Respondent took her action pursuant to DOCCS regulations, 9 NYCRR 8005.20 (c) (6). This provision first recognizes that, under Executive Law § 259-i (3) (f) (x): “A decision within these guidelines may be made by the presiding officer as a final and binding decision for all categories of violators, other than those serving sentences for felony offenses under article 125, 130, 135 or 263 of the Penal Law or section 255.25 thereof.” The excepted categories of offenses include homicide, kidnapping, and sex crimes, which comprise <mask> in the first degree of which petitioner was convicted. (Penal Law § 130.35.) For violators convicted of these offenses, section 8005.20 (c) (6) fails to recognize that, under the governing statute, “a hearing officer who is not a Parole Board member may ‘fix’ time assessments without Board approval, regardless of the underlying conviction.” (May-*176field v Evans, 93 AD3d at 105.) Instead, the regulation requires that


On the count alleging incest, the jury was instructed, in substance, that the gravamen of the offense was an act of intercourse with a relative within the prescribed line of consanguinity. The jury was further instructed that if <mask> was to be the basis for *882a finding of incest, corroboration of the testimony of the prosecutrix was necessary and that if mutual consent to an act of sexual intercourse was to be the basis for such a finding, there would also have to be corroborative evidence tending to connect the defendant with the commission of the crime, since under such circumstances the half sister would be an accomplice. While there was no exception to the charge and it is not directly challenged, or is it even the subject of comment by the defendant on this motion, its accuracy is nonetheless involved in the defendant’s contention that the jury’s verdict is contrary to law because an incestuous act presupposes mutual consent.


Therefore, the question must logically turn to a determination of what efforts the People have made in attempting to locate the defendant, and what chance exists that the defendant, if located, could or would be returned to the jurisdiction to face the charges. To that end, Detective Hess testified at length regarding his efforts to find Mr. Cruz. In addition to visiting the defendant’s last known address and place of employment, the detective sent letters, met with the Freeport Police, went to New York City to interview witnesses and ultimately determined, in all likelihood, where the defendant *291was. In regard to his efforts to secure the defendant’s return from the Dominican Republic, Detective Hess testified that he made several phone calls to the Federal Bureau of Investigation and to the United States Attorney’s Office to inquire about the existence of extradition treaties and procedures to follow in attempting to secure the defendant’s return from the Dominican Republic. When asked to summarize those efforts, Detective Hess’ response to questioning by the People was, “No luck so far.” When questioned further by defense counsel, Detective Hess was more specific in his responses as to who he had spoken with at the FBI and the name of the Assistant United States Attorney and the dates of those conversations. He also indicated during his testimony that he was aware of an extradition treaty that exists between the United States and the Dominican Republic, that he was aware that <mask> was an offense included in that treaty, and that he had never formally applied to the Governor, the State Department or the Department of Justice for an extradition warrant. He then reiterated his position that he had no luck thus far, and was still waiting to hear back from someone.


Our decision in Kennedy v. State , 411 S.W.3d 873 (Mo. App. S.D. 2013), controls the resolution of this appeal. In Kennedy , the trial court granted Kennedy's petition to have his name removed from Missouri's sexual offender registry in connection with two convictions for statutory <mask> in the second degree under section 589.400.3(4) and .7. Id. at 874-75. Although not specifically addressed in the opinion, it appears that Kennedy's requirement to register under federal law for these two convictions had expired. Id. at 878 n.6 ("Both parties concede that Kennedy was required to register as a sex offender under federal law for his convictions of second-degree statutory rape.... In fact, Kennedy specifically acknowledged 'since [he] was previously required to register as a sex offender under federal law for his convictions of statutory rape in the second degree, he is required to register as a sex offender [under section] 589.400.1(7).' "). In reversing the trial court, we stated:


With the above rule in mind, let us examine again what the situation is in this particular case. The facts are admitted to be the same. It is not now charged that the defendant committed <mask> but attempted rape. If rape were charged, then it would appear clearly that additional facts must be proved to constitute that crime than the facts admitted to constitute the misdemeanors and that the facts as to the crime of rape had never been passed upon or adjudicated. The felony charged here, however, is an attempt to commit rape.


. The need for judicial intervention in this area of the law was to discourage the perceived prosecutorial practice of trying to "balloon” the potential severity of sentences for <mask>, robbery, and/or assault offenses by combining them with a kidnapping charge (and hopeful conviction) since, under the Penal Law prior to its 1967 revision, the latter was punishable by substantially more than any of the former.


T.C.A. § 39-13-518(b)(1), (2). Multiple acts of sexual abuse of a child means engaging in three or more incidents of sexual abuse of the same child on separate occasions, or engaging in five or more incidents of sexual abuse of two or more different children on separate occasions. Id. § 39-13-518(a)(1)(A)(i), (iii). <mask> of a child and aggravated sexual battery both qualify as sexual abuse of a child. Id. § 39-13-518(a)(2)(C), (D). As relevant here, subsection (e) sets out that the jury must unanimously agree that the defendant:


Thereafter, petitioner was able to obtain the vacatur of two of the three prior convictions (two burglary convictions in York County, Pennsylvania), as the basis for a multiple felony sen*864tence, and on October 14, 1952 he was ordered returned to this court for resentence. (Wyoming County Court, Conable, J.) On February 18, 1953 he was arraigned for resentence, and, a jury having determined that petitioner was the same person previously convicted in Philadelphia on October 11, 1938 of the crime of assault with intent to commit the crime of <mask>, he was on February 26, 1953 resentenced as a second felony offender to from 25 to 40 years on the rape conviction and to from 5 to 15 years on the immoral practices conviction.


As to Mr. Moreland, similar sentences were imposed as to counts 2, 3 and 4. However, Mr. Moreland had been subject to a prior serious felony juvenile dispositional order and was a minor when the present crimes were committed. Thus, Mr. Moreland's sentence differs in several respects from that imposed on Mr. Adams. Mr. Adams was not a juvenile at the time of the commission of the offenses specified in the second amended information. As to count 2, Mr. Moreland received a sentence of 50 years to life (25 years to life doubled because of his prior serious felony juvenile disposition) plus an additional: 10-year term pursuant to section 12022.53, subdivision (b) ; 5 years for great bodily injury pursuant to section 12022.8, subdivision (a) ; plus 10 years as a result of the section 186.22, subdivision (b)(1)(C) gang enhancement finding. As to count 3, Mr. Moreland received a 50-years-to-life sentence plus 10 years for firearm use and the gang enhancement. The sentences as to counts 2 and 3 were ordered to run consecutively pursuant to section 667.6 subdivisions (c) and (d). As to count 4, the kidnapping to commit <mask> or oral copulation conviction, defendant received a life sentence. The oral pronouncement of judgment makes no reference to counts 2 and 3, the sexual assault charges, running consecutively to the aggravated kidnapping sentence. The abstract of judgment states that counts 3, oral copulation in concert, and 4, kidnapping to *189commit rape and oral copulation, were ordered to run consecutively. Pursuant to section 186.22, subdivision (b)(5), Mr. Moreland received a 15 year minimum parole eligibility term. As noted, Mr. Moreland was a juvenile when he engaged in the crimes alleged in the second amended information. Pursuant to People v. Caballero (2012) 55 Cal.4th 262, 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291, the trial court imposed a minimum parole eligibility date of 35 years from the date of sentencing. (See Graham v. Florida, (2010) 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825.)


Contrary to the defendant’s contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter’s testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging <mask> or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked “the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment” (People v Foote, 251 AD2d 346, 346 [1998]). Accordingly, where the jury found the defendant guilty of only one or two of the crimes charged for that month, which *878occurred with respect to October and December 2006, February, April, September, and December 2007, and February 2008, the counts of rape in the second degree were duplicitous (see People v Black, 65 AD3d at 813; People v White, 41 AD3d at 1037-1038; People v Bracewell, 34 AD3d at 1198-1199; People v Dalton, 27 AD3d at 781). Accordingly, we vacate the defendant’s convictions of rape in the second degree under counts 3, 4, 9, 15, 16, 21, 22, 28, 29, 36, 42, and 43, vacate the sentences imposed thereon, and dismiss those counts of the amended indictment. The relevant counts of incest in the second degree arising out of these incidents have already been dismissed as multiplicitous, as discussed above.


Even assuming that the People’s obligation to preserve evidence extended until the time that the last appellate court determination was reached on April 3, 1991, I find that no legal consequence flows from the September 20, 1990 destruction of a <mask> kit, jeans and panties. No demand had been made for the items during the period during which preservation was required, nor did the People have any reason to believe that they would be.


Over two years later, on November 22, 1999, because of a pending CPL article 440 motion brought by Mr. O’Donnell’s appellate attorney, the still-sealed kit was brought by Officer Nazzaro to David Frey, a Richmond County Assistant District Attorney (ADA). Conceding that he had never done so for any other piece of evidence, Frey testified that he kept the Emma R <mask> kit locked in his desk drawer until December 28, 1999, when still sealed, it was brought to the Office of the Chief Medical Examiner by Officer Nazzaro and logged in.


Reeder testified that REACH ruled out any metabolic issues and that there was no medical finding that could explain Greg's injuries, which aided her conclusion that they were inflicted by trauma. Mother acknowledged that six doctors came to the same conclusion that Greg's injuries were inflicted, but disagreed with their assessment. She also agreed that Greg had no broken bone while in the hospital or in the Department's care, but had suffered twenty-four broken bones while in her and her husband's care for ten weeks. Yet, she still believed a medical condition was responsible for Greg's injuries. When asked how many times she had suffered a broken bone due to EDS, Mother testified she did not know because she "did not go to the doctor every time [she] did something to hurt [herself]," but acknowledged that she had never received medical treatment for a broken bone. According to W<mask> and John Armstrong, a court-appointed special *349advocate, Greg had not suffered any broken bones or unexplained bruising in the past year while in his foster home placement.


The defendant’s various objections to the methods and manner of the Grand Jury proceedings are also rejected. In particular, the minutes reveal that a quorum of grand jurors was present during the proceedings and at the time the Assistant District Attorney instructed the Grand Jury on the law, and that it was instructed that only those grand jurors who had heard all of the evidence could participate in voting on the matter. Furthermore, despite the defendant’s various surmises to the contrary, an inspection of the Grand Jury minutes demonstrates that the manner and tone of the Grand Jury proceedings concerning the defendant, as well as those *773concerning Mr. Marchisello, appear to be unremarkable and unprejudicial to the defendant. Moreover, while Mr. Marchisello’s name did come up in the testimony concerning the defendant, there was no prejudice to the defendant resulting from the fact that over a period of time, ending weeks before the presentation concerning the defendant, the same Grand Jury had heard evidence that Mr. Marchisello had committed other offenses. There is no evidence that the panel could not separate the cases and the charges against each defendant. (See, People v Vargas, 150 Misc 2d 1053, 1057 [Sup Ct 1991] [defendant was not prejudiced by presentation of separate murder cases and <mask> case to the same Grand Jury].)


Stanley B. Katz, J. The defendant, charged in a multiple count indictment for <mask> and sodomy, made an omnibus motion for certain relief but did not request any hearings, although he had received a CPL 710.30 (1) (a) notice that a statement had been made to a social worker in the presence of a police officer. Such notice was served subsequent to the Criminal Court arraignment of the defendant, but not after the Supreme Court arraignment.


Defense counsel first argues that the court should reduce the charge in counts one and two to charge <mask> in the first degree as defined in Penal Law § 130.35 (4) (actor over 18 and victim under 13) under CPL 210.20 (1) (h) and the rule of lenity.* Defense counsel notes that the elements of predatory sexual assault against a child are identical to those of rape in the first degree as charged in this indictment. Predatory sexual assault against a child is a class A-II felony, with a mandatory minimum sentence of 10 years to life and a maximum of 25 years to life. By contrast, rape in the first degree is a class B felony, with *893a mandatory determinate sentence having a minimum of five years and a maximum of 25 years, followed by at least five years of postrelease supervision. (See Penal Law § 70.80 [4] [a] [i]; § 70.45 [2-a] [f].) The two crimes also have different plea bargain restrictions: with respect to the predatory sexual assault against a child charge, the plea must be at least to a class C violent felony; whereas a defendant may plead guilty to a class D violent felony in satisfaction of a charge of rape in the first degree.


fn. 4; cf. People v. Loper (2015) 60 Cal.4th 1155, 1158, 1163 [defendant has a personal liberty interest to “ ‘suffer only . . . deprivation’ ” of liberty warranted by crimes and order summarily declining to exercise discretion to follow CDCR’s recommendation for recall and resentencing under § 1170, subd. (e), is an appealable order].) CDCR’s letter advised the trial court of a clerical error as to the designation of the statutory basis for the <mask> charge, an error the trial court could correct on its own authority. (In re Candelario (1970) 3 Cal.3d 702, 705.) The trial court ordered that clerical error corrected. CDCR’s letter also advised the trial court of an illegal sentence as to the One Strike allegation, either because it could not be imposed on a section 261(a)(1) conviction or because it had not been pleaded in the information. Based on the illegal sentence, CDCR’s letter advised the trial court it could “reconsider all sentencing choices,” citing to People v. Hill (1986) 185 Cal.App.3d 831. Accordingly, the letter invoked the trial court’s authority to resentence under section 1170(d)(1).9 An order declining to exercise section 1170(d)(1) discretion is an appealable order. Forfeiture The People contend this claim is forfeited by defendant’s failure to object in the original proceedings, on direct appeal, or on petition for review. Defendant contends imposing sentence based on the One Strike allegation was an unauthorized sentence, subject to correction at any time, and is the type of error the court should exercise its discretion to address. In supplemental briefing, defendant claims if the issue was forfeited, he received ineffective assistance of counsel.


Finally, in the third case, People v. White (2017) 2 Cal.5th 349, 212 Cal.Rptr.3d 376, 386 P.3d 1172 ( White ), the Supreme Court applied Gonzalez -the case involving oral copulation under former section 288a-to hold that a defendant could be convicted of both <mask> of an intoxicated person under section 261, subdivision (a)(3) and rape of an unconscious person under section 261, subdivision (a)(4)(A) based on the same act or course of conduct. ( White , at pp. 351-352, 212 Cal.Rptr.3d 376, 386 P.3d 1172.) In relevant part, section 261 provides: "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] ... [¶] (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. [¶] (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, 'unconscious of the nature of the act' means incapable of resisting because the victim meets any one of the following conditions: [¶] (A) Was unconscious or asleep."


The second major argument put forth in favor of the proposed changes in the Penal Law of New York, was the fact that awareness of women’s rights was rapidly changing in today’s society, and it was time to discard the anachronistic *968concept that women who are raped had probably "asked for it,” a concept which held them to be equally guilty in the eyes of many. Many women’s groups sought changes in the law in order "to focus attention exclusively on the actor’s conduct. In every other crime except a sex crime the only factor that is considered important is the behavior of the defendant. It is only in sex crimes that the victim has had to 'prove’ himself or herself, and in many cases the victim has been, effectively, put on trial along with the defendant to have his or her conduct judged.” (Snyder, Reform of New York’s <mask> Law Proposed, NYLJ, Dec. 14, 1978, p 4, col 2.)


1. The trial judge erred in refusing to allow a defendant to exercise a peremptory challenge; 2. The trial judge erred in refusing to sever J. Carr's trial from R. Carr's trial; 3. The trial judge erred in admitting Linda Ann Walenta's statements through law enforcement testimony; 4. The trial judge gave a faulty instruction on the sex-crime-based capital murders; 5. Three of the multiple-homicide-based capital murder convictions were multiplicitous with the first; 6. The district court lacked subject matter jurisdiction over any sex crime charges based on coerced victim-on-victim sex acts; 7. The trial judge erred by automatically excluding testimony from an expert on the reliability of eyewitness identifications; 8. The trial judge erred by giving an aiding and abetting instruction that discussed foreseeable crimes; and 9. One count of <mask> by digital penetration is muliplicitous with another.


After granting a review of the Grand Jury minutes in camera, the court finds no evidence therein of any alleged act of sodomy in the first degree. Female complainant testified concerning the alleged <mask> (Count One). The court finds sufficient facts to warrant the indictment for rape or any of its lesser included offenses (CPL 210.20, subd 1, par [b]; 210.30, subd 1; People v Leichtweis, 59 AD2d 383), and, if those facts were not otherwise controverted at trial, that there would be sufficient evidence to warrant a conviction for rape in the first degree or any lesser included offense. (See Mildwoff v Cunningham, 432 F Supp 814.) However, the only testimony by complainant in support of the alleged act of sodomy (Count Two) was “he raped me *** he placed his penis in my vagina *** and he also put his finger in my anus.”


It was clearly and understandably the legislative intent by enactment of this statute to protect the right of privacy of victims of sex offenses. There can be no serious dispute that reasonable cause exists to believe that Jane Doe was the victim of <mask> in the first degree. Section 130.35 (2) of the New York Penal Law reads "A male is guilty of rape in the first degree when he engages in sexual intercourse with a female * * * [w]ho is incapable of consent by reason of being physically helpless.”


¶3 There is no dispute that the charged <mask> and kidnapping took place in Indian Country, i.e., the Choctaw Reservation.1 This claim turns on the district court's resolution of the first question on remand, namely Wadkins's Indian status.2 Indian status has two components. Defendants, like Wadkins, must produce prima facie evidence that: (1) he or she has some Indian blood; and (2) he or she was recognized as an Indian by a tribe or the federal government. See State v. Klindt, 1989 OK CR 75, ¶ 5, 782 P.2d 401, 403 (holding a defendant has the burden to prove his or her Indian status for dismissal based on lack of state jurisdiction). The parties agree that Wadkins has some Indian blood and satisfies the first prong of the Indian status test. Indian blood alone, however, is insufficient to warrant federal criminal jurisdiction because "jurisdiction over Indians in Indian country does not derive from a racial classification but from the special status of a formerly sovereign people." St. Cloud v. United States, 702 F.Supp. 1456, 1461 (D.S.D. 1988). Within the ambit of federal criminal jurisdiction, the term "Indian" "includes both racial and political components of the Indian community." Parker v. State, 2021 OK CR 17, ¶ 39, 495 P.3d 653, 666. The recognition prong "in essence probes whether the Native American has a sufficient non-racial link to a formerly sovereign people." St. Cloud, 702 F.Supp. at 1461. While recognition is often proven by evidence of tribal membership, Parker, 2021 OK CR 17, ¶ 36, 495 P.3d at 666, recognition is in dispute in this case because Wadkins, although presently a citizen of the Choctaw Nation, was not a member when the charged offenses occurred.


The original Practice Commentary to subdivision 4 is especially enlightening: “The only purpose for this provision is to avoid repetition of a phrase in defining the crimes of sexual misconduct (§130.20) and <mask> (§§130.25-130.35), i.e., without this drafting device each of these offenses would have to describe the female-victim as one who is not married to the actor. This scheme does not suggest, however, that a husband may not be convicted of rape, as a principal (§ 20.00), when he aids another male in raping his wife. (§ 20.05 [3]) * * * If a woman is in fact legally married to the actor, it is immaterial that they are separated, with or without a judicial decree.” (Hechtman, *119Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 130.00, p 447; emphasis added.)


In People v Taylor (75 NY2d 277 [1990]), the Court of Appeals addressed the admissibility of expert testimony of “<mask> Trauma Syndrome”. In Taylor (at 288), the Court acknowledged that it has “upheld the admission of expert testimony in * * * child abuse cases despite the fact that childrearing and family life are familiar to the lay juror because the dynamics of sexually and physically abusive relationships within a family are not as familiar.” The Court concluded (at 293) that evidence of “Rape Trauma Syndrome” is inadmissible when it “inescapably bears solely on proving that a rape occurred”. Also, in People v Mercado (188 AD2d 941 [3d Dept 1992]), the Supreme Court again addressed the issue of expert testimony regarding “Rape Trauma Syndrome”. The Court held (at 942) such testimony may be admitted only “ ‘to explain [the victim’s] behavior that might appear unusual’ ” or that jurors might not be expected to understand. However, the Mercado Court found impermissible expert testimony about general behavioral characteristics and symptoms manifested by children who have suffered sexual *33abuse. The Court held this testimony went beyond merely serving to explain what would otherwise be viewed by the jury as evidence tending to exculpate the person charged. This comparison of the complainant’s behavior (the rape victim) with that commonly associated with victims of these crimes is impermissible.


. Examples of other article 130 crimes that do not include age as an element are: sexual misconduct (Penal Law § 130.20); <mask> in the first, second and third degrees (Penal Law § 130.35 [1], [3]; § 130.30 [2]); sodomy in the first, second and third degrees (Penal Law § 130.50 [1], [2]; § 130.45 [2]; § 130.40 [1], [3]); and second and third degree sexual abuse (Penal Law § 130.60 [1]; § 130.55).


It is well settled that the requirement for legal sufficiency is satisfied if there was competent evidence which, if accepted as true, would establish every element of an offense charged and a defendant’s commission thereof (CPL 70.10 [1]; see, People v Moquin, 142 AD2d 347, revd on other grounds 77 NY2d 449). We must conclude that in dismissing the <mask> charge, County Court credited the statement of defendant. However, "[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference; the standard that every hypothesis but guilt be excluded to a 'moral certainty’ is to be applied only by the trier of fact” (People v Deegan, supra, at 979). Thus, the Grand Jury could have chosen to ignore defendant’s statement and could quite possibly have inferred forcible compulsion from defendant’s "conduct and the surrounding circumstances” (People v Pereau, 64 NY2d 1055, 1057). Although defendant contends that there was no proof of forcible sexual intercourse, it is well settled that a gynecological examination need not show evidence of laceration or trauma for forcible compulsion to be determined (see, People v Murphy, 188 AD2d 742, lv denied 81 NY2d 890).


Here no act shown appears to have been a mere malum prohibitum violation of sumptuary law; or so remote in time from those others shown as to have no present materiality. Interrogation as to each act will flow from a reasonable "basis in fact” (People v Kass, 25 NY2d 123, 126); i.e., the sworn accusation laid. No adjudication in defendant’s favor on the merits reaches any act. No reason appears to distinguish between criminal gratification of sexual as opposed to financial desires as-denoting greater "honesty and integrity” (People v Sandoval, supra, p 377) in the one as over the other. Questioning will have a "purpose other than to show that [the] defendant is of a criminal bent or character and thus likely to have committed the crime charged” (People v Schwartzman, 24 NY2d 241, 247), since the paramount and critical issue of respective credibilities of two persons so clearly appears. The alleged victim may be assured of the usual searching cross-examination customary to <mask> cases, and, except as the same may be limited by CPL 60.42, past acts of hers comparable to those allegedly engaged in by defendant, if any, will be fully exploited.


The Family Court made the following relevant COLs: 9. "The use of force upon or towards another person is justified when the actor believes that such force is immediately necessary to protect himself against the use of unlawful force by the other person on the present occasion." HRS § 703-304(1) (2014). The reasonableness of the Minor's belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the Minor's position under the circumstances of which the Minor was aware or as the Minor reasonably believed them to be. The amount of force used by Minor was not reasonable under the circumstances. 10. "Deadly force" means force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm." HRS § 703-300 (2014). The act of Minor stabbing [CW] in the abdomen constituted deadly force. 11. "The use of deadly force is justifiable ... if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, <mask>, or forcible sodomy." HRS § 703-304(2). The Court does not find the use of deadly force by Minor was justifiable, and the use of said force was not objectively reasonable under the circumstances in this case.


*880After Sharp left, B.R. shut and deadbolted the door, grabbed her gun and cellphone, barricaded herself in the closet, and called 911. Deputy Jerry Simpson of the Garland County Sheriff's Office responded to B.R.'s call. While securing the scene, Simpson noticed an open window in the guest bedroom and discovered smudges on the outside of the window that were consistent with a handprint. He closed the window and then collected sheets and the washcloth that B.R. and Sharp had used to clean up. Medical personnel transported B.R. to the hospital where a <mask> kit was performed. A pelvic examination revealed that B.R. had a small vaginal-wall tear and that her vagina was red and inflamed.


Conceivably the court today would not arrive at the same conclusions reached in the three early cases involving incarceration in an insane asylum, a brutal beating and <mask>. Though not disagreeing with the necessity of granting a parent such immunity as may be necesary to retain the cohesiveness of the family as the *455most important basic unit of society, the court is of the opinion that it was never intended that such doctrine should become a protective cloak, under civil law, for willful and wanton offenses.


In the Nelson case, decided in May, 1897, it became necessary to determine whether the conviction of the defendant was barred by the two-year provision contained in section 285 of the Penal Code (now section 2176 of the Penal Law). In that case there was no suggestion that the defendant had been absent from the state. The question upon which the attention of the court was focussed was whether the consent of the complainant to the defendant’s advances being an essential element of the crime of seduction could, as matter of law, be given before she arrived at the age of sixteen years. It was held that it could, and reasons were assigned"for this decision. This question was material in that case in the determination of the question whether more than two years had elapsed between the commission of the offense and the time of the finding of the indictment. In that case the two-year provision in the statute is spoken of as a statute of limitations. It is spoken of in this way, first, when Judge Vann, in delivering the opinion of the.court, alludes to the contention of the defendant being “ that his conviction was barred by the limi*171tation prescribed by section 285 of the Penal Code ” (p. 92), and secondly, when Judge Vann in the opinion contrasts what would have been the period of limitation if the defendant had been charged with <mask> with what it was in view of the fact that he was charged with seduction, remarking in that connection that if the charge had been of the crime of rape “ the Statute of Limitations would have been five years instead of two (Code of Crim. Procedure, sec. 142).”


The People argue correctly that Dr. Buckhout’s testimony will be prejudicial to their case. In a sense, however, this is true of all testimony which tends to disprove a party’s contention. It is only undue prejudice which the law prohibits. While it is true that the testimony of Dr. Buckhout will lend a certain aura of reliability to the contentions which defense counsel ordinarily makes in summation, this effect is not so substantial that a manifest injustice will result. The jury is still free to accept or reject Dr. Buckhout’s testimony, in whole or in part, and will be so instructed. In similar circumstances, the People have been allowed to introduce expert testimony on the subject of “<mask> trauma syndrome” (see, People v Fisher, 53 NY2d 907). Essentially, this allows the People to bolster in advance the less than certain testimony of a rape victim with scientific evidence that the psychological trauma caused by the rape prevented her from coming forward immediately. The prejudice to the People resulting from Dr. Buckhout’s testimony would be no greater than that suffered by the defendant confronted with rape trauma syndrome testimony. Furthermore, the defendant’s constitutional right to due process of law includes the right to present any relevant evidence in his behalf (see, People v Gilliam, 37 NY2d 722, revg 45 AD2d 744, on dissenting opn of Hopkins, J.; People v Scott, 104 AD2d 667); the People benefit from no such protection.


Defendant was charged in an 11-count indictment with various sex crimes related to a 2010 <mask> of a 26-year-old victim and the sexual abuse of three children between the ages of 9 and 14 during 2002 and 2003. Defendant was tried on the charges related to the 2010 crimes and was convicted by a jury of rape in the third degree and assault in the second degree. He ultimately pleaded guilty to sexual abuse in the first degree (two counts) *1197and sodomy in the third degree in full satisfaction of the charges related to the 2002-2003 crimes, with the understanding that the plea agreement would also resolve the sentencing aspect of his convictions on the 2010 crimes. As part of the plea agreement, defendant waived his right to appeal. In accordance with the plea agreement, defendant was thereafter sentenced, as a second felony offender, to concurrent prison terms of four years, with 10 years of postrelease supervision, for the rape conviction and seven years, with five years of postrelease supervision, for the assault conviction. For the convictions related to the 2002-2003 crimes, defendant was sentenced to concurrent prison sentences of 3 to 6 years for the sexual abuse convictions and 2 to 4 years for the sodomy conviction, with these sentences to run consecutively to the sentences for the rape and assault convictions. Defendant appeals.*


These defendants were found guilty following a trial by jury of the crime of <mask> in the first degree, and were sentenced to an indeterminate term of imprisonment with a maximum of six years. The case, like the question it raises for determination, is not an ordinary one. It was closely contested by both sides, and it is the very "contest” which caused the reversal on the ensuing appeal.


Further, it is undisputed red paint was used at the party. Sarah told Mirkovich she had red paint behind her ears and on her body for days after the party and the red paint looked like "bruises and blood." Jane similarly texted J.D. to say she looked like a "battered convict" because "the paint looks like bruises." Jane recalled she put on a maxi dress before going to the <mask> treatment center "to cover the blood and paint." Thus, determination of whether there was blood or red paint (or neither) in the apartment after the incident was important to the university's determination. Indeed, in Dr. Allee's report she noted "it is possible that some of the red substance on the sheets, air mattress, and carpet was paint," but pointed out that Jane and Andrew "specifically described blood."


Some of the cases cited by the defense do take cognizance of the incidence of homosexual <mask> in prison, and in two, People v Harmon (53 Mich App 482) and People v Unger (33 Ill App 3d 770), the majority did observe that homosexual rapists may be more likely to take advantage of younger, more effeminate, or more defenseless-looking inmates. Nevertheless, in neither case was the defendant excused from confinement. The only questions in those cases, as in State v Green (470 SW2d 565 [Mo]) and Lewis v State (318 So 2d 529 [Fla]), was whether the escaped prisoner could plead, in defense to a subsequent prosecution for the escape, that he had been raped and then threatened (Lewis), threatened with death (Unger, Green) or severely beaten (Harmon). In all four cases the original prison sentence was allowed to stand; in Green, the court held that the defendant could not, in the subsequent proceedings, plead that the rapes and threats justified his escape on the grounds of either coercion or necessity.


One final point is that the Legislature is obviously empowered to allow criminal prosecutions which are subject to no statute of limitations at all for some crimes. (See CPL 30.10.) Indeed, one of the very acts which the State alleges was previously committed by the respondent in this case, forcible <mask>, is not currently subject to any statute of limitations under the criminal law, although it was subject to a five-year statute of limitations at the time the respondent’s crimes were committed. (CPL 30.10 [2] [a].) Given the fact that the Legislature may choose to impose no statute of limitations in criminal cases, it is difficult to understand why it would not be entitled to make the same determination in a civil proceeding like the one here.


Analogously, just as a prosecutor cannot evade the statutory requirements of corroboration where a <mask> was actually committed by charging a lesser or different offense not requiring such stringent proof (People v. Doyle, 31 A D 2d 490; People v. Lo Verde, 7 N Y 2d 114), so similarly he may not evade the strict requirements for proving obscenity where, as here, it is *411clear that a ‘1 performance ’ ’ was involved as defined in subdivision 3 of section 235.00 of the Penal Law and dealt with under subdivision 2 of section 235.05 of the Penal Law.


On June 22, 1972 the petitioner pleaded guilty to indictment No. 33161 and was released on bail pending sentence. Thereafter, on August 18, 1972 while out on bail petitioner was arrested for <mask>, sexual abuse and possession of a weapon. Ten days later on August 28, 1972 petitioner was sentenced under indictment No. 33161 to an indeterminate term of imprisonment of up to three years and on September 18, 1972 he was transferred up-State for service of that sentence.


It was also clear that the prosecution had the burden to prove that Martinez committed every element of the charged crimes beyond a reasonable doubt. The court told jurors that, to convict Martinez of <mask> in concert, they had to find that the prosecution proved that he "voluntarily acted with someone else who aided and abetted [his] commission" of the rape. ( CALCRIM No. 1001.) Similarly, it told jurors that, to convict Martinez of sexual penetration in concert, they had to find that the prosecution proved that he either "voluntarily acted with someone else who aided and abetted [his] commission" of sexual penetration or "voluntarily aided and abetted someone else who personally committed sexual penetration." ( CALCRIM No. 1046.) The court *731specified that whenever it told jurors that the prosecution had the burden to prove something, it had to prove it beyond a reasonable doubt. ( CALCRIM No. 220.)


In any event, this court is not bound by Virelli v Goodson-Todman Enters, (supra), a Third Department case, because of the conflict created by the decision in the First Department of Doe v American Broadcasting Cos. (152 AD2d 482), where the court in July 1989, six months after the decision in Virelli, affirmed the denial of a motion for summary judgment in actions for breach of contract and negligence. There the plaintiffs, including two <mask> victims, agreed to participate in a television broadcast upon the promise that neither their faces nor their voices would be recognizable. The failure to keep this promise, the court held, was a cognizable claim. In the absence of a Fourth Department ruling on the point, preference is given to the view of the First Department.


Nicholas Colabella, J. In a proceeding pursuant to CPLR article 78, petitioner seeks to compel the respondent District Attorney to permit DNA testing of physical evidence presented at the trial of his criminal action in which he was convicted for <mask> in the first degree (indictment No. 81-367). The judgment of conviction was affirmed (see, People v Dabbs, 141 AD2d 664) and petitioner is presently serving 12 Vi to 25 years. Petitioner’s discovery request is made as a prelude to a possible motion to vacate the conviction pursuant to CPL article 440 based on newly discovered evidence.


For the same reasons, I conclude, that to examine plaintiff as to her subsequent sexual conduct on the issue of damage, there must be a showing of special circumstances. A party seeking compensatory damages in any personal injury action does place her physicial and psychological condition in issue and waives her physician-patient privilege (6 NY Jur 2d, Assault-Civil Aspects, §26, p 221). However, a female plaintiff seeking damages for assault or <mask> need not be humiliated simply because she seeks compensatory damage. In this case no special circumstances are shown to permit such inquiry. The defendants have had a psychological examination of plaintiff. There has been ample opportunity for exchange of medical information. This is sufficient to permit the defendants to evaluate plaintiff’s claim for damages.


At the pretrial hearing on these motions, Dolson's counsel argued that the bad conditions in the house were not relevant. He claimed that the evidence would serve only to inflame the jury and that it had nothing to do with the elements of <mask> that had to be proved. Defense counsel urged that the dissent in Lindsey, supra , should be followed and that evidence of the "nasty" house would not help the jury determine whether rape of the children had occurred. Defense counsel also claimed that Lindsey could be distinguished because Dolson was not the father of the alleged victims, whereas the father had been the perpetrator in Lindsey .


(a) A person may be convicted under a law of this state of an offense committed by his or her own or another person's conduct for which he or she is legally accountable if: (1) Either the conduct or a result that is an element of the offense occurs within this state; (2) Conduct occurring outside this state constitutes an attempt to commit an offense within this state; (3) Conduct occurring outside this state constitutes a conspiracy to commit an offense within this state and an overt act in furtherance of the conspiracy occurs within this state; (4) Conduct occurring within this state establishes complicity in the commission of, or an attempt, solicitation, or conspiracy to commit, an offense in another jurisdiction that is also an offense under the law of this state; (5) The offense consists of the omission to perform a legal duty imposed by *463a law of this state based on domicile, residence, or a relationship to a person, thing, or transaction in the state; or (6) The offense is defined by a statute of this state that expressly prohibits conduct outside the state and the conduct bears a reasonable relation to a legitimate interest of this state and the person knows or should know that his or her conduct is likely to affect that legitimate interest of this state. (b) When the offense is homicide, either the death of the victim or the physical contact causing death constitutes a "result" within the meaning of subdivision (a)(1) of this section. Torres concedes that the State had jurisdiction to try him for murder pursuant to subsection (b) because the death occurred in Arkansas. However, Torres contends that the statute is void of language that would authorize a <mask> prosecution. The plain language of subsection (a)(1) provides that a person may be convicted under Arkansas law of an offense committed by his own conduct for which he is legally accountable if either the conduct or a result that is an element of the offense occurs within this state. In other words, based on the plain language of the statute, to establish jurisdiction over the predicate felony of rape, there are two options:


Our presumption is that the legislature does not intend to perform a useless *412act in enacting statutes or in amending statutes, but rather it intends such act to have some effect or accomplish some legislative purpose. Walker , 352 S.W.3d at 391. By making the changes it did in 1994, separating forcible <mask> into a separate statutory section from statutory rape and creating separate punishment provisions for each, the legislature intended that forcible rape and statutory rape be separate and distinct crimes with separate punishments. Id. We perceive no reason to accept the notion rejected by the Walker court "that the legislature changed the statutory scheme in such a manner, yet intended that there be only one offense for which an offender could be convicted for a single act." Id. at 391-92. To do so would render the legislature's acts meaningless. Id. at 392. "The statutes protect against separate and distinct evils: (1) the use of force to compel sexual intercourse; and (2) the exploitation of children." Id. In raping the young victim here, Treta violated two different prohibitions that the legislature codified as separate criminal offenses: "[h]e forced his victim to engage in sex against her will, and he chose a victim to whom the legislature afforded additional protection because of her age." Id.


According to Sergeant Bryerton, on June 24, at approximately 1:00 a.m., he was on patrol in Lancaster in a marked police vehicle. After receiving a call that a black male adult suspected of attempted <mask> was driving a white SUV with "disabled" license plates, he saw appellant drive past him. Because appellant and his vehicle appeared to fit the description provided in the call, Bryerton followed appellant. In an effort to pull appellant over, Bryerton activated his sirens and flashing lights. Instead of stopping, appellant accelerated and drove through residential neighborhoods, exceeding the posted speed limits and failing to halt at stop signs. Appellant then accelerated to 75 miles per hour along a street with open businesses and a posted speed limit of 35 miles per hour. The pursuit ended when appellant drove into a motel parking lot, stopped, and ran into a motel room, where he was detained. Bryerton testified that in the course of the pursuit, appellant committed eight traffic violations assigned at least one point under the traffic violation point system.


The defendant was tried upon all three counts and was convicted of the three crimes alleged. He was sentenced on the first count, assault, to a term of from 5 to 10 years in Clinton Prison. On the second count, abduction, he was sentenced to a term of from 10 to 20 years. On the third count, <mask>, the sentence was 20 to 40 years. The court directed that the three sentences run consecutively not concurrently. The defendant now contends that the consecutive sentences were in violation of section 1938 of the Penal Law, which provides as follows • *‘ An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; *198and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision ’


Naturally, the sanction shall be imposed only if the <mask> kit is relevant to the issues at trial. Thus, should defendant admit having had sexual intercourse with the complainant on the date of the alleged incident, any evidence that might have been derived from testing the kit would be irrelevant. In such case, there should be no adverse inference. On the other hand, should defendant deny having had intercourse, an adverse inference charge would be appropriate since the information which would have been gleaned from the examination and tests of the kit would have a direct bearing upon the underlying issues of rape and sexual abuse. Upon this basis, final resolution of this matter, relating to an adverse inference instruction as a sanction, is dependent upon the nature of the proof to be adduced at trial and, thus, is best reserved to the trial court.


“since the expert — and not the jury — draws conclusions from the facts, which the jury is then asked to adopt. Such testimony, however, is admissible where the conclusions to be drawn from the facts ‘depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence.’ (Dougherty v Milliken, 163 NY 527, 533; De Long v County of Erie, 60 NY2d 296.)” (People v Cronin, 60 NY2d 430, 432 [1983]). Testimony by experts in social science has long been held to be admissible on subjects such as <mask> trauma syndrome, abused child syndrome and similar conditions to explain the behavior of a victim “that jurors may not be expected to understand.” (People v Carroll, 95 NY2d 375, 387 [2000]; also see People v Taylor, 75 NY2d 277, 288 [1990]; People v Keindl, 68 NY2d 410, 422 [1986].) In recent years, the Court of Appeals has observed, with respect to identification testimony, that although “jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror.” (People v Lee, 96 NY2d 157, 162 [2001].)


The police were investigating the knifepoint <mask> of a prostitute, who provided a description of the rapist, and also provided a detailed description of the rapist’s car, including the presence of dents on particular areas of the car. The night after the rape, approximately 24 hours after it was committed, the police saw defendant in the same area as the crime scene in a *462car precisely matching the description. Furthermore, that area is notorious for prostitution, and it would have been reasonable for the police to draw an inference that the rape suspect had returned to look for a similar victim. Based on all these factors, viewed collectively, the police reasonably suspected that defendant was the perpetrator (see People v Caponigro, 76 AD3d 913, 913 [1st Dept 2010], lv denied 15 NY3d 952 [2010]; see also People v Harmon, 293 AD2d 303 [1st Dept 2002], lv denied 98 NY2d 676 [2002]). Accordingly, the police lawfully stopped the car and ordered defendant to get out, whereupon officers saw an illegal gravity knife in plain view, which provided probable cause to arrest defendant. Defendant was arrested and handcuffed, and one of the officers searched the front of the car. A homemade razor knife was recovered from the glove compartment.


At about 3:00 or 3:30 that afternoon, Genao who was yelling and threatening the staff was given an injection of Haldol and placed for observation in what is known as the quiet room. By that time, lithium, Ativan and Cogentin, as well as the Haldol, had been administered; all but Cogentin can cause drowsiness and/or lethargy. There was no documentation or testimony from the hospital staff as to when Genao was released from the quiet room. The claimant testified that she was tired and sleepy after receiving the Haldol injection, and went to the first empty room on the unit and fell asleep — room 814. Genao’s drowsiness lasted the rest of the day; the emergency room record of Staten Island Hospital, where claimant was taken after the <mask>, contained the entry that she “sleeps @ intervals” (claimant’s exhibit 12-A).


1. The trial judge erred in refusing to allow R. Carr to exercise a peremptory challenge; 2. The trial judge erred in refusing to sever R. Carr's trial from Jonathan Carr's (J. Carr's) trial; 3. The trial judge erred in admitting Linda Ann Walenta's statements through law enforcement testimony; 4. The trial judge erred in interpreting and applying the third-party evidence rule and the hearsay rule, preventing R. Carr from pursuing his defense to some of the charged crimes; 5. The trial judge gave a faulty instruction on the sex-crime-based capital murders; 6. Three of the multiple-homicide-based capital murder convictions were multiplicitous with the first; 7. The district court lacked subject matter jurisdiction over any sex crime charges based on coerced victim-on-victim sex acts; 8. One of R. Carr's convictions for <mask> of one victim was multiplicitous with his other rape conviction relating to the same victim;


Rubin, J. Defendant was arrested on February 19, 1982 by New York City police officers for a <mask> which took place at approximately 5:15 a.m. on July 19, 1981. Prior to trial, defendant moved to suppress the victim’s identification of him as her assailant. On November 28, 1984, Supreme Court conducted a Wade hearing and denied defendant’s motion. Jury trial commenced on December 3, 1984 and, on December 7, the jury returned a guilty verdict on all counts. Defendant was sentenced on January 10, 1985 to concurrent terms of imprisonment totalling a minimum of 16% years and a maximum of 50 years.


At the conclusion of the penalty phase, the jury recommended death. It found Ford's murder involved torture and, pursuant to section 565.032.2(7), the murder was "outrageously or wantonly vile, horrible or inhuman." Additionally, the jury *8found Ford was a potential witness against Collings in a pending investigation of her <mask> and was killed as a result of her status. See sec. 565.032.2(12). The trial court sentenced Collings to death, and this Court affirmed the judgment and sentence on direct appeal. Collings , 450 S.W.3d 741.


Egan Jr., J. In October 2010, defendant pleaded guilty to <mask> in the third degree in Washington County and thereafter was sentenced to 10 years of probation.1 In April 2012, a petition was filed alleging that defendant violated the terms of her probation by failing to report to her probation officer, consuming alcohol and failing to report contact with a police officer within 24 hours thereof. When defendant appeared before County Court in May 2012, the parties agreed that, in exchange for defendant’s admission to the violations alleged, sentencing would be adjourned in order to allow defendant to complete a 28-day inpatient alcohol and substance abuse treatment program and follow-up outpatient treatment. The parties further agreed that, if defendant successfully completed the required treatment, she would be restored to probation; if defendant failed to complete treatment, however, she would receive a sentence of up to 1V3 to 4 years in prison. No mention of postrelease supervision was made during the course of this appearance. Following a colloquy with County Court, wherein defendant waived her right to appeal, defendant admitted to violating the terms of her probation and was remanded to the Warren County Jail until a bed at a treatment facility became available.


“Defendant did not introduce medical evidence or expert testimony to establish that hypersexuality is a mental illness that would impact the victim’s credibility or control her behavior; indeed, all references to the victim’s ‘hypersexuality’ in her medical history are to her wholly voluntary inappropriate, promiscuous behavior—conduct intentionally designed to shock and draw attention—which is precisely the kind of evidence the <mask> Shield Law prohibits (see CPL 60.42; People v Simonetta, 94 AD3d 1242, 1246 [2012], lv denied 19 NY3d 1029 [2012]).” (People v McCray, 102 AD3d 1000, 1007-1008 [3d Dept 2013], affd 23 NY3d 193 [2014].) Defendant’s application to admit the proffered materials should, therefore, be also denied as violative of the Rape Shield Law, as well as for all of the reasons set forth above on relevancy and ESI authentication.


“The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, <mask>, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.” (Judiciary Law § 4.) Public trials are an essential facet of our judicial system. As Justice Holmes stated in Cowley v Pulsifer (137 Mass 392, 394 [1884]):


In light of the foregoing, the court declines to follow the lead of Mary M. v City of Los Angeles (54 Cal 3d 202, 285 Cal Rptr 99), which plaintiffs ask to be applied, in which the Supreme Court of California held that defendant City might be liable under respondeat superior for a <mask> by an on-duty policeman of a woman taken into custody by him. In reversing the vacatur of a jury verdict for plaintiff and remanding for further consideration, the court placed great emphasis on the fact that police officers are vested by the public entity with authority to arrest and to use deadly force, and one resisting an officer’s proper exercise of authority is subject to criminal prosecution. In that circumstance the court held that "[wjhen police officers on duty misuse that formidable power to com*832mit sexual assaults, the public employer must be held accountable for their actions. ' "It is, after all, the state which puts the officer in a position to employ force and which benefits from its use.” ’ ” (54 Cal 3d, at 221, 285 Cal Rptr, at 110.) The coercive authority possessed by the police officer in Mary M. serves to distinguish it from the present case. Inasmuch as plaintiffs have tendered no case in this jurisdiction imposing respondeat superior liability for intentional sexual misconduct by an employee, which on its face scarcely seems to fall within the scope of employment of a priest, the eighth cause of action will be dismissed.


Contrary to the defendant’s contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter’s testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging <mask> or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked “the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment” (People v Foote, 251 AD2d 346, 346 [1998]). Accordingly, where the jury found the defendant guilty of only one or two of the crimes charged for that month, which *878occurred with respect to October and December 2006, February, April, September, and December 2007, and February 2008, the counts of rape in the second degree were duplicitous (see People v Black, 65 AD3d at 813; People v White, 41 AD3d at 1037-1038; People v Bracewell, 34 AD3d at 1198-1199; People v Dalton, 27 AD3d at 781). Accordingly, we vacate the defendant’s convictions of rape in the second degree under counts 3, 4, 9, 15, 16, 21, 22, 28, 29, 36, 42, and 43, vacate the sentences imposed thereon, and dismiss those counts of the amended indictment. The relevant counts of incest in the second degree arising out of these incidents have already been dismissed as multiplicitous, as discussed above.


Moreover, Sergeant Moran’s knowledge of the descriptions of the perpetrators of these other crimes was so generic as to render such meaningless. Thus, it could not form a basis for the stop of the livery cab in the case at bar. In the recent case of Matter of Rubin M. (271 AD2d 291), the Appellate Division, First Department, suppressed a gun recovered, where the defendant was stopped on the street because he fit a description in a “<mask> Hot Sheet” which was vague and generic and could be applied to countless New Yorkers (the defendant was stopped in the same precinct where the rape and robbery incidents had occurred). Unlike the description provided in Rubin M. (which at least provided a range of age, height and weight), the description in the case at bar was even more generic, only describing the perpetrators as two black males and a black female (with regard to the robberies) and a black male, a black or Hispanic male and a black female (with regard to the shooting). This is insufficient, especially given the fact that no female was observed in the cab in the instant case. (See, People v Hernandez, 180 AD2d 555; People v Herrera, supra.) Moreover, as in Rubin M., the description which Sergeant Moran possessed would apply to countless law-abiding members of the community who use livery cabs in Manhattan, especially in the early evening hours.


(6) a false imprisonment claim, alleging that the cruise line had “purposefully and intentionally restrained [Doe] against her will on the cruise ship and did not permit her to leave the cruise ship to go ashore for medical treatment” in Seattle; (7) an intentional infliction of emotional distress claim, alleging “separate and independent torts committed by” the cruise line, its agents, and its employees related to Doe’s <mask> and the way that they handled the situation and treated her after learning of the rape; (8) a spoliation of evidence claim, alleging that the cruise line breached its duty to preserve evidence after one of its crew members sexually assaulted and battered Doe; (9) an invasion of privacy claim, alleging that the cruise line, th[r]ough its agents, breached its duty to protect Doe’s confidentiality and privacy as a rape victim by repeatedly disclosing her real name in an effort to intimidate and embarrass her; and (10) a fraudulent misrepresentation claim, alleging that officers of the cruise line who were on the ship repeatedly and falsely told Doe after she had been drugged and raped that she could not disembark the ship to get medical treatment and counseling by doctors of her own choosing. [Id. at 1212 (first alteration in original).]


Defense counsel’s omission to request a bill of particulars did not deprive defendant of effective assistance of counsel, since the 23-day time span set forth in the indictment was, in view of the tender ages of the victims, sufficient to give defendant adequate notice of the <mask> and sodomy charges against him (see, People v Bass, 179 AD2d 568, lv denied 79 NY2d 997; Matter of Jermaine B., 180 AD2d 607), and defendant’s claim that counsel was otherwise ineffective is without merit (see, People v Flores, 84 NY2d 184).


Dr. Carmine Casella, a clinical psychologist, testified that following the incident, he treated Mrs. Skaria six times during the period April 26, 1978 to May 30, 1978. It was his testimony that as the result of the <mask>, Mrs. Skaria is suffering from a phobic reaction and rape syndrome. He described it as a severe emotional disorder resulting in exaggerated fears, which prevent a patient from functioning properly. He ceased treating Mrs. Skaria when she moved to Texas, but recommended that she seek *716further help. During the course of the trial he examined her again, at her lawyer’s request, and found that her condition had worsened. He tested her and found that her responses showed more phobic reaction and that she is unable to deal with reality. Dr. Casella testified that Mrs. Skaria told him that she did not seek treatment in Texas because she did not want anyone to know about the rape. Dr. Casella advised her to seek help and opined that her condition would be permanent, unless she sought help.


*4After apparently reserving that question for future determination, the Court of Appeals thereafter rejected the contention that a defendant could not be convicted of assault with intent to commit <mask> upon the female’s unsupported testimony of a completed rape (People v. Chimino, 270 App. Div. 114, affd. 296 N. Y. 554). In that case the Appellate Division, whose decision was affirmed without opinion, said (p. 115):


*806With respect to the attempted <mask> charge, Mr. Smith, on January 18, 1995 — 11/2 years prior to the entry of the within plea — entered a plea of guilty in satisfaction thereof. Despite the elapsation, now, of two years, he has yet to be sentenced in New York County. Notwithstanding, and following four monthly adjournments before this Bench, he claims a violation of CPL 380.30 (1), moving to divest the court of jurisdiction that his conviction be vacated and the accusatory instrument dismissed. Defendant contends a failure to pronounce sentence "without unreasonable delay” has prejudiced him. By way of explanation, he sets forth that the 24 months of postponement(s) of sentencing in New York County has been by acquiescence. While the motion is in all respects denied, central to its prayer is the novel question of whether an intended consecutive sentence can be imposed prospectively.


On appeal, Kain asserts several arguments to warrant issuance of the writ of error coram nobis, but the only issue that was raised in his petition to the circuit court and preserved for our review is his coerced guilty plea argument.1 Kain's allegation is that, while he was innocent of the 1995 <mask> conviction, he pled guilty pursuant to advice of counsel after the prosecution spoke with Kain's attorneys on the morning set for trial. Kain asserts that the prosecution showed Kain's attorneys a "Suspended Imposition of Sentence Order" relating to a kidnapping charge from a 1984 prosecution against Kain in which he had also been charged with rape. It is undisputed that Kain pled nolo contendere to the 1984 rape charge, after which he entered custody of the Arkansas Department of Correction (the ADC) and was later released on parole, but as will be explained in greater detail later in this opinion, the disposition of the 1984 kidnapping charge is disputed.


Excusal of the grand juror did not prejudice petitioner. To the contrary, the record shows that, if anything, the excused grand juror was arguably unfavorable to the defense, since he had met the victim several times and had read newspaper accounts of her <mask> and murder. Further, while the prosecutor excused the prospective juror in the presence of the other grand jurors, he did so with the stated objective-communicated to the entire grand jury-of ensuring a fair and impartial proceeding: "I want to make sure, again, that what we do here is transparent and has integrity and stands up to scrutiny." And again: "I just want to be careful and make sure that ... we don't have you sit through something that may trigger something in you that you won't be able to be fair."


It is now urged in this court that a trial upon the indictment would likewise subject the defendant to a second jeopardy in violation of his statutory and constitutional rights; that the charges in the indictment filed herein arose out of the same circumstances as the vagrancy accusation, of which the defendant was duly convicted and sentenced. It is further contended that the <mask> charge against the defendant cannot be sustained upon the basis of a seized photograph since penetration is a necessary ingredient of the crime of rape in the second degree, and that the act of intercourse is denied by the defendant, and it is urged that it is likewise denied by the complainant who is alleged to have testified before the grand jury. With respect to this second ground urged in behalf of the defendant, I have read the Grand Jury minutes and although the testimony of the complainant is somewhat vague and by no means satisfactory, in my opinion the same presents a question of fact and therefore I cannot dispose of it as a matter of law.


It is the decision of the court that upon all of the evidence adduced at the trial, Vernon Douglas perpetrated a forcible assault and <mask> on the person of Elizabeth Cobb which resulted in her pregnancy and subsequent miscarriage; that the State was negligent in failing to provide adequate care and .supervision of its ward, the infant claimant; and that the State is liable for the conduct of its employee, Vernon Douglas.


T.B. further testified that she witnessed Rogers abusing her sisters. One night, she was sleeping in the top bunk of the bedroom that she shared with Mi.B. and Ma.B., and she saw Rogers performing oral *836sex on Ma.B. On a later date, when it was only T.B. and Mi.B. in the house, T.B. heard a "clapping noise" and saw Rogers in the living room having sex with Mi.B. as Mi.B. was bent over the sofa. T.B. also stated that Rogers had shown her videos of her older sister, L.W., and Rogers having sex with L.W. on the couch. T.B. stated that Mi.B. disclosed the rapes to their mother one afternoon after school in November 2014, and T.B. confirmed that it had happened to T.B. as well. T.B. stated that Rogers had moved to a nearby home in October 2013 and that the abuse stopped at that time, although the family continued to have some contact with him until the allegations of <mask> were disclosed in 2014.


The first statute in this State to require supporting evidence of a prosecutrix, testimony was adopted not in connection with the crime of <mask> but for the crime of abduction for the purpose of prostitution. Chapter 105 of the Laws of 1848 made it a crime to “ inveigle, entice or take away * * * for the purpose of prostitution ” any female “ Provided, that no conviction shall be had under the provisions of this act on the testimony of the female so inveigled or enticed away, unsupported by other evidence ”.


Error did not occur here. The record is clear why the judge instructed defense counsel to refer to the exam as a "<mask> kit." A.P. was unfamiliar with the phrase "SANE/SART" exam and responded that she only knew the medical procedure performed upon her as a "rape kit." Thus, the witness offered the term, not the judge. The judge issued a directive to "just refer to it as the rape kit" to avoid further confusion for the witness. The comment did not disparage or result in prejudice to the defense.


rape] was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.” The bench notes for CALCRIM No. 730 direct the trial court to give this optional paragraph “if the evidence supports a reasonable inference that the felony was committed merely to facilitate the murder.” The bench notes cite to several cases, including People v. Green (1980) 27 Cal.3d 1 (Green), overruled on another ground by People v. Martinez (1999) 20 Cal.4th 225, 241, and People v. Navarette (2003) 30 Cal.4th 458, 505 (Navarette)). In Green, the Court found insufficient evidence as a matter of law to support the jury’s finding of robbery as a special circumstance to the murder. (Green, supra, 27 Cal.3d at p. 62.) There, the defendant lured his wife to an isolated area, shot and killed her. He then took her belongings to prevent her from being identified. (Ibid.) The Court held the crime was not a murder committed during the commission of a robbery because the primary crime was murder and the “robbery was incidental to that murder.” (Id. at pp. 61-62.) However, if the defendant has an “‘independent felonious purpose’ (such as burglary or robbery) and commits the murder to advance that independent purpose, the special circumstance is present.” (Navarette, supra, 30 Cal.4th at p. 505; Green, at p. 61; see People v. Davis (2009) 46 Cal.4th 539, 609.) Here, the trial court was not required to give the optional language because the evidence did not support a “reasonable inference” that the burglary and <mask> were committed merely to “facilitate the murder” or that they were incidental to the murder. We reject appellant’s contention that there was “sufficient evidence” that appellant intended to kill Sarah B. and the “theft and rape were afterthoughts prior to her death.”


Regardless of the strength of each individual piece of evidence, we agree with the People that considered together the evidence and the reasonable inferences to be drawn therefrom lead to the conclusion that defendant’s guilt was proven to a moral certainty. There is evidence from which the jury could reasonably conclude that the perpetrator drove a motorcycle, was light skinned, wore Nike sneakers which were partly red and had a black leather jacket. Defendant fit this description. Defendant’s blood type was compatible with that of the perpetrator. DNA testing included defendant as a possible perpetrator of the <mask>. Defendant’s fingerprint was found on a drawer *734of a dresser in the bedroom where the murders occurred. Defendant sold several pieces of the victims’ jewelry within a month after the murders. The evidence is legally sufficient to support the jury’s verdict, which is not against the weight of the evidence (see, People v Giomundo, 209 AD2d 953; see also, People v Sparacino, 150 AD2d 814, lv denied 74 NY2d 747).


Before considering this application, a review of the prior history is necessary. The defendant herein was indicted on July 28, 1988, and charged with 13 counts of sexual abuse involving his infant daughter. The charges include <mask>, sodomy, and sexual abuse as well as endangering the welfare of a child. These accusations arose out of a bitter divorce action in which defendant’s estranged wife accused her husband of abusing his four-year-old daughter. The case was assigned to the Honorable Arthur J. Cooperman who heard all pretrial motions and conducted a nonjury trial.


In the case before us, defendant contends that because the New York statutes in question are also "gender-based” they, too, should be held violative of the equal protection clause. In response, the People emphasize that the Meloon holding was explicitly limited to the statute in question and the record before the court, as noted in the concluding paragraph of Chief Judge Coffin’s decision, to wit (supra, p 609): "We want to take care to indicate the limited nature of our holding. We have found only one particular statutory <mask> law to be unconstitutional. We have not reflected nor do we intend to question the constitutionality of the laws of other states. We *404express no opinion as to whether on a different record some other statute would pass constitutional scrutiny.”


Although New York courts have often admitted record entries setting forth the manner in which injuries were inflicted to the patient, decisions considering entries naming the person inflicting those injuries are more restrictive. In fact, it appears that a substantial majority of the courts of this state that have addressed the issue of the admissibility of an identification of a perpetrator contained in a medical record have concluded that such evidence is not admissible on the grounds that, under the facts of those cases, the identity of the perpetrator was not necessary for treatment and diagnosis of the victim. (See, e.g., People v Thomas, supra [portion of statement identifying defendant as perpetrator of assaultive behavior not relevant to diagnosis and treatment and should have been excluded]; People v Tarver, 161 AD2d 1162 [4th Dept 1990] [error to permit emergency room physician to testify about statements made to her by <mask> victim regarding identity of perpetrator and the manner in which the victim and perpetrator slept together the night before]; People v Harris, 132 AD2d 940 [4th Dept 1987] [error to permit examining physician to testify with respect to statements made to him by rape victim regarding location of alleged attack and identity of perpetrator].)


2 See 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), (3), 2902(a)(1), 2903(a), and 2709(a)(3), respectively. Appellant was also originally charged with several sexual offenses, including <mask> and involuntary deviate sexual intercourse, based upon S.B.’s report to police that Appellant forced her to have anal sex on January 16, 2012. See Affidavit of Probable Cause, 4/26/12, at 2. However, the Commonwealth agreed to withdraw all of the sexual crimes in exchange for Appellant’s negotiated plea. See Appellant’s Guilty Plea Colloquy, 12/3/12, at 4.


The People argue correctly that Dr. Buckhout’s testimony will be prejudicial to their case. In a sense, however, this is true of all testimony which tends to disprove a party’s contention. It is only undue prejudice which the law prohibits. While it is true that the testimony of Dr. Buckhout will lend a certain aura of reliability to the contentions which defense counsel ordinarily makes in summation, this effect is not so substantial that a manifest injustice will result. The jury is still free to accept or reject Dr. Buckhout’s testimony, in whole or in part, and will be so instructed. In similar circumstances, the People have been allowed to introduce expert testimony on the subject of “<mask> trauma syndrome” (see, People v Fisher, 53 NY2d 907). Essentially, this allows the People to bolster in advance the less than certain testimony of a rape victim with scientific evidence that the psychological trauma caused by the rape prevented her from coming forward immediately. The prejudice to the People resulting from Dr. Buckhout’s testimony would be no greater than that suffered by the defendant confronted with rape trauma syndrome testimony. Furthermore, the defendant’s constitutional right to due process of law includes the right to present any relevant evidence in his behalf (see, People v Gilliam, 37 NY2d 722, revg 45 AD2d 744, on dissenting opn of Hopkins, J.; People v Scott, 104 AD2d 667); the People benefit from no such protection.


Similar constitutional contentions raised to invalidate <mask> statutes have been rejected, and the. courts have found that differences between the sexes bear a rational relationship to the prohibition of prostitution by females, and excluding males. (State v Devall, 302 So 2d 909 [La]; State v Mertes, 60 Wis 2d 414; State v Griffin, 226 Ind 279; Wilson v State, 258 Ind 3.)


At the hearing, it was established that the crimes of which the respondent was convicted were committed in concert with two other men. The three individuals agreed to set up a series of dummy corporations whose only function would be to establish merchant accounts with credit card companies and in turn offer the use of those accounts to so-called escort services. Customers of the escort services could then charge the services to their credit cards and the companies established by the respondent would pay the escort services the face amount of the charge less a servicing fee. The respondent’s companies would then collect the face amount of the charge. The theory of the prosecution against the respondent was that he was laundering money and facilitating <mask>. Respondent’s co-conspirators pleaded guilty and did not stand trial. They were not lawyers. In mitigation the respondent affirmed that he was innocent of any fraudulent or deceptive intent. Respondent’s characterization of his acts reflects that he believed that he was doing nothing more than providing a service for escort companies.


In reaching its decision on the constitutionality of the statute on the two grounds as set forth, the court does so only as the statute applies to the particular facts and circumstances before it. Other facts may warrant an entirely different decision, particularly in light of People v Smith (44 NY2d 613), which upheld the constitutionality of the statute which prohibits loitering for the purpose of <mask> (Penal Law, § 240.37, subd 2) on the grounds that this activity interfered with the commercial life and the public use and enjoyment of the streets and other areas effected.


As has been indicated, People v Uplinger (supra) concluded that the statute prohibiting loitering for the purpose of engaging in deviate sexual intercourse between consenting adults was legally impermissible. In the event a concerned citizen reported to the police that he or she observed a male and female engaging in sodomy, a police officer would certainly be remiss in his duty were he to immediately assume that the couple was simply involved in conduct encompassed in an unconstitutional statute. That officer would and should investigate whether the female was being forced (sodomy, first degree in violation of Penal Law § 130.50 [1]), underage (sodomy, third degree in violation of Penal Law § 130.40 [2]), or a prostitute (<mask> in violation of Penal Law § 230.00). An approach under such circumstances would come under the auspice of an articulable reason.


As to the male defendants, allegedly the ones controlling the business, the proof is that they have not been arrested for <mask> offenses, much less gone through a revolving door. While there was proof that at least some of the female defendants have been arrested for prostitution offenses on numerous occasions, most of those arrests were not in the Queens Plaza area, but in the East New York section of Brooklyn and so are irrelevant here. Those who were arrested in Queens Plaza, save one as noted above, have not been served with process and are not properly before the court. There was no proof whatever that the female defendants have not received appropriate sentences when convicted.


The court stated that express contracts between nonmarital partners are enforceable unless the sexual services rendered form the exclusive consideration of the contract. In referring *971to the kind of relationship the court would not countenance, the court stated (p 683): "the nonenforceability of agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to and encompassed <mask>. To equate the nonmarital relationship of today to such a subject matter is to do violence to an accepted and wholly different practice.”


This was all the evidence. There was no proof as to the reputation of the house or that any act of <mask> had ever theretofore been undertaken by any one residing therein, or that the defendant had any knowledge of any prior similar occurrence in the house; there was no evidence that the other woman, who had solicited the officer, resided in the premises, or how long she had been in the house, or that the defendant had any prior acquaintance with her, or that the defendant knowingly resided in the premises after this occurrence, for she was immediately arrested by the officer.


To the extent defendant is making an as-applied challenge to this statute-a challenge the People properly note was not made in the trial court-we reject it as well. The defense theory was defendant was trying to wean the girls from <mask> by teaching them to make a living by robbing their customers. In addition to defendant's testimony to the effect both girls were already prostitutes, B. testified she had been a prostitute before she met defendant, and D.'s juvenile record was introduced, showing her history of loitering for purposes of prostitution. Thus, it was not disputed in this case that both girls were prostitutes before the charged offenses, and defense counsel so argued to the jury. Therefore, regardless of the trial court's in limine ruling excluding evidence, we fail to see-and defendant fails to explain-how the statute deprived defendant of any relevant evidence in this case . Defendant does not explain how further details about the prior prostitution history of either girl would have bolstered his defense, he merely assumes that the statute impaired his case. In short, defendant does not establish with reference to the record how he was prejudiced by the statute in this case, given the state of the evidence admitted.


As counsel correctly observes in her memorandum of law, “[t]he cumulative effect of New York and Federal law in this area is a strong expression that those engaging in <mask>, or commercial sex, under the age of eighteen are to be viewed as victims of trafficking, rather than perpetrators of crime.” The People concur in the court’s determination that defendant is precisely the type of victim intended to be protected under both state and federal law. At oral argument, Assistant District Attorney Abodeely made the following record:


Indeed, although these statutes have been typically applied to recover premises utilized for <mask>, gambling and narcotics, they have also been applied to recover premises used for other illegal enterprises, including the storage and distribution of fireworks in violation of the Administrative Code of the City of New York (Tsang Realty v Sepulveda & Nunez, index No. L&T 109064/94 [Civ Ct, NY County 1994]), the sale and distribution of obscene material in violation of Penal Law § 235.05 (Cohen v Carroll, 63 Misc 2d 222 [Civ Ct, NY County 1970]), the operation of a lodging or rooming house in violation of the former Tenement Housing Law and the current Multiple Dwelling Law (Saportes v Hayeck, 111 Misc 620 [App Term, 1st Dept 1920]; 47 E. 74th St. Corp. v Simon, 188 Misc 885 [App Term, 1st Dept 1947]), and the selling of liquor in violation of the National Prohibition Act (Matter of Elmore v Berti, 128 Misc 74 [NY City Mun Ct 1926]).


The larger question as to the statute’s constitutionality remains since the statute is seeking to ban loitering to engage in what is now a constitutionally recognized and protected activity. The situation is very much unlike that in People v Smith (44 NY2d 613) where the Court of Appeals upheld the constitutionality of a law proscribing loitering for the purpose of <mask> (Penal Law, § 240.37, subd 2) which is a prohibited activity. But, as this court pointed out in People v Butler (supra) the courts of this State have prohibited loitering to perform an act which a person may have a perfect right to perform. In People v Johnson (6 NY2d 549) the Court of Appeals upheld the constitutionality of a statute which prohibits what may amount to no more than simple loitering in or about schools (Penal Law, § 240.35, subd 5) because of the possible danger this activity poses to children. From this and other cases, this court in Butler concluded that simple loitering can be legitimately banned depending on where it occurs and other circumstances. Therefore, despite the fact that persons have a lawful right to engage in deviate sexual intercourse, loitering in public for this purpose may be constitutionally proscribed depending on its effect on the public welfare. As in People v Smith there must be some connection shown between the proscription and a legitimate public concern. But, because male homosexuals are being singled out from the entire population, the People must show a strong connection between their activities and the public welfare.


Defendant contends that title II is inapplicable as against the Store because it applies only to houses of <mask>, as that term is generally and commonly known. On a constitutional level, it is defendant’s position that if plaintiff obtained the relief requested under title II defendant would be prevented from continuing to show movies or sell books and magazines which are presumptively protected due to allegations that acts and/or conduct other than the sale or exhibition of books, magazines, and movies occurred at the Store in the past. Defendant con-, tends that the issuance of an injunction would constitute a total and final prior restraint upon presumptively protected activity and would restrain defendant from continuing to disseminate materials clearly protected by the Federal and State Constitutions and thus reach far beyond the *509alleged activity asserted. Defendant further maintains that the presumptively protected activity which takes place at the Store would be impermissibly restrained by application of the sanctions provided by title II since that title does not contain required procedural and constitutional safeguards.


*67Respondent, by her attorney, has moved to dismiss the <mask> charge on constitutional and other grounds.5 For the reasons stated below, the court holds that sections 230.00, 130.38 and 130.00 (subd 2) of the Penal Law are unconstitutional under the New York State Constitution in that these statutes constitute a denial of equal protection and invade respondent’s constitutionally protected right of privacy.


In Farringer v. McBurney, 5 Cowen, 253, which was for the board of a female who had been living with the defendant, and had by him an illegitimate child, and the defence was that the contract was made with the view of facilitating *581the continuance of the state of <mask> between the defendant and the female boarded, the court say, “ The simple circumstance that the plaintiff had knowledge of the previous cohabitations did not furnish legal ground for an intent to sanction their repetition; something more was necessary.”


To maintain the plea that the plaintiff had expelled him from the possession, the defendant offered to prove, upon the trial, that the plaintiff introduced into the part of the house which he occupied, lewd women and prostitutes at various times, keeping them all night for the purpose of <mask>; that he *118was in the habit of introducing other men, who, with himself, kept company with the women, and who, together, kept up such noise and disturbance throughout the night, using obscene and indecent language, as to disturb the rest of persons sleeping in the part of the house demised to the defendant— in consequence of which the defendant was compelled to leave the house before the rent became due for which the action was brought.


Defense counsel emphasized the presumption of innocence beyond a reasonable doubt, and the rule that if two reasonable interpretations of circumstantial evidence exist, the jury must interpret that evidence in favor of the defendant. She emphasized discrepancies or exaggerations by B., and *330argued B. became angry at defendant and made up her story. She also emphasized that D. did not testify and argued defendant's testimony that he was trying to wean the girls from <mask> to robbery was plausible.


Petitioner, in his effort to justify his failure to serve the required notice of termination, relies on RPAPL 711 (5), which states that in a proceeding to recover possession, a tenant shall not be removed from possession except in a special proceeding and that a special proceeding may be maintained if ”[t]he premises, or any part thereof, are used or occupied as a bawdy-house, or * * * place * * * of <mask>, or for any illegal trade or manufacture, or other illegal business.”


In Girardy v. Richardson, (1 Esp. Rep. 13,) the action was assumpsit for the use and occupation or certain rooms belonging to the plaintiff. For the defendant, it was proved that she was a woman of the town; that the rooms had been let to her by the wife of the plaintiff, who, it was proved, managed the business of his house in letting the lodgings; that at the time of letting them, she was informed of the defendant’s mode of life, and consented that she should be at liberty to receive male visitors, for the purpose of <mask>. Lord Kenyon ruled that under these circumstances the action was not maintainable; that the contract was contra bonos mores, and therefore could not support an action, and directed a verdict for the defendant.


After the court reserved decision on defendant’s motion to dismiss the accusatory instrument for facial insufficiency, the jury returned a guilty verdict. The court then granted the motion, set the verdict aside, and dismissed the accusatory instrument because, inter alia, the instrument, having alleged that defendant transported a prostitute for the purpose of engaging in sexual acts, failed to allege that the prostitute engaged in said acts “for a fee” (cf. Penal Law § 230.00) and that defendant did so with the requisite intent to establish his guilt of promoting <mask> in the fourth degree (Penal Law § 230.20; see People v Rollova, 124 AD2d 886, 889 [1986]). We conclude that the allegations of the information and attached supporting depositions established every element of the offense charged (CPL 100.15 [2], [3]; 100.20).


In Bowry v. Bennett, 1 Camp. 348, where an action was brought to recover for clothes sold to a prostitute, and the defence was that the articles were sold for the purpose of enabling her to carry on her business of <mask>, Lord Ellenborough said it must not only be shown that the plaintiff had notice of the defendant’s way of life, but that he sold the clothes to enable her to carry it on.


In the current case, both parents admitted to their long histories of substance abuse. According to mother, she began abusing alcohol, marijuana, and cocaine at age 12, with her drug of choice being crack cocaine. She also reported a history of <mask>, criminal behavior, and being " 'out on the street.' "3 Mother acknowledged that she had never completed a substance abuse program. Nevertheless (and despite her recent positive drug test), mother denied using any illegal substances during her pregnancy, and claimed to have been clean for a year. She further stated that she had matured since her previous children were born, and was ready to get *754clean. As for father, he acknowledged a thirty-five year history of drug use and an extensive criminal record.4 He reported smoking marijuana from age 13, starting to abuse other drugs, and becoming an addict. His drug of choice was also crack cocaine. Father additionally stated, however, that he had completed drug court in the *1119past and claimed that he had not abused drugs since graduating from a substance abuse treatment program in 2014. According to father, "he got his life together after seeing that he lost everything he cared about living that way."


beneﬁt such as [a tax exemption] to a person who wishes to exercise a constitutional right.” Regan, 461 U.S. at 545. How does one tell the diﬀerence between an unconstitu- tional condition and a permissible congressional choice about whom to include in a government spending or subsidy pro- gram? It can be diﬃcult in close cases, but the Supreme Court provided guidance in Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S. 205 (2013), where the Court addressed grants to non-governmental or- ganizations to combat HIV/AIDS around the world. Congress had prohibited using the money to promote legalization of <mask> or human traﬃcking. That condition was not even challenged in the case and posed no First Amendment problem. But the statute also required grant recipients to adopt a policy “explicitly opposing prostitution and sex traf- ﬁcking.” Id. at 210, quoting 22 U.S.C. § 7631(f). The Court struck down that policy requirement. The Court explained the familiar scope of the govern- ment’s spending power: “As a general matter, if a party ob- jects to a condition on the receipt of federal funding, its re- course is to decline the funds.” 570 U.S. at 214. “At the same time, however, we have held that the Government ‘may not deny a beneﬁt to a person on a basis that infringes his consti- tutionally protected … freedom of speech even if he has no entitlement to that beneﬁt.’” Id. (omission in original), quoting Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59 (2006). To distinguish between permissible limits on spending programs and unconstitutional conditions, the Court clariﬁed that “the relevant distinction … is between conditions that deﬁne the limits of the government spending program—those that specify the activities Congress wants to 16 No. 21-2589


POBRA was enacted to give employment protection to peace officers who, because of the nature of their interaction with the public, are particularly vulnerable to complaints from the public. As examples, POBRA has been properly invoked in the case of a citizen's complaint of police brutality ( Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 247 Cal.Rptr. 909 ), an investigation into an officer's involvement in a <mask> business ( Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1271, 1293, 31 Cal.Rptr.3d 297 ), and an internal affairs investigation into whether an officer was conducting police officers' association business while on duty ( Upland Police Officers Association v. City of Upland (2003) 111 Cal.App.4th 1294, 1297, 4 Cal.Rptr.3d 629 ). In this case, Manavian's CEA position was terminated because Oules was unsatisfied with the way Manavian was managing the Bureau, not because of complaints that Manavian had committed some misconduct. The CEA provisions were specifically designed for this situation, while the POBRA provisions were not.


*552The City has absolutely failed to prove its scandalous innuendo that the Judges of the Criminal Court have been unwilling to enforce the law. The City’s attorneys claimed at the hearing that part of their lack of effectiveness in enforcing the <mask> laws in the Queens Plaza area is due to the low priority placed on this offense by the Criminal Court. They claimed to be faced with a classic “revolving door” situation, where the court puts the prostitutes back on the streets on the same night they are arrested, in effect allowing them to pay their fines by repeating their offenses.


Defendants vigorously deny the <mask> rap and assert that, in any event, an order closing Plato’s Retreat would be unconstitutional as an impermissible prior restraint on activities protected by US Constitution 1st Amendment and NY Constitution, article I, § 8. On the same basis and on the additional constitutional basis of intrusion on the right of privacy, defendants cross-move to dismiss the first two causes of action in the city’s complaint relating to prostitution.


Defendants were indicted for three counts of promoting <mask> in the second degree (Penal Law, § 230.25). The first count of the indictment charged the defendants with violation of subdivision 1 of section 230.25 of the Penal Law which states: “A person is guilty of promoting prostitution in the second degree when he knowingly: 1. Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes ”.