STATE OF NEW YORK : SUPREME COURT COUNTY OF ERIE : PART 1 ___________________________________________________________ In the matter of the Application of JORDAN D. TOLES and JONATHAN D. RIVERA, Petitioners, -vs- INDEX NO. 804315/2020 HEARING ROBERT QUINTANA, Respondent-Candidate, ERIE COUNTY BOARD OF ELECTIONS Jeremy Zellner & Ralph Mohr, Commissioners of and Constituting the Erie County Board of Elections, Respondents. ___________________________________________________________ Erie County Court Building 92 Franklin Street, Ceremonial Courtroom, Buffalo, New York 14202 April 24, 2020 B e f o r e: HONORABLE EMILIO COLAIACOVO, (via video) Supreme Court Justice A p p e a r a n c e s: BRITTANY LEE PENBERTHY, ESQ., (via video) Appearing for Petitioners Jordan D. Toles and Jonathan D. Rivera JOSEPH A. MATTELIANO, ESQ., (telephonically) JAMES M. OSTROWSKI, ESQ., (via video) Appearing for Respondent-Candidate Robert Quintana JEREMY C. TOTH, ESQ., (via video) Appearing for Respondent Erie County Board of Elections P r e s e n t: ROBERT QUINTANA (telephonically, from Mr. Matteliano's office) ASHLEY OVERHOLT, NYACR, NYRCR (via video) Senior Court Reporter Ashley Overholt, NYACR, NYRCR Senior Court Reporter 2 E X A M I N A T I O N S WITNESS PAGE NUMBER AUBREY POWELL DIRECT EXAMINATION BY MS. PENBERTHY 8 CROSS-EXAMINATION BY MR. MATTELIANO 10 JOCELYNN GONZALEZ DIRECT EXAMINATION BY MS. PENBERTHY 16 CROSS-EXAMINATION BY MR. MATTELIANO 18 REDIRECT EXAMINATION BY MS. PENBERTHY 19 ROBERT QUINTANA DIRECT EXAMINATION BY MR. MATTELIANO 26 CROSS-EXAMINATION BY MS. PENBERTHY 28 Ashley Overholt, NYACR, NYRCR Official Court Reporter 3 1 2 3 4 5 (Proceedings commenced at 10:30 a.m.) THE COURT: Before we lose everybody, let's go on the record. Jen, you want to call it? THE CLERK: Sure. In the matter of Toles et 6 al. vs. Quintana et al., Index 804315/2020. 7 please note your appearances for the record, beginning 8 with the petitioner. 9 10 MS. PENBERTHY: Brittany Penberthy, Your Honor, on behalf of petitioners. 11 MR. OSTROWSKI: 12 for Respondent Quintana. 13 14 James Ostrowski, co-counsel MR. MATTELIANO: Joe A. Matteliano, co-counsel for Respondent Quintana. 15 MR. TOTH: 16 Board of Elections. 17 Counsel, THE COURT: Jeremy Toth for the Erie County Okay. 18 Colaiacovo. 19 for a hearing this morning and I had received -- after 20 our initial return date of the order to show cause, 21 which was -- I believe was it April 13th, we scheduled a 22 hearing for this date. 23 13th I allowed counsel to supply me with further 24 submissions. 25 All right. And this is Judge We had scheduled this matter After our initial hearing on the I received something from Ms. Penberthy on behalf Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4 1 of the petitioners. 2 memorandum of law from the respondent's attorneys, 3 Mr. Quintana's attorneys, and I also received a document 4 from the Board of Elections from Mr. Toth. 5 I received documentation from -- a I'll also note that I received e-mails, I believe, 6 from Mr. Matteliano and Ms. Penberthy regarding FOIL 7 requests, as well. 8 9 At this time, I believe we were scheduled to begin the hearing, so I have one question before we begin, and 10 it's with respect to Ms. Penberthy's letter dated April 11 16th, 2020. 12 of contested signatures. 13 Roman numeral 1, which are the fraud -- alleged 14 fraudulent signatures from Ms. Sabala, on sheets 15 1 -- I'm sorry, sheets 10, 13 and 16, and I believe they 16 total, approximately, 30 signatures. From my own analysis there are three blocks 17 MS. PENBERTHY: 18 THE COURT: 19 MR. OSTROWSKI: 29. The first, which I'll call 29, Your Honor. Okay. Your Honor, can I just chime 20 in real quick? 21 In reviewing them the other day with a mask on I missed 22 one of the pages. 23 I made an error in our brief. It is 29. It is 29. THE COURT: All right. Then we have the 24 second block of signatures, which are the 8-A 25 signatures, which I believe total 45 signatures. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 5 1 MS. PENBERTHY: 2 THE COURT: Yes, Your Honor. Then you have the third block of 3 contested signatures, which are the other objections, 4 and those, I believe, total 52 signatures, correct? 5 MS. PENBERTHY: Yes, Your Honor. However, if 6 you were to extract the 8-A, the remaining number in 7 question in that subset would be 25. 8 9 THE COURT: I was just going to ask that, because I -- I wasn't able to go through and look for 10 duplicates, so if Mr. Quintana had 247 valid signatures 11 from the Board, and the petitioners are successful in 12 knocking off the 29 signatures in fraud, the 45 13 signatures for the 8-As, and the 25 signatures 14 for -- I'm sorry, the 25 signatures for the group three 15 objections, that would bring him to 148 signatures, 16 which would be two less than the 150 that is required to 17 qualify, correct? 18 MS. PENBERTHY: Correct, Your Honor. 19 MR. OSTROWSKI: Yes, Your Honor. 20 MR. MATTELIANO: 21 THE COURT: 150, Judge. In a best case scenario, if the 29 22 fraud signatures, the 45 8-A signatures, and the 25 23 Roman numeral three signatures, if all those are 24 invalidated, he would have 148 valid signatures, two 25 short of the required amount to remain on the ballot. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 6 1 Does everybody agree with that, with my math? 2 MR. OSTROWSKI: Yes, Your Honor. 3 MS. PENBERTHY: Yes, Your Honor. 4 MR. MATTELIANO: 5 THE COURT: Yes. All right. So in the event that, 6 let's say, for example, the 8-A signatures all remain, 7 then the petition would be valid, correct? MS. PENBERTHY: 8 9 Yes. If the Court were not to consider -THE COURT: 10 Let's say, for example, that the 11 8-A signatures were valid, then Mr. Quintana would have 12 enough valid signatures to remain on the ballot? 13 MS. PENBERTHY: 14 MR. MATTELIANO: 15 THE COURT: 16 18 THE COURT: treated as valid, then that would be -MR. MATTELIANO: 21 THE COURT: 24 25 Yes. -- if the 8-A signatures are 20 23 I'm just saying that as a whole -MR. MATTELIANO: 22 Or three or four of them. Right. 17 19 Correct. Yes. Okay. All right. I just wanted to make sure that my math was accurate. Ms. Penberthy, you're the petitioner. MS. PENBERTHY: Yes. If I may begin by calling our first witness, who I believe is on the line, Ashley Overholt, NYACR, NYRCR Senior Court Reporter 7 1 Aubrey Powell. MR. OSTROWSKI: 2 3 Your Honor, could we make some very brief motions to dismiss, for the record? THE COURT: 4 Well, what I'm going to do is I'm 5 going to allow you to make your motions after the 6 conclusion of the petitioner's proof. 7 MR. OSTROWSKI: 8 THE COURT: 9 MS. PENBERTHY: 10 Yes, Your Honor. Okay. Thank you. Who is the first witness? Aubrey Powell, Your Honor, P-O-W-E-L-L. 11 THE COURT: 12 MR. POWELL: 13 THE CLERK: 14 Okay? Is Aubrey Powell on the phone? Yes, Your Honor. Okay. Since we don't have a bible, can I just affirm the witness? 15 THE COURT: 16 AUBREY POWELL, called herein as a witness, 17 Yes. having duly affirmed, testified as follows: 18 THE WITNESS: 19 THE CLERK: Thank you. 20 THE COURT: And how are we going to Yes. 21 authenticate that Mr. Powell is who Mr. Powell says he 22 is? 23 24 25 I don't see him. I only hear him. MR. MATTELIANO: I assume he's not with petitioner's counsel. MS. PENBERTHY: He is not. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - DIRECT - PENBERTHY - POWELL 1 MR. MATTELIANO: 2 THE COURT: 3 MS. PENBERTHY: This is Joe. He is just phoned in? Yes, Your Honor. I provided 4 him the link that was provided by the Court this morning 5 to join the Skype meeting. 6 THE COURT: 7 MS. PENBERTHY: 8 And I was going to have him confirm his address for the record. THE COURT: 9 10 11 Okay. All right. Go ahead. Your witness. DIRECT EXAMINATION BY MS. PENBERTHY: 12 Q Can you confirm your address? 13 A 801 Columbus Parkway, Buffalo, New York 14213, Lower. 14 Q And Mr. Powell, have you had the opportunity to look 15 at the Quintana designating petition as it relates to sheet 16 16, namely at line 10? 17 A Yes. 18 Q And have you been provided a copy of that designating 19 petition, that sheet 16? 20 A Yes. 21 Q And is that your signature on the designating 22 23 24 25 petition, sheet 16, line 10? MR. OSTROWSKI: Your Honor, it's not -- the petition is not in evidence. MS. PENBERTHY: Your Honor, it was attached as Ashley Overholt, NYACR, NYRCR Senior Court Reporter 8 4/24/20 - DIRECT - PENBERTHY - POWELL 9 1 an exhibit to the petition. 2 believe the Board was required to provide all the 3 records. 4 MR. OSTROWSKI: If Your Honor -- and I I have no objection to 5 admitting it into evidence; I just wanted to point out 6 it wasn't in evidence yet. 7 THE COURT: All right. Well, what we'll do -- 8 and it's kind of difficult to do this, but what -- and 9 just for the record, the petition itself is part of the 10 record on appeal, and I'm looking at the exhibit now, 11 and I believe it is Exhibit A to the -- to the verified 12 petition, and sheet number 10 is included as part of 13 Exhibit A, so I don't believe that it needs to be part 14 of the record, because it's the petition itself. 15 MS. PENBERTHY: 16 THE COURT: I would just -- If you -- if you want, 17 Mr. Ostrowski, we can have the petition marked as 18 Exhibit 1. 19 MR. OSTROWSKI: I -- I have no -- I'll 20 stipulate it into the record or into evidence. 21 not -- I don't want to be difficult. 22 that it probably should be admitted into evidence in 23 some fashion. 24 25 THE COURT: I'm I just pointed out What we'll do is we'll -- I'll keep a list of exhibits, and I'll include it in my Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - CROSS - MATTELIANO - POWELL 1 written decision, and I will mark Petitioner's 1 as the 2 actual verified petition exhibit -- 3 MS. PENBERTHY: 4 THE COURT: 5 MS. PENBERTHY: Thank you, Your Honor. -- without objection. Go ahead. Mr. Powell, referring, again, 6 to sheet 16 of the Quintana designating petition, 7 looking at line 8, is that your signature -- I'm sorry, 8 line 10. Is that your signature? THE WITNESS: 9 No. MS. PENBERTHY: 10 11 ever sign any documents before Kayla Sabala? 12 THE WITNESS: 13 MS. PENBERTHY: 14 No, I did not. That's all the questions I have, Your Honor. 15 THE COURT: 16 MR. OSTROWSKI: 17 THE COURT: 18 MR. MATTELIANO: 19 And in March of 2020, did you Mr. Ostrowski? No questions. Mr. Matteliano? I just have a couple. CROSS-EXAMINATION BY MR. MATTELIANO: 20 Q I don't have that in front of me. Does the witness 21 have the petition in front of him that he signed allegedly or 22 didn't sign? 23 24 25 A Yeah. I -- I have it via e-mail and I did not sign Q Okay. Sir, do you live next door to Mr. Rivera? it. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 10 4/24/20 - CROSS - MATTELIANO - POWELL 1 A Across the street. 2 Q Across the street. Did you -- did you discuss with 3 Mr. Rivera the fact that you were subpoenaed and would be 4 testifying in this matter? 5 A 11 I received the voicemail stating that the 6 petition -- stating they wanted to make sure it was my proper 7 signature, and according to my notice that was not my 8 signature, at all, and then he said that someone would be with 9 me -- Brittany would talk to me or send me a subpoena about 10 this later, but I did -- when I got that message from him 11 about the subpoena, I pretty much -- I -- 12 MS. GONZALEZ: 13 THE COURT: 14 MS. GONZALEZ: 15 MS. PENBERTHY: 16 Hello? Who is this? Jocelynn Gonzalez. Could you call back in two more minutes? 17 MS. GONZALEZ: 18 THE COURT: 19 MR. MATTELIANO: 20 21 22 Yes. Sorry. Mr. Matteliano? Yes. Sorry. BY MR. MATTELIANO: Q Mr. Powell, what is the date of the petition page that you're looking at? 23 A The date it says here is March 13th, 2020. 24 Q Were you home on -- were you home at your residence at 25 801 Columbus Parkway on that date? Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - CROSS - MATTELIANO - POWELL 12 1 A No, I was not. 2 Q You were not? 3 A No, I do not know Sabala. 4 Q You do not, correct? 5 A Mm-mm. 6 Q Was anyone home at 801 Columbus Parkway on March 13th, 7 8 9 10 11 Do you know Ms. Sabala? to your knowledge, 2020? A I do live with my wife. I can ask her, but she's not here right now; she's at work. Q Okay. Did you ask her if she had signed that -- Aubrey, that's a man and a woman's name, is it not? 12 A Yes. 13 Q I'm sorry, I can't hear you, sir. 14 A I'm listening. 15 Q What's your wife's first name? 16 A Chanel. 17 Q Chanel. 18 19 20 21 22 Hello? You don't know if she was home or you think she was at work that day? A No. She -- she would have to be at home. No. It's okay. I can ask her. Q Did you ever ask her if she signed a petition for anybody including Mr. Quintana? 23 A Yes. She -- that's the thing, she did sign a 24 petition. 25 name is on it, as well. I don't see -- I can't see past 10 to see if her Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - CROSS - MATTELIANO - POWELL 1 Q 2 page? 3 A 4 Could you take a quick look if you see it on that Yeah. I can't see past -- I only see 10, 11, 12. MS. PENBERTHY: I'm making an objection, Your 6 Honor. 7 to speak on the signature of another person. 9 I don't see how this witness could be qualified THE COURT: On his wife or -- I'm sure he could testify -- 10 MR. MATTELIANO: 11 THE COURT: I -- Hold on. I'm sure he could 12 testify as to his wife's signature. 13 question was, does he know if his wife signed. 14 I can't see 9 -- I can't see the numbers above. 5 8 13 MR. MATTELIANO: Right. I believe the Right? I believe he said he 15 believes she did. 16 Perhaps Mr. Ostrowski can look to see if there's any 17 other Powell name. 18 will have to look, and I find it ironic that 19 petitioner's counsel is claiming how could anyone attest 20 to another signature when that's what -- exactly what 21 petitioner is doing in challenging many of the 22 signatures, so -- 23 24 25 I don't have that in front of me. THE COURT: The document is in evidence, and I Duly noted, Mr. Matteliano. Let's ask questions. MR. MATTELIANO: I'm done. I'm done. Ashley Overholt, NYACR, NYRCR Senior Court Reporter I did. 4/24/20 - CROSS - MATTELIANO - POWELL 1 THE COURT: 2 MR. TOTH: 3 THE COURT: 4 MS. PENBERTHY: 5 6 7 All right. Ms. Penberthy? No additional questions, Your Honor. THE COURT: All right. 9 MS. PENBERTHY: THE COURT: 12 MS. PENBERTHY: 15 16 THE COURT: Ms. Gonzalez? Jocelynn Gonzalez. Her I remember. We're waiting for Was she the one that called in early? MS. PENBERTHY: she said Gonzalez. 18 re-phone in. 20 Does she have a first name? affidavit was submitted as part of my petition. 17 19 Your Honor, the next witness would be Ms. Gonzalez. 11 14 Thank you, Mr. Powell. Have a nice day. Who is the next witness? 13 Mr. Toth? No questions, Your Honor. 8 10 14 THE COURT: It was, Your Honor. I think I just sent her a message to Why don't we go off the record until Ms. Gonzalez calls back on. 21 (Discussion held off the record.) 22 MS. GONZALEZ: 23 THE COURT: Hello? 24 THE CLERK: Ms. Gonzalez? 25 MS. GONZALEZ: Hello? Yes. Hi. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 15 1 THE CLERK: This is the court clerk. 2 THE COURT: Hold on. 3 Could go back on the record, quick? 4 Ms. Penberthy, do you have any other witnesses? 5 6 MS. PENBERTHY: At this time we would be calling Jocelynn Gonzalez. 7 THE COURT: 8 MS. GONZALEZ: 9 THE COURT: 10 Yes, Your Honor. Ms. Gonzalez? Yes. Hi. Please listen to the words of the court clerk. 11 MS. GONZALEZ: 12 JOCELYNN GONZALEZ, called herein as a witness, 13 having duly affirmed, testified as follows: 14 THE WITNESS: 15 THE CLERK: 16 record, spelling your first and last names. THE WITNESS: 18 THE CLERK: 20 21 22 23 Yes. Please state your name for the 17 19 Okay. Jocelynn Gonzalez. Could you spell your first and last names, please? THE WITNESS: J-O-C-E-L-Y-N-N, Gonzalez. G-O-N-Z-A-L-E-Z. THE CLERK: And please state the city, town, or village where you reside. 24 THE WITNESS: 25 THE CLERK: Buffalo, New York. Thank you. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - DIRECT - PENBERTHY - GONZALEZ 1 THE WITNESS: 2 THE COURT: 3 You're welcome. Ms. Penberthy, your witness. DIRECT EXAMINATION BY MS. PENBERTHY: 4 Q Ms. Gonzalez, your full address? 5 A My full address is 937 Amherst Street, Buffalo, New 6 York 14216. 7 Q Did you previously live at 182 15th Street? 8 A Yes. 9 Q When did you move from that address at 182 15th 10 11 Street? A November 1st, 2019. THE COURT: 12 13 I'm sorry, can you give me that date again? 14 THE WITNESS: 15 THE COURT: 16 THE WITNESS: 18 22 182 15th Street, Buffalo, New York 14213. THE COURT: 19 21 And what is the -- what was the address? 17 20 November 1st, 2019. All right. Thank you. BY MS. PENBERTHY: Q And when you previously lived at 182 15th Street, who did you live with there? 23 A With my mother, Miriam Gonzalez. 24 Q And who owned that address? 25 A My mother, Miriam Gonzalez. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 16 4/24/20 - DIRECT - PENBERTHY - GONZALEZ 1 2 Q Did Ms. Gonzalez, your mother, sell that house at some point? 3 A She did, yes. 4 Q Do you know when she sold that house at 182 15th 5 Street? 6 A October of 2019. 7 Q Do you know who she sold that house to? 8 A To Kayla. 9 Q Kayla Sabala? 10 A Yes. 11 I'm not sure what her last name is. I know her maiden last name is Quintana, but she is married, so I'm assuming, yes. 12 Q You said Quintana? 13 A Her maiden last name is Quintana. 14 Q Have you had the opportunity to look at Candidate 15 Quintana's designating petition, sheet 10? 16 A I did. 17 Q And on sheet 10 there are two signatures, correct? 18 A Yes. 19 Q And are either of those two signatures your 20 signatures? 21 A No. 22 Q Are either of those two signatures your mother's 23 17 signature, if you have knowledge of her signature? 24 A No. Impossible, because she lives in Florida now. 25 Q Do you know when she relocated to Florida? Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - CROSS - MATTELIANO - GONZALEZ 1 A She moved to Florida in November. 2 Q Did you, in March of 2020, sign any documents before 3 4 Kayla Sabala? A Never. No, ma'am. MS. PENBERTHY: 5 6 That's all the questions I have, Your Honor. 7 MR. OSTROWSKI: No questions, Your Honor. 8 MR. MATTELIANO: Could we have the line 9 references, please? MS. PENBERTHY: 10 11 lines on that page. 13 All right. Just for the record. THE COURT: 14 15 There's only two It's line 1 and line 2. MR. MATTELIANO: 12 I'm sorry. Any questions, Mr. Matteliano? CROSS-EXAMINATION BY MR. MATTELIANO: 16 Q Who is Jessica Thornton, ma'am? 17 A Jessica? 18 Q Janet? 19 A Jessynia? 20 Q Yes. 21 A That's my niece. 22 Q Where does she live? 23 A She lives -- I'm not sure. 24 Johnson. 25 correct, but I know she lives on Mary Johnson, in Buffalo. I don't know a Jessica. Yeah. I think it's 42 Mary I -- if the -- I'm not sure if the number is Ashley Overholt, NYACR, NYRCR Senior Court Reporter 18 4/24/20 - REDIRECT - PENBERTHY - GONZALEZ 1 Q Excuse me one second. 2 Did Ms. Thornton live with you in March of this year? 3 A No. 4 Q Okay. 5 A No. 7 Q Never? 9 10 11 12 13 Did you have any conversations with her about the petition and the signatures you just mentioned? 6 8 Never. She never said anything to you about that, whether she signed any petitions that day? A No. I didn't -- I didn't even know who signed my name on the petition until, like, just recently, maybe a week ago. Q Did you ever tell anybody that she told you she signed or no? A No. 14 MR. MATTELIANO: 15 (Court reporter asks for clarification.) 16 MR. MATTELIANO: 17 Okay. Thank you. Spell it, ma'am, for the court reporter, please. 18 THE WITNESS: 19 THE COURT: Mr. Toth, any questions? 20 MR. TOTH: No questions, Your Honor. 21 THE COURT: 22 23 24 25 19 J-E-S-S-Y-N-I-A. Ms. Penberthy, any questions? REDIRECT EXAMINATION BY MS. PENBERTHY: Q Ms. Gonzalez, are you aware Jessynia was contacted by Mr. Ostrowski? A My sister had mentioned it to me, which is her mom, Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - REDIRECT - PENBERTHY - GONZALEZ 1 but other than that, I -- you know, I didn't know anything 2 prior to it up until, like, last week, that they told me that 3 a lawyer had contacted her. 4 5 Q Is it after the lawyer contacted her that someone made contact with you? 6 A Yes. 7 Q Thank you. MS. PENBERTHY: 8 9 THE COURT: All right. MR. OSTROWSKI: 13 THE COURT: 14 THE WITNESS: 16 17 18 Anyone else want to ask any hearsay questions? 12 15 That's all the questions I have. 10 11 Nothing further. Thank you, Ms. Gonzalez. You're welcome. Have a good day. THE COURT: Do we have any other witnesses, Ms. Penberthy? MS. PENBERTHY: Your Honor, Ms. Sabala was 19 served with a subpoena at her residence, as indicated on 20 her qualifying petitions, and as indicated I have a 21 photograph of her mailbox, which purports to be her 22 residence. 23 24 25 20 She has apparently elected not to respond to said petition and should be found in contempt of Court. I would also note, Your Honor, it is my Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - REDIRECT - PENBERTHY - GONZALEZ 1 understanding Ms. Sabala is the daughter of the 2 candidate. THE COURT: 3 4 testify. MS. PENBERTHY: 5 6 I just asked if she was going to subpoena that was duly served upon her. 7 THE COURT: 8 MS. PENBERTHY: 9 THE COURT: 10 11 She hasn't responded to a And she hasn't called in? Not -- Mr. Matteliano, any comment about that? MR. MATTELIANO: I have no personal knowledge 12 of the service -- first of all, I don't represent that 13 young lady, and Mr. Ostrowski might have some -- we can 14 address these issues later, Jim. 15 MR. OSTROWSKI: I don't represent her, and I 16 did get a copy of a subpoena, and I think that's due to 17 counsel's compliance with the CPLR rule, which I'm vague 18 on it, but I believe you're supposed to pass subpoenas 19 around to attorneys, so I have no knowledge of whether 20 there was proper service on her or not. 21 obviously very difficult times for all of us, as far as 22 contacting people, where people are located, getting 23 mail, getting subpoenas, and that's all I can really say 24 on the subject. 25 MR. MATTELIANO: These are I have one comment, Judge, Ashley Overholt, NYACR, NYRCR Senior Court Reporter 21 4/24/20 - REDIRECT - PENBERTHY - GONZALEZ 1 excuse me. 2 it's personal service. 3 service, there's no way to tell if it was received. 4 There's no way to tell if this particular person was 5 home or was attending to other ill people during the 6 Covid-19, so it would be speculation to hold her in 7 contempt, if anything. 8 anyway, given the counts that we think are going to 9 happen. 10 11 12 13 14 15 16 17 18 In the absence of a -- and I don't know that In the absence of personal And it may not in the long run, That's all I can say, Judge, no personal knowledge. THE COURT: Okay. Do you have any other witnesses, Ms. Penberthy? MS. PENBERTHY: That would conclude the witnesses, Your Honor. THE COURT: Okay. Mr. Ostrowski or Mr. Matteliano -Before we begin, do you rest, Ms. Penberthy? MS. PENBERTHY: With regards to witnesses, 19 Your Honor; however, I do still have arguments to 20 present with regards to my petition. 21 THE COURT: I will hear those arguments, but I 22 just wanted to make sure if you have any further 23 witnesses and if you rest with respect to witness 24 testimony. 25 MS. PENBERTHY: Yes, Your Honor. Ashley Overholt, NYACR, NYRCR Senior Court Reporter I'm sorry. 22 23 1 I rest with respect to witness testimony. 2 THE COURT: 3 MR. OSTROWSKI: 4 5 All right. Mr. Ostrowski. Well, Judge, would it be an appropriate time to make some motions to dismiss? THE COURT: Well, I mean -- let me just -- in 6 terms of procedure, I will certainly listen to any 7 motions to dismiss, but I will -- I'm not going to grant 8 them here today. 9 dismiss, it will be included in a written decision, If I am inclined to grant a motion to 10 which you will subsequently receive some time next week. 11 I'll certainly hear them, but what I would like to do is 12 get rid of the witness testimony and hear any arguments 13 about the merits of the petition. 14 MR. OSTROWSKI: We have one possible witness, 15 Your Honor, but that witness might be mooted depending 16 on, I think, the key issue here is the issue of the 17 printed signatures, which, without which there's not 18 enough signatures to disqualify Mr. Quintana, so my 19 understanding is the Court had indicated that it wanted 20 live testimony on the printed signatures and there's not 21 any, but beyond that, we're prepared to do some 22 line-by-line analysis, if it gets to that point, but my 23 understanding is that although there might have been 45 24 signatures objected to, I don't think there was 25 documentation provided in the FOILs that Mr. Toth Ashley Overholt, NYACR, NYRCR Senior Court Reporter 24 1 provided to counsel. 2 that were challenged, and we don't concede any of those 3 30, but I think the math isn't there on the printed 4 signatures with -- certainly, if the requirement is to 5 produce those voters, but even if there's no requirement 6 to produce the voters, I think there's only 30 being 7 challenged. THE COURT: 8 9 I think there was really only 30 Well, my question, again, is do you have any witnesses that you would like to testify. 10 If you don't, that's fine. 11 argument stage of the hearing, but I wanted to give you 12 the opportunity -- and Mr. Matteliano the opportunity to 13 have any witnesses testify. 14 MR. MATTELIANO: 15 MR. OSTROWSKI: 16 MR. MATTELIANO: I'll proceed into the Yes, I believe -I -Judge, could we have a 17 two-minute break, so I could talk to counsel on the 18 witness? 19 THE COURT: I'm afraid to lose -- to get off 20 the line, because we'll start over again, but I'll 21 certainly -- 22 MR. MATTELIANO: We'll stay on. 23 talk in a separate room on a cell phone. 24 don't have -- 25 MR. OSTROWSKI: I'll just go That's all. If I can have a two-minute Ashley Overholt, NYACR, NYRCR Senior Court Reporter I 25 1 break to talk to Mr. Matteliano on the witness issue. 2 THE COURT: 3 MR. MATTELIANO: 4 MR. OSTROWSKI: 5 (Whereupon, a recess was taken at 11:07 a.m. and 6 Let's take five minutes. Thank you, Your Honor. Thank you. proceedings recommenced at 11:11 a.m.) THE COURT: 7 Back on the record. All right. 8 think the question we left off, Mr. Ostrowski and 9 Mr. Matteliano, is if you have any witnesses to call. MR. MATTELIANO: 10 11 THE COURT: 13 MR. QUINTANA: 14 THE COURT: 16 17 All right. ROBERT QUINTANA, called herein as a witness, having duly affirmed, testified as follows: 19 THE CLERK: 22 23 24 25 Yes. clerk. THE WITNESS: 21 Mr. Quintana? Please listen to the words of the 18 20 We do want to call the candidate, Mr. Quintana. 12 15 Yes. I Yes. Please state your name for the record, spelling your first and last names. THE WITNESS: Robert Quintana, Q-U-I-N-T-A-N-A. THE CLERK: And please state the city, town, or village where you reside. THE WITNESS: Buffalo, New York. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - DIRECT - MATTELIANO - QUINTANA 1 THE CLERK: Thank you. 2 THE COURT: Your witness. 3 MR. MATTELIANO: 4 5 6 Thank you. DIRECT EXAMINATION BY MR. MATTELIANO: Q Mr. Quintana, you are one of the respondents in this petition; is that correct, sir? 7 A That's correct. 8 Q You're a candidate for the Assembly District 149 seat 9 in the State of New York; is that correct? 10 A That is correct. 11 Q There's been some testimony by witnesses with -- a 12 name of Kayla Sabala came up. 13 A That is my daughter. 14 Q All right. 15 26 Who is she to you, sir? Sir, did you ask or have any knowledge that your daughter was circulating petitions for you? 16 A Absolutely not. 17 Q And based on your knowledge and experience how are 18 people who carry petitions secured, at least in this area, and 19 specifically in or about this election cycle? 20 A When you mean secured -- 21 Q Obtained to do petitions. 22 23 Who does that around here? Who gets these people? A Oh, in regards to the petitions that were circulated 24 for me, I had no involvement in it, because there was a 25 candidate who was running for congressional seat. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - DIRECT - MATTELIANO - QUINTANA 27 1 Q What's his or her name? 2 A Eddie Egriu. 3 Q Can you spell that for the court reporter, the last 4 name? 5 A I think it's spelled E-G-R-I -- E-G-R-I-U, and so 6 Mr. Egriu's campaign had volunteered to do his petition as a 7 congressional candidate and carry petitions with my name on 8 them. 9 They would do all the recruiting, all the organizing, whether They would coordinate everything from beginning to end. 10 they were sending people to different locations, they would 11 collect those petitions. 12 kept my distance entirely from beginning to end with 13 petitions. 14 Q Okay. I had no involvement with it. I With respect to the two witnesses that 15 testified for petitioner, did you have any knowledge at any 16 time other than after this petition was filed regarding the 17 statements made by those witnesses regarding denial that it 18 was their signatures? 19 A I had no knowledge about it. 20 MR. MATTELIANO: 21 THE COURT: 22 Thank you. Any other questions, there, Mr. Ostrowski or Mr. Matteliano? 23 MR. MATTELIANO: 24 MR. OSTROWSKI: 25 THE COURT: I have none at this time. None. Ms. Penberthy? Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - CROSS - PENBERTHY - QUINTANA 1 2 3 28 CROSS-EXAMINATION BY MS. PENBERTHY: Q Mr. Quintana, did you review your designating petition before it was submitted to the Board of Elections? 4 A No. 5 Q Have you ever reviewed your own designating petition? MR. MATTELIANO: 6 7 other candidacy? 9 10 11 12 For this or any I'm not clear. MS. PENBERTHY: 8 Objection. I'm sorry. I'll rephrase that. BY MS. PENBERTHY: Q Have you reviewed the designating petition for your candidacy here for 149 in 2020? 13 A After they were filed or before they were filed? 14 Q At any time. 15 A The only time I reviewed the petitions was initially, 16 when I -- a blank copy was given to me to confirm that that 17 was my legal name and address, and the last time I looked at 18 the petitions was when a copy of what was submitted to the 19 Board of Elections was given to me after they were submitted 20 to the Board of Elections. 21 Q Okay. So you have had an opportunity to review the 22 designating petition after it was submitted to the Board of 23 Elections? 24 25 A No. I have a copy. sitting in my garage. I never reviewed it. I never looked at them. Ashley Overholt, NYACR, NYRCR Senior Court Reporter It's still 4/24/20 - CROSS - PENBERTHY - QUINTANA 1 2 Q Okay. 29 So you've never looked at your own designating petition for your candidacy in the 149th for 2020? 3 A Nope. Absolutely not. For -- that's it. Yup. 4 Q And just so the record is clear, you have never 5 reviewed the designating petition for your candidacy for 6 Assembly District 149 in 2020, correct? 7 A That is correct. 8 Q And Kayla Sabala is your daughter, correct? 9 A That is correct. 10 Q Did she formerly go by the name Kayla Quintana? 11 A Before she -- before she was married she did, yes. 12 Q Okay. 13 14 Have you been to Ms. Sabala's house on 182 15th Street before? A Before when? I'm -- I'm lost. 15 when she -- at any time? 16 first day she moved in. 17 18 Q The had with Ms. Sabala? MR. OSTROWSKI: Objection. Attorney-client privilege. MS. PENBERTHY: 21 22 When she moved in, sure. Are you aware of any conversations Mr. Ostrowski has 19 20 Sure. I was at her address It's actually -- Ms. Sabala is not your client. THE COURT: 23 Well, wait a minute. 24 minute. I don't know if that goes to the 25 attorney-client privilege. Ashley Overholt, NYACR, NYRCR Senior Court Reporter Wait a 4/24/20 - CROSS - PENBERTHY - QUINTANA 1 2 The question is, are you aware that they had any conversations? 3 THE WITNESS: 4 MR. MATTELIANO: 5 MR. OSTROWSKI: 6 THE COURT: If he knew from other than Overruled. THE WITNESS: You can answer the Can you repeat the question? MR. MATTELIANO: 10 Can we have it read back, please? 12 13 Hearsay. question. 9 11 Objection. conversations with me, I guess I wouldn't object. 7 8 Not aware. (Whereupon, the above-requested testimony was read back by the court reporter.) THE WITNESS: 14 I don't know. Other than 15 Mr. Ostrowski asking me for her phone number at one 16 time, that's all I -- 17 THE COURT: 18 MS. PENBERTHY: 19 Next question. presently married? 20 THE WITNESS: 21 MS. PENBERTHY: 22 THE WITNESS: 23 MR. MATTELIANO: 24 THE COURT: 25 Mr. Quintana, are you Yes. And who are you married to? Happily married. Objection. Overruled. Relevance. Answer the question, sir. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 30 4/24/20 - CROSS - PENBERTHY - QUINTANA THE WITNESS: 1 2 Oh, I'm sorry. I -- I'm married to Lillian Quintana. MS. PENBERTHY: 3 Isn't it correct that Lillian 4 Quintana similarly collected signatures for you for your 5 designating petition for your candidacy in the 149th 6 assembly district in 2020? 7 MR. MATTELIANO: 8 THE COURT: 9 10 11 12 Objection. Overruled. Relevance. Answer the question, please. THE WITNESS: Yes. I -- I understand that she did end up carrying petitions. MS. PENBERTHY: Did you have any conversations 13 with your wife about her collecting signatures on your 14 behalf for your candidacy? 15 MR. MATTELIANO: 16 MR. OSTROWSKI: Objection. 17 MS. PENBERTHY: I'm not getting into Objection. 18 specifics, Your Honor. 19 there was ever any conversations. Privileged. Privileged. I'm just asking the question if 20 MR. MATTELIANO: 21 THE COURT: 22 MR. MATTELIANO: 23 THE COURT: Same objection. I don't know if -Same objection. I don't know if the marital 24 privilege exists here. I mean, I think the question 25 was, did you ever talk to your wife about circulating Ashley Overholt, NYACR, NYRCR Senior Court Reporter 31 4/24/20 - CROSS - PENBERTHY - QUINTANA 1 petitions. 2 such an innocuous question, so overruled. 4 5 I don't know if the privilege would apply to THE WITNESS: 3 No. BY MS. PENBERTHY: Q Did you ever talk to your daughter about your 6 daughter's participation in your candidacy for the 149th 7 assembly seat? 8 9 32 A About my candidacy, not about petitions. When I had a family meeting, before I declared as a candidate I met with my 10 entire family to gather whether they supported me running for 11 public office again, and whether they were all in support or 12 not in support, as a family would do, knowing that there are 13 politics that are not nice in this, so I had a family meeting 14 to discuss way before I declared candidacy to avoid situations 15 just as this, from my family being involved. 16 17 18 Q So was this family meeting prior to the circulation of petitions beginning in late February 2020? A Yes. It was way before the petitions. It was 19 in -- early in January, around Christmas, when we gathered for 20 Christmas gathering. 21 Q At any time after your family meeting did you have an 22 opportunity to discuss with your wife her participation in 23 your campaign for 149th assembly district? 24 MR. MATTELIANO: 25 THE COURT: Objection. Overruled. You can answer the Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4/24/20 - CROSS - PENBERTHY - QUINTANA 1 33 question. THE WITNESS: 2 Nope. Other than just saying to 3 her that I was still considering running, but I didn't 4 know if I was going to make my final decision yet. MS. PENBERTHY: 5 And have you ever had an 6 opportunity to talk to Kayla Sabala, your daughter, 7 since your family meeting around Christmastime about 8 your candidacy for the 149th assembly district? THE WITNESS: 9 MS. PENBERTHY: 10 11 Nope. have. 12 THE COURT: 13 MR. MATTELIANO: 14 THE COURT: 15 Any other witnesses? 16 MR. TOTH: 17 Any redirect? None necessary, no. Thank you, Mr. Quintana. Your Honor, can I just jump in real quick, a housekeeping issuing I'd like on the record. THE COURT: 18 19 That's all the questions I I'm sorry. Mr. Toth, do you have any questions? MR. TOTH: 20 I don't have any questions. I just 21 want the record to be clear that if I'm understanding 22 what's going on, is that Mr. Quintana is with 23 Mr. Matteliano in Mr. Matteliano's office, and we can't 24 see them. 25 times, but I'm not sure that that's -- I -- I think the You know, I understand that this is difficult Ashley Overholt, NYACR, NYRCR Senior Court Reporter 34 1 record should reflect that, that we cannot see either 2 Mr. Matteliano or Mr. Quintana. MR. MATTELIANO: 3 That's all. I said that in the beginning. 4 It was on the record in the beginning, and I made it 5 absolutely clear. 6 MR. TOTH: 7 THE COURT: 8 9 Okay. I hope you're sitting six feet apart. MR. MATTELIANO: 10 THE WITNESS: 11 MR. MATTELIANO: 12 THE COURT: 13 Four. Mr. Matteliano or Mr. Ostrowski? MR. OSTROWSKI: 15 MR. MATTELIANO: 16 THE COURT: 19 MR. MATTELIANO: 20 THE COURT: Yes, Your Honor. Yes, Your Honor. Mr. Toth, do you have any witnesses? 22 MR. TOTH: 23 THE COURT: 25 No, sir. least, witness testimony? MR. OSTROWSKI: 24 No, Your Honor. Do you rest with respect to, at 18 21 Five to six. Any other witnesses, 14 17 I think -- No, Your Honor. And do you rest with respect to witness testimony? MR. TOTH: Yes. We take no position with Ashley Overholt, NYACR, NYRCR Senior Court Reporter 35 1 2 regard to allegations of fraud. THE COURT: Okay. What I will do now is 3 entertain any motions that are to be made. 4 with the respondents and then we'll proceed to 5 Ms. Penberthy. 6 MR. MATTELIANO: 7 MR. OSTROWSKI: 8 MR. MATTELIANO: 9 MR. OSTROWSKI: We'll start Want me to go first? I -Sorry, Jim. Go ahead. We divided it up. I think 10 Mr. Matteliano will address the fraud issue, and I will 11 take a couple of other issues that I've worked on. 12 Mr. Matteliano. 13 MR. MATTELIANO: 14 MR. OSTROWSKI: 15 MR. MATTELIANO: You want me to go first, Jim? Yes, sir. Okay. Judge and counsel, we 16 have briefed our position with respect to the 17 allegations -- general allegations of fraud which, 18 apparently, have been -- other than the testimony 19 concerning Ms. Sabala, have not been stressed by 20 petitioner's counsel. 21 eliminated. 22 We deem those to be waived and To the extent, however, that it could be argued 23 that they're still in play, the -- the law in this 24 state, and especially the Fourth Department, is that in 25 a -- in an Election Law matter, especially, the Court Ashley Overholt, NYACR, NYRCR Senior Court Reporter 36 1 and common sense require due to the short timeframes 2 involved, that respondent be given notice, specific 3 notice of the purported objections or claims of the 4 petitioner. 5 I think it's more important here, during the time 6 period we're dealing with here, with the Covid disease, 7 and we have been given absolutely no specific 8 allegations, other than -- well, the two signatures that 9 were discussed today by counsel and by virtue of written 10 submission which were just, as I said, amorphous at 11 best, and in fact, petitioner's counsel said that the 12 fraud allegations will be reviewed by the Court or 13 remain to be discussed. 14 what you heard today about no more than two or -- or 15 possibly 29 signatures, and those assertions other than 16 that we got no notice of any claim of fraud, whatsoever, 17 that would even come close -- 18 THE COURT: 19 Well, there's nothing more than Can I interrupt you, Mr. Matteliano? 20 MR. MATTELIANO: 21 THE COURT: Yes. Let's just say, for argument's 22 sake, that the notice that has been given is that the 23 person who -- let's just say for the Gonzalezes, in 24 fact, they included an affidavit. 25 MR. MATTELIANO: Right. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 37 THE COURT: 1 So I think that would be 2 sufficient notice, but let's just say that the notice is 3 that their affidavit says that's not my signature. 4 other notice do you need to receive in order to be -- 5 MR. MATTELIANO: 6 THE COURT: 7 Well -- -- on notice of the specificity of the fraud allegations? MR. MATTELIANO: 8 9 What with respect to those two. -- Judge, I'm not debating You have them. That's 10 several signatures, at best. 11 nor can there be that -- as the case is so whole that 12 there's any permeation of fraud or that there's any 13 notice, whatsoever, of false -- of those allegations. 14 There's no allegations and You have to provide sufficient grounds, and if 15 there is other fraud we haven't seen it alleged or 16 established by any notice to us. 17 As the Fourth Department said in Levitt vs. 18 Mahoney, you need to give notice in order for the other 19 side, the respondents, to prepare a defense. 20 Further, the law is clear in New York based on the 21 CPLR and especially in Election Law cases, the 22 specificity required to allege fraud is a very onerous 23 burden. 24 25 Further, the burden is on petitioner to establish any alleged fraud. They have not done that, and even Ashley Overholt, NYACR, NYRCR Senior Court Reporter 38 1 assuming arguendo that the testimony of the two 2 witnesses called warrants that those -- those particular 3 signatures be struck, then so be it. 4 short -- and we believe, based upon the argument that 5 will be given by Mr. Ostrowski, that there's sufficient 6 signatures that would warrant the dismissal of the 7 petition, and it would keep Mr. Quintana on the ballot. 8 9 It's still well The Board of Elections so found he had sufficient signatures. They are certainly more versed in comparing 10 signatures, et cetera, than any of the attorneys here, 11 and I think great weight should be given to the fact 12 that there were sufficient signatures found and 13 petitioners have not met their burden to exclude a 14 sufficient number of signatures to grant their petition 15 in any form. 16 That's our position. We've cited other cases, Proskin and -- 17 P-R-O-S-K-I-N, and Belak, B-E-L-A-K, in our papers. 18 That is our position concerning general allegations of 19 fraud above the particularity that the Judge -- that you 20 noted, Judge, about the two live witnesses. 21 position. 22 THE COURT: 23 MR. OSTROWSKI: That's our Mr. Ostrowski? Three motions, Your Honor. 24 Very briefly, we reiterate our objection to service of 25 process. This case was filed late on -- I believe it Ashley Overholt, NYACR, NYRCR Senior Court Reporter 39 1 was April 2nd. The deadline is the 3rd. 2 Under the Court rulings interpreting the word 3 instituted -- and this drives all election lawyers 4 crazy, you have to file and serve within the deadline, 5 which was April 3rd, so basically, it was -- everything 6 is filed late. 7 the intricacies of the new filing system, but 8 the -- the -- the record of the case indicates that the 9 order was, quote, not filed until the 3rd. The order is signed late. I don't know It was 10 received before that, and I'm certainly going to make 11 that argument on behalf of my client, that the -- that 12 it was an unfiled order that was served, but the more 13 important part of the motion is serving Express mail 14 late in the day during a pandemic where lots of things 15 like the mail are interrupted is insufficient to give 16 notice within the statutory period, and it's in the 17 answer that, in fact, Mr. Quintana did not receive it 18 within the statutory period, and there's no proof to the 19 contrary, so that's our jurisdictional argument. 20 I want to make a very serious argument with respect 21 to what was mentioned in the verified answer, and I have 22 to say, I -- I borrowed this from a very good election 23 lawyer that I work with a lot and sometimes against, 24 that this executive order, which cut down the timeframe 25 for petitioning, is unconstitutional. I want to -- I'll Ashley Overholt, NYACR, NYRCR Senior Court Reporter 40 1 be very specific about it, because I was involved in 2 gathering petitions, and a bunch of us -- for one 3 candidate we were in court in Albany, and he had not 4 really gotten around to his petitions, and that was true 5 of a lot of candidates. 6 at the beginning of a crisis, but I think what's really 7 onerous about the governor's order -- and all good 8 intentions aside -- is that the order was issued -- it's 9 Executive Order 202.2, on March 14th, and that required The weather was bad. We were 10 all signatures to be done by March 17th at 5:00, and I 11 think that -- I want to tell you a little anecdote, Your 12 Honor. 13 candidates on the libertarian line, which I'm a member 14 of that party, and we were very tight, very short, and I 15 was down in South Buffalo. 16 the door. 17 realized, I'd forgotten to get my son to witness my 18 signature, so I'm racing home. 19 5:00. 20 On that morning I was out getting signatures for People were not answering People were declining to sign, and I He took his bike. I met him at Tops at To make -- I can understand shortening a period. I can 21 understand obviously he reduced the number of 22 signatures. 23 order, and I think it's a very serious Constitutional 24 issue -- 25 What's really onerous about the Judge's THE COURT: Well, wait a minute. Ashley Overholt, NYACR, NYRCR Senior Court Reporter Wait a 41 1 minute. Wait a minute. 2 any onerous order. This Judge never made I think you meant the governor. 3 MR. OSTROWSKI: 4 THE COURT: 5 Hold on. The governor. I want to be sure that the record is clear on that. MR. OSTROWSKI: 6 Absolutely clear, but really, 7 to issue that order just a few days and say you're done 8 on Monday at 5:00, which doesn't even give you the 9 after-dinner period, I think is very serious. 10 The third motion I would make is the -- based on 11 the math that we have now, that there being no live 12 testimony with respect -- with respect to printed 13 signatures, and there being no documentation provided, 14 at all, on, I think, about 14 of the signatures, I think 15 that even if the Court were to hold that the 29 16 signatures -- which is all the signatures that Kayla 17 Sabala gathered are invalidated, that's still not enough 18 to deprive the candidate of ballot status. 19 a motion to dismiss for lack of a prima facie case on 20 those three grounds. 21 THE COURT: 22 MS. PENBERTHY: 23 Ms. Penberthy. Your Honor, if I can first address Mr. Ostrowski's motion before making my own. THE COURT: 24 25 Thank you. I would make It's your time. Use it as you wish. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 42 MS. PENBERTHY: 1 Okay. I think Mr. Ostrowski 2 references, again, some days of filing that I just think 3 are inaccurate, so if I could just clear those up. 4 The petition at issue, the invalidation petition 5 was filed on April 2nd, 2020. 6 Honor was similarly signed on that exact same date 7 4/2/2020. THE COURT: 8 9 Actually, it was signed by Judge Marshall. MS. PENBERTHY: 10 11 The order signed by Your I'm sorry, Your Honor. I thought your signature was noted on the order. 12 Nonetheless, also signed on 4/2/2020, it also was 13 mailed to the respondents via Overnight mail that same 14 day, 4/2/2020, days earlier than what was prescribed in 15 the order. 16 I don't know where Mr. Ostrowski is getting that 17 4/3 date, but that's just inaccurate. 18 indicates all of these were filed on the 4/2 date, a day 19 earlier than required by statute. 20 The e-filing It is my understanding in looking at USPS records 21 that Respondent Quintana had elected to have his mail 22 held. 23 mail expedited, but it was overnight delivered to his 24 address per the requirements of the order to show cause. 25 Mr. Quintana was made aware of the objections filed Perhaps that is why Mr. Quintana didn't get his Ashley Overholt, NYACR, NYRCR Senior Court Reporter 43 1 by the objector, and counsel was present at that BOE 2 hearing, Your Honor -- after the 4/2 date. 3 The constitutional arguments Mr. Ostrowski brings 4 up similarly fail. While the gathering petition was 5 shortened because of this pandemic, Your Honor, the 6 amount of signatures required were drastically reduced. 7 In fact, Mr. Quintana had somehow miraculously collected 8 over 900 signatures to submit with regards to 9 this -- his candidacy. Granted, many of which were 10 ultimately determined invalid by the Board, he, 11 nonetheless, submitted well in excess of 900. 12 Further, to address Mr. Ostrowski's arguments, live 13 testimony is not required for the handprint objections 14 that are raised, nor is live testimony required for the 15 specific objections that have been raised. 16 Arguably, the only live testimony the Court would 17 be required to hear is that having to do with fraud, 18 which is why we did present witnesses for that, Your 19 Honor. 20 I would, further -- just to go into my own argument 21 for summary judgment here, Your Honor, it would appear 22 the testimony Mr. Quintana just elected to give, that 23 he, in fact, has testified he never reviewed his own 24 designating petition; therefore, our position is that 25 Respondent Quintana cannot now deny the existence of Ashley Overholt, NYACR, NYRCR Senior Court Reporter 44 1 fraud in his petition. He, to this date, has never 2 reviewed his petition. He cannot deny the existence of 3 fraud in his petition. It is clear from the testimony 4 today that fraud exists. 5 own daughter, Ms. Kayla Sabala. 6 As performed, in part, by his Moreover, having -- this having been the 7 candidate's own daughter, who not only fraudulently 8 obtained signatures on sheet 10 and sheet 16, but 9 undeniably, Your Honor, listed her own address on sheet 10 10 as the address where the fraudulent signatures were 11 collected. 12 It is clear, even withstanding a cursory review of 13 this petition the candidate is on constructive notice of 14 the fraud and, therefore, this permeates the entirety of 15 Mr. Quintana's designating petition, Your Honor. 16 THE COURT: 17 MS. PENBERTHY: 18 THE COURT: 19 MR. OSTROWSKI: 20 THE COURT: 21 MR. TOTH: Okay. That's all I have, Your Honor. Okay. Real -- Hold on. Hold on. Yeah, Your Honor. Mr. Toth. I have two 22 matters. So as you know, the -- the Board does not take 23 an active role in litigating fraud; however, given 24 Mr. Quintana's testimony about the coordination between 25 his petitioning effort and Emin Egriu, which is also, I Ashley Overholt, NYACR, NYRCR Senior Court Reporter 45 1 believe, in litigation, I pulled up the designating 2 petition for Emin Egriu and went through it. 3 able to find any witness statements from Kayla Sabala in 4 the Emin Egriu designating petition. 5 6 7 8 9 10 MR. OSTROWSKI: Your Honor. I was not I'm going to object to this, Mr. Toth is testifying. MR. TOTH: Well, all I'm saying is that if you'd like me to present that -MR. OSTROWSKI: THE COURT: After testimony -- Hold on. I -- I'm going to let 11 Mr. Toth speak, and I'll consider -- I'll consider it 12 when issuing the decision. 13 Go ahead, Mr. Toth. 14 MR. TOTH: I'm not testifying, Your Honor. If 15 Your Honor would like the designating petition, it can 16 be submitted. 17 not, I'm not making any claim or any argument. 18 presenting it. 19 that -- the Board of Elections to the litigants and to 20 the Court. 21 I think it's self-authenticating. If Your Honor doesn't want that designating petition, that's -- I'm not objecting. 23 providing that as information. 25 I'm just I view my role as presenting documents 22 24 If I'm just The one position I would take, substantively, is, I don't believe Mr. Ostrowski can attack the Ashley Overholt, NYACR, NYRCR Senior Court Reporter 46 1 constitutionality of the governor's action in an answer 2 to an Election Law proceeding. 3 the proper method by which you go after the governor's 4 action. 5 I don't think that is Last year we went through a very similar piece 6 of -- similar litigation, similar arguments raised by 7 Mr. Ostrowski, but in that case it was a direct action 8 against the state, which I think is probably the 9 appropriate way to -- 10 THE COURT: 11 MR. TOTH: What case was that? That was a case -- and I submitted 12 the -- I submitted the transcript in front of Judge 13 Furlong on that case -- 14 THE COURT: 15 MR. TOTH: Oh, right. -- to my answer. That was an 16 argument where Mr. Reese and Mr. Ostrowski argued that 17 reducing the signatures during the petitioning period 18 was unconstitutional, and that was found to be -- you 19 know, that argument was -- was rejected by Judge 20 Furlong, so -- but at least, procedurally, I think that 21 was the appropriate vehicle. 22 say that -- I don't think you can say the governor acted 23 unconstitutionally in an answer to an Election Law 24 proceeding. 25 object to that. I don't think you can just That, to me, seems improper, and I would That's it. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 47 THE COURT: 1 All right. Thank you. 2 Mr. Ostrowski and Mr. Matteliano, very briefly, anything 3 in reply? MR. OSTROWSKI: 4 Yes. Judge, we don't -- on 5 the service, we do concede that the Express mail was 6 mailed, but we don't concede that there was any stop 7 order. 8 9 10 11 I actually tried to contact the post office there, and you know, you're dealing with very difficult bureaucracy there, but we don't concede that at all. I'm not exactly sure what Mr. Toth was driving at, 12 but since I'm Eddie Egriu's attorney, I guess I can 13 indicate that if the Court wants testimony on the 14 coordination between the two campaigns, I could supply 15 witnesses, but just -- the first page of -- 16 THE COURT: 17 MR. OSTROWSKI: No need. -- Mr. Quintana's petition is 18 signed by Scott Wilson. 19 manager and signed the document -- filed a document 20 that's now in litigation before Judge Ward. 21 don't know where he's going with that, but I'm going to 22 let Mr. Matteliano respond to the other issues. 23 24 25 MR. MATTELIANO: He was Eddie Egriu's campaign I really Thank you. Judge, I -- I'm sitting here amazed that Mr. Toth has the temerity to tell this Court he takes no Ashley Overholt, NYACR, NYRCR Senior Court Reporter 48 1 position, yet, on his own -- or I don't know, maybe at 2 the direction of others, looks into matters that even 3 petitioner's counsel -- and makes scurrilous allegations 4 or attempts to inference whether his -- Mr. Quintana's 5 daughter carried petitions for the congressional 6 candidate, which she did not, and which he would have 7 put proof on, but it's irrelevant. 8 as just -- I don't know why that would be done, but 9 that's for the Court to determine. 10 It just strikes me In addition, I don't think it's his position that 11 he took no position whether or not we can make a 12 constitutional argument. 13 on appeal he would say we waived it, so you can't talk 14 out of both sides of your mouth in that regard. 15 my position there. 16 you. If we didn't make it, I'm sure I'll rest on that, Judge. 17 THE COURT: 18 MS. PENBERTHY: That's Thank Ms. Penberthy? I would just note, Your Honor, 19 that if Mr. Ostrowski is trying to move forward on his 20 constitutional argument, that the governor would have 21 needed to have been added as a necessary party. He did 22 not file a cross-petition to raise that issue. He just 23 simply filed an answer, so he cannot have that matter 24 heard before the Court. 25 MR. OSTROWSKI: Your Honor, just real quick. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 49 1 THE COURT: 2 MR. OSTROWSKI: 3 THE COURT: 4 MR. OSTROWSKI: 5 THE COURT: 6 MR. TOTH: Hold on. I'm sorry. I have to go to Mr. Toth. I'm sorry. Mr. Toth? Just a -- briefly. So the Board 7 takes no position with respect to fraud. I take no 8 position with respect to fraud. 9 evidence to the Court that there was -- that all of the Mr. Quintana presented 10 petitioning done was coordinated with another campaign 11 that is also in litigation. 12 have somewhat of an affirmative obligation to present 13 documents that are at the Board, whether they mean 14 anything I -- I'm not taking any position, so I don't 15 know what was so scurrilous, and we take no position 16 with respect to fraud, but Mr. Ostrowski raised 17 constitutionality in his answer and I think it is 18 appropriate for the Board to oppose the application of a 19 constitutional claim that would necessarily implicate 20 every other set of designating petitions that my clients 21 are reviewing. 22 I don't think I did. 23 THE COURT: I -- I think -- I think I I don't think I did anything scurrilous. I didn't mean to. Well, first of all, I want to 24 thank everybody for their efforts here today. 25 this hearing under very unusual circumstances, and Ashley Overholt, NYACR, NYRCR Senior Court Reporter We did 50 1 though we had some technological issues at the 2 beginning, I want to thank everybody for their best 3 efforts. 4 for that. 5 take the motions to dismiss, as well as Ms. Penberthy's 6 motion for summary judgment, I'll keep them under 7 advisement and deem them submitted. 8 It's certainly appreciated, and I applaud you I'm going to deem the matter submitted. I'll The Court will note that there is a filing deadline 9 of Monday for any appeal before the Appellate Division, 10 so I will hand -- I will provide you with a decision no 11 later than tomorrow. That being said -- 12 MR. MATTELIANO: 13 THE COURT: By e-mail, Judge? Yes. I'll provide everybody with 14 a copy of the decision, and I will include in that order 15 what the certified record on appeal will be so that 16 people do not have to go around trying to get -- I 17 forget the statement, I think it's a 22-21 statement. 18 Don't quote me on that. 19 provide one less thing for you all to have to do. And I think that that will 20 This is what I'm going to include as part of the 21 record, the order to show cause that was filed by the 22 petitioner, the verified answer and objections and 23 points of law filed by the Board of Elections. I will 24 include the verified answer from Mr. Quintana. I will 25 include the letter submission from Ms. Penberthy dated Ashley Overholt, NYACR, NYRCR Senior Court Reporter 51 1 April 16th, 2020. 2 affirmation dated April 6, 2020. 3 Board of Elections April 20th submission, and I will 4 also include the April 22nd memorandum I received from 5 Mr. Ostrowski and Mr. Matteliano. 6 7 I will also include her reply I will include the Does anything else need to be included in that record? 8 MR. MATTELIANO: 9 MR. OSTROWSKI: The cards that we had, Jim? Yes, Your Honor. A couple 10 quick points. 11 go and point the Court's attention to some of the 12 documentation which I think favors us. 13 I could do that in an e-mail to save time. 14 I was anticipating an opportunity to just I don't know if I mean, basically just to tell you what I have, I 15 would point out in the FOIL request which was provided 16 by Mr. Toth and sent to the Court, I was going to draw 17 the Court's attention to 10 voters who I think it's 18 pretty clear that they are genuine based on those 19 records, and also with respect to the original FOIL 20 records that petitioner is relying on, it's going to 21 indicate three voters who I think basically their 22 alleged printing is exactly what they signed, quote. 23 And then with respect to the line by lines, I just 24 had 11 instances where I believe that the records filed 25 by Mr. Toth actually support our position, Judge, so I'm Ashley Overholt, NYACR, NYRCR Senior Court Reporter 52 1 a little concerned about how to get those before the 2 Court, maybe just a quick e-mail to the Court and 3 counsel. I could do it within an hour. 4 And then -- and I would like that 59-page FOIL 5 response that Mr. Toth provided in the record, as well. 6 MR. TOTH: 7 THE COURT: 8 9 10 11 I have no objection to that. Without any objection I will include as part of the record the two FOIL responses. If somebody could just provide me with the dates of those, I would appreciate it. MR. OSTROWSKI: I think Mr. Toth provided 12 Ms. Penberthy with two separate very large documents, 13 and then there's a third that he supplied to me that 14 I -- I didn't file it because of redaction issues, and I 15 didn't have time to redact anything, so -- 16 THE COURT: If I could -- if somebody could 17 just e-mail me the dates of the FOIL request 18 submissions, I'll include them as part of the record. 19 MR. OSTROWSKI: And Judge, can't I submit an 20 e-mail, or I could simply read it onto the record in 21 about three or four minutes the specific voters I would 22 call your attention to if you get to that stage of 23 reviewing individual cards? 24 25 THE COURT: I don't think I -- I don't think it would be necessary. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 53 1 MR. OSTROWSKI: 2 THE COURT: Thank you, Your Honor. All right. If somebody would just 3 shoot me an e-mail with the dates of the FOIL 4 submissions, I would appreciate it. MS. PENBERTHY: 5 Your Honor, could I, 6 similarly, like Mr. Ostrowski, just state for the record 7 my objection to the waiver of our line-by-line 8 objections that we indicated in our filings, those 99 9 lines in question? 10 MR. OSTROWSKI: I didn't hear that, I'm sorry. 11 MS. PENBERTHY: I just wanted to state for the 12 record just my objection to the Court waiving the review 13 of the line-by-line 99 objections. THE COURT: 14 If you want to -- if both of you 15 want to submit something in writing by the close of 16 business today, I'll include that as part of the record. 17 MR. OSTROWSKI: Thank you, Your Honor. 18 MS. PENBERTHY: Thank you. 19 THE COURT: So you guys will get a decision 20 tomorrow from the Court by e-mail. 21 e-signature and a date on it, and then we'll have to 22 have it uploaded on Monday, but if there's going to be 23 an appeal taken from that, your deadline is Monday, 24 so -- 25 MR. TOTH: It will have an And then just in terms of the Court Ashley Overholt, NYACR, NYRCR Senior Court Reporter 54 1 transcript, Ashley, how will we get that? 2 (Off the record.) 3 THE COURT: 4 Anything else we need to put on the record? 5 MR. TOTH: 6 THE COURT: 7 MS. PENBERTHY: No, Your Honor. 8 MR. OSTROWSKI: One quick thing, Judge, I did 9 Sorry, Your Honor. Ms. Penberthy? forget, because I have five cases going on, I did notify 10 the attorney general that we were challenging, and 11 I -- I will upload that letter onto the Court file and I 12 will e-mail it to the Court. 13 hardly ever get involved in these things, but they are 14 on notice pursuant to Executive Law 71. 15 THE COURT: 16 MR. OSTROWSKI: 17 THE COURT: 18 They're on notice. They Okay. That's all I have. All right. Thank you. All right. Off the record. 19 (Proceedings concluded at 11:55 a.m.) 20 I hereby certify that the foregoing is a true and accurate 21 transcription of the proceeding. 22 23 24 ___________________________ ASHLEY OVERHOLT, NYACR, NYRCR SENIOR COURT REPORTER 25 Ashley Overholt, NYACR, NYRCR Senior Court Reporter