STATE OF NEW YORK COUNTY COURT COUNTY OF RENSSELAER

THE PEOPLE OF THE STATE OF NEW YORK, - againstEDWARD MCDONOUGH and MICHAEL LoPORTO, Defendants.

AFFIRMATION IN SUPPORT OF MOTION PURSUANT TO CPL § 240.40(2) Indictment No. SPl1-1002 Index No. 235598

TREY SMITH, an attorney duly licensed to practice law in the courts of the State of New York, under penalties of perjury, affirms: 1. 2. I am the Special District Attorney in this case. I make this affirmation in support of the People's motion for an order (a) compelling

the defendant Edward McDonough to provide specimens of his handwriting for comparison to entries made in questioned documents in this case, or, in the alternative, to stipulate that he made such entries; (b) compelling the defendant Michael LoPorto to provide specimens of his handwriting for comparison to entries made in questioned documents in this case; (c) compelling discovery as to all property not disclosed by the defendants upon the People's demand for same; and (d) furnishing such other and further relief which to this Court appears just and proper. 3. This affirmation is made upon personal knowledge, and upon information and belief

where indicated. Entries Allegedly Written by McDonough 4. Kevin McGrath, a candidate for Troy City Council in the September 15, 2009

primary, previously provided a sworn statement, attached as Exhibit "1," in which he alleged that

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he 'witnessed Mr. McDonough falsely complete absentee ballot applications for Thomas Dickinson and Jennifer Taylor, specifically, the fields on the applications under the sections labeled "Dates you will be out of Rensselaer County" and "Where will you be on Election Day." Copies of the absentee ballot applications of Mr. Dickinson and Ms. Taylor are attached as Exhibits "2" and "3," respectively. The writing in the "Where will you be on Election Day" field for the Dickinson

application is hand-printed, and in cursive for the Taylor application. Mr. Dickinson and Ms. Taylor both allege that their ballot applications were falsely completed. 5. Attached as Exhibit "4" are the absentee ballot applications for 28 other absentee

ballot applications in which the hand-printing in the "Dates you will be out of Rensselaer County" and "Where will you be on Election Day" fields appear highly similar to that in Mr. Dickinson's application. The applications within Exhibit "4" correspond, in order, to the forgeries charged in the Indictment in Counts Two, Four through Sixteen, and Thirty through Forty-Three.' 6. Attached as Exhibit "5" is a document in which the "Dates you will be out of

Rensselaer County" and "Where will you be on Election Day" fields from the Dickinson application and the 28 applications in Exhibit "4," believed to have been forged by Mr. McDonough, have been cut-and-pasted. Those fields correspond, in order, to the forgeries charged in Counts One and Two,

Four through Sixteen, and Thirty through Forty- Three. 7. Attached as Exhibit "6" is a document in which the "Where will you be on Election

Day" fields corresponding to the forgeries charged in Counts Two and Five are magnified. Both contain the words, "Cape Cod,"

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Count Three pertains to Ms. Taylor's application, which, again, was in cursive, not

printing. 2

8.

Attached as Exhibit "7" is a document in which the word "visiting" is repeated in the

magnified "Where will you be on Election Day" fields corresponding to Counts Five, Eight, and Ten. 9. Attached as Exhibit "8" is a document in which the root word "work" is repeated in

the magnified "Where will you be on Election Day" fields corresponding to Counts Six, Seven, Fifteen, Sixteen, Thirty-One, Thirty-Two, Thirty-Eight, Thirty-Nine, and Forty. 10. Attached as Exhibit "9" is a document in which the phrase "bus trip to casino" is

repeated for the magnified "Where will you be on Election Day" fields corresponding to Counts 12 and 42. 11. In addition to the apparent similarity of the above-mentioned hand printing to that by Mr. McGrath, there is the additional circumstance that Mr.

identified as Mr. McDonough's

McDonough's position as Democratic Commissioner of the Board of Elections would enable him to write the excuses on so many absentee ballot applications.' Further, many ofthe entries share the use of a gerund to start the phrase, e.g., "recovering," "working. " 12. Based upon the foregoing and other facts and circumstances, Mr. McDonough was "taking," "traveling," "visiting," and

indicted for forging absentee ballot applications of voters named in Counts One through Sixteen and Counts Thirty through Forty- Three of the Indictment.

2 Indeed, in a meeting held in my office on December 2,2010, Mr. McDonough's attorney Brian Premo represented to me that Mr. McDonough had written the excuses on the absentee ballot applications identified by Mr. McGrath, and unspecified others. However, Mr. Premo alleged that Mr. McDonough was innocent of any crime, as he claimed that Mr. McDonough had not fabricated the excuses himself, but merely was writing down what was dictated to him by others.

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13.

In Mr. McGrath's statement (Exhibit "1 "), he further alleges that on September 14, office at the Board of Elections, he

2009, the day before Primary Day, in Mr. McDonough's

witnessed a conversation between Mr. McDonough and Jolm Brown, a Troy City Councilman and at-large candidate. Mr. McDonough and Mr. Brown were discussing whose names could be inserted in the "Deliver to" lines ofroughly 35 absentee ballot applications. Mr. McGrath witnessed Mr.

Brown apparently calling and speaking on a cell phone with James Welch, Chairman of the Rensselaer County Working Families Party, and heard Mr. Brown ask Mr. Welch's permission to use his name in "Deliver to" lines. Mr. McGrath alleges that Mr. McDonough asked him and Mr. Brown to leave his office, presumably so that Mr. McDonough could write Mr. Welch's name on the applications. Mr. Welch in turn has confirmed that he received a telephone call from Mr. Brown on the day in question requesting permission to use his name in "Deliver to" fields on absentee ballot applications. 14. Attached as Exhibit "10" is a document in which the name "James Welch" is written

in the "Deliver to" field of six absentee ballot applications, filed at the Board of Elections on September 14, 2009, have been cut-and-pasted for comparison purposes. Also within Exhibit "10" are cut-and-pasted entries ofthe name "Tom Aldrich" from seven applications also filed at the Board on September 14th. Also within Exhibit "10" are cut-and-pasted entries of the name "Tony DeFiglio" from eight applications, again filed at the Board on September 14th. Finally, within Exhibit "10" are cut-and-pasted entries of the name "Brandt Caird" from eight applications, once again filed at the Board on September 14th. 15. There were, in fact, 34 absentee ballot applications ostensibly filed by Working

Families Party voters from Troy with the Board of Elections on September 14th. There are 29

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absentee ballot applications total contained within Exhibit "10" which, again, were filed on September 14th. Each is alleged to be a forgery, and ML McDonough is alleged to have knowingly possessed each of these forged instruments in his office on September 14,2009. The hand-printing of the names in Exhibit "10" bear gross similarities to each other, and to the hand-printing identified as Mr. Mcl.ionough's.' printing for comparison. Robillard Affidavit 16. The affidavit of Alan Robillard, an examiner of questioned documents, is submitted Mr. McDonough should be compelled to provide samples of his hand

in support of the motion to compel handwriting specimens from both Mr. McDonough and Michael LoPorto. In his affidavit, Mr. Robillard recites that he has reviewed the questioned documents in this case and that the written material is sufficient for comparison purposes. Standard for Compulsion Of Handwriting S12ecimens 17. Criminal Procedure Law § 240AO(2)(b)(2)(vi) provides in pertinent part: "Upon

motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment ... is pending ... may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to ... Provide specimens of his handwriting." 18. With regards to constitutional limitation, the Fifth Amendment privilege against selfCf

incrimination offers no protection against the taking of handwriting or printing exemplars.

Schmerber v. California, 384 U.S. 757, 764 (1966); People v. Gabron, 103 Misc.2d 783 (Dutchess

The remaining five absentee ballot applications filed in the name of Trojan Working Families Party voters on September 14theither have no name in the "Deliver to" field, grossly dissimilar hand-printing in that field, or, in a single instance, the name of William Mclnerny, See Exhibit "11," attached.
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Co. Ct. 1980). The Fifth Amendment protects only against compulsory production of testimonial evidence. It has been repeatedly stated by courts that handwriting exemplars are physical

characteristics not within the protection of the Fifth Amendment privilege. United States v. Euge, 444 U.S. 707 (1980); Gilbert v. California, 388 U.S. 263 (1967); United States v. Roth, 466 F.2d 1111 (9th Cir. 1972), cert. denied, 409 U.S. 1048 (1972). 19. In conformity with these cases, the Second Circuit COUli of Appeals has also ruled

that obtaining handwriting exemplars is not in derogation ofthe Fifth Amendment privilege against self-incrimination. United States v. Jacobowitz, 877 F.2d 162, 168 (2d Cir, 1989), cert, denied, 493

U.S. 866 (1989); In Re Rosahn, 671 F.2d 690,694 (2d Cir. 1982). 20. Furthermore, because there is no expectation of privacy in physical characteristics

constantly exposed to the public, there is no legitimate Fourth Amendment interest violated by the compulsory production of such characteristics. United States v. Mara, 410 U.S. 19 (1973); United

States v. Dionisio, 410 U.S. 1 (1973). Therefore, compulsory production of handwriting does not violate the Fourth Amendment as an unreasonable search and seizure. United States v. Euge, 444 U.S. at 718; United States v. Mara, 410 U.S. at 18; United States v. Roth,466 F.2d at 1114. Stipulation 21. Mr. Premo has complained to the Rensselaer County Legislature, the Court and others attorney, but

regarding the cost of this prosecution, not only in his capacity as Mr. McDonough's also as a "concerned" citizen and taxpayer of Rensselaer County, 22.

The New York State Police no longer employ an examiner of questioned documents, charged to Rensselaer County. Mr. Robillard's

and such expertise must be retained, and

background, training and experience includes years of service to the Federal Bureau ofInvestigation 6

as an examiner of questioned documents. He charges $200 per hour, measured in quarter of an hour increments, for his expert service. 23. In light of Mr. Premo's expressed concern for the costs of this prosecution, and his

prior (if vague, limited and inadmissible) statements that Mr. McDonough authored questioned entries in documents in this case, the People, in lieu of compulsion, would welcome a stipulation signed by Mr. McDonough that he is the author of the entries specified above. Entries Allegedlv Made by LoPorto 24. Attached as Exhibit "12" are 37 entries in date fields on absentee ballot envelopes in

this case which were not authorized by the voter and which appear to have been written in the same or similar hand. 25. Of those 37 contained within Exhibit "12," 22 were allegedly possessed by Mr.

LoPorto on September 15,2009.4 26. Attached as Exhibit "13"are excerpts from Mr. LoPorto's Department of Motor

Vehicles records. Attached as Exhibit "14" are words cut-and-pasted from Exhibit "13" which contain the printed letters "s," "e," "p" and "t" (for the abbreviation for "September" appearing in Exhibit "12"). The printing of these letters bears gross similarities to the entries within the date fields in Exhibit "12."

Mr. LoPorto is alleged to have possessed a total of 29 forged absentee ballot envelopes (and their contents) on September 15, 2009. The charge is based upon the evidence of Sarah Couch, who alleges that Mr. LoPorto handed her "approximately" 30 ballots to be filed at the Board of Elections that day. Ms. Couch states that one of the ballots was not signed and was destroyed. Date and time-stamps on Trojan Working Families Party absentee ballots indicate that Ms. Couch filed precisely 28 ballots. Therefore, of the 28 ballots filed by Couch, 22 bear similar writing in the date field.
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27.

Attached as Exhibit "IS" is the supporting deposition of Richard Gushlaw, who

alleges that on September 12,2009, Mr. LoPorto and Clement Campana, another at-large candidate for Troy City Council, came to his home. Mr. LoPorto asked Mr. Gushlaw to sign the absentee ballot envelope of Karen Gushlaw, his wife. Mr. Gushlaw refused. This same absentee ballot

envelope of Ms. Gushlaw was subsequently signed and filed with the Board of Elections. Attached as Exhibit "IS" is the forgery affidavit of Mrs. Gushlaw, in which she alleges that her purported signature on that envelope is a forgery. 28. Attached as Exhibit "16" is the supporting deposition of Ruth Madera, who alleges

that Mr. LOPOlio asked her to vote for him. Ms. Madera's deposition continues that she said she would vote in person at her polling place, but Mr. LoPorto said she did not have to vote at her polling place and that as long as she said she would vote for him, he "would take care of it." Ms. Madera denies signing either the absentee ballot application or absentee ballot envelope which were filed in her name. 29. Hector Rodriguez has testified that a man who was Italian and spoke Spanish came

to him in September 2009 and asked him to sign an absentee ballot application, which he did. However, the information which was placed in the "Where will you be on Election Day" field of the ballot application was false, and the date and signature on the absentee ballot envelope generated from the application were both forgeries. See Exhibit "17," Rodriguez Forgery Affidavit. 30. Attached. as Exhibit "18" is the supporting deposition of Persidia Sanchez, who

alleges that she signed. an absentee ballot application for Mr. LoPorto, who told her that he would return the next day with her absentee ballot for her signature. He failed. to do so, and.a forged ballot in her name was filed with the Board of Elections. 8

31.

The dates on the absentee ballot envelopes filed in the names of Mrs. Gushlaw, Ms.

Madera, Mr. Rodriguez and Ms. Sanchez all appear on Exhibit "12," that is, the dates all appear to be in the same or similar hand, which, again, appears grossly similar to Mr. Lof'ortos DMV

exemplars. Further, the absentee ballot envelopes for Mrs. Gushlaw, Ms. Madera, Mr. Rodriguez and Ms. Sanchez were all among the 29 ballot envelopes possessed by Mr. LOP0l10 on September 15, 2009, as charged in Counts Ninety-Six, One Hundred Two, One Hundred Eight and One Hundred Eleven. 32. Attached as Exhibit "19" are the absentee ballot envelopes corresponding to Counts

Seventeen through Twenty-Nine ofthe Indictment. Each of those envelopes bears a "Purple Heart" stamp, and all were mailed from Albany on the same day and received at the Board of Elections on September 15,2009. 33. Each bears writing in the date fields which also appears on Exhibit "12."

Based upon the foregoing and other facts and circumstances, Mr. LoPorto was

indicted for forging absentee ballot applications of voters named in Counts Seventeen through Twenty-Nine of the Indictment, and a sufficient factual predicate exists for compulsion of

handwriting specimens. This remains so despite the People's recent disclosure to Mr. LoPorto's attorney pursuant to its obligations under Brady v. Maryland. 34. On May 17, 2011, I spoke with Mr. Robillard after he had conducted a preliminary

review of questioned documents in this case. Mr. Robillard mentioned a difference between writing in the date fields offorged absentee ballot envelopes and Mr. LoPorto' s DMV exemplars. This merely presented an issue which could potentially be resolved with handwriting analysis. Shortly thereafter, an anomaly in documentary evidence recently obtained and analyzed by the New York State Police indicates that the date fields referenced in Counts 17 through 29 of the Indictment may have been

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forged by William McInerney and not Michael LoPorto. This anomaly was not in the nature of handwriting analysis. It was this anomaly and its connection to Mr. McInerney which, in my mind, rose to the level of exculpatory information under Brady, and prompted my immediate disclosure to Mr. Feit, as set forth in my June 6, 2006 letter, on which the Court and Mr. Premo were copied. 35. Because the investigation is ongoing, I cannot disclose the anomaly at this time, but will

do so as soon as possible. It would be imprudent to disclose the discrepancy noticed by Mr. Robillard. The hand-printing of Mr. McInerney shares similarities with Mr. LoPorto's. To disclose the

discrepancy at this time could cause either Mr. LoPorto or Mr. McInerney to attempt deceit while furnishing specimens. 36. Further, the People have not exonerated Mr. LoPorto as the writer of the dates as

charged in Counts Seventeen through Twenty-Nine, but merely complied with their Brady obligation in advising the defense of exculpatory information. 37. Most importantly, whether it was Mr. LoPorto, Mr. McInerney, or both who forged

all or some of the dates on the ballot envelopes as shown in Exhibit "12," ultimately has no bearing on the relevance of the evidence sought. 38. Handwriting specimens and analysis might exculpate Mr. LoPorto, and inculpate Mr.

McInerney, as to commission of the crimes charged in Counts Seventeen through Twenty-Nine. However, if handwriting specimens and analysis inculpate Mr. McInerney as the sole author of the dates shown in Exhibit" 12," it does not exonerate Mr. LoP Olio on Counts Eighty-Eight through One Hundred Sixteen. On the contrary, this would constitute a document-based, evidentiary link between Mr. LoPorto and Mr. McInerney.

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39.

As detailed above, the evidence of Sarah Couch and date-and-time stamps on

absentee ballot envelopes at the Board of Elections place Mr. LOPOlio in possession of 22 ballot envelopes bearing dates apparently forged in the same hand. Mr. LoP Olio is implicated for fraud in the processing of absentee ballot applications which generated four of those 22 absentee ballot envelopes. If documentary evidence demonstrates that Mr. McInerney forged the dates on 22 ballot envelopes, this also constitutes evidence that Mr. LoPorto received those ballots from Mr. McInerney. There is ample evidence - from Mr. McDonough and Kevin O'Malley - that Mr.

McInerney received the same ballot envelopes from Mr. McDonough. 40. So, very simply put, whether it is Mr. LoPorto's handwriting or Mr. McInerney's in

the date fields does not obviate the fact that voters have accused Mr. LoPorto of fraud in the collection of absentee ballot applications, fraud which ajury could consider in deciding whether Mr. LoPorto knew that the ballot envelopes he handed to Ms. Couch - concealed within a folded-up newspaper - were forged. If it is Mr. McInerney's handwriting on the absentee ballot envelopes, this would be yet another link between him and Mr. LoPorto. Witnesses have identified M1'.McInerney as directing the September 12, 2009 drive to collect absentee ballot applications from Trojans registered in the Working Families Party, a drive at which Mr. LoPorto was present. 41. IfM1'. Mclnerney is the author ofthe dates forged and referenced in Counts Seventeen Mr.

through Twenty-Nine.. this would prove highly incriminatory against Mr. McDonough.

McDonough has been indicted in Counts Four through Sixteen for forging the ballot applications which generated the forged ballots listed in Counts Seventeen through Twenty-Nine. In other words, and very simply put, such would constitute yet another example where applications forged by Mr.

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McDonough generated ballots which were possessed by Mr. McInerney and returned to the Board of Elections as forgeries. 42. The People accordingly move the Court to compel Mr. LoP Olio to provide specimens

of his handwriting for comparison to the questioned documents specified above. Discoverv 43. On January 28, 2011, the People served both defendants with a motion for discovery

pursuant to Criminal Procedure Law § 240.30. A copy of the demand is attached as Exhibit "20." 44. 45. To date, neither defendant has responded to the motion. The People therefore seek an order pursuant to Criminal Procedure Law §

240.40(2)(a), compelling discovery as to all property not disclosed by the defendants upon the People's demand. Other and Fmiher Relief 46. Based on the foregoing, the People ask the Court to order such other and further relief

which to the Court seems just and proper.

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