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In the Matter of KEVIN F. NICHOLS

State of New York Supreme Court, Appellate Division Third Judicial Department


November 24, 2010

IN THE MATTER OF KEVIN F. NICHOLS, PETITIONER, V JEROME J. RICHARDS, AS ACTING COUNTY JUDGE OF FRANKLIN COUNTY, RESPONDENT.

The opinion of the court was delivered by: Peters, J.

MEMORANDUM AND JUDGMENT

Calendar Date: October 19, 2010

Before: Mercure, J.P., Peters, Malone Jr., Stein and McCarthy, JJ.

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

In August 2008, petitioner observed youths fighting outside the Franklin County Courthouse. He yelled at the combatants to stop, after which one of the boys left and the fight ended. Petitioner then traded insults with one of the remaining two boys, however, and the situation quickly deteriorated into a physical confrontation. As a result of the incident, petitioner faced criminal charges and was served with an order suspending his pistol permit.*fn1 Following an evidentiary hearing, respondent revoked the permit, finding that petitioner lacked the necessary moral character to carry a pistol and also suffered from a disqualifying mental illness. Petitioner thereafter commenced this proceeding to review respondent's determination.

Respondent is vested with considerable "discretion to revoke a pistol permit and may do so for any good cause" (Matter of Biggerstaff v Drago, 65 AD3d 728, 728 [2009]; see Matter of Hassig v Nicandri, 2 AD3d 1118, 1119 [2003], lv denied 2 NY3d 701 [2004]). Although accounts of the incident differ, petitioner indisputably became involved in a physical altercation with two of the boys, going so far as to pursue them and renew the fighting after they attempted to leave. Indeed, even petitioner admitted that his actions reflected "poor judgment" on his part, and that conduct provided an ample basis from which respondent could conclude that petitioner lacks the requisite temperament and character to carry a pistol (see Matter of Hassig v Nicandri,

2 AD3d at 1119; Matter of Seamon v Coccoma, 281 AD2d 824, 825 [2001]). Accordingly, we need not consider whether petitioner also suffers from a disqualifying mental illness (see Penal Law § 400.00 [1] [d]; [11]).

Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court


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