Opinion
Index No. 804709/2022
06-28-2022
STEPHANIE L PAROBEK, Petitioner, v. BENJAMIN S. CARLISLE, Respondent-Candidate, and NEW YORK STATE BOARD OF ELECTIONS, Peter S. Kosinski, Douglas A. Kellner, Anthony Casale, and Andrew J. Spano, Commissioners of and Constituting the New York State Board of Elections, Respondents.
Unpublished Opinion
DECISION & ORDER
Henry J. Nowak, Judge
Petitioner Stephanie L Parobek seeks an order directing respondent New York State Board of Elections (BOE) to invalidate the Democratic designating petition of respondent-candidate Benjamin S. Carlisle to be a candidate for the public office of New York State Senator, 60th Senate District. Carlisle opposes the petition. The court has considered the documents numbered 1 through 34 in the New York State Courts Electronic Filing (NYSCEF) system, along with testimony and evidence presented at a hearing on June 21 and 24, 2022.
Carlisle's Democratic designating petition purports to contain 1,537 signatures of registered Democratic voters living in New York's 60th Senate District (Court Ex. 1). The total number of signatures required to be filed is 1,000. On April 18, 2022, Parobek filed specific objections to 1,423 of Carlisle's signatures. On May 18, 2022, the New York State Board of Elections found 166 of the signatures to be invalid, leaving 1371 valid signatures (see Respondent's Ex. D.). This court scheduled a hearing on June 21, 2022 as to Parobek's remaining objections.
At the beginning of the hearing, counsel for Parobek narrowed her objections to three categories: (1) fraud by witness Alfred Kelley, resulting in 285 invalid signatures; (2) 75 signatures hand printed in whole or in part; and (3) 13 signatures by people who previously signed a Democratic designating petition for another candidate, Senator Sean Ryan. One of the signatures at issue fell under two categories - it was both hand printed and appeared on the previously filed petition. Therefore, Parobek challenged a total of 372 signatures (285+75+13, less the one signature listed under the two categories). If all were invalidated, Carlisle would be left with 999 valid signatures, one short of the required number to appear on the primary ballot.
1. Allegations of Fraud by Alfred Kelley
During the hearing, the court found fraud by Mr. Kelley based upon his testimony and the testimony of Patricia Ann Brown and William P. Whisker. Mr. Kelley admitted that he counted and swore to witnessing signatures that were not written by the individuals listed on the designating petition but instead were written by residents of the same household, if he was told that the individuals were there but under some type of disability. Ms. Brown admitted that she signed for two other family members and Mr. Whisker for his grandmother. Mr. Whisker recalled that Mr. Kelley asked him if his grandmother was home, and when he said she was, Mr. Kelley "said for me to sign it." As a result of this testimony, this court invalidated 283 of the 285 signatures allegedly witnessed by Mr. Kelley (see Toles v Quintana, 183 A.D.3d 1290, 1291 [4th Dept 2020], lv to appeal denied, 35 N.Y.3d 905 [2020]). The court denies Parobek's request to invalidate the signatures of Ms. Brown and Mr. Whisker themselves, as they admitted to signing on their own behalf.
2. Hand Printed Signatures
Parobek relied upon an expert, Dennis J. Ryan, who testified that 75 of the signatures on Carlisle's designating petition included either all or some hand printed letters. The court may invalidate "a printed name on the designating petition when the voter's registration form in the Board's records contains script for his signature" (Gabler v Cattaraugus County Bd. of Elections, 63 Misc.3d 1236[A], 2019 N.Y. Slip Op. 50902[U] [Sup Ct, Cattaraugus County 2019]). While supplied with original voter registration forms, Ryan admitted that he only compared 3 to 10 of the signatures to such forms.
"To prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatory's registration form" (Matter of Lord v New York State Bd. of Elections, 98 A.D.3d 622, 623 [2d Dept 2012]). Upon review of the voter registration forms submitted into evidence (Petitioner's Ex. 7), the court finds that nine individuals who printed some or all of the letters of their names on Carlisle's designating petitions signed in the same manner as when they originally registered to vote: Carolyn Blose, Mary Dressel, Martha Malkiewicz, Kathryn Brysinski, Eya Amin Ara, Danielle Seelbinder, Jennifer C. Regan, Sheryl A. Kavanagh, Robert Ventry. The voter registrations also confirm that Kevin Hans and Robert Becht signed their names after printing them, which is consistent with Carlisle's testimony that he asked several individuals, and specifically Mr. Becht who he knew personally, to sign after seeing them print their names.
Furthermore, Carlisle submitted affidavits of 13 people (in addition to Mr. Becht), who swore that they reviewed and confirmed that they signed their names on Carlisle's designating petition, even though part or all of their signatures included printed letters. At the hearing, counsel for Parobek objected to the affidavits based on (1) timeliness, (2) because they each include the phrase "[t]he attached petition copy is a true copy of my signature" but the relevant pages from the designating petition were not attached to the affidavits, and (3) hearsay. The court did not find them to be untimely nor barred by the failure to include copies of the relevant pages from Court Ex. 1. The court also overruled the hearsay objection but stated that it would consider the objection as to the weight of the evidence.
In Maclay v Dipasquale (73 Misc.3d 258, 263 [Sup Ct 2021], affd 197 A.D.3d 1502 [4th Dept 2021]), the court found that "[a]ffidavits . . . can be relied on to cure signature defects." Nonetheless, in her post-hearing memorandum, Parobek's counsel urges this court to reconsider or give no weight to the 13 affidavits. This issue was addressed in Matter of Schultz v Farkas (36 Misc.3d 1231[A], 2012 N.Y. Slip Op. 51571[U] [Sup Ct, Albany County 2012]), where the court explained:
"While decisional law recognizes that alterations to a petition may be explained 'by affidavit or testimony adduced at a hearing' (Matter of Curley, 22 A.D.3d at 957), the Court does not interpret this language as creating a sweeping exception to the general rule barring the introduction of hearsay in court. Rather, the case law relied upon by petitioners is more reasonably understood as reflecting the unremarkable principle that the affidavits of signers may be considered as part of the written submissions filed in support of, or in opposition to, a petition, but they cannot be received at trial over objection unless they fall within an exception to the hearsay rule."
This court agrees with the analysis by the court in Schultz, but finds that the statements in the affidavits in this case - that the individuals looked at their hand printed signatures on Carlisle's designating petitions and recognized them as their own - fall under the present sense impression exception to the hearsay rule. "The present sense impression exception to the hearsay rule applies to statements that are '(1) made by a person perceiving the event as it is unfolding or immediately afterward' and '(2) corroborated by independent evidence establishing the reliability of the contents of the statement'" (People v Deverow, 2022 NY Slip Op 03362 [Ct App May 24, 2022], quoting People v Cantave, 21 N.Y.3d 374, 382 [2013]). The witnesses all described their conclusions immediately after being shown and recognizing their hand printed signatures from approximately two months earlier. As for corroborating evidence, all of the signatures on the affidavits match the signatories' voter registration forms (compare Respondents's Ex. C with Petitioner's Ex. 7). Consequently, the court considers the 13 affidavits in Respondents's Ex. C to constitute "credible evidence from the signatories . . . that the individuals who signed the registration forms were the same individuals whose signatures appeared on the designating petition" (Matter of Lord, 98 A.D.3d at 623).
The only signature that was not a clear match was that of Darnell Dabney, who had two voter registration forms - one from 1996 and the other from 2015 (see Petitioner's Ex. 7). His 1996 signature was carefully scripted and included all of the letters of his name, while the 2015 signature included a short scribble for his first name followed by the letter "D" and a long line. The court finds the signature on his affidavit to be substantially similar to his 2015 voter registration form.
Respondent's Ex. C includes a fourteenth affidavit, of Mr. Becht, but it has not been included in this group of signatures because the court previously found it to be valid when Mr. Becht signed his name after printing it on Carlisle's designating petition.
3. Prior Signatories for Another Candidate
Parobek has shown that 13 signatories to Carlisle's Democratic designating petition previously signed the Democratic designating petition for Senator Sean Ryan, and Carlisle has not opposed that evidence.
Finding of the Court
After considering all of the testimony and evidence, the court grants Parobek's petition in part by invalidating 347 signatures on Carlisle's Democratic designating petition - 283 signatures allegedly witnessed by Alfred Kelley, 51 signatures that did not match the signatories' registration forms or were explained by affidavit, and 13 signatures by people who previously signed a Democratic designating petition for Senator Ryan. As a result, Carlisle has 1,024 valid signatures, and Parobek's petition is otherwise denied.
This decision constitutes the Order of this court.