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Osterweil v. Bartlett

Court of Appeals of New York

October 15, 2013

Alfred G. OSTERWEIL, Appellant,
v.
George R. BARTLETT, III, Respondent. No. 167.

Page 581

Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey (Daniel L. Schmutter of counsel), and Bancroft PLLC (Paul D. Clement, of the District of Columbia bar, admitted pro hac vice, and D. Zachary Hudson, of the District of Columbia bar, admitted pro hac vice, of counsel) for appellant.

Eric T. Schneiderman, Attorney General, New York City (Claude S. Platton, Simon Heller, Barbara D. Underwood and Richard Dearing of counsel), for respondent.

Page 582

OPINION

PIGOTT, J.

The United States Court of Appeals for the Second Circuit, by certified question, asks us to decide whether an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere is eligible for a New York handgun license in the city or county where his part-time residence is located. We answer the certified question in the affirmative, on the basis of the relevant statute. As we explain below, it is therefore unnecessary for us to decide the constitutional issues raised by appellant.

I.

Appellant Alfred G. Osterweil, a resident of Summit, New York, a town in Schoharie County, applied on May 21, 2008 for a New York State pistol/revolver license pursuant to Penal Law § 400.00. The Schoharie County Sheriff initiated the required background investigations ( see Penal Law § 400.00 [4] ). On June 25, in the course of correspondence on an unrelated matter, Osterweil informed the Sheriff that he had bought a home in Louisiana and that he intended to " make that state my primary residence," while keeping " a vacation property here in Schoharie County." Osterweil asked whether he would still be eligible for a handgun license.

[977 N.Y.S.2d 154] [999 N.E.2d 517] Osterweil's letter raised an important question. Penal Law § 400.00(3)(a) provides that

" [a]pplications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper" (emphasis added).

At the heart of Osterweil's query is the distinction between residence and domicile. Generally, establishing residence " turns on whether [one] has a significant connection with some locality

Page 583

in the State as the result of living there for some length of time during the course of a year" ( Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 20, 30, 484 N.Y.S.2d 514, 473 N.E.2d 742 [1984] ), whereas " [e]stablishment of a domicile in a [place] generally requires a physical presence in the [place] and an intention to make the [place] a permanent home" ( id. at 28, 484 N.Y.S.2d 514, 473 N.E.2d 742), i.e., intent to remain there for the foreseeable future. It follows that an individual can have more than one residence, but only one domicile ( see id. ). Osterweil maintained a residence in Schoharie County, but could no longer claim it as his domicile. Therefore, if a New York domicile is required for a handgun license, the statute makes him ineligible.

The Sheriff forwarded Osterweil's application and query to respondent George R. Bartlett, III, Schoharie County Court Judge and also the county's licensing officer. Osterweil submitted an affidavit to Judge Bartlett, stating that he and his wife continued to play a role in " social, political and community affairs" in Summit, even though they no longer made their primary residence there. He also cited the United States Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), in which the Supreme Court struck down a District of Columbia law banning the possession of handguns in the home, holding that " the absolute prohibition of handguns held and used for ...


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