080609 Gleason v Gerson

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080609 Gleason v Gerson

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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

DEBORAH A. ROTHROCK, RPR

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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.


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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


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080609 Gleason v Gerson71

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 Elections19 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


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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


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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 my20 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.


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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.


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1 Direct - A. Gerson - by Petitioner

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080609 Gleason v Gerson2 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.


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2 A It was contained within an envelope thatPage 10


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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.



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2 THE COURT: Let's move on.

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080609 Gleason v Gerson3 MR. DOWD: Yes, sir.

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.


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2 Q Are you aware of any persons collecting

3 signatures on your behalf on June 9, 2009?Page 12


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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.


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2 MR. DOWD: The response was, "If I had

3 my calendar I would be able to answer the

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080609 Gleason v Gerson4 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.


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2 Q When?

3 A I first saw petitions printed by the

4 printer when I went over to the printer one eveningPage 14


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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 end24 of it.

25 THE WITNESS: Yes, sir.

26 I do not recall who else.


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2 Q Did you speak to the printer about the

3 problem?

4 A Yes.

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080609 Gleason v Gerson5 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


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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 thePage 16


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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 ever25 been declared hostile here.

26 MR. MANDELKER: Objection leading.


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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

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080609 Gleason v Gerson6 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


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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


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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 day26 because there was a problem with that printer or the


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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

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080609 Gleason v Gerson7 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?


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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


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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


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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

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080609 Gleason v Gerson8 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


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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


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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


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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

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080609 Gleason v Gerson9 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?


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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 thePage 24


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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,


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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

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080609 Gleason v Gerson10 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


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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


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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?


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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.

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080609 Gleason v Gerson11 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?


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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


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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.


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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

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080609 Gleason v Gerson12 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


31/101


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.

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080609 Gleason v Gerson13 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 ofPage 32


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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

1 Direct - A. Gerson - by Petitioner2 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?

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080609 Gleason v Gerson14 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


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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:

9 THE WITNESS: I do.


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

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080609 Gleason v Gerson15 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 directPage 36


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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 for4 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


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080609 Gleason v Gerson16 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.


16 BY MR. MANDELKER:Page 38


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40/101

080609 Gleason v Gerson17 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


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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 I6 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

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080609 Gleason v Gerson18 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


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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

6 possession of the witness.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

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080609 Gleason v Gerson19 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


45/101



21 MR. MANDELKER: Thank you.

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

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080609 Gleason v Gerson20 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

14 CROSS-EXAMINATION

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


47/101


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, being9 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.

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080609 Gleason v Gerson21 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


49/101


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

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080609 Gleason v Gerson22 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


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23 Q And there's no correction next to that;

24 is that correct?

25 A That's 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

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080609 Gleason v Gerson23 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


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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.

11 DIRECT EXAMINATION12 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

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080609 Gleason v Gerson24 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


55/101


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?

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080609 Gleason v Gerson25 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 LeaderPage 56


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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 all14 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

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080609 Gleason v Gerson26 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


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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

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127


2 carrying means, but I appreciate the explanation.

3 MR. DOWD: May I?

4 THE COURT: Yes.

5 Continued

6 DIRECT EXAMINATION:

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

26 DIRECT EXAMINATION:

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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 Noelle16 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.

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080609 Gleason v GersonDEBORAH A. ROTHROCK, RPR

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?

11 A That's correct.

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

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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


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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.


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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.


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080609 Gleason v Gerson134


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.


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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.

17 Q Did you have any conversations with

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?


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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.

25 MR. DOWD: No further questions.

26 THE COURT: Cross-examination.


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080609 Gleason v Gerson1 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.


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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 the21 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

1 Direct - J. Loeser - by Petitioner

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080609 Gleason v Gerson2 (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. IPage 72


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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.

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080609 Gleason v Gerson3 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 th

080609 Gleason v Gerson

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