To be Argued by: Ezra B. Glaser Time requested: 15 minutes APPELLATE DIVISION OF THE SUPREME COURT SECOND JUDICIAL DEPARTMENT -----------------------------------------------------------------: In the Matter of the Application of SIMCHA FELDER, Petitioner-Appellant, – against – DAVID STOROBIN, Respondent-Respondent, - AND - THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK; Respondent- Respondent, for an Order, Pursuant to Article 16 of the Election Law Denying the Invalidity of a Designating Petition. -----------------------------------------------------------------: Docket #: 2012-07521 County Clerk’s Index #: 700013/2012 RESPONDENT-RESPONDENT DAVID STOROBIN’S BRIEF IN OPPOSITION AND IN SUPPORT OF CROSS-APPEAL Dated: New York, New York August 29, 2012 By: ___________________________ Ezra B. Glaser, Esq. CONDE & GLASER, LLP Attorneys for Respondent-Respondent DAVID STOROBIN 305 Broadway, Suite 801 New York, New York 10007
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Respondent-Respondent David Storobin (hereinafter, “Respondent
Storobin” or Senator Storobin), a Russian émigré, was elected State Senator of the
17th Senate District in Brooklyn on March 20, 2012. Senator Storobin arrived from
the Soviet Union in 1991 when he was twelve years old and is the first Russian-
speaking elected official to hold office in the State of New York. Respondent
Storobin won his election in an extraordinary upset of the Brooklyn political
machinery, winning his election by 13 votes. As is the case with this election law
proceeding, his previous opponent in a special election cried fraud and instituted a
proceeding after the election was over (which was also was found to have no merit
by Justice Martin).
Respondent Storobin, a candidate for the Republican Party nomination for
New York State Senate in the 17th
Senate District (the seat he presently holds),
submits this Brief in opposition to the Appeal filed by Petitioner-Appellant Felder,
the Democratic candidate for State Senate in the 17th Senate District from the
Order of the Supreme Court, Kings County (Martin, J.) of August 13, 2012,
dismissing the Petitioner-Appellant’s Petition to Invalidate. This Brief is further
being submitted in support of the Cross-Appeal filed by the Respondent to the
2
Order of Justice Larry D. Martin, dated August 10, 2012, denying Respondent’s
Motion to Dismiss this proceeding prior to the trial in this matter.1
The Storobin Petition contained 2,054 signatures, of which, 1457 were found
to be valid by the Board of Elections (457 more than were required to make a valid
and effective nomination). The within proceeding turned on whether Respondent
Storobin committed fraud in the collection of six specific signatures, and
specifically, whether he had merely made a careless mistakes as to one signature
underneath which he had printed in another person’s name. The hearing court
decided correctly after three days of testimony that the Respondent had indeed
been careless and made a mistake with regard to the one signature, while rejecting
the testimony of a forensic document examiner as to the five others. Taken at face
value, Storobin’s testimony as to how the mistakes were made was credible and
while the Petitioner-Appellant’s allegations of fraud were unsubstantiated. The
trial court further determined that Petitioner-Appellant did not prove by clear and
convincing evidence that Respondent Storobin’s designating petition was the
1 It is to be noted that the papers were filed as a “Notice of Appeal” based on the fact that
Petitioner-Appellant was appealing the final order of the court, dated August 13, 2012 dismissing
the Petition, while Respondent was appealing the order denying Petitioner’s motion to dismiss,
dated August 10, 2012 - which could not be filed with the County Clerk’s office as a Cross-
Appeal. However, both Petitioner-Appellant and Respondent, with the permission of the court,
agreed that the motion would be treated as a Cross-Appeal, and would be treated in the
Petitioner-Appellant’s Brief.
3
subject of candidate fraud or otherwise “permeated with fraud,” and found the
testimony of Petitioner-Appellant’s handwriting to be unconvincing.
4
Questions Presented
Question 1. Was the testimony of Respondent, Storobin, Michail Issak, and other
witnesses sufficiently credible to support the Trial Court’s determination that no
fraud was committed with respect to the collection of the Michail Issak signature
and the placement of Hilda Danger’s printed name underneath said signature?
Answer 1. The Trial court determined that there was credible evidence to
support a finding that no fraud was committed by Respondent Storobin.
Question 2. Did the Trial court exercise sound discretion and correctly find that
Petitioner-Appelant’s forensic document examiner’s testimony was insufficient to
demonstrate by clear and convincing evidence that the signatures at issue were
fraudulently obtained?
Answer 2. The Trial court found correctly found that Mr. Luber’s testimony was
insufficient.
Question 3. Did the Court exercise sound discretion when it held that Respondent
Storobin’s testimony on the issues before it, including the issue as to whether he
5
fraudulently collected certain signatures or otherwise had knowledge of fraud in
his designating petition, was credible?
Answer 3. The Trial court exercised sound discretion in finding that Respondent
Storobin was credible with respect to the issues before it.
Question 4. Did the Trial court correctly exclude evidence and testimony with
regard to additional signatures not previously particularized in the pleadings?
Answer 4. The Trial Court correctly excluded the additional signatures, as there
was no notice to the Respondent within the requisite time frame pursuant to CPLR
§3016 or the rules of the Special Election Part.
Question 5. Should this matter have been dismissed by the court prior to trial for
petitioner’s failure to state the fraud allegations with specificity?
Answer 5. The Court below incorrectly decided “no.”
6
Statement of Facts
A. Introduction
On July 12, 2012, a petition containing 2,054 signatures2 was filed with the
New York City Board of Elections designating Respondent Storobin as a candidate
for the Republican party nomination for the public office of New York State
Senator for the 17th Senate District, in the Republican primary election to be held
on September 13, 2012. Should he gain the nomination of the Republican Party,
Senator Storobin will be a candidate in the general election to be held on
November 6, 2012 (hereinafter, the “Storobin Petition”).
After this filing, general objections and specific objections were filed with
the Board of Election by citizen-objector Theodor Ditchek on behalf of Democratic
Candidate Simcha Felder, which were ultimately rejected by the Board of
Elections as a prima facie matter for failure to file proof of service.
On July 24, 2012, the within action was brought by Order to Show Cause in
the Supreme Court as a Petition to Invalidate the designating petition of David
Storobin as an Election Law Proceeding pursuant to Article 16 of the Election
Law, wherein the Petitioner-Appellant, Felder, claimed to be a “Candidate
2 After hearing oral argument on the exceptions, the court modified the referee’s
report to reduce the number of valid signatures in respondent’s designating petition
to 1,457 valid signatures. As modified, the referee’s report was confirmed.
7
Aggrieved.” The Petition to Invalidate made various boilerplate claims of fraud –
including fraudulent conduct by Respondent Storobin in his capacity as a
subscribing witness, knowledge of fraud within the Petition and “permeation of
fraud” in the attempt to invalidate the Respondent’s designating petition.
The Respondent thereafter initiated a Petition to Validate by Order to Show
Cause, which was filed with the court on July 25, 2012, and duly served upon the
citizen objector, Theodor Ditchek (prior to the prima facie ruling on the part of the
Board of Elections) claiming that the designating petition of Senator Storobin was
in all respects proper and valid. An Answer to the Petition to Invalidate was also
timely served and filed with the court on the return date prior to the calendar call.
Within said Answer, the Respondent alleged as an affirmative defense that the
proceeding should be dismissed on the ground that the Petition served on July 24,
2012 did not allege fraud with particularity, and that the alleged defect could not be
cured nunc pro tunc. The answer also contained a counterclaim seeking an order
validating the Storobin Petition.
Your Affirmant made an oral motion to dismiss the within action on the first
return date of the proceeding before Justice Schmidt and presented a brief in
support of said motion to the Court which had already been served on the
Appellants. It is unclear as to what the Petitioner-Appellant refers to when it is
claimed a motion to dismiss was not made. This is absolutely factually inaccurate,
8
as an order denying the motion was signed on August 10, 2012, and the Court
decided to take testimony on the issue of the alleged fraud. The basis for the
motion to dismiss was that the Petition to Invalidate failed to specify the fraud
allegations against the Respondent with particularity and also failed to “incorporate
by reference” the Specifications of Objections or any other offer of proof filed with
the Board of Elections within the Petition to Invalidate. Four days later, Petitioner-
Appellant served an amended petition claiming it was being served as of right
pursuant to CPLR § 3025(a).
The Court below (Schmidt, J.) proceeded on two tracks. First it directed that
a de novo line by line examination of the Storobin Petition proceed under the
auspices of its special referees. Days later, the court assigned the proceeding for all
purposes to Justice Larry D. Martin.
Before, during and after the filing of the Petitioner-Appellant’s Petition to
Invalidate, the Petitioner himself and through his legal and campaign surrogates
made various claims – in the press, legal papers and in argument before the court,
where it was alleged that a signature collected by Respondent Storobin himself
belonged to a deceased voter was thus fraudulently collected by the candidate. Her
perhaps interesting name – “Hilda Danger” – was touted openly and publicly with
such a loud refrain, it took on the life of a science fiction episode. “Danger, Will
Robinson. Danger. Hilda Danger.” Rather than letting this poor woman rest in
9
peace, the Felder campaign repeatedly reiterated that a the candidate himself – an
attorney and current State Senator, was out and about collecting the names of dead
people on his petition.
When Respondent, Senator Storobin, was first contacted by the press
concerning the signature at issue, he and members of his campaign were instructed
by Your Affirmant to immediately go to the location where the signature was
collected and gain an understanding as to what occurred prior to the submission of
the designating petition. What was known from the document was that a signature
had been placed on the first line of a petition sheet on July 6; no other petition
signatures were collected on that sheet; an illegible signature appeared in the space
provided; the handwritten name of Hilda Danger had been placed underneath the
signature in the Respondent’s own handwriting; and two numbers of the street
address 1569 Ocean Avenue had been crossed off, while another street address,
1576 Ocean Avenue, had been placed above it. While the Petitioner-Appellant
repeatedly states that the first number had been obliterated, this is blatantly
incorrect. Indeed, the original address is completely noticeable and there clearly
was no effort to hide the original address.
10
Immediately thereafter, State Senator Storobin first went to the address of
Hilda Danger’s apartment (T. 180, Lines 7-153), and then to the home of the actual
signer of the Petition, one, Michail Issak (T. 157, Lines 1-10) – who confirmed to
Senator Storobin that he had been to his apartment. Mr. Isaak identified his
signature on the Petition as his own, stated that he knew of him as a State Senator
and that he had stated that he was a Republican when he signed it. (T. 177, Lines
21-24 and T. 182, Lines 9-13). In further discussion, Senator Storobin learned that
Mr. Issak was not actually a citizen – and thus, not a Republican voter. There was
simply a misunderstanding as to his identification of being a Republican and
identifying with the Republican Party.
On the first return date of all of the election law cases in Kings County,
when Your Affirmant raised the objection of the “boilerplate” and “blunderbuss”
nature of the fraud charges the signature appearing above Hilda Danger’s name
was discussed specifically. It was reported that the signature had not been
fraudulently presented; that the name of the signer was known to Your Affirmant;
that the signer was willing to testify; and that Senator Storobin did indeed sign
truthfully when he acknowledged that each of signatures were signed in his
presence and identified themselves as members of the Republican Party when he
took the signature. Despite all of the wild speculation as to what may have
3 Indicates pages of the trial transcript
11
happened when Mr. Storobin took the signature, the alleged fraud was never
proven by clear and convincing evidence. In fact, the Petitioner-Appellant’s entire
claim regarding intentional fraud on the part of Respondent Storobin was
thoroughly debunked with the testimony of Mr. Issak, who stated that he did sign
the petition and lent credence to the innocence of the mistake made by Respondent
Storobin.
As to the remaining issues presented at the trial – there was no basis to find
that any of the five signatures gathered by Respondent Storobin were in any way
fraudulent, as alleged by the Petitioner-Appellant. The trial court found that there
was no indication that any of those signatures were fraudulent, as alleged by the
Petitioner, or that the petition was permeated with fraud. It is to be noted that one
of the five signatures that the Petitioner-Appellant contends as being fraudulent –
that of Edith Garcia, belongs to a duly-enrolled voter of the Democratic Party.
Accordingly, it is the Petitioner-Appellant’s contention that Senator Storobin was
risking both his law license and his State Senate seat by fraudulently signing the
name of a Democratic voter who would never be counted on his Petition. Indeed,
in describing the “scienter” of the Respondent, the Petitioner would have us
believe that he deviously wrote the name of Hilda Danger with knowledge that she
was not the signer, the name of another Democratic voter, and committed some
type of fraud on four other signers, whose signatures on the Petition sheets and the
12
signatures on the corresponding voter identification cards, were taken some 12 to
28 years apart4.
Needless to say, Respondent Storobin would not have risked his entire
designating petition and legal career in doing this – even with the testimony of a
high-priced handwriting expert on this small sampling of signatures in a petition
that contained almost five hundred extra valid signatures to qualify for the ballot.
He simply did not need this handful of signers to make it on the ballot. Nor is
there any basis to support the wild theories that Respondent Storobin’s petition
gatherers committed fraud, or that he had knowledge of any fraud. This again is
simply a matter of wild speculation on the part of the Petitioner-Appellant, with no
basis in fact.
B. Senator Storobin’s testimony on the gathering of the signatures was
completely credible.
Respondent Storobin testified that he was a State Senator and an attorney
admitted to practice in New York. (T. 79, lines 14-17). He was a witness to
approximately thirty signatures on the Storobin Petition: six on July 3, 2012; 17 on
July 6, 2012; and seven on July 7, 2012. Ten of these signatures appeared on Sheet
4 The Court on Page 12 of its decision specifically wrote, “Moreover, even if it were established
that these signatures were executed by someone other than the person identified in the petition,
no evidence has been introduced demonstrating that respondent Storobin was aware of this so as
to charge him with fraud.”
13
23 and six signatures on Sheet 47 of Vol. KG1202199 (“Vol. 199”), while one
signature appeared on Sheet 30 of Vol. KG1202201 (“Vol. 201”).
During the hearing, Storobin testified that he personally witnessed all of the
signatures to which he attested as a subscribing witness. He explained that he used
the names and addresses of registered Republican voters that appeared on a “so-
called” campaign “walk list” to collect signatures for his designating petition. He
further explained that, with respect to the approximately 24 signatures he procured,
it was his standard practice to go to the address that appeared on the list, introduce
himself as a candidate, inquire as to whether the person was a registered
Republican voter, and if so, requested that the person sign the petition.
With respect to Sheet 30, line 1 of the petition volume KG1202201,
Strorobin testified that he personally obtained and witnessed the signature that
appears on that line, but that the space underneath the signature (reserved for the
printed name) was not filled out by the signatory. Storobin admitted that when he
later looked at the signature, using the “walk list” as a reference, he mistakenly
believed the signature to be that of “Hilda Danger,” printed in her name underneath
the signature and crossed out the original address and replaced it with Ms.
Danger’s address.
14
It was revealed during the hearing, and not disputed, that Hilda Danger was
deceased at the time that the signature on was procured. Although Respondent
Storobin admitted to writing the wrong printed name on the petition sheet, Storobin
maintained that he did in fact witness the signature on line 1 of the page, which he
later discovered to be that of Michail Issak.
Respondent Storobin procured the testimony of Michail Issak, who
corroborated Storobin’s testimony that he did in fact personally witness the subject
signature. Despite Senator Storobin’s error in setting forth the incorrect name and
address of the signatory, Mr. Issak testified that the signature appearing on Sheet
30, line 1 was in fact his signature, and that he recalled Storobin coming to his
apartment, introducing himself and asking him to sign the petition sheet. (T. 255,
lines 1-4, 11-13).
Storobin also testified that once he and his campaign were alerted to the
mistake on Sheet 30, line 1, he investigated the reason for the mistake. As stated
during his testimony at trial:
Q. And can you tell me what steps you took to investigate?
A. What steps we took?
Q. What steps you took?
A. Okay, well, we went to that same address that’s listed there. We went to
other apartments in the building on the same floor to see if there’s a mistake
with what the what-you-may-call-it, with the apartment number. And we
went to apartment 1F on the same building block to see if an address was
15
messed up. Because sometimes you walk into the building and you just walk
into the wrong building. [T. 157, lines1-10]
C. The testimony of Michail Issak supported Senator Storobin’s
explanation of how his signature was gathered, which remains
uncontradicted in every respect.
Michael Issak testified that it was Storobin, who was the person that came to
his apartment and collected his signature, (T. 254, line 25) and that he did indeed
sign his signature for him. He further testified that he met Storobin in the building,
when he stopped by his apartment (T. 255, lines1-4). He testified that his
signature was on the first line of the petition sheet at issue. (T. 255, lines 11-13).
Mr. Issak identified Storobin in the Courtroom as the person who came for his
signature (T. 255 lines 24,25 and T. 256 line 1). Mr. Issak told Senator Storbin
that he was a Republican. He also stated in his direct testimony that he specifically
told Senator Storobin that he was affiliated with the Republican Party, and that
Senator Storobin mentioned that he was a Republican too “some while ago.” (T.
256 line 25 and T. 257 lines 1-3).
D. The testimony of the Petitioner’s expert lacked credibility in all
respects.
The hearing court specifically found that the testimony of Mr. Luber, the
Petitioner’s “expert” forensic document examiner, regarding the five alleged
16
forgeries subscribed by Senator Storobin, to be “unconvincing and questionable at
best.” (Order dated August 13, 20125, P.13)
Indeed, Mr. Luber testified in direct testimony that “it may be possible to
make that examination,” when asked whether he would be able to compare a
“known”6 handwriting sample with a writing sample and form an opinion as to
whether they were written by the same person. (T. 13, line 8 through T. 14, line
12). This would be done based on habit patterns of writers consistent with such
features as “height relationships between letters, letter construction, connecting
strokes between letters, pen lifts between writings.” (T. 14, lines 16-22). He was
initially asked to compare machine copied petition sheets versus machine copies of
voter registration cards (T. 291, lines 4-6); he later examined the original petitions,
as well as the original voter registration cards. (T. 291, lines 4-6). The only
equipment Mr. Luber used was a hand magnifier which magnifies at approximately
four times enlargement. (T. 291, Lines 12-14). In other words, he was equally
equipped to conduct his “experiment” as a grade school student conducting a
science project with a magnifying glass.
On Cross-Examination, Mr. Luber testified that he testifies in Suffolk,
Nassau, Queens, Bronx and Bloom County courts as a handwriting expert –
5 Hereinafter, “Order.”
6 It is still not clear how the signature on the voter registration card is a “known” writing sample
while the signatur on the designating petition is not.
17
including Supreme Court, Surrogate’s Court and various lower courts, and has also
testified in New Jersey and Connecticut courts. In every case but those cases
venued in Suffolk County, he receives a minimum of $2,600.00 every time he
testifies. (T. 304, line 3). In this case, based on his examination of records at the
Board of Elections, conversations with attorneys, preparation of his report and
testimony, Mr. Luber received $13,760.00 for his handling of the case. (T. 305,
line 15).
At no point during his testimony did Mr. Luber ever specifically note how
the height relationships between letter, pen lifts, letter construction or connecting
strokes between letters differed in comparing petition signatures to the buff cards.
In fact, he admitted that he did not refer to habit patterns, or pen lifts or any other
test to determine how he identified the authenticity of a signature. (T. 311, lines
18-25). He also never produced the original or copies of voter registration cards
during his examination for the court to compare with the signatures on the Petition;
nor did he refer to any notes that he took in regard to the signatures – even though
he said that he took notes that were not available in court. (T. 314, Lines 15-18).
Only certified copies of the five voter registration cards at issue were produced
after the Petitioner rested for the court to compare with the petition signatures.
Mr. Luber testified that Mr. Mandelker and O’Brien Murray, Petitioner-
Appellant Felder’s Campaign Manager, pointed him to the documents they wished
18
for him to examine in the claims of candidate fraud. (T. 306, Lines 12-13). He did
not know whether he examined each and every line of Mr. Storobin’s Petition, (T.
306, Line 24), but he knew that he examined approximately 400-500 signatures.
(T. 307, lines 8-9). While he examined some machine copies of signatures from
voter registration cards and some originals, he did not distinguish how many
machine copies and originals he reviewed in his report. (T. 308, line 24, through
T. 309, Line 5). However, the normal range of variation, or “norm” with which to
compare signatures was off of the voter registration cards.
The differences Mr. Luber found between the Petition sheets and the voter
registration cards which he determined not to be genuine were “great and glaring,”
but he did not assign any type of numerical value to these differences. (T. 309, line
22 through T. 310, line 3). Nor did Mr. Luber make any mention of any normal
range variation in his report (T. 310, Lines 8-10). Mr. Luber stated that it was “not
necessarily” the case that a forensic document examiner would need a sufficient
amount of known writing samples to compare to the questioned writings, (T. 315
lines 22-25), then stated that as many as one or two “could be sufficient” (T. 315,
Line 9), and then stated, perhaps with some sarcasm, that as many as 50 signatures
would be helpful (T. 315, lines 7-14). It was only to be taken at face value that
just because the handwriting sample varied greatly from the initial voter
registration card, according to his testimony, that it was so.
19
Mr. Luber admitted that a person’s handwriting habits could change over
time (T. 315, Line 19), that handwriting can change as a person gets older (T. 315,
line 24 through T. 316, line 2); that a person’s signature may vary if he or she signs
quickly rather than slowly (T. 319, Lines 22-24); that a signature on a slanted piece
of paper on a desk might appear differently than a signature signed on a clipboard
(T. 320, Lines 3-5) . He further stated that exemplars of a signature and questioned
writings should be compared contemporaneously with the other “if it is possible.”
(T. 316, Lines 7-14). In this case, virtually none of the exemplars and questioned
writings were signed within two years of one another (T. 316, Lines 21-22); some
of the signatures he examined were over 10 years old; some were over 20 years old
(T. 316, Lines 24-25). In fact, as the court found with regard to the signatures
collected by Respondent Storobin, the exemplars ranged between 12 years and 28
years old. (Order, Page 12). Some of the signatures could have been provided by
elderly people (T. 317, Lines 19-20); they could have been provided by people
with carpal tunnel syndrome or some other medical condition (T. 317, Lines 24-
25). He did not mention any of these possibilities in his report. (T. 318, Lines 5-9).
Mr. Luber stated he would rather be examining signatures at a lab than at the
Board of Elections. (T. 318, Lines 10-13). If he had certain equipment, like a
stereomicroscope, he might be able to examine some finer features of the writing.
(T. 318, Line 25 through T. 319, Line 3). Some people with long names, for
20
example, might abbreviate their names. (T. 320, Lines 12-15). But it is “not at all”
the case that most people abbreviate their names at times. (T. 320, Lines 18-19).
Mr. Luber stated that even though people “may” abbreviate their names from time
to time, we just needed to look at the voter registration cards to see, from the one
and only exemplar of the handwriting he examined, that they did not in this case –
even though he failed to have the voter registration cards in court. (T. 320, Line 20
through T. 321, Line 8.).
Mr. Luber never called any of the signers to the Petition. He stated he would
“never do that,” and did not know whether he could do that. (T. 327, Line 16
through T. 328, Line 7). Mr. Luber just believed that the differences in the
signatures were “so glaring” that no such comparison needed to be made. (T. 328,
lines 14-16).
With respect to Mr. Anatoliy Smolyankiy, Mr. Luber was incredibly sure
that the same person who signed Mr. Smolyankiy’s registration card did not sign
the Petition. At trial Mr. Luber stated, “it is a scrawled name on both the
registration card and the voter poll card.” (T. 331, Line 2). To the question as to
whether Mr. Smolyanskiy, age 83, could not finish signing because of his age, he
responded very clearly and arrogantly: “Oh, I don’t know about that. His voter
poll card was a very smooth and fluent and scrawled signature, and it looked
nothing like his signature.” (Page 331, Lines 10-12). He “absolutely” remembered
21
that specific signature, and the reason he thought it was fraudulent. As will be
pointed out further, Mr. Smolyanskiy’s testimony in court destroyed any
credibility on the part of the handwriting expert.
Edith Garcia registered to vote on July 26, 1984 – the only exemplar Mr.
Luber compared to the signature on the petition. As such, the registration card was
signed 28 years before the signature was affixed to the Storobin petition. (T. 332,
Lines 16-17.) Ms. Garcia is not even a registered Republican, but Mr. Luber did
not notice that on the registration card – he was merely looking at signatures. (T.
332, Lines 19-25.) It was not even important for him to look at any other part of
the card. (T. 333, Lines 2-6.) As a forensic document examiner, he has “no idea”
why a person that would be committing fraud on a petition would sign an utterly
useless name of a Democratic voter on a Republican petition. (T. 333, lines 7-11.)
Arnaldo Garcia’s registration card was signed in 1992, 20 years ago. (T.
333, Lines 16-19). Sonya Gelikman was 87 years old (T. 334, Line 4), while Boris
Gelikman was 89 years old (T. 336, Lines 14-16). He did not know the ages of
either of those signers while testifying, but he stated he always considers age in his
examination. (T. 334, Lines 7-13). With regard to the Gelikman signatures, Mr.
Luber reversed himself as to which signatures were “smooth and fluent” as
opposed to signatures that were sloppily written in comparing the registration cards
to the petition sheets. (T. 334, Line 16 through T. 335, Line 18.)
22
In every case of a challenged signature, Mr. Luber did not know who put the
names of the signer. Mr. Luber did not know whether the people that signed the
Petition identified themselves as the voters in the household (T. 337, lines 5-14).
He did not know what was said when the Petition sheets were signed (T. 337, lines
15-17). As the court acknowledged at T. 337, Line 19: “He was not there. He
wouldn’t know. He couldn’t know.” He never spoke to any of the signers. (T.
338, Lines 1-3).
E. The testimony of Anatoliy Smolyanskiy completely destroyed the
expert’s credibility.
Anatoliy Smolyanskiy, 78 years old,7 testified that there came a time when
he actually met David Storobin and that he signed a petition on behalf of David
Storobin (T. 383, Lines 1-6). Mr. Smolyanskiy identified David Storobin as the
person within the Courtroom that had collected his signature, and at the time that
he collected the signature, David Storobin was with another person. (T. 383, Lines
7-16). Mr. Smolyanskiy identified his signature on the Petition. (T. 383, line 22).
Mr. Smolyanskiy also testified that he sometimes signs his last name before his
first name. (T. 384, Lines 9-25 and T. 385, lines 1-3), as he did on the petition
sheet.
7 Your Affirmant mistakenly stated said witness’s name being 83 years of age in cross-
examination, which was also mistakenly confirmed by Mr. Luber.
23
Mr. Smolyanskiy also identified his signature on the buff card and once
again testified that sometimes he signs his signature a different way. (T. 385, Lines
11-23) He also testified that he signed his name a little differently four years ago
when he signed his buff card than the way he signed it on the Petition on July 6,
2012 (T. 387, Lines 15-19).
On Cross-Examination, he was asked to provide several different signatures
– including the way that he signed his voter registration card and the way he signed
his petition. Mr. Smolyanskiy provided signatures that were identical to both his
voter registration card and the way he signed the Petition – as was recognized by
the Attorney for the Petitioner during summation. It is respectfully submitted that
Respondent Storobin’s witness Anatoliy Smolyanskiy completely contradicted Mr.
Luber’s testimony by stating that his signature was in fact genuine and was
procured by Senator Storobin himself, and destroyed said witness’s credibility.
24
Argument
POINT I: THE TESTIMONY OF WITNESSES, RESPONDENT STOROBIN AND MICHAIL ISSAK, SUPPORTS THE COURT’S DECISION THAT NO FRAUD WAS COMMITTED WITH RESPECT TO THE COLLECTION OF THE ISSAK SIGNATURE AND THE PLACEMENT OF HILDA DANGER’S PRINTED NAME UNDERNEATH SAID SIGNATURE.
The Attorneys for the Petitioner virtually weave together a standard out of
whole cloth for a candidate collecting signatures for his petition that simply does
not exist. The fact is that State Senator Storobin has a constitutional right to
collect signatures for his designating petition, he has the same obligations to sign
truthfully on his witnesses statement, and he does not have any enhanced standard
for conducting investigations when there is a misunderstanding or where a signer
told him he was a registered voter, even though he was not.
On Page 24, paragraph 2 of the Petitioner-Appellant’s Brief, the blatantly
untrue and fraudulent claim is presented that
Even if his testimony were to be taken at face value, Respondent
Storobin admitted that his representation in a document that he knew
was the equivalent of an affidavit for all purposes, that Hilda Danger
had signed Sheet 30 in his presence, was made in reckless disregard of
the truth.
Of course, Respondent Storobin never stated anything of the sort. This
representation is a far more glaringly inaccurate one by an attorney than any
mistaken representation that Senator Storobin made in any manner on his
designating petition.
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The Statement of Witness at the bottom of each page of the Storobin Petition
reads as follows:
I am a duly-qualified voter of the State of New York and am an
enrolled voter of the Republican Party. Each of the individuals whose
names are subscribed to this Petition containing ___ signatures
subscribed the same in my presence on the dates above indicated and
identified himself or herself to be the individual that signed this sheet.
I understand that this statement will be accepted for all purposes as the
equivalent of an affidavit, and if it contains a material false
statement, shall subject me to the same penalties as if I had been duly
sworn.
Indeed, Mr. Storobin did state that each one of the signatories signed in his
presence. Senator Storobin’s testimony is completely consistent with that of
Michail Issak in that he came to his door with a volunteer, spoke to Mr. Issak for
some period of time, Mr. Issak identified himself as a Republican voter, and
Senator Storobin gathered his signature. The signature was clearly collected in
Senator Storobin’s presence.
The Petitioner-Appellant hearkens back with fond reminiscence of the days
that a witness statement would be collected by an officer qualified to administer
oaths, prior to the passage of a 1954 law. Indeed, we should be thankful that the
days of Tammany Hall politicians hiring officers (constables, according to Mr.
Mandelkar in summation) are no longer here. Now, candidates without the money
required to do that sort of signature-gathering or lacking power to have such a
26
signatory collect signatures for a grassroots campaign is not a bar to running for
office.
The Petitioner-Appellant likens the signature on a designating petition to a
will or a deed evidencing a transaction or occurrence, stating that like the
attestation of a Will or deed, “the completion of a subscribing witness statement is
a substantive act, without the completion of which, a Will would not be accepted
for filing (citing E.P.T.L. §3.2-1(a)(4); a deed will not be recorded (citing R.P.T.L
§ 304); and the signatures on a designating petition will not be considered valid
(citing Election Law § 6-132(2)).”
This case is greatly distinguishable from the case of Keppert v. Tullo, 88
A.D.3d 826, 27 (2d Dept. 2011), cited by petitioner in support of this position,
where the Appellate Division, Second Department directed the Suffolk County
Board of Elections to remove the petitioner’s name from the ballot because
petitioner lacked the required number of signatures. In the Keppert case, one sheet
of petitioner’s designating petition did not state the number of signatures witnessed
in the witness statement. The court held “where, as here, the witness statement of a
designating petition sheet does not state the number of signatures witnessed, all
signatures on the subject sheet are invalid.” Once the signature sheet was found
invalid the petitioner’s designating petition no longer contained the required
number of valid signatures. The court only invalidated the one signature sheet at
27
issue, and not the petition as a whole based on the failure to state the number of
signatures in the witness statement. The petition as a whole was invalidated
because the petitioner did not obtain the required number of signatures due to this
one sheet.
To focus on Mr. Issak’s signature alone for the moment, there are virtually
countless scenarios for why Mr. Issak appears as the only signature on the sheet at
issue – including that Senator Storobin witnessed other signatures earlier in the
day, stopped, and went back to a building where there were other registered voters.
He could have been out of sheets when he met with a witness to continue
petitioning later in the day. Such possibilities were in fact testified to by Senator
Storobin. There are also countless scenarios for why Senator Storobin gathered Mr.
Issak’s signature even though he did not appear on the “walk lists.”
Equally likely, Senator Storobin could have believed he was at Apartment
1F at 1576 Ocean Parkway – Hilda Danger’s apartment – at some point before,
during or after the signature was taken.8 The fact that he made a mistake when he
8 Petitioner-Appellant states, in its appellate brief, that “Respondent Storobin had testified that he
had gone specifically to the apartment of the single signer of Sheet 30 because the signer’s name
and address were listed on a walking list of enrolled Republican voters carried by Eugene.” He
adds: Since Mr. Isaak’s name was not on the walking list, that testimony was false.” But it is
actually the Petitioner-Appellant’s rendition of the testimony that is actually false. Specifically,
Senator Storobin stated, at Page 159, Lines 7-15 of the transcript:
Um, because I had, well, the person that I was, who was walking with, who had
the walking list, he had this apartment in this building and said we walk into this
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later placed a printed name under the signed name of a person identifying himself
as being a member of the party is neither illegal, nor at all relevant in the context of
fraud allegations. Simply put, Senator Storobin, even as a candidate has the right
to make a mistake – as almost all petition-gatherers sometimes do.
While the Attorney for the Petitioner-Appellant argues to the court that
Respondent Storobin knew that Mr. Issak was not a citizen, it is simply contrary to
the testimony of both Senator Storobin and the signer and is not at all supported by
anything in the record. The witness to the signature, at the point that Mr. Issak
stated that he is a Republican, is not required to conduct an investigation. He need
not check for a green card; he need not go to the INS to verify information; he is
not required to scour through voluminous records prior to the submission of a
signature that does not appear on the registration books. After Mr. Issak stated that
he was a Republican, Senator Storobin was under no further obligation.
Rather, the fact that Michail Issak did sign Senator Storobin’s designating
petition – a fact completely confirmed when asked by Judge Martin to sign a paper
place and knock on the door. And then that's how I knew this was the place to
be… I followed the person with whom I was -- (answer interrupted).
His testimony then seems to indicate that he might have thought, incorrectly, that he was in Hilda
Danger’s building at the time the signature was gathered:
Actually, can I say at the time that I doubt it was the wrong building. At the time
that I doubt that, I thought it was. Because it turned out to have been the wrong
address written down [sic]. The new one that was written down [sic]. (T. 159,
lines 24-25, and T. 160, lines 1-2.)
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at the end of his testimony that was completely identical to the signature on the
designating petition – is a clear indication that no fraud of any kind was committed
with respect to the fact that Mr. Issak truly signed in Senator Storobin’s presence.
It is equally the case that the witness to a signature is entitled to make
mistakes without a battery of high-priced attorneys engaging in wild speculation as
to a candidate’s “scienter” without any basis. Senator Storobin, while acting as a
witness is not held to a higher standard of other witnesses9 – rather, the Petitioner
must show by clear and convincing evidence that a knowing misrepresentation was
committed. The fact that Senator Storobin witnessed the signature late in the day
and that he filled in blank spaces when he returned to the headquarters is
something that makes sense, and again – remains uncontradicted in every respect.
It makes sense that he did not remember all voters he met during the course of the
day; it makes sense that he filled in missing portions of the petition sheet later,
after collection; it makes sense that the Senator can forget the voter he spoke to,
male or female, look at the signature, look at the apartment number, and then print
in the name of a voter and fix an address.
9 That is, a candidate committing fraud is clearly held to a different standard than regular
witnesses, but as a witness to signatures, he is simply one of several people witnessing the
signing of names for his campaign nomination and exercising his First Amendment right to
participate. He is no different than the several other novice signature-gatherers in the Storobin
campaign who in fact know very little about election law.
30
Nor is the court required to abandon common sense, as the Petitioner-
Appellant clearly suggests, in stating that the court should not consider what would
constitute completely unreasonable actions on the part of the Respondent – as a
sitting State Senator and attorney. Rather, his actions show that he is a novice in
collecting petition signatures, and far from a professional petition-gatherer or an
expert in the election law. He was not under any obligation to fix an address when
he thought it was wrong; he was not under an obligation to print in the name of the
petition-signer on any of the sheets. The fact that he did shows that he went
beyond any legal obligation in the attempt to be meticulous. 10
And the notion that
he would risk his State Senate seat, his entire petition and his legal career for the
small number of signatures that are being claimed as fraudulent by the Petitioner-
Appellant is simply and utterly absurd.
Furthermore, the Justice Martin stated the following in his decision:
“the court does not find that such conduct constitutes evidence of any
intentional fraud on his part (see Matter of Berney v. Ragusa, 76 AD3d 647
[2010], lv. denied 15 NY3d 704 [2010]; Matter of Harris v. Duran, 76 AD3d
658, 659 [2010]; Matter of Perez v. Galarza, 21 AD3d 508, 509 [2005], lv
denied 5 NY3d 706 [2005]; Matter of McHugh v. Comella, 307 AD2d 1069,
1070 [2003], lv denied 100 NY2d 509 [2003]; see also Matter of Bonner v.
10
The Petitioner-Appellant repeatedly parrots that the printed name of Hilda Danger was placed
underneath the signature of Mr. Isaak after he signed it. It is also unquestionably the case that
there was never any obligation for any witness to print in any names. But Senator Storobin,
according to his practice and procedure, printed in every name of every signer except for one –
the name of Edith Garcia – an enrolled Democrat that the Petitioner also claims was fraudulent.
But there is one, and only one reason that this name was never printed in by him – because she is
a registered Democrat, and he was unable to locate the name after she signed the Petition which
did not appear on the Republican voter lists.
31
Negron, 87 AD3d 737, 739-740 [2011]). ‘Any irregularity in this single
signature does not render the entire petition permeated with fraud’ (Matter of
Perez, 21 AD3d at 509; Matter of O’Donnell v. Ryan, 19 AD2d 781 [1963],
affd. 13 NY2d 885 [1963]).” (Order, page 10.)
In the case of In Re Bonner, 87 A.D.3d 737-38 [2d Dept 2011], the
Appellate Division, Second Department, reversed the order of the Supreme Court,
Suffolk County, and directed the Suffolk County Board of Elections to place the
appellant’s name on the ballot after the court below found that several signatures
collected by the candidate as a notary public were invalid and invalidated
appellant’s entire designating petition stating, holding “that his conduct with regard
to the signatures to which he attested in his capacity as a notary public constituted
fraud in the procurement of the signatures.” Id. at 738.
The Appellate Division found that while petitioner presented testimony that
appellant had witnessed six of the signatures on his designating petition as a notary
public without administering an oath, petitioner failed to establish that all of the
signatures obtained by appellant as a notary public were invalid. Furthermore, the
Appellate Division found that “even if all of the signatures to which [appellant]
attested in his capacity as a notary public were invalidated, there remain 575
signatures on the designating petition left unchallenged by the petitioned that
cannot be invalidated for failure to comply with Election Law § 6-132(3) and,
hence, more than the 500 required by the Election Law.” Id. at 739. Unlike here,
the Respondent knowingly failed to comply with the Election Law with his failure
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to administer an oath, and unlike in this case, was not the result of one isolated
mistake. Nevertheless, it did not constitute knowing and intentional fraud by clear
and convincing evidence.
The Appellate Division found held:
“[a]lthough [appellant] may not have acted in strict compliance with
Election Law § 6-132(3) in collecting six of the signatures, ‘it has not been
established that he acted fraudulently or did anything that would warrant
invalidating the entire designating petition’…There has been no finding that
the subject six signatures were not authentic or that [appellant] failed
personally to witness the subscription of any of the signatures to which he
attested.” Id. at 739-740.
In McHugh v. Comella, 307 A.D.2d 1069, 70 [3d Dept 2003], the Appellate
Division, Third Department found that a proceeding to invalidate a designating
petition should have been dismissed by the Supreme Court because the respondent
could not have been said to be responsible for the fraud or irregularity found on the
designating petition in regard to a page which respondent signed as a subscribing
witness. In McHugh, the respondent was informed that she had neglected to sign as
a subscribing witness on one of her pages of her petition. Respondent was in a
meeting at the time that she received the petition page to sign, and testified that
“she looked at the acknowledgement and signed it but did not look at the page,
thinking it was one of the pages she had personally circulated.” It was, just as in
this case, the result of one mistake.
The Appellate Division stated:
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“[w]hile Supreme Court characterized this as a ‘dubious excuse, at best,’ we
do not view such characterization as a rejection of respondent's testimony as
inherently incredible. The fraud which is alleged is the collection of forged
signatures and there is simply no evidence that she personally forged a
signature or had knowledge that anyone else had forged a signature. Under
the circumstances, we conclude ‘that in no way, by action or omission to act,
could the candidate be said to be responsible for the fraud and irregularity.'"
Id. at 1071.
In Matter Of Perez v. Galarza, 21 A.D.3d 508, 09 [2d Dept 2005], the
Appellate Division, Second Department affirmed the trial court’s decision denying
a petition to invalidate and dismissed the proceeding when only one witness out of
the nine that petitioner presented “testified that the subscribing witness was not
with the candidate when she signed the designating petition,” and there was no
evidence presented establishing that the candidate participated in or was
chargeable with knowledge of any fraud. “Any irregularity in this single signature
does not render the entire petition permeated with fraud.”
“[O]nly one of the signatures on the designating petition is vulnerable and
may be deemed to be invalid. The remaining signatures, however, are free
from all irregularity or claim of fraud, and are admittedly valid. The
irregularities incident to the one challenged signature are in no way
connected with the remaining signatures. Whatever wrongdoing there was,
permeated only the one signature, not the entire petition. Since the number
of remaining valid signatures is sufficient, the designating petition must be
held to be good.” Matter Of O'Donnell v. Ryan, 19 A.D.2d 781 [2d Dept
1963].
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POINT II: THE COURT EXERCISED PROPER DISCRETION AND CORRECTLY FOUND THAT MR. LUBER’S TESTIMONY WAS ISSUFFICIENT TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT THE SIGNATURES AT ISSUE WERE FRADULENTLY OBTAINED BY RESPONDENT STOROBIN.
Despite the testimony of Anatoliy Smolyanskiy, which virtually decimated
the credibility of the Petitioner-Appellant’s purported expert, a forensic document
examiner, it is hypocritically argued by the Petitioner-Appellant that Mr. Luber’s
testimony was “uncontradicted” on four of the signatures. This would only be
correct if this court were to believe that the Respondent is required to have located
each one of the other four other petition signers to directly contradict the testimony
of the Petitioner-Appellant’s handwriting expert in Court.
Yet the notion that the Court did not specifically address the issue of
credibility of Mr. Luber, or that his credibility was not completely impeached by
cross-examination, is completely false.
The trial court, of course, has the right and the power to consider the
credibility of any interested witness, including an expert. The court, in fact, did
consider the credibility of the handwriting expert, and concluded that his testimony
was “unconvincing and questionable at best.” (Order Page 13) . The court further
held that the testimony that Respondent Storobin did actually witness each of the
signatures to which he attested was credible. The Petitioner-Appellant, in poking
fun at Mr. Storobin’s sometimes awkward explanations, having everything to do
35
with his Russian accent and the fact that he did not remember certain things that
occurred in the petitioning process, including the names of his petition-gatherers,
was something to be considered by the trial court. But the trial court, in
considering each of the Petitioner-Appellant’s frivolous theories in this case,
simply believed that these theories lacked any foundation while State Senator
Storobin’s explanations were ultimately credible.
The Court found that Anatoliy Smolyanskiy also credibly testified that he
specifically recalled Senator Storobin appearing at his residence and asking him to
sign the Petition. He identified the signature on the Petition as being his own,
stated that he signed his name in two different manners and demonstrated this to
the court by signing his name on a piece of lined paper several times in two
different ways. Ultimately, it was also admitted by the Attorney for the Petitioner-
Appellant, in summation, that the differing signatures of Mr. Smolyanskiy were
indeed his own and that petitioner-appellant’s handwriting expert was wrong. Mr.
Mandelker, the Attorney for the Petitioner, stated as follows:
I want to go to the five signatures that we challenged with Mr. Luber's
testimony and the one thing that we saw from the testimony of Mr.
Smolyanskiy is that the way he signed on the buff card and the way he
signed on the petition were two completely different ways which is why I
had him sign both ways on the exhibit, whatever exhibit, four for
identification, became when it came in. And much to my surprise, two very
disparate methods of signing were by the same person. (T. 410, lines 22-25
and T. 411, lines 1-6.)
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Mr. Mandelker seems shocked and amazed to have learned, in this trial – for
the first time – that people sign their names differently over the course of years.
Yet completely ignored in the Petitioner-Appellant’s brief is the assuredness with
which Mr. Luber testified that the signature on the Petition was not the signature of
Mr. Smolyanskiy.
Moreover, the court correctly held that it is the Petitioner’s burden to
demonstrate by clear and convincing evidence that the four remaining signatures
were fraudulent. Even though there were some differences between the petition
sheets and the registration cards, the court held that the substantial time gaps
between the signature dates and the voter registration cards could explain these
differences. Specifically, the court discussed the age of the signatures on the voter
identification cards: the signature of Lyudmila Tretyakov was 19 years old; the
signature of Edith Garcia, a registered Democrat, was 28 years old; the signature of
Arnaldo Garcia was 20 years old; and the signature of Carina Tretyakov was 12
years old. (Order page 12).
In the case of In Re Volino, 87 A.D.3d 657, 58 [2d Dept 2011], the
Appellate Division, Second Department, affirmed the lower court’s decision
denying a petition to invalidate a candidate’s designating petition, holding that
“petitioners did not sustain their burden of establishing, prima facie, that the
signatures on the designating petition of [respondent] were permeated with
fraud or that [respondent] participated in or is chargeable with knowledge of
such fraud. Accordingly, there is no reason to disturb the Supreme Court’s
37
determination denying the petition to invalidate the designating petition and
dismissing the proceeding.”
Again, the absurdity of the argument that the Edith Garcia was fraudulently
placed on the petition should be considered: without the presence of her name on
the walking lists, the Respondent, either directly or through surrogates, would have
had to attain Democratic Party walk lists, find that she is a registered Democratic
voter, and fraudulently place the name of a signature that would not even be
counted on the petition sheet. Then, Senator Storobin would have to decide – apart
from his practice and procedure of printing every name on the Petition – to leave
the “printed name” portion blank on the Petition sheet, and leaving it to look
different from every single signature collected by the Respondent.
It simply cannot be stated with any real credibility that the Respondent must
decimate the credibility of the Petitioner-Appellant’s handwriting expert on each
and every aspect of his testimony and allegations, as was the case with Mr.
Anatoliy Smolyanksiy and as is true for Edith Garcia. In fact, the Petitioner-
Appellant, also, could have called any of the signers to the Petition to testify that
their actual signatures are not present – if only it were true. This was pointed out
during cross-examination of Mr. Luber, and was specifically addressed by Justice
Martin in the decision of the court in this matter at Page 11:
With respect to the four remaining fraud allegations, neither petitioner nor
respondent called the subject signatories to testify. However, it was
petitioner’s burden to demonstrate by clear and convincing evidence that
38
these signatures were fraudulent and the court finds that standing alone, Mr.
Luber’s testimony is insufficient to meet this heavy burden.
Additionally, no evidence was adduced in any manner whatsoever that if the
signatures were executed by someone other than the voter on the walk lists, that
Senator Storobin had any knowledge of this. As the court noted:
Even if it were established that these signature lines were executed by
someone other than the person identified in the petition, no evidence has
been introduced that Respondent Storobin was aware of this so as to charge
him with fraud. In this regard, the “court is mindful that those ‘who obtain
signatures to designating petitions are not the agents of the signers so as to
make those who are honest chargeable with knowledge that some of the
signatures are forged or fraudulent. (Order, page 12).
The trial court found that this case is easily distinguishable from many of the
cases in which a court removed a candidate from the ballot for candidate fraud.
In Drace v. Sayegh, 43 A.D.3d 481, 82 [2d Dept. 2007], the Appellate
Division affirmed the order of the Supreme Court removing appellant’s name from
the ballot. The appellant-candidate was a subscribing witness on approximately 30
of the 136 sheet designating petition. The court found that the petitioners made a
prima facie showing that appellant participated in procuring signatures for his
designating petition fraudulently because petitioners had introduced the testimony
of two witnesses that stated their signatures were either not genuine on the
designating petition or their signature was not procured by the appellant. “A
hearing court's assessment of credibility,” it was held, “is entitled to substantial
39
deference as it had the advantage of hearing and seeing the witnesses” (see Matter
of Morini v Scannapieco, 286 AD2d 459, 460 [2001]).
In contrast to Drace, petitioner-appellant produced no witnesses whose
signatures were placed on the designating petition. Petitioner-appellant only
provided a handwriting expert who was discredited by the testimony of Mr.
Smolyanskiy, who in turn demonstrated to the court that he did in fact sign the
designating petition and frequently signed his name in different ways.
In Matter of Tapper v. Sample, 54 A.D.3d 435 [2008], the court found
candidate fraud when testimony was presented showing that the appellant directed
subscribing witnesses to fill in information in the subscribing witness statements
for other witnesses, that the appellant signed subscribing witnesses statements for
petition sheets which she did not in fact witness, and that the appellant admitted
that she submitted nonconforming witness statements to the Board of Elections.
As the trial court stated in its opinion, “[s]uch circumstances are not present