysis of how a [*3]licensing officer's discretion must be exercised more sparingly under the new regime. (See, e.g., Harper v Neary, 225 AD3d 595, 596 [2nd Dept. 2024][citing Orgel for breadth of licensing officer discretion and finding non-disqualifying criminal history sufficient to deny applicant]). The Court concludes that the exercise of this limited discretion would be especially problematic where the basis is a subject matter — criminal history — as to which the Legislature has drawn a bright line: it has specifically defined an extensive list of crimes which disqualify a convicted person from pistol license eligibility and, necessarily therefore, decided that other offenses are not disqualifying. To reject an applicant on the grounds that they were charged, but not convicted, of disqualifying offenses, or that they were convicted of offenses that the Legislature has not deemed disqualifying, would run directly counter to the instruction of Bruen, especially where, as here, the applicant's criminal history is almost entirely more than a quarter-century old.

The Court cannot say that it would have denied M.G.'s application under the pre-Bruen standard because he has not been afforded the opportunity to show proper cause under that standard. The Court would certainly view an application containing such a lengthy, if old, criminal history with skepticism. Given the amount of time that has passed since his last arrest, his explanation regarding the social environment in which his criminal history was accumulated, and his positive references, the Court cannot make a finding that he lacks "good moral character." However, in light of (a) the Legislature's unambiguous policy decision regarding what crimes are or are not disqualifying and (b) the U.S. Supreme Court's significant curtailing of licensing officer discretion to the effect that a licensing officer may not consider "suitability," the Court is constrained to conclude that denying this application would exceed the Court's discretion under current law.

Accordingly, the application has been GRANTED.