Volmar v Montano
Annotate this CaseDecided on August 13, 2015
Supreme Court, Suffolk County
Dadelie Volmar, Petitioner-Objector, and Thomas Licari, Astrid Fidelia, Maxina G. Castro, Joseph Mcdermott, Christopher B. Pulitano, Candidates-Aggrieved,
against
Ricardo Montano, Jorge C. Guadron, Nitza J. Franco, Miriam Ventura, and Donovan G. Currey, Respondents-Candidates and Nick Lalota and Anita S. Katz, Commissioners Constituting the Suffolk County Board of Elections, Respondents
Deborah L. O'Connell, Citizen Objector-Petitioner,
against
Giovanni A. Mata, purported candidate of the Democratic Party for the public office of County Legislator for the 9th Legislative District, Suffolk County Board of Elections, Anita S. Katz, Commissioner of the Suffolk County Board of Elections and Nick Lalota, Commissioner of the Suffolk County Board of Elections together consisting the Suffolk County Board of Elections, Respondents.
12505/15
Jaspan Schlesinger, LLP By: Maureen T. Liccione, Esq.
Attorney for Petitioner
300 Garden City Plaza
Garden City, NY 11530
Lawrence H. Silverman, Esq.
Attorney for Petitioner
O'Connell
350 Veterans Memorial Highway
Commack, NY 11725
Young Law Group, PLLC
By: Ivan E. Young, Esq.
Neil H. Tiger, Esq. Of Counsel
Attorney for Respondents
80 Orville Drive, Suite 100
Bohemia, NY 11716
Dennis Brown, Esq.
Suffolk County Attorney
By: Leonard Kapsolis, Esq.
H. Lee Dennison Bldg.
100 Veterans Memorial Highway
Hauppauge, NY11788
Joseph A. Santorelli, J.
In these proceedings pursuant to Election Law §16-102 a hearing was conducted before this Court on August 10, 11 and 12, 2015. On the basis of the evidence adduced at the hearing the Court makes the following findings of fact and decision.
FINDINGS OF FACT
THE PETITIONERS' CASE
Respondent-Candidate Giovanni Mata was called as a witness by the Petitioners. Mata first became involved in politics in 2010 when he attempted to run for the State Assembly but withdrew his candidacy. In 2014 he again attempted to run for the State Assembly but failed to collect enough valid signatures to be placed on the ballot. Mata received training in the procedure for obtaining signatures on designating petitions through the Brentwood Hispanic Democratic Club.
In 2015 Mata and the other Respondent Candidates met with Respondent Candidate Montano and discussed, among other things the procedure for obtaining signatures. Mata was aware that the designating petitions he submitted might be "closely scrutinized" and therefore he [*2]was "extra careful".
Mata explained his routine for collecting signatures. He carried the petitions, E.D. books, a clipboard and voter registration forms. He did not carry campaign literature and did not wear any visible identification. On one or two occasions while collecting signatures, he showed a person his driver's license. Mata was accompanied by his wife and other individuals on a few occasions. He did not collect signatures in the presence of Montano. Mata did not allow an individual to sign for another or let someone else witness a person sign the designating petition. He did not ask signers of the petitions for identification. Mata did not allow a petition to be taken out of his sight in order to acquire a signature.
Finally, Mata explained the procedure he followed after he completed a designating petition.
Respondent-Candidate Ricardo Montano was called as a witness by the Petitioners. Montano was a member of the Suffolk County Legislature for ten years. He testified that he has been collecting designating petition signatures for almost 50 years and eight times in the last twelve years.
From January to June, 2015, Montano and the other Respondent Candidates met about every two weeks and discussed among other things the procedure for collecting designating petition signatures. In what he characterized as a collaborative effort with Mata he instructed the Respondent Candidates to observe the person sign the petition and not allow one person to sign for another. Montano told them that the petitions would be challenged.
Montano collected signatures accompanied by drivers who almost always remained in the vehicle. On one occasion Montano and other Respondent-Candidates walked an Election District on the same day, but did not solicit signatures together.
Montano testified that a notary, Wanda Arroyo, was involved in the petition process. He met her at a barbeque where she was completing a subscribing witness statement on a designating petition. Arroyo was a friend of an unidentified individual.
Finally, Montano detailed the manner in which the designating petitions were collected, checked, compiled and filed with the Board of Elections.
Respondent-Candidate Miriam Ventura was called as a witness by the Petitioners. Ventura obtained her designating petitions from Montano. Montano, Mata and Guadron explained the process to obtain designating petition signatures. In 2014, Ventura, Mata and Guadron collected signatures to be placed on the ballot as delegates for New York State Democratic Committee.
Ventura explained the manner in which she collected signatures. She wore a photo [*3]identification containing her name and the elected position she is seeking. Ventura never collected signatures with Mata. However, she recalled collecting signatures in the same Election District with Mata who she testified to wearing an identification tag similar to the one that she wore.
Wilfredo Guerrero was called as a witness by the Petitioners. Guerrero identified his signature on a designating petition, (Court Exhibit 1, Volume 1, Page 98, Line 15). His wife, Loida Guerrero was with him when he signed the petition. He testified that a female had presented the petition he signed. Guerrero was shown a photograph of Mata and an in-court identification procedure was conducted, but he did not identify Mata as the individual who solicited his signature. (Mata was the subscribing witness on that petition).;
Loida Guerrero was called as a witness by the Petitioners. She observed her husband sign the petition which had been presented by a woman. She did identify Mata (by photograph or in court), as the person who had presented the petition. Loida Guerrero did not sign the petition.
Essie La Fortune was called as a witness by the Petitioners. She identified her signature on a designating petition, (Court Exhibit 1, Volume 1, Page 82, Line 16). La Fortune testified that a man and woman came to her residence to obtain her signature on the petition. At that time no one else was present. The witness was shown line 17 of the petition. Although the same address as La Fortune was on that line, she did not recognize the signature and no one else signed the petition in her presence.
William Acevedo was called as a witness by the Petitioners. He identified his signature on a designating petition, (Court Exhibit 1, Volume 1, Page 90, Line 5). He claimed that a man and a woman came to his house and asked him and his sister (who were busy attending to their day care business), if they signed for Monica Martinez. He was busy and not paying attention but signed the petition which was being held by the woman. (Mata was the subscribing witness on that petition). Acevedo identified Mata in court as the person who had asked him if he had voted for Monica Martinez.
The Court notes that the witness' cross examination was evasive and somewhat less than forthright.
Rachel Adon was called as a witness on behalf of the Petitioners. She identified her signature on a designating petition (Court Exhibit 1, Volume 1, Page 90, Line 4). She claimed that a man and a woman came to her home, which is also a day care center and asked if she had previously voted for Monica Martinez. Adon claimed that the top of the designating petition page was folded in such a manner that she was unable to see the names of the candidates. Adon allegedly believed she was signing a petition for Monica Martinez. Adon made an in-court identification of Mata as the person who had come to the door of her residence with the petition.
The Court notes that on cross examination Adon was somewhat less than forthright.
Respondent-Candidate Jorge Guadron was called as a witness by the Petitioners. Guadron is a self-employed private investigator. In 2010 and 2014 Guadron solicited signatures on designating petitions. In 2015 he attended meetings with Montano and Mata regarding the petition process.
Guadron detailed the manner in which he collected signatures and completed petitions as a subscribing witness. As a rule, he would collect signatures alone with the assistance of a driver who remained in a vehicle. It was his practice to have an address along with a signature before he left a location. Guadron testified that he never intentionally told someone to sign for another person. He wore an identification badge, (which he made for himself, the other candidates and volunteers), whenever he collected signatures.
Guadron was questioned about various signatures on pages in Court Exhibit 1. With respect to Court Exhibit 1, Volume 1, Page 37, Line 6, (which was crossed out and initialed), he explained that on that occasion one individual signed for another and he crossed out the signature and address. Guadron testified about the circumstances surrounding signatures on Court Exhibit 1, Volume 2, Page 76, Lines 1 and 2. He stated that it was possible that a wife signed for her husband because they had their backs to him. He stated that the male was "older" and needed assistance walking.
Finally, Guadron testified about what he did with the petitions when he was finished collecting signatures on them. He never signed a petition that someone else "walked" as a subscribing witness.
Respondent-Candidate Nitza Franco was called as a witness by the Petitioners. She is employed as an Assistant Manager at Citibank and is qualified as a Notary Public. She collected signatures for the first time in 2014.
Franco was approached by Montano, Mata and Guardon and asked to run for public office. At meetings everyone shared their knowledge of the election law. When she collected signatures Franco was accompanied by others for security reasons. She wore her identification badge and would show the potential signer their name in the E.D. Book. Franco testified that she witnessed every signature collected. Franco was questioned about Court Exhibit 1, Volume 1, Sheet 10 and Volume 2, Sheet 4.
Respondent-Candidate Donovan Currey was called as a witness by the Petitioners. Currey wore a name tag when he collected signatures. He witnessed all of the signatures he collected. He has no knowledge of any fraudulent conduct in connection with the designating petition process.
Conrad V. Johnson was called as a witness by the Petitioners. Johnson has been a Suffolk County Police Officer for over 30 years and in currently assigned to the Third Precinct Crime Section. He considers Montano a friend. Johnson has been "carrying" designating [*4]petitions for between 10 and 20 years. To the best of his knowledge the petitions be completed have never been challenged. In 2015, Montano asked Johnson to get involved in the petition process. He picked up petitions at Montano's residence and collected signatures on four or five petitions.
Johnson was shown Court Exhibit 1, Volume 1, Sheet 24, Lines 12, 13 and 14. He testified that no one signed for another person on that page. He had collected signatures at that location before, was familiar with the individuals and recalled them signing the petition.
Sandra Peguero was called as a witness by the Petitioners. Peguero resides in the Town of Huntington but works in Town of Islip as a paralegal. She is a friend of Montano and has collected signatures in the past. Peguero was asked about signatures she collected on Court Exhibit 1, Volume 2, Page 26. She explained that she collected those signatures from family members at a barbeque.
Julio Martinez was called as a witness by the Petitioners. He has known Montano for more than 25 years. Montano asked him to collect signatures as a favor to him. Martinez testified that he has no interest in politics and was doing it for "Rick". He explained the instructions Montano gave him about collecting signatures. Martinez was questioned about Court Exhibit 1, Volume 1, Page 36. He was also questioned about a black line on Page 85, Line 6 of Court Exhibit 1, Volume 1. Although he was not certain Martinez testified that he may have crossed out his own signature on that Line.
Vanessa Gonzalez was called as a witness by the Petitioners. Gonzalez lives in Coram, New York. She met Mata two or three years ago and "knows" Montano, Guadron and Ventura. Gonzalez attended two "training" meetings regarding the collection of signatures on designating petitions. She had never collected signatures in the past. Gonzalez was instructed that the person who was to sign must be present, she must see them sign the petition, one individual could not sign for another and she was to identify the candidates to the potential signer of the petition. Gonzalez obtained petitions from Guadron's residence and collected signatures on three or four occasions. On one occasion she had a driver, but collected signatures alone. On another occasion Gonzalez and Mata were driven by Alex Escobar. She recalled Mata wearing an identification badge. She saw Mata many times during the signature collection period. When Gonzalez completed the petitions she gave them to either Montano or Guadron.
Gonzalez was shown Court Exhibit 1, Volume 1, Page 36. With respect to signatures 1, 2 and 3, she could not recall the exact house but did remember that each person was outside and signed the petition.
Gonzalez testified that she did not engage and was not aware of any fraudulent conduct in connection with the collection of signatures.
Richard Picciochi was called as a witness by the Petitioners and declared an expert in the [*5]field of questioned document examination without objection.
Picciochi examined all signatures filed by the Respondents-Candidates and found the following irregularities:
1.Volume 1, Page 2, Lines 4 and 5
Based upon an examination of the features in the surnames, it was his opinion that the same person signed lines 4 and 5. He had no opinion as to who had signed the petition but it was the same person.
(Julia Martinez was the subscribing witness on this petition.)
2.Volume 1, Page 5, Lines 18 and 19
The signature on line 19 was not similar to any signatures on file at the Board of Elections (hereinafter the "BOE"), for that address. They were not signed by the same person. The signature on line 19, was similar to the signature on file at the BOE for Cindy Gonzalez.
(Respondent-Candidate Mata was the subscribing witness on this petition.)
3.Volume 1, Page 10, Lines 5 and 6
Picciochi testified that there were some similarities between the signatures. The signature on line 5 "parallels" the signature on file at the BOE for David Robinson. The signature on line 6 was "inconclusive". He stated that there was a "likelihood" the same person signed lines 5 and 6.
(Respondent-Candidate Franco was the subscribing witness on this petition.)
4.Volume 1, Page 11, Lines 15, 16 and 17
The three signatures shared little in common. Picciochi was unable to reach a conclusion as to whether the same person signed on the three lines,.
(Respondent-Candidate Ventura was the subscribing witness on this petition.)
5.Volume 1, Page 19, Lines 13 and 14)
Picciochi compared the signatures on lines 13 and 14 with the signatures on file at the BOE for that address and concluded that Margaret McKenna signed on both lines. A copy of the signature on file at the BOE for Margaret McKenna was introduced into evidence.
(Wanda Arroyo was the subscribing witness on this petition.)
6.Volume 1, Page 36, Lines 2 and 3
There were similarities between the signatures on lines 2 and 3. The signatures "closely parallel"the signature on file at the BOE for Cristian Ramirez. A copy of the signature on file at the BOE for Cristian Ramirez was introduced into evidence.
(Vanessa Gonzalez was the subscribing witness on this petition.)
7.Volume 2, Page 31, Lines 9 and 10
Picciochi testified that the same person signed lines 9 and 10 and that those signatures match the registration cards on file at the BOE for the individuals registered to vote at that address. Numerous BOE records for that address were introduced into evidence at the hearing.
(Respondent-Candidate Ventura was the subscribing witness on this petition).
8. Volume 2, Page 70, Lines 1 and 2
Picciochi testified that lines 1 and 2 were signed by the same person. He compared those signatures to the signatures on file at the BOE for that address and concluded that Ivette Barbosa signed on Lines 1 and 2.
(Wanda Arroyo was the subscribing witness on this petition.)
9.Volume 2, Page 76, Lines 1 and 2
Picciochi opined that the signatures on lines 1 and 2 were done by the same person, and those signatures were similar to the signature on file at the BOE for Maria Suarez. Copies of the signatures on file at the BOE for Maria Suarez and Heriberto Suarez were introduced into evidence at hearing.
(Respondent-Candidate Guadron was the subscribing witness on this petition.)
On cross-examination numerous BOE records were introduced into evidence.
Jean Cadet was called as a witness by the Petitioners. Cadet was shown Court Exhibit 1, Volume 1, Page 44 and identified his signature on Line 6.
According to Cadet, an individual he identified, (through a photograph previously marked as Petitioners' 9 in evidence) as Respondent-Candidate Montano came to his residence and [*6]obtained his signature on the petition and thereafter returned the next day to obtain the signatures of his wife and daughter. (The Court notes that Respondent-Candidate Guadron was the subscribing witness on that petition). A photograph of Guadron was shown to Cadet. He states that Guadron was not the person who had brought the petition to his residence. He also denied that anyone had spoken French to him when he signed the petition.
Wanda Arroyo was called as a witness by the Petitioners. Arroyo resides primarily in Levittown, New York, and is currently unemployed. She had previously run for the office of legislator in Nassau County. Arroyo has known Montano for about fifteen years. She knows Mata for about ten years. She first met Guadron in June of 2015 at a meeting of volunteers where there was a discussion about the petition process. She attended gatherings at the residences of Montano and Guadron.
Arroyo collected signatures on several petitions as a notary public. She has been a notary public for about ten years and had collected signatures once before. Arroyo explained the practices she followed when collecting signatures. She was shown various petitions she had subscribed, but she could not recall the circumstances surrounding the collection of the signatures. She was not familiar with the neighborhoods where she collected signatures.
As Arroyo completed petitions, she would submit them to Guadron. On one occasion she brought petitions to Montano's residence where she spoke with Rafaela Vasquez, (Montano's fiancée). On another occasion Guadron asked her to return to his residence regarding missing information on a petition. Montano came to the residence while she was there.
Arroyo denied that she had been paid to collect signatures and stated that she was not part of any candidate's campaign staff. Arroyo stated that she would not intentionally allow someone she did not witness sign a designating petition.
Arroyo was questioned about her relationship with the Respondents-Candidates. Upon inquiry she stated that she never attended a social event with the candidates. Arroyo was then presented with a photograph of a group which included herself along with Guadron, Franco and Ventura. (This photograph was introduced into evidence). She explained that the photograph was taken at a networking event in August of 2015.
Finally, Arroyo testified that she did not receive a subpoena to testify in this proceeding. She was contacted by Montano who explained, in sum, that there were questions about the signatures she had obtained.
THE RESPONDENTS' CASE
Cindy Marie Gonzalez was called as a witness by the Respondents. She was shown Court Exhibit 1, Volume 1, Page 5, Line 19. She identified her signature and stated that she did not sign for anyone else.
Jameek Simpkins was called as a witness by the Respondents. He was shown Court Exhibit 1, Volume 1, Page 5, Line 18. He identified his signature on that line and stated that line 19 had been signed by his Aunt, Cindy Gonzalez. He identified a photograph of Mata as the person who had brought the petition to his residence. He also named the seven individuals who reside with him at 132 Westwood Drive, Brentwood, New York.
Cristian Ramirez was called as a witness by the Respondents. He was shown Court Exhibit 1, Volume 1, Page 36, Line 2. He identified his signature and stated that he did not sign for anyone else. Ramirez stated that Line 3 on that petition had been signed by his "step-brother-in-law", Carlos Sorto. Ramirez testified that he helped Sorto sign the petition.
David Robinson was called as a witness by the Respondents. He was shown Court Exhibit 1, Volume 1, Page 10, Lines 5 and 6. He identified his signature on line 5 and his father's signature on line 6. Respondent-Candidate Franco had presented the petition for signature.
Burgun Grosvenor was called as a witness by the Respondents. Respondent-Candidate Ventura went to his residence, explained that she wanted to be on the ballot for public and asked him to sign a petition. His wife was also present.
Grosvenor agreed to support her and sign the petition, (Volume 2, Page 31, Line 9). He also wrote his wife's name on line 10. Grosvenor explained that his wife suffered a stroke in 2013 and as a consequence, although she can write, at times he does it for her. In this instance she asked him to sign the petition for her. Ventura did not ask him to sign for his wife and he did not tell Ventura that he was going to sign for her.
Respondent-Candidate Guadron was recalled. Guadron testified that he had obtained the signature from Jean Cadet. When Guadron went to the door and attempted to speak to him Cadet did not seem to understand what Guadron was saying, so based upon his accent, he spoke to him in French.
DECISION AFTER TRIAL
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forthright manner. Similarly, the Court credits the testimony of Essie LaFortune, Sandra Peguero, Julio Martinez, Conrad V. Johnson, Venessa Gonzalez, Richard Picciochi, Cindy Marie Gonzalez, Jameek Simpkins, Cristian Ramirez, David Robinson and Burgun Grosvenor who were all credible witnesses.
The Court discredits the testimony of Wilfredo Guerrero, Loida Guerrero, William Acevedo, Rachel Adon and Jean Cadet who were not credible witnesses. Acevedo and Adon were incredible as a matter of law.
Wanda Arroyo was somewhat less than forthright but the Court cannot hold that she was incredible as a matter of law. Her testimony was at certain points evasive and inconsistent.
"Absent permeation with fraud, a designating petition may be invalidated where the candidate has participated in or in chargeable with knowledge of the fraud" (Matter of Haywood v Hardwick, 110 AD3d 931). Generally, when candidates participate in or have knowledge of fraudulent activity they forfeit their right to a place on the ballot and the entire petition is invalid even if they have acquired a sufficient number of valid signatures, (see, Matter of Flower v D'Apice, 104 AD2d 578, aff'd 63 NY2d 715).
Based upon a review of the evidence adduced at the hearing and after hearing the arguments of counsel the "Court concludes that the Petitioners have failed to establish that the Respondents-Candidates participated in or are chargeable with knowledge of any fraud.
Preliminarily the Court notes that the testimony of Respondents-Candidates establish that they were acutely aware that the designating petitions they would submit to the Board of Election would be closely scrutinized. Montano, Mata and Guardon made extra efforts to ensure that the signatures were collected in a lawful manner and the individuals who collected signatures were instructed in the manner in which signatures are lawfully collected.
Further, while the testimony of the questioned document expert, Richard Picciochi, was certainly credible and his qualifications impressive, his testimony was at certain points equivocal. Picciochi testified that on various petitions one person had signed for another. At common law, a forgery is defined to be the fraudulent making of a writing to the prejudice of another's rights or the making malo animo of any written instrument for the purpose of fraud and deceit (see, Marden v Dorthy, 160 NY 39, 53). It is "the false making of an instrument which purports on its face to be good and valid for the purpose for which it was created, with the design to defraud" (Piedra v Vanover, 174 AD2d 191, 194).
Here, the Petitioners have failed to prove that even if an individual signed more than one line on a petition it was done with the purpose of fraud and deceit or that the subscribing witnesses, (most of whom were Respondents-Candidates), obtained or had knowledge of those invalid signatures with the purpose of fraud and deceit.
While it cannot be gainsaid that there were some irregularities in the process of collecting signatures on the designating petitions this Court cannot conclude that the Respondents-Candidates, collectively or individually, engaged in any fraudulent conduct. Nor are the Respondents-Candidates chargeable with the knowledge of any fraud.
Hence, the petitions are denied and the proceedings are dismissed.
The foregoing shall constitute the decision and order of this Court.
[*7]
Dated: August 13, 2015
Suffolk County, New York
HON. JOSEPH A. SANTORELLI, J.S.C.
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