                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 20, 2015                   521459
_________________________________

In the Matter of THOMAS
   MATTICE,
                    Appellant,
   v
                                            MEMORANDUM AND ORDER
MICHAEL S. HAMMOND et al.,
                    Respondents,
                    et al.,
                    Respondents.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   August 20, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

                             __________


     James E. Long, Albany, for appellant.

      Law Offices of James E. Walsh, Ballston Spa (James E. Walsh
of counsel), for Michael S. Hammond and another, respondents.

                             __________


Per Curiam.

      Appeal from an order of the Supreme Court (McGill, J.),
entered August 6, 2015 in St. Lawrence County, which, among other
things, dismissed petitioner's application, in a proceeding
pursuant to Election Law § 16-102, to declare invalid the
designating petition naming respondents Michael S. Hammond and
Megan Martin as candidates for the party positions of delegate
and alternate delegate, respectively, to the Conservative Party
Judicial Nominating Convention, Fourth Judicial District, from
the 117th Assembly District in the September 10, 2015 primary
election.
                              -2-                521459

      Respondents Michael S. Hammond and Megan Martin
(hereinafter collectively referred to as respondents) filed a
designating petition with the St. Lawrence County Board of
Elections seeking to be nominated as candidates for the positions
of delegate and alternate delegate, respectively, to the
Conservative Party Judicial Nominating Convention, Fourth
Judicial District, from the 117th Assembly District. Petitioner
filed written objections with the Board challenging the
designating petition (see Election Law § 6-154) and, shortly
thereafter, commenced the instant proceeding pursuant to Election
Law § 16-102 seeking to invalidate the designating petition on
the basis of fraud. Following a hearing, Supreme Court found
that the designating petition was not permeated by fraud and,
accordingly, dismissed petitioner's application. Petitioner now
appeals.

      A court will invalidate a designating petition where the
challenger establishes, 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 VanSavage v Jones, 120 AD3d 887, 888 [2014]
[internal quotation marks and citations omitted], lv dismissed 23
NY3d 1045 [2014], lv denied 24 NY3d 901 [2014]; see Matter of
Haygood v Hardwick, 110 AD3d 931, 932 [2013]). Where a candidate
is involved in the fraud, the challenger need not show that the
fraud permeated the entire petition (see Matter of Haygood v
Hardwick, 110 AD3d at 932; Matter of Valenti v Bugbee, 88 AD3d
1056, 1057 [2011]), and "the petition may be invalidated even if
it contains a sufficient number of valid signatures independent
of those fraudulently procured" (Matter of Valenti v Bugbee, 88
AD3d at 1057 [internal quotation marks and citation omitted]; see
Matter of Cirillo v Gardiner, 65 AD3d 638, 639 [2009]).

      Here, the evidence adduced at the hearing established that
the designating petition consisted of four sheets and a total of
38 signatures, 30 more than the eight required to receive the
party designation. On each sheet, Hammond signed the subscribing
witness statement attesting that each individual who signed his
or her name did so in Hammond's presence and identified himself
or herself as the individual who signed. It is undisputed,
however, that three of the signatures on sheet two were signed,
                              -3-                521459

in Hammond's presence, by the spouse of the individual whose
signature it was attributed to. Hammond testified that he was
unaware at the time that he obtained the signatures that spouses
could not sign for each other. Notwithstanding this mistaken
belief, Hammond 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.

      Based upon the foregoing, we find that petitioner
established by clear and convincing evidence that Hammond signed
the witness statement on sheet two despite knowing that such
statement was false (see Matter of Valenti v Bugbee, 88 AD3d at
1058; Matter of Cirillo v Gardiner, 65 AD3d at 639). In reaching
the conclusion that the designating petition was not permeated by
fraud, Supreme Court found that, although Hammond's signature on
the witness statement on sheet two was false, Hammond lacked an
intent to deceive. Fraud, however, does not require proof of a
"nefarious motive" (Matter of Valenti v Bugbee, 88 AD3d at 1058).
Inasmuch as Hammond participated in the fraud, and regardless of
the fact that the designating petition contained a sufficient
number of signatures independent of the three signatures that
were fraudulently obtained, we invalidate respondents'
designating petition and strike their names from the ballot (see
Matter of Haygood v Hardwick, 110 AD3d at 933; Matter of Valenti
v Bugbee, 88 AD3d at 1058; Matter of Leonard v Pradhan, 286 AD2d
459, 459 [2001], lv denied 96 NY2d 718 [2001]).

     Lahtinen, J.P., McCarthy, Garry and Lynch, JJ., concur.
                              -4-                  521459

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as dismissed the application
seeking to declare invalid the designating petition naming
respondents Michael S. Hammond and Megan Martin as candidates for
the party positions of delegate and alternate delegate,
respectively, to the Conservative Party Judicial Nominating
Convention, Fourth Judicial District, from the 117th Assembly
District in the September 10, 2015 primary election; said
application granted and said designating petition declared
invalid; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
