IN RE: SEAN MAHONEY AND RILEY J. MAHONEY (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking mandamus relief compelling respondent, John C. Garcia, as Sheriff of Erie County, to, inter alia, return a handgun that had been voluntarily surrendered. Respondent opposed that relief, contending that the handgun was properly being held as a “nuisance” pursuant to Penal Law § 400.05 (1). Supreme Court granted the petition with respect to the handgun in question, and we affirm.

The subject handgun is owned by petitioner Sean Mahoney, who is lawfully permitted to possess and carry it concealed. In September 2023, he used the handgun to fatally shoot an individual who was involved in a physical altercation with his son, petitioner Riley J. Mahoney. The Erie County Sheriff's Office responded to the shooting and seized the handgun, along with 29 other firearms and various items of personal property belonging to petitioners, as part of its investigation. Thereafter, no charges were filed as a result of the investigation, nor was the matter presented to a grand jury and, in July 2024, petitioners commenced the instant CPLR article 78 proceeding seeking mandamus relief compelling the return of their seized property. Respondent objected to the return of the subject handgun, contending that “[t]he gun used in the shooting is a nuisance weapon and it is therefore ineligible for return” pursuant to Penal Law § 400.05 (1). In reply, petitioners argued that respondent failed to meet his burden of establishing that the handgun was used in an “offense” as that term is defined in the Penal Law. Following the return of all of the firearms and property other than the subject handgun, the court granted the petition with respect to the subject handgun and directed respondent to return it, noting that “[n]o criminal charges have been filed.”

We review the court's interpretation of the relevant statutory provisions de novo (see Matter of Walsh v New York State Comptroller, 34 NY3d 520, 523-524 [2019]) and in light of the settled principle that “ ‘[a] statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent’ ” (People v Dondorfer, 235 AD3d 71, 76 [4th Dept 2024], affd — NY3d — [2026], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 97).

Penal Law § 400.05 (1) provides, in pertinent part, that “any weapon ․ utilized in the commission of an offense ․ is ․ declared a nuisance,” and Penal Law § 10.00 (1) defines an “offense” as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law, ․ rule or regulation.” Inasmuch as “conduct which would otherwise constitute an offense is justifiable and not criminal when ․ [s]uch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor” (§ 35.05 [2]), action that is justifiable does not constitute an offense (see generally § 35.00; People v Jimenez, 39 NY3d 74, 79 [2022]). Where a firearm or other weapon has been seized by, or surrendered to, law enforcement following its use in conduct that does not constitute an offense, the owner has one year to seek to have it returned to them, or transferred or sold to a licensed firearms dealer, or else it “shall be declared a nuisance and shall be disposed of” (§ 400.05 [6]).

Based upon the record before us, we conclude that the court properly determined that respondent failed to meet his burden of establishing that the subject handgun had been declared a nuisance weapon and thus could be retained pursuant to Penal Law § 400.05 (1) inasmuch as he failed to establish by a preponderance of the evidence that the handgun had been used in the commission of an offense. Indeed, if the handgun had been declared a nuisance weapon under section 400.05 (1), respondent would have been obligated to destroy it within one year (see § 400.05 [2]) unless he first (a) obtained a court order or certificate from the district attorney that retention of the firearm was necessary for “the ends of justice” or (b) directed it to be retained by a laboratory or law enforcement agency “for the purpose of research, comparison, identification or other endeavor toward the prevention and detection of crime” (§ 400.05 [3]), neither of which respondent submitted evidence of having occurred (see

generally Reeves v Giannotta, 130 AD3d 1444, 1445-1446 [4th Dept 2015]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court