Appellant's trial counsel then moved for a continuance of three days to investigate the call, speak with the witness and defendant, and research case law. The trial court denied the motion.3 The recording was admitted as State's Exhibit 82 in the State's punishment case-in-chief the same day (October 27, 2016). Evidence of appellant's other extraneous offenses, including possession of marijuana, <mask>, injury to a child, and trespass, was also presented. At the conclusion of the punishment phase of trial, the jury sentenced appellant to life imprisonment with a $10,000 fine.


*805The indictment in question charges the defendant with first, <mask> in the first degree committed on June 28, 1961 (breaking and entering the house of the victim); second, grand larceny in the first degree committed at the same time in the same premises (stealing money of more than $500 in amount); and third, felonious possession of a loaded firearm on the same occasion. The indictment also alleges that — “ All of the acts and transactions alleged in each of the several counts of this indictment are connected together.”


The commitment order for the rape conviction states that the sentence is to run consecutively with the <mask> sentence, and the commitment order *1297for the burglary conviction states that the sentence is to run consecutively with the rape sentence. The commitment orders for the assault and sexual abuse convictions simply state that those sentences are to run concurrently, without stating what other sentence or sentences they run concurrently with. Our decision deciding petitioner’s appeal from his judgment of conviction clarifies — based on a record that also included the sentencing minutes — that County Court imposed the assault and sexual abuse sentences to run concurrently with the rape sentence (People v Bush, 266 AD2d at 643).


The defendant, Ramon Rivera (Rivera), was arrested on August 10,1983. He was subsequently indicted by a Grand Jury for two counts of grand larceny in the third degree. The People fied a predicate felony information alleging two prior convictions: a <mask> conviction obtained after trial in Passaic County, New Jersey, in 1981 (the New Jersey conviction) and a burglary and larceny conviction entered pursuant to a guilty plea in Superior Court, Erie County, in 1971 (the Erie County conviction). On March 7, 1984, the defendant pleaded guilty to the indictment while moving to contest sentencing as a second felony offender pursuant to CPL 400.21.


Counsel gave several different reasons for challenging the second prospective juror. Initially, he indicated that the challenge was based on consultation with his client. After the court pointed out that neither a defendant nor defense counsel is entitled to exercise peremptory challenges on the basis of race, counsel stated, “it’s not so much as racially motivated as it is based upon [the prospective juror’s] contacts with neighborhoods in Brooklyn. He does live in Brooklyn Heights. In that manner, it worries the Defense that he may not have— Could I have a moment, your Honor?” After a pause and a comment by the prosecutor, defense counsel then offered as an explanation the fact that this second prospective juror had also been the victim of a <mask>.


Hallam rejected the Attorney General's argument a "room within the business where the buying and selling of goods or services does not occur" could not be part of the "commercial establishment." ( Hallam, supra, 3 Cal.App.5th at p. 912, 207 Cal.Rptr.3d 812.) "Turning to the words of the statute here, we find no indication that shoplifting can occur only in specific areas of a commercial establishment. Nor does there appear any requirement that the business's commercial activity must be taking place in the area from which the theft occurs in order to qualify the offense as shoplifting. The trial court thus added an element to the offense that is absent from the plain language of the statute itself when it determined that appellant's theft would qualify as shoplifting only if it occurred in an area of the commercial establishment open to the public where merchandise is sold. Based on its impermissible revision of the definition of shoplifting, the court concluded that the crime was <mask> rather than shoplifting because appellant entered the store through the back and stole an item from the employee restroom rather than an area of the store that was 'open for business.' " ( Id. at p. 912, 207 Cal.Rptr.3d 812.)


In Ol'outher’s case, 1 Cro. Eliz. 654, it was held that an indictment would lie against a constable by reason of Ms failure “to raise hue and cry” at night immediately upon receiving notice of a <mask> just committed. So it was held during the *36reign of Queen Anne that “if a man be made an officer by act of Parliament and misbehave in his office he is indictable for it at common law, and any public officer is indictable for misben havior in his office.” Anon., 6 Mod. R. 96.


Via an omnibus motion, defense counsel seeks an inspection of the Grand Jury minutes which resulted in the indictment of defendant for rape in the first degree (Penal Law, § 130.35), sodomy in the first degree (Penal Law, § 130.50), aggravated sexual abuse (Penal Law, § 130.70), <mask> in the first degree (Penal Law, § 140.30), attempted burglary in the second degree (Penal Law, §§ 110, 140.25), criminal mischief in the fourth degree (Penal Law, § 145.00), and resisting arrest. Further, defendant *734seeks dismissal of the various counts of the indictment “on the grounds that the said indictment is not founded on sufficient legal and competent evidence *** [and because] the Grand Jury did not receive proper instructions on the law.”


Mario Pittoni, J. Petitioner requests a judgment prohibiting the enforcement of an order of respondent, a District Court Judge, dated June 20, 1978, which rescinded respondent’s earlier order dated December 5, 1977, granting an application pursuant to CPL 180.50, to reduce the charge of <mask> in the second degree in the Nassau County District Court to criminal trespass in the second degree.


On March 23 and March 24, 2006, the People presented evidence to a grand jury in the above-captioned case. The evidence consisted of testimony from the complaining witness, a detective and the defendant. After the People presented all of their evidence and charged the grand jury on the applicable law, the grand jury was directed to consider a single charge, <mask> in the second degree. The grand jury deliberated on the matter and then informed the prosecutor, through its foreperson, that it was taking “No Action.” The following colloquy then took place:


I assume, because of the fact no maximum was placed or indicated in either of these sections of the Penal Law, that it would be technically legal to sentence a man for a term of not less than fifteen years and the maximum of which could be his natural *565life. I cannot get myself to think that the Legislature ever intended a man should receive a life sentence for the commission of the crime of robbery in the first degree or <mask> in the first degree, unless the crime were accompanied by extremely cruel circumstances as well as serious injury to person; and I cannot escape this reaction to this law, because in 1928 murder in the second degree was as follows: “ Section 1046. Such killing of a human being is murder in the second degree, when committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation.” (Italics supplied.) Here the Legislature definitely indicated its attitude towards offenses accompanied by serious bodily violence and definitely indicated it was aware of the extreme penalty that might be inflicted, because in that connection the punishment for murder in the second degree as pronounced in section 1048 reads: “ Murder in the second degree is punishable by imprisonment under an indeterminate sentence, the minimum of which shall be not less than twenty years and the maximum of which shall be for the offender’s natural life; * *


It is fair to assume that the proportion of injuries occurring on premises through negligence of building owners is much greater for firefighters than for police officers. If police officers’ rights to recover damages were to be limited to the same circumstances applicable to firefighters, it might be said that the "same” protection results. There would however not be parity of protection. On the other hand if the scope of General *1092Municipal Law § 205-e is unlimited, police officers would enjoy greater protection than firefighters. One might argue, for example, that it would be unfair to allow a police officer to recover for injuries sustained in a vehicle collision en route to a <mask> but deny such recovery by a firefighter injured in a vehicle collision en route to a fire.


Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of attempted <mask> in the first degree (Penal Law §§ 110.00, 140.30 [2]). Defendant failed to preserve for our review her contention that the guilty plea was not knowingly, intelligently, and voluntarily entered inasmuch as she failed to move to withdraw the plea or vacate the judgment of conviction (see People v Zulian, 68 AD3d 1731, 1732 [2009], lv denied 14 NY3d 894 [2010]). In any event, defendant’s contention that she was not competent to enter both her guilty plea and the waiver of the right to appeal are without merit. Defendant stated during the plea colloquy that she was taking prescription medication for anxiety and depression, but “[t]here was not the slightest indication that defendant was uninformed, confused or incompetent” at the time she entered the plea and the waiver of the right to appeal (People v Alexander, 97 NY2d 482, 486 [2002]; see People v Sonberg, 61 AD3d 1350, 1351 [2009], lv denied 13 NY3d 800 [2009]). In response to County Court’s inquiry, “defendant advised the court that [s]he was thinking clearly and understood the proceedings” (Zulian, 68 AD3d at 1732). The valid waiver of the right to appeal encompasses defendant’s challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Hidalgo, 91 NY2d 733, 737 [1998]).


Where the evidence would support a finding that the defendant was justified in using deadly physical force either to resist the imminent use of deadly force (Penal Law § 35.15 [2] [a]), or to terminate an attempted <mask> (Penal Law § 35.20 [3]), a trial court must instruct the jury on both theories of justification. (Cf., People v Chung-Li Wang, 164 Misc 2d 707.) The distinction between the two may be critical, since the defendant may legally use deadly physical force to terminate a burglary attempt even though the victim has threatened or used only physical force, and not deadly physical force, to enter the premises or to commit the crime therein. The failure to provide this instruction to the Grand Jury renders the proceedings defective at least where the evidence indicates that, had the instruction been given, there is a reasonable possibility no indictment would have been returned. (People v Valles, 62 NY2d 36, supra.) Under the evidence presented here, the court finds that the defendant’s statements to the Grand Jury presented a basis for finding justification upon either theory. The defendant not only testified that he believed the complainant might kill him, he also testified that he cut him trying to get him out of the apartment after the complainant broke in to assault him. Penal Law § 35.20 (3) therefore had to be charged.


“After a careful review of [the record] and [Mr. Wallace’s] interview, it is the determination of this panel that if released at this time there is a reasonable probability that [he] would not live and remain at liberty without violating the law and [his] release at this time is incompatible with the welfare and safety of the community. This decision is based on the following factors: the instant offense <mask> 3rd (two counts) involved ... a series of burglaries of buildings. [He was] on parole supervision at the time of the instant offense for robbery 3rd and murder 2nd which involved the robbery of a restaurant wherein an employee was shot and killed. [His] institutional programming and positive disciplinary record have been noted and considered. [His] continued participation in unlawful activity despite previous legal intervention leads this panel to determine that . . . release at this time is unwarranted.” (Petition, exhibit A.) The parole denial determination was made in Columbia County. (Cross affirmation K 6.)


In response to the foregoing information which was forwarded by OCA, the Committee searched for respondent and ascertained that he had been arrested in Bridgeport, Connecticut, for felony <mask>. The criminal complainant, who was an acquaintance of respondent, asserted in her statement to the police that respondent was a "crack addict”, that he did not have authority or permission to enter her home, and that he stole $120 from her after gaining entry by smashing a window. Respondent failed to return to court in Connecticut on the appointed day and, as of March 21, 1994, an arrest warrant was issued and respondent has also been charged with bail jumping.


Finally, the court notes the substantial prejudice which would inure to the defendant should this plea be vacated, notwithstanding the People’s new offer that defendant plea to the crime of attempted <mask> in the second degree under this indictment. Unlike the crime to which defendant pleaded, attempted burglary in the second degree is a violent felony offense as per Penal Law § 70.02. The stigma that attaches to a violent crime and the potential future sentencing ramifications under Penal Law §§ 70.04 and 70.08 are far greater when dealing with "violent felonies” as opposed to nonviolent *896ones such as the one to which defendant pleaded under the SCI. (See, Gerstein v Pugh, 420 US 103.)


Plaintiff thereafter pleaded guilty to issuing a bad check (Penal Law, § 190.05), a Class B misdemeanor, reduced from grand larceny in the third degree (Penal Law, §§ 155.05,155.30), a Class E felony. The plea came as the result of the incident in early March, 1971, which culminated in the news stories libelously linking him with Nichols as part of a <mask> ring. The headlines referred to “ two geneses men accused op thepts ” and 11 GENESEE PAIR HELD IN THEPTS ”.


Since all of the procedural requisites for a valid waiver of immunity were satisfied, defendant effectively waived immunity prior to commencing his testimony.1 As noted above, defendant argues that the limited grant of immunity, pertaining to unlicensed motor vehicle operation at times other than the date of the <mask> in question, (1) had the effect of "vitiating” his original waiver, so as to confer transactional immunity, and (2) caused him to "misunderstand” the scope of immunity conferred and thus violated his Fifth Amendment rights. The court finds these arguments to be without merit.


This court’s treatment of the witness Isaac, ruling that as a matter of law he was not an accomplice to intentional murder or manslaughter, even though he could be an accomplice as a matter of fact for felony murder, is consistent with rulings in pertinent, although not identical, situations. There are appellate holdings that a witness who took part in a serious crime *713that was closely connected to the crime charged was not an accomplice to the crime charged, despite the connection between the two crimes and the witness’s implication of himself in a felony; this was so even though the two crimes had a common element, as they do in this case (causing the death). These cases confirm that Isaac’s status as a potential accomplice to the related attempted <mask> or attempted larceny at the victim’s store, and thereby to the felony murder, does not entail his status as a potential accomplice to the intentional shooting of the victim. (See, People v McAuliffe, 36 NY2d 820 [accomplice to bribery is not an accomplice to the defendant’s perjury about that bribery]; People v Brooks, 34 NY2d 475 [receiver of stolen property is not an accomplice to the theft]; People v Greenberger, 96 AD2d 910 [vendors who paid kickbacks to the defendant, a hospital administrator, were not accomplices to the defendant’s attempt to evade payment of income taxes by failing to report those kickbacks as income]; People v Maldonado, 123 AD2d 788 [witness was not accomplice to manslaughter in the first degree alleged to have been committed when the defendant shot the deceased after a brawl, merely because during the brawl the witness tried to pass the defendant a large knife].)


alleged that the county was negligent in its handling of a series of calls to the 911 emergency dispatch service, which led to a delay in responding, and was therefore liable. We rejected that assertion, noting that no matter how the negligence claim was restated, it arose out of the underlying assault and fell within the intentional tort exception of the PSTCA. In Britton v. City of Crawford, 10 a <mask> suspect was shot and killed during a standoff with police. The suspect’s personal representative filed a claim against the city, alleging that law enforcement was negligent in its tactics. We concluded that the claim was barred by the intentional tort exception. We reasoned that the exception not only bars claims for assault and battery, but bars claims arising out of an assault and battery. For his claim, Williams’ complaint alleges that the State neg- ligently failed to separate Williams from Armendariz and his supporters. But the injury and damages Williams alleges plainly arose from Williams’ preemptive assault on Armendariz, from the retaliatory assault on Williams, and from Williams’ fear of a potential assault on him by Armendariz. We therefore con- clude that Williams’ negligence claim against the State is one which arose from an assault, is barred by the intentional tort exception to the State’s waiver of sovereign immunity under the STCA, and was properly dismissed by the district court. Leave to Amend. Williams next argues that although his claim for negligence was dismissed, the district court erred when it denied him leave to amend his complaint to allege, inter alia, negligent infliction of emotional distress as a separate theory of recov- ery. Although Williams did not offer a proposed amendment to the district court, the parties discussed emotional damages at the hearing. Williams suggested he would make his complaint more specific and offer additional facts. However, the district court found that any such amendment would be futile because it would also arise out of “multiple layers of assault/battery” Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011). - 596 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports WILLIAMS v. STATE Cite as 310 Neb. 588


Of note, the Wiesner majority observed that “[w]hile Dean Feerick was unfamiliar with the nature of petitioner’s offenses . . . upon being so informed, [he] expounded on the importance of redemption in adhering to his recommendation that petitioner’s application be approved” (Wiesner at 176). Here, a former New York State Supreme Court Justice, after being told of the death of the woman during the <mask>, similarly expressed his view that “punishments — all punishments — must some day come to an end.” When a subcommittee member advised the former Justice that petitioner took full responsibility for his actions in his current application and had explained why he was unable to do so in his earlier ones, the witness opined that petitioner’s prior lack of candor was understandable and that he is now forthcoming, he should be admitted.


Palmer was raised primarily by his mother, with only sporadic contact with his father. At some point, his family moved from a low income area to one with "predominantly wealthier kids"; Palmer related that his self-esteem suffered and he committed crimes and used drugs in order to be accepted by his peers, "have the things that they had" and "do the things they were doing." He admitted his first offense, driving without a license, in July 1985. In February 1986, he admitted a violation of Penal Code section 288a, a felony, for his conduct with three minors.2 He was placed on probation, which he then violated with two charges of robbery, <mask>, and attempted burglary.


We find support for our reasoning in People v. Davis (1998) 18 Cal.4th 712, 76 Cal.Rptr.2d 770, 958 P.2d 1083 ( Davis ), in which the Supreme Court addressed whether a defendant could be convicted of <mask> under section 459 on the basis that he placed a forged check in a chute in a walk-up window of a check-cashing business. ( Davis , at p. 714, 76 Cal.Rptr.2d 770, 958 P.2d 1083.) Although burglary "can be committed by using an instrument to enter a building," not just by entering *94with one's body, the Court concluded that passing a forged check into a building did not qualify as burglary. ( Id. at pp. 714, 716, 76 Cal.Rptr.2d 770, 958 P.2d 1083.) It explained, "It is important to establish reasonable limits as to what constitutes an entry by means of an instrument for purposes of the burglary statute. Otherwise the scope of the burglary statute could be expanded to absurd proportions," so that even mailing a forged check to a bank could constitute burglary. ( Id. at p. 719, 76 Cal.Rptr.2d 770, 958 P.2d 1083.) Observing that "the 'underlying basis for the criminal sanction' of burglary is ' "the danger caused by the unauthorized entry itself," ' " the Court determined that the insertion of a forged check into a chute in a walk-up window did not qualify as entry by instrument because it did not "violate [ ] the occupant's possessory interest in the building." ( Id. at p. 722, 76 Cal.Rptr.2d 770, 958 P.2d 1083.)


Similarly, in People v Plevy (67 AD2d 591, supra), a defendant was indicted in Kings County on a murder charge and in Nassau County for <mask> and petit larceny. Incriminating physical evidence linking him to all of these charges was found by the police by means of search war-ants that had been issued in the respective counties as a result of information concerning observations made of the contents of the defendant’s room by a Nassau County detective. In the Kings County prosecution the defendant moved for the suppression of the evidence upon the ground that the Nassau County detective had not been given permission by the defendant to accompany him to his room where he had observed the incriminating evidence and therefore the search warrant was the tainted product of an illegal police trespass. The Kings County suppression court denied the defendant’s motion on the ground that he had expressly consented to the detective’s request to accompany him to his room. The defendant was then tried and convicted of the murder charge. Subsequently, the defendant was prosecuted on the Nassau County indictment. He moved for the suppression of the physical evidence on the identical ground he had asserted and that had been decided against him in the Kings County proceeding. The suppression motion was denied on the ground that the defendant was collaterally estopped from relitigating the issue that had been decided against him in Kings County. The defendant was thereupon tried and convicted of the Nassau charges. The defendant’s conviction was affirmed by the Appellate Division of the Second Judicial Department. The court held that collateral estoppel had properly been invoked against the defendant, as the following three essential criteria had been met (p 595) : “(1) that there is an identity of issues in both proceedings; (2) that the issue was necessarily decided in the prior proceeding; and (3) that the party against whom the prior ruling is sought to be invoked has had a full and fair opportunity to contest that issue.” (Citing Schwartz v Pub*405lic Administrator of County of Bronx, 24 NY2d 65, 71, supra.) The Appellate Division thus held the issue of the collateral estoppel effect of suppression decisions to be governed by the same criteria controlling the application of the doctrine in civil cases. An identity of parties requirement was rejected in favor of the more flexible criterion that the party against whom estoppel is sought has had a full and fair opportunity to contest the issue in the prior proceeding.4


By the minutes of the grand jury, of August 13, 1873, it appears that an indictment was found, on that day, on the evidence of George H. Tafft, against Alfred E. Lagrave, and' James D. Otis, for <mask> in the third degree. Mr. Townsend testifies in this matter, that it is very possible he did draw the original affidavit of George H. Tafit— that he did draw the affidavit of one person and delivered it to the district, attorney; cannot say whether it was Tafft’s or Bassett’s. The district attorney remembers Townsend spoke to him about the case, but cannot say whether before or after the indictment. He says there was a conversation with Townsend, which must have been after the *339indictment, about claiming Lagrave from the French government under the treaty. A letter was prepared by his clerk, or by Townsend, to the secretary of state.


In contrast, "[i]n enacting the shoplifting statute as part of Proposition 47, the electorate signaled that these interests do not apply in the same way when a person intends to steal property in a place where he or she has been invited to peruse the goods and services that are on offer. Store owners and employees do not, of course, consent to the theft of property. But the core of the crime of <mask> is not theft but physical intrusion , and owners and employees have every reason to expect that members of the public will enter where they have been invited." ( Colbert, supra , 6 Cal.5th at p. 607, 242 Cal.Rptr.3d 665, 433 P.3d 536, second italics added.)


This appeal pertains to an amended petition to revoke Anderson's SIS, which the State filed on July 26, 2017. The petition alleged that since his previous revocation, Anderson had committed the new offenses of residential <mask>, aggravated assault, and third-degree domestic battering, and that he had failed to pay his restitution, court costs, and public-defender fee.2 At *285the conclusion of the August 24, 2017 hearing on the amended petition, the circuit court found that Anderson had violated the terms and conditions of his SIS based on testimony that he had kicked in the door of a residence and pointed a gun at the man who lived there. The circuit court also found that he had failed to make his court-ordered payments as directed. The circuit court revoked Anderson's SIS and sentenced him to a term of fifteen years in the ADC, with another nine years suspended. Anderson now appeals.


Addressing the facts regarding defendant's conviction, the court noted that defendant pled no contest to <mask>, and that the evidence presented at the preliminary hearing was that defendant broke into the victim's storage locker and stole tools. It observed that the elements of the crime of shoplifting, a new misdemeanor offense under Proposition 47, include entry into a commercial establishment with intent to commit larceny of property valued at $950 or less. Citing a decision from Division Five of this District that had been published a few weeks earlier- In re J.L. (2015) 242 Cal.App.4th 1108, 195 Cal.Rptr.3d 482 -that discussed the meaning of "commercial establishment" and shoplifting ( id. at pp. 1114, 195 Cal.Rptr.3d 482 ["a commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of goods or services"], 1115 ["Shoplifting is commonly understood as theft of merchandise from a store or business that sells goods to the public"] ), the court concluded that the crime to which defendant pled did not qualify as shoplifting because the victim's storage locker was not a business engaged in commerce. Therefore, the court issued an order to show cause why the *700November 12, 2015 order granting his Proposition 47 petition "should [not] be set aside as unauthorized by Proposition 47 and his felony conviction and sentence reinstated."


The term “deadly weapon” as defined in Penal Law § 10.00 (12) means “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged”. In order to establish that the instant gun was a deadly weapon, as required for the <mask> first charge, the prosecution needed to present evidence that it was both operable and loaded with live ammunition (People v Shaffer, 66 NY2d 663, 664). There was no evidence presented to the Grand Jury that a qualified firearms’ expert performed testing on the subject firearm to determine its operability. Although a certified laboratory report would have sufficed, none was presented. (See, CPL 190.30 [2].) The testimony elicited from the owner that the weapon was kept loaded and was operational the last he knew is not sufficient to show that the firearm was operational on the day in question.


A person commits residential <mask> if he or she enters, or remains unlawfully inside, a residential occupiable structure of another person with the purpose of committing (inside the structure) any offense punishable by imprisonment. See Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). The offense intended must be identified and is an element of the charge of burglary. Oliver v. State , 286 Ark. 198, 691 S.W.2d 842 (1985).


Many authorities hold that unlicensed persons may not sue for breach of contract or seek a recovery based on quantum meruit even though their services were completely and satisfactorily performed. Statutes that require, for instance, that home improvement contractors have licenses are intended to protect the public against the financial and even physical dangers that unscrupulous or incompetent contractors represent. (See, Chosen Constr. Corp. v Syz, 138 AD2d 284 [1st Dept 1988]; Millington v Rapoport, 98 AD2d 765 [2d Dept 1983].) Two cases decided prior to the 1986 amendment held that public adjusters were barred from recovery for services performed with respect to <mask> losses. (Gross v Reliance Ins. Co., 119 Misc 2d 270 [Sup Ct 1983]; Zarrell v Gutenplan Assocs., 111 Misc 2d 340 [Sup Ct 1981]; see also, Abrams Adjusters v Lewis, NYLJ, June 17, 1980, at 10, col 6 [Sup Ct, Alexander, J.].)


The jury rendered a verdict of guilty of murder in the first degree, as charged in the indictment. And as one count charged the prisoner with that crime, because he took the life of his victim while committing a <mask>, the second while committing a robbery, and the third with deliberation and premeditation, the verdict is objected to as an inconsistent and improper one. But as it was neither impossible nor improbable, that the prisoner ivas committing both burglary and robbery when he inflicted the mortal blow, and at that time was actuated by a deliberate and premeditated purpose to take life, the verdict cannot be held to be necessarily inconsistent with the indictment. The prisoner may very well have been guilty of all the charges contained in these three counts, when he inflicted the mortal wound upon the deceased \ *505for he may have been engaged in both burglary and robbery, with a deliberate and premeditated design to take the life of the person resisting him in the execution of those felonies. The law requires no particular period for, or amount of deliberation to constitute the crime of murder in the first degree, even when the nature of the offense depends wholly upon the existence of that circumstance. It is sufficient that the fact of deliberation existed in the case, combined with the intent to take life, and that the mortal blow or wound was given in consequence of that intention and deliberation, and for the purpose of executing such intention. What the law has required is, that both deliberation and premeditation shall precede the act of taking life, and that the act shall execute the purpose so formed. And that may very well have been the nature of the prisoner’s act, while he was at the same time engaged in the commission of the burglary and robbery, charged in the indictment, for the purpose of making out the existence of the offense under the other provision of the statute.


Viewed in the light most favorable to verdict, the evidence shows T.S. and Stewart agreed he would move out of the residence. Consistent with that agreement, Stewart stayed away from the residence and surrounding property, returning only at night to sleep in the camper. Stewart testified he and T.S. "were not living together on January 23, 2015." Under these circumstances, a reasonable juror could find T.S. was in sole possession of the residence and Stewart relinquished his license or privilege to remain there. Further, a reasonable juror could find Stewart exceeded the scope of any limited license and privilege to remain in the residence when, after delivering firewood to the basement, he went upstairs, twice ignored T.S.'s demands that he leave and, instead, fired a gun and threatened to kill her. Stewart's assertion he was licensed or privileged to remain in the residence because he continued to use the residence fails because it is based on evidence and inferences contrary to the verdict. Consequently, there was sufficient evidence from which a reasonable juror could find Stewart committed a <mask> by knowingly remaining unlawfully in the residence for the purpose of assaulting T.S.8 The circuit court did not err in overruling Stewart's motion for judgment of acquittal on his conviction for burglary.


Recently, another appellate court reached a different conclusion in People v. Gonzales (2015) 242 Cal.App.4th 35, 194 Cal.Rptr.3d 856. In Gonzales, the defendant twice entered a bank and cashed a check made out to him for $125 purportedly signed by his grandmother. His grandmother denied she signed the checks or gave the defendant permission to use her checks. The defendant pleaded guilty to felony commercial <mask> and subsequently requested reduction to a misdemeanor under the Act. The trial court denied the petition, reasoning the offense did not qualify as shoplifting under section 459.5 because there was no larceny. (Id. at pp. 37-38, 194 Cal.Rptr.3d 856.) In affirming, the appellate court looked to robbery cases, in particular People v. Williams (2013) 57 Cal.4th 776, 161 Cal.Rptr.3d 81, 305 P.3d 1241. (Gonzales, at p. 39, 194 Cal.Rptr.3d 856.) Williams discussed the meaning of common law larceny, which requires a felonious taking, in the context of robbery, which also requires a felonious taking. (Williams, at pp. 786-787, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) Common law larceny, unlike other forms of theft, requires both asportation and a taking without the owner's consent. (Id. at pp. 787-788, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) In Gonzales, the court found the defendant did not commit larceny because the taking was consensual. (Gonzales, at p. 39, 194 Cal.Rptr.3d 856.)


The plaintiff was convicted after a trial by a jury of the crimes of <mask> in the third degree and grand larceny, second degree. Upon being sentenced for said crimes, the District Attorney filed an information against him charging him with being a multiple offender. Plaintiff was represented by counsel who, after hearing the information, stated “ We do not admit that the other two alleged felony convictions read by the district attorney are really felonies as provided in the statutes of the State of New York ”. Plaintiff was thereupon sentenced as a third felony offender. He appealed his case to the Appellate Division, Third Department and was successful in obtaining a reversal of the jury verdict and a new trial. The question of whether or not the plaintiff was a multiple offender was not raised or decided in the Appellate Division.


The Kansas City police department conducted a search of the residence that evening.2 No one was home. The police seized a laptop and laptop case, a red purse containing various small items, a Coach purse, and a bracelet. M.G. confirmed all the property seized from the residence had been stolen from her apartment. Mr. Douglass and Ms. Gaulter were arrested and subsequently charged by indictment with <mask> in the second degree, section 569.170,3 and felony stealing, section 570.030, RSMo Supp. 2013.4


counsel had a reasonable basis for not presenting the witnesses’ testimony to establish [Van Horn]’s character. During the PCRA hearing, Attorney Minotti testified that he did not call character witnesses because he believed that they would be cross-examined concerning [Van Horn]’s prior convictions for <mask> and statutory rape. We conclude that this was a reasonable trial strategy, and counsel was not ineffective on this basis.


The court places no credence in defendant’s assertions that, despite efforts by the defendant, Mr. Shalleck failed to appear for, or consult with him after the plea because he was irritated after hearing that the defendant had pleaded guilty. His assertions of abandonment by Mr. Shalleck cannot be reconciled with the fact that the very next time this defendant came into conflict with the law, in 1929, at which time he was indicted for <mask> again, he went to trial with the firm of Shalleck & Shalleck as his retained counsel. Moreover, apart from the defendant’s extensive criminal record to date, this court is convinced, after listening to and observing him, that his testimony is not to be believed.


Here too, the question remains that if petitioner, age 66, is not admitted now, then when. Although petitioner’s testimony that he removed the gag during the 1975 <mask> may be questioned, the subcommittee did not find the testimony to be a fabrication. Petitioner may sincerely believe that he did remove the gag. Yet the majority is in effect adopting the position that this Court criticized in Wiesner, holding that petitioner must testify that he never went back to remove the gag if he is ever to be admitted to the New York bar. This is not just. Our analysis of petitioner should be in accord with this Court’s recent precedent for substantially analogous applicants and petitioner is entitled to the same treatment as Wiesner. Even if petitioner *98may be deemed to have exhibited a defensive posture as to certain aspects of his crimes, he has acknowledged his responsibility for them, for which he spent five years in prison and over 30 years atoning. As the majority concedes, since his release on parole petitioner’s “personal history took a commendable term for the better,” and he has led a “seemingly unblemished personal life.” Petitioner has demonstrated a “commendable work ethic,” and there is “no basis to doubt the sincerity of [petitioners] regrets” over the elderly woman’s death or to “suspect that [petitioner] will re-offend.” Thus, contrary to the majority’s ultimate finding, we are dealing with far more than the mere passage of time and “the extraordinary results for rehabilitation that was found in Wiesner” undeniably exist here.


Finally, defendant asserts that exculpatory clauses contained in the contracts bar all of plaintiffs’ claims, including the fraud claim. According to defendant, the contracts expressly provide that Slomin’s is not liable for losses sustained in a <mask> resulting from the cutting of telephone lines. Defendant cites the disclaimer provisions quoted above and several other *935clauses which, essentially, provide that Slomin’s shall not be responsible for damage or loss resulting from telephone line failure, interruption of telephone service or causes beyond Slomin’s control.


As used in the Arkansas Insurance Code, unless the context otherwise requires, "property insurance" is insurance on real or personal property of every kind and of every interest therein, whether on land, water, or in the air, against loss or damage from any and all hazard or cause and against loss consequential upon the loss or damage, other than noncontracted legal liability for the loss or damage. Several types of insurance are considered casualty insurance according to Arkansas Code Annotated section 23-62-105 : (1) vehicle insurance, (2) liability insurance, (3) workers' compensation and employer's liability, (4) <mask> and theft, (5) personal property floater, (6) glass, (7) boiler and machinery, (8) leakage and fire extinguishing equipment, (9) credit, (10) malpractice, (11) livestock, (12) entertainment, (13) elevator, *436(14) abstractor's professional liability, (15) mortgage lien protection, and (16) miscellaneous. Personal property floater is defined as "insurance upon personal effects against loss or damage from any cause under a personal property floater." Ark. Code Ann. § 23-62-105(5).


Perhaps the best and clearest language on this issue is found in a trial court decision, People v Crowell (122 Misc 2d 133 [Oswego County Ct 1983]). In that case, the defendant was *242given permission to enter the premises for the purpose of painting it. The court found that the privilege to be within the premises is not negated by the formulation of a criminal intent or even the undertaking of a criminal action therein. The court went on to state that “the doctrine remains that a licensed or privileged entry or remaining is not transformed into an unlawful one upon the occurrence of criminal conduct on the part of the licensee. * * * A rule to the contrary would mean that an intoxicated house guest who loses his temper and intentionally smashes a vase becomes a burglar. Innumerable like examples can be imagined. Such is not the intent of the Legislature in creating the <mask> statutes, all of which have trespassorial conduct as one essential element.” (Id. at 134-135 [citations omitted].)


There is no reasonable possibility that the defendant would have received a more favorable decision on his suppression motion if the statements attributed to the parole officers had been turned over. As explained by this court in its decision and order dated July 20, 1995, when the parole officers received in*224formation that their parolee was in possession of some of the fruit of a recent <mask>, they had a duty to investigate.


¶ 19 On appeal, defendant asserted that the evidence was insufficient to find him guilty beyond a reasonable doubt of residential <mask>. Defendant argued that the only evidence tying him to the offense consisted of a single, partial fingerprint on a portable object. Additionally, the State did not offer evidence that Dennewitz followed the accepted methodology for identifying latent fingerprints by verifying his results with another examiner. The appellate court agreed and reversed his conviction. 2020 IL App (1st) 172631, ¶¶ 28-29.


There is practically no dispute about any of the facts in the case, and the question is, therefore, one of law. The defendant contends that it cannot be held liable, except upon proof by the plaintiff of some negligence on its part; and it contends that none has been proven. I do not think the defendant’s contention can prevail; and it seems to me that it is incumbent upon it, if it wishes to excuse itself for the loss of the goods, to show what has become of them. There is no evidence in the case from which it can be even inferred when or where or how the coat disappeared, and we are unable to decide whether it was lost in transit or after it reached its destination at its terminal. It is true McArdle testified as above quoted; but, keeping in mind that the coat was in a box, the cover of which had 'been nailed down, it does not appear that he made an examination more than to look at the outside of the box. Bor the purposes of the case, however, we will assume, giving the appellant the benefit of the doubt; that the box and its contents were duly delivered by it to its terminal, and were there suffered to remain for such a time that, as a matter of law, the status of the defendant as a common carrier was changed to simply that of a *350warehouseman; and we will consider the case on that basis. ■Appellant quotes the case of Ballston Refrigerating Storage Co. v. Eastern States Refrigerating Co., 142 App. Div. 135, . in support of its contention; but I do not see that the law, ■as there stated, is of assistance to him. I will quote from page 139 of the opinion: The gravamen of an action such as this is negligence. The burden of- proof rests on plaintiff throughout the entire trial to establish such negligence by a preponderance of evidence. The contract of the bailee is to return the property in proper condition, and when a plaintiff establishes a failure to do so a prima facie case of negligence is made out which places the defendant under the necessity of offering an explanation of the loss or damaged condition of the property in order to meet such prima facie case.” Further on on the same page the court quotes with approval the following language: “As a general rule, when a bailee fails on demand 'to deliver to the bailor property to which the latter is entitled, the-presumption of liability arises, and if the goods cannot be found it furnishes the imputation of negligence as the cause. But such prima facie case may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee.” It is true that case holds, as do others, that the basis of the action is negligence, and that the affirmative of the issue is not shifted to the defendant, but remains through the trial with the plaintiff; but, from the language above quoted, it is apparent that there is. a prima facie ease of negligence made out when a bailee proves delivery to a warehouseman, demand of return and" failure of the warehouseman to produce the goods. The most instructive case which I have found oh this subject, and the one most closely in point, is that of Claflin v. Meyer, 75 N. Y. 260. In that case a warehouseman had been sued for failing to return the bailee’s goods, and it appeared that the warehouse had been 'burglarized. The court said: “ Upon its appearing that the goods were lost by a <mask> committed upon the defendants’ warehouse, it was for the plaintiffs to establish affirmatively that such burglary was occasioned or was -not prevented by reason of some negligence or omission of due *351care on the part of the warehouseman.” And continues: “ The cases agree that where a bailee of goods, although liable to their owner for their loss in case of negligence, fails, nevertheless, upon their being demanded, to deliver them or account for such non-delivery, or, to use the language of .Sutherland, J., in S'chmidt v. Blood, where there is a total default in delivering or accounting for the goods,’ this is to be treated as prima facie evidence -of negligence.” The court says that this rule arises from the necessity of the case, it being presumed that the bailee has exclusive knowledge of the facts, and that he is- able to give the reason for his nondelivery, if any exists, other than his own act or fault, or from a presumption that he actually retains the goods, and by his refusal converts them.


“ The Grand Jury of the County of Jefferson, by this indictment, accuse william seymour, of the crime of <mask> in the Third Degree, committed on or about the 23rd day of February, 1953, at the City of Watertown, in said County of Jefferson and State of New York, “ SECOND COUNT ‘ ‘ And the Grand Jury aforesaid, by a second count in this indictment further accuse the said william seymour of the crime of Petit Larceny, committed on or about the 23rd day of February, 1953, in the City of Watertown, County of Jefferson and State of New York.” The indictment appears to conform with the requirements of the statutes relating to a simplified indictment and is not *227insufficient or defective. It is not necessary to allege all of the elements of the crime where this type of indictment is the basis of the charge. Neither was it necessary for the District Attorney to set forth the particular subdivision defining the crime of burglary in the third degree, with which the defendant was charged. (People v. Rosen, 251 App. Div. 584, affd. 275 N. Y. 627.)


. Compare, former Penal Law § 1044 "The killing of a human being * * * is murder in the first degree, when committed * * * by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise” (emphasis added), with Penal Law § 125.25 (3): "A person is guilty of murder in the second degree when * * * [a]cting either alone or with one or more other persons, he commits or attempts to commit robbery, <mask>, kidnapping, arson, rape * * *, sodomy * * *, sexual abuse * * *, or escape * * * and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant * * * causes the death of a person other than one of the participants” (emphasis added).


In turn, the New York Court of Appeals in People v Chappie (38 NY2d 112, 115) acknowledged that: “Warnings, to be effective under the combined holdings in Miranda and Westover, must precede the subjection of a defendant to questioning. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning.” The officer in the Chappie case admitted that he stopped the defendant, who was walking on a public roadway, ordered him into the police car, questioned him about several burglaries in the area and drove him to the site of the most recent one. Not until the defendant had admitted that <mask> and showed where he had broken into the building, did the officer give him his Miranda warnings and continue the interrogation which elicited admissions of other burglaries. The court held (supra, p 115) that: “Unlike theories which require examination of a defendant’s testimony as to his state of mind and, thus, an assessment of his credibility, the Westover approach may be based on an assessment of external events. We find that the testimony of Officer Luck himself, in the case before us, supplies ample basis for the conclusion that Chappie was subjected to such a continuous interrogation that the Miranda warnings administered at the site of the burglary were insufficient to protect his rights. Given that insufficiency, his later confessions must be suppressed.”


On April 16, 2014, the district attorney filed an information charging defendant with unlawfully driving or taking a vehicle, having been previously convicted of receiving a stolen vehicle (§ 666.5(a) ; count 1);4 receiving a stolen vehicle (§ 496d(a); count 2); unlawfully driving or taking a vehicle (Veh. Code, § 10851(a) ; count 3); receiving stolen property (§ 496, subd. (a) (hereafter § 496(a)); count 4); possessing a <mask> tool (§ 466; count 5, a misdemeanor); and driving with a suspended license (Veh. Code, § 14601.2, subd. (a) ; count 6, a misdemeanor). The information also alleged in connection with counts 1 through 4 that defendant had served a prior prison term (§ 667.5, subd. (b)) for a 2005 conviction under section 496d(a).


The facts of the Fowlkes case bear a striking resemblance to the situation in the case at bar. There, Mr. Fowlkes was accused of having broken into the apartment of a woman conceded to be his wife and of stabbing her. He was indicted on two counts of assault and counts of <mask> and possession of a dangerous weapon. Fowlkes pleaded guilty to attempted assault in the second degree, a felony, and was sentenced to State prison.


In United States v Thomas (444d 919, 921), the Court of Appeals of the District of Columbia held that a <mask> indictment which alleged that it was "with intent to commit any criminal offense therein” was defective on its face and *497could not be cured by a bill of particulars. In line with its opinion, it also could not be cured by a motion to amend. Said the court (pp 921-922) "An indictment drawn simply in the language of the District’s burglary statute thus does not allege with sufficient particularity, the offense with which appellant was charged. As so drawn, it describes the offense only in impermissibly broad and categorical terms. In order to achieve the requisite degree of precision, we hold, in accordance with the great weight of authority [citing cases], that the indictment must state the particular offense the accused intended to commit upon entry into the dwelling”.


When appellant committed residential <mask> in March 2016, he was on notice that residential burglary was then listed as a felony involving violence that would subject him to a more severe penalty than the previous residential-burglary statute. The 2015 amendment that added residential burglary to the list of felonies involving violence did not affect his sentences for his previous residential burglaries but did enhance the sentence he could receive when he was convicted of residential burglary in 2016. As in Sims , Garrett , and Laymon , we hold that there was no ex post facto violation here, and the circuit court properly denied appellant's objection.


The officer’s question, "How did you get in there?” or words to that effect, was a reasonable response to the defendant’s plea to the officer to free him from the lockup and arrest him for a minor offense. By then, Officer Muzek had realized that the defendant had been locked in from the outside, and it was appropriate to ask how he had got in, to facilitate his release. Muzek did not have to go through a Miranda litany before asking for that on-the-scene clarification of the situation. (See, People v Huffman, 41 NY2d 29, 34 [" 'What are you doing back here?’ ”]; People v Johnson, 86 AD2d 165, 168, affd 59 NY2d 1014 [" 'What are you doing here?’ ”]; People v Luna, 164 AD2d 870, lv denied 76 NY2d 941 [police officer subduing <mask> suspect asked what a bulge in his pocket was]; People v Deresky, 134 AD2d 512 [officer’s question to murder suspect, who had just been arrested upon getting off an airplane, whether he had any luggage, "was not intended or designed to elicit an incriminating response”, so it "did not constitute custodial interrogation”].)


John M. Leventhal, J. *1025The defendant Steven Sommerville stands charged in a nine-count indictment with the crimes, inter alia, of <mask> in the first degree, assault in the second degree, criminal contempt in the second degree, and intimidating a witness in the third degree. A Mapp hearing was held before this court on October 23, 1996. Oral argument was held and memoranda of law were submitted by both sides. The issue to be determined is whether the reading of specific entries in the defendant’s "weekly appointment calendar” constitutes a proper police precinct inventory search of items secured from defendant’s knapsack upon his earlier arrest. Based upon the credible evidence of record, the court makes the following findings:


In appeal No. 2, defendant contends that County Court erred in denying his motion to dismiss count one of the indictment, charging <mask> in the second degree, because the People failed to allege an essential element of the crime, namely, that he had entered the dwelling “unlawfully” (Penal Law § 140.25 [2]). We reject that contention. That count of the indictment specifically referred to Penal Law § 140.25 (2) and, thus, the People’s failure to allege that defendant entered the dwelling “unlawfully” does not constitute a jurisdictional defect requiring dismissal of that count (see People v Wright, 67 NY2d 749, 750 [1986]; People v Shanley, 15 AD3d 921, 922 [2005], lv denied 4 NY3d 856 [2005]).


John Austin, J. The respondent, who was initially charged with having committed certain acts which, if committed by an adult, would consist of the crimes of <mask> in the first degree and attempt to commit rape in the first degree, admitted the crime of burglary in the third degree (Penal Law, § 140.20) in full satisfaction of the petition pending against him. Subsequent to his admission, the respondent was adjudged to be a juvenile delinquent by the Warren County Family Court and was placed on probation for a period of two years with certain terms and conditions.


“ On plea of former acquittal or conviction, the accused must show that he was acquitted or convicted of the same accusation against him in a former trial; not of an entirely different offense growing out of the same state of facts or transaction. The proper test is: Was the matter set out in a second indictment admissible as evidence under the first indictment, and could a conviction have been properly maintained upon such evidence? *19If the answer is yes, then the plea is sufficient; otherwise, it is not. Acquittal on a charge of crime is a bar to subsequent prosecution for the same offense under a different name, in all those cases where the accused might have been found guilty and sentenced on the offense charged in the later indictment under the former prosecution. Conviction or acquittal in one offense is a bar to a prosecution in another, in all those case where the later offense charged is a necessary element in, and constitutes an essential part of, the former. Thus, a plea of former conviction of <mask> is sufficient in an indictment for robbery based on the same offense, when the record shows that, in order to prove the felonious intent in the former prosecution, the circumstances of the stealing were proved, and thus the same transaction, the robbery, was involved in both cases.” (Emphasis added.)


The defendant was originally sentenced by the Honorable Angelo Ingrassia, Judge of the County Court (on June 19, 1981), to the following periods of incarceration: 25 years to life on each of 3 counts of murder in the second degree; SVs to 25 years on each of 2 counts of robbery in the first degree; SVs to 25 years on each of 3 counts of <mask> in the first degree; 2V3 to 7 years on the single count of assault in the second degree; 1 to 4 years on the single count of grand larceny in the third degree; 1 year each on the misdemeanor charges of criminal possession of a weapon in the fourth degree (2 counts), petit larceny (1 count), and criminal mischief in the fourth degree (1 count).


Defendant admits keeping a dog in her apartment contrary to the Rules and Regulations but her husband in her behalf asserts that her purchase of the dog was necessitated by circumstances that have arisen since the execution of the agreement in June, 1968, which make it necessary for her to have a dog in her apartment. He refers to a series of seven burglaries in the building in as many months, plus an assault, and an attempted <mask> which was frustrated. He also asserts that the owner has permitted other occupants to keep cats as well as dogs in their apartment.


1 Unspecified statutory references are to the Penal Code. contends the trial court abused its sentencing discretion and requests remand for resentencing. Although Criado’s original briefing in this appeal argued the trial court erred under Senate Bill 136, both parties agree that resentencing is required pursuant to Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which was enacted after the original briefing had been completed. (Stats. 2021, ch. 731.) We concur and will remand for resentencing on this basis. In light of this conclusion, we need not address Criado’s other claims of error. I. FACTS AND PROCEDURAL BACKGROUND2 Criado robbed a gas station in Big Sur and threatened a store clerk at the station with a knife. When officers arrested Criado, he had the knife “ ‘clipped on [his] side.’ ” Following a two-day trial, a jury found Criado guilty of robbery (§ 211) and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The jury also found Criado had personally used a deadly or dangerous weapon during the commission of the robbery. (§ 12022, subd. (b)(1).) Criado waived his right to a jury trial on the remaining enhancements, and the trial court found true the allegations that Criado had served two prior prison commitments. (§ 667.5(b).) One of the prison priors was for check fraud (§ 476) and <mask> (§ 459), and the other was for assault with a deadly weapon (§ 245). The probation report prepared for Criado’s original sentencing identified the following five possible factors in aggravation: The crime involved the threat of great bodily harm to the victim as he was performing his job duties (Cal. Rules of Court, rule


The defendants claim there is no procedural authority for this motion. The prosecutor refers to CPL 210.20 (1) and People v Dykes (86 AD2d 191) as the foundations for granting leave to re-present. These citations, of course, deal with vastly different circumstances. CPL 210.20 (1), insofar as remotely applicable to the argument raised by the People, deals with dismissals of indictments as defective or as unsupported by legally sufficient evidence. (CPL 210.20 [1] [a], [b].) It is subdivision (4) that the prosecutor intends to invoke in such a *72situation: "Upon dismissing an indictment or a count thereof upon any of the grounds specified in paragraphs (a), (b), (c) and (i) of subdivision one * * * the court may, upon application of the people, in its discretion authorize the people to submit the charge * * * to the same or another grand jury.” This familiar procedure has been in the Criminal Procedure Law since its inception in 1971. It is inapplicable at bar for two reasons. First, a motion to inspect and dismiss must fail if the Grand Jury minutes support the charge or any lesser included offense. (CPL 210.20 [1] [b].) And, as already mentioned, this court found that the Grand Jury minutes supported criminal trespass, third degree, manifestly a lesser included offense of <mask>, third degree. Secondly, this court did not dismiss after its inspection of the minutes. It simply reduced the charge.


At some hour between 4:30 p.m. on December 20, 1974 and 7:30 a.m. on December 23, 1974, the premises of the Dutch Masters Paint & Chemical Co., Ltd., were burglarized. As said premises had been broken into on numerous prior occasions, a special police unit had been assigned to investigate the prior burglaries. In the course of the investigation, following the <mask> in question, latent fingerprints were found on two objects inside the premises.


Defendant was charged with <mask> in the third degree stemming from an incident where items owned by the victim — specifically, a chainsaw and a gas can — were stolen from the victim's garage. Following a jury trial, defendant was convicted as charged. County Court sentenced defendant, as a second felony offender, to a prison term of 3½ to 7 years. Defendant appeals. We affirm.


The relator was taken into custody in this jurisdiction on or about May 17, 1968, on charges which ultimately resulted in an indictment by the Grand Jury of Westchester County for <mask> in the third degree, possession of burglar’s tools, assault in the second degree and resisting arrest. On September 18, 1968, he pled guilty to two misdemeanors in full satisfaction of the indictment and was sentenced on October 11,1968, to concurrent terms of one year. Relator remained in custody under these sentences until the completion in March, 1969. On November 6, 1967, a bench warrant was issued from Montgomery County, Pennsylvania, charging the relator with a violation of parole. This warrant was received by the Sheriff of Westchester County on January '27, 1968, and on March 13, 1969, the relator was arraigned on the fugitive information, refused to waive extradition and bail was set at $1,000. On April 11, 1969, relator was informed that there was also an outstanding charge from the State of Pennsylvania of ££ Assault with Intent to Ravish a fifteen-year old juvenile ”. On April 22, 1969, relator was arraigned on the warrant of the Governor of the State of New Ydrk dated April 10, 1969, for his extradition to the State of Pennsylvania.


Assuming arguendo, the defendant did commit the crime in the nighttime, it would still constitute a felony in this State even under article 1389 of the Texas Penal Code. The latter statute states in part: 11 entering a house by force, threats or fraud, at night ’ ’ and these acts would constitute a <mask> in this State. Section 400 of the Penal Law defines the word “ break ”: “3. Obtaining an entrance into such a building or apartment, by any threat or artifice used for that purpose, or by collusion with any person therein.”


The evidence at the trial, however, established that it was one room, described by Greenidge at trial as a mainte*11nance room, about 10 by 12 or 8 by 12 feet in size, containing tools and materials used in his maintenance of 1036 Bedford Avenue. The complainant described the building 1036 Bedford Avenue as a three-family dwelling house with a store on the first floor. On the second floor across the hall from the locked door in question was an occupied apartment. Greenidge testified that he did not know the defendant or give him permission to enter 1036 Bedford Avenue or the maintenance room, or to damage the door and lock to that room. No doubt, if the Grand Jury had been aware of the facts, the indictment would have alleged <mask> in the second degree for entering the “dwelling” 1036 Bedford Avenue with intent to commit a crime (see Quinn v People, 71 NY 561), or burglary in the third degree, for entering the “building” 1036 Bedford Avenue with intent to commit a crime, instead of attempted burglary in the second degree, for attempting to enter the “dwelling” on the second floor of the house. But the trial court was not empowered to change the conceded theory of the indictment by substituting the entire building for the maintenance room as the subject to the alleged attempted burglary, or by substituting a completed crime for the attempt. The nature of the subject premises and the defendant’s conduct as an attempt to enter it are elements of the crime, and once charged by the Grand Jury may not be changed by the trial court. (People v Spann, 56 NY2d 469.)


The court providently exercised its discretion in denying defendant's mistrial motion, made after the prosecutor elicited testimony on cross-examination of defendant that indirectly referenced an uncharged crime, consisting of an earlier entry by defendant into the store in question on the day of one of the charged crimes. That brief testimony caused little or no prejudice in the context of the case, and the court's curative instructions directing the jury to disregard the testimony rectified any possible prejudice (see People v Santiago, 52 NY2d 865 [1981]). Defendant claims that this testimony, and the prosecutor's failure to disclose that there were two entries on the day of the first <mask> (rather than one entry with an apparent discrepancy as to the time), prejudiced his defense. However, we find that the court's instruction, which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]), to disregard the


The California Supreme Court has provided some guidance as to when "the same act or course of conduct" is involved in multiple offenses for purposes of section 654 's preclusion of successive prosecutions. Kellett involved a defendant arrested for the single act of standing on the sidewalk with a pistol in his hand. He was charged with and pled guilty to a misdemeanor charge of exhibiting a firearm in a threatening manner, and later separately prosecuted for felony possession of a concealable weapon. The Supreme Court held that the felony prosecution was barred by section 654, notwithstanding the possibility the defendant had possessed the firearm for some time before he was observed brandishing it. (See Kellett , supra , 63 Cal.2d at pp. 824-825, 48 Cal.Rptr. 366, 409 P.2d 206.) The offenses were too "interrelated," in other words, to permit separate prosecutions. (See id . at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) Kellett also gave as an example that "[a] conviction and sentence for petty theft would therefore bar a subsequent prosecution for <mask> of premises entered with intent to commit that theft, since only a single act within the meaning of section 654 would be involved." ( Id . at p. 828, 48 Cal.Rptr. 366, 409 P.2d 206.)


Seth L. Marvin, J. By an indictment filed on November 9, 2007, the defendant Frank Bennet was charged with <mask> in the second and third degrees, criminal trespass in the second degree, criminal impersonation in the first degree and false personation. On May 27, 2009, on motion of the People, the count charging second-degree burglary was dismissed. Then defendant pleaded guilty to third-degree burglary and first-degree criminal impersonation. On November 10, 2009, defendant was sentenced, as a second felony offender, as promised, to two consecutive terms of imprisonment of from 3V2 to 7 years for the burglary count and IV2 to 3 years for the criminal impersonation count. Defendant waived his right to appeal as part of the plea bargain.


After the release of our initial opinion in this matter, the Supreme Court issued its opinion in Colbert , which presented the following question concerning the line separating shoplifting from <mask>: "If a person enters a store during regular business hours but then proceeds to a private back office *996with intent to steal therefrom, which crime has he or she committed?" ( Colbert, supra , 6 Cal.5th at p. 598, 242 Cal.Rptr.3d 665, 433 P.3d 536.) In rejecting Colbert's claim that he was guilty only of misdemeanor shoplifting, the court concluded that "entering an interior room that is objectively identifiable as off-limits to the public with intent to steal therefrom is not shoplifting, but instead remains punishable as burglary." ( Ibid. )


*27Prior offense Conviction Sentence Release Rulings Rulings date date on on Prop. 47 motions petitions to strike (1) First degree 5/25/90 2 years' 6/30/91 Denied <mask> (former prison (Romero) § 460.1) (2) Failure to 4/28/92 3 years' Not indicated appear upon probation; release (§ 1320, 378 days' subd. (b)) jail (3) Felon in 12/3/92 4 years' 12/28/94 possession of prison firearm (former § 12021, subd. (a)) (4) Felon in 10/6/95 32 months' 09/18/97 possession of prison firearm (former § 12021, subd. (a)) *895(5) Failure to 12/16/99 6 years' 5/15/04 appear for prison felony charge (§ 1320.5) (6) Attempted 3/23/05 16 7/12/05 vandalism months' (§§ 664, 1320.5) prison (7) Receiving 6/26/06 44 Not Granted stolen property months' indicated (§ 496) prison (8) Attempted 12/15/09 16 11/06/10 granted unlawful months' possession of prison controlled substance (Pen. Code, § 664; Health & Saf. Code, § 11350) (9) Second 10/12/12 4 years' 5/24/14 degree burglary prison (§ 460, subd. (b)) At the trial on the prior prison enhancements, defense counsel noted that convictions 7 and 8 above had previously been reduced to misdemeanors under Proposition 47 and, without those convictions, more than five years passed from the ninth felony conviction and the six earlier felony convictions, and Kelly should not be subject to enhancements for the six earlier felony convictions due to the washout rule.


¶ 17 At the posttrial hearing, Carroll testified that prior to trial he reviewed the discovery provided by the State and developed a defense strategy. It was twofold. First, he sought to convince the court that Dennewitz assumed “the other part of the fingerprint belonged to [defendant]” and, thus, had not made a “positive identification.” To achieve that goal, he asked Dennewitz whether he had simply assumed the missing part of the print belonged to defendant. Second, Carroll testified that he attempted to show the State failed to prove defendant was not a guest of Slowinski’s friend the week prior to the <mask> and that it was thus impossible to determine when defendant’s fingerprint appeared on the headphone case.


The plaintiff was convicted after a trial by a jury of the crimes of <mask> in the third degree and grand larceny, second degree. Upon being sentenced for said crimes, the District Attorney filed an information against him charging him with being a multiple offender. Plaintiff was represented by counsel who, after hearing the information, stated “ We do not admit that the other two alleged felony convictions read by the district attorney are really felonies as provided in the statutes of the State of New York ”. Plaintiff was thereupon sentenced as a third felony offender. He appealed his case to the Appellate Division, Third Department and was successful in obtaining a reversal of the jury verdict and a new trial. The question of whether or not the plaintiff was a multiple offender was not raised or decided in the Appellate Division.


In October 1996, the People charged Berg with murder (§ 187) (count 1), and alleged the special circumstance that Berg committed the murder in the course of a robbery (§ 190.2, subd. (a)(17) ), and during the commission of a <mask> (§ 190.2, subd. (a)(17) ). The People also alleged that Berg personally used a knife during the murder (§ 12022, subd. (b)(1) ). In addition, the People charged Berg with conspiracy to commit robbery and burglary (§ 182, subd. (a)(1) ) (count 2), robbery (§ 211) (count 3), and burglary ( § 459 ) (count 4) and alleged a knife use allegation with respect to each count (§ 12022, subd. (b)(1) ). Counts 1 through 4 were all related to the Hancock murder.


_______________________________ SUMMARY We reverse the trial court’s summary denial of a recommendation of the secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall the sentence of and resentence defendant Victor Guadalupe Ladd. We remand for reconsideration in accordance with statutory changes that went into effect on January 1, 2022. FACTS In October 2020, the secretary of the CDCR recommended a recall of sentence and resentencing for defendant under then- effective Penal Code section 1170, subdivision (d)(1). (All statutory references are to the Penal Code.) That statute authorized a court, at any time after receiving a recommendation from the secretary, to recall an inmate’s sentence and resentence that inmate to a lesser sentence. Defendant was convicted, under a plea agreement, of second degree robbery, enhanced for the use of a firearm, and two counts of second degree <mask>. He was sentenced to 14 years four months, and his earliest possible release date is February 11, 2026. The secretary pointed out that courts are now empowered with discretion to strike or dismiss a personal use firearm enhancement at sentencing or resentencing, in the interest of justice, and recommended resentencing. In November 2020, the trial court summarily “read, considered and denied” the request. Defendant appealed, arguing the trial court abused its discretion in declining to follow the CDCR’s recommendation, and asserted the trial court’s summary denial violated due process and equal protection principles. While defendant’s appeal was pending, the Legislature enacted and the Governor signed Assembly Bill No. 1540 (AB 1540; 2021-2022 Reg. Sess.). Among other things, AB 1540


¶ 19 On appeal, defendant asserted that the evidence was insufficient to find him guilty beyond a reasonable doubt of residential <mask>. Defendant argued that the only evidence tying him to the offense consisted of a single, partial fingerprint on a portable object. Additionally, the State did not offer evidence that Dennewitz followed the accepted methodology for identifying latent fingerprints by verifying his results with another examiner. The appellate court agreed and reversed his conviction. 2020 IL App (1st) 172631, ¶¶ 28-29.


Kevin Jennings was the People’s main witness at the Sirois hearing. Mr. Jennings is currently incarcerated on a <mask> *542charge for criminally impersonating a cable employee in order to gain access to the victim’s home. Mr. Jennings also is being held for violating the terms of his parole on a prior gun conviction and concedes he has been convicted on several occasions for "sucking tokens” out of Transit Authority turnstiles. Defendant admits having a number of prior bench warrants and manipulating the legal system to obtain a "package deal” upon a subsequent arrest and the execution of the outstanding bench warrant.


Amack's sentencing challenge—whether his earlier aggravated-<mask> conviction was properly classified as a person felony—requires us to interpret the Kansas Sentencing Guidelines. See State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015). Appellate courts interpret statutes de novo. Wetrich, 307 Kan. at 555. "The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained." Keel, 302 Kan. at 572. If statutory language is plain and unambiguous, using the words' ordinary meanings, then the plain text controls. 302 Kan. at 572. If a statute is ambiguous, courts may resort to other considerations such as canons of construction or legislative history to determine legislative intent. 302 Kan. at 572. Courts construe statutes to avoid unreasonable results and should assume the legislature enacted statutory provisions for a reason. 302 Kan. 560, Syl. ¶ 7.


*567Plaintiff had carried this, or similar <mask> insurance with defendant for five years or more before the loss. Defendant does not attack the claim of burglary. It does not question the honesty of the officer. It does not charge fraud. It does not say that the officer testified falsely. It does not say that plaintiff failed to follow its instructions for keeping records. Hone of these elements are present in this case. Instead, having accepted premiums without audit or instructions for over five years, and a loss having finally occurred, defendant seeks to hang its hat on naked technicalities to avoid its side of the bargain. On this record it has not established its right to do so.


Mulvey contacted defendant, who at first denied any knowledge of the <mask>, but explained that Brink owed him some money and offered to buy some merchandise for him at the mall as repayment. He said that Brink made the purchases but did not tell defendant that the card was stolen. On June 23, 1992 Mulvey spoke with Brink, who admitted that defendant had driven him around Conklin in search of a place to burglarize. Brink said that defendant dropped him off on Powers Road and he then burglarized the Bailey residence. Brink said that defendant drove him to the mall where they made purchases with the stolen credit card. Brink also involved defendant in other burglaries.


The possessory offenses, to which defendant Fletcher pleaded guilty, and the charge of third degree <mask> were joinable under CPL 40.40 (subd 1); the defendant’s guilty plea does not bar prosecution for the burglary because of an exception to the joinder doctrine provided in CPL 40.40 (subd 2). That exception permits a subsequent prosecution of the uncharged offense if, at the time of disposition (by plea or trial) under the first accusatory instrument, the People did not possess evidence legally sufficient to support a conviction of the uncharged offense. As previously discussed, the record supports the District Attorney’s contention. The People’s proceeding with the burglary charge is clearly not the product of harassment or overzealous prosecution. It is simply the culmination of a diligent investigatory process where evidence essential to prove the more serious charge was only adduced subsequent to the defendant’s plea of guilty on the misdemeanor complaint. Therefore, in the instant case, neither the letter nor intent of CPL 40.40 is contravened by prosecution of defendant Fletcher under the burglary count of the indictment.


In 1999, defendant pleaded guilty to all charges in a pending indictment, consisting of attempted <mask> in the first degree, attempted assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced as a second felony offender to, among other things, 12 years in prison on the attempted burglary conviction. His conviction was subsequently affirmed on appeal (278 AD2d 662 [2000]). Defendant thereafter sought to set aside his sentence pursuant to CPL 440.20 on the ground that he had not been advised that his sentence included a mandatory period of postrelease supervision. This application was denied, and the denial was upheld upon appeal (4 AD3d 627 [2004], lv denied 2 NY3d 803 [2004]). In 2009, defendant was resentenced on the attempted burglary conviction to the original prison term of 12 years, to be followed by five years of postrelease supervision (see Correction Law § 601-d). Defendant appeals from the judgment resentencing him.


Prior to trial, on November 30, 2015, the prosecutor filed an in limine motion seeking to impeach defendant with (1) the fact of his two felony convictions for first degree <mask> "should [defendant] elect to testify at trial" and (2) the underlying facts of the felonies and of a misdemeanor conviction "with evidence that he is known to regularly carry knives" in the event defendant were to " 'open the door' " during his testimony. The prosecutor professed not to seek to use these convictions for Evidence Code section 1101, subdivision (b) purposes, as the district attorney conceded "their probative value is likely substantially outweighed by their prejudicial effect given the issues in this case." He reiterated that position at a hearing on the in limine motions held the same day. However, the prosecutor said he "would seek to explore those areas were the defendant to testify, were he to open the door about weapons, violence, et cetera." The court reserved ruling on the matter until such time as "we're able to determine if the defendant testifies. And then prior to his testimony, you can make your offer of proof at that point."


The juvenile court also denied E.P.'s motion to dismiss because it concluded that although the ice rink is a commercial establishment, the rink's locker room was not part of the commercial establishment. In Colbert , supra , our Supreme Court addressed whether the nonpublic areas of a business structure form part of the " 'commercial establishment' " covered by the shoplifting statute. ( Colbert, supra , 6 Cal.5th at pp. 600-601, 242 Cal.Rptr.3d 665, 433 P.3d 536.) There, the defendant entered the private offices of a convenience store and a gas station and stole about $ 300 on two separate occasions. ( Id. at p. 598-599, 242 Cal.Rptr.3d 665, 433 P.3d 536.) The defendant petitioned to redesignate the two <mask> convictions as shoplifting misdemeanors, but the trial court denied the petition. The appellate court affirmed the denial of the defendant's petition on the ground that the private offices were not part a " 'commercial establishment' " covered by section 459.5. ( Id. at pp. 600-601, 242 Cal.Rptr.3d 665, 433 P.3d 536.)


Statutory references are to the Penal Code unless otherwise indicated. Defendant was convicted of one count of <mask> for sexual purposes (§ 209, subd. (b)(1)); one count of kidnapping during a carjacking (§ 209.5, subd. (a)); one count of carjacking (§ 215, subd. (a)); one count of second degree robbery (§§ 211, 212.5, subd. (c)); active participation in the criminal conduct of a criminal street gang (§ 186.22, subd. (a)); two counts of forcible sexual penetration (§ 289); two counts of forcible sodomy in concert (§ 286, subd. (d)(1)); two counts of forcible rape in concert (§ 264.1, subd. (a)); and four counts of forcible oral copulation in concert (§ 288a, subd. (d)(1)).


At the conclusion of a court trial, Jeremiah Charlie Brewer (defendant) was convicted of sexual penetration by force ( Pen. Code, § 289, subd. (a)(1)(A) ; count 1), assault with intent to commit rape or forcible sexual penetration during the commission of first degree burglary (id ., § 220, subd. (b); count 2), and <mask> to commit rape or forcible sexual penetration (id ., § 209, subd. (b)(1); count 3). The court found true allegations in count 1 that defendant substantially increased the risk of harm to the victim inherent in the offense by kidnapping her (id ., § 667.61, subds. (a), (d)(2)), committed the offense during the commission of first degree burglary with the intent of committing sexual penetration by force (id ., § 667.61, subds. (a), (d)(4)), and kidnapped the victim to accomplish the offense (id ., § 667.61, subds. (b), (e)(1)). Defendant was sentenced to an unstayed term of 25 years to life in prison.


Aside from being unnecessary to our analysis ( Dillon, supra, 34 Cal.3d at p. 487, fn. 38, 194 Cal.Rptr. 390, 668 P.2d 697 ), an interstate comparison is also the least useful means of assessing proportionality in the present case because it is so difficult to determine what sentence a like crime-considering all circumstances related to the offense and offender-would receive in other jurisdictions. The fact that-as will be discussed-many states authorize punishment of up to life in prison for a <mask> in facially similar circumstances (i.e., for the purpose of robbery, with use of a firearm and without injury to the victim) is *727of limited significance without knowing whether and how such states would account for matters such as the facts that the firearm was not loaded and appellant was 17 years old. In general, reliance upon an interstate comparison may be subject to the criticism leveled by respondent here, that even if California imposes the harshest penalty for a given offense, this does not necessarily demonstrate the penalty is constitutionally excessive. ( People v. Martinez , supra , 71 Cal.App.4th at p. 1516, 84 Cal.Rptr.2d 638.) Nevertheless, a few points are worth making.


Turning again to plain error, where, after a conviction following a jury trial, the trial judge imposed an incorrect sentence, we have found plain error and ordered the trial court to correct the sentence. See State v. Thorpe, 280 Neb. 11, 26, 783 N.W.2d 749, 762 (2010) (remanding with directions to resentence to life imprisonment because “life imprisonment without parole” was not a valid sen- tence for first degree murder). In this instance, the incor- rect sentence constituted plain error, and we remand for imposition of a sentence of life imprisonment. Betancourt I, 295 Neb. at 192, 887 N.W.2d at 313. Despite this direction, the district court on January 27, 2017, resentenced Betancourt to a term of “life imprisonment without parole.” We agree with Betancourt and the State that counsel was deficient by failing to object to an improper sentence for count III, conspiracy to commit <mask>. Because this is a post conviction proceeding brought under the provisions of § 29-3001 et seq., rather than vacating this sentence, this court is required to remand the cause to the trial court for a hearing. See State v. Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984).


Penal Code section 667.5, subdivision (c) defines 23 criminal violations, or categories of crimes, as violent felonies-including murder, voluntary manslaughter, any robbery, <mask>, various specified sex crimes, and other offenses. Being a felon in possession of a firearm and evading a police officer while driving recklessly-Edwards' crimes triggering his Three Strikes sentence-are not among the violent crimes listed in Penal Code section 667.5, subdivision (c).


Jeffrey S. Brown, J. An indictment has been filed against the defendant Raymond Klinger accusing him of the class B felony of rape in the first degree, class B felony of <mask> in the second degree, *575class B felony of aggravated sexual abuse in the first degree, class A misdemeanor of sexual abuse in the second degree, class B felony of assault in the first degree, class D felony of assault in the second degree (two counts) and the class D felony of reckless endangerment in the first degree. The indictment also accuses both defendants, Michael Klinger and Raymond Klinger, individually and aiding and abetting and being aided and abetted by each other of the class E felony of tampering with physical evidence and the class E felony of hindering prosecution in the second degree.


The threat Montellano claimed defendant made cannot be heard on the video; the camera recorded no audio at all. That means that on the key issue of whether Montellano was unlawfully moved by fear, her testimony-impeachable for the reasons identified by the majority ante at pages 913 to 914-was largely if not entirely uncorroborated. Under the circumstances, and with the other points I have already discussed in mind, I cannot hold harmless the admission of the incriminating statements the detectives obtained in violation of Miranda . In my view, a new trial is required on both the murder charge and the <mask> charge.


But the question here is not whether a life sentence for the offense of <mask> for robbery is proportionate in the abstract. "[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability." ( Dillon, supra, 34 Cal.3d at p. 480, 194 Cal.Rptr. 390, 668 P.2d 697.) In Rodriguez , the California Supreme Court found that a potential life sentence for a conviction of committing a lewd and lascivious act upon a child was not constitutionally excessive because of the wide range of conduct within the ambit of the statute. ( Rodriguez, supra, 14 Cal.3d at pp. 647-648, 122 Cal.Rptr. 552, 537 P.2d 384.) The court recognized, however, that "the offense described in section 288 encompasses conduct for which life might be a permissible punishment in some cases but excessive in others" and found that the 22 years served by the defendant in that case was constitutionally excessive. ( Id. at pp. 647, 653, 122 Cal.Rptr. 552, 537 P.2d 384.) Rodriguez explained: "The offense committed here is by no means 'trivial,' but the method of its commission involved no violence and caused no physical harm to the victim. The episode lasted only a few minutes. No weapon was involved and petitioner attempted none of the dangerous offenses sometimes associated with violations of section 288." ( Id. at pp. 654-655, 122 Cal.Rptr. 552, 537 P.2d 384.)


Defendant's argument on appeal is that his belief he had killed Kerr when he strangled her meant he did not commit a <mask> for purposes of the special circumstance allegation because a movement of the victim is a required element of kidnapping, and the victim must be alive to be kidnapped. The asserted mistaken belief here is analogous to that at issue in Mayberry : If the victim is dead, she cannot give or withhold her consent to the movement. In People v. Hillhouse, supra, 27 Cal.4th at page 499, 117 Cal.Rptr.2d 45, 40 P.3d 754, this court held that, like the crime of rape, kidnapping requires a live victim. For this proposition Hillhouse cited People v. Kelly (1992) 1 Cal.4th 495, 524, 3 Cal.Rptr.2d 677, 822 P.2d 385, which explained *397that the crime of rape requires a live victim because rape is an act of intercourse against a person's will and a dead body cannot consent to, or protest against, the intercourse.


Dominic R. Massaro, J. *351Defendant, Pedro Soto, was convicted by a jury on May 25, 1993 of acting in concert with others in committing the crimes of murder in the second degree (Penal Law § 125.25 [1]), three counts of <mask> in the first degree (Penal Law § 135.25 [2] [a], [c]; [3]), conspiracy in the second degree (Penal Law § 105.15), and criminal impersonation in the first degree (Penal Law § 190.26). He was thereafter sentenced on July 2, 1993 to concurrent indeterminate terms of imprisonment of from 20 years to life for the murder count, 15 years to life for each of the kidnapping counts, 6 to 12 years for the conspiracy count, and IV2 to 3 years for the criminal impersonation count. Defendant now moves, for a second time, pursuant to Criminal Procedure Law § 440.10, to vacate his judgment of conviction. The motion is denied.


Stuart Namm, J. Defendant Ferdinand Valero is charged in indictment number 1318-83 with the commission of two counts of *540<mask> in the first degree in violation of section 135.25 (subd 2, pars [a], [b]) of the Penal Law. The defendant moves to dismiss the indictment upon several grounds. Some of the arguments made by the defendant are novel and appear to raise questions of first impression. His application is decided as follows:


*854Treating <mask> and unlawful imprisonment of a minor as sex offenses subject to registration and notification is rationally related to the legitimate governmental objectives underlying the adoption of JWA and SOBA. Petitioners have failed to meet their burden of showing beyond a reasonable doubt that SOBA is unconstitutional as applied to them. Petitioners’ applications to be exempted from the registration requirements of SOBA accordingly are denied.15


*619The information alleged two circumstances, gun use and <mask>, and the gun-use circumstance was specifically pleaded. After a jury convicted the defendant of multiple violent sex offenses against two different victims, and despite the fact that "[n]either the original nor amended information ever alleged a multiple victim circumstance" under section 667.61, subdivision (e)(5), the trial court imposed the enhancement. ( Mancebo , at pp. 740, 743, 117 Cal.Rptr.2d 550, 41 P.3d 556.) The defendant appealed and asserted the One Strike law's pleading provision required the multiple victim circumstance to be "specially alleged in the information and proved" before the People could use that circumstance in support of a One Strike sentence. ( Id . at pp. 740-741, 117 Cal.Rptr.2d 550, 41 P.3d 556.) The Court of Appeal agreed and ordered the enhancements stricken. ( Id. at p. 741, 117 Cal.Rptr.2d 550, 41 P.3d 556.) The Supreme Court affirmed, concluding "the trial court erred at sentencing when it purported to substitute the unpled multiple victim circumstances for the properly pleaded and proved gun-use enhancements in support of the One Strike terms." ( Id. at p. 754, 117 Cal.Rptr.2d 550, 41 P.3d 556.)


A fourth potentially harmful condition the court found was Mother's failure to adequately appreciate and understand the concerns that brought Son under the court's jurisdiction and prevented him from returning to her care, which the court believed pose a future safety risk because her behavior and actions are likely to continue. Specifically, the court noted that Mother testified that she believes this was a case of medical <mask> done by the Division for financial gain and that the reason Son had not been returned to her care was because the case worker wanted *338Son to be adopted. Mother testified that, if Son were released to her custody, she would not continue with any individual or family therapy, or any other services, unless they were court ordered. She said that she would need help only with babysitting and would take care of Son's needs, which are extensive, by herself. Yet, Mother admitted that she had never inquired as to potential daycare services for Son and had never inquired as to whether Son could obtain the special services he is currently receiving if he moved into her school district. She was unable to articulate any specific plan for ensuring that Son continued to receive the services he needs.


The Appellate Division, Second Department, rejected defendant’s claim that the second degree <mask> charge merged with the first degree assault charge, since, (1) as to both Dogan and the child, defendant was charged only with kidnapping, not assault and, thus, there was no charge into which kidnapping could merge and, (2) as to Ms. Onar, the kidnapping and the assault were two separate and distinct crimes, unrelated to each other. The assault was not part of the kidnapping and was brought on by Ms. Onar’s attempt to escape.


In a powerful concurrence, Judge Kleinfeld outlined the problems with reading the statute too broadly: “<mask>, punishable by life imprisonment, is not committed whenever someone is held against their will, as when one person grabs another to do harm, and the victim says ‘Let me go.’” Id. at 428 (Kleinfeld, J., concurring). Otherwise, prosecutors would have “unfettered discretion to charge the same 10 UNITED STATES V. JACKSON