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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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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 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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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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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.