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Osterweil

Osterweil

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Published by jspector

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Published by: jspector on Oct 15, 2013
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06/21/2014

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================================================================= This opinion is uncorrected and subject to revision beforepublication in the New York Reports.-----------------------------------------------------------------No. 167Alfred G. Osterweil,Appellant,v.George R. Bartlett, III,Respondent.Daniel L. Schmutter, for appellant.Claude S. Platton, for respondent.PIGOTT, J.: The United States Court of Appeals for the SecondCircuit, by certified question, asks us to decide whether anapplicant who owns a part-time residence in New York but makeshis permanent domicile elsewhere is eligible for a New York- 1 -
 
- 2 -No. 167handgun license in the city or county where his part-timeresidence is located. We answer the certified question in theaffirmative, on the basis of the relevant statute. As we explainbelow, it is therefore unnecessary for us to decide theconstitutional issues raised by appellant.I.Appellant Alfred G. Osterweil, a resident of Summit,New York, a town in Schoharie County, applied on May 21, 2008 fora New York State pistol/revolver license pursuant to Penal Law §400.00. The Schoharie County Sheriff initiated the requiredbackground investigations (see Penal Law § 400.00 [4]). On June25, in the course of correspondence on an unrelated matter,Osterweil informed the Sheriff that he had bought a home inLouisiana and that he intended to "make that state my primaryresidence," while keeping "a vacation property here in SchoharieCounty." Osterweil asked whether he would still be eligible fora handgun license.Osterweil's letter raised an important question. PenalLaw § 400 (3) (a) provides that "[a]pplications shall be made andrenewed, in the case of a license to carry or possess a pistol orrevolver, to the licensing officer in the city or county, as thecase may be, where the applicant resides, is principally employedor has his principal place of business as merchant orstorekeeper" (emphasis added).At the heart of Osterweil's query is the distinction- 2 -
 
- 3 -No. 167between residence and domicile. Generally, establishingresidence "turns on whether [one] has a significant connectionwith some locality in the State as the result of living there forsome length of time during the course of a year" (Antone vGeneral Motors Corp., Buick Motor Div., 64 NY2d 20, 30 [1984]),whereas "[e]stablishment of a domicile in a [place] generallyrequires a physical presence in the [place] and an intention tomake the [place] a permanent home" (id. at 30), i.e. intent toremain there for the foreseeable future. It follows that anindividual can have more than one residence, but only onedomicile (see id. at 28). Osterweil maintained a residence inSchoharie County, but could no longer claimit as his domicile. Therefore, if a New York domicile is required for a handgunlicense, the statute makes himineligible. The Sheriff forwarded Osterweil's application and queryto respondent George R. Bartlett, III, Schoharie County Court Judge and also the county's licensing officer. Osterweilsubmitted an affidavit to Judge Bartlett, stating that he and hiswife continued to play a role in "social, political and communityaffairs" in Summit, even though they no longer made their primaryresidence there. He also cited the United States Supreme Court'srecent decision in District of Columbia v Heller (554 US 570[2008]), in which the Supreme Court struck down a District of Columbia law banning the possession of handguns in the home,holding that "the absolute prohibition of handguns held and used- 3 -

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