Roman v. Sharpe

New York Court of Appeals

Roman v. Sharpe

368 N.E.2d 33, 42 N.Y.2d 986, 398 N.Y.S.2d 410, 1977 N.Y. LEXIS 2310

CourtNew York Court of Appeals

DecidedAugust 31, 1977

StatusPublished

Cited by4 cases

This text of 368 N.E.2d 33 (Roman v. Sharpe) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roman v. Sharpe, 368 N.E.2d 33, 42 N.Y.2d 986, 398 N.Y.S.2d 410, 1977 N.Y. LEXIS 2310 (N.Y. 1977).

Pincite

Opinion

Memorandum. The order of the Appellate Division should be affirmed, without costs.

Two issues are tendered. We agree with the referee and both courts below that the petitions should not be invalidated on the ground that the words "new voter” were inserted in the statement of the subscribing witness, Iris Ortiz. It is not disputed that a newly registered voter may now sign or witness designating petitions in the year of first registration. No implementing provision, however, is contained in the printed form of the statement of a subscribing witness (cf. Election Law, § 135). Strict conformity with the statutory form thus being impossible when, as here, the subscribing witness is a newly registered voter, the insertion of the words "new voter” is sufficiently and accurately informative and constitutes compliance with the Election Law.

On the uncontroverted testimony of the subscribing witness, Special Term found that the alterations in dates of which appellant complains were all made at the instance of the subscribing witness, prior to her signing as subscribing witness, and in no way affected the validity of the petition. Inasmuch as this determination of fact was affirmed at the Appellate Division it is now beyond the scope of our review.

We must conclude, however, that the dissent at the Appellate Division "as to the issue of change of dates” manifested, understandably, a difference of opinion only as to the factual determination affirmed by the majority in that court. Accordingly, inasmuch as the dissent was not on a question of law, the court on its own motion dismisses the appeal taken as of right (CPLR 5601, subd [a], par [i]). Appellant’s alternative application for leave to appeal is granted.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Appeal taken as of right dismissed, without costs. Application for leave to appeal granted. Order affirmed, without costs.

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Memorandum. The order of the Appellate Division should be affirmed, without costs.

Two issues are tendered. We agree with the referee and both courts below that the petitions should not be invalidated on the ground that the words "new voter” were inserted in the statement of the subscribing witness, Iris Ortiz. It is not disputed that a newly registered voter may now sign or witness designating petitions in the year of first registration. No implementing provision, however, is contained in the printed form of the statement of a subscribing witness (cf. Election Law, § 135). Strict conformity with the statutory form thus being impossible when, as here, the subscribing witness is a newly registered voter, the insertion of the words "new voter” is sufficiently and accurately informative and constitutes compliance with the Election Law.

On the uncontroverted testimony of the subscribing witness, Special Term found that the alterations in dates of which appellant complains were all made at the instance of the subscribing witness, prior to her signing as subscribing witness, and in no way affected the validity of the petition. Inasmuch as this determination of fact was affirmed at the Appellate Division it is now beyond the scope of our review.

We must conclude, however, that the dissent at the Appellate Division "as to the issue of change of dates” manifested, understandably, a difference of opinion only as to the factual determination affirmed by the majority in that court. Accordingly, inasmuch as the dissent was not on a question of law, the court on its own motion dismisses the appeal taken as of right (CPLR 5601, subd [a], par [i]). Appellant’s alternative application for leave to appeal is granted.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Appeal taken as of right dismissed, without costs. Application for leave to appeal granted. Order affirmed, without costs.

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Bluebook (online)

368 N.E.2d 33, 42 N.Y.2d 986, 398 N.Y.S.2d 410, 1977 N.Y. LEXIS 2310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roman-v-sharpe-ny-1977.

Opinion

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