Expert Confirms Jam at 39 Votes. D-Team Tries for Vote Projection

Attorneys for Glen Hockley and Larry Delgado agreed, based on a telephone conference call Wednesday with a voting machine expert, that Mr. Delgado’s vote total jammed at 39 in District 18. Both said no further inspection of the machine can shed further light on the crucial Delgado count.

Jeffrey Binder, the D-Team Lead Attorney plans a statistical recreation of the possible lost vote. The historic White Plains Council Election of 2001 continues Thursday at 2 in Supreme Court.
Wednesday afternoon, Mr. Binder requested permission of the court to present statistical evidence for a projected Delgado missing vote count. The judge may rule on the admission of this Thursday.

Conference Call agreed to Wednesday AM

An 8-minute conference call at the Board of Elections conducted with Sherwood Danielson, an expert repair supervisor of the Voting Machine Service Center in Jamestown, Erie County, New York, was arranged based on agreement in court Wednesday morning. The 5-way conversation shed light on what happened within the bowels of the District 18 voting machine at George Washington School Election Night.

LITIGANTS LISTEN IN TO EXPERT ON FACT-FINDING CALL at Board of Elections Wednesday. Shown are Carolee Sunderland, Commissioner of Board of Elections, Jeffrey Binder, Delgado attorney, and Adam Bradley, attorney for Glen Hockley.WPCNR PHOTO.

Trouble getting the conference call started

The conference call was about to begin (suggested by Judge Francis Nicolai), at around 12:30, when Adam Bradley, Glen Hockley’s attorney began protesting to the Board of Elections Commisioners. He expressed concern that the expert about to be called was a Delgado attorney-supplied expert. Two reporters waiting outside the open office could clearly see Mr. Bradley stalking around Reginald LaFayette’s desk in front of the two Board of Elections Commissioners, Carolee Sunderland and Mr. LaFayette.

Communications Break Down

When the conference call was ready to be placed, it could not be set up to work on the phone in Mr. LaFayette’s office. Ms. Sunderland said she could do it on her phone. After the entourage trooped down to Ms. Sunderland’s office, she could not get the conference feature to work either.

BINDER FINALLY GETS THROUGH. Jeffrey Binder is finally able to put together the conference call. He is shown coordinating the call with his New York office which set up the call with their Verizon equipment.WPCNR PHOTO.

Mr. Binder, Mr. Delgado’s attorney, with Mr. Bradley agreeing, set up the call finally through his law offices in New York which got all three parties and the conference call listeners on line in about 2 minutes.

Technicians lead off the questions

At approximately 1:30 PM Thursday afternoon, Steve Schoengold and Frank Luiso, the Board of Elections technical experts who conducted the inspection of the voting machine Tuesday, began the call, explaining to Danielson what they had discovered.

TALKING TECH TO TECH: Board of Elections Technicians, Steve Schoengold, foreground and Frank Luiso explained what they found to Danielson and asked his opionion.WPCNR PHOTO.

Danielson said “It sounds like failure in that counter station.”

Mr. Schoengold, saying he and Mr. Luiso had given their opinions in court on this question, asked Danielson if the counter could have counted past 39 to 100 and somehow rolled back to 39 when it jammed. Danielson, replied, “No. No. Un-Un. No way.”

Nothing more in the machine to indicate vote

Jeffrey Binder, Mr. Delgado’s representative, jumped in, asking if there “was anything in there (inside the machine) we might find that might tell us if the (Delgado) count had gone past 100?”

Danielson said, “There’s no way I could determine that. I would not know (by examining the gears) how many more times it (may have) turned. I don’t know there’s anyone who could determine this. There’s nothing (inside) to indicate the count. (An examination) will show you where the breakage is. In my opinion it broke at 39.”

Gears on the “1′s” wheel cannot turn the 100′s wheel

Binder asked if the gear moving the “10” wheel (the second numbered wheel counter), could move the 100 counter. Danielson indicated this was impossible, saying, “when the 1’s wheel gets to 9, it transfers to zero, moving the 10s wheel (WPCNR NOTE: in this case moving the 3 to a 4). The 10s wheel is moved by a separate gear from the 100’s wheel. The 3 (changing to 4) would not move zero (in the 100′s wheel) to 100. No way.”

Binder replied, “O.K.”

Bradley establishes agreement between experts

Adam Bradley asked, “It’s fair to say your expert opinion is the same as the technical experts (of the Board of Elections)?”

Danielson said, “Yes.”

Binder asked an earlier question in a different way, asking “if there was any possible indicia (of the count inside the machine), no indicia to that effect?” And was told no.

A Man Who Knows Voting Machines

Matthew Gallagher, legal counsel from the Westchester County Attorney’s office asked Mr. Danielson what his experience was.

Danielson said he was presently an instructor for his company training repairers of voting machines, that he had started at the company in 1981.

He said, “I can tear down machines, do major repairs, minor repairs, in-field service. You name it I can do it.”

On that note, the call was concluded.

The Litigants Who Listened In.

Helping conduct the call were the two technicians executing the Tuesday inspection, Steve Schoengold and Frank Luiso, Mr. Bradley and Mr. Binder, Carolee Sunderland, Commissioner of the Board of Elections, Reginald A. LaFayette, Commissioner, Board of Elections, Mr. Delgado, Mr. Hockley, Matthew Gallagher of the County Attorney office, Steve Levy and Jeannie Palazola, Deputy Commissioners of the Board of Elections.

After the Call, Back to Court.

The two attorneys and their entourage returned to court at 2:30 PM Wednesday afternoon to report their findings to Judge Nicolai in Supreme Court.

It should be noted that Mr. Danielson was arranged for at the order of Judge Nicolai’s Principal Law Clerk, Diane Lundin. Acting on instructions from Judge Nicolai, she had asked the Board of Elections to find a voting machine expert to shed a third opinion the previous Tuesday evening after the inspection had been completed. Mr. Bradley was reported present when this instruction to the Board of Elections Deputy Commissioners, Mr. Levy and Ms. Palazola, was given.

Levy calls Board of Elections service company for expert

Steven Levy, Deputy Commissioner, contacted Dale Marshall of Voting Machine Service Center, which maintains the Westchester County voting machines to find an expert. Mr. Marshall arranged for Mr. Danielson’s availability for a Wednesday morning call.

Parties Return to Court for 2:30 Session to Discuss Call.

Judge Nicolai called the session to order and asked if the call had been made.

Mr. Binder, Mr. Delgado’s counsel said it had, and that “my client (Mr. Delgado) is completely satisfied there will be nothing to be gained by further examination of the machine.”

The judge queried Mr. Bradley. Mr. Bradley said, “I sat here and heard from two Board of Elections technicians. My understanding was this gentleman confirming what they said.”

After this fact-finding that nothing more was to be found by further machine breakdown was agreed to on the record by both attorneys counsel Binder requested a new avenue of inquiry.

Binder Suggests Statistical Projection

Binder then asked Judge Nicolai for the opportunity to bring in an expert statistician’s analysis of the votes Mr. Delgado most likely would have received.

Judge Francis A. Nicolai raised his dark eyebrows, advising Mr. Binder, “It can’t be too much longer. We’re already into December 1. They (the candidates) need some time to prepare.”

Binder said the statistical analysis he is suggesting could give Judge Nicolai information that would suggest “it may be reasonable to adjust the canvas.”

The Judge asked “Who and What?” and that the analysis had to allow time for Mr. Bradley to be heard and react to the analysis.

Binder stated dramatically, “A 99% probability of over 140 votes (for Delgado) on that line.”

Judge Nicolai rose in his seat knitted his brows, and said he needed to know “on what theory he is presenting? I disagree completely with your expert.”

Binder, in his quiet, unruffled voice, said, “Certainly a strong case could be made.”

The Judge said he would have to see an Offer of Proof from Binder explaining the credentials of the expert, what he/she intends to say, and the methods of his analysis before he would agree to allow the statistician’s testimony to be heard.

His Honor, expressing skepticism, remarked, “seems like more speculation than mathematical certainty.”

Judge Nicolai moved swiftly, summing things up: “There is no further need to redo the voting machine. You must prepare a written Offer of Proof, serving this to Mr. (Adam) Bradley not later than 11 o’clock tomorrow (Thursday) AM.”

Bradley Reasserts Objections to the Show Cause Order.

Adam Bradley repeated his assertion that the original Delgado complaint should have not been heard because it had not been given an index number by the County Clerk. Judge Nicolai, who had sternly refused to dismiss on this ground Monday morning roared: “It’s nonsense. I am not going to dismiss a case of this importance on a technicality.”

Bradley repeated his complaint about the way the original documents was written. Judge Nicolai said “Why are you having a problem with it? What don’t you understand?” rising and pounding his desk and saying “Exception is all. You object to my ruling. You’re wasting time.”

In a third complaint, Bradley raised the issue of not being notified by Delgado’s attorneys (when he requested by letter to be notified) that there was no need to appear in court on November 9, when the original show cause order was called.

Judge Nicolai did not give this much credence because he pointed out the letter wording in Bradley’s own words said “no petition at this time,” indicated Bradley was expecting a petition and might have checked before he arrived.

Bradley raises “remedy” issue.

Taking a deep breath, Mr. Bradley then attempted to plunge into what was obviously on everyone’s mind. He said he wanted to focus on an issue of tremendous importance, the remedy.

Judge Nicolai held up a hand, smiling with teeth not showing, brows knitted, tightlipped, “You’re being premature. That’s assuming I find a need for a remedy.”

Bradley protested, “So much is occurring and we keep doing things.”

Judge Nicolai, taking firm control in a sublime manner, defended what he called the fact-finding process:

“At every phase, that next step was helpful. It may not be your point. But it’s my point. You have an adversary role, and I have a neutral role. We have very different roles.”

Bradley responded, “This is a process of speculation. We are prolonging it, delaying the reality here: A tremendous issue about the remedy.”

The Judge serenely replied, “I don’t care. We have to establish facts…Your view is at midnight election’s over, we won, good-bye. You don’t want a factual foundation to establish a remedy. It’s fair to explore the issue, then we have a factual foundation. I’m not convinced there’s a need for a remedy.”

Public belief in election, the Judge’s goal

The judge somberly entoned his overriding concern he stated at the beginning of this winding litigatory journey Monday morning: that the public must have confidence in the integrity of the election process.

Noted No-Shows

Tom Roach and Rita Malmud who had been in court Monday and Tuesday supporting Mr. Hockley, were not in court Wednesday. Mr. Roach and Ms. Malmud were essentially cleared for certification by Judge Nicolai’s ruling Tuesday morning.

Judge Nicolai adjourned proceedings to resume Thursday afternoon at 2 PM in State Supreme Court in the Westchester County Court House.

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FLASH! Inspection Reveals Delgado Counter Jammed on District 18 Machine

UPDATED:A Board of Elections-appointed inspector has found the District 18 Voting Machine jammed on Larry Delgado’s Line 10A sometime on Election night. Steve Schoengold, in attempting to clear the Delgado counter wheel back to zero, could not do so, in an official examination of the voting machine ordered by Judge Francis A Nicolai Tuesday morning. (See exclusive photos of the historic inspection.)
The inspection conducted Tuesday afternoon, lent strong credibility to what Mr. Delgado and the Republican party have contended from Election Night, that Mr. Delgado lost over 100 votes because of a voting machine malfunction.

This raises the possibility of a runoff election between Mr. Delgado and Glen Hockley in District 18. The judge said, prior to the inspection, that he would not order a new citywide election.
The inspection conducted Tuesday afternoon, lent strong credibility to what Mr. Delgado and the Republican party have contended from Election Night, that Mr. Delgado lost over 100 votes because of a voting machine malfunction.

Runoff likely in District 18

The finding of a “jam,” raises the possibility of a runoff election between Mr. Delgado and Glen Hockley in District 18. The judge said, prior to the inspection, that he would not order a new citywide election, and would not arbitrarily adjust the canvas in Mr. Delgado’s favor, but Judge Nicolai indicated he favored a runoff election.

Inspection being documented

As of 4:30 PM Tuesday, Diane Lundin, Principal Law Clerk for Judge Francis A. Nicolai of New York Supreme Court, was supervising a court recorder who was taking the tesimony of Steve Schoengold, the official inspector who discovered the jam.

DELGADO LINE 10A JAMMED AT 39:Close-up snap of the Delgado Line, after Steve Schoengold, official BOE technician attempted to clear the line to zero Tuesday. Snap shows the Delgado counter (second from upper left) frozen at 39, (it appears blank in the picture) while other counters surrounding it are at “00″ WPCNR PHOTO.

Schoengold said he had attempted to clear line 10A back to zero and could not do so, saying it was jammed at 39, exactly the total of votes for Mr. Delgado canvased from the machine Election Night.

INSPECTION IN ACTION: Steve Schoengold, official BOE technician attempts to clear the Delgado counter line to zero Tuesday and cannot budge the rollers that turn the plastic numerically- encoded counter wheels. At this point, attorneys for both Delgado and Hockley had the Democratic Deputy Board of Elections Commissioner contact Judge Francis Nicolai’s office for instructions.WPCNR PHOTO.

“Suspected Jam” Confirmed

Because the machine mechanics could not be tested as directed by the judge, without removing an entire part of the machine, a court recorder was summoned to record the official finding of a “jam.”

JUDGE, WE HAVE A JAM: Democratic Deputy Commissioner Jeannie Palazola of the Board of Elections is seen calling Judge Nicolai’s chambers for instructions on how to proceed, after the Delgado counter wheel is found to be immobile at the “39″ count. Glen Hockley looks on with concern in the background. Palazola was told by Judge Nicolai’s Law Clerk that the clerk would be arriving with a Court Reporter to take testimony that the voting machine was jammed. WPCNR PHOTO.

At 3:35 PM, the jam was discovered, and the entourage then waited approximately 55 minutes until the Law Clerk arrived with an official reporter to document the testimony of the inspectors.

JUDGE NICOLAI’S PRINCIPAL LAW CLERK DIANE LUNDIN SUPERVISES court reporter setting up prior to taking testimony documenting the inspection at 4:45 PM. WPCNR PHOTO.

COURT REPORTER, SEATED, TAKES DEPOSITIONS, prior to expected court session Wednesday morning.WPCNR PHOTO.

The attorneys and candidates, Larry Delgado and Glen Hockley, now expect to convene in Supreme Court Wednesday morning at 10 AM to proceed with what Mr. Delgado calls, “the remedy process.”

Delgado-Hockley “Runoff” in District 18 Likely

In ordering the inspection Tuesday morning, Judge Nicolai said he would not arbitrarily assign 100 votes to Mr. Delgado, giving him a victory over Mr. Hockley. Instead, the judge indicated he would call for a runoff election in District 18 between Mr. Delgado and Mr. Hockley.

Malmud and Roach are “In.”

Ms. Malmud and Mr. Roach, had been informed by the Judge Tuesday morning their votes would stand regardless of the result of the inspection, effectively clearing the way for the certification of their election by the Board of Elections. The request was made by Ms. Malmud’s and Mr. Roach’s attorney, Alan D. Scheinkman, and the judge ruled accordingly that it would be a “gross injustice” to Malmud and Roach to have them on any runoff election ballot, since their positions, in Judge Nicolai’s opinion would not be changed by any runoff vote.

SMILING WIDELY, LARRY DELGADO LEFT COUNTY COURTHOUSE AT NOON HAVING WON THE INSPECTION. Councilman Larry Delgado is shown leaving the Westchester County Courthouse Tuesday at noon, with his aid-de-camp, Mike Amodio, minutes after Judge Francis Nicolai ordered inspection of the District 18 voting machine.WPCNR PHOTO.

The judge said under no circumstances would he call for a citywide revote.

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Bulletin:Judge Orders Inspect District 18 Voting Machine at 3 PM Today.

At noon on Tuesday, Judge Francis A. Nicolai of New York State Supreme Court ordered the Board of Elections to conduct an inspection of the District 18 voting machine, to determine if the Larry Delgado voting lever has a malfunction, which might have caused Councilman Delgado’s vote total to be off by 100 votes. The inspection is scheduled for 3 PM Tuesday afternoon at the Ferris Avenue Fire House where the voting machine has been impounded.

The Judge also ordered effectively the certification of the election of Rita Malmud and Tom Roach to the Common Council, by excluding them from being effected by any future remedy to the Delgado-Hockley vote count dilemma, should Delgado’s lever on the machine be found to be malfunctioning. (More to Come on this story)
The inspection will take place by an official Board of Elections technician who trains the District Machine inspectors, and will consist, as ordered by the judge of 100 pulls of the Delgado lever. The inspection will be observed by the candidates and legal representatives.

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Judge Reserves Decision on Delgado’s 100 Votes And Machine Examination

At 3:25 PM today, Judge Francis Nicolai, Administrative Judge of the Ninth Judiciary District reserved decision on Councilman Larry Delgado’s suit to call for an examination of the District 18 Election Machine. The case is expected to be decided Tuesday morning at 10 AM in New York State Supreme Court. Judge Nicolai thoughtfully heard arguments from both candidates and said “we need to move this along,” prior to reserving decision. (More to come on the proceedings later on WPCNR

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The Mayor Dedicates first Poinsettia Tree at The Westchester, Volunteers Sought

The Westchester, White Plains “signature” mall dedicated their first-ever holiday tree Friday, giving post-Thanksgiving giftseekers an opportunity to sponsor living poinsettia plants pyramided magically to form a 15-foot Poinsetta Tree at the entrance to Nieman Marcus. Before the dedication at 12 noon, the effort had already raised several thousand dollars from corporate and individual sponsors of the event for St. Mary’s Rehabilitation Center for Children in Ossining.

FIRST EVER “POINSETTIA TREE” gives shoppers opportunity to sponsor a plant for a $25 donation to purchase rehabilitation and therapy equipment for the children of St. Mary’s Rehabilitation Center for Children in Ossining. Mayor Joseph Delfino joins in the dedication cermonies of The Westchester’s first Poinsettia Tree Friday. Visitors, teens over 14 are being sought for interactive work with children at the center and can sign up at the Tree. Shoppers can also register Free to win $350 in merchant-sponsored and donated services at The Westchester. WPCNR PHOTO.

Eileen Chisari, Vice President of Administration of St. Mary’s Rehabilitation Center for Children told WPCNR the donations will be used to purchase respiratory equipmen, rehabilitation devices and a combination of capitol requests. She said approximately 30 corporate sponsors had teamed together to establish the tree, already providing several thousand dollars to St. Mary’s.

Chisari said the 44-bed nonprofit pediatric healthcare facility in Ossining serves chronicly ill chidlren from birth to age 16, providing intensive rehabilation with the aim of stabilizing their illnesses. The children are primarily physcially handicapped, and they and their families are offered counseling services as well, as their stays are extended.

First Holiday Tree for The Westchester

Deborah Scates, Marketing Director of The Westchester said they were approached by Thompson & Bender, the Westchester public relations consultants, with the idea for the Holiday Tree, and she said, “We thought it would be a great opportunity. It just seemed time to do a tree.”

Scates arranged a raffle of $350 of services and merchandise, donated by fourteen merchants based in The Westchester which persons visiting the Westchester can register to win, absolutely free.

The Poinsettia Tree from a distance looks like a typical Christmas Tree, decorated with gay red finery. You would never know that it is made up of 400 individual poinsettias set on wooden platforms, which are completely invisible to the passerby.

Sponsors Already donate at least $10,000 to start. Volunteers Also Invited to Apply.

Corporate, individual and community sponsors have donated $25 or more for the plants to create the Tree. Shoppers can donate $25 and hae their names entered on the growing board of sponsors displayed at the Tree.

Ms. Chisari of St. Mary’s said she hoped the tree would inspire teen and adult volunteers to donate their time to visit the children at St. Mary’s.

Ms. Chisari advised that persons over the age of 14 interested in volunteering at St. Mary’s in Ossining were needed for therapeutic play, to accompany residents on special trips, to play with babies in the 11-bed nursery unit. Call 914-333-7019 if you are interested in volunteer service.

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CitizeNetReporter Wishes our 2,500 Reporter Regulars a Meaningful Thanksgiving

The White Plains CitizeNetReporter wishes our some 2,500 regular readers and those of you joining us for the first time a meaningful and delightful Thanksgiving Holiday. The CitizeNetReporter thanks you for your confidence in our reporting and your loyal readership, many of you read us twice a day, and we are very thankful and honored by your commitment to us.

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I Told McLaughlin I’d Return for One Year Three Weeks Ago: Yanofsky

White Plains Superintendent of Schools Dr. Saul Yanofsky told this reporter Wednesday, he had “indicated” to Donna McLaughlin, President of the Board of Education he’d be willing to extend his contract for one year beyond June 2002, as early as the last week of October or the beginning of November. His offer was apparently on the table within two weeks of the district announcement of his departure, and has been ignored by the Board during the growing public furor over the Board decision not to renew his contract.
Two members say he was unwilling to come back.

Yanofsky said he was moved to call WPCNR by assertions from two
Board of Education members this week.

One statement may have been from Dorothy Schere. Schere said so in a public statement at the Board of Education Monday night. Her statement transcript can be read in a separate article.

The other member was Larry Geiger who indicated similar sentiments to WPCNR.

The Yanofsky statement

Yanofsky said he felt compelled to set the record straight about his willingness to “come back” and issued this statement Wednesday personally to WPCNR Wednesday at 4:45 PM:

“Three weeks or so, ago, in conversation with the Board President (Donna McLaughlin), I indicated I’d be willing to sign a one year contract. The Board decided not to change their mind. That was clear Monday night when they decided to go ahead (and search for a new superintendent). I was surprised to see two Board members say I had not (offered to come back).”

Dr. Yanofsky said he was moved to clarify his statement to WPCNR Monday evening after reading statements to the contrary.

Reaction trigger

For the record, WPCNR had asked Dr. Yanofsky a routine question as he was departing White Plains High School Monday evening. We asked if he’d be willing to come back if asked by the Board.

His response then: “That does not appear to be an option at this time.” Yanofsky amplified this comment late Wednesday afternoon:

“I said that does not appear to be an option at this time” he said, “in light of the Board vote Monday night. I wanted to set the record straight.”

Board had chance to patch things up.

What Yanofsky’s Wednesday statement reveals is the Board of Education has had the opportunity for three weeks to keep Dr. Yanofsky on a short-term one year basis on the table. They so far have apparently chosen to stay their course, in spite of public opposition, and search for a superintendent now.

Publicly they have been defending their decision to relieve Yanofsky of his duties last April on the basis of differences over test scores, program evaluation and quality of District-wide communications and public relations.

Negotiations loomed large in Board’s thinking

The unsolicited information provided by Dr. Yanofsky today makes clear that the Board of Education worry over a teachers union contract that expires in June 2003, has had far more impact on their decision not to renew Yanofsky’s contract than they have stated publicly.

Board of Education President Donna McLaughlin admitted as much to WPCNR Monday evening as she was leaving the Board of Education meeting. WPCNR sympathized with her, saying “You were between a rock and a hard place in light of those teacher negotiations.” Ms. McLaughlin said “yes.”

As outlined by WPCNR previously, the scenario the Board saw developing was this: If Yanofsky was extended for only one year, from 2002 to 2003, the new superintendent would be taking over in July 2003.

The teachers union would be negotiating in early 2003 with a lame-duck superintendent (Yanofsky). The union would have, in WPCNR’s analysis, a negotiating edge over Dr. Yanofsky: his own haste to settle the contract to give the new superintendent a clean, fresh start with the district, avoiding an ugly confrontation with teachers over wages in his or her first months on the job.

Yanofsky’s remarks Monday evening.

In his remarks to the public at the Board of Education meeting, Yanofsky did not reveal his offer to stay for one year. He described his approach to the Board of Education last spring as being a case where he did not ask for either a two or three year contract. He said “I did not say I wanted 2 or 3 years, just that we needed to talk about how best to transition (to a new superintendent). I felt it was time to have that conversation. That conversation (with the Board) never took place.”

Answers Board Criticism

In response to the Board criticism in their letter of last week of his position on testing, Yanofsky said Monday evening: “I never suggested that these tests weren’t important. I said that we needed to do all we could do to convince the state Education Department that it does not report results that stand education well and we tried to convey that to the community. State tests are a reality, and we as a district have to do all we can to improve the performance.”

Yanofsky shed light Monday on the Board request of him for a plan to improve test scores. Yanofsky indicated that there were six work sessions in which he and the Board discussed “what the nature of that plan might be.” It became clear, he said, that the Board wanted to “quantify” goals in such a plan, setting standards by which test scores should improve a certain percentage each year. He said he opposed such an approach.

The Board of Education will meet with Hazard, Young, Attea & Associates next Tuesday to discuss profiling the new Superintendent of Schools candidate they seek.

The next work session of the Board of Education is Monday, November 26 at Education House at which they will begin budget discussions and review technology needs of the district.

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Delgado Lives! Election Suit to Monday. Dems: No Mechanical Inspection Please!

Councilman Larry Delgado’s lawsuit to claim 100 alleged “lost” votes due to a faulty voting lever in District 18 in North White Plains was not dismissed Wednesday morning. Judge Nicholas Colabella continued the challenge by adjourning the case to another judge, who will take up the Delgado suit on Monday.

EMERGING CONFIDENT FROM THE COUNTY COURTHOUSE WEDNESDAY MORNING, Larry Delgado, incumbent City Councilman is flanked by his election law team, John Ciampoli(L) and Jeffrey Binder (R). The three emerged from Judge Nicholas Corabella’s courtroom 1200 Wednesday with an adjournment to Monday on their suit to have the alleged faulty District 18 voting machine, now impounded, inspected. Today’s continuance means results are delayed at least another week.WPCNR PHOTO

In New York State Supreme Court, at the County Courthouse Wednesday morning, Judge Colabella listened to arguments on examining the District 18 Voting machine. He heard from Adam Bradley, attorney for Glen Hockley, the council candidate with an estimated 65-vote lead over Delgado. Jeffrey Binder and John Ciampoli, attorneys for Mr. Delgado presented his complaint. Mr. Delgado did not argue on his own behalf.

Delgado alleges 100 voters were disenfranchised.

Mr. Delgado’s counsel argued for an examination of the impounded District 18 voting machine where the alleged miscount occurred. Counsels Binder and Ciampoli base their argument on Section 16-112 of New York State Election Law which calls for “examination of the ballot” to insure no voter is disenfranchised.

Bradley: examination should not include mechanical testing of the machine.

Mr. Bradley, apparently seeking to avert actual inspection of the internal workings of the suspect faulty voting machine, raised the question to Judge Colabella of what the word “examination,” means and asked the Judge for a ruling on it. Bradley contended that “examination” did not include actually looking into the mechanical functioning of a voting machine.

Mr. Bradley based his argument on the fact that the Board of Election District Inspectors inspect the machines at the beginning of voting for functionality.

Courtroom observers felt, in observing Judge Colabella’s face, his eyes staring intently at Mr. Bradley and Mr. Ciampoli, that he took a skeptical view of Mr. Bradley’s argument that examination precluded internal inspection of the machines.

The Judge asked what the two teams wanted him to rule upon. Mr. Ciampoli said he wanted the Judge to rule on what constituted “examination,” and to set a date for the inspection, and appoint inspectors to examine the suspect District 18 voting machine.

The judge asked two Board of Election officials in attendance if they could assign inspectors, and they said they could. Judge Colabella then advised the attorneys for both sides, that he was willing to assign a date for an inspection date then and there, but that he was going on vacation and could not issue a ruling until January.

Bradley nonaction appears to delay decision for a week.

When attorney Bradley expressed reluctance to agree, Judge Colabella then announced that he felt it would be expeditious to reassign the case. The judge adjourned the case until Monday morning at 9:30 AM, before another judge.

Judges are assigned at random by computer. This, according to Mr. Binder, was how Judge Colabella happened to draw the Delgado challenge, despite his scheduled vacation coming up. By not agreeing to the judge assigning a reexamination of the machines date this morning, Mr. Bradley has, according to Mr. Delgado’s attorneys, held the examination of the machine up for a week.

Ciampoli speaking to WPCNR after the court appearance said the inspection of the machine could have begun this Friday, but now would not.

Entourage troops to the court clerk office for reassignment.

In an interview with the Delgado legal team, while waiting for the assignment of the judge Mr. Ciampoli and Mr. Binder gave us some details of their arguments.

Classic indicator of machine malfunction.

WPCNR learned from Mr. Ciampoli that Mr. Delgado’s result is a classic indicator of voting machine malfunction. Ciampoli reports he read the numbers off of Line 1-A, the Republican line, to a Suffolk County election expert, to get his reaction. The official immediately said “the count is broken.”

Mr. Delgado advised this reporter that his history of running in District 18, showed that his count could have been expected to be at least 100 votes more. Michael Amodio and Robert Tuck, Mr. Delgado’s Republican running mates each garnered approximately 139 votes and Mr. Delgado, just 39, according to those familiar with the individual District counts. This apparently lends credibility to Mr. Delgado’s challenge in the eyes of Judge Colabella who could have simply listened to the arguments and dismissed the suit Wednesday morning.

“Outcome Determative” weighs on Judges’ minds

Mr. Binder advised WPCNR that since the 100 votes in question are “outcome determinative,” the courts take a very serious view of the disenfranchisement question, “If the machine was defective, at least 100 voters will have been disenfranchised of their right to cast their vote for Mr. Delgado. A common sense scan raises the question of how do you then throw out those 100 votes?”

Warming up, Mr. Ciampoli added, “Every voter has the right to vote for every official. ‘So what?’ doesn’t cut it. That’s tough. You see a line that is different from all the others, normally you can throw it out. But here it is outcome determinative. This 100 votes makes the difference in the election.”

Ciampoli said the Delgado team at this point wants “a thorough review of this (District 18) machine.” He said they were not at the point where a new election was called for. Ciampoli says “sometimes a gear slips,” accounting for a failure of a machine to count on a particular candidate.

Mr. Delgado remarked, “It (the malfunction) is obvious to anybody. It only appeared on one line – 1-A – my line. Let’s look at the machine – determine the cause of the error. Any fair reading of the statute (16-112) is to see whether an error occurred.”

Mr. Ciampoli, an expert in election law, indicated Mr. Delgado’s chances are good: “I’ve never seen a judge refuse to have a machine examined when it meant finding out the truth (of the result).”

He sited one recent case where entire election was recanvased because of just this kind of election machine error.

Ciampoli said any election machine inspection would include the appointment of one Republican Party inspector and one Democratic Party inspector to go behind the panel and take a look.

Democratic Team Leaves Court Quickly.

Mr. Bradley on leaving the court did not wish to go into what his “answers” might be as to what he wanted examined. Mr. Bradley was accompanied to court by Tom Roach, also acting as counsel, with of course, Mr. Hockley and the third candidate for Common Council, Rita Malmud.

Official results have not been posted on the Board of Elections site, according to two Board of Elections officials because of technical difficulties and a “broken server.” The official said the Board of Elections is not required to file results by law before December 3, and they therefore were not behind.

Observers of the proceedings say this is the first time in White Plains history where a suit has been filed challenging a district vote that would determine a council seat.

By a little before noon Wednesday, the court clerk’s office had assigned Judge Orazio Bellantoni to hear the case on Monday, at 9:30 AM in State Supreme Court. WPCNR will be there.

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WP Taxi Drivers Request $1.25 Fare Hike Over All Zones

Approximately seventy city cab drivers met with the Taxi Commission Tuesday afternoon requesting a $1.25 hike in every fare zone across the city. Many complained that long waits at the train station reduced them to making less than the minimum wage ($5) per hour.
The drivers spoke of reduced business and competition from alleged run-in-the-red county loop buses that have taken away their Westchester Avenue and corporate park business.

The drivers said the buses, though full in the morning and evening rush hour have very little traffic during the day, and undersell the cab fares. The loop buses according to the cabbies charge $1.25 for the trips to and from the Westchester Avenue corporate park areas of the city.

They presented their case to the head of the Taxi Commission, Deputy Public Safety Commissioner Daniel Hickey. Hickey hoped to work out a fare plan to present to the Common Council in January.

Driver after driver cited rising insurance costs and dwindling ridership due to the cumbersome taxi rules at the White Plains Railroad Station.

Most of the drivers, who own their own cabs, said they were barely clearing $50 and $60 a day in wages. They said the low fares in White Plains (which start at $3.10) often made them less money per hour than the minimum wage ($5). Out of that they said they have to pay their own insurance, medical insurance, gas and car maintenance.

Their lawyer, Jeffrey Klein, requested that the Commission consider raising the wage a total of $1.25 in each zone across White Plains. However, Klein said that a combination of remedies might be considered.

He suggested for example charging fares who wanted exclusive use of a cab an extra dollar. Another suggestion was to enact a $1.00 surcharge for radio-dispatched calls.

The last fare increase was 5 years ago and that was only 40 cents, and the last fare increase before that was in 1993, when the increase was 30 cents, according to Klein.

Commissioner Hickey, who used to drive a taxicab in White Plains in the 1970s, when he said the base fare was 70 cents, said he would consider the options presented, get back to Klein and hoped to distribute the plan to the Common Council for review in time for the January 2002 Common Council meeting.

Klein, who speaks both Spanish and French, has been working with the cab drivers for about six months. He approached Commissioner Hickey for a review of the wages about two months ago and Commissioner Hickey scheduled the hearing as a result of the research Klein presented.

Hickey conducted independent reviews of cab driver wage claims, verified and checked the data, and scheduled the hearing.

Klein said he did not have figures on what fleet owners income levels were from year to year in White Plains and was unable to verify directly claims that the ridership was down over the last year among his clients.

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Council Grants Garage Underground/Air Development Rights to Cappelli for $2.4MM

In a special meeting of the Common Council Tuesday night, the Council passed unanimously a resolution agreeing to transfer subterranean rights to the third underground level of the new City Center Parking garage to Louis Cappelli for $400,000. They also entered into agreement with him to sell air development rights to him for an additional $2 million over 5 years.
The resolution cleared the way for Frederick Bland’s new parking plan and design for the Martine and Conroy residential tower presented last week. The design for the new apartment towers is scheduled to go before the council for approval December 3.

Foul! Cry Neighboring Owners and Developers-to-Be

The $2.4 million city windfall was opposed by Paul Bergens, legal counsel for Bart Goldberg, owner of the Broadmar building adjacent to the garage, (at Martine and South Broadway). Goldberg complained he knew nothing about this transfer of rights until almost the eleventh hour. Goldberg bitterly opposed acceding underground and air development rights to Cappelli, saying that the council was setting a dangerous precedent, and he urged a closer study of the implications.

He said the resolution denied Broadmar the ability to develop its property without Cappelli approval, charging Cappelli with attempting to control development in the area. Mayor Delfino pointed out that Broadmar had been at the location for sixty years and had not sought to advance plans to develop its property.

City Met Responsibility to Inform

Edward Dunphy, City Corporation Counsel, assured Council President Rita Malmud that Mr. Goldberg need not have been notified personally, because the city was required in any Special Meeting, to simply run an advertisement three days before the meeting regarding any resolutions they were considering at such a meeting. He told Ms. Malmud this was done.

Malmud Curious About Cappelli Motivation

Ms. Malmud questioned Mr. Cappelli on why he was willing to pay up to $2 million, suggesting that Mr. Cappelli had plans to build on top of the garage.

Cappelli cited his need to control what he called “view rights,” and said as part of the resolution, he was agreeing not to build on top of the garage.

William Null, representing Ridgemour Meyer Properties, interested in developing the Main Street A&P parcel of land into a condominium (property adjacent to the Cappelli City Center across Conroy Drive), stated his client’s interest in developing the property next to the garage that Cappelli would own air development rights on. His protest was not as vehement as the Bergens-Goldberg objection.

Null also told WPCNR in the City Hall rotunda that Ridgemour had simply been acquiring properties this fall and was indeed still in the hunt in developing the Main Street former A&P property. He also denied what Susan Habel had told us last week that Ridgemour did not have the financing for their condo tower. Null told the Council his client anticipated presenting plans for their development in January.

Feathered Fan Protests Clear Glass Construction

In a bizarre protest, a bird fancier, Doris
Simon, urged the Council to require Mr. Cappelli to install windows with ridged or smoked surfaces that would prevent birds from flying into the towers.

She envisioned massive bird kills from flights of migrating birds flying into the clear class of the towers and dropping dead to the parapets and sidewalks below. She painted a dire picture of anticipated featheredfanticide if Cappelli’s design did not include glass that birds would perceive as a solid, which they would, she said, avoid. She presented documents reporting the evidence of substantial bird kills at the former World Trade Center Towers as evidence for her concern.

The Money Deal

The resolution the council approved has Mr. Cappelli acquiring underground rights to the third lower level of his new garage for $400,000, with him paying $500,000 for air/development rights over the garage the first year.

In the second year, he would pay an additional $500,000 for the air/development rights, with payments of $334,000 in each of the third, fourth and fifth years of the contract.

Levine seems favorable toward present City Center design

Robert Levine, the architect who induced Frederick Bland to contribute his talents to the design of the City Center apartments project at the eleventh hour last September, along with William Rose and Robert Stackpole, was optimistic about the Bland/Cappelli collaboration.

Levine was observed huddling with Mr. Cappelli and discussing the new portfolio of City Center designs with the Super Developer during a break.

When WPCNR asked him what he thought about the newly designed project, Levine told us, “I think we are going to be fine,” but when asked to comment further on what he was talking about with Mr. Cappelli, Mr. Levine declined to comment.

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