Opinion
October 31, 1989
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the judgment is affirmed, without costs or disbursements, for reasons stated by Justice Wood at the Supreme Court.
Additionally, we note that we are in agreement with the Supreme Court's determination that the testimony of voters regarding how they cast their ballots is admissible, and that, while eligible voters were entitled to decline to reveal such information, those voters who the court had determined were ineligible, and, accordingly, not entitled to vote, could be required to testify as to how they voted. While it is the policy of this State to preserve the secrecy of the ballot (see, N Y Const, art II, § 7), it has long been established that the right of nondisclosure is a privilege of the voter, which may be waived in a judicial proceeding (see, Matter of Farano v Monahan, 79 Misc.2d 648, affd 46 A.D.2d 695, affd 35 N.Y.2d 729; People ex rel. Deister v Wintermute, 194 N.Y. 99; People ex rel. Smith v Pease, 27 N.Y. 45). That privilege, however, covers qualified voters only, and does not extend to those persons who the court determines were unqualified to vote. Such persons may be compelled to reveal for whom they voted so that their votes may be discounted (see, People ex rel. Smith v Pease, supra; Matter of McGuinness v DeSapio, 9 A.D.2d 65; see also, Mettler v Murphy, 101 N.J. Super. 163, 243 A.2d 832; Glenn v Gnau, 251 Ky. 3, 64 S.W.2d 168; Robinson v McAbee, 64 Cal.App. 709, 222 P. 871; People v Turpin, 49 Colo. 234, 112 P. 539). Brown, J.P., Eiber, Harwood and Rosenblatt, JJ., concur.