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In re Application of Delgado

Supreme Court, New York County

October 11, 2013

IN THE MATTER OF THE APPLICATION OF Carlos R. Delgado, Petitioner,
v.
Raymond Kelly, as the Statutorily Designated Handgun Licensing Officer, As the New York City Police Commissioner, and His Successors in Office, Respondent.

Unpublished Opinion

Petitioner: John Skylar Chambers, Esq.

Respondent: Corporation Counsel.

Doris Ling-Cohan, J.

PetitionerCarlos Delgado seeks an order pursuant to Article 78 of the CPLR directing respondent Raymond Kelly, as the New York City Police Commissioner, to: (i) issue a home protection handgun license to petitioner; and (ii) conduct a more thorough review of petitioner's fitness and character to possess a handgun.

Respondent joined issue by service of a Verified Answer alleging that the decision by the New York City Police Department's License Division (NYPD License Division) was rational, not arbitrary or capricious, and not an abuse of discretion.

BACKGROUND

Petitioner applied for a Premise Residence Handgun License in August 2011. It is undisputed that, in the application, petitioner answered Question 27, which states "[h]ave the police ever responded to a domestic incident in which you were involved?", in the negative. Verified Petition, Exh. A, Handgun License Application, p. 2. In October 2011, petitioner was interviewed as part of the application process. Nor is it undisputed that, during such interview, petitioner answered "no" when asked by the investigator, Police Officer Olivo, whether petitioner had ever been involved in any incidents of domestic violence. Thereafter, an investigation into petitioner's background was conducted, and a Domestic Incident Report was found. Such report was based on a complaint by petitioner's wife, Veronica Delgado, who stated that petitioner grabbed her arm and tried to choke her. According to the report, petitioner's wife stated that she wanted an order of protection.

The NYPD License Division issued a Notice of Disapproval, dated April 11, 2012, which disapproved petitioner's application for a handgun license for the following reasons:

You were arrested 3 times in your youth for larceny related offenses. On 10/09/2006, police responded to your home and a Domestic Incident Report # 2006-106-003007 was filed based on a complaint by your wife, Veronica Delgado, stating you grabbed her arm and choked her, along with a request by her for an order of protection. On the written application question #27, you responded no to the question regarding the police responding to your home for domestic violence. During your interview with PO Olivo, you also stated you had never been involved in any domestic violence incidents. Based on your attempt to deceive the License Division investigator through omission, you have shown a lack of candor and poor moral character. You have proven that you have a tendency towards violence and it is inadvisable to allow you access to a firearm for fear of future incidents escalating with the presence of a handgun in the home.

Verified Petition, Exh. B, Notice of Disapproval. Petitioner appealed this determination to the Director of the NYPD License Division.

In support of the appeal, petitioner argued, through his counsel, that although a Domestic Incident Report was generated, this does not equate to domestic violence having taken place in the home. Petitioner emphasized that when the police responded to his home, there was a verbal argument, and "although there was touching, including grabbing, and pushing, there were no physical bruises or any other sign of brute force." Verified Petition, Exh. C, Administrative Appeal Affirmation, p. 4. Petitioner further argued that not all incidents wherein the police are called to the home, is an incident of domestic violence. Particularly, petitioner claims that the police remained in his home for less than five minutes, and that no arrest was made. Thus, petitioner maintains that he was never involved in any incident of domestic violence, and did not deceive Police Officer Olivo during his interview.

In a letter dated June 20, 2012, the Director of the NYPD License Division advised petitioner that his appeal was denied, based on petitioner's "failure to answer Q. 27 truthfully [which] demonstrates a lack of character and fitness for a license to possess firearms". Verified Petition, Exh. E, Notice of Disapproval ...


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