The allegations in the third amended complaint are inconsistent with facts appearing in the mechanics lien and other exhibits attached to Panterra GP, Inc.’s earlier complaints. (See Vallejo Development, supra, 24 Cal.App.4th at pp. 946-947 [where allegations in a complaint conflict with allegations appearing in a mechanic’s lien that constitutes an exhibit, the allegations in the mechanics lien must be accepted as true as they are made under oath].) The mechanics lien unambiguously specified that Panterra Development Ltd., L.L.P. was the “general contractor” for the Studio Movie Grill Bakersfield project and had furnished “labor, materials, equipment, services, and/or work” for the project. Crucially, the facts asserted in the mechanics lien were verified as true and correct under penalty of <mask> by none other than Panterra GP, Inc.’s own president (who also signed the construction contract on behalf of Panterra Development Ltd., L.L.P.). The subsequent, partial release of mechanics lien contained similar facts that were again verified, under oath, by Panterra GP, Inc.’s president himself. Is Panterra GP, Inc. contending, as the majority would have it, that its president perjured himself in recording the mechanic’s lien for $2,997,545.75 on behalf of Panterra Development Ltd., L.L.P.? The facts reflected in the mechanics lien take precedence over conflicting allegations in the complaint, and the latter are disregarded. The facts that are properly taken as true establish that Panterra Development Ltd., L.L.P. was the contracting party and general contractor for the project. Accordingly, the first cause of action, reformation of contract based on unilateral or mutual mistake as to the identity of the contracting parties, fails. Panterra GP, Inc. did not provide the trial court with any explanation as to the stark inconsistency between its prior allegations and exhibits on the one hand, and its new allegations to the effect the contract did not reflect the correct parties, on the other. (See Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456, fn. 12; see American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 879 [“[c]ourts are understandably suspicious of a party’s belated claim of mistaken admission


A defendant has a constitutional right to testify in his or her own defense, but does not have a right to testify falsely. ( Nix v. Whiteside (1986) 475 U.S. 157, 173, 106 S.Ct. 988, 997, 89 L.Ed.2d 123, 138.) A defense attorney has an obligation to act as a conscientious and diligent advocate, but "[i]t is utterly reprehensible for an attorney at law to actively procure or knowingly countenance the commission of <mask>. [Citation.]" ( In re Jones (1971) 5 Cal.3d 390, 400, 96 Cal.Rptr. 448, 487 P.2d 1016.) A defendant's right to testify does not trump an attorney's ethical responsibilities. ( Whiteside , at p. 173, 106 S.Ct. at p. 997, 89 L.Ed.2d at p. 138 ].)


The Federal courts explicitly permit such immunized evidence to be presented at a trial to prove <mask>, provided that such testimony or statement is untruthful (United States v Berardelli, 565d 24; United States v Pisani, 590 F Supp 1326). They reason that immunity granted to a witness to compel testimony is part of a bargain under which the witness agrees to testify truthfully and the government agrees not to use his testimony against him, but the bargain struck is conditional upon the witness who is under oath telling the truth (United States v Tramunti, 500d 1334).


Prior to the enactment of former Civil Code section 5110.730 in 1984, it was relatively " 'easy' " for spouses to transmute community property into separate property and vice versa, simply by oral statement. (See Estate of MacDonald (1990) 51 Cal.3d 262, 268-269, 272 Cal.Rptr. 153, 794 P.2d 911 ( MacDonald ), quoting Recommendation Relating to Marital Property Presumptions and Transmutations, 17 Cal.Law Revision Com.Rep. (1984) p. 213 (1984 Law Revision Commission Report).) The allure of easy transmutations had encouraged extensive litigation by allowing spouses to " 'transform a passing comment into an "agreement" or even to commit <mask> by manufacturing an oral or implied transmutation.' " ( MacDonald, supra , 51 Cal.3d at p. 269, 272 Cal.Rptr. 153, 794 P.2d 911, quoting 1984 Law Revision Commission Report, supra , at p. 214.) With the passage of former Civil Code section 5110.730, the era of easy transmutation came to an end.


*465The charges which the defendant has made of fraud, subornation of <mask>, and abuse of official power are both numerous and serious in character. More or less illustrative of some of the extravagant charges advanced are these two: (1) The Court of Appeals decided the case of Matter of Lyons v. Goldstein (290 N. Y. 19, supra) —which held that a court of criminal jurisdiction has inherent power to set aside, upon motion, its* own judgment based upon fraud or misrepresentation of an officer of the State depriving a defendant of due process — solely for the purpose of preventing the Supreme Court of the United States from passing upon the defendant Whitman’s own case and for the purpose of persuading that tribunal to remand it to the courts of this State; (2) that Mr. Justice Brewster was elevated from the trial bench to the Appellate Division solely for the purpose of preventing him from handing down any favorable decision on a habeas corpus application on Whitman’s behalf — it appeared, I note, that Judge Brewster had previously held that the defendant’s'resort to habeas corpus was propér.


On May 27,1980 Garcia was called to the stand to testify at the hearing on the motion to vacate the judgment of conviction. Since the trial of this indictment he has been arrested and convicted on still another charge and is presentedly serving a sentence of 2 to 4 years which, with the consent of the District Attorney’s office covered his violation of probation on the two weapons cases discussed above. *104He asserted his Fifth Amendment privileges and, on the advice of counsel, refused to testify at the hearing unless he was granted immunity. The People, while conceding that they had no current investigation of Garcia which could reasonably be thwarted, nor any intention of prosecuting Garcia for <mask> or related crimes, refused to request immunity for Garcia. (CPL 50.30 prohibits a court from granting immunity to a witness, thereby compelling his testimony, absent a request to do so by the People. Thus immunity, which is a creature of statute, can only be conferred at the People’s discretion.)


In reaching this decision, the court has also considered cases addressing the sufficiency of evidence against defendants charged with <mask> in the first degree, which also includes the element of materiality to an action, proceeding or matter (Penal Law § 210.15). In People v Uhrey (169 Misc 2d 1015 [Sup Ct, Kings County 1996]), the court similarly held that a mere witness statement to law enforcement does not automatically convert a criminal investigation into a proceeding. The court determined that an oral statement at a meeting with a prosecutor investigating a murder was insufficient to support the charge of perjury in the first degree as the oral statement was not testimony as required by statute:


The counsel for the people argues that the last clause of the portion of the statute above quoted only applies where the witness has declined to answer upon the examination, upon the ground that his answer might tend to criminate him; otherwise, the counsel says, witnesses in supplementary proceedings may testify falsely with impunity, as their testimony could not be used to support a prosecution against them for <mask>. The argument proceeds upon a misconception of the statute. Immunity from the consequences of perjury is not secured to the witness, whether he does or does not ask to be excused before testifying. He shall not be excused from answering on the ground that his examination will tend to convict him of a fraud: i. e., of a fraud upon his creditors in respect to his property ; otherwise, the object of the statute, which is to obtain a discovery of his property, would be frustrated. In all other respects, he is entitled to the benefit of the rule, that a witness is not obliged to criminate himself. In the present case, a refusal, on the part of the witness, to answer would have been unavailing, for the obvious reason that his testimony could not have tended to show him guilty of a crime, except, possibly, of a fraudulent disposition of his property, which, according to the statute, would not excuse him from answering. We apprehend that the true meaning of the provision, that the examination of a witness in supplementary proceedings shall not be used against him in any criminal proceeding is, that it shall not be used as evidence of any fact testified to by him on *369such examination. If that is the extent of the provision he is liable, like other witnesses, to indictment for perjury, and his testimony, given on the examination, may be shown on the trial of such indictment, not as proof of the facts stated by him, but as evidence of his sworn statements. But whether the opinion last expressed be correct or not, certain it is that the testimony of the witness cannot be used as evidence of a fact stated by him on such examination, and as on the trial of this case, the testimony of the defendant as a witness in the supplementary proceedings was received solely as evidence of certain facts stated by him on such examination, it was directly within the prohibition of the statute and its reception was error.


The purpose of an oath is to secure truth. "In its broadest sense, an oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully” (58 Am Jur 2d, Oath and Affirmation, § 1). Traditionally, its function was to purge the conscience and impress upon the witness a due sense of religious obligation, so as to secure the truth of his testimony under the influence of its sanctity (see, O’Reilly v People, 86 NY 154 [1881]). Then, as *317now, false testimony or statements under an oath authorized by law subjected one to punishment for <mask> (Penal Law § 210.45).


In 21 Ruling Case Law, page 259, the rule is stated as follows: “ It may be laid down as a general rule that any testimony which is relevant in the trial of a case, whether to the main issue or some collateral issue, is so far material as to render a witness who knowingly and wilfully falsifies in giving it guilty of <mask>. It is but common knowledge that it frequently occurs in the trial of causes that inquiries are made of witnesses touching matters which do *598not directly concern the commission of the acts which constitute the offense, yet such inquiries and answers may be material and highly important to the end that the triers of the fact may properly and intelligently weigh the testimony in the cause. If it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material by giving weight or probability to, or detaching from the testimony of a witness thereto, it is sufficient and makes the testimony material. The degree of materiality is of no importance; for, if it tends to prove the matter in hand, it is enough, though it be but circumstantial.” (See, also, State v. Rash, 78 Atl. 405.)


In his opening brief, Joseph contended that he was incorrectly charged with <mask> under section 118, subdivision (a), a felony, when he should have been charged with falsely reporting a crime to police under section 148.5, subdivision (a), a misdemeanor, relying in part on the rule of statutory construction articulated in In re Williamson (1954) 43 Cal.2d 651, 276 P.2d 593. Following our initial review of the record, we asked the parties to brief the issues of: (1) whether Vehicle Code section 10501, subdivision (a), preempts section 148.5, subdivision (a), or section 118, subdivision (a), and (2) the impact, if any, of a recent Court of Appeal decision that has since been depublished. Joseph now contends that Vehicle Code section 10501, subdivision (a) preempts section 118, subdivision (a). The Attorney General argues section 118, subdivision (a) applies.


Consequently, if the act of Caponi before a notary was a mere certification or affirmation, unbuttressed by any testimony which indicated that an oath was taken by him at that time, said act cannot be an act of <mask>. It was a mere witnessing. And, since an act of perjury must be established by another to bottom a charge of subornation of perjury against one who procures the same, the proof of perjury herein is lacking. Accordingly, the count charging subornation of perjury has not been sustained, as a matter of law, and it is dismissed.


He further testified that there were no instructions concerning the degrees of grand larceny, the definitions of specific words used in the statute defining particular degrees of larceny or corroboration in the case of <mask>. There were no instructions covering the defendant’s status, rights, powers and duties in his capacity as executor of the estate of Paul N. Westerbeke, Sr., although the decedent’s will was an exhibit before the Grand Jury.


It is not to be contested, that the case thus presented, is a case of fraud; a fraud practised upon the referee—upon the defendant Bacon—and upon the law, embodied in the Code. The plaintiff is responsible for the acts and statements of his agent throughout the transaction. The agent was to be the witness. He was the witness. By his consent, a fictitious plaintiff was placed before the court; and that imposition was supported by his oath, through the whole struggle in the cause. He now comes, stained with this illegal design, successfully *426accomplished by these statements, to sustain- an action, the success of which must rest upon his immoral and illegal connivance in a fraud, if it does not involve him in <mask>.


The situation here is analogous. In 2008, in opposition to defendant's petition for a finding of factual innocence, Ms. Lintott submitted a declaration under penalty of <mask> stating her reasons for dismissing the assault charge *1113against defendant in 2006. She averred that she "moved to dismiss the case based on insufficient evidence to obtain a conviction beyond a reasonable doubt." She also averred that she "believed that an objective fact finder would find the assault with a firearm by Robert Forest took place if the standard was by a preponderance of evidence, but that there was not a 'probability' of a conviction if the standard was beyond a reasonable doubt." (Original italics.) Her decision to dismiss was based on information the defense presented to her in December 2007 bearing on his asserted defense of self-defense. This information included "interviews conducted by the defendant's investigators" and a "handwritten report" by David E. Paoli, who was the father of David A. Paoli, who was married to the victim's mother. David E. Paoli "reported encounters with [the victim] when he was off his 'meds,' and believed that [the victim] had threatened David A. with a mawl and 'some gang members.' " Lintott also averred that her decision to dismiss was "strongly disapproved of" by the deputy district attorney who had filed the case and who believed he could win a conviction notwithstanding the anticipated defense evidence. Finally, Lintott averred defendant's prosecution was justified by six objective reasons: "(1) the defendant pulled a firearm on an unarmed victim and held it to his face, (2) the defendant 'had a hold of' the victim's clothing as he held the gun to his head, (3) the victim had no reported record of violence, (4) the defendant at the time was parked in front of a bar where he had been drinking Tequila, (5) the defendant fled on his motorcycle instead of waiting for the police, and (6) the defendant has a criminal record (conviction under Penal Code §§ 12025(b) and 12301 [sic ] ) involving a firearm."


The Association also suggests that confidential records fall outside the Brady duty to disclose because that duty extends only "to information obtained during an investigation about a criminal matter against a defendant." (Italics added.) This, too, is mistaken. What matters for Brady purposes is what the prosecution team knows, not how the prosecution team knows it. Suppose, for example, that a prosecutor is personally aware (based on an earlier case) that a key witness in a pending prosecution is a habitual liar who has been repeatedly convicted of <mask>. To say that the prosecutor need not disclose that information *339merely because it was not "obtained during" investigation of the defendant's case would be irreconcilable with the right to a fair trial underlying Brady ; it would "cast[ ] the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice." ( Brady , supra , 373 U.S. at p. 88, 83 S.Ct. 1194 ; cf. City of San Jose , supra , 5 Cal.4th at p. 57, 19 Cal.Rptr.2d 73, 850 P.2d 621 [noting People's concession that Brady required disclosure, to defendants charged with battery on police officers, of the fact that an officer had been disciplined pursuant to a complaint of excessive force].)


We think the learned trial judge fell into an error when he said, in response to the request, “it is not pertinent to the case,” and that remark may have led the jury to conclude that it was not important for them to consider whether or not the appellant, when he gave his evidence as to seeing Parish in Utica on the twenty-ninth of December, “ honestly believed that was the day.” Archbald says, in 3 Waterman’s Notes (at page 595), viz.: “The false statement must have been willfully made, for if a man swear *179falsely from inadvertence or mistake it is no offense.” Hawkins says: “ It is said no oatk shall amount to <mask> unless it be sworn absolutely and directly, and that therefore he who swears a thing according as he thinks, remembers or believes, cannot, in respect of such an oath, be found guilty of perjury.” (3 Archbald, 595.) Lord O. J. He Grey said that a person may be convicted of swearing that he “ thinks or believes a fact to be true,” but that it renders the proof more difficult. (See note, 3 Archbald, 596.) The Revised Statutes (2 R. S., 681) provides that “ every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter * * * shall upon conviction be adjudged guilty of perjury.” The language of section 96 of the Penal Code differs some in phraseology, and uses the words “willfully and knowingly” instead of the words “willfully and corruptly.” Under either statute it is essential that the testimony given should be false, known to be such, or not known to be true though so alleged, and that in the former case the falsity be known and the falsity intentionally asserted. An honest mistake, an honest misapprehension, may lead a 'party to mistakenly testify untruly as to a fact when there is the utmost good faith and integrity of purpose. In this class of cases, as in others arising under the criminal law, it is important that the jury be left to inquire what was the intention of the party accused of crime.


In considering its decision, the court is faced with the question of whether, under the peculiar circumstances extant here, the acting in concert conviction may properly rest upon the uncorroborated dying declaration. Although the weight to be given to a dying declaration is for the jury to decide, there is wide judicial recognition that " ' "[d]ying declarations are dangerous, because [they are] made with no fear of prosecution for <mask> and without the test of cross-examination, which is the best method known to bring out the full and exact truth” ’ ” (People v Nieves, 67 NY2d 125, 133 [1986], quoting People v Falletto, 202 NY 494, 499 [1911]; see also, Fisch, New York Evidence § 923 [2d ed 1977]; Richardson, Evidence § 316 [Prince 10th ed]). As stated in Nieves (at 133), our Court of Appeals "has always regarded dying declarations with a degree of skepticism” (see, People v Bartelini, 285 NY 433 [1941]; People v Ludkowitz, 266 NY 233 [1935]; People v Corey, 157 NY 332 [1898]). In the course of trial testimony, evidence to corroborate the victim’s dying declaration was not *261offered. The degree of evidentiary value ascribed to such declarations being less than in-court testimony, it must often be determined by the context in which it was uttered, as well as by any supporting evidence available in the evaluation of the declarant and his declaration (see, People v Nieves, supra).


By the fourth count of Indictment 910C-72, defendant Percy is charged with official misconduct for failure to pay just com*532pensation as to Parcels 12 and 13 based on submitted appraisal figures. Count 11 of Indictment 910G--72 charges him with <mask>, premised again on the theory that at the time of settlement the county’s appraised value figure was $132,000 and not $56,000. Assuming, that by being the ultimate signatory to the settlement agreement, Percy bears responsibility, it is amply clear that the minutes nowhere reveal the awareness by the jury of the existence of the $56,000 figure and offer.


*39Defendant was charged with three counts of criminal contempt in the second degree (Penal Law § 215.50 [3]), three counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [b]), and one count of harassment in the second degree (Penal Law § 240.26 [1]). Following a jury trial, defendant, who chose to proceed pro se with standby counsel present, was found guilty as charged. Defendant was also summarily adjudged twice in <mask> (see Judiciary Law §§ 750, 751); however, he raises no issue on appeal pertaining to these adjudications.


It is well settled that a proceeding to punish for a <mask> arising out of or during the trial of a civil action commences a special proceeding which is separate and distinct from the original action (Board of Educ. v Pisa, 54 AD2d 821; Matter of Murray, 98 AD2d 93). Hence, jurisdiction must be acquired anew. But, contrary to respondent’s argument, the separate proceeding to punish for a criminal contempt has been traditionally viewed in New York as a civil special proceeding (Matter of Douglas v Adel, 269 NY 144, 146), notwithstanding the necessity that the accused be shown to have violated the underlying order with a higher degree of willfulness than is required in a civil contempt proceeding.* **§In consequence, the rules of civil rather than criminal procedure should govern the origination of the criminal contempt application (Siegel, NY Prac § 484, at 650).


Department of Housing Preservation and Development (DHPD) moves by order to show cause pursuant to section D26-53.07 of the Administrative Code of the City of New York (Housing Maintenance Code), CPLR 5104 and article 19 of the Judiciary Law, to punish the respondent landlord for <mask> (Judiciary Law, § 751) by imprisonment for a definite period not to exceed 30 days and a fine of $250 for each separate contempt and for civil contempt of court by remand to and imprisonment in civil jail (Judiciary Law, § 774) for each separate contempt in regard to the alleged failure of the said respondent landlord to comply with the order of this court entered on June 30, 1982 and for such other and further relief as this court *1014may deem just, proper and equitable under the circumstances. The premises are located at 163-20 108th Avenue in Jamaica, in the Borough of Queens consisting of a multiple dwelling, with four apartment units with an assessed valuation of $11,800 and with tax arrears in the sum of $944.02 pending for the last four tax quarters. The respondent had entered into a consent order in which he agreed to correct certain violations at the subject premises by September 30, 1982. The DHPD alleges that an inspection of these outstanding violations was made on November 26, 1982 and that 11 violations remain uncorrected. DHPD further alleges that the refusal of the said respondent to obey said order, was calculated to and actually did defeat, impair, impede and prejudice the petitioner in its efforts to have the subject premises restored to minimum housing standards and that this refusal to obey said order was willful. The respondent landlord appeared in court on the return day and stated that he was without an attorney, that he wanted an attorney to represent him and that he could not afford an attorney.


People v. Florentine (276 App. Div. 730) is persuasive authority for the position of the movants. There the appellant was adjudged guilty of <mask> for refusing to testify before a grand jury. He asserted his constitutional privilege against self-incrimination as the basis for his refusal to testify. It appeared that the appellant had made a sworn statement before the City Court and refused to testify before the Grand Jury, on the ground that his testimony might tend to disclose that he had committed perjury in making such statement. The Grand Jury at that time was investigating the crime of gambling. The Appellate Division held that the grant of immunity in the gambling statute accorded immunity to the appellant, even against the possible crime of perjury committed in the past, and that he was properly adjudged in contempt.


All other matters asserted in the moving affidavits giving the various grounds for the defendant’s position before the Grand Jury such as, “ he was a layman of limited education,” and that he was “ truly confused,” are matters of defense at the trial. In People v. Berson (308 N. Y. 918, 920) it was held that: ‘ ‘ defendant was properly convicted of a <mask>, although it is possible, and even probable, that his refusal to answer was because of a mistaken belief that he had a right so to do and, although it is possible, and even probable, that a truthful answer to the question would have shown his innocence of the alleged misconduct which the Grand Jury was investigating.”


*982The Colombo case involved a claim of double jeopardy by a defendant challenging an indictment brought under the former Penal Law for the same conduct for which he had previously been punished under the Judiciary Law. As in the. instant case, Colombo refused to answer Grand Jury interrogatories after he had been afforded immunity from prosecution. Thereafter, he too was brought before a Judge (Dec. 8, 1965) who directed him to answer, and he likewise refused to obey the order of the court. On December 15, 1965 the Supreme Court, Kings County, stated that ‘1 by his contumacious and unlawful refusal after being sworn as a witness to answer any legal and proper interrogatories and for his wilful disobedience to the lawful mandate of this Court, defendant had committed a <mask> in the immediate view and presence of the Court.” These are virtually the identical words used by Judge Kelly in holding the defendant Failla in contempt. In each case, the contempt citation recited two grounds — refusal to answer Grand Jury questions and refusal to obey the court’s lawful order. In Colombo, after appellate proceedings proved fruitless, the defendant offered to testify, but his offer was refused, and he served his 30-day1 sentence and paid his $250. fine,


To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect, and it must appear with "reasonable certainty” that the order has been disobeyed (Matter of Department of Envtl. Protection v Department of Envtl. Conservation, supra, at 240). The violation issued against the defendant in this case, seeking to hold him in criminal contempt, properly alleged that a lawful mandate of *142this court was in effect at the time of the violation, a temporary order of protection, and also identified the underlying crime pursuant to which it had been issued. The violation also properly set forth the claim that the defendant had failed to comply with the terms of the lawful mandate then in effect, and alleged sufficient facts to support the wilfulness of his conduct. The defendant’s assertion that the violation must be dismissed as facially insufficient because it failed to state the city in which the violation occurred is meritless since a violation of an order of protection is not an accusatory instrument, does not result in a criminal conviction, and is, therefore, not subject to the sufficiency requirements for accusatory instruments outlined in CPL article 100. In cases involving nonfamily offenses, as exists here, a violation of an order of protection is governed by CPL 530.13, and, in addition to the power of the court to impose punishment under CPL 530.13 (8), such a violation is punishable as a civil and/or <mask> pursuant to sections 751 and 753 of the Judiciary Law.2 Thus, absent a statutory requirement that the city in which the violation allegedly occurred be specifically noted in the violation, the violation of the order of protection need not be dismissed on that basis.


A conviction for a <mask> may be reviewed in one of two ways, depending upon the circumstances which existed at the time that the adjudication of contempt was made. If the alleged contempt was within the view and presence of the court, then even without the taking of any record, the order of *641adjudication constitutes the entire record and the review, if any, must be by certiorari. On the other hand, if the adjudication of contempt was based upon acts which occurred outside of the view and presence of the court, then the proper remedy for review is by appeal, and under such circumstances the appellate court will determine the appeal based upon not only the order of adjudication, but also upon the minutes and other papers submitted to it.


Section 527 of the Code of Criminal Procedure provides that an appeal from a judgment of conviction “ or other determination from which an appeal can be taken ” stays the execution of the judgment or determination upon filing a certificate of reasonable doubt. It would seem that the mandate of the Court of General Sessions committing the witness to the workhouse for <mask> in refusing to answer questions before the Grand Jury is such a determination within the meaning of section 527. Whether it is an appealable determination is beclouded by the provision in section 752 of the Judiciary Law providing that a mandate punishing a person summarily for a contempt committed in the *70immediate view and presence of the court is reviewable by a proceeding under article 78 of the Civil Practice Act. As stated in the Thirteenth Annual Report of the N. Y. Judicial Council, 1947, at pages 236-237: The decisive factor in determining the method of reviewing the contempt proceedings is whether the contempt, having been committed in the immediate view and presence of the court, has been punished summarily or whether formal proof has been taken with respect to the acts or conduct alleged to constitute contempt. It has been held by the Court of Appeals that the proper method of reviewing a mandate issued after a summary adjudication of a criminal contempt committed during a civil action is by a certiorari proceeding. A prior case had held that the proper method of reviewing a criminal contempt committed during a criminal action and punished summarily was by a certiorari proceeding. The reason for reviewing summary contempts by a certiorari proceeding is that the court or judge has acted upon his own knowledge as to the facts constituting the contempt, and there can be no substitute for his statement of these facts in the mandate of commitment.


This relatively simple factual recitation raises three issues which must be resolved: (1) whether this court can proceed in light of the automatic stay; (2) whether the violation of the order directing the turnover of the automobiles constitutes a <mask>, or a civil contempt of court, or both; and (3) if the court can proceed, and a civil or criminal contempt is found, what is the proper remedy?


In view of the fact that each witness has appeared before me this day with his counsel, has been informed of the court’s determination herein, and each witness — except Carmine Lombardozzi, who has informed the court that he will and did return to the Grand Jury to testify and whose examination is presently incomplete — has advised the court that he will not answer any of the legal and proper interrogatories put to him, I find that each is guilty of a <mask> in violation of subdivision 3, of section 750, of the Judiciary Law, in that each witness in the immediate presence of the court has willfully disobeyed the lawful mandate of this court to answer legal and proper interrogatories; and for such criminal contempt each of the witnesses, except Carmine Lombardozzi, is hereby sentenced to the Civil Prison of the City of New York for a term of 30 days, and in addition thereto to pay a fine of $250, and in the event said fine is not paid, he shall be imprisoned for an additional term of 30 days. Submit order.


The directive issued by the City Court Judge to the newspaper reporter under the circumstances of this case was not a lawful mandate with regard to suppressing reporting of the facts of the arrests. The published article reporting the public court proceedings determining that two youths, unnamed, might be treated as youthful offenders for undisclosed offenses did not violate the court directive or the law. In attempting to hold the newspaper reporter, the newspaper corporation, and its managing editor in <mask>, the City Court is exceeding its authorized powers. Because the nature of this case involves an aspect of freedom of the press a writ of prohibition will furnish a more effective remedy than an appeal after completion of the criminal contempt proceedings.


The restraining order of June 3, 1969, in brief, enjoined and stayed the aforesaid defendants from striking or committing any other act or acts in violation of section 210 of the Civil Service Law of the State of New York (Taylor Law). That order and supporting papers were served personally on each of the defendants, excepting Nancy [sic] Helen Schwartz and Claudine Gaynor on June 3 and 4, 1969. Ernest Fleischman, Esq., of the firm of Delson and Gordon, appeared for said defendants on the return date of the order, June 10,1969. Thereafter the motion for a preliminary injunction was granted (decision of Doeohoe, J., dated June 13, 1969), and a certified copy of that order (entered on June 17, 1969) was personally served on each of the defendants. Plaintiff alleges that the defendants failed and refused to obey and comply with said order of June 3, 1969, but on the contrary they engaged in an illegal strike on the 12th, 13th, 16th and 17th days of June, 1969, in violation of section 210 of the Civil Service Law, for which plaintiff seeks on this motion to punish them for <mask>.


Harold Tompkins, J. The plaintiff Attorney-General of the State of New York (Attorney-General) moves by order to show cause pursuant to article 19 of the Judiciary Law and CPLR 5104 for an order adjudging defendants East Coast Auto Consultants Corp. (East Coast) and its president, defendant Brian Lombardo, guilty of civil and <mask>. The Attorney-General seeks a fine of $865,000 and imprisonment of Lombardo for the criminal contempt and for the civil contempt, a fine sufficient to compensate aggrieved consumers.


The facts in this matter are that on January 3, 1985, petitioner, Patricia Sanford Trice, wás found in civil contempt of court, pursuant to Judiciary Law § 750 (A) (5) and was directed to be imprisoned in the Onondaga County Correctional Facility for a term of 30 days and fined $250. The parties hereto have stipulated to this court that though there has been a finding of civil contempt, in actuality petitioner Trice was found in <mask> pursuant to Judiciary Law § 750 (A) (5); §§ 751, 755.


Correction Law § 804 (1) provides in part that: “Every person confined in an institution serving a definite sentence of imprisonment may receive time allowances as discretionary reductions of the term of his sentence not to exceed in the aggregate one-third of the term imposed by the court.” The sole question which has been presented to this court is whether the aforesaid section is applicable to petitioner’s imprisonment based on her being adjudicated in <mask>. Analyzing first Correction Law § 804, the keystone phrase for the parties’ contentions is “definite sentence”. A “[sjentence” is defined by CPL 1.20 to mean “the imposition and entry of sentence upon a conviction.” Further, a “[c]onviction” is defined pursuant to CPL 1.20 (13) to mean “the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of sdch instrument.” In reviewing the applicable sections of the Judiciary Law, the language contained therein provides that one is “punished” for a criminal contempt and thereafter “committed” or “imprisoned” rather than being convicted and sentenced for a crime with its attendant rights and formalities. Indeed, the court’s power to punish for criminal contempt is clearly not based upon accusatory instruments, but rather exists to uphold and vindicate the authority mandates and decorum of an individual court (People v Paperno, 98 Misc 2d 99 [1979]). Further, as in the case at bar, it may be determined summarily when the contempt is committed in the immediate view and presence of the court (Judiciary Law §§ 751, 755). Thus, from the applicable statutes, it appears that petitioner’s punishment for criminal contempt would not be a sentence for purposes of Correction Law § 804.


It has been stated that it "is well settled that a proceeding to punish for a <mask> arising out of or during the trial of a civil action commences a special proceeding which is separate and distinct from the original underlying action” (Board of Educ. v Pisa, 54 AD2d 821), and that "the separate proceeding to punish for a criminal contempt has been traditionally viewed in New York as a civil special proceeding”, and as a "consequence, the rules of civil rather than criminal procedure should govern the origination of the criminal contempt application” (Department of Hous. Preservation & Dev. v 24 W. 132 Equities, NYLJ, Dec. 11, 1987, at 12, col 1 [App Term, 1st Dept]; see also, Matter of Douglas v Adel, 269 NY 144).


Recognizing the sanctity of a Grand Jury subpoena and the drastic consequences of disobedience, Patel’s counsel contacted the Special Assistant Attorney-General (hereinafter referred to as the special assistant or the prosecutor) responsible for investigation and prosecution of the matter. Counsel expressed his client’s willingness to comply, but since the subpoena commanded the production of voluminous records in a mere six days, he requested additional time for compliance. The special assistant rejected the request and commenced a proceeding to find Patel in <mask>.


Loren N. Brown, J. The plaintiffs have moved for an order punishing the defendants for civil and <mask>, permitting the State and its agents to enter dump sites at issue, without notice, and at any reasonable time for the purpose of allowing the State to fulfill its responsibilities under State law and granting it related relief. Defendant John Rock opposes the motion for a contempt order. Defendant Ross Rock opposes the *233motion for contempt, and cross-moves for an order permitting "reconsideration” of the court’s order, signed on June 27, 1989, and entered on July 5, 1989, finding Ross Rock liable.


“One significant reason for the alarming frequency with which orders of protection are violated is that felony charges of <mask> can be brought only in unduly narrow circumstances * * * prosecutors must be able to bring felony charges for violations of orders of protection as soon as defendants commit criminal actions that jeopardize the safety of domestic violence victims * * *


What chance would there be for a conviction under such indictment, upon the facts in this case ? The appeal from the order allowing the mandamus presented important, and to some extent, difficult questions for determination, and the common council were justified in seeking to have them settled by the Court of Appeals, particularly, as very little delay could result thereby,, and no injury ensue. The learned justice, at the Special Term,, erred in assuming that it was their duty to acquiesce in the previous decisions in- the matter. The statute furnishes a means of review, and it is the privilege of public bodies, as well as private litigants, to avail themselves thereof, and it is often their duty to do so. But if, in the discharge of this duty, they are to be coerced. *331into compliance -with the judgment sought to be reversed and subjected to punishment, notwithstanding that they have been zealous in their efforts to perfect the appeal, so as to avail themselves of the stay, which the law provides, then the remedy by appeal becomes-a farce, and the provisions for a stay, during its pendency, a mockery. In what respect was the appellant guilty of misconduct ? The law provided a method for the final' decision of the question at issue, and that upon taking the steps necessary to secure such decision, the judgment below would be suspended. The body, with which he was acting, directed these steps to be taken. Was it incumbent upon them to escape the commission of a misdemeanor, and a <mask>, to remain in session until their official counsel had taken all these steps ? The question implies its own answer. Having, in good faith, instructed the counsel to the corporation to take the appeal, the members of the common council were not .liable to punishment for failing to-execute the commands of the writ. They were entitled to a reasonable time, after-having determined to appeal, to prepare and serve the papers necessary to render it effectual. To hold otherwise, would be practically to deprive public bodies of the right to-appeal, in cases of this kind, and in effect to nullify the provisions of the statute permitting it. We are, therefore, of the opinion that the appellant did not willfully disobey the writ in question, within the meaning of the statute, and was not guilty of a criminal contempt.


The circuit court's order that Burrow serve a twenty-day jail sentence is *506clearly punitive because it is for a set amount of time that is not related to any requirement of the court that, if complied with, would end the sentence. The $500 fine payable to the court is also purely punitive and in the nature of criminal contempt. The circuit court's award of attorney's fees, however, is in the nature of civil contempt. We addressed the issue of whether the award of attorney's fees is a form of civil or <mask> in Applegate v. Applegate , 101 Ark. App. 289, at 293-94, 275 S.W.3d 682, 685 (2008). We held:


*508For the first time on appeal, Burrow argues that "there is no caselaw, precedent, or legal authority under the criminal contempt statute for the trial court (as the trier of fact) to hold a person in <mask> for not being truthful in a deposition" and that the circuit court violated his "constitutional rights that all criminal defendants are entitled to" by finding him in contempt for giving false testimony in his deposition. Burrow asserts that the proper way to pursue the allegation that he lied in his deposition is to file perjury charges against him and prove the elements of the crime beyond a reasonable doubt. Burrow failed to make these arguments to the circuit court; thus, we are unable to address his argument. This court will not consider arguments that are not preserved for appellate review. Stacks v. Stacks , 2009 Ark. App. 862, at 4, 377 S.W.3d 265, 269. It is incumbent on the parties to raise arguments initially to the circuit court in order to give that court an opportunity to consider them. Balcom , 2016 Ark. App. 313, at 3, 496 S.W.3d at 407.


Charge One alleged that the respondent was convicted of a serious crime within the meaning of 22 NYCRR 691.7 (b). By order dated November 8, 1985, the Honorable Daniel P. FitzGerald, Justice of the Supreme Court, New York County, adjudged the respondent to be in <mask>, an unclassified misdemeanor, based upon his willful disobedience of a lawful order of the court and a course of willful, unlawful, and contumacious behavior in the presence of the court during the case of People v Everett Curry.


Charge Three alleged that the respondent was convicted of a serious crime within the meaning of 22 NYCRR 691.7 (b). In or about May 1982, the Honorable George D. Covington, Justice of the Supreme Court, Bronx County, adjudged the respondent to be in <mask>, an unclassified misdemeanor, based upon his willful, unlawful, and contumacious behavior in the presence of the court during the case of People v Luis Soto.


*214Charge Five alleged that the respondent engaged in conduct prejudicial to the administration of justice in violation of DR 1-102 (A) (5) and conduct that adversely reflects on his fitness to practice law in violation of DR 1-102 (A) (7) (now [8]). During the course of the criminal trial People v Francisco Torres, Also Known as Alfredo Maldonado, the Honorable Gerald Sheindlin, Justice of the Supreme Court, Bronx County, adjudged the respondent to be in <mask>.


Charge Eight alleged that the respondent was convicted of a serious crime within the meaning of 22 NYCRR 691.7 (b). By order dated December 15, 1992, the Honorable Leslie Crocker Snyder, Justice of the Supreme Court, New York County, *215adjudged the respondent to be in <mask>, an unclassified misdemeanor, for intentionally, knowingly, and willfully engaging in disorderly, contemptuous, and insolent behavior, in the immediate view and presence of the court during the case of People v Raphael Martinez.


As to the first issue defendant contends that various correspondence by governmental officials and agencies concerning the new statute (no commitee hearings were conducted),1 as *27well as Governor Mario Cuomo’s memorandum issued upon signing CPLR article 13-A into law (1984 McKinney’s Session Laws of NY, at 3627-3628), indicate that the statute is limited to crimes involving <mask>, white-collar crime and criminal activity involving organized crime. The court finds no such limitation within those memoranda and correspondence.


• an investigating agency's report that a vehicle matching the truck's exact description had been flagged at a border patrol checkpoint for possible involvement in narcotics trafficking; • Villarreal's unusual nervousness; • Villarreal's seemingly rehearsed story; • the fact that Villarreal had not had any cargo in nearly a week, but had nonetheless recently departed in the dead of night from a location near the border, heading northward without any cargo; • the smell of fresh paint emanating from the vehicle, which Cipriani knew to be an indication of hidden compartments and <mask>. Thus, within the first minutes of the stop, Cipriani had several facts within his objective grasp that justified further investigation into the nature of Villarreal's trip. See Derichsweiler , 348 S.W.3d at 914.


In Resendiz , the defendant, a legal permanent resident of the United States, asked his counsel whether his plea to a <mask> charge, an aggravated felony, would affect his legal residency. According to the defendant's petition for writ of habeas corpus, his counsel had assured him at the time he entered his plea he would have " 'no problems with immigration' " except that he would not be able to become a United States citizen. In a declaration submitted by the Attorney General in response to the defendant's petition for writ of habeas corpus, the defendant's trial counsel stated he did not remember what he had actually told the defendant but that it was his custom and practice to explain to noncitizen clients " 'that a guilty plea is likely to [a]ffect ... the client's ability to become a citizen. I also tell these clients that I make the assumption that the federal government is always wanting to deport non-citizen felons. I explain to them they should assume the government has a policy to deport people in their position.' " ( Resendiz , supra , 25 Cal.4th at p. 238, 105 Cal.Rptr.2d 431, 19 P.3d 1171.)


Section 195.223.9 criminalizes <mask> in the second degree if a person possesses or has under his or her control more than 30 grams of methamphetamine. Where the person possesses 90 grams or more but less than 450 grams, the second-degree drug trafficking is a class A felony. Section 195.223.9(2). To establish second-degree trafficking, the State had to prove that Shigemura (1) had conscious and intentional possession of the substances, either actual or constructive, (2) was aware of the presence and nature of the substances, and (3) possessed more than 90 grams of methamphetamine. See *741State v. Zetina-Torres, 482 S.W.3d 801, 806-07 (Mo. banc 2016) (citing Section 195.223.9).


The primary programmatic purpose must be determined by examining “the underlying reason for undertaking it” as opposed to “the particular manner in which the checkpoint was conducted” (Trotter, 28 AD3d at 169-170). Thus, where the Rochester Police Department checked vehicles at a checkpoint for windshield stickers, driver’s licenses and registrations as part of a larger initiative aimed at detecting and deterring violent crime and <mask> in a specific target area, the stop violated the defendant’s Fourth Amendment rights and all items seized from the defendant were properly suppressed (People v Trotter, 28 AD3d 165 [2006], supra).


In 2016, Lyons filed a motion under 18 U.S.C. § 3582(c) to have his sentence reduced pursuant to Amendment 782 to the Sentencing Guidelines. The district court granted the motion and reduced Lyons’s sentence on the <mask> conviction to 120 months. In 2017, Lyons again moved for a sentence reduction under § 3582(c), citing Amendment 750 to the Sentencing Guidelines, which reduced base offense levels for certain drug offenses. The district court denied the motion on the ground that Lyons’s sentence had already been reduced to the statutory mandatory minimum imprisonment term that continued to apply to his drug trafficking offense, such that he was ineligible for a further reduction. After Congress passed the First Step Act (FSA), which made the Fair Sentencing Act’s reduced mandatory minimum sentences for offenses involving cocaine base retroactively applicable to certain defendants, Lyons filed a pro se motion seeking a further sentence reduction under FSA § 404. Thereafter, the Federal Public Defender enrolled as Lyons’s counsel and filed a new motion for a sentence reduction on his behalf. In his counseled motion, Lyons argued that he was eligible for a reduction because the statutory imprisonment range for his drug trafficking offense had been lowered from a range of 10 years to life down to five years to 40 years and that his guidelines range had been reduced to 84 to 105 months of imprisonment followed by four years of supervised release. This revised range was lower than the mandatory minimum sentence that had applied to him prior to enactment of the FSA. Lyons urged the district court to reduce his sentence to 84 months of imprisonment and four years of supervised release on the grounds that the reduction would further the goals of Congress in enacting the FSA and would avoid unwarranted sentencing disparities. He also asserted that such a reduction was otherwise warranted under 18 U.S.C. § 3553(a), given the amount of time that he had already served, his significant postconviction rehabilitation, the skills that he had


words, are considered a continuation of the original law. This rule of interpretation is applicable even though the original Act or section is expressly declared to be repealed.” (citations omitted)). We think such an interpretation of the significance of the strike-and- insert language is especially appropriate with respect to the 1998 enact- ment amending section 924(c)(1). The changes—in particular, the new graduated sentencing scheme distinguishing between the use and the brandishing or discharge of a firearm in the commission of a crime— made it significantly more complicated to parse the various penalties prescribed in the statute. Congress may be understood to have decided, as the canon anticipates, to “serve the causes of convenience and certainty” by setting forth the entire amended statute within the public law itself, rather than by specifying the various amendatory provisions that the code publishers would have to fashion into a coherent whole. For these reasons, we do not believe that Congress’s choice to “strike” section 924(c)(1), and insert a newly organized replacement, evinces an intent to abrogate- and-reenact the entirety of the earlier version of the statute sufficient to overcome the presumption established by the “continuation” canon. We turn next to the three substantive changes that the 1998 amendment did make to the statute, which we described above, in order to determine whether they demonstrate that Congress intended to insulate the “semiau- tomatic assault weapon” language from operation of PSRFUPA’s sunset provision. In our view, they do not. In so concluding, we find it signifi- cant that, although those changes were clearly important, they did not affect the types of firearms to which a ten-year sentence attached. Nor did they alter the basic judgment, embodied in the text that PSRFUPA origi- nally added to section 924(c)(1), that the use of semiautomatic assault weapons should receive the same sentencing treatment as the use of short- barreled rifles and short-barreled shotguns. First, the 1998 enactment specified, in the new subsection (c)(1)(A), that—contrary to the Supreme Court’s decision in Bailey—the federal offense would henceforth cover cases involving not just the more active “use” of firearms, but also possession in furtherance of any crime of violence or <mask> crime. But that change did not alter or affect the 1994 amendment’s specific reference to semiautomatic assault weap- ons. To be sure, after 1998, possession of such weapons in furtherance of


with another who possesses [it] is insufficient” to show possession. Id. In Ochoa, we held that the government presented the jury with sufficient circumstantial evidence from which it reasonably could have concluded that the defendant had constructive posses- sion of ammunition because he exercised dominion and control over the bedroom in which it was located. United States v. Ochoa, 941 F.3d 1074, 1105 (11th Cir. 2019) cert. denied, 140 S. Ct. 2553 (2020). Specifically, the government connected the defendant to the bedroom through “his phones (one of which had on it a photo of Ochoa laying on the bed in the bedroom), personal identification cards, and travel papers bearing his name—all of which were found in the same bedroom as the ammunition.” Id. “The fact that other people had access to or may have also occupied the residence [did] not make [this] evidence insufficient.” Id.; see also United States v. Molina, 443 F.3d 824, 830 (11th Cir. 2006) (concluding sufficient ev- idence supported a defendant’s conviction for possession of a fire- arm in furtherance of a <mask> crime because the firearm was found in the defendant's bedroom and the dresser drawer con- tained her passport). Here, the government presented sufficient evidence at trial that Richards was in constructive possession of the firearms. Rich- ards’s statements to law enforcement indicated that he had knowledge of the firearms in the residence and intended to use them when needed, firearms were discovered in almost every room of the house, and Richards was discovered within reaching USCA11 Case: 21-10695 Date Filed: 01/26/2022 Page: 5 of 8


In Yolanda L., supra , Division Eight of this district found future risk based on evidence that father's <mask> activity would likely reoccur, reasoning that firearms are "tools of the trade" in the "narcotics business." ( In re Yolanda, supra, 7 Cal.App.5th at p. 996, 212 Cal.Rptr.3d 839.) No evidence of drug activity is present in this case, though father was affiliated with a gang. In In re C.V. (2017) 15 Cal.App.5th 566, 222 Cal.Rptr.3d 924, this court suggested that gang activity alone was insufficient for taking jurisdiction of a child. ( Id. at p. 573, 222 Cal.Rptr.3d 924.) Nothing in the record suggests that father's gang activity endangered the child.


Defendant’s assertion that the People failed to produce sufficient evidence to support his conviction is without merit. While executing a search warrant at an apartment which had been observed to be the focal point of <mask> activity, and at which an informant had made a controlled buy, police officers found defendant holding a small amount of crack cocaine, wrapped in a piece of paper with his name and a phone number, later revealed to be that of one of his two pagers, written on it. A paper bag containing many small glassine envelopes, of a type used for packaging crack cocaine for resale, was discovered in the immediate vicinity, as was the larger amount of cocaine—similar in kind to that defendant was holding—which defendant was found by the jury to have constructively possessed. Taken together, these facts support an inference that defendant was involved in the drug-selling activity that had been observed at the apartment, and that he was not merely an innocent bystander, but had knowledge of, and dominion and control over, the cocaine discovered concealed in a false soup can located in a kitchen cupboard just a few feet from where he was sitting (see, People v Tejeda, 73 NY2d 958, 960; compare, People v Headley, 74 NY2d 858, 859).


a predicate crime—in addition to more active uses—became a separate federal offense. But in this respect, the 1998 amendment merely treated semiautomatic assault weapons the same as it treated all other firearms, a general state of equivalence that the statute established even before the 1994 amendment. Nothing in the 1994 PSRFUPA affected this basic statutory equivalence, or altered the fact that semiautomatic assault weap- ons were already “firearms” covered by the description of the conduct prohibited by section 924(c)(1) prior to PSRFUPA’s amendment of the section in 1994. And the same is true for the 1998 amendment. The new subsection (c)(1)(A) sets forth the basic prohibition on the use, carry, or possession of a “firearm,” but, as in the predecessor section (c)(1), it does not refer separately to semiautomatic assault weapons. Second, the 1998 amendment, also in subsection (c)(1)(A), imposed a new graduated sentencing scheme based upon the manner in which the “firearm” is used during and in relation to any crime of violence or <mask> crime. Whereas all such uses were subject to a fixed five-year sentence before 1998, the 1998 amendment established a new baseline sentence of a minimum of five years. The amendment also provided that the “brandishment” and “discharge” of a firearm in relation to such crimes are to be punished by minimum sentences of seven and ten years, respec- tively. But this change, too, did not in any way affect the PSRFUPA’s 1994 amendment of section 924(c)(1). That earlier amendment did not address the appropriate terms of imprisonment for different uses of a “firearm” in the commission of an underlying offense. And the new use- specific sentencing structure that the 1998 amendment added to subsec- tion (c)(1)(A) applies to all “firearms” and does not treat semiautomatic assault weapons separately, or even mention them. In sum, these first two changes Congress made to section 924(c)(1) in 1998 did not affect, let alone abrogate, the only substantive change made by the 1994 amendment. The sole effect of that 1994 amendment was— subject to the ten-year sunset provision—to treat semiautomatic assault weapons as equivalent to short-barreled rifles and short-barreled shotguns for purposes of setting the sentence for their use during and in relation to any crime of violence or drug trafficking crime. Nothing in the establish- ment of the new section 924(c)(1)(A), however, reflects a congressional intention to revisit that earlier change, let alone to repeal the temporal limitation that the sunset provision imposed upon it. Applicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons


In terms of the instant case, the Broadie court found that the mandated life imprisonment sentence in all class A-III drug felonies not only unusual when compared to sentences imposed for similar crimes in other jurisdictions; it also found the sentence severe when compared to sentences for crime within the State, since only murder in the first degree is punished more severely. The court found the legislative scheme did not contravene the cruel and unusual punishment clauses of the State and Federal Constitutions because it found the legislative classification was enacted to enforce the penological goals of deterrence and isolation. Empirical data contained in the Final Report of the Joint Committee on New York Drug Law Evaluation and other authorities cited show that the new drug laws have had no effect on <mask> or drug abuse in this State. The amendment of subdivision 4 of section 70.00 of the Penal Law is a legislative declaration that individualized punishment of a year or less, in appropriate cases, protects the public interest where small scale sellers of narcotics are brought before the bar of justice. To paraphrase the words of Mr. Justice Marshall in Furman v Georgia (supra) to the extent that New York State uses the life imprisonment provisions of the new drug laws to encourage confessions and guilty pleas, such penalties are not being used for punishment purposes. If not used for legitimate punishment purposes, they contravene the cruel and unusual constitutional interdictions.


Beaucoup evidence shows that Crittenden knew he possessed a controlled substance. I’ll start with what should end the matter: Crittenden said as much. When agents confronted him about handing the bag to his wife, Carla Dominguez, he told them that he “thought” or “believed” it contained marijuana. The district court reasoned that, “if anything,” Crittenden’s confession showed merely that he “believed the bags contained marijuana.” So apparently the validity of the verdict rendered by twelve citizens turns on whether the defendant said “I believed” instead of “I knew.” This belief/knowledge distinction defies real life. People don’t use the mens rea terms found in the United States Code when confessing. And they often try to hedge their culpability. The jury recognized Crittenden’s confession for what it was. It’s because of their broader understanding of everyday situations and language that jurors are better positioned to decide the facts than judges trained in the law. As this case shows, we have a proclivity for how-many-angels-can-dance parsing. Crittenden’s wife also admitted Crittenden’s knowing participation in <mask>. The jury heard recordings of her telling the buyer that she was “working with her husband” and mentioning “trafficking marijuana with her husband.” The statements of Crittenden and his wife are direct evidence of his knowledge. Standing alone they are strong evidence of guilt. But wait—there’s more. Most drug cases rely on circumstantial evidence to prove state of mind. See United States v. Cano-Guel, 167 F.3d 900, 904 (5th Cir. 1999). There was plenty of that here. Yet the district court ignored most of it, focusing only on the confession that the court rationalized away. That failure to grapple with other incriminating evidence alone is an abuse of discretion. See Hernandez v. Lynch, 825 F.3d 266, 271–72 (5th Cir. 2016) (holding that


The affidavits submitted in support of the original warrant depicted a fairly sophisticated <mask> operation about which the investigators had learned significant but limited information using other investigative procedures. The informants and undercover officer the investigators had used could not infiltrate the organization and physical surveillance would not secure the evidence necessary to identify and convict all of the conspirators and seize the drugs and proceeds. As in People v Giraldo (270 AD2d 97 [1st Dept 2000]), the application for an eavesdrop warrant in this case was appropriate. To satisfy the requirements for issuance of an eavesdropping warrant, the applicant need not make a showing that every conceivable method of investigation has been tried and failed (although most such methods were, in fact, utilized here). Rather, the requirements are satisfied by establishing the nature and progress of the investigation and the difficulties inherent in the use of normal law enforcement methods in order to attain the ultimate investigative objectives. (People v Brown, 233 AD2d 764 [3d Dept 1996]; also cf., People v Spano, 170 AD2d 996 [4th Dept 1991].) These were not generalized and conclusory statements that other investigative procedures would prove unsuccessful, but rather lengthy and detailed renditions of precisely what procedures were tried without ultimate success. (Cf., United States v Rivera, 198 FRD 48, 50 [WD NY 1999].) Tested in the required practical and commonsense fashion, in the context of the objectives of the investigation, this application was legally *186sufficient. (People v Hafner, 152 AD2d 961 [4th Dept 1989]; People v Campagni, 151 AD2d 1010 [4th Dept 1989]; People v Baris, 116 AD2d 174, 186-187 [4th Dept 1986].)


forbidden by the Supreme Court. Duenas-Alvarez, 549 U.S. at 193. Chamu gives us no reason to disturb the Board’s conclusion that his theory is “highly improbable.” B. Chamu also posits that Florida’s cocaine possession statute is problematic in another way: he says it does not require the state to prove that a defendant knew the possessed substance was illegal. Chamu suggests that the federal immigration statutes at issue “invoke generic offenses” that must be compared to Florida’s statute, and he concludes that knowledge of a substance’s illicit nature is an “essential element” of the generic federal crime of cocaine possession. He argues that Florida’s statute lacks that element and is “completely dissonant with the federal offense”— so it cannot trigger immigration consequences. The argument falls short on a fundamental level. To begin, Chamu misconceives how the categorical approach applies here. As the Supreme Court explained in Shular, that approach has two forms. 140 S. Ct. at 783. When a statute invokes the generic version of a crime—say “burglary” or a “<mask> crime”—then a court must discern “the elements of the offense as commonly understood” and compare them to the ones in the state statute of conviction. Id. (quotation omitted). The mens rea, of course, can be one of those elements. See, e.g., Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1281–82 (11th Cir. 2013). USCA11 Case: 19-13908 Date Filed: 01/26/2022 Page: 15 of 16


unauthorized person. Based on this state charge, Emmitt’s federal probation officer petitioned for revocation of his supervised release because Emmitt had violated the supervised release conditions not to commit another crime and not to possess a firearm. About two months later, on November 20, 2019, Emmitt was again arrested and was charged under Alabama law with <mask>, possession of drug paraphernalia, and carrying a concealed pistol without a permit. In December 2019, the probation officer amended the petition to add violations based on circumstances on the date of his arrest and these new state charges. Specifically, the addendum charged Emmitt with violating conditions prohibiting him from committing another crime, illegally possessing a controlled substance, possessing a firearm, and associating with persons engaged in criminal activity. C. Revocation of Supervised Release At the revocation hearing, Emmitt admitted the violations charged in the petition, and the district court revoked Emmitt’s supervised release. The district court discussed with Emmitt the fact that he faced new firearm and drug-trafficking charges, that those charges were “a separate matter,” and that any agreement he may have with the government about those charges did not bind the district court in the revocation proceedings. Emmitt indicated that he understood. He later stated that he was trying to come to an agreement with the government as to USCA11 Case: 20-13384 Date Filed: 01/31/2022 Page: 4 of 10


Whoever, during and in relation to any crime of violence or <mask> crime . . . , uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug traffick- ing crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiau- tomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. 18 U.S.C. § 924(c)(1) (1994) (emphasis added). Significantly, however, Congress included in the PSRFUPA a sunset provision that limited the temporal effect of the Act. The sunset provision, section 110105(2), stated that “[t]his subtitle and the amendments made by this subtitle . . . are repealed effective as of the date that is 10 years after [PSRFUPA’s effective] date.” Thus, because section 110102(c)(2) clearly was an “amendment made by this subtitle”—namely, an amend- ment to 18 U.S.C. § 924(c)(1)—it would have been “repealed” and ceased to have legal force and effect as of 2004 unless Congress enacted inter- vening legislation that insulated section 110102(c)(2) from the operation of the sunset provision. In 1998, Congress did enact intervening legislation that amended sec- tion 924(c)(1). Congress enacted the legislation in response to Bailey v. United States, 516 U.S. 137 (1995), a Supreme Court decision that inter- preted section 924(c)(1) and was issued one year after PSRFUPA’s en- actment. In Bailey, the Supreme Court considered what it meant to “use” a firearm for purposes of section 924(c)(1). It held that the government had to prove that a defendant “actively employed the firearm during and in relation to the predicate crime” in order to “sustain a conviction under the ‘use’ prong” of the statute. Id. at 150. In response to Bailey, multiple bills were introduced in both houses of Congress to make clear that the “use” of a firearm for purposes of section 924(c)(1) would not require the active employment of the firearm in the commission of a predicate crime. Significantly, many of these bills pro- posed further amendments to section 924(c)(1) that went beyond merely responding to the Court’s interpretation of the term “use.” This legislative activity ultimately resulted in the passage of a 1998 amendment to section


It is a matter of record in New York that the Penal Law enacted in 1965 (eff. Sept. 1, 1967) provided for substantially lessened penalties for drug law violations than were previously in effect (see former Penal Law, § 1751). It cannot be argued that these less -severe methods of1 'dealing with -<mask> provided -a sufficient deterrent as the problem in this State continued to increase. As former Governor Rockefeller pointed out in his annual message to the Legislature in 1973, educational and treatment pr ograms supported by large funding -also failed to ameliorate the problem (see Annual Message of the Governor, McKinney’s -Session Laws of 1973, pp. 2317-2322). In view of the failure of nonpenal measures and less -severe penalties, this court *78cannot find that the punishment now provided is “ excessive ” or “ unnecessary ”.


[S]o long as the computer search is limited to a search for evidence explicitly authorized in the warrant, it is reasonable for the executing officers to open the various types of files located in the computer's hard drive in order to determine whether they contain such evidence. United States v. Richards , 659 F.3d 527, 540 (6th Cir. 2011) (citation omitted). As previously stated, the record contains no evidence officers exceeded the scope of the warrant. Likewise, it is clear officers were searching only for evidence tying Applegate to <mask>. In so doing, they uncovered clear, unequivocal and immediately apparent evidence of Applegate's possession of child pornography. This evidence was found in the same types of files which could reasonably have contained evidence related to drug trafficking. The officers properly limited their search in conformity with the warrant and, as the trial court correctly found, did not conduct an impermissible general search.


Sadler’s arguments do not undermine these key facts. Sadler points out that Alexander never saw Sadler involved with any “Polo” deals, and Tempo never used Sadler as a runner. But this evidence does not mean that Sadler could not have knowingly and intentionally joined the “Polo” conspiracy, nor does it preclude his involvement in other ways. See Martinez, 430 F.3d at 332–33. The combination of Sadler’s desire for leadership within “Polo,” his possession of <mask> paraphernalia, and his possession of the “Polo” phones provided sufficient evidence for the jury to conclude beyond a reasonable doubt that Sadler was a co-conspirator.


The final issue before the court is whether there exists “good cause” to grant the City a judgment of possession for Mrs. Omolukum’s apartment based on illicit <mask>. At the outset it should be noted that at trial, the City did not claim that Mrs. Omolukum was personally involved in such activity. However, as the City points out in its brief, it is not necessary that a named tenant be personally involved in illicit narcotics sales in order for her to lose her apartment. (Riverview Apts. v Guzman, NYLJ, Feb. 13, 1991, at 21, col 2 [App Term, 1st Dept].) Neither is it necessary that such sales take place inside the subject apartment. (City of New York v Rodriguez, 140 Misc 2d 467 [Civ Ct, NY County 1988] [holding that sales which take place in front of an apartment building provide grounds for eviction].) Finally, the fact that the person who actually sold the illicit drugs no longer resides in the subject apartment does not abate the proceeding. (New York County Dist. Attorney v McDaniels, NYLJ, May 24, 1991, at 22, col 4 [Civ Ct, NY County].) However, where a named tenant is not claimed *801to be personally involved in any illegal trade, the City must, as it concedes, demonstrate the existence of a “nexus” between such trade and the subject premises. (Marwyte Realty Assoc. v Valcarcel, 150 Misc 2d 1044 [App Term, 1st Dept].) In determining this, the court must inquire whether the evidence shows that “the acts and conduct complained of warrant the inference of acquiescence in an occupancy contemplating the prohibited purposes”. (City of New York v Goldman, 78 Misc 2d 693, 696-697 [Civ Ct, NY County 1974].)


§ 841(a)(1), (b)(1)(A)(iii), and possession of a firearm during that offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). As part of the plea agreement, the Government agreed not to proceed on a previously filed information under 21 U.S.C. § 851(a) seeking an enhanced sentence under § 841(b)(1)(A)(i) based on Lyons’s previous conviction of a drug felony. 1 The Government also agreed not to file any additional charges against Lyons. See Fed. R. Crim. P. 11(c)(1)(A). In return for the Government’s concessions, Lyons agreed to cooperate with the Government and to waive his right to appeal or collaterally attack his convictions or sentences. At rearraignment, the district court accepted Lyons’s guilty plea but deferred acceptance of the plea agreement to sentencing. See Fed. R. Crim. P. 11(c)(1)(A), (c)(3)(A) (prescribing procedures for entry and acceptance of plea agreements where the Government agrees to dismiss extant charges or not bring others); see also U.S.S.G. § 6B1.2(a), p.s. At sentencing, the district court accepted the plea agreement and sentenced Lyons to 140 months of imprisonment on the <mask> conviction, the middle of the advisory guidelines range, and a consecutive term of 60 months for the firearms conviction. It also imposed concurrent five-year terms of supervised release. Though it did not pursue the § 851 enhancement, the Government did not move to dismiss the § 851 enhancement information that it had previously filed, and the district court did not enter an oral or written order expressly dismissing it. Lyons did not object to the Government’s failure to request dismissal of the § 851 information, and he did not file a direct appeal.


offenses. Most Defendants pleaded guilty. Only Tempo and Sadler proceeded to trial. The trial lasted nineteen days, and the witnesses included “Polo” customers, law enforcement officers, paramedics, acquaintances, medical and forensic experts, and one of the alleged co-conspirators (and co-Defendants). The government also introduced physical evidence from surveillance operations and property searches. This evidence tells the story of a sophisticated and well- organized <mask> scheme called “Polo.” The government alleges that Tempo led this operation and that Sadler—Tempo’s half-brother—participated.


Battlefield experience gained from the war on drugs has prompted the courts to change their view on what constitutes probable cause. The jurisprudence in the area of observations of street drug transactions, for example, “has moved beyond such niceties as distinctions based on the color or degree of opacity of the envelope to the point where the visual identification of the object exchanged for money is merely one element in the totality of the circumstances to be considered in any probable cause assessment.” (People v Graham, supra at 59, quoting People v Shaw, 193 AD2d 390 [1st Dept 1993] [internal quotation marks omitted].) The courts have applied evolving tests to determine the “hallmark” of a drug transaction. A glassine envelope went from a mere “telltale sign of heroin” to the “hallmark of an illicit drug exchange.” (People v McRay, supra at 604 [internal quotation marks omitted].) Similarly, the tinfoil packet was soon recognized as the cocaine analogy of the glassine. (People v Balas, 104 AD2d 1039 [2d Dept].) In the mid-1980’s, with the advent of crack/cocaine, the plastic vial joined the glassine envelope and tinfoil packet as a hallmark of drug activity. (People v Thomas, 227 AD2d 351 [1st Dept 1996]; People v Cummings, 194 AD2d 418 [1st Dept 1993].) Over these two decades of increased <mask>, the courts realized that they cannot operate “in a vacuum” and cannot ignore developing modes and techniques of drug trafficking and use.


trafficking crime or a crime of violence and possessed a firearm in furtherance of [a] <mask> offense or a crime of violence.” The trial court instructed that the government could prove Wright committed the crime either way, but that the jury needed to “unanimously agree upon the way in which [Wright] committed the violation.” As to Count 4, the jury returned a general verdict and did not indicate which of the charged predicate offenses it relied on. The district court sentenced Wright to 240 months’ imprisonment on Count 1 and 360 months imprisonment on Counts 2, 3, and 5, all to be served concurrently. As to Count 4, the district court imposed a consecutive 60-month sentence, for a total sentence of 420 months’ imprisonment. C. Direct Appeal and First § 2255 Motion Wright filed a direct appeal but did not challenge the validity of the predicate offenses supporting his § 924(c) conviction on Count 4 or argue that any part of § 924(c) was unconstitutionally vague. On December 19, 2007, this Court affirmed Wright’s convictions and sentences. See United States v. Reed, 259 F. App’x 289 (11th Cir. 2007). In 2009, Wright filed his first § 2255 motion raising numerous claims, none of which are relevant to this appeal. Wright’s § 2255 motion was denied on the merits, and both the district court and this Court denied Wright’s requests for a certificate of appealability. USCA11 Case: 20-14869 Date Filed: 01/14/2022 Page: 5 of 22


Information in the affidavit, which was obtained both from Hovis and the investigation, established probable cause to believe that Reed had engaged in <mask> and that his residence was likely to contain evidence of his ongoing criminal activity. Detective Morgan’s independent observations of Hovis leaving Reed’s residence and approaching the vehicle immediately before finding heroin and hydrocodone on Hovis corroborated Hovis’ claim that evidence of a crime would likely be found at the residence. Hovis admitted to purchasing the heroin from Reed and possessing it. Hovis provided first-hand information about Reed selling heroin that Reed kept in a small container inside his pocket. The affidavit was sufficient to sustain the warrant.


Arebalos asserts he was unaware at the first hearing of "extensive evidence regarding the regional narcotics task force surveillance" of him. But, beyond speculation, Arebalos does not explain-and nothing in the record shows-what this evidence was, what was allegedly new about it, and how it was material to the suppression motion. Without such details, Arebalos's claim fails. Arebalos focuses on Adelmann's motivation for stopping Arebalos's tractor-trailer, but the trial court could reasonably find that Arebalos's counsel knew prior to the first suppression hearing that Adelmann's motivation was to investigate Arebalos for <mask>. Arebalos's counsel therefore knew *194enough to articulate the potential relevance of his leading question, which Arebalos asserts was to explain the reasons for the stop, and pursue it and similar topics at the first suppression hearing.3 He therefore had the opportunity to present these arguments at the time of that hearing; he simply did not do so.


The instant case is similar to State ex rel. Taylor v. Moore, 136 S.W.3d 799 (Mo. banc 2004). In State ex rel. Taylor, the defendant pleaded guilty to <mask> and the plea agreement provided that defendant be placed in long-term treatment pursuant to Section 217.362. Taylor, 136 S.W.3d at 801. However, like here, after sentencing, the DOC determined that defendant was ineligible for the program. Id. The Missouri Supreme Court noted that the statute requires the sentencing judge notify the DOC before sentencing someone to long-term treatment and determined that defendant was entitled to habeas relief because the trial court erred in sentencing him without first verifying his eligibility for the treatment program. Id. The Court then added that "if [the defendant] had known he was ineligible for [the treatment program], he would have rejected the plea agreement and gone to trial. He expected to serve less than two years ... but now serves lengthy sentences." Id. at 802.


There are, at present, three nightclubs operating on the block on which the premises is located. Venture proposes to open a *269nightclub with a capacity to accommodate 300 to 400 people, which will serve food, and feature both live and recorded music. The club will be open Wednesday through Sunday from 9:00 p.m. until 3:30 a.m. The nightclub will be located on the premises recently vacated by another nightclub, known as Cheetah, which petitioners label “notorious” for its excessive noise, milling crowds, honking taxis, <mask>, and violent episodes, including, allegedly, a shooting. (Affirmation of urgency at 2.) Petitioners, who include local residents, community organizations, as well as a New York State Senator and a member of the New York City Council, claim that the neighborhood is already oversaturated with bars and nightclubs, and express their concern that the new club will be just as disruptive to the lives of the residents of the area as was Cheetah. Consequently, they oppose the Authority’s decision to bestow a liquor license on Venture.


This leaves Mendoza’s charges for conspiracy to distribute methamphetamine and RICO conspiracy. We concluded above that the government presented insufficient evidence to justify those two convictions. So, by the same token, we conclude that the government offered insufficient evidence to prove that Mendoza committed either of those two crimes as an “underlying crime” of <mask> or violence for the purposes of § 924(c). Hunter, 887 F.2d at 1003. Of course, the government need not “separately


The evidence showed that Appellant engaged in <mask> with G.B. while she was pregnant with R.A.G., and they were both arrested. As a result, Appellant was incarcerated for the first four years of R.A.G.'s life and R.A.G. lived with Appellant's mother for about a year and a half until G.B. was released from custody. Following his release from prison, Appellant was deported to Mexico. It is understandable that Appellant, as a result of his deportation, has been unable to visit with R.A.G. in person in the United States, but the evidence showed that Appellant has not had any other type of contact with R.A.G. during the years following his deportation. According to Appellant's sister, G.A., Appellant is a college professor in Mexico, and he has maintained the same telephone number and Facebook account since his release from prison in 2012, yet he made no effort to contact R.A.G. even after he learned that the child had been removed from G.B.'s care. Appellant has been absent from R.A.G.'s life to the extent that R.A.G. did not even know that Appellant is his father. While incarceration and deportation are not sufficient, standing alone, to support a finding under Section 161.001(b)(1)(E), these facts are part of Appellant's overall course of conduct. We conclude that the evidence is legally and factually sufficient to establish a firm conviction or belief in the mind of the trier of fact that Appellant engaged in conduct that endangered R.A.G.'s physical or emotional well-being under Section 161.001(b)(1)(E). See Walker v. Texas Department of Family and Protective Services , 312 S.W.3d 608, 617-18 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) ; In re U.P. , 105 S.W.3d at 236. Issue Two is overruled. Because the evidence is sufficient to support one of the four predicate termination grounds found by the trial court, it is unnecessary to address Issues One, Three, and Four.


Plaintiffs on the other hand argue that their appearance in the illustration is virtually identical to the photograph taken; that they were identified by friends as appearing in the illustration and that the illustration held them up to contempt, ridicule, and scorn in their community since they were depicted as involved in <mask>. They also assert that the photo and illustration were used without their consent.


words, are considered a continuation of the original law. This rule of interpretation is applicable even though the original Act or section is expressly declared to be repealed.” (citations omitted)). We think such an interpretation of the significance of the strike-and- insert language is especially appropriate with respect to the 1998 enact- ment amending section 924(c)(1). The changes—in particular, the new graduated sentencing scheme distinguishing between the use and the brandishing or discharge of a firearm in the commission of a crime— made it significantly more complicated to parse the various penalties prescribed in the statute. Congress may be understood to have decided, as the canon anticipates, to “serve the causes of convenience and certainty” by setting forth the entire amended statute within the public law itself, rather than by specifying the various amendatory provisions that the code publishers would have to fashion into a coherent whole. For these reasons, we do not believe that Congress’s choice to “strike” section 924(c)(1), and insert a newly organized replacement, evinces an intent to abrogate- and-reenact the entirety of the earlier version of the statute sufficient to overcome the presumption established by the “continuation” canon. We turn next to the three substantive changes that the 1998 amendment did make to the statute, which we described above, in order to determine whether they demonstrate that Congress intended to insulate the “semiau- tomatic assault weapon” language from operation of PSRFUPA’s sunset provision. In our view, they do not. In so concluding, we find it signifi- cant that, although those changes were clearly important, they did not affect the types of firearms to which a ten-year sentence attached. Nor did they alter the basic judgment, embodied in the text that PSRFUPA origi- nally added to section 924(c)(1), that the use of semiautomatic assault weapons should receive the same sentencing treatment as the use of short- barreled rifles and short-barreled shotguns. First, the 1998 enactment specified, in the new subsection (c)(1)(A), that—contrary to the Supreme Court’s decision in Bailey—the federal offense would henceforth cover cases involving not just the more active “use” of firearms, but also possession in furtherance of any crime of violence or <mask> crime. But that change did not alter or affect the 1994 amendment’s specific reference to semiautomatic assault weap- ons. To be sure, after 1998, possession of such weapons in furtherance of


undisputedly valid <mask> predicates. 6 Thus, Wright’s indictment charged him with violating a valid federal statute and the indictment defect Wright points to here was nonjurisdictional. See Brown, 752 F.3d at 1354. Moreover, this Court has repeatedly held that a Davis claim like Wright’s—in which the § 924(c) count charges both valid and invalid predicates—can be procedurally defaulted. See Granda, 990 F.3d at 1286-92; Parker, 993 F.3d at 1262. D. Wright Cannot Overcome His Procedural Default On direct appeal in 2007, Wright did not argue that his § 924(c) conviction was invalid because the § 924(c)(3)(B) residual clause was unconstitutionally vague. Thus, like the petitioners in


First, defendant has failed to make financial disclosure, and failed to offer a legitimate derivation for the money. Secondly, he has been convicted of a crime, and thirdly, the government *871has made a prima facie showing that defendant’s conviction for possession is probably and reasonably related to <mask>, of which the money is the proceeds. Furthermore, "drug trafficking”, the alleged criminal activity, poses serious threats to the safety of all society and the quality of our lives.


We also disagree with the appellant’s argument that, even if the officer’s testimony is accepted, it fails to establish the existence of probable cause. When a police officer stationed in a location known for <mask> observes a suspect participate in a rapid series of hand-to-hand transactions, involving the exchange of money for a small object, there is probable cause to believe that the suspect is selling narcotics (see, e.g., People v Little, 204 AD2d 351; People v Jones, 186 AD2d 681; People v Owens, 155 AD2d 696; see also, People v Bittner, 97 AD2d 33).


Canady was murdered by a gunman in his barbershop in broad daylight at approximately 11:30 a.m. on May 9, 2014. The prosecution contended Grant, who led a <mask> operation, plotted revenge against Canady for stealing marijuana and sleeping with Grant's girlfriend, Talya Martin, over a year before the murder. According to prosecutors, Grant commissioned defendants Johnson and Guthrie, and other uncharged and unknown individuals, to murder Canady.


Continuing the Apprendi analysis, in Harris v United States (536 US 545 [2002]), the Supreme Court distinguished between factors extending the minimum, as distinguished from the maximum, sentence. (Id. at 566.) It reviewed the federal <mask> statute, which extended the minimum sentence if the court found that a gun had been “brandished” during the crime. Sustaining the conviction, the Court held that although factors extending the outer, or maximum, parameters of a sentence are elements which must be pleaded in (federal) indictments and proved to a jury, those factors extending the minimum penalty are sentencing considerations, properly left to the court alone. (Id. at 568.)


To that end, Cipriani diligently pursued the permissible lines of inquiry. He probed Villarreal about his trip, asking about his origin, destination, purpose, and other relevant details. While waiting for dispatch to retrieve a report on Villarreal's border crossings, he asked about Villarreal's lack of cargo. To verify his answers, Cipriani spent time consulting Villarreal's logbooks, which the officer had a right to do. See Kersey v. Wilson , 69 S.W.3d 794, 798 (Tex. App.-Fort Worth 2002, no pet.) (citing 49 C.F.R. § 395.8(k)(2) ). Cipriani quickly frisked Villarreal and inspected the vehicle for safety violations, stating that he anticipated giving Villarreal a warning. Cipriani then directly asked Villarreal about his arrest record and any criminal activity he may have been involved in, such as <mask>. Within twenty minutes, he had obtained Villarreal's consent to search his vehicle to check for possible narcotics. We therefore find no merit in Villarreal's complaint about Cipriani's investigation, which was diligent and proportionate to the suspicious circumstances before him. See Kothe , 152 S.W.3d at 64.


The following situations are known to exist in The Bronx: landlords on their own initiative or upon request of the Bronx District Attorney bring eviction proceedings against illegal drug dealers at considerable cost to them for legal services. After an illegal drug dealer is evicted he/she remains in the same building by (a) buying another apartment from another tenant, or (b) paying a tenant in another apartment daily for the use of said apartment, or (c) intimidating and coercing a tenant to permit the criminals to use his/her apartment for illegal <mask>. Some of them take over a store or a one-family house and operate their illegal trade from there.


Battlefield experience gained from the war on drugs has prompted the courts to change their view on what constitutes probable cause. The jurisprudence in the area of observations of street drug transactions, for example, “has moved beyond such niceties as distinctions based on the color or degree of opacity of the envelope to the point where the visual identification of the object exchanged for money is merely one element in the totality of the circumstances to be considered in any probable cause assessment.” (People v Graham, supra at 59, quoting People v Shaw, 193 AD2d 390 [1st Dept 1993] [internal quotation marks omitted].) The courts have applied evolving tests to determine the “hallmark” of a drug transaction. A glassine envelope went from a mere “telltale sign of heroin” to the “hallmark of an illicit drug exchange.” (People v McRay, supra at 604 [internal quotation marks omitted].) Similarly, the tinfoil packet was soon recognized as the cocaine analogy of the glassine. (People v Balas, 104 AD2d 1039 [2d Dept].) In the mid-1980’s, with the advent of crack/cocaine, the plastic vial joined the glassine envelope and tinfoil packet as a hallmark of drug activity. (People v Thomas, 227 AD2d 351 [1st Dept 1996]; People v Cummings, 194 AD2d 418 [1st Dept 1993].) Over these two decades of increased <mask>, the courts realized that they cannot operate “in a vacuum” and cannot ignore developing modes and techniques of drug trafficking and use.


In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). In United States v. Nixon, the Supreme Court explained that this privilege protects “the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking” by ensuring that the President and his advis- ers are “free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” 418 U.S. at 708. The privilege for presidential communications is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Id. The report at issue is a confidential communication to the President containing a Cabinet Secretary’s advice on decisions delegated by statute to the President—whether automobile and automobile-part imports “threaten to impair the national security” and whether they should be adjusted to remove that threat. 19 U.S.C. § 1862(b)(3)(A). The report is therefore a core presidential communication. See, e.g., Loving v. Dep’t of Def., 550 F.3d 32, 39 (D.C. Cir. 2008) (“easily” holding that “memo- randa from the Army and Defense Secretaries directly to the President advising him” on his statutory review of a court-martial death sentence “fall squarely within the presidential communications privilege”). The presidential communications privilege applies to the report in its entirety. See Sealed Case, 121 F.3d at 745–46. This conclusion is not affected by the fact that the report reflects the exercise of statutory authority delegated to the President pursuant to Congress’s constitutional powers to impose “Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cls. 1, 3. The presidential communications component of execu- tive privilege protects the President’s power to faithfully execute all of the laws. Communications related to the President’s independent constitu- tional functions may raise “particularly strong” confidentiality concerns, Assertion of Executive Privilege Concerning the Dismissal and Replace- ment of U.S. Attorneys, 31 Op. O.L.C. 1, 2 (2007) (Clement, Act’g A.G.), but the privilege applies equally to communications concerning the execu- tion of statutes, see, e.g., Assertion of Executive Privilege Over Communi- cations Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver Request, 32 Op. O.L.C. 1, 3 (2008) (Mukasey, A.G.); Assertion of Executive Privilege for Memorandum to the President Concerning Efforts to Combat <mask>, 20 Op. O.L.C. 8, 8 (1996) (Reno, A.G.).