Opinion
Index No. 71494/2024
10-18-2024
Jennifer Colamonico, SUZANNE BERGER, NICHOLAS KUVACH, MAUREEN HENRY, RICKI RUSTING AND MICHELLE FARNUM-MORALES, Petitioners, v. Anthony Frascone, Respondent-Candidate, HENRY T. BERGER, PETER S. KOSINSKI, ESSMA BAGNUOLA and ANTHONY J. CASALE, Commissioners constituting the New York State Board of Elections, CATHY CROFT and KELLY K. PRIMAVERA, Commissioners constituting the Putnam County Board of Elections, HANNAH BLACK and ERIC HAIGHT, Commissioners constituting the Dutchess County Board of Elections, TAJIAN M. NELSON and DOUGLAS A. COLETY, Commissioners Constituting the Westchester County Board of Elections and KATHLEENM. PIETANZA and PATRICIA A. GIBLIN, Commissioners constituting the Rockland County Board of Elections, Respondents, For an Order Pursuant to Sections 16-100, 16-104 and 16-116 of the Election Law, Declaring Null and Void the candidacy of Respondent-Candidate, Anthony Frascone, as a candidate of the Working Families Party for Public Office of Member of U.S. House of Representatives 17th District, New York for the General Election to be held on the 5th day of November 2024, and to Restrain the said Board of Elections from Printing and Placing the Name of Said Respondent-Candidate Upon any further official ballots of such General Election.
Keith Corbett, Esq., Gabriella Amato, Esq. and Howard Colton, Esq. for Petitioners; William McCann, Esq. and Brian Quail, Esq. for Respondent Commissioners of the New York State Board of Elections; John Murtaugh, Esq. for Respondent Commissioners of the Putnam County Board of Elections; David Jensen, Esq for Respondent Commissioners of the Dutchess County Board of Election; Robert Spolzino. Esq. for Respondent Tajian Nelson, Commissioner of the Westchester County Board of Election; Timothy Hill, Esq. for Respondent Douglas Colety, Commissioner of the Westchester County Board of Election; Matthew Parisi, Esq. for Respondent Commissioners of the Rockland County Board of Elections;
Unpublished Opinion
Keith Corbett, Esq., Gabriella Amato, Esq. and Howard Colton, Esq. for Petitioners;
William McCann, Esq. and Brian Quail, Esq. for Respondent Commissioners of the New York State Board of Elections;
John Murtaugh, Esq. for Respondent Commissioners of the Putnam County Board of Elections;
David Jensen, Esq for Respondent Commissioners of the Dutchess County Board of Election;
Robert Spolzino. Esq. for Respondent Tajian Nelson, Commissioner of the Westchester County Board of Election;
Timothy Hill, Esq. for Respondent Douglas Colety, Commissioner of the Westchester County Board of Election;
Matthew Parisi, Esq. for Respondent Commissioners of the Rockland County Board of Elections; and Joseph Burns, Esq. for proposed Intervenors.
Janet C. Malone, J.
In this Civil Practice Law and Rules Article 4 special proceeding, this Court is vested with jurisdiction to summarily determine any question of law or fact arising under Article 16 of the Election Law (Election Law § 16-100. [1] [2]). See also Election Law § 16-116.
The Second Department stated that from the wording of article 16, the Legislature intended it "to deal exclusively with frauds or irregularities in the actual voting process...." (Allgrove v. Canary, 112 A.D.2d 1057, 1057-58 (2d Dept. 1985). "[W]e are mindful that the Legislature intended article 16 of the Election Law to be construed liberally (Election Law §16-100[1]) to maintain the fairness and integrity of the electoral process." Cullinan v. Ahern, 212 A.D.2d 103, 107 (4th Dept. 1995).
At present, the Court has two matters for decision. The first is Petitioners Order to Show Cause and Verified Petition (Motion Sequence 1) seeking an order pursuant to Sections 16-104 of the Election Law to remove Respondent-Candidate Anthony Frascone ("Frascone") from the Working Families Party line of the General Election November 5, 2024 ballot for the public office of Representative in Congress from the 17th Congressional District. Petitioners allege that as a convicted felon running a "shill campaign," Frascone and the Respondents Boards of Elections are depriving the voters in the 17th Congressional District of a free and honest election (NYSCEF Doc. No. 46 pgs. 3-10).
The Court notes that of the six Petitioners only five verified the Petition (see NYSCEF Doc. No. 1 at 14).
The 17th Congressional District includes parts of Rockland, Putnam, Westchester, and Dutchess Counties.
Petitioners' Petition and Order to Show Cause is supported by the Affirmation of Keith M. Corbett, Esq., Exhibit A, Memorandum in Support dated October 8, 2024; and Memorandum of Law dated October 9, 2024, Tajian Nelson, Democratic Commissioner of the Westchester County Board of Elections (Appearance, Answer, and Memorandum of Law, (NYSCEF Doc. Nos. 3, 5, 34, 39, 40, 46, 51), and opposed by Respondents Republican Commissioner of the New York State Board of Elections (Answer, Affidavit in Opposition and Memorandum of Law in Opposition and Memorandum of Law dated October 9, 2024, NYSCEF Doc. Nos. 29-31, 49); Commissioners of the Putnam County Board of Elections (Affirmation and Answer, NYSCEF Doc. Nos. 22, 24); Commissioners of the Dutchess County Board of Elections (Motion Seq. No. 3, NYSCEF Doc. Nos. 26-27, 42-43), Douglas Colety, Republican Commissioner of the Westchester County Board of Elections (Answer Objections in Point of Law and Motion to Dismiss, NYSCEF Doc. No. 25), Commissioners of the Rockland County Board of Elections (Affidavit and Answer, NYSCEF Doc. Nos. 32, 33).
While Brian Quail, Esq. appeared in person on behalf of the Democrat Commissioner of the New York State Board of Elections in this proceeding, other than objecting to the Temporary Restraining Order (NYSCEF Doc. 7) and objecting (NSYCEF Doc. No. 52) to the proposed Order (NYSCEF Doc. No. 50), he did not file documents in support or in opposition to the petition.
Second, is the Notice of Motion filed by Respondent Republican and Democrat Commissioners of the Dutchess County Board of Elections seeking to dismiss the Petition (Motion Sequence 3, NYSCEF Doc. No. 26) alleging this Court lacks subject matter jurisdiction, the proceeding is time barred under Election Law § 16-102 (2), and the Petition fails to state a cause of action (see CPLR R. 3211 [a][2], [5], [7], respectively). The motion is supported by Memorandum of Law, Amended Notice of Motion and Supplemental Memorandum of Law (NYSCEF Doc. Nos. 27, 42-43), and opposed by Petitioner's Memorandum of Law (NYSCEF Doc. No. 48).
See Briefing Schedule Order dated October 7, 2024 (Malone, J., NYSCEF Doc. No. 36) granting Commissioners of the Dutchess County Board of Elections permission to amend the Notice of Motion and supplement their Memorandum of Law.
Background
In the federal action Charter Oak Fire Ins. Co. v. Frascone, Case No. 22-cv-00815, which this Court takes Judicial notice that the Court was advised inter alia, that
"In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action." See Matter of Allen v. Strough,. 301 A.D.2d 11, 18 (2d 2002) (internal citations omitted).
On November 28, 2022, the defendant Anthony Frascone entered a plea of guilty to a Superior Court [I]nformation that had been filed against him in Rockland County, New York. That plea was entered before the Honorable Kevin F. Russo, Rockland County Court Judge. Incident to the plea of guilty an Order of Restitution was ordered by Judge Russo...
Also presented to the Court in Charter Oak Fire Ins. Co. v. Frascone was Judge Russo's January 28, 2022 Order of Restitution pursuant to C. P. L. Section 420.10 that ordered Frascone to pay restitution in the amount of $1,607,211 to insurance companies Travelers ($1,389,998.00) and The Hartford ($217,213.00). Although the case makes reference to Frascone entering a "plea of guilty," nowhere is there mentioned what penal law section Frascone plead guilty to and or what might occur with his conviction upon full payment of restitution except that "[a]s a result of the plea of guilty and the Order of Restitution, the criminal action against Anthony Frascone has been resolved." Charter Oak Fire Ins. Co. v. Frascone, 2022 U.S. Dist LEXIS 230937 (S.D.NY 2022).
Criminal Procedure Law (C. P. L.) Section 420.10 (d) sets forth" (d) When a court requires that restitution or reparation... it must direct that notice be given to a person or persons to whom it is to be paid of the conditions under which it is to be remitted; the name and address of the organization to whom it is to be remitted for payment and the amount thereof;... An official or organization designated to receive payment under this subdivision must report to the court any failure to comply with the order and shall cooperate with the district attorney pursuant to his responsibilities under subdivision six of this section."
There is no indication of the status of the federal case in the Southern District of New York although the resolution of the criminal matter allowed the civil federal action to proceed against "the defendants Alpha Omega Building Consulting Corp. and Anthony Frascone" with "answers or otherwise" being filed within "twenty days" and "pre-trial discovery" to proceed. Charter Oak Fire Ins. Co. v. Frascone, 2022 U.S. Dist LEXIS 230937 (S.D.NY 2022).
Almost two years later, a Working Families Party Designating Petition was filed on or about April 4, 2024 with the New York State Board of Elections, for Frascone to run for the office of Member of Congress in the 17th Congressional District, and on or about April 8, 2024, specifications of objections were filed with the New York State Board of Elections against the Petition (Election Law Sections 6-154, 6-158 [1]) without mention of Frascone's conviction or the inactivity of his campaign (NYSCEF Doc. Nos. 2-3 in Jennifer L. Cabrera, et al. v. Anthony Frascone, et al., under Index No. 903661-24 (Supr. Ct. Albany Co. filed Apr. 12, 2024).
The New York State Board of Elections reviewed the objections and on May 1, 2024 determined that Frascone had more than the number of valid signatures required to be on the Primary Election ballot on June 25, 2024 on the Working Families Party line (see Declaration of Raymond J. Riley, III, Co-Executive Director for the New York State Board of Elections, [NYSCEF Doc. No. 30] at ¶9).
"[T]he Petition had 84 valid signatures when 78 were required." See NYSCEF Doc. No. 30, ¶9.
On April 12, 2024, a special proceeding was commenced in New York State Supreme Court, Albany County, under Index No. 903661-24, by Jennifer L. Cabrera as Petitioner-Objector and Mondaire L. Jones as Petitioner-Candidate Aggrieved, to invalidate the Designating Petition for Frascone in connection with the Working Families Party Primary Election. However, on April 24, 2024, the Petition was discontinued with prejudice by a Stipulation executed by the attorneys for the parties including Frascone's.
At the time Mondaire L. Jones was also a candidate for the Working Families party nomination. NYSCEF Doc. No. 30 at ¶ 10; see also Petition under Index No. 903661-24, NYSCEF Doc. No. 1.
Mr. Riley stated that the litigation ended by "stipulation 'with prejudice'" and referenced "NYSCEF #43" (NYSCEF Doc. No. 30 at ¶ 10), however, no stipulation was found at NYSCEF Doc. No. 43 under this index number. Accordingly, the Court reviewed the Stipulation of Discontinuance with Prejudice on NYSCEF Doc. No. 43 under the New York State Supreme Court, Albany County, Index Number 903661-24..
On May 1, 2024, the New York State Board of Elections certified the June 25, 2024 Primary ballot, which included Frascone and Mondaire L. Jones as the two candidates vying to be the Working Families Party candidate for the 17th Congressional District. Frascone was victorious in the Primary Election and the results of that election were certified by the New York State Board of Elections on July 29, 2024 and on September 11, 2024, the New York State Board of Elections certified the November 5, 2024 General Election Ballot for the 17th Congressional District (NYSCEF Doc. No. 30 at ¶¶ 11,12).
Frascone 287 votes to Mondaire L. Jones's 197 votes. NYSCEF Doc. No. 30 at ¶ 11
On October 1, 2024, Petitioners filed the instant Petition and proposed Order to Show Cause (NYSCEF Doc. Nos. 1, 2); on October 2, 2024, the Order to Show Cause was signed (NYSCEF Doc. No. 6), and on October 4, 2024, an Amended Order to Show Cause was issued (NYSCEF Doc. No. 10); See also NYSCEF Doc. No. 20.
As relief, Petitioners seek to 1) declare Frascone's candidacy null and void; 2) direct Respondents Board of Elections not to place and or print Frascone's name as a candidate of the Working Families Party on further official November 5, 2024 General Election ballots; 3) enjoin and restrain Respondents Board of Elections of New York State and Westchester, Dutchess, Putnam, Rockland Counties from printing, issuing, or distributing for use during the November 5, 2024 General Election and all further official ballots upon which Frascone's name appears as a candidate for the Working Families Party for Member of the United States House of Representatives, 17th District, New York; and 4) granting Petitioners such other and further relief as this Court deems just, proper and equitable (NYSCEF Doc. No. 10)
Petitioners filed proof of personal service on Frascone on October 2, 2024, of the Order to Show Cause dated October 2, 2024, Verified Petition, Emergency Affirmation, and Request for Judicial Intervention, by delivering said documents to a person of suitable age and discretion at Frascone's residence (NYSCEF Doc. No. 12); See CPLR 308 (2).
Frascone's address in the Order of Restitution is the same address where he was served in this special proceeding.
The Petition came before the Court on October 9, 2024 for a hearing with appearances having been made by Keith Corbett, Esq., Gabriella Amato, Esq. and Howard Colton, Esq. for Petitioners; William McCann, Esq. and Brian Quail, Esq. for Respondent Commissioners of the New York State Board of Elections; John Murtaugh, Esq. for Respondent Commissioners of the Putnam County Board of Elections; David Jensen, Esq for Respondent Commissioners of the Dutchess County Board of Election; Robert Spolzino. Esq. for Respondent Tajian Nelson, Commissioner of the Westchester County Board of Election; Timothy Hill, Esq. for Respondent Douglas Colety, Commissioner of the Westchester County Board of Election; Matthew Parisi, Esq. for Respondent Commissioners of the Rockland County Board of Elections; and Joseph Burns, Esq. for proposed Intervenors. Respondent-Candidate Anthony Frascone failed to appear.
Now, the Court having reviewed and considered the Petition, Answers, Objections in Point of Law, Memoranda of Law assigned NYSCEF Doc. Nos. 1-6; 10-12; 22-27; 29-33; 39-40; 42-43; 46-49; 51, oral arguments, the background and the circumstances of this case the Petition, Amended Order to Show Cause and Motion are decided as follows:
Default
Frascone has failed to appear or answer the Petition; therefore, Petitioners argue that case law directs that he is "deemed to have admitted all factual allegations contained in the [Petition] and all reasonable inferences that flow from them." Boudine v Goldmaker, Inc., 130 A.D.3d 553, 554 (2d Dept. 2015). However, "[a]lthough a defaulting defendant is deemed to have admitted all the allegations in the complaint, the legal conclusions to be drawn from such proof are reserved for the Supreme Court's determination" McGee v. Dunn, 75 A.D.3d 624, 625 (2d Dept. 2010) (internal citations omitted) ("The Supreme Court properly denied the plaintiff's motion for leave to enter judgment against the defendant's default in answering... as the plaintiff's motion papers failed to set forth sufficient facts to enable the court to determine that there exists a viable cause of action to recover damages").
Further, whereas here, one of the Petitioners failed to verify the Petition and claims in the pleading are based upon information and belief (NYSCEF Doc. No. 1, at ¶¶ 16, 17, 17.1-17.7, 18) "without the slightest reference to the source of the information or the grounds for the belief is deficient" See Zelnik v. Bidermann, 242 A.D.2d 227, 228 (1997) ; see also Facebook, Inc., v. DLA Piper LLP, 134 A.D.3d 610, 615 (2d Dept. 2015) ("Statements made in pleadings upon information and belief are not sufficient to establish the necessary quantum of proof to sustain allegations of fraud) (internal citations omitted); see also Henriquez v. Purins, 245 A.D.2d 337 (2d Dept. 1997) (movants "verification was premised solely upon 'information and belief', the complaint remained unverified and as such it was insufficient to support entry of a default judgment) (internal citations omitted).
Accordingly, the Court will determine what, if any legal conclusions are to be drawn from the proof presented.
Fair Campaign Code
Petitioners argue that not "only would keeping [Frascone] on the ballot be contrary to the laws of the State of New York, but it would also work to undermine the New York State election process and the 'essence of a democratic society'" . See Petitioners' Memorandum of Law at NYSCEF Doc. No. 46, pg. 7 citing Silberberg v. Bd. of Elections of NY, 272 F.Supp.3d 454,469 (S.D.NY 2017).
In Silberberg v. Bd. of Elections of NY, "Plaintiffs commenced this action on October 26, 2016, less than 2 weeks before the 2016 presidential election, and moved for a preliminary injunction against enforcement of NY Elec. Law § 17-130(10) against voters who, like plaintiffs, wished to photograph themselves together with their completed ballots at polling sites in New York City and then post those photographs to a social media site. The Court denied the motion with respect to photographs of marked ballots taken at polling sites, and declined to reach the issue of photographs of ballots not voted at polling sites due to plaintiffs' failure to demonstrate standing. (Nov. 3, 2017, Mem. and Order, Dkt. 20 at 3-4.) The Court also declined to rule on the City Board's no photography policy because the record was inadequately developed. (Id. at 16.)" Silberberg v. Bd. of Elections of NY, 272 F.Supp.3d 454, 460 (2017)
Petitioners continue that having Frascone who "is nothing more than a shill who appears in name only on a ballot" violates the Fair Campaign Code and, implies that Frascone is an agent for one of the major political parties.
The Fair Campaign Code prohibits any person, political party or committee from:
placing one's own employee or agent in the campaign organization of another candidate" and specifically prohibits 'subversion and undermining of political parties or the electoral process including, but not limited to... use of any employees or agents who falsely represent themselves as supporters of a candidate, political party or committee.NYSCEF Doc. No. 46, at page 9 (emphasis in original).
Petitioners suggest that the cure is to remove Frascone's name from the ballot post-certification because of his disqualification as a candidate, however, Petitioners' reliance on the case of Stevenson v. de Blasio 2022 U.S. Dist. LEXIS 97317 (S.D.NY 2022) is misleading, unpersuasive, and inapplicable..
Petitioners argue that "the Court [in Stevenson v. de Blasio ] dismissed the Petitioner's complaint wherein he sought to challenge the Court's ruling that removed him from the ballot post certification due to his felony conviction that made him eligible (sic) to hold office under New York City law. In affirming the dismissal of the Petitioner's complaint, the Court found it was inconsequential that 'the election board had certified [Stevenson's] name to be on the ballot[] after the certification was complete'. Further, the Court did not find that the removal of the Petitioner's name from the ballot caus[ed] [Stevenson] and the public to be prejudice[d] [i]n their voting rights." (NYSCEF Doc. No. 46, pg. 10).
This quote from Stevenson v. de Blasio Petitioners offer is from a footnote in the case where the Court in ruling that "[Stevenson's] Amended Complaint [] does not allege any additional facts, nor does he posit any new legal theories, that would alter the merits of [the prior] decision [of the Magistrate Judge] to dismiss Stevenson's Amended Complaint with prejudice]" (Id. *11), the Court at Footnote 7 stated:
Other than adding the New York Attorney General as a party, who has since been dismissed, the Amended Complaint is identical to the Complaint, with three exceptions. First, the Complaint - but not the Amended Complaint - asserts that "the election board had certified [Stevenson's] name to be on the ballot then after the certification was complete, the election board withdr[e]w or remove[d] [his] name arbitrarily from the ballot causing [Stevenson] and the public to be prejudice[d] [i]n their voting rights...
This case is also not applicable to the instant case as the law at issue was Stevenson's disqualification under the New York City Charter and "Stevenson's claims [were] barred by res judicata" (Id. *18).
There is no evidence or case law that a candidate is disqualified from being on a General Election ballot because he/she/they do not have a campaign manager, conduct fundraising activities, send out mailings, create a website, and or take part in "any of the actions and processes promulgated under the Fair Campaign Code for candidates for election inclusive of debates Petitioners" (NYSCEF Doc. No. 46, pg. 9); see Benson v. Prusinski, 151 A.D.3d 1441, 1444(3d Dept. 2017)("when a party seeks judicial intervention in the election process, the court's jurisdiction is limited to that expressly conferred by the Election Law")
The Board of Elections is mandated by Election Law "Section 3-106 (1) [ ] to adopt a fair campaign code setting forth ethical standards of conduct for persons, political parties and committees engaged in elections. The fair campaign code is embodied at 9 N.Y.C.R.R. § 6201.1. The Board of Elections, at its own initiative or upon complaint, may investigate alleged violations of the code (Election Law § 3-106 (3)), and upon finding that a violation occurred, impose civil penalties not exceeding one thousand ($ 1,000) dollars. Election Law § 3-106 (4). Jaliman v. Selendy, 7 Misc.3d 1007 (A), 1007A (West. Co. Sup. Ct. 2005)(internal quotation marks omitted).
Here, no such administrative review has occurred in this matter (October 9, 2024 Transcript of Proceedings at 53:1-22). Petitioners have failed to even file a complaint with the Board of Elections under the Fair Campaign Code. See Austin v. Delligatti, 137 Misc.2d 530, 533-534 (Nassau Co Sup. Ct, 1987)("In the event that the Board of Elections fails to investigate any complaint,... an aggrieved party is required to make a complaint in the first instance to the Board of Elections under the Fair Campaign Code" and finding petitioner is "required to exhaust his administrative remedies before applying to the courts for relief"); Brunjes v Nocella, 40 A.D.3d 1088, 1088-1089 (2d Dept 2007)("It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law").
The Petition is not sustained, Petitioners have failed to exhaust their administrative remedies.
New York Public Officers Law
No Person shall be a Representative who shall not have attained to the Age (sic) of twenty five Years (sic), and been seven Years (sic) a Citizen of the United States, and who shall not, when elected, be an Inhabitant (sic) of that State in which he shall be chosen."United States Term Limits v. Thornton, 514 U.S. 779, 783 (1995)(Steven, J.); see also Article I, Section 2, Clause 2 of the United States Constitution.
Petitioners claim they "are not challenging [Frascone's] qualifications. Instead, Petitioners are challenging that the Respondent's Board of Elections, in light of being presented with the facts of this case, cannot place [Frascone's] name on the 2024 General Election Ballot." Petitioner further claim Frascone is "a shell candidate [and] a convicted felon [] running for the U[nited] S[tates] House of Representatives for the sole intent of depriving bona fide candidates and voters of their rights to an open and fair election"; and he should be removed from the November 5, 2024 General Election ballot because he violates New York state laws, to wit: New York Public Officers Law and New York Penal Law. (NYSCEF Doc. No. 46, pgs. 4, 2-3, respectively).
Petitioners further argue that "pursuant to § 6-122 of NYS Election Law, "A person shall not be designated or nominated for a public office or party position who (1) is not a citizen of the state of New York; (2) is ineligible to be elected to such office or position; or (3) who, if elected will not at the time of commencement of the term of such office or position, meet the constitutional or statutory qualifications (hereof or, with respect to judicial office, who will not meet such qualifications within thirty days of the commencement of the term of such office." (NYSCEF Doc. No. 46, pg. 12(emphasis original and emphasis added). This argument does not apply as Frascone meets the basic requirements
As Justice Stevens wrote in United States Term Limits v. Thornton, 514 U.S. 779 (1995), the "Tenth Amendment [ ] thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist." (Id. 806).
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. US Const. Amend. 10. See also, Martin v. Hunter's Lessee, 14 U.S. 304, 326, 4 L.Ed. 97, 1816 U.S. LEXIS 333 (1816)("[G]overnment... can claim no powers which are not granted to it by Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.")
Regardless, Petitioners seek without statutory or decisional authority, to add to New York Public Officers Law that this Court is empowered without proof to infer the charges upon which a candidate for the United States House of Representatives was convicted. See. Terranova v. Board of Elections in the City of New York, 2020 NY Misc. LEXIS 1705 ("[I]t is long established that the Supreme Court has no equity powers in election matters")
New York Public Officers Law §3 (1-a)(i), states that "No person shall be capable of holding a civil office who shall stand convicted of a felony defined in article two hundred or four hundred ninety-six or section 195.20 of the penal law". However, Petitioners have failed to establish that the act(s) Frascone was convicted of in 2022 met the elements of corrupting the government under Penal Law § 496.02 or public corruption under Penal Law § 496.06 as asserted by Petitioners (NYSCEF Doc. No. 46, pgs. 5 and 3, respectively) or that Public Officers Law applies to a congressional candidate for election to the United States House of Representatives.
Corrupting the Government in the Fourth Degree, Penal Law § 496.02, class E felony, reads that
A person is guilty of corrupting the government in the fourth degree when, being a public servant, or acting in concert with a public servant, he or she engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud the state or one or more political subdivisions of the state or one or more governmental instrumentalities within the state to obtain property, actual services or other resources, or obtain property, actual services or other resources from the state, or any political subdivision or governmental instrumentality of the state by false or fraudulent pretenses, representations or promises, and thereby wrongfully obtains such property, actual services or other resources.
(Emphasis added).See also NYSCEF Doc. No. 46, pg. 5.
Under Penal Law § 10.00 a public servant is defined to include a person who has been elected or designated to become a public servant; however, there is no proof that Frascone was a public servant until April 2024, two years after his conviction.
Similarly, the Court finds that, even if Public Officers Law was applicable here, Frascone did not violate Public Officers Law as, again, there is no proof that his guilty plea to a Superior Court Information involved his status as a public servant in a public office as Public Corruption, Penal Law § 496.06 reads:
1. A person commits the crime of public corruption when: (a) (i) being a public servant he or she commits a specified offense through the use of his or her public office, or (ii) being a person acting in concert with such public servant he or she commits a specified offense, and (b) the state or any political subdivision thereof or any governmental instrumentality within the state is the owner of the property.
2. A "specified offense" is an offense defined by any of the following provisions of this chapter: section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the first degree); section 190.60 (scheme to defraud in the second degree); or section 190.65 (scheme to defraud in the first degree).(emphasis added)
Petitioners have also failed in their attempt to make this Court take a leap without a legal net that because of the amount of the restitution Frascone was ordered to pay by Judge Russo, he was convicted of any of the specified larceny offenses including grand larceny in the first degree (Penal Law §155.42), a class B felony. Further, there is no support that Frascone provided "fraudulent and false information to Travelers and The Hartford insurance companies to acquire legally required workers' compensation insurance for his employees of Alpha-Omega..." See NYSCEF Doc. No. 46, pg. 3; see also NYSCEF Doc. No. 1 at ¶¶ 17.1, 17.3, 17.7.
A person is guilty of grand larceny in the first degree when:
1. [There are two subs 1] such person steals property and when; or
1. [There are two subs 1] such person steals property and when the value of the property exceeds one million dollars; or
2. [There are two subs 2] The property consists of retail goods or merchandise stolen pursuant to a common scheme or plan or a single, ongoing intent to deprive another or others of the property or to appropriate the property to the actor or another person and the value of the property exceeds one million dollars, which value may be determined by the aggregate value of all such property regardless of whether the goods or merchandise were stolen from the same owner. Nothing in this subdivision shall be read to limit the ability to aggregate the value of any property or the ability to charge the larceny of retail goods or merchandise under another applicable provision of law.
2. [There are two subs 2] such person commits deed theft, regardless of the value, of (a) residential real property that is occupied as a home by at least one person; or (b) residential real property that involves a home that is owned by an elderly person, an incompetent, an incapacitated person, or physically disabled person; or (c) three or more residential real properties.
Grand larceny in the first degree is a class B felony.
Before the record closed the best evidence of Frascone's conviction would have been a certificate of disposition, which at the writing of this Decision and Order surprisingly had not been provided leading to this legal guessing game of what Frascone plead guilty to.
Petitioners argument is even less availing considering a challenge to a designation or nomination pursuant to Public Officer's Law (1-a)(i) is properly brought under 16-102, as will be discussed below.
The Petition is not sustained, Petitioners have failed to establish that Anthony Frascone violated New York Public Officers Law.
Statute of Limitations
Election Law Section 16-104 reads
1. The form and content of any ballot, or portion thereof, to be used in an election, and the right to use any emblem design, party or independent body name, may be contested in a proceeding instituted in the supreme court by any aggrieved candidate or by the chairman of any party committee or independent body.
2. The wording of the abstract or form of submission of any proposed amendment, proposition or question may be contested in a proceeding instituted by any person eligible to vote on such amendment, proposition or question.
3. A proceeding pursuant to subdivision two of this section must be instituted within seven days after the last day to certify the wording of any such abstract or form of submission
4. A final order including the resolution of any appeals in any proceeding involving the contents of official ballots on voting machines shall be made, if possible, at least five weeks before the day of the election at which such voting machines are to be used, or if such proceeding is commenced within five weeks of an election, no later than the day following the day on which the case is heard.
The Respondent Commissioners of the Dutchess Board of Elections argue that not only does this Court not have subject matter jurisdiction, but that the Petition is untimely asserting essentially that Petitioners ignore the import of Election Law § 16-102 instead citing Section 16-104 of the Election Law, which "does not provide for judicial review, but only as to 'the form and content of any ballot... and the right to use any emblem design, party or independent body name" (NYSCEF Doc. No. 27, pgs. 3-4). Petitioners reject this argument claiming that this proceeding is timely under 16-104(4), that "the legislature included [16-104] as a way to ensure that there was a method to rectify any issues that arise after certification of the ballots and five (5) weeks before election day" November 5, 2024 (NYSCEF Doc. No. 46, pg. 11).
The Court concurs with the Dutchess Commissioners; the plain language of Election Law § 16-104 (4) is inapplicable to this case, therefore, the Court has no recourse but to turn to the provisions of Election Law § 16-102(2).
"Since Election Law article 6 contains the provisions which govern the nomination and designation of candidates for election to public office (see, Election Law § 6-100), and since Election Law § 16-102 (1) authorizes the court to entertain proceedings to contest the nomination or designation of any candidate for public office, it follows that any proceeding to remove a candidate from the ballot for an alleged failure to comply with a requirement of Election Law article 6 must be brought under Election Law § 16-102 (1) and is subject to the time restrictions of § 16-102 (2)." Sellers v. LaPietra, 23 Misc.3d 368, 372-374 (Schoharie County Sup. Ct, 2009) citing Matter of Scaringe v Ackerman, 119 A.D.2d 327, 329 [3d Dept 1986].) ("This action to remove a candidate from the ballot based upon allegations that the candidate does not meet the basic requirements to hold office must be commenced in accordance with the requirements of Election Law § 16-102").
Further, "the Election Law imposes a very short time period in which to commence such a proceeding, it must be instituted within fourteen days after the last day to file a petition, or within three business days after a determination of invalidity. § 16-102(2). The reason for this short time limit is to provide for an expedited ruling so that, if the challenge is successful, a replacement candidate can be placed on the ballot." Sellers v. LaPietra, 23 Misc.3d at 373-374.
Finally, Petitioners claim they are not challenging Respondent's qualifications, but also allege that Respondent is ineligible to be elected pursuant to 6-122 (NYSCEF Doc. No. 46, pg. 12). Alleging a candidate is ineligible pursuant to Election Law § 6-122 is a challenge to that candidate's qualifications. "The substantive qualifications for candidates in the election process are found in Election Law § 6-122" Scaringe v. Ackerman, 119 A.D.2d 327, 329, aff'd, 68 N.Y.2d 885(3d Dept 1986). Thus, the timeframes set forth in Election Law 16-102 apply to the facts and circumstances of this special proceeding and this Petition is time-barred.
No matter how Petitioners style their arguments, qualification versus disqualification, this lawsuit is an attempt to publicize Frascone's conviction to the November 5, 2024 electorate, and an attempt to challenge Frascone's qualifications, set by the United States Constitution. Benson v. Prusinski, 151 A.D.3d 1441, 1444(3d Dept. 2017)("attempting to cast a proceeding in a different light will not enable intervention in the election process when it would not otherwise be available under Election Law").
Based on the procedural history of this case and application of the applicable law, the time for Petitioners to have filed their Petition was fourteen days after April 4, 2024, therefore the time for Petitioners to have filed their Petition expired on April 18, 2024.
Petitioners' other contentions having been reviewed and considered by the Court, they are deemed to be without merit or moot based on the foregoing.
Accordingly, it is hereby
ODERED, that the motion to dismiss (Motion Sequence No.3) filed by the Respondent Commissioners of the Dutchess County Board of Elections is granted as set forth herein; and it is further
ORDERED, that Petitioners Amended Order to Show Cause and Verified Petition is time barred; the Petition is denied and dismissed with prejudice; and it is further
ORDERED, that the uploading of this Decision and Order to NYSCEF shall constituted suitable service on all parties.
This constitutes the Decision and Order of the Court.