In arguing there was an "unlawful amendment of Measure C," NCORP4 contends that the tax measure permits a delinquent taxpayer to cure its default *1088with payment of back taxes, penalties and interest. NCORP4 argues that Ordinance No. 1715 "revokes" this curative provision by denying "immunity to an applicant who is otherwise ready, willing and able to meet his past-due tax obligations." The argument misconstrues Measure C. The failure to pay taxes under Measure C has never been capable of cure by the simple expediency of tendering late payment. A person violating Measure C is "guilty of a misdemeanor" (Vallejo Mun. Code, § 5.05.600) and may be prosecuted even if late payment is made (id ., § 5.05.590). In any event, Ordinance No. 1715 does not preclude late payment of taxes but limits immunity to those <mask> dispensaries that "paid quarterly taxes from the date of opening until the city ceased accepting tax in February 2015." (Id. , § 7.100.080(A)(3).) NCORP4 did not pay taxes "from the date of opening" but only proffered payment years later when applying for immunity. (Ibid. )


"A SLAPP suit is 'a meritless lawsuit "filed primarily to chill the defendant's exercise of First Amendment rights." ' [Citations.] California's anti-SLAPP statute allows a defendant to move to dismiss 'certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.' " ( <mask>, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 613, 212 Cal.Rptr.3d 45.) Per the anti-SLAPP statute: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." ( § 425.16, subd. (b)(1).)


*810CCC further alleges the City refuses to allow CCC to participate in any discussion or hearing determining whether the Initiative imposes a general tax. In addition, Initiative section 17.158.100 allegedly is only a minor part of the overall Initiative and would only affect the three proposed <mask> dispensaries. CCC asserts in its writ petition the City took the position the Initiative imposes a general tax because the City is against the Initiative. CCC further alleges the City's position allegedly is a pretext and serves no legitimate purpose. CCC concludes the City's refusal to place the Initiative on a special election ballot violates CCC's rights under the Elections Code and California Constitution. CCC's writ petition therefore requests the trial court to issue a writ of mandate compelling the City and City clerk to place the Initiative on a special election ballot in compliance with Elections Code section 9214.


*485An inspection report prepared before the appeals board hearing noted that one of the City's code enforcement inspectors had met with the collective's business owner in 2010 and told him "this location may not qualify due to the residential use located next door." The City filed a brief with the Appeals Hearing Board that contained additional information about City Council directives regarding <mask>. According to the brief, in 2012 the City Council "directed Code Enforcement to focus its enforcement priorities on ... collectives" operating near schools. In 2013, the City Council added to the priority list collectives "located on a parcel that shares a 'zero lot line' with residential uses." The City's code enforcement department had sent compliance orders to several collectives meeting those criteria, including plaintiffs' collective. After a hearing, the Appeals Hearing Board upheld the compliance order.


Appellants argue that our cited cases about taxes generally including assessments are inconsequential, because we cannot apply this common usage without a "clear, unambiguous indication" that this was the People's specific intent in adopting the 1911 constitutional provision, and the cited cases did not so hold. Appellants cite California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, where an initiative petition sought a special election to impose taxes on <mask> dispensaries, but the city invoked the constitutional provision that a tax proposed by "local government" was to be submitted at the next general election. ( Id. at pp. 931, 937.) The Supreme Court held "local government" did not include "the electorate." In doing so, the Court noted that the "common understanding" of the term "local government" did not readily lend itself to include the electorate. ( Id. at p. 937.) Thus, common usage of words is a factor in construing the constitutional provision. Here, the common usage of the term "taxes" in 1911 generally included user fees and assessments.


<mask>, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 212 Cal.Rptr.3d 45, is persuasive-if not on point. There, the court affirmed the denial of an anti-SLAPP motion with this language: "It would be inappropriate for us to insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified, even if the parties suggest on appeal how plaintiffs might have intended to frame those claims or attempt to identify the specific conduct or assertions of statements alleged to be false on which plaintiffs intended to base such claims for relief. It is not our role to engage in what would amount to a redrafting of the first amended complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it." ( Id. at p. 621, 212 Cal.Rptr.3d 45 fn. omitted.)


In People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 ( Strasburg ), a different panel of this division held that a police officer had probable cause to search a vehicle based on the odor of marijuana, despite the defendant's presentation of a <mask> prescription. ( Strasburg , at pp. 1058-1059, 56 Cal.Rptr.3d 306.) The court rejected the defendant's argument that the decriminalization of medicinal marijuana under the Compassionate Use Act of 1996 (CUA) bars a law enforcement officer from conducting a reasonable search based on the odor of marijuana. "[T]he officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession." ( Strasburg , at p. 1060, 56 Cal.Rptr.3d 306.)


The appellate court held that there was no conflict preemption: "Conflict preemption exists when 'simultaneous compliance with both state and federal directives is impossible.' [Citation.] ... A claim of positive conflict might gain more traction if the state required , instead of merely exempting from state criminal prosecution, individuals to possess, cultivate, transport, possess for sale, or sell <mask> in a manner that violated federal law. But because [state law does not] require such conduct, there is no 'positive conflict' with federal law .... [Citation.] In short, nothing in either state enactment purports to make it impossible to comply simultaneously with both federal and state law." ( Qualified Patients Assn. v. City of Anaheim , supra , 187 Cal.App.4th at pp. 758-759, 115 Cal.Rptr.3d 89.)


We agree. As noted earlier, land use regulation is a function of local government. ( City of Riverside, supra, 56 Cal.4th at p. 742, 156 Cal.Rptr.3d 409, 300 P.3d 494.) State law permitting medicinal marijuana use and distribution does not preempt "the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute <mask>, and to enforce such polices by nuisance actions." ( Id. at p. 762, 156 Cal.Rptr.3d 409, 300 P.3d 494.)


¶9 On or about August 28, 2018, Matthew Peter Tierney and his wife, Shani Swarer, retained Respondent to assist them with setting up a <mask> business. During their initial meeting, Respondent had Tierney sign an Attorney Retainer Agreement. Pursuant to the terms of that agreement, Tierney paid Respondent a $5,000.00 retainer in the form of a check to cover fees and costs incurred during the representation.2 The agreement also provided that upon conclusion of the representation, the balance of the retainer, if any, would be returned to the client.


The business tax was suspended in February 2015. The city council found there had been a "proliferation of <mask> dispensaries" and that "accepting taxes from those engaged in an activity that is not lawful under the city's land use regulations tends to confuse the public as to the city's *1084policy and undermines enforcement of the city's land use controls." The city undertook to draft an ordinance limiting the number of dispensaries before reinstating the tax.


Plaintiffs argue that we should not defer to the City's interpretation because the "terms 'medical office' and 'other similar health related occupations' are not technical, obscure or complex." But given that <mask> collectives are unique entities because marijuana remains illegal for most purposes under federal law, whether such a land use is authorized by a catchall provision in a local zoning classification is intertwined with issues of fact, policy, and discretion. (See Yamaha , supra , 19 Cal.4th at p. 12, 78 Cal.Rptr.2d 1, 960 P.2d 1031.)


7 The applicable Maine statute, at the time, limited the authorization of <mask> use to persons with debilitating medical conditions. We do not in this case confront a situation where a so-called "medical marijuana" authorization scheme in practice allows for recreational use, so we have no occasion to speculate about how the rider might or might not apply in those circumstances.


Vallejo has several ordinances affecting the operation of <mask> dispensaries. The starting point is its zoning ordinance, which predates state medical marijuana laws. Vallejo's zoning ordinance provides an extensive list of permitted land uses and prohibits all other uses. (Vallejo Mun. Code, §§ 16.06.010-16.06.630.) An unpermitted use is declared to be "a public *744nuisance." (Id. , § 16.100.040.) Vallejo has never recognized medical marijuana dispensaries as a permitted land use. A marijuana dispensary is not a designated land use and, therefore, is an unpermitted nuisance. (Id., §§ 16.06.010-16.06.630, 16.100.040; see City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433, 83 Cal.Rptr.3d 1 [enjoining operation of a medical marijuana dispensary upon finding that "where a particular use of land is not expressly enumerated in a city's municipal code as constituting a permissible use, it follows that such use is impermissible "].)1


Meanwhile, on April 28, 2016, Pasadena cross-complained in defendants' action, seeking injunctive relief and nuisance abatement. On July 15, 2016, Pasadena filed a motion for a preliminary injunction in defendants' action. Defendants noted that there already was a preliminary injunction in place affecting many of the defendants. However, Pasadena was seeking an additional injunction because "<mask> dispensaries are trying to circumvent the preliminary injunctions already issued by either renaming the dispensary or allowing other dispensaries to occupy and use their location."


"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi2 ... or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense. [Citations.] We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard.' " ( Crane v. Kentucky (1986) 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 ; California v. Trombetta (1984) 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 ; see also People v.Stewart (1976) 16 Cal.3d 133, 141, 127 Cal.Rptr. 117, 544 P.2d 1317 [erroneous failure to instruct on affirmative defense "constitutes a denial of this right which 'is in itself a miscarriage of justice' "].) This case exemplifies a deprivation of the right to assert a defense. It cannot be said on this record that the refusal to permit Ahmed's possible <mask> defense was harmless beyond a reasonable *478doubt. ( Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) We must reverse.3


Ahmed requested leave to move for a new trial on the grounds that the court erroneously (1) precluded him from raising the state <mask> defense on the basis that Livermore's local ban against dispensaries preempted the state law defense to a criminal prosecution; and (2) instructed the jury that it is illegal under California law for a legal medical marijuana dispensary to deposit money into a federal bank. The court denied the request. Ahmed was sentenced to five years' felony probation with conditions including one year in county jail, a $5,000 restitution fund fine, and approximately $82,000 in other fines and fees. This appeal was timely filed.


The Agency Report dated March 4, 2015 (Agency Report), was prepared jointly by City departments under Elections Code section 9212, to address *976the anticipated impacts of the Initiative on the City. The Agency Report concluded the Initiative's $75,000 licensing and inspection fee exceeded the estimated actual costs incurred from issuing a license for a <mask> dispensary and conducting annual inspections of the dispensary. The City estimated the actual annual costs would total $15,014.28. Because the $75,000 licensing and inspection fee imposed by the Initiative exceeded the anticipated costs of licensing and inspection of a medical marijuana dispensary, the City concluded in the Agency Report that the $75,000 fee is a general tax, which must be presented to voters at a regularly scheduled election under Article 13C. In reaching this conclusion, the City relied on the reports provided by the City's departments, which are included in the Agency Report.


interpreted the “safe harbor,” there are numerous other reasons that preclude the entry of summary judgment. 1. Interpreting section 1185’s “safe harbor” North American urges that the trial court erred in construing what is required to fit into section 1185’s “safe harbor.” Specifically, North American argues that the “safe harbor” is (1) satisfied only if the driver’s license presented to the notary was a genuine license actually issued by the California DMV (rather than a genuine-looking but fake license), (2) satisfied only if the notary complies with all other industry customs, which may be defined by expert testimony in a specific case, and (3) is automatically negated if the person appearing before the notary turns out to be an imposter. These arguments require us to engage in our own independent analysis of section 1185 (Union <mask> Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1183 [“Statutory interpretation is ‘an issue of law, which we review de novo’”]), and we reject each of these arguments. a. Does section 1185 require that the driver’s license presented be issued by the DMV? A notary’s acknowledgement of a document falls within section 1185’s safe harbor if the person appearing before him provides a driver’s license that reasonably appears to have been issued by the DMV, even if it was not actually issued by the DMV. We so conclude for two reasons. First, this is how similar language has been interpreted in other contexts. Akin to section 1185, Business and Professions Code section 25660 erects a statutory safe harbor for persons selling alcohol to minors if they verify the buyer’s age by looking at a “valid motor vehicle operator’s license” “issued by a . . . state


The arguments made by Save Lafayette Trees to the contrary are not persuasive. Save Lafayette Trees argues, " section 65009 is a statute adopted to address California's 'housing crisis' by 'reduc[ing] delays and restraints upon expeditiously completing housing projects.' (... § 65009(a)(1).) It does not by its terms, or even by implication, apply to the city's contract with PG&E to remove mature trees along public hiking trails." Although one of the three findings made by the Legislature with respect to section 65009 relates to housing,3 nothing in section 65009, subdivision (c)(1), restricts its application to decisions involving housing. As set forth above, courts have interpreted the statute as applying to challenges to a broad range of local zoning and planning decisions. (See, e.g., Urgent Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th 1086, 1096, 230 Cal.Rptr.3d 892 [ordinance prohibiting <mask> dispensaries]; Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1048, 137 Cal.Rptr.3d 873, [variance to landowners, in order to authorize pool and spa in setback zone].)


Defendants argue that the trial court erred by granting Pasadena's motions and issuing the injunctions because "there is no substantial evidence of a city ordinance which explicitly declares that a <mask> dispensary is a nuisance." Defendants assert that such an *898explicit declaration is required in order to deem any land use a nuisance per se, citing Beck Development Co. v. Southern Pacific Transportation Co . (1996) 44 Cal.App.4th 1160, 52 Cal.Rptr.2d 518 ( Beck ). In that case, the court stated, "The concept of a nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance." ( Id. at p. 1206, 52 Cal.Rptr.2d 518.)


The City argues that all of the specifically enumerated professions in the Municipal Code definition of medical office "have in common the fact that they are physicians or similar professions and that they *370have patients." The City contrasts those characteristics with <mask> collectives, which it argues have neither physicians nor their own patients because members of collectives "are patients of the physicians who prescribed marijuana."


Proposition 64 (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) ) legalizes and regulates non<mask>. The proposition added various sections to the Health and Safety Code. As relevant to this case, section 11362.1 permits the cultivation of not more than six living marijuana plants (§ 11362.1, subd. (a)(1) & (3) ) and reduces the punishment for an adult cultivating more than six plants to a misdemeanor, unless other circumstances, not relevant here, are present. ( § 11358, subds. (c) & (d).)


For the first time at oral argument, counsel for defendants asserted that in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc . (2013) 56 Cal.4th 729, 156 Cal.Rptr.3d 409, 300 P.3d 494, the Supreme Court held that state marijuana laws did not permit a municipality to implement a "total ban" on <mask> dispensaries. This is incorrect. In City of Riverside , the Court stated that state marijuana law "neither ... expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions." (Id . at p. 762, 156 Cal.Rptr.3d 409, 300 P.3d 494 [emphasis added].)


In September 2014, Mr. Ryan violated the conditions of his release on both convictions. The court revoked his probation and executed his previously suspended consecutive 15-year sentences for both *154convictions. Mr. Ryan filed a Rule 24.035 motion challenging only his conviction in 2012 for <mask>.3 The motion court appointed counsel for Mr. Ryan, who filed an amended motion asserting Mr. Ryan's plea counsel was ineffective for inducing an involuntary guilty plea by: (1) informing Mr. Ryan of a change in the State's offer only minutes before he entered his plea, (2) failing to discuss the facts of the case with Mr. Ryan before the plea, and (3) intimidating Mr. Ryan into accepting the revised plea offer by saying he would receive a harsher sentence if he did not accept the State's revised offer.


“If the jury believe from the evidence that previous, up to, and at the time of the <mask> in question, the prisoner thought or believed that his wife actually loved him, and would not have left him but for the persuasion of the deceased and females acting in his inter- ■ es1-, and that she was willing to return and would have returned to him but for this cause, tliat this was an unwairanted and unsound delusion on the part of the prisoner, that thereafter, and in consequence thereof, ■ his mind became and continued diseased, that such delusion and disease increased in intensity until the prisoner became, was, and remained subject to great causeless and violent frenzies and paroxysms of rage, in which his power of distinguishing whether he was committing a crime or not was, for the time, destroyed or superseded, and that the act charged upon him was committed while in such a paroxysm, and while such power of distinguishing was destroyed or superseded, he is not responsible, legally, for that act.


This indictment contains a single count of manslaughter in the second degree. Indeed, this charge was submitted but dismissed by the Grand Jury. It does not contain the charge of criminally negligent <mask>, the sole count voted by the Grand Jury. A Grand Jury proceeding is defective when "[f]ewer than twelve grand jurors concur in the finding of the indictment.” (CPL 210.35 [3].) The proper remedy for such a defect is dismissal, when the defendant seeks such relief. (CPL 210.20 [1] [c].)


. The <mask> offenses excluded from the six-month rule of CPL 30.30 are nevertheless subject to the right to speedy trial guaranteed by the Sixth and Fourteenth Amendments of the Constitution, section 12 of the Civil Rights Law and CPL 30.20. However, the court previously ruled that there has been no constitutional or statutory violation of defendant’s right to a speedy trial. Thus, the only issue on the instant motion is whether the statutory exclusion of CPL 30.30 (subd 3, par [a]) applies when the charge is attempted murder.


It appears to be accepted on both sides that the <mask> was a retaliatory act of persons connected with the Hip Sing Tong Society, a rival and antagonistic organization to the On Leon Tong Society, for the killing by members of the latter society on a prior date of the president and vice-president of the Hip Sing Tong Society, and that the person who was intended to be shot and killed on February 27, 1912, was not the one who was wounded and who died from such wound, namely, Lee Kay, but Lee Po Ming, who stood behind Lee Kay, and who, as stated, was the vice-president of the On Leon Tong Society. If this theory is correct it is not surprising that the persons who saw the occurrence were in part members of the On Leon Tong Society. It is, moreover, not surprising that other members of the On Leon Tong Society should take steps legitimate in character to discover and produce before the court witnesses to the shooting in aid of the prosecution of those who are said to have done it.


Florencia Meyers: A resident of the same apartment complex who had seen Carty sitting in her car at the apartment complex a day before the kidnapping. Carty told Meyers that she was going to be having a baby the next day. *156Sherry Bancroft: A Public Storage employee where Carty had a storage unit. She testified that on May 12, 2001, Carty told Bancroft that she was in labor and expecting a baby boy. Bancroft said that she saw Carty again on May 15, 2001 between 6:30 and 7:30 in the evening. Carty told her that the baby was at home with the father, and she left with a baby blanket and two sets of clothes. Denise Tillman: She worked at a Houston medical uniform store. She testified that Carty visited the store on May 12, 2001, and bought a number of items, including a blue pen, a nurse's ID tag, a stethoscope, surgical scissors, and two scrub tops and scrub pants. Jose Corona: The record refers to him as both Carty's boyfriend and husband. They had lived together for two-and-a-half years, but Corona moved out of the apartment before the kidnapping and murder. Carty had engaged in a pattern of telling Corona she was pregnant, then would never give birth. She would not take him to the doctor with her, she never appeared pregnant, and so Corona "was tired of lies" and decided to leave. On the day before the kidnapping, Carty called Corona "many times" to tell him that she was going to have a baby boy the next day. She also called him on May 16th to tell him that the baby would arrive that day. Charlie Mathis: A DEA agent who had occasionally used Carty as a confidential informant some time before the offense occurred. He testified for the State. He said that he had known Carty for eight to ten years. Mathis said that in 1994 or 1995 she was "closed out," which meant that she was no longer on the books of the DEA as a confidential informant. Nevertheless, Carty would still contact Mathis from time to time with tips. Some time in 2001 Carty told Mathis that she gave birth to a boy. He said he was confused because the timing was off, and her husband did not seem to know about the baby. On the day of the kidnapping, Carty called Mathis and asked him to come to the police station. The police had also contacted Mathis to help interview Carty. Mathis said that when he arrived at the police station, he told Carty that she needed to tell the police anything she knew about the location of Rodriguez and baby Ray. Carty told Mathis that she had given two cars to people that she feared were involved in the kidnapping. She took the police to an address on Van Zandt Street where there was a car parked with baby Ray inside. There was another car parked there that had Rodriguez's body in the trunk. The police arrested Carty and other individuals who were at the Van Zandt address. On cross examination, Mathis testified that he did not believe Carty was involved in the kidnapping. He also testified that he did not believe Carty would do something like this. When defense counsel asked if Carty was a "good informant," Mathis said he had "no way of measuring who is good and who is not." Mathis said that Carty was generally truthful but that there were times when he felt that Carty "wasn't as truthful as she should have been." Dr. Paul Shrode, an assistant medical examiner, testified as to the cause of Rodriguez's death. Dr. Shrode testified that Rodriguez died as the result of a "<mask> suffocation." He said that her airway was compromised, and it could have resulted from the tape over her mouth, or the *157plastic bag taped around her neck, or her body position in the trunk.


. Defendants contended that the indictment, drawn in common-law form, was fatally defective for its failure to charge the murder in the language of the statute (Rev. Stat., part 4, tit. 1, eh. 1, § 5,1st ed., vol. 2, pp. 656, 657) which, so far as here pertinent, defined a criminal <mask> as murder “ When perpetrated from a premeditated design to effect the death” etc. (subd. 1) and “When perpetrated without any design to effect death, by a person engaged in the commission of any felony” (subd. 3). The absence of “premeditated design” was also *501embodied in the definition of murder by an act imminently dangerous, etc. (subd. 2).


However, even at this early stage counsel fell short professionally in important respects. He seemed to have no sensitivity to the potential conflict of interest6 he faced from the outset by representing the codefendant Fitzroy McNeil7 at the same time during this early arrest process. While this was to be remedied shortly by the appointment of counsel from the 18-B <mask> panel for McNeil in Criminal Court, the problem concerns counsel’s interview of both suspects at that time. A careful lawyer should have interviewed his client separately and limited his representation of McNeil to certain prophylactic instructions to the police, and certainly not engage in a joint interview of both, as counsel testified he did, or conduct any interview of McNeil without a clear, intelligent and voluntary waiver by McNeil and Smith of the potential conflict of interest. Not only was this apparently ignored by counsel, but he put himself in the position more than three years later of not being able to differentiate at the CPL article 440 hearing who told him what about the facts of the homicide, at least at this early stage.8


Some two months later, Colorado officers interviewed Spring in a Kansas City jail. Given the Miranda warnings, he again signed a waiver. When they brought up the Colorado <mask>, Spring indicated he was ready to talk, and confessed. ( Spring , supra , 479 U.S. at pp. 567-568, 107 S.Ct. 851.) The trial court denied a suppression motion, but the Colorado Court of Appeals and Supreme Court held the waiver invalid because the ATF agents had not told Spring he would be questioned about the Colorado homicide during his interview. ( Id . at pp. 568-570, 107 S.Ct. 851.) The high court reversed, finding the waiver voluntary, knowing, and intelligent. ( Id . at pp. 573-577, 107 S.Ct. 851.)


[m]andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional. It neglects the circumstances of the <mask> offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. Id. at 477-78, 132 S.Ct. 2455 (internal citations omitted). Accordingly, the Court held that defendants who committed homicide crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit the judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence. Id. at 489, 132 S.Ct. 2455. Because the mandatory life-without-parole sentencing schemes in Alabama and Arkansas violated the Eighth Amendment's ban on cruel and unusual punishment, the Court reversed the judgments of this court and the Alabama Court of Criminal Appeals and remanded *67the cases for further proceedings. Id.


In People v Kane (213 NY 260, 277), the Court of Appeals upheld the <mask> conviction of a defendant who shot a pregnant woman even though claimed negligent treatment at a hospital “may also have had some causative influence”. The court did say, however, that if the death was solely attributable to the secondary agency, and not at all induced by the primary one, then there would be a defense to the charge.


Summarizing the record of October 12, 1977: As the record in the instant case shows, defendant was not picked up until 2:30 a.m. the night before the polygraph exam, and obtained a maximum of three hours sleep before being tested the next morning. Defendant, not being formally charged, was taken to another police headquarters and intensively questioned from approxmately 9:00 a.m. until 5:00 p.m. with short breaks for lunch and to rest. There is also evidence that defendant was familiar with police procedures and tactics which militate in favor of his confession being knowingly and intelligently made. However, there is ample evidence to show that the police in the instant case did not take the time to thoroughly advise defendant of his rights and that defendant, with three hours sleep, was put under severe strain during interrogation throughout the course of the afternoon. After being placed in the patrol car, defendant was not again advised of his rights before admitting to the burglary. The course of events throughout the afternoon was sufficiently severe to render any admissions to an unrelated crime inadmissible. Defendant’s physical and emotional energy, already having been spent during interrogation with respect to the <mask>, the police officers were not free to "tag on” a burglary confession with*250out renewing defendant’s Miranda rights in the police car preliminarily to the continued interrogation. For the foregoing reasons, People v Manley (40 AD2d 907, supra) clearly differs on the facts although not on the law, for to hold otherwise would be mainfestly unjust. The tactics utilized by the police in the instant case were not per se psychologically coercive; however, the length of the interrogation combined with the restricted purpose for which the waiver was signed, has not been sufficiently overcome by the State with enough evidence of voluntariness to sustain its burden of proof beyond a reasonable doubt.


People v Abbott (84 AD2d 11), cited with approval in People v Flayhart (72 NY2d 737, 741), illustrates these rules and supports the People’s theory of criminal responsibility. Two defendants engaged in a "drag race” and sped down a street in a residential area. Abbott tried to pass the car driven by the codefendant, Moon, lost control and smashed into another automobile, killing the driver and two passengers. Both defendants were charged with manslaughter in the second degree and criminally negligent <mask>. They were convicted of criminally negligent homicide.


Addressing a similar claim of instructional error, the California Supreme Court explained: "An unlawful killing involving either an intent to kill or a conscious disregard for life constitutes voluntary manslaughter, rather than murder, when the defendant acts upon an actual but unreasonable belief in the need for self-defense. [Citations.] In addition, a <mask> is justifiable and noncriminal where the actor possessed both an actual and reasonable belief in the need to defend. [Citations.] In either case, 'the fear must be of imminent harm. "Fear of future harm-no matter how great the fear and no matter how great the likelihood of the harm-will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury." ' [Citations.] The trial court need not give [perfect or imperfect self-defense] instructions on request absent substantial evidence to support *748them." (People v. Stitely (2005) 35 Cal.4th 514, 550, 26 Cal.Rptr.3d 1, 108 P.3d 182 ; see People v. Manriquez (2005) 37 Cal.4th 547, 581, 36 Cal.Rptr.3d 340, 123 P.3d 614 ; In re Christian S. (1994) 7 Cal.4th 768, 783, 30 Cal.Rptr.2d 33, 872 P.2d 574.) Where there is no evidence from which a jury could reasonably conclude a defendant had an actual or honest belief in the need to defend against imminent danger to himself or others, such instructions are properly refused. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269, 62 Cal.Rptr.2d 345 ; accord, People v. Breverman (1998) 19 Cal.4th 142, 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094 [instructions on imperfect self-defense required where the evidence that the defendant was guilty only of that lesser offense is " 'substantial enough to merit [a jury's] consideration' "; the existence of any evidence, no matter how weak, will not justify instructions on a lesser included offense]; People v. Barton (1995) 12 Cal.4th 186, 201, 47 Cal.Rptr.2d 569, 906 P.2d 531 [sua sponte instruction that defendant killed in unreasonable self-defense is not required when the evidence is " 'minimal and insubstantial' "].) On appeal, we apply a de novo standard of review. (Manriquez, supra, 37 Cal.4th at p. 581, 36 Cal.Rptr.3d 340, 123 P.3d 614.)


An investigation was immediately commenced. At the outset, the police noted that a metal milkbox had been placed under the window next to the victim’s bed and surmised that the criminal had stood on this box to look inside the bedroom. On June 20, 1972 Detective Donald Palmer of the 105th Precinct noted a man walking about the area at 5:00 a.m. in the morning. The detective questioned this man, who identified himself as the defendant and gave his residence. The defendant further stated that he had no knowledge of the recent <mask> on the next block. The detective then asked him what he was doing on the streets at such an early hour, and the defendant stated that he was just taking a walk. He told the detective that he was currently receiving public assistance while attending a trade school and volunteered the name and telephone number of this school. The following morning the detective contacted the trade school and, based on conversations with officials at the school, decided to question the defendant again.


In recognition that further persistence by the juror in talking out loud as to the guilt or innocence of the defendant could have disastrous and prejudicial consequences in terms of the right to a fair trial, it was agreed that, in addition to the *923usual admonitions not to converse with anyone on any subject relating to the case, the court would instruct the jurors not to talk to themselves, out loud, about the case. Although the instruction sounded at the time as ridiculous as it appears on paper now, in my view, it was necessary as an initial curative step to correct a problem which could possibly lead to a mistrial in a <mask> case expected to continue for over five weeks — one with graphic evidence by both sides as to whether the dismembered body parts were cut by a sharp instrument or by the dog, and one which both sides concededly do not wish to try twice.


Petitioner commenced this CPLR article 78 proceeding for judgment directing respondents to comply with certain requests made by petitioner pursuant to the Freedom of Information Law (Public Officers Law art 6 [FOIL]). Petitioner sought the production of documents relating to two criminal proceedings *243directly related to the death of Kathleen Martyn on January 6, 1997; a separate criminal charge of obstructing governmental administration lodged against the defendant in one of those proceedings, Malcolm James; and a fourth criminal event, one involving the husband of Kathleen Martin as the victim of a robbery. Petitioner requested the production of: all documents relating to the arrest of Carlos Cajigas and Michael Fernandez for the <mask> of Kathleen Martyn; all documents regarding the arrest of Malcolm James and charges of criminal possession of a weapon, the pistol used to shoot Mrs. Martyn in the left eye, and attempted robbery relating to an attempt to rob the Martyns at the end of December 1996 or the first part of January 1997; all documents relating to an appearance ticket issued to Malcolm James for obstructing governmental administration, which was returnable in Mount Vernon on January 16, 1997; and all documents relating to the investigation of an attempted robbery or robbery of James Martyn on or about August 11, 1996 (sic).


Dr. Levine testified that he examined photographs of the deceased for purposes of possible bite mark identification. At the time of the examination, Dr. Levine was acquainted with the defendant’s dental characteristics, since he had, in September of 1977, acquired and examined a cast of the defendant’s teeth in an investigation of a Schenectady County <mask>, and, on the basis of his examination, had concluded that the defendant, Lemuel Smith, had imposed the bite marks found on the victim, Marilee Wilson.3


Even if the crimes charged have different elements of proof they are triable separately. (CPL 40.20 [2].) However, when they arise out of the same transaction, they are joinable. (CPL 200.20 [2] [a]; also see People v Ruzas, 54 AD2d 1083 [1976].) For example, it is proper under the CPL to join the charge of criminally negligent <mask>, two charges of operating a motor vehicle while under the influence of alcohol and the charge of failing to drive on the right side of roadway, where all charges arose from the same automobile accident. (People v Butor, 75 Misc 2d 558 [1973]; also see People v Lopez, 59 AD2d 767 [1977].)


6. As of the date that the name of the defendant as the alleged perpetrator was given to the investigating detectives by a special agent of the Federal Bureau of Investigation, who had been given such information by a then somewhat questionable confidential informant, Michael Orlando, the <mask> squad ceased to consider any other person as a suspect in the murder of Archimedes Cervera, other than the defendant and his alleged unindicted coconspirators.


Sometime during January 21, a call was received by Patrolman B of the Fourth Squad Detectives from defendant’s mother seeking help for him. Defendant had, at this point, been taken to Brookhaven Memorial Hospital along with Patricia V after an automobile accident which occurred while they were en route to a motel. It should be noted that defendant had become B’s informant after B had arrested defendant on December 8,1980, as the result of a burglary complaint made by the girlfriend’s husband. After this earlier arrest, defendant had been advised by B to get a lawyer, but defendant insisted it was “all bullshit. * * * going to Family Court.” B, learning that <mask> was interested in Lucarano, called Me C and informed him that defendant wanted to talk to B about pressing charges against his girlfriend, because she had forced Valium on the defendant. It was ultimately agreed by Me C and B that they would go to the hospital to talk to defendant. Prior to leaving, Me C encountered Assistant District Attorney S, Chief of the Major Offense Bureau, who was at homicide on an unrelated matter. S, after learning from Me C or B that defendant had several prior pending charges, instructed Me C to inquire if defendant had an attorney, and that if defendant did not, it would be permissible to talk to him.


Had there only been one indictment and had count two, a non<mask> count, been part of it from the very beginning, that count would not be subject to dismissal pursuant to CPL 30.30 (1). Subdivision (3) (a) of that statute states that subdivisions (1) and (2) (which provide for dismissal of the indictment and release of the defendant from custody, respectively, where the People are not ready for trial within specified time periods) “do not apply to a criminal action wherein the defendant is accused of’ various homicides, including murder in the second degree. The question remains whether the rule is any different where a homicide indictment is superseded by a second homicide indictment which contains, in addition to the homicide count, a new nonhomicide count.


Convicted of manslaughter in the first degree in connection with the stabbing death of the victim, the defendant appealed, claiming that the trial court abused its discretion by precluding him from introducing evidence, in support of his self-defense claim, that the victim had searched a retail website for weapons in the days preceding the stabbing. The defendant and the victim had been involved in two fights the week before the stabbing, and, after each altercation, the victim threatened to kill the defendant. The stabbing at issue occurred a few days later, after the victim approached the defendant. The defendant filed a motion in limine, seeking to introduce into evidence a forensic analysis of data extracted from the victim’s cell phone showing that the phone had been used to conduct certain online searches for weapons between the first fight and the stabbing. The court denied the motion in limine, concluding that, because there was no evidence that the victim had purchased any of the items he searched for or that the defendant was aware of the victim’s search activity at the time of the stabbing, the search history was not relevant to prove the defendant’s state of mind with respect to whether his fear of the victim was subjectively and objectively reasonable under the provisions (§ 4-4 (a) (2) and (b)) of the Connecticut Code of Evidence permitting an accused in a <mask> case to introduce evidence of the victim’s violent character under certain circumstances. The court further concluded that the search history was not admissible to prove that the victim was the initial aggressor because the victim’s act of searching for weapons did not result in a criminal conviction. On the defendant’s appeal from the judgment of conviction, held that the trial court did not abuse its discretion in denying the defendant’s motion seeking to introduce evidence of the victim’s online searches for weapons: a defen- dant in a homicide case, after laying a proper foundation that he acted in self-defense, may introduce evidence of the victim’s violent character to prove that the victim was the aggressor, regardless of whether such character evidence had been communicated to the accused prior to the homicide, and such violent character can be proven by opinion or reputation testimony, or evidence of the victim’s conviction of violent crimes, but not by specific violent acts not resulting in a criminal convic- tion; in the present case, the defendant’s lack of awareness of the victim’s online searches rendered them irrelevant for purposes of establishing the defendant’s state of mind because they could not have impacted the defendant’s subjective belief that he needed to resort to deadly physical force, and the defendant did not claim that the searches them- selves constituted violent crimes; moreover, the defendant could not prevail on his claim that the search history was admissible as a prior act of misconduct under the relevant provision (§ 4-5 (c)) of the Connecticut Code of Evidence, because, even if the searches were evidence of prior misconduct admissible to prove the victim’s state of mind, § 4-5 (c) does not apply to evidence of the victim’s violent character in homicide cases, which is specifically covered by § 4-4 (b), and § 4-4 trumps the more general rules set forth in § 4-5 regarding the admissibility of specific act evidence. Argued April 29—officially released October 22, 2021*


I find that no promises or representations were made by either Assistant District Attorneys to Gramando regarding the ultimate disposition of the two <mask> cases pending against him in exchange for his trial testimony. When Monaghan stated at the trial that no promises of any kind were made (Record on Appeals, pp. 296-297, supra) such remarks were made by him in relation to prosecutions of pending indictments against Gramando for the killings of Spagna and Rubin.


See, e.g. , Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that a sentence of life without parole violates the Eighth Amendment when imposed on juveniles in non<mask> cases); Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (barring capital punishment for those under the age of eighteen at the time of their crimes). Roper and Graham established that "children are constitutionally different from adults for purposes of sentencing [b]ecause juveniles have diminished culpability and greater prospects for reform." Miller , 567 U.S. at 471, 132 S.Ct. 2455.


Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features -- among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him -- and from which he cannot usually extricate himself -- no matter how brutal or dysfunctional. It neglects the circumstances of the <mask> offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth -- for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the


With respect to the request to preserve materials held by various law enforcement agencies, the court granted the motion only as to records related to the Wynne, Watts and Livingston murders6 and denied the request as it pertained to the Brooks <mask>,7 the Parker homicide and the evidence listed in the notice of aggravation. The court limited the records sought from the California Department of Corrections and Rehabilitation (CDCR) and the Los Angeles County Probation Department to reports generated in connection with "this case," and denied the request as to the Los Angeles County Coroner-Medical Examiner and the San Bernardino County Coroner-Medical Examiner. The court also declined to order the Los Angeles Superior Court or the San Bernardino Superior Court to preserve judicial records.


On August 9, 1971, plaintiff was charged with five specifications of violations of the rules and procedures of the police department, charging that he did "knowingly and wrongfully”: (1) engage in outside employment during the time he was not on duty without written authorization of the police commissioner; (2) register a vehicle in New Jersey from an address at which he did not reside; (3) make false statements during an official <mask> investigation being conducted by the New York State police; (4) "cohabit with one, Nina Shapiro, a married female, not his wife” at a designated motel in Elmsford, New York, on September 21, 1970, while lawfully *682married to another woman; and (5) give evasive answers during an official department interview as to whether plaintiff had registered on September 21, 1970, at the specified motel in Elmsford, New York, under the name of Mr. and Mrs. L. Lewis, and at that motel and other motels using the name L. Lewis, on other occasions.


In any event, the court finds there was no evidence that the police deliberately delayed the commencement of formal judicial proceedings here to effectuate uncounselled interrogation. The passage of time owed to the ongoing investigation of this double <mask>, during which the police were, among other things, awaiting forensic confirmation that the gun they had recovered was the murder weapon, trying to establish the identity of the gun’s owner and interviewing several persons who had been arrested in the apartment in which the gun had been recovered, at least one of whom, in addition to defendant, they suspected may have been involved in the shootings. Under these circumstances, the delay of 32 hours from defendant’s arrest until his conversation with Detective Cuiffi was neither so extraordinary nor excessive as to render involuntary any of the statements taken from defendant in the interim.5 (See e.g., People v Curry, 287 AD2d at 253 [32-hour delay not excessive “given the extensive, rapidly expanding police investigation involving multiple shootings, defendants and witnesses”] [citations omitted]; People v Haywood, 280 AD2d 282, 282 [1st Dept 2001] [20-hour delay “not extraordinary”]; People v Barker, 168 AD2d at 212 [delay of 16 hours “was justified in light of the ongoing investigation”].) Of course, the length of time from the conclusion of defendant’s statement to Detective Cuiffi on June 16, *8352004 until his arraignment the next day had absolutely no bearing on the voluntariness of any of his statements. (See People v Vargas, 7 NY2d 555, 566 [1960]; People v Haywood, 280 AD2d at 282.)


Correction Law article 26, entitled "Temporary Release Programs for State Correctional Institutions”, defines the term "eligible inmate” as "a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years” (Correction Law § 851 [2]). However, the statute goes on to provide that if an inmate was convicted of one of the violent felony offenses enumerated in Penal Law § 70.02, "where such offense involved the use or threatened use of a deadly weapon or dangerous instrument”, the inmate is not eligible to participate in a work release program until that inmate is eligible for parole or will be eligible for parole within 18 months. The statute provides that inmates convicted of escape or absconding, or <mask> or certain sex offenses are ineligible for participation and also provides that inmates convicted of violent felonies cannot participate in temporary release programs without the written approval of the commissioner. Thus, when the Governor promulgated his Executive Order in January of this year, the Correction Law provided that inmates convicted of violent felonies, with the exception of those convicted of homicide or sex-related offenses, were eligible for participation in temporary release programs if they were within 18 months of their parole or conditional release eligibility date.


Mitchell testified that although he was aware that the items Beck had given him were stolen, he was unaware that the items had been taken from the *777scene of a <mask>. If he had known this, he would not have taken the items, or he would have tried to sell them to someone else. Mitchell admitted that he attempted to pawn some of the items that Beck had given him in exchange for drugs.


Charles H. Solomon, J. Defendant is charged with murder in the second degree (Penal Law § 125.25 [1]). He allegedly shot his father, Jose Cortijo, to death at his place of employment in Manhattan. The shooting occurred on December 12, 1977. Defendant was not a primary suspect in the <mask> until almost 18 years later, when he stated to a New York City probation officer during a presentence interview that he killed his father. This interview was being conducted after defendant was convicted of a narcotics-related felony in New York County Supreme Court. These statements, as well as two subsequent statements made *180to police detectives, are the subject of the instant motion to suppress. A hearing was held before me on defendant’s motion. At that hearing, the People called Probation Officer Urania Vullo and Detectives Frank Colaianni and Dan Danaher. Defendant did not present any witnesses at the hearing. In an oral ruling delivered from the Bench, defendant’s motion was denied in its entirety.


“[T]he carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong (see, People v Haney, 30 NY2d 328, 333, 335; see also, People v Ricardo B., 73 NY2d 228, 235-236; People v Montanez, 41 NY2d 53). What, we believe, is abundantly clear from our decisions and from the governing statutory language is that criminally negligent <mask> requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been ‘substantial and unjustifiable’, and the failure to perceive that risk must have been a ‘gross deviation’ from reasonable care” (People v Boutin, 75 NY2d 692, 696 [1990]). The mere “ ‘nonperception’ of a risk, even if death results, is not enough” (id. at 696; see also People v Cabrera, 10 NY3d 370 [2008]; People v Conway, 6 NY3d 869 [2006]).


The autopsy report in this case was not manufactured for the benefit of the prosecution. Indeed, an autopsy is often conducted before a suspect is identified or even before a <mask> is suspected. That it may be presented as evidence in a homicide trial does not mean that it was composed for that accusatory purpose or that its use by a prosecutor is the inevitable consequence of its composition. “The mandate to OCME is clear, to provide an impartial determination of the cause of death.” (People v Washington at 193.)


On October 4, 1984, the jury returned a verdict finding the defendant, Donna Bell, guilty of felony murder and burglary in the first degree in connection with the death of her mother, Palmina Bell. The following day, her attorney received a letter from Stephen Gagne, the boyfriend with whom Donna Bell was living at the time of her mother’s murder. Stephen Gagne had *44been tried and convicted of two counts of murder in the second degree (intentional and felony murder) as well as burglary in the first degree in connection with Palmina Bell’s <mask> and was serving a sentence of 25 years to life for those crimes. In his letter, which was dated September 28,1984, he indicated, for the first time, that he would testify on Donna Bell’s behalf and try to refute the testimony which his brother, Louis Gagne, was going to give as a prosecution witness.1


In the concluded case, after hearing the evidence presented, the jury, as the trier of fact, acquitted defendant of all three <mask> charges. The common element shared by these crimes is that the defendant’s act caused the death of Johnny Turner (see, Penal Law § 125.25 [1], [2]; § 125.15 [1]). Having scrutinized these crimes in this respect, the court notes that the charge of murder in the second degree (Penal Law § 125.25 [2]), that is, reckless murder, is almost identical to the charge now being sought to be retried, reckless endangerment in the first degree (Penal Law § 120.25). This except for a sole distinguishing factor: the former crime contains the element of defendant’s act bearing on the outcome, that is, as "the cause of death”. In the latter crime, the fact of death is not an intrinsic element for consideration; rather, the issue is whether Mr. Redd engaged in "reckless endangerment * * * under circumstances evincing] a depraved indifference to human life.” The statutory provisions defining these offenses have been designed by our Legislature to prohibit very different kinds of criminal conduct (see generally, CPL 40.10 et seq.). The question to be presented centers not at all on the outcome of any conduct by Mr. Redd, but on the element of risk produced by such conduct. It cannot be said that this has been adjudicated with finality.


The DOC’s procedures for placing inmates in close custody were initially implemented by a directive issued in 2005, as amended by DOC Directive 6006R-D (available at http://prtlprd-web.nyc.gov/html/doc/downloads/pdf/6006R-D.pdf, cached at http://www.nycourts.gov/reporter/webdocs/6006R-D.pdf), effective May 28, 2009 (answer, exhibit A). According to respondent, close custody housing is “designed to protect vulnerable inmates (and in a smaller number of cases, to separate certain predatory inmates) who can not safely be held in General Population, or in another less restrictive housing unit than Close Custody.” (Id. 1f 37.) Close custody is the DOC’s “most restrictive security status,” and is comprised of two categories of inmates. (Aff of Frank Squillante [DOC Assistant Chief for Special Operations] If 2.) The first is close custody/protective custody (CC/PC), in which most inmates are placed at their own request, or occasionally involuntarily, because their safety would be at risk if they were to be placed in the general population. (Id. 1Í 4.) These inmates include prisoners who were charged with a violent sex or hate crime, child abuse, or child <mask>; inmates, including gay and transgendered inmates, who are themselves victims of attacks from other inmates; cooperating witnesses; and inmates placed in protective custody because of their identity, e.g., their status as celebrities or in law enforcement. (See id. 1f 5.) The second category of inmates, termed non-protective custody/close custody housing (non-PC/CCH), includes inmates who pose a serious threat to security — for example, inmates who committed violent acts while previously incarcerated, are known gang members, or are known to have a propensity for violence. (Id. If 6.)


People v. McGrath (202 N. Y. 445) is in point. In that case the defendant was tried under an indictment charging him with murder in the first degree and was convicted of murder in the *707second degree. It was held that the granting of defendant’s motion to set the verdict aside did not preclude a new trial for the charge of murder in the first degree. In so holding, the court, per Willard Bartlett, J., said (pp. 45(U451): “ Another suggestion is made, however, which it is necessary to notice. This is that upon an indictment for murder in the first degree, a conviction of murder in the second degree operates as an acquittal of murder in the first degree and the accused cannot again he put upon trial for the higher grade of <mask>, when the original judgment is reversed or the verdict otherwise set aside at his instance. * * * That such is not now the rule in this state was declared by this court to be the effect of sections 464 and 544 of the Code of Criminal Procedure in People v. Palmer (109 N. Y. 413) * * * *. In the Palmer case it was distinctly decided that, under the sections cited, where a defendant has been convicted of a lower degree of the crime charged in the indictment and upon his own application a new trial is ordered, the case stands as if there had been no trial at all and the defendant must be tried under the indictment as it is and not simply for the grade of crime of which he was previously convicted.”


All the courts which have addressed this issue have ruled that the lack of the element of intent does not violate due process of law (People v Root, 524d 195, 196-197, cert den 423 US 1076; Commonwealth v Redline, 391 Pa 486,491-493, supra; Brown v State,_Ind_,_, 448 NE2d 10,15; People v Dillon, 34 Cal 3d 441, supra). The rationale was aptly stated in People v Root (supra), where the court said: “Nothing in the United States Constitution deprives legislatures of the power to impose upon those who kill their victims in the course of inherently dangerous felonies the same sanctions they choose for those who kill their victims after meditation sufficient to satisfy the jurisdiction’s definition of first-degree murder” (p 197). It is for the Legislature and not for the courts to determine the proper elements of felony murder. Similar thoughts were ex*847pressed by the California Supreme Court in People v Burton (6 Cal 3d 375, 388) where the court said: “This court has reiterated numerous times that ‘The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.’ (People v. Washington (1965) 62 Cal. 2d 777, 781 [44 Cal. Rptr. 442, 402 P. 2d 130].) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any <mask> committed in the course thereof.” The court therefore finds that the lack of the element of intent in felony murder does not violate due process of law or equal protection.


As previously stated, the mother had unrestricted access to her son after the questioning at the Housing Precinct. Her testimony that she did not discuss the interrogation with her son afterward is extraordinary in the circumstances. This would probably be so in any circumstance. Here, however, there was the additional factor that she already knew, from this very officer, that her son was a suspect in the Gales <mask>. Either it means that she is absolutely incredible, or it means that she had absolute confidence in her son’s ability to take care of himself vis-a-vis the police. Certainly, it cannot mean that she is neglectful or uncaring. She did, after all, go to the Housing Precinct, and testified here in his behalf.


In overturning a death sentence for Enmund, the United States Supreme Court "found a broad consensus against imposing death in cases 'where the defendant did not commit the <mask>, was not present when the killing took place, and did not participate in a plot or scheme to murder.' [Citation.] Accordingly, it held the Eighth Amendment bars the death penalty for any felony-murder aider and abettor 'who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.' [Citation.] The intent to commit an armed robbery is insufficient; absent the further 'intention of participating in or facilitating a murder' [citation], a defendant who acts as 'the person in the car by the side of the road at the time of the killings, waiting to help the robbers escape' [citation], cannot constitutionally be sentenced to death." ( Banks, supra , 61 Cal.4th at p. 799, 189 Cal.Rptr.3d 208, 351 P.3d 330.)


It is certain that the mother chose not to go to the 84th Precinct. This takes on additional significance when considered in the light of her prior knowledge of the police wanting to talk to her son about the <mask>, and the fair and reasonable inference that she talked with her son when she was with him at the Housing Precinct after the interrogation.


The defendant is charged by a one-count indictment with having committed the crime of criminally negligent <mask> (Penal Law § 125.10). The charges arise out of an incident alleged to have occurred on November 15, 2008 in the Town of Keene, Essex County, in which it is claimed the defendant shot and killed a member of his deer hunting party.


It is noted that the will contains an in terrorem clause which became significant early in the probate proceeding after KB filed a barrage of pro se motions contending that her mother not only had been incompetent at the time the will was executed, but also, had been murdered by Elinor and Anne (during her extended visit with Anne and her family in Seattle) in complicity with the New York attorney who had drafted the *151will. After KB pressed the Seattle authorities to investigate her charges concerning Mrs. B.’s death, the coroner there examined decedent’s remains and concluded that she had died of natural causes. But the coroner’s findings failed to deter KB from continuing to allege, in court papers and other declarations, that decedent had been the victim of foul play and that a <mask> investigation was ongoing in Seattle. KB also continued to level charges that the will was a sham and that her sisters and an ever-widening group of other alleged wrongdoers (ultimately including all levels of court personnel) had conspired either to harm Mrs. B. in various ways during her lifetime or to steal from her estate thereafter.


After Graham came Miller, supra, 567 U.S. ----, 132 S.Ct. 2455, in which the high court prohibited sentencing a juvenile <mask> offender to mandatory LWOP and required the sentencing court to consider the mitigating qualities of youth, including: (1) age and its hallmark features such as immaturity, impetuosity, and failure to appreciate risk and consequences; (2) family and home environment; and (3) circumstances of the homicide offense, including the extent of participation and familial or peer pressure. (Id. at pp. 2467-2468, 2475.)


The United States Supreme Court required individual sentencing consideration in Miller precisely because the Miller defendants had been mandatorily sentenced to LWOP and for no other reason. The vice of the LWOP sentencing schemes in Miller was that the sentencer was prevented from taking into account individual sentencing considerations, including the attributes of youth, to impose a proportionate sentence because the only alternative was to sentence defendants to LWOP, the harshest sentence available for juveniles. "By removing youth from the balance-by subjecting a juvenile to the same life-without-parole sentence applicable to an adult-these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham 's ... foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children." (Miller, supra, 132 S.Ct. at p. 2466.) While the high court in Graham categorically banned LWOP sentences for juveniles who committed non<mask> offenses, the court in Miller recognized that in homicide cases an LWOP sentence could constitutionally be imposed when sentencing "the rare juvenile offender whose crime reflects irreparable corruption." (Miller, at p. 2469, italics added.) But the Miller court required sentencers "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Id. at p. 2469, italics added.) As *1505a result of S.B. 260, juvenile offenders are no longer treated as if they are not children, and they are no *729longer "irrevocably" sentenced to a lifetime in prison. Indeed, defendants here will have a realistic opportunity for parole after 25 years whereas an adult would likely not live long enough to see the adult minimum parole eligibility date.


Similarly, criminal negligence could alternatively be found by a jury under these facts in finding that, although unaware of the risk, he failed to perceive the substantial or unjustifiable risk, which was a gross deviation from the standard of care that a reasonable person would have observed (Penal Law, § 15.05, subd 4; criminally negligent <mask>, Penal Law, § 125.10).


In pursuing the particular line of questioning before the grand jury, the Assistant District Attorney presenting this case was seeking information as to the whereabouts of a certain laptop computer, which she believes can provide critical evidence for the grand jury. This laptop computer had direct access to a video security and surveillance system, an Ademco Rapid Eye digital video system, that had been installed in the residence of the <mask> victim. In support of her application, the Assistant District Attorney has set forth evidence which establishes that during the time period in which it is believed that the homicide took place, the laptop computer in question did, in fact, access the video security system. Thus the evidence suggests that this laptop computer could have assisted the perpetrator in the commission of the homicide by turning off the security system at that critical period of time and allowing the perpetrator unfettered access to the residence. The District Attorney contends that this laptop computer is to be considered an instrumentality of the crime. At the very least, the District Attorney asserts that the laptop computer provides evidence, including possible video images of the inside of the victim’s residence, which is critical to the grand jury in their investigation of the murder.1


The defendant, Dominic Carbonaro, had been arrested seven or eight times. He was convicted at least twice. Although he dropped out of school after completing the ninth grade Carbonaro was not inexperienced in the methods of police investigation and interrogation. Carbonaro testified that he knew he would be apprehended. He also knew that the jacket which was left at the scene of the <mask> would be traced to him. In addition the defendant knew that he was supposed to appear in Criminal Court in New York City on April 9, 1962 to answer a charge of grand larceny.


Thereafter, defendant was indicted under No. 5469-92 and charged with two counts of second degree murder (intentional and depraved indifference), criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. After a jury trial, defendant was acquitted of the two counts of second degree murder and found guilty of the lesser included count of criminally negligent <mask>, as well as criminal possession of a weapon.


“This is to inform you that you are being placed in the following restrictive housing status: . . . Protective Custody 23 hour lock-in as per Board of Correction variance . . . “Reasons for placement and the evidence relied upon to make this decision: Because you were *326indicted for Manslaughter in the Second Degree in the <mask> of Tyree Abney at the George Motchan Detention Center on October 3, 2004, and because of the known gang affiliation of alleged participants in that homicide, the Department of Correction has determined that, in order to protect your safety and the safety and security of other inmates, staff and others in the facility you must be housed in 23-hour lockdown status, with individual recreation.” The notice advised petitioner that, if he disagreed with the placement, he was entitled to a hearing before an impartial hearing officer from the adjudication unit within 24 to 48 hours after he received the notice. The notice said that at the hearing petitioner had the opportunity to personally appear, the right to be informed of the evidence resulting in the placement, the right to review documentary evidence relied upon by the Department, the opportunity to make a statement, and the right to call both inmate and staff witnesses and present documentary evidence subject to the hearing officer’s discretion to keep the hearing within reasonable limits. At the hearing the petitioner was represented by Mr. Lugo and also present were the hearing officer who was a captain in the Legal Division of DOC, and DOC counsel.


The defendant also moves to dismiss the criminally negligent <mask> indictment (No. 2132/95) on the grounds that the filing of a "corrected” indictment was an improper attempt to circumvent the People’s lack of statutory authority to amend the indictment. The defendant further argues that this indictment represents an improper extension of the Grand Jury. The People contend that the procedure adopted by the prosecution to obtain a "corrected” indictment was proper and based on established legal authority.


. Defendants contended that the indictment, drawn in common-law form, was fatally defective for its failure to charge the murder in the language of the statute (Rev. Stat., part 4, tit. 1, eh. 1, § 5,1st ed., vol. 2, pp. 656, 657) which, so far as here pertinent, defined a criminal <mask> as murder “ When perpetrated from a premeditated design to effect the death” etc. (subd. 1) and “When perpetrated without any design to effect death, by a person engaged in the commission of any felony” (subd. 3). The absence of “premeditated design” was also *501embodied in the definition of murder by an act imminently dangerous, etc. (subd. 2).


Hartung is completely inapposite. There, the statute in effect at the time of the commission of the <mask> by the defendant provided for the punishment of death on conviction. That statute was repealed and in place thereof the new statute provided that ‘ When any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall, at the same time, be sentenced to confinement at hard labor in the state prison until such punishment of death shall be inflicted ”. (22 N. Y. 95, 97.) It further provided that “ No person so sentenced or imprisoned shall be executed in pursuance of such sentence, within one year from the day on which such sentence of death shall be passed ”. (22 N. Y. 95, 97.) The only point actually decided in the Hartung cases was that the revised statutes so far as they attempted to subject the defendant to both the punishment of death and previous imprisonment at hard labor was ex post facto and void (see Mongeon v. People, 55 N. Y. 613, 616 and the like evaluation of Hartung in Malloy v. South Carolina, 237 U. S. 180, 185, and in State ex rel. Pierre v. Jones, 200 La. 808, 817). There an additional punishment was added to the punishment in existence at the time Hartung committed the crime. That additional punishment was imprisonment at hard labor for a year before the possible imposition of the death penalty. Under the circumstances, it is clear that the attempt by statute to impose additional punishment over and above that prescribed by the law in existence at the time of the commission of the crime m'ade it an ex post facto enactment. That is not the situation here.


On January 29, 1981, at about 11:45 p.m., the 16-year-old defendant, Robert Jandelli, killed his 26-year-old sister, Carol Jandelli, by striking her about the head with a hammer and then slitting her throat with a knife. The defendant had no prior history of mental or emotional illness and there was no evidence of any particular animosity between him and the victim. He was discovered by the police on the morning following the <mask>, wandering around a subway station with his wrists slit. When he told the police he had killed his sister, they investigated the house in which he resided with his parents and the victim and found her body. The defendant was arrested and after receiving medical treatment for his wounds, he was interviewed by an Assistant District Attorney. In this interview, which was tape recorded, the defendant gave a lucid and detailed account of the killing.


The analysis in Rose , supra , 478 U.S. 570, 106 S.Ct. 3101, a case cited with approval in Aranda , is instructive. The issue in Rose was "whether the harmless-error standard of Chapman v. California 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, applies to jury instructions that violate the principles of Sandstrom v. Montana [ (1979) ] 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] [ ( Sandstrom ) ], and Francis v. Franklin [ (1985) ] 471 U.S. 307 [105 S.Ct. 1965, 85 L.Ed.2d 344]." ( Id . at p. 572, 106 S.Ct. 3101, fn.omitted.) The Sandstrom court held that an instruction in a <mask> prosecution that " 'the law presumes that a person intends the ordinary consequences of his voluntary acts,' violates the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt." ( Sandstrom , supra , at p. 512, 99 S.Ct. 2450.) The Rose court held Sandstrom error is trial error amenable to harmless error analysis under Chapman . ( Rose , supra , at p. 582, 106 S.Ct. 3101.)


This court finds, however, that Shuman’s confession is not admissible and was the fruit of the incriminating confession of Pounds, since it led to Shuman’s confession, confessing his participation in the <mask>. For the fruit of the poison tree doctrine to be operative, a causal chain must be shown to exist from the primary illegality to the procurement of and the effect upon the substance of the evidence sought to be implied. Any causal chain that could have existed between Pounds and Shuman might have been broken by Shuman’s own acts, but we cannot find any real point of departure in the evidence to demonstrate that this was so.


The defense in this case is directed to show you that the defendant did not have that capacity, and that he did not know, when he struck the blow, that he was committing wrong. If the proof of that fact is satisfactory to your minds, you must acquit him. The law does not require any sacrifice of a man who does not *218act intelligently in the commission of the act for which he is tried. In applying this rule you will look at the facts of the case ; first in regard to the evidence to show unsoundness of mind. You will first consider what facts there are affecting the issue which are clear and undisputable. You find here the prisoner, a young man of about twenty years years of age. You find he was married about two years ago, and had one child. You find him married to a woman of dissolute life and vile character. You find that in infancy he was afflicted with fits and convulsions, that he had numerous fits of that character in his younger years. I think that you should assume that there was a taint of insanity in his family, though not in the direct line. The father had no symptoms of insanity, but his uncle and collateral relations of his father had the taint of insanity. This fact you are entitled to consider upon the question you are to decide. You find that this man, during the week previous to the <mask>, had controversy with his wife. You find that they were reconciled on the Saturday before the homicide, so far that they went together to the house about eleven o’clock at night— so far you have facts which you may assume as undoubted.


The killing of the third Mississippi victim was slightly different but nevertheless also admissible under Ingram (71 NY2d 474, supra), although solely on the issue of the defendant’s shared intent to kill. The proof that the People proffer regarding this third subsequent <mask> lacks any real probative indication of the defendant’s intent to rob. The available evidence suggests that this killing was planned solely out of motivation to eliminate a potential witness, the larceny being an afterthought. The recurrence of a homicide, however, in the victim’s residence, by firearm, with the defendant and Goodman present after a consensual entry, within 20 days of the events which are the subject of the present indictment, is potent evidence which tends to negate inadvertence, defensive purpose, or innocent intent.


In our case, the thrust of the Grand Jury presentation was the <mask> charges, not the drug possession. The misdemeanor charge was presented to the Grand Jury because the cocaine was found on defendant’s person when he was arrested. Were the issue not raised in conjunction with the homicide presentation, the drug charge could have been pursued by the District Attorney, if he deemed it advisable, in the Criminal Court, a far more appropriate forum.


4. For example, under this statutory language, an adult court could accept a plea to reckless <mask>, R.C. 2903.041, on a transferred felony-murder charge, R.C. 2903.02(B). Reckless homicide is not a lesser included offense of felony murder, State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 1, and thus, it is an offense different from felony murder.


In 1999, a Crawford County Circuit Court jury found Ray guilty of theft of property and capital murder after he and an accomplice broke into Lisa Lewis's home, shot her multiple times, and then fled the scene in her car. See Ray v. State , 344 Ark. 136, 40 S.W.3d 243 (2001). Ray *64was sixteen years old when the crimes were committed, and he received consecutive sentences of life imprisonment without parole for capital murder2 and twenty years for theft of property.3 In 2012, the Supreme Court of the United States held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Court further held that defendants who committed <mask> crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit a judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence. Id. at 489, 132 S.Ct. 2455.


“[T]he carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong (see, People v Haney, 30 NY2d 328, 333, 335; see also, People v Ricardo B., 73 NY2d 228, 235-236; People v Montanez, 41 NY2d 53). What, we believe, is abundantly clear from our decisions and from the governing statutory language is that criminally negligent <mask> requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been ‘substantial and unjustifiable’, and the failure to perceive that risk must have been a ‘gross deviation’ from reasonable care” (People v Boutin, 75 NY2d 692, 696 [1990]). The mere “ ‘nonperception’ of a risk, even if death results, is not enough” (id. at 696; see also People v Cabrera, 10 NY3d 370 [2008]; People v Conway, 6 NY3d 869 [2006]).


“I respectfully submit that the People have failed to prove a prima facie case of Depraved Indifference Murder. Not only have they failed to prove a prima facie case that my client Bryan Hawkins was the perpetrator of the <mask> . . . but they failed to prove that Mr. Hawkins acted with Depraved Indifference Murder in that matter.” (Id. at 489.) The Court of Appeals held that the motion


[m]andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional. It neglects the circumstances of the <mask> offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. Id. at 477-78, 132 S.Ct. 2455 (internal citations omitted). Accordingly, the Court held that defendants who committed homicide crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit the judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence. Id. at 489, 132 S.Ct. 2455. Because the mandatory life-without-parole sentencing schemes in Alabama and Arkansas violated the Eighth Amendment's ban on cruel and unusual punishment, the Court reversed the judgments of this court and the Alabama Court of Criminal Appeals and remanded *67the cases for further proceedings. Id.


After Patricia failed to return missed phone calls and text messages for the rest of the day, Barbara and Phyllis went to check on Patricia at her house. Around 5:30 p.m., Barbara found Patricia-she had been shot to death on the porch of her home. Deputy Chief Medical Examiner Stephen Erickson testified that Patricia had died of multiple gunshot wounds and that the manner of death was <mask>. Specifically, Dr. Erickson testified that an examination of Patricia's body revealed five gunshot wounds. One wound was located on the right chest, just below the clavicle. Erickson stated that this wound struck both lung lobes and would have been fatal in and of itself. A second wound was discovered on the right breast. This wound also went through both lung lobes and would have been fatal in and of itself. A third wound was discovered in the fold of Patricia's armpit. Erickson stated that this wound struck the lungs, "devastated the heart," and would have been "rapidly fatal." He stated that the three wounds"produce[d] an almost immediate loss of blood pressure throughout the body." Patricia would have collapsed in about fifteen to twenty seconds. Two other wounds were found-one on the upper back and one on the right forearm. Erickson testified that neither wound would have been independently fatal. He further testified that stippling4 on Patricia's lips, chin, and nose indicated that at least one of the shots was fired from as close as three feet.


The majority of States confronted with this issue have done no more than to recognize the common-law rules as codified or modified by their own State’s statutes. At common law it was clear that an unborn fetus, viable or otherwise, could not be the subject of <mask>. (3 Coke, Institutes, at 58 [1648]; 40 CJS, Homicide, § 2 [b], at 824; Annotation, Homicide Based on Killing of Unborn Child, 40 ALR3d 444.) It appears that the New York State Legislature in the 1965 revisions of the Penal Law adopted the common-law rule by defining "person” as "a human being who has been born and is alive”. (Penal Law § 125.05 [1].) Despite the following 22 years of development in science and medical technology there has been no revision of the definition.


The court notes that in a <mask> case it is customary to obtain a video statement through a “riding” Assistant District Attorney promptly following an admission by an accused at any time of the day or night, but in this case no attempt was made to videotape the defendant’s statement until the following day. Detective McGurran testified that it was not until after 1:00 p.m. on November 3 that he even suggested to the defendant that a videotape statement be made, after the defendant had already been in custody for 27 hours. Two videotaped statements were taken from the defendant between 4:00 and 5:00 p.m. and were concluded at approximately 5:00 p.m.; however, defendant was retained at the precinct for an additional 15V2 hours until Sergeant Mullins resumed questioning at approximately 8:30 a.m. on November 4. Between 8:30 a.m. and 2:25 p.m. on November 4, with the results of the ballistics testing in hand, Sergeant Mullins was successful in obtaining additional statements from the defendant. The defendant was not removed to central booking in preparation for his arraignment in criminal court until approximately 2:25 p.m. It has not been established exactly what time he was actually arraigned, but it is agreed that he was not arraigned until some time after 5:30 p.m. on November 4 and possibly as late as 1:00 a.m. on November 5. The People contend that this *384extraordinary period of delay was necessitated by the need for additional “investigation.”


The second count essentially accuses the defendant of attempted felony murder. A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, § 110.00.) One cannot attempt felony murder. (People v Miller, 32 NY2d 157; People v Hassin, 48 AD2d 705.) Felony murder is an unintentional <mask> in which the element of evil intent is transferred from the underlying felony to the killing thus justifying punishment for murder. (People v Nichols, 230 NY 221, 226-227; People v Enoch, 13 Wend 159, 174.) Since one who intended to commit "felony murder” would actually commit an intentional homicide, one cannot attempt felony murder.


Defendant correctly urges that the statute must be strictly construed and suggests that claimant is unable to meet the statutory standard of proving at trial by clear and convincing evidence that he did not commit any of the acts charged in the accusatory instrument. But, the claimant examines the entirety of that statutory provision, correctly parsing the grammar of Court of Claims Act § 8-b (5) (c): “he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state” (emphasis supplied). Strict statutory construction in this instance inures to claimant’s benefit. The conjunctive “or” leads to an examination of those acts charged in the indictment. First, the reversal by the Appellate Division of criminally negligent <mask> inherently finds that claimant’s acts on the afternoon of June 19, 2001 did not constitute a felony or misdemeanor. Second, all of the other offenses in the accusatory instrument, including those for which he was found guilty: operation of a motor vehicle at imprudent speed (Vehicle and Traffic Law § 1180 [a]), failure to stop at a stop sign (Vehicle and Traffic Law § 1172 [a]), and failure to keep right (Vehicle and Traffic Law § 1120 [a]) are infractions (Vehicle and Traffic Law § 1101) and do not constitute a felony or misdemeanor. Paris v State of New York (Ct Cl, filed Jan. 9, 1992, Blinder, J., Claim No. 77395, Motion Nos. M-41260, CM-42580, affd 202 AD2d 482 [1994] [exhibit G to defendant’s motion papers]) is not to the contrary. In Paris, while the conviction for criminally negligent homicide was reversed, the remaining conviction as charged in that indictment was for operating a motor vehicle while his license was suspended, the equivalent today of aggravated unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 511), which currently is either a misdemeanor or a felony.2 While Paris may have a similar procedural posture to the claim at bar, there is a substantive *400distinction between a traffic infraction as contrasted with a misdemeanor or felony, an issue that was not visited by the Paris trial court or the Appellate Division.


The court’s conclusion regarding the futility of the proposed crime scene replication is strengthened by Dr. Fraser’s affidavit where he admits that he could not “conduct a reconstruction,” “[d]ue to several factors, e.g. cloud cover and ground snow.” And although Dr. Fraser states that he would “conduct his reconstruction on a Friday night in order to account for the lighting given off from people’s houses,” on the theory that “more houselights tend to be lit, and tend to stay lit later into the night and on the weekend,” these efforts would amount to speculative guesswork and would never provide an accurate recreation inasmuch as no questions were ever asked of any of the witnesses about the lights emanating from nearby homes, apartments or cars. Indeed, defendant concedes this point when he writes that “Dr. Fraser cannot feasibly reconstruct conditions identical to those existing on the night of Mr. Stone’s <mask>.” Thus, because it is impossible to replicate a crime scene that, at this point, can most aptly be described as a blank slate, the court exercises its discretion to preclude Dr. Fraser’s testimony, as his opinion holds no probative value and is therefore wholly unsuitable as corroborating evidence (but cf. People v Bronson, 32 Misc 3d 201, 216 [Crim Ct, Queens County 2011] [finding the recanting witness’s testimony to be “inherently) believab(le)” inasmuch as it acquired an additional “aura of believability” given the corroborating testimony from the recanting witness's brother (emphasis added)]).


The first period consists of the two calls made to the telephone switchboard operator at the Central Park Precinct in October, 1979.1 find, and defense counsel concedes, that defendant’s right to counsel had not as yet attached. The calls were made by an anonymous caller who merely claimed to have some information regarding the Murphy <mask>. Accordingly defendant’s statements made during these calls are admissible.


appeal. (See People v. Valdez (2004) 32 Cal.4th 73, 108.) Nor is there any suggestion such an offer would have been futile. Indeed, the court solicited additional information to assist its evaluation. Newborn offered none below and does not do so here. The court reasonably exercised its discretion (People v. Quartermain (1997) 16 Cal.4th 600, 623) to limit cross- examination on a witness’s unrelated prior offense, particularly when presented with no additional offer of proof or further argument. Newborn next claims he was unable to explore whether DeSean tried to gain favor with law enforcement by falsely attributing a double <mask> to Danny Cooks and Ernest Holly.32 Newborn tried to show that DeSean identified Cooks and Holly because he was dating Holly’s ex-girlfriend. Yet the record demonstrates Newborn was able to elicit precisely the testimony he sought. After a relevance objection, Newborn rephrased his question and DeSean testified that he had been dating Holly’s ex-girlfriend around the time he implicated Cooks and Holly in the homicides. Newborn complains he was prevented from seeking further details but identifies no ruling that so limited him. More importantly, he fails to explain how additional information about the relationship would have been probative. The essential facts establishing DeSean’s asserted motive to falsely accuse someone else of murder were before the jury. Newborn’s third allegation of deficient cross-examination concerns DeSean’s testimony about another shooting. In


In support of his claim, defendant relies on Miller v Alabama (567 US —, 132 S Ct 2455 [2012] [unconstitutional to impose life imprisonment without parole on a defendant under the age of 18]), Graham v Florida (560 US 48 [2010] [unconstitutional to impose life imprisonment on a juvenile offender convicted of a non-<mask> offense]), and Roper v Simmons (543 US 551 [2005] [unconstitutional to impose death on a defendant under the age of 18]). Such reliance is entirely misplaced. Although both Miller and Graham held it was unconstitutional to impose life without parole on a person under the age of 18, the defendant received no such sentence. In fact, he is parole eligible. No doubt he is unhappy over the prospect that the aggregate mandatory minimum periods of imprisonment may preclude him from ever being paroled, he nevertheless remains eligible for it. As for his reliance on Roper, defendant was obviously never exposed to the imposition of a death sentence.


The reasoning of Mr. Justice Fortas, speaking for a majority of the court, in Matter of Gault (387 U. S. 1 [1967]) applies to the factual situation with which we are now confronted. First, Mr. Justice Fortas described the commitment of a boy to a State institution (p. 27): “ A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence— and of limited practical meaning — that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a ‘ receiving home ’ or an 1 industrial school ’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes ‘ a building with whitewashed walls, regimented routine and institutional hours ’. Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees and 1 delinquents ’ confined with him for anything from waywardness to rape and <mask>.”