“ Charge III: Violation of the 93d Article of War “ Specification I: ‘ In that Private Bernard j. kadin, Company R, 1st Regiment, 9301 Technical Service Unit, Detachment No. 3, Army Service Forces Training Center (Ordnance), Aberdeen Proving Ground, Maryland, with intent to defraud The Western Union Telegraph Company at Aberdeen Proving Ground, Maryland, did, at Aberdeen Proving Ground, Maryland, on or about 17 December 1945 forge the signature of Private Norman Fountain upon a Western Union Money Order’.” (Copy of Money Order on original of army papers.) The 93d Article of War reads: “ Any person subject to military law who commits manslaughter, mayhem, arson, burglary, housebreaking, robbery, larceny, <mask>, perjury, forgery, sodomy, assault with intent to commit any felony, assault with intent to do bodily harm with a dangerous weapon, an instrument, or other thing, or assault with intent to do bodily harm, shall be punished as a court-martial may direct. ’ ’


As a general rule, the liability of a surety on a bond which is plain and unambiguous is governed, like any other contract, by the intention of the parties as expressed in the instrument. However, in determining the legal effect of a statutory bond such as is here before the Court, certain rules of construction are to be considered. A statutory bond will be reviewed in the light of the statute creating the duty to give security. It will be generally held that the provisions of the statute and regulations will be read into the bond. Maryland Casualty Co. v. United States , 251 U.S. 342, 40 S.Ct. 155, 64 L.Ed. 297 (1919) ; Whattoff v. United States , C.A. 8, 1966, 355 F.2d 473 ; Jones v. United States , C.A.8, 1951, 189 F.2d 601. So also, if a statutory bond contains provisions which do not comply with the requirements of law, they may be eliminated as surplusage and denied legal effect. Fort Smith Structural Steel Co. v. Western Surety Co. , W.D.Ark., 1965, 247 F.Supp. 674 ; 12 Am.Jur.2d, Bonds § 26. American Cas. Co. of Reading, Pa. v. Irvin , 426 F.2d 647, 650 (5th Cir. 1970). Kentucky has applied this approach, but only to public official bonds and not in recent years. Bankers' Surety Co. v. City of Newport , 162 Ky. 473, 172 S.W. 940, 941 (1915) (surety on elected treasurer's bond required to pay even though city failed to timely report <mask> because purpose of required bond was to protect government, not surety). We decline to extend this doctrine to performance bonds under the facts before us. Here, the state and City had legislation in place to protect the government, but it was ignored. Because no one paid Central Rock in conformity with its contract with JAH and Western made payment a condition of the bonds, Western cannot be liable to Governmental Entities under the bonds absent Central Rock having been paid.


. The Cannon opinion was careful to note that "we do not, of course, say that Members of Congress or their aides may defraud the Government without subjecting themselves to statutory liabilities.” (United States ex rel. Joseph v Cannon, 642d 1373, 1385.) The problem presented in Cannon was that representational activities of a legislator and his or her staff necessarily involve political aspects. This distinguishes Cannon from other cases in which Congressmen were prosecuted for paying legislative salaries to aides who performed only personal services (United States v Diggs, 613d 988 [DC Cir 1979]) or no service (Bramblett v United States, 348 US 503 [1955]; United States v Diggs, supra, at 1002; People v Hochberg, 87 Misc 2d 1024 [Sup Ct, Albany County 1976]). Also distinguishable are cases involving government officials who have no official representational function. (Cf., e.g., Board of Chosen Freeholders v Conda, 164 NJ Super 386, 396 A2d 613, 616-617 [1978] [Surrogate, although elected, could not use staff for political errands]; United States v Pintar, 630d 1270, 1281-1282 [8th Cir 1980] [<mask> conviction for salaries of secretaries in administrative agency assigned exclusively to political campaign work].)


The motion papers, as well as the testimony taken by the magistrate (See People v. Klinger, 164 Misc. 530) and that before the grand jury show that the prosecution charges the defendant with the felonious conversion or <mask>, upon the expiration of a lease, of the moneys deposited as security for the performance of the conditions of such lease, made by the Klinger & Company, Inc., of which the defendant is the treasurer, to the complainant, who claims he has become entitled to the return of his deposit at the end of the term for which it was given, he having fully complied with all the conditions of said lease.


Curiously, civil and criminal cases diverge in evaluating the trespass element. Civil conversion and larceny both require trespass. ( Moore v. Regents of University of California (1990) 51 Cal.3d 120, 126, 271 Cal.Rptr. 146, 793 P.2d 479 [conversion requires interference with plaintiff's ownership or right of possession]; Davis , supra , 19 Cal.4th at p. 305, 79 Cal.Rptr.2d 295, 965 P.2d 1165 [larceny requires a trespassory taking].) <mask> does not. ( Vidana , supra , 1 Cal.5th at p. 639, 206 Cal.Rptr.3d 556, 377 P.3d 805 [embezzlement, unlike larceny, involves " 'an initial, lawful possession of the victim's property, followed by its misappropriation' "].) A sales agent who pockets sales proceeds commits conversion of the principal's funds. ( Fischer v. Machado (1996) 50 Cal.App.4th 1069, 1073, 58 Cal.Rptr.2d 213 [rejecting claim that principal had no specific right to funds received by agent].) Yet that same agent commits embezzlement , not larceny, because the initial taking is deemed lawful (non-trespassory). ( Frazier , supra , 88 Cal.App.2d at p. 103, 198 P.2d 325.)


In support of treating larceny and <mask> as separate offenses, the Vidana court observed they "have different elements," "neither is a lesser included offense of the other," and they are found in "self-contained" statutes. ( Vidana , supra , 1 Cal.5th at p. 648, 206 Cal.Rptr.3d 556, 377 P.3d 805.) On the other hand, the court observed that the Legislature enacted section 490a, which provides that any statute that " 'mentions larceny, embezzlement, or stealing ... shall ... be hereafter read and interpreted as if the word "theft" were substituted therefor.' " ( Vidana , at p. 648, 206 Cal.Rptr.3d 556, 377 P.3d 805, quoting § 490a.) The court concluded "the obvious intent of this statute ... was to create a single crime of theft." ( Vidana , at p. 648, 206 Cal.Rptr.3d 556, 377 P.3d 805.) The court also noted larceny and embezzlement "generally have the same punishment." ( Id. at pp. 648-649, 206 Cal.Rptr.3d 556, 377 P.3d 805.) On balance, the court concluded larceny and embezzlement "are simply different ways of describing the behavior proscribed by those statutes." ( Id. at p. 649, 206 Cal.Rptr.3d 556, 377 P.3d 805.) Consequently, the Supreme Court affirmed the striking of the defendant's larceny conviction. ( Id. at p. 651 & fn. 18, 206 Cal.Rptr.3d 556, 377 P.3d 805.)


Brady, J. The plaintiff’s assignor, E. B. Kinshimer, was employed by the defendant as his agent, to coliect the rent of premises on Madison avenue, in this city. On the fifth of Kovemher, 1857, as such agent, he received a check for three hundred and fifty dollars from the defendant’s tenant, had it cashed, and used the proceeds in the payment of his own debts. On the fifth of December, 1857, having prior thereto endeavored to obtain payment of the sum named, from Kinshimer, and having commenced an action for the recovery the defendant also procured a warrant for his arrest on a charge of <mask>, and upon an affidavit in which the defendant alleged that Kinshimer. had acted as his servant in collecting rents, and had collected and embezzled the sum named. On the day the warrant was issued, the defendant and an officer named Spicer, proceeded to the vicinity of the residence of Kinshimer, where, about four or five o'clock P. M., he was arroste.d, almost immediately put into one of the Fourth avenue cars, and taken in that mode toward the Centre street prison, in custody of Spicer, and accompanied by the defendant. While thus in custody, and as he says, through fright and fear of being locked up in the Tombs, he let the defendant have his watch. The testimony is conflicting as to the facts and circumstances attending the delivery of the watch, but it is not disputed that the watch was offered by Kinshimer to the defendant, and accepted by the defendant, while Kinshimer was in custody under the warrant aforesaid, and soon after lii's arrest. There is also evidence in the case tending to establish that the defendant accepted the watch only in part settlement of che civil claim, without relinquishing, or expressing any intention of abandoning the criminal complaint, And it appears that that complaint after a hearing before the *74magistrate who granted the warrant, was by him dismissed. The judge in the Court below charged the jury that the arrest was illegal, inasmuch as Kinshimer was the agent, and not the servant, of the defendant, within the meaning or spirit of the statute defining or declaring the crime of embezzlement, hut that if they believed that Kinshimer voluntarily gave the watch to the defendant, the defendant was entitled to a verdict; if they believed he did not voluntarily deliver it to the defendant, then their verdict must he for the plaintiff. To the charge there was but one exception which •was taken by the plaintiff, and to that part of it in which the jury were instructed, that if the watch was voluntarily given, the verdict must he for the defendant. The plaintiff’s counsel, however, made three requests of the Oourt to charge as follows: . _


It didn't take long. Just a few months later, the Court of Appeal for the First District, Division Two addressed one variation of the issue in People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150, 90 Cal.Rptr.2d 885 ( Stanfill ). In Stanfill , the defendant stood accused of felony <mask> of public funds under section 504 alleged to have happened over the course of several years. The same statute provided the offense was a misdemeanor where the embezzled funds were not public or came to less than $400. (§ 504.) After trial, Stanfill requested standard jury instructions on the lesser included misdemeanor offense and general instructions on the statute of limitations. ( Stanfill , at p. 1142, fn. 1, 90 Cal.Rptr.2d 885.) Ultimately, the court instructed the jury they could find Stanfill guilty of violating section 504 "if the proof shows beyond a reasonable doubt that he committed any one or more of the acts between the dates of August 6, 1993 and August 5, 1996" and "where a temporary use of property 'aggregates in excess of $400 in any period of twelve consecutive months between August 6, 1993 and August 5, 1996.' " ( Id. at p. 1143, 90 Cal.Rptr.2d 885.) The court did not mention the one-year limitation period for the misdemeanor. The jury acquitted Stanfill of the felony offense, but found him guilty of the misdemeanor offense. ( Ibid. ) Stanfill then turned around and appealed the misdemeanor conviction on the ground the trial court had misinstructed the jury by telling them they could convict him of the lesser included misdemeanor without informing them of the one-year limitations period applicable to that offense. ( Id. at pp. 1142-1144, 90 Cal.Rptr.2d 885.)


Yet respondents admit their failure to conduct even the most rudimentary background investigation upon any of these licensees’ most recent applications, which at minimum would have disclosed the prosecutions against Donovan and Fricione for <mask>, theft, and misapplication of DOE property associated with their bid rigging. This disclosure easily would have led to disclosure of the scheme in which all eight licensees were implicated, for which the Special Commissioner of Investigation or DOE recommended the termination from employment of seven, and based on which DOE removed the eighth, Katz, from his supervisory position. The misconduct by Lombardi, Mulvihill, and Schmeidel also precipitated their placement on a list of former employees ineligible for future employment. Even if nothing in any of these eight licensees’ applications on its face prompted an investigation, as respondents themselves point out, their own regulation, referring to the HPBOE license, requires that DCAS “or the investigating agency, as the case may be, shall conduct an investigation of each candidate to determine the candidate’s fitness and qualification for the license.” (55 RCNY 11-02 [h] [1] [emphasis added]; see verified answer ¶ 28.)


Kaufman challenges the sufficiency of the evidence supporting his conviction for grand theft of personal property belonging to Emmet. He contends there was no theft because Emmet exercised his right of recourse. To the extent any crime occurred, he argues it was either theft by false pretenses as to Reinicke , or perhaps <mask> as to Emmet, but neither theory was included in the jury instructions.


For his fourth point on appeal, Swanigan contends that the circuit court abused its discretion in refusing to allow him to cross-examine one of the State's witnesses about his alleged <mask>. At a pretrial hearing, Swanigan argued that he should be allowed to question Michael Wright, the Garland County sheriff's deputy who acted as evidence custodian at the time of the shooting, about why he was no longer employed as a law-enforcement officer. At the time of the trial in this case, Wright was under investigation and had admitted to embezzling money from the Arkansas Narcotics Officers Organization. The court ruled that Swanigan could not use the prior bad act of embezzlement to impeach Wright under Arkansas Rule of Evidence 609 because there had been no conviction or under Rule 608 because embezzlement was not probative of truthfulness.


Where, in light of the general principles above set forth, should the result of the eserowee’s dereliction fall? That question seems to have first arisen and been answered in 1925 in Hildebrand v. Beck (196 Cal. 141). In that case there was a deposit of money by a purchaser of real estate with an escrow agent which was to be paid to the vendor if and when a title guarantee was secured. The escrowee embezzled the moneys deposited before the guarantee was secured. In holding that the loss must fall upon the vendee because, at the time of the <mask>, the vendor had not yet acquired a right to receive the funds — a rule which has been uniformly followed in all subsequent cases — the court, sitting en banc, unanimously held (pp. 145-146):


Recently, this court criticized Jonathan R. and declined to follow it. (See People v. Brunton (2018) 23 Cal.App.5th 1097, 1106, 233 Cal.Rptr.3d 686 ( Brunton. )) In Brunton , the defendant was charged with violations of subdivision (a)(1) of section 245 and subdivision (a)(4) of the same statute for a single act of choking a cellmate with a tightly rolled towel. Based on the unique facts of the case before us, we concluded the subdivisions were merely different statements of the same offense and the defendant could not *62be convicted of violating both subdivisions. ( Brunton , at pp. 1105-1107, 233 Cal.Rptr.3d 686, relying on People v. Vidana (2016) 1 Cal.5th 632, 647-651, 206 Cal.Rptr.3d 556, 377 P.3d 805 [concluding larceny and <mask> were the same offense and § 954 does not authorize multiple convictions for different statements of the same offense].)


The administration of the retirement fund was in the hands of three partners of the defendants (Retirement Board) and for some time the plaintiff’s rights to his pension credit seem to have been held in abeyance. There is no evidence that at any time did he make a formal demand for payment. It was not until September, 1958 that the defendants learned that plaintiff had pleaded guilty to an indictment charging him with grand larceny in relation to a dealing with a customer of the defendants which did not involve <mask> from the firm. The plaintiff had been sentenced to a term in prison upon his plea. In October, the Retirement Board determined that the plaintiff had forfeited his interest because his services “ had been terminated as a result of his dishonesty, within the meaning of the Plan ”, because his failure to answer “ relevant questions ” was “ tantamount, under the Plan, to a voluntary leaving of the firm’s employ ’ ’, and because the plaintiff ‘ ‘ in failing and refusing to report to Ms employer after denial of his request for a leave of absence, had voluntarily left the firm’s employ, within the meaning of the Plan ”.


In support of his contention arson is a single offense, Shiga points to the language at the beginning of section 451, which provides, "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any *476structure, forest land, or property."16 The People contend arson is not a single offense, but rather, each subdivision creates a separate offense, including section 451, subdivision (b), which criminalizes "[a]rson that causes an inhabited structure or inhabited property to burn," and section 451, subdivision (c), which criminalizes "[a]rson of a structure or forest land." *205To determine whether the subdivisions of section 451 set forth separate offenses or different ways of committing the same offense of simple arson, we look to the Legislature's intent as reflected in the language of the statute and, if the language permits more than one reasonable interpretation, we consider the legislative history. ( People v. Gonzalez (2014) 60 Cal.4th 533, 537, 539, 179 Cal.Rptr.3d 1, 335 P.3d 1083 ( Gonzalez ) [concluding oral copulation under former § 288a, subd. (f), prohibiting oral copulation of an unconscious person, and subd. (i), prohibiting oral copulation of an intoxicated person, describe separate offenses because "[e]ach subdivision sets forth all the elements of a crime, and each prescribes a specific punishment"]; see People v. White (2017) 2 Cal.5th 349, 351-352, 212 Cal.Rptr.3d 376, 386 P.3d 1172 ( White ) [considering legislative intent in concluding § 261, subd. (a)(3), prohibiting rape of intoxicated person, and (a)(4)(A), prohibiting rape of unconscious person, described separate offenses such that defendant may properly be convicted of both in the same proceeding]; People v. Vidana (2016) 1 Cal.5th 632, 650, 206 Cal.Rptr.3d 556, 377 P.3d 805 ( Vidana ) [relying on legislative history to conclude larceny under § 484, subd. (a), and <mask> under § 503 are "different statements of the same offense"].)


Catambay discovered that at the time Longview International recorded the abstract of judgment its corporate powers had been suspended. (The Delaware corporation had failed to provide an annual statement of information and pay a $ 25 fee to the state of Delaware.) She filed a motion in the Santa Clara County <mask> case, asking to intervene in the action and seeking to expunge the judgment *795lien from the Redwood City property. Longview International opposed the motion. It argued that its corporate powers had been reinstated, which retroactively validated any actions it took while suspended, including recording the abstract of judgment. The trial court denied Catambay's request to intervene and her request to expunge the lien.


Plaintiff’s amended verified complaint set forth three causes of action: <mask> and conversion of government funds in violation of Haitian penal and civil law, as well as under New York law, and seeking declaration of a constructive trust for the benefit of Haiti relative to the funds in the bank, accounts at issue; embezzlement in violation of Haitian penal and civil law, and seeking recovery of the funds unlawfully taken from the public treasury by defendant and the proceeds of such funds, including the funds in the bank accounts; and conversion under New York law, also seeking recovery of funds as in the second count. Defendant sought dismissed on the same grounds alleged against the original complaint, and *382the motion was denied by Justice Grossman. Defendant appealed both of Justice Grossman’s orders denying dismissal and this Court affirmed both orders without opinion on October 6, 1988 (Republic of Haiti v Irving Trust Co., 143 AD2d 1076, lv dismissed 73 NY2d 871).


The defendant challenges the validity of the false pretense count of the indictment on the ground that it omits the allegation of “ reliance on the false pretense ” by the complainants. There is only one crime of larceny in this State. (Code Crim. Pro., § 1290; People v. Lobel, 298 N. Y. 243.) If an indictment or a count thereof charges larceny by false pretenses, the form of pleading must meet the requirement of section 1290-a of the Penal Law which provides as follows: ‘ ‘ 1290-a. Pleading and Proof. In any prosecution for larceny it shall be sufficient if: 1. The indictment or information charges -that the accused, with the intent to deprive or defraud another of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of some person other than the true owner, stole any property of any of the kinds mentioned in section twelve hundred ninety of this article. If, however, the defendant made use of any false or fraudulent representation or pretence [sic.] in the course of accomplishing, or in aid of, or in facilitating the theft, evidence thereof may not be received at the trial unless the indictment or information alleges such representation or pretense, and it shall be immaterial whether the theft may have been previously denominated common law larceny by asportation, common law larceny by trick and device, obtaining property by false pretenses or <mask>. As long as one of the false or fraudulent representations or pretenses alleged be proven, any other related representation or pretense, though not alleged, may be given in evidence.”


A thorough examination of the record indicated that there is absolutely nothing in it to bring the debt within the purview of any of the exceptions stated in the Bankruptcy Act barring discharge. This is a simple action on a contract obligation predicated on a direct promise of indemnity. The record does not reveal any evidence that the original liability was predicated *362either upon “ willful and malicious injuries to * * * property ” or upon the defendant’s “ fraud, <mask>, misappropriation or defalcation while acting as an officer or in any fiduciary capacity * * The plaintiff in effect is asking this court to indulge in inferences not justified by anything in the record and thus to conclude that the plaintiff sustained the loss because of a larceny committed by the defendant. This the court refuses to do. The actions of the defendant are just as consistent with an innocent and nonlarcenous loss as with a criminal defalcation. Actually the former conclusion is much more tenable in view of the defendant’s unequivocal assertion of innocence. To sustain the plaintiff’s position the court would necessarily be obliged to engage in an independent investigation to determine the facts and circumstances surrounding the loss. This would necessarily entail an inquiry far beyond the judgment and the record before the court and this it is neither authorized nor obliged to do. (Multiple Trading Corp. v. Saggese, supra; Bronx County Trust Co. v. Cassin, 170 Misc. 962.)


Mr. Fox’s claim to a derivative right to counsel is far weaker than the claim asserted in Kent (supra). Inasmuch as Mr. Fox is not being prosecuted for <mask> of estate assets, he cannot claim that the criminal solicitation prosecution arises out of the same matrix as the civil contempt proceeding. That Mr. Fox’s motivation for soliciting his brother’s murder was revenge for the contempt citation does not render the two proceedings “related” within the meaning of Bing (supra). The purpose of a civil contempt proceeding is to coerce compliance with the court’s mandate. (Matter of Department of Envtl. Protection v Department of Envtl. Conservation, 70 NY2d 233, 239 [1987].) Manifestly, the purpose of a criminal action is to secure a criminal conviction and accord punishment to the accused. As the Third Department accurately reasoned in Kent (supra), the disparate forms of relief sought in the two actions show that the present criminal prosecution is unrelated to the prior civil contempt proceeding. Thus, his representation by counsel in the civil contempt matter does not give rise to a derivative right to counsel in these subsequent criminal proceedings.


¶21 We are guided by our decision in Spears, which recognized that attorney fees are appropriately ordered as restitution when an attorney is reasonably necessary to remedy the harm caused by the criminal conduct. Spears, 184 Ariz. at 291–92. Thus, just as in the probate proceedings at issue in Spears, attorneys may be reasonably necessary to rectify harms directly caused by criminal conduct in several scenarios, including financial fraud, <mask>, or identity theft. Similarly, when a victim retains an attorney to enforce her rights in the criminal proceedings, the court should order payment of those fees as restitution when attorneys are reasonably necessary to enforce these rights. Setting this standard accommodates constitutional and legislative directives that restitution reimburse a victim for losses caused by criminal conduct and simultaneously avoids any STATE V. REED Opinion of the Court


In People v. Horowitz (138 Misc. 794, at p. 800) the magistrate who rendered the decision in the Fleishman case, upon which defendant relies so heavily, specifically left open the point as to whether the defendant might set up the corporate entity of the landlord as a defense to the prosecution against him as an officer under sections 1290 and 1302 of the Penal Law: “ Since I hold that the landlord’s conversion of this fund did not constitute larceny or <mask>, it is unnecessary to pass on the question as to whether this defendant may set up the corporate entity of the landlord as a defense to this prosecution against him as an officer thereof, under the ruling in People v. Fleishman (133 Misc. 288) and People v. Shatzkin (221 App. Div. 602).”


Third. “Question, [to defendant’s driver on cross-examination.] Is it not a fact that you left Ridleys’ with money belonging to them? Answer. Yes, sir, I did. Q. Moneys that you had collected for them? A. Yes, sir.” The defendant claims that a witness can be impeached in only three ways:- (1) By disapproving the facts stated by him; (2) by general evidence affecting his credit; (3) by proving that the witness has made statements out of court contrary to what he has testified at the trial,—citing 1 Green]. Ev. §§ 461, 462. We think the evidence was properly received. It did not ask as to an accusation, but a fact. The distinction is obvious. Thus, while you cannot ask a witness whether he has been arrested, (Wright v. People, 1 N. Y. Crim. R. 462,) or indicted, (Ryan v. People, 79 N. Y. 599,) or expelled from the fire department, (Nolan v. Railroad Co., 87 N. Y. 68,) you can ask him whether he was not guilty of a particular offense; for, as the court of appeals said in People v. Irving, 95 N. Y. 544: “Mere charges or accusations, or even indictments, may not so be inquired into, since they are consistent with innocence, and may exist without moral delinquency; but, where the witness is called upon to confess or deny his guilt of a crime, his answer, if in the affirmative, tends to impair the credit of the witness by its tendency to establish a bad moral character. The party putting such a collateral question is concluded by the answer of the witness, and, if he denies the offense, cannot be contradicted by other evidence.” Conley v. Meeker, 85 N. Y. 618. The witness (the defendant’s driver) testified that he had been discharged from Ridleys’, and that lie had left with moneys which lie had collected for them. He had been in their employ as a driver. The unexplained failure to pay over these moneys constituted <mask>, under the statute, (3 Rev. St. 6th Ed. p. 952, § 73,) and is made larceny by thePenal Code, § 528. The driver had been called by the defendant to contradict the plaintiff, and did contradict him as to certain material matters ; and it was competent for the plaintiff to break down his credibility by proof from his own lips that he had been guilty of acts tending to prove his bad moral character. In People v. Casey, 72 N. Y. 398, the prisoner, on his trial for murder, was called as a witness on his own behalf, and on cross-examinatian was asked as to other acts of wrong-doing committed by him. In sustaining the trial judge, the court of appeals said: “ When a prisoner offers himself as a witness on his own behalf, he is subject to the same rules of cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impair his credibility. Such questions may tend to show that he has before been guilty of the same crime as that for which he is put on trial; but they are not on that account incompetent. * * * The extent to which such an examination may go to test the witness’ credibility is largely in the discretion of the court. ” We think the right was not abused in the present instance.


In the case before us, the cashier of the defendant bank embezzled certain Uhited States bonds belonging to the plaintiff, *357and pledged them as security for moneys which he borrowed for said bank. Such <mask> certainly was not within the authority, express or implied, of the cashier. Conceding that an .authority to borrow money for the bank may be implied from the nature of the cashier’s employment, and his acts done under it, yet an act of embezzlement is quite foreign to such an authority. The authority to borrow would embrace all necessary and proper means to accomplish that object; but the stealing of another’s securities, to pledge for that purpose, is not usual or proper, and .is not, therefore, within the authority conferred, but is an act altogether beyond the scope of the cashier’s employment.. If the case stopped here, no liability could be cast upon the bank. But the bank received the money borrowed, by means of the pledge of the bonds, and still retains such moneys. Such acts, we think, must operate as a ratification of the cashier’s embezzlement. It is true, indeed, that no one connected with the bank, except the •cashier, had any knowledge that the money so received had been •obtained by means of a pledge of the plaintiff’s bonds. Still the receiving of money was strictly within the scope of the cashier's •employment, and his knowledge will be imputed to the bank under the settled rule that notice to the agent is notice to the principal, if the agent' comes to the knowledge of the fact while he is acting for the principal, in the course of the transaction, which becomes the subject of the suit. (Bk. U. S. v. Davis, 2 Hill, 451 ; Holden v. N. Y. and Erie Bk., 72 N. Y., 286.) Nor can the bank retain the money in question, and repudiate the agency by which such money was obtained, for a principal will not be permitted to avow his agent’s negotiations as to part, and disavow as to the residue. (Hov. on Fraud, 144 ; Bolton v. Hillersden, 1 Ld. Ray., 224 ; Bennett v. Judson, 21 N. Y., 238 ; Elwell v. Chamberlin, 31 id., 611.) The set-off was properly rejected.


The statute defining the offense of <mask>, declares that, u if any clerk or servant of any private person, or of " any copartnership, (except apprentices and persons within the age of eighteen years,) or if any officer, agent, clerk or servant of any incorporate company, shall embezzle or convert to his own use, take, make away with, or secrete with intent to embezzle, or convert to his own use, any money, goods, rights of actions, or other valuable securities or effects whatever, belonging to any other person which shall have come into his possession or under his care by virtue of such employment or office, he shall upon conviction be punished in the manner prescribed by law for feloniously stealing.” &c,


The defendant Kaminsky argues that, at least in those instances in which he received invoices for the allegedly consigned property (indictment No. 4275 counts 1, 6, 7; indictment No. 4274 count 2), and in those instances when a partial payment was made prior to (indictment No. 4275 count 9), contemporaneously with (indictment No. 4275 counts 1, 6), or subsequent to (indictment No. 4275 counts 1,10; indictment No. 4274 counts 2, 3, 4) delivery, there was a conditional sale and transfer of title and, thus, neither <mask> nor larceny by trick. (See, e.g., Zink v People, 77 NY 114, 123 [1879].) As matters of fact the Grand Jury could justifiably have found that the purported invoices were merely a convenience and served as memoranda of possession and not evidence of a sale. The giving of personal notes or subsequent payment of a fraction of the value of the property could have been justifiably interpreted as part of the scheme to appropriate the greater part of the property’s value without retribution by the owner, consistent with other conduct such as threats and flight. (See, People v Scharf, 217 NY, at pp 210-211; People v Hazard, 28 App Div, at p 307; Hansen v National Sur. Co., 257 NY 216, 220 [1931]; People v Kaye, 295 NY 9,13 [1945]; People v Rosenbaum, 107 Misc 2d 501, 506 [Sup Ct, Rockland County 1981].)


The exception to that part of the charge which stated that the plaintiff would be entitled to recover at least nominal damages, unless the defendant proved the truth of the whole charge is not well taken. The exceptions and argument of counsel upon it wholly ignore that part of the charge relating to the defense of probable cause; the jury were instructed that if they should find that the prosecution of the plaintiff was authorized by the corporation and that it had failed, they should then consider the question of probable cause. Upon this branch of the case they were to determine whether the charge of <mask> was true. If it was, then there was an end of the case; the verdict was to be for the defendant. If true in part only, then plaintiff might recover nominal damages, but if they should determine that the charge was not true the plaintiff was not necessarily to have a verdict. They were .tiien to consider whether the defendant had probable cause to *369believe the charge true, and if they had, then the verdict was to be for the defendant. The question of probable cause was very fully explained and illustrated to the jury. The exception is taken to an isolated part,of the charge, which, if it stood alone, would doubtless be susceptible to the criticism made upon it, but in the connection it was stated it was not misleading and constituted no ground for ■error.


Defendant served as Chief Executive Officer of IAR for nearly 20 years.1 Sometime around 2012, IAR discovered evidence that defendant had embezzled large sums of money from the corporation by, among other things, paying personal debts from the corporation's bank accounts and paying salary and retirement benefits to his wife, who was not an IAR employee. Accordingly, on September 7, 2012, IAR, represented by Valla, filed a civil lawsuit against defendant in San Mateo County Superior Court. In October 2012, Valla, on behalf of IAR, made contact with the Foster City Police Department to report the suspected crime(s). Trial in the civil case *855was then set for September 9, 2013. Just days before this first trial date, the San Mateo District Attorney (district attorney) charged defendant with felony <mask>.2


Congress enacted ERISA in 1974 to reform the field of employee welfare and pension plans after national disclosures of fraud, theft, and <mask> in the administration of such plans. Bluntly stated, through ERISA, "Congress sought to correct the pattern of wasting and looting which had resulted in a devastating denial of benefits to the intended recipients of plans.” (National Bank v International Bhd. of Elec. Workers Local No. 3, 69 AD2d 679, 684 [2d Dept 1979].)


As the court was not asked to charge the jury upon that point, it would not be available upon an exception; but as it was left to the jury, they evidently must have based their estimate of damages upon the ground of the malice of both accusations. Considering the proof of the previous conduct and character of the plaintiff in pecuniary transactions, where he *311received money for others, the damage to his character by a charge of <mask> would be highly overrated by the sum given. Even go far as his character for veracity is concerned^ positive testimony, if reliable, would be far more effectual than: negative from persons who have heard nothing; the experience of both with public opinion respecting it should be equally great to balance them. But the striking proof of particular transactions shows considerable and frequent disregard as to pecuniary obligations. Rone of them, however, approach the criminality of stealing, and I cannot but think the greater portion of the damages was given for that charge. The verdict ought, therefore, to be relieved against as excessive.


Plaintiffs' citations to case authority do not suggest otherwise, but offer some guidance on assessing distinct and separate claims. In E-Fab , supra , 153 Cal.App.4th 1308, 64 Cal.Rptr.3d 9, the court addressed circumstances in which claims against the defendant accrued at a different time than claims against a former employee. The plaintiff was the victim of <mask> by the employee; the defendant accounting agency had recruited and placed the employee with plaintiff upon representing that it had screened her background, credentials, and references.


An executor is required by law within a reasonable time after qualifying, with the aid of appraisers, to make a true and perfect inventory of all the goods, chattels and credits of his testator (2 R. S., 82, § 2). This inventory shall be filed with the Surrogate within three months after the issue of letters. If this is not done, he may be compelled, on the application of a creditor, or person interested in the estate, to perform such duty; and in case of default he maybe *128committed to jail (Code Civ. Pro., §§ 2715, 2716). In actions and special proceedings, the inventory is presumptive evidence of the amount and value of the estate both for and against the executor. It would often be extremely difficult, if not impossible, to prove what property came into the possession of an executor if he were excused from making and returning an inventory thereof. If the executor converts to his own use, makes away with or fraudulently withholds any of the money or property of the estate, he is guilty of <mask> (L. 1877, ch. 208). If a testator can dispense with the making of an inventory by will, many of the safeguards thus thrown around the estate which comes to the hands of the. executor would be thrown down, and fraud and misappropriation of the trust property- would be rendered much easier and less liable to detection than at present. It is against public policy to permit such interference with -the forms of procedure established by law, or to remove the barriers designed to protect estates from misappropriation. The safety, preservation and honest distribution of decedent’s estate require that, provisions like the one in question should be declared invalid and of no effect.


As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree on the mode of commission. That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, that one can conceive of novel "umbrella" crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process. Schad v. Arizona , 501 U.S. 624, 649-50, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring) (citations omitted). What the plurality pointed out was that "nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of 'Crime' so generic that any combination of jury findings of <mask>, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction." Id. at 633, 111 S.Ct. 2491 (plurality op.).


As noted, the jury here was only instructed on theft by larceny, not <mask> or theft by false pretenses. Kaufman challenges the court's failure to instruct on theft by false pretenses under CALCRIM No. 1804. Citing Beaver , supra , 186 Cal.App.4th 107, 111 Cal.Rptr.3d 726 and People v. Curtin (1994) 22 Cal.App.4th 528, 27 Cal.Rptr.2d 369 ( Curtain ), he argues the crime, if anything, was theft was by false pretenses, not larceny, and that the failure to instruct on the correct crime resulted in prejudicial error.10


The system of soliciting known heirs or known legatees in estates has been the subject of complaint by the Consuls of the various countries in New York and by reputable attorneys representing executors and administrators. It is charged that beneficiaries, who would have received their shares of estates in the ordinary course and without any deduction for attorney’s fees or for the compensation of solicitors, have been imposed upon by foreign agents to sign unconscionable and exorbitant agreements to pay, and to execute accompanying powers of attorney. Cases have arisen, where foreign legatees or heirs, who would have received their shares in the full amount, have been led into signing agreements to pay as high as fifty per cent of the money due them. It is also charged that the foreign solicitors deduct an amount in excess of the agreed compensation. It is claimed that there has been delay in transmission and payment and that in some cases there has been <mask> of the moneys. It is asserted that the foreign agent in Poland of a New York company converted over $100,000. Certainly such a system should not be tolerated in probate courts under their policy to protect beneficiaries of estates from imposition or unnecessary expense.


Defendant nonetheless asks that we read section 1170.18, subdivision (a) to include within its scope his section 11368 offense, even though it is not one of the amended or added statutes. We decline to do so: "The expression of some things in a statute necessarily means the exclusion of *675other things not expressed." ( Gikas v. Zolin (1993) 6 Cal.4th 841, 852, 25 Cal.Rptr.2d 500, 863 P.2d 745.) And applying this well-established principle of statutory construction to our situation, the expression of a specific series of criminal offenses eligible for resentencing under section 1170.18, subdivision (a), we conclude, necessarily excludes from eligibility defendant's section 11368 offense, which was not one of the statutes expressly referenced therein. (Cf. People v. Warmington (2017) 16 Cal.App.5th 333, 335-336, 224 Cal.Rptr.3d 291 [trial court erred in finding defendant not eligible under § 1170.18 to have his felony conviction for <mask> (§ 503) redesignated as a misdemeanor in light of § 490a, which provides, "[w]herever any law or statute ... refers to or mentions larceny, embezzlement, or stealing , said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor"] (italics added).)


The <mask> scheme that resulted in plaintiffs’ losses was devised by Robert Egan, the president and sole shareholder of MVMC, with the assistance of Bernard McGarry, MVMC’s chief operating officer. Egan and McGarry arranged to use their customers’ funds to finance MVMC’s business operations, commingling customer funds to help conceal their misappropriation of the stolen funds, a practice referred to by plaintiffs and by the prosecutor in the criminal prosecution of Egan and McGarry as “playing the float” (see United States v Egan, 811 F Supp 2d 829, 833 [SD NY 2011]).


Golia, J., dissents in part and votes to modify the judgment by dismissing defendant’s counterclaim in the following memorandum: Pro se plaintiffs appeal from a judgment in favor of the defendant on his counterclaim for libel in connection with a “faxed” letter sent to defendant by plaintiffs. It is uncontroverted that the subject letter was sent by the plaintiffs and that it was libel per se in that it accused the defendant (an attorney) of committing the crime of <mask> concerning money retained in a prior matter. However, the thrust of the letter was an attempt to recover a sum of money which the defendant attorney had retained, as his fee, from an escrow account while handling a house closing for the plaintiffs.


A Fifth Circuit opinion, Douglas v. Regions Bank (5th. Cir. 2014) 757 F.3d 460 ( Douglas ), is analogous. When Douglas opened an account with Regions Bank she signed an arbitration agreement that, like Uber's, delegated questions of arbitrability to an arbitrator. Douglas's attorney later embezzled her proceeds from the settlement of a personal injury action. Douglas sued Regions Bank, where her attorney also had an account, on the ground that the bank negligently failed to report the <mask>, make reasonable inquiries or prevent further diversions from her account. ( Id . at p. 461 )


The cases relied upon in support of the objections taken at the *502trial will not sustain the defendant’s appeal. In that of Commissioners v. Libbey (11 Metc., 64), the court held no more than that the statute of that State did not include an auctioneer or commission merchant, as an agent or servant, for in the course of his business he had the right to mingle the proceeds received with his own, and pay over any like amount in discharge of his liability. The same construction was given to the act in Commissioners v. Stearns (2 Metc., 343), and it was further held that a person collecting bills for the proprietor of a newspaper was not such an agent or servant as the statute designed should be punished for <mask> for failing to pay over the moneys collected by him. But the facts of this latter case would probably be sufficient to bring it within so much of this section of the Penal Code as has been mentioned if the accountability had arisen out c.f like transactions in this State, for the person charged did, in fact, collect the bills as the agent of the proprietor of the newspaper; while in Commissioners v. Foster (107 Mass., 221), the defendant was relieved solely on the ground that he was not an agent. The English authorities are not entirely harmonious in their construction of their acts relating to the crime of embezzlement. In Regina v. Goodbody (8 Car. & Payne, 665), the defendant was absolved for the reason that he was not a clerk or servant but an agent, which, to that extent, renders the case an authority against the defendant. In Rex. v. Carr (1 British Crown Cases, 198), the defendant was employed in selling and taking orders for goods for different employers and receiving moneys, and it was held that he was properly convicted for their misappropriation as a clerk or servant of the employer whose money was so used. The case of Queen v. May (30 L. J., N. S. Magistrate Cases, 81) seems, however, to be adverse to this ruling. But that of Queen v. Tite (Id., 142), followed and further enforced it. And so has the cases of Regina v. Turner (11 Cox C. C., 551); Regina v. Bailey (12 id., 56), and these cases certainly are authorities justifying such a construction and application of this section of the Penal Code as will include [that of the defendant. In State v. Kent (22 Minn., 41), the defendant was a collector of pew rents, and it was held that, as he was entitled to commissions from the amounts collected, he was not guilty under the statute for misappropriating the entire money received as part of it was his *503own property. But there seems to be no good reason for this discrimination, for as to the residue of the money received over the commissions, the person receiving it has it in his possession, custody or control, as the agent, bailee or trustee of his employer, and that has been so considered in the English cases which have not relieved the accused because of the circumstance that he was entitled to retain his commissions out of the moneys collected by him. But this decision is not applicable to this case for the further reason that it did not appear by the evidence that the defendant had used any portion of the money represented by or derived from the check, for the payment of the commissions he was entitled to retain. It appeared, on the contrary, by his own testimony, that he had probably used the money in the bank for the payment of the debts owing by him to other creditors. Some stress was made in his favor on the fact that he had become involved by the failure of Mr.’ Dean, his brother-in-law. But that, in. truth, had no relevancy to the case. Eor it appeared by the testimony of the defendant that no money of the complaining witness went to Dean during the year 1885, and his transactions with her all took place after the failure of Dean. And no part of her money was loaned by the defendant to him. An effort was also made to excuse the defendant under his power to apply moneys received by him for the repair and management of the property, and it did appear, from his testimony, that $456.56 of the moneys received for rents in the month of August had been used in this manner, but it was not shown by any statement or account produced that this particular check, or any part of it, went in that direction.


Hall v. State (1923) 161 Ark. 453, 257 S.W. 61 ( Hall ) directly addressed whether larceny could occur if property was diverted before it could reach its rightful owner, who was the named victim. ( Id. at p. 64.) Defendant Hall served on a state board that owed money to a corporation for goods received. ( Id. at p. 62.) The board issued payment vouchers. Hall presented these vouchers to the state auditor, who issued warrants on the treasury that were made payable to the corporation. Hall lacked the authority to collect money due to the corporation on the warrants. Despite this, he went to the state treasurer's office, indorsed the warrants in his name, and pocketed the proceeds. ( Ibid. ) Charged with larceny and <mask>, he was convicted only of larceny. ( Id. at p. 62.)


For his fourth point on appeal, Swanigan contends that the circuit court abused its discretion in refusing to allow him to cross-examine one of the State's witnesses about his alleged <mask>. At a pretrial hearing, Swanigan argued that he should be allowed to question Michael Wright, the Garland County sheriff's deputy who acted as evidence custodian at the time of the shooting, about why he was no longer employed as a law-enforcement officer. At the time of the trial in this case, Wright was under investigation and had admitted to embezzling money from the Arkansas Narcotics Officers Organization. The court ruled that Swanigan could not use the prior bad act of embezzlement to impeach Wright under Arkansas Rule of Evidence 609 because there had been no conviction or under Rule 608 because embezzlement was not probative of truthfulness.


includes, but is not limited to , the taking, carrying away or the sale, conveyance or transfer of title to or interest in or possession of property, and includes, but is not limited to , conduct known as larceny, larceny by trick, larceny by conversion, <mask>, extortion or obtaining property by false pretenses.... Tenn. Code Ann. § 39-11-106(a)(24)(B) (emphases added). Twice in this concise statutory definition the General Assembly emphasizes that "[o]btain" encompasses but is not limited in scope to conduct formerly categorized as theft. See also Tenn. Code Ann. § 39-14-101 (stating that theft under the 1989 statute embraces "the separate offenses referenced before 1989 as embezzlement, false pretense, fraudulent conversion, larceny, receiving or concealing stolen property, and other similar offenses. " (emphasis added)); State v. Young, 904 S.W.2d 603, 606 (Tenn. Crim. App. 1995) ("Even though the legislature intended to simplify the prosecution of theft crimes by consolidating them into a general statute, the legislature also clearly changed the definition of the crime and the elements needed to prove the offense."); State v. Nix, 922 S.W.2d 894, 900-01 (Tenn. Crim. App. 1995) (explaining that a theft, for the purposes of defining robbery, no longer requires asportation under the 1989 theft statute).13


"The common law defined larceny as the taking and carrying away of someone else's personal property, by trespass, with the intent to permanently deprive the owner of possession. [Citation.]" (People v. Williams (2013) 57 Cal.4th 776, 782, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) However, the Legislature retreated from the common law use of the term by consolidating the formerly separate crimes of larceny, <mask>, and theft by false pretenses into the general crime of theft. (People v. Ashley (1954) 42 Cal.2d 246, 258, 267 P.2d 271.) As part of the consolidation, the Legislature enacted section 490a, which provides: "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or *901statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor."


This is as far as the courts in this State have gone. May we extend the principle of these cases, and say that this relationship of the landlord toward the tenant with respect to the security makes him a “ trustee ” or “ a person authorized by agreement ” as defined in section 1290, or “ a person acting as trustee of any description, appointed by a deed, will or other instrument ” as defined in section 1302? To answer that question, it is not necessary to go into an extended examination into the various kinds of trusts and trusteeships. Suffice it to say that throughout all the cases that discuss this comparatively new crime of <mask> there runs the underlying thought that there must be a breach °of trust to constitute the crime. “ The essence of the crime of larceny involving embezzlement is breach of confidence ” is the way the court expressed it in People v. Meadows (136 App. Div. 226, 235). While it is somewhat difficult to draw, with exact precision, the fine of demarcation between acts punishable as crimes under the embezzlement statutes and those that may not be embraced by them, I hold that, since the fiduciary relationship is entirely absent, the landlord is not the trustee of the tenant as contemplated by these provisions of law. True, the landlord holds the money for the tenant and may have to return it intact, but his holding is coupled with an interest, an interest that may ripen into a right upon the happening of certain contingencies specified in the lease. In the ordinary relation of trustee and cestui que trust the former has no such interest, contingent or otherwise. If, in civil suits between the parties, the landlord is sometimes regarded as a sort of trustee for the tenant, that relationship has been superinduced upon him by operation of law as a matter of equity and not because he was “ appointed ” as such when the lease was executed. As the Court of Appeals phrased it in People v. Epstein (245 N. Y. 234), to be regarded as a “ trustee ” within the meaning of these embezzlement statutes, he must be “ a person in whom a trust or confidence had voluntarily been imposed and by whom it had voluntarily been accepted.” Tested by these standards, the landlord falls short of being a trustee.


While the terms of the decree in bankruptcy are general, assuming to discharge all provable claims and demands against the decedent, yet such decree must be read and construed with reference to the provisions of the Bankruptcy Act under which ■it is made. ¡Section 16 of the National Bankruptcy Act, approved July 1, 1898, provides: “A discharge in bankruptcy shall release a bankrupt from all his provable debts, except (1) such 'as are due as a tax levied by the United States, the State, county, district or municipality in which he resides; (2) are judgments.in actions for fraud, or obtaining property'by false pretense or false representations, or for wilful or malicious injuries to the person or property of another; (3) have not been1 duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt unless such creditor had notice or actual knowledge of the proceedings in bank*238ruptcy; or (4) were created by bis fraud, <mask>, misappropriation or defalcation, while acting as an officer or in any fiduciary capacity.”


Third. “Question, [to defendant’s driver on cross-examination.] Is it not a fact that you left Ridleys’ with money belonging to them? Answer. Yes, sir, I did. Q. Moneys that you had collected for them? A. Yes, sir.” The defendant claims that a witness can be impeached in only three ways:- (1) By disapproving the facts stated by him; (2) by general evidence affecting his credit; (3) by proving that the witness has made statements out of court contrary to what he has testified at the trial,—citing 1 Green]. Ev. §§ 461, 462. We think the evidence was properly received. It did not ask as to an accusation, but a fact. The distinction is obvious. Thus, while you cannot ask a witness whether he has been arrested, (Wright v. People, 1 N. Y. Crim. R. 462,) or indicted, (Ryan v. People, 79 N. Y. 599,) or expelled from the fire department, (Nolan v. Railroad Co., 87 N. Y. 68,) you can ask him whether he was not guilty of a particular offense; for, as the court of appeals said in People v. Irving, 95 N. Y. 544: “Mere charges or accusations, or even indictments, may not so be inquired into, since they are consistent with innocence, and may exist without moral delinquency; but, where the witness is called upon to confess or deny his guilt of a crime, his answer, if in the affirmative, tends to impair the credit of the witness by its tendency to establish a bad moral character. The party putting such a collateral question is concluded by the answer of the witness, and, if he denies the offense, cannot be contradicted by other evidence.” Conley v. Meeker, 85 N. Y. 618. The witness (the defendant’s driver) testified that he had been discharged from Ridleys’, and that lie had left with moneys which lie had collected for them. He had been in their employ as a driver. The unexplained failure to pay over these moneys constituted <mask>, under the statute, (3 Rev. St. 6th Ed. p. 952, § 73,) and is made larceny by thePenal Code, § 528. The driver had been called by the defendant to contradict the plaintiff, and did contradict him as to certain material matters ; and it was competent for the plaintiff to break down his credibility by proof from his own lips that he had been guilty of acts tending to prove his bad moral character. In People v. Casey, 72 N. Y. 398, the prisoner, on his trial for murder, was called as a witness on his own behalf, and on cross-examinatian was asked as to other acts of wrong-doing committed by him. In sustaining the trial judge, the court of appeals said: “ When a prisoner offers himself as a witness on his own behalf, he is subject to the same rules of cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impair his credibility. Such questions may tend to show that he has before been guilty of the same crime as that for which he is put on trial; but they are not on that account incompetent. * * * The extent to which such an examination may go to test the witness’ credibility is largely in the discretion of the court. ” We think the right was not abused in the present instance.


This question did not arise in People v. Lyon (99 N. Y., 210). The learned justice who delivered the opinion of the court in Mowrey v. Walsh (8 Cow., 238), which arose before the Revised Statutes, also delivered the opinion in Andrew v. Dieterich (14 Wend., 31), and in the latter case held that by making the offense a felony the statute had given to it the effect of a common-law crime of .that grade, and, therefore, title could not be taken from the fraudulent vendee by a purchaser in good faith. The doctrine of the Mowrey case has since been treated as unchanged in that respect by the statute, and the Andrew case has not been followed. (Peabody v. Fenton, 3 Barb. Ch., 451; Malcom v. Loveridge, 13 Barb., 312; Fassett v. Smith, 23 N. Y., 252.) The definition of the term larceny has now been broadened so as to take within it the offenses formerly known as false pretenses and <mask>. And as between them and the common-law offense of larceny a *126distinction remains which must be observed in the presentation by indictment. (People v. Dumar, 106 N. Y., 502.) And we thinV the change exists only in the definition and does not go to the legal effect, except so far as it is produced by the terms of the statute. And that, as relates to those offenses which have been given the names of larceny by the statute, the consequences in respect to the property taken continue the same as they were before. The principle upon which the distinction in that respect rested was that larceny at common law was the feloniously taking property, which was without the consent of the owner, while the obtaining it by false pretenses was produced by the consent and delivery of it by the owner to the fraudulent vendee, and when so delivered, with the intent at the time being to part with the title and invest it in the latter, the effect of a common law larceny was not given to it so as to defeat the title of a bona fide purchaser for value. (Zink v. People, 77 N. Y., 114.) The same reason for this rule exists now as before the application of the extended definition.


“We think that it would be going further than any adjudicated case and further than any construction extending the scope and purpose of section 528 of the Penal Code should go, to conclude that the facts proven would justify a conviction for larceny. Were it otherwise then in every case where a customer deposits money with a broker to be used by him generally in his business, the failure of such broker to return the deposit, together with what might have been realized in the shape of profits upon the speculation, would leave him open to the charge of having embezzled his customer’s money. We do not think it was the intention of the Legislature, nor is it the reading of the provisions of the Penal Code, that any such radical departure should be made so as to change a transaction that has always been regarded as establishing the relation of debtor and creditor into one which would place the broker in the position of a trustee who receives money in a fiduciary capacity which he is obliged at all times- to keep separate and apart from his own moneys and on demand return upon pain of indictment and conviction for <mask>.”


Further reliance is placed by the bank upon the decision of the Appellate Division, Fourth Department, in Matter of Hammer (237 App. Div. 497; affd., 261 N. Y. 677). The facts in that case were substantially different from those here. But far from having any controlling effect in favor of the bank, it supports the conclusion that jurisdiction over moneys in an account exists in a discovery proceeding. Presiding Justice Sears restated the rules that a discovery proceeding was limited to the recovery of specific personal property or moneys or the proceeds or value of such personal property and that a discovery proceeding may not be employed to enforce the collection of a debt. He cited Matter of Akin as authority for the existence of jurisdiction in the Surrogate’s Court over deposits of moneys and stated that the “ property may be intangible, such as a right to a bank account.” In the Hammer case (supra) none of the moneys remained on deposit in the respondent bank. There was a claim that the estate funds had been with*484drawn by one of the executors, deposited in his personal account and diverted to his own use. The proceeding apparently was predicated upon the the'ory that the bank was liable for paying the estate funds with knowledge of the diversion. What was , attempted to be enforced against the bank, therefore, was a liability ordinarily the subject of an action for damages sustained as a result of the bank’s participation in the <mask>. (Bischoff v. Yorkville Bank, 218 N. Y. 106; Grace v. Corn Exchange Bank Trust Co., 287 id. 94; Whiting v. Hudson Trust Co., 234 id. 394.) Finally, despite the expressed doubt as to the jurisdiction of the surrogate to make the decree, the Appellate Division put aside the jurisdictional question and significantly said, “ we prefer to determine the controversy upon the merits.” The affirmance by the Court of Appeals in the Hammer case was without opinion. By implication that court must be deemed to have followed its prior decisions in Matter of Akin (supra) and Matter of Wilson (supra) and to have sustained rather than overruled the jurisdiction of the Surrogate’s Court in disputes involving bank deposits.


(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Ark. R. Evid. 608 (2018). We specifically held in Sitz v. State , 23 Ark. App. 126, 128, 743 S.W.2d 18, 20 (1988), that <mask>, a form of theft, is not a crime that is probative of untruthfulness and thus is not admissible under Rule 608(b). See also Arendall v. State , 2010 Ark. App. 358, at 19, 377 S.W.3d 404, 416. We decline Swanigan's *752invitation to revisit this decision, and we do not find the present case to be distinguishable. Accordingly, the circuit court did not abuse its discretion in refusing to allow the evidence.


A classic example of conduct constituting larceny by <mask> is depicted by the facts in People v Meadows (supra). In that case a customer ordered through defendant, a member of a brokerage firm, the purchase of 700 shares of a stock at a specified price. Although the customer’s check was deposited in the firm’s account, the shares of stock were never purchased and the funds were found to have been diverted to other purposes. It was noted by the court (pp 6-7) that “[t]he criminal act in this case was committed, and the criminal intent evidenced, when, departing from his duty to use the moneys in paying for the stock, the defendant diverted it to other purposes. Evidence of a criminal intent to defraud * * * [the customer] of his property was not wanting. The firm was heavily involved, the pressure of debt very great and the bank balance very low. The jurors were warranted in inferring that the defendant yielded to the temptation of relieving the pressure by diverting the funds received from * * * [the customer] to his own purposes; hoping, if not believing, that, during the latter’s absence from the country, an opportunity might be afforded for restoration. A deliberate diversion of the moneys being shown, it required but slight evidence in the facts and circumstances to satisfy the jurors as to the existence of the felonious, or criminal, intent.”


Yet respondents admit their failure to conduct even the most rudimentary background investigation upon any of these licensees’ most recent applications, which at minimum would have disclosed the prosecutions against Donovan and Fricione for <mask>, theft, and misapplication of DOE property associated with their bid rigging. This disclosure easily would have led to disclosure of the scheme in which all eight licensees were implicated, for which the Special Commissioner of Investigation or DOE recommended the termination from employment of seven, and based on which DOE removed the eighth, Katz, from his supervisory position. The misconduct by Lombardi, Mulvihill, and Schmeidel also precipitated their placement on a list of former employees ineligible for future employment. Even if nothing in any of these eight licensees’ applications on its face prompted an investigation, as respondents themselves point out, their own regulation, referring to the HPBOE license, requires that DCAS “or the investigating agency, as the case may be, shall conduct an investigation of each candidate to determine the candidate’s fitness and qualification for the license.” (55 RCNY 11-02 [h] [1] [emphasis added]; see verified answer ¶ 28.)


*21In the second case, Vidana , the Supreme Court held that larceny under section 484, subdivision (a) and <mask> under section 503 are different statements of the same offense and cannot support multiple convictions based on the same act or course of conduct. ( Vidana , supra , 1 Cal.5th at pp. 647-648, 206 Cal.Rptr.3d 556, 377 P.3d 805.) After observing it was not definitive that "[l]arceny and embezzlement have different elements and neither is a lesser included offense of the other," the Court pointed out that the larceny statute also prohibited embezzlement. The Court further pointed out that, to the extent *762there was ambiguity, the legislative history of section 484 revealed an "obvious intent ... to create a single crime of theft." ( Vidana , at p. 648, 206 Cal.Rptr.3d 556, 377 P.3d 805.) And lastly, the Court found it significant that "[l]arceny under section 484[, subdivision (a) ] and embezzlement under section 503 also generally have the same punishment." ( Id. at pp. 648-649, 206 Cal.Rptr.3d 556, 377 P.3d 805.)


The complaint contained sentence enhancement allegations under Penal Code section 186.11. That section provides an enhanced prison term for "white collar crime"-defined as two or more related felonies, a material element of which is fraud or <mask>, which pattern of conduct involves the taking of, or results in the loss of, more than $100,000. ( Pen. Code, § 186.11, subd. (a).) For our purposes, the statute also provides a means by which property in the hands of the white collar defendant may be *871"preserved by the superior court in order to pay restitution and fines." ( Pen. Code, § 186.11, subd. (d)(1).) Upon conviction, the property "may be levied upon by the superior court to pay restitution and fines" if the facts supporting the white collar enhancement are "admitted or found to be true by the trier of fact." (Ibid. ) For this reason, Penal Code section 186.11"is sometimes known as the 'Freeze and Seize Law.' [Citation.]" ( People v. Green (2004) 125 Cal.App.4th 360, 363, 22 Cal.Rptr.3d 736 [restitution award of seized property reversed for failure to file a Penal Code section 186.11 petition].)


In The Superior (22 F. 927 [D. Ct. N. Y.]) a woman was employed as a cook on a ship, under articles which provided that she was engaged for a round trip “ if not sooner discharged.” She testified that she was not aware of the latter clause. She was discharged at an intermediate domestic port, for having an ungovernable temper, and using disrespectful, profane and obscene language to the master. Judge Cox stated at page 928: “ The weight of evidence has convinced me that her temper was ungovernable, her language obscene, profane, and direspectful, and her conduct, upon at least two occasions, reprehensible *252in the extreme. I fail, however, to find anything in the testimony which justified the master in turning her away penniless, friendless, and alone — a stranger in a foreign port. The books have been searched with some anxiety to find an authority sustaining the respondent’s view, but without success. Discharges, pending the voyage, have been upheld where there has been ‘ mutinous and rebellious conduct, persevered in; gross dishonesty or <mask>, or theft, or habitual drunkenness; or where the seaman is habitually a stirrer-up of quarrels, to the destruction of the order of the vessel and the discipline of the crew.’ ”


The vanishing of the ship was a "mysterious disappearance”, not a theft, argues the defendant. There would be a "mysterious disappearance” if the ship had sailed off into the sunset and had never been heard from again. Here, the ship did not drift off, or quietly settle to the bottom. Incontrovertibly, there was a theft. It is precisely to negate the possibility of mysterious disappearance, purloining or pilfering by the ship’s company, or the unaccountable loss of property aboard the ship that the policy calls for physical evidence to show the loss by marauders. "Visible evidence of forcible entry” there had to be, and visible evidence there was. That requirement is designed to exclude a consensual taking (fraud or trick), as well as to rule out conversion or <mask>. (Note that barratry of the Master and Mariners is still covered.) The breaking of the locks and the cut lines shows what occurred. Compare Swift v American Universal Ins. Co. (supra) where the plaintiff, returning to his yacht after it had been locked up for the night, found the locked doors had been forced open, and his property missing.


At one point in the memorandum (supra, p 135) the Attorney-General notes that: "the commission of fraud as deñned in the Martin Act is not made a crime under that Act. While the crimes of larceny, <mask>, forgery and other felonies would be involved in many security frauds, they require that the prosecutor prove criminal intent, thereby making conviction extremely difficult.” (Emphasis added.) And at another point: "These proposed amendments to the statute are not intended to narrow or to repeal the coverage of prior language but rather they are intended to expressly broaden those acts and practices coming within the condemnation of the statute.”


Hilton, J. The defendants were sued jointly for maliciously procuring the arrest and imprisonment of the plaintiff, on the 21st day of November, 1855. The proof, on the trial before the referee, showed that the plaintiff was first arrested on the 20th of November, at the instance of the defendant Lawrence Delaney; that he was imprisoned for that night, and in the morning, on being brought before the police justice, was discharged, because it appeared that the money which it was alleged the plaintiff had embezzled did not belong to the defendant Lawrence, hut was the property of his wife. He therefore went for her, and she came before the justice and made her complaint for the <mask>. The plaintiff being still in the court room, was informed by the justice that he could not depart until he gave bail for his appearance on-the charge. Ho did so, and then left, and- it is for this last arrest the present action is brought, it appearing that Ann Delaney subsequently went before the Grand Jury to procure the plaintiff’s indictment on the charge she thus made, when her complaint was dismissed. On the proofs the referee held the defendants jointly liable, and reported in the plaintiff’s favor, fixing his damages at one thousand dollars.


We hasten to add that several public policy concerns support our conclusion that defendant's crime is not eligible for reduction under our interpretation of Proposition 47. As other courts have recognized, an offense under section 11368 is not simple theft or forgery. Rather, it involves, as in defendant's case, "forg[ing] or alter[ing] a prescription or ... obtain[ing] any narcotic drug by any forged, fictitious, or altered prescription," an offense "punish[able] by imprisonment in the county jail for not less than six months nor more than one year, or in the state prison." ( § 11368.)7 We are aware of *677no legal authority, and defendant directs us to none, where a court conflates forgery and theft, much less forgery of a medical prescription and theft. (Compare People v. Wheeler (2005) 127 Cal.App.4th 873, 878-879, 26 Cal.Rptr.3d 138 ["the ordinary meaning given to 'forgery' in California is related to the making or use of a counterfeit or fake document"]. Compare People v. Gonzales, supra, 2 Cal.5th at p. 869, 216 Cal.Rptr.3d 285, 392 P.3d 437 ["Section 490a provides: 'Wherever any law or statute of this state refers to or mentions larceny, <mask>, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor.' ... Section 490a contains no exceptions. Nor does any part of the ballot language accompanying the initiative indicate a desire to modify the express and inclusive language of section 490a"].) Nor should medical prescription forgery and theft be conflated. "Prescriptions are the means by *560which physicians and other authorized practitioners achieve legitimate medical purposes. ( People v. Wheeler (2005) 127 Cal.App.4th 873, 880 [26 Cal.Rptr.3d 138].) 'The protection of the health and safety of the public in obtaining medical prescriptions is critical. [Citations.] Physicians, pharmacists, and patients must be able to rely on the integrity of the system. [Laws against prescription forgery are] aimed at helping preserve that integrity by prohibiting counterfeiting of a physician's authority to prescribe, deceiving of the pharmacist, corrupting the public's legitimate supply of medicine, and, potentially, defrauding of insurance companies or government programs. Far more is implicated than just an offender's personal involvement with drugs.' ( Ibid. )." ( People v. Brown (2017) 7 Cal.App.5th 1214, 1218, 213 Cal.Rptr.3d 371.)


Accordingly, the sole question remaining is how much the defendant Robert W. Smith owes to the plaintiff. Jeanne M. Smith, as suggested earlier in this opinion, is not liable for the <mask> of her husband. No proof was offered imputing knowledge by her of his defalcations, that he was acting as her agent, or that she ratified his acts so as to make her liable along with her husband (see 15 N. Y. Jur., Domestic Relations, §§ 270, 272, 273, 283, 301).


In the Klinger case (supra), wherein a corporate landlord’s secretary was prosecuted for <mask> of securities deposited with the corporation under a lease, it was shown that the defendant owned one half of the corporation’s stock and, with her husband, controlled the corporation. The court held (p. 533) that “ Corporate officers may be criminally liable for their own acts although performed in their official capacity as such officers. * * * a corporate officer * * * is answerable where scienter or authority on his part are established, or when he is the actual, present and efficient actor behind the corporation.”


Judge Cardozo elucidated the problem of defining dishonest in World Exch. Bank v Commercial Cas. Ins. Co., (255 NY 1, 5), when he stated: "Dishonesty, unlike <mask> or larceny, is not a term of art. Even so, the measure of its meaning is not a standard of perfection, but an infirmity of purpose so opprobrious or furtive as to be fairly characterized as dishonest in the common speech of men. 'Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract’ (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 51; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 84).” (Emphasis added.)


Chapter 208 of the Laws of 1877 makes the conversion to his own use, or the fraudulent withholding any money, goods, property, rights in action, &c., belonging to an estate or person, by any person acting as executor, administrator, trustee or guardian, <mask>, and punishable by fine and imprisonment. It is desirable that this law should- be called to the attention of all such trustees, and henceforth the letters issued should contain an indorsement by way of notice of its provisions. I have deemed it to be my duty to say thus much upon the general subject by way of calling attention to the duties and responsibilities of trustees, in the hope that it may result in a more diligent, faithful and honest administra*505tion of their trusts, blow, as to the proper disposition of this motion, the delinquent executrix may congratulate herself that the law just cited is not retroactive. I entertain no doubt on the evidence that she is substantially without the means of performing the decree in this matter, and that her imprisonment cannot aid the beneficiary, whose funds have been misappropriated, and as the widow, as dowress, has an interest in the premises, it seems to me that that interest should be devoted to reimbursing the claimant. She should be committed to prison until she shall pay the sum required to be paid by said decree, and fifty dollars cost of this proceeding, unless she shall execute a release of so much of her interest in the premises and to the rents thereof as shall be necessary to cover such sums.


*260Shortly after the decision in Williams , the First District Court of Appeal decided People v. Stanfill (1999) 76 Cal.App.4th 1137, 90 Cal.Rptr.2d 885 ( Stanfill ). There, the defendant was charged with felony <mask> of public funds for which there was a three-year statute of limitations. He requested a lesser included misdemeanor offense instruction, which the trial court gave. The jury found the defendant guilty of the misdemeanor offense. He appealed, correctly claiming the one-year statute of limitations had run on the misdemeanor offense.


Second, reading such a knowledge requirement into the offense of attempted violation of section 405a would be inconsistent with the law on mistake as a defense. There are circumstances in which a good faith mistake about the legal significance of the relevant facts may negate a defendant's specific intent and constitute a defense to a crime. For example, a mistaken belief about the ownership status of property can be a defense to the receipt of stolen property ( People v. Russell (2006) 144 Cal.App.4th 1415, 1431, 51 Cal.Rptr.3d 263 ); a good faith mistake about the defendant's legal right to take or use property can be a defense to theft or <mask> ( People v. Vineberg (1981) 125 Cal.App.3d 127, 137, 177 Cal.Rptr. 819 ;


The second question, which, in my view, warrants consideration by the appellate court, is one which involves the application of section 1290-a of the Penal Law. Keeping in mind the opinions — -majority and minority- — of the Court of Appeals in People v. Lobel (298 N. Y. 243) this section was amended in 1950 to read as follows: ‘ ‘ If, however, the defendant made use of any false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, evidence thereof may not be received at the trial unless the indictment or information alleges such representation or pretense, and it shall be immaterial whether the theft may have been previously denominated common law larceny by asportation, common law larceny by trick and device, obtaining property by false pretenses or <mask>. ”


There is no ambiguity in the shoplifting statute as it applies to defendant's conduct. Defendant entered Dole Transportation "to inquire about a motor home that was possibly for sale." One appellate court has construed "commercial establishment" in this statute to mean "one that is primarily engaged in commerce, that is, the buying and selling of goods or services." ( In re J.L. (2015) 242 Cal.App.4th 1108, 1110, 1114, 195 Cal.Rptr.3d 482 [a *959minor student who stole another student's cell phone out of a school locker had not engaged in theft from a "commercial establishment," so the minor's offense was not eligible for reclassification as misdemeanor shoplifting under Proposition 47].) At a minimum, Dole Transposition was engaged in selling motor homes, fitting within this definition of a "commercial establishment." Defendant entered Dole Transportation, while it was open during regular business hours, around 11:45 a.m. and, while inside, committed theft of cigarettes and a wallet out of which she took $242, which is a form of larceny. (§ 490a ["Wherever any law or statute of this state refers to or mentions larceny, <mask>, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor"].)


While the terms of the decree in bankruptcy are general, assuming to discharge all provable claims and demands against the decedent, yet such decree must be read and construed with reference to the provisions of the Bankruptcy Act under which ■it is made. ¡Section 16 of the National Bankruptcy Act, approved July 1, 1898, provides: “A discharge in bankruptcy shall release a bankrupt from all his provable debts, except (1) such 'as are due as a tax levied by the United States, the State, county, district or municipality in which he resides; (2) are judgments.in actions for fraud, or obtaining property'by false pretense or false representations, or for wilful or malicious injuries to the person or property of another; (3) have not been1 duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt unless such creditor had notice or actual knowledge of the proceedings in bank*238ruptcy; or (4) were created by bis fraud, <mask>, misappropriation or defalcation, while acting as an officer or in any fiduciary capacity.”


Third. “Question, [to defendant’s driver on cross-examination.] Is it not a fact that you left Ridleys’ with money belonging to them? Answer. Yes, sir, I did. Q. Moneys that you had collected for them? A. Yes, sir.” The defendant claims that a witness can be impeached in only three ways:- (1) By disapproving the facts stated by him; (2) by general evidence affecting his credit; (3) by proving that the witness has made statements out of court contrary to what he has testified at the trial,—citing 1 Green]. Ev. §§ 461, 462. We think the evidence was properly received. It did not ask as to an accusation, but a fact. The distinction is obvious. Thus, while you cannot ask a witness whether he has been arrested, (Wright v. People, 1 N. Y. Crim. R. 462,) or indicted, (Ryan v. People, 79 N. Y. 599,) or expelled from the fire department, (Nolan v. Railroad Co., 87 N. Y. 68,) you can ask him whether he was not guilty of a particular offense; for, as the court of appeals said in People v. Irving, 95 N. Y. 544: “Mere charges or accusations, or even indictments, may not so be inquired into, since they are consistent with innocence, and may exist without moral delinquency; but, where the witness is called upon to confess or deny his guilt of a crime, his answer, if in the affirmative, tends to impair the credit of the witness by its tendency to establish a bad moral character. The party putting such a collateral question is concluded by the answer of the witness, and, if he denies the offense, cannot be contradicted by other evidence.” Conley v. Meeker, 85 N. Y. 618. The witness (the defendant’s driver) testified that he had been discharged from Ridleys’, and that lie had left with moneys which lie had collected for them. He had been in their employ as a driver. The unexplained failure to pay over these moneys constituted <mask>, under the statute, (3 Rev. St. 6th Ed. p. 952, § 73,) and is made larceny by thePenal Code, § 528. The driver had been called by the defendant to contradict the plaintiff, and did contradict him as to certain material matters ; and it was competent for the plaintiff to break down his credibility by proof from his own lips that he had been guilty of acts tending to prove his bad moral character. In People v. Casey, 72 N. Y. 398, the prisoner, on his trial for murder, was called as a witness on his own behalf, and on cross-examinatian was asked as to other acts of wrong-doing committed by him. In sustaining the trial judge, the court of appeals said: “ When a prisoner offers himself as a witness on his own behalf, he is subject to the same rules of cross-examination as any other witness. He may be asked questions disclosing his past life and conduct, and thus impair his credibility. Such questions may tend to show that he has before been guilty of the same crime as that for which he is put on trial; but they are not on that account incompetent. * * * The extent to which such an examination may go to test the witness’ credibility is largely in the discretion of the court. ” We think the right was not abused in the present instance.


awards, arguing the trial court abused its discretion in awarding $6,600 in victim restitution to D.S. and T.S., a married couple, who were the victims of the conduct charged in count 23. We affirm the award. FACTUAL AND PROCEDURAL BACKGROUND The third amended felony information charged defendant with grand theft (Pen. Code, § 487, subd. (a);1 counts 1, 4, 6, 10-17, 23-24); filing a false or forged instrument with the county recorder’s office (§ 115, subd. (a); count 2); taking or driving a motor vehicle with intent to deprive the owner of title to or possession of the vehicle (Veh. Code, § 10851, subd. (a); count 3); identity theft (§ 530.5, subd. (a); count 5); forgery (§ 470, subds. (c), (d); counts 7-9); fraudulently inducing a person to sign a contract (Civ. Code, § 2945.4, subds. (a), (e), (f); counts 18-20); and unlawful practice of law (Bus. & Prof. Code, § 6126, subd. (a); count 21). The information also alleged as to counts 8 and 9 that defendant had been released on bail when those offenses were committed (§ 12022.1) and as to all counts that defendant had engaged in a series of felonies the material element of which was fraud and <mask> in an amount exceeding $500,000 (§ 186.11, subd. (a)) (a great-taking enhancement). Defendant resolved the matter by pleading no contest to counts 1, 2, 4, and 9, as well as admitting the on-bail enhancement and the great-taking enhancement in exchange for a stipulated prison sentence of 12 years. The remaining charges and allegations were dismissed with a Harvey2 waiver for purposes of restitution. On February 16, 2018, defendant was sentenced in accordance with the plea agreement. He was also ordered to pay certain fees and victim restitution. The court retained jurisdiction to award further restitution to other victims of defendant’s crimes.


Moreover, under section 353-a of the General Business Law (Martin Act) plaintiff has the authority only to take custody of the identifiable property specified therein. (See Matter of Koch, 116 F. 2d 243, 246.) It is the court’s opinion that the broad powers conferred by the order must be disregarded and that the employee’s <mask> of defendant’s securities was not a fraudulent practice as defined by the Martin Act. Mr. Justice Hecht in this very case (sub nom. People v. Phillips (4 Misc 2d 804, 809) said:


Anne Catambay's husband was sued in Santa Clara County for <mask>. That lawsuit resulted in a judgment against him for over one million dollars. A corporation--Longview International, Inc.--is the judgment creditor. Longview International recorded an abstract of judgment in San Mateo County, creating a judgment lien on real property owned by Catambay's husband in that county (a house in Redwood City). Two days later, Catambay's husband conveyed the Redwood City house to her as part of a marital settlement agreement in their then-pending dissolution proceeding.


A case dating back to 1942 held that a conviction for larceny by <mask> based on the failure to pay over city sales taxes was valid (People v Felber, 264 App Div 181). There, a corporation having two places of business filed only one sales tax return through the Bronx office, even though separate books were kept for each office. Entries were made in the Manhattan cash disbursement books showing that the tax had been paid. The Bronx office would then receive a check from Manhattan for the tax amount, but would record the check as received for other purposes. The returns filed with the city omitted the taxes collected in Manhattan. The court ruled that the company was in possession as a trustee for the city of funds collected from customers for sales taxes and, when the funds were applied to the company’s own use, the larceny was complete. The court reached its conclusion by stating that it was the law of this State that the fraudulent conversion by a vendor of city sales taxes collected from purchasers was a larceny. No further analysis was made.


It didn't take long. Just a few months later, the Court of Appeal for the First District, Division Two addressed one variation of the issue in People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150, 90 Cal.Rptr.2d 885 ( Stanfill ). In Stanfill , the defendant stood accused of felony <mask> of public funds under section 504 alleged to have happened over the course of several years. The same statute provided the offense was a misdemeanor where the embezzled funds were not public or came to less than $400. (§ 504.) After trial, Stanfill requested standard jury instructions on the lesser included misdemeanor offense and general instructions on the statute of limitations. ( Stanfill , at p. 1142, fn. 1, 90 Cal.Rptr.2d 885.) Ultimately, the court instructed the jury they could find Stanfill guilty of violating section 504 "if the proof shows beyond a reasonable doubt that he committed any one or more of the acts between the dates of August 6, 1993 and August 5, 1996" and "where a temporary use of property 'aggregates in excess of $400 in any period of twelve consecutive months between August 6, 1993 and August 5, 1996.' " ( Id. at p. 1143, 90 Cal.Rptr.2d 885.) The court did not mention the one-year limitation period for the misdemeanor. The jury acquitted Stanfill of the felony offense, but found him guilty of the misdemeanor offense. ( Ibid. ) Stanfill then turned around and appealed the misdemeanor conviction on the ground the trial court had misinstructed the jury by telling them they could convict him of the lesser included misdemeanor without informing them of the one-year limitations period applicable to that offense. ( Id. at pp. 1142-1144, 90 Cal.Rptr.2d 885.)


(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Ark. R. Evid. 608 (2018). We specifically held in Sitz v. State , 23 Ark. App. 126, 128, 743 S.W.2d 18, 20 (1988), that <mask>, a form of theft, is not a crime that is probative of untruthfulness and thus is not admissible under Rule 608(b). See also Arendall v. State , 2010 Ark. App. 358, at 19, 377 S.W.3d 404, 416. We decline Swanigan's *752invitation to revisit this decision, and we do not find the present case to be distinguishable. Accordingly, the circuit court did not abuse its discretion in refusing to allow the evidence.


To elect is to choose. For an election it is essential that there should be presented at least two alternatives so related to one another that upon grasping one the other passes out of reach. The uncontroverted facts developed in this proceeding show that the petitioner never had the right to elect because there never were any alternative remedies. The decedent misappropriated $2,000. He said that this sum went to increase the $12,000 mortgage by that amount. But the parties by their proof demonstrate that nothing of the kind took place. The present petitioner, defrauded by this misappropriation, might perhaps have resorted to estoppel to prevent the decedent in his lifetime or his estate after his death from showing the true nature of the transaction. But the petitioner has not done this. On the contrary, the petitioner and respondent have collaborated to translate the actual facts into a legal record. And these facts show not an unauthorized investment by decedent but a plain <mask> of the petitioner’s funds. Having waived the estoppel open to it, petitioner can recover only if it can now accept the offer made by the decedent in his lifetime to give an assignment of the second mortgage in discharge of his $2,000 debt. That offer was twice rejected, first, on the seventeenth and, thereafter, on the twenty-second of December. No principle is more obvious than that an offer terminated when its rejection is communicated to the offerer.


Plaintiff commenced this action to recover wages and damages for, inter alia, “<mask>,” “involuntary servitude” and “discrimination.” Plaintiff’s present claims, although slightly different from those interposed in his prior action against his former employer, and defendants’ current employer, Bally’s Total Fitness Corp. (Thomas v Bally’s Total Fitness Corp., 12 Misc 3d 131[A], 2006 NY Slip Op 51053[U] [App Term, 2d & 11th Jud Dists 2006]) are all related to alleged acts of Bally’s employees in the course and scope of their employment and, therefore, fall within the ambit of Bally’s Employee Dispute Resolution Procedures (EDRP). The EDRP provides for arbitration when any dispute arises between an employee against the employer Bally’s. The EDRP further provides, inter alia, that the term “Employer” therein “is understood to include each of the Employer’s subsidiary and/or affiliated entities . . . and all of their respective owners, stockholders, directors, officers, employees and pension or benefit plans and their fiduciaries” (emphasis added). Plaintiff did not attempt below, and does not attempt on appeal, to show how his present claims fall outside the scope of the EDRP It should be noted that the only issue presented to this court upon plaintiffs appeal in his prior action against Bally’s was whether the EDRP was procedurally or substantively unconscionable; we found that it was neither (id.; see also Gillman v Chase Manhattan Bank, 73 NY2d 1 [1988]).