District Court of Nassau County, First District, February 25, 2019

Scaring & Carman, PLLC, Garden City, for defendant.

Madeline Singas, District Attorney, Hempstead, for plaintiff.

The defendant initially moved for an order of preclusion seeking to prevent a potential prosecution witness from testifying about his past performance in the New York City Police Department. The District Attorney countered with a cross motion to preclude certain defense evidence and permit the introduction of particular evidence at trial. The prosecution also raised the issue in their initial motion of what legal standard would be given in the final charge to the jury since the underlying crime{**63 Misc 3d at 718} of improper "electioneering" is not defined in the statute. In response, the defendant filed a motion challenging the constitutionality of some of the charges filed against the defendant as well as a motion to disqualify the Nassau County District Attorney from prosecuting the case. The defendant also seeks dismissal pursuant to CPL 170.40 and 170.30 (1) (g) in the interests of justice.

The various applications are made following a pretrial suppression hearing adjudicating the admissibility of statements made and after the setting of a trial date.

The defendant is charged by a prosecutor's information charging violations of Election Law § 17-102 (10) and (12) together with a single count of Penal Law § 195.00 (1) (official misconduct). The defendant, an election official, is alleged to have placed sample ballots for a party primary on September 12, 2017, in which a handwritten arrow pointing to the name of one candidate and the adjoining oval shaded in with the handwritten words "fill in oval here" on the voting registration table where the ballots were distributed. The primary concerned the designation of a candidate for the 15th Legislative District in the Nassau County Legislature.

Election Law § 17-102 (10) prohibits in pertinent part "[b]eing an officer, teller, canvasser, or inspector, at a primary election or caucus, [who] knowingly . . . permits electioneering within the polling place or within one hundred feet therefrom."

Election Law § 17-102 (12) prohibits

"[b]eing an officer, teller, canvasser, election inspector, clerk or employee of the board of elections or any officer of a political committee or a convention, [who] wilfully omits, refuses, or neglects to do any act required by this chapter or otherwise by law, or violates any of the provisions of the election law, or makes or attempts to make any false canvass of the ballots cast at a primary election, caucus or convention, or a false statement of the result of a canvass of the ballots cast thereat."

Penal Law § 195.00 (1) reads "[a] public servant is guilty of official misconduct when, with the intent to obtain a benefit or deprive another person of a benefit: . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized."{**63 Misc 3d at 719}

The District Attorney initially sought a determination pretrial to define the statutorily undefined term "electioneering." Building upon the cited perceived uncertainty of the applicable statutes, the defendant now challenges the constitutionality of Election Law § 17-102 (10) and (12) and Penal Law § 195.00 as applied to him since he had no notice of what constituted "electioneering" under the Election Law nor of "unauthorized exercise of an official function" under the Penal Law. The defendant argues the failure of the law to specify the standards of conduct with sufficient definitiveness results in arbitrary enforcement. The defendant cites other instances of acts which are argued to be electioneering in the same primary as the defendant but were not prosecuted. The defendant argues there is no statutory guidance nor decisional law to provide guidance to a layperson. The defendant also argues the prohibition against electioneering is limited to the historic roots of bribing of voters at the voting site. Further, the defendant contends that the placement of sample ballots cannot be seen as an intentional attempt to sway an election.

The District Attorney counters that the defendant as an election inspector is subject to the prohibitions against electioneering set forth in Election Law § 17-102 (10) and (12). These laws, according to the prosecutor, are not unconstitutionally vague since "electioneering" has its commonly understood meaning. The prosecutor goes on to state that raising the question of how to define electioneering in the moving papers and requesting guidance from the court in advance of trial should the issue arise during jury deliberations was not a concession that the statute is unconstitutionally vague. The prosecutor asserts "electioneering" is neither vague nor ambiguous under the law.

Duly enacted statutes are presumptively constitutional. Therefore, the challenging party must demonstrate "beyond a reasonable doubt" that the statute suffers from wholesale constitutional impairment. (People v Davis, 13 NY3d 17, 23 [2009], quoting Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003].)

The Court of Appeals has set forth a two-part test for determining challenges of statutes on grounds of vagueness. First, a statute must be "sufficiently definite to give a person of ordinary intelligence fair notice that [the] contemplated conduct is forbidden" (People v Stuart, 100 NY2d 412, 420{**63 Misc 3d at 720} [2003] [internal quotation marks omitted], quoting People v Nelson, 69 NY2d 302, 307 [1987]). Second, the court must determine whether the statute provides clear standards for enforcement.

The requirement to provide clear standards for enforcement is required so that the individual(s) do not apply the statute on an ad hoc or subjective basis (Grayned v City of Rockford, 408 US 104, 108-109 [1972]).

Statutory interpretation is guided in the first instance by the principles of interpretation set forth in McKinney's Consolidated Laws of NY, Statutes § 150. The provision directs that a law is presumed to be constitutional. Rules of construction dictate that a court must adopt the interpretation that a statute is constitutional if the language is subject to two constructions, one constitutional and the other unconstitutional. Additionally, in the interpretation of criminal statutes, "[w]ords employed in . . . a statute should be given their ordinary and usual meaning" (Statutes § 276, Comment).

[1] The argument that the use of the statutorily undefined term "electioneering" in the Election Law charges in this case creates an ambiguous situation in which this defendant had no way to discern what the law prohibited is without merit. The failure to define each term in a criminal statute does not render the statute void for vagueness (People v Garson, 6 NY3d 604, 618 n 7 [2006]; People v Nelson, 69 NY2d 302, 308 [1987]). Nelson holds the standard for evaluating the claim of vagueness is not hypothetical situations, but rather the actual facts of the case. Here, the placement of sample ballots which suggest voting for one candidate over another can, if believed by a jury, be electioneering.

The political process is in fact electioneering. Dictionary definitions define electioneering as "to canvass votes for, or otherwise work for the success of, a candidate, political party, etc. in an election" (Collins English Dictionary, electioneer [http://collinsdictionary.com/dictionary/english/electioneer]), "the activity of trying to persuade people to vote for a particular political party" (Cambridge English Dictionary, electioneering [https://dictionary.cambridge.org/us/dictionary/english/electioneering]), "to work for the success of a particular candidate, party, ticket, etc., in an election" (Dictionary.com, electioneer [https://www.dictionary.com/browse/electioneering]), or "to work for the election of a candidate or party" (Merriam-Webster Online Dictionary, electioneer [https://www.merriam-webster.com/dictionary/electioneer]).{**63 Misc 3d at 721} The common principle in each definition is an attempt to influence a voter. The activity prohibited under Election Law § 17-102 is to improperly attempt to influence a voter inside the polling place or within 100 feet of the polling place.

Electioneering by definition is the process by which political groups convince voters to cast ballots for or against particular candidates, parties or issues (such as ballot issues, school board budgets or referendums). The Election Law statutes do not restrict otherwise legal constitutional rights such as wearing a shirt with a graphic "vote" depicted (Minnesota Voters Alliance v Mansky, 585 US —, 138 S Ct 1876 [2018]). The New York Election Law statutes prohibit electioneering within a restricted area (a 100 foot radius of the polling place) and require election officials to enforce the ban on electioneering within that space. Such restrictions have been upheld as constitutional (Burson v Freeman, 504 US 191, 193-194 [1992]).

Here, the allegation is that placing sample ballots identical to the actual ballots with the oval of one candidate filled in with the words "fill in oval here" and an arrow pointed to only one of the two candidates listed is an attempt to suggest how a ballot should be cast. The allegations of the present case do not raise otherwise protected issues like the expressive restriction on apparel as in Minnesota Voters Alliance. While courts have scrutinized and found such restrictions impacting free speech issues unconstitutionally vague, the situation here varies greatly.

The statutes at issue in this case implicitly require an intent to influence voters to vote in a particular way. Therefore, law enforcement officials are not left to apply an undefined standard. Law enforcement officials routinely are called upon to assess the evidence to determine whether a violation of a statute occurred. The determination is not equated with vagueness but rather one of sufficiency of proof to meet a standard of conduct which is prohibited.

Statutes may employ open-ended or broad descriptions so as not to require an endless list of prohibited actions (see People v Perez, 51 Misc 3d 1215[A], 2016 NY Slip Op 50661[U] [Crim Ct, NY County 2016], citing William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Penal Law § 240.26). The role of the court is to interpret and clarify the words used in statutes (see People v Piznarski, 113 AD3d 166 [2013]). Interpretation and clarification are not to be equated with vagueness.{**63 Misc 3d at 722}

Applying the constitutional test for vagueness to the facts in this case, the statutes in question are not unconstitutionally vague. The claim of vagueness of Election Law § 17-102 as it applies the use of the term "electioneering" under the facts of this case is denied.

Since the use of the term "electioneering" is not unconstitutionally vague, prosecution of an election official accused of electioneering within a polling place in violation of his official function under Penal Law § 195.00 (1) is likewise not constitutionally impaired.

The defendant moves to dismiss the charges in the interests of justice in accordance with CPL 170.30 (1) (g).

The Criminal Procedure Law requires for a case to be dismissed when the prosecution of the defendant for the offense charged would constitute or result in an injustice (CPL 170.40 [1]). Consideration must be given to the following factors:

"(a) the seriousness and circumstances of the offense;

"(b) the extent of harm caused by the offense;

"(c) the evidence of guilt, whether admissible or inadmissible at trial;

"(d) the history, character and condition of the defendant;

"(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

"(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

"(g) the impact of a dismissal on the safety or welfare of the community;

"(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

"(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

"(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose." (Id.)

[2] The defendant argues that the charges lodged against the defendant are but misdemeanors. The defendant, according{**63 Misc 3d at 723} to the moving papers, is alleged to be only the actor who transported altered sample ballots and placed them on the voting registration table. He is not alleged to have engaged voters.

The defendant goes on to claim no harm resulted from the offense. The defendant claims that members of the campaign team for the complainant committed criminal acts for which no prosecution resulted.

The defendant asserts the actions taken which resulted in his arrest to be a mistake, to be without malice. The defendant presents himself as someone with no criminal history and who has suffered penalties.

The defendant cites law enforcement misconduct, media pressure and the District Attorney aligning with the complainant as reasons for dismissal. The complainant is the bad actor according to the defendant.

Finally, the defendant repeats the position that the statutes upon which the prosecution is based did not intend to make the alleged actions of the defendant criminal.

While the moving papers on behalf of the defendant emphasized the lack of a criminal record, the absence of a criminal past is insufficient to warrant dismissal (People v Kelley, 141 AD2d 764 [2d Dept 1988]).

The decision to dismiss an information pursuant to CPL 170.40 is within the discretion of the court, but the discretion is neither absolute nor uncontrolled (People v Wingard, 33 NY2d 192 [1973]). Dismissal may be exercised only in that rare and unusual case which cries out for fundamental justice beyond the confines of conventional considerations (People v Federman, 19 Misc 3d 478 [Crim Ct, NY County 2008]).

Upon consideration of each of the statutory factors, the arguments of the defendant cannot be said to be that rare case which necessitates dismissal.

The motion to dismiss the charges pursuant to CPL 170.30 (1) (g) is denied.

[3] The defendant seeks to disqualify the District Attorney from further prosecution of this case and seeks appointment of a special prosecutor. The application is based upon photographs of the District Attorney with a supporter, Adam Sakowitz, of James Coll, the challenger to the incumbent, John Ferretti for whom the defendant worked as a volunteer.{**63 Misc 3d at 724}

The defendant claims that photographs establish Sakowitz should have been arrested for Election Law violations during the primary in question, together with the role played by Sakowitz during the investigation for the actions which led to his arrest in this case.

The defendant contends that the involvement of Sakowitz creates a conflict of interest for the District Attorney since no charges were brought against Sakowitz and instead the defendant was singled out. The defendant includes photographs from the Sakowitz Facebook page depicting the District Attorney to establish a connection between the two.

The District Attorney is the constitutional officer charged for all prosecutions of crimes within the County for which she is elected under County Law § 700 (1) (Matter of Holtzman v Hellenbrand, 130 AD2d 749 [2d Dept 1987]). Therefore, the District Attorney has broad discretion to decide whom to prosecute (id. at 750); absent a clear showing of an abuse that exercise of discretion should not be disturbed. Choosing whom to prosecute and for what charges remains a discretionary decision entrusted to a district attorney (Ogunkoya v Monaghan, 913 F3d 64 [2d Cir 2019]; People v Eboli, 34 NY2d 281 [1974]).

The cited evidence does not establish a conflict in the prosecution of the charged defendant since the actions of Sakowitz and the defendant are independent of each other. Further, the defendant fails to establish that the prosecution of the defendant represents a conflict. The fact that a district attorney adopts factual assertions of one witness does not in and for itself represent a conflict or an impermissible exercise of discretion which requires appointment of a special prosecutor (Holtzman at 750).

The motion for disqualification of the District Attorney based upon the allegations of the defendant is denied.

The issues seeking evidentiary rulings in advance of the trial shall be held for argument prior to the selection of a jury in this case.