Matter of Voglewede v Stepherson

Annotate this Case

Download PDF

Matter of Voglewede v Stepherson 2023 NY Slip Op 31723(U) May 4, 2023 Supreme Court, Monroe County Docket Number: Index No. E2023004481 Judge: Daniel J. Doyle Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 Index # : E2023004481 INDEX NO. E2023004481 RECEIVED NYSCEF: 05/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE In the Matter of the Application of DAWN VOGLEWEDE and TRACY DIFLORIO, Petitioners-Objectors, . Decision, Order and Judgment -againstMARVIN L. STEPHERSON, Index No.: E2023004481 Respondent-Candidate, -andMONROE COUNTY BOARD OF ELECTIONS, by JACKIE ORTIZ and LISA NICOLAY CONSTITUTING COMMISSIONERS, Respondents. For an Order Pursuant to Sections 16-100, 16-102(1), (2) and 16-116 of the Election Law, And CPLR Section 3001, Declaring Invalid the Democratic Party Designating Petitions Purporting to Nominate Marvin L. Stepherson as Candidate for the Public Office of County Legislator, 3rd Legislative District, County of Monroe, in the Primary·Election to be held June 27, 2023, and to Restrain the Monroe County Board of Elections from Printing and Placing the Name Marvin L. Stepherson Upon the Official Ballots of Such Primary and/ or General Election. 1 [* 1] 2 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 Appearances: Jared P. Hirt, Esq., Evans Fox LLP for Petitioners-Objectors Bridget A. O'Toole, Esq., HEATH & O'TOOLE, PLLC, for Respondent-Candidate John P. Bringewatt, Esq., Monroe County Attorney, Robert P. Shoemaker, Esq., of counsel, attorneys for Respondents Daniel J. Doyle, J., In this proceeding pursuant to New York Election Law article 16 PetitionersObjectors Dawn Voglewede and Tracy Diflorio (hereinafter "petitioners") seek to invalidate signatures on designating petitions to designate Respondent-Candidate Marvin L. Stepherson (hereinafter "Stepherson") as the nominee for the Democratic Party in the primary and general election for the position of county legislator in the 3rd legislative district in the County of Monroe, and a declaration that the candidate failed to file a Petition with the requisite number of signatures to place him on the ballot for the primary and general elections. Petitioners initiated the action on May 1, 2023. The Court, recognizing that "[e]lection Law proceedings are subject to severe time constraints, and they require immediate action (see Matter of Tenneriello v. Board of Elections in City of N. Y., 104 A.D.2d 467,468, 479 N.Y.S.2d 72)" (Master v. Pohanka, 44 A.3d 1050, 1052 [2nd Dept. 2007]) ordered the parties to appear for a hearing on May 3, 2023. 1 On that date a Pursuant to Election Law§ 4-114, the Monroe County Board of Elections must certify the ballot for the primary election on May 4, 2023. "The county board of elections, not later 1 2 [* 2] 3 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 fact-finding hearing was conducted. The Court directed the parties to submit any post-hearing submissions by May 4 th at 10:00 a.m. For the reasons that follow, the Court determines that the Petitioners have failed to establish that Stepherson's Designating Petition contains an insufficient number of signatures of enrolled voters of the Democratic Party. The Petition is therefore dismissed. Findings of Fact On April 10, 2023, Marvin L. Stepherson filed a Designating Petition, consisting of 26 pages containing 332 signatures of persons enrolled in the Democratic Party and who lived in the 3rd Legislative District in Monroe County, as the Democratic Party candidate for the position of Monroe County Legislature in than the fifty-fourth day before the day of a primary or general election, the fifty-third day before a special election, or twenty-four days before a special election held pursuant to paragraph b of subdivision three of section forty-two of the public officers law, shall determine the candidates duly nominated for public office and the questions that shall appear on the ballot within the jurisdiction of that board of elections." (Elec. Law§ 4-114,) Additionally, the deadline for Monroe County Board of Elections to transmit ballots to eligible military voters is May 12th . (See Elec. Law§ 10-108[1][a]: "[b ]allots for military voters shall be mailed or otherwise distributed by the board of elections, in accordance with the preferred method of transmission designated by the voter pursuant to section 10-107 of this article, as soon as practicable but in any event not later than forty-six days before a primary or general election ... ") Additionally, Elec. Law§ 16-102[4] states: "A final order including the resolution of any appeals in any proceeding involving the names of candidates on ballots or voting machines shall be made, if possible, at least five weeks before the day of the election at which such ballots or voting machines are to be used, or if such proceeding is commenced within five weeks of such election, no later than the day following the day on which the case is heard." 3 [* 3] 4 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 the 3rd Legislative District. To be placed on the ballot, Stepherson's Designating Petition must contain at least 320 valid signatures. 2 The Designating Petition contains twenty-six (26) pages and three hundred and thirty-two (332) signatures. Stepherson was the subscribing witness on pages 4, 5, 6, 7, 8, 9, IO, n, 12, 13, 14, 15, 16, 17, 18, 19, 21, 24, and 26. There are two hundred and eighty-one (281) signatures on those pages. Five other people "collected" the remaining fifty-one (51) signatures. On April 17, 2023 (having filed a general objection on April IO, 2023, to the Designating Petition), Petitioner Vogelwede filed specific objections to twenty-three signatures contained in the Designating Petition. The objections filed were to the following signatures: See Elec. Law § 6-136(2): "All other petitions must be signed by not less than five per centum, as determined by the preceding enrollment, of the then enrolled voters of the party residing within the political unit in which the office or position is to be voted for (excluding voters in inactive status) ... ". 2 4 [* 4] 5 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM IndexNO. #: E2023004481 INDEX E2023004481 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 05/04/2023 \Volume fi • I I ; Pa2e 1J Sf!.nat,ne# Nature ot ObJerttoo lncoiruute/mtsaino- 1 1 ~ Sl!Jllc ~oo ~t:n"'1 t-Wit-ei' ~ltw:itUre doff not 1112tclt i;c~tltre art file 4 ~ I 1 IS IIIBOE. I 8 1 JAomnprete 11dd.ms I 6 l 1 & l ' Same ~rson ~gned l'\\iccl !llpn~niR do~s lltBOE not tl\lU~ll ~l{IJ~ture OLl (lie Same pcrsoo ~ twic~ #lp&.Tllff does not 111atcl1 ~rure 011 rue ' lltBOE So.me pmo11 si~Qd t\\ic() $illfull~ <kits not nmtcl1 i.i~1~ Cni liic I 9 J l 9 9 l !> 10 mBOE Same pcnon &igiicd t\\ic~ ~ d'Oe aot m ch s!pnorure on .fife atBOE Sal1lC' pm.oil s~,, ·l mct.1 ~rure dOe!l 110hllfllCh ff.ltrlllffl]R 0/Jl tilt 111BO£ 1 12 " Snm~ pm;Oll J l 1 iJ ·~ JJ 4 10 ' 1 19 1 ll ' 1 I l6 .26 I 2~ I I '; I .I 1 .2J l JJ I :v 1 1 1 lJ ll 23 ~ -~ II ll lJ I l J <I Duplr~_Sf@narure/ Wile persotufgned volume t. ~ 12.. · 2 ~[!)ntd l\ioic;q/ ~,!tti.ill\!N! d~ 110~ tufllch ~i~mn1n: CHI tilot ~•BOR Slime pmon ti~ rnic!l sigw,!Ui'e doe; not match ~ on fih~ titBOE l N11ntes 011 1 lind c111t not det~m:1,ue \\1to s~r~d Duptlctte s ~ same pmon 1iped vohwe l, pi1Jc 23, lin.11 s can not l~1tlfy siBJl&tllfe ot addms, not in district Primed 001sltmed/ Am peaou pda~ i'ill 3 .llanitti Prilited 1101 $ipedl uinr-e pmon prilltied 1111J na.nwl'l Printed not 1ftlned/ &ame J)miion priitrtd i;U J ~ Wifltt9s dOQ.ill~lfd itleom!d towu 0111Ai[111!$S !>hllen1e111 W1tuffl doc:umcaled hlcOJNCt town ou wi~ r.ta.timtlrl \V'dn.tsi; doc:Uififfll.td mCOINCI IOW\l OU lAi!IU~I t.tatffl\~11 Wllnen doc:umetned mcomcc tcnt,:11 oo wituni imrtemcnl \V'~~ documcu.l~d incorrect town 011 wltues!l, slatcmenl wrtness documented mcomc'I tov.1:1 on wi~ t statalieui 5 6 Respondents Monroe County Board of Elections Commissioners (hereinafter "BOE") conducted a hearing on April 28, 2023, to determine the validity of the Designating Petition and the specific objections made by Petitioners. They ruled as follows: 5 [* 5] 6 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM IndexNO. #: E2023004481 INDEX E2023004481 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 05/04/2023 Nnture of Objection t;oounissioners; Ruling lr1C"""'letc/missin2 addICJ$ Same pelSOrl signed 1wicc/ sfgnlllllre docs oot motch signatun: on file ot NV Page# Signature# 4 s 7 6 BOB NV 8 I lncomnlete llddrou NV 8 2 Same persoo signed lwicc/ signall:!tc docs not mn tch si(:liMure on iilc al 8 3 s.mc person slgned twice/ signature~ IKII m111ch sign111.uro on Ille at 9 ) 9 9 9 10 12 4 13 3 Same pcmn signed twice/ sitnalul'll dOC$ nOI molch sigMture on file nl .BOE Dunli,:,ate Sl1>nal\Jrt/ SQDlll nerron sloned volume I. no.,. 12. llnc 2 S"me person signed twice/ sigP~ture docs not mulch signiuuro on me 01 13 4 Same pmort signed twicc/ signature dOC$ not match sig71ai\lro on file ~, 16 19 JO 21 9 s . l6 26 II 26 13 23 2.3 23 I 2 23 23 23 12 3 4 5 6 Nous M/i"""'"'''·••J /ujfaiu,;.,1,1 -.. BOE NV BOE NV Same person 5ignc,J twkc/ signature does no t mnlch signature on file a.I BOB Same person signed twice/ signn1ure does nol ,natch , ignanm: 011 file M BOB BOE BOB 2 Names on l line/ (an not dolcmtlne who .tiltllcd l)unlicaie Sienoture/ $llme oenon siir""'1 ~olume l, """"' 23, line S Can not idenurv sl1ma1ure or address- not in district Printed not sloned/ sa.mc ""tron orintro all 3 llBDltS Prinled not •i...,,.,., sJme """'Ort nrintcd all 3 n~mes Pnntod not sih"""' same ·~ ~on D11Dted 11113 names Witnen docunuented lncorreci toW11 on witness s1otemeo1 Witne.ss documenlz:d in¢0rreCI 1own on w!tn= slatement Whneu dOcUmented inc.oon-ec1 1own on wi!JlMl' ~11t1cment Witmu documented incorrect town on wime.ss slatellU!nt Wlln1!$$ do<:umcntcd lnrorre<:1 town on will\ess sUllcmcnl Wilnes5 dOCOiMIUcd incorrect IOWII on witness slatell11'-0I NV NV NV V NV NV V V V V V y NV NV NV NV NV NV FOUND-ID: 100 1221 50 NSTAR• NITT SUBJECT TO ADM INSTRATIVE RHVfBW FOUND • ID: 000087979 NSTAR- NOT SUBJECT TO ADMIN!>TRATIVE REVlEW NSTAR- NOT SUBJECT TO APMINSl"RATIVB REVIEW NSTAR· NOT SUBJECT TO ADMINSfRA'J1\IE RBVlEW NSTAR· NOT SUB.lECTTO ADMINSTRATIVll R.BVIRW N'STAR• NOT SUBJECT TO ADMINSTRA1WE REVIBW SUSTAINED NSTAR· NOT SUl!JECl"TO ADM INS'rRATIVE REVIEW NSTAR- NOT SUBJECT TO ADMINSTRATIVE REVIEW SUSTAINED SUSTAINED SUSTAINED SUSTAI.Nl!D SUSTAINED SUSTAINED SPU'l' DECISION Sl'Lrr DBCTSION SPLLT DECISION SPLIT DECISION SPLIT DECISION SPLTT DECISION Petitioners make four general claims: (1) one of the subscribing witnesses (Nicholas Coffee) incorrectly listed his address as "Rochester" when he was required to state "Gates" and this invalidates the six signatures on that page (was denied by BOE due to split decision); (2) identified signatures do not match the signature on file with the BOE, and one person signed for two people (was denied· by the BOE as "not subject to administrati ve review"); (3) several signatures are invalid as duplicate signatures or listed an incorrect or incomplete address (some of which were sustained by BOE); and (4) the Designating Petition 1s "permeated with fraud" requiring invalidation . 6 [* 6] 7 of 18 ; 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 At the fact-finding hearing, in addition to stipulating to the admission of the Designating Petition3 , the general objection4, the specific objectionsS, Stepherson's letter to the BOE dated April 26, 2023 6, the notification of the BOE hearing sent to the parties, and the BOE hearing decision on the specific objections 7, the parties stipulated to the following facts: 1. 2. 3. 4- 5. 6. 7. Nicholas Coffee, the subscribing witness to page 23 of the Designating Petition, resides at 19 Twin Circle Drive in the Town of Gates. That Stepherson's Designating Petition must contain at least 320 valid signatures of voters enrolled in the Democratic Party within the 3rd Legislative District to be valid. That Stepherson's Designating Petition contains 332 signatures. The contents of Stepherson's April 26, 2023 letter to the BOE concerning Roy Taylor signing for Mary H. Taylor are deemed admitted. 8 That all specific objections sustained by the BOE are deemed to be invalid signatures (page 12, line 4; page 16, line 9; page 19, line 10; page 21, line 5; page 26, lines n, 12, and 13). That the following contested signatures are valid: page 13, line 3 and pages 13, line 4. That the following contested signatures are not valid: page 7, line 6 and page 8, line 2. Exhibit 1. 4 Exhibit 2. s Exhibit 3. 6 Exhibit 4. 7 Exhibits 6 and 7. 8 Exhibit 8, the "walk sheets" Election District 28 were admitted showing Mary Taylor was not at home when the petition page was signed by Roy Taylor. 3 7 [* 7] 8 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 The Court reviewed the remaining challenged signatures in the Designating Petition and compared those signatures to the registration records for the listed signor.9 At the hearing, Stepherson testified as to what occurred as he was collecting signatures. The Court determined Stepherson to be credible, and his relevant testimony is as follows. Mr. Stepherson was formerly a sergeant with the Rochester Police Department, having retired after twenty-five years of service. He had previously been a candidate for Monroe County Legislature and had "collected" signatures as part of that process. When Stepherson was challenged about a signor who had signed for another person (Roy Taylor signing for Mary Taylor), he testified that "I didn't see that Roy put Mary Taylor on there" and when he attested to observing all signatories, it was truthful as he did not discover Roy had placed Mary's name on the petition. He specifically denied observing one signor sign more than one name. 9 Exhibits 1; 9, 10, n, 12, 13, 14, 15, and 17. 8 [* 8] 9 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 Conclusions of Law Nicholas Coffee's Error Does Not Mandate Invalidating Page 23 of the Designating Petition One of the subscribing witnesses, Nicholas Coffee, listed his address as "19 Twin Circle Drive Rochester" and the "Town or City Where Witness Resides" as "Rochester" in the "Statement of Witness" provision at the bottom of page 23 of the Designating Petition. The Town where Mr. Coffee resides is the Town of Gates, New York. 10 Petitioner argues that this defect requires invalidating the six (6) signatures that appear on that page. There is no question that Mr. Coffee resides at 19 Twin Circle Drive and that his residence is in the Town of Gates. "The requirements that a subscribing witness disclose his or her current address and reside in the state protects the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena in a proceeding challenging the petition (see Election Law§ 6-132 [2]; Matter of La Brake v. Dukes, 96 N.Y.2d 913, 914-915, 733 N.Y.S.2d 133, 758 N.E.2d 1110, citing Lerman v. Board of Elections, 232 F.3d 135, 150; Molinari v. Powers, 82 F.Supp.2d 57, 73)." (Pisani v. Kane, 87 AD3d 650, 651-52 [2 nd Dept. 2011].) As Mr. Coffee provided 10 Mr. Coffee correctly completed the Statement of Witness provision by listing his town of residence as "Gates" on page 21 of the Designating Petition. 9 [* 9] 10 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 an address where he could be found and be subject to service of process, and the parties stipulated that Mr. Coffee did live at this address, this was sufficient to satisfy the requirements of the Election Law. "Where, as here, the Election Law violation does not involve the "substantive requirements of witness eligibility" and "there is no implication of fraud, resort to strict construction should be avoided ff it would lead to injustice in the electoral process or the public perception of it" (Matter ofPulver v. Allen, 242 A.D.2d 398,400, 661 N.Y.S.2d 836, lv. denied 90 N.Y.2d 805, 662 N.Y.S.2d 431, 685 N.E.2d 212, citing Matter of Staber v. Fidler, 65 N.Y.2d 529, 534, 493 N.Y.S.2d 288, 482 N.E.2d 1204)." (McManus v. Relin, 286 AD2d 855, 855 [4th Dept. 2001].) Thus, Petitioners failed to establish, by clear and convincing evidence, that the signatures on Page 23 of the Designating Petition are invalid. (Dalton v. Wayne County Board of Elections, 65 AD3d 817 [4th Dept. 2009]; McManus v. Re/in, supra; Goldstein v. Ross, 196 AD2d 615 [2 nd Dept. 1993].) The Designating Petition Contains 321 Valid Signatures The Court reviewed the challenged signatures on the Designating Petition that were not resolved by stipulation of the parties. In doing so, the Court examined the signature on the Designating Petition and compared it to the signature on the 10 [* 10] 11 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 registration records to determine if the signature that appears on the Designating Petition is invalid.u (See LaMarca v. Quirk, no AD3d 808, 810 [2 nd Dept. 2013]: "Voters' signatures on designating or independent nominating petitions that do not meaningfully compare with the signatures on the same voters' registration forms should be invalidated (see Matter of Quercia v. Bernstein, 87 A.D.3d 652, 653, 928 N.Y.S.2d 346; Matter of Rabadi v. Galan, 307 A.D.2d 1014, 763 N.Y.S.2d 503).) After this review, the Court concluded that the signatures on page 9, line 9 and on page 9, line 412 (challenged by Petitioners) were not valid. Stepherson did not submit any evidence establishing the validity of these signatures, so they must be stricken. "It is well settled that [t]o 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 Toles v. Quintana, 183 A.D.3d 1290, 1292, 123 N.Y.S.3d 786 [4th Dept. 2020], Iv denied 35 N.Y.3d 905, 2020 WL 2529764 [2020] [internal quotation marks omitted]; see Matter of Lord v. New York State Bd. of Elections, 98 A.D.3d 622, 623, 949 N.Y.S.2d 507 [2d Dept. 2012]; Matter of Henry v. Trotto, 54 A.D.3d 424, 426, 862 N.Y.S.2d 605 [2d Dept. 2008])." (Maclay v. Dipasquale, 197 AD3d 1502, 1053 [4th Dept. 2021].) 12 Although this signature was not challenged by a specific objection, Stepherson had sufficient notice that it was in issue as Petitioners' specific objections noted an objection to page 9, line 3 arguing the "same person signed twice". Line 3 was signed by "Sam McCutchen" and line 4 was purportedly signed by "Yvonne McCutchen". Both were listed as living at the same address. This provided sufficient notice to Stepherson that the signature on line 4 was subject to challenge. "Those specific objections identified the specific challenged signatures set forth on the independent nominating petition." (LaMarca v. Quirk, no A.D.3d 808, 810 [2 nd Dept. 2013].) 11 11 [* 11] 12 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 The remaining signatures were determined to be valid.13 After this review, and upon consideration of the stipulations, the Court determines that eleven (n) signatures are not valid. 14 In examining all the invalidated signatures, the Court concludes that the most reasonable inference is that the valid signor signed for an additional voter in the same household.15 As the Designating Petition contains 321 valid signatures, it has a sufficient number of signatures to designate Stepherson as a candidate for County Legislator in the 3rd Legislative District. Stepherson's Designating Petition is not "Permeated with Fraud" Petitioners argue that as Stepherson was the subscribing witness on the pages in which eleven (n) signatures have been invalidated (out of 281 total signatures), the Designating Petition is permeated with fraud and must be declared invalid. "Where a challenging party establishes by clear and convincing evidence that a candidate participated in fraudulent activity, the entire designating petition will be invalidated (see Matter of Mattice v. Hammond, 131 A.D.3d 790, 791, 15 N.Y.S.3d 866 Page 8, line 1; Page 8, line 3; Page 9, line 3; page 9, line 10. 14 Page 7, line 6; page 8, line 2; page 9, line 4; page 9, line 9, page 12, line 4, page 16, line 9; page 19, line 10, page 21, line 5; page 26, lines 11, 12, and 13. 15 Compare Exhibits 9 and 10; n with 14 and 15; 13; 12 and 17. 13 12 [* 12] 13 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 [2015]; Matter of Valenti v. Bugbee, 88 A.D.3d 1056, 1057, 930 N.Y.S.2d 319 [2011]; Matter of Bynoe v. Board of Elections of City of N. Y, 164 A.D.2d 929, 929-930, 559 N.Y.S.2d 588 [1990], Iv denied 76 N.Y.2d 705, 560 N.Y.S.2d 128, 559 N.E.2d 1287 [1990])." (Burman v. Subedi, 172 AD3d 1882, 1883 [3 rd Dept. 2019], emphasis added.) The Court recognizes that candidates for office are held to a higher standard (see Burman v. Subedi, supra) and that Petitioner need not prove a "nefarious motive" (id.). However, Petitioner must still establish - by clear and convincing evidence- the existence of fraud in the obtaining of signatures, and that Stepherson participated in such fraudulent activity or was aware of same. Petitioners did not meet this heavy burden. Certainly, the fact that signatures were declared invalid is not sufficient, in itself, to determine that Stepherson engaged in fraudulent activity. There must be some showing that Stepherson engaged in fraudulent activity in the production of the signatures. (See Kogan v. D'Angelo, 54 NY2d 781 [1981]: Stipulation that 45 of 58 signatures on designating petition did not match signatures on registration cards resulting in the striking of the signatures did not by itself establish such gross irregularity or fraudulent practice bring into play the permeation principle to strike remaining 13 signatures, despite the fact that same subscribing witness had obtained all the disputed signatures, since no finding was made by trial court that signatures 13 . [* 13] 14 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 were fraudulently obtained.) (Compare also Tapper v. Sampel, 54 AD3d 435 [2 nd Dept. 2008].) Based upon the evidence adduced at the hearing, the Court finds Mr. Stepherson was inattentive, careless, and possibly irresponsible, by failing to ensure that he only received signatures from those persons with whom he interacted. Nonetheless the Court does not find that his behavior supports a conclusion that the entire Designating Petition was permeated by fraud, or that Stepherson engaged in fraud. The Court credits the testimony of Stepherson that those signatures added to the Designating Petition and deemed invalid to be the actions of the signor without any knowledge ofStepherson. Although Stepherson may have been careless in ensuring that the valid signor did not sign for another member of their household, his carelessness does not meet the high burden of showing that the entire Designating Petition was permeated with fraud, or that he knowingly allowed a signor to sign for a third party, or that he fraudulently signed the witness verification (knowing that the Designating Petition contained a signature that he did not observe). In comparing what occurred here with cases in which a court determined that the designating petition was "permeated with fraud", Stepherson's conduct was not sufficient to determine by clear and convincing evidence that he committed fraud. 14 [* 14] 15 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 For instance, in McHale v. Smolinski (133 AD2d 520 [4th Dept. 1987)) the Fourth Department held that where "[n]ine different sheets contain the signatures of at least 17 persons who testified that someone other than the subscribing witness witnessed their signatures [and] .... two of the subscribing witnesses . . . collected 160 and 101 signatures, respectively, in a period of a few hours in one evening, [and] at least nine clearly forged signatures[, and where the], undisputed testimony shows that the candidate and those closely connected to her (her ·mother and father) participated in this fraudulent signature collecting process" that was sufficient to find fraud. In Buttenschon v. Salatino (164 AD3d 1588 [4th Dept. 2018]), cited by Petitioners, the candidate "attested falsely that they had witnessed certain signatures on the designating petition inasmuch as they had allowed thirdparties to sign the petition on behalf of the person named as the signatory on the designating petition (see Matter of Valenti v. Bugbee, 88 A.D.3d 1056, 1058, 930 N.Y.S.2d 319 [3d Dept. 2011]), and that respondent attested to certain signatures although he was not "in the presence of the signatories when [they] signed the [designating] petition" (Matter of McHale v. Smolinski, 133 A.D.2d 520, 520, 519 N.Y.S.2d 890 [4th Dept. 1987]; see Election Law§ 6-132[2]; Matter of Tani v. Luddy, 32 Misc.2d 53, 55, 221 N.Y.S.2d 314 [Sup. Ct., Westchester County 1961]). (Id. at 1589, 15 [* 15] 16 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 emphasis added.) Here, the Court finds that Stepherson did not have any knowledge that the signors had added the signature of another person, and that when he signed the witness statement stating he was in the presence of the signatories, he did so believing it to be true. Similarly, in Mattice v. Hammond (131 AD3d 790 [3 rd Dept. 2015]), cited by Petitioners, the Third Department invalidated a designating petition due to candidate fraud. In that case the candidate allowed a signor to sign for their spouse, and the candidate "admitted that he falsely attested in the witness statement that each individual signed his or her name in his presence and that he also filed his designating petition knowing that three of the signatures were not signed by the individuals to whom they were attributed". (Id. at 791.) Here, Petitioners failed to establish Stepherson was aware of the invalid signatures and signed the attestation falsely. Absent proof that Stepherson was aware that signors were adding additional signatories, it cannot be said that he committed fraud. As the Petitioners have the burden in establishing, by clear and convincing evidence, the existence of fraud (either fraud committed by Stepherson, or fraud "permeating" the Designating Petition) and the Court finds that they did not meet this burden, the Petition must be dismissed. 16 [* 16] 17 of 18 202305040935 FILED: MONROE COUNTY CLERK 05/04/2023 02:34 PM NYSCEF DOC. NO. 28 IndexNO. #: E2023004481 INDEX E2023004481 RECEIVED NYSCEF: 05/04/2023 Based upon the forgoing, upon the papers herein16 , and the evidence adduced at the fact-finding hearing, it is hereby ORDERED ADJUDGED AND DECREED that the Petition, seeking to invalidate the Designating Petition filed by Marvin L. Stepherson for the position of County Legislator in the 3rd Legislative District, is DISMISSED. Dated: May 4, 16 2023 Verified Petition with exhibits (NYSCEF Docket# 1; 2-7). 17 [* 17] 18 of 18

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.