Stewart v. Chautauqua County Board of Elections

Green, J. (dissenting in part).

I respectfully dissent in part. Contrary to the majority, I conclude that Supreme Court property validated the “J.K. affidavit ballot” and directed that it be counted. The decision of respondent Chautauqua County Board of Elections that J.K. was qualified to vote in the election is “statutorily deemed presumptive evidence of [her] residence for voting purposes” (Matter of Hosley v Curry, 85 NY2d 447, 452 [1995], rearg denied 85 NY2d 1033 [1995]; see Election Law § 5-104 [2]), and Robert T. Stewart and Brian Abram, respondents in proceeding Nos. 2 and 3, have “not sustained [their] burden of overcoming said presumption” (Matter of Bressler v Holt-Harris, 37 AD2d 898, 898 [1971], affd 30 NY2d 529 [1972]). In addition, “[t]he question of residence is a factual one, based on a variety of factors and circumstances . . . Where there is conflicting testimony, the resolution of the conflict lies within the province of the [hearing] court, as the finder of fact, and should not be disturbed on appeal unless ‘it is obvious that the court’s conclusion could not be reached under any fair interpretation of the evidence’ ” (Matter of Fernandez v Monegro, 10 AD3d 429, 430 [2004]).

Here, a fair interpretation of the evidence supports the court’s determination that J.K. resided in Chautauqua County for purposes of the Election Law. As noted by the majority, the term residence is defined in Election Law § 1-104 (22) as the “place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return” (see People v O’Hara, 96 NY2d 378, 384 [2001]). As further noted by the majority, however, the Election Law “does not preclude a person from having two residences and choosing one for election purposes provided he or she has ‘legitimate, significant and continuing attachments’ to that residence” (Matter of Isabella v Hotaling, 207 AD2d 648, 650 [1994], lv denied 84 NY2d 801 [1994], quoting Matter of Ferguson v McNab, 60 NY2d 598, 600 [1983]). Indeed, as the Court of Appeals explained in O’Hara, “[t]he crucial [factor in determining] whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence ‘without any aura of sham’ ” (96 NY2d at 385). “[T]he inquiry is not which of [the voter’s] dual residences is ‘the more appropriate one’ for voting purposes, but whether the residence held by [the voter] is a legitimate one” (Matter of Willkie v Delaware County Bd. of Elections, 55 AD3d 1088, 1091 [2008], quoting O’Hara, 96 NY2d at 385).

The evidence presented at the hearing in this matter demonstrated that J.K. has significant and genuine contacts with Chautauqua County such that her choice of that county as her residence for voting purposes was properly honored by the court (see Matter of Gallagher v Dinkins, 41 AD2d 946, 946-947 [1973], affd 32 NY2d 839 [1973]; Willkie, 55 AD3d at 1090; Matter of Stavisky v Koo, 54 AD3d 432, 434 [2008]). For the three years preceding the election at issue, J.K. has resided during the summer months at her aunt’s house located in Chautauqua County and has moved during the winter months to Cattaraugus County, where she rented various apartments. Although in August 2009 J.K. rented an apartment on a month-to-month basis in Cattaraugus County, she testified at the hearing that she kept most of her personal belongings at the Chautauqua County residence and hoped to return there the next summer. Until July 2009, J.K. received mail listing the address of the Chautauqua County residence. Further, J.K. testified that she grew up in Chautauqua County, registered to vote there in 2001 and had always voted there. In addition, on the relevant election day in November 2009, J.K. filled out an affidavit ballot on which she certified that she was duly registered to vote in Chautauqua County and listed her address as her Chautauqua County residence. That address “represents a place of residence based on express intent, coupled by physical manifestation, without any aura of sham” (Gallagher, 41 AD2d at 947). Thus, I would affirm that part of the order validating J.K’s affidavit ballot and directing that it be counted. Present— Scudder, EJ., Smith, Peradotto, Green and Pine, JJ.