Parker v. Nastasi

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Judge of the County Court, Westchester County, dated March 11, 1983, which denied, after a hearing, petitioner’s application for a pistol license. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. Petitioner applied for a pistol license pursuant to section 400.00 of the Penal Law. In accordance with the investigatory procedures which are triggered by such an application, petitioner was mandated by statute to supply several sets of fingerprints to the relevant authorities. Specifically, subdivision 4 of section 400.00 provides in part: “the investigating officer shall take the fingerprints and physical descriptive data in quadruplicate of each individual by whom the application is signed and verified * * * [O]ne standard [fingerprint] card shall be forwarded to and retained by the division of criminal justice services * * * A search of the files of such division and written notification of the results * * * shall be made * * * Thereafter, such division shall notify the licensing officer and the * * * state police * * * of any criminal record of the applicant filed therein subsequent to the search of its files. A second standard card * * * shall be forwarded to [the Federal Bureau of Investigation] with a request that the files of the bureau be searched and notification of the results of the search be made to the investigating police authority * * * [0]ne [fingerprint card] shall be filed with the executive department, division of state police, Albany * * * and the other remain on file with the investigating police authority. No such fingerprints may be inspected by any person other than a peace officer who is acting pursuant to his special duties, or a police officer, except on order of a judge or justice of a court of record” (emphasis supplied). At a hearing conducted before the respondent with regard to the instant application, evidence was adduced which indicated that (1) petitioner was suffering from the skin condition psoriasis, and (2) this condition prevented the police from obtaining an acceptable set of fingerprints from him. The respondent ruled that he could not waive the statutory mandate regarding fingerprints, and on this basis he denied petitioner’s application for a pistol license. In our view, the respondent’s determination must be confirmed. The instant statute, insofar as it mandates that an applicant for a pistol license be fingerprinted before the license is issued, is similar to other statutes which have been enacted by our sister States (see Thom v New York Stock Exch., 306 F Supp 1002, 1012-1013, affd sub nom. Miller v New York Stock Exch., 425 F2d 1074, cert den 398 US 905). The rationale behind these statutes is clear, i.e., the legitimate and compelling need of governmental and police authorities to (1) ascertain whether a particular applicant for a firearm license has a criminal record and (2) help determine the identity of those who use firearms in the commission of crimes. Accordingly, the courts have consistently upheld these statutes as a valid exercise of 548 the police power and have rejected numerous and varied constitutional attacks which have been mounted against them (see People ex rel. Ferris v Horton, 239 App Div 610; People v Perez, 67 Misc 2d 911; Ann., 41 ALR3d 732). Petitioner argues that (1) his inability to supply fingerprint samples was due to illness which he did not cause and over which he has no control; and (2) the respondent’s denial of a pistol license is, under the circumstances, arbitrary and capricious. We do not find these arguments persuasive. The Legislature, while acting within its legal province, has mandated that certain conditions precedent be complied with by an applicant before the latter is granted the privilege of legally possessing a firearm. Under those circumstances, whether the legislative judgment “was wise, or whether the requirement will produce hardship in particular instances, are matters with which [the] court has nothing to do” (Gant v Oklahoma City, 289 US 98, 102). The court “will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question” (Zahn v Board of Public Works, 274 US 325, 328). As the Supreme Court of the United States has stated (Gant v Oklahoma City, supra, pp 102-103): “An otherwise valid statute or ordinance conferring a privilege is not rendered invalid merely because it chances that particular persons find it * * * impossible to comply with precedent conditions upon which enjoyment of the privilege is made to depend.” Although we are sympathetic to petitioner’s predicament, any remedial action regarding the strictures of the statute must come from the Legislature, and not the courts. We have reviewed petitioner’s remaining argument concerning the alleged violation of his constitutional right to bear arms, and find it to be without merit (United States v Miller, 307 US 174; Engblom v Carey, 522 F Supp 57). Mangano, J. P., Brown and Boyers, JJ., concur.