The Court Report

By Richard Blassberg


Judge Who Should Have Recused Herself Bounces Independence Party Mayoral Hopeful
State Supreme Court, White Plains
Judge Mary H. Smith Presiding


Last Wednesday, following two full days of testimony and under a Court imposed deadline, Supreme Court Justice Mary H. Smith effectively removed Nader Sayegh, Independent candidate for Mayor of Yonkers from the Independence Party Primary Election. Finding for Phil Amicone and three politically insignificant additional
parties, against Sayegh and the Westchester Board of Elections, Judge Smith concluded, “…this Court must find by clear and convincing evidence that respondent Sayegh had engaged in fraud in the procurement of signatures for his designating petition requiring that his petition be invalidated.”

Smith was referring specifi-cally to testimony from two constituents, a young Ms. Said and a middle-aged Mr. Hasow, signers amongst more than 750 who signed petitions to place Sayegh on the Independence Primary ballot. Despite the fact that more than 130 of the signatures collected personally by the candidate, and by his family, came from members of his immediate and extended family, Smith found that he “personally and knowingly
had participated in fraud with respect to the collecting and witnessing of signatures on his designating petition”. She refused, however, to affirm Petitioner’s claim, as presented by Attorney John Ciampoloi, that Sayegh’s
petition was “permeated with fraud.”

Analysis

There are several troubling aspects to Judge Smith’s handling of this case. For one thing, Smith, who had declined to preside over another, concurrent election case involving the Independence Party, specifically
Giulio Cavallo, and parties in opposition to, as well as in litigation against, him, and his political allies, in fact, recusing herself from that matter, should clearly have recused from this matter as well. Most troubling, from this reporter’s standpoint, was that a judge with whom prior contacts had always produced favorable performance reviews, now saw fit, before the commencement of proceedings on Friday August 10th, to call into her chambers counsel for both sides, including the County Attorney, for more than twenty minutes, in the absence of Mr. Sayegh, to apparently reveal, out of the presence of press and interested observers, her several conflicting relationships and circumstances, in spite of which she believed she could fairly fact find, and adjudicate the case.`

The fact is, Judge Smith has, in the past been a substantial contributor to the Independence Party, and Club, reportedly giving as much as $10,000 to Mr. Cavallo’s favorite charity. She is presently under subpoena from Publisher of The Westchester Guardian, Sam Zherka, as are numerous other judges, and Westchester County
politicians who have contributed substantial sums to Mr. Cavallo, apparently in exchange for his “party’s” cross-endorsement. Mr. Zherka is a member of the Integrity Committee, and a known supporter of Nader Sayegh, and was present in Smith’s Court throughout the proceedings.

Judge Smith, a Republican, whose judicial future lies virtually in the hands of the Republican State Committee who dispatch and underwrite the fees of John Ciampoli, legal counsel to Republican Mayor Phil Amicone in the instant case, and to Giulio Cavallo, Zehy Jereis, and other undesirable political operatives a week earlier in their unsuccessful action against Republican City Councilman John Murtagh, before Judge Joan Lefkowitz. Judge Smith knows better than most that even the appearance of impropriety may be fatal to the career of a judge.

As regards the evidence that formed the basis of Smith’s decision, her reliance upon testimony of self-proclaimed handwriting expert Roger Rubin was a stretch at best. The sum total of his education in the field of his so-called expertise, consisted, by his own admission, of having read a book on the subject. Respondent’s expert, Joseph P. Mc Nally, Jr., who is essentially criticized by Smith for having “failed to refute the specific findings of petitioner’s expert,” avoided doing so for the very same reason he criticized Rubin for making comparisons.


McNally, preferring to be known as a Document Authenticator, and possessing vastly more credentials and experience than Rubin, was strongly opposed to the making of signature comparisons from the designating petitions, with a “single exemplar,” voter registration cards, many of which he pointed out to the Court were fifteen and twenty years old.

Finally, legally savvy observers present, including this reporter, understood that Mr. Ciampoli had not made out
a very compelling case. And, realizing this toward the end of his presentation, as a kind of “Hail Mary Pass” raised an old election law case Haas v. Costigan that he had exhumed from 1961, one that even Judge Smith
acknowledged had many “red flags.” The purpose of the citation was to suggest that if Mr. Sayegh avoided testifying, for whatever reason, Haas stood for the proposition that it would impose a negative inference.

Before breaking for lunch Smith insisted that Attorney Harry Kessler produce Nader Sayegh in her Court for the afternoon session. No such requirement was imposed upon Phil Amicone or any other opposing party. And, while his testimony contradicted the testimony relied upon by the Judge, given the circumstances under which signatures were collected and the large numbers of individuals who signed, Sayegh’s responses to cross-examination did not seem “incredible” as claimed by Smith in her decision, but rather left room for reasonable doubt. In any case there was no evidence that would compel a reasonable trier of fact, under the totality of the circumstances, to conclude that there had been an affirmative fraudulent intent on the part of the respondent.

Nader Sayegh had told The Guardian prior to the proceedings, “The opposition, Giulio Cavallo and his team, including Phil Amicone, have brought an action against the Westchester Board of Elections for having validated petitions containing 768 signatures. They are pursuing a strategy of intimidation and harassment of voters. They feel they can use their money and influence to get their way.”

Contacted following release of Smith’s decision, Sayegh told The Guardian that he fully intends to appeal the decision to the Appellate Division, and, if necessary to the Court of Appeals.