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080609 Gleason v Gerson
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2 THE COURT: By Decision and Order of
3 Justice Sherri-Klein Heitler and Justice Edward
4 H. Lehner, in the matter bearing the caption of
5 Peter Gleason versus Alan Gerson and the Board of
6 Elections, et al., said matter bearing Index
7 number 110682 of 2009.
8 I, Leslie S. Lowenstein, has been
9 designated as a Special Referee to hear and
10 report with recommendations upon the issue of the
11 application brought by Peter Gleason to invalid
12 the designating petitions of candidate Alan J.
13 Gerson.
14 In an off the record conference in the
15 presence of counsel, the parties agreed that the
16 transcription of this proceeding would not be
17 waived and that the cost of the transcription
18 will be equally shared by the parties.
19 So stipulated?
20 MR. DOWD: Yes, sir.
21 MR. MANDELKER: Yes, sir.
22 THE COURT: Could I have the appearances
23 of counsel.
24 MR. DOWD: Dunnington, Bartholow &
25 Miller, 1359 Broadway, Suite 600, New York, New
26 York 10018, counsel for Petitioner Aggrieved
DEBORAH A. ROTHROCK, RPR
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2 Candidate Peter Gleason.
3 Good morning.
4 THE COURT: Good morning.
5 MR. MANDELKER: Good morning.
6 For Respondent Alan Gerson, Lawrence
7 Mandelker, Kantor, Davidoff, Wolfe, Mandelker,
8 Twomey & Gallanty. My collogue from the same
9 firm, Daniel S. Kokhba. My collogue Sarah
10 Trimming from the law firm of Gaffin & Mayo
11 located at 225 Broadway, New York, New York.
12 Thank you.
13 THE COURT: Okay.
14 At this time, Mr. Dowd, inasmuch as this
15 is your petition to invalid, it would strike me
16 that you have the burden of proof and you would
17 over the first opening statement if you wish.18 Bearing in mind, as I indicated on Tuesday, that
19 an opening statement is just that, it is there
20 for the purpose of framing out that which you
21 will demonstrate and prove upon the plenary
22 hearing.
23 Do you wish to proceed with an opening
24 statement?
25 MR. DOWD: Yes, sir. I believe Mr.
26 Mandelker has an application.
DEBORAH A. ROTHROCK, RPR
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2 MR. MANDELKER: If I may, I will make it
3 that after the opening statement.
4 THE COURT: As you wish.
5 MR. DOWD: Just to start, I believe Mr.
6 Mandelker and I have agreed that any evidence
7 presented in the validate proceeding, which
8 occurred on August 4, 2009, in Gerson versus the
9 Board of Elections may be used in this
10 proceeding.
11 MR. MANDELKER: And vice-a-versa. In
12 other words, any evidence properly admitted in
13 either proceeding can be considered by the
14 Referee in both cases.
15 THE COURT: So stipulated by both?
16 MR. MANDELKER: Yes, sir.
17 MR. DOWD: Yes.
18 THE COURT: So ordered.
19 Continued.
20 MR. DOWD: Thank you.
21 This morning our issue is -- we really
22 have two issues here; whether or not the
23 designating petition of Alan Gerson substantially
24 complied with the rules of the Board of
25 Elections, and the Election Laws of the State of
26 New York for designating petitions for the Office
DEBORAH A. ROTHROCK, RPR
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1 -Proceedings-
2 of Public Office of Counselman for the First
3 Counsel District of the The City of New York.
4 THE COURT: I assume Mr. Dowd, we're
5 going way beyond the cover sheet issues at this
6 point?
7 MR. DOWD: No, this is the invalidate
8 procedure.
9 THE COURT: Then we are on the cover
10 sheet issue?
11 MR. DOWD: The issue presented here, is
12 whether or not the designating petition was valid
13 in compliance with the Election Law and the Rules
14 of the Board of Elections of the State of New
15 York.
16 THE COURT: You may proceed.
17 MR. DOWD: If we look at the Election
18 Law 16-134, it authorizes the Board of Elections19 to make rules regarding cover sheets and the
20 Election Law itself contained provisions that
21 candidates must satisfy.
22 So, the burden of proof, since the
23 candidate is off the ballot, is on the candidate
24 to show that he has complied with the Election
25 Law.
26 We believe that the burden of proof in
DEBORAH A. ROTHROCK, RPR
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2 this proceeding remains with the Respondent.
3 Now, the Respondent has to show full
4 compliance with the Election Law, not just the
5 cover sheet issue. And what we're going to do is
6 show today, through the testimony of four
7 witnesses, that there was not substantial
8 compliance with the Election laws. And, in
9 particular, there was alteration of the
10 designating petition that was unauthorized and
11 violates the Election Law. And we are going to
12 show that particularly with respect to the Rules
13 of the Board of Elections, that there was no
14 substantial compliance.
15 At the Board of Elections on July 24th
16 -- let me back up.
17 On July 21st, the Board of Elections had
18 sent a letter to candidate Gerson. And the
19 letter pointed out that there was a defect in the
20 designating petition. That defect was that in
21 volume 312 of the designating petition, the
22 address did not match the cover sheet.
23 Now, the Board gave the candidate an
24 opportunity to cure the error. The candidate had
25 three days.
26 Rather than cure the error, in
DEBORAH A. ROTHROCK, RPR
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2 accordance with the Rules of the Board of
3 Elections, the candidate filed a document that
4 complied with none of the Rules of the Board of
5 Elections.
6 THE COURT: Mr. Dowd, with all due
7 respect, I think we're -- I seem to be getting
8 more of a summation rather than an opening. And
9 I would prefer that you stay with the opening.
10 MR. DOWD: You will hear testimony from
11 Alan Gerson, David Reck, Jessica Loeser, and
12 Renee Abramowitz.
13 I would like to call the first witness.
14 THE COURT: I would like to hear an
15 opening statement perhaps from Mr. Mandelker if
16 he so choices.
17 MR. DOWD: Certainly.
18 MR. MANDELKER: If your Honor pleases,
19 most of the ground that was covered in my20 friend's opening statement was ground that we
21 plowed through at the hearing the other day on
22 the proceeding to invalidate, whether the cover
23 sheet complied with the laws, what the Board of
24 Elections did, the documents, and so on and so
25 forth. So I am not going to dwell on that
26 because you already have evidence on that.
DEBORAH A. ROTHROCK, RPR
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2 if we want to inquire as to the exhibits that
3 came in on the hearing.
4 THE COURT: I have the other file with
5 me as well. I have the exhibits that were
6 admitted on August 4th.
7 MR. DOWD: Thank you, that was it. I am
8 going to go get Alan Gerson.
9 MR. MANDELKER: Before you go --
10 THE COURT: Off the record.
11 (Off-the-record discussion).
12 (Witness enters the courtroom.)
13 MR. GERSON: Good morning, your Honor.
14 THE COURT: Raise your right hand.
15 ALAN J. GERSON, a witness called on
16 behalf of the Petitioner, having been first duly
17 sworn by the Court, was examined and testified
18 under oath as follows:
19 DIRECT EXAMINATION
20 BY MR. DOWD:21 THE WITNESS: I do.
22 THE COURT: State your name and address
23 for the record.
24 MR. GERSON: Alan J. Gerson. 505
25 LaGuardia Place, New York, New York 10012,
26 Apartment 20-A, as in apple.
DEBORAH A. ROTHROCK, RPR
76
1 Direct - A. Gerson - by Petitioner
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080609 Gleason v Gerson2 THE COURT: Proceed.
3 MR. DOWD: Thank you, your Honor.
4 I would like to show the witness
5 Respondent's A from the August 4th hearing.
6 THE COURT: Respondent's A admitted into
7 evidence on August 4, 2009, is now in the
8 possession of the witness. You may proceed.
9 (Handing.)
10 MR. DOWD: Thank you.
11 Q Mr. Gerson, could you identify what
12 Respondent's A is ?
13 A It is a subpoena duces tecum, excuse me
14 for the mispronunciation, directed to me.
15 Q Have you seen this document before?
16 A Yes.
17 Q When was the first time you saw it?
18 A This past Saturday.
19 Q And what were the circumstances under
20 which you viewed it?
21 MR. MANDELKER: Your Honor, I object.
22 We went over this. He's admitted receiving it in
23 the other proceeding. The testimony is
24 admissible.
25 THE COURT: I will allow it as leading
26 material. The objection is overruled.
DEBORAH A. ROTHROCK, RPR
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1 Direct - A. Gerson - by Petitioner
2 A It was contained within an envelope thatPage 10
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3 was delivered to my apartment by the United States
4 Postal Service and I first saw it upon opening the
5 envelope, which was delivered by Certified Mail.
6 Q Did you read and understand it?
7 A Yes, I did.
8 Q And the document asked for you to bring
9 documents. Did you bring any documents with you
10 pursuit to the subpoena?
11 A No.
12 Q Did you bring a printer's Affidavit?
13 A No, I did not.
14 Q Did you bring your calendar?
15 A No.
16 Q Did you bring any printer's --
17 A I have no such documents responsive to
18 the subpoena in my possession.
19 Q Did you bring any printer's proofs with
20 you?
21 A No.22 THE COURT: He's answered your question,
23 sir. He told you that he has no documents
24 responsive to your subpoena. I think we should
25 take him at his word.
26 MR. DOWD: Yes, sir.
DEBORAH A. ROTHROCK, RPR
78
1 Direct - A. Gerson - by Petitioner
2 THE COURT: Let's move on.
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080609 Gleason v Gerson3 MR. DOWD: Yes, sir.
4 I would like to show the witness
5 Petitioner's 3, if I may, in evidence.
6 THE COURT: Petitioner's 3 admitted on
7 August 4, 2009, now in possession of the witness.
8 THE WITNESS: Thank you.
9 (Handing.)
10 Q Now, Mr. Gerson, I would like to ask that
11 you turn to the second page of Petitioner's 3. And
12 you'll see there's about one-third of the way down the
13 page an asterisk and it says 505 LaGuardia Place. Do
14 you see that?
15 A I see a marking, I'm not sure if it is an
16 asterisk or crossing out. I see a marking that could
17 be an asterisk but I could not identify it as such.
18 Q Have you seen this document before?
19 A No.
20 Q Do you know who Renee Abramowitz is?
21 THE COURT: Yes or no sir.
22 THE WITNESS: No, not for sure, no.
23 THE COURT: It is not an answer; yes,
24 no, or I don't know.
25 THE WITNESS: No. No, I do not know.
26 Thank you, your Honor, I do not know.
DEBORAH A. ROTHROCK, RPR
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1 Direct - A. Gerson - by Petitioner
2 Q Are you aware of any persons collecting
3 signatures on your behalf on June 9, 2009?Page 12
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4 A I do not know. I mean I --
5 Q Do you recall any persons collecting
6 signatures for your campaign on the first day for
7 signing designating petitions?
8 A I recall that persons were collecting
9 signatures on the first day. I do not recall the
10 specific individuals who were doing that on any
11 particular day.
12 Q Do you recall Edward Braunstein
13 collecting signatures for you?
14 A No.
15 Q Do you recall Camden Ackerman collecting
16 signatures for you?
17 A No.
18 Q Do you recall Jessica Loeser collecting
19 signatures for you?
20 A No.
21 Q Now, do you recall when you first learned
22 of a printer's error in your petitions?23 MR. MANDELKER: Objection. Asked and
24 answered the other day.
25 THE COURT: Was that question posed the
26 other day, the other day being August 4th, 2009.
DEBORAH A. ROTHROCK, RPR
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1 Direct - A. Gerson - by Petitioner
2 MR. DOWD: The response was, "If I had
3 my calendar I would be able to answer the
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080609 Gleason v Gerson4 question."
5 THE COURT: Do you have the question
6 from that day?
7 MR. DOWD: Not with me.
8 THE COURT: That is your best
9 recollection of the testimony, sir, I'm asking?
10 MR. DOWD: Yes, sir.
11 THE COURT: You can pose the question.
12 The objection is overruled.
13 Read the question back Madam Reporter.
14 (Requested portion read by the Court
15 Reporter.)
16 A I do not recall the specific date. I
17 recall it was when the printer was in the process of
18 printing petitions at the time when petitions were
19 due.
20 Q Did you ever see those petitions?
21 A Your Honor, I don't know which petitions
22 he's referring to.
23 Q Did you ever see petitions present
24 printed by your printer?
25 A Any petitions printed by my printer, of
26 course, yes.
DEBORAH A. ROTHROCK, RPR
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1 Direct - A. Gerson - by Petitioner
2 Q When?
3 A I first saw petitions printed by the
4 printer when I went over to the printer one eveningPage 14
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5 prior to the collection of signatures when I was
6 informed by some who had seen them before then that
7 there appeared to be a printer's mistake.
8 Q Who informed you of that?
9 A More than one person.
10 Q Who?
11 A One person was Mr. David Weinberger. He
12 was one of the first. There was so much discussion.
13 I cannot -- I remember receiving his phone call. I do
14 not know who else.
15 THE COURT: Mr. Gerson.
16 THE WITNESS: Yes, I'm sorry, your
17 Honor.
18 THE COURT: Mr. Gerson, we went through
19 this the other day. I want you to answer the
20 question. There is no need for embellishment.
21 This is not a speech making forum. This is
22 nothing of that sort. This is a proceeding under
23 law. Respond to the questions and that's the end24 of it.
25 THE WITNESS: Yes, sir.
26 I do not recall who else.
DEBORAH A. ROTHROCK, RPR
82
1 Direct - A. Gerson - by Petitioner
2 Q Did you speak to the printer about the
3 problem?
4 A Yes.
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080609 Gleason v Gerson5 Q And what did you say?
6 A I said you need to reprint the petitions
7 with the correct address.
8 Q And did you see petitions printed with
9 the correct address?
10 A Yes.
11 Q When?
12 A After he reprinted it.
13 Q When?
14 A I don't recall the specific date but it
15 was at that time --it was hours after I arrived at the
16 printer, as I described, I first saw for the first
17 reprinted batch.
18 Q Was this prior to petitions being
19 circulated by signers?
20 A Yes.
21 Q Did there come a time that you learned
22 that one of your petitions, following the time that
23 they were distributed to your champagne to collect
24 signatures, that there was an error remaining in the
25 petition?
26 MR. MANDELKER: Objection to form. It
DEBORAH A. ROTHROCK, RPR
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2 is the use of the word petition. I don't know if
3 counsel means sheets or the entire petition.
4 Petition refers to the standard --
5 THE COURT: Sustained. Strike thePage 16
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6 question. Repose your question.
7 Q Following the distribution of the
8 petition forms to persons in your champagne who were
9 to collect signatures, did you subsequently learn of
10 an error in those forms?
11 THE COURT: Yes, no, or I don't know.
12 THE WITNESS: I don't know because, your
13 Honor, I don't follow the question.
14 THE COURT: That is the answer.
15 Continue sir.
16 Q All right.
17 Did you find out that there was a mistake
18 in your petitions after they were distributed to
19 members of your champagne to collect signatures?
20 MR. MANDELKER: Objection to form.
21 Again, if he means sheets, let him just say it
22 otherwise it is confusing.
23 THE COURT: The true objection would be
24 leading. It is his witness. No one has ever25 been declared hostile here.
26 MR. MANDELKER: Objection leading.
DEBORAH A. ROTHROCK, RPR
84
1 Direct - A. Gerson - by Petitioner
2 THE COURT: Sustained.
3 Q When did you first hear of the address
4 1505 LaGuardia Place?
5 A When I went to the printer and I saw a
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080609 Gleason v Gerson6 batch of sheets printed with that incorrect address.
7 Q Did you ever see or hear of that address
8 again?
9 A Yes, in many conversations pertaining to
10 those petitions, including now.
11 Q What was the first time, subsequently to
12 you going to the printer and correcting the error,
13 that you again heard of the address 1505 LaGuardia
14 Place?
15 A In conversations that took place within
16 hours after I was at the printer.
17 Q What conversations?
18 A We had to inform people in our champagne
19 or in clubs who were supporting the champagne why
20 petitions -- why the petitions would not be available
21 at the time we had originally expected and I told them
22 there was the printer's error and they asked, and some
23 of them had already heard of it and some had not. So
24 there were many such conversations where the address,
25 incorrect address 1505 was discussed either by people
26 raising it to me or vice-versa, within hours after the
DEBORAH A. ROTHROCK, RPR
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1 Direct - A. Gerson - by Petitioner
2 printing error was discovered.
3 Q Did you have any conversations with
4 anyone from the Truman Club regarding the error?
5 A Yes.
6 Q Who?Page 18
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7 A David Weinberg was District leader from
8 the Truman Club, as I testified earlier, he was one of
9 the first people to spot that error.
10 Q And what was your conversation with him?
11 A I told him we were going to have the
12 petitions reprinted. The printer had agreed to do so
13 at the printer's expense because the printer
14 acknowledged that it was a printing computer error.
15 The printer acknowledged that we had correctly proofed
16 of the submission to the printer, and we submitted it
17 properly but he acknowledged that it was his computer
18 error and I informed all of this to Mr. Weinberger,
19 and that it would take him, because one of their
20 presses, the presses for the long petitions were not
21 available that night. The Truman Club had ordered a
22 long petition because they had many candidates, in
23 addition to myself. So I informed Mr. Weinberger that
24 the printer had said that the long, his long petition
25 would not be available until later that following day26 because there was a problem with that printer or the
DEBORAH A. ROTHROCK, RPR
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1 Direct - A. Gerson - by Petitioner
2 staffing of that printing machine. And that was my
3 conversation.
4 Q And you still don't recall what day this
5 was, this conversation; is that correct?
6 A It was that day, either slightly before
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080609 Gleason v Gerson7 or slightly after midnight when I was at the printer
8 and then in a follow-up conversation that following
9 morning.
10 Q Now, do you know how the Truman Club got
11 petitions with incorrect addresses on them?
12 A Each club picks up its own petitions
13 directly from the printer and that is as much as I
14 know.
15 Q Now, following these conversations --
16 A Excuse me, your Honor. I do recollect
17 that David Weinberger did, in one of those
18 conversations to which I referred, informed me that
19 they had printed up petitions, quickly, you know, they
20 do things very quickly he pointed out to me. That is
21 as far as I know how the Truman Club got any
22 petitions.
23 Q Following this conversation with Mr.
24 Weinberger, did you have other conversations regarding
25 the address 1505 LaGuardia Place, and if so what were
26 they?
DEBORAH A. ROTHROCK, RPR
87
1 Direct - A. Gerson - by Petitioner
2 A Including our conversation?
3 THE COURT: One question at the time,
4 sir. Ask him if he had conversations.
5 Q Did you have conversations after that
6 that involved the address 1505 LaGuardia Place?
7 A After my conversation with Mr.Page 20
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8 Weinberger, yes.
9 Q What was the next conversation that you
10 recall?
11 A As I think I already said, I had
12 conversations with many leaders of the different clubs
13 supporting us as well as campaign volunteers who had
14 expected to pick up petitions either from the printer
15 in some cases directly, or in other cases from our
16 champagne office. And I informed them as to why the
17 petitions would not be available when we had
18 originally thought. And it was the same conversation.
19 I had told them that the printer had made an error,
20 that a stroke was added by their computer on the -- on
21 our address, to make the address incorrectly appear as
22 1505. In that the printer had said it was entirely
23 their mistake because we had properly proofed these
24 submissions. And, therefore, they were going to
25 reprint all of the petitions with my address, but that
26 it would take a little bit of time because they did
DEBORAH A. ROTHROCK, RPR
88
1 Direct - A. Gerson - by Petitioner
2 not have the staffing available to operate the press
3 that was required for the long form. And the short
4 form with my name only would be available sooner, but
5 those people who wanted the long form would have to
6 wait, you know, additional hours, whether it was a day
7 or day and-a-half. That was my conversation repeated
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080609 Gleason v Gerson8 to him individuals. And, of course, they responded --
9 MR. MANDELKER: Objection.
10 THE COURT: Excuse me.
11 THE WITNESS: Sorry, your Honor, it is a
12 hazard of my trade.
13 THE COURT: I'm not looking for hazards.
14 Off the record.
15 (Off-the-record discussion).
16 MR. DOWD: Honorable Referee, I just
17 spoke with counsel for the Respondent and he has
18 no objection with me presenting this document to
19 the witness. I would like to mark it for
20 identification as --
21 THE COURT: If there's no objection it
22 would be in evidence as Petitioner's No. 1.
23 Madam reporter, mark it accordingly.
24 MR. DOWD: If I may are we continuing
25 our list of exhibits?
26 THE COURT: No, this is a separate
DEBORAH A. ROTHROCK, RPR
89
1 Direct - A. Gerson - by Petitioner
2 proceeding.
3 I may issue one report on the basis of
4 my decision for my personal discretion to
5 consolidate the two matters, they bear two
6 separate and distinct index numbers. They maybe
7 related but they are, nevertheless, distinctly
8 separate proceedings.Page 22
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9 Therefore, it is that particular exhibit
10 will be marked into evidence by stipulation of
11 the parties as Petitioner's No.1.
12 I don't see you why that should be an
13 issue for you.
14 MR. DOWD: Since Mr. Mandelker and I
15 have agreed that the evidence that was presented
16 in the prior proceeding, just not to confuse the
17 record. If there's two Petitioner's 1.
18 THE COURT: I must stop you there.
19 I don't think it will confuse me, if
20 that is what your fear is.
21 MR. DOWD: No. You, sir, we believe
22 will not be confused. We're preserving a record
23 here and --
24 THE COURT: Then make certain that
25 Justice Lerner is not confused and anyone further
26 up the line is not confused. That will be your
DEBORAH A. ROTHROCK, RPR
90
1 Direct - A. Gerson - by Petitioner
2 issue.
3 MR. DOWD: Yes, sir.
4 THE COURT: Madam Reporter, please mark
5 the document as Petitioner's No. 1. in evidence
6 as of this date.
7 MR. DOWD: If I may read the caption.
8 "This is an Official Document of the New
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080609 Gleason v Gerson9 York State Board of Elections" --
10 THE COURT: New York City or State?
11 MR. DOWD: "New York State Board of
12 Elections 2009 Political Calendar for Primary and
13 General Elections."
14 Q Mr. Gerson, I would like you to --
15 THE COURT: That is the document?
16 MR. DOWD: Yes, sir.
17 THE COURT: Hand it up to the witness.
18 MR. DOWD: Yes, sir.
19 (Handing.)
20 Q I would like you to look at the date of
21 June 9th on the Political Calendar there's the second
22 entry there could you please read that?
23 A "First day for assigning designating
24 petitions Section 134(4)."
25 Q Now, looking at the Political Calendar,
26 have you seen this calendar before?
DEBORAH A. ROTHROCK, RPR
91
1 Direct - A. Gerson - by Petitioner
2 A No.
3 Q Does looking at that date, June 9th,
4 refresh your recollection as to the date that you had
5 conversations with David Weinberger regarding the
6 printer's error?
7 A No.
8 Q Does it refresh your recollection as to
9 the date that you had the conversations with thePage 24
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10 printer Mr. Handell regarding his error?
11 A It would have been -- yes.
12 Q And now that your recollection is
13 refreshed, can you tell us what day you had the
14 conversations with the printer regarding the error in
15 the designating petition --
16 A Assuming the correctness of this
17 calendar, which I assume it would have been the 7th,
18 8th, or 9th, that is the best.
19 THE COURT: Of which month?
20 THE WITNESS: Of June.
21 THE COURT: Which year?
22 THE WITNESS: 2009. Thank you.
23 Q And do you recall now what date the
24 sheets were to be delivered to the clubs?
25 A Well, originally, before we discovered
26 the printer's error they were obviously -- excuse me,
DEBORAH A. ROTHROCK, RPR
92
1 Direct - A. Gerson - by Petitioner
2 they were supposed to have been delivered no later
3 than June 8th.
4 Q Do you recall when they were actually
5 delivered to the clubs?
6 A The corrected versions were delivered
7 after June 9th, that is why we were upset. At
8 different times to different clubs.
9 Q So, were incorrect petitions delivered to
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080609 Gleason v Gerson10 clubs, to your knowledge?
11 A I -- I have no knowledge. The champagne
12 certainly did not. And I have no knowledge as to
13 whether or not the printer delivered it.
14 Q Did you ever receive a call from one of
15 the clubs saying in sum or substance saying we've got
16 incorrect petitions?
17 A Yes. As I have said, yes, how they
18 received it, whether they were delivered, or picked
19 up, I do not know.
20 Q When did you first get a call from one of
21 the clubs saying we have an incorrect petition?
22 A It would have been, assuming the
23 correctness of this calendar, it would have been June
24 7th, 8th, 9th, in that timeframe, that's the best that
25 I could do.
26 This is also the month that we were doing
DEBORAH A. ROTHROCK, RPR
93
1 Direct - A. Gerson - by Petitioner
2 the City budget, so I was preoccupied.
3 MR. MANDELKER: Objection.
4 THE COURT: Sir, I must caution you at
5 this point that you are only to answer the
6 questions.
7 THE WITNESS: Yes, sir. Yes, sir.
8 MR. DOWD: I would like to mark for
9 identification --withdrawn.
10 Q Moving forward in time.Page 26
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11 THE WITNESS: Do I give this to you?
12 THE COURT: Yes, thank you.
13 (Handing.)
14 Q Moving forward in time from the time that
15 you first learned of the error, did there come another
16 time that you learned that the problem of the 1505
17 LaGuardia Place address existed?
18 A Yes.
19 Q And when was that?
20 A It was when I -- when I learned that your
21 client had filed a petition on that basis or an
22 objection on that basis.
23 Q The first time after the period around
24 June 9th that you learned of a problem involving the
25 address 1505 LaGuardia Place, you believe was sometime
26 after July 24th?
DEBORAH A. ROTHROCK, RPR
94
1 Direct - A. Gerson - by Petitioner
2 THE COURT: Stop.
3 Mr. Mandelker has remained silent but I
4 will no longer remain silent.
5 This is your witness. We are on direct
6 examination. And the leading has exceeded the
7 bounds of good taste at this point.
8 I will leave it at that.
9 MR. DOWD: I will rephrase. Thank you.
10 THE COURT: Thank you.
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080609 Gleason v Gerson11 Q Do you recall, approximately, when you
12 learned of Mr. Gleason's objections to your petitions?
13 A It was at the time that objections were
14 due at the Board of Elections, which were within the
15 past couple of weeks.
16 Q Do you recall the Board of Elections
17 pointing out to you any errors in your designating
18 petitions?
19 A The Board of Elections pointed out the
20 alleged errors in the designated petitions through
21 mail I had received from them.
22 Q At that time did the address 1505
23 LaGuardia Place come to your attention?
24 A Not directly from the Board of Elections,
25 no.
26 Q From anyone else?
DEBORAH A. ROTHROCK, RPR
95
1 Direct - A. Gerson - by Petitioner
2 A Yes.
3 Q And what did you hear about the address
4 1505 LaGuardia Place at that time?
5 MR. MANDELKER: Objection hearsay.
6 THE COURT: No, overruled. There's no
7 hearsay. There's no out of the court statement
8 specifically being admitted. You may answer the
9 question.
10 Read the question back Madam reporter.
11 (Question read.)Page 28
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12 THE WITNESS: I heard that your client
13 was raising objections based on the fact that
14 some petitions filed in just a couple of volumes
15 contained the printing mistake 1505.
16 I also heard that the Board of Elections
17 had taken notice that some petitions filed in
18 just a couple of volumes contained the printing
19 error 1505.
20 And I also heard that on some of those
21 petitions, that the number one had been crossed
22 out and initialled.
23 Q Following you learning this, did you take
24 any steps to correct the error?
25 A It's too late, no. How could I? I'm
26 sorry, no.
DEBORAH A. ROTHROCK, RPR
96
1 Direct - A. Gerson - by Petitioner
2 Q Did anyone on your behalf take any steps
3 with respect to the Board of Elections to correct the
4 error?
5 A We filed responsive papers at the Board
6 of Elections in this -- in these court proceedings,
7 but other than that, no, absolutely not.
8 Q Did there come a time that you or anyone
9 on behalf of your champagne filed an amended cover
10 sheet?
11 A Yes. Those were among the papers that we
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080609 Gleason v Gerson12 filed at the Board of Elections.
13 Q When did you first have a conversation
14 regarding an amended cover sheet, if any?
15 MR. MANDELKER: Objection, your Honor.
16 We went over all of this when Mr. Gerson
17 testified two days ago on my direct case and Mr.
18 Dowd cross-examined him.
19 THE COURT: I am going to overrule the
20 objection. I am informing you, Mr. Dowd, that I
21 am rapidly reaching the belief that we have
22 adduced just about all of the useful testimony as
23 we can from the witness based on the proceeding
24 that we had on August 4th and the hour of
25 testimony that we have had this morning. And I
26 would think it, that you might be drawing this
DEBORAH A. ROTHROCK, RPR
97
1 Direct - A. Gerson - by Petitioner
2 direct examination to some kind of a conclusion.
3 MR. DOWD: Thank you, sir.
4 Q What was the first conversation you had
5 regarding amending cover sheets, do you recall?
6 A I recall a conversation with Mr. Dudley
7 Gaffin, who was acting counsel to the campaign, on a
8 Pro Bono, non-enumerated basis.
9 MR. MANDELKER: Objection to any of the
10 details of the conversation.
11 THE COURT: Sustained.
12 Q And following your conversation with Mr.Page 30
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13 Gaffin, did you have conversations with anyone else
14 from your campaign regarding amending the cover
15 sheets?
16 A Yes.
17 Q Who?
18 A Our campaign manager Mr. David Hartshorn,
19 our petitioner coordinator Mr. Ray Klein, several of
20 the club leaders who were supporting the campaign, my
21 mother Sophie Gerson, secretary to the campaign, and
22 probably other individuals as well.
23 Q And following those conversations, did
24 you do anything to correct --withdrawn.
25 Following those conversations, did you
26 respond in any way to the Board of Elections letters
DEBORAH A. ROTHROCK, RPR
98
1 Direct - A. Gerson - by Petitioner
2 to you?
3 A Yes, we filed the appropriate papers in
4 response, including the amended cover sheets.
5 Q Did you do anything else?
6 A No.
7 Q Did you authorizes Mr. Gaffin to file
8 amended cover sheets?
9 A Yes.
10 Q Did you discuss any of those problems
11 with Mr. David Reck?
12 A Yes.
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080609 Gleason v Gerson13 Q And what did you tell him?
14 A Essentially the same thing I told
15 everyone else, that Mr. Gaffin was going to file
16 amended cover sheets and we believe that that would
17 solve the problem. I told him and others, that the
18 objections were made to particular volumes, but I also
19 told him that we were confident because even if you
20 entirely eliminated those two volumes, we had more
21 than enough signatures that were not in question to
22 qualify for the ballot. In fact, I made the point to
23 each of the people that with whom I had the
24 conversations that we had-- even without those two
25 volumes, more signatures than the other volumes than
26 any of the other candidates filed, that is what I
DEBORAH A. ROTHROCK, RPR
99
1 Direct - A. Gerson - by Petitioner
2 discussed with Mr. Reck.
3 R. DOWD: I would like to mark
4 Petitioner's No. 2.
5 THE COURT: Any objection?
6 MR. MANDELKER: Yes.
7 THE COURT: What?
8 MR. MANDELKER: Hearsay, first of all.
9 It appears to be a printout of some sort
10 of a Blog or a newspaper article. And it is --
11 THE COURT: Where are we going with
12 this, sir?
13 MR. DOWD: Well, there's statement ofPage 32
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14 the candidate about Mr. Gerson inconsistent with
15 his testimony.
16 THE COURT: There's no way of
17 authenticating this.
18 MR. DOWD: I have not even tried.
19 THE COURT: You're asking it be admitted
20 into evidence, that would constitute attempted.
21 MR. DOWD: I had not made that
22 application.
23 THE COURT: We have marked this as
24 Petitioner's No. 2.
25 If in fact you're seeking to move this
26 into evidence it will not be admitted into
DEBORAH A. ROTHROCK, RPR
100
1 Direct - A. Gerson - by Petitioner2 evidence, because it is a writing by someone
3 named Julie Shapiro who has to authenticate this.
4 MR. DOWD: I don't --
5 THE COURT: If you wish to question the
6 witness as to quotes that might appear in this
7 article as to whether they are his or not, then
8 you may do so. However, again, I would think it
9 that this being your witness on direct
10 examination you would have to have him declared
11 hostile first in order to do that.
12 Q Well, if I may, your Honor, as I move to
13 have the witness declared hostile?
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080609 Gleason v Gerson14 THE COURT: Denied.
15 MR. DOWD: I think that --
16 THE COURT: Sir, he's your witness,
17 you've called him on direct and now you're trying
18 to impeach him. There's a problem with that.
19 MR. DOWD: Your Honor, the hostile
20 witness --
21 THE COURT: There's been no indication
22 of hostility. The witness has freely responded
23 to your questions. Indeed I had to caution the
24 witness in terms of his overresponse to your
25 inquires.
26 MR. DOWD: Your Honor, the legal test
DEBORAH A. ROTHROCK, RPR
101
1 Direct - A. Gerson - by Petitioner
2 for hostility is not his demeanor. It does not
3 mean that he's taking a threatening tone.
4 THE COURT: I am aware of the legal
5 test. The legal test would be whether there is
6 any reticences in terms of his response to your
7 inquire. There has been none.
8 MR. DOWD: No, sir, the legal test is
9 whether or not his interests are adverse as a
10 matter of law. Here we are trying to invalidate
11 his petition which is adverse to his interest.
12 THE COURT: You've placed yourself in an
13 unusual position of calling this man as your
14 witness to substantiate your case, if you will,Page 34
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15 as you have brought it in the context of this
16 particular matter. And now you're seeking to
17 impeach him within the same context. I can't
18 allow that.
19 MR. DOWD: Thank you, your Honor, no
20 further questions.
21 THE COURT: Any cross?
22 MR. MANDELKER: No, sir.
23 THE COURT: The witness is excused.
24 Thank you very much.
25 We will take a five-minute break and
26 then we will call the next witness.
DEBORAH A. ROTHROCK, RPR
102
1 Direct - A. Gerson - by Petitioner
2 (Witness exits the courtroom.)3 (Recess taken.)
4 MR. MANDELKER: Alan Handell.
5 THE COURT: Raise your right hand.
6 ALAN HANDELL, called as a witness, by
7 Respondent, having been first duly sworn by the
8 Court, was examined and testified as follows:
9 THE WITNESS: I do.
10 THE COURT: State your name and address
11 for the record.
12 THE WITNESS: Alan C. Handell, 320 west
13 87th Street, New York, New York 10024.
14 THE COURT: Noted for the record that at
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080609 Gleason v Gerson15 the based on the stipulation of counsel this
16 witness is being taken out of order. He is a
17 witness for the Respondent, Mr. Mandelker.
18 Do I have such a stipulation Mr. Dowd?
19 MR. DOWD: Yes, sir.
20 THE COURT: Mr. Mandelker?
21 MR. MANDELKER: Yes, sir.
22 THE COURT: You may begin your direct
23 examination.
24 MR. MANDELKER: Could we mark this
25 document for identification.
26 THE COURT: Is that a document that
DEBORAH A. ROTHROCK, RPR
103
1 Direct - A. Handell - by Petitioner
2 appears in the file of the County Clerk?
3 MR. MANDELKER: No.
4 THE COURT: What kind of document is it?
5 MR. MANDELKER: It is an Affidavit that
6 this witness prepared. I just want to ask him if
7 it fairly and accurately states his testimony and
8 Mr. Dowd will cross-examine.
9 THE COURT: Based on the Affidavit.
10 MR. MANDELKER: Based on whatever he
11 wants to do.
12 THE COURT: Mark it as Respondent's A.
13 (Whereupon, document is so marked
14 Respondent's Exhibit A for identification.)
15 THE COURT: You may begin your directPage 36
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16 examination.
17 MR. MANDELKER: Thank you.
18 DIRECT EXAMINATION
19 BY MR. MANDELKER:
20 MR. MANDELKER: It was marked for
21 identification.
22 THE COURT: Is there any objection?
23 MR. DOWD: I would like a foundation to
24 be laid.
25 THE COURT: I will Voir dire the
26 document.
DEBORAH A. ROTHROCK, RPR
104
1 Direct - A. Handell - by Petitioner
2 Mr. Handell, I am showing you a document
3 which has been marked as Respondent's A for4 identification. It bears your name, contains
5 five paragraphs and your signature at the bottom.
6 Is that your signature?
7 THE WITNESS: Yes.
8 THE COURT: That was signed before
9 Vanessa Sevrino, S-E-V-R-I-N-O, a Notary Public
10 of the State of New York.
11 THE WITNESS: Yes.
12 THE COURT: And you remember signing
13 this document?
14 THE WITNESS: I do.
15 THE COURT: Do you want to take a moment
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080609 Gleason v Gerson16 to look at the document?
17 THE WITNESS: I do.
18 THE COURT: Did you read the document
19 before signed it?
20 THE WITNESS: I did.
21 THE COURT: And these are your
22 statements?
23 THE WITNESS: They are.
24 THE COURT: And they were made under
25 oath?
26 THE WITNESS: They were.
DEBORAH A. ROTHROCK, RPR
105
1 Cross - A. Handell - by Petitioner
2 THE COURT: The document is in evidence
3 sir?
4 MR. DOWD: No objection.
5 THE COURT: Mark the document into
6 evidence.
7 (Whereupon, document is so marked as
8 Respondent's Exhibit A in evidence.)
9 THE COURT: Respondent's A now in the
10 possession of the witness.
11 (Handing.)
12 MR. MANDELKER: May I question from
13 here?
14 THE COURT: I don't care.
15 DIRECT EXAMINATION
16 BY MR. MANDELKER:Page 38
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080609 Gleason v Gerson17 That was a wild guess on my part.
18 Continue.
19 MR. DOWD: Thank you.
20 Q How do you know Mr. Gaffin?
21 A I know him as a long-time lawyer in New
22 York Politics going back to Congressman Ted Weiss day.
23 I believe he was Congressman Weiss's attorney for many
24 years.
25 Q Has he referred you business in the past?
26 A No.
DEBORAH A. ROTHROCK, RPR
107
1 Cross - A. Handell - by Petitioner
2 Q What sort of business dealings have you
3 ever had with Mr. Gaffin?
4 A Only probably through the Ted Weiss
5 campaign incorrectly.
6 Q Have you had any other interactions with
7 him over the years?
8 A Just as a friend and social events
9 occasionally.
10 Q And did there come a time that you
11 learned of any connection between Mr. Gaffin and Alan
12 Gerson?
13 A Yes. He called me and told me he was
14 helping Alan fight to stay on the ballot.
15 Q Do you recall around when this was?
16 A A couple of weeks ago.
17 Q And what did Mr. Gaffin tell you?Page 40
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18 A He asked if I would --
19 MR. MANDELKER: Objection hearsay.
20 MR. DOWD: He's here to testify, Mr.
21 Gaffin.
22 THE COURT: That is not the issue-- read
23 that back.
24 (Requested portion read.)
25 THE COURT: Overruled. It is not
26 hearsay. Overruled.
DEBORAH A. ROTHROCK, RPR
108
1 Cross - A. Handell - by Petitioner
2 A He told me he was helping Mr. Gerson in
3 his fight to stay on the ballot.
4 Q Anything else?
5 A And that he would appreciate it if I6 would sign an Affidavit as to what happened with the
7 miss-printed address on Alan's petitions.
8 Q And prior to that phone call a couple of
9 weeks ago, you had no other conversations with Mr.
10 Gaffin?
11 A No.
12 Q When did you first hear of the address
13 1505 LaGuardia Place?
14 A I heard of that -- I can't remember --I
15 don't have all of my records. I -- I think it was
16 right when the petitions were ordered and we typeset
17 the address and someone thought it was wrong. It was
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080609 Gleason v Gerson18 brought out that the address needed to be corrected.
19 Q Do you recall who saw it was wrong?
20 A I don't recall which individual. There
21 are a lot of people in the office doing petitions, I
22 don't recall which specific person saw the error.
23 Q Do you send out a proof for campaigns to
24 proofread?
25 A I did -- we did.
26 Q Did you do that in this case?
DEBORAH A. ROTHROCK, RPR
109
1 Cross - A. Handell - by Petitioner
2 A Yes, we did.
3 Q Who signed the proof?
4 A I would not know which specific person
5 signed the proof.
6 Q Do you have a copy of the proof with you
7 here today?
8 A I do.
9 Q May I see it?
10 A Yes.
11 (Handing.)
12 THE COURT: Let's have that marked as
13 Respondent's B.
14 (Whereupon, document is so marked
15 Respondent's Exhibit B for identification.)
16 THE COURT: Any objection to
17 Respondent's B being admitted into evidence.
18 MR. MANDELKER: I have not seen it.Page 42
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19 MR. DOWD: May he reinspect it.
20 THE COURT: Take a look at it.
21 MR. MANDELKER: No objection.
22 THE COURT: Mark that into evidence.
23 (Whereupon, document is so marked as
24 Respondent's Exhibit B in evidence.)
25 THE COURT: Respondent's B in evidence
26 now in the possession of counsel for the
DEBORAH A. ROTHROCK, RPR
110
1 Cross - A. Handell - by Petitioner
2 petitioner.
3 MR. DOWD: I am handing Respondent's B
4 back to the evidence.
5 THE COURT: Respondent's B now in
6 possession of the witness.7 (Handing.)
8 Q Sir, could you tell me what your office's
9 practice is when you received a -- that is a corrected
10 proof; is that right?
11 A Yes.
12 Q What is your office practice when you
13 receive a corrected proof?
14 A We make the corrections as indicated on
15 the proof and either show the customer a final proof
16 or go ahead and print the petitions if it is a simple
17 correction. Sometimes speed is so important to
18 people, they just trust me to do the correction and
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080609 Gleason v Gerson19 print.
20 Q Did your office send out any other
21 proofs?
22 A Not that I know -- not that I see here,
23 no, sir.
24 Q Now, you have a folder on the witness
25 stand.
26 A Yes, I did.
DEBORAH A. ROTHROCK, RPR
111
1 Cross - A. Handell - by Petitioner
2 Q Did you bring any other documents with
3 you here today?
4 A Yes, I brought various job tickets for
5 the different Gerson petitions that we printed for
6 different clubs. When I prepared to come here I
7 wanted to try to recollect how it was done.
8 Q Do you have one there for the Truman
9 Club?
10 A I do.
11 Q May I see it?
12 A Yes.
13 (Handing.)
14 THE COURT: Let's have that marked as
15 Respondent's C for identification.
16 (Whereupon, document is so marked
17 Respondent's Exhibit C for identification.)
18 THE COURT: Hand that to counsel.
19 (Handing.)Page 44
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20 MR. DOWD: Thank you.
21 MR. MANDELKER: Thank you.
22 (Pausing.)
23 THE COURT: Is there an objection?
24 MR. MANDELKER: No, sir.
25 THE COURT: Mr. Dowd?
26 MR. DOWD: No, your Honor.
DEBORAH A. ROTHROCK, RPR
112
1 Cross - A. Handell - by Petitioner
2 THE COURT: Madam Reporter please mark
3 that into evidence as Respondent's C.
4 (Whereupon, document is so marked as
5 Respondent's Exhibit #C in evidence.)
6 MR. DOWD: May I describe it for the
7 record.8 THE COURT: Why don't we ask the witness
9 to describe it. Why don't we have it marked into
10 evidence first.
11 MR. DOWD: Yes, sir.
12 THE COURT: Is it a number of documents,
13 a number of pages.
14 MR. DOWD: Yes, sir.
15 THE COURT: Why don't we staple it too.
16 Madam Reporter count the number of
17 pages.
18 (Pausing.)
19 THE COURT: Twenty pages plus the
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080609 Gleason v Gerson20 envelope so noted for the record.
21 Respondent's C, 20 pages and an envelope
22 is now in the possession of the witness. You may
23 proceed with your cross-examination Mr. Dowd.
24 (Handing.)
25 MR. DOWD: Thank you.
26 May I sample it.
DEBORAH A. ROTHROCK, RPR
113
1 Cross - A. Handell - by Petitioner
2 THE COURT: I will take care of the
3 staple process at the conclusion of this
4 proceeding.
5 MR. DOWD: May I inspect?
6 THE COURT: You may inspect, sir.
7 MR. DOWD: Thank you.
8 (Pausing.)
9 THE COURT: Off the record.
10 (Off-the-record discussion).
11 THE COURT: Let's continue. You may
12 proceed.
13 Continued
14 CROSS-EXAMINATION
15 BY MR. DOWD:
16 Q I am holding Respondent's C, it is not in
17 front of you now, could you just generally tell me
18 what this is?
19 A Yes, you should be holding the entire job
20 ticket for that order, including any correspondence,Page 46
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21 any orders, changing corrections, proofs that went
22 into the making up of that petition for that
23 particular customer, including the original order, the
24 proofs, the corrections.
25 Q So if the campaign sent you an address
26 correction it would be in this document I'm holding
DEBORAH A. ROTHROCK, RPR
114
1 Cross - A. Handell - by Petitioner
2 here, Respondent's C; is that correct?
3 A Not necessarily. I can explain why.
4 Q Please.
5 A The system works that each candidate
6 takes care of his or her own block of copy. So that
7 if that customer, the Truman Club, would be
8 responsible for the Truman Club candidates only, being9 the leadership, maybe judicial delegates. But that
10 the public officer holders that they put on the
11 petition would have read their own proof, as Alan
12 Gerson's people did on the job ticket, the Gerson only
13 petition. If that was approved, whatever that type
14 is, we would pick that block up each time somebody
15 requested Gerson so as not to have to reset and
16 possibly make a mistake down the road.
17 Q Okay.
18 So, if we saw in here -- withdrawn --
19 May I approach to ask a question?
20 THE COURT: Yes.
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080609 Gleason v Gerson21 Q I would like to ask you, Mr. Handell, we
22 see at the bottom of the first loose page of
23 Respondent's C a notation P63500 and then G and a
24 blank. What does that mean?
25 A That means this should be petition order
26 63, it manages the job number given to it that was
DEBORAH A. ROTHROCK, RPR
115
1 Cross - A. Handell - by Petitioner
2 written in the logbook when it came in, it should have
3 been for 500 sheets and the paper color is the G, G
4 for green paper. So that when we make these -- when
5 we make these petitions up for printing we use those
6 numbers on the plate order P63500 green. So when
7 they're printed and packed they could be slotted to
8 the right people.
9 Q Now, on the petition order jacket which
10 is the envelope in which these 20 loose pages are
11 found, it says customer Harry S. Truman --
12 MR. MANDELKER: Excuse me. May we
13 approach?
14 THE COURT: Off the record.
15 (Off-the-record discussion).
16 THE COURT: All right. Continue.
17 You may proceed.
18 Q Now, we are looking at Respondent's C,
19 the petition order jacket, which is the envelope in
20 which the pages are found, and we see customer "Harry
21 S. Truman Dems;" is that correct?Page 48
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22 A Yes.
23 Q Is says "Responsible agent David
24 Weinberg?"
25 A It should be Weinberger.
26 Q Correct.
DEBORAH A. ROTHROCK, RPR
116
1 Cross - A. Handell - by Petitioner
2 And that's for your print shop, the
3 customer who ordered this set of petitions?
4 A That should be; or the person someone
5 told me to put down as the person to contact if I have
6 a question about it or where to send the proof to, his
7 or her -- here is an e-mail address to send the proof
8 to, to the club itself, right. I have a phone number
9 for David and I have an e-mail address for the club.10 That is where I would send the proof to.
11 Q Okay.
12 A This is the order that they put in. I
13 could explain what the circles mean.
14 Q Yes, if you could explain the system.
15 THE COURT: I am going to ask you to
16 respond to questions, not offer your own. Again,
17 as I have been indicating all morning, this is
18 not speech making forum. Just respond to queries
19 here.
20 THE WITNESS: Yes.
21 Q And these notations we see on the upper
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080609 Gleason v Gerson22 left hand side, could you very briefly explain what
23 that means?
24 A Right.
25 So, this club ordered a petition, these
26 are my different codes. "Z" means, Z10 would come out
DEBORAH A. ROTHROCK, RPR
117
1 Cross - A. Handell - by Petitioner
2 to be a party position District leader code, 64
3 Assembly District Part A.
4 And anything that is written and circled
5 means we'll typeset that for the first time.
6 So on this petition, we set up for the
7 Truman Club on this order, Weinberger, Bekritsky, the
8 female, County Committee box, Silver for the delegates
9 and Weinberger slate for the alternate delegates,
10 those were the new copy that only came in from this
11 club. We added to that petition three other things
12 that we had already set, because there's no circle we
13 would not reset it. Thompson for Mayor, Stringer for
14 Borough President and Alan Gerson for City Counsel.
15 That is what this order is for. And the last three
16 were not typeset, were picked up, as I explained
17 before, as blocks that were already set and proofread
18 by Thompson, Stringer and Gerson.
19 Q When we look at Page 2 of Respondent's C
20 and you see there 1505 LaGuardia Place; is that
21 correct?
22 A That's correct.Page 50
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23 Q And there's no correction next to that;
24 is that correct?
25 A That's correct.
26 Q And we look on Page 4 of Respondent's C
DEBORAH A. ROTHROCK, RPR
118
1 Cross - A. Handell - by Petitioner
2 and we see 1505 LaGuardia Place and there's no
3 correction next to that, is there?
4 A Not there on that proof, no.
5 THE COURT: Thank you.
6 MR. DOWD: Thank you.
7 (Handing.)
8 Q Now, moving to your Affidavit
9 Respondent's A in evidence, Paragraph 4, it says "They
10 did not order the corrected petitions."11 What did you mean by that?
12 A I couldn't find in my records that that
13 petition for the Truman Club was reprinted with the
14 right address like the other clubs that we did.
15 Q I did not hear what you said.
16 A I could not find in my records, when I
17 went back, because of all the people asked me to
18 reconstruct the printing of all of the petitions for
19 Gerson, I could not find the reprint with the correct
20 address.
21 Q So --
22 A For the Truman Club. I found it for all
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080609 Gleason v Gerson23 the other clubs but I could not find it for the Truman
24 Club, we missed one, we didn't correct that address.
25 Q So, when you say they did not order the
26 corrected petitions. You mean the Truman Club did not
DEBORAH A. ROTHROCK, RPR
119
1 Cross - A. Handell - by Petitioner
2 order corrected petitions you mean?
3 A Yes, right.
4 Q Now, in Paragraph 4, you say the persons
5 responsible for distributing the blank petition sheets
6 gave some signatures, gathered petition sheets with
7 the correct address and some were given sheets with
8 the incorrect address; is that correct?
9 You say you have been informed.
10 A I've been informed so I don't know for a
11 fact.
12 MR. DOWD: No further questions.
13 THE COURT: Any re-direct?
14 MR. MANDELKER: No, sir.
15 THE COURT: The witness is excused.
16 Thank you so much, sir.
17 We will take a two-minute recess and
18 call your next witness.
19 You may step down.
20 (Witness exits the courtroom.)
21 (Recess.)
22 THE COURT: Would you raises your right
23 hand, sir.Page 52
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24 DAVID RECK, a witness called on behalf
25 of the Petitioner, having been first duly sworn
26 by the Clerk, was examined and testified under
DEBORAH A. ROTHROCK, RPR
120
1 Direct - D. Reck - by Petitioner
2 oath as follows:
3 THE COURT: State your name and address
4 for the record.
5 THE WITNESS: David Bruce Reck, R-E-C-K,
6 I live 512 Greenwich Street, New York, New York
7 10013.
8 THE COURT: Witness for petitioner.
9 You may begin your direct examination,
10 sir.
11 DIRECT EXAMINATION12 BY MR. DOWD:
13 MR. DOWD: Thank you, sir.
14 Q Good morning.
15 A Good morning.
16 Q Mr. Reck, did there come a time that you
17 were involved in the process of preparing Alan
18 Gerson's designating petitions?
19 A Not precisely. I prepared -- I was
20 responsible for collecting signatures and I prepared
21 and bound petitions for the 66th Assembly District
22 Part B, which is my district, I'm a Democratic
23 District Leader, and those petitions were for myself
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080609 Gleason v Gerson24 and Noelle Jefferson and they also included Alan
25 Gerson. And those I was responsible for. I assisted
26 in the binding of other petitions that I was not in
DEBORAH A. ROTHROCK, RPR
121
1 Direct - D. Reck - by Petitioner
2 the least bit responsible for.
3 Q Did there come a time that you received a
4 copy of the petition that was to be circulated?
5 A Absolutely. I received I would say about
6 seven or eight different kinds of petitions from the
7 printer that included various combinations of district
8 leader and candidates for citywide offices and all of
9 them included Alan Gerson.
10 Q And do you recall when it was that you
11 received Alan Gerson's sheets?
12 A I don't recall the precise date but it
13 was the day after petitioning started.
14 Q Did you review the petitions?
15 A Absolutely, I also do.
16 Q Did you see any errors in the petitions?
17 A No.
18 Q Did there come a time that you heard of
19 the address 1505 LaGuardia Place?
20 A Heard of the address? I'm not familiar
21 with the address.
22 Q Did there come a time that you learned of
23 any errors?
24 THE COURT: Let me caution you.Page 54
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25 You're being the queries are being posed
26 to you. You are not to pose queries to counsel.
DEBORAH A. ROTHROCK, RPR
122
1 Direct - D. Reck - by Petitioner
2 If you don't know the answer say, I don't know.
3 THE WITNESS: Fine.
4 THE COURT: Repose the question.
5 Read counsel's question back.
6 (Question read.)
7 THE WITNESS: My response is, I have no
8 idea what that address is for.
9 THE COURT: Thank you.
10 You may proceed.
11 Continued
12 DIRECT EXAMINATION:13 Q Did you there come a time that you
14 learned of any typographical errors in any of Alan
15 Gerson's sheets?
16 A I personally have not seen anything to do
17 with any of it. I heard of it by rumor only.
18 Q When did you hear of it by error?
19 A It was being discussed in the Alan Gerson
20 campaign office very recently here.
21 Q Who did you hear it from?
22 A Just people in the office.
23 Q Did you ever discuss it with the
24 candidate?
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080609 Gleason v Gerson25 A I believe that Alan noted that there was
26 some problem with some petitions. I have never seen
DEBORAH A. ROTHROCK, RPR
123
1 Direct - D. Reck - by Petitioner
2 them.
3 Q When did you have this conversation?
4 A Very recently here, within the last week
5 or two.
6 Q Did you have any interactions with
7 Astoria Graphics?
8 A This campaign season.
9 Q Yes.
10 A No, none whatsoever.
11 Q After you proofread your petitions, did
12 you sign off on them?
13 A Sign off on them?
14 Q Yes. Did you receive a printer's proof
15 prior to --
16 A No, that was not part of my
17 responsibility whatsoever. I had nothing to do with
18 the printing of the petitions, other than to provide
19 my correct information for myself and for Noelle
20 Jefferson.
21 Q And after you received the sheets, did
22 you go out and collect signatures?
23 A Yes, absolutely. Noelle Jefferson and I
24 collected approximately 1,200 signatures and then I
25 assisted Avi Turkel, who is another District LeaderPage 56
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26 candidate, and he submitted approximately 970
DEBORAH A. ROTHROCK, RPR
124
1 Direct - D. Reck - by Petitioner
2 signatures. And although I was not responsible for
3 those petitions, I helped him bind them and submit
4 them to the Board of Elections.
5 Q Can you explain what you mean when you
6 say you bind petitions?
7 A There's simply --there's a very weird two
8 prong clip that I think you find on a lot of legal
9 things that petitions are punched for that, you put
10 piece of cardboard on the back, you arrange petitions,
11 you put the piece of cardboard on the top, you put the
12 volume label that you obtained from the Board of
13 Elections on the front page of it, and you number all14 of the sheets, and then you count the sheets and add
15 up the petition signatures on them. I did not do all
16 of that. There were like four or five people doing
17 various parts of it, but I did various parts of it on
18 the number of volumes I was responsible for.
19 Q And in that process, did you review any
20 of the sheets for errors?
21 A A few, yes, the ones I was responsible
22 for, yes.
23 Q What types of errors?
24 A Any kind of error from the witness
25 signatures, there could be an error on the date that
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080609 Gleason v Gerson26 needs to be corrected and you need to track down the
DEBORAH A. ROTHROCK, RPR
125
1 Direct - D. Reck - by Petitioner
2 person who carried the petition. And many of the
3 petitions, the way that we do that, we require the
4 person who witnessed the petition to sign it in the
5 presence of someone such as myself so that we could
6 make the corrections right then and there so that
7 they're no errors.
8 Q Did you make any of those corrections?
9 A I only made correction-- I pointed out
10 corrections to a couple of people. But seeing a large
11 volume of them were done by myself I did corrections
12 on my own. I am not entitled to make corrections on
13 sheets not done by me and I must get the person who
14 carried by the petitions.
15 Q Who did you have to make corrections?
16 A What do you mean?
17 Q You said you had a couple of other people
18 make corrections?
19 A People who carried petitions such as
20 myself and Noelle Jefferson. You would have to show
21 me the petition sheets before I remember the people
22 who actually carried. And, quite frankly, I don't
23 remember, seeing there were a tremendous number of
24 sheets. I don't remember who all had to make
25 corrections or which errors there were. There were a
26 tremendous number of sheets.Page 58
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DEBORAH A. ROTHROCK, RPR
126
1 Direct - D. Reck - by Petitioner
2 Q Do you remember having discussions with
3 Renee Abramowitz?
4 A I have no idea who that person is.
5 Q What about Edward Braunstein?
6 A If they are not from the 66 Assembly Part
7 B, which these obviously were not, they were not my
8 responsibility and I had nothing to do with the people
9 who witnessed or carried. And I made no correction on
10 any of them other than the ones I were responsible
11 for.
12 THE COURT: Why don't we simply answer
13 the question, sir. Strike the answer and read
14 the question back.15 (Question read.)
16 A This person is unknown to me and did not
17 carry in the 66 Part B.
18 THE COURT: Thank you.
19 Q What about Camden Ackerman?
20 A This person is unknown to me and did not
21 carry in the 66 Part B.
22 THE COURT: Carry that means signature?
23 THE WITNESS: Be a witness on the
24 petition. That is term supplied if you are
25 carrying the petition.
26 THE COURT: I am not familiar with what
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DEBORAH A. ROTHROCK, RPR
127
1 Direct - D. Reck - by Petitioner
2 carrying means, but I appreciate the explanation.
3 MR. DOWD: May I?
4 THE COURT: Yes.
5 Continued
6 DIRECT EXAMINATION:
7 Q What about Jessica Loeser?
8 A I have no idea who the person is. She
9 did not carry in the 66 Part B.
10 MR. DOWD: I would like to show the
11 witness, if I may, Respondent's B in evidence
12 from the earlier proceeding.
13 THE COURT: Respondent's B of today?
14 MR. DOWD: No, that would be from the
15 prior proceeding.
16 THE COURT: From August 4th?
17 MR. DOWD: Yes, sir.
18 THE COURT: Respondent's B now in the
19 possession of the witness.
20 (Handing.)
21 MR. DOWD: May I see.
22 THE WITNESS: This is what you what the
23 petition cover sheet.
24 MR. DOWD: Yes, sir.
25 Continued
26 DIRECT EXAMINATION:
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DEBORAH A. ROTHROCK, RPR
128
1 Direct - D. Reck - by Petitioner
2 Q And could you identify Respondent's B?
3 A This is a petition cover sheet. Eight
4 years ago when Alan ran for office I took the official
5 information and created a Microsoft Word Document that
6 produces this cover sheet, a legal cover sheet, and so
7 I was asked by Alan to prepare the cover sheet for him
8 again.
9 Q When did he ask you to do that?
10 A A couple of days before we submitted them
11 to The Board of Elections. I prepared cover sheets
12 for him and several other people, including myself.
13 Q When you say other people, you mean other
14 candidates?
15 A Other candidates such as myself Noelle16 Jefferson, Avi Turkel, and Linda Bellfair who are all
17 District Leader candidates in Alan Gerson's district.
18 Q Now, were you paid by Alan Gerson?
19 A Absolutely not.
20 Q And so this document, Respondent's B, did
21 you prepare this?
22 A I entered the information on the sheet,
23 yes. I did not collect any of the petition --
24 THE COURT: Sir. Sir. Answer the
25 question.
26 THE WITNESS: Okay.
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129
1 Direct - D. Reck - by Petitioner
2 A Preparation involves doing more than just
3 entering numbers. That is all that I did. I just
4 entered the numbers on the computer program, that's
5 all I did.
6 THE COURT: Thank you.
7 Q Is that your, at the bottom of the page,
8 is that your signature?
9 A Yes, that's correct.
10 Q And it says candidate or agent?
11 A That's correct.
12 Q Now, did Alan Gerson's authorize you to
13 sign your name?
14 A Alan Gerson's authorized me to sign my
15 name to this piece of paper that is recorded to be
16 submitted by the petition.
17 Q Do you recall when he authorized you to
18 do this?
19 A He asked me to do it -- as I previously
20 noted to you, and previously stated here, he asked me
21 a couple of days before this was to be submitted to
22 the Board of Elections.
23 Q Now, prior to your preparing this, did
24 anyone make you aware of any printer's errors that had
25 occurred in the sheets?
26 A I knew absolutely nothing about any
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130
1 Direct - D. Reck - by Petitioner
2 printer's errors.
3 Q Did anyone inform you about any
4 alterations that had been made to petitions?
5 A Absolutely not.
6 THE COURT: Could I have that back?
7 (Handing. )
8 Q And on this petition cover sheet, you
9 claim 13 volumes; is that correct?
10 A I do not claim anything. I was provided
11 this information and I was asked to put it on the
12 document and insert it into the computer program. I
13 do not claim anything about the volume numbers.
14 Q Who provided the information?
15 A The Gerson campaign.
16 Q And how was this done?17 A I got a phone call from someone at the
18 campaign office who read me the volume numbers for
19 Alan and number of volumes.
20 Q And who was that person?
21 A You know, I'm not certain, but I believe
22 that I got half of it from David Horshaun and half
23 from Ray Klein. I'm not certain. I think those were
24 the two people who called me. It was done in a big
25 rush at the last minute.
26 Q You did not see these volume
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131
1 Direct - D. Reck - by Petitioner
2 identification numbers?
3 A I only saw the volume identifying numbers
4 for what I personally prepared. Any volume number
5 that I did not work on -- in fact there are a number
6 of those volumes that I did not even lay eyes on.
7 Q Can you, looking at that sleet, tell us
8 which one you laid eyes on?
9 THE COURT: Respondent's B back in the
10 possession of the witness.
11 THE WITNESS: If I may, I have a list in
12 my bag of exactly the petition numbers that I
13 have handled. May I get that lift?
14 THE COURT: You may.
15 (Pausing.)
16 THE COURT: Let's mark that document as
17 Respondent's D -- actually Petitioner's 3 for
18 identification.
19 (Whereupon, document is so marked
20 Petitioner's Exhibit #3 for identification.)
21 MR. MANDELKER: No objection.
22 THE COURT: The document is marked into
23 evidence as Petitioner's No. 3. You have no
24 objection?
25 MR. DOWD: No.
26 THE COURT: Give it to the reporter.
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132
1 Direct - D. Reck - by Petitioner
2 (Whereupon, document is so marked as
3 Petitioner's Exhibit #3 in evidence.)
4 THE COURT: Noting for the record
5 Petitioner's No.3 is now in the possession of the
6 witness.
7 You may proceed Mr. Dowd.
8 MR. DOWD: Thank you.
9 Continued
10 DIRECT EXAMINATION.
11 A Looking at Respondent's B, which is the
12 cover sheet, and looking at Petitioner's 3, which are
13 your notes.
14 THE COURT: I am giving him Respondent's
15 B of 8/4/09 and Petitioner's No. 3 of this date
16 are both in the possession of the witness now.
17 (Handing.)18 Q Could you sinally read the volume numbers
19 that you have personal knowledge of?
20 A Okay.
21 "The petitions from myself, which I was
22 personally responsible for and bound and submitted to
23 the Board of Elections is NY0900, which precedes all
24 of these 591, 590, 589, and 588. Those also include
25 the ones for Noelle Jefferson.
26 THE COURT: Please. Please. Sir.
DEBORAH A. ROTHROCK, RPR
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080609 Gleason v Gerson134
1 Direct - D. Reck - by Petitioner
2 Elections --
3 THE COURT: He has answered your
4 question, sir.
5 You may continue.
6 Q This document is time stamped 10:04 am on
7 July 16th?
8 A If you say so, I believe that is correct.
9 Q If you could please look at Respondent's
10 B.
11 A Okay.
12 Q There's a timestamp on there, it says
13 2009, July 16, 1004 am. Does that appear to be
14 accurate?
15 A To my recollection, yes, that seems to be
16 correct, yes.
17 Q I would like to show the witness
18 Petitioner's 3 from the prior proceeding.19 THE COURT: Hand up the other documents.
20 (Handing.)
21 THE COURT: Petitioner's 3 from 8/4/09
22 now in the possession of the witness.
23 THE WITNESS: Yes.
24 Q Have you ever seen this document before
25 sir?
26 A No, sir I have not.
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1 Direct - D. Reck - by Petitioner
2 Q Now, subsequent to --
3 THE COURT: Are you done with the
4 document?
5 MR. DOWD: Yes, sir.
6 THE COURT: Could I have the document
7 back.
8 (Handing.)
9 Q Subsequent to you filing Respondent's B
10 in evidence on July 16, 10:04 AM, did you have any
11 subsequent interactions with Alan Gerson's campaign
12 regarding the designating petitions?
13 A These designating petitions?
14 Q Yes.
15 A I'm not sure what you're asking. I don't
16 think so, no.
17 Q Did you have any conversations with
18 anyone from the campaign about any concerns they had
19 with the designating petitions for Alan Gerson's?
20 A Recently here there has been some
21 discussion about some kind of printer error. This --
22 I don't know that that is it, but this is the first
23 time I have ever actually seen any document that
24 relates to that.
25 Q When do you recall the first discussions
26 of printer errors coming up?
DEBORAH A. ROTHROCK, RPR
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1 Direct - D. Reck - by Petitioner
2 A I believe I have already answered that
3 sir.
4 You asked me that question before. I
5 have already answered it.
6 Q After you filed Respondent's B, when is
7 the first time you heard of a printer's error do you
8 recall?
9 A Sir, I have already answered that
10 question very recently.
11 THE COURT: Mr. Reck.
12 THE WITNESS: Very recently I found out
13 about this.
14 THE COURT: Thank you.
15 Q Do you recall the date at all?
16 A No, I do not.
17 Q And following you're being informed of
18 this printer's error, did you take any action to
19 correct the printer's error?20 A I had nothing to do with any of that.
21 Q Did you have any subsequent interactions
22 with the Board of Elections regarding the Gerson
23 designating petition?
24 A None whatsoever.
25 MR. DOWD: No further questions.
26 THE COURT: Cross-examination.
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080609 Gleason v Gerson1 Direct - J. Loeser - by Petitioner
2 MR. MANDELKER: No cross.
3 THE COURT: The witness is excused.
4 (Witness exits.)
5 THE COURT: We will take two-minute
6 break and then we will call the next witness.
7 (Recess taken.)
8 THE COURT: Call your next witness.
9 MR. DOWD: I would like to call Jessica
10 Loeser.
11 JESSICA LOESER, called as a witness,
12 having been first duly sworn by the Court, was
13 examined and testified as follows:
14 THE WITNESS: I do a firm.
15 THE COURT: State your name and address
16 for the record.
17 THE WITNESS: Jessica Loeser. 475 FDR
18 Drive, New York, New York 10002.
19 THE COURT: You may begin your Direct
20 Examination.
21 MR. DOWD: Thank you.
22 DIRECT EXAMINATION
23 BY MR. DOWD:
24 Q Good afternoon.
25 Thank you for coming Ms. Loeser.
26 A Good morning.
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2 Q Did there come a time that you became
3 involved with Alan Gerson's efforts to get on to the
4 ballot in 2009?
5 A I collected signatures for slate of
6 Democratic candidates on the lower eastside and any
7 statewide and Alan is on that sheet.
8 Q Are you involved in a democratic club?
9 A I am.
10 Q What club is that?
11 A The Harry S. Truman Democratic Club.
12 Q What is your role?
13 A I'm the president.
14 Q When did you first see the sheets for
15 Alan Gerson's designating petition?
16 A Could I get a clarifications? I don't
17 understand. We're talking about his space on a slate
18 of candidates, is that it?
19 Q Let me show the witness.
20 THE COURT: Perhaps I should show the21 witness. Are you speaking of Petitioner's 3 in
22 evidence?
23 MR. DOWD: Yes, three from the previous
24 hearing.
25 THE COURT: I have it in my hand and now
26 it is in the possession of the witness.
DEBORAH A. ROTHROCK, RPR
139
1 Direct - J. Loeser - by Petitioner
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080609 Gleason v Gerson2 (Handing.)
3 Q Ms. Loeser, I would like to refer you to
4 Petitioner's 3 in evidence.
5 A Uh-huh.
6 Q Could you identify --let me ask you to
7 turn to eight pages from the end of the document --
8 seven. It says sheet number five at the bottom of the
9 page.
10 A Okay.
11 Q And sheet number five, that photocopy
12 page is preceded by two other pages?
13 A Uh-huh.
14 Q Are those part of the same designating
15 petition sheets?
16 A Yes.
17 Q And whose signature is on sheet number
18 five?
19 A Mine is.
20 Q When did you first see this document?
21 A The first day of petitioning is -- may I
22 consult the calendar? It was the night before the
23 first day of petitions.
24 Q Absolutely --
25 THE COURT: What are we doing here.
26 THE WITNESS: Finding the date.
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140
1 Direct - J. Loeser - by Petitioner
2 THE COURT: Put it up over here. IPage 72
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3 really don't want you using that.
4 THE WITNESS: Yes sure.
5 THE COURT: Now ask the question.
6 Q Do you recall when you first saw this
7 designated petition?
8 A The night before the first day of
9 petitioning, that Monday night, I don't recall the
10 date.
11 Q Do we have the Political Calendar?
12 THE COURT: The document that you're
13 speaking of is Petitioner's No.1 in evidence of
14 this date now in the possession of the witness.
15 (Handing.)
16 Q June 9th, the second entry there.
17 A Yes, I saw June 8th.
18 Q Thank you.
19 And you see on the second, the photo copy
20 page preceding sheet number five.
21 A Uh-huh.22 Q Next to on the left-hand side we have
23 Alan J. Gerson's name?
24 A Yes.
25 Q And public offices. And next to that
26 places of residence. What do you see there?
DEBORAH A. ROTHROCK, RPR
141
1 Direct - J. Loeser - by Petitioner
2 A I see my initials with a scratch out.
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080609 Gleason v Gerson3 Q When did you make that scratch out?
4 MR. MANDELKER: Objection.
5 Your Honor, may I just make --this is
6 the motion in limine and I'll make it for the
7 record.
8 MR. DOWD: Not in the presence of the
9 witness, your Honor.
10 THE WITNESS: I could step out.
11 THE COURT: I will ask the witness to
12 step down for a moment: You could sit at the
13 edge of the jury box.
14 MR. DOWD: She'll hear everything we
15 say, your Honor. The acoustics are great here,
16 your Honor.
17 THE COURT: That's great. Step up.
18 (Whereupon, a bench conference took
19 place between counsel and the Court.)
20
21 THE COURT: The motion in limine was
22 made to preclude further testimony with respect
23 to the witness, with respect to fraud. The
24 motion was based on allegations that counsel was
25 moving forward in violation of the Rules of the
26 Court, with respect to the conduct of Election
DEBORAH A. ROTHROCK, RPR
142
1 Direct - J. Loeser - by Petitioner
2 Law hearings. The Referee found th