(dissenting in part). I disagree with the majority’s determination of several issues and therefore respectfully dissent in part. In my view, the casting and canvassing of the ballots in Yates County was ongoing when Justice Harvey granted the stay on February 11, 2000, and therefore the ballots *968canvassed on February 18, 2000 should be counted in the special election for the 129th Assembly District held on February 1, 2000 (see, Election Law § 9-209 [2] [d]; cf., Matter of Luck v Fisk, 243 AD2d 812, 813, affd 90 NY2d 979).
I also disagree with the majority’s conclusion that the ballots of three voters should not be counted because they marked their ballots outside the voting square, thus rendering their ballots void pursuant to Election Law § 9-112 (1). With respect to the Livingston County voter thus disenfranchised by the majority, I conclude that it is clear from the ballot for whom the voter intended to cast her ballot, because she correctly marked the small box above the candidate’s name in addition to marking (technically incorrectly) the large box to the right of the candidate’s name (see, Matter of Morphy v Wade, 208 AD2d 1039, 1040, affd for reasons stated below 84 NY2d 900). I note that a ballot marked in a nearly identical way was counted for respondent Samuel J. Casella without challenge. With regard to the majority’s determination to disenfranchise two Yates County voters, I likewise conclude that it is clear from the ballot for whom they intended to vote, because they too marked the large box directly adjacent to the candidate’s name. In any event, I would find that the design of the ballot rendered it “susceptible to construction by the average voter as an invitation to note his voting mark in either” the small box or the large box (Matter of Weinberger v Jackson, 28 AD2d 559, affd on opn below 19 NY2d 995). Those three ballots therefore should be counted.
In all other respects I agree with the majority’s determination. (Appeal from Order of Supreme Court, Ontario County, Harvey, J. — Election Law.) Present — Pine, J. P., Hurlbutt, Kehoe and Lawton, JJ. (Filed Mar. 17, 2000.)