After 20 years,

On January 12, 2017

Illegal Voting Conviction — Held Out as Example of 'Double Standard' — Vacated
Andrew Denney/NYLJ

Lawyer Dennis Kelly, left, and his client, attorney John O'Hara, at Brooklyn Supreme Court on Thursday

A Brooklyn attorney's nearly 18-year-old illegal voting conviction—one he described as an act of political retribution by former District Attorney Charles Hynes—was thrown out on Thursday.

John O'Hara's conviction was vacated at the state Supreme Court building in downtown Brooklyn, which has seen more than 20 exonerations in recent years, but typically for defendants wrongly convicted of more serious crimes like murder or sexual assault.

"When you're a convicted felon, it's like you're a second-class citizen," O'Hara told reporters shortly after Acting Brooklyn Supreme Court Justice Miriam Cyrulnik granted his 440 motion.

The case stemmed from O'Hara registering to vote and voting from a building in the Sunset Park section of Brooklyn owned by his ex-girlfriend, which prosecutors argued was not O'Hara's actual residence.

O'Hara was the first New Yorker to be convicted of illegal voting since 1873, when suffragist Susan B. Anthony cast a vote before women were legally allowed to do so.

O'Hara, 54, worked on Hynes' first district attorney campaign in 1989. Following his own unsuccessful run for the New York State Assembly, the following year he began working on "insurgent" campaigns to challenge Hynes and other members of Brooklyn's Democratic establishment.

O'Hara had lived in an apartment on 61st Street in Brooklyn and voted from that address, but redistricting in the early 1990s put his apartment in a different election district.

O'Hara filed a new registration form stating his residence was at the 47th Street basement apartment of the building owned by his ex-girlfriend, which put O'Hara back in his old district. He voted under the 47th Street address five times.

In October 1996, O'Hara was indicted on charges of offering a false instrument for filing in the first degree, false registration and five counts of illegal voting.

O'Hara stood trial three times in cases that revolved around the question of principal residence under Election Law definitions. Neighbors testified that O'Hara did live at the address, but the previous owner of the building testified that the basement was unfinished at the time, and thus uninhabitable.

The Appellate Division, Second Department, ordered retrial on the first conviction, citing an improper jury charge. The second trial ended with a hung jury and the third resulted in a guilty verdict in July 1999.

Because he was convicted of a felony, O'Hara was disbarred. The Second Department reinstated O'Hara in 2009 upon a unanimous recommendation by the 25-member Character and Fitness Committee, which said it had "grave doubts that Mr. O'Hara did anything that justified this criminal prosecution."

In his 2013 run against Hynes, Kenneth Thompson, who won the race but died in October from cancer before completing his first term, criticized the case against O'Hara. During an August 2013 debate, Thompson said O'Hara's case was "an example of 'double standard Joe' … If you're in with Joe then you get a pass. And if you challenge him or you challenge any of his political allies, then you have problems."

Under Thompson, the Brooklyn DA's office worked to vacate convictions for more than 20 defendants.

O'Hara's case is the first under Acting District Attorney Eric Gonzalez—who Thompson hand-picked to run the office before his death and who has vowed to carry out Thompson's legacy—in which a conviction has been tossed.

Like the other wrongful conviction cases, the Brooklyn DA's conviction review unit scrutinized O'Hara's conviction. Assistant district attorney Mark Hale, the head of the unit, told Cyrulnik on Thursday that the previous owner of the building where O'Hara had registered to vote had recanted her original testimony that the basement was uninhabitable.

"Because of that uncertainty, we would posit that justice would not be served by going forward with a trial against Mr. O'Hara," Hale said.

Following his reinstatement, O'Hara got back to work as an attorney; of the cases he's taken on, he represented the estate of the late John Phillips, a Brooklyn Civil Court judge who died in possession of a large portfolio of Brooklyn real estate, at one point estimated to be worth about $10 million, but without leaving a will.

O'Hara's attorney, Dennis Kelly, said his client plans to file a civil rights action against Hynes and former assistant district attorney John O'Mara, who worked on O'Hara's criminal prosecution, for malicious prosecution and other claims.

"He was corrupt all the way through his tenure," said Kelly, of the Law Offices of Dennis J. Kelly.

Sean Haran of Walden Macht & Haran, who has represented Hynes in federal criminal matters, declined to comment.

Haran was Hynes' lawyer during an investigation by Eastern District U.S. Attorney Robert Capers into Hynes' alleged misuse of forfeiture funds, which ended in December without charges being filed.

Mirel Fisch of the Law Office of Anthony M. Grandinette, who also appeared for O'Hara, said O'Hara's counsel plans to file a notice of claim.

But for now, O'Hara plans to celebrate the fact that his name has been cleared. "I'm going to go have a chicken quesadilla," he said.


How, then did busy Brooklyn Prosecutors Fall Upon Mr. O'Hara?
NY Times
Read here

John O'Hara: The definitive timeline
Brooklyn Paper
Read here

A groundbreaking exposé of O'Hara's fight for justice for Judge John Phillips
A Life in Court: Friendship and Corruption Inside the Brooklyn System

by by Alysia Santo, The Brooklyn Ink
Read here

O’Hara was indicted by the Brooklyn District Attorney, Charles Hynes, for a crime that the New York Daily News editorial board called a “prosecutorial jihad”. John was charged with registering to vote, and voting. He didn’t vote twice in the same day, nor did he vote from a false address. His crime was that he had two apartments in the same neighborhood he’s lived in for his entire life, and the one he voted from was not his “principal and permanent” residence. Charged with seven felony counts, John was facing 28 years in prison for voting. The last person to be tried for “illegal voting” took place in 1873 in Rochester, New York. The defendant in that case was Susan B. Anthony.

Confined by probation for 5 years, fined $20,000, disbarred as an attorney and ordered to do 1,500 hours of community service, John never became bitter or disillusioned. But he also never gave up.

The case of People –v– O’Hara has became one of the most expensive criminal cases in New York’s history. John’s only real crime was refusing to bow to the crown of the corrupt party machine. An act for which he should be honored, not condemned.

Capital Tonight interview with John O'Hara