State judge finds no evidence of fraud for Clarkstown Democrats as alleged

NEW CITY − A state judge on Friday found no evidence to support Republican claims of fraud involving ballot petitions for Clarkstown Democratic candidates for town and county office.

The Republican complaint argued four actions: fraud; the board's failure to preserve the petitions with bipartisan security; the petitions were not timely filed; and the petitions were fatally flawed.

The complaint claimed ballot petitions for the Democratic and Working Families lines were filed, pulled back and resubmitted to fix errors on April 4.

After reviewing court papers and hearing testimony, Justice David Zuckerman ruled the GOP efforts to knock the Democrats off the ballot fell far short of showing fraud. He heard testimony from the commissioners and some of the candidates on April 25 and 26.

Ruling: Judge dismisses GOP claims of petition fraud

Lawsuit: Republicans look to oust Clarkstown Democrats from ballot

Redistricting: Appeals panel rejects challenge to Rockland's redistricting map

In an ironic twist, after the Republicans' failed attempt to knock the Democrats off the ballot, Supreme Court Justice Paul Marx's separate ruling on Friday ordered that the Board of Elections not place the names of GOP Chairman Lawrence Garvey and Clarkstown Justice Scott Ugell on the primary ballot for town supervisor.

Ruling: Judge Marx prohibits the names of Garvey and Ugell on the primary ballot for supervisor

And in a third decision, Justice Amy Puerto banned Clarkstown Supervisor George Hoehmann's name from the primary ballot. She cited her earlier ruling upholding Clarkstown's term limits law. The law prohibits Hoehmann from running in 2023 for supervisor. He's appealing her decision.

The decisions leave Democrat Justin Sweet as the sole candidate at the moment for Clarkstown supervisor in the November election.

In the case before Zuckerman, the GOP complaint claimed the election board's Democratic commissioners improperly altered the designation petitions with the candidates and then resubmitted them after the daily 5 p.m. deadline.

"The petition is devoid of any detail of fraud," Zuckerman wrote in his 20-page decision. "To the contrary, at best, it merely contained vague unsupported allegations that designating petitions may have been returned to candidates after filing. In sum, the petition does not contain the requisite specificity to support fraud allegations.

"Based on the credible testimony elicited at the hearing, petitioners have completely failed in their burden of demonstrating, by clear and convincing evidence, either that the entire petition is permeated with fraud, or that a specific candidate is, or the candidates collectively are, chargeable with knowledge of the fraud," the judge wrote.

As for Deputy Democratic Commissioner Michelle Reilly restamping the petition as submitted after meeting with candidates, Zuckerman dismissed her actions as "a matter of rote and of little consequence."

Zuckerman refused to sanction the Republicans and have them pay legal fees for the case.

The Democrats and their attorney had denied the allegations as frivolous and called the legal action an attempt to clear the ballot of Democrats for Republicans to run without opposition.

The Board of Elections commissioners, Democrat Kathleen Pietanza and Republican Patricia Giblin, declined to comment.

Republican lawsuit lays out 'fraud'

The Republican legal action argued the altering of a petition violates the law and "that acts constituting criminal violations constitute a civil fraud sufficient to invalidate a petition under the terms of under Election Law."

"Altering a document after it has been filed with the Board of Elections, a public agency, is a violation of penal law .... falsifying a business record in the first degree and additionally a violation of election law ... conspiracy to promote or prevent an election." the legal action stated.

The legal action contends the designating petitions are fatally flawed. The petitions, among other lawsuit claims, were filed after the close of business and lacked bipartisan custody of the petition.

The Rockland Democratic Party chairman and legal counsel dismissed the allegations as an attempt to remove Democrats from the ballot and eliminate competitive elections. The legal action was filed by Garvey and the Republican candidates for town offices and Legislature.

"A brief review of the filing suggests these are desperate and unsubstantiated claims made by the GOP county chairman, who is desperate to hold on to the piggy bank he has turned Clarkstown Town Hall into," Democratic Party Chairman Schenley Vital said. "I am confident the petition volumes submitted to the Board of Elections will survive legal challenges."

Joining Garvey, a candidate for Clarkstown supervisor, in the lawsuit were Lauren Wohl for town clerk; attorney Paul Chiaramonte; Kevin Hobbs for judge; Highways Superintendent Robert Milone; Mark Woods; Councilmen Michael Graziano and Donald Franchino; council candidate Daniel Caprara; Legislature candidate Ariel Dahan; and Legislator James Foley.

The legal action challenges the petitions for Sweet; Jeffrey Greenberg for town clerk; incumbent justices Howard Gerber and David Ascher; Councilman Patrick Carroll; and Legislature candidate Jesse Malowitz.

Letter: Republicans' lawyer makes his case to the judge

Garvey released attorney Adam Fusco's closing statement in the case heard by Zuckerman. Fusco argued, in part, that the Democratic commissioner and her staff failed to act in conjunction with the Republican staff, as required.

"Since the evidence herein shows that after filing, the subject designating petitions remained in the complete and total control of the Respondent Democratic Commissioner, her staff and select candidates, an irregularity was established, thereby shifting the burden of proof to the Respondents to disprove the adverse inference of fraud," he said. "Such an adverse inference of fraud was not overcome by the Respondents."

Democrats: Attorney for the Democrats files response

Attorney Daniel Szalkiewicz of Manhattan, representing the Democrats, dismissed the GOP claims and said the judge saw right through the claims. He challenged the allegations of fraud as lacking evidence and the petition is an improper joinder of multiple unrelated parties and proceedings.

"This was nothing more than an attempt to smear the good name of the Democratic commissioner who has spent almost 30 years in service at the Board of Elections with an unblemished record," Szalkiewicz said about Pietanza.

He said Carroll and Sweet did nothing wrong, yet they were forced to defend against this frivolous lawsuit.

The judges handling election cases are under the direction to file their decision by Friday to allow the Appellate Division adequate time to hear appeals and make decisions by May 10.

Steve Lieberman covers government, breaking news, courts, police, and investigations. Reach him at slieberm@lohud.com. Twitter: @lohudlegal.

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This article originally appeared on Rockland/Westchester Journal News: NY elections: No evidence of fraud for Clarkstown Democrats as alleged