Daniel P. Wisotsky v Raymond Kelly, as Police Commissioner of the City of New York
Petitioner Daniel Wisotsky filed an Article 78 Petition in order to have the court annul the November 26, 2008 decision of Respondent Raymond Kelly, Commissioner of the New York Police Department to deny Petitioner the insurance of a premises residence pistol license.
Petitioner is a 46 year old man, presently employed as a Security Supervisor by the Rockefeller family. As Security Supervisor he is responsible for the security of the Rockefeller offices, the Rockefeller’s private residence, and personal security for David Rockefeller and supervises six other security officers. Prior to this Petitioner served in the United Stated Marine Corps for twenty years and retired as a Warrant Officer.
On November 15, 2001 Petitioner first applied for a premises residence license with the NYPD. Petitioner was initially denied by the License Division because, as indicated by Petitioner in his application, his discharge from the Marines was not under honorable conditions, involuntary, and predicated upon unacceptable conduct. After Petitioner’s appeal of the initial denial of his application, he began an Article 78 proceeding in December 2002. The Court ordered the License Division to compile more evidence and reasoning for the denial. The matter was settled when Respondent agreed to issue a premises residence license to Petitioner on October 12, 2004.
On January 22, 2005 Petitioner took his handgun with him, outside to pursue two suspicious men he spotted outside his house. Since the incident ended in Petitioner’s arrest and two orders of protection against him, Petitioner’s premises residence license was suspended and then revoked by the License Division by Notice of Determination dated September 21, 2006. The letter stated that the revocation was based on the circumstances surrounding his January arrest which caused doubt about his ability to maintain good character and his failure to abide by the Rule and Regulations governing your firearm license. Petitioner was also advised that he had thirty days to request a hearing.
After Petitioner’s case was adjourned and dismissed in June 2007, he submitted a new application for a premises residence license to the License Division in June of 2008. He answered yes to the question that asks if you’ve ever been arrested and provided the required letter of explanation, but then answered no to the question asking whether the applicant has ever had an order of protection against them. In July of that year Petitioner was interviewed by a License Division investigator, who recommended Petitioner’s application be disapproved due to the events involving his arrest for criminal possession of a weapon where Petitioner had his handgun outside his residence, on his person, and not locked in a lock case.
Petitioner then attempted to appeal this determination, but was denied by the Director of the License Division. Then, on March 26, 2009 Petitioner commenced this Article 78 and argued that Respondent’s denial of a pistol license was arbitrary and capricious because the decision was based on a single arrest and ignored his otherwise stellar history and the determination also violated Petitioner’s rights under the Second Amendment of the Constitution. Petitioner’s challenge failed primarily due to Petitioner’s actions during the January 2006 incident display a lack of judgment that calls into question his fitness to possess a handgun license. There is a lot of power upon Respondent in regards to the issuance of pistol license in New York City, but his determination should not be overturned by a reviewing court in an Article 78 proceeding unless the decision is found to be arbitrary and capricious or an abuse of discretion which is why the petition was denied.
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