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

IN RE: Jeffrey SEYMOUR, Petitioner, v. Jonathan D. NICHOLS, as Columbia County Judge, Respondent.

Decided: September 29, 2005

Before:  MERCURE, J.P., PETERS, SPAIN, MUGGLIN and ROSE, JJ. Miner & Miner, Hudson (Lance R. Miner of counsel), for petitioner. Eliot Spitzer, Attorney General, Albany (Jennifer Grace Miller of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to review a determination of respondent which denied petitioner's application for a pistol permit.

Petitioner was denied a pistol permit on the ground that the revocation of his prior pistol permit posed an automatic bar to reissuance pursuant to Penal Law § 400.00(1)(e).   Petitioner then commenced this CPLR article 78 proceeding, initiated in this Court (see CPLR 506[b][1] ), seeking a declaration that Penal Law § 400.00(1)(e) is unconstitutional.

 Initially, because petitioner seeks a declaration that the statute is unconstitutional per se, we will convert this proceeding into a declaratory judgment action pursuant to CPLR 103(c) (see Matter of Clear Channel Communications v. Rosen, 263 A.D.2d 663, 664, 692 N.Y.S.2d 812 [1999];  Matter of Consolidated Rail Corp. v. Tax Appeals Tribunal of State of N.Y., 231 A.D.2d 140, 142, 660 N.Y.S.2d 459 [1997];  Matter of Capital Fin. Corp. v. Commissioner of Taxation & Fin., 218 A.D.2d 230, 232, 639 N.Y.S.2d 501 [1996] ).

 Turning to the merits, petitioner's first claim that Penal Law § 400.00(1)(e) violates procedural due process because it does not afford a hearing to applicants seeking reissuance is unavailing.   As long as an applicant is provided with an opportunity to be heard in connection with the prior revocation proceeding underlying the denial of the reissuance-which is reviewable by way of a timely CPLR article 78 proceeding-we see no need for an additional hearing in cases such as this where an application is denied based solely upon the prior revocation (see Matter of Vale v. Eidens, 290 A.D.2d 612, 613, 735 N.Y.S.2d 650 [2002];  Matter of Schiavone Constr. Co. v. Larocca, 117 A.D.2d 440, 443-444, 503 N.Y.S.2d 196 [1986];  see generally Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 [1976] ).

 We also reject petitioner's claim that Penal Law § 400.00(1)(e) violates equal protection by facially discriminating against those applicants whose previous permits were revoked.   Inasmuch as there is no suspect class or fundamental right involved here (see Matter of Demyan v. Monroe, 108 A.D.2d 1004, 1005, 485 N.Y.S.2d 152 [1985] ), the statute will be upheld if it is rationally related to the achievement of a legitimate state objective (see Empire State Assn. of Adult Homes v. Perales, 142 A.D.2d 322, 324, 535 N.Y.S.2d 841 [1988] ).   We find a rational relationship to a legitimate governmental interest in that the Legislature's licensing scheme prevents an applicant whose previous permit was revoked from receiving a new one and insures that only persons of acceptable background and character are permitted to carry handguns.   Indeed, “ ‘[t]he State has a substantial and legitimate interest ․ in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument’ ” (Matter of Manne v. Main, 8 A.D.3d 790, 791, 778 N.Y.S.2d 210 [2004], quoting Matter of Pelose v. County Ct. of Westchester County, 53 A.D.2d 645, 645, 384 N.Y.S.2d 499 [1976];  see Matter of Gerard v. Czajka, 307 A.D.2d 633, 633, 762 N.Y.S.2d 533 [2003] ).   Accordingly, petitioner has failed to overcome the strong presumption of constitutionality that attaches to a duly enacted statute (see LaValle v. Hayden, 98 N.Y.2d 155, 161, 746 N.Y.S.2d 125, 773 N.E.2d 490 [2002] ).

ADJUDGED that the proceeding is converted to an action for a declaratory judgment, without costs, it is declared that Penal Law § 400.00(1)(e) has not been shown to be unconstitutional, and determination confirmed.



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