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Residency Redefined Under the Election Law

New York Law Journal
July 19, 2000

by Peter Sweeney


Peter P. Sweeney is a partner at Schwimmer & Sweeney.

In People v. OHara,(1) decided June 19, 2000, the Second Department unanimously upheld the felony conviction of John O'Hara, an attorney and frequent political candidate, for voting and registering to vote from a place that did not qualify as his residence under the Election Law.

The OHara case is the first ever resulting in an affirmed conviction for false voter registration and illegal voting based on improper residence. In fact, O'Hara is one of a few cases in the history of New York jurisprudence where false registration and illegal voting has even been prosecuted. I filed an amicus curie brief on this case on behalf of the New York City League of Women Voters.

One of the last reported convictions for illegal voting was of Susan B. Anthony, a pioneer of the women's suffrage movement. She was convicted in Rochester, N.Y., in 1876 for false registration and illegal voting based on the fact she was a woman. Notably, out of her struggle formed The League of Women Voters.'

The O'Hara case is most unusual in that the Court applied a standard for residence under the Election Law that was substantially more inflexible than any standard applied before. The O'Hara conviction raises all sorts of questions, one being the legitimacy of Hillary Clinton's bid for the Senate. As Hillary is registered to vote in Westchester County, she falls within the jurisdiction of the Second Department's recent definition of a voting residence.

This article will review the seminal civil cases interpreting residence under the Election Law and show that prior to the O'Hara case, residence has uniformly been interpreted liberally allowing voters and candidates considerable leeway in choosing a residence for Election Law purposes. Next, it will examine People v. Ramos, (2) the only reported criminal case in New York interpreting residence under the Election Law prior to O'Hara. The article will show that the Ramos court also interpreted residence liberally dismissing an indictment on the ground that an instruction on residence given to a grand jury was too rigid. The instruction given in Ramos was similar to the one given in O Hara. The article will then examine the unusual factual and procedural history. of O'Hara, concluding that it is contrary to well established precedent and should be reviewed by the Court of Appeals.

Standard for Residence
Bressler v. Holt-Harris, (3) perhaps best illustrates how liberally the Court of Appeals has interpreted residence under the Election Law. In Bressler, the Court of Appeals held that a candidate's residence was sufficient for Election Law purposes even though a candidate recalled having slept there only once in seven years. His wife never slept there and his children had never even seen the residence. The candidate's wife and children had lived in another county for over 20 years.

In Gladwin v. Power, (4) the Court of Appeals held that a candidate's office address constituted a legal residence under the Election Law even though the candidate's husband and son had resided at another address. The Court found significant the fact that she and her husband agreed she could have a voting residence at her office for the "purpose of furthering her career, professionally, fessionally, politically and socially."

Indeed, prior to O'Hara, even the Second Department applied a liberal interpretation of residence under the Election Law. In Geller v. Lasher (5) decided in 1993, the Court upheld a finding that a candidate maintained a valid residence for Election Law purposes in a one bedroom apartment which he owned but was subletting to a tenant for the tenant's exclusive use. It was undisputed that the candidate's wife and six children resided in a five-bedroom house in a different district. The apartment was held to be a valid residence under the Election Law even though the trial court found the apartment to be "a residence of convenience." The trial court stated that "[a]Ithough unexpressed by the Court of Appeals, it is an inescapable conclusion that the case law does, in fact, recognize the validity of a voting address." The trial court also found that the candidate "artfully contrived to fit himself within the meaning of the term 'residence' as interpreted by the case law."

Split in the Departments
Before the O'Hara case the only criminal case in New York involving an interpretation of residence under the Election Law was People v. Ramos. As in O Hara, the defendant in Ramos was a candidate for public office. He was charged with false voter registration, illegal voting and other related crimes based upon the People's contention that he registered to vote and voted from a place that did not qualify as his residence under the Election Law. When the People presented the case to the grand jury, the prosecutor charged that a legal voting residence had to be "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return." The prosecutor's instruction was based on a verbatim reading of the definition of residence set forth in Election Law §1104(22). Although the grand jury returned a true bill, the trial court later dismissed the indictment concluding that the charge was erroneous. Relying on Gladwin a Power, Justice Bamberger held that "[a]s long as a residence is not a sham, the candidate is free to choose [a] residence for voting purposes even if the candidate lives there only occasionally." She went on to say that the instruction on residence was improper because it did not discuss the "need to determine that a residence is a sham in order to void the defendant's choice of ... his voting address." She also stated that it was error for the prosecutor to "simply read the election law definition of residence to the grand jury." Justice Bamberger's decision and order were affirmed by the First Department, withh the Court of Appeals denying the People's leave application.

'People v. O'Hara'
After three jury trials and two appeals, john O'Hara was convicted of seven felony counts; five counts of illegal voting and two counts connected with his voter registration card. He has been disbarred as an attorney, stripped of his right to vote, sentenced to five years probation, ordered to perform 1500 hours of community service and fined over $20,000. The gravamen of each count was simply that he was not a resident within the meaning of the Election Law of his ex-girlfriend's house at 553-47th Street, Brooklyn, New York, the only address from which he registered to vote and voted in 1992 and 1993. As reported by The New York Times, the "prosecution was unusual ... because virtually all cases of questionable residency claims by political candidates are handled as civil suits, in which the worst penalty, if the courts disbelieve a claim, is to be thrown off the ballot." (6) The prosecution was also unusual because it was one of a very few cases that resulted in three separate jury trials. The People's decision to prosecute Mr. O'Hara itself raises some interesting questions.

Mr. O'Hara admitted all along that one of the reasons he began living on 47th Street in 1992 and 1993 was to establish a residency for the purposes of holding a seat on the City Council. For over 20 years before moving to the 47th Street address, he had been living in an apartment on 61st Street. In 1991, the Coucilmanic district lines in Brooklyn were redrawn excluding his 61st Street address from the district he lived in most of his life. If elected to the City Council, Mr. O'Hara was obligated to reside in the district in which he was elected. There was no requirement, however, that he reside in the district when he ran for office or when he sought a slot on the ballot. (7) The residency requirement is triggered only after a person begins office. Mr. O'Hara ran in the democratic primary in 1993 for a slot on the ballot but lost. Thus, even if the 47th Street address did not qualify as his residence under the Election Law, his primary run was lawful. His crimes only involved voting and did not involve his pursuit of public office. Mr. O'Hara kept his apartment on 61st Street and claims to have lived there as well as at the 47th Street address in 1992 and 1993 when he voted and registered to vote. Mr. O'Hara maintained during all three trials that his attachments to the 47th Street address were real and substantial and qualified him to use it as his voting address.

During all three trials, O'Hara presented evidence demonstrating his attachments to the 47th Street address. His checking accounts, credit card and registration with the Office of Court Administration listed the 47th Street address as his residence during 1992 and 1993. His taxes and driver's license listed 61st as his address. Four of his neighbors, one a school principal, testified as to seeing him coming and going from the 47th Street address during that period. Two family members also testified that he lived at the 47th Street Address in 1992. Mr. O'Hara took the stand on his own behalf at his second and third trials and testified that he often lived at the 47th Street address in 1992. Prosecutors called the landlord of the 61st Street address who confirmed that Mr. O'Hara still had a lease for the 61st Street apartment in 1992 and 1993. Prosecutors also called the 61st Street mailman who confirmed that Mr. O'Hara was receiving mail at 61st Street in 1992-1993. The People also called two tenants of the 47th Street address who testified that they never saw Mr. O'Hara living there.

At the conclusion of the first trial, over Mr. O'Hara's objection, the court instructed the jury that to qualify as a legal voting address, the 47th Street address had to be "that place where [Mr. O'Hara] maintained a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return." As in Ramos, this portion of the charge was a verbatim reading of the definition of residence contained in the Election Law Although the court then charged that "a candidate who has two residences may choose one to which he has legitimate, significant and continuing attachment as his residence for purpose of the election law," the court concluded the charge by emphasizing that any "address chosen by the defendant as his residence must comport with the Election Law definition of residence." The court did not instruct the jury that it had to find that the 47th Street residence was a "sham" to find Mr. O'Hara guilty, the Ramos standard, nor did it give a charge on residence consistent with the civil standard in Bressler, Gladwin or Geller.

For the first time in the annals of New York jurisprudence, in the only criminal case of its kind, the court insisted that to qualify as a legal voting residence under the Election Law, the residence had to meet the stringent requirement of being a principle and permanent home and that place a voter always intended to return to. Since one can only have one principldand Dermanent residence, Mr. O'Hara's e erise o a dual residence was no longer available to him. The court also gage a missing witness charge against Mr. O'Hara based on his failure to produce his ex-girlfriend as a witness.

After sending out a note requesting further instructions on the definition of residence, and after hearing the initial charge repeated, the jury convicted Mr. O'Hara on all counts. Mr. O'Hara appealed the conviction, maintaining that the missing witness charge and the charge on residence were improper.

After having completed over 450 hours of community service consisting of cleaning garbage from the parks in his neighborhood and reporting to his probation officer for over fourteen months, his conviction was overturned by the Second Department. (8) The court reversed the conviction solely on the grounds that the missing witness charge was erroneous. The Court further ruled that Mr. O'Hara's other points on his appeal were "either unpreserved for Appellate Review, or without merit." The Court did not explain or address the reasons for upholding the trial court's charge on residence.

Ironically, Prosecutors sought leave from the Court of Appeals to consider "the unquestionably important issue of state-wide concern, the interpretation and application of the election law residence definition in situations of multiple residences." The Court of Appeals denied leave as the People were appealing a non-final order.

Mr. O'Hara was then tried a second time and the second jury sent out a near identical note as the first jury, asking for the legal definition of a "voting residence." After hearing the charge on residence repeated, the jury was unable to return a unanimous verdict and the trial ended in a mistrial.

As a result of the third trial, where an instruction was given on residence similar to the one in the first trial, Mr. O'Hara was convicted on all counts. This time, the Second Department affirmed the conviction. Although Mr. O'Hara again appealed the judgment of conviction and again maintained that the instruction on residence was erroneous, the court held that "on [the prior] appeal, we rejected defendant's contention that the Supreme Court's instruction regarding the definition of 'residence' was not erroneous." Mr. O'Hara is in the process of making a leave application to the Court of Appeals.

Not only has O'Hara created a conflict between the First and Second Departments regarding how residency is interpreted under the Election Law in criminal cases, it conflicts with how the Court of Appeals has interpreted residency in the civil arena for the better part of this century. O'Hara is most unusual in that it has created a more stringent standard for residence to be applied in a criminal proceeding than in a civil proceeding. Although not charged with any crimes connected with running for office, in reality, Mr. O'Hara's crime was that he continually ran for office and lost. Is this what has become of our electoral process -winners take office, and the losers go to jail - or is this just an unheard of criminal prosecution against a political activist who refused to bow to the Crown?

Hopefully the Court of Appeals will resolve this issue in the upcoming term.

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(1) People v. O Hara, New York Law Journal, May 26, 2000.
(2) People v. Ramos, Sup. Ct Bronx Co., Ind. No. 5993/94, Nov. 9, 1994, Aff'd, 223 A.D.2d 495 (1st. Dept.) leave denied, 87 NY2d 1024 (1996).
(3) Bressler v. Holt-Harris, 30 N.Y.2d 529 (1972). "Valid residence was found when voter admittedly only stayed at residence one night in seven years, while residing with wife and children in another county for over twenty years."
(4) Gladwin v. Power, 21 AD-2d 665 (1st Dept.) aff'd, 14 N.Y.2d 771 (1964). "Residence in the 6th Assembly district for the purpose of furthering her career, professionally, politically, and socially, did maintain a legal residence voting from an office." See, also, Ferguson v McNab, 60 N.Y 2d 598, 600,467 !. N.Y.S.2d 192,454 N.E.2d 532 (1983), and, Gallagher v. Dinkins, 41 A.D.2d 946, 343 N.YS.2d 960 (2nd. Dept. 1973) aff'd 32 N.Y 2d 839, 346 N.YS.2d 268, 299 N.E.2d 681 (1973) See also; Anderson v. Moore, 196 AD.2d 602, 601 N.YS.2d 867 (2nd Dept. 1993); and laboni u. Sunderland, 175 A.D.2d. 893, 573 N.Y.S.2d 625 (2nd Dept. 1991) and Umland v. Board of Elections, 143 A.D.2d 240, 241 (2nd Dept. 1988).
(5) Geller u. Lasher, 196 AD.2d 613 (2d: Dept.) aff'd, Berger v. Lusher, No 24296/93 (Sup. Ct. Kings Co. Aug. 9,1993), leave denied, 82 N.Y2d 654 (1993).
(6) See "For Perennial Candidate, Conviction Clouds Future," The New York Times, June 16, 1997, sec. B, pg. 3, col. 5, See also "Charges of Fraud and Revenge Mark Candidate's Third Trial," The New York Tunes, June 14, 1999, sec. B, pg. 5, col. 3.
(7) See, Clark v. McCoy, 196 A.D.2d 607, 601 N.Y.S.2d 190 (2nd Dep't 1993).
(8) People v. O Hara, 253 A.D.2d 560, leave denied, 92 N.Y2d 984 (1998) (Wesley, J.)