“knowingly participated in defendant Audi America’s aforesaid breach of fiduciary duty by, inter alia, substantially assisting Audi America in the planning and development of a competing Audi store in the territory serviced by JJM Audi and by accepting or agreeing to accept an open point from Audi America in connection therewith” (exhibit A to motion sequence No. 2 ¶ 192). In order to sustain a claim for <mask> breach of fiduciary duty, a plaintiff must demonstrate: a breach of fiduciary duty owed to the plaintiff; that the defendant knowingly induced or participated in the breach; and the plaintiff suffered damage as a result of the breach (Baron v Galasso, 83 AD3d 626 [2d Dept 2011]; Yuko Ito v Suzuki, 57 AD3d 205, 208 [2008]; Kaufman v Cohen, 307 AD2d 113, 125 [1st Dept 2003]).


With respect to the remaining claims alleged against defendants Thomas and O’Neill for breach of fiduciary duty, <mask> such breach, and waste, which arise from the investigation conducted by the Board in response to plaintiffs demand, these claims are dismissed. These claims were not part of plaintiffs original demand. The demand addressed plaintiffs concerns regarding Citigroup’s “systemic failure of risk manage*310ment at the Board level and within senior management, all of which has caused Citigroup to suffer billions of dollars in damages as described herein and untold billions going forward” (exhibit A to amended complaint at 2). It addressed, among other things, the write-down of $6 billion in assets as of the end of the third quarter of 2007, increases in reserves, the material overstatement of earnings, assets and net worth, off-balance-sheet transactions, and trading losses with regard to CDOs {id. at 2-3). The claims against Thomas and O’Neill target alleged waste in their conduct of the Demand Committee investigation of the allegations in the demand. They do not arise from the same set of circumstances as set forth in the demand. There was no assertion in the original demand that Citigroup file litigation against Thomas or O’Neill. In fact, they were selected to be on the Demand Committee because they were outside directors who were independent of the allegations. Contrary to plaintiffs contention, this is a new claim, a whole new assertion. The demand did not alert the Board so that it could take corrective action with regard to the yet to be conducted investigation. The references to excessive spending and waste in the demand have absolutely nothing to do with the investigation, which had not begun until months after.


The Assembly, the State and Silver appeared by the Attorney General and moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint as against them for failure to state a cause of action. By decision and order dated March 15, 2005, Justice Thomas J. McNamara dismissed the Assembly as a defendant, finding that body to be a component of the State only, and finding that the State, not the Assembly, was Jane Doe’s employer. Justice McNamara further ruled that, because Jane Doe did not claim that Silver participated in the underlying conduct, and this court is bound by that finding, no cause of action was stated against him, individually, for <mask> under Executive Law § 296 (6), a subdivision which allows for personal liability based on active participation in the conduct giving rise to a discrimination claim under the Executive Law. However, he ruled that Silver may be treated as Jane Doe’s employer under Executive Law § 296 (1), because the complaint alleged that he was the person at the Assembly with the authority to determine and investigate complaints of sexual harassment, and the complaint alleged facts which, if proven, could establish that Silver was aware of prior allegations of sexual harassment by Boxley and failed to respond appropriately to these serious charges.


The evidence as to the nature and conduct of defendants’ business is both direct and circumstantial. The test as to its sufficiency is ‘1 whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts ” (People v. Borrero, 26 N Y 2d 430, 435 [1970]). Applying that test, the court is convinced that defendants are engaged in the business of selling term papers to students, thereby knowingly <mask> them to attempt to obtain by fraudulent means a diploma, degree or certificate, in violation of subdivisions 2 and 3 of section 224 of the Education Law.


It is equally well settled that, "[i]f believed by the fact finder, a defendant's honest and reasonable, albeit mistaken, belief in the victim's consent is a complete defense to a charge of ... rape." ( People v. Brooks , supra , 3 Cal.5th at p. 74, 219 Cal.Rptr.3d 331, 396 P.3d 480.) Defendant, of course, cannot claim this defense personally, as he clearly knew Yolanda had not consented to acting as a prostitute. Nonetheless, defendant reasons that if the john could raise such a defense, then defendant cannot be found guilty of <mask> a crime, as no crime occurred. We alluded earlier to the flaw in this argument, which we now explain.


Defendant Williams’ argument is that the time period from when the omnibus motions were decided should be charged against the People as DNA analysis was neither necessary nor appropriate regarding him. His argument that his acknowledgment of having had sexual relations with the complainant on the dates in question removed all issues but force from the case is without merit. In 8 of the 10 rape counts and all 9 sodomy counts, defendant is charged with <mask> and acting with one or more of the codefendants. Proof of their involvement in sexual acts against the complainant is both relevant as to defendant’s liability as an accomplice and as to his liability as a principal on the question of force.


Given the dismissal of the underlying fraud claim, plaintiffs’ conspiracy and <mask> claims are also dismissed. (See Oster v Kirschner, 77 AD3d 51, 55 [1st Dept 2010]; Hoeffner v Orrick, Herrington & Sutcliffe LLP, 85 AD3d 457, 458 [1st Dept 2011] [“While a plaintiff may allege, in a claim of fraud or other tort, that parties conspired, the conspiracy to commit a fraud or tort is not, of itself, a cause of action”].)


Specifically, the financial statement for the year ending June 30, 2010 failed to identify the January 8, 2010, January 25, 2010 and February 9, 2010 (unauthorized) transactions. Further, plaintiff alleges, the financial statement for the year ending June 30, 2011 failed to identify the December 31, 2010 and June 28, 2011 transactions, and the financial statement for the year ending June 30, 2012 failed to identify the May 14, 2012 transaction. As pertaining to the instant motion, plaintiff asserts the following five causes of action against Mauceri: professional malpractice (9th cause of action); <mask> the commission of a tort (10th cause of action); negligent misrepresentation (11th cause of action); breach of contract (12th cause of action); and fraud (13th cause of action). Mauceri moves to dismiss these claims pursuant to CPLR 3211 (a) (1), (5) and (7). Plaintiff opposes the motion.


¶16 Bade argues in reply that Johnson provided substantial assistance to Dr. Powar’s commission of the second battery by “making Bade available for the second battery by failing to discharge him.” The alleged omission in a medical note of meeting discharge criteria does not give rise to an inference of Johnson’s knowledge of a battery or constitute substantial assistance in the commission of a battery. See id. at ¶ 9. The superior court did not err in granting summary judgment to Johnson on the <mask> medical battery claim.


1 Bade does not directly address in his opening brief the superior court’s dismissal of claims against Johnson and Skadeland for <mask> fraudulent concealment, which the court dismissed for Bade’s failure to provide an expert affidavit. He only mentions the aiding and abetting fraudulent concealment claim in passing and fails to develop any specific argument on appeal directed to this claim. He thus waives this issue as to Johnson and Skadeland. See Van Loan v. Van Loan, 116 Ariz. 272, 274 (1977) (“The failure to raise an issue . . . in briefs on appeal constitutes a waiver of the issue.” (citation omitted)), overruling on other grounds


Before King, Graves, and Ho, Circuit Judges. Per Curiam:* In separate appeals, Bryan Majors and Max Majors challenge the district court’s order holding them jointly and severally liable for $500,500 in restitution. They contend that the restitution award is not supported by record evidence of the victim’s loss and thus exceeds the statutory maximum. Because they implicate common facts and issues, we sua sponte consolidate the appeals under Fed. R. App. P. 3(b)(2). We vacate the restitution order and remand for recalculation. I. Bryan Majors and his brother, Max Majors, both pleaded guilty to kidnapping and <mask>. See 18 U.S.C. §§ 2, 1201(a)(1) and (c). The brothers were part of a residential robbery scheme in which two assailants entered the victim’s home, subdued her, and threatened to harm her son if she did not reveal where her money was stored. After she pointed the assailants to her safe, one of them pried it open and seized what was inside. The assailants left the home with considerable cash and other valuables.


The Special District Attorney responds by asserting first that the defendant is not a person entitled to mandatory youth offender status because he is before a superior court under indictment, albeit charged only with a misdemeanor. (CPL 720.20 [1] [b].) He further asserts that the People have three interlocking confessions and that contrary to the defendant’s contention, "the facts surrounding defendants’ assault upon Mr. Leahy [the complainant] and their conduct in <mask> each other in the commission of such assault, including their respective roles in fending off those seeking to assist Mr. Leahy, require that this matter be tried in one trial, before one jury * * * A 'joint trial’ would not, as alleged by Mr. Z * * * result in prejudice to him. Indeed, a severance would rather, make the presentation of this action to a jury disjointed and make confusion more likely.”


On June 22, 2010, plaintiff filed the amended complaint in this action, alleging that the Board constructively and wrongfully refused the demand and conducted a sham investigation (amended complaint 1I1Í 150-180). The amended complaint asserts claims against various management defendants and members of the Board’s Audit and Risk Management Committee for breach of fiduciary duty, <mask> such breach, and waste of corporate assets, seeking an accounting and disgorgement of all monies, profits, commissions, bonuses, and gains obtained. It includes a new cause of action against Franklin Thomas and Michael O’Neill (the Demand Committee defendants), alleging breach of fiduciary duty, aiding and abetting such breach, and waste of corporate assets by causing Citigroup to expend millions of dollars in an allegedly sham investigation (id. 1ÍH 185, 195, 200-202).


For the reasons set forth below, we find that both Lewis and Young were convicted of armed bank robbery, that armed bank robbery is a crime of violence under the still- valid “elements clause” of 18 U.S.C. § 924(c)(3)(A), and that <mask> a crime of violence is also a crime of violence. Relatedly, we find that Lewis and Young have not met the requirements for filing a second or successive motion under 28 U.S.C. § 2255 because, under Ninth Circuit precedent, their claim does not “rely on” a new rule of constitutional law.


*868As a threshold matter, section 487 “is only applicable to attorneys and cannot extend derivative liability to a client.” (Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215 [1st Dept 1995].) Therefore, no section 487 claim has been stated against the Alliance brothers. Since no underlying section 487 claim has been alleged against either the attorney defendants or the Alliance brothers, the conspiracy to violate and <mask> a violation of section 487 claims lack merit and are dismissed. (See e.g. Kagan v HMC-New York, Inc., 94 AD3d 67, 73 [1st Dept 2012]; Abacus Fed. Sav. Bank v Lim, 75 AD3d 472, 474 [1st Dept 2010].)


Defendants move to dismiss the amended complaints arguing that (1) the plaintiffs have failed to identify which manufacturer’s product was consumed by the plaintiffs and thus have failed to causally link each defendant to the asserted injuries, that (2) the plaintiffs have failed to plead a factually sufficient legal nexus between the parent corporations, the industry-related research organizations and the manufacturers to render them liable for torts allegedly committed by the manufacturers and (3) that the fraud and misrepresentation counts were not pleaded with requisite specificity and (4) that plaintiffs have not pleaded the necessary elements of conspiratorial, concerted action or <mask> liability.


C. The Trial Court’s Denial of the Petition The trial court denied the petition on three grounds. First, the trial court found that section 1170.95 relief is available to petitioners convicted of murder, not attempted murder. After that ruling, the California legislature passed Senate Bill No. 775, which expressly extends section 1170.95 relief to individuals convicted of attempted murder under the natural and probable consequences doctrine. (Sen. Bill No. 775 (2020–2021 Reg. Sess.) § 2, amending § 1170.95, subd. (a), eff. Jan. 1, 2022.) We agree with both parties that appellant’s conviction for attempted murder, in and of itself, does not make him ineligible for relief under newly amended section 1170.95. Nevertheless, appellant remains ineligible for relief. Appellant was not convicted of attempted murder under the natural and probable consequences doctrine. That doctrine imputes vicarious liability for reasonable foreseeable consequences of offenses committed by the person the accused aids or abets. (People v. Prettyman (1996) 14 Cal.4th 248, 261.) Here it is undisputed that appellant was prosecuted as the actual shooter, not under any theory of <mask>, and the jury found true the allegation that he personally discharged a firearm causing great bodily injury to the victim. The trial court did not err in finding appellant ineligible for relief.


It seems clear that the 1960 amendment shifting the loss to the drawer-employer of a dishonest employee was intended to relieve from responsibility a bank which acted in error but not amounting to bad faith. The amendment could not have been intended to absolve completely from responsibility a bank *698chargeable in a commercial sense with bad faith and therefore not entitled to the protection it would otherwise receive under the law (cf. Soma v. Handrulis, 277 N. Y. 223, 234, supra). Any other interpretation would confer immunity upon banks, while <mask> by means of their gross negligence or willful ignorance dishonest employees to steal from their employers.


As such, the Steele Plaintiffs' causes of action for <mask> fraud, tortious interference, and conspiracy each complain substantively of underlying decisions or directives of TLC, not any actions by GTECH within its independent discretion, thereby implicating sovereign immunity. But the analysis is more complicated with respect to the Steele Plaintiffs' remaining causes of action for fraud by misrepresentation or silence.


Section 2 of the Penal Law, among other things, divides crimes into two divisions: Felonies and misdemeanors. This section defines a principal as “ a person concerned in the commission of a crime, whether he directly commits the act consti-tuting the offense or aids and abets in-'its commission, and whether present- or absent, and a person who directly fir iiidire'ctly counsels, commands, induces or procures another to'commit a- crime!” The provision in this section-as to‘<mask> another-in-the‘commission of dm- offense relates only do -acts-or-omissions punishable as'felonies-or misdemeanors,1 under the provisions- of the Penal Law, and to the-violation-of statutes *313which declare acts "or •omissions to be -either felonies or. misdemeanors. If the violation of the ordinance of which the .defendant was convicted is á misdemeanor; then- the. conviction must stand; but, if it ismot-a misdemeanor, the conviction must be reversed. • '


White points out that mere presence at the scene of a crime, or failure to intervene, is insufficient in and of itself to constitute <mask>. (See People v. Pettie (2017) 16 Cal.App.5th 23, 57, 224 Cal.Rptr.3d 160 ; In re Michael T. (1978) 84 Cal.App.3d 907, 911, 149 Cal.Rptr. 87.) But J.D.'s testimony shows that White's participation was much greater than simply presence at the scene or failure to intervene. A jury could reasonably infer that White acted as a lookout during the attack and encouraged Owens to continue after J.D. first fought him off.


Specifically, the informations allege that on the various Sundays therein mentioned, the defendants, each <mask> the others, sold the following allegedly prohibited items: three sets of men’s underwear, a pair of boys’ shorts, two pairs of socks and a hammer. Many other articles, not *256authorized to be sold on a Sunday, were then and there displayed for sale.


the natural and probable consequences theory of <mask> or on any felony-murder theory. The jury found Salas guilty of all charged crimes, all alleged enhancements, and the special circumstance. The jury found Garnica guilty of the crimes relating to the Saticoy Street shootings, but acquitted him of the crimes relating to the forced tattooing of Covarrubias (as well as any lesser-included offenses). D. Sentencing and appeal The trial court sentenced Salas to prison for a determinate term of 15 years, plus two indeterminate terms of life without the possibility of parole, plus 187 years to life, and sentenced Garnica to prison for 125 years to life. Both defendants filed timely notices of appeal. DISCUSSION I. Evidentiary Issues Garnica argues that the trial court erred in ruling that the jury could consider the Vega shooting and the prostitution sting against him. We review these evidentiary rulings for an abuse of discretion. (People v. Clark (2016) 63 Cal.4th 522, 590.) A. The Vega shooting The trial court admitted the Vega shooting under Evidence Code section 1101, subdivision (b). That provision authorizes the admission of uncharged acts to “prove some fact,” including “motive” and “intent.” (Evid. Code, § 1101, subd. (b).) To be admissible as so-called “1101(b) evidence,” a court must find that (1) the purpose for which the uncharged act is offered is relevant to the pending case (People v. Daniels (1991) 52 Cal.3d 815, 857- 858), (2) the uncharged act has the requisite degree of similarity, which ensures that it has a tendency to prove the purpose for which it is offered (People v. Lindberg (2008) 45 Cal.4th 1, 22


Finally, regarding the second cause of action for misappropriation of a trade secret, and the seventh and ninth causes of action for conspiring and <mask> such misappropriation, respectively, defendants argued that the information allegedly at issue was not a trade secret because such information was not private; and that, in any event, there was no evidence to show any such information had been misappropriated or used by defendants.


Accordingly, we must reverse the order denying the petition and remand the matter to the trial court for a new section 1170.95, subdivision (d)(3) hearing under the correct standard. At the new hearing, the parties should be afforded the opportunity to present additional evidence, should they so request. We reject defendant’s contention that remand is inappropriate and that we must vacate his murder conviction. Defendant misplaces reliance on the rule that, “when a reversal rests upon the ground that the prosecution has failed to produce sufficient evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction.” (Tibbs v. Florida (1982) 457 U.S. 31, 42 [72 L.Ed.2d 652, 661].) Even if this rule applied in this context, our determination is not that the prosecution failed to proffer legally sufficient evidence, but rather that it is not clear the trial court employed the correct standard of review. Nor do we accept defendant’s invitation to “find that [he] prevails under any standard of review.” In light of our determination and this open remand, we need not reach defendant’s substantial evidence claim, his claim addressed to the theory of <mask> an implied malice murder, or his claim that his petition may have been denied based on an invalid legal theory. V Res Judicata And Double Jeopardy Defendant asserts, essentially, that a finding that the trial court would convict him under direct aiding and abetting principles is precluded as a matter of law, and that the only other theory on which the jury was instructed was the now-invalid natural and probable consequences doctrine. Therefore, he asserts, in effect, that the trial court was precluded as a matter of law from denying his petition. Defendant contends that a finding that the trial court would still convict him of first degree murder is precluded by double jeopardy and res judicata principles. He bases this claim on this court’s reversal of his first degree murder conviction on his first appeal and the reduction to second degree murder. (Torres, supra, C069510.) He claims that, under Gomez v.


The court gave CALCRIM 400 : "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] Under some specific circumstances, if the evidence establishes <mask> of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime."


In this case, as in People v. Sanchez (2001) 26 Cal.4th 834, 111 Cal.Rptr.2d 129, 29 P.3d 209, "it is proximate causation, not direct or actual causation, which, together with the requisite culpable mens rea (malice), determines [defendants'] liability for murder." (Id. at p. 845, 111 Cal.Rptr.2d 129, 29 P.3d 209.) Here, there was no dispute Ellison died of a single gunshot wound. This was the direct, but-for cause of death. Overwhelming evidence established both Adam and Isaac fired into Ellison's car. Who fired the fatal shot is irrelevant. As our Supreme Court explained: "A person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet. For example, in People v. Sanchez, supra, 26 Cal.4th 834, 111 Cal.Rptr.2d 129, 29 P.3d 209, ... two persons engaged in a gun battle, killing an innocent bystander. Who fired the fatal bullet, and thus who personally inflicted the harm, was unknown, but we held that the jury could find that both gunmen proximately caused the death. (Id. at pp. 848-849, 111 Cal.Rptr.2d 129, 29 P.3d 209....)" (People v. Bland (2002) 28 Cal.4th 313, 337, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) The same is true here. While the jury should have been instructed with the "direct, natural, and probable consequences" language, we have no doubt the jury reached the same conclusion without it, i.e., the act of firing the fatal shot caused Ellison's death. Then, under the instruction that was provided, the jury properly concluded both Adam and Isaac proximately caused the death regardless of who fired the fatal shot. Moreover, use of the term "proximate cause" in the instruction, while improper, could only have benefitted defendants by potentially misleading jurors that proximate cause has a " 'physical or temporal nearness' " requirement that does not exist in the law. (People v. Bland, supra, 28 Cal.4th at p. 338, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) As for Jesse, liability for murder turned on principles of <mask>, on which the jury was appropriately instructed. Thus, any instructional error was manifestly harmless.


When Costa returned from a short ride with defendant, he had only one bag of methamphetamine, unlike on the first occasion where Costa retained the other bags he had obtained from defendant. He turned over that single bag to Bellamy. When Bellamy asked Costa whether he got any, Costa said he had not. He explained, "I'm doing bad right now cause I owe him money. So he ain't giving me nothing right now . But if you could kick me a little, that'd be cool." (Italics added.) Costa had recently lost money gambling, and he owed defendant approximately $400. Costa's reference to his debt and the fact that defendant was not providing him with any drugs "right now" is additional evidence establishing that defendant knew he was not providing methamphetamine to Costa, but rather he was knowingly <mask> Costa in providing methamphetamine to a third party.


‘were deliberately performed with knowledge of the danger to and with a conscious disregard for human life.’ ” The prosecutor seemed to contend the natural and probable consequences doctrine remained a valid basis for at least a second degree murder conviction. At the subsequent hearing, the prosecutor told the court, “I think both the implied malice theory and an amended form of the natural and probable consequences doctrine which relies on implied malice are still viable under 1437.” The parties appeared before the court on September 1, 2020 for an evidentiary hearing. (See § 1170.95, subd. (d)(3).) Gaither did not offer any new or additional evidence. The prosecution called an investigator to testify about lyrics he’d found on the internet of two songs by a musician named Jay Capone. The prosecutor told the court one of the songs had been marked as a defense exhibit at trial and Gaither had “indicated that he was involved in the production of it.” After hearing from the witness, the court sustained Gaither’s objections to the lyrics. The only other evidence the prosecution offered was the Attorney General’s file, presumably from Gaither’s direct appeal. After hearing at length from counsel, the court denied Gaither’s petition. On the same day, the court issued a detailed written opinion. The court stated it had “instructed the jury on the theories that [Gaither] was (1) a direct perpetrator, (2) a direct aider and abettor, and (3) an aider and abettor and/or a coconspirator under the natural and probable consequences doctrine.” The court continued, “The fact that a jury instruction was given on the now defunct natural and probable consequences doctrine of <mask> or conspiracy . . . would not preclude a conviction on a separate but still viable theory of liability for the murder.” The court concluded the “People ha[d] proved beyond a reasonable doubt that [Gaither] could be convicted of murder of any degree . . . as a perpetrator and/or as a direct aider and abettor under the current law . . . .”


Second, an anti-SLAPP motion is an evidentiary motion (Finton Construction, supra, 238 Cal.App.4th at p. 213, 190 Cal.Rptr.3d 1 ), but Contreras fails to provide evidentiary support for her allegations of conspiracy or <mask>. "Because civil conspiracy is so easy to allege, plaintiffs have a weighty burden to prove it." (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333, 103 Cal.Rptr.2d 339 (Choate ).) "To prove a claim for civil conspiracy, [Contreras] was required to provide substantial evidence of three elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct." (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581, 47 Cal.Rptr.2d 752 (Kidron ).) For liability to attach, knowledge of the planned tort must be combined with intent to aid in its commission. (Id . at p. 1582, 47 Cal.Rptr.2d 752.) "While knowledge and intent 'may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances' [citation], ' "[c]onspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense." ' [Citation.] An inference must flow logically from other facts established in the action."12 (Ibid . )


In both trials, the jury asked at what point the commission of the crime ended for purposes of <mask> liability. Despite the similarity of the juries' questions, however, the trial court responded differently in each case.11 Appellant contends that the court abused its discretion in responding to the jury question in the second trial, because it led the jury to convict appellant of murder based on a legally invalid theory. We agree.


-In apt words and without equivocation that section (2152 of" the Penal Law) declares that “ the performance of any tragedy, comedy * * * negro minstrelsy * * * on the first day of the week is forbiddenTherefore it follows that if any such tragedy or comedy is performed that such performance must he by actors who take part in a performance forbidden by law. It follows also that if actors perform, there are persons who hire them or procure them to act in such performance. Such persons are those usually interested pecuniarily or otherwise, a's owner or manager, in giving the performance forbidden by law. There must also he persons who-aid in the theatrical performance in various capacities. If on any 'Sunday in this State a public theatrical performance is produced upon a stage, all who are engaged in aiding or furthering such performance, forbidden by law, and all engaged therein, whether as owner of the business that produced the play, the manager of the concern, the actors who take part therein, the ticket seller, the* *195ticket taker, the ushers — all in fact who are present, <mask> the forbidden performance, are violators of the law. “A person concerned in the commission of a crime, whether he directly commits the act constituting the ofíense or aids and abets in its commission, and whether present or absent, or who directly or indirectly counsels, commands, or induces or procures another to commit a crime, is a principal.” (Section 2, Penal Law.)


commission of the offense (§ 12022, subd. (a)(1)). The trial court sentenced defendant to 25 years to life for the murder, one year for a firearm enhancement, and two years for a probation violation. (Maldonado, supra, C041013 at p. 1.) Defendant appealed and this court affirmed the judgment. (Maldonado, supra, C041013 at p. 17.) In the opinion on direct appeal, this court noted that the jury was instructed on the natural and probable consequences doctrine for first degree murder.3 (Id. at pp. 9-10.) In June 2020, defendant filed a petition for resentencing under section 1170.95. In his declaration, defendant checked the boxes to indicate a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, and at trial he was convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine. Defendant also checked the box to indicate that he “could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code § § 188 and 189, effective January 1, 2019.” The prosecutor filed a response and motion to dismiss the petition and defendant’s appointed counsel filed an opposition to the motion to dismiss. On October 5, 2020, the trial court denied defendant’s petition. The trial court noted defendant had been convicted of first degree murder and the jury had been instructed on this charge under both direct <mask> as well as the natural and probable consequences doctrine, so defendant “could have been convicted under the natural and probable consequences doctrine.” However, after reviewing the summary of evidence in this court’s prior opinion, the trial court found that there was evidence defendant intended for Deponte to kill Garcia. “Thus, the court now concludes that as a


“ FIRST COUNT. “ The Grand Jury of the County of Kings, by this count in this indictment, accuse the defendants, each <mask> the other, of the crime of Obscene Prints and Articles, Contrary to Penal Law Section 1141. “ SECOND COUNT. “ The Grand Jury of the County of Kings, by this count in this indictment, accuse the defendants of the crime of Conspiracy, Contrary to Penal Law Section 580.” It is obvious that the indictment was drafted pursuant to sections 295-a to 295-1 of the Code of Criminal Procedure (L. 1929, ch. 176) governing simplified forms of indictment.


We begin by analyzing plaintiff's claim for entire fairness review and find that the standard was not met.8 Accordingly, we review defendants' conduct in the merger proceedings under the enhanced scrutiny standard of review. We find that there are no triable issues of material fact related to the breach of fiduciary duty action against the nine independent directors and affirm the grant of summary judgment in their favor. We find that triable issues remain related to defendant DeWalt's apparent nondisclosure of arguably material information to the board and the shareholders and reverse the grant of summary judgment in his favor. We also reverse the grant of summary judgment in favor of McAfee and Intel on the <mask> claim.


The prosecutor urged the court to respond to the jury's question with the following quote from People v. Singleton (1987) 196 Cal.App.3d 488, 492, 241 Cal.Rptr. 842 : " 'Factors relevant to a determination of whether defendant was guilty of <mask> include[:] presence at the scene of the crime, companionship, [and] conduct before and after the offense.' " (See also People v. Chagolla (1983) 144 Cal.App.3d 422, 429, 193 Cal.Rptr. 711.)


See ¶¶ 74 [seventh cause of action for conspiracy to misappropriate trade secrets, alleging "Wallace misappropriated [AMN's] trade secrets by sending Aya an email containing trade secrets regarding [AMN's] strategy for competing with Aya"]; and 82 [ninth cause of action for <mask> misappropriation of trade secrets, alleging same allegation against Wallace as in the seventh cause of action].)


Lastly, Appellant argues the trial court erred in finding the Shelbina Church was not liable for <mask> under section 537.046, which authorizes a civil action for damages related to injury or illness caused by a defendant's conduct of "childhood sexual abuse." Section 537.046 ; see also Ratigan, 481 S.W.3d at 53. As defined by the statute, "childhood sexual abuse" is "any act committed by the *662defendant against the plaintiff which act occurred when the plaintiff was under the age of eighteen years and which act would have been a violation of [Missouri statutes criminalizing, inter alia , rape, sodomy, or sexual abuse]." Section 537.046.1(1); see also, e.g. , section 566.030 RSMo 2000; section 566.060 RSMo 2000; section 566.100 RSMo 2000. Appellant claims the Shelbina Church is liable under this section because it aided and abetted Sprinkel's sexual abuse of Appellant, and "any civil action related to sexual abuse damages may be maintained pursuant to the language of [ section] 537.046." We disagree.


Plaintiffs allege that defendants knowingly concealed and misrepresented information about the addictive nature of nicotine, and manipulated the levels of nicotine in their cigarettes with intent to defraud cigarette smokers and purchasers, causing them to buy defendants’ cigarettes. They assert claims for fraud, fraudulent concealment, conspiracy, concerted action, <mask>, and violation of General Business Law §§ 349 and 350. On behalf of all similarly situated persons, they seek to recover the return of the purchase price spent on the defendants’ cigarettes and punitive damages.


Our high court built upon its discussion in Banks , with greater emphasis on the requirements of reckless indifference, when it decided Clark , supra , 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 the following year. The defendant, William Clinton Clark (Clark), was convicted of two murders on an <mask> theory, and the court sentenced him to death on the basis of five special circumstance findings, two of which related to the first murder and three to the second. ( Id. at pp. 534-535, 203 Cal.Rptr.3d 407, 372 P.3d 811.) The Clark court concluded the burglary-murder and robbery-murder special circumstance findings that related to the first murder were not supported by sufficient evidence. ( Id . at p. 611, 203 Cal.Rptr.3d 407, 372 P.3d 811.) The facts, in sum, were these.


"In the case of defenses, ... a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial *360evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ( People v. Breverman (1998) 19 Cal. 4th 142, 157, 77 Cal.Rptr.2d 870, 960 P.2d 1094, italics omitted.) Here, the defense theory of the case was that defendant lacked the requisite intent under section 10851, described in the trial court's jury instructions as the intent "to deprive the owner of possession or ownership of the vehicle for any period of time." Assuming arguendo that admitting to stealing the vehicle can be called a "defense," because the jury instructions for "Theft by Larceny" require the intent "to deprive the owner ... permanently/ [or] to remove it from the owner's ... possession for ... [an] extended ... period of time," that purported defense would be inconsistent with Morales's theory of the case. ( CALCRIM 1800.) Moreover, there was certainly not substantial evidence to support any instruction on theories of theft or <mask> theft, as there was no evidence (as opposed to defendant's speculative theory) connecting "Shawn" and/or defendant to the actual theft of the car. Thus, under the standard governing a trial court's duty to instruct sua sponte on defenses, no such duty existed here. In sum, Morales's due process argument is meritless. *810V. Under Gallardo , the Trial Court's Findings on the Prior Strike Allegations Should Be Reversed.


The cause of action for <mask> breach of fiduciary duty is premised on SGRisk’s knowledge of the fiduciary duties owed by CRM and UHY to the trusts, and allegations that SGRisk intentionally continued to underestimate the trusts’ future claims liabilities with the knowledge that this would aid and abet breaches of fiduciary duty by CRM and UHY. Because the allegations of fraud perpetrated by SGRisk are essential to this claim, a six-year statute of limitations pursuant to CPLR 213 (8) is applicable (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009]; Paolucci v Mauro, 74 AD3d 1517, 1519-1520 [2010]), rendering the claim timely.


*631Plaintiff does not contend that the shortened statute of limitations is inapplicable to its claims for breach of fiduciary duty and <mask> breach of fiduciary duty. In any event, its aiding and abetting claim is inadequately pleaded (see Bullmore v Ernst & Young Cayman Is., 45 AD3d 461, 464 [1st Dept 2007]; Brasseur v Speranza, 21 AD3d 297, 299 [1st Dept 2005]).


The sixth cause of action for <mask> fraud alleged the defendants conspired to defraud VBV with excessive billing for which VBV paid, and "subsequently improperly recorded an untimely Mechanics Lien against the Residence in the amount of $449,126.96. Defendants then demanded [VBV] pay the sum of $648,811.43 or they would file a lawsuit to foreclose on the Mechanics Lien."


To the extent the allegations are related to a breach of fiduciary duties by Mr. Mellul and Mr. Pagani, they should be dismissed. As explained below (eighth cause of action), the claim against Mr. Mellul and Mr. Pagani for breach of fiduciary duties should be dismissed. Therefore, the court cannot sustain a claim for <mask> such a breach.


While no witness confirmed that one of the two accomplices seen in the video surveillance footage was Guthrie, the video footage combined with the cell phone evidence showing Guthrie's involvement with Johnson (and to a lesser extent the testimony that Guthrie was a former boxer), amply supported the inference that Guthrie was one of Johnson's accomplices. (See People v. Campbell (1994) 25 Cal.App.4th 402, 409, 30 Cal.Rptr.2d 525 [" '[A]mong the factors which may be considered in making the determination of <mask> are: presence at the scene of the crime, companionship, and conduct before and after the offense.' "].) In sum, there was sufficient evidence to support the jury's finding that Guthrie knowingly and willingly participated in the murder of Canady.


On December 14, 2009, New Media sued Kagalovsky, Iota LP, Aspida and Seragill in New York state court, asserting, among other things, claims for breach of fiduciary duty, <mask> breach of fiduciary duty, breach of contract and tortious interference with contract (New Media Holding Co. L.L.C. v Kagalovsky, Sup Ct, NY County, index No. 603742/2009 [action No. 1]). A few days later, after voluntarily dismissing its federal action, NMDC refiled its federal claims in state court, this time including Kagalovsky and Iota LP as defendants with the partnership, and adding an unjust enrichment claim as against Kagalovsky (New Media Distribution Co. L.L.C. v Iota Ventures LLP, Sup Ct, NY County, index No. 650754/2009 [ac*76tion No. 2]). Kagalovsky and Iota LP filed counterclaims in action No. 1, adding NMDC and Gusinski as counterclaim defendants, and filed nearly identical counterclaims against NMDC in action No. 2.


To plead a prima facie case for <mask>, a plaintiff must allege that the defendant “substantially assisted” in a fraud (see, King v George Schonberg & Co., 233 AD2d 242 [1st Dept 1996]; DePinto v Ashley Scott, Inc., 222 AD2d 288 [1st Dept 1995]). Allegations of mere inaction or silence are insufficient to sustain a claim for aiding and abetting unless the defendant has an independent duty to the plaintiff (King, supra; Superintendent of Ins. of State of N.Y. v Spira, 289 AD2d 173 [1st Dept 2001]; National Westminster Bank USA v Weksel, 124 AD2d 144 [1st Dept 1987]). A bank’s mere acceptance of a loan repayment despite knowledge of the debtor’s wrongful conduct does not rise to the level of aiding and abetting (see, Atlanta Shipping Corp. v Chemical Bank, 818d 240 [2d Cir 1987]; Renner, supra).


As previously noted, the Steele Plaintiffs' causes of action for aiding and *796abetting fraud and conspiracy presume that TLC deliberately chose the allegedly misleading Game 5 instructions so as to mislead and harm them. If so, GTECH had no power under the Instant-Game Contract to countermand TLC's decision-rather, the contract expressly reserved to TLC "the sole right to reject [GTECH's] guidance for any reason" and obligated GTECH to "accept and support" TLC's decision. More critically, the gravamen of the alleged "<mask> fraud" and participation in "conspiracy" by GTECH is that GTECH performed its contractual obligations to print and distribute Fun 5's and program game parameters into the Texas Lottery computer system once TLC had determined or approved the game design. GTECH had no discretion to do otherwise-instead, it was obligated to conform "its tickets, games, goods, and services" in accordance with TLC's specifications and designs. The same is true of the GTECH conduct made the basis of the Steele Plaintiffs' tortious-interference cause of action-GTECH's programming of the computer system in accordance with the game parameters, as GTECH was required to do under its contracts with TLC.


“ State of New York j County of Broome [- ss. City of Binghamton.] “ Walter Martin being duly sworn, deposes and says on information and belief that at the City of Binghamton, County of Broome and State of New York, on or about the 25th day of October, 1930 and thence continuously to and including September 15th, 1932, William A. Menzel and Martina M. Menzel each <mask> the other, did commit the crime of maintaining a public nuisance in violation of section 1530 of the Penal Law, in that they are persons who did unlawfully keep and maintain a certain common ill-governed building and structure located at No. 7 Exchange Street in said city and in said building did sell to various purchasers denatured alcohol with intent and knowledge on the part of the said William A. Menzel and Martina M. Menzel; *917that the said alcohol was to be used by said purchasers for beverage purposes, the said William A. Menzel and Martina M. Menzel, knowing that the said alcohol was unfit for human consumption and was likely to produce serious bodily injury to the individual drinking said alcohol; that the said William A. Menzel and Martina M. Menzel did permit intoxicated persons to remain in said premises while they made purchases of said alcohol. That the said sales were made in violation of the Constitution of the United States of America. That all of said acts, offended the public decency and rendered insecure in their lives and in the use of their property a great number of persons, good citizens of our state, there being and residing and causing great annoyance injury and danger to the comfort, repose, health and safety of a great number of persons, good citizens of our state there being, residing, passing and repassing to the common nuisance of said citizens. “ That the sources of his information and the grounds for his belief are statements made by William Nugent, Harry Slocum and Ray O’Keefe. “ Wherefore he prays that a warrant may issue against the said William A. Menzel and Martina M. Menzel. “ WALTER MARTIN. “ Sworn to before me October 20th, 1932. ■ “ William S. Richardson, “ City Judge of Binghamton.” The defendants were arraigned before Hon. William S. Richardson, city judge of the city of Binghamton, on October 21, 1932, and at that time the attorney for the defendants moved to dismiss the information on the ground that it failed to allege facts sufficient to constitute the crime charged or any crime, and more particularly upon the ground that it was made upon information and belief and that said information was insufficient. The motion so made was denied by the court and a trial had before the court and a jury on the 19th day of December, 1932, the jury returning a verdict against the defendants, and each of them. It appears from the record that the court and jury had the following conversation:


Plaintiffs seek to recover for injuries allegedly sustained by Elizabeth Tigue and Myrna Margolies (now deceased) as a result of the ingestion of DES by their mothers. Sayre Margo-lies proceeds on behalf of her daughter Myrna who died in 1977 at age 23, from clear cell adenocarcinoma of the cervix and vagina, a rare form of cancer in young women, associated with prenatal exposure to DES. Plaintiff Elizabeth Tigue was diagnosed as having vaginal adenosis, a precancerous condition associated with DES exposure, in which glandular tissue normally found in the cervix is found in the vagina. Plaintiffs’ *469complaints allege breach of warranty, negligence, strict liability, res ipsa loquitur, concerted action and <mask> strict liability.


Finally, regarding the second cause of action for misappropriation of a trade secret, and the seventh and ninth causes of action for conspiring and <mask> such misappropriation, respectively, defendants argued that the information allegedly at issue was not a trade secret because such information was not private; and that, in any event, there was no evidence to show any such information had been misappropriated or used by defendants.


Plaintiff, on the other hand, argues that the bankruptcy discharge was the result of a reorganization of the corporate defendants, resulting in their discharge of any obligation to the plaintiff. However, although their discharge insulates them from liability, there was no finding by the bankruptcy court on the merits of the plaintiffs claims against these defendants. That being so, plaintiff is free to litigate his claim of Wodzenski’s <mask> defendants. This is so, he argues even though the bankruptcy discharge relieves the corporate defendants of any liability without a decision on the merits.


The prosecution charged R.G., Cathey, and Kushner with E.L.'s murder. It argued R.G. was liable based on three theories: direct <mask>, conspiracy, and natural and probable consequences. The juvenile court rejected the aiding and abetting and conspiracy theories, but found that R.G. was liable for E.L.'s murder because the shooting was a reasonably foreseeable consequence of the gang assault in this case. (See People v. Medina (2009) 46 Cal.4th 913, 922, 95 Cal.Rptr.3d 202, 209 P.3d 105.)


In 1990, state voters passed Proposition 115, which "revised the scope of capital liability for <mask> felony murders by looking to federal constitutional law." ( Banks , supra , 61 Cal.4th at p. 798, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Section 190.2, subdivision (d) provides that "every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a [specified felony, including robbery,] which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a[n enumerated] special circumstance ... has been found to be true under Section 190.4." "The statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." ( Banks , supra , at p. 798, 189 Cal.Rptr.3d 208, 351 P.3d 330, fn.omitted.) Participating in a robbery-murder is one of the special circumstances for which an aider and abettor may be punished by death or life imprisonment without parole. (§ 190.2, subd. (a)(17)(A).)


In 2014, the California Supreme Court held that premeditation and deliberation "is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death." ( Chiu , supra , 59 Cal.4th at p. 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.) The Court held that under the natural and probable consequences theory "the connection between the [aider and abettor's] culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder." ( Ibid . ) Thus, an aider and abettor's liability for premeditated murder "must be based on direct <mask> principles." ( Id . at p. 159, 172 Cal.Rptr.3d 438, 325 P.3d 972 )


As Chief Judge Posner puts it, “<mask> requires knowledge of the illegal activity that is being aided and abetted, a desire to help the activity succeed, and some act of helping.” (United States v Zafiro, 945d 881, 887 [7th Cir 1991], affd on other grounds 506 US 534 [1993] [paraphrasing L. Hand, J., in the classic formulation of the definition in United States v Peoni, 100d 401, 402 (2d Cir 1938)]; see People v Morhouse, 21 NY2d 66, 73 [1967]; People v Letizia, 122 AD2d 555 [4th Dept 1986]; People v Lilli, 71 AD2d 393, 401 [4th Dept 1979].) A store clerk’s sale of a “dress to a prostitute knowing that she will be using it in plying her trade is not guilty of aiding and abetting,” because the dress sale is “too trivial to support an inference that the clerk actually wants to help the prostitute succeed in her illegal activity.” (Id., 945d at 887 [observing, “(t)hat is where the requirement of proving the defendant’s desire to make the illegal activity succeed cuts off liability,” i.e., as an accessory].) The case of People v Letizia (supra), relied on by defendant, is an example. But if the putative aiders and abettors, here Aliuddin and Urtis, “knowingly providfe] essential assistance [here by procuring and supplying a gun to one with an announced murderous intent], we can infer that [t]he[y] d[o] want [h]im to succeed, for that is the natural consequence of * * * [their] deliberate act.” (Id., 945d at 887-888 [adding that it is “better in evaluating charges of aiding and abetting to jettison talk of desire and focus on the real concern, which is the relative dangerousness of different types of assistance”].) That Aliuddin and Urtis did not actually intend a murder is of no consequence if defendant requested that they commit conduct which would, if they so intended, make them aiders and abettors of murder. (People v Lubow, 29 NY2d 58, 64 [1971] [“fortuity that the person solicited does not agree to commit or attempt to commit the incited crime plainly should not relieve the solicitor of *690liability”].) Knowledge of defendant’s murderous plan on Aliuddin’s and Urtis’ part is what distinguishes solicitation from facilitation. (People v Kaplan, 76 NY2d 140, 146 [1990].) Accordingly, defendant’s motion to dismiss or reduce count two is denied.5


Furthermore, contrary to Baer Marks’ arguments, we find that the <mask> allegations of the second, fourth and sixth causes of action are sufficient to allege a nexus between the primary fraud, Baer Marks’ knowledge of the fraud and what it did with the intention of advancing the fraud’s commission (see, National Westminster Bank v Weksel, 124 AD2d 144, 148, lv denied 70 NY2d 604). Although, as plaintiffs concede, Baer Marks did not prepare the Prospectus, did not represent Bergen, English, Whitecliff or the limited partners and was not involved in the solicitation of the investors, the act of its partner, Levitas, in executing the performance bond as surety when he knew or should have known that it was inadequate to cover the costs of completing the project, allegedly satisfied the condition which permitted the individual investors’ funds to be released from escrow, thus substantially assisting consummation of Bergen’s purchase of the limited partnership interest in Delco.


Count 1 alleges that the defendants, <mask> and being aided and abetted by each other and by one Vincent Anzalone did, on a certain day in Suffolk County, forcibly steal "certain property” from Simon Molldene and Steven Molldene, doing business as Select Auto Radio, and in the course thereof, and in the immediate flight therefrom, one or more participants displayed what appeared to be a revolver. That count of the indictment alleges that while so acting in concert they "forcibly stole automobile radios and various audio equipment.”


Implied in the terms “ aid ” and “ abet ” is the need that there be at least two persons concerned in the commission of the offense, for there cannot be an aider or abettor unless there be also another person who is aided or abetted. There must, notwithstanding the assimilation of terms in the definition of the term “ principal,” contained in section 2, be “ a person [who] directly commits the act constituting the offense ” and another who “ aids and abets in its commission ”— in point of fact, a principal guilty of actual commission, a completed crime, before it can be said that another has aided and abetted in its commission. Were there evidence before me that the defendant’s employers had authorized the defendant to make the agreement in their behalf, they would appear as principals acting through the defendant as their agent in making the agreement, in which case they would be guilty as principals in fact, and the defendant guilty as one <mask> them by making the agreement for them. The facts here do not show such a situation. There was testimony to the effect that one of the two partner-owners of the establishment, whose names or identities the evidence does not disclose, was there at the time, but none that he participated in the transaction or saw or heard what transpired between Mr. Sussman and the defendant, nor any to the effect that either of the owners authorized or empowered the defendant either to make an agreement in their behalf with reference to the machine or to promise or to give merchandise should the user obtain the token ball as a result of his play. No authorization or permission from the defendant’s employers to the defendant to make, as their agent, any agreement in their behalf, appears. Nor could the defendant’s employers, upon the state of the evidence before me, be held guilty in a prosecution against them on the theory that there was “ apparent authority.” That doctrine, which is applied in civil cases, is essentially the doctrine of equitable estoppel, based on the maxim “ that when one of two innocent persons must suffer from the act of a third person, he shall sustain the loss who has enabled the third person to do the injury.” (Matter of Dugan, 147 Misc. 776, 781.) It goes no further in its application, and, indeed, even in civil cases it must appear that the person whom it is sought to charge created the “ appearance ” of authority, the proof of the appearance alone being insufficient. This is pointed out clearly by the Court of Appeals in Edwards v. Dooley (120 N. Y. 540, 544, 551) where the court says: “ While a principal is bound by his agent’s acts when he justifies a party dealing with his agent in *737believing that he has given to the agent authority to do those acts, he is responsible only for that appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent.” (See, to the same effect, Churchill Grain & Seed Co., Inc., v. Buchman, 204 App. Div. 30; Wen Kroy Realty Co., Inc., v. Public Nat. Bank & Trust Co. of New York, 260 N. Y. 84, 87; Armstrong Co. v. Majestic Motion Picture Co., 87 Misc. 141.) To hold otherwise would open the door to great injustice and fraud, for by that means liability could be imposed on the innocent by the designing. In criminal cases, ignorance or indifference on the part of one momentarily left in charge or to but momentarily watch an establishment might result in placing guilt where it does not belong. Nor would any inference that might be drawn from the fact that one was left in charge justify an assumption that he was clothed with authority to commit an unlawful act. The presumption would be to the contrary. (Clark v. Metropolitan Bank, 10 N. Y. Super. Ct. [3 Duer] 241.)


The preliminary hearing thus placed Calhoun on notice that he must be prepared to defend against no less than four acts of committing a lewd and *305lascivious act on a child. Count 4 covered the period from April 20 through June 2, 2016, while count 6 covered the period June 1 and 2 of the same year. Although the prosecutor stated at the preliminary hearing that count 6 was based on an <mask> theory, the evidence presented, and thus the transcript of the hearing, established he also could be held liable as a direct perpetrator. "[I]t is not the complaint but the totality of the evidence produced at the preliminary hearing which notifies the defendant of the potential charges he may have to face in the superior court." ( People v. Donnell (1976) 65 Cal.App.3d 227, 233, 135 Cal.Rptr. 217.)


“New York does not recognize civil conspiracy to commit a tort as an independent cause of action.”10 (Pappas v Passias, 271 AD2d 420, 421 [2d Dept 2000] [“(s)ince the fraud cause of action was dismissed, the ninth cause of action, which alleged a conspiracy to defraud the plaintiff, was also properly dismissed”].) As the Court of Appeals, in a tobacco suit, recently held: “As a result [of the failure of plaintiffs common-law fraud claims], there is no independent tort to provide a basis for liability under their concert of action, conspiracy, and <mask> theories. These causes of action must fail as well.” (Small v Lorillard, supra, 94 NY2d, at 57.)


To the extent the allegations are related to a breach of fiduciary duties by Mr. Mellul and Mr. Pagani, they should be dismissed. As explained below (eighth cause of action), the claim against Mr. Mellul and Mr. Pagani for breach of fiduciary duties should be dismissed. Therefore, the court cannot sustain a claim for <mask> such a breach.


In view of the fact that the present ordinance does not declare its violation a misdemeanor, and of the further significant fact that whenever a violation of the law is declared a misdemeanor in the charter, it is expressly mentioned as a misdemeanor, the conclusion follows that a" violation of section 408 of the ordinances of the city is not, a misdemeanor, and, therefore, the conviction of the defendant as <mask> in the violation of the said section is without authority in law.


On March 27, 2008, prior to the shareholder vote on the merger, plaintiffs filed a consolidated amended class action complaint asserting causes of action for breach of fiduciary duty against the director defendants, for a declaratory judgment to set aside the share exchange agreement, for <mask> a breach of fiduciary duty against JPMorgan and for equitable assessment of attorneys’ fees and expenses against all the defendants.


The defendants then caused SIGO to formally cancel the compensation plan, and announced their intention of selling the shares. Since that time, defendants allegedly caused SIGO to sell portions of the shares, the proceeds of which have allegedly been used to invest in a venture capital and private equity firm. AIG commenced this action in March 2008, asserting three causes of action for breach of fiduciary duty against Greenberg and Smith in their capacity as AIG directors, breach of fiduciary duties against all defendants, and <mask> breach of fiduciary duty against defendants.


single-family detached dwelling. The applicable Zoning Ordinance provisions, which support the ZHB’s determination, provide as follows. Permitted uses in the Rural Residential zoning district include, inter alia, “[s]ingle-family detached dwellings” and “[a]ccessory uses customarily incidental to the above permitted uses.” Zoning Ordinance §§ 150-24(B) and (L). “[O]nly one specific principal use shall be allowed on a lot of land.” Id., § 150-12.1. A “single-family detached” dwelling is defined as “[a] freestanding building containing one dwelling unit for one family and having two side yards, one front and one rear yard . . . .” Id., § 150- 5. A “dwelling unit” is defined as “a building or portion thereof arranged or designed for occupancy by not more than one family and having separate cooking and sanitary facilities.” Id. An “<mask> use” is defined as “a use customarily incidental and subordinate to the principal use or building and located on the same lot with this principal use or building.” Id. The ZHB determined that the second-story addition at issue was a single-family detached dwelling unit and the undisputed facts support that legal determination. The approximately 900-square-foot addition is located in a detached structure, formerly used as a garage, approximately 186 feet away from the preexisting single-family detached dwelling. With its own cooking and sanitary facilities, the addition features two bedrooms, a bath, a kitchen, and a living room. (F.F. No. 8.) Where, as here, the language of the ordinance is clear and free from any ambiguity, the ZHB’s interpretation of its own ordinance is entitled to great weight and deference. City of Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006). Moreover, the proposed use of the second-story addition as a residence is not listed in the Zoning Ordinance as a permitted accessory use. As the Zoning Officer testified:


To hold that personal observation of the affiant is a sine qua non to the validity of such an affidavit would, I think, place an unreasonable — and, at times, insurmountable — burden on law enforcement officials and the security of the community. Our Federal system of State sovereignty does not, in my view, warrant such an invasion of a State’s rights to protect its own citizens and the majesty of its law. “ While it has been said that a complaining affidavit requires a higher decree of certainty and calls for closer scrutiny than an indictment for the same offense (People ex rel. Lawrence v. Brady, 56 N. Y. 182; People ex rel. de Martini v. McLaughlin, 243 N. Y. 417), an affidavit which appears to be full, definite and specific, and is made on knowledge, and not on information and belief, should be held sufficient as a charge of crime.” (People ex rel. Gellis v. Sheriff of County of Westchester, 251 N. Y. 33, 36, supra.) People ex rel. de Martini v. McLaughlin (243 N. Y. 417, supra), also cited by the relator, is not in point. There, the affidavits do appear to have been made upon information and belief, the several affiants did not state the source of their belief, the charges therein were vague and indefinite, and the relator, prosecuted as an <mask> after the fact, was not alleged to have knowledge of the guilt of the principal offenders, and the crime in chief seems not to have been specified. The court indicated that (p. 420) although any one of these grounds might of itself be inadequate to defeat rendition, the cumulative effect rendered the requisition ineffective.


Less than three weeks after sentencing, Linville also wrote a fawning letter to convicted serial killer Richard Ramirez displaying a morbid fascination with cold-blooded murder and also discussing her case. She knew her mail was being searched. Among other things, she told Ramirez the prosecution lacked evidence to prosecute her for murder, "[s]o they threw an <mask> after the fact charge at me, and I walked out of the courtroom full of irate detectives and a furious DA with a sentence of three years, eight months." She asked Ramirez whether he liked "that look of terror in the eyes of prey," and told him she had always "been enthralled by True Crimes, but maybe my breed of attraction stems from different roots than the casual fan." And she told him, "I never should have been arrested based on the absence of underlying evidence linking me to my crimes, but was railroaded into accepting a guilty plea to a lesser charge to sidestep the obviously corrupt attempts of law enforcement to gather evidence that can lead to more serious charges."


The County has commenced suit seeking a permanent injunction against the defendants and a declaration that the “Apparel and <mask> Show”, scheduled for December 5th through 7th, and the “Holiday Extravaganza Show”, scheduled for December 12th through 14th, violate the Lease agreement between SMG and the County because they are flea markets. The defendants claim that neither of these proposed shows and sales are flea markets because their venue is inside the Coliseum, because the goods are new, and because no food will be sold.


Defendant argues the trial court erred by instructing the jury on self-defense and by declining to give the jury instructions on the lesser-related offense of being an <mask> after the fact. Although we can understand why the trial court thought it should instruct on self-defense in light of defendant's police interview statements, it was error to give self-defense instructions that defendant did not request and that were contrary to his theory of the case at trial. The error, however, was harmless because the self-defense instructions the court gave did not contribute to the verdict obtained, particularly in light of (a) other instructions given by the trial court that warned the jury of the possibility that not all of the instructions were necessarily applicable, and (b) the absence of any reference to self-defense in the defense closing argument. As for defendant's contention that the court should have instructed on the lesser related offense of being an accessory after the fact, the trial court did not err when it declined to give such an instruction in the absence of the prosecution's consent, as binding authority holds ( People v. Birks (1998) 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073 ( Birks ) ).


It is undisputed that saccharin is a synthetic coal-tar product having a proportionate quality of sweetness five hundred times greater than sugar. That of itself, it. has no caloric food value. It seems to me to have been established conclusively though, that it has a positive value as a food <mask> in that it imparts to food a quality of sweetness that makes it palatable and agreeable to the taste and thus, where sweetness is desirable, serves the purpose of supplying a flavor to food, which if not sweetened would not be agreeable to the consumer, and consequently tend to discourage its consumption.


The People filed an information charging defendant with possession of marijuana for sale ( Health & Saf. Code,1 § 11359) and cultivation of marijuana (§ 11358). At the time, both crimes were classified as felonies. (Former §§ 11358 & 11359, as amended by Stats. 2011, ch. 15, §§ 160 & 161, eff. Apr. 4, 2011.) The information also charged two prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b). Under a negotiated disposition, defendant pleaded guilty to a single felony count of <mask> ( Pen. Code, § 32 ),2 and the trial court dismissed *803the balance of the charges. Because defendant was found to have played a minimal role in this offense, the court suspended imposition of sentence and placed him on three years' formal probation. He served 228 days in county jail and received 114 days of credit for time served.


What constitutes the most analogous criminal conduct presents a mixed question of law and fact. (Brady, supra, 168 F.3d at p. 577.) The federal <mask> after the fact statute provides: "Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact." (18 U.S.C. § 3.)


Will a gasoline service station change the essential character of this neighborhood? The property is already zoned for business uses and could be devoted at any time and without the consent of the Board of Appeals, to any of the following uses permitted by the ordinance: theatre or moving picture house, bakery, tailor shop, garage <mask> to a business use, printing office, shoe repair, hat cleaning, laundry and dry cleaning with a receiving and delivery agency. This zoning has thus fixed the character of the neighborhood. When one buys a home adjacent to vacant land with notice that it is already zoned for business or commercial uses, he cannot be heard to complain that its future development for such use will change the essential nature of the community. There is nothing whatever on this record which would indicate that the proposed use would depreciate values to a greater extent than would a per se permitted dry cleaning establishment or a laundry. It is rather the fact that a property can at any time be put to commercial uses which should establish values in the neighborhood.


Thus, the determination of the ZBA that the "structure” comprising the skateboard ramp was a permitted <mask> use which is "customarily incidental” to the primary residential use under its zoning ordinance was both arbitrary and capricious, inasmuch as it was made without a sound basis and reason and there was not "substantial evidence” before the ZBA upon which such a conclusion could rationally be made by the ZBA (see, CPLR 7803 [3], [4]; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, supra; Matter of Pell v Board of Educ., supra). Accordingly the determination of ZBA dated June 26, 1991 which directed the issuance of a building permit as of right of respondent Yackulic is ordered annulled and vacated forthwith.


James D. Pagones, J. *771The petitioner in this proceeding instituted pursuant to CPLR article 78 moves for an injunction preventing respondent Village from conveying an easement to respondent Furey and enjoining Furey from performing any work on said property. The relevant facts are not in dispute on this application. On or about September 10, 1957, a subdivision map for the St. John Development was filed with the Office of the Dutchess County Clerk. That map delineated streets intended to provide access to the various subdivision lots. One of those streets was known as Hy-Vue Terrace. By deed dated October 16, 1962, the streets and roads in the subdivision were conveyed to the Village of Millerton. The Village concedes that Hy-Vue Terrace “has not been officially constructed or maintained by the Village of Millerton.” In January 2003, the petitioner purchased two lots in the St. John Development, both of which front on Hy-Vue Terrace. Approximately six months later, respondent Furey obtained sketch plan approval for a proposed subdivision from the Town of Northeast Planning Board. Respondent Furey then undertook to obtain access to one of the lots in his subdivision via Hy-Vue Terrace. Before respondent Village had granted Mr. Furey access to the lot in question, the Town of Northeast Planning Board presented a proposed subdivision map at a public hearing indicating that access to lot No. 5 would be granted via Hy-Vue Terrace in the Village of Millerton. At a monthly Village Board meeting held on August 18, .2003, the Village Board agreed, without enacting a resolution, to allow Mr. Furey access as indicated on the proposed subdivision map. Thereafter, on September 11, 2003, the Town of Northeast Planning Board gave final subdivision approval and the subdivision map was subsequently filed with the Clerk of Dutchess County. After receiving final subdivision approval, Mr. Furey undertook to obtain an easement from the Village of Millerton consistent with their agreement to grant him access as proposed in his subdivision map. Various discussions took place at public meetings during which various environmental and other issues were raised. At a Village Board meeting held on June 20, 2005, the trustees passed a resolution “to allow [Furey] the right of way and help prepare the right of way agreement and accept the restrictions.” The resolution referred to restrictions in a deed prepared and submitted by Furey’s áttorney at that meeting. The restrictions referred to in the resolution are that the premises may not be further subdivided and may only have one single-family dwelling with customary <mask> structures on it and that the premises may not be used for any commercial purposes, except home occupations as allowed by the zoning law *772of the Town of Northeast. Neither the resolution nor the deed provide any details as to how the subject access road will be constructed or maintained.


The "plaintiffs acquired title to premises known as 1229 Baker Avenue, Schenectady, New York, on October 29, 1948. The lot in question has 40 feet frontage on Baker Avenue and is 140 feet in depth. There is a house upon the premises, occupied by the plaintiffs, and a detached garage. At the present time, the premises are residentially zoned, that is in Zone “ A ”, which permits single-family dwellings. The same zoning ordinance which was adopted in 1955 provides under schedule A, column 19: “ Other provision and requirements, District A, No. 4 — No commercial vehicle exceeding one ton capacity shall be parked or stored overnight in any dwelling district.” The prior zoning ordinance of the City of Schenectady was adopted in 1927. It set up a classification of “ A ” — single family residence district for the lot in question and permitted <mask> buildings.


Plainly, the term "walkway" can be used in different ways, but we conclude the statute here uses it in the sense of an external walking path. We reach this conclusion primarily based on the principle of statutory construction noscitur a soclis , i.e., where a word is used in a list, its meaning can be demonstrated by the other items in the list. (See People v. Drennan (2000) 84 Cal.App.4th 1349, 1355, 101 Cal.Rptr.2d 584 ["The rule of statutory construction, noscitur a sociis , a word takes meaning from the company it keeps, is useful here. 'A word of uncertain meaning may be known from its associates and its meaning "enlarged or restrained by reference to the object of the whole clause in which it is used" ' "].) Aside from walkways, *90the other items in the list-carport, garage, overhang, patio, enclosed patio, and detached <mask> structure-are typically located at or near the periphery of a residential structure. In other words, they could arguably be included within the perimeter. The Legislature, therefore, felt compelled to specify that it did not mean to include those areas within assessable space. Accordingly, we conclude a covered or uncovered walkway, as used in section 65995, subdivision (b)(1), refers to an external *1195walkway, not an interior hallway. Any "similar area" is likewise on the periphery of the residential structure and does not include an interior hallway.


One week later, on January 12, 2000, the Planning Commission held a public hearing and meeting to consider petitioner’s application. At that time, petitioner’s counsel submitted to the Commission a memorandum (verified petition, Feb. 11, 2000, 1] 7) summarizing the legal principles governing the application of zoning laws to religious uses, and setting forth petitioner’s contention that the instant application for construction of “<mask> parking” should be evaluated in the same manner as would a proposal to construct an actual church or other religious building (id., exhibit C).


Accordingly, the general policy, as applied in this State, is that religious institutions are virtually immune from zoning restrictions. However, most of the cases have involved churches and synagogues as well as uses ancillary or <mask> to the principal use of a structure as a place of worship. Judicial interpretation as to what constitutes a religious use has been very broad (see, generally, 1 Anderson, New York Zoning Law and Practice [2d ed], § 9.34; Ann., 11 ALR4th 1084). Thus, a day care center (Matter of Unitarian Universalist Church v Shorten, 63 Misc 2d 978), a center for drug problems (Slevin v Long Is. Jewish Med. Center, 66 Misc 2d 312) and a religious school which teaches secular subjects (Westbury Hebrew Congregation v Downer, 59 Misc 2d 387), have been included in religiously immune uses. Such broad interpretation reflects the policy articulated by the Court of Appeals in Matter of Community Synagogue v Bates (1 NY2d 445, 453, supra) that a church should not be limited to being merely a house of prayer as this would deprive it and the congregation of the opportunity of enlarging, perpetuating and strengthening itself.2


It cannot be disputed that the use of helicopters in this area has increased in the past 20 years; that helicopters are being used for the convenient and expeditious movement of corporate executives ; that the efficient supervision and management of business establishments with divisions or branches at widely dispersed locations may be enhanced by the swift shuttling between places that is possible with helicopters; and that modern merchandising methods can be assisted and the movement of merchandise can be facilitated by this mode of transportation. However, after taking notice of the increased use of helicopters in this area, this court cannot hold as a matter of law that the use hás become so clearly incidental to and customarily -found in connection with any principal use as to entitle it to be clothed with the permissive mantle of an <mask> use.


prohibits uses for which it does not provide permission.” Treisman v. Kamen, 126 N.H. 372, 375 (1985); see 15 Peter Loughlin, New Hampshire Practice: Land Use Planning and Zoning § 9.02, at 174 (2010) (explaining that under a “permissive” ordinance, uses of land are generally prohibited “unless they are expressly permitted as primary uses or can be found to be <mask> to a permitted use”). The zoning ordinance does not expressly permit storing of junk for personal use. Accordingly, the defendant’s storage of junk for personal use, not being permitted by the ordinance, is prohibited.


Another question presented in Ferris was whether outside telephone lines and poles were "appurtenances” and if so, were they taxable. The court found that (p 418): "outside wires and central office equipment are essential component parts which must function together as a unified, co-ordinated system” (emphasis added). The court concluded that (p 419): "in the statutory definition of real property as a subject of taxation (Tax Law, § 2, subd. 6 [now Real Property Tax Law, § 102, subd. 12, par. (d)], and § 3) the Legislature intended the word 'appurtenances’ * * * to include telephone lines, wires and poles and all <mask> apparatus” installed in an office as an integral part of the essential equipment. Although the Ferris case differs on its facts and while it involves the interpretation of a different portion of the statute (Real Property Tax Law, § 102, subd. 12, par. [d]), the conclusions reached therein with respect to legislative intent, the significance of movability and the taxability of apparatus which consists of essential component parts integrated in and used in conjunction with a unified system are helpful to this court in arriving at its determination.


*70While we reject Pitts's assertion that Henry's reading of a parole-violation report was the functional equivalent of an interrogation, Henry's question whether Pitts was an <mask> to capital murder is more troubling. Although Henry confidently testified at trial that, as Pitts's parole officer, she was not required to give him Miranda warnings, we point out that there is a growing trend toward accepting that probation and parole officers must advise probationers and parolees in police custody of Miranda warnings before any questioning. In Minnesota v. Murphy , 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), the United States Supreme Court suggested in a footnote that a parolee in police custody being interviewed by a parole officer may be entitled to Miranda warnings. Id. at 429 n. 5, 104 S.Ct. 1136. See also Fowler v. State , 2010 Ark. App. 23, 2010 WL 135209, vacated and affirmed on other grounds , 2010 Ark. 431, 371 S.W.3d 677 ; Beavers v. State , 2015 Ark. App. 124, 456 S.W.3d 783 (Virden, J., concurring).


It is not sufficient to merely inquire whether the item is personal property and stop right there. The above test should be applied. This court cannot adopt the harsh view that a leg brace or an artificial leg is strictly an item of personal property and that the body ends where the leg stump ends. With regard to the contention that a “ shoe ” meets the definition since a shoe performs a physiological function and is an <mask> to the foot, the answer is that by no stretch of the imagination can ordinary footwear be considered a “ medical ” expense.


“ A single individual living upon the premises as a separate housekeeping unit; or a collective body of one or more persons living together on the premises as a single housekeeping unit in a domestic relationship based on birth, marriage, or other domestic bond.” In our opinion, the private residence does not constitute a parish house for religious purposes. Even assuming a parish house may constitute a main rather than <mask> use within the meaning of the ordinance, the factual situation clearly establishes that the actual or principal use of the building, as found by the court below, is that of a dwelling for residential purposes by more than four families. The mere designation by the church of this private residence as a parish house is not controlling (Slevin v. Long Is. Jewish Med. Center, 66 Misc 2d 312). A parish house is defined as “ an auxiliary building belonging to a church and used for its business, social, or extension activities ” (Webster’s New International Dictionary, 3d ed.). The uncontradicted evidence here is that the building is neither owned nor used by the church, and the incidental religious instruction provided to the occupants does not change this fact.


Under section 11361.8, subdivision (b), the trial court "shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria." (Italics added.) No such clear and convincing evidence was presented below that would disqualify the defendant from Proposition 64 relief. While a small amount of methamphetamine was found in the Ukiah home, there is no evidence that defendant had any involvement with it, and the stipulated facts recited at the plea hearing make no mention of it. The only evidence in the record supports the conclusion that defendant's <mask> conviction was predicated on crimes that were reduced to misdemeanor offenses under Proposition 64.


This court suggests that the authorization of such uses as helipads under the guise of their being an <mask> use is an unwarranted application of the accessory use device. In Bassett, Zoning (Russell Sage Foundation, 1936, p. 100), the basis for the custom of permitting accessory uses is explained as follows: “ During the formative period of comprehensive zoning it became evident that districts could not be confined to principal uses only. It had always been customary for occupants of homes to carry on gainful employment as something accessory and incidental to the residence use * * * The earliest zoning ordinances took communities as they existed and did not try to prevent customary practices that met with no objection from the community.”


Third: We now come to the defendant’s counterclaim for $72,-000. The story she has unfolded concerning the cash in the cigar box upstairs, the cash in the candy box downstairs, the cash in a steel box in Summit Hill, Pennsylvania, no doubt has some element of truth. For both these parties were certainly playing fast and loose with the cash that came into the Sterling Tire & <mask> Company. But, in the final analysis, all we have here is the oral, fantastic charge by the defendant and an estranged daughter that $69,400 in cash was placed in a steel box, carted to Summit Hill, Pennsylvania, and there placed under the bed in plaintiff’s sister’s bedroom, then to his father’s attic and then *588back to the sister’s bedroom. There is also a book in evidence showing some record of loans made by the plaintiff, bnt this is no proof that plaintiff had such an amount of cash — or that it came from the partnership business. The admitted fact is that both parties filed joint tax returns for many years which showed a net aggregate profit over the years of less than 10% of the amount sued for by this defendant.


Defendant’s answering papers ask that summary judgment be granted defendant because plaintiffs have failed to exhaust their administrative remedies, which include a possible 25-foot extension of the Apartment B zoning under section 3(e) of article X of the Ordinance. Defendant made no cross motion, however, and the granting of summary judgment to defendant is, therefore, discretionary (compare the last sentence of CPLR 3212 [subd. (b)] with the third sentence of that subdivision). Plaintiffs served no reply affidavits and their moving papers do not fully meet the thrust of defendant’s argument. Nonetheless, the court will not grant summary judgment to defendant, for on the trial plaintiffs may well be able to bring themselves within the rule of Howsey v. Village of Kensington (257 N. Y. 221), that application for a variance is not a condition to a declaration of unconstitutionality as to an ordinance which' destroys the greater part of the value of the property by precluding use for which it is reasonably adapted (see Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493 and note, at p. 499, the use of the phrase “ precludes the use for which it is most readily adapted” [emphasis supplied]); Chusud Realty Corp. v. Village of Kensington, 22 A D 2d 895, 897). At basic issue in this action is whether plaintiffs may be required to use the Residence A portion as a park <mask> to the Apartment B portion while at the same túne being prevented from counting the Residence A portion of the purpose of the 35% land coverage limitation which determines the number of units that the multiple dwelling can contain. If plaintiffs can prove that, assuming that they will be granted a 25-foot extension of the Apartment B zoning, the 52-foot Residence A portion would be so greatly reduced in value if it is limited to accessory park use as to amount to confiscation within the rule of the Howsey ease, *437they will be entitled to judgment. Whether they can prove such reduction is a matter of expert opinion, and would not be decided on affidavits even if plaintiffs’ expert’s affidavit had fully met the defendant’s argument. The issue is a subtle one which should be decided only after trial.


“ Thus church and school and <mask> uses are, in themselves, clearly in furtherance of the public morals and general welfare. The church is the teacher and guardian of morals (State ex rel. Synod of Ohio v. Joseph, 139 Ohio St. 229) and 1 an educational institution, whose curriculum complies with the state law, is considered an aid to the general welfare ’ (Archbishop of Oregon v. Baker, 140 Ore. 600, 613).” (Ibid., p. 526.)


This decision clearly does not govern the facts in the present case. As previously stated, the indictment need not accuse the defendant as an <mask> in order to support proof of his criminal liability for conduct of others. This does not mean that the prosecution may not elect to have the defendant so indicted. Where it does so, however, it is bound to prove the theory so charged. (People v Seldner, supra.)


Pursuant to the Town’s Zoning Law, “[h]ame [occupations are defined as businesses where the owner resides on the property and where the activities of the business are conducted inside the residence, a legally constructed <mask> building, or at off-site locations” (Zoning Law [2008] of the Town of Mayfield § 202 [A] [42]). Anyone considering a home occupation must present their concept to the Town Planning Board for approval (see Zoning Law [2008] of the Town of Mayfield § 202 [A] [42]). The pertinent questions here are whether petitioner was operating a home occupation and, if so, whether his actions were grandfathered in by predating the enactment of the Zoning Law.


Less than three weeks after sentencing, Linville also wrote a fawning letter to convicted serial killer Richard Ramirez displaying a morbid fascination with cold-blooded murder and also discussing her case. She knew her mail was being searched. Among other things, she told Ramirez the prosecution lacked evidence to prosecute her for murder, "[s]o they threw an <mask> after the fact charge at me, and I walked out of the courtroom full of irate detectives and a furious DA with a sentence of three years, eight months." She asked Ramirez whether he liked "that look of terror in the eyes of prey," and told him she had always "been enthralled by True Crimes, but maybe my breed of attraction stems from different roots than the casual fan." And she told him, "I never should have been arrested based on the absence of underlying evidence linking me to my crimes, but was railroaded into accepting a guilty plea to a lesser charge to sidestep the obviously corrupt attempts of law enforcement to gather evidence that can lead to more serious charges."


*735"However, such spaces may be rented for periods of not less than one week and not more than one month to persons who are not occupants of the residences to which such spaces are <mask> for the accommodation of the private passenger motor vehicles used by such non-residents, provided that such spaces are operated in accordance with the regulations promulgated by the Commissioner of Buildings, in a manner which will not adversely affect the residential character of the neighborhood. Such spaces shall be made available to the occupants of the residences to which they are accessory within 30 days after written request therefor is made to the landlord.”


"I don't remember what I would have told the [district attorney] in this case. I'm telling you what my normal practice would have been. [¶] I would have been *262counteroffering for misdemeanors. I would have been counteroffering, if immigration is an issue, transportation on a[ ] [ Health and Safety Code section] 11379 for personal use. I would have been counteroffering for some <mask> after the fact. I would have been doing those kind of things as a general rule." Mehr testified as an expert witness on behalf of Novoa. At the time of his testimony, Mehr had been an attorney for about 37 years. He specializes in immigration consequences of criminal convictions and postconviction relief. Mehr opined that, in 2003, "reasonably competent attorneys" would advise their clients of the immigration consequences for specific convictions. In addition, the attorneys would advise their clients regarding what pleas or strategies would be available to avoid "immigration disaster[s]." Mehr also testified that O'Connor could have explored other possible plea agreements to allow Novoa to avoid immigration consequences.


“The evidence before the court leaves little doubt that recreational motorcycle riding is a customary <mask> use of residential property in the Town of Mendon. The Town’s attempt to cast this action in terms of the track itself is of no avail. The track is not a structure, and more to the point it has no effect at all on the character of Shane Bartholfs activity or on its impact on nearby property owners. If motorcycle riding creates undue amounts of noise a Town noise ordinance would be an appropriate way of limiting it; but no such ordinance appears to have been enacted. The zoning code cannot be forced in to do its job. ‘Operating a motocross track’ sounds like a zoning violation, but in this case its true meaning is ‘riding a cross-country motorcycle’ — and so framed the Town’s claim at best sounds in nuisance.” There can be no question based upon the testimony of various town residents that it is a customary use of property in the R-R district of the Town of Paris to have and use off-road recreational vehicles. While the Town’s determination that there is a motorcycle track on the Spinellas’ property and therefore a zoning violation based on the existence of a worn path strikes the court as an absurdity. The proof in the case is, by a great and clear preponderance, that there are a significant number of worn paths created by vehicles in the R-R area of the Town of Paris pursuant to uses comparable to the Spinel-las’ use. The Town has argued the fact that the Spinellas engage in certain work in order to maintain the paths for safety purposes. This is irrelevant. The Town Board’s attempt to force these property owners to abandon this customary accessory use and to keep their properties unsafe for this use in order to comply with the zoning ordinance is an abuse of discretion and outside of the four corners of the zoning ordinance. It is also relevant that permitted uses of R-R zoned property include *812farm, nursery, or truck garden purposes, which would inevitably be accompanied by use of various sorts of off-road vehicles to service these uses. The Town’s position is that the creation of a path by use of an off-road four wheeler is permitted by the zoning law if the vehicle is used to service a truck garden, but is a violation if created for fun. And what if it’s for both? Can the Spinellas legalize their vehicle use by putting a “tree nursery,” or a patch of edible dandelions at the end of the paths?


In Matter of Yeshiva & Mesivta Toras Chaim v Rose (136 AD2d 710, 711) the Appellate Division, Second Department, *319wrote, inter alia: "While recognizing that the courts of this State have been very flexible in their interpretation of religious uses under local zoning ordinances * * * the flexibility has been directed to ancillary or <mask> functions of religious institutions whose principal use is a place of worship. Affiliation with or supervision by religious organizations does not, per se, transform institutions into religious ones. 'It is the proposed use of the land, not the religious nature of the organization, which must control’ (Bright Horizon House v Zoning Bd. of Appeals, 121 Misc 2d 703, 709).” (Citations omitted.)


“Ornament. (1) Embellishment; decoration; that which adorns or beautifies. “Illustration: I hold every man a debtor to his profession, from the which, as men of course do seek to receive countenance and profit, so ought they of duty to endeavor themselves, by way of amends, to be a help and ornament thereunto. —Bacon. “(2) [Fine Arts.] Any <mask> part of a work which has the merit of adding to its beauty or effect. “Illustration: Pedestals, pediments, draperies, fringes, garlands, vases, cameos, utensils of elegant and picturesque form, are the usual subject of ornament in painting.


In the light of the testimony of detectives Clark and Glunson, as well as the testimony of Dr. Sheller who identified the defendant as having come to his office on two occasions on the afternoon of November 7, 1946, the exculpating affidavit on the part of Condon, the principal in the crime for which this defendant was convicted as an <mask>, now a fellow-prisoner of this defendant, and serving a term of not less than twenty-five years with at least two armed robbery convictions to his credit, is at best highly suspect.


It is also true that in a nonstatus crime situation one who, with guilty intent, solicits a person to commit an offense may be guilty of the offense even though the solicitee lacks that intent and is unaware of the criminal nature of the conduct (People v Sadacca, 128 Misc 2d 494). These two principles cannot, however, be combined. If a statute limits those who are capable of committing a crime to those of a certain status, a person who lacks that status, regardless of her intent, is not liable as an <mask> to one who possesses that status but acts innocently. The Legislature, in enacting a statute which is limited in application to those of a certain position or status, seeks to prevent abuse of that position by the status holder. In aid of that objective, one who aids the *255status holder in committing a crime should be held liable as principal. Where, on the other hand, the status holder has no intention of violating the statute, the purpose behind the law is not served by prosecuting the nonstatus holder. In the instant case, the public servant in question acted in good faith and with innocent intention in possessing and issuing defendant’s documents, it is impossible, therefore, for accessorial liability to attach to defendant. Counts 9, 17, 19, 21, 23 and 26 are, accordingly, dismissed.