| Matter of Stewart v Chautauqua County Bd. of Elections |
| 2010 NY Slip Op 00210 [69 AD3d 1298] |
| January 12, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Robert T. Stewart, a Candidate for the PublicOffice of Chautauqua County Legislator, Seventh Legislative District, Appellant-Respondent, vChautauqua County Board of Elections, Respondent, Brian Abram, Commissioner, ChautauquaCounty Board of Elections, Appellant-Respondent, and Norman P. Green, Commissioner,Chautauqua County Board of Elections et al., Respondents-Appellants. (Proceeding No. 1.) Inthe Matter of Leon H. Beightol, a Candidate for the Public Office of Chautauqua CountyLegislator, Seventh Legislative District, Respondent-Appellant, v Chautauqua CountyBoard of Elections, Respondent, Brian Abram, Commissioner, Chautauqua County Board ofElections, Appellant-Respondent, Norman P. Green, Commissioner, Chautauqua County Boardof Elections, Respondent-Appellant, and Robert T. Stewart, Appellant-Respondent. (ProceedingNo. 2.) In the Matter of Leon H. Beightol, a Candidate for the Public Office of ChautauquaCounty Legislator, Seventh Legislative District, Respondent-Appellant, v Chautauqua CountyBoard of Elections, Respondent, Brian Abram, Commissioner, Chautauqua County Board ofElections, Appellant-Respondent, Norman P. Green, Commissioner, Chautauqua County Boardof Elections, Respondent-Appellant, and Robert T. Stewart, Appellant-Respondent. (ProceedingNo. 3.) |
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Michael J. Sullivan, Fredonia, for petitioner-appellant-respondent andrespondent-appellant-respondent. Law Offices of Michael Robert Cerrie, Dunkirk (Michael Robert Cerrie of counsel), forrespondent-respondent-appellant Norman P. Green, Commissioner, Chautauqua County Board ofElections. Fessenden, Laumer & DeAngelo, Jamestown (Charles S. DeAngelo of counsel), forrespondent-respondent-appellant and petitioner-respondent-appellant.
Appeals and cross appeals from an order of the Supreme Court, Chautauqua County (JamesH. Dillon, J.), entered December 21, 2009 in consolidated proceedings pursuant to Election Lawarticle 16. The order, among other things, directed that certain ballots be counted.
It is hereby ordered that the cross appeal taken by respondent-petitioner Leon H. Beightolfrom the order insofar as it directed the opening of the two absentee ballots is dismissed and theorder is modified on the law by vacating the first ordering paragraph and invalidating the J.K.affidavit ballot and by vacating the fourth ordering paragraph and validating the two unreadoptical scan ballots from the Town of Poland and as modified the order is affirmed without costs,and respondent Chautauqua County Board of Elections is directed not to count the J.K. affidavitballot and is further directed to count the two unread optical scan ballots from the Town ofPoland.
Memorandum: These three proceedings were commenced pursuant to Election Law article16 following the general election for the position of Chautauqua County Legislator for theSeventh District. Robert T. Stewart, the petitioner in proceeding No. 1 and a respondent inproceeding Nos. 2 and 3, is the Republican candidate, while Leon H. Beightol, the petitioner inproceeding Nos. 2 and 3 and a respondent in proceeding No. 1, is the Democratic candidate.Stewart and Brian Abram, the Republican Commissioner of the Chautauqua County Board ofElections who is a respondent in proceeding No. 1, contend on their appeals that Supreme Court[*2]erred in validating the "J.K. affidavit ballot" (exhibit 36) anddirecting that it be counted; invalidating the two ballots (exhibits 37 and 38) that could not beread by the optical scan voting machine and directing that they not be counted; and validating theaffidavit ballot of John Doe and directing that it be counted. Beightol and Norman P. Green, theDemocratic Commissioner of the Chautauqua County Board of Elections who is a respondent inproceeding Nos. 2 and 3, contend on their cross appeals that the court erred in directing that thetwo absentee ballots at issue be validated and counted. We note at the outset that the court didnot specify the result of the election, and instead ordered "that the Chautauqua County Board ofElections [Board] is hereby directed to make a tally of votes consistent with this Order."
We agree with Stewart and Abram that the court erred in validating the J.K. affidavit ballotand directing that it be counted, and we therefore modify the order accordingly. The recordestablishes that the voter in question was not qualified to vote in Chautauqua County pursuant toElection Law § 5-102 because she did not reside in that county at the time of the generalelection. Election Law § 1-104 (22) defines the term residence as the "place where aperson maintains a fixed, permanent and principal home and to which he [or she], wherevertemporarily located, always intends to return" (see People v O'Hara, 96 NY2d 378, 384[2001]). The Election Law, however, "does not preclude a person from having two residencesand choosing one for election purposes provided [that] he or she has 'legitimate, significant andcontinuing attachments' to that residence" (Matter of Isabella v Hotaling, 207 AD2d 648,650 [1994], lv denied 84 NY2d 801 [1994], quoting Matter of Ferguson vMcNab, 60 NY2d 598, 600 [1983]). The crucial factor in determining "whether a particularresidence complies with the requirements of the Election Law is that the individual mustmanifest an intent, coupled with physical presence 'without any aura of sham' " (O'Hara,96 NY2d at 385).
As an initial matter, we respectfully disagree with the dissent that there was conflictingtestimony presented at the hearing in this matter concerning J.K. and thus that the court'sdetermination should be given deference on that basis. Indeed, we agree with the court's factualfindings but conclude that the court's legal determination is erroneous. Here, the recordestablishes that J.K. did not have dual residences in Chautauqua and Cattaraugus Counties.Rather, the record establishes that she had permanently moved to an apartment in CattaraugusCounty in the months preceding the general election. J.K. testified at the hearing that she hadstayed at a house owned by her aunt located in Chautauqua County for the past three summersand that she hoped to return to that house the following summer. She further testified, however,that it was unclear whether she would be permitted to return to the house owned by her aunt. Inaddition, she testified that she planned to reside permanently in the apartment that she rented inCattaraugus County so that her son could reside closer to his father.
We respectfully further disagree with the dissent that J.K. kept most of her belongings at thehouse owned by her aunt. Although J.K. testified that she placed certain items used during thesummer inside the house, she further testified that she wanted to move her "stuff" out of thehouse because she did not know her aunt's intentions concerning the house. Furthermore, wenote that the record establishes that the pay stubs from her employer listed the address of herapartment in Cattaraugus County and that various bills that she received in October 2009 alsolisted that address. "Although [J.K.] expressed at the hearing that [she] . . . intendedto return to [Chautauqua County], intention without residence is of no avail" (Matter of Willis v Suffolk County Bd. ofElections, 54 AD3d 436, 438 [2008], lv denied 11 NY3d 701 [2008]). Indeed,"in deciding a controversy over a voter's residence, the crucial question is not the place where he[or she] intends to vote but where he [or she] intends to live as a permanent abode. . . [, i.e.,] 'a residence [that] the voter voluntarily chooses and has a right to take assuch' " (Matter of Seld [Seigfred], 268 App Div 235, 237 [1944], quoting People vCady, 143 NY 100, 106 [1894]; see generally Matter of Sauer v Springbrook Fire Dist.of Town of Elma, 284 AD2d 1016 [2001]).[*3]
In addition, we agree with Stewart and Abram that thecourt erred in invalidating the two ballots that could not be read by the optical scan votingmachine and directing that they not be counted, and we therefore further modify the orderaccordingly. The court invalidated the two ballots in question on the ground that the voters ofthose ballots had abandoned their ballots when they left the voting site and the voting machinewas unable to read their ballots. That was error. Pursuant to 9 NYCRR 6210.13 (A) (11), whichconcerns abandoned ballots, in the event that a voter "leaves the voting machine or systemwithout casting [his or her] ballot, a bipartisan team of election inspectors shall cause the ballotto be cast as the voter left it, without examining the ballot . . . If a voter leaves [hisor her] paper ballot in a privacy booth and leaves the polling place without first casting thatballot on the voting device, such ballot shall be marked 'spoiled' and retained by the electioninspectors, accounted for in the Statement of Canvass, and returned in secure storage with suchother spoiled ballots to the county board."
Here, the record establishes that both voters took the ballots to the voting machine andattempted to scan their votes. There is no evidence that those voters left their ballots in theprivacy booth or indicated to the election workers that they did not want their votes to be cast. Infact, a polling coordinator testified at the hearing in this matter that she spoke to one of the twovoters in question, whose ballot was received in evidence as exhibit 37, and that voter informedher that he wanted his vote to be cast. Contrary to the court's determination, nothing in either theElection Law or the regulations suggests that a voter abandons his or her vote if the voter refusesto fill out a new ballot in the event that the voter's ballot cannot be read by the optical scanvoting machine or the voter departs before his or her vote has been processed. Indeed, as noted, 9NYCRR 6210.13 (A) (11) provides that, in the event that "a voter leaves the voting machine orsystem without casting [his or her] ballot, a bipartisan team of election inspectors shall cause theballot to be cast as the voter left it, without examining the ballot." Importantly, 9 NYCRR6210.13 (A) (8) provides that, if a ballot is "non-machine processable as submitted by the voter,[it] shall be manually counted by a bipartisan team of election inspectors and such vote totalsshall be added to the canvass of such other valid ballots for the respective office(s) and ballotquestions." We thus conclude that the two ballots in question are valid and must be counted.
We further conclude, however, that the court properly determined that it lacked jurisdictionto consider the objections of Stewart and Abram to the affidavit ballot of John Doe and thus thathis affidavit ballot was valid and properly counted. Pursuant to Election Law § 16-106,Supreme Court has jurisdiction over "challenged" affidavit ballots (see § 16-106[1]; see generally Matter of Stern vGarfinkle, 22 AD3d 695 [2005]; Matter of Gates v Scaringe, 105 AD2d 543[1984], lv denied 63 NY2d 609 [1984]) and, "[i]f no objection is lodged to the [board ofelection's] decision to canvass or refuse to canvass a particular ballot during the canvass, thatballot cannot later be the subject of a judicial challenge" (Matter of Gross v Albany County Bd. of Elections, 3 NY3d 251,257 [2004]; see Sheils v Flynn, 275 NY 446, 452 [1937]; Stern, 22 AD3d at695). Here, Stewart and Abram failed to demonstrate that there was a challenge to the affidavitballot of John Doe (see Matter of Dorman v Scaringe, 222 AD2d 887, 888 [1995]).
Beightol contends on his cross appeal that the court erred in ordering that the two absenteeballots at issue be opened. It is undisputed that the Board received absentee ballot applicationsfrom those two voters that failed to state the dates and reasons for their absences on election daypursuant to Election Law § 8-400 (3) (c). The Board then sent the absentee ballots to thosevoters with their incomplete absentee ballot applications and instructed the absentee voters toreturn the completed applications together with their ballots. Stewart objected to opening theballots on the ground that the Board sent the voters those ballots before it found "theapplication[s] acceptable" (Gross, 3 NY3d at 256; see Election Law §8-402 [1], [2]). In his answer to the petition in proceeding No. 1, Beightol contended that theabsentee ballots are valid and should be counted. After the court directed that those ballots beopened and the votes were revealed, [*4]Beightol supplementedhis answer with an affidavit from his attorney stating, inter alia, that the Board erred in sendingthe voters the absentee ballots before their applications were determined to be acceptable andthat the ballots were therefore invalid. Beightol's cross appeal from that part of the order "thatordered the opening of the absentee ballots" must be dismissed on the ground that Beightol is notaggrieved by that part of the order. Inasmuch as the court directed that the ballots be opened,Beightol "obtained precisely the relief that [he] sought," despite the fact that the absentee ballotswere not in his favor (Matter of Niagara Frontier Transp. Auth. [InternationalLongshoremen's Assn., Local 2028], 67 AD3d 1424, 1425 [2009]; see CPLR5511; see generally Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482,488 [1978]), and we therefore dismiss Beightol's cross appeal from the order insofar as itdirected the opening of those ballots. We further note that, in any event, Beightol is judiciallyestopped from assuming a position before this Court and Supreme Court that was contrary to hisposition in the proceeding commenced by Stewart to contest the opening of the absentee ballotsat issue (see Maas v Cornell Univ., 253 AD2d 1, 5 [1999], affd 94 NY2d 87, 93[1999]).
Beightol also commenced proceeding No. 2, which raised an objection to the two absenteeballots on the ground that they contained extrinsic materials, i.e., the ballot applications, inviolation of Election Law § 9-112 (1). With respect to the contention of Beightol on hiscross appeal that the court erred in directing that the absentee ballots at issue be counted, weconclude that the contention lacks merit. The court properly determined that the absentee ballotswere not invalidated by the presence of the completed applications, which were folded separatelyand were not within the absentee ballots contained in the respective envelopes. In his dissentin Matter of Altimari v Meisser (22 AD2d 933, 934 [1964], mod 15 NY2d 686[1965], mot to amend remittitur granted 15 NY2d 847, 855 [1965], rearg denied15 NY2d 854 [1965]), Justice Ughetta wrote that the rule concerning the inclusion ofextrinsic material "is aimed at preventing insertion of a message within the folded ballot." TheCourt of Appeals modified the order of the Appellate Division and, inter alia, agreed with JusticeUghetta that the ballot in question was valid inasmuch as the note written by the voter was notcontained within the ballot itself. Here, the envelope identified the voter whose absentee ballotwas contained therein (see Gross, 3 NY3d at 256-257), and no marks on the absenteeballots themselves could have identified the voter who cast the respective ballots (cf. Matter of Alessio v Carey, 49AD3d 1147, 1148-1149 [2008], lv denied 10 NY3d 803 [2008]).
Finally, we do not address the remaining contention of Beightol on his cross appealinasmuch as his notice of cross appeal expressly limited the scope thereof, and it did not includethat part of the order concerning that contention (cf. McSparron v McSparron, 87 NY2d275, 282 [1995], rearg dismissed 88 NY2d 916 [1996]; see generally CPLR 5515[1]).
All concur except Peradotto and Green, JJ., who dissent in part in accordance with thefollowing memorandum.
Peradotto and Green, JJ. (dissenting in part). We respectfully dissent in part. Robert T.Stewart, the petitioner in proceeding No. 1 and a respondent in proceeding Nos. 2 and 3, is theRepublican candidate for the position of Chautauqua County Legislator for the Seventh District,and Leon H. Beightol, the petitioner in proceeding Nos. 2 and 3 and a respondent in proceedingNo. 1, is the Democratic candidate. The proceedings before us were commenced to challenge thevalidity of certain ballots, including two absentee ballots. Under the circumstances presentedhere, we cannot agree with the majority that Beightol, a cross appellant, was not aggrieved by"that part of the order 'that ordered the opening of the absentee ballots.' " Contrary to thesuggestion of the majority, no part of the order on appeal directed the parties to open the twoabsentee ballots. The order, in relevant part, only directed that the absentee ballots be counted,and Beightol is clearly aggrieved by such order.
Pursuant to CPLR 5511, "[a]n aggrieved party . . . may appeal from anyappealable judgment or order except one entered upon the default of the aggrieved party." Aparty is [*5]aggrieved when he or she " 'has a direct interest inthe controversy which is affected by the result' and [when] 'the adjudication has a binding forceagainst the rights, person or property of the party' " (Matter of DeLong, 89 AD2d 368,370 [1982], lv denied 58 NY2d 606 [1983]; see State of New York v Philip Morris Inc., 61 AD3d 575, 578[2009], lv granted 17 NY3d 714 [2009]). "Asuccessful party who has obtained the full relief sought is not aggrieved, and therefore has nogrounds for appeal" (T.D. v New York State Off. of Mental Health, 91 NY2d 860, 862[1997]; see CPLR 5511). "The major exception to [that] general rule, however, is that thesuccessful party may appeal or cross-appeal from a judgment or [an] order in his [or her] favor if[the party] is nevertheless prejudiced because it does not grant him [or her] complete relief"(Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-545 [1983]).
Here, Stewart sought a determination in proceeding No. 1 that the two absentee ballots"should be rejected and not opened, canvassed or counted" because respondent ChautauquaCounty Board of Elections (Board) rejected the absentee ballot applications submitted by therespective voters as incomplete and the Board did not receive completed applications prior tomailing absentee ballots to those voters. Brian Abram, the Republican Commissioner of theBoard who is a respondent in proceeding No. 1, likewise sought rejection of the absentee ballotsfor failure, inter alia, to submit valid applications. In response, Beightol contended that theabsentee ballots were valid and should be counted because the Board provided the absenteeballots to the voters and thus the ballots were presumptively valid. Norman P. Green, theDemocratic Commissioner of the Board who is also a respondent in proceeding No. 1, likewisecontended that the absentee ballots should be deemed valid and thus should be counted. OnNovember 30, 2009, the parties appeared before Supreme Court and, although the record doesnot contain either an oral or written decision from the court resulting from that court appearance,it is undisputed that the court ordered that the two absentee ballots be opened and inspected.Importantly, the record is devoid of any evidence establishing that the court at that time renderedany legal determination with respect to the validity of the absentee ballots or the ballotapplications. The court's determination that the ballots be opened, standing alone, is of little orno legal consequence. Thus, contrary to the majority's position, none of the parties received thecomplete relief sought because the court did not determine at that time whether the absenteeballots or ballot applications were valid and should be counted (see generally Parochial BusSys., 60 NY2d at 544-545).
When the envelopes containing the absentee ballots were opened, the parties discovered thatthe voters had enclosed their completed absentee ballot applications along with their ballots. Atthat point, Stewart objected to the ballots based upon the inclusion of the absentee ballotapplications in the envelopes containing the ballots. After the ballots were opened and the voteswere revealed, both Beightol and Stewart switched their positions with respect to the absenteeballots. Beightol sought to invalidate the absentee ballots on the ground that the Board failed tofollow the procedures set forth in the Election Law when it sent the absentee ballots to the votersalong with their incomplete applications. In proceeding No. 2, Beightol and Green sought adetermination that the absentee ballots were invalid because the envelopes contained extrinsicmaterials in violation of Election Law § 9-112 (1). In contrast, Stewart withdrew hisobjection to the validity of the absentee ballots and contended that the votes should be counted.Stewart and Abram also abandoned their contention that the absentee ballots were invalidated bythe Board's failure to follow the procedures set forth in the Election Law and, instead, contendedthat the absentee ballots were valid because the absentee ballot applications were not folded intothe ballots and thus did not violate Election Law § 9-112.
The court did not make any determination concerning the validity of the absentee ballotsuntil December 9, 2009, when it issued an oral decision concerning all three proceedings. In thatdecision, the court determined, inter alia, that the absentee ballots were valid and that the votes[*6]should be counted on two grounds. First, the court concludedthat, once the Board mailed the absentee ballots to the voters in question, the absentee ballotapplications were deemed complete, and thus the votes were valid. Second, the court concludedthat, because the absentee voters had complied with the Board's instructions to return thecompleted absentee ballot applications along with their ballots and each absentee ballot, on itsface, was not impacted by the extrinsic materials, the absentee ballots were not invalidated bythe inclusion of those applications. On December 21, 2009, the court entered an order reflectingits oral decision, and that is the only order before us on this appeal. Beightol is clearly aggrievedby that order, the only appealable paper in the record, inasmuch as the court denied his request toinvalidate the absentee ballots and direct that they not be counted.
With respect to the majority's conclusion that "Beightol is judicially estopped from assuminga position before this Court and Supreme Court that was contrary to his position in theproceeding commenced by Stewart to contest the opening of the absentee ballots at issue," wenote that Stewart likewise reversed his position with respect to the validity of the absenteeballots after they were opened and the votes were revealed. It is well settled that the doctrine ofjudicial estoppel is grounded in considerations of equity (see generally Zedner v UnitedStates, 547 US 489, 504 [2006]; Clifton Country Rd. Assoc. v Vinciguerra, 252AD2d 792, 793 [1998]; Environmental Concern v Larchwood Constr. Corp., 101 AD2d591, 593-594 [1984]). As the United States Supreme Court recently explained, "[w]here a partyassumes a certain position in a legal proceeding, and succeeds in maintaining that position, he[or she] may not thereafter, simply because his [or her] interests have changed, assume acontrary position, especially if it be to the prejudice of the party who has acquiesced in theposition formerly taken by him [or her]" (Zedner, 547 US at 504 [internal quotationmarks omitted]). In his answer to Stewart's petition in proceeding No. 1, Beightol contended thatthe absentee ballots "are valid and should be counted." In response thereto, the court didnot order that the ballots should be "counted." Rather, the court ordered only that theballots should be opened. Further, it is unclear from the record whether the court acceptedBeightol's reasoning when it ordered that the ballots be opened. Thus, Beightol did not "'succeed[ ] in persuading [the] court to accept [his] earlier position' " (Zedner, 547 US at504).
In any event, even assuming, arguendo, that the doctrine of judicial estoppel applies to thefacts of this case, we conclude that it should not be applied to foreclose Beightol from advancinghis position on this appeal inasmuch as both parties have assumed positions that are directlycontrary to the positions they took at the outset of this case. Because both parties changed theirrespective positions concerning the absentee ballots at issue once the votes were revealed, itcannot be said that the conduct of one party, as opposed to the other, warrants the invocation ofthe doctrine of judicial estoppel. In addition, neither party was prejudiced or otherwise adverselyaffected by the inconsistent position of the other inasmuch as both parties changed their positionsbefore the court based upon self-interest. We thus conclude that the doctrine of judicial estoppelis not applicable under the facts of this case.
We therefore conclude that dismissal of part of the cross appeal taken by Beightol isunwarranted and that the validity of the absentee ballots should be determined on the merits. Weagree with Beightol that the Board failed to comply with the procedural requirements of theElection Law with respect to the issuance of absentee ballots. Under the Election Law, the localboard of elections has a "duty to assess the validity of applications before forwarding absenteeballots" (Matter of Gross v AlbanyCounty Bd. of Elections, 3 NY3d 251, 260 [2004]; see Election Law §8-402 [1], [2]), and the local board of elections may forward an absentee ballot if it "finds theapplication acceptable" (Gross, 3 NY3d at 256). Here, the Board received absentee ballotapplications from the two voters at issue that failed to state the dates and reasons for theirabsences on election day as required by Election Law § 8-400 (3) (c). In response, theBoard mailed the absentee ballots to the voters together with their incomplete absentee ballotapplications and instructed the voters [*7]to return the completedapplications along with their ballots. Because the absentee voters never articulated why theywere unable to vote at the polls on election day and did not provide the dates of their absences,the Board "had no basis to conclude that [those] voters were qualified to cast absentee votes"prior to sending the absentee ballots (Gross, 3 NY3d at 259). The Board's error "cannotbe characterized as technical, ministerial or inconsequential because it was central to thesubstantive process by which voters are determined to be qualified to cast absentee ballots"(id. at 258-259). We therefore conclude that the court erred in directing that the absenteeballots at issue be validated and counted.
Thus, we would not dismiss any part of the cross appeal taken by Beightol from the orderand would further modify the order by vacating the third ordering paragraph and invalidating thetwo absentee ballots, and we would further direct the Board on remittal not to count thoseballots.
Green, J., further dissents in part in accordance with the following memorandum.
Green, J. (dissenting in part). I respectfully dissent in part. Contrary to the majority, Iconclude that Supreme Court property validated the "J.K. affidavit ballot" and directed that it becounted. The decision of respondent Chautauqua County Board of Elections that J.K. wasqualified to vote in the election is "statutorily deemed presumptive evidence of [her] residencefor voting purposes" (Matter of Hosley v Curry, 85 NY2d 447, 452 [1995], reargdenied 85 NY2d 1033 [1995]; see Election Law § 5-104 [2]), and Robert T.Stewart and Brian Abram, respondents in proceeding Nos. 2 and 3, have "not sustained [their]burden of overcoming said presumption" (Matter of Bressler v Holt-Harris, 37 AD2d898, 898 [1971], affd 30 NY2d 529 [1972]). In addition, "[t]he question of residence is afactual one, based on a variety of factors and circumstances . . . Where there isconflicting testimony, the resolution of the conflict lies within the province of the [hearing]court, as the finder of fact, and should not be disturbed on appeal unless 'it is obvious that thecourt's conclusion could not be reached under any fair interpretation of the evidence' " (Matter of Fernandez v Monegro, 10AD3d 429, 430 [2004]).
Here, a fair interpretation of the evidence supports the court's determination that J.K. residedin Chautauqua County for purposes of the Election Law. As noted by the majority, the termresidence is defined in Election Law § 1-104 (22) as the "place where a person maintains afixed, permanent and principal home and to which he [or she], wherever temporarily located,always intends to return" (see People v O'Hara, 96 NY2d 378, 384 [2001]). As furthernoted by the majority, however, the Election Law "does not preclude a person from having tworesidences and choosing one for election purposes provided he or she has 'legitimate, significantand continuing attachments' to that residence" (Matter of Isabella v Hotaling, 207 AD2d648, 650 [1994], lv denied 84 NY2d 801 [1994], quoting Matter of Ferguson vMcNab, 60 NY2d 598, 600 [1983]). Indeed, as the Court of Appeals explained inO'Hara, "[t]he crucial [factor in determining] whether a particular residence complieswith the requirements of the Election Law is that the individual must manifest an intent, coupledwith physical presence 'without any aura of sham' " (96 NY2d at 385). "[T]he inquiry is notwhich of [the voter's] dual residences is 'the more appropriate one' for voting purposes, butwhether the residence held by [the voter] is a legitimate one" (Matter of Willkie v Delaware County Bd.of Elections, 55 AD3d 1088, 1091 [2008], quoting O'Hara, 96 NY2d at 385).
The evidence presented at the hearing in this matter demonstrated that J.K. has significantand genuine contacts with Chautauqua County such that her choice of that county as herresidence for voting purposes was properly honored by the court (see Matter of Gallagher vDinkins, 41 AD2d 946, 946-947 [1973], affd 32 NY2d 839 [1973]; Willkie,55 AD3d at 1090; Matter of Stavisky vKoo, 54 AD3d 432, 434 [2008]). For the three years preceding the election at issue, J.K.has resided during the summer months at her aunt's house located in Chautauqua County and hasmoved during the winter months to Cattaraugus County, where she rented various apartments.[*8]Although in August 2009 J.K. rented an apartment on amonth-to-month basis in Cattaraugus County, she testified at the hearing that she kept most ofher personal belongings at the Chautauqua County residence and hoped to return there the nextsummer. Until July 2009, J.K. received mail listing the address of the Chautauqua Countyresidence. Further, J.K. testified that she grew up in Chautauqua County, registered to vote therein 2001 and had always voted there. In addition, on the relevant election day in November 2009,J.K. filled out an affidavit ballot on which she certified that she was duly registered to vote inChautauqua County and listed her address as her Chautauqua County residence. That address"represents a place of residence based on express intent, coupled by physical manifestation,without any aura of sham" (Gallagher, 41 AD2d at 947). Thus, I would affirm that partof the order validating J.K.'s affidavit ballot and directing that it be counted.Present—Scudder, P.J., Smith, Peradotto, Green and Pine, JJ.