Gleason V Gerson

080609 Gleason v Gerson
67
2 SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK - CIVIL TERM -
3 ----------------------------------------------X
4 PETER GLEASON,
Petitioner-Candidate Aggrieved,
5
-against-
6
ALAN J. GERSON,
7
Candidate,
8
-and-
9
BOARD OF ELECTIONS IN THE CITY OF NEW YORK,
10
Respondents.
11 ----------------------------------------------X
Index # 110682/09 Proceedings
12
Supreme Court of New York
13 71 Thomas Street
New York, New York
14 August 6, 2009
B E F O R E:
15
SPECIAL REFEREE
16 LESLIE S. LOWENSTEIN,
17
A P P E A R A N C E S:
18
DUNNINGTON, BARTHOLOW & MILLER, LLP
19 1359 Broadway
New York, New York 10018
20 BY: RAYMOND J. DOWD, ESQ.
Attorney for Petitioner
21
KANTOR, DAVIDOFF, WOLFE, MANDELKER, TWOMEY &
22 GALLANTY, PC
51 East 42nd Street
23 New York, New York 10017
BY: LAWRENCE A. MANDELKER, ESQ.
24 Attorney for Defendant
25
26 DEBORAH A. ROTHROCK, RPR

Official Court Reporter
DEBORAH A. ROTHROCK, RPR
Page 1
68
1 -Proceedings-
2 THE COURT: By Decision and Order of
3 Justice Sherri-Klein Heitler and Justice Edward

4 H. Lehner, in the matter bearing the caption of
5 Peter Gleason versus Alan Gerson and the Board of
6 Elections, et al., said matter bearing Index

7 number 110682 of 2009.
8 I, Leslie S. Lowenstein, has been
9 designated as a Special Referee to hear and

10 report with recommendations upon the issue of the
11 application brought by Peter Gleason to invalid
12 the designating petitions of candidate Alan J.
13 Gerson.
14 In an off the record conference in the
15 presence of counsel, the parties agreed that the
16 transcription of this proceeding would not be
17 waived and that the cost of the transcription

18 will be equally shared by the parties.
19 So stipulated?
20 MR. DOWD: Yes, sir.

21 MR. MANDELKER: Yes, sir.
22 THE COURT: Could I have the appearances

23 of counsel.
24 MR. DOWD: Dunnington, Bartholow &
25 Miller, 1359 Broadway, Suite 600, New York, New

26 York 10018, counsel for Petitioner Aggrieved
Page 2
69
1 -Proceedings-
2 Candidate Peter Gleason.
3 Good morning.
4 THE COURT: Good morning.
5 MR. MANDELKER: Good morning.
6 For Respondent Alan Gerson, Lawrence
7 Mandelker, Kantor, Davidoff, Wolfe, Mandelker,

8 Twomey & Gallanty. My collogue from the same
9 firm, Daniel S. Kokhba. My collogue Sarah
10 Trimming from the law firm of Gaffin & Mayo
11 located at 225 Broadway, New York, New York.

12 Thank you.
13 THE COURT: Okay.
14 At this time, Mr. Dowd, inasmuch as this
15 is your petition to invalid, it would strike me
16 that you have the burden of proof and you would

17 over the first opening statement if you wish.
18 Bearing in mind, as I indicated on Tuesday, that
19 an opening statement is just that, it is there

20 for the purpose of framing out that which you
21 will demonstrate and prove upon the plenary
22 hearing.
23 Do you wish to proceed with an opening

24 statement?
25 MR. DOWD: Yes, sir. I believe Mr.
26 Mandelker has an application.
Page 3
70
1 -Proceedings-
2 MR. MANDELKER: If I may, I will make it

3 that after the opening statement.
4 THE COURT: As you wish.

5 MR. DOWD: Just to start, I believe Mr.
6 Mandelker and I have agreed that any evidence
7 presented in the validate proceeding, which

8 occurred on August 4, 2009, in Gerson versus the
9 Board of Elections may be used in this
10 proceeding.
11 MR. MANDELKER: And vice-a-versa. In
12 other words, any evidence properly admitted in
13 either proceeding can be considered by the
14 Referee in both cases.

15 THE COURT: So stipulated by both?
17 MR. DOWD: Yes.
18 THE COURT: So ordered.

19 Continued.
20 MR. DOWD: Thank you.
21 This morning our issue is -- we really

22 have two issues here; whether or not the
23 designating petition of Alan Gerson substantially

24 complied with the rules of the Board of
25 Elections, and the Election Laws of the State of
26 New York for designating petitions for the Office
Page 4
71
1 -Proceedings-
2 of Public Office of Counselman for the First
3 Counsel District of the The City of New York.
4 THE COURT: I assume Mr. Dowd, we're

5 going way beyond the cover sheet issues at this
6 point?
7 MR. DOWD: No, this is the invalidate
8 procedure.
9 THE COURT: Then we are on the cover
10 sheet issue?
11 MR. DOWD: The issue presented here, is
12 whether or not the designating petition was valid

13 in compliance with the Election Law and the Rules
14 of the Board of Elections of the State of New
15 York.
16 THE COURT: You may proceed.
17 MR. DOWD: If we look at the Election

18 Law 16-134, it authorizes the Board of Elections
19 to make rules regarding cover sheets and the
20 Election Law itself contained provisions that

21 candidates must satisfy.
22 So, the burden of proof, since the
23 candidate is off the ballot, is on the candidate
24 to show that he has complied with the Election

25 Law.
26 We believe that the burden of proof in
72
Page 5
1 -Proceedings-
2 this proceeding remains with the Respondent.
3 Now, the Respondent has to show full

4 compliance with the Election Law, not just the
5 cover sheet issue. And what we're going to do is

6 show today, through the testimony of four
7 witnesses, that there was not substantial
8 compliance with the Election laws. And, in

9 particular, there was alteration of the
10 designating petition that was unauthorized and
11 violates the Election Law. And we are going to

12 show that particularly with respect to the Rules
13 of the Board of Elections, that there was no
14 substantial compliance.
15 At the Board of Elections on July 24th

16 -- let me back up.
17 On July 21st, the Board of Elections had
18 sent a letter to candidate Gerson. And the
19 letter pointed out that there was a defect in the

20 designating petition. That defect was that in
21 volume 312 of the designating petition, the
22 address did not match the cover sheet.

23 Now, the Board gave the candidate an
24 opportunity to cure the error. The candidate had

25 three days.
26 Rather than cure the error, in
73
Page 6
1 -Proceedings-
2 accordance with the Rules of the Board of

3 Elections, the candidate filed a document that
4 complied with none of the Rules of the Board of
5 Elections.
6 THE COURT: Mr. Dowd, with all due
7 respect, I think we're -- I seem to be getting
8 more of a summation rather than an opening. And
9 I would prefer that you stay with the opening.

10 MR. DOWD: You will hear testimony from
11 Alan Gerson, David Reck, Jessica Loeser, and
12 Renee Abramowitz.
13 I would like to call the first witness.

14 THE COURT: I would like to hear an
15 opening statement perhaps from Mr. Mandelker if
16 he so choices.
17 MR. DOWD: Certainly.
18 MR. MANDELKER: If your Honor pleases,

19 most of the ground that was covered in my
20 friend's opening statement was ground that we
21 plowed through at the hearing the other day on

22 the proceeding to invalidate, whether the cover
23 sheet complied with the laws, what the Board of
24 Elections did, the documents, and so on and so
25 forth. So I am not going to dwell on that

26 because you already have evidence on that.
74
Page 7
1 -Proceedings-
2 It is not clear to me what counsel
3 intends to obtain from the witnesses. If he's
4 dealing with a cover sheet, then I will await and

5 cross examine accordingly. If he deals with
6 issues beyond the cover sheet I may have a motion

7 in limine if I see that's necessary.
8 So I will await to see what he proposes
9 to ask of witnesses and reserve my right to make

10 a motion in limine to prevent Mr. Dowd from going
11 beyond the cover sheet issue.
12 Thank you.
13 THE COURT: Call your first witness Mr.
14 Dowd. Go outside and get your first witness.
15 MR. DOWD: Yes, your Honor.
16 First, do we have the file from the

17 validating proceeding here in the courtroom.
18 THE COURT: The only file I have is the
19 Court's file. I don't have anything from the
20 Board of Elections, if that is what you're

21 asking.
22 MR. DOWD: In other words, Petitioner's
23 and Respondent's exhibits.

24 THE COURT: You are free to examine what
25 I have, sir.
26 MR. DOWD: Just to hand to the witness
75
1 Direct - A. Gerson - by Petitioner

Page 8
2 if we want to inquire as to the exhibits that
3 came in on the hearing.

4 THE COURT: I have the other file with
5 me as well. I have the exhibits that were
6 admitted on August 4th.

7 MR. DOWD: Thank you, that was it. I am
8 going to go get Alan Gerson.
9 MR. MANDELKER: Before you go --
10 THE COURT: Off the record.

11 (Off-the-record discussion).
12 (Witness enters the courtroom.)
13 MR. GERSON: Good morning, your Honor.
14 THE COURT: Raise your right hand.

15 ALAN J. GERSON, a witness called on
16 behalf of the Petitioner, having been first duly
17 sworn by the Court, was examined and testified
18 under oath as follows:
19 DIRECT EXAMINATION
20 BY MR. DOWD:
21 THE WITNESS: I do.
22 THE COURT: State your name and address

23 for the record.
24 MR. GERSON: Alan J. Gerson. 505
25 LaGuardia Place, New York, New York 10012,
26 Apartment 20-A, as in apple.
76
Page 9
2 THE COURT: Proceed.
3 MR. DOWD: Thank you, your Honor.
4 I would like to show the witness
5 Respondent's A from the August 4th hearing.

6 THE COURT: Respondent's A admitted into
7 evidence on August 4, 2009, is now in the

8 possession of the witness. You may proceed.
9 (Handing.)

11 Q Mr. Gerson, could you identify what
12 Respondent's A is ?
13 A It is a subpoena duces tecum, excuse me

14 for the mispronunciation, directed to me.
15 Q Have you seen this document before?
16 A Yes.
17 Q When was the first time you saw it?

18 A This past Saturday.
19 Q And what were the circumstances under
20 which you viewed it?
21 MR. MANDELKER: Your Honor, I object.

22 We went over this. He's admitted receiving it in
23 the other proceeding. The testimony is
24 admissible.
25 THE COURT: I will allow it as leading
26 material. The objection is overruled.
77

2 A It was contained within an envelope that
Page 10
3 was delivered to my apartment by the United States
4 Postal Service and I first saw it upon opening the

5 envelope, which was delivered by Certified Mail.
6 Q Did you read and understand it?
7 A Yes, I did.
8 Q And the document asked for you to bring
9 documents. Did you bring any documents with you
10 pursuit to the subpoena?
11 A No.
12 Q Did you bring a printer's Affidavit?
13 A No, I did not.
14 Q Did you bring your calendar?
15 A No.
16 Q Did you bring any printer's --
17 A I have no such documents responsive to
18 the subpoena in my possession.
19 Q Did you bring any printer's proofs with
20 you?
21 A No.
22 THE COURT: He's answered your question,
23 sir. He told you that he has no documents

24 responsive to your subpoena. I think we should
25 take him at his word.
78
2 THE COURT: Let's move on.
Page 11
4 I would like to show the witness
5 Petitioner's 3, if I may, in evidence.
6 THE COURT: Petitioner's 3 admitted on

7 August 4, 2009, now in possession of the witness.
8 THE WITNESS: Thank you.

9 (Handing.)
10 Q Now, Mr. Gerson, I would like to ask that
11 you turn to the second page of Petitioner's 3. And

12 you'll see there's about one-third of the way down the
13 page an asterisk and it says 505 LaGuardia Place. Do
14 you see that?

15 A I see a marking, I'm not sure if it is an
16 asterisk or crossing out. I see a marking that could
17 be an asterisk but I could not identify it as such.
18 Q Have you seen this document before?

19 A No.
20 Q Do you know who Renee Abramowitz is?
21 THE COURT: Yes or no sir.
22 THE WITNESS: No, not for sure, no.

23 THE COURT: It is not an answer; yes,
24 no, or I don't know.
25 THE WITNESS: No. No, I do not know.

26 Thank you, your Honor, I do not know.
79

2 Q Are you aware of any persons collecting
3 signatures on your behalf on June 9, 2009?
Page 12
4 A I do not know. I mean I --
5 Q Do you recall any persons collecting

6 signatures for your campaign on the first day for
7 signing designating petitions?
8 A I recall that persons were collecting

9 signatures on the first day. I do not recall the
10 specific individuals who were doing that on any
11 particular day.
12 Q Do you recall Edward Braunstein

13 collecting signatures for you?
14 A No.
15 Q Do you recall Camden Ackerman collecting
16 signatures for you?

17 A No.
18 Q Do you recall Jessica Loeser collecting
19 signatures for you?
20 A No.
21 Q Now, do you recall when you first learned

22 of a printer's error in your petitions?
23 MR. MANDELKER: Objection. Asked and
24 answered the other day.

25 THE COURT: Was that question posed the
26 other day, the other day being August 4th, 2009.
80

2 MR. DOWD: The response was, "If I had
3 my calendar I would be able to answer the
Page 13
4 question."
5 THE COURT: Do you have the question
6 from that day?
7 MR. DOWD: Not with me.

8 THE COURT: That is your best
9 recollection of the testimony, sir, I'm asking?

11 THE COURT: You can pose the question.
12 The objection is overruled.

13 Read the question back Madam Reporter.
14 (Requested portion read by the Court
15 Reporter.)
16 A I do not recall the specific date. I
17 recall it was when the printer was in the process of
18 printing petitions at the time when petitions were
19 due.
20 Q Did you ever see those petitions?
21 A Your Honor, I don't know which petitions
22 he's referring to.
23 Q Did you ever see petitions present

24 printed by your printer?
25 A Any petitions printed by my printer, of
26 course, yes.
81
2 Q When?
3 A I first saw petitions printed by the
4 printer when I went over to the printer one evening
Page 14
5 prior to the collection of signatures when I was
6 informed by some who had seen them before then that

7 there appeared to be a printer's mistake.
8 Q Who informed you of that?
9 A More than one person.

10 Q Who?
11 A One person was Mr. David Weinberger. He
12 was one of the first. There was so much discussion.
13 I cannot -- I remember receiving his phone call. I do

14 not know who else.
15 THE COURT: Mr. Gerson.
16 THE WITNESS: Yes, I'm sorry, your
17 Honor.
18 THE COURT: Mr. Gerson, we went through
19 this the other day. I want you to answer the
20 question. There is no need for embellishment.
21 This is not a speech making forum. This is
22 nothing of that sort. This is a proceeding under

23 law. Respond to the questions and that's the end
24 of it.
25 THE WITNESS: Yes, sir.

26 I do not recall who else.
82
2 Q Did you speak to the printer about the

3 problem?
4 A Yes.
Page 15
5 Q And what did you say?
6 A I said you need to reprint the petitions
7 with the correct address.
8 Q And did you see petitions printed with

9 the correct address?
10 A Yes.
11 Q When?
12 A After he reprinted it.
13 Q When?
14 A I don't recall the specific date but it
15 was at that time --it was hours after I arrived at the
16 printer, as I described, I first saw for the first

17 reprinted batch.
18 Q Was this prior to petitions being
19 circulated by signers?
20 A Yes.
21 Q Did there come a time that you learned
22 that one of your petitions, following the time that
23 they were distributed to your champagne to collect
24 signatures, that there was an error remaining in the

25 petition?
26 MR. MANDELKER: Objection to form. It
83

2 is the use of the word petition. I don't know if
3 counsel means sheets or the entire petition.

4 Petition refers to the standard --
5 THE COURT: Sustained. Strike the
Page 16
6 question. Repose your question.
7 Q Following the distribution of the

8 petition forms to persons in your champagne who were
9 to collect signatures, did you subsequently learn of
10 an error in those forms?

11 THE COURT: Yes, no, or I don't know.
12 THE WITNESS: I don't know because, your
13 Honor, I don't follow the question.
14 THE COURT: That is the answer.

15 Continue sir.
16 Q All right.
17 Did you find out that there was a mistake
18 in your petitions after they were distributed to

19 members of your champagne to collect signatures?
20 MR. MANDELKER: Objection to form.
21 Again, if he means sheets, let him just say it
22 otherwise it is confusing.
23 THE COURT: The true objection would be

24 leading. It is his witness. No one has ever
25 been declared hostile here.
26 MR. MANDELKER: Objection leading.
84

2 THE COURT: Sustained.
3 Q When did you first hear of the address

4 1505 LaGuardia Place?
5 A When I went to the printer and I saw a
Page 17
6 batch of sheets printed with that incorrect address.
7 Q Did you ever see or hear of that address
8 again?
9 A Yes, in many conversations pertaining to

10 those petitions, including now.
11 Q What was the first time, subsequently to

12 you going to the printer and correcting the error,
13 that you again heard of the address 1505 LaGuardia
14 Place?
15 A In conversations that took place within
16 hours after I was at the printer.
17 Q What conversations?
18 A We had to inform people in our champagne
19 or in clubs who were supporting the champagne why
20 petitions -- why the petitions would not be available
21 at the time we had originally expected and I told them

22 there was the printer's error and they asked, and some
23 of them had already heard of it and some had not. So
24 there were many such conversations where the address,
25 incorrect address 1505 was discussed either by people

26 raising it to me or vice-versa, within hours after the
85
2 printing error was discovered.

3 Q Did you have any conversations with
4 anyone from the Truman Club regarding the error?

5 A Yes.
6 Q Who?
Page 18
7 A David Weinberg was District leader from
8 the Truman Club, as I testified earlier, he was one of

9 the first people to spot that error.
10 Q And what was your conversation with him?
11 A I told him we were going to have the

12 petitions reprinted. The printer had agreed to do so
13 at the printer's expense because the printer
14 acknowledged that it was a printing computer error.
15 The printer acknowledged that we had correctly proofed

16 of the submission to the printer, and we submitted it
17 properly but he acknowledged that it was his computer
18 error and I informed all of this to Mr. Weinberger,
19 and that it would take him, because one of their

20 presses, the presses for the long petitions were not
21 available that night. The Truman Club had ordered a
22 long petition because they had many candidates, in
23 addition to myself. So I informed Mr. Weinberger that
24 the printer had said that the long, his long petition
25 would not be available until later that following day
26 because there was a problem with that printer or the
86

2 staffing of that printing machine. And that was my
3 conversation.
4 Q And you still don't recall what day this

5 was, this conversation; is that correct?
6 A It was that day, either slightly before
Page 19
7 or slightly after midnight when I was at the printer
8 and then in a follow-up conversation that following
9 morning.
10 Q Now, do you know how the Truman Club got

11 petitions with incorrect addresses on them?
12 A Each club picks up its own petitions

13 directly from the printer and that is as much as I
14 know.
15 Q Now, following these conversations --

16 A Excuse me, your Honor. I do recollect
17 that David Weinberger did, in one of those
18 conversations to which I referred, informed me that

19 they had printed up petitions, quickly, you know, they
20 do things very quickly he pointed out to me. That is
21 as far as I know how the Truman Club got any
22 petitions.
23 Q Following this conversation with Mr.
24 Weinberger, did you have other conversations regarding
25 the address 1505 LaGuardia Place, and if so what were
26 they?
87

2 A Including our conversation?
3 THE COURT: One question at the time,

4 sir. Ask him if he had conversations.
5 Q Did you have conversations after that

6 that involved the address 1505 LaGuardia Place?
7 A After my conversation with Mr.
Page 20
8 Weinberger, yes.
9 Q What was the next conversation that you

10 recall?
11 A As I think I already said, I had
12 conversations with many leaders of the different clubs

13 supporting us as well as campaign volunteers who had
14 expected to pick up petitions either from the printer
15 in some cases directly, or in other cases from our
16 champagne office. And I informed them as to why the

17 petitions would not be available when we had
18 originally thought. And it was the same conversation.
19 I had told them that the printer had made an error,
20 that a stroke was added by their computer on the -- on

21 our address, to make the address incorrectly appear as
22 1505. In that the printer had said it was entirely
23 their mistake because we had properly proofed these
24 submissions. And, therefore, they were going to
25 reprint all of the petitions with my address, but that

26 it would take a little bit of time because they did
88

2 not have the staffing available to operate the press
3 that was required for the long form. And the short
4 form with my name only would be available sooner, but
5 those people who wanted the long form would have to

6 wait, you know, additional hours, whether it was a day
7 or day and-a-half. That was my conversation repeated
Page 21
8 to him individuals. And, of course, they responded --
9 MR. MANDELKER: Objection.
10 THE COURT: Excuse me.
11 THE WITNESS: Sorry, your Honor, it is a

12 hazard of my trade.
13 THE COURT: I'm not looking for hazards.

14 Off the record.
16 MR. DOWD: Honorable Referee, I just

17 spoke with counsel for the Respondent and he has
18 no objection with me presenting this document to
19 the witness. I would like to mark it for

20 identification as --
21 THE COURT: If there's no objection it
22 would be in evidence as Petitioner's No. 1.
23 Madam reporter, mark it accordingly.

24 MR. DOWD: If I may are we continuing
25 our list of exhibits?
26 THE COURT: No, this is a separate
89

2 proceeding.
3 I may issue one report on the basis of
4 my decision for my personal discretion to

5 consolidate the two matters, they bear two
6 separate and distinct index numbers. They maybe

7 related but they are, nevertheless, distinctly
8 separate proceedings.
Page 22
9 Therefore, it is that particular exhibit
10 will be marked into evidence by stipulation of

11 the parties as Petitioner's No.1.
12 I don't see you why that should be an
13 issue for you.

14 MR. DOWD: Since Mr. Mandelker and I
15 have agreed that the evidence that was presented
16 in the prior proceeding, just not to confuse the
17 record. If there's two Petitioner's 1.

18 THE COURT: I must stop you there.
19 I don't think it will confuse me, if
20 that is what your fear is.
21 MR. DOWD: No. You, sir, we believe

22 will not be confused. We're preserving a record
23 here and --
24 THE COURT: Then make certain that
25 Justice Lerner is not confused and anyone further
26 up the line is not confused. That will be your
90
2 issue.
4 THE COURT: Madam Reporter, please mark
5 the document as Petitioner's No. 1. in evidence
6 as of this date.
7 MR. DOWD: If I may read the caption.
8 "This is an Official Document of the New
Page 23
9 York State Board of Elections" --
10 THE COURT: New York City or State?
11 MR. DOWD: "New York State Board of
12 Elections 2009 Political Calendar for Primary and

13 General Elections."
14 Q Mr. Gerson, I would like you to --

15 THE COURT: That is the document?
17 THE COURT: Hand it up to the witness.

19 (Handing.)
20 Q I would like you to look at the date of

21 June 9th on the Political Calendar there's the second
22 entry there could you please read that?
23 A "First day for assigning designating
24 petitions Section 134(4)."

25 Q Now, looking at the Political Calendar,
26 have you seen this calendar before?
91
2 A No.
3 Q Does looking at that date, June 9th,
4 refresh your recollection as to the date that you had
5 conversations with David Weinberger regarding the

6 printer's error?
7 A No.
8 Q Does it refresh your recollection as to
9 the date that you had the conversations with the
Page 24
10 printer Mr. Handell regarding his error?
11 A It would have been -- yes.

12 Q And now that your recollection is
13 refreshed, can you tell us what day you had the
14 conversations with the printer regarding the error in

15 the designating petition --
16 A Assuming the correctness of this
17 calendar, which I assume it would have been the 7th,
18 8th, or 9th, that is the best.

19 THE COURT: Of which month?
20 THE WITNESS: Of June.
21 THE COURT: Which year?
22 THE WITNESS: 2009. Thank you.

23 Q And do you recall now what date the
24 sheets were to be delivered to the clubs?
25 A Well, originally, before we discovered
26 the printer's error they were obviously -- excuse me,
92
2 they were supposed to have been delivered no later
3 than June 8th.

4 Q Do you recall when they were actually
5 delivered to the clubs?
6 A The corrected versions were delivered
7 after June 9th, that is why we were upset. At

8 different times to different clubs.
9 Q So, were incorrect petitions delivered to
Page 25
10 clubs, to your knowledge?
11 A I -- I have no knowledge. The champagne
12 certainly did not. And I have no knowledge as to
13 whether or not the printer delivered it.

14 Q Did you ever receive a call from one of
15 the clubs saying in sum or substance saying we've got

16 incorrect petitions?
17 A Yes. As I have said, yes, how they
18 received it, whether they were delivered, or picked

19 up, I do not know.
20 Q When did you first get a call from one of
21 the clubs saying we have an incorrect petition?

22 A It would have been, assuming the
23 correctness of this calendar, it would have been June
24 7th, 8th, 9th, in that timeframe, that's the best that
25 I could do.
26 This is also the month that we were doing
93

2 the City budget, so I was preoccupied.

4 THE COURT: Sir, I must caution you at
5 this point that you are only to answer the
6 questions.
7 THE WITNESS: Yes, sir. Yes, sir.
8 MR. DOWD: I would like to mark for

9 identification --withdrawn.
10 Q Moving forward in time.
Page 26
11 THE WITNESS: Do I give this to you?
12 THE COURT: Yes, thank you.

13 (Handing.)
14 Q Moving forward in time from the time that
15 you first learned of the error, did there come another

16 time that you learned that the problem of the 1505
17 LaGuardia Place address existed?
18 A Yes.
19 Q And when was that?

20 A It was when I -- when I learned that your
21 client had filed a petition on that basis or an
22 objection on that basis.
23 Q The first time after the period around

24 June 9th that you learned of a problem involving the
25 address 1505 LaGuardia Place, you believe was sometime
26 after July 24th?
94

2 THE COURT: Stop.
3 Mr. Mandelker has remained silent but I
4 will no longer remain silent.

5 This is your witness. We are on direct
6 examination. And the leading has exceeded the
7 bounds of good taste at this point.
8 I will leave it at that.

9 MR. DOWD: I will rephrase. Thank you.
10 THE COURT: Thank you.
Page 27
11 Q Do you recall, approximately, when you
12 learned of Mr. Gleason's objections to your petitions?
13 A It was at the time that objections were
14 due at the Board of Elections, which were within the

15 past couple of weeks.
16 Q Do you recall the Board of Elections

17 pointing out to you any errors in your designating
18 petitions?
19 A The Board of Elections pointed out the

20 alleged errors in the designated petitions through
21 mail I had received from them.
22 Q At that time did the address 1505

23 LaGuardia Place come to your attention?
24 A Not directly from the Board of Elections,
25 no.
26 Q From anyone else?
95
2 A Yes.
3 Q And what did you hear about the address
4 1505 LaGuardia Place at that time?

5 MR. MANDELKER: Objection hearsay.
6 THE COURT: No, overruled. There's no
7 hearsay. There's no out of the court statement

8 specifically being admitted. You may answer the
9 question.
10 Read the question back Madam reporter.
11 (Question read.)
Page 28
12 THE WITNESS: I heard that your client
13 was raising objections based on the fact that

14 some petitions filed in just a couple of volumes
15 contained the printing mistake 1505.
16 I also heard that the Board of Elections

17 had taken notice that some petitions filed in
18 just a couple of volumes contained the printing
19 error 1505.
20 And I also heard that on some of those

21 petitions, that the number one had been crossed
22 out and initialled.
23 Q Following you learning this, did you take
24 any steps to correct the error?

25 A It's too late, no. How could I? I'm
26 sorry, no.
96

2 Q Did anyone on your behalf take any steps
3 with respect to the Board of Elections to correct the
4 error?
5 A We filed responsive papers at the Board

6 of Elections in this -- in these court proceedings,
7 but other than that, no, absolutely not.
8 Q Did there come a time that you or anyone
9 on behalf of your champagne filed an amended cover

10 sheet?
11 A Yes. Those were among the papers that we
Page 29
12 filed at the Board of Elections.
13 Q When did you first have a conversation
14 regarding an amended cover sheet, if any?
15 MR. MANDELKER: Objection, your Honor.

16 We went over all of this when Mr. Gerson
17 testified two days ago on my direct case and Mr.

18 Dowd cross-examined him.
19 THE COURT: I am going to overrule the
20 objection. I am informing you, Mr. Dowd, that I

21 am rapidly reaching the belief that we have
22 adduced just about all of the useful testimony as
23 we can from the witness based on the proceeding

24 that we had on August 4th and the hour of
25 testimony that we have had this morning. And I
26 would think it, that you might be drawing this
97
2 direct examination to some kind of a conclusion.
3 MR. DOWD: Thank you, sir.

4 Q What was the first conversation you had
5 regarding amending cover sheets, do you recall?

6 A I recall a conversation with Mr. Dudley
7 Gaffin, who was acting counsel to the campaign, on a
8 Pro Bono, non-enumerated basis.

9 MR. MANDELKER: Objection to any of the
10 details of the conversation.

11 THE COURT: Sustained.
12 Q And following your conversation with Mr.
Page 30
13 Gaffin, did you have conversations with anyone else
14 from your campaign regarding amending the cover

15 sheets?
16 A Yes.
17 Q Who?
18 A Our campaign manager Mr. David Hartshorn,
19 our petitioner coordinator Mr. Ray Klein, several of
20 the club leaders who were supporting the campaign, my
21 mother Sophie Gerson, secretary to the campaign, and

22 probably other individuals as well.
23 Q And following those conversations, did
24 you do anything to correct --withdrawn.
25 Following those conversations, did you

26 respond in any way to the Board of Elections letters
98
2 to you?
3 A Yes, we filed the appropriate papers in
4 response, including the amended cover sheets.
5 Q Did you do anything else?
6 A No.
7 Q Did you authorizes Mr. Gaffin to file
8 amended cover sheets?
9 A Yes.
10 Q Did you discuss any of those problems

11 with Mr. David Reck?
12 A Yes.
Page 31
13 Q And what did you tell him?
14 A Essentially the same thing I told
15 everyone else, that Mr. Gaffin was going to file
16 amended cover sheets and we believe that that would

17 solve the problem. I told him and others, that the
18 objections were made to particular volumes, but I also

19 told him that we were confident because even if you
20 entirely eliminated those two volumes, we had more
21 than enough signatures that were not in question to

22 qualify for the ballot. In fact, I made the point to
23 each of the people that with whom I had the
24 conversations that we had-- even without those two

25 volumes, more signatures than the other volumes than
26 any of the other candidates filed, that is what I
99

2 discussed with Mr. Reck.
3 R. DOWD: I would like to mark
4 Petitioner's No. 2.
5 THE COURT: Any objection?
6 MR. MANDELKER: Yes.

7 THE COURT: What?
8 MR. MANDELKER: Hearsay, first of all.
9 It appears to be a printout of some sort

10 of a Blog or a newspaper article. And it is --
11 THE COURT: Where are we going with

12 this, sir?
13 MR. DOWD: Well, there's statement of
Page 32
14 the candidate about Mr. Gerson inconsistent with
15 his testimony.
16 THE COURT: There's no way of
17 authenticating this.
18 MR. DOWD: I have not even tried.

19 THE COURT: You're asking it be admitted
20 into evidence, that would constitute attempted.
21 MR. DOWD: I had not made that
22 application.
23 THE COURT: We have marked this as
24 Petitioner's No. 2.
25 If in fact you're seeking to move this
26 into evidence it will not be admitted into
100
2 evidence, because it is a writing by someone
3 named Julie Shapiro who has to authenticate this.

4 MR. DOWD: I don't --
5 THE COURT: If you wish to question the
6 witness as to quotes that might appear in this
7 article as to whether they are his or not, then

8 you may do so. However, again, I would think it
9 that this being your witness on direct
10 examination you would have to have him declared
11 hostile first in order to do that.

12 Q Well, if I may, your Honor, as I move to
13 have the witness declared hostile?
Page 33
14 THE COURT: Denied.
15 MR. DOWD: I think that --
16 THE COURT: Sir, he's your witness,
17 you've called him on direct and now you're trying

18 to impeach him. There's a problem with that.
19 MR. DOWD: Your Honor, the hostile

20 witness --
21 THE COURT: There's been no indication
22 of hostility. The witness has freely responded

23 to your questions. Indeed I had to caution the
24 witness in terms of his overresponse to your
25 inquires.
26 MR. DOWD: Your Honor, the legal test
101
2 for hostility is not his demeanor. It does not

3 mean that he's taking a threatening tone.
4 THE COURT: I am aware of the legal
5 test. The legal test would be whether there is

6 any reticences in terms of his response to your
7 inquire. There has been none.

8 MR. DOWD: No, sir, the legal test is
9 whether or not his interests are adverse as a
10 matter of law. Here we are trying to invalidate

11 his petition which is adverse to his interest.
12 THE COURT: You've placed yourself in an

13 unusual position of calling this man as your
14 witness to substantiate your case, if you will,
Page 34
15 as you have brought it in the context of this
16 particular matter. And now you're seeking to

17 impeach him within the same context. I can't
18 allow that.
19 MR. DOWD: Thank you, your Honor, no

20 further questions.
21 THE COURT: Any cross?
22 MR. MANDELKER: No, sir.
23 THE COURT: The witness is excused.

24 Thank you very much.
25 We will take a five-minute break and
26 then we will call the next witness.
102

2 (Witness exits the courtroom.)
3 (Recess taken.)
4 MR. MANDELKER: Alan Handell.

5 THE COURT: Raise your right hand.
6 ALAN HANDELL, called as a witness, by
7 Respondent, having been first duly sworn by the
8 Court, was examined and testified as follows:

11 for the record.
12 THE WITNESS: Alan C. Handell, 320 west

13 87th Street, New York, New York 10024.
14 THE COURT: Noted for the record that at
Page 35
15 the based on the stipulation of counsel this
16 witness is being taken out of order. He is a
17 witness for the Respondent, Mr. Mandelker.
18 Do I have such a stipulation Mr. Dowd?

20 THE COURT: Mr. Mandelker?

22 THE COURT: You may begin your direct
23 examination.
24 MR. MANDELKER: Could we mark this
25 document for identification.
26 THE COURT: Is that a document that
103
1 Direct - A. Handell - by Petitioner
2 appears in the file of the County Clerk?
3 MR. MANDELKER: No.

4 THE COURT: What kind of document is it?
5 MR. MANDELKER: It is an Affidavit that
6 this witness prepared. I just want to ask him if

7 it fairly and accurately states his testimony and
8 Mr. Dowd will cross-examine.

9 THE COURT: Based on the Affidavit.
10 MR. MANDELKER: Based on whatever he
11 wants to do.
12 THE COURT: Mark it as Respondent's A.
13 (Whereupon, document is so marked

14 Respondent's Exhibit A for identification.)
15 THE COURT: You may begin your direct
Page 36
16 examination.
17 MR. MANDELKER: Thank you.

19 BY MR. MANDELKER:
20 MR. MANDELKER: It was marked for

21 identification.
22 THE COURT: Is there any objection?
23 MR. DOWD: I would like a foundation to
24 be laid.
25 THE COURT: I will Voir dire the
26 document.
104
1 Direct - A. Handell - by Petitioner
2 Mr. Handell, I am showing you a document

3 which has been marked as Respondent's A for
4 identification. It bears your name, contains
5 five paragraphs and your signature at the bottom.

6 Is that your signature?
7 THE WITNESS: Yes.
8 THE COURT: That was signed before
9 Vanessa Sevrino, S-E-V-R-I-N-O, a Notary Public

10 of the State of New York.
11 THE WITNESS: Yes.
12 THE COURT: And you remember signing
13 this document?
15 THE COURT: Do you want to take a moment
Page 37
16 to look at the document?
18 THE COURT: Did you read the document
19 before signed it?

20 THE WITNESS: I did.
21 THE COURT: And these are your

22 statements?
23 THE WITNESS: They are.
24 THE COURT: And they were made under

25 oath?
26 THE WITNESS: They were.
105
1 Cross - A. Handell - by Petitioner
2 THE COURT: The document is in evidence
3 sir?
4 MR. DOWD: No objection.

5 THE COURT: Mark the document into
6 evidence.
7 (Whereupon, document is so marked as

8 Respondent's Exhibit A in evidence.)
9 THE COURT: Respondent's A now in the

10 possession of the witness.
11 (Handing.)
12 MR. MANDELKER: May I question from

13 here?
14 THE COURT: I don't care.

Page 38
17 Q Mr. Handell, I show you copy of
18 Respondent's A in evidence and I ask you, do the

19 statements contained therein fairly and accurately
20 represent the events described in the document?
21 A Yes.
22 MR. MANDELKER: Your witness.
23 THE COURT: All right.
24 CROSS-EXAMINATION
25 BY MR. DOWD:
26 Q Good morning.
106
2 A Good morning.
3 Q Do you know who prepared this document?

4 A Yes.
5 Q Who?
6 A Dudley Gaffin.
7 Q How do you know Mr. Gaffin?
8 A I know Mr. Gaffin --
9 THE COURT: Is that Mr. Gaffin seated in
10 the front row.

11 THE WITNESS: Yes, it is.
12 THE COURT: I ask you to step outside.
13 MR. GAFFIN: Am I being called as a
14 witness?
15 THE COURT: I don't know and if you are,
16 I don't want you to hear the testimony.
Page 39
17 That was a wild guess on my part.
18 Continue.
20 Q How do you know Mr. Gaffin?

21 A I know him as a long-time lawyer in New
22 York Politics going back to Congressman Ted Weiss day.

23 I believe he was Congressman Weiss's attorney for many
24 years.
25 Q Has he referred you business in the past?

26 A No.
107

2 Q What sort of business dealings have you
3 ever had with Mr. Gaffin?
4 A Only probably through the Ted Weiss
5 campaign incorrectly.
6 Q Have you had any other interactions with
7 him over the years?
8 A Just as a friend and social events

9 occasionally.
10 Q And did there come a time that you

11 learned of any connection between Mr. Gaffin and Alan
12 Gerson?
13 A Yes. He called me and told me he was

14 helping Alan fight to stay on the ballot.
15 Q Do you recall around when this was?

16 A A couple of weeks ago.
17 Q And what did Mr. Gaffin tell you?
Page 40
18 A He asked if I would --
19 MR. MANDELKER: Objection hearsay.

20 MR. DOWD: He's here to testify, Mr.
21 Gaffin.
22 THE COURT: That is not the issue-- read

23 that back.
24 (Requested portion read.)
25 THE COURT: Overruled. It is not
26 hearsay. Overruled.
108
2 A He told me he was helping Mr. Gerson in
3 his fight to stay on the ballot.
4 Q Anything else?
5 A And that he would appreciate it if I
6 would sign an Affidavit as to what happened with the
7 miss-printed address on Alan's petitions.

8 Q And prior to that phone call a couple of
9 weeks ago, you had no other conversations with Mr.
10 Gaffin?
11 A No.
12 Q When did you first hear of the address
13 1505 LaGuardia Place?
14 A I heard of that -- I can't remember --I
15 don't have all of my records. I -- I think it was

16 right when the petitions were ordered and we typeset
17 the address and someone thought it was wrong. It was
Page 41
18 brought out that the address needed to be corrected.
19 Q Do you recall who saw it was wrong?
20 A I don't recall which individual. There
21 are a lot of people in the office doing petitions, I

22 don't recall which specific person saw the error.
23 Q Do you send out a proof for campaigns to

24 proofread?
25 A I did -- we did.
26 Q Did you do that in this case?
109
2 A Yes, we did.
3 Q Who signed the proof?
4 A I would not know which specific person
5 signed the proof.
6 Q Do you have a copy of the proof with you

7 here today?
8 A I do.
9 Q May I see it?

10 A Yes.
11 (Handing.)
12 THE COURT: Let's have that marked as
13 Respondent's B.

15 Respondent's Exhibit B for identification.)
16 THE COURT: Any objection to

17 Respondent's B being admitted into evidence.
18 MR. MANDELKER: I have not seen it.
Page 42
19 MR. DOWD: May he reinspect it.
20 THE COURT: Take a look at it.

21 MR. MANDELKER: No objection.
22 THE COURT: Mark that into evidence.

24 Respondent's Exhibit B in evidence.)
25 THE COURT: Respondent's B in evidence
26 now in the possession of counsel for the
110
2 petitioner.
3 MR. DOWD: I am handing Respondent's B
4 back to the evidence.
5 THE COURT: Respondent's B now in

7 (Handing.)
8 Q Sir, could you tell me what your office's

9 practice is when you received a -- that is a corrected
10 proof; is that right?
11 A Yes.
12 Q What is your office practice when you

13 receive a corrected proof?
14 A We make the corrections as indicated on
15 the proof and either show the customer a final proof
16 or go ahead and print the petitions if it is a simple

17 correction. Sometimes speed is so important to
18 people, they just trust me to do the correction and
Page 43
19 print.
20 Q Did your office send out any other
21 proofs?
22 A Not that I know -- not that I see here,

23 no, sir.
24 Q Now, you have a folder on the witness

25 stand.
26 A Yes, I did.
111
2 Q Did you bring any other documents with
3 you here today?

4 A Yes, I brought various job tickets for
5 the different Gerson petitions that we printed for
6 different clubs. When I prepared to come here I
7 wanted to try to recollect how it was done.

8 Q Do you have one there for the Truman
9 Club?
10 A I do.
11 Q May I see it?
12 A Yes.
13 (Handing.)
14 THE COURT: Let's have that marked as
15 Respondent's C for identification.

17 Respondent's Exhibit C for identification.)

18 THE COURT: Hand that to counsel.
19 (Handing.)
Page 44

22 (Pausing.)
23 THE COURT: Is there an objection?

25 THE COURT: Mr. Dowd?
26 MR. DOWD: No, your Honor.
112

2 THE COURT: Madam Reporter please mark
3 that into evidence as Respondent's C.
5 Respondent's Exhibit #C in evidence.)
6 MR. DOWD: May I describe it for the

7 record.
8 THE COURT: Why don't we ask the witness
9 to describe it. Why don't we have it marked into

10 evidence first.
12 THE COURT: Is it a number of documents,
13 a number of pages.
15 THE COURT: Why don't we staple it too.
16 Madam Reporter count the number of
17 pages.
18 (Pausing.)
19 THE COURT: Twenty pages plus the
Page 45
20 envelope so noted for the record.
21 Respondent's C, 20 pages and an envelope
22 is now in the possession of the witness. You may
23 proceed with your cross-examination Mr. Dowd.

24 (Handing.)

26 May I sample it.
113
2 THE COURT: I will take care of the
3 staple process at the conclusion of this
4 proceeding.
5 MR. DOWD: May I inspect?
6 THE COURT: You may inspect, sir.
8 (Pausing.)
11 THE COURT: Let's continue. You may

12 proceed.
13 Continued
15 BY MR. DOWD:
16 Q I am holding Respondent's C, it is not in

17 front of you now, could you just generally tell me
18 what this is?

19 A Yes, you should be holding the entire job
20 ticket for that order, including any correspondence,
Page 46
21 any orders, changing corrections, proofs that went
22 into the making up of that petition for that

23 particular customer, including the original order, the
24 proofs, the corrections.
25 Q So if the campaign sent you an address

26 correction it would be in this document I'm holding
114
2 here, Respondent's C; is that correct?

3 A Not necessarily. I can explain why.
4 Q Please.
5 A The system works that each candidate
6 takes care of his or her own block of copy. So that
7 if that customer, the Truman Club, would be

8 responsible for the Truman Club candidates only, being
9 the leadership, maybe judicial delegates. But that
10 the public officer holders that they put on the

11 petition would have read their own proof, as Alan
12 Gerson's people did on the job ticket, the Gerson only
13 petition. If that was approved, whatever that type
14 is, we would pick that block up each time somebody

15 requested Gerson so as not to have to reset and
16 possibly make a mistake down the road.
17 Q Okay.
18 So, if we saw in here -- withdrawn --

19 May I approach to ask a question?
20 THE COURT: Yes.
Page 47
21 Q I would like to ask you, Mr. Handell, we
22 see at the bottom of the first loose page of
23 Respondent's C a notation P63500 and then G and a
24 blank. What does that mean?

25 A That means this should be petition order
26 63, it manages the job number given to it that was
115

2 written in the logbook when it came in, it should have
3 been for 500 sheets and the paper color is the G, G
4 for green paper. So that when we make these -- when
5 we make these petitions up for printing we use those

6 numbers on the plate order P63500 green. So when
7 they're printed and packed they could be slotted to
8 the right people.
9 Q Now, on the petition order jacket which

10 is the envelope in which these 20 loose pages are
11 found, it says customer Harry S. Truman --
12 MR. MANDELKER: Excuse me. May we

13 approach?

16 THE COURT: All right. Continue.
17 You may proceed.

18 Q Now, we are looking at Respondent's C,
19 the petition order jacket, which is the envelope in

20 which the pages are found, and we see customer "Harry
21 S. Truman Dems;" is that correct?
Page 48
22 A Yes.
23 Q Is says "Responsible agent David

24 Weinberg?"
25 A It should be Weinberger.
26 Q Correct.
116
2 And that's for your print shop, the
3 customer who ordered this set of petitions?

4 A That should be; or the person someone
5 told me to put down as the person to contact if I have
6 a question about it or where to send the proof to, his
7 or her -- here is an e-mail address to send the proof
8 to, to the club itself, right. I have a phone number

9 for David and I have an e-mail address for the club.
10 That is where I would send the proof to.
11 Q Okay.
12 A This is the order that they put in. I
13 could explain what the circles mean.
14 Q Yes, if you could explain the system.
15 THE COURT: I am going to ask you to

16 respond to questions, not offer your own. Again,
17 as I have been indicating all morning, this is
18 not speech making forum. Just respond to queries
19 here.
21 Q And these notations we see on the upper
Page 49
22 left hand side, could you very briefly explain what
23 that means?
24 A Right.
25 So, this club ordered a petition, these

26 are my different codes. "Z" means, Z10 would come out
117
2 to be a party position District leader code, 64

3 Assembly District Part A.
4 And anything that is written and circled
5 means we'll typeset that for the first time.
6 So on this petition, we set up for the

7 Truman Club on this order, Weinberger, Bekritsky, the
8 female, County Committee box, Silver for the delegates
9 and Weinberger slate for the alternate delegates,
10 those were the new copy that only came in from this
11 club. We added to that petition three other things
12 that we had already set, because there's no circle we
13 would not reset it. Thompson for Mayor, Stringer for

14 Borough President and Alan Gerson for City Counsel.
15 That is what this order is for. And the last three

16 were not typeset, were picked up, as I explained
17 before, as blocks that were already set and proofread
18 by Thompson, Stringer and Gerson.

19 Q When we look at Page 2 of Respondent's C
20 and you see there 1505 LaGuardia Place; is that

21 correct?
22 A That's correct.
Page 50
23 Q And there's no correction next to that;
24 is that correct?
26 Q And we look on Page 4 of Respondent's C
118

2 and we see 1505 LaGuardia Place and there's no
3 correction next to that, is there?
4 A Not there on that proof, no.

7 (Handing.)
8 Q Now, moving to your Affidavit
9 Respondent's A in evidence, Paragraph 4, it says "They

10 did not order the corrected petitions."
11 What did you mean by that?
12 A I couldn't find in my records that that

13 petition for the Truman Club was reprinted with the
14 right address like the other clubs that we did.
15 Q I did not hear what you said.
16 A I could not find in my records, when I

17 went back, because of all the people asked me to
18 reconstruct the printing of all of the petitions for
19 Gerson, I could not find the reprint with the correct
20 address.
21 Q So --
22 A For the Truman Club. I found it for all
Page 51
23 the other clubs but I could not find it for the Truman
24 Club, we missed one, we didn't correct that address.
25 Q So, when you say they did not order the
26 corrected petitions. You mean the Truman Club did not
119
2 order corrected petitions you mean?
3 A Yes, right.
4 Q Now, in Paragraph 4, you say the persons
5 responsible for distributing the blank petition sheets
6 gave some signatures, gathered petition sheets with
7 the correct address and some were given sheets with

8 the incorrect address; is that correct?
9 You say you have been informed.
10 A I've been informed so I don't know for a
11 fact.
12 MR. DOWD: No further questions.
13 THE COURT: Any re-direct?

16 Thank you so much, sir.

17 We will take a two-minute recess and
18 call your next witness.
19 You may step down.

20 (Witness exits the courtroom.)
21 (Recess.)
22 THE COURT: Would you raises your right
23 hand, sir.
Page 52
24 DAVID RECK, a witness called on behalf
25 of the Petitioner, having been first duly sworn

26 by the Clerk, was examined and testified under
120
1 Direct - D. Reck - by Petitioner

2 oath as follows:
4 for the record.
5 THE WITNESS: David Bruce Reck, R-E-C-K,

6 I live 512 Greenwich Street, New York, New York
7 10013.
8 THE COURT: Witness for petitioner.
9 You may begin your direct examination,
10 sir.
12 BY MR. DOWD:
13 MR. DOWD: Thank you, sir.

14 Q Good morning.
15 A Good morning.
16 Q Mr. Reck, did there come a time that you
17 were involved in the process of preparing Alan

18 Gerson's designating petitions?
19 A Not precisely. I prepared -- I was
20 responsible for collecting signatures and I prepared
21 and bound petitions for the 66th Assembly District

22 Part B, which is my district, I'm a Democratic
23 District Leader, and those petitions were for myself
Page 53
24 and Noelle Jefferson and they also included Alan
25 Gerson. And those I was responsible for. I assisted
26 in the binding of other petitions that I was not in
121

2 the least bit responsible for.
3 Q Did there come a time that you received a
4 copy of the petition that was to be circulated?

5 A Absolutely. I received I would say about
6 seven or eight different kinds of petitions from the
7 printer that included various combinations of district
8 leader and candidates for citywide offices and all of

9 them included Alan Gerson.
10 Q And do you recall when it was that you
11 received Alan Gerson's sheets?
12 A I don't recall the precise date but it

13 was the day after petitioning started.
14 Q Did you review the petitions?
15 A Absolutely, I also do.

16 Q Did you see any errors in the petitions?
17 A No.
18 Q Did there come a time that you heard of
19 the address 1505 LaGuardia Place?
20 A Heard of the address? I'm not familiar

21 with the address.
22 Q Did there come a time that you learned of

23 any errors?
24 THE COURT: Let me caution you.
Page 54
25 You're being the queries are being posed
26 to you. You are not to pose queries to counsel.
122
2 If you don't know the answer say, I don't know.

3 THE WITNESS: Fine.
4 THE COURT: Repose the question.
5 Read counsel's question back.
6 (Question read.)
7 THE WITNESS: My response is, I have no
8 idea what that address is for.
10 You may proceed.
11 Continued
12 DIRECT EXAMINATION:
13 Q Did you there come a time that you
14 learned of any typographical errors in any of Alan

15 Gerson's sheets?
16 A I personally have not seen anything to do
17 with any of it. I heard of it by rumor only.
18 Q When did you hear of it by error?

19 A It was being discussed in the Alan Gerson
20 campaign office very recently here.
21 Q Who did you hear it from?
22 A Just people in the office.

23 Q Did you ever discuss it with the
24 candidate?
Page 55
25 A I believe that Alan noted that there was
26 some problem with some petitions. I have never seen
123
2 them.
3 Q When did you have this conversation?
4 A Very recently here, within the last week
5 or two.
6 Q Did you have any interactions with
7 Astoria Graphics?
8 A This campaign season.
9 Q Yes.
10 A No, none whatsoever.
11 Q After you proofread your petitions, did
12 you sign off on them?
13 A Sign off on them?

14 Q Yes. Did you receive a printer's proof
15 prior to --
16 A No, that was not part of my

17 responsibility whatsoever. I had nothing to do with
18 the printing of the petitions, other than to provide

19 my correct information for myself and for Noelle
20 Jefferson.
21 Q And after you received the sheets, did

22 you go out and collect signatures?
23 A Yes, absolutely. Noelle Jefferson and I

24 collected approximately 1,200 signatures and then I
25 assisted Avi Turkel, who is another District Leader
Page 56
26 candidate, and he submitted approximately 970
124
2 signatures. And although I was not responsible for
3 those petitions, I helped him bind them and submit

4 them to the Board of Elections.
5 Q Can you explain what you mean when you
6 say you bind petitions?
7 A There's simply --there's a very weird two

8 prong clip that I think you find on a lot of legal
9 things that petitions are punched for that, you put
10 piece of cardboard on the back, you arrange petitions,
11 you put the piece of cardboard on the top, you put the
12 volume label that you obtained from the Board of

13 Elections on the front page of it, and you number all
14 of the sheets, and then you count the sheets and add
15 up the petition signatures on them. I did not do all

16 of that. There were like four or five people doing
17 various parts of it, but I did various parts of it on
18 the number of volumes I was responsible for.
19 Q And in that process, did you review any

20 of the sheets for errors?
21 A A few, yes, the ones I was responsible
22 for, yes.
23 Q What types of errors?

24 A Any kind of error from the witness
25 signatures, there could be an error on the date that
Page 57
26 needs to be corrected and you need to track down the
125

2 person who carried the petition. And many of the
3 petitions, the way that we do that, we require the

4 person who witnessed the petition to sign it in the
5 presence of someone such as myself so that we could
6 make the corrections right then and there so that

7 they're no errors.
8 Q Did you make any of those corrections?
9 A I only made correction-- I pointed out
10 corrections to a couple of people. But seeing a large

11 volume of them were done by myself I did corrections
12 on my own. I am not entitled to make corrections on
13 sheets not done by me and I must get the person who
14 carried by the petitions.

15 Q Who did you have to make corrections?
16 A What do you mean?
17 Q You said you had a couple of other people

18 make corrections?
19 A People who carried petitions such as

20 myself and Noelle Jefferson. You would have to show
21 me the petition sheets before I remember the people
22 who actually carried. And, quite frankly, I don't

23 remember, seeing there were a tremendous number of
24 sheets. I don't remember who all had to make

25 corrections or which errors there were. There were a
26 tremendous number of sheets.
Page 58
126

2 Q Do you remember having discussions with
3 Renee Abramowitz?
4 A I have no idea who that person is.

5 Q What about Edward Braunstein?
6 A If they are not from the 66 Assembly Part
7 B, which these obviously were not, they were not my
8 responsibility and I had nothing to do with the people

9 who witnessed or carried. And I made no correction on
10 any of them other than the ones I were responsible
11 for.
12 THE COURT: Why don't we simply answer
13 the question, sir. Strike the answer and read

14 the question back.
15 (Question read.)
16 A This person is unknown to me and did not

17 carry in the 66 Part B.
19 Q What about Camden Ackerman?
20 A This person is unknown to me and did not

21 carry in the 66 Part B.
22 THE COURT: Carry that means signature?
23 THE WITNESS: Be a witness on the
24 petition. That is term supplied if you are

25 carrying the petition.
26 THE COURT: I am not familiar with what
Page 59
127

2 carrying means, but I appreciate the explanation.
3 MR. DOWD: May I?
4 THE COURT: Yes.

5 Continued
7 Q What about Jessica Loeser?

8 A I have no idea who the person is. She
9 did not carry in the 66 Part B.
10 MR. DOWD: I would like to show the
11 witness, if I may, Respondent's B in evidence

12 from the earlier proceeding.
13 THE COURT: Respondent's B of today?
14 MR. DOWD: No, that would be from the
15 prior proceeding.
16 THE COURT: From August 4th?
18 THE COURT: Respondent's B now in the

20 (Handing.)
21 MR. DOWD: May I see.
22 THE WITNESS: This is what you what the
23 petition cover sheet.

25 Continued
Page 60
128

2 Q And could you identify Respondent's B?
3 A This is a petition cover sheet. Eight
4 years ago when Alan ran for office I took the official
5 information and created a Microsoft Word Document that

6 produces this cover sheet, a legal cover sheet, and so
7 I was asked by Alan to prepare the cover sheet for him
8 again.
9 Q When did he ask you to do that?

10 A A couple of days before we submitted them
11 to The Board of Elections. I prepared cover sheets
12 for him and several other people, including myself.
13 Q When you say other people, you mean other
14 candidates?
15 A Other candidates such as myself Noelle
16 Jefferson, Avi Turkel, and Linda Bellfair who are all
17 District Leader candidates in Alan Gerson's district.

18 Q Now, were you paid by Alan Gerson?
19 A Absolutely not.
20 Q And so this document, Respondent's B, did
21 you prepare this?

22 A I entered the information on the sheet,
23 yes. I did not collect any of the petition --
24 THE COURT: Sir. Sir. Answer the
25 question.
26 THE WITNESS: Okay.
Page 61
129
2 A Preparation involves doing more than just

3 entering numbers. That is all that I did. I just
4 entered the numbers on the computer program, that's
5 all I did.
7 Q Is that your, at the bottom of the page,
8 is that your signature?

9 A Yes, that's correct.
10 Q And it says candidate or agent?
12 Q Now, did Alan Gerson's authorize you to

13 sign your name?
14 A Alan Gerson's authorized me to sign my
15 name to this piece of paper that is recorded to be
16 submitted by the petition.

17 Q Do you recall when he authorized you to
18 do this?
19 A He asked me to do it -- as I previously
20 noted to you, and previously stated here, he asked me
21 a couple of days before this was to be submitted to

22 the Board of Elections.
23 Q Now, prior to your preparing this, did
24 anyone make you aware of any printer's errors that had

25 occurred in the sheets?
26 A I knew absolutely nothing about any

Page 62
130
2 printer's errors.
3 Q Did anyone inform you about any
4 alterations that had been made to petitions?
5 A Absolutely not.
6 THE COURT: Could I have that back?

7 (Handing. )
8 Q And on this petition cover sheet, you
9 claim 13 volumes; is that correct?
10 A I do not claim anything. I was provided

11 this information and I was asked to put it on the
12 document and insert it into the computer program. I
13 do not claim anything about the volume numbers.
14 Q Who provided the information?
15 A The Gerson campaign.

16 Q And how was this done?
17 A I got a phone call from someone at the
18 campaign office who read me the volume numbers for

19 Alan and number of volumes.
20 Q And who was that person?
21 A You know, I'm not certain, but I believe
22 that I got half of it from David Horshaun and half

23 from Ray Klein. I'm not certain. I think those were
24 the two people who called me. It was done in a big
25 rush at the last minute.
26 Q You did not see these volume
Page 63
131

2 identification numbers?
3 A I only saw the volume identifying numbers

4 for what I personally prepared. Any volume number
5 that I did not work on -- in fact there are a number
6 of those volumes that I did not even lay eyes on.

7 Q Can you, looking at that sleet, tell us
8 which one you laid eyes on?
9 THE COURT: Respondent's B back in the

11 THE WITNESS: If I may, I have a list in
12 my bag of exactly the petition numbers that I
13 have handled. May I get that lift?

14 THE COURT: You may.
15 (Pausing.)
16 THE COURT: Let's mark that document as
17 Respondent's D -- actually Petitioner's 3 for

18 identification.
20 Petitioner's Exhibit #3 for identification.)

21 MR. MANDELKER: No objection.
22 THE COURT: The document is marked into

23 evidence as Petitioner's No. 3. You have no
24 objection?
25 MR. DOWD: No.

26 THE COURT: Give it to the reporter.
Page 64
132

3 Petitioner's Exhibit #3 in evidence.)

4 THE COURT: Noting for the record
5 Petitioner's No.3 is now in the possession of the
6 witness.
7 You may proceed Mr. Dowd.

9 Continued
10 DIRECT EXAMINATION.
11 A Looking at Respondent's B, which is the

12 cover sheet, and looking at Petitioner's 3, which are
13 your notes.
14 THE COURT: I am giving him Respondent's
15 B of 8/4/09 and Petitioner's No. 3 of this date
16 are both in the possession of the witness now.

17 (Handing.)
18 Q Could you sinally read the volume numbers
19 that you have personal knowledge of?

20 A Okay.
21 "The petitions from myself, which I was
22 personally responsible for and bound and submitted to
23 the Board of Elections is NY0900, which precedes all

24 of these 591, 590, 589, and 588. Those also include
25 the ones for Noelle Jefferson.
26 THE COURT: Please. Please. Sir.
Page 65
133
2 Q The numbers only.

3 A Those are the ones I --
4 THE COURT: Sir. Sir. Sir.

5 THE WITNESS: There were others around
6 here too, you have asked me about.
7 THE COURT: You have not been queried

8 about.
9 THE WITNESS: Yes, he asked me personal
10 knowledge.
11 THE COURT: Sir. Sir. The response is
12 sufficient. You may continue Mr. Dowd.
14 Continued
16 Q After you prepared and signed
17 Respondent's B, can you tell me what you did with it?
18 A This was submitted to the Board of

19 Elections, you could see the stamp right here, the
20 time stamp right here.
21 Q If I may, what did you do? Just what did

22 you, do your role?
23 A I submitted it to the Board of Elections,

24 the time staple indicates what time I brought it down
25 to the Board of Elections and it was submitted it.
26 Q You went personally to the Board of
Page 66
134

2 Elections --
3 THE COURT: He has answered your
4 question, sir.
5 You may continue.
6 Q This document is time stamped 10:04 am on
7 July 16th?
8 A If you say so, I believe that is correct.

9 Q If you could please look at Respondent's
10 B.
11 A Okay.
12 Q There's a timestamp on there, it says

13 2009, July 16, 1004 am. Does that appear to be
14 accurate?
15 A To my recollection, yes, that seems to be
16 correct, yes.
17 Q I would like to show the witness

18 Petitioner's 3 from the prior proceeding.
19 THE COURT: Hand up the other documents.
20 (Handing.)
21 THE COURT: Petitioner's 3 from 8/4/09
22 now in the possession of the witness.
24 Q Have you ever seen this document before

25 sir?
26 A No, sir I have not.
135
Page 67

2 Q Now, subsequent to --
3 THE COURT: Are you done with the

4 document?

6 THE COURT: Could I have the document
7 back.
8 (Handing.)
9 Q Subsequent to you filing Respondent's B
10 in evidence on July 16, 10:04 AM, did you have any
11 subsequent interactions with Alan Gerson's campaign

12 regarding the designating petitions?
13 A These designating petitions?
14 Q Yes.
15 A I'm not sure what you're asking. I don't

16 think so, no.
18 anyone from the campaign about any concerns they had
19 with the designating petitions for Alan Gerson's?

20 A Recently here there has been some
21 discussion about some kind of printer error. This --
22 I don't know that that is it, but this is the first

23 time I have ever actually seen any document that
24 relates to that.
25 Q When do you recall the first discussions
26 of printer errors coming up?
136
Page 68
2 A I believe I have already answered that

3 sir.
4 You asked me that question before. I
5 have already answered it.

6 Q After you filed Respondent's B, when is
7 the first time you heard of a printer's error do you
8 recall?
9 A Sir, I have already answered that

10 question very recently.
11 THE COURT: Mr. Reck.
12 THE WITNESS: Very recently I found out
13 about this.
15 Q Do you recall the date at all?
16 A No, I do not.
17 Q And following you're being informed of
18 this printer's error, did you take any action to

19 correct the printer's error?
20 A I had nothing to do with any of that.
21 Q Did you have any subsequent interactions

22 with the Board of Elections regarding the Gerson
23 designating petition?
24 A None whatsoever.

26 THE COURT: Cross-examination.
137
Page 69
1 Direct - J. Loeser - by Petitioner
2 MR. MANDELKER: No cross.
4 (Witness exits.)
5 THE COURT: We will take two-minute
6 break and then we will call the next witness.

7 (Recess taken.)
8 THE COURT: Call your next witness.
9 MR. DOWD: I would like to call Jessica

10 Loeser.
11 JESSICA LOESER, called as a witness,
12 having been first duly sworn by the Court, was

13 examined and testified as follows:
14 THE WITNESS: I do a firm.
16 for the record.

17 THE WITNESS: Jessica Loeser. 475 FDR
18 Drive, New York, New York 10002.
19 THE COURT: You may begin your Direct
20 Examination.
23 BY MR. DOWD:
24 Q Good afternoon.
25 Thank you for coming Ms. Loeser.

26 A Good morning.
138

Page 70
2 Q Did there come a time that you became
3 involved with Alan Gerson's efforts to get on to the

4 ballot in 2009?
5 A I collected signatures for slate of
6 Democratic candidates on the lower eastside and any

7 statewide and Alan is on that sheet.
8 Q Are you involved in a democratic club?
9 A I am.
10 Q What club is that?

11 A The Harry S. Truman Democratic Club.
12 Q What is your role?
13 A I'm the president.
14 Q When did you first see the sheets for

15 Alan Gerson's designating petition?
16 A Could I get a clarifications? I don't
17 understand. We're talking about his space on a slate
18 of candidates, is that it?
19 Q Let me show the witness.

20 THE COURT: Perhaps I should show the
21 witness. Are you speaking of Petitioner's 3 in
22 evidence?
23 MR. DOWD: Yes, three from the previous
24 hearing.
25 THE COURT: I have it in my hand and now
26 it is in the possession of the witness.
139
Page 71
2 (Handing.)
3 Q Ms. Loeser, I would like to refer you to
4 Petitioner's 3 in evidence.
5 A Uh-huh.
6 Q Could you identify --let me ask you to
7 turn to eight pages from the end of the document --

8 seven. It says sheet number five at the bottom of the
9 page.
10 A Okay.
11 Q And sheet number five, that photocopy
12 page is preceded by two other pages?
13 A Uh-huh.
14 Q Are those part of the same designating
15 petition sheets?
16 A Yes.
17 Q And whose signature is on sheet number

18 five?
19 A Mine is.
20 Q When did you first see this document?
21 A The first day of petitioning is -- may I

22 consult the calendar? It was the night before the
23 first day of petitions.
24 Q Absolutely --
25 THE COURT: What are we doing here.
26 THE WITNESS: Finding the date.
140

2 THE COURT: Put it up over here. I
Page 72
3 really don't want you using that.
4 THE WITNESS: Yes sure.

5 THE COURT: Now ask the question.
6 Q Do you recall when you first saw this
7 designated petition?
8 A The night before the first day of
9 petitioning, that Monday night, I don't recall the
10 date.
11 Q Do we have the Political Calendar?

12 THE COURT: The document that you're
13 speaking of is Petitioner's No.1 in evidence of
14 this date now in the possession of the witness.
15 (Handing.)
16 Q June 9th, the second entry there.
17 A Yes, I saw June 8th.
18 Q Thank you.
19 And you see on the second, the photo copy
20 page preceding sheet number five.

21 A Uh-huh.
22 Q Next to on the left-hand side we have
23 Alan J. Gerson's name?

24 A Yes.
25 Q And public offices. And next to that
26 places of residence. What do you see there?
141
2 A I see my initials with a scratch out.
Page 73
3 Q When did you make that scratch out?
5 Your Honor, may I just make --this is
6 the motion in limine and I'll make it for the

7 record.
8 MR. DOWD: Not in the presence of the

9 witness, your Honor.
10 THE WITNESS: I could step out.
11 THE COURT: I will ask the witness to

12 step down for a moment: You could sit at the
13 edge of the jury box.
14 MR. DOWD: She'll hear everything we

15 say, your Honor. The acoustics are great here,
16 your Honor.
17 THE COURT: That's great. Step up.
18 (Whereupon, a bench conference took

19 place between counsel and the Court.)
20
21 THE COURT: The motion in limine was
22 made to preclude further testimony with respect

23 to the witness, with respect to fraud. The
24 motion was based on allegations that counsel was
25 moving forward in violation of the Rules of the

26 Court, with respect to the conduct of Election
142

2 Law hearings. The Referee found that offer of
3 proof was sufficient to meet the Court's rules
Page 74
4 and the motion in limine was denied.

6 THE COURT: Madam, you may take the
7 stand again.
8 (Witness resumes the stand.)

9 THE COURT: You may proceed Mr. Dowd.
10 MR. DOWD: Was there a question pending?
11 THE COURT: Read the last question back.
12 (Question read.)
13 THE COURT: If you recall.
14 A Yeah, I'm trying to-- I don't recall the
15 exact date.
16 THE COURT: Give an approximation.

17 Answer to the best of your ability.
18 A Probably around July 7th when I signed
19 the bottom.
20 Q Now, do you recall whether -- look at
21 sheet number five, where you see the statement of

22 witness?
23 A Uh-huh.
24 Q And your name is printed there; is that

25 correct?
26 A Yes.
143

2 Q And did you print that in there?
3 A I did.
Page 75
4 Q Then it says there's also handwritings
5 475 FDR Drive, is that your print?
6 A It is.
7 Q And below that we see July 7th. You

8 wrote that in there?
9 A I did.
10 Q And you see on the right-hand side, some
11 handwritten notations. I am going to point these out
12 to the witness.
13 A Yes.
14 Q There and there.
15 A Yes.
16 Q Could you tell me what those are?
17 A They are my initials.
18 THE COURT: Note which lines we're
19 speaking to, sir.

20 Q I can't see on my copy.
21 A They're my initials. Is that what you
22 are asking?
23 MR. MANDELKER: It appears to be nine

24 and 15.
25 MR. DOWD: Yes, Line 9 through 15.
26 MR. MANDELKER: Nine and 15, not
144
2 through.
3 THE COURT: So stipulated.
Page 76
6 Q Now, why did you place your initials in

7 those places?
8 A It's a habit that after I finished a
9 sheet and I am not going to collect anymore and I am

10 going to sign the bottom, I make a cross out so that
11 there could be no more signatures collected on that
12 sheet.
13 Q It is your habit to sign the statement of

14 witness and then make the initial changes?
15 A No. First I cross out the blank spaces
16 and then I sign the bottom.
17 Q Now, moving, up to the page preceding,

18 go back to Alan Gerson's name appearing?
19 A Yes.
20 Q And there's a your initial change is next
21 to the 505 LaGuardia Place, correct?
22 A Uh-huh.
23 Q Why did you place your initials there?
24 A Because there's a cross out.
25 Q Who made the cross out?

26 A I did.
145
2 Q When did you make it?

3 A Probably on or around July 7th as I
4 stated before.
Page 77
5 Q Did anyone point out to you -- did anyone
6 discuss with you where Alan Gerson resided?
7 A It is a very broad question.
8 THE COURT: Madam.

9 THE WITNESS: Yes.
10 Q And when was that?

11 A From the time that I saw the petitions,
12 the night before, we went out to collect the
13 signatures, through right now.

14 Q And did you discuss the mistake with
15 anyone?
16 A Yes.
17 Q Who did you discuss it with?
18 A I discussed it with my fellow volunteers,
19 I discussed it with people I was collecting signatures
20 from. It was a known topic of conversation.

21 Q Did you discuss it with anyone from Alan
22 Gerson campaign?
23 A No.
24 Q Did you receive instructions from anyone

25 to change Alan Gerson's address?
26 A No.
146

2 Q Did you have any conversations with Mr.
3 David Weinberger about the error in Alan Gerson's

4 address?
5 A Yes.
Page 78
6 Q When?
7 A The night before the petitions went out.

8 Q Now did -- were you informed that
9 withdrawn.
10 Did you have any interactions with Mr.

11 Handell of Handell Graphics with reference to the
12 printing of these sheets?
13 A I did not.
14 Q Did you have any involvement in ordering

15 these sheets from the printer?
16 A No.
17 Q Did your club order corrected sheets from
18 Mr. Handell?
19 A I don't know the answer.
20 Q Did you change the address of Mr. Gerson
21 after this -- the person signed the petition?
22 A Yes.
23 Q What is your appointment?

24 A I'm an attorney.
25 Q And do you have experience in election
26 law?
147

2 A Some.
3 Q What sort of experience?

4 A I've been as a volunteer doing this for a
5 number of years and I've assisted candidates in
Page 79
6 different offices for different races, none this year,
7 none on this petition.
8 Q Now, in connection with collecting
9 signatures were you paid?

10 A No.
11 Q Did you have any employment related to

12 collecting these petitions?
13 A No.
14 Q Where are you currently employed?

15 A I'm sorry?
16 Q Where are you currently employed?
17 A I'm currently employed at the law firm of

18 Akerman S. Enterfitt, 335 Madison Avenue.
19 Q And you're attorney registered to
20 practice in the State of New York?
21 A I am.
22 MR. DOWD: May I mark for identification
23 Petitioner's 4?
24 THE COURT: For identification.

26 THE COURT: What is Petitioner's 4.
148
2 (Handing).
3 MR. MANDELKER: May we approach.
4 THE COURT: Yes.

6 THE COURT: On the record.
Page 80
7 Ms. Loeser, are you an attorney? You've
8 indicated you're a practicing attorney in this

9 state?
11 THE COURT: Are you current in your

12 registration?
13 THE WITNESS: I -- I don't know because
14 I'm due in the next week so I still have to
15 finish my -- I don't know.

16 THE COURT: What is your birth date.
17 THE WITNESS: June 2nd.
18 THE COURT: Did you register within
19 30 days of your birthday?

20 THE WITNESS: I got a waiver.
21 THE COURT: You got a waiver.
23 THE COURT: That was issued by the
24 Appellate Division?
26 THE COURT: And how much of a waiver did
149

2 they give you?
3 THE WITNESS: Two months.
4 THE COURT: So you're not due to

5 reregister until sometime in September, is that
6 what you're saying?
Page 81
7 THE WITNESS: Yes.
8 THE COURT: And you will timely
9 register?
10 THE WITNESS: Yes, absolutely.

11 THE COURT: I think that revolves the
12 issue.
13 MR. MANDELKER: Thank you, your Honor.
14 THE COURT: And you would so state under
15 oath, as an attorney, under the penalty of

16 perjury, that you did indeed receive that waiver?
17 THE WITNESS: Yes. Yes.

19 Q Do you go by the name of Jessica Tara
20 Loeser?
21 A It is my full legal name.
22 Q And do you work for the New York State

23 Assembly?
24 A No.
25 Q Have you ever worked for the New York
26 State Assembly?
150

2 MR. MANDELKER: I am going to object to
3 the entire line of questioning. It is his

4 witness.
5 THE COURT: I'm advising you Madam --

6 THE WITNESS: The records are out of
7 date. I have sent them --
Page 82
8 THE COURT: You must keep your
9 employment, your place of employment current with

10 the New York, whoever maintains-- the attorney
11 registration unit of the New York Office Court
12 Administration and I am informed you of this.

13 Have you done that?
15 THE COURT: And you will do that?
16 THE WITNESS: Yes, I will.

17 THE COURT: You will pay the fee?
19 MR. DOWD: It is a 30-day rule, your
20 Honor.
21 THE COURT: Apparently the witness has
22 indicated that she's received a waiver.
23 MR. DOWD: That's for registration, not
24 change of address.
25 THE COURT: She will correct whatever

26 deficiency she has with respect to the
151

2 registration. And I might add, there has been no
3 order issued by the Appellate Division suspending
4 her from practice at this time that I am aware
5 of.
6 MR. DOWD: That was not an allegation.
7 THE COURT: Then what is the allegation.
Page 83
8 MR. DOWD: I just wanted to know whose
9 paying her, if anyone --
10 MR. MANDELKER: Your Honor --
11 MR. DOWD: To collect signatures.

12 THE COURT: She's indicated that she has
13 not received compensation to that.

14 MR. DOWD: What is her employ. I'm just
15 asking.
16 THE COURT: She's testified as to that.

17 Are there any other issues?
18 MR. DOWD: Sometimes people have two
19 jobs, that's all.

20 THE COURT: Excuse me, sir.
21 MR. MANDELKER: May I move to strike the
22 preceding questions concerning --
23 THE COURT: You may move but is denied.

24 Right now, do you have anything further of the
25 witness?
26 MR. DOWD: I would like to know if she
152

2 has another employ currently or who other than
3 her law firm employed her, if anyone.
4 THE COURT: You may ask the question.

5 Continued
7 Q Aside from the law firm that you're
8 currently employed with during the period of
Page 84
9 collecting petitions, were you employed by anyone
10 else?
11 A No.
12 Q Now, following July 7th, did you come to
13 learn of any problems with the submission of Mr.

14 Gerson's petitions?
15 A I read about it in the paper.
16 Q Were you involved in amending any cover
17 sheets that were submitted --

18 A No, nope.
19 Q --to the Board of Elections?
20 A Nope.
21 Q Did you have any role in --withdrawn.

22 Did you have any conversations with Mr.
23 Gaffin about the changes made to Mr. Gerson's cover
24 sheets?
25 A I never.
26 THE COURT: Mr. Gaffin step outside.
153
2 (Pausing.)
3 THE COURT: Read the question back.
4 (Question read.)
5 THE WITNESS: No.
6 Q Did you have conversations with anyone

7 from Alan Gerson's campaign about changes made to the
8 petitions?
Page 85
9 A No.
10 Q Did you have any conversations with David
11 Reck about changes to the petitions?
12 A No.
13 Q Any conversations with David Weinberger
14 about changes to the petitions?

15 A No.
16 Q Did you have conversations with any of
17 the other signatories to the petitions about changes

18 to their petitions?
19 A No.
20 Q Did you have any conversations with Renee

21 Abramowitz about the signature gathering process?
22 A Of course.
23 Q Sorry?
24 A Of course.
25 Q Did you discuss with Renee Abramowitz
26 changing Alan Gerson address from 1505 to 505
154
2 LaGuardia Place?
3 A I don't recall.
5 Edward Braunstein about changing Alan Gerson's address

6 from 1505 LaGuardia Place to 505 LaGuardia Place?
7 A I have a question. You preface these

8 questions --
9 THE COURT: Wait, wait, wait. Ask the
Page 86
10 question again -- read the question.
11 (Question read.)
12 THE COURT: The answer to that would be
13 yes or no.
14 THE WITNESS: My question is about

15 timing. Once the questions were submitted.
16 THE COURT: The answer is yes or no.
18 Q When?
19 A The night when we collected all the
20 petition sheets.
21 Q After you collected the petitions?
22 A Yes.
23 Q Did you tell him to change it?
24 A Uh-huh -- yes.
25 Q Did you have any conversations was Camden
26 Ackerman about changing Alan Gerson's address?
155
1 Cross - J. Loeser - by Respondent
2 A Yes.
3 Q When did that conversation take place?

4 A The night we were binding our petition
5 sheets.
6 Q And you told him to change it?
7 A Yes.
9 THE COURT: Any cross-examination?
Page 87
10 MR. MANDELKER: Yes, sir may. I just
11 have a moment.
14 (Pausing.)
15 Q Miss Loeser, do you have before you

16 Petitioner's Exhibit 3 from August 4th.
17 A Yes.
18 Q It is a copy of the petition, yes?

19 A Yes.
20 Q Okay.
21 Now could you turn to the page that has

22 your signature. You signed that on July 7th?
23 THE COURT: Indicate what page in the
24 exhibit it is.
25 MR. MANDELKER: It is a page that at the

26 bottom says sheet number five.
156

2 THE COURT: There are no other sheet
3 number fives in this exhibit.

4 MR. MANDELKER: None other that says the
5 word sheet number five.

7 Q You have that page before you?
8 A I do.
9 Q When did you obtain the signatures that
10 appear on that sheet?
Page 88
11 A July 7th.
12 Q And when you obtained signatures on a

13 designating petition, when you did it this year, is
14 there anything in particular that you say to the
15 voters before they sign?

16 A Yes.
17 Q What is it?
18 A I ask them if they are registered
19 democrat, I ask them if they live in the neighborhood,

20 and then I ask them to help get our local Democratic
21 slate on the ballot by signing a petition.
22 Q And did there come a time during this
23 process with respect to each person that you asked to

24 sign, that you described the public officers that are
25 mentioned in the petition?
26 A Yes. People frequently ask whom am I
157

2 signing for, what is this about, so I go through each
3 office and describe.
4 Q Did there come a time during the process

5 with each voter that you made reference to Alan J
6 Gerson?
7 A Yes.
8 Q And could you tell us what it was your

9 habit and what did you say to voters when they signed
10 the petition concerning Alan J Gerson?
Page 89
11 MR. DOWD: Objection to form.
12 THE COURT: Overruled. We're on
13 cross-examination.
14 A I referred to him as our counsel member

15 or representative in the city counsel.
16 Q Thank you.
17 What was the reason that you crossed out
18 the "one" in 1505 LaGuardia Place in the address box
19 for Alan Gerson?

20 A I know he lives at 505 LaGuardia Place
21 and I was just correcting it. I thought I was
22 correcting it.
23 Q All right.
24 Now, do you know if other petition
25 gathers, such as I think you were asked about Mr.
26 Ackerman and you were asked about a Camden Ackerman
158
2 and Edward Braunstein?

3 A Yes.
4 Q Do you know of your own knowledge what,

5 if anything, they said to voters concerning Mr. Gerson
6 when they were gathering petition signatures?
7 A I don't know.
8 THE COURT: That's a good answer. Okay.
9 Q Did you instruct them at all one way or

10 the other?
11 A Could you repeat the question.
Page 90
12 Q Did you in instruct either Mr. Braunstein
13 or Mr. Ackerman about what to say to voters whose

14 signatures they were soliciting concerning Mr. Gerson?
15 A Yes.
16 Q What did you instruct them to say?

17 A That he's our counselman. I pointed out
18 the general areas of his district. That's about it.
20 No further questions.
21 THE COURT: Any re-direct?
22 MR. DOWD: No, sir.
24 Thank you so much:

25 We have one more witness.
26 MR. DOWD: Yes.
159

2 (Witness exits.)
3
4 RENEE ABRAMOWITZ, called as a witness,
5 having been first duly sworn by the Court, was

6 examined and testified as follows:
7 THE WITNESS: I affirm.
8 THE COURT: Do you so affirm?
9 THE WITNESS: Yes.

10 THE COURT: Note that for the record.
11 You may begin.
Page 91
14 BY MR. DOWD: Good afternoon Ms. Abramowitz.
15 MR. MANDELKER: Might I ask the witness

16 to keep her voice up. I am having difficulty to
17 hear.
18 THE COURT: Please keep your voice up so
19 that the reporter could take down every word
20 you're saying, it is the most important, and that

21 I could hear you.
22 THE COURT: Yes.
23 MR. DOWD: May I show the witness

24 Petitioner's 3?
25 THE COURT: Petitioner No. 3 is now in
26 the possession of the witness.
160
2 (Handing.)
3 Q I would like to Ms. Abramowitz, I would

4 like to ask you to look at Petitioner's 3 and turn to
5 the third page.

6 Is that your signature there?
7 A Yes.
8 Q On sheet number one?

9 A Yes.
10 Q And the two preceding pages are part of

11 the same sheet; is that correct?
12 A Yes.
Page 92
13 Q And looking at sheet number one, do you
14 know when you -- looking at sheet number one and your

15 signature, do you recall when you signed this
16 document?
17 A Where I only see initials?

18 Q I am sorry. I cannot hear you.
19 A There's only initials on the top.
20 Q Let me show you sheet number one.
21 A Turn the page.

22 Q The third page.
23 A That is my signature and I signed it on
24 6/09.
25 Q So that's June 9, 2009?

26 A Yes.
161
2 Q And you reside 5004 Grand Street, E11?

3 A Yes.
4 Q And you wrote each of the individuals
5 whose names are subscribed to this petition sheet
6 containing 14 signatures, subscribed the same in my

7 presence, on the dates above indicated and identified
8 himself or herself to be the individual who signed the
9 sheet.
10 A Yes.
11 Q And I would like you to turn to the
12 previous page. And we see the name Alan Gerson there?
Page 93
13 A Yes.
14 Q Now, on the right hand side straight
15 across we see places of residence and below that we
16 see 505 LaGuardia Place. Do you see that?

17 A Yes.
18 Q And prior to the 505 there's a little

19 hand written notation and next to that there's some
20 initials. Could you tell me what that is?
21 A RA.
22 Q And do you know who that is?
23 A Do I know who that is?
24 Q Are those your initials?

25 A No.
26 Q Did you make that change?
162

2 A No.
3 Q I would like to turn your attention to
4 Page 6 and down at the bottom it says sheet number

5 two.
6 A This one?
7 Q Yes.
8 And is that your signature?
9 A Yes.
10 Q And you signed it on what date?
11 A 6/9.
12 Q June 9th?
13 A June 9th.
Page 94
14 Q Thank you.
15 Now, moving a page earlier, again we see

16 Alan J Gerson.
17 A Okay.
18 Q And across from that we see again 505

19 LaGuardia Place.
20 A Yes.
21 Q A handwritten notation and some initials.
22 Are those your initials? Did you write them in?

23 A No, I didn't.
24 Q Did you make that change?
25 A No, I did not.
26 Q How did you receive these sheets who gave
163
2 them to you?
3 A I was given it at my work.

4 Q Who?
5 A It was just at my desk so I wasn't the
6 one I don't know the person who someone handed it. I
7 just had it on my desk.

8 Q Where do you work?
9 A I work 500A Grant Street.
10 THE COURT: What do you do?
11 THE WITNESS: Nurse Director of Patient

12 Services and Head Nurse.
13 Q Of what entity?
Page 95
14 A United Jewish Counsel Home Attendants
15 Service Corporation.
16 Q And you don't know who gave you this
17 sheet?
18 A No, it was on my desk and I volunteered
19 to go out and get signatures.

20 Q Did you discuss this with anyone?
21 A Meaning?
22 Q Well, when you got the sheet, was there a

23 note on the front?
24 A No, I've done this -- I have done this
25 many years. So I know when the sheets on my desk, I

26 just go out and I volunteer to do signatures.
164
2 Q And who -- when you got it and you

3 decided to volunteer, did you contact anyone?
4 A No.
5 Q Did you discuss the signature gathering

6 process with anyone?
7 A No.
8 Q When you collected the signatures who did
9 you give them to?
10 A I leave it on my bosses desk.

11 Q Who is your does?
12 A Howard Fried.
13 THE COURT: F R I E D.
14 Q And did you have any discussions with Mr.
Page 96
15 Fried about this?
16 A No.
18 THE COURT: Cross-examination.
19 MR. MANDELKER: No cross.

21 THE WITNESS: Thank you.
22 THE COURT: Do we have any other
23 witnesses.
24 MR. DOWD: No, sir.
25 THE COURT: Any witnesses Mr. Mandelker.
165
1 -Proceedings-
2 THE COURT: Have a seat.
3 Off the record.
5 THE COURT: Rather than to hear
6 summations, it is my custom to allow the parties,
7 if they so wish, to submit a memorandum or
8 memoranda of law in support of their respective

9 positions.
10 The memorandum or memoranda of which I
11 speak are affirmative in nature but nevertheless
12 must be served adversarially.

13 Inasmuch as we have a limited time
14 space, I must have a report available to the
Page 97
15 parties, and to Justice Lehner no later than --in
16 a manner timely enough so that the parties might
17 move to confirm or vacate whatever it is that I
18 may put in my report.

19 I am somewhat limited in the leeway that
20 I could give you to submit the memoranda or

21 memorandum of which I speak.
22 Off the record.
23 (Whereupon, an off the record discussion

24 was held.)
25 THE COURT: As such, I am directing that
26 you furnish me, if you show choose, a memorandum
166
1 -Proceedings-
2 of law in support of your respective positions on
3 the two matters, same bearing index number 110759

4 of 2009 and 110688 of 2009, you may combine the
5 memoranda, if you wish, into one memorandum of
6 law and I ask that you furnish the matter

7 together with me with the complete proceeding of
8 the August 4, 2009, as well as today's proceeding

9 of August 6th of 2009.
10 You will furnish that to me by e-mail no
11 later than 2:00 p.m. on August 7th at my e-mail

12 address which is LLOWENST@courts.state.NY.US.
13 Alternatively you may fax the documentation of

14 which I have spoken, the memoranda of law and the
15 transcript of this procedure at 212-457-2661.
Page 98
16 You will, inasmuch as I have indicated,
17 that this matter must be exchanged adversarial,

18 you will simultaneously serve each other in any
19 way you wish by either e-mail, by fax, or
20 personal delivery within one hour of furnishing

21 me with the documentation to which I have spoken,
22 specifically the memoranda of law, and the
23 transcription of this proceeding.
24 MR. MANDELKER: Mr. Dowd and I have

25 stipulated to exchange by e-mail.
26 THE COURT: Then it is so stipulated on
167
1 -Proceedings-
2 the record; is that correct?

3 MR. DOWD: Yes, sir. And yesterday's
4 transcription was 66 pages, so would you mind if
5 we forwarded yesterday's transcription by e-mail

6 now so that we make sure we have the right
7 e-mail.
8 THE COURT: Yes, that would be good.
9 MR. DOWD: That would avoid the fax.

10 THE COURT: As you wish.
11 MR. DOWD: Simultaneously, when she
12 e-mails you send the second transcript.
13 THE COURT: You will make arrangement

14 with the reporter.
15 THE COURT: Other than that does anyone
Page 99
16 have anything further to add to the record?
17 MR. MANDELKER: Thank you very much for
18 an expeditious hearing.
19 MR. DOWD: Like nice.

20 THE COURT: My pleasure.
21 At this time the record of this

22 proceeding is closed. This matter stands in
23 recess. Thank you.
24 Noting for the record that Justice

25 Lehner has scheduled oral argument in this matter
26 for 2:15 on August 12th. The Appellate Division
168
1 -Proceedings-
2 has agreed to hear any arguments resulting from
3 action in this Court on August 18th. And I might
4 further add, I don't believe you have to wait

5 until August 18th to submit to the Appellate
6 Division, that is their last day to hear oral
7 argument or argument in this matter. I am not

8 sure which date has been designated for Court of
9 Appeals, but I am directing you to check the law

10 journals or with the Clerk of the Court of the
11 precise date.
12 At this time the record of the

13 proceedings is closed and the matter stands in
14 recess.
Page 100
17 * * *
18
It is hereby certified that the
19 foregoing is a true and accurate transcript of
the proceedings.
20
21
______________________________
22 DEBORAH A. ROTHROCK, RPR
Official Court Reporter
23
24
25
26
Page 101

Gleason V Gerson

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Gleason V Gerson

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080609 Gleason v Gerson

2 SUPREME COURT OF THE STATE OF NEW YORK

26 DEBORAH A. ROTHROCK, RPR

DEBORAH A. ROTHROCK, RPR

3 Justice Sherri-Klein Heitler and Justice Edward

6 Elections, et al., said matter bearing Index

8 I, Leslie S. Lowenstein, has been

9 designated as a Special Referee to hear and

11 application brought by Peter Gleason to invalid

12 the designating petitions of candidate Alan J.

15 presence of counsel, the parties agreed that the

16 transcription of this proceeding would not be

17 waived and that the cost of the transcription

20 MR. DOWD: Yes, sir.

22 THE COURT: Could I have the appearances

25 Miller, 1359 Broadway, Suite 600, New York, New

DEBORAH A. ROTHROCK, RPR

6 For Respondent Alan Gerson, Lawrence

7 Mandelker, Kantor, Davidoff, Wolfe, Mandelker,

10 Trimming from the law firm of Gaffin & Mayo

11 located at 225 Broadway, New York, New York.

13 THE COURT: Okay.

14 At this time, Mr. Dowd, inasmuch as this

15 is your petition to invalid, it would strike me

16 that you have the burden of proof and you would

18 Bearing in mind, as I indicated on Tuesday, that

19 an opening statement is just that, it is there

23 Do you wish to proceed with an opening

DEBORAH A. ROTHROCK, RPR

2 MR. MANDELKER: If I may, I will make it

4 THE COURT: As you wish.

7 presented in the validate proceeding, which

9 Board of Elections may be used in this

12 other words, any evidence properly admitted in

13 either proceeding can be considered by the

14 Referee in both cases.

16 MR. MANDELKER: Yes, sir.

17 MR. DOWD: Yes.

18 THE COURT: So ordered.

20 MR. DOWD: Thank you.

21 This morning our issue is -- we really

23 designating petition of Alan Gerson substantially

26 New York for designating petitions for the Office

DEBORAH A. ROTHROCK, RPR

4 THE COURT: I assume Mr. Dowd, we're

7 MR. DOWD: No, this is the invalidate

11 MR. DOWD: The issue presented here, is

12 whether or not the designating petition was valid

14 of the Board of Elections of the State of New

16 THE COURT: You may proceed.

17 MR. DOWD: If we look at the Election

19 to make rules regarding cover sheets and the

20 Election Law itself contained provisions that

23 candidate is off the ballot, is on the candidate

24 to show that he has complied with the Election

DEBORAH A. ROTHROCK, RPR

3 Now, the Respondent has to show full

5 cover sheet issue. And what we're going to do is

8 compliance with the Election laws. And, in

10 designating petition that was unauthorized and

11 violates the Election Law. And we are going to

13 of the Board of Elections, that there was no

15 At the Board of Elections on July 24th