Jonathan Corbett, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Elina
Druker of counsel), for respondents.
Friedman, J.P., Sweeny, Gesmer, Kern, Singh, JJ.
(denominated an order) of Supreme Court, New York County
(Carol R. Edmead, J.), entered February 7, 2017, insofar as
it denied the petition and dismissed the proceeding seeking a
judgment declaring the "proper cause" requirement
of New York's firearms licensing law (Penal Law §
400.00[f]) to be facially unconstitutional "insofar
as it is interpreted to mean that a citizen must demonstrate
a greater need than that of the average citizen, and in
combination with the state's blanket ban on open
carry" of handguns; declaring three questions on the New
York City Police Department's (NYPD) concealed carry
license application, relating to applicants' discharge
from employment, prior use of "narcotics or
tranquilizers, " and prior subpoena or testimony before
any governmental hearing, to be arbitrary and capricious and
violative of the U.S. Constitution 2nd Amendment; and
directing respondents to issue petitioner a concealed carry
handgun license, unanimously affirmed, without costs. Appeal
from that portion of the judgment denying petitioner's
request for an order directing NYPD to produce documents
responsive to petitioner's request, under the Freedom of
Information Law (FOIL), for documents demonstrating how NYPD
evaluates concealed carry handgun license applications,
unanimously dismissed, without costs, as moot.
"proper cause" element of New York's handgun
licensing scheme (see Penal Law § 400.00[f])
passes intermediate constitutional scrutiny, as it is
substantially related to the state's important interest
in protecting public safety (see Kachalsky v County of
Westchester, 701 F.3d 81, 96-97 [2d Cir 2012], cert
denied sub nom Kachalsky v Capace, 569 U.S. 918');">569 U.S. 918 ;
see generally People v Hughes, 22 N.Y.3d 44, 52
; Matter of Delgado v Kelly, 127 A.D.3d 644');">127 A.D.3d 644
[1st Dept 2015}; New York State Rifle & Pistol Assn.
v City of New York, __ F.3d __, 2018 WL 1021310, *10-11,
2018 U.S. App LEXIS 4513, at *33 [2d Cir Feb. 23, 2018]).
Moreover, viewed as a whole, New York's handgun licensing
scheme does not impose any blanket or near-total ban on gun
ownership and possession (see Kachalsky, 701 F.3d at
addition to the "proper cause" requirement specific
to concealed carry licenses, the statute sets forth other
requirements, including that the applicant be "of good
moral character" (Penal Law § 400.00[b]). The
three questions on the handgun license application challenged
by petitioner, which he refused to answer, relate to 1)
whether he has been discharged from any employment; 2) past
use, if any, of narcotics or tranquilizers, and 3) past
testimony before any executive, legislative or judicial body.
These questions are designed to elicit information that can
assist the background investigation that is undertaken by the
New York Police Department in connection with the
application, and accordingly, are justified because they
serve to promote the government's "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 Warmouth v
Zuckerman, 138 A.D.3d 752, 753 [2d Dept 2016][internal
quotation marks omitted]; see also Matter of Delgado v
Kelly, 127 A.D.3d 644');">127 A.D.3d 644, supra).
has not established that the denial of his application was
the result of corruption or other impropriety (see Matter
of Hughes v Suffolk County Dept. of Civ. Serv., 74
N.Y.2d 833, 834 ; Matter of Sunnen v Administrative
Rev. Bd. for Professional Med. Conduct, 244 A.D.2d 790,
791 [3d Dept 1997], lv denied 92 N.Y.2d 802');">92 N.Y.2d 802 ).
production of responsive documents, albeit beyond the
statutory 10-day limit and "subsequent to the
commencement of this article 78 proceeding, " mooted his
challenge to the denial of his FOIL request, and we
accordingly dismiss that portion of the appeal (Matter of
Alvarez v Vance, 139 A.D.3d 459, 460 [1st Dept 2016];
see Matter of Babi v David, 35 A.D.3d 266, 267 [1st
Dept 2006]). Even if the proceeding had not been mooted, the
remedy for NYPD's failure to timely respond to the
administrative appeal from the denial of the FOIL request
would not have been an order directing full production, but
rather a ...