                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      520808
________________________________

In the Matter of MICHAEL
   SCHMITT,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

GERALD W. CONNOLLY, as Acting
   Justice of the Supreme
   Court,
                    Respondent.
________________________________

Calendar Date:   March 21, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     John N. Clo, Gloversville, for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.

                             __________


Garry, J.P.

      Proceeding pursuant to CPLR article 78 (initiated in this
Court pursuant to CPLR 506 [b] [1]) to review a determination of
respondent revoking petitioner's pistol permit.

      In 1987, petitioner applied for and was granted a pistol
permit. In 2008, petitioner was involved in a domestic dispute
with his spouse, and, as a result, he was charged with harassment
in the second degree and temporary orders of protection were
issued by Coeymans Town Court and Albany County Family Court. In
resolution of the harassment charge, petitioner agreed to
surrender his pistol and a rifle to the Coeymans Police
Department for destruction, and the charge was ultimately
dismissed. In 2012, petitioner applied for an amendment to his
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pistol permit; in his application, petitioner admitted to being
involved in prior proceedings before Family Court but did not
disclose either the harassment charge or the orders of
protection. Upon learning of these prior orders, respondent
conducted an evidentiary hearing to determine whether good cause
existed to revoke petitioner's permit and found sufficient
evidence of petitioner's "irresponsible handling" of his pistol
to merit revocation. Petitioner commenced this proceeding
seeking to annul this determination.

      "There is no question that '[r]espondent is vested with
broad discretion in determining whether to revoke a pistol permit
and may do so for any good cause, including a finding that the
petitioner lack[s] the essential temperament or character which
should be present in one entrusted with a dangerous instrument
. . ., or that he or she does not possess the maturity, prudence,
carefulness, good character, temperament, demeanor and judgment
necessary to have a pistol permit'" (Matter of DeAngelo v Burns,
124 AD3d 1156, 1157 [2015], quoting Matter of Peters v Randall,
111 AD3d 1391, 1392 [2013]; see Matter of Finkle v Herrick, 112
AD3d 1278, 1278 [2013]; Matter of Nichols v Richards, 78 AD3d
1453, 1454 [2010]). Moreover, "respondent's resolution of
factual issues and credibility assessments are accorded
deference, and the determination will not be disturbed absent an
abuse of discretion or a showing that it was made in an arbitrary
and capricious manner" (Matter of Finkle v Herrick, 112 AD3d at
1278 [internal quotation marks and citation omitted]).

      Here, the evidence included the report of a police
investigator who interviewed both petitioner and his former
spouse regarding the 2008 domestic dispute. The former spouse
recounted that, during a heated dispute over the status of their
marriage, petitioner punched several holes in the wall, removed
his pistol from a drawer in his bedroom, began to load it and
told her that "he was going to give her something to call the
police about." Contrary to petitioner's claim, respondent was
entitled to rely on the hearsay statements contained in the
report (see Matter of Kerr v Teresi, 91 AD3d 1153, 1154 [2012]).
Although petitioner denied threatening his former spouse and
testified that he was merely packing the gun with the rest of his
belongings in an effort to leave the marital home, respondent
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expressly found the former spouse's account to be more credible,
and we defer to such credibility determinations (see Matter of
Gaul v Giardino, 95 AD3d 1456, 1457 [2012], lv denied 19 NY3d 810
[2012]; Matter of Seamon v Coccoma, 281 AD2d 824, 825 [2001]).
Accordingly, we find no abuse of discretion in respondent's
determination that petitioner handled his pistol in an
irresponsible manner and that revocation of his permit was
therefore justified (see Matter of DeAngelo v Burns, 124 AD3d at
1158; Matter of Kerr v Teresi, 91 AD3d at 1154; Matter of Finley
v Nicandri, 272 AD2d 831, 832 [2000]).

      Petitioner's contention that he was denied an adequate
opportunity to review the investigator's report or to subpoena
witnesses is belied by the record; petitioner's counsel was
provided with the report prior to the hearing and expressly
declined respondent's offers for additional time to review it or
to subpoena additional witnesses at the conclusion of the hearing
(see Matter of Slayton v New York State & Local Retirement Sys.,
288 AD2d 509, 509-510 [2001]; see also Matter of Tsakonas v
Dowling, 227 AD2d 729, 730 [1996], lv denied 88 NY2d 812 [1996]).
Finally, although respondent's determination made reference to
certain documents that were not entered into evidence at the
hearing, those documents merely repeated information that was
otherwise properly in evidence before respondent. Thus, this
error was harmless and did not result in prejudice to petitioner
(see Matter of George v New York State & Local Retirement Sys.,
285 AD2d 798, 799-800 [2001]).

     Egan Jr., Lynch, Devine and Clark, JJ., concur.


      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
