To commence the statutory time period for appeals as of right (CPLR 5513 you are advised to serve a copy of this order. with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. WILLIAM J. GIACOMO, J.S.C. in the Matter of the Application of . MAUREEN WALKER, CLYDE A. ISLEY, JANICE DUARTE, MARCUS A. GRIFFITH. Aggrieved Candidates Petitioners, - against WALIDAH E. AIME, ADRIANE G. SAUNDERS, ROBIN E. HARMON-MYERS R. HERRICK, . Candidates ?and- REGINALD LAFAYETTE AND DOUGLAS COLETY, as Commissioners constituting THE WESTCHESTER COUNTY BOARD OF ELECTIONS Respondents, For an-Order pursuant to Section 16-100the Election Law, Declaring Invalid the_Designating Petition Purporting to Designate the Respondent- Candidates for the Public Offices of Comptroller and Councilman and Councilwomen in the City of Mount Vernon, County of WESTCHESTER. Sate of New York, In the Democratic Primary Election to be held on September 12, 2017, and Restraining the said BOARD OF ELECTIONS from Printing and Placing the Name of Said - Candidate Upon the Of?cial Ballots of Such Primary Election. :14 FILED AND ENTERED Willi: 20H WESTCHESTEFI COUNTY CLERK DECISION AND ORDER Index No. 2321/2017 Matter of Walker, Index No. 2321/2017 This is a proceeding pursuant to Election Law 16-102 to invalidate a petition designating Walidah E. Aime, Adriane G- Saunders, Robin E. Harmon-Myers, and Paul R. Herrick as candidates in a primary election to be held on September 12, 2017, for the nomination of the Democratic Party as its candidates for the public of?ce of Comptroller, Councilwoman, Councilwoman, and Councilman, respectively, of the City of Mount Vernon- Procedural Background On July 13, 2017, designating petitions were filed with the Westchester County Board of Elections purporting to designate for the September 12, 2017 Democratic Party primary election in the City of Mount Vernon, Walidah E. Aime for comptroller, Adriane G. Saunders for councilwoman, Robin E. Harmon~Myers for councilwoman, and Paul R. Herrick for councilman. The petitioners have commenced this special proceeding pursuant to Election Law 16-100, 16?102, and 16-116, seeking to invalidate the designating petitions on the grounds that they are permeated with fraud. including candidate fraud.1 The invalidating petition alleges, among other things, that Aisha Arenas, resident at 11 Park Avenue, Mount Vernon, obtained signatures from persons residing at 11 Park Avenue and 30 Park Avenue. The petition asserts that Ms. Arenas allegedly dropped off petitions that were unsigned, undated and without ?lling in the number of signatures on it or her name and address as the witness in the witness statement. The petition also alleges that pages 198, 280, 293, and 305 were not witnessed by Ms. Arenas, who collected the signatures, but witnessed by Adriane Saunders (sheets 198 and 293) and Gregory Bonaparte, Saunder?s husband (sheets 280 and 305). The petition further alleges that material alterations or additions were made to the petitions subsequent to the obtaining of the signatures or the execution by the subscribing witnesses The petition asserts that on certain pages of the designating petition, the witness section was tampered with and that a different pen ink was used to fill in the number of signatures than was used to insert the address, signature and date. The petition further alleges that page 258 is witnessed by candidate Adriane G. Saunders, however, Saunders has admitted she was out of the country on the date the signatures were obtained. Respondents answered the petition. In their answer they admit that Saunders signed page 258, but claim that the signatures were obtained between June 21, 2017, and June 29, 2017, and takes responsibility for the mistake' In dating that page. 1 General objections were ?led with the Board of Elections, however, no speci?c objections were filed. The power of the Board of Elections to determine the validity of a designating petition extends only to ministerial examination. It is outside of the Board?s domain tolmake determinations regarding issues of fact such as allegations of fraud (see Matter of Feustel Garfinkle, 29 831 Dept 2006]}. 2 Matter of Walker, Index No. 2321/2017 A hearing was held by this Court on August 2, 3, and 4, 2017; the petitions, certain subpoenas and voter registration cards were submitted into evidence. Following the hearing, post-trial briefs were submitted by counsel and have been considered by the Court. Findings of Fact At the hearing, the following relevant testimony was elicited: Gregory Bonaparte Gregory Bonaparte, husband of candidate Saunders, testi?ed that he was involved in the efforts to collect signatures. Mr. Bonaparte had experience collecting signatures from previous elections and testified that he was familiar with the process Mr. Bonaparte testi?ed that of all the pages of the designating petition that he witnessed, he did not ?ll out the witness statements on the same day. He ?had put them in order to see what [the] dates were supposed to be, but I didn?t get to them until much later on" (16). He testi?ed that there were times he and Saunders were filling out the witness statements together. He testi?ed that they were trying to figure out which dates to put on them. ?Unfortunately, I think some of them we might have put, you know, and we went out and we put later dates by accident because, and then we realized maybe later on after we submitted them, we were saying, we might have had that one, you know, a little later. It got a little confusing when we had the dates to fill out, because we had them in order, but as more came, it just got a little confusing" (Ti-18). When asked if it was possible if he 'signed some pages that Saunders witnessed, he replied, ?Well, we tried to go over each page to see the dates and who did what, but we went out together many times, so, and we were together" (18). Mr. Bonaparte testi?ed that after collecting signatures, he would place his sheets on a pile in the living room or kitchen table. Saunders also collected signatures and was ?supposed" to have hers in a separate pile (31). Mr. Bonaparte testified that he knew Aisha Arenas and was aware that she was collecting signatures and that she left the petitions in his mailbox Mr. Bonaparte testi?ed: know people have left petitions in my mailbox, and I told everybody who took petitions, sign your petitions. I don?t want it to get confusing. Sign your petitions so as they, as people left things in the mailbox, some did, some, you know, I picked up as people left them in the mailbox, I took them and put them on the pile of completed petitions" (23-24). 2 The number in parenthesis refers to the page of the trial transcript. 3 Matter of Walker, Index No. 2321/2017 He further testified regarding the signatures on page 280 of the designating petition and the signature-collecting process: ?It went in a pile and the only, the only petitions that were in that pile should have been the petitions of my wife or myself, because all of the other witnesses were instructed, fill out the bottom, I don?t want it to become confusing. ?ll out the bottom. They're outside. Everybody did? (25). "If someone left anything in my mailbox unsigned, and it was put on the completed. or the pile of signatures that we had, and it was unsigned, I would assume they were mine. I usuaily look at the sheets and say, was I in that building. There were a good 30 sheets we could n't identify that we tossed because I just couldn't identify them. So usually we go over it, I'll ask Adriane, do you remember being in this building, and she'll say yes or no. Any no's that we didn?t remember, those were put aside and tossed. If we know we were in the buildings, those are the ones that we signed (26). ?[A]ll of the people carrying sheets were supposed to sign them before they were brought back. So all the ones we got, we knew who they were. And was telling everybody Don?t leave me anything unsigned . because it gets very confusing (27). "If someone dropped off petitions unsigned, unwitnessed, which I told everyone not to do, because I am, I was overwhelmed, it?s possible that if I took sheets out, put it on my pile in the, where the competed petitions were, and I looked at it later on and ltried to figure out if I, you know, not figure out, because those petitions that were unfilled out on the bottom of the witness statements were the ones that Adriane and I, because those are the only ones that could be there, because everything else should have been (29). Mr. Bonaparte testi?ed that when the petitions were dropped off in his mailbox, "almost all of them were completed fully" (34-35). Margaret anlayson Margaret Finlayson testified that she signed the designating petition numbered 240 and identi?ed her signature on line 7. The petition was witnessed by candidate Walidah Aime. Ms. Finlayson met Ms. Aime about a month after signing the petition and testified Matter of Walker, Index No. 2321/2017 that Ms. Aime was not the person who presented the petition for her to sign. Ms. Finlayson speci?cally testi?ed, ?She did not take my signature. She did not" (47). - Wendy Davis Wendy Davis testi?ed that Mr. Bonaparte asked her if she would .collect signatures for the respondent candidates (54). Ms. Davis was questioned about all of the pages that she witnessed. While she quickly identi?ed her signature and address on the subscribing witness statements as items that she filled out, she testified that someone else ?lled in her zip code and the number of signatures (76, 77, 78-79, 80, 81, 32, 83)- She testified that she was not present when someone else wrote in her zip code (64). She testi?ed that it could have possibly been a phone call with Mr. Bonaparte (64). Ms. Davis testi?ed that she did not know who put the number of signatures on the subscribing witness statement (65, 66, 67, 68 69,- 70, 71 72, 73, 74, 76, 77, 79, 80, 81, 82, 83), however, she did not write in the number of signatures (73- 74) Speci?cally as to page 269 of the designating petition, when asked if she was present when the number of signatures and the zip code were written into the witness statement, she testified, don' know. There was a ton of signatures and lots of papers. I dont know if I was present when this was being done or not" (71). With respect to page 271 of the designating petition, she testified: Do you recall whether you were present or not when somebody wrote that in? A I had to be present. Well, do you recall; yes or no? Because we 'need an answer. - A ldon't know. This is back in June. Could that have been a phone call from Mr. Bonaparate? A This might have been a phone call. There?s too much going on; I don?t know (72). Page 272, is that your signature at the bottom? A Yes. And do you know who wrote in the zip code and the number of signatures on this page? I don't recall who wrote in the number 10. That, I don't recall. - - THE COURT: You don't know who wrote that in? i 5 Matter of Walker, index No. 2321/201? 0:90 A She further testi?ed that Mr. Bonaparte had her permission on certain witness statements to make alterations and write her initials or her zip code. She stated that sometimeshe would call on some of the pages but she couldn't say on all of them (78). On cross examination and in response to a question from respondents' counsel Ms Davis contradicted prior testimony by stating that on every page ?everything was THE WITNESS: i don't recall who did that. THE COURT: Did you write' it in? THE WITNESS: No, i did not write that in. So all of the questions I've asked you so far, in all of the petitions when I asked if you knew who wrote in the number of signatures and you said you didn't know who wrote them in the Judge just asked you a more pointed question - He said the number 10. He asked me if I wrote them in; I said no. So when i asked you all those other times i said I didn't redall. You don't recall who, but it wasn't you? But it wasn't me. Thanks. Page 274. Your Signature on the bottom? Yes. And do you know who wrote in the zip code and the number of signatures on that page? I don?t recall who did the number of signatures on that page. Or the zip code? The zip code was probably Greg. Greg? Mr. Bonaparte? But I gave him the permission to write it ?lled In before I signed it? (86). Paul Herrick Paul Herrick testified that he signed the witness statements for all of the pages on which he collected signatures and ?lled in all the information in the ?subscribing witness statement. Matter of Walker, Index No. 2321/2017 Angela Neil Angela Neil identi?ed the pages of the petitions in which she signed the statement of witness. Ms. Neil identi?ed her signature on those pages. Ms. Neil testified that she ?lled out some of the blanks in the subscribing witness statement but was not sure if she inserted the date (116, 118, 121). She testified that she did not fill out the number of signatures in the subscribing witness statements (116, 117, 118, 119, '120, 121). Ms. Neil testi?ed with regard to' page 5 of the designating petitionthe number of signatures? A No, l, I don?t recall ?lling in the number. Ijust ?tled out my name. You just ?lled out your name? I believe so, yeah. 0 Were yOu present at the time the number of signatures were filled in? A No, but I did get the?signatures. I just don?t remember, don't recall. because I know there's a valid, like some are valid, some are whatever, so I just - (117). She further testified with regard to page 36 of the designating petition: Was anyone present with you when you left this petition? A No, I handed it in. i gave it in to Walidah. The people signed it, and some of them put the dates, some didn't, and then [just gave it to Walidah (119). . Ms. Neil was then questioned on cross examination by counsel: 0 Ms. Neil, you have testi?ed as to petition pages numbered 35, 36, 37, 64 and 65.- And in each case, you've testified that you either didn?t or don?t recall whether you ?lled in the number in the blank for the number of signatures? A Right. Was that number filled in before you actually signed at the bottom of the page? . A No, Later in her testimony, she stated: And when you turned them over to Walidah or showed them to Walidah, had you already signed them all? A No. She watched me as signed them. 7 Matter of Walker, Index No. 2321/2017 0 And before you signed them did Walidah add any information? A No, not that I recall. No, she didn?t (124)- Wali'dah Aime Walidah Aime identi?ed her signature on all of the pages of the designating petition that she witnessed. She testi?ed that she ?lled out her name and some of the information in the witness statement but not all of the information. Although she did not know who ?lled in certain information such as the word ?democratic?. the date, and the number of signatures, she testi?ed that she was present when it was ?lled out (163, 164-165, 167). She testi?ed that she thought it was Mr. Bonaparte who filled in the remaining information because she turned in all of her petitions into him. She testi?ed: A I was there when I signed my signature So we were - - was filling this out. I don? remember who helped me ?ll this out. Probably Greg, but I was right there when we did it- Your testimony is that you didn't ?ll this out, someone else did, but yet you were there when 'it was filled out? A Yes. How do you know it was filled out - - how do you not know who ?lled it out if you were there? A There were several people in the room. So there was a bunch of people around the table, for example? A Yes. And there are petitions all on the table putting them together? Yes. And were other candidates there at that time? Yes. So Adriane Saunders was there? I can't say who exactly was there. mean. I can't say who was exactly there (165). Ms. Aime testified that she witnessed Margaret Finlayson's signature (1 85). lWhen recalled to the witness stand on respondents? direct case, and in reaponse to questions from respondents? counsel. Ms. Aime contradicted her prior testimony and Matter of Walker, Index No. 2321/2017 testified that it was Greg who filled out the word "democratic". on some of her witness statements (384). - Robin Harmon-Myers Robin Harmon-Myers identi?ed her signature on all of the pages of'the designating petition that she witnessed- She stated that after getting signatures, she ?lmed in her petitions over a few different days to Mr. Bonaparte at his house (197). She testi?ed that she ?lled out her name and some of the information in the witness statement but not all of the information. In many instances. she testified that she did not know who wrote in the number of signatures, the word democratic, or the date (195,'196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207). She testified that after getting the signatures she turned in her petitions to Mr. Bonaparte. Despite not knowing who filled in the information in the witness statement that she left blank, Ms. Harmon?Myers testi?ed that her signature was the last thing applied to the page and that the date and number of signatures were already ?lled in when she signed the statement (209, 245). When asked speci?cally about page 22 of the designating petition, whether the date next to her signature was a different date then the date she witnessed the signatures, she replied. don?t know" (196). Adriane Saunders Adriane Saunders testi?ed that on. July 4, 2017, she was in the Dominican Republic (219). She left on July 2nd and returned on July 6th., Ms. Saunders signed the statement of witness on page 258 of the designating petition which is dated July 4, 2017. Ms. Saunders testi?ed that she did not know when she witnessed the signatures on page 258 and that although she did personally get the signatures, the date is a mistake. Ms. Saunders testi?ed that after speaking to one of the 1voters, Monique Smith, she recalled that she actually collected the signatures on page 258 on July 1, 2017 testimony is contrary to the statement in her answer that she collected the signatures between June 21, 2017 and June 29,2017. She subsequently changed her testimony when pressed by petitioner?s counsel on redirect examination and stated that it was her husband, Mr. Bonaparte, who spoke to Monique Smith to confirm the date her signature was witnessed (250)- Ms. Saunders identified her signature on all of the pages of the designating petition that she witnessed. She testi?ed that she ?lled out some of the information in the statement of witness but not all of the information'She testi?ed that she did not know who filled in the date or the number of signatures on certain pages (223, 232, 233, 234, 238, 239). Despite not knowing who filled in the missing information, she testified that she signed the statement of witness after it was entirely completed (240). 3 Monique Smith thereafter testi?ed that Ms. Saunders witnessed her signature on page 258 on July 1, 2017. 9 Matter of Walker, index No. 2321/2017r When asked if each of the voters on her pages signed. in her presence, Ms. Saunders testi?ed, "[e]ither mine or my husband?s? (225) and that he may have witnessed some and shemay have witnessed some. (227). Ms. Saunders testified: When you and your husband went back home did you have all the petitions together? A You know sometimes I may have given them to him. He had a pile. So he had his own little stack, and he put some aside for me to sign, so I don't- recali if these were with them. I can't say (226). When recalled to the witness stand on respondents' direct case, Ms. Saunders testi?ed; on cross examination with respect to page 258 of the designating petition: Did you sign those sheets before you went on, left the country or after you left the country, or after you returned to the country? A signed those sheets, I signed those sheets when I got the signatures of signed that sheet when I got the 'sign'atures when my husband and we thought that we did those signatures together and couldn?trememberthe date so I signed it July 4th and signed it THE COURT: There?s one speci?c that's dated July THE WITNESS: One sheet. - That was the only sheet. When did you sign it? A I can?t recall the day. I believe it was when i came, when I came'back - Roger Rubin Mr. Rubin testi?ed as a handwriting expert: The court finds his testimony credible. Mr. Rubin was asked about signatures on numerous pages of the petitions and among other things testified that on the witness statements of many of those pages three different hands out pens to the document. Remaining Witnesses Kozeta Tusha Cani Pedro Coelho Fiorella Kelley and Andre Butler all testified and identi?ed the pages of the designating petition that they witnessed. Ms Tusha Cani witnessed three pages; Mr. Coelho witnessed three pages; Ms. Kelley witnessed three pages; and Mr. Butler witnessed three pages. While Ms. Tusha Cani, Mr. Coelho, and Mr. Butler did not ?ll in the number of signatures or certain? information in the statement of '10 Matter of Walker, Index No. 2321/2017l witness, they each testi?ed that they were present when Mr. Bonaparte filled in that information (129-130, 135, 148). Michelle Walker Michelle Walker identi?ed her signature on all of the pages of the designating petition that she witnessed. She testified that at the end of each day, she would review the petitions and ?ll everything in the witness statement (398). She testi?ed, upon direct examination by respondents' counsel, that everything was complete in the statement of witness when she signed the bottom of the page (399). On cross examination, in response to questioning by petitioners' counsel, Ms. Walker testi?ed: Who ?lled this in on the bottom? Who filled in all this information; that?s what I?m asking you. A On page 62? Yeah. Page 62. So I printed my name, right? Then I put Democratic Party, then I put my address, okay? Use a different pen, put in 10 signatures. right? Then I put the date, and then I signed. You see that? (406). >0 Discussion candidate's designating petition will be invalidated on the ground of fraud where there is a showing that the entire designating petition is permeated with fraud? (Matter of Sgammafo Penile, 131 648, 650 [2d Dept 2015]; see Matter of Ferraro McNab, 60 601, 603 [1983]; Matter of Proskin it May, 40 829, 830 [1976]; Matter of Felder Storobin, 100 11, 15 [2d Dept 2012]), or ?where the candidate has participated in, or is chargeable with, knowledge of the fraud, even if there are a sufficient number of valid signatures on the remainder of the designating petition? (Matter of Sgammato Pen'llo, 131 AD3d.at 651; see Matter of Haygood Hardwick, 110 931, 932 [2d Dept 2013]; Matter of Lavina lmbroto, 98 620 [2d Dept 2012]; Matter of Folder Storobln, 100 at 15-16; Matter of Tapper Sampel, 54 435 [2d Dept 2008]). Fraud must be proved by clear and convincing evidence (Matter of Robinson Edwards, 54 682, 683 [2d Dept 2008]; see Matter of Lavina tmbroto, 98 620; Matter of Finn Sherwood, 87 1044, 1045 [2d Dept 2011]; Matter of Taste DeVaul, 65 651 [2d Dept 2009]). - In this case, the credible evidence establishes that the entire designating petition is permeated with fraud. Speci?cally, Adriane Saunders fraudulently and knowingly signed and submitted a false witness statement. Ms. Saunders signed page 258 of the designating petition and dated it July 4, 2017, a date that she admitted she was out of the 11 Matter of Walker, Index No. 2321/2017 country. The Court ?nds her testimony that those signatures were really collected by her on July 1, 2017, not credible. Respondents' argument. that the improper date was a mere clerical error, is without merit. Moreover, the testimony from Ms. Saunders and Mr. Bonaparte with respect to the process by which they carried and collected petitions, which they placed in piles on their kitchen table clearly, created confusion as to which petitions belonged to each of them as well as other subscribing witnesses. Ms. Saunders testified that Mr. Bonaparte provided her with pages to sign the subscribing witness statement without being one-hundred percent sure that she actually witnessed those signatures. The Court ?nds that the petitions ?led by them, including the signature on the subscribing witness statement and the date and the number of signatures collected, were all haphazardly executed without regard as to which of them actually collected the signatures. This demonstrates fraud permeated the collection process. In addition, Ms. Saunders signed, as subscribing witness, a page of the designating petition on which appeared the signature of Reverend Edward Brown- However, during the hearing, upon Ms. Saunders entering the court room, Reverend Brown testi?ed that he had never seen her before and that she was not the person who solicited his signature on the designating petition which he signed (1273). In Layden Gargiufo, 77 933 (2d Dept 1980), the candidate Alice A. Capatosto admitted that she signed as subscribing witness. two pages of the designating petition, but did not witness the purported signatories af?x their signatures to those pages. The Court held that the since Capatosto was a candidate, her fraudulent act warranted striking her name from the ballot (see Matter of Sgammatc Perillo, 131 648 [holding that the Supreme Court properly determined that the subscribing witness with respect to 14? signatures, had fraudulently and knowingly signed and submitted false witness statements and that the candidate was chargeable with knowledge of the fraud]; Matter of Tapper Sampel, 54 at 436 [holding that the designating petition was properly invalidated where a witness at the hearing testi?ed that she was directed by the appellant to ?ll in the number of signatures on a petition sheet that she did not witness and there was testimony that the appellant did not personally witness and identify all of the signatures to which she attested as a subscribing witnessl). Here, since Ms. Saunders is a candidate, her fraudulent acts warrant that her name be stricken from the ballot (see Matter of Cullen Power, 14 7'60 [1964]; Matter of Layden Gargiufo, 7? ADzd 933). Moreover, the totality of the credible evidence presented clearly demonstrates that fraud and irregularity so permeated the designating petition as a whole as to call for its invalidation. The evidence is clear and convincing that the signature-collecting precess employed by the candidates and several subscribing witnesses to the designating petition permeated the petition with fraud (see Miner Gumbs, 207 512 [2d Dept 1994] [holding that the questionable signature?collecting process employed by the appellant and the subscribing witnesses to the designating petition permeated the petition with fra ud]; Viliafane Caban, 104 579 [2d Dept 1984] [holding that the systematic fraudulent 12 Matter of Walker, Index No. 2321/2017 activities of the candidate?s organization justified the invalidation of all the designating petitionsD. . "Essential to the integrity of the petition process is the subscribing witness's statement authorized by Election Law 6-132 and particularly that portion of it which contains the total number of_signatures on the petition sheet to which it is appended" (Jones Velez, 65 954 [1985]). Each sheet of a designating petition must have appended to it, at the bottom, a signed statement of a witness that states, inter alia, the number of signatures witnessed (see Election Law 8-132 Matter of Kepen? Tuito, 88 826 [2d Dept 2011]). person other than the subscribing witness may insert the information required by the subscribing witness statement, provided that all subscribing witness information required above the subscribing witness' signature is inserted either before such subscribing witness signs the statement or in the presence of such subscribing witness? (Elec 6-134 see also Caesar v. Board of Elections, 544 882, 882-883 [2d Dept 1989] [holding that Election Law 6?1 34(9) concerns "inadvertent overstatements and understatements of the number of signatures contained on a designating petition and does not apply to situations such as those present at bar where the number is omitted - Here, several of the subscribing witnesses to the designating petitions testi?ed at the hearing, as set forth above, that they had failed to fully complete the subscribing witness statements for the pages to which they had attested, and that the statements were completed by someone else at a later date (see Floi/ver D'Apice, 104 578 [2d Dept 1984] [holding that fraud and irregularity permeated the designating petition as a whole as to callifor its invalidation. The evidence included, inter alia, testimony from one of the subscribing witnesses to the designated petition that she had failed to fully complete the subscribing witness statements for the three pages to which she had attested, and, in effect, that the statements were completed by someone else at a later date]). Ms. Davis, Ms. Aime, Ms. Harmon?Myers, and Ms. Saunders testified that they did not insert some of the information into the subscribing witness statement, including the number of signatures and that they did not know or could not recall who inserted the number of signatures on the statement or the other information. Although Ms. Davis. Ms. Aime, Ms. Harmon-Myers, and Ms. Saunders testified that the number of signatures as well as the remaining blanks in the subscribing witness statement was completed in their presence before they signed the witness statement, the Court finds that this testimony is not credible since it is contradicted by Mr. Bonaparte's testimony that he told everyone to sign their petitions prior to handing them in and since the witnesses could not recall who ?lled out this information in their purported presence. The testimony of two of the candidates, Adriane Saunders and Walidah Aime, as well as the testimony of Wendy Davis is replete with inconsistences. and improbabilities and accordingly, the Court rejects such testimony as not credible. 13 Matter of Walker, Index No. 2321/2017 Based upon the testimony adduced at trial, the Court finds that the subscribing witnesses collected the signatures and submitted the petitions with their signature in the subscribing witness statement to Mr. Bonaparte. The remaining information left blank in the subscribing witness statement was thereafter filled in by someone else, in most cases. Mr. Bonaparte. indeed, Ms. Neal testi?ed that she did not ?ll in the number of signatures on the subscribing witness statement and handed in her petitions to Ms. Aime. Notably, in response to a question posed by Respondents? counsel, she testified that she was not present when that information was ?lled in and that the number of signatures she collected was not filled in before she signed the statement. The Court finds Ms. Neal's testimony to be credible. The testimony that the subscribing witnesses signed their petitions after all the information in the subscribing witness statement had been ?lled in is not credible. in fact, Mr. Bonaparte. who was the first witness to testify at the hearing, repeatedly and adamantly testified that be instructed all the witnesses to sign their petitions before leaving petitions with him The subscribing witnesses called to the witness stand by petitioners counsel testi?ed that they did not fill in the date or the number of signatures in the subscribing witness statement and they did not know who did, in fact, ?ll in that information. On cross examination however, in response to a question from respondents counsel they all then testified that everything was ?lled out in the subscribing witness statement in their presence prior to them adding their signature. As set forth above, this testimony is not credible. In addition, Mr. Bonaparte testi?ed that Aishe Arenas collected signatures and placed the petitions in his mailbox. However, none of the petitions submitted include any pages signed by Ms. Arenas. Moreover, several of the subscribing witnesses testified that the voters placed the dates next to their signatures. However, upon examining those pages, the Court finds this testimony not credible in certain instances where it is Clear from looking at the pages that the same person filled in all of the dates next to the voters? signatures. in light of the above, the pages cf the designating petitions subscribed by Gregory Bonaparte, Adriane Saunders, Walidah Aime, and Wendy Davis are invalid based upon permeation of fraud. - Furthermore, Mr. Rubin testified, and the Court agrees, that the signatures on the witness statement of Kozeta Tusha Cani and Lano Cunningham do not match the signatures on their voter registration cards. Ms. Tusha Cani purportedly witnessed three pages and Mr. Cunningham purportedly witnessed one page. Pursuant to Election Law one-thousand signatures are required to place the candidates on the ballot. The petitions consist of 331 pages and 3,174 signatures. Based upon the foregoing, the Court ?nds that the pages witnessed by Gregory Bonaparte, Adriane Saunders, Wendy Davis, Walidah Aime, Kozeta Tusha Cani, and 14 Matter of Walker, index No. 2321/2017 Lano Cunningham are invalid.4 Thus,'243 total pages which consists of 2,333 signatures are invalid. The petitioners argue that they are also entitled to an inference that Bunny Branch, Cecille Escoffery, Gregory Hardy, Tia Harris, Eulahlee Myers, Floyd Myers, Walker Philip, Paul B. Saunders and Marlene H. Wertheim, all subscribing witnesses who are presumed to be under the respondents? control and who failed to appear at the hearing pursuant to subpoena. woold have testi?ed adversely to the respondents? position. ?[W]here fraudulent practices and gross irregularities pervade the petition sheets attested by subscribing witnesses, public policy requires that such sheets be disregarded in their entirety if the witnesses refuse to appear and to testify, especially after the explicit direction of the court? (Haas Costigan, 14 809, 811 [2d Dept 1961]). in light of the evidence of irregularities and fraudulent practices as to ?lling in the number of signatures and other information on the subscribing witness statement, the petitioners are entitled to an inference that Bunny Branch, Cecille Escoffery, Gregory Hardy, Tia Harris, Paul B. Saunders and Marlene H. Wertheim, who are presumed to be under the candidate's control and failed to appear at the hearing, would have testified adversely to the candidate's position {see Matter of Haygood Hardwick, 110 931; Bennett 1/ Phillips, 175 934 [2d Dept 1991] [holding that the trial'court correctly'drew an adverse inference from appellant's failure to produce numerous subscribing witnessesD. However, the petitioners are not'entitled to a negative inference with respect to Eulahlee Myers, Floyd Myers and Walker Philip. Eulahlee Myers and Philip Walker were present in court on the-first day of the hearing but were not called as witnesses at that time. Furthermore, the testimony establishes that Floyd Myers was traveling out of the state on business at the time the subpoena was served by petitioner and had not returned during the course of the three-day trial. Finally, the petitioners failed to establish by clear and convincing evidence that candidate Paul R. Herrick?s signature on the subscribing witness statement of the nine pages he witnessed does not match the signature on his 1996 voter registration card. The petitioners? expert testi?ed that ?it is not likely" that the signatures matched (299). Gregory Bonaparte witnessed 1 07 pages for a total of 1,006 signatures; Adriane Saunders witnessed 55 pages with a total of 546 signatures; Wendy Davis witnessed 62 pages with a total of 608 signatures; Walidah Aime witnessed 15 pages with a total of 140 signatures; Kozetta Tushi-Cani witnessed 3 pages with a total of 30 signatures; and Lane Cunningham witnessed 1 page with a total of 3 signatures. . 15 Matter of Walker, Index No. 2321/2017 In light of the above, the Court finds that the designating petition is permeated with fraud. Accordingly, the petition to invalidate the petition designating Walidah E. Aime, Adriane G. Saunders, Robin E. Harmon-Myers. and Paul R. Herrick as candidates in a primary election to be held on September 12, 2017, for the nomination of the Democratic Party as its candidates for the public office of Comptroller, Councilwoman, Councilwoman, and Councilman, respectively, of the City of Mount Vernon, is GRANTED and the Westchester County Board of Elections is directed to remove the 'names of Walidah E. Aime. Adriane G. Saunders. Robin E. Harmon-Myers, and Paul R. Herrick from the appropriate ballots. Dated: White Plains. New York August 15, 2017 1 HON- J. GIACOMO, TO: The Sarcone Law Firm, PLLC Attorneys for Petitioners 222 Bloomingdale Road, Suite 308 White Plains, New York'10605 John A. Sarcone, Esq. Joshua Ehrlich. Esq, of counsel Alan Mark Goldston, Esq. . Attorney for Respondents 164 White Road Scarsdale, New York 10583 Westchester County Attorney's Office Attorneys for the Board of Elections 148 Martina Avenue, Room 600 White Plains, New York- 10601 Melissa?Jean Rotini, Esq. H: ELECTION LAWn?Matter of Walker v. Aime 16