IN RE: Constantinos PAPAIOANNOU

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

IN RE: Constantinos PAPAIOANNOU, Petitioner-Respondent, v. Raymond KELLY, Police Commissioner of the City of New York, Respondent-Appellant.

Decided: January 27, 2005

MAZZARELLI, J.P., SAXE, MARLOW, ELLERIN, NARDELLI, JJ. Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellant. Jerold E. Levine, New York, for respondent.

Judgment (denominated an order), Supreme Court, New York County (Lewis Bart Stone, J.), entered August 1, 2003, which granted petitioner's article 78 petition, annulled respondent's revocation of his pistol license, and directed the license be reinstated, unanimously reversed, on the law, without costs, the petition denied, the proceeding dismissed and respondent's determination reinstated and confirmed.

 It is well settled that the possession of a handgun license is a privilege, not a right, which is subject to the broad discretion of the New York City Police Commissioner (Matter of Kaplan v. Bratton, 249 A.D.2d 199, 201, 673 N.Y.S.2d 66 [1998];  Matter of Fondacaro v. Kelly, 234 A.D.2d 173, 177, 652 N.Y.S.2d 604 [1996], lv. denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644 [1997] ), and respondent, by statute, has been delegated “extraordinary power” in these matters (Matter of O'Brien v. Keegan, 87 N.Y.2d 436, 439-440, 639 N.Y.S.2d 1004, 663 N.E.2d 316 [1996];  Matter of Trimis v. New York City Police Dept., 300 A.D.2d 162, 163, 752 N.Y.S.2d 47 [2002], lv. denied 100 N.Y.2d 503, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003] ).   Indeed, the only issue to be reviewed by this Court herein is whether the administrative decision to revoke petitioner's pistol license was arbitrary and capricious or an abuse of discretion (Iacono v. Police Dept. of the City of New York, 204 A.D.2d 225, 226, 612 N.Y.S.2d 140 [1994], lv. dismissed in part, denied in part 85 N.Y.2d 848, 624 N.Y.S.2d 366, 648 N.E.2d 786 [1995];  Sewell v. City of New York, 182 A.D.2d 469, 473, 583 N.Y.S.2d 255 [1992], lv. denied 80 N.Y.2d 756, 588 N.Y.S.2d 824, 602 N.E.2d 232 [1992] ), and whether a rational basis exists for the agency's determination.   A rational basis exists when the evidence adduced is sufficient to support the Commissioner's action (see Matter of Bocchiano v. New York City Police Dept., 213 A.D.2d 264, 624 N.Y.S.2d 21 [1995];  Sewell, 182 A.D.2d at 473, 583 N.Y.S.2d 255).

In this matter, respondent's determination was based upon:  petitioner's October 2000 arrest for driving while ability impaired by alcohol (Vehicle and Traffic Law § 1192[1] ), which arrest cast doubt on his character and fitness to possess a firearm;  petitioner's failure to promptly report his arrest to the License Division;  his failure to report his change of address to the License Division in a timely manner;  the fact that he transported his handguns to an address other than that designated on his license without permission from the agency;  and his failure to cooperate with respondent's investigation of his arrest.

In view of the foregoing, we find respondent's determination to revoke petitioner's pistol license to be neither arbitrary and capricious, nor irrational.