Section 81-a of the Penal Law (L. 1942, ch. 791) provides: “ A female who has violated section eighty-a of this article or who has committed an <mask> to violate such section shall not be *102excused from attending and testifying or producing any evidence, documentary or otherwise, in any investigation or trial relating to violations of sections eighty, eighty-one, eighty-two, ten hundred and fifty, or eleven hundred and forty-two of this chapter, or an attempt to commit any such violation, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of her, may tend to convict her of a crime or to subject her to a penalty or forfeiture; but no such female shall be prosecuted or subjected to any such penalty or forfeiture for or on account of any transaction, matter or thing concerning which she is compelled, after having claimed her privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against her upon any" criminal investigation, proceeding or trial.”


*501In the present case, defendant is charged with driving at an extremely high rate of speed along with the codefendant, and that as a result of this conduct, they recklessly caused the death of the passenger in the codefendant’s vehicle. On the direct case, the People called Mr. John Borras, a civilian witness who testified that upon hearing a crash he responded to the scene of the accident. Mr. Borras further testified that he spoke with the driver of the red vehicle, Mr. Nasser, who stated he had been racing another vehicle and had sped up in an <mask> to keep the other driver from passing him. In the newspaper article authored by Mr. Howard, it was reported that Mr. Borras had spoken with the driver of the Civic, who had stated “he had been racing another vehicle and had sped up and was in third gear at the time of the crash, trying to keep the other driver from passing him.” According to the testimony elicited during the bench trial, the driver of the Civic was the codefendant, Eladio Gonzalez. Upon cross-examination by defense counsel, Mr. Borras denied he had ever spoken to the driver of the Civic, and when asked to explain the discrepancy between his trial testimony and the statement contained in the newspaper article, Mr. Borras testified that the reporter was mistaken.


After the 1975 burglary-homicide that is also discussed below, the applicant, no longer a confidential informant and, therefore, no longer a beneficiary of that status, pleaded guilty under two indictments to several counts of criminal sale of a controlled substance in the second degree in connection with the 1974 and 1975 drug sales. He was sentenced to concurrent terms of SVs years to life, although he initially protested that he did not “feel guilty of selling drugs.” The applicant’s continuing <mask> to minimize his culpability in connection with his drug sales, as discussed below, factors into our rejection of the present application.


Even beyond the contractual limitations on defendant’s available remedies, defendant cannot establish two of the basic elements necessary for specific performance. First, defendant cannot demonstrate that it was ready and willing to fulfill its remaining obligations under the agreement. Its decision to <mask> to force an adjournment of the closing by “three or four weeks” and require plaintiff to cure the title defect demonstrates that it was not willing either to accept title as is, or to terminate the agreement and recover its deposit.


Indeed, it may be said, as it was in Hanrahan v. Corrou (170 Misc. 922, 929 that “ It may be that the committee is mistaken in its estimate; it may be that the transaction will not turn out as advantageously for the city as those interested in the project expect; it is possible that the expenses connected with future improvements will run the enterprise up to such a sum that the revenues paid into the city will be insufficient to meet the bonds as they become due and to pay the interest. The contract may be ill-advised. Time alone will tell. But if the city and its officers were acting in good faith the court will not <mask> to pass upon the wisdom of the purchase. That responsibility rests upon the municipal authorities.”


The State, however, contends that legislative history is inadmissible here to interpret the meaning of Executive Law § 12, because the statute is clear on its face. Prior case law indicates: “Where the statute is clear and unambiguous on its face, the legislation must be interpreted as it exists. Absent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute” (Bender v Jamaica Hosp., 40 NY2d 560, 561-562 [1976]). “It is fundamental that a court, in interpreting a statute, should <mask> to effectuate the intent of the Legislature, and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976] [citations omitted]; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675 [1988]; see Desiderio v Ochs, 100 NY2d 159, 172 [2003]; Civil Serv. Empls. Assn. v County of Oneida, 78 AD2d 1004 [4th Dept 1980], lv denied 53 NY2d 603 [1981]).


Between the court's assumption of jurisdiction of the Children and the initiation of termination of parental rights proceedings, Mother has had eight written service agreements with the Children's Division. Among other things, the service agreements afforded Mother with the right to supervised visits with her Children. During the first year that the Children were in the care, custody, and control of the Children's Division, Mother's visits with the Children were inconsistent and sporadic. Mother failed on numerous occasions during this time frame to confirm future visits with the Children's Division. Mother would, on occasion, call to confirm a planned visit, then fail to show up for the visit. On several occasions, the Children's Division worker would <mask> to contact Mother to facilitate a visit, but Mother would not answer her phone.


At the conclusion of the testimony, the court denied Sykes' motion for a directed verdict, and the matter proceeded to the jury after closing arguments. The jury returned a verdict finding Sykes guilty of carrying a concealed deadly weapon under Count 2, not guilty of resisting arrest under Count 3, and guilty of possession of drug paraphernalia under Count 4. The jury was hung on the trafficking in marijuana charge under Count 1, and the parties reached an agreement related to that charge. Pursuant to that agreement, Sykes moved to enter an Alford plea1 on an amended charge of criminal <mask> to trafficking in marijuana, less than 8 ounces, second offense. Sykes waived sentencing by the jury, and the court fixed his sentences at twelve months on Counts 1 and 2, and seven days on Count 4. The court ordered the forfeiture of items seized. By agreement of the parties, the forfeited items included the firearms, ammunition, drugs, and drug paraphernalia. The cash was to be returned to Sykes.


Specifically before the jury entered the courtroom and the taking of evidence commenced, defendants’ attorneys brought to the attention of the court that approximately 35 persons, occupying one half of the spectator seats in the courtroom were wearing red and black ribbon corsages. The court immediately held an on the record side-bar conference. Defendants contended that the ribbons represented an unfair <mask> to impede justice and influence and/or pressure the jury/court, thereby denying them a fair and impartial courtroom environment and resulting trial. The prosecutor contended that the ribbons were only symbols of concern and solidarity for the victim’s family by persons affiliated with the not-for-profit national organization called "Parents of Murdered Children” and/or its New York branch, "Parents of Murdered Children of New York State, Inc.” It is to be noticed that one of the announced goals of this organization is "to make the criminal justice system more sensitive to the needs of victims and treat victims with greater compassion and concern”. The prosecutor also contended that the wearing of such ribbons had been permitted in other nameless, but relevant recent criminal proceedings in the Second Judicial Department. No specifics were ever submitted.


Although, as it has been set forth above, the affidavit of Mr. Hudson specifies the actual statements made to all poten*883tial SLU recruits who expressed an interest in the wrestling program, and therefore sufficiently supplements the complaint in this respect, there has been no <mask> to identify when the statements were made and whether if any of the actual plaintiffs heard, and relied upon, any of these particular statements.


"[The DAA] is exempt from the state overtime requirements of Labor Code section 510. *407Morales [, supra , 1 Cal.App.5th at pp. 537-538, 206 Cal.Rptr.3d 1 ] (citing Johnson [, supra , 174 Cal.App.4th 729, 95 Cal.Rptr.3d 53 ] ). In an <mask> to avoid this prohibition, paragraph 17 of the SAC alleges: '... [DAA] is a joint employer with the Outside Promoters, and must therefore comply with Labor Code section 510, subdivision (a).' However, there exists 'no authority for the proposition that a joint employer may be held liable for Labor Code violations committed by a *92cojoint employer based on principles of agency or joint and several liability. Rather, whether an employer is liable under the Labor Code depends on the duties imposed under the particular statute at issue.' Noe [, supra , 237 Cal.App.4th at pp. 333-334, 187 Cal.Rptr.3d 836 ]. In short, the alleged joint employment of plaintiffs by the DAA and the private employers does not serve to transfer the liability of the private employers to the DAA. Labor Code section 510 does not contain language from which such joint liability can be inferred. "Plaintiffs argue that the appellate decision in Morales issued after Noe , such that the Morales decision controls and constitutes 'law of the case.' This argument lacks merit. Morales does not hold that joint employers are jointly and severally liable for the wrongdoing of co-joint employers. Instead, the narrow issue that Morales decided was whether Plaintiffs could potentially amend their Complaint. Morales [, supra , at pp. 514, 542-543, 206 Cal.Rptr.3d 1 ]. Although leave to amend was permitted, the appellate court 'express[ed] no view as to the ultimate merits of [plaintiffs'] section 510 claim.' Id. at 544 [206 Cal.Rptr.3d 1]." (Emphasis altered.) The trial court thereafter entered a judgment in favor of the DAA.


have emphasized frequently, ‘[l]egislation is rarely aimed at advancing a single objective at the expense of all others.’” Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 34, 357 P.3d 992 (alteration in original) (quoting Myers v. Myers, 2011 UT 65, ¶ 27, 266 P.3d 806). “More often, statutes are a result of legislative give-and-take that balances multiple concerns.” Id. (citation omitted); see also Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248 P.3d 465 (recognizing “the peril of interpreting statutes in accordance with presumed legislative purpose, particularly given that most statutes represent a compromise of purposes advanced by competing interest groups, not an unmitigated <mask> to stamp out a particular evil”). ¶38 The Tolling Statute, like most statutes, is not buttressed by a single, “clear” purpose. It is, instead, “multi-dimensional.” State v. Canton, 2013 UT 44, ¶ 23, 308 P.3d 517 (rejecting Canton’s argument that the State’s interpretation of our criminal tolling statute conflicts with the statute’s purpose because the statute “implicates other considerations” alongside the one Canton advances). So, while the Tolling Statute is undoubtedly aimed at protecting the vulnerable “from [] strict time restrictions,” O’Neal v. Div. of Fam. Servs., 821 P.2d 1139, 1142 (Utah 1991), it is also undoubtedly aimed at addressing other concerns, see, e.g., Canton, 2013 UT 44, ¶ 24 (“[O]ur statute of limitations jurisprudence is aimed not only at balancing repose on one hand and an opportunity to prepare a case for filing on the other, but also at fostering certainty and avoiding unfair surprise.”). ¶39 Furthermore, while we agree with Commodity Transporters—the purpose of the Tolling Statute is, at least in part, protective—we are not convinced that the Legislature enacted the Tolling Statute to protect only those without legal guardians. We have noted that the “Utah [L]egislature has recognized that the mechanical application of statutorily fixed limitations periods may unjustly penalize people who are unable to bring or maintain an action because of disability.” O’Neal, 821 P.2d at 1141. “To address this problem, the [L]egislature has provided for the tolling of statutes of limitations during a plaintiff’s disability.” Id.; see also id. at 1142 (examining “the policy underlying . . . [t]olling statutes based on mental incompetency” and observing that they “are enacted to relieve from the strict time restrictions people ‘who are unable to protect their legal rights because of an overall inability to function in society’” (citation omitted)); Johnson v. State, 945 P.2d 673, 674 (Utah 1997)


The Supreme Court of California reached a similar conclusion in People v Wheeler (supra, 22 Cal 3d, at 282, n 29, 583 P2d, at 765), regarding the situation at issue here, exclusion of black jurors by a white defendant: "[W]hen a white defendant is charged with a crime against a black victim, the black community as a whole has a legitimate interest in participating in the trial proceeding; that interest will be defeated if the prosecutor does not have the power to thwart any defense <mask> to strike all blacks from the jury on the ground of group bias alone.”


Wetzel does not suggest the Fourth Amendment confers a right to refuse to obey reasonable police commands issued during lawful police conduct. Moreover, the instant case is distinguishable from Wetzel . Here, defendant was not asserting a constitutional right such as the right to refuse consent to a warrantless search. Defendant actively intervened between the officer and the person being cited, during the officer's lawful <mask> to issue a citation.


A public entity may not recover in a representative public nuisance action any funds that it has already expended to remediate a public nuisance. This court acknowledged as much in Santa Clara I . ( Santa Clara I , supra , 137 Cal.App.4th at p. 310, 40 Cal.Rptr.3d 313.) The trial court's abatement order in this case did not <mask> to award any already-incurred costs to plaintiff or to any of the 10 jurisdictions. Instead, the court's abatement order directed defendants to deposit funds in an abatement fund, which would be utilized to prospectively fund remediation of the public nuisance. None of these funds were permitted to be utilized to reimburse plaintiff, any of the 10 jurisdictions, or any homeowners for already-incurred costs.


Here was an elevator in general use by defendant’s workmen for the purposes of his business, as plaintiff well knew. Plaintiff brings it to a point where he desires to use it, then goes away, and out of sight of it, a,distance of 25 feet, and then walks backwards with his load to the shaft; and, without any <mask> to see whether it was still there, or had been put to use by some other of the workmen, he steps into the space where he supposes it to be, and meets with the injuries complained of. There is no evidence whatever that he exercised the least care or precaution. Under the circumstances, we think, he was bound to look, and not to trust blindly that, because he left the elevator in one place, it would remain there till he got ready to use it. There is no question but what, if he had looked, he would have discovered the absence of the elevator, and a failure on his part to do so rendered him, in our opinion, fairly chargeable witli negligence; but, even if this were not so, still there is no evidence that the elevator on this occasion moved or went down by reason of any defect in its construction or appliances. On the contrary, there is testimony the other way. It appears that when plaintiff fell through the shaft the elevator was on the cellar floor, and that four or five tubs of lard had been loaded on it; and the witness Breit, who was in the cellar, swears that William Ohlandt, another of defendant’s workmen, pulled it down and loaded it immediately previous to plaintiff’s fall. This testimony is entirely antagonistic to plaintiff’s contention that the elevator fell by reason of the softness of the belts, and satisfactorily accounts for the absence of the elevator from the place where plaintiff left it. There were thus shown two causes by which plaintiff might have sustained his injuries. If it was occasioned by the failure of the elevator to remain at the place where it was stopped, defendant might be chargeable with negligence. If it was occasioned by the man, Ohlandt, pulling it down to the cellar for a load of lard, then negligence could not be imputed to defendant. Plaintiff must fail if his evidence does not show that the accident happened from the first-named cause. If it is just as probable that the accident happened from one cause as the other, then plaintiff has not made out his case by a preponderance of evidence. Searles v. Railway Co., 101 N. Y. 661, 5 N. E. Rep. 66. It follows, therefore, from the views above expressed, that the learned trial judge was correct on both grounds in dismissing the complaint. Judgment affirmed, with costs.


In an <mask> to overcome this natural construction, the executrix calls attention to the rule which has sometimes been applied, that the word " or ” may be read “ and,” citing as authority Jackson v. Blanshan (6 Johns. 54, decided in 1810). Why this particular case was selected as the sole authority on this point is obscure, since its facts are anything but apposite to those of the case at bar, and there are several more recent authorities to similar effect. However, all of these urecedents are to be read in the light of the *423equally fundamental principle which is stated with peculiar aptness in Armstrong v. Moran (1 Bradf. Sur. 314, at p. 315): “ It is said, however, that ‘ and ’ may be read ‘ or,’ and the words 1 and their heirs,’ be changed into ‘ or their heirs.’ But ‘ and ’ is never read ' or,’ unless the context of the will favors it, and the general intention is thereby elucidated or promoted. These words are certainly not ordinarily convertible, and to change one into the other at will, to suit the mood of the reader, would work wondrous mischief with legal instruments, to say nothing of its singular effects upon the meaning of any English author one may chance to take down from the shelf.”


This argument hardly conforms to common experience. If motor vehicles, trucks or others, standing idly in barns or garages are expected to explode, fire departments will be obliged to increase their manpower and insurance rates are likely to go up. Indeed, the proof tendered by claimants defeats their contention. It is to the effect that some vandal broke into the barn. What that individual’s intent was and whether or not the explosion and the fire were a successful culmination of his purpose are subjects for pure speculation. Was there any duty upon the State of New York to post a watchman at the barn to prevent the forcible entry? We think not, although counsel argues that Wheeler’s knowledge of the two or three previous occasions when the barn had been broken into required the State to take additional security precautions. Perhaps local peace officers should have been more vigilant if they were aware that thievery was going on at the premises. But how could the State Department of Public Works or its officers and employees have anticipated that the next <mask> to steal gasoline from the fuel tank in the truck would result in an explosion?


In Codling v Paglia (32 NY2d 330), New York courts accepted the theory of strict tort liability. In the course of its rationale, the Court of Appeals recognized the expansion of manufacturing operations and distribution of products. The court rejected the notion that a manufacturer may solicit the purchase and use of a product in reliance upon an assurance of its quality and yet <mask> to avoid responsibility when the expected and intended use of the product produces injury. The basis for the rationale is simple and unadorned, being that a *959manufacturer should be prepared to underwrite a loss caused by a product which produces injury when that product is being operated in the manner intended, is being used for the purpose designed and is defective in either design or function under circumstances where the user could not reasonably detect the defect or avoid the injury. Responsibility is placed where the fault is found to lie.


Another letter addressed to her executors, dated December 31, 1929, reads as follows: “To my executors — My mother, Mrs. John Jamison, must not have anything belonging to me. As I stated in another letter, she was cruel to me as a child and young girl. Her cruelty and lack of consideration and care has had a devastating effect on my health and nerves all my life. Although she is married to a man who can afford to pay $12000 a year for the apartment in which they live, my mother still takes $1000 a year from my father’s estate and has been taking it for over 23 years, even though she has been married all that time. I asked her if I could now have the $1000 a year, to which she has no right anyway. After being absolutely insulting to me about it she let me have one quarterly payment of $245 — then said that was all I could have. It is evident that she and Mr. Jamison are planning to cheat me out of money which she has and which was left her by my grandmother and my aunt. Mr. Jamison, with all of his wealth plans to take that money away from me in case of Mrs. Jamison’s death. In case Mrs. Jamison should <mask> to break my will I wish my executors to use in court, as testimony, a letter which my executors will find in this safety deposit box (204), addressed to my father, Mr. A. G. Norman and written by my mother, in which she blackmails him through me. I am certain that such a dastardly and vile letter was never written by a mother before and it would absolutely prevent her from being able to *399break my will. I write all this because I could not rest in my grave if she ever got any of my father’s or my money or property. Christine Norman Booth Dec. 31, 3 929. The letter to which I have referred was written to my father by my mother at the time she was getting her divorce from him. Christine N. Booth.’’


In People v. Allcutt (117 App. Div. 546 ; affd, 189 N. Y. 517), this court said: “It may be difficult by a precise definition to draw the line between where nursing ends and the practice of medicine begins,, and the court should not <mask>, in construing .this - statute to lay down in any case a hard, and- fast rule upon the subject, as the courts have- never undertaken to mark the limits of the police power of the. State or to have precisely defined -what constitutes fraud. What the courts have- done is to .say that given legislation was or was not within the limits of the police power, or that certain *843actions were or were not fraudulent.” We thereupon proceeded to review all of the facts in that case and drew the conclusion there- . from that Allcutt came within the purview of the statute prohibit" ing the practice of medicine without being lawfully authorized and registered, and sustained the conviction.


The referee found that the patents were valuable and were necessary for the business of the corporation. There is no finding of any fact of which fraud can be predicted or of any <mask> to evade the operation of the statute — nothing, indeed, to show that it was not made in good faith. The position contended for on behalf of the respondent, namely, that it was a fraud upon the stockholders and creditors of the company for its trustees to purchase of one of their number property for the alleged benefit of the corporation) and pay therefor the company’s entire capital stock, cannot be sustained.


Subdivision 2 of section 224 of the Education Law, so far as here pertinent, provides: “No person shall * * * <mask> to obtain by fraudulent means any diploma, certificate or other instrument purporting to confer any literary, scientific, professional or other degree ”. A violation of the section is a misdemeanor and “ any person who aids .or abets another # * * to violate the provisions of this section ” is “ liable to the same penalties ” (Education Law, § 224, subd. 3).


The plaintiff in her affidavit states that she was “badly hurt ” in the accident and had a bad sprain of the back and right hip with shooting pains down to her legs and that as of now she still gets the shooting pains down her legs, and pain in her back. She stated she thought the pain would go away. The plaintiff does not claim that at the time she signed the release she had injuries which were unknown to her. She was at the time of the said signing of the release under treatment for the conditions she now claims. In Mack v. Albee Press (263 App. Div. 275, 277) the court said: “ The rule of law which is applicable to these facts does not seem to be disputed. When the settlement is made on the assumption of the existence of a state of facts it may be rescinded if that state of facts does not presently exist. (Landau v. Hertz Drivurself Stations, Inc., 237 App. Div. 141; Great Northern R. Co. v. Fowler, 136 Fed. 118, 121.) Where, however, there is no mistake concerning the injuries but only a miscalculation of consequences, the voluntary settlement of the parties is irrevocable as to both. (Farrington v. Harlem Savings Bank, 280 N. Y. 1, 4; Miles v. New York Cent. R. R. Co., 195 App. Div. 748; appeal dismissed, 233 N. Y. 644; Chicago & N. W. R. Co. v. Wilcox, 116 Fed. 913.) Neither party may then rescind merely because the consequences of a known injury are more serious or less serious than had been anticipated. Such uncertainties are presumed to have been considered when the parties agreed upon the adjustment of their claims. (Sears v. Grand Lodge A. O. U. W., 163 N. Y. 374, 378; Kowalke v. Milwaukee Electric R. & Light Co., 103 Wis. 472, 479; 79 N. W. 762.) Otherwise, settlements fairly arrived at and releases voluntarily given become futile and *1037nugatory, to be disregarded whenever the course of events reveals that too much or too little has been paid. (Dambmann v. Schulting, 75 N. Y. 55, 64; Kovalke v. Milwaukee Electric R. & Light Co., supra.) ” (See, also, Yehle v. New York Cent. R. R. Co., 267 App. Div. 301.) Althoug'h this plaintiff contends the consequences of her injuries are more serious than supposed, an <mask> was made by her to have this case transferred to the City Court of Queens County. The ad damnum clause in this action seeks the recovery of $6,000.


What emerges from the divergent testimony of both parties in this matter is that petitioner had a license to use the atrium and basement which included electric and water usage. The evidence shows that the respondent permitted the petitioner to use the atrium for the purpose of selling flowers and that use of the atrium was temporary and contingent upon the ability of the landlord to rent the adjacent stores. Essentially, the atrium is an appurtenance adjoining the landlord’s two commercial buildings. A thing “appurtenant” is defined to be a thing used with *547and related to or dependent upon another thing more important, and agreeing, in its nature and quality, with the thing whereunto it is appendant or “appurtenant.” Plainly stated, the atrium together with the basement was not a leasehold characterized by exclusivity and absolute use, since the keys which were initially given to petitioner by the respondent accessed both the atrium and the basement. The court is unpersuaded by respondent’s argument that petitioner’s use of the basement constituted a trespass. Respondent made no <mask> to secure the basement entry from the time petitioner began occupying the subject premises through March 17, 2008, the day of the lock out, thus, permitting unfettered access to the basement. Additionally, the court finds that at all times prior to March 17, 2008, respondent visited the premises at least twice a week and knew or had reason to know that the basement was being used. The photographs proffered into evidence showed electrical lines and plumbing “hook-ups” running from the atrium to the basement that were in plain view. In light of these facts, the court finds it difficult to fathom that respondent was oblivious to petitioner’s use of the basement and utilities over a six-month period.


This court cannot disregard the realities of the situation whereby the carrier is in fact a real party in interest. If unsuccessful in the declaratory judgment action, it, rather than the defendant, will be obliged to bear the cost of this litigation, and to pay such judgment as may be rendered against its assured, within the limitation of the coverage of the contract. Under these circumstances, the court must, in fairness, disregard the technicality that the movant is not a formal party to the instant action. Otherwise, if the carrier should not prevail in its action for a declaratory judgment, it will have to pay the judgment which by that time may have been rendered against the defendant herein and who, in view of what he has said in his second statement, will probably make no <mask> to defend the action, thus leaving the carrier no basis for vacating the judgment, appealing therefrom, or taking any steps to protect itself.


The Legislature has, last week, taken steps to strengthen the law regarding weapons possession and sale. It has, however, permitted the blanket exemptions from prosecution for peace officers to remain in effect. There has, from time to time, been pending before the Legislature proposed legislation (e.g., S3719, A3952, 1973) which would correct this situation. Such legislation would permit possession by peace officers of weapons "authorized by regulation or order of his employer.” It would have prohibited possession of such weapons under circumstances evincing an <mask> to use them unlawfully against another. Peace officers should be permitted to possess *956any weapon which may be necessary for their protection and the proper discharge of their duties. The citizens of the State should not be rendered susceptible to any persons possessing weapons with pernicious intent, regardless of the employment of the possessor. It is entirely within the province and power of the Legislature to protect the public from such known and demonstrated dangers.


The court notes that also at issue are the statutory rights of a public employee under section 1173-4.1 of the New York City Collective Bargaining Law (NYCCBL; Administrative Code of City of New York, ch 54, § 1173-1.0 et seq.) that public employees shall have the right to “self-organization, to form, join or assist public employee organizations, to bargain collectively through certified employee organizations of their own choosing and shall have the right to refrain from any or all of such activities,” (Administrative Code, § 1173-4.1.) Expulsion from a union is a serious penalty which cannot be permitted to be imposed without proper procedures. Under subdivision b of section 1173-4.2 of the NYCCBL, interference with such rights by a public employee union is prohibited: “It shall be an improper practice for a public employee organization or its agents: (1) to interfere with, restrain or coerce public employees in the exercise of rights granted in section 1173-4.1 of this chapter, or to cause, or <mask> to cause, a public *878employer to do so”. Unfair or unreasonable disciplinary procedures by a public. employee union serve to interfere with the rights of public employees to self-organization and collective bargaining, and such unfair procedures will not be condoned by the courts.


*357See Crawford v. Washington , 541 U.S. 36, 50-53, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (defining " 'witnesses' against the accused" within the context of the Sixth Amendment to include not only those who actually testify at trial, but also those whose out-of-court statements are used against the defendant). Once the complaint was submitted, the right of confrontation attached to each defendant. Id. at 50, 124 S.Ct. 1354. Whether Cash Biz was attempting to obtain repayment of the loans through restitution as its conduct suggests, or to obtain some other form of punishment against its defaulting borrowers, it deliberately and repeatedly invoked the criminal justice system in an <mask> to achieve some form of satisfactory result based on the civil debt. In doing so, Cash Biz ignored its own right and obligation under the arbitration agreement contained in the Loan Contracts to seek collection of the debts through arbitration rather than judicially.


This court does not agree with petitioner’s interpretation of the two cases cited by her that the discretionary wording of section 1988 of title 42 of the United States Code is to be considered mandatory. In Newman v Piggie Park Enterprises (390 US 400) the Supreme Court allowed attorney’s fees in a case involving racial discrimination. The court declared (p 402) therein that its decision was an <mask> to "encourage individuals injured by racial discrimination to seek judicial relief’. It was based on a desire to insure the vindication of a policy "that Congress considered of the highest priority.” (See Tatum v Morton, 386 F Supp 1308.)


On September 19, 2016, the trial court issued a minute order stating: "It is clear to the court that significant differences of opinion remain regarding the scope of the Agency's production, and the court is persuaded that these disputes should be resolved before the court issues its Order in this case." Thus, the trial court directed that "[t]o the extent the Agency continues to withhold responsive documents, the Agency is directed to prepare and submit to Petitioners an index identifying the author, recipient (if any), general subject matter of the document, and the nature of the exemption claimed. The parties are directed to then meet and confer and <mask> to resolve any remaining disputes."


A cloud upon the title it certainly is not. The bond and mortgage are not negotiable, and the agreement which I have just quoted will always be a conclusive answer to any <mask> to collect them before the defendant has delivered to the plaintiffs the quitclaim from the city. Nor do I see how the plaintiffs have a right to foreclose the defendant from his title to the mortgage. The phrase that the mortgage shall remain as a security for' the delivery of the quitclaim, and not to be collectible until the delivery of the quitclaim, was not, in my opinion, intended to work a forfeiture of the mortgage if the defendant failed to obtain the quitclaim by the specified time. Time is not of the essence of the contract, and the only effect of failure to produce the quitclaim is to suspend the payment of the mortgage meanwhile.


The drainage facilities provided by the State for this section of Saratoga Avenue consisted of the above-mentioned culvert, two drop inlets on either side of the street about 125 feet south of Arch Street, and two drop inlets on either side of the street some 500 or 600 feet north of Arch Street. Hugh T. McKee, an engineer familiar with the area experienced in highway construction, testified that such facilities were inadequate in number, size, character and location to handle the amount and type of drainage which came from Arch Street and from the area west of Saratoga Avenue generally. In particular, he stated that catch basins should have been provided at the Arch Street intersection. Daniel P. Roohan, County Assistant Engineer, who was in charge of the reconstruction of Saratoga Avenue in 1932, and who had been in charge of maintenance since that time, admitted that he had never made any study of the drainage area, and that, although he had noticed the debris on the pavement, he had never recommended or made any changes in the drainage system and had never even gone up Arch Street to investigate the cause of the difficulty. Prom this testimony and from the whole record, the conclusion seems inescapable that the State was negligent in failing to study the. drainage situation, in failing to provide adequate drainage in the first instance, and in failing to remedy or even to <mask> to remedy the situation which resulted from the lack of adequate drainage facilities. (Taylor v. City of Albany, 239 App. Div. 217, affd. 264 N. Y. 539; Sutherland v. State of New York, 189 Misc. 953.)


These dispositive facts are unaffected by the plaintiffs affidavit submitted on this motion, and the testimony of James Zito, that the identifiers rely on grooms to control the animal during the identification process, and that the defendant’s employee failed to do so in this case. Even assuming for purposes of this motion that the groom did not control the horse after being asked to do so, the court cannot find that this created a “ ‘unique and * * * dangerous condition over and above the usual dangers that are inherent in the sport’ ”. (Morgan v State of New York, supra, at 485.) As indicated above, there is no dispute that a horse is a powerful and sometimes unpredictable animal, and the failure of a groom to control a horse therefore cannot be seen as so unusual that it comes within the ambit of this exception. In addition, the plaintiff continued in her <mask> to complete the identification notwithstanding *1042the excited condition of the horse. Accordingly, summary judgment is granted to movant Benshoff, and the complaint and any cross claims asserted against him are dismissed.


The question before me is not whether the Thruway Authority must be served, but rather how must such service be effectuated? Court of Claims Act § 11 (a) provides that a claim or notice of intention must be filed with the clerk of the court and "served personally or by certified mail, return receipt requested, upon the attorney general”. Defendant maintains that the alternate method of service, certified mail, return receipt requested, applies only to service upon the *909Attorney-General, and that the Thruway Authority must be served by personal delivery. The only support for this contention is in the characterization of the Thruway Authority as a "board” (Public Authorities Law § 352) and the statutory instruction as to how to effect "personal service” upon a board (CPLR 312). I find that defendant’s <mask> to engraft an element of exclusivity onto the procedure described in CPLR 312 ascribes an intention to the Legislature that did not exist, and also runs afoul of a number of basic principles of statutory construction.


Family Court presumed to apply the doctrine of equitable estoppel to foreclose any <mask> by petitioner to obtain judicial consideration of his rights as a parent. However, the doctrine is more appropriately applied against the mother than against petitioner (Michel DeL. v Martha P., 173 AD2d 308, 309; Matter of Boyles v Boyles, 95 AD2d 95, 98). If respondent now finds petitioner’s involvement in his daughter’s life to be inconvenient, she cannot deny that her predicament is the result of her own action. Not content with the *306knowledge of the identity of the biological father that her chosen method of conception afforded, Robin Y. initiated and fostered a relationship between petitioner and Ry. However strenuously this relationship may be gainsaid by respondent, its nature, duration and constancy during the six years prior to the commencement of this proceeding amply demonstrate petitioner’s interest and concern for his child (Social Services Law § 384-b) so as to preclude summary termination of his parental rights. Nor, given that Ry has known petitioner to be her father since the age of three, is there any credibility to the suggestion that mere acknowledgement of petitioner’s legal status will result in a shock to the child’s sensibilities (compare, Terrence M. v Gale C., 193 AD2d 437, lv denied 82 NY2d 661). According to the testimony of the court-appointed psychiatrist, Ry’s recently expressed desire to sever contact with petitioner, coinciding as it does with the onset of the instant dispute, is based on concerns communicated to her by Robin Y. and Sandra R. These fears are based on the misapprehension that visitation by petitioner necessarily poses an immediate threat to the stability of the household. In any event, Family Court’s precipitous pronouncement notwithstanding, visitation is a matter yet to be determined, and the value of therapy in reestablishing the relationship between Ry and her father is an appropriate consideration in that context (Wolfson v Minerbo, 108 AD2d 682). Finally, entry of an order of filiation has the advantage of supplying a further source of support, should the necessity arise, together with the potential for substantial inheritance (Michel DeL. v Martha P., supra, at 309).


Memorandum: Plaintiff Timothy Brown commenced a negligence action against defendant-plaintiff Jason E. Askew and defendant Well Timed Transport, Inc. (Well Timed), and Askew commenced a separate negligence action against Well Timed, each seeking to recover damages for injuries that he sustained in a multivehicle accident. The accident occurred in the afternoon on a section of Interstate 90 (I-90) westbound consisting of four driving lanes and an on-ramp/merging lane. After the on-ramp/merging lane expires, the rightmost lane of the four driving lanes becomes an off-ramp from I-90 headed toward another highway, thereby requiring any driver seeking to remain on I-90 to merge left before I-90 reduces to three through lanes. The speed limit on the subject portion of I-90 is 55 miles per hour. Askew drove down the on-ramp, merged into the rightmost lane, and then intended to merge left again into the right through lane in order to continue on I-90. Meanwhile, Brown, who was driving a tractor-trailer, was in the left-center lane, and a taxi for Well Timed was in the right-center through lane that would continue on I-90. It is undisputed that Askew began an <mask> to merge into the right-center through lane but, ultimately, Askew's vehicle and the Well Timed taxi collided. The Well Timed taxi then hit Brown's tractor-trailer, which in turn hit the center barrier of I-90. The Well Timed taxi also struck the barrier and came to rest against it. Brown and Askew allegedly sustained serious injuries, and the driver of the Well Timed taxi died.


"Warnings, to be effective under the combined holdings in Miranda and Westover [Westover v United States, 384 US 436], must precede the subjection of a defendant to questioning. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning. "Unlike theories which require examination of a defendant’s testimony as to his state of mind and, thus, an assessment of his credibility, the Westover approach may be based on an assessment of external events.” (Emphasis added.) It is clear from the holdings in Elstad and Chappie, along with the facts in the instant case, defendant’s second statement may be admitted on the People’s direct case. Before Miranda warnings were administered, defendant was not subjected to intensive, in depth, or coerced interrogation. In fact, Officer B.’s sole question to defendant before the assertation of the Miranda warnings can reasonably be viewed and described as impulsive, and not as an <mask> to deprive defendant of his Miranda warnings. There is nothing to indicate involuntariness in the pre-Miranda sense.


6th. Because the verdict does not find prisoner guilty of any offence ; for the act of 1785 does not punish with death the passing one of the cobs, but is in the plural, and the verdict is in the singular. The act particularly describes the offencé, “ utter, or <mask> to pass, knowing them to be counterfeit.” And in case the foregoing grounds should be 'overruled ,' the prisoner moves for a new trial, because the instruments given in evidence might have been put into the indictment, being a distinct felony, and should not have been allowed as mere testimony.


It is, perhaps, not material in this case to define the rule with precision, and to <mask> to state with accuracy the precise effect to be given to a judgment or decree of the court as proof of probable cause under all circumstances, because in the present case the *192decree of the circuit court of the United States was adjudged to be-entitled to no effect whatever as evidence in support of the defense of the plaintiff in error.—Daily Reg., February 16, 1886.


There is no per se rule that the Constitution has been offended whenever an informant learns information about the anticipated defense of a pending indictment, without regard to the circumstances under which the information was obtained. (See Weatherford v Bursey, 429 US 545, 552.) The prosecutor who supervised Lacen and the investigation into the alleged homicide <mask> here has averred that the prosecutor who was assigned to the instant case was shielded from any information regarding the defense revealed by the defendant to the informant in their conversations. The court need not assume that the prosecutors have misrepresented the facts, or that any revelation of information concerning the defendant or his attorney’s view of the case communicated to a prosecutor through an *139informant necessarily has the potential for detriment to the defense or benefit to the prosecution solely because the prosecutor who has debriefed the informant in connection with a suspected new offense is employed by the same office as the prosecutor assigned to try the pending indictment. (See Weatherford v Bursey, supra, p 557.) The court notes that the claims of the defendant in his affidavit, submitted in support of his motion, are entirely conclusory in that regard.


*485In determining whether or not good cause has been established, the Third Department has found that a technical violation of the Open Meetings Law did not warrant nullification of the resolution without proof that the violation was motivated by an intent to avoid compliance with the Open Meetings Law (Matter of Frigault v Town of Richfield Planning Bd., 107 AD3d 1347 [3d Dept 2013] [change in location of meeting done for convenience not to prevent public attendance]). Here, even accepting petitioners’ allegations as true that there were technical violations of the Open Meetings Law, there are no allegations—other than speculation—that such violations were part of a larger <mask> to circumvent the law.


In a 24-count information, the Contra Costa County District Attorney charged defendant and five others with <mask> *804to commit human trafficking (§§ 182, subd. (a)(1), 236.1, subd. (b); count 1). The district attorney alleged in great detail a total of 51 overt acts committed by the various six defendants against Victims 1, 2 and 3, and other women working as prostitutes. Defendant was also charged with two counts of the substantive crime of human trafficking of Victim 1 (§ 236.1, subd. (b); counts 14 and 17).


The Supreme Court in Quelimane Co. v. Stewart Title Guaranty Co. , supra , 19 Cal.4th 26, 77 Cal.Rptr.2d 709, 960 P.2d 513, held a complaint alleging a defendant title insurer had refused to sell title insurance on any real property acquired at tax sales, which led to the termination of subsequent transactions to resell such properties, stated a cause of action for intentional interference with existing contractual relations. (Id. at pp. 56-57, 77 Cal.Rptr.2d 709, 960 P.2d 513.) The complaint, however, alleged the refusals were pursuant to an unlawful <mask> among several title insurers not to insure tax sale properties. (Id. at pp. 35-36, 57, 77 Cal.Rptr.2d 709, 960 P.2d 513.) The Court also held whether plaintiffs could prove defendant "intended to interfere with land sale contracts when it denied title insurance ... [is] a matter for trial." (Id. at p. 57, 77 Cal.Rptr.2d 709, 960 P.2d 513.)


Armstrong concedes that Defendants are part of the same agency, as Nevada’s OSHA office is within the Division of Industrial Relations, which is within the Department of Business and Industry. Nev. Rev. Stat. § 618.235. But Armstrong contends that she adequately pleaded a <mask> between Defendants and ENTA, so that the intracorporate conspiracy doctrine is inapplicable. We disagree. The FAC focused on a conspiracy among the Defendants. It does not allege sufficient facts to support a conspiracy involving ENTA.


Since drafting the earlier part of this decision, I am informed that in said City Court and on motion of the said complainant, the judge of said City Court has granted an order herein permitting the said complainant to withdraw his said charge of <mask> against said defendants. That being so, the only charge remaining for hearing, trial and determination by said Court of Special Sessions is, whether or not the defendants are guilty of said charge of alleged assault in the third degree. With the merits of said controversy I am not here concerned. I cannot see how the trial thereof will present any intricate or complicated questions of fact or any difficult questions of law. Such a case is not of the exceptional character. So far as I can anticipate, it in no way meets the tests set forth in People v. Rosenberg (supra). I discover no adequate reason why said defendants cannot have a fair and impartial trial of the said charge of alleged assault in the third degree in said City Court.


Before Davis, Willett, and Oldham, Circuit Judges. Don R. Willett, Circuit Judge: Sergio Fernando Lagos urged the district court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on the ground that he received ineffective assistance of counsel during sentencing. The district court denied Lagos’s motion, and for the reasons explained below, we AFFIRM. I Lagos pleaded guilty in 2015 to one count of <mask> to commit wire fraud and five counts of wire fraud, in violation of 18 U.S.C. §§ 2, 1343, and 1349. Lagos was the owner and CEO of U.S.A. Dry Van Logistics, LLC Case: 20-20283 Document: 00516192963 Page: 2 Date Filed: 02/07/2022


On December 1, 2011, Plaintiff filed its initial complaint in the action below. Plaintiff alleged that DAS, Defendants, and various other individuals and entities, including the United States government, "agreed on a common plan ... to fraudulently transfer 13 million dollars from the Credit Suisse Bank account to DAS and thereby hinder, delay or defraud OPTIONAL in recovering that property." Although Plaintiff did not provide any details about the formation and operation of the alleged <mask>, it alleged that the DAS Freeze was a result of the conspiracy and that Parker had made misleading representations to the federal district court and to the Ninth Circuit.


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


In August of 2018, petitioner was arrested in Berkeley County, West Virginia, on several offenses, including obtaining money by false pretenses and/or schemes, <mask>, forgery and/or uttering, and grand larceny. In May of 2019, he was indicted of one count of financial exploitation of an elderly person, one count of conspiracy to commit financial exploitation of an elderly person, one count of felony fraudulent scheme, four counts of forgery, and four counts of uttering in Berkeley County. Petitioner pled not guilty to these charges. The Maryland court revoked petitioner’s probation and issued a bench warrant for his arrest due to his failure to appear for a probation revocation hearing.


A couple of weeks after this, apparently early in May of 1967, defendant wife had an attorney from her lawyer’s office come to the house one evening with the power of attorney which she wanted her husband to sign. He had no attorney of his own, but he admits that he signed the power of attorney and that he regarded the attorney as performing no more than the function of a notary. She then told plaintiff that she was going up-State with her sister but apparently she went to Mexico and secured a divorce dated May 9,1967. She was accompanied on the trip by an old acquaintance of plaintiff, defendant Louis Buttke, who at the same time, with the assistance of the same hometown lawyer, obtained a. Mexican divorce from his wife. For reasons not very clear the wife did tell plaintiff about May 16th that she was going to Mexico for the divorce and she left for a few days. The wife continued, however, to live with the plaintiff until September 16th, when she finally moved out. She married Buttke in October of 1967. According to the wife, even after she had the divorce the plaintiff did not want her to move out. When she finally did leave ‘11 left everything ’ ’ including a joint checking and joint savings account and most of the furniture and furnishings. Even as to the things she took, she admits telling the plaintiff that he could have back anything he wished. She did not, however, do anything about transferring title to the real property and at this point plaintiff finally consulted an attorney. Negotiations to settle the property questions came to naught and plaintiff, who has never transferred to the wife the items he agreed to transfer now offers to complete his performance and asks that the wife be ordered to execute deeds to the home and the summer house. He also sought in this action to annul the Mexican divorce on the ground *170of fraud, but he has now withdrawn this prayer for relief. He also asks $3,500 in legal fees which he alleges he has been obliged to expend herein and requests that defendants pay him $50,000 for fraud and <mask>. The actions for conspiracy against all defendants were dismissed at the trial for lack of proof.


Furthermore, we find no proof of any <mask> on the part of the Long Island State Park police, the police of the City of New York and the County of Nassau to perpetuate and continue the false arrest of the claimant. Nor is there any proof of an assault upon the claimant by the State Park police. In fact, the claimant stated that he was never beaten by the State Police.


*754Paragraph 14 of the petition alleges: “14. On information and belief, after the issuance of letters testamentary to the Executors, they entered into a <mask> with Marlborough Gallery and Marlborough A. G. to defraud the Estate of Mark Rothko, Deceased, to waste the assets of that estate and to dispose of the paintings of the decedent belonging to his estate for the sole benefit and profit of the respondents and each of them, and in. pursuance of that conspiracy they engaged in the acts hereinafter set forth.”


Were two or more of those listed below part of a <mask> that damaged Vernco? To be part of a conspiracy, a defendant and another person or persons must have had knowledge of, agreed to, and intended a common objective or course of action that resulted in the damages to Vernco. One or more persons involved in the conspiracy must have performed some act or acts to further the conspiracy. Answer 'Yes' or 'No' as to each of the following: Hood ANSWER: Yes Nelson ANSWER: Yes Koenning/Insurance Once ANSWER: Yes *739Punitive Damages


As the result of defendant’s alleged possession of cocaine and drug paraphernalia at his residence on September 2, 1992 and $100 sales of cocaine to State Police informants on August 17, 1992 and on August 31, 1992, three separate indictments were obtained, charging defendant with criminal possession of a controlled substance in the seventh degree and two counts each of criminal use of drug paraphernalia in the second degree, criminal sale of a controlled substance in the third degree and <mask> in the fourth degree. Defendant disposed of all three indictments with a plea of guilty to a single count of attempted criminal sale of a controlled substance in the third degree and was sentenced to an indeterminate prison term of 4 to 12 years and a $5,000 fine. Defendant now appeals, challenging only the sentence imposed by County Court.


The complaint alleges that the defendants conspired, acted in concert and aided and abetted each other in their marketing and design of cigarettes. The defendants have moved to dismiss these allegations as they relate to the various causes of action. Citing Rastelli v Goodyear Tire & Rubber Co. (79 NY2d 289, 295 [1992]), they claim that the complaint only alleges facts which indicate mere parallel activity among competitors and that such allegations are insufficient to establish a cause of action for <mask> or concerted action. The defendants assert that the plaintiffs’ allegations are merely conclusory and contain no facts which suggest that the defendants actually entered into an agreement to act in conspiracy or concert with one another.


CPLR 302 provides that a court may exercise jurisdiction over a nondomiciliary who in person or through an agent commits a tortious act within or without the State. Based upon the acts of a subsidiary within the State, jurisdiction over a parent company may exist under an alter-ego theory. However, a parent-subsidiary relationship alone cannot form the predicate for jurisdiction over the parent (Heller & Co. v Novacor Chems., 726 F Supp 49, 54 [SD NY 1988], affd 875d 856 [2d Cir 1989]; Porter v LSB Indus., 192 AD2d 205, 213 [4th Dept 1993]). There must be some proof that the parent company dominates or controls the daily activities of the subsidiary. (Delagi v Volkswagenwerk AG, 29 NY2d 426 [1972]; Taca Intl. Airlines v Rolls-Royce of England, 15 NY2d 97 [1965]; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152 [1980].) Although here the record fails to demonstrate that Brown & Williamson’s daily operations are controlled by the B.A.T. defendants, *420the facts do support allegations of a <mask> connecting all of the defendants to the transactions occurring in New York.


*498Winkler v. State , 2012 Ark. App. 704, at 6, 425 S.W.3d 808, 811. It is settled doctrine that the crime of <mask> is complete on the agreement to violate the law as implemented by one or more overt acts, however innocent such act standing alone may be, and it is not dependent on the success or failure of the planned scheme. Id. at 6-7, 425 S.W.3d at 811 (citing United States v. Joiner , 418 F.3d 863 (8th Cir. 2005) ). A conspiracy may be proved by circumstances and the inferences to be drawn from the course of conduct of the alleged conspirators. Id. at 6, 425 S.W.3d at 811.


Peter P. Rosato, J. Defendant Robert Tutoni stands charged under the instant indictment with crimes of <mask>, fifth degree, bribery, second degree, and bribe receiving, second degree. Merv Blank and Arnold DiGregorio are named in the conspiracy and bribe receiving counts as unindicted coconspirators. Mr. Blank, as petitioner herein, now moves to expunge his name from the *672Tutoni indictment.* In so moving, petitioner raises an issue which, to this court’s knowledge, has not squarely been addressed in this State, namely, whether it is improper to name someone in an indictment as an unindicted coconspirator.


Although the fact that dissolution was rejected at the same time severance was accepted suggests that the problems in the west were the cause for the interest in dissolution, it is plaintiff’s position that the severance agreement was evolved at "clandestine” meetings and was a part of a <mask> first to saddle him with Dr. Fiore and then to dissolve. Prior to the vote on the severance issue, plaintiff wrote to the directors of RHS alleging the agreement was illegal but demanding, that he be permitted to resign on the same terms. At the August 15 meeting he cast the only negative vote and resigned as an employee. Attempts to dissuade him were fruitless and on August 19, 1974 the corporate attorney wrote him stating that his employment contract required 90 days’ notice of termination and contained a covenant not to compete and that if any portion of the eastern practice was lost to the corporation legal redress would be sought. Despite the fact that he was still a shareholder and, for another 90 days, a salaried employee of RHS, plaintiff immediately renewed his efforts to secure a separate contract from the Southampton Hospital. *450Upon receipt of a letter from the RHS attorney advising it of the restrictions contained in plaintiff’s contract of employment, the hospital rejected plaintiff’s proposal.


The first cause of action is against 16 of the 25 directors and charges them with gross mismanagement with respect to allegedly excessive employment agreements entered into with defendant Rosenstiel, president of the corporation and chairman of the board. The second cause of action is against another group of 16 directors, alleging a plan or <mask> with defendant Rosenstiel to enter into an unreasonable and excessive supplementary and amendatory agreement. The third cause of action is against a group of 23 directors, alleging unauthorized granting of an option to purchase a certain amount of shares of the corporation to defendant Rosenstiel and misconduct by Rosenstiel in exercising the same. The fourth cause of action is against the entire board, alleging excessive payments to defendants Kiefer and Nauheim for “ special services ”. The fifth cause of action is against a group of 16 directors and alleges unauthorized options to purchase shares granted to defendants Mackie and Nauheim and their misconduct in exercising the same. The sixth and final cause of action is against 17 of the directors and defendant Sundstrom, alleging an unreasonable and excessive employment and stock purchase option arrangement with him. Accordingly, plaintiff seeks generally to hold the defendants liable for damages to the corporation and to nullify the afore-mentioned agreements, arrangements and plans and to enjoin further payments thereunder.


D. Hardwick mounts his final evidentiary challenge against a question the government asked one of Maurya’s employers from after her time at MHS: “Did you know back at the time that Ms. Maurya was working for you, did you know whether she had agreed to plead guilty to <mask> in connection with her prior employment?” Hardwick objects to the question as lacking a foundation, as including “inadmissible hearsay,” and as causing unfair prejudice because “the Government was allowed to introduce evidence that Maurya admitted to joining a conspiracy without ever calling her to testify and allowing the Defense to cross-examine her.” (Emphasis omitted). Hardwick suggests a number of possible grounds for exclusion, but because the defense had already informed the jury of Maurya’s plea deal, we find no error in the district court’s ruling. The government’s single question regarding Maurya’s guilty plea was asked after the defense had already told the jury about Maurya’s plea during its opening statement. There, defense counsel explained: [U]ltimately [Maurya] sold her story to the government and became a witness. Went down, decided to cut a deal. Now, here is the woman that had stolen almost nine hundred thousand dollars. She cuts a deal with the government: I will testify for you. She believes that they will go lenient on her, and they give her a five-year cap on crimes that could take—you could get a life sentence on. She gets a cap, USCA11 Case: 19-10746 Date Filed: 02/01/2022 Page: 18 of 24


Accordingly, this court denies the motion for a pretrial hearing on this matter, but does direct that the prosecutor refrain from any reference to the alleged details of any coconspiratorial statements during voir dire or opening statements to the trial jury. During voir dire, the prosecutor may simply inquire about the prospective jurors’ ability to apply the rules of law enunciated by the court, including the rule that any statement made by one conspirator, if made in furtherance of the <mask>, is admissible evidence against every other coconspirator as if uttered by him directly. (Cf., People v L.B. Smith, Inc., 108 Misc 2d 261 [Sup Ct, Onondaga County 1981].)


. Interestingly, ACA may have involved the in pari delicto doctrine, which prohibits coconspirators in a fraudulent scheme from suing each other. (See Kirschner v KPMG LLP, 15 NY3d 446, 464 [2010].) ACA and Goldman conspired to lie to investors about ACA’s independence, but Goldman conspired with Paulson to lie to ACA. ACA wanted to be compensated for the latter scheme, despite such scheme taking place in the context of ACA’s own <mask> with Goldman. To wit, the real loser on the deal was ABN AMRO, whose losses far exceeded ACA’s.


rately with two counts of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of possessing a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). See id. The <mask> charges were based on evidence of a scheme perpetrated by Plaintiff and his co- defendants that involved acquiring various properties, transfer- ring the properties among each other, setting fire to the proper- ties, and then making fraudulent insurance claims to collect mon- ey for the fire losses. See id. The firearms charges were based on evidence that law enforcement agents found multiple guns, in- cluding a shotgun with an obliterated serial number, when they searched Plaintiff’s home in connection with the alleged conspira- cy, and the fact that Plaintiff had a prior New Jersey conviction for welfare fraud that initially resulted in a two-year sentence. See id. at 871. Plaintiff and his co-defendants elected to have the charges against them tried before a jury, and Defendant Gerald Williams was appointed to represent Plaintiff at trial. See id. at 869. After a three-week trial, Plaintiff and his co-defendants were convicted of the conspiracy charge, and Plaintiff was also convicted of the fire- arms charges. See id. at 871. Plaintiff was sentenced to concurrent prison terms of 121 months for the conspiracy, 120 months for each of the § 922(g) firearm offenses, and 60 months for possession of a firearm with an obliterated serial number. See id. With the assistance of a different defense attorney, Plaintiff appealed his conviction and sentence to this Court, arguing that USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 4 of 13


In October 1996, the Blumenfelds — New York residents— filed the first of the 13 investors’ demands for arbitration. Subsequently, the 12 other investors each filed a separate demand for NFA arbitration in connection with the alleged fraudulent scheme. The investors asserted claims against Goldinger, Capital Insight,2 and the Respondents for violations of the Commodity Exchange Act and its regulations, breach of fiduciary duty, failure to supervise, breach of customer agreement, churning, common-law fraud, <mask> to defraud, aiding and abetting common-law fraud, deceptive business practices, negligence, gross negligence, negligent misrepresentation and respondeat superior.


Concurrent with the diversion of funds from BNU an investigation of Steve’s operations by the United States Department of Justice was underway. Two weeks after the hearing before this court on BNU’s motion for a TRO on the funds in the accounts in New York City, the United States Attorney filed an indictment against Steve’s principals, Steve Wangboje and Azie Guice, in the United States District Court in New Jersey. The indictment charged that they had engaged in "money laundering” of funds from narcotic operations, wire fraud and <mask>. The affidavits of the United States Drug Enforcement Agency personnel in support of the orders for the interception of wire communications among the defendants indicated that the money laundering scheme was related to drug trafficking activities by car dealerships located in Nigeria. One such dealership was Skymit Motors, Ltd. in Lagos, Nigeria, to which Steve’s shipped luxury vehicles and parts. Communications intercepted from Wangboje’s home with the other defendants "reflect that the Subject[s] themselves are actively involved in fraudulent schemes * * * and have customers who were/are engaged in drug trafficking.” The wiretaps also revealed that Skymit attempted to impede the investigation in Nigeria by, inter alia, instructing Steve’s to manufacture and alter documents, and "stonewall” the investigators.


If, then, this offence consists in combining to do an unlawful act, or a lawful act by unlawful means, it will clearly only be necessary in the first case to charge the combination #and the object of it, that the court may see it was a <mask> to do an unlawful act; but where the combination is not rendered criminal by the unlawfulness of its object, it will be necessary to go farther until the point of criminality is reached, and set out such unlawful means as rendered it so.


But if we place no harsh construction on the codicil of January 24, 1902, and treat it also as an attempt to testaméntate in good faith under the existing Statute of Wills, the evidence of its due execution by a competent and free testator is not very high. The codicil propounded was drawn by Mr. Parshall, and, like the will, the ceremony of its execution was performed at Port Jervis. It was witnessed by Mr. Parshall and by Dr. -Lambert, a resident physician of Port Jervis. Necessarily Dr. Lambert’s means of observing the testator were limited to their joint residence at Port Jervis, which was brief. *594This witness was the family physician of the Wood family. He could not remember whether or not Mrs. Van Ness was present when the codicil was executed. He came to the ceremony by Mr. Parshall’s request. It was he, this witness, who sent Miss Wood away on the argonautic expedition which led to her marraige. The effect of testimony of attesting witnesses to a codicil like this has been discussed in Marsh v. Tyrrell, 4 Ecc. Rep. 46. It is not necessary in a case of this kind to connect all the attesting witnesses with a <mask> or the undue influence charged. Even persons of high character may be employed and fail to do their duty in a situation like that of Dr. Lambert and Mr. Van Ness. Mr. Van Ness Was at Port Jervis, very old, among total strangers and away from his only daughter and lifelong friends. He was then over eighty-three years of age. Yet there is no evidence that the physician took the slightest pains to examine Mr. Van Ness alone and apart from his wife or Mr. Parshall. He was not bound to unravel all the complicated conditions of his family relations or the tangled threats of Mr. Van Ness’ past life. But he should have taken some pains to ascertain the facts he attested. This attesting witness was naturally most interested in the Wood family. He did not even know at the time of the codicil that Mr. Van Ness had an only daughter dependent upon him to some extent. It appears that this witness made himself only perfunctorily an attesting witness and a part of a testamentary ceremony conducted by Mr. Parshall in the presence of Mrs. Alice Wood Van Ness, the possessor of all of Mr. Van Ness’ estate.


As to the first contention, the sufficiency in law of the counts charging perjury, larceny by false pretense and forgery having been herein sustained, the legal sufficiency of the <mask> counts is likewise sustained as to those three categories of crime charged. As to the second count of Indictment No. 20416, charging violation of section 2051 of the Penal Law, we, having determined that count to be insufficient in law, must necessarily determine the conspiracy counts likewise insufficient in law and they must be dismissed with respect to that crime only.


The court’s examination of the Grand Jury proceeding has failed to show any other overt acts done in furtherance of the <mask> until its pleadings termination date of August 1,1979 and within the two-year Statute of Limitations for such crime. “The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before ‘the principal that criminal limitations statutes are “to be liberally interpreted in favor of repose.” ’’’(Toussie v United States, 397 US 112, 114-115.)


McGill testified that Andrew Renaud was charged, as his role in a marihuana selling <mask>, with the task of delivering this load of marihuana to yet a third brother participating in the criminal enterprise, Tim Renaud in Pittsburgh. Brother Brian Renaud issued that order. Brian yelled at Andrew (who whined that his truck was in the shop and he couldn’t get to Pittsburgh) and ultimately told him to get McGill to provide the wheels. Andrew is the one who directly told McGill about the plan and asked McGill to provide the transportation to deliver the marihuana to Tim. The discussed plan with Andrew was that McGill would be paid $500 or $600 to make the run with Andrew, plus he would get 2 of the nearly 19 pounds of marihuana being transported. McGill was going to remain silent, until he heard Andrew telling the police that none of the stuff in the vehicle was his. As McGill testified:


fraud counts. Throughout the plea process, Greenhill was repre- sented by her second court-appointed lawyer (P.C.). On 3 February 2020, the district court conducted a change- of-plea hearing. During the plea colloquy, Greenhill testified under oath that she understood the plea agreement, that no one had threatened or coerced her to plead guilty, that she had had suffi- cient time to think about and to discuss with her lawyer her deci- sion to plead guilty, and that she was satisfied with her lawyer’s representation. Greenhill also said she agreed with the govern- ment’s factual proffer and that she was in fact guilty of <mask> to commit wire fraud. The district court reviewed the terms of the plea agreement’s appeal waiver, explaining that by pleading guilty, Greenhill was giving up her right to appeal her conviction and sen- tence except in three narrow circumstances. Greenhill confirmed that she understood the appeal waiver. At the end of the plea colloquy, the district court determined that Greenhill understood the charges against her and the conse- quences of her guilty plea, that Greenhill was pleading guilty know- ingly and voluntarily, and that her plea was supported by an inde- pendent factual basis. The district court accepted Greenhill’s plea and adjudicated Greenhill guilty of conspiracy to commit wire fraud. The probation officer prepared a Presentence Investigation Report (“PSI”). The PSI calculated a total offense level of 26: a level that included a three-level acceptance-of-responsibility reduction and enhancements based upon the estimated loss amount USCA11 Case: 21-11102 Date Filed: 02/04/2022 Page: 4 of 12


As was noted earlier, and made clear by defendant’s motion, the problem occurs when the further observation is made that both overt acts Nos. 3 and 4 are alleged to have occurred “on or about and between January 1, 1979 and February 15, 1979.” Both acts are alleged to have occurred more than two years prior to the filing of the indictment on February 24, 1981 and thus would appear to fall beyond *990the two-year Statute of Limitations for the prosecution of <mask> in the sixth degree. (CPL 30.10, subd 2, par [c].) Generally the Statute of Limitations runs from the date of the last overt act done pursuant to the conspiracy. (Cf. Matter of Doyle, 257 NY 244; Dennis v United States, 384 US 855; Brown v Elliott, 225 US 392.)


But even if it were requisite that the order denying the motion to vacate the order of arrest should be vacated, and liberty given to renew it upon new facts, before a motion could be heard to reduce the bail, there were additional facts in such affidavits beyond what was before the court on the previous occasion. In the first place, the defendant denies specifically the various representations wherewith he was charged in the plaintiff’s affidavit on *344which, the order of arrest was obtained; also an explanation of the original cause of difficulty between the parties; a denial of any <mask> between the defendant Spalding, and his co-defendants; the resumption of the possession of some, at least, of the goods in ¿ontroversy, by the plaintiff since the defendant’s arrest; the fact that three-quarters of the goods belonging to the firm did not consist of goods bought of the plaintiff, and were acquired since ; a denial of the defendant’s insolvency ; the conversion of the goods bought of the plaintiff into money, and the excess of the value of the firm’s assets beyond the value of the property sold by the plaintiff; the sale of goods of the firm by the plaintiff and his son since this action was begun to persons of doubtful credit; the incompetency of the plaintiff’s son to manage the business ; the action brought by his wife, the plaintiff’s daughter-in-law, for a dissolution of the partnership; a denial that the defendant drew from the assets of the firm the sum charged in the plaintiff’s affidavit. These were amply sufficient to make a new case, and some of them were facts which occurred after the first motion was made, and the discretion of the court would not have been improperly exercised in rehearing either motion on such facts. The novelty of the facts is apparent ^from the plaintiff’s deeming it necessary to deny them in an affidavit of four pages of printed matter.


In February 2007, appellants filed a complaint against Hancock with the ASBL, seeking to have Hancock sanctioned for his actions with regard to the survey. The ASBL dismissed this complaint against Hancock. Appellants call the ASBL's refusal to sanction Hancock "contrary to all evidence" and claim that the ASBL's findings were "lies" and that the dismissal of their complaint was "baseless, of bad faith, and false." Essentially, they claim that the dismissal of their complaint was the result of a <mask> against them.


“ (e) The court shall have the power to hear, try and determine charges for every misdemeanor committed within the corporate limits of said city. * * * “ (f) The judge or assistant judge shall have power, upon conviction for misdemeanor, to impose a sentence of imprisonment not exceeding one year in a county jail or penitentiary or a fine not exceeding five hundred dollars, or both such fine and imprisonment, with further imprisonment if such fine is not paid, not exceeding one day for each dollar of fine unpaid, except where a different punishment is by law prescribed for such offense.” From this I conclude and determine that this special act must be deemed to be embraced in said subdivision 37 of section 56 of the said Code of Criminal Procedure, and that from the inception said City Court has and does possess in the first instance exclusive jurisdiction to hear and determine said charge of <mask>, which, by said section 580 of the Penal Law, is specifically declared to be a misdemeanor, punishment of which is conceded to be by imprisonment in a pententiary or county jail for not more than one year, or by a fine of not more than $500, or by both (Penal Law, § 1937).


Cantu raised a genuine issue of material fact on whether he was prevented by Appellees' alleged deception from presenting the specific plans, actions, and evidence of the <mask>, fraud, perjury, and coercion defense he raised in his petition for bill of review. Cantu also raised a fact issue on whether he was only able to discover Appellees' misconduct years after the Gonzalez wrongful death suit ended, and he could not have previously presented the specific plans, actions, and evidence he proffered in his petition. Thus, Cantu has raised genuine issues of material fact on whether he is seeking an additional review of the specific elements and evidence of conspiracy, fraud, perjury, and coercion that were, or could have reasonably been, already litigated and appealed.... Therefore, the trial court could not have properly granted Appellees' motion for summary judgment on this theory. Cantu II , 448 S.W.3d at 496.


But this statement should be read with the rule as declared by the Court of Appeals in Green v. Davies (182 N. Y. 499): “ There may be cases where acts committed in pursuance of a combination of a number of persons to injure a third person are actionable, while the same acts, if done by a single individual acting without such concert, would not be actionable. Such cases may be termed actions for <mask>, but where the conspiracy results in the commission of that which would be an actionable tort, whether committed by one or by many, then the cause of action is the tort, not the conspiracy.”


directly related to the plausibility of the plaintiff’s theory.” 69 “If the plaintiff advances a strong, plausible theory then the quantum of evidence tending to exclude independent action is not as great as if the plaintiff advances a weak or implausible theory. Likewise, when there is a risk that the threat of antitrust liability will chill legitimate, procompetitive conduct by market participants, the quantum of evidence is also high.” 70 IV We turn to the allegations and evidence in this case. A iPic alleges that AMC and Regal conspired to “crush iPic with clearances” in order to “eliminate” it “from the markets of Houston and Frisco.” iPic alleges that the <mask> was formed in January 2013 when, after hearing AMC’s presentation to Open Road, Regal president Greg Dunn directed Regal’s film department to clear any luxury or dine- in theater concept within three miles of a Regal theater. iPic further alleges that the conspiracy culminated with AMC and Regal’s near simultaneous clearance requests on July 8, 2014. iPic claims no damages


Youngkin moved to dismiss the claims against him under the TCPA. In a supporting memorandum, he argued that his reciting the Rule 11 agreement into the court record constituted the exercise of the right to petition, as defined in the Act, and served as a factual basis for Hines's fraud and <mask> claims against him. Youngkin also raised the affirmative defense of attorney immunity, arguing it shielded him from liability to a nonclient for actions taken in the course of representing a client.2 The trial court denied the motion to dismiss, and Youngkin filed an interlocutory appeal pursuant to Civil Practice and Remedies Code sections 27.008(b) and 51.014(a)(12). The court of appeals affirmed, holding that (1) the TCPA applied to the claims against Youngkin, (2) Hines made a prima facie case for each element of his claims, and (3) Youngkin failed to prove his attorney-immunity defense. We granted Youngkin's petition for review.


The defendant was convicted, following a conditional plea of nolo conten- dere, of the crimes of <mask> to possess a controlled substance with intent to sell, conspiracy to possess narcotics with intent to sell by a person who is not drug-dependent, and conspiracy to operate a drug factory. During surveillance of a motel for illegal activity, a police officer, observing an individual, T, quickly enter and exit the defendant’s motel room at around 1 a.m., believed that he had witnessed a drug transaction. After T exited the motel room, he entered a vehicle driven by another individual, which departed from the motel. A short distance from the motel, the police stopped the vehicle. When the police approached the vehicle, they smelled a strong odor of marijuana emanating from inside the vehicle. After T was removed from the vehicle, he admitted to possessing marijuana. A search of T’s person revealed, inter alia, mari- juana and heroin. The police ultimately detained T, who, at that time, denied being in or having any connection with the defendant’s motel room. The police then went to the house of T’s grandmother, where T was living. After T’s grandmother consented to a search of T’s bedroom, the officers searched that room and found numerous plastic bags with the corners cut off, as well as other bags containing an off-white powder residue. The officers went back to the motel and spoke with the manager, who advised them that the defendant paid cash to rent a room there for a week and provided them with a copy of the defendant’s driver’s license. The manager also indicated that a guest registration card for that room included the name of an individual with T’s surname, which the police believed was most likely T. The officers then went to knock on the defendant’s motel room door. The officers observed a light on, but no one answered. One of the officers then retrieved a canine officer and conducted a canine sniff of the motel walkway in the vicinity of the defendant’s room. The canine alerted that it had detected contraband at the bottom of the door to the defendant’s room. On the basis of all that had transpired since observing T enter and exit the defendant’s room, the police decided to apply for a warrant to search the defendant’s room. Before the police submitted their application for a warrant, how- ever, one of the officers noticed the defendant walking away from the motel. The defendant was ultimately detained, and the officers found a large wad of cash on his person, as well as a motel room key. The police informed the defendant that T had admitted to them that he was storing his supply of marijuana in the defendant’s motel room, and the defendant responded that nothing in the room was his. The defendant agreed to open the door to the room for the officers but then changed his mind and refused to grant them entry. The defendant also indicated at that time that no one was in the room. To ensure that there was no one in the room who might destroy evidence before the officers could obtain a warrant, one of the officers used the defendant’s key to open the door. After opening the door, and without entering, an officer looked inside for approximately fifteen to thirty seconds and then closed the door. While the door was open, the officer observed evidence of drug activity. The defendant was then informed he could leave. Thereafter, the police prepared an application for and obtained a search warrant for the room. The application had been based on the results of the canine sniff of the door of the motel room, the observations made during the visual sweep of the room, and T’s admission to the police that he had kept his supply of marijuana in the room. A search of the room revealed a large quantity of heroin, among other items related to drug activity. The defendant filed a motion to suppress the evidence that had been seized from the motel room, claiming, inter alia, that the search violated his rights under the Connecticut constitution (art. I, § 7) because the search warrant application contained information obtained from an allegedly unlawful, warrantless visual sweep of the motel room. The trial court denied the motion, concluding that the visual sweep was necessary to prevent the imminent destruction of evidence and, there- fore, was justified by the exigent circumstances exception to the warrant requirement. The court also determined that, even if the visual sweep was not justified under that exception, the evidence seized during the execution of the search warrant was admissible under the independent source doctrine. The defendant appealed to the Appellate Court from the judgment of conviction, claiming, as he had in the trial court, that he was entitled to suppression of the evidence found in the motel room because the search warrant derived from the allegedly unlawful visual sweep of the room. The defendant also asserted, for the first time, that he was entitled to suppression of the evidence because the search warrant application included information obtained from the warrantless canine sniff conducted by the police outside of the door of his motel room. The Appellate Court affirmed the trial court’s judgment, conclud- ing that the visual sweep was constitutionally permissible under the exigent circumstances exception and that a warrant was unnecessary with respect to the canine sniff because the sniff was not a search under the state constitution. On the granting of certification, the defendant appealed to this court. Held: 1. The canine sniff of the exterior door to the defendant’s motel room was a search for purposes of article first, § 7, of the Connecticut constitution: the protection against a canine sniff that is afforded to a resident of a multiunit condominium complex under the state constitution in accor- dance with State v. Kono (324 Conn. 80) also extends to the occupant of a motel room, as motel guests have a reasonable expectation of privacy in their rooms, the fact that motel guests typically do not keep all of their personal effects in their rooms did not mean that the personal effects that guests do keep there should be subject to less protection under the law, a room occupied by a motel guest is not more vulnerable to a warrantless canine sniff than an apartment, condominium or house simply because other guests occupy nearby rooms or because rooms may be entered by motel staff to perform certain functions, and motel guests reasonably do not expect that the foot traffic generally associated with an open-air walkway abutting the motel’s guestrooms includes law enforcement officers trolling the walkway with a trained canine in search of contraband. 2. The state could not prevail on its claim that, even if the canine sniff of the door to the defendant’s motel room was a search, such a search could be conducted without a warrant, as long as the search was based on reasonable and articulable suspicion that there were illicit drugs in the room: although cases from other jurisdictions hold that a canine sniff of the door to an apartment or a condominium unit in a multiunit building is lawful if it is based on reasonable and articulable suspicion rather than on probable cause, this court determined that those cases were incompatible with its reasoning and holding in Kono; moreover, under article first, § 7, searches conducted without a warrant based on probable cause are presumed to be unreasonable, the state’s heavy burden of overcoming that presumption is met only in certain excep- tional or compelling circumstances, and the few recognized exemptions from the warrant requirement under the state constitution invariably have involved searches conducted under circumstances requiring imme- diate action by the police, generally, in the interest of police or public safety, a consideration that was not implicated by a canine sniff per- formed to ascertain whether a motel room contains unlawful drugs; accordingly, a canine sniff of the exterior door to a motel room satisfies state constitutional requirements only if it follows the issuance of a warrant founded on probable cause. 3. The information available to the police unrelated to the canine sniff was sufficient to establish probable cause for the search of the defendant’s motel room, but a remand to the trial court was necessary to afford the state an opportunity to demonstrate that the evidence seized from that room was admissible under the independent source doctrine by estab- lishing that the police would have sought the warrant regardless of the results of the canine sniff: the facts, untainted by the results of the canine sniff, were sufficient, standing alone, to support the issuance of the warrant, as T previously had been staying in the motel room, T was involved with and likely selling drugs, T was likely engaged in a drug transaction when he entered and immediately exited the room in the middle of the night, and there were likely drugs or drug related items in the room in light of what the police found on the defendant’s person and the defendant’s denial that anything in the motel room belonged to him; nevertheless, because the defendant did not raise the issue of the constitutionality of the canine sniff in the trial court and, thus, the state had no reason to adduce evidence demonstrating that the police were prepared to seek a warrant prior to the canine sniff or that they otherwise would have done so if the canine sniff had not occurred, the record was not clear with respect to that issue, and it would have been unfair to the state if this court had resolved the state’s independent source claim on the basis of an undeveloped record; moreover, the inadequacy of the record with respect to the state’s independent source claim did not require this court to reject the defendant’s constitutional challenge to the canine sniff under the first prong of State v. Golding (213 Conn. 233), which ordinarily would bar appellate review of the defendant’s unpreserved constitutional challenge on the basis that remands to sup- plement the record are generally not permitted, as a remand to allow the state to present additional evidence was appropriate, under the unusual circumstances of this case, insofar as allowing the Appellate Court’s decision to stand would be contrary to the unanimous determina- tion of this court that the canine sniff was unlawful, and vacating the Appellate Court’s judgment would result in confusion with respect to the legality of a warrantless canine sniff of a motel room. 4. This court could not resolve, as a matter of law, the state’s claim that the evidence seized from the motel room was admissible under the inevitable discovery doctrine on the ground that such evidence would have been discovered by lawful means in the absence of the canine search: although it was apparent that the investigating officers were seeking to develop enough evidence to obtain a warrant for the motel room even before the canine sniff was conducted and that their investiga- tion could have resulted in their obtaining a warrant even if the canine sniff never occurred, the evidence adduced at the defendant’s suppres- sion hearing did not establish, as a matter of law, that the police would have sought a warrant irrespective of the canine sniff; moreover, because this court lacked the authority to find facts, it could not resolve the factual issue presented by the state’s inevitable discovery claim, as the undisputed evidence did not lead to only one possible conclusion; nevertheless, as the state had no reason to adduce evidence in support of its inevitable discovery claim before the trial court insofar as the defendant did not challenge the propriety of the canine sniff in that court, this court concluded that, on remand, the state must be afforded the opportunity to present additional evidence in support of that claim. 5. The Appellate Court and the trial court incorrectly determined that the visual sweep of the defendant’s motel room was justified by exigent circumstances, as the possibility that evidence would be destroyed was too speculative: the belief held by the police that an immediate visual sweep of the room was necessary to avert the destruction of evidence was not objectively reasonable, as the police knew that neither of the two individuals actually linked to the motel room was in a position to destroy evidence located inside the room because, at the time of the visual sweep, T was under arrest and the defendant was with the police, there was nothing in the record to suggest that the police had reason to believe that anyone else had a similarly direct connection to the room or its contents, the generalized possibility that an unknown person might be lurking inside was not sufficient to justify a visual sweep, and, except for the unremarkable fact that a light was on inside the room, the record was devoid of any evidence from which a police officer reasonably could have concluded that someone was inside the room; moreover, the determination of whether the state could prevail on its claim that any impropriety stemming from the visual sweep was obviated by the independent source doctrine required additional fact-finding, and, accordingly, this court directed that, on remand, the state must be afforded the opportunity to present additional evidence related to whether the police would have sought a warrant irrespective of the visual sweep, and the trial court’s determination of that issue must be made in light of the fact that the canine sniff was also unlawful. Argued February 27, 2020—officially released September 15, 2021**