The People &c.,
2001 NY Int. 78
Defendant John O'Hara, an attorney and frequent
candidate for elective office, was convicted of seven crimes
arising from his fraudulent filing of a false voter registration
form and voting in five separate elections in an election
district in which he did not reside. On appeal, defendant
Defendant has lived in a multi-unit apartment building at 579 61st Street in Brooklyn since the 1980s. Until 1992, he registered to vote using the 61st Street address, which was within the 20th Election District and part of the 51st State Assembly District and the 38th Council District of the City of New York. Following redistricting in 1991-1992, 579 61st Street was no longer situated within these districts.
On November 2, 1992, defendant prepared, signed and filed a new voter registration form specifying that he resided at 553 47th Street. This address was located within the newly- redrawn borders of the 20th Election District, the 51st State Assembly District and the 38th Council District of the City of New York. Using the 47th Street address, defendant voted in those districts on five occasions -- November 3, 1992; May 4, 1993; September 14, 1993; September 28, 1993 and November 2, 1993.
Defendant was charged with one count of offering a
false instrument for filing in the first degree (Penal Law §
During opening statements of the third trial, defense counsel argued that the only basis for the People's charges rested on the assertion that defendant never lived at 553 47th Street. According to defense counsel, the evidence would establish that, contrary to the People's position, defendant had in fact taken up residence at 553 47th Street. Defense counsel submitted that ultimately the case would turn on the credibility of the witnesses.
At trial, the People called several witnesses. An employee for the phone company testified that defendant maintained a phone at the 61st Street address. There was, however, no record of any telephone service at the 47th Street address. In addition, the owner of 579 61st Street testified that defendant was a tenant at that address from 1990 to 1993.
Raphael Munoz and Roberto Lozano testified that they,
along with another individual, moved into 553 47th Street in
1992, with the intent of purchasing the building from Magaly
Defendant presented the testimony of an employee of the Office of Court Administration who stated that in 1993 defendant's attorney registration form listed 553 47th Street as his home address. Defendant further proffered the testimony of an American Express employee that defendant's billing statements listed the 47th Street address. Several neighbors who had participated in defendant's political campaigns testified that they had on occasion observed him walking into the 47th Street house and that they had understood that he lived there with his former girlfriend, Lucas. One neighbor testified that Josephine and Raymond Vales _- the owners of the house prior to Lucas -- had at some time renovated the basement into a complete apartment. Defendant's mother and aunt also testified that defendant resided at the 47th Street address.
Finally, defendant testified that he moved into the
47th Street address because his ex-girlfriend, Lucas, owned the
house. He stated that he kept the 61st Street address for his
relatives and used it as an office. When he and Lucas separated,
she moved to Manhattan and allowed him to stay in the basement
On redirect, the People called Josephine Vales, who testified that when she and her husband owned the 47th Street building they never renovated the basement into a habitable apartment.
During the charge conference, the trial court indicated that it would define residency to the jury as follows:
"According to the law a residence is that place where a person maintains a fixed, permanent and principal home and to which he wherever temporarily located always intends to return.
"Additionally, a candidate who has two residences may choose one to which he has the legitimate, significant and continuing attachment as his residence for purpose of the [E]lection [L]aw. It is for the candidate to decide which address is to be his voting and campaign address.
"However, the address chosen by the defendant as his residence must comport with the definition of residence as I have previously given it to you."
Defense counsel objected to the charge, indicating that
he agreed with the court's use of the definition of "residence"
found in Election Law § 1-104(22) and that a candidate can choose
between multiple residencies. As defense counsel noted, "I don't
have a problem with that definition of residency [the charge
Defense counsel further objected to use of the Election Law's definition of residence in reference to the first count of the indictment, which charged defendant with filing a false instrument. Counsel asserted that the only definition which should be used in that regard was that a candidate who has two residences may choose one to which he has a legitimate, significant and continuing attachment. The court did not change its charge.
The jury convicted defendant on all counts of the indictment. The Appellate Division affirmed.
Defendant now argues that the Election Law definition
of "residence" cannot be applied literally in a case of dual
residency and that a literal application of Election Law § 1-
104(22) is unconstitutional. Defendant further maintains that
the indictment should be dismissed because the Election Law
definition of "residence" is vague. However, during the jury
charge conference, defendant did not object to the specific
language of the charge, nor did he raise any of the
Defendant did, however, object to the trial court's second reference to the Election Law definition of "residence" on the ground that it "might be somewhat confusing" for the jury. According to defendant, under the court's charge, his failure to relinquish the 61st Street apartment compromised his assertion that the 47th Street apartment also was his residence for purposes of registration and voting, and therefore, in essence dictated a guilty verdict. We disagree.
In this case, all the counts of the indictment stem
from defendant's affirmation in his voter registration form that
553 47th Street was his place of residence pursuant to the
Election Law during 1992-1993 for voting purposes. A person
commits the offense of "false registration" under the Election
Law when he or she "[k]nowingly gives a false residence within
the election district when registering as an elector" (Election Law § 17-104). "Illegal voting" is committed when a person
"[v]otes or offers or attempts to vote at an election, * * * in
an election district or from a place where he does not reside"
(Election Law § 17-132 ). Finally, a person violates Penal Law § 175.35 "when, knowing that a written instrument contains a
false statement or false information, and with intent to defraud
the state * * * he offers or presents it to a public office * * *
The Election Law defines residence as "that place where
a person maintains a fixed, permanent and principal home and to
which he, wherever temporarily located, always intends to return"
(Election Law § 1-104). Thus, to be a resident of a place, a
person must be physically present with the intent to remain for a
time (see, Matter of Palla v Suffolk County Bd. of Elections, , 31 NY2d 36, 47; see also, Williams v Salerno, 792 F2d 323, 327 [2d
Cir]). The definition of "residence" comes from traditional
notions of domicile (Matter of Palla,
New York courts have recognized that in this modern and
mobile society, an individual can maintain more than one bona
fide residence (see, e.g., Matter of Gallagher v Dinkins, 41 AD2d
946, affd , 32 NY2d 839; Matter of Gladwin v Power, 21 AD2d 665,
affd , 14 NY2d 771; Matter of Chance v Power, 14 AD2d 595, affd , 10 NY2d 792). However, for the purposes of the Election Law, one
cannot create an address solely for the purpose of circumventing
residency requirements (Matter of Hosley v Curry, 207 AD2d 116,
118 revd on other grounds , 85 NY2d 447,
The crucial determination whether a particular
residence complies with the requirements of the Election Law is
that the individual must manifest an intent, coupled with
physical presence "without any aura of sham" (Matter of
Here, the jury was not asked, as defendant claims, to
determine whether as between two residences, defendant picked the
more appropriate one. The sole issue here was whether defendant
genuinely took up residence at 553 47th Street for voting
purposes. In considering whether 553 47th Street was a bona fide
residence from which defendant could vote, the jury needed to be
informed of the Election Law's definition of residence. The jury
was not instructed to convict defendant if it found that he
We respond to the dissent with three points. First, the arguments it addresses overwhelmingly are unpreserved; they were not made before the Trial Judge. Second, we cannot agree with the dissent's foundation premise that the Election Law and case law definitions of residence cannot stand side-by-side (an argument plainly not made to the Trial Judge). Finally, the dissent points out that defendant's own testimony, "if credited," would have been sufficient to establish residency under our own Election Law cases (Dissent, at 6). The jury, however, also heard -- and by its verdict credited -- testimony from the phone company employee that defendant had telephone service at 61st Street but not 47th Street; the 61st Street landlord that defendant was a tenant there; and the owners of the 47th Street premises that the basement where defendant says he resided was uninhabitable.
Accordingly, the order of the Appellate Division should
Defendant was arrested after he registered to vote and voted in five elections using an apartment on 47th Street in Brooklyn as his legal voting residence. He was indicted on one count of false registration under Election Law § 17-104(4), five counts of illegal voting under Election Law § 17-132(3) and one count of offering a false instrument for filing under Penal Law § 175.35. Convictions for such felonies are punishable by up to four years in prison (Penal Law § 55.10[b]). Because defendant acknowledged that he had listed the 47thStreet apartment as his residence, the only fact issue at trial was whether that apartment was his "residence" within the meaning of the Election Law.
What qualifies as a voter's "residence" in New York, however, is far from crystal clear. Election Law § 22) defines "residence" as "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return" (emphasis added). Under the statutory definition, residence is the equivalent of domicile (see, Palla v Suffolk Cty Bd of Elections, , 31 NY2d 36, 47). Over the last several decades, however, this Court has not adhered to the strict, literal meaning of this statutory definition.
In Gladwin v Power (21 AD2d 665), a candidate for
Similarly, in Bressler v Holt-Harris (37 AD2d 898), a
voter lived in a house with his family outside the City of
Albany. At the same time, to remain eligible to run for citywide
elected office, he kept a studio apartment in the City, for which
his law firm paid the rent. He kept a few personal items in the
apartment and had eaten and slept there once in seven years. He
also had his political mail sent there. A rival candidate
brought an application to strike the voter from the City's
registry. Applying an identically-worded election law statute,
the Appellate Division concluded that the voter had established
residence by showing a continuity of conduct * * * for many
years evincing an intention to be and remain a resident of the
City * * * as well as a continuous voting record from said
address for several years last past (Bressler v Holt-Harris,
In both cases, as in numerous others, the alleged residence located inside the voting district was by no means a fixed, permanent and principal home to which the candidate always intend[ed] to return." As New York appellate courts have repeatedly refused to invalidate candidacies based on failures to comply strictly with statutory residency requirements, an alternative, judicially-created test for residence has crept into the jurisprudence. Candidates may now have two residences, providing that they choose one to which [they] ha[ve] legitimate, significant and continuing attachments (Ferguson v McNab, , 60 NY2d 598, 600 [citing Gallagher v Dinkins, 41 AD2d 946, affd without opinion, , 32 NY2d 839]; see also, Isabella v Hotaling, 207 AD2d 648; Geller v Lasher, 196 AD2d 613; Umland v Board of Elections of City of New York, 143 AD2d 240).
The narrower statutory definition of residence cannot logically be read compatibly with the dual residency authorized by Ferguson. A voter cannot have two fixed, permanent and principal homes." Principal is defined as first, highest, or foremost in importance, rank, worth, or degree, chief (see, American Heritage College Dictionary, at 1088 [3d ed]). It is not possible to have two living quarters both of which are first, highest or foremost in importance.
In Election Law cases involving more than one
residence, courts have endeavored to reconcile this
incompatibility by deeming the narrow statutory definition of
The charge in this case did not instruct the jury that
a residence satisfying the Ferguson standard is deemed to be a
"fixed, permanent and principal" residence for purposes of the
Election Law. The judge instructed the jury that it must
determine whether defendant's 47th Street apartment satisfied the
statutory definition of residence, then noted that a candidate
could have two residences under the Ferguson v McNab formulation,
and finally reiterated that the defendant's residence must
comport with the statutory definition. Defense counsel
objected, claiming that the charge as a whole was confusing.
A jury, upon hearing the entire charge, must be able to gather from its language the correct rules which should be applied in arriving at decision (People v Ladd, , 89 NY2d 893, 895 [quoting People v Russell, 266 NY 147, 153]). A party is entitled to an unambiguous instruction of the pertinent law (see, Schafer v Norwood Equip. Corp., 277 App Div 933, 934). It is not sufficient to excerpt portions of statutes or holdings in the abstract without adequately explaining them in a manner understandable to a lay person (see, Stryzinski v Arnold, 285 App Div 780, 782-783).
Here, the court's instruction on the issue of
defendant's residence -- two terse paragraphs -- was the crucial
charge which would definitively guide the jury in determining
guilt or innocence. It was confusing in two ways. First, the
jury could have understood the charge as requiring defendant to
meet both the statutory definition and the Ferguson dual-
residence qualification. As we have demonstrated, however, the
literal Election Law definition and the Ferguson standard cannot
stand side-by-side. The charge failed to synthesize the
statutory definition with the Ferguson formulation. It charged
both without any further explanation. In essence, the court
Moreover, the instruction also could readily have been interpreted as subordinating the Ferguson dual-residence standard to the stringent statutory residence test. Viewed in that light, the jury was told, in effect, that it could acquit defendant only if the 47th Street apartment was in fact his "principal" residence -- i.e., the home that was "first, highest and foremost in importance." This was a clear departure from the dual- residence jurisprudence of civil Election Law cases involving the same statutory definition.
Defendant testified that he moved to the 47th Street
apartment in 1993 with the "intent to set up residency" there.
He further testified that he moved his clothes and lamps to that
apartment, where he initially stayed overnight "all the time"
until construction work on the building began, after which he
"stayed there a lot." This testimony, if credited, certainly
would have been sufficient to establish residency under the
Ferguson formulation as applied in our civil Election Law
jurisprudence. Indeed, these facts are far stronger than those
in Bressler v Holt-Harris, where the voter's one-room apartment
Historically, the "residence" issue has been addressed in the context of civil election appeals. In those cases, members of the Board of Election and appellate judges have determined on a case-by-case basis whether the connection between a particular voter and the asserted voting residence is sufficient. Central to each determination is a full understanding of relevant authority, which allows a comparison between the facts of the case at bar to the facts of cases that have already been decided.
This, however, was a criminal prosecution, and a unique
one at that. So far as we can discern, defendant is the only
person ever brought to trial in New York on a charge of this
Accordingly, we would reverse the conviction and order a new trial.
1 The majority correctly points out that defense counsel "ha[d] no problem" with the court charging just the statutory definition and then the Ferguson formulation. It was, however, the court's reiteration of the statutory definition that rendered the charge as a whole "confusing." The majority holds that defense counsel, by withholding his objection until after the reiteration of the statutory standard, somehow is foreclosed from arguing that asking the jury to apply both formulations simultaneously was confusing as a matter of law. We disagree. Counsel obviously viewed the Ferguson standard as modifying the statutory definition and therefore had no objection to the charge until the court erroneously engrafted the statutory definition back onto the Ferguson formulation. Counsel's objection at that point unambiguously alerted the trial court to his assertion that, objectively, the statutory definition and Ferguson formulation cannot abide one another and thus could not be charged conjunctively.
2 We cannot agree that the jury must have credited the testimony that contradicted defendant's position that he resided at the 47th Street apartment. It is impossible to tell what testimony the jury actually credited because the erroneous charge would have allowed the jury to return a guilty verdict even if it fully credited defendant's testimony.
3 Defendant is one of two persons who have been criminally prosecuted for the failure to establish legal residence inside a voting district (see, People v Ramos, slip op [Sup Ct, Bronx Cty, Nov 9, 1999], affd, 223 AD2d 495). There, the defendant was prosecuted criminally for using his inlaws' Bronx County apartment as his legal residence. The prosecutor instructed the grand jury on the issue of residence using only the statutory definition. The Supreme Court dismissed the indictment, holding that "it was not enough to simply read the Election Law definition of residence to the grand jury. Such an instruction did not convey the applicable law in a manner that fairly apprised the grand jury of the issue it had to decide" (slip op at 4). The Appellate Division affirmed.