United States Supreme Court decisions after Crawford have attempted to explain what types of statements are "testimonial" for purposes of the Sixth Amendment, since Crawford "did not offer an exhaustive definition of 'testimonial' statements." (Clark , supra , 135 S.Ct. at p. 2179.) For example, in Davis v. Washington (Davis) and Hammon v. Indiana (Hammon) (2006) 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224, which were decided together, the Court considered statements given to law enforcement officers. The victim in Davis made statements to a 911 emergency operator during and immediately after an attack. (Id. at pp. 817-819, 126 S.Ct. 2266.) In Hammon , after the victim was isolated from her abusive husband, she made statements to police that were memorialized in something called a " '<mask> affidavit.' " (Id. at pp. 819-820, 126 S.Ct. 2266.) The United States Supreme Court held that the statements at issue in Hammon were testimonial, but that the statements at issue in Davis were not. The court offered the following test for determining whether a statement is testimonial: "Statements are nontestimonial when made in the course of police interrogation *909under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822, 126 S.Ct. 2266.) However, because both Hammon and Davis involved statements made to law enforcement officers, the Court reserved the question whether similar statements to individuals other than law enforcement officers would raise issues under the Confrontation Clause. (Id. at p. 823, fn. 2, 126 S.Ct. 2266.) *787In 2011, the United States Supreme Court further elucidated the "primary purpose" test, explaining that a court must consider "all of the relevant circumstances." (Michigan v. Bryant (2011) 562 U.S. 344, 369, 131 S.Ct. 1143, 179 L.Ed.2d 93.) Specifically, "there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony." (Id. at p. 358, 131 S.Ct. 1143.) "[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry." (Id. at p. 374, 131 S.Ct. 1143, first italics in original, second italics added.) Instead, "whether an ongoing emergency exists is simply one factor ... that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation." (Id. at p. 366, 131 S.Ct. 1143.) Another factor a court is to consider is "the informality of the situation and the interrogation." (Id. at p. 377, 131 S.Ct. 1143.) "A 'formal station-house interrogation,' like the questioning in Crawford , is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused." (Clark , supra , 135 S.Ct. at p. 2180.) Another factor a court is to consider is to whom the statements were made. Although the United States Supreme Court has declined to adopt a categorical rule excluding statements made to individuals who are not law enforcement officers from the Sixth Amendment's reach, the Court has noted that "such statements are much less likely to be testimonial than statements to law enforcement officers." (Id. at p. 2181.)


Defendant contends that the evidence was insufficient to support his conviction for rape of a child because there was no evidence of penetration and his conviction for thirty of the counts of aggravated sexual <mask> because the victim did not offer any testimony as to those counts. In a related issue, Defendant also contends that the jury’s verdict was improper because the jury failed to specify which acts of sexual abuse on which it relied for his continuous sexual abuse of a child conviction. The State asserts that the evidence was sufficient to support the convictions and that continuous sexual abuse of a child statute does not require the jury to specifically identify the three acts on which it relied for the conviction as long as the jury unanimously agrees that Defendant committed three or more acts of sexual abuse.


term. He has also filed a motion for a peremptory writ and a motion for recovery of damages under R.C. 2731.11. We deny the writ and deny Shie’s motions. I. Factual and Procedural Background {¶ 2} Shie was released from prison in August 2020 after serving a 16-year sentence for convictions for sexual <mask>. Upon his release, Shie was subject to mandatory postrelease control for five years. Shie’s conditions of postrelease control forbade him from (1) unsupervised contact with minors, (2) accessing “social networking sites” frequented by minors, (3) contacting minors via the Internet, and (4) possessing pornography or other sexually explicit material. {¶ 3} In March 2021, Shie was charged with violating the conditions of his postrelease control. It was alleged that in February 2021, Shie solicited or attempted to solicit a person he believed to be a 15-year-old girl named “Gabby” to engage in sexual activity. “Gabby” was, in fact, an undercover law-enforcement officer. When Shie attempted to meet “Gabby” in person, he was arrested for violating the terms of his postrelease control. Further investigation into Shie’s activity on social media revealed that he was active on Snapchat and had engaged in numerous conversations with girls who appeared to be under the age of 18 on that social-media platform. A search of Shie’s phone also revealed that he possessed numerous pornographic images and videos. {¶ 4} Following his arrest, Shie was charged with four postrelease-control violations: (1) attempted solicitation of “Gabby” for sexual activity, (2) possession of pornography or sexually explicit material, (3) accessing “social media sites” frequented by minors, and (4) unsupervised contact with a minor without the approval of the APA. Shie admitted the counts related to pornography and accessing “social media sites”; he admitted “with mitigation” the counts related to his attempted solicitation of “Gabby” and unsupervised contact with minors. {¶ 5} A hearing on Shie’s alleged violations was held on March 25. Shie waived his right to appear at the hearing, his right to counsel, his right to call witnesses and present evidence, and his right to cross-examine adverse witnesses. Based on Shie’s admissions and the information presented by the APA, a hearing officer found that Shie committed


In November 2017, the month after the court terminated its jurisdiction, and while C.W. was still living in the residential treatment program, Louisiana child protective services removed Rusty's other two children from his custody due to physical abuse, and he was ordered to have no *481contact with them. Then, in December 2017, Rusty was arrested for two counts of sexual <mask> involving his wife's nine-year-old daughter. He was released from jail on bond the following month, in mid-January 2018, on the condition he not return to his home, and after his release from jail he removed C.W. from the residential treatment facility.


It seems to us that the present action is plainly one for injury to the person. Assault, <mask>, and false imprisonment are provided for in section 93. The injury meant in section 94, subdivision 2, must therefore, be one which does not come within the definition of those mentioned in section 93; that is an injury caused indirectly, such as were formerly sued upon by action on the case.


*1004On August 2, 1993, plaintiff commenced a second action against Mast, Miller and Calle, alleging causes of action against all three defendants for intentional infliction of emotional distress, against Miller for slander, and against Calle for <mask>. On November 5, 1993, plaintiff amended her complaint in the first action to include the causes of action alleged in the second action. Mast, Miller and Calle moved to dismiss both actions on the ground that the intentional tort causes of action were time barred pursuant to CPLR 215 (3). They further asserted that the conduct that occurred within one year of the commencement of the first action was insufficient to support a cause of action for intentional infliction of emotional distress. The court denied their motions. That was error.


This is a wrongful death action brought by plaintiff Alphonso Lewis, as administrator of the estate (and guardian for the children) of Kenneth Thomas, deceased, who was allegedly wrongfully run over by a tractor-trailer during the West Indian American Day Parade conducted in Brooklyn on September 2, 1996. A cause of action for loss of services on behalf of plaintiff Vermaneta Lewis, the alleged wife of Kenneth Thomas, deceased, was discontinued with prejudice. The complaint alleges causes of action for negligence, recklessness, assault, <mask> and civil rights violations allegedly committed by the defendants.


The injustice of the old doctrine was set forth as early as 1823 by Judge Stout of the Circuit Court of" the United States. In a situation similar to the one at hand, involving a passenger on a ship, he stated, “ It is intimated that all these acts, though wrong in morals, are yet acts which the law does not punish; that if the person is untouched, if the acts do not amount to an assault and <mask>, they are not to be redressed. The law looks upon them as unworthy of its cognizance. The master is at liberty to inflict the most severe mental sufferings, in the most tyrannical manner, and yet if he withholds a blow, the victim may be crushed by his unkindness. He commits nothing within the reach of civil jurisprudence. My opinion is, that the law involves no such absurdity. It is rational and just. It gives compensation for mental suffering occasioned by acts of wanton injustice, equally whether they operate by way of direct, or of consequential injuries. In each case, the contract of the passengers for the voyage is in substance violated; and the wrong is to be redressed as a cause of damage.” (Chamberlain v. Chandler, 3 Mas. 242, 246-247.)


In 2007, a jury found Daniel Hargrove guilty of kidnapping, family violence aggravated <mask>, and two counts of family violence aggravated assault. On direct appeal, we reversed his kidnapping conviction, but otherwise affirmed, Hargrove v. State, 299 Ga. App. 27 (681 SE2d 707) (2009), and the trial court resentenced Hargrove on remand. In 2021, Hargrove filed a pro se motion to vacate a void sentence. The trial court denied Hargrove’s motion on December 2, 2021, and Hargrove filed this appeal on January 7, 2022. We lack jurisdiction. To be timely, a notice of appeal must be filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Pretermitting whether Hargrove is entitled to a direct appeal from the trial court’s order denying his motion to vacate a void sentence, his notice of appeal is untimely, as it was filed 36 days after entry of the order he seeks to appeal. Consequently, this appeal is hereby DISMISSED for lack of jurisdiction. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/31/2022 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.


Between March 6, 2004 and June 24, 2004, SRP ran up more than $56,000 in legal fees in the course of performing tasks, such as: (a) evaluating the case, (b) negotiating with the Company, (c) preparing and filing a <mask> complaint, and (d) preparing and filing an EEOC complaint. According to petitioner, a substantial portion of SRP’s billings relate to litigation work. Of the $56,000 amount that petitioner has been billed, she has paid $28,000. She has refused to pay the balance of approximately $29,000 on the ground that she was poorly advised and over-billed.


BACKGROUND Maxell, Ltd. and Maxell Holdings, Ltd. (collectively, “Maxell”)1 own the patents-at-issue in this case. Effective March 26, 2020, Maxell entered into a non-disclosure agreement with ATL for purposes of discussing a license to Maxell’s lithium-ion <mask> patent portfolio. Relevant here, that agreement included a “litigation standstill” clause, in which the parties agreed not to initiate any legal actions against each other for one year. Just as the one-year period was ending with no agree- ment having been reached, Maxell sent a letter to ATL, stating that it remained “willing to resolve this matter am- icably and to grant ATL a license” but if “Maxell and ATL are not able to enter into a licensing agreement by Friday, April 9, 2021, Maxell will be left with no choice but to pur- sue litigation.” Appx0002. After discussions between Max- ell’s and ATL’s counsel, Maxell wrote to ATL on April 5, 2021 by email that it was open to having another meeting and requested that ATL “provide the materials ATL planned to present.” Appx0003. The evening of the next day, April 6, 2021, ATL sent an email to Maxell, stating that it would “be in touch as soon as [it] can get the materials.” Id. A few hours later on the same day, ATL brought the present action in the District of New Jersey seeking a declaratory judgment of nonin- fringement of Maxell’s patents. Two days later, on April 8, 2021, Maxell sued ATL in the Western District of Texas, accusing the same products identified in the declaratory judgment complaint of infringing the same patents. Maxell moved the New Jersey court either to decline jurisdiction over ATL’s declaratory judgment action or to transfer ATL’s action to the Western District of Texas


Now, this is the contention of the defendant in this regard: that this was simply a trial of athletic skill, lawful in itself, and ordinarily not tending to harm. It is fairly to be inferred from their contention (what is a matter of common knowledge) that in any athletic contest, exhibiting powers of skill, there is necessarily involved an element of danger. Now, gentlemen, if you should find that this was not a contention or fight, within the meaning of the statute, yon are next to consider, assuming, as I have suggested before, that you find that the homicide was caused by the act of the defendant, whether the defendant was engaged in the commission, or attempted commission, of a <mask> upon the person of Rioirdan. An assault in the third degree is a sort of general description of other assaults not included in what I called assaults in the first and second degrees; which, in brief, defines those serious assaults which threaten or attempt the taking of human life, but unsuccessfully, or which attempt doing to the person assaulted grievous bodily harm. It is what is known in ordinary parlance as an assault and battery. Now, gentlemen, if you find this homicide is *401traceable directly and fairly to the act of the defendant, and you find at that time, within the definition which I have laid down to you, that he was engaged in the commission of an injury, or an assault in the third degree, it will be your duty to find Mm guilty. Now, gentlemen, this depends largely upon the fact of the element of consent. It may be assumed at this point that Eiordan and Fitzsimmons mutually agreed to engage with each -other in these contests. Now, gentlemen, consent is sometimes an excuse for crime; at other times it is not. It is an excuse for larceny, unless your property is obtained by trick; and then it is a -serious question whether you consent. In other words, a prisoner cannot be convicted -of larceny if you consent that he should fake your property. It is a necessary element in the crime of rape, unless perpetrated upon the person of one so young that she cannot, in the eyes of the law, consent; because the moment that you-have the consent of the female it ceases to be rape. But there are other crimes to which the parties cannot consent to their commission; and, in considering this question, gentlemen, as applied to this oa-se, you are to consider—First, whether, in fact, Eiordan did consent to receive such a blow, if one was given; and, second, whether he had the legal right to so consent if, in fact, he did. Did Eiordan consent to receive whatever was in store for him in this game, if it was a game? Did he take his chances, whatever might be the consequences, or did he only consent to such treatment, to such consequences, to sudh acts, on the part -of defendant, as would ordinarily be the result of that contention or game? Was it the contention -of Fitzsimmons, at the time this blow was struck, if you should find that it was struck, to strike upon the person of Eiordan a disabling blow, -one intended for the -purpose of doing him injury beyond what he reasonably expected or consented to when engaged in the contest? Now, gentlemen, assuming that you should' find this fact with the defendant, did Eiordan have the right to consent to have his life taken, or to have this injury or receive this blow? The public is a party to all these transactions, and it has an interest which the parties to the transaction cannot eliminate.


In this case, counsel correctly notes that the only adverse rulings were the court's denial of Richard's directed-verdict motion and the revocation of Richard's probation. Counsel provides sound analysis establishing that the circuit court was correct in its ruling that there was sufficient evidence to find that Richard had violated the terms and conditions of his probation. We agree-the circuit court heard sufficient evidence to find by a preponderance of the evidence that Richard had violated his probation by committing a criminal offense punishable by imprisonment and failing to report as ordered. Specifically, Charnell Houff, Richard's supervising officer, testified that on July 6, 2017, Richard was arrested for domestic <mask> and was convicted on December 21, 2017. Houff further testified that Richard had failed to report to her as directed from July 2017 through September 2017.


Simberg’s estate filed suit against Trezza and Relia in September, 1982. The complaint alleged that Trezza and Relia “without just cause or provocation did viciously, maliciously, intentionally and wantonly assault and batter the decedent, striking him on various portions of his body,” causing him to fall to the ground, strike his head on the pavement, and later die. Three causes of action were asserted: the first alleged intentional <mask> of the decedent causing him serious personal injuries; the second alleged wrongful death resulting from “the aforesaid severe, serious and painful injuries;” the third stated a claim by Simberg’s wife for loss of services.2


Where the statutory language is clear, " ' " 'courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.' " ' " ( Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856, 243 Cal.Rptr.3d 569, 434 P.3d 564.) Following the plain meaning of section 1203.4a would not lead to absurd results. It is no secret that persons in custody can, and often do, commit crimes or violate institutional rules. (See, e.g., §§ 243.1 [<mask> against custodial officer], 4573.6 [possession of controlled substance in jail].) It is not absurd to encourage their compliance with the law and institutional rules pending their release.


The instant case involved not an assault alone but an assault and <mask>. “ In a battery, * * * the only intent that is required at common law is a general criminal intent, that is a voluntary infliction of the bodily injury, no specific intent, or premeditation or malice being necessary.” (2 Burdick on Law of Crime, § 353, p. 21.) In the opinion of this court, the statute (Penal Law, § 244) requires no more.


However, the Supreme Court improvidently exercised its discretion by refusing to permit the plaintiff to amend the complaint to plead causes of action against Ramon Sambade for damages for the intentional torts of assault and <mask>. These causes of action are an additional theory of recovery based on the same facts alleged in the original complaint and during discovery. The record unequivocally demonstrates that Ramon Sambade was familiar with the facts underlying these causes of action from the outset of the litigation. Moreover, he failed to demonstrate, or even allege, that any prejudice or surprise would result from the proposed amendment (see, *657CPLR 3025 [b]; Warrensburg Bd. & Paper Corp. v Adirondack Hydro Dev. Corp., 186 AD2d 305; Trusthouse Forte [Garden City] Mgt. v Garden City Hotel, 106 AD2d 271; Wyso v City of New York, 91 AD2d 661; Carlisle v County of Nassau, 75 AD2d 593). Ramon Sambade’s belated claims of prejudice, asserted for the first time on appeal, are not properly before this Court (see, Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757), and, in any event, are unpersuasive under the circumstances of this case. Ritter, J. P., Pizzuto, Friedmann and Goldstein, JJ., concur.


As was said in Wagner Trading Co. v. <mask> Park Nat. Bank (228 N. Y. 37), at page 45: “ The courts are careful to guard the interests of commerce and to protect and strengthen its great medium, commercial paper, but they are also careful to defeat titles taken in bad faith or with knowledge actual or imputed which amounts to bad faith.”


Decedent’s wife (personally and as administratrix) and father now sue the State of New York for wrongful death and personal injuries. Claimants allege "gross and wanton dereliction of duty, breach of contract, assault and <mask>, conspiracy, fraud and negligence of the Commission * * * its officers, agents, servants and/or employees”. The essence of this claim is that the Commission’s representatives at the Garden on the night of the fight either conspired with Resto and Lewis or, alternatively, failed in their duty to detect the eviscerated gloves.


State's exhibit no. 2 shows that on 27 January 1998, Radford pleaded guilty to five felonies: (1) second-degree murder, (2) burglary, (3) second-degree <mask>, (4) theft, and (5) first-degree criminal mischief. Felonies six and seven occurred in 2008, when Radford pleaded guilty to two counts of second-degree sexual assault. The eighth one appeared when Radford pleaded guilty to residential burglary in 2014. Radford neither objected to how the sentencing phase was conducted overall, nor to the specific issue of the number of felonies the jury should have been allowed to consider under the habitual-offender statute.


In Gilbert v. Rounds (14 How. Pr. 46), which was an action for an assault and <mask>, it is said by Balcom, J., that where a party allows an - inquest to be taken against Rim at a circuit, there is authority for saying that he thereby loses the right to produce testimony and examine witnesses on his part; and is restricted to the right of cross-examining plaintiff’s witnesses ; but that he was unable to find any authority, that the defendant’s rights were so restricted on the assessment of damages, either at the circuit, or before a sheriff’s jury, when judgment goes against him for not answering the complaint. This distinction may be entirely true, so far as it is applied to the assessment of damages in an action for assault and battery; for in such an action, if the plaintiff, upon the defendant’s failure to answer, gives no proof of the nature of the injury which he suffered, but relies simply upon the defendant’s admission of :an assault and battery, the plaintiff can recover only nominal damages (Bates v. Loomis, 5 Wend. 134) ; for unless the circumstances of the assault and battery are proved, the jury have no means of judging what damages beyond nominal damages they ought to give.


No authority need be cited for the rule that we, not the parties, decide the standard of review. In any event, for the reasons that follow, he cannot show error in the court’s application of that Guideline; therefore, his claim fails regardless of whether the issue was preserved. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (pretermitting resolution of standard of review because challenge failed under any standard). If a prison term results from an offense that is treated as relevant conduct to the instant offense, the Guidelines dictate: the sentence for the instant offense shall run concurrently with the remainder of the undischarged prison term; and the court should adjust the sentence for time served on the undischarged term if it determines that that time would not be credited by the Bureau of Prisons. Guideline § 5G1.3(b). As the district court and both parties recognized, a straightforward application of § 5G1.3(b) was complicated by the fact that, at the time of Kimbrough’s federal sentencing, he was also serving an undischarged four-year sentence for the unrelated state <mask> offense. “Subsection (b) does not apply in cases in which the


It appears from the motion papers that a <mask> and not an assault is being claimed. (See Prosser, Torts [4th ed], §§ 9, 10; PJI 3:2.) This being so, the pleading is further deficient in that it fails to allege any wrongful bodily contact, another of the material aspects of a cause of action in battery. (Masters v Becker, supra; PJI 3:3.)


Although he was appointed counsel, Lowery proceeded to file several pro se motions, including a motion of dismissal, a motion to reduce charges, a motion for a change of venue, a motion to impeach, a motion for work release, a motion to request a hearing, and a motion requesting discovery. Lowery also sent the court letters about his case. At his preliminary hearing Lowery attempted to raise these motions, and he specifically attempted to raise the defense of intoxication. The court informed him that the issue could not be addressed at that point. The court also denied Lowery's pro se motion to dismiss and proceeded with the hearing. After hearing the testimony of the officer who suffered a small laceration from Lowery's bite, the court found probable cause to support the felony <mask> on a law enforcement officer charge and bound Lowery over for trial.


Plaintiff is entitled to be protected from any future menace, as occurs in cases of trade-mark confusion or purchaser deception (Admiral Corp. v. Penco, Inc., 203 F. 2d 517, 520; Gannert v. Rupert, 127 F. 962; Cecile Gagnon Co. v. Bourjois, Inc., 223 F. 2d 731, 733). A restraining order will prevent confusion and will give plaintiff the protection to which it is entitled (Philadelphia Stor. <mask> Co. v. Mindlin, 163 Misc. 52, 56; Tiffany & Co. v. Tiffany Productions, 147 Misc. 679, affd. 237 App. Div. *63801, affd. 262 N. Y. 482; Martha Washington Candies Co. v. Martha Washington Ice Cream Co., 280 App. Div. 256, appeal dismissed 304 N. Y. 974; Santa’s Workshop v. Sterling, 282 App. Div. 328, 329-330; 2 A D 2d 262, affd. 3 N Y 2d 757).


[W]e turn to the facts of Ward's case. At the time of his 1997 sentencing, Ward must have made the threshold showing that his sanity at the time of the offense would be a significant issue and an error occurred in this court's review that requires us to recall the mandate in Ward III. The record demonstrates that on February 14, 1997, Ward filed a motion for appropriation of funds for expert assistance pursuant to Ake . In Ward's motion, he stated in pertinent part: *550Mr. Ward requests an ex parte hearing on this motion under the authority of Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). This request is made because defense counsel does not wish to unnecessarily disclose the defense mitigation case. The reasons in support of this motion are set out in the accompanying memorandum. .... Counsel for Mr. Ward represents to the Court that she has probable cause to suspect that the utilization of these particular experts will produce mitigating evidence. It is the professional judgment of defense counsel that this information is necessary in order to adequately represent Mr. Ward and that these steps would most certainly be undertaken in the course of representation provided to a similarly situated client in a retained counsel case. On February 27, 1997, the circuit court denied the Ake motion. At the pretrial hearing, Ward stated several times that he was not interested in resentencing and wanted to be released from prison or reinstate the death penalty. Additionally, Ward refused to cooperate in 1996 with the state hospital for a mental evaluation. On October 7, 1997, pursuant to both parties' request, the circuit court ordered Ward to undergo an Act III evaluation. On October 17, 1997, Michael Simon, Ph.D., a forensic psychologist, attempted to conduct an evaluation of Ward and submitted a report to the circuit court on that same date. The evaluation stated in pertinent part: On 10/17/97, a forensic evaluation team consisting of Wendell Hall, MD., Michael I. Simon, PhD., and Maria Gergely, L.C.S.W. made an attempt to evaluate Mr. Ward. He was brought to a conference room to meet with the evaluation team at the Arkansas State Hospital. He was neatly dressed in an, orange jumpsuit. He began the interview by stating, "I cannot comply with the evaluation," He did say his attorneys filed a motion for evaluation and he tried to remove their motion. The court denied them and ordered him to appear for evaluation. He politely informed us "I am competent" ... "I have a right to remain silent," ... "I am not going to submit to evaluation." At this point the evaluation was terminated. Thus, in summary, the evaluation could not be completed due to Mr. Ward's unwillingness to participate. There was no evidence to indicate that this unwillingness was due to mental disease or defect. During our brief interview with Mr. Ward, he interacted in a logical, coherent manner and exhibited no signs of psychosis. Thus, in summary, Mr. Ward refused to cooperate with this evaluation and there was no indication that this uncooperativeness was due to any Axis I mental disorder. At Ward's 1997 resentencing trial, Ward presented several witnesses through video-taped statements. Ward presented testimony of three educators from the Erie, Pennsylvania school system where he attended school. Thomas Ritter, a teacher and guidance counselor, testified that he taught Ward in 1965 and 1966 and was also his guidance counselor in the 1970s. Ritter testified that Ward did not have success in school and that Ward was disruptive, and without provocation was aggressive toward other students, but when Ritter spoke to Ward about this behavior he had a "blank stare ... there was no comprehension that he did anything wrong." Ritter further testified that he knew something "was basically wrong" with Ward but that he did not refer him to a psychologist *551because at that time the school system had very limited access to psychologists and based on Ward's testing he had the ability to learn. Ritter also testified that Ward exhibited "hostile behavior ... bizarre behavior." L. Catherine Fayenmeyer, a guidance counselor in Wattsburg, Pennsylvania from 1965 to 1975, testified that she met with Ward ten to twelve times over a five-year period and knew Ward well. She testified that Ward came to see her mainly for disciplinary problems. She further testified that Ward did not put forth effort in school and was disruptive in class. Fayenmeyer testified that Ward was very bright but had very few friends and did not engage in any activities at school. She testified that Ward was "exceptional" because he did not need classes for "dull students," but she opined that the opportunity to work one on one with a teacher would have made a significant difference for him. C.J. Wortham, an education specialist in the City of Erie, Pennsylvania in the 1960s and 1970s and who was also part of the Civil Air Patrol Program, worked with Ward for approximately a year and a half when Ward was a cadet in the program. Wortham testified that Ward did well in the structured Civil Air Patrol program and was good with outdoor work and compassing. He also testified that Ward was good with adults, but had emotional problems dealing with his peers and life in general. Wortham testified that he recommended to Ward's family that they seek psychiatric help for Ward. He also testified that Ward got "into trouble" when alcohol was present. Next, the deposition of Dr. Anthony Cillufo, a psychologist, was read into the record as part of Ward's 1997 sentencing. Dr. Cillufo testified that on April 22, 1977, he conducted a three-hour interview of Ward at the Erie County jail. He testified that he conducted a <mask> of tests and an extensive clinical interview with Ward, including talking with Ward about his life history, family relationships, and sexual history. Dr. Cillufo diagnosed Ward as an anxious, shy, alienated man of average intelligence, with a propensity for acting violently as part of a mixed personality disorder. He further testified that Ward had features of social personality or explosive personality as well as passive/aggressive and paranoid disorders, and a secondary diagnosis of alcoholism. Further, Dr. Cillufo testified that Ward could possibly have had some early history of minimal brain dysfunction and a slight possibility of neurological damage as Ward had reported fainting spells or blackouts. Dr. Cillufo testified that his main diagnosis was mixed personality disorder. Ward also presented testimony from Tom Devine, an attorney at the Pulaski County Public Defender's Office. Devine testified that he had known Ward for twelve and a half years and Ward made paintings and drawings for him. Gary Wayne Brossett had testified at Ward's first trial, and his testimony was also read into the record during Ward's 1997 sentencing. Brossett testified that he was a nursing student at Arkansas Children's Hospital in 1989 and was working at Joubert's, a local tavern. Brossett testified that Ward was at Joubert's on the night of Doss's murder and that Ward drank a few beers and played some pool and left the tavern around midnight. Having reviewed Ward's presentation of evidence at the 1997 sentencing, we turn to Ward's argument in his motion to recall the mandate regarding an alleged Ake violation. In asserting that this court should recall the mandate on *552this point, Ward relies primarily on a report from Dr. William Logan, a forensic psychiatrist. Logan's forty-one-page report regarding Ward's 1997 sentencing can be summarized as follows. Logan diagnosed Ward with "schizophrenia, paranoid type, as evidenced by a preoccupation with persecutory and grandiose delusional ideas, and occasional hallucinations and disorganized thinking." Dr. Logan examined Ward on October 22, 2008. Dr. Logan completed a three-hour examination on Ward at the Varner Supermax Unit. According to his report, Dr. Logan reviewed IQ evaluations performed on Ward in 1972, a presentence report performed in 1977, several documents compiled in connection with Ward's prior arrest in Pennsylvania in 1977, Ward's military records, a questionnaire completed by Ward's mother in 1977, Ward's medical history compiled after his 1989 arrest in Arkansas, evaluations performed by Dr. Simon, affidavits from Ward's prior counsel describing his behavior during his 1990 trial and two resentencing hearings, Ward's competency hearing, and various filings and pleadings made by both the State and Ward during his trial and sentencing hearings. In his report, Dr. Logan described Ward as a heavyset man with poor grooming. He described Ward as having "fair thought organization when giving information about his family and childhood," but noted that "[a]s he began to discuss his legal situation his thought processes deteriorated markedly." Dr. Logan described Ward's "persistent and grandiose delusions" that he "was the target of a conspiracy between officials in Pennsylvania, someone he knew in Canton, Texas and various Arkansas government entities including the governor's office and the State and Federal Public Defenders." According to Dr. Logan, Ward's delusions "do not compromise his intellectual capacity in terms of his intelligence and orientation," but that his understanding of his conviction and sentence are "irrational and delusional." For example, Dr. Logan stated that Ward expressed his belief that "he will never be executed, but rather be exonerated and leave prison a free man to achieve great success." According to Dr. Logan, Ward attributes this belief to "revelations from God." Dr. Logan's report also described delusions reported by Ward, including his belief that Joe Biden "got Nick Trenticosta (a former attorney of Mr. Ward's) on his case and also has a connection to his current attorney." Ward also reported that he "can see the future including future disasters and future events." He also believes his father is part of the Illuminati and that the Illuminati are trying to help him. According to Dr. Logan's report, Ward described visions of a large black dog that jumps into people and possesses them and that Ward reported hearing his deceased father's voice from a chair. Ward also described his belief that others are jealous of him because of his talent and power and that some of the other prisoners are demons under a spell from the State because they do not complain. Ward stated that he "also has been the victim of a laxative curse." During the interview, Ward reported that the "unholy Alliance in Pennsylvania told him to give up his powers or suffer the consequences." Dr. Logan diagnosed Ward as having schizophrenia, paranoid type. Dr. Logan gave his opinion that Ward was not competent to be executed. Dr. Logan's specific report regarding the 1997 sentencing was as follows: *553Competency to Stand Trial in the 1997 Penalty Phase Hearing Mr. Ward adamantly opposed any attempt by his then attorney, Ms. Tammy Harris to present mitigation testimony that might result in a life sentence. He resisted an effort to assess his competency. Mr. Ward's decisional competency was never addressed. He wanted an outright dismissal of the charges and compensation. Despite his bizarre behavior, the case was allowed to proceed. Subsequently, it has been revealed Mr. Ward's actions were the direct consequences of delusional beliefs that resulted from his Paranoid Schizophrenia, a mental disease. Consequently, it is my opinion with a reasonable degree of medical certainty that at the 1997 Penalty Phase proceeding, Mr. Ward suffered from Paranoid Schizophrenia. It is my further opinion that the delusions characteristic of this mental disease prevented him from having an ability to understand rationally the proceedings against him and from having the ability to assist effectively in his own defense. In reviewing Dr. Logan's report, we note that Dr. Logan's evaluation was performed in 2008 and was not part of the record in Ward's 1997 sentencing. Further, Dr. Logan's report discrediting years of data and evaluation is based on his one visit with Ward in 2008. In any event, Dr. Logan's report is of limited support for Ward's argument that a fundamental breakdown in the appellate process occurred in Ward's 1997 sentencing regarding Ward's Ake argument because it was not part of the record reviewed by this court. Next, the record demonstrates that on October 17, 1997, Ward was afforded the opportunity to have his "competency and criminal responsibility" evaluated by psychologists at the state hospital. Although Ward was unwilling to participate, Dr. Simon reported that "there was no evidence to indicate that this unwillingness was due to mental disease or defect." Ward asserts that this evaluation is unreliable and he should be afforded an independent evaluation. However, we have recognized that a defendant's rights are adequately protected by an examination at the state hospital, an institution that has no part in the prosecution of criminals. Branscomb v. State , 299 Ark. 482, 774 S.W.2d 426 (1989) ; Dunn v. State , 291 Ark. 131, 722 S.W.2d 595 (1987) ; Wall v. State , 289 Ark. 570, 715 S.W.2d 208 (1986). In other words, the defendant does not have a constitutional right to search for a psychiatrist of his personal liking or to receive funds to hire his own but is entitled to access to a competent psychiatrist and the examination afforded to Ward satisfied that right. Although Ward requests that we overrule our precedent holding that a competency evaluation at the Arkansas State Hospital satisfies Ake , we decline to overrule this precedent. In sum, we do not find merit in Ward's assertions. Whether Ward contends that he was not competent to stand trial at the 1997 sentencing or that his sanity at the time of the offense was at issue, based on the record before us, we do not find that there was a breakdown in the appellate process in Ward III. Ward was afforded his constitutionally guaranteed evaluation pursuant to Ake , and the record does not support Ward's contention that any breakdown occurred. Ward simply failed to make a threshold showing that his sanity at the time of the offense or his competence to stand trial were significant factors. *554While the record demonstrates that Ward filed the Ake motion, Ward did not make an argument that the state hospital evaluation was inadequate or present any evidence that would support his argument that there was a breakdown in the appellate process. Likewise, we reject Ward's contention that the circuit court's failure to provide an independent psychiatrist to develop mitigating evidence during sentencing, and this court's subsequent failure to discover and reverse that decision, resulted in a breakdown of the appellate process. Accordingly, we deny Ward's request that we recall the mandate on his first point. Ward V , 2015 Ark. 61 at 7-15, 455 S.W.3d at 823-27.


a suspended or revoked license and driving without proof of insurance in case number OBL04059 were dismissed in connection with Simpson’s July 29, 2020 no contest plea to simple <mask> in case number OBL04328. Simpson admitted to a probation violation based on the battery conviction. 3As set forth above, Simpson’s first payment on his fines and fees in this case was not due until November 22, 2020, more than a month after this probation violation hearing.


As to the <mask> claim, it is true "that medical treatment beyond the scope of patient’s consent should not be considered” as a battery (Dries v Gregor, 72 AD2d 231, 235 [4th Dept 1980]). Thus for example, where a physician tells a patient prior to surgery that the physician is only going to perform a biopsy and then proceeds to perform somewhat more extensive surgery, a claim for lack of informed consent is stated. (See, Dries v Gregor, supra.) That scenario is not applicable here since there is no claim that there was medical treatment beyond that consented to. In addition, when a physician tells a *316patient that he is going to perform a specified surgery but neglects to tell the patient the risks of the surgery to be performed by that physician, again a claim for lack of informed consent, rather than for battery, is stated. (Oates v New York Hosp., 131 AD2d 368, 369 [1st Dept 1987]; Murriello v Crapotta, 51 AD2d 381 [2d Dept 1976]; Rigie v Goldman, 148 AD2d 23, 28-29 [2d Dept 1989]; Spinosa v Weinstein, 168 AD2d 32, 41 [2d Dept 1991].)


The element of the crime of <mask> here involved is that, in the course of the commission of the crime or of immediate flight therefrom, the defendant displayed what appeared to be a firearm. The prima facie test for this element are: did the defendant display something and, if so, what did it appear to the complainant to be? Accordingly, the principal focus of the instant inquiry must be the legislative intent in the use of the word “displays”. No definition is provided by the statutes.


*1217Maston reviewed the constitutionality of the penalty for kidnap for <mask> with injury in the abstract; the court noted that the defendants "d[id] not claim disproportionate punishment in relationship to their individual offense," and that such a claim was "unavailable" to them on the facts-"[b]eyond abducting their victim, raping and robbing her they forcibly transported her for many miles and severely beat her." ( Maston , supra , 33 Cal.App.3d at p. 565, 109 Cal.Rptr. 164.) Maston acknowledged that the aggravated kidnapping statute "is part of an anomalous substructure of California penal law" under which "[p]remeditated kidnapping which injures but does *725not kill elicits a heavier penalty than premeditated murder" and a "robber who kills but does not kidnap retains hope of eventual parole" while one "who abducts and merely injures is deprived of that hope." ( Id. at p. 564, 109 Cal.Rptr. 164.) The court noted that these anomalies "acutely need legislative attention." ( Id. at p. 565, 109 Cal.Rptr. 164.) More importantly, for our purposes, Maston expressly commented that it was addressing the "maximum statutory punishment, not its fitness as applied to the individual offense and offender," and that "[u]nusual twists of fact occur where, for lack of a sentencing alternative, the offender's punishment is grossly disproportionate to the circumstances." ( Ibid. )


Had the text messages not been admitted into evidence, overwhelming evidence of Farmer's guilt remained. Fisher testified that Farmer kicked in her door while armed with a gun, beat her with his fists, held a knife to her cheek, threatened to disfigure and kill her, and attempted to steal her gun and television. Fisher's testimony was corroborated by that of her neighbor and the police officers, as well as photographs of her injuries. Further, both Farmer's mother and his ex-wife testified that he had admitted to them that he had beaten Fisher. Had the text messages been struck after Fisher admitted on cross-examination that she had deleted some messages, the same evidence recounted above would still have existed to overwhelmingly prove Farmer's guilt as to aggravated <mask>, aggravated residential burglary, terroristic threatening, and domestic battery in the third degree.3 Furthermore, any risk of prejudice resulting from admitting or failing to strike the exhibit was slight. Farmer contends that we should conclude that "Fisher's perjury and altered messages could have affected the jury's judgment," but we are not left to speculate on this point. Farmer successfully impeached Fisher's credibility by exposing her false testimony to the jury. The inaccuracy of State's exhibit 20 was brought to light by the defense, and the jury was provided with the missing messages contained in the defense exhibit. Unlike the cases from other jurisdictions relied on by Farmer, the false testimony here was revealed to the jury at trial.


Appellant also argues that the trial court erred by allowing the two notes into evidence. More specifically, appellant contends that the State failed to lay a proper foundation for the notes, that the notes were not relevant, that the probative value of the notes outweighed the risk of unfair prejudice to appellant, and that the notes constituted inadmissible hearsay. Grant testified that appellant asked him and his wife to keep appellant's daughter and take care of her. Grant stated that he had in his possession a computer bag that belonged to appellant. He said that he found two notes dealing with bank robberies inside the bag and immediately turned them over to the police. Appellant objected to the introduction of the notes. The State argued, and the court agreed, that the foundation was laid when Grant testified to finding the notes inside a computer bag that belonged to appellant and that they were not impermissible hearsay because they were not offered for the proof of the matter asserted. The court also agreed *326with the State that the notes were relevant because they dealt with how to commit a <mask>. Appellant further argued that the probative value of the notes was outweighed by the unfair prejudice, because the notes dealt with research about bank robberies, and there was no evidence that appellant committed any bank robberies. Appellant now contends that the probative effect was outweighed by the prejudicial effect because the notes showed the jury that appellant had future plans to rob a bank. This argument is not the same as the one presented to the trial court, and it is not preserved for our review.26 We hold that the State laid a proper foundation for the introduction of the letters and that the letters were relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.27 The court properly admitted the evidence and we affirm this point. However, even if the evidence had been erroneously admitted, we would still affirm, because any error would have been harmless under the facts of this case.


Here, this was undoubtedly a close case in which no forensic or photographic evidence linked Miles to the crime scene. The prosecution's case, at least as to Miles, turned entirely on the testimony of two eyewitnesses, Patlan and Gomez. While those witnesses were confident in their in-court identifications of Miles, the jury had also heard evidence regarding the difficulties in eyewitness identifications, including cross-racial identifications. On the other hand, the defense evidence stood in sharp conflict to the prosecution's case and put Miles in Las Vegas on the day of the <mask>. Indeed, the jurors deliberated for five days and on the third day they had asked for clarification as to when a jury is considered a "hung jury." Although this information concerning the jury's deliberations is not conclusive, it does indicate that the jury may have been closely divided on the question of Miles' identity as Accomplice Two.


“ Having fixed the penalty for burglary and <mask> committed when armed with a dangerous weapon, it may be said that the Legislature did not intend to increase the penalty by reason of this element. But that we think is just what the Legislature intended to do. (People v. Paradiso, 248 N. Y. 123.) Burglary and robbery in the first degree may be committed in four or five different ways, but when committed while being armed with a dangerous weapon, the defendant must receive the additional punishment stated in section 1944. So if in the act of committing any felony the defendant be armed with a dangerous weapon, his punishment is increased. Not the user necessarily, but the having of such an instrument, is the determining factor.”


Alain M. Bourgeois, J. On February 6,1985, the defendant, following the denial of a motion to suppress identification testimony, entered a plea of guilty to <mask> in the first degree in satisfaction of all counts of the indictment herein. With the consent of the Assistant District Attorney, the defendant was promised that if he were found not to be a predicate felon, he would receive a sentence of two to six years in State prison. Alternatively, he was promised that were he determined to be a second felony offender he would be permitted to withdraw his plea of guilty to robbery in the first degree and substitute therefor a plea to robbery in the second degree, on which he would be sentenced to a term of from three to six years’ incarceration.


The testimony of Catherine Poillion Smith may be joined with that of her sister, Charlotte A. Poillion, because their testimony is substantially to the same effect, to wit, that on or about the 18th day of July, 1931, she and her sister were confined in a cell in the Harlem Woman’s Prison upon a charge of defrauding a hotel-keeper; that while there, the witness Gladys Clayton, upon whose testimony the People mainly relied in connection with other evidence to establish the guilt of this defendant, told them that she had identified a man who was concerned in a <mask> during which a police officer was killed, although, in fact, she was unable to make an identification; that she identified the defendant because of police compulsion; that she believed, because she was a prostitute, it was to her advantage to do so; that when it was called to her attention that she might send an innocent man to the electric chair she said, “ He was only to get 20 years, and it didn’t matter.”


On April 22, 1992, undercover police officers observed the defendant running towards them. He looked over his shoulders, ducked into a doorway, crouched down, and began rummaging through a wallet. The police officers approached the defendant and asked him for his name. The defendant’s name did not match the name on the driver’s license that the defendant had discarded. The officers then received a radio transmission of a description of a <mask> suspect who had fled in the direction from which the defendant had been running. The defendant was detained for several minutes until a showup identification was completed.


However, when the court in 1961 vacated the defendant’s 1932 conviction it destroyed the underlying predicate for the application of section 219 of the Correction Law since the defendant could not be a parole violator on the homicide charge at the time of the commission of the <mask> in 1953 since he was not validly convicted of the homicide charge until May 9, 1962.


After the hearing, this court ruled that the personal attendance of the witness was precluded, whereupon a properly authenticated transcript of the criminal court hearing testimony was admitted over objection. The People rested without calling other witnesses. Decision on defendant’s motion for a trial order of dismissal on grounds of legal insufficiency was reserved until after the verdict in view of People v Brown (40 NY2d 381, cert den 433 US 913). Defendant’s case at trial consisted of placing in evidence the complainant’s alleged prior inconsistent statement about a knife as recorded in the UF 61 complaint report. The jury found the defendant guilty of <mask> in the second degree. The motion to dismiss is now before the court.


Accordingly, to convict Defendant of attempted second-degree <mask> under a theory of accomplice liability in Count V, the State must have proven beyond a reasonable doubt that, in accordance with the above statutes and case law, (1) Defendant or another person committed an act; (2) such conduct was a substantial step toward the commission of the offense of second-degree robbery; (3) Defendant or another person engaged in such conduct for the purpose of committing such second-degree robbery; and (4) with the purpose of promoting the commission of second-degree robbery, Defendant acted with another person or persons in committing the offense. See id. ; sections 569.030.1, 569.010(1), and 564.011.1; see also Hosier , 454 S.W.3d at 898 ; Voss , 488 S.W.3d at 108-10 ; Kusgen , 178 S.W.3d at 601 ; MAI-CR3d 304.06 (effective July 1, 2013); MAI-CR3d 304.04 (effective Sept. 1, 2003).


Notwithstanding the language in People v Pellot (supra), that merger applies only to kidnapping in the second degree, in People v Addison (151 AD2d 372, lv denied 74 NY2d 946), the Appellate Division, First Department, under the facts of that case, held that the merger principle would not preclude a conviction for kidnapping in the first degree, since the <mask> had been fully consummated before the abduction and the kidnapping was "a separate and discrete crime neither incidental to nor inseparable from the robbery” (151 AD2d, at 373).


The court explained that in Tison , "[t]he United States Supreme Court granted Ricky's and Raymond's petitions to consider the application of Enmund to these facts. The court began by discussing at length and endorsing Enmund 's holding *619that the Eighth Amendment limits the ability of states to impose death for 'felony murder simpliciter .' [Citation.] Specifically, Tison described the range of felony-murder participants as a spectrum. At one extreme were people like 'Enmund himself: the minor actor in an armed <mask>, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.' [Citation.] At the other extreme were actual killers and those who attempted or intended to kill. [Citation.] Under Enmund , Tison held, death was disproportional and impermissible for those at the former pole, but permissible for those at the latter. [Citation.] The Supreme Court then addressed the gray area in between, the proportionality of capital punishment for felony-murder participants who, like the two surviving Tison brothers, fell 'into neither of these neat categories.' [Citation.] Here, the court announced, 'major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.' [Citation.]" ( Banks, supra , 61 Cal.4th at p. 800, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Therefore, the culpability of nonkiller felony murderers falls on a continuum, and only knowingly creating a " 'grave risk of death' " satisfies the constitutional minimum for death penalty eligibility and felony-murder special circumstances. ( Id. at p. 811, 189 Cal.Rptr.3d 208, 351 P.3d 330 ; Tison, supra , 481 U.S. at p. 157, 107 S.Ct. 1676.)4


A Nassau County detective who was investigating a series of robberies learned of a <mask> in Suffolk County that fit the same pattern. The license plate number of the vehicle used in the Suffolk County robbery was traced to the defendant’s Cadillac. Upon discovering that the defendant was on parole for a robbery conviction, the detective obtained his photograph for a photographic array. One of the Nassau County robbery victims positively identified the defendant in the array, and another victim made a tentative identification of the defendant. Two days later, the police stopped the defendant while he was driving the Cadillac and arrested him.


According to the records, the cell phone towers used for the calls were consistent with the testimony of Thompson, Moore, and Jacari about their activities on September 24 and 25, as well as Rendon and Thompson’s drive to the Quad Cities on September 26. The district court denied Rendon’s motion for judgment of acquittal. The jury found Rendon guilty of first-degree burglary and nine counts of first-degree <mask>. Rendon was sentenced to a total of seventy-five years in prison.


1) that the trial court erred by failing to give the "no duty to retreat" instruction; 2) that the trial court erred during the penalty phase of the trial by permitting the Commonwealth to present evidence of Appellant's juvenile court adjudication for <mask>; and *6193) that although KRS 532.055(2)(a) 6 authorized the admission of his juvenile court record, the trial court erred by doing so because the statute is an unconstitutional encroachment upon the prerogatives of the judiciary. Id.


The law is clear that where a defendant is arrested on the basis of a loitering statute which is unconstitutional, any search incident to such arrest is improper and any items seized as a result must be suppressed (People v Peterkin, 48 AD2d 843; People v Beltrand, 63 Misc 2d 1041, affd 67 Misc 2d 324). In Peterkin, the defendant was arrested for loitering in violation of Penal Law § 240.35 (6) and a search uncovered money stolen during a <mask>. That loitering section was subsequently found to be unconstitutional in People v Berck (32 NY2d 567, cert denied 414 US 1093) and as a consequence the search which was incident to the arrest was illegal. The fact pattern in Beltrand was almost identical to that in Peterkin and the result was the same.


On November 30, 2005, at about 5:00 p.m., Officer Santiago, an anticrime officer in the 73rd Precinct, interviewed the complaining witness at the precinct. The complaining witness indicated that he had been robbed that day at about 4:00 p.m. He told the officer that he had been robbed in front of his home at gunpoint by three black men who took his jewelry. The *708complaining witness stated that, after the <mask>, the men had jumped into a new model Dodge Charger, possibly maroon or orange, with custom wheels the same color as the car.2


The evidence presented to the Grand Jury was that a man entered a pharmacy here in the Bronx wearing what the witness described as a “bandana” over the lower part of his face and a baseball hat, displayed and “clicked” what looked like a “gun” to the store clerk, and demanded that he fill a bag with money. The clerk complied and the robber fled from the store with the money. Six days later, the clerk identified defendant in a police-arranged lineup. The People also presented the arresting detective to the Grand Jury. That witness, Detective Houlihan, testified to a statement made by defendant after his arrest in which defendant admitted that he had entered the pharmacy on the date of the crime wearing a handkerchief *712over his face. Defendant further stated that he showed a gun to the clerk behind the counter, clicked it and demanded money. Defendant stated that after receiving the money in a bag he fled. With respect to the gun, defendant stated it was “a small 380, black in color. There were no bullets in the gun.” The People instructed the Grand Jury on the elements of the crime of <mask> in the first degree, Penal Law § 160.15 (4) (displayed what appeared to be a pistol, revolver or other firearm), robbery in the second degree, Penal Law § 160.10 (2) (b) (displayed what appeared to be a pistol, revolver or other firearm), criminal possession of a weapon in the fourth degree, Penal Law § 265.01 (2), and criminal possession of stolen property in the fifth degree, Penal Law § 165.40. The prosecutor’s charge included a reading of that portion of the statute defining robbery in the first degree that sets forth an affirmative defense to that degree of robbery, that the weapon displayed was either unloaded or inoperable. The filed indictment contains each of the submitted crimes, including both robbery in the first and second degrees.


Viewing the evidence, in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. The complainant’s story as to the happening of the <mask> was consistent. Minor inconsistencies between his statement to the police and his trial testimony do not make his testimony incredible as a matter of law (see, People v Senior, 203 AD2d 308; People v Stackhouse, 201 AD2d 686; People v White, 192 AD2d 736).


Here, one of the People’s two witnesses, an employee of the fast-food restaurant where the <mask> occurred, testified that Detective Delpino conducted a 15-minute interview at the restaurant on either the date of the robbery or the next day. According to the People’s witness, during this interview, he provided Detective Delpino with a description of the perpetrators and answered other questions concerning the circumstances of the robbery. The witness further testified that Detective Delpino wrote down his responses on a piece of paper. Significantly, the prosecutor maintained that a certain DD-5 report, which had been compiled by telephone by Detective Delpino, is the only Rosario material pertaining to this witness. Faced with this discrepancy, the court afforded the defendant an opportunity to question Detective Delpino and thereby determine whether the alleged Rosario material existed. The defendant specifically declined the court’s offer, opting instead to seek an adverse inference charge based upon the record as it was. The Supreme Court correctly declined to give the requested charge, because the record was incomplete. Now, on appeal, the defendant argues that the court erred in failing to conduct the hearing. However, having failed to avail himself of the opportunity presented by the Supreme Court, the defendant may not now claim to have been deprived of a full and fair hearing on this issue (see generally, People v Poole, supra, at 150).


Part of that problem is caused by the failure of the courts to notice that some crimes have a tangible injury (which can be isolated as a corpus delicti) while others an intangible corpus or none at all. The corpus delicti (not to be confused with proof of death in homicide, Penal Law, § 1041) is tangible in all violent crimes, homicide, assault, <mask>. It is also often tangible in property crimes, arson, burglary, larceny, receiving, etc. It is intangible in perjury, bribery, corruption, tax eva*369sion, etc. (Proof of the corpus in intangible crimes often involves necessarily proof of the defendant’s complicity — see Smith v. United States, 348 U. S. 147, 153, 154, supra.) This latter distinction is mentioned because it has resulted in some rather general language in cases having an intangible corpus which might indicate that the “additional proof” need only serve to corroborate the truth of the confession (cf. People v. Jaehne [a bribery prosecution], 103 N. Y. 182, 199, “ are strongly corroborative of its truth ”). But the law is clear that “ additional proof ” which serves only to corroborate the truth of the confession and does not corroborate the corpus delicti is insufficient. (People v. Clark, 228 App. Div. 670; People v. Di Gregario, 205 App. Div. 629; People v. Cuozzo, 292 N. Y. 85; People v. Roach, 215 N. Y. 592, supra; cf. State v. Johnson, 31 N. J. 489; State v. Lucas, 30 N. J. 37.)


The defendant, John Doe, proceeded to deny having committed the <mask>. He also asserted a justification defense, alleging that complainant was the initial aggressor, had attempted to strike the defendant with a golf club after breaking into the defendant’s home, and that codefendant, Richard Doe, shot the complainant during the incident. In an effort to substantiate his statements, the defendant was permitted to introduce photographs and a street map which had been procured by his attorney. (The foregoing was introduced only after a heated discussion between the prosecutor and defense counsel, which had occurred outside the Grand Jury room, but which had been overheard by one of the grand jurors.) Following his statement, the defendant was vigorously cross-examined by the prosecutor.


Gittens is currently serving a 7-to-14-year sentence at Sullivan Correctional Facility for two counts of armed <mask> in the second degree. From the record, it is both clear and uncontroverted that the prisoner in question suffers from chronic, severe psychiatric disorders, including chronic paranoid schizophrenia and schizoaffective disorder. Since the inception of his incarceration in 1981, Gittens has been committed to the Central New York Psychiatric Center 17 times. He apparently is, and has been, receiving various forms of psychotherapy and antipsychotic medications. The record also indicates that Sullivan Correctional Facility was aware of Gittens’ mental condition, and on at least three occasions, his condition was taken into account in the disposition of prison disciplinary proceedings. Gittens had 10 additional disciplinary proceedings held against him between 1983 and 1988, in which a total of 11V2 months of good behavior allowances (good time) were recommended to be taken from him as punishment upon determinations of guilt as to various charged acts of misbehavior. There is no indication that Gittens’ mental condition was considered in any way at these hearings.


Despite the stated purpose of its sponsors (the Baumes’ Commission, supra noted), the simplified form of indictment may not be used where the District Attorney is uncertain of the nature of the crime to be charged and the factual allegations to be included in the indictment. It may be used where indeed it is least necessary, i.e., where the evidence presented to the Grand Jury leaves no doubt of the crime charged and the facts upon which that charge is based. It is suitable in eases of homicide, <mask> and burglary and not by any means in all such cases. But the long form of indictment can be used with equal facility in such cases. Where a statute defines a crime which may be charged in several different ways and the evidence presented before the Grand Jury can support more than one of the charges, the simplified form should not be used.


Parks also explained to Parkinson that he had contact with appellant on Facebook Messenger after the incident. In the messages, Parks told appellant that Watson was dead. Appellant told Parks not to snitch and described how they had disposed of the gun and that no one had seen their faces. Parks also told Parkinson that, during their discussions before the <mask>, Shakur said that if Watson resisted, he would shoot him in the leg.


In the course of the recorded conversation, it is evident that Schwimmer was hoping to enlist two new and more reliable recruits than the fumbling trio who had botched up the West 4th Street subway <mask>. With undiminished confidence in his basic criminal scheme, Schwimmer proposed to teach them how to lurk outside the Customs House, how to spot potential couriers of large diamond shipments, and how to rob them in fast and daring daylight street assaults. In the course of the meeting, some boasting as to criminal prowess took place. Unfortunately for Schwimmer, his part of this interchange included explicit reference to his full participation in the West *9824th Street subway robbery, and his smug possession of over two thirds of the unrecovered loot. Understandably, this taped conversation enabled a Grand Jury on November 10, 1977 to indict Schwimmer with the crimes of robbery in the second degree and criminal possession of stolen property in the second degree. It is this taped conversation which Schwimmer now moves to suppress as illegally obtained.


However, in its order, the circuit court explained that this exchange was solely an inquiry regarding the requested jury instruction for the lesser-included offense of simple <mask> and that trial counsel did present a defense of general denial. Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel. Anderson v. State , 2015 Ark. 18, at 8, 454 S.W.3d 212, 218. While a better strategy may seem apparent to Mercouri now, judicial review of trial counsel's performance is highly deferential, and Mercouri fails to offer evidence that counsel's approach was objectively unreasonable. Moreover, his contention that "counsel basically did nothing" fails because, as the circuit court explained in its order,


As noted, subdivision (a)(1)(D) of section 781 contains the following limitation on eligibility for record sealing under that section: "Notwithstanding any other law, the court shall not order the person's records sealed in any case in which the person has been found by the juvenile court to have committed an offense listed in subdivision (b) of Section 707 when he or she had attained 14 years of age or older." <mask> is one of the offenses listed in section 707, subdivision (b). (See § 707, subd. (b)(3).)


As to Teamer, Steward, and Miles, the referee concluded that they were either not "inherently" or "compellingly credible." For instance, as to Steward, the referee stated that: "While his recent testimony concerning the <mask> that resulted in [Miles'] conviction could be true, the referee cannot conclude that Mr. Steward has any inherent credibility." (Italics added.) In his final report, the referee concluded: "[T]he referee believes that, based on all of the testimony he has heard and all of the evidence that he has reviewed, [Miles] 'could in fact be innocent of the robbery at Fidelity Financial Services on June 29, 1998.' Likewise, based on all of the testimony he has heard and the evidence he has reviewed, the referee believes that the inculpatory eyewitness identifications that resulted in [Miles'] conviction could be honest and accurate. If that is the case, then [Miles] is guilty of that robbery."


In addition, whereas the evidence in McKay showed the alternative perpetrator committed a similar crime in the immediate vicinity just eight days after the occurrence of the <mask>, in this case the gas-station armed robberies and the crimes at the Drury Inn were different, occurred much further apart in time, and were committed in three different locations in the St. Louis area. As previously stated, the crimes involving the Bulls Hat Bandit were all robberies committed at gas stations with no injuries being reported, whereas the crimes in this case involved a robbery and a murder at a hotel with the Victim being killed by the suspect. Furthermore, the only evidence regarding the timing of the three gas-station armed robberies is that the last one occurred around the time of May 10, 2015, which was approximately four months after the Drury Inn crimes.


This novel question — for which there is no apparent case law in this State — arose during the course of a lengthy pretrial hearing at which the defendant sought to suppress certain property seized and statements made in connection with his arrest for <mask>, first degree and second degree, burglary, first degree, conspiracy, fourth degree, criminal impersonation, first degree, and criminal possession of a weapon in the second and third degrees, and, by separate indictment, for murder, second degree.


The defendant acknowledges that no "felony complaint” was filed, but argues that the prosecutor had no choice but to charge him as a felon, since he has been previously convicted of DWI. The defendant urges the court to accept this argument since otherwise the system would be unfair in that a person charged with rape or <mask>, for example, would be entitled to notice of the District Attorney’s intent to present the matter to a Grand Jury, whereas a person facing felony charges of DWI would not have the same rights.


Contrary to the defendant’s contention, the hearing court properly declined to suppress the in-court identification of the defendant by a witness to the <mask>. The testimony adduced at the Wade hearing establishes that the witness observed the defendant at close range, under good lighting conditions, for approximately two minutes, and that the witness gave a detailed description of the defendant to the police the day after the robbery. Thus, although the hearing court found that the lineup conducted by the police was impermissibly sugges*398tive, there was an independent source for the witness’s in-court identification of the defendant (see, Manson v Braithwaite, 432 US 98; People v Reid, 175 AD2d 815; People v Greer, 173 AD2d 557; People v Tomilin, 131 AD2d 897; People v Owens, 131 AD2d 602; Matter of Michael J., 117 AD2d 602).


On appeal, Fleming claims his trial counsel was ineffective for requesting an erroneous jury instruction. More specifically, Fleming resurrects the argument he made in his direct appeal about the alleged instructional error, arguing that his counsel was ineffective for requesting the standard pattern instruction (PIK) for aggravated <mask> instead of requesting an instruction that specified that Fleming took Dean's cell phone and wallet. He argues that the overly broad jury instruction prejudiced his right to a fair trial. Fleming had raised other grounds for relief in his K.S.A. 60-1507 motion that he does not address on appeal. Issues not briefed are deemed waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018).


"In sum, [petitioner] testified that he did not know what happened to the guns found in the sock and he did not fire them, he was not involved in the purchase of ammunition, no one discussed or displayed any firearms on the evening of the murder, he was not asked to participate in a <mask>, he did not know what Candido or Josh were going to do at Skeeko's Bar, and he did not go there with the intent to commit any crime." (People v. Ramirez , supra ,, fns. omitted.)


. Mr. Smith’s legal history is characterized only by violent criminal behavior: Dec. 5,1988, convicted of the crime of <mask> in the second degree (Penal Law § 160.10); May 25, 1989, convicted of the crime of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10); Jan. 18, 1995, convicted of the crime of attempted rape in the first degree (Penal Law §§ 110.00, 130.35); June 6, 1996, convicted of the crime of assault in the second degree (Penal Law § 120.05 [7]).


One of the cases relied upon by the defendant involved the element of an escape where, by means of a gun, a sheriff was assaulted and the jail keys were taken from his person. In that case, the defendants were indicted for <mask> and assault *991in the first degree, and were given consecutive sentences, which was held improper by the Appellate Division because the assault in the first degree and the robbery were considered inclusive crimes. Apparently, the defendants were not indicted for escape, and consequently, that case may be distinguished from the present one. (People v. Wells, 246 App. Div. 853.)


On cross-examination, Dye stated that he remembered speaking to Officer Chris Gravely and that he "supposed" he told Gravely that the suspect was "6'3 and had a slender build," but that "he wasn't skinny at the time." He admitted that before being presented with the photo lineup, he had already described the suspect as being "an older gentleman, in his 40's." He testified that the suspect pulled the taser out of his pocket with his left hand and that the suspect's right hand never touched the taser. He said that although he watched the suspect leave after the <mask>, he did not see the suspect get into a truck.


Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of <mask> in the first degree (Penal Law § 160.15 [3]). We reject defendant’s contention that County Court abused its discretion in denying his motion to withdraw his plea without a hearing (see People v Merritt, 115 AD3d 1250, 1250-1251 [2014]; see generally People v Mitchell, 21 NY3d 964, 966 [2013]). Defendant’s belated and unsupported claims of innocence and coercion were insufficient to justify a hearing (see *1498People v Sparcino, 78 AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). We reject defendant’s further contention that his plea was jurisdictionally defective. Defendant pleaded guilty to the crime charged in the indictment (cf. People v Castillo, 8 NY3d 959, 960-961 [2007]) and, by his guilty plea, defendant forfeited any challenge to the alleged amendment of the indictment (see People v Martinez, 52 AD3d 68, 71 [2008], lv denied 11 NY3d 791 [2008]). Defendant’s valid waiver of the right to appeal precludes review of the factual sufficiency of the plea allocution and forecloses defendant’s challenge to the severity of his sentence (see People v Talley, 112 AD3d 1347, 1347 [2013]; People v Nash, 38 AD3d 684, 684 [2007], lv denied 9 NY3d 848 [2007]). While defendant’s contention that his plea was not voluntary survives the waiver of the right to appeal and was preserved by his motion to withdraw his plea, we conclude that the contention is without merit inasmuch as it is belied by the record (see Merritt, 115 AD3d at 1251).


At the point where the respondent herein took out the gun from the bag which was on the bench next to Ralph, a <mask> was occurring; the complainant, Anthony and the other two assailants were still aggressors in the robbery. When the respondent pulled out the gun, stood up and said "I’ve got a gun, I’m going to kill you!”, two of the assailants fled behind the sliding door which separated one subway car from another.


We have seen that the difference between an “ included ” crime and a “ separate ” crime is entirely a matter of legislative definition. Thus in California where one kind of kidnapping is defined as detention for the purpose of <mask>, robbery is an included crime with kidnapping. There can be no kidnapping under the definition without a robbery. Also in this State prior to the Penal Code burglary was defined as breaking and entering and stealing. Larceny was an “ included ” crime with burglary and it was held that a person convicted of larceny could not be tried for burglary. (People v. Smith, 57 Barb. 46.) But the Legislature in adopting the Penal Code redefined burglary as breaking and entering with the intent to steal. Thus larceny was made a “ separate ” crime from burglary. To clarify the legislative intent section 506 of the Penal Code, now 406 of the Penal Law, specifically provided that each crime could be separately punished. The Legislature by redefinition can do the same with any crime. It could define robbery as assault with intent to steal thus making larceny a “ separate ” crime from robbery.


with a third party was offered not for the truth of what the third party told him, but to explain the course of his investigation. Commonwealth v. Rega, [593 Pa. 659], 933 A.2d 997, 1017 (2007)….“[I]t is a longstanding rule of jurisprudence that an out- of-court statement offered to explain a course of conduct is not hearsay.” Commonwealth v. Dargan, 897 A.2d 496, [500] (Pa.Super. 2006) [(quotation marks and quotations omitted)]. Here, Mr. Wilkinson was asked by the prosecutor about the timing of his initial identification of Appellant, which happened almost a week after the <mask>. [Appellant’s trial counsel objected to the initial question, and the trial court overruled the objection.] [Mr. Wilkinson then] explained why he returned to the police and when he learned of Appellant’s name. The fact that he learned of Appellant’s name through a third party [was not offered for the truth of the matter asserted]. Because this testimony only elaborated on how he identified Appellant to the police, it was admissible to explain his course of conduct during the investigation. Thereafter, on cross-examination, [Appellant’s co- defendant’s] counsel was attempting to get the witness to commit to the point in time when he either knew or didn’t know of Appellant’s identity, and he specifically instructed the witness not to tell him who may have given him Appellant’s name or how it was said to him. Clearly, this line of questioning [on cross- examination] was relevant to explain why the witness waited for close to a week after the robbery to identify Appellant. Appellant’s counsel had already objected to this line of questioning on direct examination, and although his objection to the mere explanation of learning Appellant’s name through a third party was initially overruled, [the trial court] sustained when Mr. Wilkinson was about to repeat the third party’s actual statement. (N.T., 6/24/15, pgs. 33-34). The cross-examination questions posed by [Appellant’s co-defendant’s] counsel stayed within the same parameters; namely, an explanation of the timing of Mr. Wilkinson’s eventual identification of Appellant as the shooter. Inasmuch as Appellant’s trial counsel would have had no basis for lodging an objection at the aforesaid point in cross- examination by [Appellant’s co-defendant’s] counsel, he cannot be found ineffective for failing to do so. Further, trial counsel was not ineffective for failing to request a limiting jury instruction concerning Mr. Wilkinson’s mention of a “somebody” who told him Appellant’s name.


Heretofore on August 14, 1981, this court directed John Crawford, who was in detention on an unrelated charge to appear in a lineup in connection with a <mask> investigation. Relying on Matter of Alphonso C. (50 AD2d 97), Matter of District Attorney v Angelo G. (48 AD2d 576), and Matter of Burke v Sullivan (52 AD2d 536), probable cause was determined as a condition precedent for the issuance of that order. In addition it was also determined that proper notice had been given to counsel for the defendant, who in fact, appeared and argued in opposition to its issuance. Those two salient requirements were satisfied and therefore the dictates of due process were met (see, also, Matter of Merola v Fico, 81 Misc 2d 206).


Testimony from other witnesses at the revocation hearing was consistent with Shaw's version of the events. And police officer Raymond Stanley testified that when Collins gave a statement subsequent to his arrest, he denied knowing about or participating in the physical altercation and the <mask> in his SUV but admitted having been the driver during the robbery and having smoked the stolen marijuana afterward.


Nor does Mullaney (supra) encompass the further claim of defendant, that the prosecution must establish the facts which distinguish between the degrees of <mask> "by display * * * [of] what appears to be a [firearm].” While manslaughter and murder were genetically different offenses at common law, as focused upon in Mullaney (supra), no such dichotomy there existed between differing forms of robbery. Those were, of *248course, days of simpler weapons and modest firepower. Precise definitions of the offense differ among jurisdictions, but New York’s use of the term "forcible stealing” (Penal Law, § 160.00) in defining robbery differs little semantically and none in application from the generally accepted definition of robbery as "larceny from the person by violence or intimidation.” (Perkins, Criminal Law [2d ed], p 279.)


Johnson (supra) would thus seem to preclude a plea to any crime which is not within the embrace of CPL 1.20 (37) or 220.20 (1) (a)-(k). This, of course, would render the plea in the instant case defective since attempted <mask> in the second degree is not a lesser included offense of the first degree robbery charged here (Penal Law § 160.15 [3]) under CPL 1.20 (37) or 220.20 (1) (a)-(k). In my view analysis of Johnson in conjunction with its antecedents shows that the plea in the instant case was permissible.


Shirley R. Levittan, J. On August 11, 1982, defendant pleaded guilty to the crime of attempted <mask> in the second degree (Penal Law, §§ 110.00, 160.10), a class D felony. The People have now filed a statement, pursuant to CPL 400.21, indicating defendant be sentenced as a second felony offender (Penal Law, § 70.06). Defendant challenges the use of his prior felony conviction as a predicate, alleging his plea of guilty was obtained in violation of the United States Constitution (CPL 400.21, subd 7, par [b]). Defendant contends that the court, on his prior conviction, neglected to advise him of his rights outlined in Boykin v Alabama (395 US 238). Specifically, defendant argues that the failure to inform him of his right to a trial by jury voids the use of this conviction for the purposes of section 70.06 of the Penal Law.


In this case, however, the court did not find that no other person was present when Mann committed the <mask>. It found codefendants Mack and Ferguson had not been proved to have been present, but both Watford, the complaining witness, and Mann, the defendant, testified there was someone else present. Mann said it was one Alonzo Walker, Watford thought it was Ferguson (though not with sufficient certainty to satisfy the court), but even if it was not proved to have been Ferguson or Mack, someone besides Mann was there to help pin down Watford, remove his pants, and help relieve him of his possessions. There is nothing either conceplually or factually implausible in the identity and complicity of one person accused of acting with an accomplice being readily established, while the identity of his accomplice has not been proved beyond a reasonable doubt. “ The question of the one defendant’s guilt cannot turn upon the establishment of the other’s guilt; it is an independent issue to be tried out alone.” (People v. Kief, 126 N. Y. 661, 663. See, also, People ex rel. Guido v. Calkins, 9 N Y 2d 77, 81.) Even though the crime charged is one that must have been committed in the presence of another, it need not be a, person named in the indictment so long as the evidence shows and the trier of the facts is convinced that someone besides the convicted defendant was present as an accomplice. (People v. Eichner, 168 App. Div. 200.)


Plaintiff-petitioner is presently incarcerated at the Federal penitentiary at Leavenworth, Kansas. He was convicted on April 19, 1971 for bank <mask>. On December 8, 1976, plaintiff-petitioner requested in writing from the New York State Police, pursuant to the freedom of information article of the Public Officers Law of the State of New York (art 6), copies of all files and/or other information in possession of defendant-respondent with reference to plaintiff-petitioner. The request was denied on the grounds that the records requested are a part of investigative files compiled for law *530enforcement purposes and as such are specifically exempt from disclosure under section 88 (subd 7, par d) of the Public Officers Law.


At trial, the People called Rivers as a witness. After he invoked, outside the presence of the jury, his Fifth Amendment privilege not to testify, the portion of the allocution summarized above with Woods’ and Hopkins’ names redacted to “A” and “B,” respectively, was read to the jury. The trial concluded with defendant Woods being convicted of assault in the third degree and defendant Hopkins of <mask> in the second degree and criminal possession of stolen property in the third degree. This opinion is being issued to supplement and further explain the court’s trial rulings with respect to the admission and use of the allocution.


The witness was also permitted to tell the Grand Jury that while Hanley and "Billy” were in the store, the defendants remained outside "looking up and down the block for the police.” The record offers no basis for his conclusions and opinions that the defendants were waiting for Hanley and "Billy” or that they were watching out for the police. Again, this testimony does not consist of observable events or circum*273stances, but rather of unsupported inferences that go directly to the ultimate factual issues, inferences which are the exclusive province of the Grand Jury. This testimony is critical because if the grand jurors were to have lawfully concluded that the defendants were, in fact, lookouts, an indictment for the crimes of murder and <mask> could lawfully have been returned. (See, e.g., People v Bradley, 150 AD2d 592 [2d Dept 1989].) Save for the testimony that the defendants were in the company of two perpetrators, one of whom signalled the intention to commit the crime, that they were in proximity to the crime site and that they ran after the shooting, the evidence connecting the defendants to the criminal enterprise consists of the inadmissible opinion testimony of the eyewitness. In essence, the witness clothed the defendants in perpetrators’ garb by his conclusory allegations. The error was heavily underscored and compounded when, despite the significant instances of incompetent and inadmissible testimony, the prosecutor failed to provide any sort of limiting instruction or explanation as to how the Grand Jury should evaluate such evidence.


The defendant was accused of robbing two banks and attempting to rob a third bank. Charged with multiple felony counts, the defendant was to plead guilty to attempted <mask> in the second degree, in full satisfaction of the indictment, with the understanding that he would receive a certain sentence. After a plea allocution, the Supreme Court stated that the plea was acceptable to the court, but the prosecutor, in effect, objected to the allocution. After making further inquiry of the defendant, the court stated that the plea was acceptable to the court if it was acceptable to the People. The prosecutor, in effect, objected again, stating his belief that the allocution was not legally sufficient. The matters then proceeded to a jury trial, after which the defendant was convicted of two counts of robbery in the first degree, attempted robbery in the first degree, two counts of robbery in the third degree, and attempted robbery in the third degree.


the people and take it. They were close to the car at this time. Bivert then threatened defendant. ‘Before we went down there, he said, if he started shooting, that I better start shooting or that he was going to blow my head off, or he was going to do the same to me as he did to the rest, or something to that effect.’ “Defendant testified that he believed Bivert would kill him if he did not start shooting when Bivert did. Defendant ‘wondered’ whether he would, but the thought that Bivert might not shoot him ‘passed real quick.’ They then walked from the car toward the Rogerses. Defendant did not walk away because he was panicked and thought he would be shot in the back; he did not shoot Bivert because he was less experienced with handguns than Bivert; and he did not try to warn the Rogerses due to panic. They walked by the car without checking to see if it could be hot-wired. After they reached the Rogerses and Bivert fired several times, he looked at defendant and said, ‘you better get to shooting.’ Defendant then pulled out the .38-caliber revolver, closed his eyes and started shooting. He fired five of his six rounds with his eyes closed. He made no conscious effort to either aim at the Rogerses or away from them. “Defendant did not try to get away from Bivert over the next three days because he was scared. They eventually went to the house of defendant’s friend Shane Brumble in Oregon. Defendant told Brumble that they had shot two people in self-defense because he thought Shane would turn them in. Defendant thought it would be better to get caught than for anybody else to be killed or for him to be killed. “Defendant testified that he could not remember Bivert ever threatening him until he was standing on the levee where the Rogerses were fishing. Bivert did not threaten him after shooting Patton. Even though he was afraid of Bivert, he did not know for sure if his death was imminent.” (People v. King, supra, 1 Cal.App.4th at pp. 294-295, fns. omitted.) “The jury returned verdicts of guilty on all murder and <mask> counts and their special findings. Not guilty verdicts were returned on both counts of grand theft-firearm.


To conform to the usages of merchants and the necessities of commerce, this otherwise substantially inflexible rule was, during the passage of time, to some extent relaxed by the aid of statutes and judicial decisions in respect to bills of exchange and promissory notes and these “ came to have distinct attributes and qualities not pertaining to any other form of contract. They were not only made transferable by delivery and suable in the name of the transferee, but, contrary to the general rule of the common law, ‘ honest acquisition ’ for value was held to give to the transferee a new and original title, wholly independent of that of the prior holder and subject to no infirmity which affected the paper in his hands. The real owner, who had been despoiled of the paper by <mask> or theft, or who had lost it without negligence, was concluded from re-claiming it, and the maker, although he had been defrauded in executing it, could not be heard to allege the fraud as a defense against a bona fide holder. And the transferee, although he may have been negligent in talcing it, and omitted precautions which a prudent man would have taken, nevertheless, unless he acted mala fide, his title, according to the doctrine now settled, will prevail. These familiar but arbitrary principles applicable to commercial paper, originating in commercial policy, the encouragement of *746trade, the convenience of having some representative of money readily convertible and commanding confidence, while they operate in many cases with great severity upon the rights of innocent persons, have contributed greatly to stimulate commerce and advance the prosperity of States. The principles applicable to negotiable paper have been extended to embrace public debentures payable to bearer, and bonds of corporations, and some of the incidents of negotiability have either by custom or statute been applied to instruments not strictly negotiable. Certificates of stock, in business corporations, are embraced in ■ the class last mentioned. They are not negotiable in form, they represent no debt and are not securities for money. But the courts of this country, in view of the extensive dealings in certificates of shares in corporate enterprises, and the interest both of the public and of the corporation which issues them, in making them readily transferable and convertible, have given to them some of the elements of negotiability.” (Knox v. Eden Musee Co., Ltd., 148 N. Y. 441, 453, 454.)


Defendant was indicted for the crimes of burglary in the first degree, burglary in the second degree, criminal use of a firearm in the first degree, criminal use of a firearm in the second degree, <mask> in the first degree, reckless endangerment in the first degree and kidnapping in the second degree. *855Following plea negotiations, defendant entered guilty pleas to burglary in the second degree (Penal Law § 140.25 [2]), as a lesser included offense of the first count of the indictment charging burglary in the first degree, and reckless endangerment in the first degree. Defendant was sentenced to an indeterminate prison term of 2 to 6 years on each charge to run concurrently in accordance with County Court’s promise.


Nor does petitioner's conduct demonstrate reckless indifference to human life. There is no evidence from which it reasonably can be inferred petitioner harbored a willingness to kill, or to assist his confederates in killing, to *406achieve the goal of robbing someone, or that he anticipated the potential for loss of human life beyond that usually accompanying an armed <mask>. This is not reckless enough to support a special-circumstance finding. (See Clark , supra , 63 Cal.4th at pp. 617-618, 203 Cal.Rptr.3d 407, 372 P.3d 811.) Considering all the evidence, "there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery." ( Id . at p. 623, 203 Cal.Rptr.3d 407, 372 P.3d 811 ; see In re Miller (2017) 14 Cal.App.5th 960, 975-977, 222 Cal.Rptr.3d 691 ( Miller ).) *769Considering all the circumstances, we conclude no reasonable juror could have found defendant aided and abetted the attempted robbery "with reckless indifference to human life and as a major participant" ( § 190.2, subd. (d) ), as those terms are set out in Tison and explicated by Banks and Clark . (Compare In re Bennett (2018) 26 Cal.App.5th 1002, 1019-1021, 1023-1027, 237 Cal.Rptr.3d 610 ( Bennett ) with In re Loza (2017) 10 Cal.App.5th 38, 49-54, 215 Cal.Rptr.3d 671 ( Loza ) & People v. Medina (2016) 245 Cal.App.4th 778, 791-793, 200 Cal.Rptr.3d 133.) Because the evidence is insufficient to sustain the jury's true finding on count 1's special circumstance, that finding must be vacated. Retrial of the special-circumstance allegation is barred. ( People v. Lewis (2008) 43 Cal.4th 415, 509, 75 Cal.Rptr.3d 588, 181 P.3d 947, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 918-920, 169 Cal.Rptr.3d 363, 320 P.3d 800 ; People v. Perez (2016) 243 Cal.App.4th 863, 882, 196 Cal.Rptr.3d 871.)