                          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
