This opinion is uncorrected and subject to revision before publication in the New York Reports.
These three related proceedings were commenced pursuant to article 16 of the Election Law following the general election for the position of Chautauqua County Legislator for the Seventh District. Robert T. Stewart, the Republican and Independence Party candidate, commenced the first proceeding challenging, as relevant here, one affidavit ballot on the ground that the voter, J.K., was not a resident of the voting district. Stewart also challenged two absentee ballots, on the ground that the "absentee ballot applications submitted by [the two] voters were rejected by the . . . Board of Elections [and c]orrections were not received prior to sending the ballot or upon the return of the ballot." At that point, the two absentee ballot envelopes at issue had not yet been opened. Leon H. Beightol, the incumbent Democratic and Working Families Party candidate, answered and asserted counterclaims. As relevant here, Beightol sought to have Supreme Court validate the affidavit ballot of J.K. and "open and count" the two absentee ballots.
At a hearing on the first petition on November 30, 2009, Supreme Court directed the Board of Elections to open the two absentee ballot envelopes to ascertain the contents of the envelopes. Each of the two envelopes contained one completed absentee ballot application and one completed absentee ballot. To the parties' apparent surprise, both ballots were cast in favor of Stewart. Thereafter, Beightol commenced the second of these three proceedings. Altering the position he took in the first proceeding, Beightol sought to have Supreme Court invalidate the two absentee ballots on the ground that extrinsic material which could identify the voters, i.e., their absentee voter applications, was included along with the voters' absentee ballots in the ballot envelopes. As relevant here, Beightol also sought the invalidation of two optical scan ballots -- manually counted by the Board of Elections on November 18, 2009 -- that he claimed were "abandoned" at one polling site. In his answer, Stewart, also altering his original position, argued that the two absentee ballots should be counted. Stewart additionally argued that the optical scan ballots were properly counted during the hand count on December 8, 2009.
Shortly thereafter, Beightol commenced the third proceeding, challenging the optical scan ballots on the ground that they were abandoned. He also challenged whether chain of custody controls were properly used with respect to the two optical scan ballots.
After a December 9, 2009 hearing, Supreme Court ordered that J.K.'s affidavit ballot and the two absentee ballots be counted and that the two optical scan ballots not be counted. As to the affidavit ballot, the court concluded that J.K. "properly . . . cast her ballot in the location where she had significant contacts . . . of a kind and nature which would have allowed her to vote from that district on that date." Addressing the two absentee ballots, the court first noted that "[a]n absentee ballot should not be mailed out [until] the [absentee ballot] application is complete." By sending the two absentee ballots, the court concluded that the Board of Elections had "deemed the . . . application to be complete." The court further concluded that the extrinsic materials included with the ballots in the absentee ballot envelopes were the result of a ministerial error by the Board of Elections. Finally, with respect to the optical scan ballots, the court concluded, without reaching Beightol's chain of custody arguments, that the voters had abandoned their ballots by leaving the polling place without ensuring their votes had been counted. Supreme Court's order resulted in a tie vote.
As relevant here, Stewart appealed from so much of Supreme Court's order as directed the Board of Elections to count J.K.'s affidavit ballot. Beightol cross-appealed from so much of Supreme Court's order as directed the "opening and counting" of the two absentee ballots and validated the Board of Election's hand-count of the two optical scan ballots.
The Appellate Division, with two Justices dissenting in part, dismissed Beightol's cross appeal from Supreme Court's order "insofar as it directed the opening of the two absentee ballots," modified the order, on the law, by invalidating J.K.'s affidavit ballot and validating the two optical scan ballots, and, as modified, affirmed (see Matter of Stewart v Chautauqua County Bd. Of Elections, __ AD3d __, 2010 NY Slip Op 00210, at *1 [4th Dept 1-12-10]). The Appellate Division majority agreed with Supreme Court's factual findings on the issue of J.K.'s residency but held, as a matter of law, that J.K. resided at an address outside the voting district. With respect to the optical scan ballots, the court, relying on 9 NYCRR 6210.13 (A) (11), concluded that the ballots were not "abandoned" within the meaning of that regulation and were properly counted during the Board of Elections' hand count.
As to the two absentee ballots, the court first characterized Beightol's cross appeal as "contend[ing] . . . that [Supreme C]ourt erred in ordering that the two absentee ballots . . . be opened" (id. at *3). Because the Appellate Division determined that Beightol had previously sought to have the absentee ballots opened, and Supreme Court had ordered the Board to open the ballots, the Appellate Division concluded that Beightol was not aggrieved by that part of Supreme Court's order. The court further determined that Beightol was judicially estopped from taking the position in his two proceedings and on appeal that the absentee ballots should not be counted because that position was "contrary to his position in the proceeding commenced by Stewart" (id.). Finally, the court rejected Beightol's argument that extrinsic materials included with the absentee ballots invalidated those ballots. After the Appellate Division decision, Stewart led by three votes.
Beightol appealed as of right, pursuant to CPLR 5601
(a), from the Appellate Division order of modification,*fn1 and we now affirm.*fn2
A. J.K.'s Affidavit Ballot
Election Law § 1-104 (22) defines "residence" as "that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return." To be a resident of a place within the meaning of the Election Law, we have held that "a person must be physically present with the intent to remain for a time" (People v O'Hara, 96 NY2d 378, 384 , citing Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36, 47 ). While a voter may have more than one "bona fide residence," he or ...