Opinion
Decided October 16, 1997
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered October 3, 1997, which affirmed an order of the Supreme Court (Robert G. Hurlbutt, J.), entered in Onondaga County, denying the petition challenging three write-in votes cast in favor of respondent Russell Andrews in the primary election held on September 9, 1997 for the Conservative Party nomination for the public office of Onondaga County Legislator for the 24th District.
Matter of Brownson v Andrews, ___ A.D.2d ___, reversed.
McMahon, Kublick, McGinty Smith, P.C., Syracuse ( Jan S. Kublick of counsel), for appellant.
Thomas J. Spargo, East Berne, for Russell Andrews, respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, the petition granted, the three write-in ballots at issue declared invalid, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.
The courts below erred by validating the out-of-column write-in ballots. Write-in ballots for this primary election were to be written in column three. Here, all three contested ballots were written in column four, an otherwise blank and unused column. Accordingly, those ballots were not cast in their designated and appropriate place on the machine. Therefore, they are void and cannot be counted ( see, Matter of Haynie v Mahoney, 48 N.Y.2d 718, 719; Election Law § 8-308). As previously noted, the Election Law mandates this result "in clear and unequivocal terms" ( Haynie, supra, at 719). Thus, Matter of Daly v Jayne ( 233 A.D.2d 960) should not be followed.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order reversed, etc.