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Office of the City Clerk v. Torres

OATH Index No. 1084/07 (Apr. 12, 2007)

Marriage license applicant appealed clerk’s denial of application based upon record of 1994 marriage of person with same name and birth date. Evidence found to support likelihood that the applicants are the same persons and appeal dismissed.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

OFFICE OF THE CITY CLERK

Petitioner

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MARSHA ANN TORRES

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is an appeal of the denial of marriage license by petitioner Office of the City Clerk to respondent Marsha Ann Torres. The appeal is brought pursuant to section 3-03 of the rules of the City Clerk, published in title 51 of the Rules of the City of New York.

In approximately October 2005, respondent submitted an application for a marriage license. In processing this application, petitioner’s staff discovered that a marriage license had been issued in 1994 to a person with the same name and birth date. Petitioner therefore notified respondent that her application would be rejected.

Effective October 20, 2006, petitioner promulgated rules permitting appeals of denials of marriage license applications and later notified respondent that she would be permitted to seek such an appeal, if she chose. Respondent filed an appeal and petitioner commenced this pro-ceeding by serving and filing a petition (ALJ Ex. 1) on December 12, 2006, attaching a copy of the 1994 license and application. Respondent then filed an answer (ALJ Ex. 2) on February 7, 2007. With the answer, she filed affidavits from herself, her sister, and her grandmother, all stating that she has never been married.

After being assigned the case, I wrote to the parties on February 14, 2007, requesting additional documents. From petitioner, I requested a copy of respondent’s marriage license application. From respondent, I requested a copy of her birth certificate and income tax returns. On February 22, 2007, Ms. Torres filed a copy of her birth certificate and driver’s license but stated that she was unable to obtain copies of any tax returns. I determined that I was unable to render a decision based solely upon the written submissions and, on February 23, 2007, mailed the parties a notice scheduling the case for a hearing.

On March 30, 2007, petitioner and respondent both appeared. Respondent brought with her two witnesses, her grandmother and her sister, who denied any knowledge about respondent ever having been married. At respondent’s request, I left the record open for one week in order to permit respondent to obtain documents of her criminal history, which she believed might demonstrate that she was incarcerated on the date the 1994 marriage license was issued. Nothing further was filed and the record closed on April 6, 2007.

As discussed below, the evidence suggests that respondent is the same woman who was issued a marriage license in 1994.

ANALYSIS

Respondent’s application for a marriage license, submitted in October 2005,[1] was denied because the Clerk’s records indicated that someone with the same name and birth date had already been issued a license in 1994. The issue presented in this appeal is whether the evidence indicates that respondent is the same person named on the 1994 license.

Petitioner’s evidence, consisting of the 1994 marriage license application and marriage license, established that someone giving the same name, Marsha Ann Torres, and the same birth date was issued a marriage license on April 26, 1994, to marry one Klever Gavilanez. Mr. Gavilanez, who indicated that he was an “operator,” was born in Ecuador on March 9, 1971. Both individuals gave their address as 1722 Himrod Street, Brooklyn, New York. The handwriting and signature on the 1994 application is similar, although not identical, to the signature and handwriting of respondent.

At the hearing, Ms. Torres steadfastly and emotionally contended that she was never married and sought to appeal the Clerk’s denial of her license as a matter of fairness. She testified to a series of past hardships, suggesting the marriage license denial was only the most recent. She and her sister were orphaned when she was four years old when her biological parents committed suicide. The two sisters were sent to live with foster parents, Audelia and Arcadio Torres, who later adopted them. When still an adolescent, Ms. Torres was sent away to a group home. Ms. Torres testified that, as a young adult, she was in and out of prison for drug possession. Around 1988, she went to live with a boyfriend in the Bronx and remained in the Bronx for a number of years. Respondent was uncertain where she was living in 1994. For the last ten years she has been living in Brooklyn with the man she wishes to marry. This man is an invalid and Ms. Torres believed that the marriage would give him additional medical benefits. Other than the marriage license denial, Ms. Torres was unaware that her identity was ever stolen or utilized by anyone else.

Ms. Torres submitted prison records (Resp. Ex. C) for an inmate named Marsha Morey with a NYSID number of 94G1161 and a birth date of November 18, 1972. Ms. Torres stated that, although Marsha Ann Torres is the name on her birth certificate, these inmate records were, in fact, hers. She indicated that Morey was her biological father’s name and she used this name at her arrest to avoid having her criminal history known. The inmate records for Ms. Morey showed that she was convicted for the felony sale of illegal drugs and entered a New York State prison in August 1994 and again in April 1996, both dates giving her residence as the Bronx. She was eligible for release in November 1996.

Both respondent’s grandmother, Mary Smith, and her sister, Michelle Torres, testified that they were unaware that respondent had ever been married. At the same time, neither could remember where respondent was living in 1994 or how often they saw her during that period. Ms. Smith indicated that she saw respondent only when she came to her to demand money for drugs. Michelle Torres indicated only that she and her sister were close. According to Ms. Smith, respondent went to live with Ms. Smith in her Chelsea apartment after one of her periods of incarceration. Respondent produced a 1998 bank statement (Resp. Ex. D) for an account in the name of Ms. Smith “for Marsha A. Torres.”

Respondent also produced Department of Buildings records (Resp. Ex. B) showing that 1722 Himrod Street is not a valid address.

Respondent’s assertion that she was not issued the 1994 marriage license rested entirely upon her own testimony. It was apparent that, wherever respondent was living in 1994, her drug use and criminal problems had alienated her sister and her grandmother and that was entirely conceivable that she may have been issued a marriage license without their knowledge. The fact that the groom on the 1994 application was born in Ecuador suggests that one possible motive for a marriage may have been citizenship for the groom and monetary compensation for the bride. The fact that the bride and groom gave an invalid street address may undermine their truthfulness, but does not go to the issue of whether respondent’s identity was stolen.

Respondent herself was not a credible witness. She admitted to having a felony record and to having given a false name and birth date at prior arrests in order to avoid having her complete criminal history known. She submitted a birth certificate which listed her parents as Arcadio Torres and Audelia Vazquez, even though respondent testified that her biological father was named Morey and that the Torreses were her foster parents. None of her documentary proof corroborated her contention that her identity was stolen and it was unclear how using respondent’s identity would be a financial advantage to anyone else. When given a further opportunity to supplement the record by providing proof that she was actually incarcerated on the date the 1994 marriage license was issued, respondent submitted nothing.

On the other hand, other evidence indicated that respondent was the same Marsha A. Torres who was issued the 1994 license. According to the application, the woman who applied for the 1994 license produced a copy of respondent’s birth certificate. Although no expert testimony was offered comparing the 1994 signature with respondent’s handwriting, I observed that respondent’s current handwriting looks similar to the handwriting on the 1994 signature, with only slight variances in the shaping of the letters. The only prominent difference is that the 1994 signature has a lower case “a” for the middle initial and the lower case “t,” while respondent’s signature has upper case letters. Such a variation could be the result of handwriting evolving over time. It also seems conceivable that, either in 1994 or in some of her more recent handwriting samples, respondent was trying to alter her signature.

Under the Clerk’s rules, “[t]he City Clerk shall have the burden of demonstrating by a preponderance of the evidence that the applicant should not be granted a marriage license.” In this case, based upon the evidence presented, I find that respondent’s application was properly rejected because it was more likely than not that respondent was the same individual who was issued a marriage license in 1994. Respondent’s appeal should be denied and petitioner’s rejection of her application should be affirmed.

John B. Spooner

Administrative Law Judge

April 12, 2007

SUBMITTED TO:

VICTOR L. ROBLES

City Clerk

APPEARANCES:

PATRICK SYNMOIE, ESQ.

Attorney for Petitioner

MARSHA ANN TORRES

Pro Se

[1] According to petitioner’s counsel, the original application submitted in 2005 has been lost.