SALEM v. GERACI

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Fahman H. SALEM, Petitioner, v. Frank P. GERACI, Jr., Monroe County Court Judge, Respondent.

Decided: March 17, 2006

PRESENT:  HURLBUTT, J.P., GORSKI, GREEN, PINE, AND HAYES, JJ. Bilgore, Reich, Levine & Kantor, Rochester (Bernard D. Levine of Counsel), for Petitioner. Eliot Spitzer, Attorney General, Albany (Marlene O. Tuczinski of Counsel), for Respondent.

 Petitioner commenced this proceeding to annul the determination revoking his firearms permit.   The record establishes that respondent initially suspended petitioner's permit after petitioner was arrested for menacing in the second degree, and respondent advised petitioner that he was entitled to request a hearing within 10 days if he wished to contest the suspension.   Respondent further advised petitioner that his firearms permit would be revoked automatically in the event that petitioner did not request a hearing during that 10-day period.   Petitioner did not request a hearing, and respondent thereafter revoked his firearms permit.   By application dated over two months later, petitioner sought reinstatement of his permit and requested a hearing, and he commenced this proceeding challenging the determination denying his application.   Contrary to the contention of petitioner, his due process rights were not violated and respondent did not abuse his discretion or act in an arbitrary or capricious manner in denying his application (see generally Matter of Dlugosz v. Scarano, 255 A.D.2d 747, 748, 681 N.Y.S.2d 120, appeal dismissed 93 N.Y.2d 847, 688 N.Y.S.2d 493, 710 N.E.2d 1092, lv. denied 93 N.Y.2d 809, 694 N.Y.S.2d 631, 716 N.E.2d 696, cert. denied 528 U.S. 1079, 120 S.Ct. 798, 145 L.Ed.2d 673).  “It is well settled that a formal hearing is not required prior to the revocation of a pistol permit as long as the licensee is given notice of the charges and has an adequate opportunity to submit proof in response” (id.), and the record establishes that petitioner received the requisite notice of the charges and did not request a hearing although offered the opportunity to do so.   In any event, were we to reach the merits of the propriety of the revocation, we would conclude based on the record before us that petitioner “lack[s] the essential temperament or character which should be present in one entrusted with a dangerous instrument” (Matter of Peterson v. Kavanagh, 21 A.D.3d 617, 618, 799 N.Y.S.2d 640 [internal quotation marks omitted];  see generally Matter of Hassig v. Nicandri, 2 A.D.3d 1118, 1119, 768 N.Y.S.2d 691, lv. denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912;  Matter of Vale v. Eidens, 290 A.D.2d 612, 613, 735 N.Y.S.2d 650;  Matter of Madden v. Marlow, 214 A.D.2d 735, 625 N.Y.S.2d 620).

It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

MEMORANDUM: