State police have charged state Assembly candidate Robert J. Smullen of Johnstown with first-degree filing a false instrument, a felony.
Smullen, 49, a Republican running in the 118th Assembly District, is accused of filing false veteran tax exemption paperwork with the town of Niskayuna for the purpose of receiving a tax reduction intended only for primary residences. Smullen owns a home at 2169 Appletree Lane.
Smullen was simultaneously receiving the primary-residence-only property tax exemption on his residence at 265 Route 309 in the town of Johnstown, which he first filed in 2009.
The stakes of the criminal charge are high for Smullen and his campaign for Assembly. New York state law says that no one convicted of a felony may serve in the state Legislature. Smullen, a retired marine colonel, has admitted he filed for the primary-residence-only combat military veteran tax exemption on more than one residence, but says it was a mistake and he had no intent to commit property tax fraud.
"I don't recall even reviewing or signing the paperwork at this point. There's a sea of bureaucratic paperwork that goes into this," he said. "I've moved all over the place. I've been lots of different places. I don't recall that particular group of paperwork. It had to do with the purchase of the house in Niskayuna, and I made a mistake, and when the mistake was pointed out, I immediately corrected it."
The Daily Gazette reported on May 3 that Smullen had been receiving the exemption on both his homes for a period of about two years and 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 indicated Smullen has paid his back taxes, and town officials say the money he owes Niskayuna and Schenectady County will included on his next property tax bill. Smullen said he intends to fight the felony charge in court and he will not withdraw from the Sept. 13 Republican primary for the Assembly district.
"I'm seeking representation and I fully intend to see this through in a court of law, and I am sure I will prevail," he said. The complaint against Smullen was brought to the state police by Johnstown Town Board members Don Vanduesen and Timothy Rizzo and Smullen's Republican primary opponent Patrick Vincent of Cold Brook.
Vincent said he's been calling for a criminal investigation of Smullen since the double tax exemption was exposed.
Inherent in the charge against Smullen is the assumption that he was not a resident of Niskayuna when he filed for the tax exemption there. Vincent has called into question whether Smullen has been a legal resident of the 118th Assembly District for the 12 months necessary to run for office.
Vanduesen said his purpose in bringing the complaint to the state police was his belief that Smullen was defrauding the town of Johnstown out of property tax money. Vanduesen has said he believes Smullen was living in Niskayuna and not Johnstown during at least some of the time period that he had claimed the primary residence tax exemption in both locations.
Vanduesen, a retired Gloversville police chief, said he understands why the state police made the charge against Smullen for Niskayuna, but he still thinks Smullen owes the town of Johnstown money. "I recognized, through my experience obviously, that a crime was committed here. I still believe there was a crime committed in the town of Johnstown for tax dollars that he was getting at the same time he was getting Niskayuna tax dollars, so I took all of my information – the same information I tried on a couple of occasions to bring to the [Johnstown Town] Board and was rejected – I took it to the state police for an independent investigation, and an eye on it and for them to do the right thing," he said.
"When he applied the original paperwork in 2009 in the town of Johnstown, he was well entitled to that benefit, but in 2016 when he filed the paperwork in Niskayuna, he should have relinquished the exemption immediately in the town of Johnstown, which he did not do until two years later when it was brought to light in his campaign. He was not charged with larceny or anything like that, but I still believe he owes the town of Johnstown money.
Rizzo said another issue has come to light regarding Smullen's property, which is that it may not have been properly subdivided after a second dwelling was built on it. He said the Johnstown Planning Board approved two different subdivisions for Smullen's Johnstown parcel, one to carve off a solar farm, which would have substantially increased his property tax liability had it not been subdivided, and another that would have removed the original home on the property.
In a written statement released by Smullen after state police published the criminal charge against him and his mug shot Tuesday, he blasted Vincent as being primarily responsible for the charge: "This week, Patrick Vincent's assault on veterans hit an all-time low. I am disappointed at the level which my opponent will stoop to in trying to win an election, but should expect nothing less than dirty politics from someone like Vincent. The fact that Patrick Vincent would waste taxpayer resources, waste the time of our hardworking law enforcement personnel, and attempt to turn the state police into a political weapon is utterly despicable."
Vincent responded to Smullen's claim. "Mr. Smullen attacks me for attacking veterans. I didn't attack veterans. He used the Veterans Administration letter to fill out for a veterans exemption on a house he didn't live in. He used the Veterans Administration to break the law. That's why that letter is so important," he said.
Smullen said he also filed a complaint with state police alleging that a staff member from Vincent's campaign had been following him and had harassed him at a Stewart's Shop. "They did not want to hear my complaint," he said of the police.
Smullen has argued that he is a lifelong resident of Fulton County who has maintained his voter registration at his parent's residence at 307 Willie Road since he first entered the military. Smullen has said repeatedly that he believes he meets all of the legal requirements to run for the 118th Assembly District.
After being arrested, Smullen was processed and released with an appearance ticket returnable to Niskayuna Town Court on Aug. 8 at 6 p.m.