INDEX NO.

59775/2023
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/28/2023

To commence the statutory time for appeals

as ofright (CPLR 5513[a]), you are advised
to serye a copy of this order, with notice of
entry, upon all parties.

SUPRIME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER
x
In the Matter of the Application of
LISA MARIA NERO, GINA R. JACKSON, and
BEATRICE JOY HABER,

Petitioners-Aggrieved Candidates, DECISION ORDER AND

JUDGMENT
-against- Index No.: 5977512023
Return Date: 04124n023
JUDITH A. BEVILLE, MANUEL E. ARECES, ANd Seq. No.: I

WILBERT PRESTON,

Respondent-Candidates,

-and-

WESTCHESTER COUNTY BOARD OF ELECTIONS,

Respondent.

For a final order pursuant to New York State Election Law

$ I 6- 102 invalidating a petition designating ( I ) Judith A.
Beville as a candidate in the primary election to be held on
June27,2023, for the nomination of the Democratic Party
as its candidate for the public office ofGreenburgh Town
Clerk, (2) Manuel E. Areces as a candidate in the primary
election to be held on lune 27 , 2023, for the nomination of
the Democratic Party as its candidate for the public office
of Greenburgh Town Council Member, and (3) Wilbert
Preston as a candidate in the primary election to be held on
June 2'7 ,2023, for the nomination of the Democratic Party
as its candidate for the public office of Greenburgh Town
Council Member.
X
DAMARIS E. TORRENT, A.J.S.C.

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The following papers numbered I to l0 were read on petitioners' application for an order

declaring invalid a certain Designating Petition:

PAPERS NUMBERED
Order to Show Cause / Verified Petition / Exhibits I - 7 1-9
Verified Answer to Petition r0

Petitioners as aggrieved candidates bring this proceeding seeking an order invalidating a

certain Designating Petition,r by which respondent-candidates Judith A. Beville, Manuel E. Areces

and Wilbert Preston2 seek to be included on the ballot for the primary election for the Democratic

Party to be held on June 27,2023. Petitioners assert that the entire Designating Petition is

permeated with fraud and that Mr. Areces and Bishop Preston engaged in fraud in connection with

the submission ofthe subject Designating Petition to the respondent Westchester County Board of

Elections (BOE). Petitioners allege, in sum and substance, that certain signatures on the

Designating Petition are not genuine, that certain Witness Statements on the petition sheets are

false, and that other irregularities warrant an order invalidating the entire Designating Petition.

Petitioners further seek a line-by-line review of the signatures on the petition sheets,

asserting various objections to such signatures and seeking to have individual signatures

invalidated. The Designating Petition contains 2,185 signatures, and petitioners asserted

objections to 1,167 of those signatures. Petitioners concede that, even if all of their objections

were to be sustained, the Designating Petition would contain I ,01 8 valid signatures, more than the

1,000 signatures required for the respondent-candidates to appear on the primary ballot.

Petitioners contend, however, that in the event that they do not prevail on their claim that the entire

Designating Petition is permeated with fraud, all of the signatures collected by Mr. Areces and

Court Exhibit L
' The Designating Petition ofthe respondent-candidates was marked into eyidence as
r Respondent-Candidate Presron has been a minister for 47 years and has eamed the tide of Bishop and is known in
rhe community as Bishop Preston. The Courtwill accordingly refer to Bishop Preston by his eamed title.

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Bishop Preston should be voided on the ground offraud, and that the voiding ofall such signatures,

together with the line-by-line invalidation of signatures witnessed by other individuals, would

bring the respondent-candidates below the 1,000 signature threshold.

The respondent-candidates appeared as directed by the terms of the Order to Show Cause

on April 24, 2023, and on April 25, 2023, as directed by the Court, filed a Verified Answer

containing affi rmative defenses.3

Hearing on the petition was held on Aprit 26 and 27,2023. Petitioners called four

witnesses. The testimony of witnesses Mary Colon, Rodney Lederer-Plaskett and petitioner Lisa

Maria Nero related to the presence ofa certain sheet from the Designating Petition, designated as

Sheet 72, which they observed to contain certain undated signatures, on a pharmacy counter at a

location known as Valuable Drugs on Tarrytown Road. Because the candid testimony of Bishop

Preston later resolved the issues raised by the testimony ofColon, Lederer-Plaskett and Nero, the

credibility of these witnesses is not in question, and the details oftheir testimony are not set forth

at length herein.

The Court observed the demeanor of petitioner's other witness, Gerald Jones, and found

him to be credible. Mr. Jones testified in sum and substance that he signed his name on Sheet 59

of petitioners' designating petition4 and that he recognized the name Lisa Maria Nero on the

witness statement at the bottom of the sheet, and that he remembered signing that petition at

ACME. He testified that he knows Ms. Nero from school and knows that she is running for Town

Clerk. He further testified that he signed his name on Sheet 50 of the challenged Designating

Petition and recognized the name wilbert Preston on the witness statement, and that he knows

r The Court specifically rejects the respondent-candidates'contention that the verified petition fails to plead fraud
with suffi cient particularity.
a
Petitioners' designating petition was marked into evidence as Court Exhibit 2'

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Bishop Preston and has attended the Bishop's church a few times. He also confirmed that he

signed his name on Sheet 8 ofthe Designating Petition, and he testified that he remembered signing

that sheet for his neighbor Naomi Beaman, whose name appears on the witness statement on that

sheet. However, Mr. Jones testified that his name and address appear on another sheet in the

Designating Petition, designated as Sheet 85, but that he did not sign his name nor place his address

on that sheet. He maintained on cross-examination that he did not sign Sheet 85 of the Designating

Petition. On re-direct, Mr. Jones testified that he does not know Mr. Areces, whose name appears

on the witness statement on Sheet 85.

Petitioners did not call any further witnesses, but did not rest. as petitioners maintained that

completion ofthe line-by-line review was relevant to their fraud claims.

The respondent-candidates each testified. Bishop Preston testified first. The Court

observed his demeanor on the stand and found him to be a credible and sincere witness. Bishop

Preston candidly and admirably admitted that he did not personally witness the signatures on Sheet

72 of the Designating Petition. Bishop Preston testified that he left that sheet with the proprietor

of Valuable Drugs, a gentleman identified only as Jack, who told Bishop Preston that he was a

registered Democrat and that he would witness signatures. Bishop Preston furlher testified that he

collected that sheet on or about March 29, 2023. Further, at a meeting on or about Sunday, April

2, at which he and the other respondent-candidates collected signature sheets, he noticed that some

of his sheets did not have completed witness statements, and he completed them in the presence

of the other candidates.

On cross-examination, Bishop Preston testified that he would pick up sheets from

volunteers who helped him collect signatures and bring them to the respondent-candidates'

meetings, and that he would complete the witness statements on the sheets he witnessed at those

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meetings. He fu(her testified that he did complete the witness statement on Sheet 72, though he

acknowledged again that he did not witness the signatures on that sheet. Bishop Preston testified

that Ms. Beville was the person to whom completed sheets were delivered. He further testified

that he had no nefarious motive in completing the witness statement on Sheet 72, and that he did

so by mistake.

The Court observed the demeanor of respondent-candidate Judith Beville and found her

testimony not to be credible. Ms. Beville testified that she first leamed of petitioners' claims

relating to Sheet 72 when she received and read the papers served on her in this proceeding. On

cross-examination, she testified that the respondent-candidates met weekly to discuss progress in

collecting signatures. She testified that no one delivered to her any signature sheets with unsigned

witness statements. She further testified that she has been the Town Clerk for 14 years and that

she is familiar with the rules for collecting signatures.

Manuel E. Areces was respondents' last witness. The Court observed his demeanor and

lound him not to be credible. Mr. Areces similarly testified that he first leamed of petitioners'

claims relating to Sheet 72 when he received and read the papers served on him in this proceeding

and saw the included photographs. He was shown Sheet 85 of the Designating Petition and

identified his signature on the witness statement. He testified that he collected the signatures on

that sheet and disagreed with Mr. Jones' testimony that he did not sign his name and uTite his

address on that sheet. Mr. Areces testified that he did in fact witness Mr. Jones sign his name and

enter his address on that sheet.

On cross-examination, Mr. Areces testified that if there was room left on a sheet at the end

ofthe day, he would continue collecting signatures on the same sheet the next day. Ifhe ran out

of space on a sheet, he would place the full sheet on the bottom of his clipboard and start a new

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sheet that day, and he testified that he maintained this practice throughout the period he collected

signatures. He was shown Sheet 101 and stated he collected the signatures on that sheet, which

begin on March I and run to March 2. He was shown sheet 137, which begins on March 2, and

testified that it is fair to say that this sheet is a continuation from Sheet 101. He was then shown

Sheet 100, on which all signatures are dated March 3, and testified that it is fair to say these

signatures were collected after those on Sheet 137. He was then shown Sheet I 14, on which the

signature dates begin on March 3 and continue to March 4, and testified it is fair to say that this

aligns with his practice of starting a new sheet the same day after one sheet was filled up. He was

then shown Sheet 85, which contains signatures dated from March 4 to March 6, and again testified

that he witnessed Mr. Jones'signature on line 7 of that Sheet. He was then shown Sheet 103,

which contains signatures dated March 5 and March 6. Mr. Areces was unable to provide an

explanation as to why he started Sheet 103 on March 5 when Sheet 85 was started on March 4 and

was not yet full. He testified that he recognized Mr. Jones when Mr. Jones testified to having

signed a petition at ACME.

Due to the time constraint imposed by the Aprit 28, 2023, deadline for this Court's decision

in this matter, the line-byJine review sought by petitioners was only partiatly completed. The

Court realized that at the rate of 5 pages per hour. the review would have taken over four complete

8 hour days. After conducting a line-by-line review of Sheets l through 33 and sustaining 181 of

the 255 objections to the signatures thereon, the Court directed petitioners' counsel to focus further

review on specihc sheets petitioners wished to have the Court examine in support of their fraud

claims. The line-by-line review was thereafter limited to sheets 34, 36, 53,69,85, and 108. Upon

review ofthose Sheets, the Court sustained 57 of the 78 objections to the signatures thereon.s At

5 As to Sheet 53, only one ofthe objections to that Sheet was raised and ruled upon in connection with the limited
reYtew

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the conclusion of the limited line-by-line review, this matter was adjoumed for the Court to

consider and rule upon petitioners' fraud claims, which ruling would determine whether

completion of the entire line-by-line review. which would be essentially impossible given the time

constraints, was necessary. For the reasons set forth herein, further line-by-line review is not

necessary to the Court's determination in this proceeding and thus is not conducted.

Discussion

..Generally, a candidate's designating petition will only be invalidated on the ground of

fraud if there is a finding that the entire designating petition is permeated with fraud" (Matter of

Drace v Sayegh,43 AD3d 481,482 [2d Dept 2007]). "However, a designating petition may also

be invalidated when there is a finding that the candidate has participated in or is chargeable with

knowledge of fraud in procuring signatures for a designating petition, even if there is a sufficient

number of valid signatures independent of those fraudulently procured" (ld). "Fraud must be

proved by clear and convincing evid ence" (Malter of Ferreyra v Arroyo, 35 NY3d 127 12020D. lr

is not necessary to ascribe any nefarious motive to a candidate's conduct to determine that a

particular action constitutes a fraud (Matler of Burman v Subedi, 172 AD3d I 882 [3d Dept 2019];

Ma er of valenri v Bugbee, 88 AD3d I 056 [3d Dept 201 ll; Matter of Grynspan v Moore, 194

AD3d 1493 [4th Dept 2021]).

ln the matter at bar, Bishop Preston admitted that he "mistakenly" attested to having

witnessed the signatures on Sheet 72, and thus there is no dispute that he executed a false witness

statement. Although his actions were contrary to the law and ill-advised, the Court believes that

he was not acting out of any nefarious motive. However, such a false attestation, even
in the

absence ofa nefarious motive, constitutes a fraud for the purposes ofthe Election Law (see Matler

of Haskell,5l NY2d at 547).

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In addition, the Court credits the testimony of Gerald Jones insofar as he maintains that he

did not place his signature on Sheet 85, which was witnessed by Mr. Areces. The Court does not

credit Mr. Areces' testimony that he remembered Mr. Jones when he heard testimony relating to

Mr. Jones signing a petition at ACME, as Mr. Jones testified that the petition he signed at that

Iocation was signed for petitioner Lisa Maria Nero. The Court also does not credit Mr. Areces'

testimony that he witnessed the signatures on Sheet 85, as there is no explanation for that sheet,

and only that sheet, deviating from the established practice of filling a sheet prior to starting a new

sheet to which Mr. Areces testified.

The court thus finds that Bishop Preston and Mr. Areces participated in, or were

chargeable with, knowledge of the fraud, rendering their candidacies and all of the signatures

collected by them invalid (Mailer of sgammato v Perillo, l3l Ad3d 648 [2d Dept 2015]). As

Bishop Preston witnesses l4[ signatures, and Mr. Areces witnesses 787 signatures,928 signatures

in the Designating Petition are invalidated on the ground of fraud.

Further irregularities revealed in the limited line-by-line review warrant a finding that the

entire Designating Petition is permeated with fraud. For example, on Sheet 13, Ms. Beville

executed the witness statement, dated March 12,2023 . However, the signatures on that Sheet
are

dated between March I 8 and March 27 , 2023. The witness statement on Sheet I 5 contains
a

signature which is not at all similar to the signature on file with BOE for the attesting witness.
The

witness statement on Sheet 22 contains a signature which is of a name different from the printed

name ofthe attesting witness. Some of the sheets, including Sheets 24' 34 and 69 contain names

which were printed, not signed, rendered in strikingly similar handwriting. Sheet 53 contains the

signatures of two individuals, Rochelle Johnson, Sr. and Rochelle Johnson, Jr., rendered in
with BOE
strikingly similar handwriting which does not in any way resemble the signatures on frle

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for either individual. On the basis ofsuch irregularities, the Cou( findsthat the entire Designating

Petition is permeated with fraud.

Even if the entire Designating Petition were not permeated with fraud, the many

irregularities revealed in the Iimited line-by-line review coupled with Ms. Beville's testimony that

she has been the Town Clerk for 14 years, that she is familiar with the rules for collecting

signatures, and that she is the person to whom the completed sheets were delivered warrants a

finding that she is chargeable with knowledge of fraud in the collection of signatures. This is so

especially in light of her testimony that no sheets with incomplete witness statements were given

to her, which tends to establish that she conducted some review of the sheets before the

Designating Petition was submitted to BOE. Any such review would have revealed the obvious

irregularities on many ofthe sheets.

Further, given the number ofobjections to signatures remaining, and the high rate at which

the objections which have been reviewed have been sustained, the inevitable result ofa completion

ofthe line-by-line review, which cannot be done at this time, would be the invalidation ofsuch a

large number of signatures as to bring the total number of valid signatures below the required

threshold. The Court thus dispenses with any further line-by-line review of the objections to the

signatures in the Designating Petition.

Conclusion

On the basis ofthe evidence adduced at the hearing, the Coun finds by clear and convincing

evidence that the entire Designating Petition is permeated with fraud.

In the altemative, the Court finds by clear and convincing evidence that Respondent-

Candidate Manuel E. Areces participated in fraud in the procurement of signatures by falsely

attesting to having witnessed the signatures on Sheet 85, including a signature which the Court

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finds is not genuine. The Court thus declares invalid the candidacy of Mr. Areces and all 787

signatures witnessed by him. The Court further finds by clear and convincing evidence that

Respondent-Candidate Bishop Wilbert Preston participated in fraud in the procurement of

signatures, though without any nefarious motive, by falsely attesting to having witnessed the

signatures on Sheet 72. The Court thus declares invalid the candidacy ofBishop Preston and all

14[ signatures witnessed by him. The Court further finds by clear and convincing evidence that

Respondent-Candidate Judith A. Beville is chargeabte with knowledge offraud in the procurement

of signatures, and thus declares invatid the candidacies ofall three Respondent-Candidates.

Accordingly, it is hereby

ORDERED that the verified Petition is granted, and the Verified Answer and the

affirmative defenses asserted therein are stricken and dismissed; and it is further

ORDERED and ADJUDGED that the Designating Petition designating the respondent-

candidates Judith A. Beville, Manuel E. Areces and Bishop Wilbert Preston as candidates in the

primary election to be held on June 27, 2023 for the Democratic Party as candidates for the public

oftlces set forth therein is declared invalid, and the respondent Westchester County Board of

Elections is hereby directed to refrain from placing the names ofthe respondent-candidates on the

batlot for the said primary election.

The foregoing constitutes the Decision, Order and Judgment ofthe Court'

Dated: April 28,2023 E N T E' R:

White Plains, New York

HON. DAMARIS E. TORRENT, A.J.S.C

FILED VIA NYSCEF

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