As a result of the adoption of the status quo by the enactment of the new CPL, the Administrative Board, recognizing the problem, pre-empted the field and promulgated its own rules (22 NYCRR 29.1-29.7). Generally, these rules provided that 90 days after arrest for any offense other than one of <mask>, a defendant held in custody who had not been brought to trial would be entitled, upon application, to release on bail or on his own recognizance; and that upon the expiration of six months without trial, a defendant would be entitled to dismissal of the accusatory instrument (Supplementary Practice Commentary, *15McKinney’s Cons. Laws of N. Y., Book 11A, CPL 30.30, 1972-1973 Annual Pocket Part, p. 14). The rules did not recognize any excuse for delay regardless of circumstance.


If the defendant had proceeded without calling any psychiatric witnesses, the People, having rested their case, could have been precluded from calling expert witnesses in rebuttal. (See Richardson, Evidence [10th ed], § 459; CPL 260.30.) The defendant, however, elected to call a psychiatrist as a witness in support of his insanity defense. This psychiatrist testified that, in his opinion, at the time he killed his sister, the defendant did not appreciate either the nature and consequences of his conduct or that it was wrong. According to this expert, due to organic brain damage, the defendant suffered an episode of Penfield’s Automatism during which he had no control over his actions and involuntarily killed his sister. The prosecution then called three psychiatrists, in rebuttal, who testified that they found no evidence that the defendant had the type of localized brain damage which could have triggered Penfield’s Automatism. These experts stated that this is a type of epileptic seizure during which the individual behaves in a robot-like manner and performs aimless, undirected acts of which he has little, if any, recollection, and that the defendant’s conduct and detailed recollection were inconsistent with such an episode. They were of the opinion that at the time of the <mask>, the defendant knew and *392appreciated the nature and consequences of his conduct and that it was wrong.


The powers and duties of the coroner as set forth in article 17-A of the County Law (especially §§ 671, 673, 674, 675 and 678) would not be consistent with the respondent’s interpretation that “portable object[s]” refer only to portable objects found “in the vicinity of the body” or are restricted to physical items, such as knives, guns, etc., involved in a <mask>. By no stretch of the reading of the sections herein can such a conclusion be interpolated. The coroner in the course of his investigation is not restricted by statute with the sole and specific responsibility for viewing and examining the body only. As a matter of fact, a reasonable reading of the article leads to quite the opposite conclusion. The only test being that everything be done to investigate which will reasonably assist in establishing the cause of death or to determine the means or manner of death. It is utterly ridiculous to believe that the intention of the Legislature of this State was to allow coroners and/or their medical examiners to examine bodies and prevent them from using whatever reasonable written materials and records which could assist them to more accurately and definitively accomplish their stated task and duty.


The Court of Appeals in Ingram (supra) drew upon the reasoning of Dean Wigmore with respect to the probative value of subsequent similar acts upon the issue of intent. Wigmore indicated that there is no fixed rule regarding the similarity of the subsequent events: "a correct application of the principle would receive any evidence of the sort which conveys any real probative indication of the defendant’s intent.” (2 Wigmore, Evidence § 363 [2] [Chadbourn rev 1979].) Here, the People’s proof of the third Mississippi <mask> contains the defendant’s express admission that he and Goodman went to the victim’s house to kill him. This evidence is exactly the type of substantive probative indication of the defendant’s intent contemplated by Wigmore and the Ingram court. Accordingly, evidence of this third Mississippi homicide will be admissible on the issue of the defendant’s shared intent to kill.


Defendants argue here that audiotapes and worksheets prepared by the OCME, and kept within that agency’s custody, are constructively within the People’s possession, because the OCME performs a "prosecutorial function” in that it generates material "during the course of the primary criminal investigation”, and it is therefore a "vital part of the prosecutorial team” in <mask> cases. Defendants also argue that the local prosecutor has been given statutory access to, and thus control over, prior statements of prosecution witnesses contained in material generated by the OCME as part of a homicide investigation. We find neither argument persuasive.


On the trial the defendant took the stand and stated that he lived for four years in Springfield, Massachusetts, prior to taking up his residence in Troy, lie also stated that he was in Springfield, Massachusetts, on the Gth day of April, 1908, and Avas not in Troy on the excelling or night of the <mask>, lie gave his evidence through an interpreter, asserting that he could not speak English. lie also denied that he had made any confessions as testified to by the xvitnesses for the People. His testimony xvas incredible and against the overwhelming Aveight of evidence. The only other witnesses sworn for the defense Averc Joseph and Mary Misisco, avIio testified that in the early part of April the defendant called at their 1 louse in Troy and asked if he could get a room for the night; they Avere unable to fix the precise date and their testimony is of no value.


First, the court reported that apart from automobile homicides he found not one conviction in New York for a “ lawful act” <mask>. Second, he found that automobile homicides, almost without exception, involved “ unlawful acts”, such as drunk driving, reckless driving, speeding, etc. Third, even in unlawful act homicides most courts require proof of such a degree of negligence ■ — “ culpable ”, or “ criminal ”, or “ gross ” as to be the equivalent of criminal intent. Fourth, he found that “ In addition to knowledge of risk creation there must be conscious disregard of a substantial and unjustifiable risk, which in terms of the culpable negligence manslaughter statute, means a risk that death or serious bodily injury will probably (as distinguished from possibly) ensue ” (11 Misc 2d 219, 236). Fifth, “ a person engaged in performing a lawful act is ordinarily not conscious of creating a substantial and unjustifiable risk. Ordinarily therefore, a greater degree of proof of conscious risk creation will be necessary ” (p. 237). The court summarizes the results of his obviously vast research when, *50referring to what the triers of the fact must find, he states: “ The jury will then be required to determine whether or not the defendant was actually and consciously aware of the fact that by his acts or his omissions he was creating a risk; that the risk created was both unreasonable and unjustifiable under all the circumstances established by the evidence; that for a risk to be both unreasonable and unjustifiable it must involve conduct so highly culpable and blameworthy as to be tantamount or equivalent to an intent to injure another; and that the defendant in disregarding such a risk knew or should have known that the probable (as distinguished from possible) consequences of his conduct would result in death or serious injury to another. And, of course, that all this must be established beyond a reasonable doubt ” (pp. 241-242).


Although at some point in the investigation some member of the <mask> squad instructed the police property bureau to hold the recorder and recording as evidence, it is clear that the initial instructions, for whatever reasons, by the detective responsible for the murder scene was to the effect that the recording device and its recorded contents were to be returned to the estate of the deceased. For no apparent reason, however, on May 19, 1984, after the arraignment of the defendant, and after defense counsel had called for the preservation of all recorded conversations, the tape recorder and the cassette recording contained therein were publicly auctioned by the property bureau.


¶16 The court of appeals in Slover addressed whether a victim’s attorney fees could be ordered as restitution in a criminal case. 220 Ariz. at 242 ¶ 1. Slover was convicted of negligent <mask> and DUI after his passenger died in a rollover accident. Id. ¶¶ 1–2. On appeal, Slover challenged the restitution order requiring him to pay attorney fees incurred by the victim’s wife during the criminal proceedings. Id. ¶ 4. The victim’s attorney essentially “acted in the role of an adjunct prosecutor, ‘prodding’ the state to pursue the case and apparently assisting it with the prosecution.” Id. at 243 ¶ 8. The court of appeals disallowed the fees because they did not flow directly from the criminal conduct but instead “arose from either the state’s inability to prosecute the case independently and competently or the wife’s mistrust that it would do so.” Id. The court concluded that the victim’s attorney fees were “consequential rather than direct damages arising from Slover’s crime.” Id. The court left for a future case whether attorney fees incurred by a victim to “assert a concrete right under the Victims’ Bill of Rights” could be recovered as restitution. Id. ¶ 9.


Before conducting the lineup, the police decided to conceal the identities of Carter and Cook from Mr. Greenberg. This is an apparently routine practice (or, at least, not an unusual one) in <mask> lineups conducted at the sixth homicide zone. Moreover, in this case the police investigation had revealed that the defendants had a reputation for violence in the *453community where this crime occurred, and this reputation was known by both Carter and Cook. Indeed, Cook asked that his identity not be made known to the defense attorney. Additionally, Detective Lundun knew that a man named Robert Campbell, who, in October, 1977, had been a complainant in an armed robbery case, had identified Ivan Johnson and another man as the perpetrators of that crime. Johnson, who had allegedly told Campbell not to go to the police, was arrested. On October 30, 1977 (30 days after the alleged murder of Joseph Thomas), Robert Campbell was shot three times as he was about to enter his apartment. Derek Ellis was arrested for this killing before November 15,1977. The alleged motive for the killing was to eliminate Campbell as a witness against Ivan Johnson. (Since that time Ellis has been tried and convicted of murder in the second degree for killing Campbell and is presently serving a 25-year-to-life sentence.) The general facts of the Campbell killing were known by Cook and Carter and they were both fearful. The police also believed that there were other colleagues of Johnson, Ellis and West at liberty at the time of the lineup.


The alleged <mask> occurred 10 years ago in July, 1950. Defendant was taken into custody 9 years thereafter, in July, 1959, when he made two separate statements, one prepared by the authorities and signed by him, the other being oral and transcribed by a stenographer. Although the statements are claimed to be exculpatory, rather than incriminatory, it seems clear from the papers and oral argument that they may be admissible as partial admissions and that the People intend to offer them at the trial.


On October 31, 1997, at about 11:20 a.m., Detective Petrak, recently apprised of defendant’s role in the 1992 robbery, met defendant in the recreation room of the Washington Correctional Institute in upstate New York. After introducing himself, Detective Petrak, in the presence of Detective Hayes, informed defendant, an inmate serving a sentence for an unrelated robbery, that he was investigating “old shootings”, including the drive-by shooting of codefendant Gibson, which defendant had claimed witnessing. After engaging in small talk with defendant, Detective Petrak obtained a written statement and diagram of defendant’s purported observations of the drive-by shooting on the day of the Radio Shack <mask>. Upon concluding the interview at 12:05 p.m., Detective Petrak informed defendant that he might revisit him.


was the day after her daughter’s birthday. Mariscal remem- bered arriving at the restaurant with her daughter and Newman at around 10 or 10:30 a.m. She recalled that Newman went on a supply run around 11 or 11:30 a.m. and that he returned with bread and possibly lighter fluid. She stated that she was not always with Newman while at the restaurant and that he would use the grill located outside of the restaurant. Riley, who worked at the restaurant, testified he and Newman arrived there at 7 a.m. to begin smoking turkeys. Riley stated Newman was at the restaurant all day, except for about 15 minutes around 10 or 10:30 a.m., when Newman went to the grocery store to get feather bones and charcoal. In their depositions, Rosa and Mullen confirmed that they worked at the grocery store, but could not confirm whether Newman shopped there on December 2, 2012. Newman’s trial counsel testified in his deposition that on January 22, 2013, he was appointed to represent Newman. Counsel acknowledged that Newman made him aware of his alibi defense early on and that Riley and Mariscal could con- firm he was either at the restaurant or at the grocery store. In preparing a defense, on April 18, 2013, counsel hired a private investigator to investigate Newman’s alibi defense, as well as Herrera-Gutierrez’ version of events. The investigator was a retired Omaha police officer with 20 years’ experience, including working as an investigator in the <mask> unit. In forming Newman’s defense strategy, counsel planned to rely on the experience of his investigator. Counsel stated that his investigator’s experience working in the homicide unit would aid him in determining whether Herrera-Gutierrez’ description of the shootings was credible. Counsel attempted to obtain receipts from either the grocery store or Newman’s restaurant, but Newman did not provide any. The investigator contacted the grocery store manager and learned that sales records were kept for only 10 days and that surveillance video was kept for only 40 days. - 470 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. NEWMAN Cite as 310 Neb. 463


Harold J. Rothwax, J. The question presented is to what extent must the ultimate cause of death be foreseeable before a person may be charged with criminally negligent <mask> (Penal Law, § 125.10), and what quality of evidence of foreseeability is legally sufficient to sustain a charge of criminal negligence. (CPL 210.20, subd 1, par [b]; 70.10, subd 1.) The facts presented before the Grand Jury are that the defendant (approximately 30 years of age, 5 feet, 10 inches tall and heavyset) struck the deceased (54 years old, 5 feet, 6 inches tall and weighing a slight 80 pounds) once with the back of his hand, thereby fracturing the deceased’s jaw and causing him to fall. The deceased, who had been drinking, possibly to excess, apparently struck his head on an angular object when he fell; suffered contusions and hemorrhage of the brain; was hospitalized; developed pneumonia and died six days later. In the medical examiner’s opinion, the immediate cause of death was not the slap, but was the *186brain hemorrhage, probably caused by a fall onto an angular object.


There is obviously a difficulty in the practical application of the distinction between those acts and omissions for which the municipality may be liable, on the ground that the act or omission is that of its servants or agents, as attempted to be expressed by Mr. Dillon, and those for which it is not liable ; and yet that there is a distinction between those acts or omissions of certain classes of officers who are appointed and controlled by a municipal corporation, and for which the municipality is liable in damages, and those for which no such liability can be alleged, is obvious to the common understanding. The attempt to hold a municipal corporation responsible for the shortcomings or negligent performance of their duties by the policemen of a city, is denied by the common judgment of men, without, perhaps, the ability to put into clear language the grounds upon which the case is to be distinguished from those, in which it is generally conceded that the municipality is responsible for the due and proper performance of the duty devolved upon the agent. This difficulty has been presented in various judicial examination's of the subject, where the decision has been adverse to the liability of the city, and yet the attempt to express in precise language the difference between the cases in which the maxim respondeat superior applies and cases to which it has no application, is not altogether satisfactory. In Stewart v. The City of New Orleans (9 Lou. Annual Rep. 461), a detachment of the police officers of the municipality was ordered by its chief to suppress unlawful assemblages of slaves in cabarets. In the performance of this duty they entered a dram-shop in which the slave of the plaintiff was found. The slave attempted to escape, was pursued and overtaken by the watch, and in capturing him they inflicted wounds of which he subsequently died. It was shown *405that be might have been arrested without the <mask>. The action being brought in one of the District Courts of New Orleans, the plaintiff there recovered, but the judgment was reversed by the Superior Court by a divided bench. In that case Judge CaMpbell, delivering the opinion of the majority said: “ The judgment, we think, is erroneous, and the error results from a failure in the application of the principle to make the proper distinction between the liability of a municipal corporation for acts of its officers, in the exercise of powers which it possesses for public purposes, and which it holds as part of the government of the country.”


*684It is clear that the statement in the memorandum, that there was suspicion that plaintiff was involved in the death of Dr. Shapiro, was pertinent to the issues to be determined at the departmental hearing. The statement, inaccurately designated by plaintiff as a finding, has some relationship to the third specification, charging the making of "false statements during an official <mask> investigation”. The investigation referred to was the State police investigation into the death of Dr. Shapiro. The fact that plaintiff was found not guilty on that specification is not dispositive. Moreover, as noted by Judge Weinfeld (404 F Supp 719, 720, supra) , "The statement * * * if anything, tends to exonerate plaintiff of any implication in the homicide.”


The People point out that CPL 30.30 (3) exempts from statutory speedy trial requirements any "criminal action” in which a defendant is accused of <mask>.3 CPL 1.20 (16) provides that a criminal action: "(a) commences with the filing of an accusatory instrument against a defendant in a criminal court * * * (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument * * * and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.” In People v Osgood (52 NY2d 37, 44 [1980]), the Court of Appeals applying to the term "directly derived” its ordinary meaning of being traceable to originating from, held that an indictment charging the defendant with the same crimes contained in a previously dismissed felony complaint was "directly derived” from the complaint. (See also, People v Colon, 76 AD2d 805 [1st Dept 1980] [commencement date for speedy trial purposes of count of superseding indictment charging conspiracy, which was not included in original charges, was same as for counts previously charged]; People v Ramkisson, 114 Misc 2d 535 [Sup *286Ct, NY County 1982] [indictment including crimes charged in felony complaint was "directly derived” from complaint even though it included other crimes].)


“In construing statutory language, courts must ‘take the statutes as they find them and * * * [may not extend] their operation beyond the bounds of the legislative intent’. (McKinney’s Cons Laws of NY, Book 1, Statutes, § 73.) The plain, natural meaning of the language and import of penal statutes must be followed” (People v Walker, 120 Misc 2d 235, 238; Penal Law § 5.00; People v Ditta, 52 NY2d 657, 660). In defining when a motion to dismiss must be granted, pursuant to CPL 30.30 (1) (a), the language of the statute unequivocally makes direct reference to “a defendant”. Indeed, subdivision (3) (a) specifically removes an entire class of defendants (those charged with certain <mask> offenses) from CPL 30.30 protection. Neither subdivision (1) nor (3) of CPL 30.30 makes any reference to a defendant charged with a felony but joined on an indictment with a codefendant charged with an excluded homicide offense. It is reasonable to believe that this omission by the Legislature was intentional (McKinney’s Cons Laws of NY, Book 1, Statutes § 74).


This court cannot agree. No evidentiary hearing is required. On June 12, 1978 a lineup was attempted, but was aborted when defendant appeared with a full beard and refused to shave. If in fact the perpetrator of the <mask> did at the time of the act, have a beard, an order that he shave would inure to his benefit. On the other hand, if the perpetrator was clean shaven at the time, this court is of the opinion that it may direct that the defendant shave and appear at a lineup for the reasons stated below.


The defendant then asked the detectives if he could continue writing the statement that he had started prior to leaving the interview room. The detectives conferred with an assistant district attorney from the <mask> bureau who told them to allow the defendant to continue writing if he wanted to, but not to ask him any questions. The detectives therefore returned the paper and pen to the defendant and permitted him to complete his statement. The detectives knew that the defendant had written one full page and started a second before he asked for an attorney. Yet, it was not established how much defendant had *933written on the second page. Upon finishing his statement, the defendant signed it. This statement was translated by a Russian-speaking detective and sought to be admitted into evidence by the People.


Thus, the probative value of this evidence was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. The trial court did not abuse its discretion in admitting evidence of defendant’s prior <mask> conviction. D. The “Shotgun Video” Defendant objected to the admission of the “shotgun video” extracted from a cell phone which depicted defendant firing a shotgun. Defendant’s objection was based on Evidence Code section 352. Defendant asserted that, “given the nature of the charges in this case and given that the video clip showed him firing a gun, it would be unduly prejudicial to” him. The court allowed the video to be played for the jury. The court later explained that it did so because it saw the issue in this case less whether defendant a fired a gun and more what his intent was. The court also found that, while the video had “some prejudicial impact,” it was less prejudicial than the court had anticipated and determined that its prejudicial effect did not substantially outweigh its probative value. On appeal, while defendant asserts the admission of the video was error, he does not offer substantive analysis in support of his contention. Instead, he merely recites the background, including his objection before the trial court and the trial court’s ruling. He offers no analysis of the issue, nor any citation to authority supporting his position. “ ‘ “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.” ’ ” (People v. Leonard (2014) 228 Cal.App.4th 465, 478, quoting Denham v. Superior Court of Los Angeles (1970) 2 Cal.3d 557, 564.) “It is the appellant’s burden to demonstrate the existence of reversible error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.


The facts of this case are not complex. On April 24, 1977, a knife was thrust several times into the body of one Charles Gerald, occasioning a sudden loss of his blood, resulting, in turn, in his untimely demise. On the same date, the defendant was arrested by the police for this <mask>. The police had obtained her spontaneous confession and statements by eyewitnesses that she fatally assaulted the deceased while he was combing his hair in the bathroom.


However, as the People also acknowledge, dissimilarities are important in analyzing the serial murder allegation: Victims: *218One victim was a 16-year-old African-American male. Three were 19- to 20-year-old male Hispanics. Instrumentalities: A .45 caliber handgun, a .357 caliber handgun, a .25 caliber handgun and a 12-gauge shotgun. Motives: One contract shooting that began as a kneecapping and resulted in a <mask>; one unplanned victim who was a companion of the contract shooting victim; one drive-by shooting as revenge for an earlier robbery committed by the victim and one shooting driven by the defendant’s desire to locate a former girlfriend. Defendant as Shooter: The defendant is alleged to be the shooter of the companion to the contract shooting victim and in the drive-by shooting. An unindicted accomplice is alleged to have shot the contract victim. The People are unsure if the defendant shot or commanded the shooting of the fourth victim. Wounds: One with shotgun wounds to the neck in the drive-by; one with multiple gunshot wounds to the head, abdomen, chest and neck; one with multiple gunshot wounds to the head, chest and hip; and one with a single shot to the head whose head thereafter was covered with a plastic bag. Location: Two on a public sidewalk during the same incident; one as he sat in a car on a public street and one in the defendant’s basement while handcuffed and blindfolded.


The defendant and several of his brothers are ranking members of the Vigilantes. Fifteen <mask> investigations in which Vigilante members are suspects are presently in progress. Eight known Vigilantes are under indictment for murder, including the defendant. The organization has a policy, known to its members as well as others, *392called “process elimination”. That policy is to kill potential witnesses who co-operate with the police against them. As an active and high-ranking Vigilante, the defendant was aware of this policy.


Doctor Pasquale determined the cause of death to be “asphyxia and hypothermia due to environmental exposure to cold temperature” and the manner of death to be <mask> (grand jury minutes, Apr. 11, 2007, at 14). “Homicide” was later defined by the ADA as, “any conduct which causes the death of a person under circumstances constituting Murder, Manslaughter in the First or Second Degree, or Criminally Negligent Homicide” (grand jury minutes, Apr. 12, 2007, at 8; see Penal Law § 125.00).


In Dr. Baden’s opinion, the opinions and conclusions of Dr. Rubio were inconsistent with some of her findings. By way of example, Dr. Baden noted that the cause of death listed in Brittney’s autopsy report was multiple brain injuries due to rotational forces (shaken impact baby syndrome) <mask>. Rather than multiple brain injuries, however, Dr. Baden noted that there were no brain injuries other than the two that he had previously referenced in the back of the brain and the front side of the brain, which “are classic for a fall and don’t support the concept of shaken baby. And there is no subdural hemorrhage, which is part of the importance of the shaken baby that she describes.”


We need not determine if Lozano's calculations are correct, because her argument rests on the faulty premise that the only remedy for the asserted Eighth Amendment violation is resentencing her to no more than 26-years-to-life for her conviction of first degree <mask> with special circumstances. Montgomery , as we have explained, permits the states to remedy a Miller violation by providing meaningful parole consideration-as afforded by SB 394-rather than resentencing. Moreover, the sentence cap of 26-years-to-life urged by Lozano is not required by the Eighth Amendment. (See People v. Garcia (2017) 7 Cal.App.5th 941, 949-50, 213 Cal.Rptr.3d 217 [juvenile sentence of 32 years to life does not violate the Eighth Amendment]; People v. Perez (2013) 214 Cal.App.4th 49, 57, 154 Cal.Rptr.3d 114 [no case has been cited in which a court struck down a juvenile's sentence as cruel and unusual where "the perpetrator still has substantial life expectancy left at the time of eligibility for parole"].)


Edward C. Alfano, J. Defendant has been indicted for felony murder1 (two counts) (the underlying felonies are robbery and burglary) and one count of intentional <mask>. Defendant’s confession indicates that at the time of the homicide he was “high” on drugs. In its jury charge this court did not charge intoxication as to felony murder, but did charge intoxication as to intentional murder. The court wishes to expand on its rationale.2


The defendant was admitted to the Utah State Hospital on January 30, 1979 and was seen by Mr. Jensen on January 31, 1979. The purpose for Mr. Jensen seeing the defendant on that day was to obtain a social history for inclusion in the report to the court. The defendant related his general social history covering his family and other involvements with the legal system since his childhood. The defendant related that there was another crime that he was concerned about that he wanted to get cleared up, and left the impression with Mr. Jensen that he had committed a rape-<mask>. He asked Mr. Jensen as to what degree of confidentiality there would be if he were to relate any specific facts. Mr. Jensen told him that there was no complete confidentiality. The defendant wanted Mr. Jensen to check further. Jensen talked with his supervisor who consulted with the Assistant Attorney-General of the State. On February 1, 1979, Jensen passed the information back to the defendant that on a capital offense there would definitely be no confidentiality. The defendant told Jensen that he wanted to get his life straightened out and that he would want to talk to his wife.


Their restriction of the idea of “ necessarily included ” crimes to those of generic likeness foils the so-called “ lesser included offense exception ’ ’ to the ‘ ‘ same evidence test ’ ’8 and arrays New York with the jurisdictions denying that jeopardy of conviction of the foundational felony is involved in a prosecution for that type of <mask> (see, e.g., Southworth v. State, 98 Fla. 1184, 1188-1189; Harris v. State, 193 Ga. 108, 118 and authori*503ties cited; People v. Andrae, 305 Ill. 530, 535; Centers v. Commonwealth, 318 S. W. 2d 57, 58 [Ky.]; State v. Rodgers, 100 S. C. 77, 82; State v. Barton, 5 Wash. 2d 234, 238, 240; contra, People v. Miccichi, 264 Mich. 581, 583; State v. Cooper, 32 N. J. L. 361, 372, 373, 375; State v. Carlson, 5 Wis. 2d 595, 608-609). By reason of the unintended, fatal consequence, the offenses are thought to he elementally different and, as it is said, the test of jeopardy by successive prosecutions “is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.” A “ single act ” may violate two statutes but if one ‘ ‘ requires proof of an additional fact which the other does not, an acquittal or conviction under either * * * does not exempt the defendant from prosecution and punishment under the other ” (Morey v. Commonwealth, 108 Mass. 433, 434). In summary, the “act-offense dichotomy ”9 defeats the plea of former jeopardy. But, apparently, it goes still further.


Although the delay in arresting defendant was indeed substantial, defendant’s claim that the prosecution has not established good cause for the delay is unavailing. Defendant, a thrice-convicted violent felon,2 now stands indicted for the horrific <mask> of Noellis Bayanilla. At 5:00 a.m. on August 6, 1989, the unconscious body of then 17-year-old Noellis Baya-nilla was discovered in the rear courtyard of 2645 Morris Avenue. It was determined that Ms. Bayanilla was thrown off of the five-story building’s rooftop. Ms. Bayanilla sustained massive injuries, including multiple broken bones and internal injuries and, after two days of unimaginable suffering, succumbed to her injuries and died. The New York City Office of Chief Medical Examiner (OCME) found that Ms. Bayanilla sustained major and severe blunt force trauma and ruled her death to be a homicide. From the outset of the investigation, defendant was a suspect, as he was observed the morning of the incident with Ms. Bayanilla both outside 2645 Morris Avenue and then entering 2645 Morris Avenue with her. However, no witnesses observed defendant and Ms. Bayanilla on the roof and no witnesses observed defendant push Ms. Bayanilla off the rooftop. Moreover, no physical evidence recovered connected defendant to the murder, and when defendant was questioned *768by the police he denied murdering Ms. Bayanilla and claimed he was at home at the time of her murder. Due to the insufficiency of the evidence, until 2016, neither defendant nor anyone else was arrested for murdering Ms. Bayanilla. (See affirmation of Assistant District Attorney [ADA] Newton Mendys at 2-3.)


In the case of The People v. Rawson (7 Wend., 417), it was held that the provisions of the statute are merely directory, and a neglect of its provisions is not, per se, sufficient for setting *243aside the verdict. In Ferris v. The People (35 N. Y., 125), the eame doctrine was reiterated in the case of a conviction for <mask> in the first degree, and also by the General Term of the third ¡lepartment in Gardiner v. The People (6 Parker’s Crim. Rep., 157).


So, as I say, going back to the origin of things, gentlemen, it was the intention of the framers of this Code to provide a definition and a punishment for every kind of homicide noit excusable or justifiable; and every kind of homicide not excusable or justifiable which is not <mask> in the first or second degree, or a death ensuing while engaged in a duel, is manslaughter.


A complaint was filed on March 27, 2003, charging defendant with <mask>. An arrest warrant issued, and on March 31, Dudek and Chicoine drove to San Quentin to take defendant into custody. They told him he was under arrest for the murder. Chicoine testified that when the officers first encountered defendant in a receiving area at the prison, he told them "that he had been meaning to call us, that he had already talked to a counselor and that he intended to call us." There had been no contact with defendant since the last interview, but he said "[h]e knew we'd be coming back." Chicoine understood defendant's statements as a reinitiation of the discussion at the end of the March 21 interview, when he had said "he did want to talk to us, he wanted to explain what was going on."


In sum, the evidence before the Grand Jury was insufficient to support a reasonable suspicion that the defendants intended to and did participate in the robbery that led to the <mask>. The inference of guilt does not flow logically from the facts adduced before the Grand Jury. On the contrary, the evidence utterly fails to establish that the defendants were acting in concert with the other two individuals to commit the crimes charged. The indictment must, therefore, be dismissed. (GPL 190.65 [1] [b]; 210.20 [1] [b]; People v Deegan, 69 NY2d 976 [1987].)


“If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause [(OSC)].” (§ 1170.95, subd. (c).) The court then holds a hearing within 60 days to determine whether to vacate the <mask> conviction. (§ 1170.95, subd. (d)(1).) At this stage of the proceeding, the prosecution has the burden of proving “beyond a reasonable doubt[ ] that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at pp. 723-724.) B. Standard of Review We review challenges to the sufficiency of the evidence for substantial evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 658 [“A judgment will not be reversed so long as there is substantial evidence to support a rational trier of fact’s conclusion . . . .”]; see People v. Gregerson (2011) 202 Cal.App.4th 306, 320; see, e.g., People v. Sledge (2017) 7 Cal.App.5th 1089, 1096 [orders denying resentencing under section 1170.18].) In so doing, we examine the entire record in the light most favorable to the judgment below. (People v. Becerrada (2017) 2 Cal.5th 1009, 1028.) We look for substantial evidence, which is evidence that is “reasonable, credible and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt” (People v. Koontz (2002) 27 Cal.4th 1041, 1078; Banks, supra, 61 Cal.4th at p. 804), and we do not substitute our own factual determinations for the factfinder’s. (Koontz, at p. 1078.) C. Major Participant Jackson contends the record lacks substantial evidence to support the court’s finding that he was a major participant. We consider the following factors when determining whether a defendant was a major participant: (1) the defendant’s role in planning the crime that lead to the victim’s death;


Johnson also relies on Trevino, supra , 26 Cal.4th 237, 109 Cal.Rptr.2d 567, 27 P.3d 283 to support his argument that Andrews is not applicable here, but his reliance is misplaced. Trevino held that it is the prior offense that establishes whether the defendant is eligible for the death penalty or a life sentence without the possibility of parole under section 190.2, subdivision (a), and not the particular characteristics of the defendant at the time he committed the offense. (Trevino, at p. 244, 109 Cal.Rptr.2d 567, 27 P.3d 283.) In Trevino , the defendant committed a prior <mask> at age 15 in Texas where he was tried as an adult. (Ibid . ) Had the crime occurred in California he would have been tried as a juvenile and, on appeal, the defendant argued this distinction precluded the use of the conviction as the basis for enhanced punishment under section 190.2. (Trevino, at p. 239-240, 109 Cal.Rptr.2d 567, 27 P.3d 283.) In rejecting this argument, the Trevino court distinguished the statutory language of section 668 from that of section 190.2, noting that "section 668 would permit consideration of a defendant's age in determining whether that defendant could have been imprisoned for the same conduct in California." (Trevino, at p. 241-242, 109 Cal.Rptr.2d 567, 27 P.3d 283.) In drawing this distinction the court pointed to the statutory language of section 668, which provides, " 'Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state.' " (Trevino, at p. 241, 109 Cal.Rptr.2d 567, 27 P.3d 283, quoting § 668.) In contrast, section 190.2 stated, " 'For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.' " (Trevino, at p. 241, 109 Cal.Rptr.2d 567, 27 P.3d 283.) We do not agree with Johnson that this distinction is relevant to the determination in this case. Unlike the defendant in Trevino , Johnson points to no personal characteristic that would have precluded a conviction in California had the murder he committed in Jamaica occurred in this state.


Following the State’s case-in-chief, Defendant Bassett presented Erik Nielson, with no objection from the State, as an expert witness in the field of rap music. Dr. Nielson described the history of the “<mask> ballad,” lyrics that are often violent and include the theme of murder, identifying this type of ballad in varied styles of music, including country music, opera, hard core punk, and folk music. He explained that rap music is a part of the hip-hop culture, but one of many different types of hip-hop expression. He then recounted the history of the hip-hop culture, which began in the South Bronx during the early to mid-seventies when gang activity in this area was prevalent. Dr. Nielson stated that “the explicit purpose of hip-hop was to take a lot of that aggression and territoriality and competitiveness inherent to gang life and to channel it into something artistic and productive.” He explained that this gang history was influential in rap music “because that’s really the sort of - - that’s where it all started, in some senses.”


United States Supreme Court case law has long distinguished between such murders and other crimes against persons, reserving the most draconian sentences for murderers alone. Consistent with the Eighth Amendment, first degree murderers can be executed; defendants convicted of even the most egregious sexual crimes cannot. ( Kennedy v. Louisiana, supra, 554 U.S. 407, 128 S.Ct. 2641 [aggravated rape of a child]; Coker v. Georgia (1977) 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 [armed robbery, rape of an adult woman, and other felonies].) Juveniles who <mask> can be sentenced to life without the possibility of parole, if in fixing that sentence the sentencer has considered mitigating circumstances including "how children are different, and how those differences counsel against" an LWOP sentence. ( Miller, supra, 567 U.S. at pp. 479-480, 489, 132 S.Ct. 2455.) Juveniles who commit non-homicide crimes, by contrast, are categorically exempt from LWOP sentences. ( Graham , supra , 560 U.S. at p. 82, 130 S.Ct. 2011.) Section 3051 flouts this pattern. It makes youthful-offender parole hearings available to intentional first degree murderers after 25 years of incarceration, while categorically denying them to One Strike sex offenders.


The prisoner was thirteen years of age on May 25,1943, when he was indicted for <mask> first degree. He was fourteen when he was permitted to plead to murder, second degree and was sentenced on a judgment of October 19, 1943, to fifty years to life by a judge of this court. The plea was accepted after several days of trial.


Flood, reasonably, then sought further clarification, stating, "We want to continue to talk to you. Do you want to continue to talk to us or do you want to talk to a lawyer?" Guthrie again did not unambiguously invoke his rights, stating only, "If you're gonna charge me, charge me. If not, let me go. Or, or call ... immigration and say I'm here illegally." Flood explained that Guthrie *57was under arrest and that he was being charged with <mask>. The interrogation then continued without any further statement from Guthrie about his rights.


Defendant was not present when the deputy relayed the juror’s request for permission to separate from the rest of the jurors and walk around the corner. Defendant had the right to be present, to hear the juror’s request, and to witness the experiment that was conducted. Implicit in the right to be present is the right to hear what the jury hears and to see what the jury sees (see, People v Morton, 189 AD2d 488, 494, supra; see also, People v Smith, 195 AD2d 265, supra). (Appeal from Judgment of Supreme Court, Monroe County, Mark, J.— <mask>, 2nd Degree.) Present—Denman, P. J., Balio, Lawton, Callahan and Doerr, JJ. *987the street. In reviewing a determination of the suppression court, great weight must be accorded its decision because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous (see, People v Prochilo, 41 NY2d 759, 761; People v Hill, 175 AD2d 603).


Even assuming that the Federal or New York State Constitution imposes a duty upon counsel or the trial court to warn defendant with respect to this particular consequence of his plea, or even assuming that plea counsel misadvised defendant regarding the subsequent use of his factual admissions, defendant’s motion still would fail as he has not established a reasonable probability that he would not have pleaded guilty if warned by counsel that his plea allocution could be used at a subsequent trial for <mask>. Although defendant avers that had he known of the potential prosecution, he would not have pleaded guilty, the favorable sentence he received pursuant to his plea undermines the credibility of this statement. Had he gone to trial and been convicted of both attempted murder in the second degree and bribery in the second degree, defendant faced consecutive terms that could expose him to twice the sentence he was promised under the plea agreement. Thus, it is no surprise that defendant chose to plead guilty. The court therefore rejects as not credible defendant’s claim that he would not have pleaded guilty had he known that his plea allocution could be used against him at a subsequent murder trial. To the contrary, defendant has failed to establish that he was prejudiced by the absence of this advice in plea counsel’s representation.


In that case, the defendant Moran pleaded not guilty to three counts of <mask>, first degree, and two psychiatrists found him competent to stand trial. At that point, he advised the Nevada trial court that he wished to discharge his attorneys and plead guilty. His reason for doing so was to prevent the presentation of mitigating evidence at his sentencing. That is exactly what the defendant Lavalle wants to do.


In its brief the State makes the apparently serious suggestion, although admittedly speculative, that the only recorded visitors for the decedent, namely his father, mother or wife, may have brought him the seconal. If such were the fact, the court would dismiss the claim. There is not a scintilla of evidence, however, to substantiate such statement. Aware, moreover, that these relatives had done everything in their power to help the *365decedent and to see him cured during the many years of his troubles, and having observed the wife and father on the witness stand, the court dismisses such hypothesis, deeming it unconscionable to hold that the parents or wife may have been guilty at best of the practice of euthanasia or at the worst of <mask> for profit.


The court made considerable factual findings mitigating the gravity of the offense. The only finding in aggravation in the record appears to be court's comment a crime "doesn't get much more serious than this when you have an unarmed person shot and killed." Yes, the charge against J.N. is <mask> and the loss of life *235is a grave and serious circumstance, but J.N. was not the killer. The statute does not exclude juveniles charged with murder from consideration for treatment in juvenile court. Yet, this appears to be what the court's thinking was. We cannot say substantial evidence supports the court's finding J.N. was not suitable for juvenile court treatment based on the gravity of the offense. Because we conclude substantial evidence does not support the court's findings in favor of unsuitability, possibility of rehabilitation and gravity of the offense, and there is no dispute the other three factors, criminal sophistication, prior delinquent history, and success of previous attempts to rehabilitate the minor, favored suitability, we must conclude the court abused its discretion by concluding J.N. was not suitable for treatment in the juvenile court.


*940The question is, does this section limit the Attorney-General to the prosecution of persons, corporations, etc., for practices and acts which constitute violations of the statutes against monopolies, that is, to the specifically prohibited acts embraced by sections 340 and 341 of the General Business Law, or does it include other violations of the laws of our State which violations were incidental to and part of the plan or process by which the statutes against monopolies were violated. With complete1 respect for the rule that penal statutes must be strictly construed, the conclusion is inescapable that section 347 of the General Business Law is a legislative grant of great power and authority to the Attorney-General to provide him with adequate means for enforcing the provisions of sections 340 and 341 of the General Business Law. It is urged that the Attorney-General is limited to the investigation and prosecution of violations of sections 340 and 341, all of which violations are misdemeanors. A reading of the first sentence of section 347 clearly indicates no such limitation. It states: “The Attorney-General may prosecute every person charged with the commission of a criminal offense in violation of the laws of this State, applicable to or in respect of the practices or transactions referred to in this article.” (Italics mine.) Had the Legislature intended to limit the powers of the Attorney-General to the prosecution of misdemeanors it could have done so by some appropriate limitation such as “ The Attorney-General may prosecute every person charged with the commission of a violation of article 22 of the General Business Law.” The statute as it stands must be construed to mean that the Attorney-General has the authority to prosecute for any criminal offense in violation of any law of this State, provided that such offense is applicable to or in respect of violations of article 22 of the General Business Law. That is, if the Attorney-General shall find evidence that violations of article 22 of the General Business Law were accomplished by means of the commission of other crimes, then he has authority to prosecute those whose crimes were committed as part of the means, plan or scheme by which violations of such article were effected. Any criminal act done in the furtherance of a violation of such article must be deemed subject to investigation and prosecution by the Attorney - General. To hold otherwise would defeat the very purpose of the act. To illustrate, assume that an investigation by the Attorney-General should disclose that an unlawful monoply in violation of article 22 was accomplished by means of arson, felonious assaults, extortion, forgery, bribery or even <mask>. Can it be said that the Attorney-General is precluded from investigating any or all of such felonies which were the means of creating the unlawful *941monopoly? Is he to cease investigating the moment evidence discloses a felony? Is he precluded from fully pursuing by investigation and prosecution every criminal offense which contributed to the establishment of the unlawful monopoly? „ When the evidence is at hand and immediately available for presentation to the grand jury, must he refuse to proceed because it involves a felony, even though such felony may have been the sole means by which the unlawful monopoly was created? Such questions indicate the absurdity of any such suggested limitation of power and authority. It must be held that the Attorney-General has absolute power and authority to investigate and prosecute any offense which is part of the means by which the illegal practices or transactions condemned by article 22 of the General Business Law were accomplished.


Defendant District Attorney of Westchester argues that the commitment of individuals pursuant to CPL 730.40 (1) is for the purpose of conducting a prompt examination and report as to the person’s need for treatment and confinement and he cites Matter of Torsney (47 NY2d 667) as authority for that *950limited purpose. Matter of Torsney (supra) upholds automatic commitment to the Commissioner of Mental Hygiene of a defendant found not guilty by reason of a mental disease or defect. However, in Torsney, the defendant had been tried and although acquitted, he was found to have committed the crime of <mask>. The Supreme Court allows a difference in treatment between those acquitted of crimes by reason of insanity and those merely charged with crimes. In Jones u United States (463 US 354), the Supreme Court held that one acquitted by reason of insanity may be hospitalized for a period longer than he could have been incarcerated if convicted. Moreover, the standard of proof for determining that such a person is a danger can be a preponderance of the evidence, whereas in a civil commitment it must be by clear and convincing evidence (cf., Addington v Texas, 441 US 418; Jackson v Indiana, supra). The basis for the different treatment, however, is that a person has been found, beyond a reasonable doubt, to have committed a criminal act, therefore demonstrating dangerousness. In a footnote the court stated: "The proof beyond a reasonable doubt that the acquittee committed a criminal act distinguishes the case from Jackson v. Indiana, 406 U.S. 715 (1972), in which the Court held that a person found incompetent to stand trial could not be committed indefinitely solely on the basis of the finding of incompetency. In Jackson there was never any affirmative proof that the accused had committed criminal acts or otherwise was dangerous.” (Jones v United States, supra, at 364, n 12.)


Appellant challenges his attempted <mask> conviction on the basis the trial court improperly instructed the jury on the kill zone theory of liability. In appellant's view, the kill zone theory was not applicable to the facts of his case, and the trial court worded its instruction in a confusing manner that amounted to "gibberish." While the instruction was inartfully worded, it was *565certainly not "gibberish." We believe the kill zone theory was amply supported by the evidence, and appellant could not possibly have been prejudiced by the way the instruction was phrased. We therefore uphold his conviction for attempted murder.2


*952The defendant, a thirteen-year-old boy, was indicted on August 26, 1943, charged with the crime of <mask> in the first degree. Thereafter he pleaded not guilty and was assigned two defense counsel by the court. ITe proceeded to trial on November 15,1943; and on November 23,1943, after seven days of trial, he withdrew his plea of not guilty and entered a plea of guilty to murder in the second degree. On December 6, 1943, he was sentenced to State Prison by Hon. J. Gordon Flannery, then a Judge of this court, for an indeterminate term of from thirty years to life.


As one can only expect, Kerrick’s <mask> has irrevocably upended his family’s lives. One state court found, “[s]ince his murder, his mother’s health has deteriorated. She has been on medication and will not leave the house except for doctor appointments.” State v. Middlebrooks, 995 S.W.2d 550, 554 (Tenn. 1999). Kerrick’s mother suffered a nervous breakdown and repeatedly has panic attacks. Id. She has been unable to sleep at night since his murder. And Kerrick’s brother suffered from mood swings after blaming himself for his brother’s murder. Id. As this ordeal enters its fourth decade, we must not forget that every delay delivers a fresh denial of closure to Kerrick’s family.


The article in question starts on page 1 of the Sunday, November 13, 1994, edition of The Buffalo News. The title of the article is “Suspect Described as City’s Deadliest.” The subtitle of the article is “Johnson Accused of Killing Eight, Trying to Slay 25 in Reign of Terror.” The article starts by describing Danyl “Reese” Johnson as, according to “some police officers,” the deadliest criminal in the history of Buffalo. Johnson was accused of killing 8 people and attempting to <mask> 25 others. The article was prepared in anticipation of his upcoming trial. The article continued on page A-6 of the newspaper, where the title was “Police Classify Man as Remorseless ‘stone killer.’ ” The article quotes police officers as describing Johnson as a “dangerous individual,” while quoting Johnson’s court-appointed lawyer as believing the police and prosecutors to be on a vendetta against Johnson, charging him with every unsolved crime in the City of Buffalo. The article then goes on to describe Johnson’s criminal history and the various allegations contained in court documents. A sidebar article on the same page is entitled “A Trail of Death.” The sidebar article *566contains 18 “bullet” points listing the charges and accusations against Johnson. The 15th point identifies the following accusation against Johnson: “Offering $100,000 for the killing of Buffalo rival, Sid Cottrell and two other people, in May 1992. The slayings never occurred.” In the context of that item, plaintiff bases his lawsuit on the use of the word “rival.”


conviction when an accomplice is killed by a third party rather than by the defendant or another accomplice. [Citations.] “Under such circumstances, the defendant may nonetheless be convicted of <mask> under the provocative act doctrine. ‘[W]hen the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citations.] “In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.” ’ ” (People v. Lee (2020) 49 Cal.App.5th 254, 263–264 (Lee), review granted July 15, 2020, S262459; review dism. and remanded Nov. 23, 2021 in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis).) “Like any other murder, a provocative act murder committed without deliberation and premeditation is murder of the second degree.” (People v. Swanson (2020) 57 Cal.App.5th 604, 616 (Swanson), review granted Feb. 17, 2021, S266262, review dism. and remanded Nov. 23, 2021 in light of Lewis, supra, 11 Cal.5th 952.) While the felony murder rule cannot be used to impute malice when neither the defendant nor an accomplice actually committed the killing, “section 189 may be used to establish the degree of the murder if malice—and therefore murder—is otherwise proved. [Citation.] Thus, a provocative act murder which occurs when a defendant acts with implied malice may nevertheless be first degree murder if it occurs during the course of a section 189 felony.” (People v. Mejia


We conclude that the trial court's instruction defining a "dangerous weapon" to include an "inherently dangerous" object entails the presentation of a legally (rather than factually ) invalid theory. There was no failure of proof-that is, a failure to show through evidence that the box cutter is an "inherently dangerous" weapon. Instead, a box cutter cannot be an inherently deadly weapon "as a matter of law." ( McCoy , supra , 25 Cal.2d at p. 188, 153 P.2d 315.) This is functionally indistinguishable from the situation in which a jury is instructed that a particular felony can be a predicate for felony <mask> when, as a matter of law, it cannot be. Because this latter situation involves the presentation of a legally invalid theory ( People v. Smith (1984) 35 Cal.3d 798, 808, 201 Cal.Rptr. 311, 678 P.2d 886 ), so does this case.


Daniel D. Angiolillo, J. Petitioner represents Carlos Cajigas in the pending trial of <mask> in the first degree and related charges arising out of the death of Kathleen Martyn. Within the criminal proceeding, petitioner has moved for a variety of relief relating to discovery, both within an omnibus motion and in separate motions relating to the Grand Jury presentation and the People’s use of subpoenas to obtain background material relating to defendant Cajigas. This court has issued decisions addressing the requests for relief made by petitioner on behalf of Mr. Cajigas.


The jury retired at 6:31 o ’clock p. m. They returned into court at 2:23 o’clock on the following morning, and the following took place: “ The Court: Mr. Foreman, you say you want a part of the charge read? The Foreman of the Jury: The part of the charge in which you state the law about John Mancini in this case. The Court: All right, the stenographer will read that to you. [The stenographer read as follows] : ‘ They have corroborated what Daniello said and have shown the defendant’s connection with this crime by the witness Mancini. Mancini, you may remember, was the man who testified that he was a partner of Daniello some years ago in the restaurant business, and claims that he was present at one or two of the conferences at Coney Island and elsewhere, and also in the restaurant on Myrtle avenue on the day of the alleged <mask>. Mancini claims that he was in those places, that he heard some of the talk as to the planning of this shooting in Navy street, and that he *654went over to New York with Daniello at the time of the killing of Ferrazano, who is said to have been the third member of the Morello gang to be killed pursuant to this conspiracy. Although there, is no claim that Mancini had a hand in the actual killing of Ferrazano, he appears to have been outside of or near the restaurant with Daniello at the time that two other men went into the restaurant and did the actual killing. The claim of the defense is that Mancini was also an accomplice; that he was a party to this same undertaking and was just as guilty as Daniello. An accomplice, very briefly, is anyone who has a hand in the commission of a crime, where the proof shows that he himself could be indicted for the crime. In other words, the proof has to show, before a jury can find that a witness is an accomplice, that the alleged accomplice could himself have been legally and properly charged with the commission of the offense in question. I have said, as to Daniello, that there is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. But as to Mancini, he does not say that he was a member of the gang or had any hand at all in this killing; that he knew the others; that he went with them more or less and met them here, and that is not denied; but whether or not he was an accomplice in the eyes of the law I am going to leave to you as a question of fact. It will be determined, as I have already indicated to you, by your decision as to whether or not you find on the proof in this case that he (Mancini) could himself have been properly and legally prosecuted for this particular crime. If he could have been, he is an accomplice; if he could not have been, he is not an accomplice. If he is not an accomplice, and you believe what he says, then you might — I do not say you would — find in his testimony corroboration of what *655Daniello said, at least as to some part, tending to connect the defendant with the commission of this crime. ’ The Court: Gentlemen, if that is not all you want, please let me know now. I shall be here all night, and if there is anything you want at any time, if you will let me know, you may come in and have it. [At 2:28 a. m. the jury again retired. At 3:08 o’clock a. m. the jury again returned into court.] The Court: Gentlemen, after you retired, I had my attention called to the fact that the stenographer when he began to read to you began in the middle of a sentence; and in order that there may be no possibility of any misapprehension about it I have asked you to come back. I think it is clear to you what was meant, but he started off as though I had stated it as a fact that there was a corroboration. Of course, you know that I did not state that as a fact. I said that it is for you to say whether there is. I said that the prosecution claims that there was corroboration in the opening part of the sentence which the stenographer omitted to read to "you, and which just preceded the point at which he began. I think it was plain, anyhow, but in the abundance of caution I asked you to come back that I might say that to you. In listening to the stenographer read what I sai'd about accomplices I am afraid that perhaps my definition of accomplice might be misunderstood by laymen. What I am going to say to you about it now is exactly the same in legal meaning as what I did say to you. I said that an accomplice is one who could properly and legally be indicted for the offense in question. That is correct, because no one could properly and legally be indicted unless the proof was sufficient to convict him. You might not know that, however, and I am just going to say that what that meant is that an accomplice is one who could be convicted of the offense charged, and that is equiva*656lent to saying that he could he lawfully indicted, because you cannot find a lawful indictment unless there is sufficient proof to convict. Not being lawyers, however, you might not know that. I am not making any change at all in the legal effect of the charge, but am just explaining to you what perhaps I should have explained in the first instance. I think you will get that clearly. An accomplice is one who himself, on the proof in the case, would be guilty of the offense charged. If he would not be guilty on the proof in the case of the offense charged he is not an accomplice. I hope that is plain.”


*15The defendant was indicted for the <mask> of Willie Turks, a transit worker, who was beaten to death on June 22, 1982. The incident giving rise to the death of Turks allegedly arose when Turks, Dixon, and another person were confronted by a group of people who expressed a desire to have them leave the neighborhood where the events transpired. Dixon is listed as a complainant in the fourth count of the indictment, charging assault in the first degree, and the seventh count of the indictment, charging discrimination under the Civil Rights Law.


A homicide which occurred during the course of a robbery constitutes the crime of felony <mask> (Penal Law, § 1044, subd. 2), and all who participate in the underlying felony are equally guilty of murder. Evidence of the commission of the underlying felony supplied the malice and felonious intent necessary to sustain the charge of murder (People v. Ertel, 283 N. Y. 519).


On July 27, 2017, one day after the bond hearing, Cardenas was indicted in Cause Number 17-07-30100-D for the offense of capital <mask>, alleged to have been committed against Mussett on or about June 12, 2017 in Victoria County, Texas. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through 2017 1st C.S.). That same day, Cardenas was indicted in Cause Number 17-07-30101-D for the offense of aggravated sexual assault and in Cause Number 17-07-30102-D for the offense of burglary with intent to commit a felony, both alleged to have been committed against Mussett on or about June 12, 2017 in Victoria County, Texas. See id . §§ 22.021, 30.02(d) (West, Westlaw through 2017 1st C.S.).


<mask> rule or natural and probable consequences doctrine to petition for resentencing . . . . However, in this matter, [appellant] was not convicted under either of these two theories, but instead was convicted under the provocative act doctrine. . . . The Court of Appeal specifically distinguished provocative act murder doctrine from the felony murder rule. . . . Moreover, provocative act murder requires proof of malice, which distinguishes it from natural and probable cause murder. [¶] [Appellant], therefore, is not entitled to resentencing under Section 1170.95.” Appellant timely appealed.


I fail to perceive any reason why the same opportunity should not exist when they are being detained as material witnesses, particularly in a case where a defendant is charged with the crime of <mask> in the first degree and is represented by assigned counsel, *172who are desirous of ascertaining the truth and are making the application in good faith.


We have recently had occasion to examine this provision of law, in the case of Pierson v. The People (18 Hun, 239). In that case, the language of this section of the Code was invoked to prevent the disclosure by a physician of the symptoms exhibited by a deceased person, on the trial of an indictment against Pierson for the <mask> of the deceased by poisoning. We held, in that case, that the object and intent of the provision of the Code, was the protection of the patient and his representatives against the disclosure of information obtained by a physician in the course of his employment as such, and that it did not prohibit the disclosure of such information when the rejection of the testimony was sought to shield a person charged with the murder of, the patient, in a criminal proceeding against the latter for the alleged crime, and that such a case was clearly not within the intent of the statute, and was, therefore, not embraced by it.


This court's current classification of theft of property goes back nearly four decades to Gustafson v. State , 267 Ark. 278, 590 S.W.2d 853 (1979). There, the court acknowledged that elements of Arkansas Rules of Evidence 608 and 609 are concerned with the distinction between crimes that involve dishonesty per se (e.g., "forgery, perjury, bribery, false pretense and embezzlement") and crimes that do not involve dishonesty per se (e.g., "<mask>, manslaughter or assault"). Id. at 288-89, 590 S.W.2d at 859. So far, so good. Without analysis, however, the court then reached the abrupt conclusion that "theft, as it is defined in the Arkansas Criminal Code, involves dishonesty." Id.


Ark. Code Ann. § 5-10-101(c)(1) provides that capital <mask> is punishable by death or life imprisonment without the possibility of parole. Ark. Code Ann. § 5-10-102(c) provides that first-degree murder is a Class Y felony. Ark. Code Ann. § 5-4-401(a)(1) provides that a conviction for a Class Y felony is punishable by a sentence of "not less than ten (10) years and not more than forty (40) years, or life[.]"


probable consequences doctrine, (2) the petitioner was convicted of attempted <mask> after he or she accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder, and (3) the petitioner could not presently be convicted of attempted murder because of changes to sections 188 or 189 made by Senate Bill No. 1437. As amended, section 1170.95, subdivision (b)(3) states that “[u]pon receiving a petition in which the information required by this subdivision is set forth or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.” Here, McDonald’s case is not yet final, and the amendments made to section 1170.95 by Senate Bill No. 775 became effective starting on January 1, 2022. Thus, we agree with McDonald that Senate Bill No. 775 and the amended version of section 1170.95 apply to his case. (People v. Montes (2021) 71 Cal.App.5th 1001, 1006 (Montes).) Applying the amended version of section 1170.95 to McDonald’s case, we conclude that because convictions for attempted murder are now eligible under section 1170.95 and McDonald checked all the necessary boxes on his standardized form petition, he is entitled to counsel. (Lewis, supra, 11 Cal.5th at p. 957; § 1170.95, subd. (b)(3).) B. McDonald Has Filed a Facially Sufficient Petition McDonald argues that we must reverse the trial court’s order denying his section 1170.95 petition because he has filed a facially sufficient petition. He claims that it is reasonably probable that had he been afforded the assistance of counsel, his petition would not have been summarily denied. The Attorney General concedes that


The defendant is charged in an indictment with attempted *1094<mask> in the first degree (Penal Law §§ 110, 125.27 [1]), attempted aggravated assault upon a police officer (Penal Law §§ 110, 120.11), and criminal possession of a weapon in the second and third degrees (Penal Law §§ 265.03, 265.02). He now moves pursuant to CPL 210.20 and 210.25 for a dismissal or reduction of the attempted first degree murder count to attempted murder in the second degree on the ground that the evidence before the Grand Jury was legally insufficient to establish that the defendant was at least 19 years old at the time of the crime. For the reasons set forth below, the defendant’s motion to dismiss is denied.


*193(See Medina, supra, 46 Cal.4th at p. 922, 95 Cal.Rptr.3d 202, 209 P.3d 105 [a rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of gang assault].) A jury could also reasonably infer that Lanford and Pettie, by participating in the assault on Delgadillo, encouraged Garcia to fire gunshots with the intent to facilitate his commission of attempted <mask>.


Detectives gave Rivera his Miranda warnings. Rivera stated he was aware of his rights in light of prior contacts with law enforcement. He wanted to clear up the matter and admitted being in the area of the February 28 shooting. He told the detectives that “Face” had done it, and he was with “Demon” at the time. Rivera claimed that “Demon” looked like him, and Demon was the one who shot Morales. Rivera recognized Morales from his photograph at the memorial. The detectives told Rivera one of the three <mask> victims was “Scooby,” who was murdered about a week after the Morales shooting in an alley off Second Avenue. Rivera denied any knowledge of the shooting. Rivera professed it would have been


1. The motion to inspect the Grand Jury minutes is denied. (People v. Bergerson, 17 N Y 2d 398; People v. Howell, 3 N Y 2d 672. 2. The motion to direct the People to furnish defendants with a list of witnesses they intend to call is denied in the court’s discretion, as beyond the scope of permissible pretrial discovery. (People v. Spina, 14 A D 2d 505.) 3. The motion to direct the People to furnish a bill of particulars is denied, as seeking matter evidentiary in nature which is not within the scope of permissible pretrial discovery. (People v. Spina, 14 A D 2d 505, supra.) *10484. The motion to furnish defendants with all the prints seized so that the defendants’ experts may examine them for the purpose of testifying at the trial is granted in part and denied in part. The court directs that the District Attorney permit the defendants’ experts to examine the films under the supervision of the District Attorney’s office at a mutually agreeable time. This will permit the defendants to adequately prepare for trial while at the same time insuring that the films will remain in the custody of the District Attorney’s office. 5. Finally, the defendants seek to dismiss the indictments on the grounds of adverse pretrial publicity or in the alternative granting a change of venue to New York County. In support of this motion the defendants attach copies of newspaper articles which appeared in the local papers. Defendants rely on the United States Supreme Court decision in Shepard v. Maxwell (384 U. S. 333). That case involved what has been described as the carnival atmosphere surrounding the celebrated trial of the noted osteopath Samuel Shepard for <mask>. It is concerned more with what went on during the trial, both in and out :of the courtroom, than with the pretrial publicity. The fact situation in Shepard is clearly distinguishable from our fact situation here. Freedom of the press to report the news and to editorialize on the news is protected by the same First Amendment to the United States Constitution that defendants seek to justify in showing of these films. The press in Westchester County has been conscious of and has discharged its obligations to both the citizenry and defendants at the bar in a responsible manner exercising their right to freedom of the press while at the same time recognizing defendants’ right to a fair trial.


. In People v Koerber (244 NY 147), the trial court refused to charge the jury as to the different degrees of homicide and as to the effect voluntary intoxication had on the issue of whether defendant had the intent to commit the underlying felony (robbery). The Court of Appeals reasoned that if the defendant was intoxicated and was unable to form the intent to rob (the underlying felony), a jury could convict of felony <mask> or acquit. Therefore, the ruling of the trial court was held to be error. It held that voluntary intoxication should have been charged so that if the jury found that defendant’s intoxicated condition negatived the intent to rob, the jury having been charged as to the lesser degrees of homicide, would have had the alternative to find defendant guilty of any one of those lesser degrees. Under former law, there existed felony murder and misdemeanor murder. Under present law, this distinction no longer exists. Under present law, as felony murder has no lesser included offenses and a conviction of felony murder will be upheld even though there is an acquittal of the underlying felony, People v Koerber (supra) is no longer the law.


The courts have also frequently affirmed the power to take, preserve and make reasonable use of data for the identification of persons accused of crime. In People v. Van Wormer (175 N. Y. 188, 195), the court said: “After the arrest of the defendants their shoes were taken from them and placed in the footmarks leading to the house of the deceased made in the newly fallen snow on the night of the <mask> by the parties who went to the kitchen door. The shoes corresponded in all respects with the footprints, and the evidence of this fact, against objection and exception of the appellants, was admitted. It is contended that the seizure of the shoes and their comparison with the footprints compelled the defendants to' be witnesses against themselves and violated their constitutional safeguard. This claim is entirely disposed of by the decision of this court in People v. Gardner (144 N. Y. 119).” The same rule, permitting the introduction of evidence concerning footprints which the'defendant had been required to make or which had been made from the shoes taken from him for the purpose of comparison, was applied in Thornton v. State (93 N. W. Rep. [Wis.] 1107), State v. Nordstrom (7 Wash. 506, 35 Pac. Rep. 382), Morris v. State (124 Ala. 44), State v. Fuller (34 Mont. 12, 35 Pac. Rep. 369), Myers v. State (97 Ga. 76), Magee v. State (92 Miss. 865), State v. Graham (74 N. C. 646), Bouldin. v. State (8 Tex. 334), Hahn v. State (73 Tex. 409, and cases cited), Commonwealth v. Pope (103 Mass. 440), and Carlton v. People (150 Ill. 181). In State v. Graham (supra), on a trial for murder, where evidence as to the correspondence in size of footprints found at the scene of the murder and footprints which the examining magistrate had compelled the defendant to make was held admissible, the court said: “ Po fears or hopes of the prisoner could produce resemblance of his track to that found in the corn field.”


Both defendants were arraigned on the assault indictment on October 11, 1995. At that point, the court adjourned the case until October 13, 1995 for bail applications and to give the District Attorney an opportunity to consider whether he would be "undertaking an investigation to determine” if the defendants would be charged with <mask> in the first degree (Judiciary Law § 35-b). This court then contacted the Capital Defender’s Office and advised Mr. Dunn of the above factors and requested that a representative of his office be present on the October 13 adjourned date.


Second, the decision of the Court of Appeals in People v Cahill (2 NY3d 14 [2003]) does not change my view of the relevant paradigm of CPL article 470. In Cahill, the Court of Appeals, inter alla, reviewed two capital <mask> counts and concluded that the weight of the evidence did not support the aggravating or “plus” factors required to elevate murder in the second degree to murder in the first degree (id.; compare Penal Law § 125.25 [1] with § 125.27 [1]), and it thus reduced the conviction of two counts of capital murder to one count of murder in the second degree (Cahill, 2 NY3d at 72). The circumstances of that case, however, were unusual inasmuch as there the Court, in relevant part, considered evidence relative to circumstances in which a “typical” intentional murder under Penal Law § 125.25 (1) punishable by a significant indeterminate sentence leaving open the possibility of parole (see § 70.00 [3] [a] [i]) may be elevated to an “atypical” intentional murder under section 125.27 (1) punishable by, inter alla, death or life imprisonment without parole (§ 60.06). Indeed, in my view, Cahill’s result is borne of its peculiarity, and the Court’s determination that the defendant there committed intentional murder but that the jury was not justified in concluding that he was eligible for the enhanced sentencing (id. at 37-38) does not lead me to believe that we may here reduce a conviction that is against the weight of the evidence to one of a lesser included offense.


And finally, it is obvious on the rather unique facts of this record, that Linville's <mask> prosecution did not in any real sense "harass" her, as might have been the case, for example, had she reasonably expected that the initial charges pressed against her would be the last. To put it bluntly, Linville knowingly tried to "get off on a technicality." She pled guilty to a far less serious charge, lied about her involvement to the probation department before sentencing on that charge, and then immediately turned around and began bragging openly that she had been involved in the killings but could not be recharged and had "got[ten] away with murder."


*5903d. That he was duly charged, examined arid tried for the <mask> of Richard Bowden before a court legally constituted, and upon this trial and examination was duly and legally acquitted of the said murder and felony with which he stood charged, and was adjudged by the court not guilty thereof: To each of which pleas, the attorney for the commonwealth demurred generally, and the prisoner filed a joinder thereto, and the matters of law arising thereupon having been duly considered, the court doth decide :


The court instructed the jury with CALCRIM No. 541A, which defines the crime of second degree felony <mask> when the defendant committed the fatal act. Frandsen challenges the inclusion of the following sentence in that instruction: "The crime of kidnapping for extortion continues until a defendant has reached a place of temporary safety." Frandsen contends this sentence misstates the law because kidnapping for extortion is complete when a person seizes a victim with the intent to extort. Not so.


1990), superseded on other grounds by rule as stated in United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995). Under Georgia law, a person commits aggravated assault when he (1) commits a simple assault, and (2) there is an aggravat- ing factor present (such as the intent to <mask>, rape, or rob; or the use of a deadly weapon). O.C.G.A. § 16-5-21(a); see Smith v. Hardrick, 464 S.E.2d 198, 200 (Ga. 1995). A person commits simple assault under Georgia law when he either “[a]ttempts to commit a violent injury to the person of another” or “[c]ommits an act which places another in reasonable apprehension of immediately receiv- ing a violent injury.” O.C.G.A. § 16-5-20(a). A criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under ACCA’s elements clause. See Borden v. United States, 141 S. Ct. 1817, 1825 (2021). After Borden, we reinstated our opinion in United States v. Moss, 920 F.3d 752 (11th Cir. 2019), which had been vacated after a grant of rehearing en banc. United States v. Moss, 4 F.4th 1292, 1292 (11th Cir. 2021). In Moss, we held that a conviction for Georgia aggravated assault under O.C.G.A. § 16-5-21(a)(2) was a crime of recklessness where it was based on the “places another in reasonable apprehension” variety of simple assault. Moss, 920 F.3d at 759. Because a felony “must be predicated on the intentional use of physical force” to qualify as a violent felony under ACCA’s elements clause, we con- cluded that Georgia aggravated assault is not categorically a violent felony. Id. (citing United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010)). USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 8 of 10


However, the "mere fact that an invalid conviction was obtained does not immunize the facts underlying this conviction from consideration by the sentencing judge” (United States v Atkins, 480d 1223, 1224). In that case, since the court was aware that the defendant’s <mask> conviction had been reversed, he was entitled to consider the facts underlying the conviction and accord them whatever weight they deserved.


Additionally, there is no requirement that the multiple offenses or transactions that comprise a criminal episode occur on the same day. In Guidry v. State , the court indicated that "[h]ad the Legislature wanted us to consider a time differential in the application of [ § 3.01 ], it could have easily done so." 909 S.W.2d 584, 585 (Tex.App.--Corpus Christi 1995, pet. ref'd). See also Crunk v. State , No. 13-07-00712-CR, 2009 WL 2973474, at *7-9 (Tex.App.--Corpus Christi, Sept. 17, 2009, pet. ref'd) (mem. op.)(not designated for publication)(holding that a defendant's <mask> offense and his tampering with the evidence offense that occurred the next day were committed pursuant to the same transaction); Hernandez v. State , 938 S.W.2d 503, 508-09 (Tex.App.--Waco 1997, pet. ref'd) (finding that an April 16 cocaine sale and a September 22 marihuana sale were merely repetitious commissions of the same offense).


4. For example, under this statutory language, an adult court could accept a plea to reckless homicide, R.C. 2903.041, on a transferred felony-<mask> charge, R.C. 2903.02(B). Reckless homicide is not a lesser included offense of felony murder, State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 1, and thus, it is an offense different from felony murder.


Such is the case here. Because Oates' underlying felony for felony <mask> did not involve the use of force, he was not prosecuted for his use of force. Rather, he was prosecuted for committing a felony (attempting to distribute a controlled substance) that resulted in the death of the victims. Consistent with the statutory definition of felony murder, Oates was not prosecuted for felony murder because it was his use of force that caused the victims' deaths; he was prosecuted for felony murder because he committed a drug felony that resulted in their deaths.


reversible error by admitting two sets of incriminating statements she gave to police, the first at the hospital and the second at the police station after she was advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Without the admission of these statements, defendant contends she would not have been convicted of two counts of second degree <mask>. With the exception of remand to resentence defendant on one count under Senate Bill No. 567 (2021-2022 Reg. Sess.), we will affirm. FACTUAL BACKGROUND On November 2, 2017, defendant finished her shift at Red Robin in Redding at around 9:15 p.m. Defendant was upset that evening and told her manager it had something to do with her boyfriend. Defendant said she needed to get drunk. Her manager told her to be safe and defendant said she always was, she had a designated driver. Defendant texted a friend that she was on her way to get drunk at home. Defendant’s coworker that night, Brandon Sergeeff, observed that defendant was sad and complaining about taking care of her sister, spending all of her savings, and having an argument with her father earlier. After his shift, Sergeeff went to a local bar in Redding, Shameless O’Leery’s. Sergeeff messaged defendant about meeting up with him at the bar. Defendant joined Sergeeff and a friend at the bar. She said she had had three beers in the car before coming in. Defendant had a beer at the bar. Sergeeff left Shameless O’Leery’s and went to the Rusty Nail. Defendant came into the Rusty Nail later but Sergeeff did not see her drink anything there. Defendant messaged another coworker, John Fadden, about meeting up at Shameless O’Leery’s. Defendant said she had had a bad day and needed to get hammered. Fadden recalled defendant had at least one beer at Shameless O’Leery’s and a shot of tequila. They left in separate cars and went to the Rusty Nail. They had a beer there and were leaving in separate cars with plans to go back to defendant’s house. Fadden asked defendant if she was okay to drive and she said she was. Fadden asked if


*298There seems to have been some confusion in this case (O’Hara) concerning his arraignment. It might appear as though he had been arraigned twice, once by the coroner and once by Judge Fay. In view of my finding that Meyer is without retroactive effect, it is unnecessary to determine whether there were two arraignments. However, from the proof before me I would be inclined to hold that there was only one arraignment, i.e., the one before Judge Fay. Under the former sections of the Code of Criminal Procedure (§■§ 773 through 790), when appropriate, the coroner was required to conduct a formal hearing. The .testimony of the witnesses must be reduced to writing and filed in the County Clerk’s office (§ 778). If the defendant has been arrested before the inquisition is filed, the coroner must deliver it together with all testimony to the Magistrate before whom defendant is brought (§ 779). The Magistrate, or the Coroner, must proceed to examine the charge (§ 783). Apparently no formal inquest was held by the coroner, no sworn testimony was taken. All the coroner did was to say to the defendant ‘ ‘ I am charging you with <mask> and holding you for the Grand Jury.” This did not comply with the sections of the code quoted and rise to the dignity of a hearing or inquest. Since the defendant was in custody when the coroner arrived, section 779 of the Code of Criminal Procedure, required that he turn over jurisdiction to a Magistrate. Although for very limited purposes a coroner was cloaked with some of the powers of a Magistrate, the Code of Criminal Procedure specifically lists those officers who are Magistrates, and a coroner is not included (Code Crim. Pro., § 147).


On appeal, both parties agree that Bailey is entitled to jail-time credit against his <mask> sentence for the 123 days from the date of his arrest on this charge to the date he was released on bond. They disagree, however, as to whether Bailey is entitled to credit for the 736 days he spent in detention after his bond was revoked.


In Carr, the juvenile defendant was found guilty of three counts of capital <mask>, but he was sentenced to three concurrent sentences of LWOP 50 after the State chose not to seek the death penalty. Id. at *39058. "Like Miller, the mandatory statutory sentencing scheme in place at the time of Mr. Carr's conviction denied the sentencer the opportunity to consider the attendant characteristics of Mr. Carr's youth before imposing the severe punishment of a life sentence without the possibility of parole for 50 years." Id. at 61. The Court found that "[b]ecause Mr. Carr's sentence was imposed without any consideration of his youth, his sentence violates the Eighth Amendment[,]" and he "must be resentenced." Id. at 63.


On December 6, 1983, the defendant was arrested by Illinois authorities in Chicago on drug charges and for possession of a weapon, whereupon a request was made by the Richmond County District Attorney’s office for the defendant’s extradition. Such request was forwarded to the Governor of Illinois on or about February 7, 1984, but apparently, before it could be acted upon, the defendant pleaded guilty to the Illinois charges and on April 10, 1984 was sentenced to an indeterminate term of imprisonment of 3 to 6 years. As a result of the foregoing, the District Attorney was informed shortly after the date of sentencing that their request for extradition would *380not be honored, and they were advised to proceed by way of the Interstate Agreement on Detainers (CPL 580.20). In the meantime, the defendant was indicted in Richmond County, inter alia, for attempted <mask> in the second degree and bail jumping in the first degree on January 27, 1984, under indictment No. 28/1984, and April 17, 1984 under indictment No. 110/1984, respectively, so that the total number of outstanding indictments pending against the defendant in Richmond County had risen to three.


The Attorney General maintains that defendant received notice comparable to the shooter in Houston . The Attorney General points out that during a discussion whether the court should give the jury an unanimity instruction, the prosecutor mentioned, "We haven't discussed voluntary manslaughter, but let's say with the two attempted murder[s], they can find him guilty of attempted <mask> with premeditation or guilty of regular attempted murder, *839and they can disagree on for which victim it was premeditated attempted murder and which one was just normal attempted murder. So I can see in that situation where that instruction [on unanimity] would apply." In the Attorney General's view, in essence, the prosecution can ignore its responsibility to plead premeditated attempted first degree murder as required by section 664, and a defendant forfeits his or her right to challenge the deficiency as long as the prosecutor at some point during trial mentions or alludes to the two types of attempted murder. Such a rule would eviscerate section 664, do violence to the meaning and rationale of Houston , and undermine any fair-minded understanding of notice and due process.


Dominic R. Massaro, J. Huwe Burton is accused of matricide. His mother died as a result of separate stab wounds to her neck. On two occasions in as many days, young Burton was interviewed by the police. As he was preparing to leave the police station on the second *682occasion of interview, defendant stated, "I want to tell you the truth, really what happened.” He thereupon confessed to the <mask> (Penal Law § 125.25).


Pettie persuasively argues that this evidence, viewed in isolation, was not strong evidence of his guilt. As set forth above in section II.B, however, the prosecution also presented sufficient evidence to show Pettie was an active participant in the Norteño criminal street gang together with Garcia and Lanford. Furthermore, Deputy Mull opined that when a gang member is summoned by fellow gang members to administer a "beat down" on some victim, the summoned member is expected to assist in the assault, even to the point of committing <mask>. Deputy Mull also opined that if that gang member failed to support or assist in the assault, the member would probably have the same punishment visited upon himself. Based on this testimony, a jury could reasonably infer that Pettie was not merely present, but that he aided and abetted the assault, attempted murder, and witness dissuasion. We conclude substantial evidence supported his convictions on the offenses and allegations charged in Counts 1 through 5.11


Under the guise of “heightened due process,” defendant argues that he has a constitutional right to waive a jury trial. Defendant also claims that the prohibition against a nonjury trial violates his rights of equal protection and due process by depriving him of a tactical option available to noncapital defendants. Defendant emphasizes that “a judge * * * may be better suited to analyze the evidence without [being] sway[ed] by pretrial publicity.” This case, like any <mask> trial, has received some media attention.


And the said Samuel Myers’ farther saith that the said Richard Bowden named in the indictment, and the Richard Bowden named in the record, are one and the same, and not diEerent persons ; that he the said Samuel Myers named in the indictment, and the said Samuel Myers named in the said record, and acquitted as aforesaid by the said corporation court of the <mask> aforesaid, are one and the same person and not diEerent persons, and that the murder charged upon him the said Samuel Myers before the said corporation court, *548and the murder charged upon him' the said Samuel Myers in the indictment aforesaid, are oné and the sanae, and not different acts, and this he is ready to verify; wherefore since he the said Samuel Myers hath already been heretofore acquitted of the murde'r of the said Richard Bowden aforesaid, he prays the judgment of the court here, if he the said Samuel Myers should be again charged with the same murder of which he hath once already at another time been acquitted.”