WUHAN CORONAVIRUS STATEMENT
Our law office is following various necessary procedures to protect clients and employees from exposure to the Wuhan Coronavirus, including:
- Office employees wear face masks.
- Clients must wear face masks, and will be seated at least six feet away from office employees.
- If an employee becomes ill, they will not be permitted in the office.
- Clients who are ill will not be permitted in the office.
- If a client schedules an appointment at our office, and becomes ill before the appointment date, the client must telephone and make a new appointment for a later date. Clients who are ill will not be admitted to the office.
- Clients may be asked at their appointment time if they: (1) Have any current symptoms of illness, (2) Were ill during the past two weeks, or (3) Were exposed to anyone who was ill during the past two weeks. If the answer to any of these questions is yes, the client may not be permitted in the office, and would have to make an appointment for a later date.
- Only the client will be permitted in the office during an appointment. No family, friends or children will be permitted in the office.
- Clients are encouraged to have a telephone appointment rather than a live appointment, if possible. Any documents necessary to be reviewed by our office can be scanned by the client and then emailed to our office at the time of the appointment.
These types of precautions have become routine with personal service businesses, and we hope that clients will understand and appreciate the importance of such precautions so that we can keep everyone as safe as reasonably possible.
PSYCHOLOGICAL DISQUALIFICATION
Government job applicants can be disqualified from employment for various reasons, including character (honesty and trustworthiness), medical (physical) and psychological (mental). Of all these, psychological disqualifications are the most challenging, and unfortunately, they also can be the most damaging to your future employment if not handled correctly. A psychological disqualification has the real potential to ruin your job opportunities.
Also unfortunate is the rate of psychological disqualification. As example, one New York law enforcement agency has reported that over a 14 year period it psychologically disqualified 27% of all job candidates who were evaluated. So for every 1,000 candidates, 270 were psychologically rejected. But that only is the average rate over 14 years; for 7 of those years the disqualification rate was 30%-34%.
Appealing a psychological disqualification involves a psychological or psychiatric expert witness who provides an opinion about your mental suitability for employment. Commonly, the opinion also highlights any disagreement that the expert has with the agency disqualification.
It is very important that the psychological expert have sufficient experience in the field of related disqualifications. As example, if you are a police candidate then you should obtain the services of a psychologist who has experience with police psychological disqualification appeals.
You also should consult with an attorney who is knowledgeable about your kind of case. Many legal issues arise in the preparation of appeals, and it is very unlikely that you or your psychologist will be able to deal with these properly. The best representation for you will occur when an experienced lawyer and psychologist work together.
PSYCHOLOGICAL REVIEW,
MEDICAL REVIEW &
CHARACTER REVIEW
PSYCHOLOGICAL HOLD,
MEDICAL HOLD &
CHARACTER HOLD
Government employment candidates frequently are told that they are on "review" or "hold." Sometimes this occurs because the agency must gather more information about you before making a hiring decision. However, in many cases review and hold are just excuses to avoid giving any decision. This can happen when the agency does not wish to hire you, but also does not have a very strong reason to disqualify you.
Instead of issuing a disqualification which you can appeal---an appeal which you might win---the agency puts you on review. While on review, your Eligible List gets closer to expiring with each passing day, but you cannot appeal because there is no decision to appeal. In other words, you are left waiting until the Eligible List expires, after which time you cannot be hired.
This is a very abusive government practice, and it destroys your right to use the disqualification appeal process. Most unfortunate is that, by the time some candidates realize what has been done to them, it is too late to get legal help.
You should be in contact monthly with your investigator so that you are up-to-date about your employment application status. If you are told that you are on review or hold, then do not wait more than three months before seeking legal advice. With enough time remaining on the Eligible List, we may well be able to help you get off review or hold. Our office has done this many times for many job candidates.
MEDICAL DISQUALIFICATION &
HUMAN RIGHTS COMMISSION
If you are disqualified for a civil service job based upon a medical condition, you may want to consider filing a complaint with the New York City Human Rights Commission, instead of an appeal with the New York City Civil Service Commission. The main reason for this is that, while the Human Rights Commission process takes much longer than the Civil Service Commission process, your case before the Human Rights Commission could be much more likely to win. Also, a money award may be gotten from the Human Rights Commission, while such awards never are given by the Civil Service Commission.
Before taking any action on a medical appeal, you should contact an experienced attorney to discuss your options and determine which course is the best for your particular case.
NOTICE OF PROPOSED DISQUALIFICATION
& NOTICE OF DISQUALIFICATION
For many years, when a New York City agency wanted to disqualify you from employment, it would issue a "Notice of Disqualification" which could be appealed to the Civil Service Commission. However, this procedure was not correct under the Civil Service Law, which requires that candidates be told in advance why they are going to be disqualified, and be offered an opportunity to argue against a disqualification before it becomes final.
The Civil Service Commission advised agencies some years ago that they were not following the law, and the result is the "Notice of Proposed Disqualification" (NOPD). It notifies you that you have 30 days to ask the agency to "reconsider" the proposal to disqualify. Only after receiving your reconsideration appeal and supporting evidence will the agency then issue you a final decision; usually a Notice of Disqualification.
In practice, all that has changed is that most of what you previously had to do when appealing a Notice of Disqualification, now is done when you receive an NOPD. Instead of appealing a disqualification to the Civil Service Commission, now a reconsideration appeal is sent to the agency first, and after final disqualification you appeal to the Civil Service Commission.
Nevertheless, while only a minor change in procedure has occurred, there is an important consequence: If you wait until the NOPD process is over before getting good legal counsel, you may have hurt your appeal. This is because all supporting papers and other evidence must be presented to the agency during the NOPD process. After that, when the agency issues a final disqualification, the "administrative record" is closed, and any new evidence you try to submit to the Civil Service Commission can be "inadmissible." So if you do not put your best foot forward during the NOPD process—using all evidence and legal resources available—then the case may be defective when it goes to the Commission. Many people learn this lesson late and hard.
In almost all instances, good attorneys can make a case better and stronger than the client could have done on their own. You may understand some of the good evidence in your case, and medical experts should be able to identify relevant medical issues. But almost always, you will overlook helpful legal points, or worse, you will use evidence that actually hurts your case. Also, you might assume that your case is "good enough" to win, and decide that you will call a lawyer only if you lose the NOPD appeal. But by then, the damage has been done. The best course is to contact counsel immediately upon receiving a Notice of Proposed Disqualification, or any other negative notice from an agency.
RIGHT TO OBTAIN PSYCHOLOGICAL FILE
If you are a New York government employment candidate who was disqualified for medical reasons, the New York Public Health Law provides that you have the right to obtain a copy of your medical file from the government agency. As example, a Police Officer candidate denied employment for psychological reasons has the right to get a copy of his psychological file.
Unfortunately, most agencies violate this law and refuse to release file copies to candidates. Usually the file is released only to a doctor who is assisting the candidate with a disqualification appeal, and the government directs the appeal doctor not to give the file to anyone else. That direction is wrong, but many doctors are scared by the warning and will not release the file to the candidate or even the candidate’s lawyer.
Nonetheless, the law is clear and it has been upheld in court. Disqualified candidates have the right to obtain a copy of their medical file, and they can enforce that right by going to court.
PSYCHOLOGICAL INTERVIEW PREPARATION &
PSYCHOLOGICAL EVALUATION PREPARATION
Almost all police and public safety agencies will screen you for psychological suitability, and usually this involves three steps. First, questionnaires about personal history. Second, psychometric tests, including the MMPI-2-RF and Cornell Index. And third, a psychological interview; sometimes more than one.
You can make serious mistakes at all levels. With psychometric testing, the usual mistake is answering questions in a way that you believe will make you look better. But since the tests are geared to measure such "faking good," the result is a test score which hurts you. So the best advice regarding these tests simply is to answer all questions honestly.
However, far more important than test scores is your performance during the psychological interview. The interview is the culmination of the entire psychological evaluation process, and if you do poorly, then your fate is sealed. No amount of good personal history or test scores will compensate for a bad interview. Unfortunately, few candidates know how to present themselves well, and very often make significant errors that lead to disqualification.
Since candidates usually have no experience with psychological interviews, the failure rate is not surprising. And in New York City, the failure rate is higher than the national average. This means that the chance of psychological disqualification is greater than most other places, and many candidates who never imagine that they will be disqualified receive a nasty surprise in the mailbox.
Keep in mind, you do not need to have a mental illness to be disqualified, and disqualified candidates usually have no mental condition at all. What they almost always have in common is that they did badly during the interview.
The good news is that you can be well prepared for a psychological interview, but only if you are counseled by someone who understands the process---such as an attorney with many years experience in psychological disqualification cases. Just like taking an S.A.T. prep course, or a class that teaches job interview skills, you can learn how to handle a psychological interview also. Some candidates who received counseling later remarked about how easy the psychological interview seemed, but how difficult it would have been without preparation.
Do not "cast your fate to the wind" and pray for a good outcome. Maximize your chances of success by being prepared for the psychological evaluation.
ARTICLE 78 PROCEEDING
The New York Civil Practice Law and Rules (CPLR) gives you the right to sue a government agency for various reasons, and many cases involve Article 78 of the CPLR.
An Article 78 proceeding is used, among other reasons, when you want to challenge a government agency decision, or force an agency to do something. As example, when an agency issues a bad decision about you, usually it can be challenged in court under Article 78. Or, the agency might be refusing to issue a decision at all. To force the agency to act, you can use an Article 78 proceeding.
However, you must use all available agency procedures before filing an Article 78. This means that any internal agency appeals, or other available appeals, must be used before going to court. If those procedures are not used, then you lose the right to file an Article 78.
Also, you must usually file the Article 78 proceeding within four months of the final agency determination. This means that once the agency has made its final decision about you, an Article 78 must be filed within four months of the date of that decision.
The four month period is not 120 days, as many attorneys (and even some judges) mistakenly believe. Four months means the same day in the month four months later. As example, if the government notice is dated June 5th, then the four month Article 78 filing deadline is October 5th, not 120 days later on October 3rd. If the deadline month does not have the same numbered last day as the date of the government notice, then the deadline is the last day of the deadline month. As example, if the government notice is dated the last day of December, December 31st, then the Article 78 deadline is April 30th, because April does not have 31 days.
Additionally, if the deadline date falls on a weekend or legal holiday, the deadline is extended to the next business day. As example, if the deadline falls on a Saturday or Sunday, the deadline becomes Monday, unless Monday is a legal holiday, in which case the deadline becomes Tuesday.
Whatever the deadline date, as you can see, the Article 78 filing period only is a few months, and if your case is not filed by the deadline then usually you lose the right to go to court. This is called being "time barred." So it is very important that you contact an attorney as soon as you receive any unfavorable decision from an agency, or as soon as you realize that the agency is refusing to give you a decision. This is so you can find out if any agency appeals must be used, and also to make sure that your Article 78 time deadline is not missed.
PORT AUTHORITY DISQUALIFICATION
Employment disqualifications from city and state agencies in New York routinely are appealed to various civil service commissions. However, disqualifications from public authorities, like the Port Authority of New York & New Jersey, are not covered by the Civil Service Law, and so cannot be appealed. This is because the Port Authority is not an agency of either New York or New Jersey, but an entirely separate entity created by agreement between both states.
The Port Authority acts, essentially, like an independent government, and has vast powers normally exercised only by a state. It is for this reason that such public authorities commonly are referred to as "shadow governments," and the laws which apply to city and state agencies often do not apply to authorities. The result is that job disqualifications from the Port Authority ordinarily cannot be successfully challenged. The only exception is perhaps a rare case of civil rights violation, where a Federal lawsuit might be filed.
However, while Port Authority employment disqualifications usually cannot be challenged, the candidate still has a right to obtain the reasons for the disqualification, which are contained in the Authority’s employment investigation file. As example, a candidate disqualified for psychological reasons has a right to obtain a copy of the psychological file. A demand for the file must be made, and if the Authority refuses to release the file, an Article 78 court proceeding can be used to compel release.
Candidates interested in obtaining such files should contact an attorney as soon as the candidate receives a notice of a Port Authority disqualification.
NEW YORK GUN ARREST
HANDGUN ARREST
ASSAULT WEAPON ARREST
KNIFE ARREST
AIRPORT ARREST
New York weapon laws are different from most other places, and the gun laws truly are terrifying. Your mere possession of a loaded handgun, with no criminal intent at all, results in a mandatory 5-15 year prison sentence upon conviction. Further, almost every case of unlicensed handgun possession now is a felony offense, including possession in the home which formerly only was a misdemeanor.
This is true also for rifle and shotgun possession, particularly if your gun meets the definition of an "assault weapon." Many rifles and shotguns which are legal most everywhere else are considered assault weapons in New York, and the same mandatory sentence applies as with handguns. Additionally, gun magazines are included in the felony category if they can hold more than 10 rounds of ammunition.
Knives too are criminalized in New York, and the knife statute is so vague that carrying almost any knife is chargeable as a crime. In New York City, your carrying even a simple pocket knife can result in arrest.
If you are unaware, you unknowingly can be ensnared by these laws, and many people traveling with guns at airports and by car are arrested regularly. You would be shocked by the severe penalties, and become even more shocked when facing a prosecutor determined to obtain a jail sentence, even though you were not aware of the law.
Your case will require representation by counsel experienced with New York gun and weapon laws, and who understands every argument that can be raised for you against the government. In many cases, not only can police and prosecution errors be used as a defense, but also technical issues regarding weapon specification. A defense attorney must be skilled in all these areas to give you the greatest advantage. If you are charged with violating the firearm, pistol, rifle, shotgun, assault weapon or knife laws, please contact our office immediately.
SAFE ACT APPEAL, NICS AND
CERTIFICATE OF RELIEF
In 2013, the New York Secure Ammunition and Firearms Enforcement Act (SAFE Act) was created, and one part of that law changed the New York Mental Hygiene Law (MHL) to require that certain people be reported to the State. If a mental health professional believes that you are “likely to engage in conduct that would result in serious harm to self or others,” then you must be reported to the State, and once reported you lose your right to own firearms.
Also, when New York puts you into the State MHL reporting system, you will not be able to buy a gun legally, and if you go to a gun store and try to purchase a firearm, the FBI National Instant Check System (NICS) will deny the purchase.
The reporting system has been severely criticized, and rightfully, because mental health providers and hospitals routinely report people who are not a threat to anyone. Doctors and hospitals are frightened that if a person they treat later harms themself or another person, then the doctor or hospital will be blamed for not reporting. And so, people are being reported, and are losing their gun rights, even when they are not dangerous.
The only way to restore your rights is by getting a Certificate of Relief from Disabilities. When that Certificate is issued by New York, FBI NICS then no longer should deny gun purchases. However, the Certificate of Relief process has many steps, and must be completed carefully so that you can have the greatest chance of getting back your rights.
NEW YORK ASSAULT WEAPON LAW BOOK
Mr. Levine's latest book, New York Assault Weapon Laws, has been published by LawTech Publications Company and now is available for purchase. The book contains detailed analysis of the New York assault weapon law, various local assault weapon codes, gun-related terminology, and is heavily illustrated with many photographs. It is a must-have resource for persons interested in this very complex and confusing legal subject.
The book can be purchased by using the order form below, or by telephoning LawTech Publications at 212-482-8830. The cost is $49.95 which includes tax and shipping.
An online review of the book by TheGunMag.com can be viewed at:
http://www.thegunmag.com/real-skinny-new-yorks-vaunted-assault-weapons-laws/
NEW YORK OPMC ATTORNEY
NEW YORK OPD ATTORNEY
MEDICAL LICENSE DEFENSE
MEDICAL LICENSE RESTORATION
PROFESSIONAL LICENSE DEFENSE
PROFESSIONAL LICENSE RESTORATION
Professional misconduct proceedings have become an ever-larger area of legal involvement in recent years. With the increased level of regulation in the medical and other professions, it was inevitable that government agencies responsible for overseeing professional conduct would initiate more regulatory actions. The results largely have been unwelcome in the professional community, for while a few dangerous actors have been removed from the scene, others who have engaged in relatively minuscule acts of misconduct---some unintentionally---have had the full weight of the government fall upon them.
It is most important that affected professionals seek guidance without delay from a professional misconduct attorney in any matters involving OPMC (Office of Professional Medical Conduct) or OPD (Office of Professional Discipline). Misconduct allegations frequently balloon into full-blown investigations, and this activity can be tremendously injurious to the operation of a professional practice. Government investigators rarely are concerned with the business interests of professionals, and will pursue misconduct cases with relentless tenacity. Any who doubt this need only ask a professional who has been the target of such an investigation.
Competent attorneys are available to help medical and other professionals in OPMC and OPD cases, but they are of use only when consulted, and are of most use when consulted early in the process.
RECENT DECISIONS FROM OATH
The following are summaries of recent decisions of the Administrative Law Judges at the New York City Office of Administrative Trials and Hearings.
(Note: Unless otherwise indicated, these are not cases involving clients of Mr. Levine.)
PRACTICE and PROCEDURE
In two letter decisions, ALJ Astrid B. Gloade and ALJ Faye Lewis denied applications by respondents to hold in-person trials, rather than trials through videoconferencing. The ALJ’s both noted that OATH has long recognized that testimony may be taken by videoconferencing when there is a compelling need to do so. They also noted that the constitutional right to confrontation is limited to criminal proceedings. Both ALJ’s found that the COVID-19 pandemic establishes compelling circumstances for holding remote trials, and described OATH’s current practice of conducting all trials remotely except when an ALJ determines upon motion that there is a particularized, compelling need for an in-person trial, that can be conducted in compliance with applicable health and safety guidelines. (See Order of Chief Administrative Law Judge [July 20, 2020], https://www1.nyc. gov/assets/oath/downloads/pdf/Trials-Div-Order.pdf). ALJ’s Gloade and Lewis found that respondents failed to demonstrate a particularized, compelling need for in-person trials, as videoconferencing would permit parties to submit evidence electronically and conduct direct and cross-examination of witnesses whose demeanor would be readily observable on the video platform, and denied both applications. (Dep’t of Sanitation v. Gilchrist, OATH Index No. 1897/20; Dep’t of Sanitation v. Garcia, OATH Index No. 2051/20.)
LICENSING
The Department of Buildings sought revocation of respondent’s hoist machine operator license and registrations alleging that he was negligent, lacked knowledge of or disregarded applicable laws by leaving a crane unattended and unsupervised. Petitioner also alleged that respondent failed to cooperate with an investigation. At trial, ALJ Joycelyn McGeachy-Kuls found that petitioner’s proffered evidence that respondent was at the jobsite or operating the crane at the time was not credible, and was based on assumptions rather than direct identification of the respondent, and thus did not establish that respondent left an operating crane unattended and unsupervised. Additionally, ALJ McGeachy-Kuls found that petitioner had not sufficiently supported its allegation of non-cooperation, because respondent appeared with his attorney ready to answer questions at a subsequently scheduled interview, and the interview transcript showed that respondent was not asked about the unattended crane. ALJ McGeachy-Kuls recommended dismissal of the charges. (Dep’t of Buildings v. Kunkel, OATH Index No. 2113/18.)
The Taxi and Limousine Commission summarily suspended a driver’s TLC license after being notified of his arrest for assault and harassment. At trial, the driver and his girlfriend testified that the driver’s arrest followed a verbal argument in which she called 911 and falsely reported that the driver assaulted her. This account was corroborated by a video taken by the driver. ALJ John B. Spooner found that the evidence failed to demonstrate that the driver posed a direct threat to public safety and recommended lifting the suspension. (Taxi & Limousine Comm’n v. Islam, OATH Index No. 2085/20.)
The TLC summarily suspended respondent’s TLC license after being notified of his arrest for assault and criminal mischief following a dispute between respondent, his sister and his spouse. According to the arrest report, during a dispute between respondent and his spouse regarding divorce paperwork, he grabbed her, causing bruising and scratching, and took her phone away from her while she attempted to call 911. At trial, respondent and his sister, who witnessed the events, testified that those allegations were untrue, and that instead his spouse had grabbed his sister’s phone, and his sister had grabbed and scratched his spouse in an attempt to retrieve her phone. ALJ Noel R. Garcia found that petitioner failed to prove that respondent poses a direct and substantial threat to public health and safety. He recommended that the suspension of respondent’s license be lifted. (Taxi & Limousine Comm’n v. Ayala-Casado, OATH Index No. 2236/20.)
The TLC summarily suspended respondent’s TLC driver license after being notified of his arrest for assault, obstruction of breathing and acting in a manner injurious to a child, following a domestic dispute. According to the arrest report, respondent accused his wife of talking to other men, punched her, put his hands around her neck and squeezed, and took an iPad from her daughter before leaving the scene. ALJ Susan J. Pogoda found respondent’s explanation of the events leading to his arrest, describing a dispute about his wife taking his money, to be not credible. This, together with respondent’s numerous serious driving violations, multiple driver’s license suspensions, and previous TLC license revocation following a failed drug test, demonstrated a disregard for the law and public safety. ALJ Pogoda recommended continuation of the suspension. (Taxi & Limousine Comm’n v. Alhuraibi, OATH Index No. 1976/20.)
VEHICLE RETENTION
Petitioner, the New York City Police Department, sought to retain a vehicle seized as the alleged instrumentality of a crime. Respondent, who was not the arrestee, asserted that she was an innocent owner and petitioner should not retain her vehicle. ALJ Ingrid M. Addison found that the arrestee, who was respondent’s boyfriend and the father of her children, was the beneficial owner of the vehicle. ALJ Addison found that the circumstances of the arrest and the arrestee’s track record with the vehicle, indicated that returning the vehicle would present a heightened risk to public safety. ALJ Addison ruled that petitioner may retain possession of the vehicle pending a civil forfeiture action. (Police Dep’t v. Francis, OATH Index No. 2210/20).
STATEMENT ON RACISM
Below is Mr. Levine’s statement on racism regarding client representation:
“Over nearly thirty years of legal practice, I have seen many different client reactions to the way that cases are resolved. When clients win their cases, obviously they are very happy. But even when they do not prevail, usually they understand the situation. They can accept that nothing is guaranteed, they did their best, and they are able to move on. However, some clients do not deal with loss very well; either loss of a case, or, being turned down for representation.
My first experience with this happened more than 25 years ago. A man who had served a long prison term for attempted murder telephoned my office seeking representation. He had tried to adopt a child from the New York City Administration for Children’s Services, but due to his criminal conviction ACS denied his application. He called my office because he wanted to sue ACS.
I advised the man that ACS had tremendous discretion to determine if a person was a suitable parent, and that there was no judge in the courthouse that would disagree with their decision. After much time trying, over and over, to explain why he would be wasting his money on a lawsuit, the man told me that I was "part of the white power structure trying to keep the black man down."
What I learned in that moment is that no matter how hard one tries to give good professional advice, what one says may not be what someone else hears, or wants to hear. It seemed ridiculous to me that anybody would assume that my legal advice had anything to do with race; why would I want turn away a new client? But if a person has race on their mind, everything they see and hear goes through that filter, and I have learned that there are many people with race filters installed as standard equipment.
Obviously, this can cause real trouble in the professional relationship. For instance, if a client hears my instruction that he be truthful and honest with me --- as if it were an accusation based on racism --- then we have a serious problem. Similarly, a client may be very resistant to hearing advice he does not like, such as when he absolutely is convinced that he was fired due to racism, but where there is a much more legitimate alternative explanation (e.g., the client has a substantial history of employment misconduct).
On the subject of government racism in civil service cases, I can say that almost never have I had a case where a client was denied employment, was disciplined in employment or was terminated from employment based on race. While my own experience does not mean that there is no racism in government operations, it probably means that race-based employment decisions occur far less often than people think. And again, consider that my office has represented many hundreds of clients, and counseled thousands more, for almost thirty years.
Lastly, as with any kind of allegation, if someone wants to allege racism then there must be proof. Suspicions alone do not justify a legal claim, and there are court rules under which lawyers and clients can be fined for making frivolous claims. So when a lawyer is unwilling to make a claim of racism because there is no proof, it does not mean they are racist. The lawyer is just being a good lawyer.”
A HISTORY OF NYPD
GUN LICENSE CORRUPTION
In 2018, a government corruption trial in New York Federal Court resulted in the conviction of political fundraiser Jeremy Reichberg. Reichberg had bribed the New York City Police Department to obtain gun licenses for his clients, and in 2019 was sentenced to 48 months in prison. His co-defendant in the trial, NYPD Deputy Inspector James Grant, was acquitted, but the trial still proved that bribes had been paid, and so New York Post editorial writer Eric Sanders correctly wrote, “Acquittal or no, the NYPD has shown it can be bought.”
That criminal case was only one of several that developed from a corruption scandal that became public in 2016 — the worst gun license bribery scheme in the entire history of the NYPD. Yet, it was only the latest in a long line of similar scandals, all emanating from the nature of New York’s gun control system.
HISTORY OF THE LAW
There were no handgun restrictions in New York until the 1911 Sullivan Act, when the carrying and ownership of handguns became licensed. In New York City, licenses are issued by the Police Commissioner through the NYPD License Division, and if the License Division does not believe that an applicant is worthy, it has virtually unlimited authority to deny a license application.
Such a system, in theory, can be enforced fairly, but in reality it is not. Not only is the system Byzantine — the current application form, without supporting documentation, can be more than 20 pages — decisions about carry licenses have been unfair for decades. Many news articles have reported the names of the rich, famous and well-connected who received carry licenses, while average citizens usually could not.
This discretionary scheme invites bias and corruption, and the Sullivan Act was criticized originally for preventing Italian immigrants from getting guns, and for giving special treatment to others. It is no surprise that the system led to favoritism and bribery, and what follows here is just a partial list of wrongdoing:
CORRUPTION SINCE 1970
1970: Police Officer Frank Serpico revealed widespread NYPD corruption, which led to the formation of the Knapp Commission. Among other things, the Commission heard reports that Police were bribed for pistol licenses. In response, NYPD moved licensing from the precincts to Police Headquarters, perhaps believing that the agency could keep a better eye on things under one roof. What was created instead was a convenient one-stop-shop for corruption.
1973: Captain Salvatore Salmieri was suspended without pay for issuing a pistol license to Joseph Sternfeld, the driver of gangster Thomas Eboli, and for lying about the matter. Eboli was the leader of the Genovese crime family for many years, until he was murdered in 1972.
1973: Police Officer Jack Werner was indicted for receiving bribes to “expedite and facilitate” the issuance of pistol permits.
1975: Acting on earlier reports to the Knapp Commission, Special Prosecutor Maurice Nadjari presented evidence to a grand jury that Police Officers and their superiors had received bribes for pistol licenses. Over 100 people were subpoenaed, and the proceeding was interesting, at one point featuring testimony from a stripper who used the stage name “Little Egypt.” However, Nadjari had limited success, and some of the likely guilty parties walked away untouched.
1996: Deputy Inspector Charles Luisi allegedly got hundreds of thousands of dollars in gifts from a gun dealer believed to have ties to the highest levels of the NYPD. State and Federal prosecutors investigated, but whether Luisi exerted influence over gun licenses never was answered publicly. The Department Internal Affairs Bureau failed to file disciplinary charges against Luisi before he retired, but in a later court trial between the gun dealer and his wife, the wife alleged, among other things, that her husband had used his NYPD connections to have her held against her will in a hotel room for three days by Detectives. Luisi was called to testify, but he took the Fifth.
1997: Deputy Inspector Henry Krantz was accused of corruption and his License Division office was raided by IAB. Departmental charges were filed, including that Krantz had given “preferential treatment to individuals or entities” and had been “wrongfully directing” other Officers to grant favors.
Krantz signed a plea agreement, under which he paid a $10,000 fine, was demoted to Captain and was allowed to retire. Even that disposition perhaps was favoritism, because some believed Krantz was not prosecuted to avoid his telling all that he knew. Others involved were transferred to different duties.
2002: Deputy Inspector Benjamin Petrofsky was accused of giving favored treatment to Aerosmith band members who applied for pistol licenses. Petrofsky allegedly did this for VIP treatment at an Aerosmith concert, and a limousine ride to the after-party. Among other things, Petrofsky was accused of personally going to Madison Square Garden to fingerprint the band members for their license applications.
The Manhattan District Attorney examined whether Petrofsky got illegal benefits. Ultimately, he was demoted to Captain and placed on Dismissal Probation.
2016 SCANDAL
The Mother-of-All gun license scandals began after Federal investigators — probing fundraising efforts by supporters of Mayor Bill DeBlasio — uncovered a bribery extravaganza.
In 2016, Federal prosecutors charged businessman Alex Lichtenstein with bribery after he, essentially, bought carry licenses for cash. Lichtenstein reportedly bragged that he got 150 licenses, charging his clients $18,000 apiece, which if accurate would total $2,700,000. One license recipient had a record including domestic violence complaints and a threat against someone’s life.
Lichtenstein pled guilty in 2016, admitting to bribing NYPD Sergeant David Villanueva of the License Division. Lichtenstein was sentenced to 32 months in prison.
Villanueva pled guilty in 2017 to charges that he accepted bribes, and in 2019 was sentenced to 4 months in prison. At his sentencing he reportedly explained that he fell in with a bad element when he joined the License Division.
Villanueva admitted to prosecutors that he helped over 100 people get licenses that never should have been approved, including a person who may have had ties to organized crime. Nonetheless, his vast knowledge of corruption in the License Division made him an invaluable asset, and he became the star witness for the government, with his testimony advancing numerous criminal cases.
One case was the 2018 trial and conviction of former Brooklyn Assistant District Attorney John Chambers. Chambers, who for years billed himself as the top gun license attorney in New York, was convicted in Federal Court of bribery and other charges. He was sentenced to 1 year in prison.
Villanueva also testified at the trial of Deputy Inspector Grant and fundraiser Jeremy Reichberg, where a bombshell inference was raised by Grant’s attorney. The attorney asked Villanueva if he had knowledge about then-Police Commissioner James O’Neill, when he was the Chief of Patrol, intervening to help a former Playboy Playmate obtain a pistol license that previously she had been denied. However, the attorney’s question never was answered as the prosecutor objected, and after a sidebar conference with the judge the matter was dropped.
Yet another NYPD Officer who was charged by Federal prosecutors was Lieutenant Paul Dean, who pled guilty in 2018 to conspiracy to commit bribery. He was sentenced in 2019 to 18 months in prison, a $7,500 fine, and forfeiture of a $1,000 bribe.
In his pre-sentencing memo to the Court, Dean claimed to have knowledge of enormous corruption involving numerous persons, including a scheme that extended pistol license bribery into neighboring Nassau County. Dean alleged essentially that Sergeant Salvatore Mistretta, the former commanding officer of the NCPD Pistol License Section, would grant licensing favors in exchange for similar favors in New York City.
No charges were filed against anyone at the NCPD, however, Dean’s allegations at least partially were corroborated during the earlier trial of attorney John Chambers. In that case, Sgt. Villanueva testified that he used his good relationship with the Nassau licensing office to obtain favors for clients of Chambers. Villanueva also testified that Chambers sent him an email stating, “If we play our cards right, you could potentially be looking at an extra $10,000 in cash in a 12-month period just for being my consultant in Nassau County.”
Other Officers charged at NYPD included Police Officer Robert Espinel, accused in 2017 of conspiracy to commit bribery and extortion. He pled guilty in 2019 to the conspiracy charge, and was sentenced to a year and a day in prison and a $5,000 fine. Retired Detective Gaetano Valastro was charged with conspiracy to commit bribery and is awaiting trial. Also, Police Officer Richard Ochetal pled guilty in 2016 to charges of bribery and conspiracy to commit bribery. In 2019 he was sentenced to time-served, two years probation, 320 hours of community service and a $15,000 fine.
Ochetal received the lightest sentence thus far due to his cooperation with prosecutors, and also because he was the person who initially exposed the bribery scandal. It was Ochetal who in 2016 turned himself in and confessed to various corruption. Among his revelations was that NYPD brass had exchanged official power for favors, including a $60,000 junket to Las Vegas in the company of a prostitute. He also testified at the trial of Deputy Inspector Grant and Jeremy Reichberg.
FUTILITY OF ANTI-CORRUPTION EFFORTS
When Sergeant Villanueva indicated that he fell into a bad element at the NYPD License Division, his description was a historic understatement. Saying that the NYPD contained a bad element is like saying that a tsunami contains moisture. Such an element has existed, on and off, for more than 50 years, and each time it saw an opportunity for enrichment, pockets were stuffed.
In the past, no one ever paid the full price for their greed, but the 2016 scandal was different. For the first time since 1973 there was an indictment, and for the first time ever people went to jail. The NYPD could not just transfer, demote or retire those who committed crimes — they could not sweep it under the rug — because there was a Federal investigation with real teeth, the truth was exposed, and the price was paid for what one Federal prosecutor described as a “period of rampant corruption.”
Would it change anything? Yes, for a while. As in other cases of bribery, the License Division was administratively reorganized, and the public was told that the same thing could not happen again. This has been the usual offering from NYPD when gun license bribery was uncovered, and the first time the agency made such promises probably was around the same time the White Star Line announced that the Titanic was “practically unsinkable.” The NYPD’s assurances have been just as reliable.
Also, in an effort to insulate itself from future corruption allegations, the License Division began the traditional slaughter of the carry licenses, cancelling most of them at renewal time. One report indicates that over 2,000 licenses have been eliminated. This is an old tactic which the agency has used after each bribery scandal, employing a version of Stalinist reasoning: Where there is no license, there is no problem. But almost all the victims of this policy are innocent licensees, many who have held their licenses for decades. They are the staggering collateral damage of NYPD criminality, and a symbol of the agency’s continuing indecency.
Regarding the future, no matter what changes have been made, as always they will prove useless ultimately. This is because after the dust has settled, someone who knows someone, who knows someone else, will use those connections to start greasing the system again. The discretionary licensing system provides such fertile soil for corruption, that a strong incentive for bribery always exists, and thus, bribes will be paid. That is, unless the incentive is removed, and there are two ways to do that.
The first is to end the unfair system of discretionary licensing and let people with clean records, and proper instruction, receive carry licenses. But do not hold your breath. New York would rather have endless corruption than let citizens regain their rights, because New York government hates the Second Amendment.
The other way is that the U.S. Supreme Court will decide that the bearing of arms is a right as fully protected as the keeping of arms. In 2008, the Court ruled that keeping arms was a fundamental, individual constitutional right. If the Court extends that reasoning to bearing (carrying) arms, then the discretionary licensing systems in many States will crumble. The Court probably never will rule that gun licensing, alone, is unconstitutional. But it easily can rule that a discretionary system denies Second Amendment rights to many citizens, and thus violates the Constitution.
Until one of these remedies occurs, we need only count the days until the next NYPD bribery scandal.
ARMED PROTECTION FOR PEOPLE
WHO CANNOT GET A GUN LICENSE
In most of America, no license is required to possess a gun; whether pistol, rifle or shotgun. A license to carry a gun is needed almost everywhere, but possession alone usually does not require any license or permit. New York is one of the few states that requires a pistol license merely to possess a pistol, and New York City is one of the few cities that requires a rifle/shotgun permit to possess a rifle or shotgun.
If the New York systems operated fairly, obtaining the permissions would be easy for most people. In other states that have licensing systems, usually the only things which disqualify a person are a felony criminal record, history of mental hospitalization, or other serious matters. But New York operates very differently, allowing licensing officials the discretion to judge a person’s “moral character.”
Since New York is “anti-gun” politically, and since the discretion is so broad, that power is used to deny licenses as much as possible. Common examples of the reasons for license denials include: any past allegation of violence, regardless of lack of proof; conviction for non-violent misdemeanors; any history of arrest, even without conviction, for any offense no matter how old or minor; non-criminal summonses such as drinking beer in public, failing to pay subway fare or being on the beach after dark; history of traffic tickets. And there are many other examples, but too many to list here.
The result of this extraordinary power over licensing, coupled with the anti-gun mentality, is that many people are denied gun licenses every day of the week, but they are people who are not dangerous, not violent, and not a risk to public safety. These are people who should not, but are, being denied their Constitutional rights.
So, while it is obvious that police cannot be relied upon for protection, how do these un-licensable people defend themselves from violence? Certainly, the government does not care, and we see proof of this across the entire country. Not only does the government refuse to defend the public, in many cases government officials sympathize with the criminals, directing police not to arrest them. And police chiefs who should be arresting the political officials for obstructing law enforcement, instead cower in fear of losing their jobs, and use the excuse that they were just following orders.
Thus again, how does an un-licensable citizen defend themself against rioters and other criminals, many of whom are armed? The answer is that often the un-licensable citizens get guns anyway, and who can blame them.
Take note, we cannot, and are not, advising people to break the law. Lawyers cannot do that. However, we do understand that many will break the law, and are breaking the law already, so what we can do is offer some observations about how un-licensable people can avoid the worst type of law-breaking and most severe penalties. This is very important because, if such a person possesses or uses a weapon for protection in New York, there is a very good chance they will face prosecution for illegal possession of the weapon. Using an illegal gun for a good purpose does not wash away the illegal status of the weapon.
Some of the longest prison sentences apply to possession of handguns and “assault weapons.” Handguns are easy to identify, but assault weapons are not always so obvious. As a general rule, if it looks military, it is illegal in New York. But to be certain, one must do some research. The best course is to consult with a lawyer who is experienced in this area of law. It does not cost very much just to meet and speak with a lawyer, and when one considers that the client can learn how to avoid facing a felony charge with a mandatory 5-15 year sentence upon conviction, and instead face a misdemeanor charge that might result only in probation, the meeting with the lawyer is very inexpensive.
Possession of large capacity magazines also imposes severe penalties. Everywhere in New York, a large capacity magazine is, with some very minor exceptions, any magazine or similar device which can hold more than ten rounds of ammunition. In New York City, the limit is ten rounds for a handgun magazine, and five rounds for a rifle or shotgun magazine.
Thus, the least prohibited types of devices are rifles and shotguns that are not assault weapons, and rifle and shotgun magazines that do not hold more rounds than allowed.
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