Posted by GET NY on 08:59:35 12/09/04
To be argued Tuesday, April 24, 2001
No. 78 People v. John O'Hara
John Kennedy O'Hara, a former attorney and unsuccessful candidate for state and local political offices in Brooklyn, is appealing his felony convictions for illegal voting and false voter registration. O'Hara had resided at an apartment on 61st Street in Bay Ridge since 1980, but when reapportionment shifted his apartment into a different election district in 1992, he filed a new voter registration card on which he claimed to reside at his ex-girlfriend's apartment building on 47th Street, located in his former election district in Park Slope. He voted five times from that address in 1992 and 1993. He later returned to his 61st Street address.
Brooklyn prosecutors charged O'Hara with seven felony counts of illegal voting and false registration, contending that the 47th Street address was never his legal residence. O'Hara was convicted at his first trial, but the verdict was reversed on appeal. His second trial ended with a hung jury. He was found guilty of all seven counts at his third trial and the Appellate Division, Second Department, affirmed. O'Hara was automatically disbarred as a result of the felony convictions. He was also sentenced to 1,500 hours of community service, fines and restitution totaling $20,192, and a three-year conditional discharge.
The focus of O'Hara's appeal is the trial court's instruction to the jury on the definition of "residence," which was virtually identical to the definition in Election Law § 1-104(22). The statute says a voter's residence is "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return."
O'Hara contends that he maintained two legitimate residences, one on 61st Street and the other on 47th Street, and that he was free to choose either one as his voting address under the broader definition the Court of Appeals has adopted in civil election cases. He relies on Ferguson v. McNab (60 NY2d 598), in which the Court said a "candidate having two residences may choose one to which she has legitimate, significant and continuing attachments as her residence for purposes of the Election Law." O'Hara argues he had "legitimate, significant and continuing attachments" to the 47th Street address, but the statute and the trial court's instructions left him no latitude to claim it as a second residence. "O'Hara thus was convicted of a felony for engaging in conduct that would have been ... found perfectly lawful in a civil court," according to his brief.
The prosecution argues that the trial court properly instructed the jury that a voter with two residences may choose either one for election law purposes and that the phrase defining "residence" as the place to which a person "always intends to return" does not deprive voters of that choice. The prosecution also contends that O'Hara "never resided, in any sense of the word, at the 47th Street address."
The League of Women Voters and the New York Civil Liberties Union filed amicus curiae briefs in support of O'Hara's appeal.
For appellant O'Hara:
Steve S. Efron, Manhattan (212) 867-1067
For respondent district attorney:
Brooklyn Assistant District Attorney Monique Ferrell (718) 250-2000
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