NISKAYUNA AND JOHNSTOWN — Robert Smullen, a Republican candidate for the 118th Assembly District, was arraigned on Aug. 8 in Niskayuna Town Court on a felony charge of first-degree filing of a false instrument.
Smullen was arrested by state police in July and charged with filing false tax exemption paperwork with the town of Niskayuna for the purpose of receiving a military veteran’s tax reduction intended only for a primary residence. Smullen owns a home at 2169 Appletree Lane, but he was already receiving the exemption on his residence at 265 Route 309 in the town of Johnstown, which he first filed in 2009.
Smullen did not appear to enter a plea, but his attorney, Steven Kouray of Schenectady, said his client intends to fight the charge.
“We have indicated to the court that we may certainly exercise our right to testify in front of a grand jury on this matter,” Kouray said.
Kouray said the court has set Sept. 5 for the next court hearing in front of Town Justice Stephen F. Swinton Jr. He said Schenectady County District Attorney Robert Carney’s office has indicated it may also want to begin grand jury proceedings in September.
A grand jury indictment is often considered preferable for a criminal prosecution, rather than proceeding with a trial based on information gathered by law enforcement without an indictment.
The legal stakes would be high if Smullen chooses to testify in front of a grand jury, which he is not required to do. If he can convince a grand jury not to indict, the case would be dismissed. But during a grand jury proceeding Smullen would not have the right to plead the Fifth Amendment to avoid answering questions that might incriminate him, and his testimony could later be used against him at his criminal trial.
The political stakes are already high for Smullen, who will face Patrick Vincent of Cold Brook in the Republican Party primary on Sept. 13.
Being convicted of a felony would make Smullen ineligible to serve in the state Assembly.
Kouray said Smullen was wrongly charged.
“This is politically motivated, there is no question about it. This was a good-faith accident, and when you look at that form I would have answered it the same way that my client did,” he said.
Filing a complaint
Smullen was charged after two Johnstown Town Board members — Donald VanDeusen and Timothy Rizzo — went to state police with a complaint that they thought Smullen was committing property tax fraud for having the primary-residence-only military combat veteran tax exemption on properties in Johnstown and Niskayuna simultaneously. They also included a letter from the U.S. Department of Veterans Affairs, obtained by Vincent through a Freedom on Information Law Request, that showed Smullen claimed to be a resident of Niskayuna.
It was VanDeusen ’s contention that Smullen had filed a false instrument in Johnstown, and that he really lived in Niskayuna for several years during which he was receiving the tax exemption in Johnstown.
“From the best of my knowledge, without getting any assistance from our town assessor, I believed that Robert owes the town of Johnstown and County of Fulton $692,” VanDeusen stated in a sworn deposition to state troopers.
State police, however, did not charge Smullen with filing a false instrument in Johnstown — affirming that he really does live there and not in Niskayuna, where they claim his primary residence exemption was filed falsely. Niskayuna is not in the 118th Assembly District.
VanDeusen on May 21 also attempted to have Smullen removed from the Johnstown Board of Assessment Review based on his complaints regarding Smullen’s property tax exemptions and concerns over whether his property, which has two dwellings on it, has been properly subdivided. The Town Board rejected VanDeusen’s motion to remove Smullen.
Since then, Smullen has filed a complaint with the Fulton County Ethics Board alleging that VanDeusen may have used information from Smullen’s confidential employee file as an unpaid appointed member of the assessment board inappropriately during the public meeting on May 21.
VanDeusen has denied ever seeing a town personnel file for Smullen. He has also argued that Smullen’s training as a member of the Board of Assessment Review should have alerted him to how the primary-residence-only veteran tax exemption works.
‘He made an honest mistake’
“Not necessarily,” Kouray said when asked whether Smullen should have learned his exemptions were filed inappropriately during his training. “There is absolutely no evidence to support any assertion that he acted fraudulently or with intent. He made an honest mistake and he addressed it immediately, well before his opponents got into the act and went to the police on this.”
The Daily Gazette reported on May 3 that Smullen had been receiving the exemption on both homes for a period of about two years, along with a 70 percent disabled veteran tax exemption on the Niskayuna home. Smullen then removed the tax exemption on his Niskayuna home and agreed to pay back the town, Schenectady County and the Niskayuna Central School District about $4,437.
The school district has indicated Smullen has paid his back taxes, and town officials say the money he owes Niskayuna and Schenectady County will be included on his next property tax bill in 2019.
Smullen’s wife, and four children who are enrolled as students in the Niskayuna school district, appear to live at 2169 Appletree Lane, at least during the school year.
Smullen has said his family likes a special education program that Niskayuna offers, which his son uses, but he has refused to say where his wife and children legally reside.
“I live in the [Assembly] district. That is my primary residence. I live in the district. That’s all that matters. The legal residential requirement is that I, citizen Robert Smullen, colonel, U.S. Marine Corps, who has lived in seven states, who’s been to many countries, I have always lived within three miles of my home of record. That’s my commitment to the people of the district,” Smullen told the Gazette in April.
The Niskayuna Central School District does not admit nonresident students on a tuition basis, but the school district’s superintendent is authorized to present the district’s Board of Education tuition requests for nonresident students with disabilities based on “the Niskayuna School District having an appropriate educational placement not available in the student’s district of residence,” according to a policy statement on the district’s website.