The contention of the defendant is that the underlying facts of both indictments, proof of which is essential to establish either offense, is the alleged <mask> of Paul H. Wendel; that the Federal indictment charges a conspiracy to transport in interstate commerce a kidnapped person; that the kidnapped person in each instance was Paul H. Wendel; that upon that fact depended the guilt of those charged with conspiracy in the Federal court; that while there is no such crime as kidnapping under the Federal statutes, yet there must be proof of facts which constitute the crime of kidnapping under the laws of New York, before a crime of conspiracy to transport in interstate commerce can be established under the Federal law. The argument is advanced that there need not be absolute identity of all the facts essential to give jurisdiction to both sovereignties; it is sufficient if offenses under both jurisdictions necessitate proof of some identical facts essential to establish violations.


Section 667.61 subdivision (a) provides that an accused under specified circumstances can be subject to an indeterminate sentence of 25 years to life.5 (See *11People v. Carbajal (2013) 56 Cal.4th 521, 534, 155 Cal.Rptr.3d 335, 298 P.3d 835 ; People v. Anderson (2009) 47 Cal.4th 92, 102, 97 Cal.Rptr.3d 77, 211 P.3d 584.) Section 667.61, subdivision (c) identifies the offenses which can result in an indeterminate term if a specified qualifying circumstance is present. Two of the offenses which can result in an indeterminate term when accompanied by a qualifying circumstance are present in this case: rape and oral copulation in concert. ( § 667.61, subds. (c)(3) and (7).) The qualifying circumstances are found in section 667.61, subdivisions (d) and (e). One of the qualifying circumstances which can result in an indeterminate 25-years-to-life sentence is specified in section 667.61, subdivision (d)(2) which states, "The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." (See People v. Byrd (2011) 194 Cal.App.4th 88, 100-101, 124 Cal.Rptr.3d 430 ; People v. Jones (1997) 58 Cal.App.4th 693, 712-716, 68 Cal.Rptr.2d 506.) In our case, the jury convicted defendant of rape and forcible oral copulation in concert and found the section 667.61, subdivision (d)(2) <mask> qualifying circumstance allegation true. Both defendants were sentenced on count 4 to indeterminate life terms for kidnapping to commit rape and oral copulation in violation of section 209, subdivision (b). The count 4 indeterminate sentences carry specified minimum parole eligibility dates.


Willbanks was 17 years old when he was charged with <mask>, first-degree assault, two counts of first-degree robbery, and three counts of armed criminal action. He was convicted and sentenced to consecutive prison terms of 15 years for the kidnapping count, life for the assault count, 20 years for each of the two robbery counts, and 100 years for each of the three armed criminal action counts. Id. at 239. Willbanks asserted that "his sentences, in the aggregate, will result in the functional equivalent of a life without parole sentence." Id. at 239. He went on to point out that "[t]he Supreme Court held [in Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),] that the Eighth Amendment prohibits juvenile nonhomicide offenders from being sentenced to life without parole." 522 S.W.3d at 242.


took place. See 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(b)(2) (3d ed. 2018). Instruction No. 13 was an accurate statement of the law as to count I, <mask>, and count II, use of a firearm to commit a felony, and we conclude that although erroneous as applied to the conspiracy charge, any such error was harmless. See State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012). The undis- puted evidence was that all three alleged crimes physically took place in Madison County, and as such, instruction No. 13 would not have confused the jury. A hearing on this claim was not warranted. (l) Right Not to Testify Betancourt claims that appellate counsel did not raise that trial counsel did not adequately advise him about his right not to testify and that if he decided not to testify, that fact could not be considered an admission of guilt and must not influence the verdict in any way. Regardless of whether trial counsel advised Betancourt he had a right not to testify, the record shows that he was so advised by the court. At his arraignment, Betancourt was advised of his right not to testify, as well as advised that if he chose not to testify, that fact could not be used against him. Thus, even if trial counsel failed to advise Betancourt in this regard, he was not prejudiced thereby and appellate counsel was not ineffective in not pursuing this argument. A hearing on this claim was not warranted. (m) Sentence for Count III, Conspiracy Betancourt claims that appellate counsel, while serving as trial counsel upon remand for resentencing on the conspiracy conviction, was ineffective for not objecting to the district court’s imposition of a sentence of “life imprisonment without parole.” The State concedes that Betancourt’s conspiracy sen- tence of “life imprisonment without parole” is not authorized. In Betancourt I, the direct appeal, we remanded the cause for resentencing on the conspiracy conviction with directions to impose a life sentence. We said: - 461 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


Other double punishment cases in this State and in California decide substantially the same issue. (People v. Florio, 301 N. Y. 46; People v. Oliver, 4 A D 2d 28, affd. 3 N Y 2d 684.) In Florio, the <mask> preceded the rape, and although “ separate ” crimes, were held singly punishable. In Oliver, it was held that the assault and the burglary were ordinarily separate crimes but since the assault was a ‘ ‘ necessary ingredient ’ ’ of the breaking and entry and committed to effect such entry, the crimes could not be doubly punished.


The People, however, assert that the indictment herein contains a count charging the defendant with the crime of assault in the second degree, which in no way is involved in the charge in the Federal indictment. The second count is as follows: “ The defendants from February 14, 1938, to February 24, 1936, inclusive, in the County of Kings, assaulted Paul H. Wendel, with intent to commit upon him the crime of <mask>.”


On May 16, 2014, the jury returned its verdicts. As to count 2, Mr. Adams was convicted of forcible rape while acting in concert and the following special allegations were found to be true: he personally used a firearm within the meaning of *554sections 667.61, subdivisions (a) and (e) and 12022.53, subdivisions (b) and (e) ; he kidnapped the victim within the meaning of section 667.61, subdivisions (a) and (d) ; and the sexual assault was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(C). As to count 3, Mr. Adams was convicted of oral copulation by acting in concert and the jury found two special allegations to be true. The jury found Mr. Adams kidnapped the victim within the meaning of section 667.61, subdivisions (a) and (d). In addition, the jury found the offense was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (b)(1)(C). However, the jury found the firearm *515use allegation within the meaning of section 667.61, subdivisions (a) and (e) was not true. As to count 4, the jury convicted Mr. Adams of <mask> to commit another crime in violation of section 209, subdivision (b)(1). The jury found the gang and firearm use allegations to be true. (§§ 186.22, subd. (b)(1)(C); 12022.53, subds. (b) & (e).)


*117As previously explained in this opinion ( *431ante , 219 Cal.Rptr.3d at pp. 386-388, 396 P.3d at pp. 526-527), at the time of defendant's crimes in March 1999, a felony-murder special circumstance could apply only when it was shown "that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder." (People v. Mendoza, supra , 24 Cal.4th at p. 182, 99 Cal.Rptr.2d 485, 6 P.3d 150 ; People v. Green , supra , 27 Cal.3d at p. 61, 164 Cal.Rptr. 1, 609 P.2d 468.) With regard to a kidnapping-murder special-circumstance allegation specifically, a defendant had to have a "purpose for the <mask> apart from murder." (People v. Raley, supra , 2 Cal.4th at p. 902, 8 Cal.Rptr.2d 678, 830 P.2d 712 ; accord People v. Brents, supra , 53 Cal.4th at p. 609, 136 Cal.Rptr.3d 66, 267 P.3d 1135.)


Appellant does not claim the conduct described in the State's instructions were not included within the scope of the original charging document. Rather, he claims the original charging document was ambiguous as to whether the attempted <mask> was premised on removal or confinement. This is an important distinction, because to the extent Appellant is correct the charge was ambiguous as to whether the State would opt for removal or confinement, the charging document encompassed either, or both, methods of effecting kidnapping.


Defendant has moved to dismiss the indictment based upon legal insufficiency of the evidence before the grand jury. The charges in the indictment are based upon the defendant sending five separate letters to the victim, Michelle Moon, between April 13, 2001 and October 30, 2001. There were two separate court orders of protection forbidding any contact. Specifically, defendant claims there was no evidence showing his intent to harass, annoy or alarm Michelle Moon and insufficient evidence of any course of conduct by the defendant likely to cause Michelle Moon to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the <mask>, unlawful imprisonment or death of herself. In support of his argument the defendant stresses the fact that he was incarcerated at Albany County Jail on the dates the letters were sent. Therefore, the defendant argues, it was not reasonable for Michelle Moon to reasonably fear any of the aforementioned consequences set forth in the statute. Defendant also argues that any fear must go to an imminent or reasonably imminent act and since the defendant was incarcerated any fear of Michelle Moon was not within the scope of the statute. The defendant further argues that the court should apply the reasonableness standard set forth in the justification defense of article 35 of the Penal Law in relation to any fear of the victim. Reasonably believes as contained in article 35 of the Penal Law involves both a subjective and objective test (see, People v Goetz, 68 NY2d 96).


Appellant was charged with attempted <mask> under Sections 564.011 and 565.110. "[T]he crime of attempt has two elements: (1) the purpose to commit the underlying offense, and (2) the doing of an act which is a substantial step toward the commission of that offense." State v. Bonich, 289 S.W.3d 767, 771 (Mo. App. S.D. 2009) (internal quotation marks omitted). Kidnapping may be effectuated via two alternative methods: either confining or removing a person, in addition to being for one of the unlawful purposes stipulated by the statute. Section 565.100; State v. Porter, 241 S.W.3d 385, 390 (Mo. App. W.D. 2007). In contrast, false imprisonment cannot be effectuated by removal, only by confinement (or, as the statute phrases it, "restrain[t]"). Section 565.130. The statute does not require that an individual do so in furtherance of an unlawful purpose. Id.


Defendant asserts that the trial court erred in instructing the jury with a version of CALCRIM No. 1203, modified at the prosecutor's request, because the modified *614version allowed the jury to convict him of <mask> to commit robbery on a theory not supported by the evidence. Specifically, defendant contends that the trial court committed reversible error in modifying CALCRIM No. 1203 to specify that the intent to commit robbery includes the intent to aid in the escape from the robbery. Defendant asserts that there was no evidence to support a theory that the asportation of S.A. occurred in order to effectuate defendant and codefendant's escape.


Lead counsel testified that in his first meeting with the petitioner, the petitioner “was in real distress, and he was extremely psychotic” and “struggling mightily.” He said that the petitioner “was clearly hearing things” and “was obviously physically The record does not indicate a further disposition on the petitioner’s especially aggravated <mask> charges. trying to resist whatever it was he was being told to do.” Lead counsel said that he had “[n]o doubt” that the petitioner was suffering from a mental illness. He said that he hired Doctor Keith Caruso to evaluate the petitioner in an unrelated case in which lead counsel was also representing the petitioner and that both Doctor Caruso and the State’s expert determined that the petitioner “could rely on the defense of insanity” in that case. The trial court gave lead counsel 60 days in which to submit a report from Doctor Caruso in this case, which deadline Doctor Caruso said that he could not meet. Lead counsel received a draft report from Doctor Caruso “sometime in the middle of May of [20]09,” which report lead counsel reviewed, annotated, and discussed with Doctor Caruso. Lead counsel’s annotated copy of the May 2009 report is included in the record.


Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed in part, and in part reversed and remanded with direction. Brad J. Montag, of Egley, Fullner, Montag, Morland & Easland, P.C., for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Harder and Masteller, District Judges. Miller-Lerman, J. I. NATURE OF CASE Rosario Betancourt-Garcia (Betancourt), who is serving sentences of imprisonment for his convictions for kidnap- ping, use of a firearm to commit a felony, and conspiracy to commit <mask>, filed a petition for postconviction relief. The district court for Madison County granted an evidentiary hearing on three of Betancourt’s claims and denied the bal- ance of Betancourt’s petition without an evidentiary hearing. Betancourt appeals. He claims on appeal that he was entitled to an evidentiary hearing generally concerning several layered claims of ineffective assistance of appellate counsel, related to, - 443 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


Before concluding, it is noted that one of the merger doctrine’s initial concerns was to avoid elevating less serious offenses into more serious crimes by liberal application of the <mask> statute’s language. The disparity between the two crimes involved herein, particularly the sentences which may be imposed, cannot be ignored. Attempted escape in the first degree is a class E felony offense (Penal Law, §§ 110.05, 205.15), whereas kidnapping in the second degree is a class B violent felony offense (Penal Law, §§ 135.20, 70.02). If, as it appears, the defendant has been subjected to one or more predicate violent felony *30convictions, the mandatory sentence he faces is clearly not insignificant. (Penal Law, §§ 70.04, 70.08, 70.25.)


I respectfully dissent, however, from the holding that the admission of the incriminating statements obtained in violation of Miranda did not prejudice the jury's finding that defendant kidnapped his girlfriend Guadalupe Montellano. I will summarize several reasons why; they involve my disagreement with the majority about the relationship between the murder and <mask> charges, the mediocre quality of the video footage introduced at trial, and the fact that the video does not, and cannot, corroborate the key element of fear that Montellano emphasized as the reason why, according to her, she got in the car with defendant against her will.


This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree <mask>, sex trafficking, extortion, and three counts of sexual assault. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge. A jury found appellant Keair Jamal Boyd guilty of the above- referenced crimes, after which the district court sentenced Boyd to an aggregate sentence of life imprisonment with parole eligibility after 256 months. On appeal, Boyd challenges several evidentiary decisions, jury instructions. and the sufficiency of evidence to support the first-degree kidnapping conviction. We address each of his arguments in turn. Evidentiary rulings Expert testimony Boyd argues that the district court erred by allowing Sergeant Richard Leung to testify as an expert about the pimp-prostitute relationship because the subject matter fell within the jury's knowledge and Leung's testimony "unfairly bolstered" the victim-B.W.'s credibility. Boyd also contends that the testimony's prejudicial effect "far outweighecr its


Carter told Special Agent Graham that at approximately 12:50 Saturday morning on October 27, 1979, he had received a telephone call from Dennis Simpson. The defendant, Dennis Simpson, told Jonathan Carter in the telephone conversation that he was involved in the <mask> and wore a stocking hat and that the kidnapped car was dropped downtown. Dennis Simpson stated on the telephone that he had seen a red car go by his home in Portchester and suspected that it was driven by the police.


The threat Montellano claimed defendant made cannot be heard on the video; the camera recorded no audio at all. That means that on the key issue of whether Montellano was unlawfully moved by fear, her testimony-impeachable for the reasons identified by the majority ante at pages 913 to 914-was largely if not entirely uncorroborated. Under the circumstances, and with the other points I have already discussed in mind, I cannot hold harmless the admission of the incriminating statements the detectives obtained in violation of Miranda . In my view, a new trial is required on both the murder charge and the <mask> charge.


(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court. The circuit court noted Parks was charged with four Class Y felonies, the most serious classification of offenses other than capital murder. The circuit court specifically found the offenses "could hardly be more serious" and "[d]ue to the seriousness of the offenses and this defendant's level of participation in them, the Court *185is of the opinion the issue of societal protection weighs in favor of the State." (2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner. The circuit court found the offenses were committed in an aggressive, premeditated, and willful manner. (3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted. The circuit court found the offenses were committed against not one, but two people, and resulted in the death of Kaleb Watson. (4) The culpability of the juvenile, including the level of planning and participation in the alleged offense. The circuit court was of the opinion Parks had "significant" culpability in the commission of the offenses, specifically noting Parks not only was present at the planning of the robbery and <mask>, which ultimately resulted in a homicide, but "it is fair to say the homicide would not have occurred but for his involvement." The circuit court found Parks "provided the target and the motivation for the robbery by advising the other defendants of valuables within the victim's residence"; provided a bag to be used in the robbery and the shoelace used to restrain Watson; and actively participated in the plan he helped concoct by creating a diversion at Watson's front door to allow the Sharps to enter the residence through the back door. (5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence. The circuit court noted Parks had been adjudicated a juvenile offender on five occasions, although none were offenses against persons or felonies. Nevertheless, evidence of antisocial and violent behavior at school was presented, including shoving other students, fighting, and making threats against his peers at school. (6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult. The circuit court found Parks was neither sophisticated nor mature, and he suffered from low intellectual functioning. (7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday. While there were facilities and programs available, the circuit court found there was insufficient evidence from which it could determine the likelihood of rehabilitation. Concerns set forth by the circuit court were the lack of reliable statistics regarding recidivism, the uncertainty of housing options, recurring escapes from the facilities, and the fact that Parks's prior involvement with other juvenile resources, although not the same facilities or programs, had failed to rehabilitate him in the past. The circuit court was concerned Parks's limited intelligence would be a hindrance to successful rehabilitation in a juvenile facility. (8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense. It was undisputed Parks and the Sharp brothers acted as a group during the commission of the offenses. *186(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history. The circuit court noted Parks had "significant challenges" in his educational history; however, the records did not indicate those challenges impaired his ability to comport himself according to law. (10) Any other factors deemed relevant by the judge. The circuit court noted Parks's age at the time of the offenses; he was three days away from turning sixteen. It also considered that Parks's early cooperation with the police played a "vital role" in solving the crimes. However, in contrast, the circuit court found it was noteworthy Parks betrayed Watson, who had befriended and welcomed Parks into his home, and Parks repaid such overtures of friendship with actions that, at the very least, Parks knew would lead to terror and loss of property. Parks addresses each factor separately, but his arguments can be grouped together. As for factors one, two, three, and four, while conceding the offenses are serious felonies, Parks argues he was the least culpable of the three defendants because he was not the person who employed violence against Watson, he did not want to commit the crime, and he ran back to his house after knocking on Watson's front door. This argument is not persuasive. A juvenile may be tried as an adult solely because of the serious and violent nature of the offense. C.B. v. State , 2012 Ark. 220, 406 S.W.3d 796. Furthermore, it is of no moment Parks did not personally employ the gun used during the crimes; his association with the use of weapons in the course of the crimes satisfies the fact the crimes were committed in a violent manner. Neal v. State , 2010 Ark. App. 744, 379 S.W.3d 634.


Here, Johnson argues that the district court erred in calculating his Guidelines range by determining that his offense of unlawful imprisonment under Mich. Comp. Laws § 750.349b was analogous to U.S.S.G. §2A4.1 for <mask>, abduction, and unlawful restraint. Johnson failed to object to the application of §2A4.1 below and thus we review it for plain error. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).


Finally, we decline to exercise our discretion to reduce the maximum sentences imposed on the murder and first degree <mask> since the People’s evidence demonstrated that defendant was a significant member of a gang which mercilessly abducted and crushed the victim. In addition, defendant was required to raise the claim that he was improperly adjudicated a second felony offender at sentencing in order to preserve his claim for appellate review as a matter of law (People v Butler, 203 AD2d 35), and we decline to review in the interest of justice. Concur—Murphy, P. J., Rosenberger, Ross, Rubin and Williams, JJ.


a motion to quash count I, <mask>, and count II, use of a firearm to commit a felony. The district court did not adjudi- cate this allegation in its order. However, the claim is affirma- tively refuted by the record as we determined in Betancourt I, wherein we concluded that counts I and II were filed within the statute of limitations. Further, Betancourt’s counsel filed a motion to quash the State’s amended information based on the statute of limitations and specifically sought dismissal on count III, conspiracy. The record showed that on November 17, 2003, the State timely filed an initial information charging counts I and II and obtained an arrest warrant 2 days after the crimes were com- mitted. The State filed an amended information on May 21, 2014. The district court conducted a hearing on Betancourt’s motion to quash count III. The court heard evidence on whether Betancourt fled from justice for purposes of Neb. Rev. Stat. § 29-110(7) (Reissue 2008), which provides that the time limitation for filing charges “shall not extend to any person fleeing from justice.” That evidence showed the events involv- ing Betancourt’s ultimate arrest in Texas to where Betancourt had fled and subsequent extradition to Nebraska. Given the undisputed evidence that Betancourt had fled Nebraska and by application of § 29-110(7), the district court overruled Betancourt’s motion to quash count III. A motion to quash on counts I and II would have been similarly unsuccessful under § 29-110(7). Betancourt I, supra. A hearing on this claim was not warranted.


Section 1106 limits the evidence the defendant may use to support this assertion. It provides that "[i]n any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual <mask>, opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff's sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff ...." (§ 1106, subd. (a).) This general rule is, however, subject to the exception that it "does not apply to evidence of the plaintiff's sexual conduct with the alleged perpetrator." (§ 1106, subd. (b).) The term "sexual conduct" within the meaning of section 1106 has been broadly construed to include "all active or passive behavior (whether statements or actions) that either directly or through reasonable inference establishes a plaintiff's willingness to engage in sexual activity," including "racy banter, sexual horseplay, and statements concerning prior, proposed, or planned sexual exploits." ( Rieger , supra , 104 Cal.App.4th at p. 462, 128 Cal.Rptr.2d 295.)


Sergeant Kessler testified that a "Generation 3" ankle monitor was placed on defendant when he was released on EMP. There were no problems with those devices aside from having to charge the <mask>. The device would indicate if the charger was working. The inmates are instructed to notify their supervising deputy if they have problems with the ankle monitor or the charger.


In his amended motion, Appellant asserts the facts that he claims to have provided trial counsel would have supported a voluntary manslaughter instruction. Specifically, he points to the heated argument he and Victim had immediately preceding their fight, and the fact that Victim instigated the physical confrontation by throwing a punch at Appellant. These facts, if offered at trial, may well form the basis of voluntary manslaughter. Several Missouri cases indicate that a heated argument, culminating in the victim assaulting the defendant, may constitute evidence of sudden passion upon adequate cause, necessitating a voluntary manslaughter instruction. See State v. Redmond, 937 S.W.2d 205, 208-09 (Mo. banc 1996) ; see also State v. Fears, 803 S.W.2d 605, 609 (Mo. banc 1991) ; State v. Arnel, 846 S.W.2d 245, 247 (Mo. App. E.D. 1993) ("A manslaughter instruction is typically justified when the victim perpetrates <mask> upon the defendant.").


a question of subject matter jurisdiction, we address it as a threshold issue. 5 [5,6] Through the STCA, the Nebraska Legislature has enacted a limited waiver of the State’s sovereign immunity with respect to some, but not all, types of tort claims. 6 The STCA contains specific exceptions to the waiver of sover- eign immunity. As relevant here, the intentional tort excep- tion in § 81-8,219(4) provides that sovereign immunity is not waived for “[a]ny claim arising out of assault, <mask>, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contract rights . . . .” Because the language of this exception is nearly identical under both Neb. Rev. Stat. § 13-910(7) (Cum. Supp. 2020) of the Political Subdivisions Tort Claims Act (PSTCA) and § 81-8,219(4) of the STCA, we have applied cases construing the exception under the PSTCA to cases under the STCA, and vice versa. 7 Our cases construing and applying the intentional tort excep- tion have consistently barred claims like the one alleged by Williams. In Moser v. State, 8 we applied the intentional tort exception to bar a negligence claim brought by the estate of a man who was fatally assaulted by a cellmate. We concluded that the claim that prison officials had negligently double- bunked the two inmates arose out of the assault and thus fell within the STCA’s exception in § 81-8,219(4) for “[a]ny claim arising out of assault.” In Edwards v. Douglas County, 9 we applied that same excep- tion to bar a claim brought by a woman who was held hostage and sexually assaulted by a former boyfriend. The woman See Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 (2020). See Moser v. State, supra note 2. Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021). Moser v. State, supra note 2. Edwards v. Douglas County, supra note 7. - 595 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports WILLIAMS v. STATE Cite as 310 Neb. 588


In summary, the plaintiff’s causes of action to recover for false arrest/false imprisonment and intentional infliction of emotional distress may proceed insofar as asserted against Detective O’Rourke and Lieutenant Hearle. The plaintiff’s causes of action to recover for assault and <mask> may proceed as against Lieutenant Hearle only. The causes of action for assault, battery, and false arrest/false imprisonment may also proceed against the City under a theory of respondeat superior.


During the first phase of the trial, Harris only submitted the <mask> claim to the jury, abandoning the assault claim. The jury found in favor of Harris, assessed compensatory damages at $750,000, and found that Jungerman was liable for punitive damages. During the second phase of the trial, the jury awarded Harris $5 million in punitive damages. The trial court accepted the verdicts and entered judgment accordingly. This appeal by Jungerman followed.


Drivers approaching a signalized intersection in the dark when the traffic signals are not working are supposed to treat the intersection as a four-way stop and proceed only when it is safe. ( Veh. Code, § 21800, subd. (d)(1).) As in many aspects of daily life, however, "common experience shows they do not always do so." ( Cabral, supra, 51 Cal.4th at p. 775, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) It is foreseeable motorists and pedestrians entering an intersection when the traffic signals are not operating due to a power outage, particularly at night, may become confused and suffer harm if the <mask> backup unit is not operational. The foreseeability factor does *731not support an absence of duty as a matter of law.


The true explanation of the words, “ that fart of the city usually called the <mask> ”—although I believe it is not given in any of the depositions—is not difficult to be stated. It is found in the deed given by the corporation in 1815, to the purchasers of the lots on the Bowling Green and on State-street. The covenant in that deed describes the lands, to which it relates, as “ vacant grounds belonging to the corporation in the vicinity of the premises granted, and commonly called the Battery.” I see no reason to doubt that the words, “ usually called the Battery,” have the same meaning in the act of 1821, and ought therefore to be construed as applying exclusively to grounds then vacant, and then belonging to the corporation. Assuredly the word “ Battery ” had not a different meaning in 1821, from that which it is known to have borne in 1815. As it then excluded the lands ceded to the United States, it continued to exclude them.


II. BACKGROUND On December 2, 2019, Gnanaprakasam was arrested and the State filed a complaint against him in the county court, charging him with one count of third degree domestic assault, a Class I misdemeanor. The State later amended the com- plaint to charge him with assault and <mask> under the Omaha Municipal Code. Following a 1-week delay resulting from withdrawal of his counsel, the case was rescheduled for a bench trial on April 17, 2020. However, on April 7, 2020, the court continued Gnanaprakasam’s trial to June 16 for good cause under § 29-1207(4)(f). The court cited this court’s and the Douglas County Health Department’s administrative orders regarding the COVID-19 pandemic. On June 16, 2020, Gnanaprakasam filed a motion for abso- lute discharge, asserting that the State failed to bring him to trial within 6 months. At a hearing on his motion, the State called no witnesses and offered no exhibits, but requested the court to take judicial notice of its continuation order, which the court did. Gnanaprakasam introduced an audio record- ing of the hearing regarding the withdrawal of his counsel, the cited administrative orders, and the Nebraska Pandemic Bench Book. The county court overruled Gnanaprakasam’s motion for discharge, citing this court’s and the Douglas County Board of Health’s administrative orders regarding the COVID-19 pandemic. The court found that 197 days had elapsed between See, State v. Brown, ante p. 224, 964 N.W.2d 682 (2021); State v. Chase, ante p. 160, 964 N.W.2d 254 (2021). - 522 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. GNANAPRAKASAM Cite as 310 Neb. 519


Nassau argues for the application of the above-quoted definition of the insured to the assault and <mask> clause and, further, that the insured, in the exception, includes the driver employee Knight, an omnibus insured. At the outset, this court does not agree with those opinions (e.g., American Fid. Fire Ins. Co. v Allstate Ins. Co., 212 Va 302) construing this form of assault and battery clause as referring only to the named insured and not to an omnibus insured. The rationale' of such a constrained interpretation is the belief that assault *459could never be an accident; and so if the clause was construed as proposed by the insurer. This belief, however, is ill founded. Notwithstanding the fact that coverage may, in the end, be withheld from the named insured or an omnibus insured actually responsible for the commission of the assault or directing it to be committed, a view indicated by the discussion to follow, it is illogical to indiscriminately exclude from coverage all insureds whenever an assault is committed, without distinguishing the responsibility, if any, of the particular insured for that specific assault. Without allowing gross distortion of the term "the insured”, a pattern unfortunately followed in some jurisdictions, this court reaches the conclusion that Knight is an "insured” under the omnibus clause of the policy. Moreover, this assault and battery clause can preserve its intended effect so as to give equitable and fair treatment to the insurer, the named insured, and the omnibus insured.


On balance, consideration of the factors in Court of Claims Act § 10 (6) weigh in favor of granting the motion with respect to the causes of action for false arrest, assault, <mask> and negligent hiring, training and supervision. Claimant is to serve and file a proposed claim containing those causes of action in the manner required by Court of Claims Act § 11 within 30 days of service upon him of a file-stamped copy of this order. Permission to file claims for libel, slander, negligence, intentional infliction of emotional distress and violation of rights under New York State Constitution, article I, §§ 6, 11 and 12 is denied.


If this be so, then the affidavit purporting to be sworn to before a master in chancery, not being legal proof according to the principle laid down in 9th John. 75, and 11th Id. 175, *324left the ease withotit any proof of publication in New-York. The statute has provided before whom affidavits, to be used before an officer, under the act which authorizes a discharge to be granted, should be sworn to; and a master in chancery is not one of these officers. But the next section does provide when an affidavit may be made before a master in chancery. (2 R. S. 284, §§ 49, 50. See 9 Wend. 340.) The oath taken before the master in chancery was of no force or validity whatever. No perjury could be assigned on such an affidavit. It ■was not legal proof. It was no proof at all, any more than if the affidavit had been sworn to before a sheriff or constable. There was therefore no proof that the order to show cause had been published, or that the creditors had been notified, as the statute requires, of the time and place of showing cause; and of course the proceeding founded on it was void. It is said, however, that the question of jurisdiction here, was one which was directly passed on by the officer, and of course could not be reviewed except by a direct proceeding in error; and we are referred to Cowen & Hill's Notes, 1016,1017,1020; 17 Wend. 407, and 20 John. 209, for the authority on which the argument is founded. There is such a principle as that relied on by the defendant’s counsel, but it has no application here. Every justice of the peace who holds a court, and entertains an action for assault and <mask>, or malicious prosecution, or slander; and every such magistrate who issues a warrant or attachment without sufficient proof, might be protected under this principle, if it had any application; but it has not. We are therefore compelled to say that the discharge granted in this case is void, and forms no bar to the action.


And he makes the further distinction, that section 6 of the Revised Statutes provided for a separate class of actions, as assaults, &c., whereas the Code in less general terms provides for cases in which title to lands comes in question, and then by the word “ but” introduces an exception that in cases of assault, &c., no more costs than damages shall be recovered in cases like the present where less than fifty dollars is recovered, and insists that now though the title to lands comes in question, if. the action is for assault and <mask>, the plaintiff *499recovering less than fifty dollars recovers no more costs than damages.


This case originated when the police were called to investigate a domestic disturbance on June 16, 2017, involving appellant and A.S. Springdale police officer Jacob Enos testified that A.S.'s physical appearance concerned him because she had a large swelling on her nose and under her eye. He spoke with A.S. about what happened and felt her story was credible. Officer Enos testified that during the investigation, appellant was arrested on the charge of third-degree domestic <mask> involving A.S. Later, he saw appellant at the jail, and although he did not speak to her, he testified that she appeared to be very intoxicated based on his observation.


In the unpublished portions of this opinion, we conclude there is substantial evidence Charley committed sexual <mask>, and that his challenge to the electronics search condition of probation has been forfeited. In the published portion, however, we agree with Charley and hold that the condition of probation forbidding him from using, owning or possessing depictions of nudity is unconstitutionally overbroad and therefore we will order the condition stricken. As so modified, the court's disposition order will be affirmed.


A.A. appeals a dispositional order adjudging him a ward of the juvenile court ( Welf. & Inst. Code, § 602 ) and placing him on probation after the trial court sustained a petition for <mask> with serious bodily injury. ( Pen. Code, § 243, subd. (d).) Appellant contends that a probation condition prohibiting him from discussing his case on social media is overbroad and violates his First Amendment rights. We affirm.


4. she was participating in services or no longer using methamphetamine. Father had not been cooperative with the department and had not participated in a drug test. In addition to his recent assault charges, father had a history of assaulting mother in Oklahoma. In March 2020, he was arrested for domestic assault and <mask> by strangulation, and domestic assault and battery in the presence of a minor. Mother told the police officer father choked her and threatened to kill her. Mother sustained facial bruising, a cut on the bridge of her nose, bruising on the inside of both forearms and scratches on her back. The dispositional hearing, originally set for January 19, 2021, was continued and conducted as a contested hearing on March 2, 2021. Father appeared in custody and informed the juvenile court he was taking classes in jail and expected to be released on March 9, 2021. The juvenile court ordered father to complete programs in parenting, domestic violence and outpatient substance abuse treatment, and participate in random drug testing. The court ordered county counsel and father’s attorney to contact the court in Oklahoma regarding the restraining order and set a hearing on March 16, 2021, to review the status of the restraining order and for September 2, 2021, as a six-month review of services. On March 16, 2021, the juvenile court ordered father to provide his attorney certificates of completion for the classes he attended and granted the department discretion to arrange supervised visits for father. In its report for the six-month review hearing, the department recommended the juvenile court terminate father’s reunification services and set a section 366.26 hearing. He regularly visited S.B. but had not completed any of his court-ordered services and was not cooperative with the department. He told his probation officer he did not “ ‘want anything to do with CPS and [would] do it all himself.’ ” There were maternal relatives in Oklahoma who were interested in providing S.B. a permanent home and had been approved for placement.


*564In addition to this meta-analysis, Dr. Thornton also examined the files of 33 convicted rapists confined in the Sand Ridge Secure Treatment Center, all of whom had been subjected to PPG testing using three sets of stimuli: consensual sex, a rape scenario and a third, more brutal rape scenario involving physical <mask> or even murder which corresponds with the DSM-5 diagnosis for sexual sadism (Thornton tr at 258-259). According to Dr. Thornton, fifty percent of the participants showed a preference for consensual sex, twenty percent for coercion and twenty percent for brutality (Thornton tr at 259; David Thornton, Evidence Regarding the Need for a Diagnostic Category for a Coercive Paraphilia, 39 Arch Sex Behav 411 [2009]).


The offer of the plaintiff to amend, was not broad enough to remove the objection to the pleading. If the allegations relating to the assault and <mask>, slander, abuse and maltreatment had been stricken out of the complaint, it would have presented enough to give the court jurisdiction, although it would have presented at the same time the melancholy relic of a complaint so defectively drawn as to require severe mutilation.


The court held an evidentiary hearing in April. Based on the evidence presented, which included a police video of Cooper's wife shortly after the alleged aggravated <mask>, the court found Cooper violated all the conditions contained in the January warrant and some of the no-contact conditions from the March warrant. Based primarily on the fact that Cooper committed multiple new crimes, the court revoked probation and imposed the underlying jail sentence. Cooper appeals that decision.


The same principles were expressed by Mr. Justice Edgcomb in Bolivar v. Monnat (232 App. Div. 33, 38), wherein the court stated: “ It is not necessary to define the nature of the action with meticulous accuracy. The element of negligence may be wanting because the act was done deliberately rather than carelessly. Under the authority of the Stratton and McGue cases (supra [Commonwealth v. Stratton, 114 Mass. 303 ; McCue v. Klein, 60 Tex. 168]) we would be warranted in calling it an action for assault and <mask>. But it matters not what it is named, whether negligence, assault and battery, or an action *98on the case, the fact remains that the complaint alleges a violation of a right or duty growing out of the relations existing between the parties, and this gives plaintiff a right of action against defendant for the damages sustained. The novelty of the action, or the want of an exact precedent does not deprive the plaintiff of a remedy for defendant’s unlawful act.” Exemplifications of these precepts, although factually dissimilar from the instant case, are the holdings in Mitran v. Williamson (21 Misc 2d 106) and Halio v. Lurie (15 A D 2d 62), which hold that the intentional infliction of emotional harm by words or deeds is actionable. (See, also, Nader v. General Motors Corp., 25 N Y 2d 560, 569.)


Pursuant to Tennessee Code Annotated section 39-13-516(f), the trial court merged the convictions for aggravated sexual <mask> and rape of a child into the conviction for continuous sexual abuse of child and sentenced Defendant only as to that count to sixty years as a Range III offender to be served at 100%, by operation of law, in the Department of Correction. It is from these judgments that Defendant now appeals.


EV charging stations are facilities that use specialized equipment, such as a specific cord and vehicle connector, to provide the service of charging a <mask> in an electric vehicle. The battery is the sole source of power to make the vehicle's wheels turn, the heater and air conditioner operate, and the headlights shine light. The charging service is the product being sold, not the electricity used to power the charging system. By analogy, a laundromat uses electricity to provide clothes drying services, but that does not mean the laundromat's dryers are electric plant, or that the laundromat should be regulated by the Commission. EV charging stations are not "electric plant" and, therefore, the Commission lacks statutory authority to regulate their operation. To rule otherwise would conceivably assert jurisdiction over other similar battery-charging services. Some examples would be smart phone charging stations or kiosks, RV parks that allow vehicles to connect to the park's electricity supply, or airports that connect planes to a hangar's electricity supply while parked, which the Missouri General Assembly could not have intended. The Commission stated that the conclusion that electric vehicle charging stations are not "electric plant" was "further buttressed" by additional considerations. The Commission reasoned that Missouri's public service statutes were enacted to avoid "destructive competition" and "unnecessary duplication of service" in industries in which natural monopoly conditions exist, but that Commission regulation was inappropriate in "situations in which competition could serve a useful public purpose." The Commission concluded that including KCP&L's electric vehicle charging stations in rate base would not serve the public interest, but would distort what would otherwise be a competitive market:


At the conclusion of the State’s proof, Defendant moved for a judgment of acquittal on the eighty-one counts of rape of a child, one count of aggravated sexual <mask>, and one count of continuous sexual abuse of a child. The trial court partially granted the motion finding that the State had introduced proof of penetration for only one count of rape of a child. The trial court further modified eighty of the rape of a child counts to the lesser- included offense of aggravated sexual battery. The motion as to the other counts was denied.


The record only reflects Meeks's counsel's oral motion to dismiss the sexual <mask> claim as to Fajardo, while reserving Meeks's "appellate rights as to AutoZone." The parties and the court seem to have been operating on the mistaken belief that AutoZone had previously been granted summary adjudication on the sexual battery claim. The jury was not instructed on sexual battery, or asked to return a verdict on such a claim with respect to any party, and Meeks has asserted no claims of error with respect to her sexual battery claim on appeal. The sexual battery claim therefore has been forfeited, to the extent it was not voluntarily dismissed.


When Glekiah and Merchant testified, they admitted they had been running a *229scam on appellant. Merchant admitted that he and Glekiah were using the scam to steal $100,000 from appellant. Merchant admitted that he had run the same scam on a previous occasion. Glekiah and Merchant admitted they were not entirely honest with the police during the investigation. Glekiah testified that he had previously pled guilty to pandering and was under indictment for another offense in Georgia. Merchant testified that he had previously been convicted of family-violence <mask> in Georgia. During their testimony about the events that took place in Dreams Auto Customs, the video was played both to corroborate their testimony and also to show what was missing from the video.


Wade v. Kalbfleisch (58 N. Y., 282) is in harmony with this view. That was an action for breach of promise of marriage. It was not based on. injury to any right of the plaintiff which had a pecunicvry val/ue. It was based solely on injury to the plaintiff’s feelings; as an action of assault and <mask> would have been based on injury to the jilaintiff’s body. The only difficulty in that case was that the form of the action was on contract. And therefore, it was necessary to show that, in fast, it was not an action based on “ wrong done to' the property, rights or interests of another.” (2 R. S., 447, § 1.)


Defendant, Christopher Nichol Cox, was convicted by a jury of eighty-one counts of aggravated sexual <mask>, one count of rape of a child, and one count of continuous sexual abuse of a child. The trial court merged the convictions for aggravated sexual battery and rape of a child into the conviction for continuous sexual abuse of a child and imposed a sixty-year sentence as a Range III offender to be served at 100%, by operation of law, in the Department of Correction. On appeal, Defendant argues that: the trial court erred by denying his motion for a continuance; the trial court erred by allowing the victim to testify with the aid of a therapy dog without a hearing to determine the animal’s training or necessity to the victim’s testimony; the trial court improperly bolstered the victim’s testimony by allowing the victim’s entire forensic interview to be played to the jury; the trial court erred by failing to grant a mistrial when a witness testified that Defendant had other cases and that there were other victims; the evidence was insufficient to support his conviction for rape of a child and thirty of the counts of aggravated sexual battery; the jurors did not make a unanimous decision as to which acts of sexual abuse it relied on to support his continuous sexual abuse of a child conviction; the trial court improperly enhanced his sentence by relying on an enhancement factor that is an essential element of the offense; and the cumulative effect of repeated constitutional errors denied him a fair trial. After hearing oral arguments and following our review of the record and the briefs of the parties, we conclude that the evidence was insufficient to support the convictions of aggravated sexual battery in counts sixteen through twenty-seven, counts forty-eight through fifty-four, and counts sixty-five through eighty-one and accordingly dismiss those counts and remand for entry of amended judgments. In all other respects, we affirm the judgments of the trial court.


The case upon which the respondent relies for defeating this application — McCarthy v. MV AIC (16 A D 2d 35, affd. 12 N Y 2d 922) — is inapposite and factually distinguishable. The court found in that case that the plaintiff’s brother-in-law, Branch, deliberately drove his car into that owned by her when she was assisting her sister, his wife, a passenger in plaintiff’s car, in getting away from him. For this he was convicted of the crime of assault upon his plea of guilty to the above-described act. After plaintiff recovered a default judgment against Branch, she was unsuccessful in recovering the amount of that judgment from his insurance carrier and brought an action against MVAIC bottomed on the New York automobile accident indemnification indorsement attached to the standard automobile liability policy covering her automobile. The Third Department, affirmed by the Court of Appeals, held that MVAIC was not liable under the uninsured motorist indorsement* for plaintiff’s injuries caused, as they were, by an assault and <mask>.


*240This is an action to recover for property damage sustained when the plaintiffs recreational vehicle caught on fire on April 22, 1986, while plaintiff was driving it on U. S. Route 117, approximately one mile south of Faison, North Carolina. General Motors manufactured the chassis upon which codefendant Heritage Recreational Vehicles, Ltd., assembled the motor home. The vehicle was sold to the plaintiff by the codefendant American Camper Sales, Inc. The theory of liability asserted against General Motors is that the fire was caused because there was a metal clamp attaching the positive <mask> terminal cable to the metal frame of the radiator which eventually caused the insulation material oh the cable to wear out, resulting in an electrical short which caused a fire in the motor compartment.


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


In view of this testimony, it is evident that there could be no recovery against the movant on either the express or the implied warranty theories. The Court of Appeals long ago laid down the requirement of privity of contract between the parties for an action for breach of warranty, in Turner v. Edison Stor. <mask> Co. (248 N. Y. 73), which it very recently reiterated in Greenberg v. Lorenz (9 N Y 2d 195, 198), stating:11 There can be no warranty, express or implied, without privity of contract.” In the Greenberg case the court recognized the harshness of the rule which limited actions for breach of warranty arising from the purchase of unwholesome food to the member of the family actually making the purchase and, to extend the right of action to any other member injured as the result thereof, laid down the rule that “ [a]t least as to food and household goods, the presumption should be that the purchase was made for all the members of the household” (p. 200). It did not however indicate any intention to vary the privity requirement — so clearly stated — in circumstances other than those there presented. Until the Court of Appeals sees fit to change the rule in other than food cases, this court is bound to hold that, in actions like the present one, without privity of contract between the parties there can be no action on an express or implied warranty.


Defendant's claim of correctable error is based on Taylor. In Taylor , the jury convicted the defendant of <mask> with SBI, assault by means of force *478likely to produce GBI, and willful infliction of corporal injury on a cohabitant (§ 273.5, subd. (a) ), but found not true the GBI allegations as to each of the three charged crimes. ( Taylor, supra , 118 Cal.App.4th at pp. 17-18, 12 Cal.Rptr.3d 693.) Notwithstanding the not true finding on the GBI allegations, the trial court found that Taylor's current offense was a serious felony. ( Id. at p. 22, 12 Cal.Rptr.3d 693.) Faced with an express jury finding that Taylor had not inflicted GBI, the Taylor court held that the imposition of the enhancement violated his statutory and constitutional right to a jury trial. ( Id . at pp. 20, 30, 12 Cal.Rptr.3d 693.)


In May 1994, a rent receiver was appointed to enter the premises and collect the rents. The second-captioned action was commenced in January 1995, seeking termination of the leasehold estates of all tenants of the premises. Defendants Cruz, <mask>, Kendall, Albertini, Beck and Access (collectively, the Answering Defendants) claim that from the inception of their tenancies, Amerasian knew that they were planning to use the premises for residential purposes and encouraged them to perform renovations incident to such use. Collectively, defendants claim to have spent about $375,000 on renovations. They claim that they are now rent-stabilized tenants and that Dime’s interest in the premises is subject to their rights under rent stabilization. Jonathan Hollander and Jacqueline Christy, who are, respectively, the presidents of Battery and Access, maintain that they have used the "corporate” space for their own residences. Dime claims that it did not learn of the Answering Defendants’ alleged residential use until some time *394after the appointment of the receiver. Dime does not at this point seek summary judgment with respect to the rent stabilization coverage issue (although it mentions that the premises are not legally zoned for residential use). However, Dime asserts that even if the Answering Defendants are assumed to be rent-stabilized tenants, Dime (or a prospective foreclosure purchaser) is not liable for rent overcharges collected by the mortgagor, Amerasian. In other words, Dime contends that a mortgagee who has never collected rents or had any relationship with the tenants is not responsible for any rent overcharges.*


Do the words then embrace that part of the <mask> which the corporation had before granted to the United States? The necessary reply to this question, it seems to me, is the same as to the former—certainly not. An authority to extend the Bat*8tery six hundred feet implies, that no such extension had then heen made; but such an extension of that part of the Battery which belonged to the United States was no longer possible, to the extent of five hundred feet, with the exception of the small space of water covered by the Bridge—it had already been made. Moreover, the corporation could have no power to extend a part of the Battery not belonging to themselves, nor in their possession. Nor can we be justified in saying that the legislature meant to invade the rights of the United States, by granting such an authority; for it is to be observed, that it is a present and absolute, not a future and contingent authority, that the act of 1821 plainly confers. It is an authority that, if exercised at all, might be exercised at once. Its exercise was not meant to be suspended until the United States should cease to be the owners of the lands, that had been ceded to them. r •#


The two pending applications present a third category of cases, namely, those that do not meet the evidentiary tests but appear to have a ring of truth. In the case of Sneha Anne Philip, M.D., the application is supported by affidavits from her husband, Ronald Lieberman, M.D., and her mother, Ansa Philip, as well as a report by a private investigator hired by the family. The documents establish that Dr. Philip lived in <mask> Park City, located near the Twin Towers, and that, on the evening of September 10, 2001, she used her credit card to purchase various items from a store located directly across from the World Trade Center. No trace of such items was found in the Battery Park City apartment and it is conceded that she did not sleep there that night. Despite a diligent search, Dr. Philip has not been seen or heard from since such time.


The jury found Valdez guilty of <mask> by gassing. At the conclusion of a priors trial, the jury also found Valdez's strike prior and prison priors to be true. The trial court sentenced Valdez to 11 years in the state prison, consisting of the upper term of four years, doubled because of the strike prior, plus three one-year prison priors.


According to the probation department, Cooper pled to reckless driving in August 2002 in a case initially filed as a DUI. Less than a month later, she again was charged with a DUI. Less than two months later, Cooper was arrested again for DUI, convicted, and ordered to complete an 18-month alcohol education program. Less than six months later, Cooper was arrested and charged with DUI as well as criminal threats, <mask> on a peace officer, and gassing. In November 2004, she was arrested for driving with a suspended license. In October 2006, Cooper again committed a DUI. In July 2007 she committed a hit-and-run; she also was charged with driving while her license was suspended for failure to comply with DUI conditions. In July 2009, Cooper was charged with felony DUI causing injury and hit-and-run with injury committed in November 2007. Cooper also was convicted of theft and drug crimes between 1989 and 2008.


really frightened”7 and that he then left her telling her to stay on the roof until he got down or he would kill her8. From this evidence the jury could have found and, by reference to the instruction given them on the assault count9 it is implicit in the guilty verdict that they did find, that the assault with intent to rape was committed antecedently, inside the door to the roof, by the defendant’s mute offer — through the display of the knife coupled with obviously present ability to exercise unlawful physical violence upon the person of his victim if she did not obey him (People v. Wood, 10 A D 2d 231, 234-237; see, also, Hays v. People, 1 Hill 351; Mulligan v. People, 5 Park. Crim. 105, 111-112; 6 C. J. S., Assault and <mask>, § 57, p. 913) and that such assault was committed for the purpose of preventing her resistance and with the intent to rape her10.


I do not perceive either the propriety nor the soundness of this view of the subject, though I am aware that it has been *488by some regarded as the correct one. If the whole question of damages were open to the jury, as in actions of tort generally, if it were proper to instruct the jury to give such damages as all the circumstances of the case seemed to require, with the same latitude given in actions for slander, assault and <mask>, fraud, deceit, &c., then, indeed, they should not be instructed to add interest as further damages. But such is not the case here. The plaintiff is confined by a rigid limitation of the extent of recovery to a prescribed rule of computation, which the jury may not exceed; and I can conceive of no more reason for submitting the question of allowing interest to their discretion, than for leaving to them the question whether the plaintiffs’ recovery shall be computed according to the market value, on the day fixed. This doctrine has some foundation in the anonymous case found in 1 Johns. R. 315, and is sought to be implied also from Dox v. Dey, 3 Wend. 356.


The defendant is charged with the crime of Felonious Assault, that would be Mr. Leffew, and felonious assault is just another name for assault with a dangerous weapon. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the defendant either attempted to commit a <mask> on Michael Porter or did an act that would cause a reasonable person to fear or apprehend an immediate battery. A battery is a forceful or violent touching of the person or something closely connected with the person. Second, that the defendant intended either to injure Michael Porter, or to make Michael Porter reasonably fear an immediate battery. Third, that at the time, the defendant had the ability to commit a battery, appeared to have the ability, or thought he had the ability. Fourth, that the defendant committed an assault with a knife.


The transfer of the cause from the Superior Court to the-Marine Court was ordered pursuant to the Marine Court Act of 1872 (L. 1872, ch. 629, § 3, sub. 12), which reads as follows: “ Any other court of record in the city and county of New York shall have power, by an order to be entered by its direction on its minutes, to send any action of libel, slander, assault, <mask>, criminal- conversation, seduction, malicious prosecution, or false imprisonment, pending, or that may hereafter be brought in said courts of record, after issue has been joined therein, to-the said Marine Court for trial, and a certified copy of such order shall be delivered to and filed with the clerk of the said Marine Court, and entered by him in its minutes, and thereupon the said Marine Court of the city of New York shall have immediate and exclusive jurisdiction of such action, and the said jurisdiction of the said court, as to the amount of the recovery in such action, costs and additional allowances therein, shall, for the purposes of said action, be the same, and as full and comprehensive as that of the court from whence the same proceeds.”


Although there is one case (see, Henry v Bronx Lebanon Med. Ctr., 53 AD2d 476 [1st Dept 1976]) relied upon by defendants in their reply papers which supports the proposition that even if Dr. Morgenstern did perform the procedure, such act cannot give rise to a lack of informed consent claim much less to a <mask> claim, that case involved the presentation of competent evidence establishing a practice at Lenox Hill Hospital by attending physicians to allow residents to do a particular procedure. On this record the defendants, who have the burden of establishing their entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) have failed to submit any competent evidence that there was such a practice with respect to the procedure performed here. I further note that this ground was only raised in the defen*317dants’ reply papers, which is improper. (See, Dannasch v Bifulco, 184 AD2d 415 [1st Dept 1992].) Similarly, the defendants’ claim that the battery claim should be dismissed because the plaintiff actually consented to Dr. Morgenstern’s performance of the procedure by signing the aforementioned consent form was also raised for the first time in defendants’ reply. In any event, in light of the allegations contained in the verified complaint, the consent form only raises a factual issue as to whether there was consensual contact by Dr. Morgenstern.


With respect to the plaintiff’s claims that his conduct amounted to negligence, the law is clear that there is no cause of action in New York for a negligent assault (Salimbene, 217 AD2d at 994). Even if the court were convinced that the plaintiff swung the bat twice to get Sciortino away from him, it is clear that such an “act was done with the intention of inflicting an offensive bodily contact upon [Sciortino] or putting him in apprehension of such contact and thus, an assault was committed regardless of whether there was actual intent to inflict injury” (id., quoting Trott v Merit Dept. Store, 106 AD2d 158, 160 [1st Dept 1985]). “New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently” (id., quoting Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376 [3d Dept 1987]). Even if the theory was that the plaintiff used more force than was reasonably necessary to defend himself, the resulting legal liability would be for assault and <mask>, and not negligence (Figueroa v Kirmayer, 32 AD2d 923, 924 [2d Dept 1969]). The allegations in the underlying complaint, and the trial and deposition testimony of the plaintiff demonstrate that the injuries occurred as a result of an assault, and not negligence.


In addition, although plaintiff has not presented the court with expert submissions to the contrary, the court is not persuaded that, in the end, any “evidence created” through the structured and unstructured interviews and <mask> of tests sought to be administered will be conclusive on issues of causation and/or damages. Among other things, admittedly, inquiry should not begin and end with the parents since “the involvement of numerous children and families in generating the allegations adds another potential dimension of social influence and distortion to the parent-child dynamic . . . [T]he pattern of communications between families as well as within the family warrants exploration” (affirmation of Dr. Bursztajn, ¶ 8). Seemingly, there is no logical or definitive end to the inquiry.


By the wrongful act of defendant’s testator, the plaintiff lost, for a time, the services of his daughter,' which were of pecuniary value to him. I think he should recover, although the wrongdoer is dead. It would be a strange doctrine that, if a robber forcibly and violently took from one’s pocket a large sum of money, the robber’s executors would not be liable to an action for the amount thus taken, for the reason that the action of assault and <mask> did not survive.


"[A] frisk for weapons is not justified unless the officer can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous." ( People v. Medina (2003) 110 Cal.App.4th 171, 176-177, 1 Cal.Rptr.3d 546.) A claim of "harassing" customers of a business, with no reports of violence, <mask>, assault, threats or weapons does not reasonably suggest the presence of weapons. Nor did defendant's conduct, or wearing a jacket and sweatshirt on a "pretty warm" day provide reasonable grounds to believe he was armed and/or dangerous and might gain immediate control of a weapon. ( People v. Miranda (1993) 17 Cal.App.4th 917, 927, 21 Cal.Rptr.2d 785.) Thus, there was not reasonable *97suspicion to patsearch defendant once he was detained.


While Fogal (41 A D 2d 468, supra) did not involve the issue of the Statute of Limitations, it is this court’s belief that the Appellate Division’s reliance upon Canterbury v. Spence (464 F. 2d 772, supra) indicates that it would also approve the Federal court’s holding that the ithree-year Statute of Limitations governing negligence actions rather than the one-year Statute of Limitations governing assault and <mask> actions is applicable (see, also, Wilkenson v. Vesey, 110 R. I. 606).


Such being the condition of the premises when the act of 1821 was passed, let us now give our attention to the words of the act. The first sentence of the first section declares, that <c it shall be lawful for the mayor, aldermen, &c., of the city of New-York, to extend that part of the said city usually called the <mask> into the bay, and into the North and East rivers such distance as they may deem proper, not exceeding six hundred feetand the next sentence then vests in the corporation, for the^purposes already mentioned, all the title of the people of the state to all the lands that the proposed extension was meant to cover.


The indictment was based upon a statute of that State which in pertinent part defines aggravated assault and <mask> as follows: ‘ ‘ Whoever unlawfully and maliciously inflicts upon another person, either with or without any weapon or instrument, any grievous bodily harm * * * is guilty of a misdemeanor ”. (18 Purdon’s Penna. Stats., § 4709 [Penal Code of 1939].)


The same principles were expressed by Mr. Justice Edgcomb in Bolivar v. Monnat (232 App. Div. 33, 38), wherein the court stated: “ It is not necessary to define the nature of the action with meticulous accuracy. The element of negligence may be wanting because the act was done deliberately rather than carelessly. Under the authority of the Stratton and McGue cases (supra [Commonwealth v. Stratton, 114 Mass. 303 ; McCue v. Klein, 60 Tex. 168]) we would be warranted in calling it an action for assault and <mask>. But it matters not what it is named, whether negligence, assault and battery, or an action *98on the case, the fact remains that the complaint alleges a violation of a right or duty growing out of the relations existing between the parties, and this gives plaintiff a right of action against defendant for the damages sustained. The novelty of the action, or the want of an exact precedent does not deprive the plaintiff of a remedy for defendant’s unlawful act.” Exemplifications of these precepts, although factually dissimilar from the instant case, are the holdings in Mitran v. Williamson (21 Misc 2d 106) and Halio v. Lurie (15 A D 2d 62), which hold that the intentional infliction of emotional harm by words or deeds is actionable. (See, also, Nader v. General Motors Corp., 25 N Y 2d 560, 569.)


Judge BRONSON’S views in this case were repudiated by Justice Parker in Darry v. The People (10 N. Y., 161), but were approved in The People v. Butler (3 Parker, 385). In Darry’s Case (10 N. Y., 120) the killing was charged by the indictment to have been done by the prisoner with malice aforethought, according to the common law form, and with a premeditated design to effect the death of the person killed, under the statute, *490by striking and beating the deceased person with a chair, and with his hands and foot. The jury were charged that the prisoner might be found guilty under the second subdivision of the statute, which was excepted to. The prisoner was convicted of murder and the case was reviewed in the Court of Appeals upon this •exception. Upon the first argument the judges were equally divided in opinion (2 Parker, 606), but upon the second hearing the conviction was reversed, upon the ground that when the violence was aimed at a particuliar person, the case did not fall within the second subdivision. Justice Parker, in his opinion, discusses the sixth section of title 2, defining manslaughter in the first degree, and says that unintentional killing, while intending and committing an assault and <mask> upon the person killed, falls within this section, and that unintentional killing while intending and committing a mayhem or other felony, upon the person lrilled, is murder, (pp. 160-161.) This question not being in the case, Judge Selden expressly refused to pass upon it (p. 149), and Judge Denio was silent upon the subject.


No such error is present. The district court correctly determined that, of the nine robbery counts, the greatest offense level among them (Count 6) was 30. To arrive at this level, the court began with a base offense level of 20, U.S.S.G. § 2B3.1(a), then added a 6-level enhancement for use of a firearm, U.S.S.G. § 2B3.1(b)(2)(B), and a further 2- level enhancement for bodily injury to a victim, U.S.S.G. § 2B3.1(b)(3)(A). The court then properly added 5 more levels for committing multiple related offenses, U.S.S.G. § 3D1.4, and subtracted 3 levels because White accepted responsibility, U.S.S.G. § 3E1.1(a), (b). For criminal history, the court accurately calculated White’s category of IV based on 7 points (1 for <mask>, 2 for carrying a handgun without a license, 2 for robbery, and 2 for committing the instant offenses while under sentence for robbery). Based on these calculations, the court properly determined that White’s guidelines range for the robberies was 135 to 168 months in prison. The court also properly determined that the Guidelines called for 228 months in prison for White’s three weapons counts, which is the minimum required by statute (one count required 60 months; two counts required 84 months minimum due to brandishing a firearm). See 18 U.S.C. § 924(c)(1)(A)(i)–(ii); U.S.S.G. § 2K2.4(b).


It is well settled that the intent to do harm is not a necessary element of a <mask>. (See, Oates v New York Hosp., supra, at 370; Masters v Becker, 22 AD2d 118, 119-120 [2d Dept 1964]; Villanueva v Comparetto, 180 AD2d 627 [2d Dept 1992]; Maines v Cronomer Val. Fire Dept., 50 NY2d 535, 545546 [1980]; PJI 3:3 [1995 Supp].) A claim for battery is stated if one alleges bodily contact which is offensive and is made with intent. (PJI 3:3; 2 NY PJI 18 [1995 Supp].) The necessary intent is the intent to make contact, not to do injury. (2 NY PJI, op. cik, at 19; Villanueva v Comparetto, supra, at 629.) What is welcome and inoffensive contact by one person can easily amount to offensive contact by another.


I am, therefore, constrained to hold that article 4 of the Debtor and Creditor Law was properly construed in Matter of Berman (supra) and does not extend to a judgment debtor against whom the judgment arose out of tort for assault and <mask>. As the petitioner in this case cannot, therefore, be exempted from arrest under such a judgment, it follows that the objection of the objecting creditor on that ground is good, and that the motion to strike out the same must be denied. As to that objecting creditor, therefore, the petition is not good, because it seeks relief which as against him cannot be given. The motion to dismiss the petition as to that objecting creditor, therefore, must be granted.


Although the conduct of Mast, Miller and Calle alleged in the complaints was wholly inappropriate, it is not so outrageous in character, and so extreme in degree as to be utterly intolerable in a civilized community. Thus, plaintiff has not properly alleged causes of action for intentional infliction of emotional distress (see, Freihofer v Hearst Corp., 65 NY2d 135, 143-144; Burlew v American Mut. Ins. Co., 63 NY2d 412, 418-418; Fischer v Maloney, 43 NY2d 553, 557; Leibowitz v Bank Leumi Trust Co., 152 AD2d 169; Marshall v Nelson Elec., supra; Roster v Chase Manhattan Bank, supra). Therefore, we modify the order on appeal by granting the motions of Mast, Miller and Calle to dismiss plaintiff’s causes of action for intentional infliction of emotional distress. We further modify the order by limiting plaintiff’s causes of action for slander and <mask> to conduct that occurred after February 23, 1992. (Appeals from Order of Supreme Court, Monroe County, Calvaruso, J.—Dismiss Causes of Action.) Present—Fallon, J. P., Wesley, Doerr, Balio and Boehm, JJ.


Defendant Jungerman's actions manifest reckless indifference to the rights of Plaintiff. Defendant Jungerman knew or should have had information from [sic] which he in the exercise of ordinary care, should have known that the alleged negligent conduct created a high degree of probability of injury and thereby showed complete [sic] indifference or conscious disregard for Plaintiff's safety. While the second sentence of the punitive damages allegation related to the negligence claim, the first sentence was applicable to the intentional tort claims. Liberally granting Harris all favorable inferences from his pleading, the petition sufficiently asserted that the wrongful acts alleged in the <mask> claim were done with a reckless indifference to the rights of Harris. The petition gave Jungerman fair notice of the nature of the demand for punitive damages and the grounds upon which it rested. Harris's petition sufficiently alleged a cause of action for punitive damages for battery. The point is denied.


Even were we to analyze the 2008 findings challenged here, which we do not, and conclude that the sentencing court erred in 2008 when it classified the assault and <mask> convictions as serious felonies and imposed five-year terms for the corresponding section 667, subdivision (a) allegations accordingly, that claim could not be presented to the trial court in 2015, as it correctly ruled. The sentencing court's 2008 findings were not appealed and are *380now final; the fact that defendant's crimes were found to be serious felonies rendered him ineligible for relief under section 1170.126.


Upon defendants’ demand, Williams filed a verified complaint dated March 22, 2012 (petition, exhibit A). The complaint alleged that on the day in question, “without justification” defendants delivered multiple kicks and punches to Williams’ head and body, slammed him against a wall, threw him down the stairs and shouted racial epithets at him (id. ¶¶ 11-14). The complaint also stated that the defendants submitted false reports about the incident, which resulted in disciplinary charges being filed against Williams, and sanctions imposed on him (id. If 16-20). Williams’ pleading set forth causes of action under 42 USC § 1983, and for <mask> and intentional infliction of emotional distress.


5. In this situation the act of the 27th of March, 1821, was passed. The.corporation was authorized to extend that part of the city usually called the <mask> into the river six hundred feet, and all the title of the people of the State, in and to the land, and land under water, in front of and adjoining to the said Battery for that distance, was vested in the mayor and commonalty, “ to remain for the purpose of extending such Battery for a public walk, and for erecting public buildings and works of defence thereon; hut without any power to dispose of the same for any other use or purpose whatsoever, and without any power of selling it, or any part of it.” Under this act, the reversionary right of the State to the land under water on which the castle stands, and to most of that over which the bridge ran, thus passed to the corporation upon the tenure expressed.


William G. Mulligan, Jr., a creditor, has filed objections — one of which is that the petitioner is not entitled to the relief demanded in his petition as against the objecting creditor by reason of the fact that such creditor is a judgment creditor holding a judgment against the petitioner which was a judgment in tort arising out of an assault and <mask>.


(a) plaintiff Avena will receive from Ford either repair of the engine block of his 1977 vehicle or reimbursement of his out-of-pocket expenses for repair of his vehicle’s cracked engine block. Inspection has revealed that a new engine including <mask> is required. Credit for $181 will be given to Mr. Avena; (b) plaintiff Silverman will receive from Ford an inspection of his 1977 Ford LTD vehicle at a mutually convenient time and place, such inspection to determine whether his vehicle has exhibited any of the known symptoms of the cracked engine block problem. If a crack is detected, it will be corrected; (c) both plaintiffs Avena and Silverman will execute and deliver several releases to Ford acknowledging re*446ceipt of consideration in connection with the compromise and releasing Ford from all liability relating to the cracked engine block problem of their vehicles; (d) Ford will pay to the attorneys for the plaintiffs reasonable attorneys’ fees and expenses in the amount of $6,000; (e) as a condition of the compromise of their claims, plaintiffs will seek and obtain an order of discontinuance which shall dismiss with prejudice all individual claims asserted by the named plaintiffs and discontinue without prejudice any claims purportedly asserted on behalf of the putative members of the alleged but uncertified class; (f) as a condition of the compromise, Ford requires that the proposed order of discontinuance contain no notice to putative members of the alleged but uncertified class and that if the court determines that such notice is necessary, then Ford shall withdraw from this settlement agreement. An affidavit of plaintiffs’ attorney is submitted in which he states that he has advised his clients that the settlement is fair, equitable and in the best interests of the parties. He states that they advised him that they agree to the terms.


Defendants’ contention is that the quoted allegations are based upon an assumed right to sue for damages resulting from fright, that there is no such cause of action in this State (Mitchell v. Rochester Ry. Co., 151 N. Y. 107; O’Brien v. Moss, 220 App. Div. 464; Adams v. Harry T. Mangurian, Inc., 204 Misc. 890), and hence that said allegations should be stricken from the complaint. The rule relied upon by the defendants is limited to cases where there has been no contact or <mask> of the plaintiff whatever (Comstock v. Wilson, 257 N. Y. 231; Sawyer v. Dougherty, 286 App. Div. 1061, motion for leave to appeal denied 309 N. Y. 1032). It was laid down as a matter of policy because of ‘1 the practical consideration that where there has been no physical contact there is danger that fictitious claims may be fabricated.” (Comstock v. Wilson, supra, p. 239.) In the case at bar, reading the complaint most favorably to the plaintiff, it is alleged that one or both of defendants’ automobiles struck plaintiff’s testator, and that he was rendered unconscious upon the highway, so that he was later struck again by a third automobile, whose owner is not a party hereto. Since it is alleged that plaintiff’s testator was injured by at least one of the defendants’ automobiles and that both drivers negligently caused the testator to be struck, there is involved merely a matter of causation. The allegations that plaintiff’s testator was frightened and disoriented by the negligent manner in which defendants operated their automobiles are made to establish causal relation between defendants’ conduct and plaintiff’s testator’s injury. Although the allegations may not be in the most artistic form they are sufficient for the purpose and sufficient to withstand this motion (LaRue v. Tiernan, 285 N. Y. 550, affg. 260 App. Div. 337; Mullaney v. Blasso, 264 N. Y. 577; Quelch v. Miller, 261 N. Y. 600; Hancock v. Steber, 208 App. Div. 455).


This question was objected to by Graham and Van Wyck, as it would be improper to go into the occurrences of the whole day, and as they should be confined to the assault and <mask>. The court said they had better go on and confine themselves as much as possible to the assault and battery. (Witnessproceeds.) vV'ent with Cassidy to the Orange party, who were carrying a flag—(they were John Moore, Henry Bush, Mullen, and Lowry)—Asked Moore if that was the Orange colours he was carrying—-Moore *90took hold of the pole with both his hands, and struck him; Witness was struck by the four defendants—felt the blows for several days—was in danger of his life—the pole was from eight to twelve feet long, and from three to four inches square. Witness had no weapon—he had a debate—that is, he defended himself. The Orangemen were armed—one of them had a carpenter’s hammer. Witness made no attempt to strike until he was struck. There were between twelve and twenty Orangemen. Their head quarters were at Green’s, McDonald’s, McKeever’s and Burges’. Witness was very much astonished and frightened at seeing ¡the Orange flag. They marched along and cried out, “ come forward you damned croppies”—they meant republicans. Witness told them they had better go to the British consul, and he would send them home. Witness had been forced to leave his country on account of Orangemen. Went to the police when he saw it—he could not make them understand it. They called out for croppies and papists. Croppy is a person not belonging to the Orange party—one who does not join in their society. They paraded in the morning about five o’clock, and he heard guns. When they knocked witness down, he saved his life by saying, “ don’t strike me, I am one of your side”—he said so to make his escape. It was about six o’clock in the afternoon when he was struck. All the defendants took part in the aggression. Witness is a catholic. They called him papist, and he said they did not know what he professed. Witness does think they were in earnest. Cautioned them to leave off, and they appeared to be angry.


The judgment is affirmed in part and reversed in part as follows: The trial court's grant of summary adjudication in favor of AutoZone on Meeks's retaliation claim is affirmed. The judgment in favor of defendants is affirmed with respect to Meeks's sexual <mask> claim. The judgment is reversed with *880respect to Meeks's other claims, and the matter is remanded for a new trial and any other necessary proceedings. Meeks is awarded her costs on appeal.


The underlying facts are largely undisputed. By an April 1998 information, the State of Florida charged that, on October 1, 1997, petitioner, who was 18 at the time, violated former Florida Statutes § 800.04 (3) by committing an act of sexual <mask> *1030as defined in Florida Statutes § 794.011 (1) (h)1 upon a child under the age of 16.2 On June 4, 1999, petitioner entered a plea of nolo contendere to the charge for which the court withheld adjudication, and the court entered an “order of supervision” placing petitioner on “sexual offender probation” for four years. In March 2001, the Florida court granted a defense motion to terminate petitioner’s probation and petitioner was thereafter required to register as a sex offender under Florida Statutes § 943.0435, Florida’s version of SORA.


(a) A person commits domestic battering in the first degree if: (1) With the purpose of causing serious physical injury to a family or household member, the person causes serious physical injury to a family or household member by means of a deadly weapon; (2) With the purpose of seriously and permanently disfiguring a family or household member or of destroying, amputating, or permanently disabling a member or organ of a family or household member's body, the person causes such an injury to a family or household member; (3) The person causes serious physical injury to a family or household member under circumstances manifesting extreme indifference to the value of human life; (4) The person knowingly causes serious physical injury to a family or household member he or she knows to be sixty (60) years of age or older or twelve (12) years of age or younger; (5) The person: (A) Commits any act of domestic battering as defined in § 5-26-304 or § 5-26-305; and (B) For conduct that occurred within the ten (10) years preceding the commission of the current offense, the person has on two (2) previous occasions been convicted of any act of <mask> against a family or household member as defined by the laws of this state or by the equivalent laws of any other state or foreign jurisdiction; or (6) With the purpose of causing physical injury to a family or household member, the person causes physical injury to a family or household member by means of a firearm. (b)(1) Domestic battering in the first degree is a Class B felony. (2) However, domestic battering in the first degree is a Class A felony upon a conviction under subsection (a) of this section if: (A) Committed against a woman the person knew or should have known was pregnant; or (B) The person committed one (1) or more of the following offenses within five (5) years of the offense of domestic battering in the first degree: (i) Domestic battering in the first degree; (ii) Domestic battering in the second degree, § 5-26-304; (iii) Domestic battering in the third degree, § 5-26-305; or (iv) A violation of an equivalent penal law of this state or of another state or foreign jurisdiction. Ark. Code Ann. § 5-26-303.


The contention for a diverse result based on the allegation that at the time of the settlement of the account of the executor, a similar diversion was permitted to pass unchallenged, if seriously *779advanced, which may well be doubted, possesses no possible merit. The fact that an individual may condone an assault and <mask> upon his person or property on one occasion, will not furnish any legal justification for a repetition of the offense at a future time. It may be noted further that at the time of the former judicial settlement this objector was an infant.


*796796 INDEX. “ that what one might call for would be the same as if both should order it.” Held, that the defendant's account for liquors, &c., furnished to each, created a joint obligation against both, and constituted a valid counter claim to the plaintiffs demand. Hartung v. Siccardi, 660 36. An administrator, by indorsing a promissory note and delivering it before maturity for a debt contracted by the intestate’s widow for necessaries furnished to her after the decease, renders himself personally liable, although in making the indorsement he adds to his name the title of administrator. Sieehnan v. Allen, 661 See Appeal, 20. Assignment, 13, 14, 16. Auctioneers, 1. Broker, 1 to 3. Evidence, 60, 61. Injunction, 1 to 4. Married Women, 3. Mechanics’ Lien Law, 12 to 17, 19, 37, 38, 91 to 98. Principal and Agent, 6, 7. Sheriff’s Sale, 1 to 7. SEAL. . See Principal and Agent, 8. SEAMEN’S WAGES. 1. In an action for wages as a seaman, proof that the plaintiff worked on board a sloop and -that the defendant was the owner thereof, is primé facie sufficient to sustain a recovery. Dougherty v. Gallagher, 670 2. But where the master testified, that he and the defendant were jointly interested in the business wherein the sloop was employed—that by arrangement between them, the defendant was to pay half the dockage and the witness to pay the hands—that the witness engaged the plaintiff and then told him of the arrangement and that he was to look to the witness for his wages; held, that this testimony being uncontradicted, established a special agreement between the witness and the plaintiff, and formed a bar to the action against the defendant. Id. See Ships and Shipping, 1 to 4. SECURITY. See Appeal, 27, 28. Costs, 2 to 4. SELF DEFENCE. See Assault- and <mask>, 4. SET OFF. See Evidence, 93. Judgment, 17. Landlord and Tenant, 16. Practice, Counter Claim,, 32. Practice, Set Off, 128 to 136. SEVERAL PROMISORS. 1. Under the present system of practice in this state, several promisors can be proceeded against in one action, and a joint judgment recovered. It seems, therefore, that, where the defendants are declared against as joint promisors, and the evidence shows that the promise was not made jointly, but by each defendant separately, the variance between the pleading and proof would be disregarded or cured by allowing an amendment, where their liabilities, as between themselves, would not be altered by this form of recovery against them» Downing v. Mann, 36 See Sales, 35. SHERIFFS. 1. The sheriff, as an officer of the court, is bound to execute the judgments and decrees thereof. He cannot go behind any direction contained therein, and refuse obedience, because in his opinion such direction is erroneous. Smith v. Corey, 642 2. So held, where the sheriff refused to deliver a deed to a purchaser at a sale


Paragraph 2 of the claim (pleading) summarizes the four causes of action as follows: “2. That this is a claim for damages sustained by the claimant by reason of the false imprisonment and illegal detention of claimant at Matteawan State Hospital from May 19, 1947 to September 8, 1961, set forth in the 1st Cause of Action; by reason of the negligence of State of New York doctors and others in failing to use ordinary care and prudence in giving the claimant psychiatric examinations, and in other respects, as set forth in the 2nd Cause of Action; by reason of the negligence on the part of the defendant’s Attorney General and Assistant Attorneys General in failing to use ordinary care and prudence, as set forth in the 3rd Cause of Action; and for damages for personal injuries sustained by the claimant as the result of the assault and <mask> committed on the claimant by defendant’s employees and patients in the Matteawan State Hospital, as set forth in the 4th Cause of Action. ’ ’


The plaintiff, as noted above, claims that the defendants negligently engaged in a course of action that created a risk of injury, and that she was injured thereby. Negligence, however, is an odd label for this action. The defendants’ conduct could plausibly be depicted as intentional and directed to*232wards a tortious end: an assault if not a <mask> upon Beaker. This purpose can hardly be considered negligent. The only other possible interpretation of the plaintiffs claim is that the defendants conducted themselves negligently while carrying out a scheme to confront Beaker. This, too, is difficult to understand; to find joint (as opposed to individual) responsibility for the negligent carrying out of some concerted plan one would have to find that the defendants agreed as to means as well as to ends. It is easy to see circumstances which would support an intentional conduct claim — if, for example, the plaintiff could show an agreement to menace the partygoers in order to find out where Beaker was hiding; but there can hardly be a conspiracy to commit negligence.


The language of K.S.A. 2017 Supp. 21-6811(c)(3)(A) is clear, unambiguous, and specific. Under this statute—which applies when the current crime of conviction is aggravated <mask> while DUI—the first prior adult conviction for "[a]ny act described" in the DUI statutes "shall count as one nonperson felony for criminal history purposes." (Emphasis added.) K.S.A. 2017 Supp. 21-6811(c)(3)(A). Under K.S.A. 2017 Supp. 21- 6811(c)(3)(B), however, "each second or subsequent prior adult conviction" for "[a]ny act described" in the DUI statutes "shall count as one person felony for criminal history purposes." (Emphasis added.) Applying this statute to the facts of this case, Obiero's prior DUI convictions were properly included and classified for criminal history scoring purposes.