State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 21, 2014 519488 

________________________________

In the Matter of PAUL C.

VanSAVAGE,

Respondent,

v

DENVER JONES,

Appellant,

et al.,

Respondents.

(Proceeding No. 1.)

________________________________

In the Matter of DENVER JONES, MEMORANDUM AND ORDER

Individually and on Behalf

of all Signers of a 

Petition Filed Pursuant to 

Election Law § 6-134,

Appellant,

v

GREGORY PETERSON et al., as 

Commissioners Constituting

the New York State Board of

Elections,

Respondents,

and

PAUL C. VanSAVAGE et al.,

Respondents.

(Proceeding No. 2.)

________________________________

Calendar Date: August 21, 2014

Before: McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.
-2- 519488 

__________

Douglas Walter Drazen, Binghamton, for appellant.

Sinnreich, Kasakoff & Messina LLP, Central Islip (John

Ciampoli of counsel), for Paul C. VanSavage and another,

respondents.

__________

Per Curiam.

Appeal from an order of the Supreme Court (McNamara, J.),

entered August 18, 2014 in Albany County, which, among other

things, granted petitioner's application, in proceeding No. 1

pursuant to Election Law § 16–102, to declare invalid the

designating petition naming respondent Denver Jones as the

Republican Party candidate for the public office of State Senator

for the 52nd Senate District in the September 9, 2014 primary

election.

Denver Jones filed a designating petition with the New York

State Board of Elections seeking to be nominated as the

Republican Party candidate for the public office of State Senator

for the 52nd Senate District in the September 9, 2014 primary

election. After objections were filed, the State Board issued a

determination on August 1, 2014 that invalidated Jones'

designating petition, finding that, of the 1,713 signatures

claimed to be filed, 743 signatures were invalid, leaving Jones

with 970 signatures, 30 short of the 1,000 signatures required to

receive the designation. In the interim, Paul C. VanSavage

commenced proceeding No. 1 pursuant to Election Law § 16–102

seeking to invalidate Jones' designating petition on numerous

grounds, including fraud. Subsequent to the State Board's

determination, Jones commenced proceeding No. 2 pursuant to

Election Law § 16–102 seeking to validate the designating

petition. Following a hearing, Supreme Court found, among other

things, that Jones' designating petition was permeated by fraud

and invalidated it. Jones appeals.
-3- 519488 

Initially, Supreme Court erred in invalidating the

designating petition based upon alleged fraud on the part of

Jones. A designating petition will be invalidated if the

challenger shows, by clear and convincing evidence, "'that the

entire petition is permeated with fraud or that the candidate

participated in, or can be charged with knowledge of, fraudulent

activity'" (Matter of Valenti v Bugbee, 88 AD3d 1056, 1057

[2011], quoting Matter of Kraham v Rabbitt, 11 AD3d 808, 809

[2004]). Here, VanSavage contends that Jones participated in the

fraudulent activity himself inasmuch as, while collecting

signatures on petitions, he falsely attested to signatures he

knew to be nonauthentic. To that end, VanSavage presented a

handwriting expert who testified that, on various pages on which

Jones was the subscribing witness, several of the signatures were

written by the same person. 

In response, Jones testified to a particular incident in a

pizza parlor during which, after handing the petition to a group

of four people who had each identified themselves and stated that

they were Republican voters, he turned to answer a question from

another patron. Jones related that, while he had assumed that

the petition was being passed around to be signed by each person,

he mistakenly stopped paying attention and it was possible that

one of those people had signed for the other three. Jones

further stated that he did not examine the signatures afterward

and that he was unaware that there was a problem until the day he

received objections to his petition. Jones also testified that

he had no recollection of the other instances in which it

appeared that more than one signature was provided by the same

person, but he stated that he would not allow people to take

petitions into their homes for other people to sign and would not

accept the signatures of one spouse for another. Inasmuch as

Supreme Court explicitly found Jones' testimony to be "very

candid and honest" and VanSavage failed to submit any evidence

that Jones knowingly accepted fraudulent signatures, we do not

find clear and convincing evidence that Jones "acted fraudulently

or did anything that would warrant invalidating the entire

designating petition" (Matter of Nolin v McNally, 87 AD3d 804,

806 [2011]; see Matter of Bonner v Negron, 87 AD3d 737, 739-740

[2011]).
-4- 519488 

The petition not having been invalidated based upon fraud,

it is still incumbent upon Jones to demonstrate that he has the

1,000 valid signatures necessary to qualify for inclusion on the

ballot. In that vein, we turn first to his contention that

Supreme Court erred in upholding the invalidation of the

signatures appearing on sheets 5-7, 14-17, 19-22 and 25-26 of the

designating petition because the "Witness Identification

Information" portion of the subscribing witness statement

requesting "Town or City" and "County" were left blank. The

witness identification information on designating petitions is

intended to allow for "the rapid and efficient verification of

signatures within the restrictive time periods imposed by the

Election Law" to facilitate the discovery of fraud (Matter of

Zobel v New York State Bd. of Elections, 254 AD2d 520, 522

[1998]; see Matter of Curley v Zacek, 22 AD3d 954, 956 [2005], lv

denied 5 NY3d 714 [2005]). Thus, where the complete residence

address of the subscribing witness appears elsewhere on the same

page of the petition, an error in providing the witness

identification information has been held to be "an

inconsequential violation" and not a fatal defect (Matter of

Curley v Zacek, 22 AD3d at 956; see Matter of Arcuri v Hojnacki,

32 AD3d 658, 660 [2006], lv denied 7 NY3d 707 [2006]). Here, the

subscribing witness provided her complete address in the

"Statement of Witness" section on each of the petition pages at

issue and her name and complete address also appears at the top

of each page as a member of the committee to fill vacancies. In

addition, she submitted an affidavit that stated that she carried

the petition pages at issue and that her correct residential

address appeared on each page. Thus, absent any indication of

fraud or record evidence that the subscribing witness did not

reside at the address provided, we find that the signatures

contained on those pages of the petition should not have been

invalidated (see Matter of Arcuri v Hojnacki, 32 AD3d at 660;

Matter of Curley v Zacek, 22 AD3d at 956; see also Matter of

Powers v Kozlowski, 54 AD3d 540, 541-542 [2008], lv denied 11

NY3d 701 [2008]). Accordingly, a total of 125 signatures should

be reinstated to Jones' total.1

1 One signature on page 14 of the designating petition had

been invalidated by the State Board on separate grounds.
-5- 519488 

Jones next contends that Supreme Court erred in

invalidating the petition sheets circulated by Daniel McNett,

pages 76 to 94, on the grounds that McNett's voter registration

had been cancelled because he did not reside at the address

claimed on his registration form and because he had previously

been convicted of a felony. Because disenfranchisement is a

drastic punishment, Election Law § 5-402 requires that a voter's

registration may not be cancelled until after a board of

elections has notified the voter of its intention to cancel and

gives him or her the opportunity to be heard (see Matter of Engel

v Board of Elections of State of N.Y., 143 AD2d 291, 292 [1988],

lv denied 72 NY2d 805 [1988]; Nesci v Canary, 112 AD2d 1056, 1057

[1985], lv denied 65 NY2d 607 [1985]). Here, the record

demonstrates that McNett was a registered voter during the first

two weeks of July 2014, when he collected signatures for Jones

and they were submitted to the State Board, and the process for

cancelling his registration did not commence until July 22, 2014. 

Accordingly, the signatures that McNett collected were valid, and

Supreme Court erred in finding otherwise; thus, 44 signatures

should be added to Jones' total (see Matter of Hudson v Board of

Elections of City of N.Y., 207 AD2d 508, 509 [1994]; Matter of

Engel v Board of Elections of State of N.Y., 143 AD2d at 292;

Nesci v Canary, 112 AD2d at 1057; see generally Matter of

Robelotto v Burch, 242 AD2d 397, 398 [1997]).2

Jones lastly contends that the State Board erred in

invalidating pages 95, 97, 98, 102 and 111 of his designating

petition, all carried by Marc Romain, on various grounds. We

2 Although the State Board ostensibly counted all of the

valid signatures on the pages witnessed by McNett in its total of

970, the record demonstrates otherwise. Examining the State

Board's staff work sheet of objections with respect to petition

pages 83, 84, 85 and 86, individual objections were sustained to,

respectively, no signatures, three signatures, three signatures

and nine signatures on those pages. Inexplicably, however, the

State Board invalidated all of the signatures on those pages in

its final tally. Because no other reason appears in the record

for having invalidated the 44 remaining signatures, we find those

to be properly added back to Jones' total.
-6- 519488 

first address pages 95 and 97, which were disallowed based upon

certain changes to the witness statements. While alterations to

a witness statement that are unexplained and uninitialed will

ordinarily result in the invalidation of the petition page even

where the alterations result in the provision of correct

information, the underlying signatures need not be nullified

where an explanation is provided by affidavit or testimony (see

Matter of Oberman v Romanowski, 65 AD3d 992, 993 [2009]; Matter

of Curley v Zacek, 22 AD3d at 957). Here, Romain submitted an

affidavit that explained the alterations he made to the witness

name on page 95 and to the date on page 97 of the petition. In

light of this uncontroverted explanation, the State Board erred

in invalidating all of the signatures contained on pages 95 and

97 of Jones' petition and, consequently, the 15 signatures on

those two pages not invalidated by the State Board for other

reasons should be counted (see Matter of Rosmarin v Belcastro, 44

AD3d 1055, 1056 [2007]; Matter of Curley v Zacek, 22 AD3d at

957). Similarly, absent any allegation of fraud, the

overstatement of the signature totals on pages 102 and 111 of

Jones' petition was not such a gross irregularity as to warrant

invalidation of the entire pages and, thus, the 19 signatures on

those two pages not invalidated by the State Board for other

reasons should have been counted (see Matter of Rancourt v

Magill, 87 AD3d 656, 657 [2011]; see generally Matter of Barrett

v Scaringe, 112 AD2d 1095, 1096-1097 [1985], affd 65 NY2d 946

[1985]). However, with respect to page 98 of the petition, we

find that the State Board properly invalidated all of the

signatures on that page, inasmuch as Romain failed to provide a

complete residence address (see Matter of Henry v Trotto, 54 AD3d

424, 426-427 [2008]; Matter of Gleason v Longo, 133 AD2d 289, 290

[1987]; Matter of Liepshutz v Palmateer, 112 AD2d 1101, 1103

[1985], affd 65 NY2d 965 [1985]).

Both VanSavage and Jones further contend that there were

additional signatures on Jones' designating petition that should

have been invalidated or validated. Supreme Court declined to

take evidence with respect to those arguments and this Court is

unable to resolve those questions based upon the record before

us. For that reason, we remit to Supreme Court for further

proceedings on issues not decided herewith. Pursuant to our

determinations here, 203 signatures that were declared invalid by
-7- 519488 

either Supreme Court or the State Board should be reinstated to

the total found valid by the State Board, giving Jones 1,173

signatures on his designating petition and presumptively

qualifying him to participate in the primary election.

McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.,

concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as granted the application in

proceeding No. 1 and dismissed the application in proceeding No.

2; matter remitted to the Supreme Court for further proceedings

not inconsistent with this Court's decision; and, as so modified,

affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court