Accepting the court's credibility determinations and factual findings, and in light of the circumstances surrounding the misconduct and the record as a whole, we conclude there is no substantial likelihood *417that Juror No. 5 was actually biased against defendant. Juror No. 5's exposure to the out-of-court information occurred because her chiropractor had loaned her The Gift of Fear, a book her chiropractor had enthusiastically touted as something that "all women should read." That Juror No. 5 did not herself seek out information on <mask> belies any substantial probability of actual bias. We observe furthermore that Juror No. 5's exposure to the out-of-court information was brief and unremarkable, which further dispels any inference of bias. According to the juror, the 17 pages she read before putting down the book conveyed information that she already knew. Finally, there is nothing in the record suggesting that Juror No. 5 interjected any of the book's contents, or its references to the prosecutor, into her deliberations with follow jurors, which also tends to negate the inference of bias. Notably, Juror No. 5 expressly **552denied having done so. (See In re Carpenter, supra, 9 Cal.4th at p. 657, 38 Cal.Rptr.2d 665, 889 P.2d 985 [that the juror had not revealed the forbidden out-of-court information *100to any other juror tends to negate the inference that the juror was biased because one would expect a biased juror to tell the other jurors what she had learned].)


“(a) (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to the actual infliction of physical injury or assault.” (Italics added.) Family Code section 6320, subdivision (a), referenced in subdivision (a)(4) of Family Code section 6211, lists the following behaviors as subject to being enjoined: “molesting, attacking, striking, <mask>, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.” (Italics added.) “ ‘[T]he plain meaning of the phrase “disturbing the peace of the other party” in [Family Code] section 6320’ ” includes “ ‘conduct that destroys the mental or emotional calm of the other party.’ ” (People v. Sorden (2021) 65 Cal.App.5th 582, 601 (Sorden), some italics added, quoting In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni).) As the Nadkarni court reasoned: “The ordinary meaning of ‘disturb’ is ‘[t]o agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, a country, etc.); to stir up, trouble, disquiet.’ [Citation.] ‘Peace,’ as a condition of the individual, is ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquility.’ [Citation.] Thus, the plain meaning of the phrase ‘disturbing the peace of the other party’ in [Family Code] section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” (Nadkarni, at p. 1497, italics added.)


The defendant was charged with criminal contempt in the second degree, in violation of Penal Law § 215.50 (3), and <mask> in the fourth degree, in violation of Penal Law § 120.45 (2). It was alleged that on November 4, 2010 the defendant violated paragraph “14” of a “no contact” order of protection issued on July 15, 2008 by Judicial Hearing Officer Sidney T. Farber of Monroe County Family Court.1 In particular the order of protection directed that the defendant have no contact with a Maureen Perry, the mother of his two children, “including personal or through third person.” The criminal complaints specifically alleged that the defendant violated the statutes in question on November 4, 2010 by gaining “access to Maureen’s ‘Friend List’ on ‘Facebook’ and began to contact and communicate to these friends and family members accusing Maureen L. Perry of using their children against their father to prevent the respondent *869from seeing or communicating with their two children.”2 The supporting deposition signed by the complainant states, “Carl gained access to my ‘friends list’ on facebook and began to send out letters accusing me of using our children against Carl and preventing Carl from contacting or visiting with them.” The defense has filed a motion to dismiss the charges herein as being facially insufficient pursuant to CPL 170.30 (1) (a).


In the RVR, female Correctional Officer M.M. reported: "On Friday January 31, 2014 at approximately 0713 hours while performing my duties as housing unit 15 control officer, I released all the inmates from the unit for breakfast. I observed [appellant] remaining in the unit standing at the urinal behind the podium continuously staring at me. I gave [appellant] an order to exit the unit and he complied. As he entered the sally port he completely stopped directly beneath me looking up at *348my crotch through the control booth window. He proceeded to breakfast. [¶] At approximately 0755 hours while releasing morning medication I opened cells 201 through 209. [Appellant] exited cell 204 completely naked. Utilizing his right hand holding his erect penis stroking it back and forth while directly looking at me. I contacted Officer Strong to respond to the area. Officer Strong observed [appellant] masturbating and gave him a direct order to stop and step inside his assigned cell and I closed the cell door. I notified Sergeant Wall of the incident and yard staff cuffed and escorted [appellant] out of the unit. I fear for my safety with him on the yard, due to his <mask> behavior. His progression from stalking to masturbating directly at me leads me to fear he may take it further. I was offered EAP [Employee Assistance Program] which I declined."


2 There were two felony counts of <mask>. Count 1 alleged that between April 7 through April 23, 2019, defendant “did willfully, maliciously, and repeatedly follow and did willfully and maliciously harass G.K., and made a credible threat with the intent that she be placed in reasonable fear for her safety and the safety of her immediate family,” and that defendant was “subject to a temporary restraining order, injunction and other court order prohibiting the above described behavior against G.K.” Count 2 alleged the same conduct, but for the earlier period between March 1, 2019 and April 6, 2019, and when there was no court order. 3 People v. Harvey (1979) 25 Cal.3d 754.


Any person who has been subject to domestic violence by a present or former family or household member, or who has been the victim of <mask> or sexual assault, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence, stalking, or sexual assault by the respondent. A family or household member includes persons, such as Petitioner and Respondent, who have resided together in the past. Section 455.010(7). Accordingly, Petitioner filed a verified petition alleging she had been subject to domestic violence. Section 455.010(5) states that domestic violence is "abuse or stalking committed by a family or household member, as such terms are defined in this section." Section 455.010(1)(a)-(f) provides that "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person: assault, battery, coercion, harassment, sexual assault and unlawful imprisonment.


Nor is Penal Law § 120.45 any more difficult to interpret and obey because it lacks a specific intent component. The Legislature’s choice of general over specific intent reflects sound public policy and is consistent with the approach taken by the drafters of the national model anti<mask> statute (National Institute of Justice, Project to Develop a Model Anti-stalking Code For States 43-48 [1993]). By focusing on the behavior of the accused stalker rather than on the stalker’s motivation, Penal Law § 120.45, like the model code, ensures that accused stalkers do not escape criminal liability “by saying that however outrageous [their] conduct might have been, it was not [their] actual intent to cause the requisite fear.” (New Jersey v Cardell, 318 NJ Super 175, 184, 723 A2d 111, 115, certification denied 158 NJ 687, 731 A2d 46; accord, Iowa v Neuzil, 589 NW2d 708, 712 [Iowa]; see also, Greyson, Comment, California’s Antistalking Statute: The Pivotal Role of Intent, 28 Golden Gate U L Rev 221, 242 [1998].) Indeed, Penal Law § 120.45, with its use of the phrase “legitimate purpose” in tandem with a general intent standard, parallels stalking statutes from other jurisdictions that have withstood constitutional vagueness challenges (see, e.g., Bouters v Florida, 659 So 2d 235 [Fla], cert denied 516 US 894; Snowden v Delaware, 677 A2d 33 [Del]; People v White, 536 NW2d 876 [Mich]; cf., Oregon v Norris-Romine, 134 Or App 204, 894 P2d 1221).


Gross was charged in a Superseding Indictment with four counts of interstate <mask> (Counts 1–4), alleging that he stalked four different women by traveling from his residence in Missouri to Kansas with the intent to harass and intimidate each of them, causing substantial emotional distress. 1 Counts 1 and 2 arose out of Gross’s conduct toward Yuling Liu and Chunqiu Wu, 2 respectively.


On June 26, 2009, Lottie Rae Kogut (Lottie) appeared in Nassau County Family Court seeking an order of protection on her own behalf and on behalf of her son, David Kogut (David), against plaintiff Rudolph Lodichand (Lodichand). Defendant Dorothy A. Phillips, a Family Court Attorney Referee (Referee Phillips), upon reviewing Lottie’s family offense petition,1 issued an ex parte temporary order of protection in favor of Lot*893tie and against Lodichand, but declined to issue an order of protection in favor of David. The order of protection required that Lodichand (misspelled in the petition as Lodichard), refrain from communicating with Lottie and from assaulting, <mask>, harassing, and menacing her. In addition, the order prohibited Lodichand from engaging in other criminal acts against Lottie. The family offense petition summons accompanying the order of protection indicated that proceedings pertaining to the order of protection were scheduled to be heard on July 29, 2009.


See, e.g., Tex. Fam. Code § 85.025(a) (generally providing for two-year duration of protective order due to finding of family violence, except in specified situations in which the judge determines that a longer period is needed and the judge makes specific required findings in support of that determination); but see Tex. Code Crim. Proc. art. 7A.07 (imposing no limitation on duration of protective order in cases involving sexual assault or abuse, <mask>, or trafficking).


Conviction of an offense that another jurisdiction treats with severe potential penalties may satisfy Public Officers Law § 30 (1) (e) even if the violation would be a minor offense or even no criminal offense at all under New York law. (Graham v Coughlin, 72 NY2d at 1015; Quaranta v Jacobson, 167 Misc 2d at 1036.) Therefore the court must consider not only how New York classifies a similar offense, but how severely Pennsylvania punishes the offense. (Quaranta v Jacobson, 167 Misc 2d at 1038.) Just as in evaluating New York’s most similar offense for purposes of Public Officers Law § 30 (1) (e), the court considers the elements of the offense, not the circumstances of petitioner’s commission, so, too, in evaluating whether the punishment fits New York’s definition of a felony, the court considers the maximum penalty that may be imposed, not the sentence actually imposed on petitioner. (Penal Law § 10.00 [5]; Feola v Carroll, 10 NY3d at 573; Duffy v Ward, 81 NY2d at 130.) Penal Law § 10.00 (5) defines a felony as an offense potentially punishable by more than one year in prison. Although a first offense of <mask>, absent aggravating factors, constitutes only a misdemeanor of the first degree under Pennsylvania law (18 Pa Cons Stat Ann § 2709.1 [c]), the offense is punishable by up to five years in prison. (18 Pa Cons Stat Ann § 106 [b] [6]; § 1104 [1].) Stalking under Pennsylvania law thus satisfies New York’s definition of a felony.


Courts have the authority to enjoin <mask> and/or cyberstalking under section 784.0485, Florida Statutes (2015). “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ....” § 784.048(2), Fla. Stat (2015). “‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” § 784.048(1)(a).


Appellant testified on cross-examination that she had filed several reports with the NLRPD against Murry for harassment and <mask> and that she had gone to the prosecuting attorney's office several times. However, she stated that nothing had been done about Murry's actions. She said that Murry had harassed her over the past eight years and that she filed reports each time. She stated she did not know what the NLRPD did with eight years' worth of police reports. She testified that Murry has harassed her since she shot him and that the last police report she filed against him was on December 28, 2017. She admitted that she did not get an order of protection against Murry, but she said that was because Murry had one against her. She said that the day she shot Murry, he "had come over there [and] was disrespecting [her] in [her] auntie's yard, putting his hands on [her]." She stated that Murry was disrespecting her "in front of everybody. It was a gang of people out there. And I shot him. And then I shot him after he put his hands on me. I put my hand on him after he put his hands on me. He proceeded to draw back and hit me again, and that is when I shot him, as I stated." She testified that Murry was in the process of hitting her in her face with his fist when she shot him. She acknowledged that she did not live with Martin and that she did not try to leave. However, she stated that she tried to walk away and that she kept telling Murry to leave.


On the facts and circumstances presented, the time frame alleged in the instrument accusing defendant of <mask> in the fourth degree was not per se unconstitutional (People v Sedlock, 8 NY3d 535, 538 [2007]; People v Bennett, 57 AD3d 688, 690 [2008]; People v Rozarlo, 20 Misc 3d 76, 81 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; cf. People v Boyette, 41 Misc 3d 48, 50-51 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]) and, absent timely objection, we decline to reach the issue (CPL 470.05 [2]).


Graham's second point on appeal challenges the sufficiency of the evidence to support his conviction for Count II. Count II charged Graham with purposely harassing A.L. through a course of conduct in which he made a credible threat on November 1, 2014. Specifically, the State alleged that Graham sent text messages to R.T. and called the Boone County Sheriff's Department on November 1, 2014, for the purpose of harassing A.L. with a credible threat. To prove that Graham committed aggravated <mask> as charged in Count II, the State was thus required to establish that: (1) Graham, through a course of *421conduct; (2) purposely harassed A.L.; and (3) made a credible threat. Section 565.225.3(1). Graham's second point on appeal challenges only the sufficiency of the evidence to establish the second element: whether Graham purposely harassed A.L.


Respondent further testified that on May 25, 2001, she commenced a family offense proceeding against petitioner and *146obtained a temporary order of protection from Family Court. The order, which was admitted into evidence, directs petitioner Samuel Billips to “stay away” from the “home” and “place of employment” of Mildred Billips and to refrain from “assault, <mask>, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against Mildred Billips.” The order further provides that it “shall remain in effect until August 31, 2001,” the date the family offense proceeding is scheduled to be heard.


Consequently, to prove that Lazinger committed aggravated <mask>, the State was required to establish three elements: (1) Lazinger, through a course of conduct; (2) purposely harassed M.L.;5 and (3) Lazinger previously pleaded guilty to "any other crime where [M.L.] was the victim." Lazinger challenges the sufficiency of the evidence to establish the first and second elements of aggravated stalking as charged in Count I.6 The essence of Lazinger's complaint is that her contact with S.L. at lacrosse practice did not purposely harass M.L., and thus cannot be used to establish a course of conduct.7


The court stated, "I'm going to restrain each party from harassing or following or <mask>, or any of those things to the other party, and I'm going to issue a restraining order against communicating with the other party.... [¶] ... [¶] So, I'm going to eliminate their contact.... I'm going to order each person to stay 100 yards away from the other person...."


In urging that the <mask> statute is void for vagueness, defendant primarily argues that the term “legitimate purpose” is subjective and incapable of precise definition. Defendant’s argument inappropriately lifts the statutory term out of context and ignores the fact that the statute measures a defendant’s actions by an objective standard, in that the offending course of conduct must be such as would likely cause the targeted person to reasonably fear specified physical harm or actually causes the targeted person to suffer specified mental or emotional harm. In our view, the term “legitimate purpose,” when read in conjunction with the rest of the statutory language, including the requirement that the course of conduct be undertaken “intentionally,” does not require a person of ordinary intelligence, law enforcement officials or triers of fact to guess at its meaning. The legislative use of inherently imprecise language does not render a statute fatally vague where, as here, that language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices” (People v Shack, 86 NY2d 529, 538, supra, quoting United States v Petrillo, 332 US 1, 8). Further, it does not avail defendant to advance theoretical applications of the term “legitimate purpose” which would be outside the stalking *544statute’s intended reach, such as the investigatory work of a private detective or the collection efforts of a “repo man.” The insidious actions of this defendant, a stranger to the complainant, were not remotely legitimate in purpose, and “[t]his court cannot consider the possibility that the statute may be vague as applied in other hypothetical situations.” (People v Nelson, 69 NY2d 302, 308, supra.)


The elements of the offense to which petitioner pleaded guilty (18 Pa Cons Stat Ann § 2709.1 [a]), most closely equate to the elements of <mask> in the third degree under New York law, which New York also classifies as a misdemeanor. (Penal Law § 120.50.) Although stalking in the second and first degrees are felonies under New York law, these offenses require the use of weapons, an age disparity, previous convictions, or the infliction of actual injuries, none of which is an element of the Pennsylvania statute. (Penal Law §§ 120.55, 120.60.)


The following day, Jeannetta filed the instant petition seeking entry of a DVO. In her petition, she alleged Omar's disposal of the items of personal property made her scared because "he use (sic) to threaten stuff like this to me" and she didn't "know what he is capabile (sic) of at this point or if he is still <mask> me[.]" A two-hour hearing was conducted at which the trial court heard testimony from multiple witnesses. Both parties were represented by counsel. Omar denied having contact with Jeanetta apart from during court appearances and denied intentionally damaging any of her belongings. Jeanetta testified consistently with her petition, but further alleged past physical abuse and threats, none of which were materially substantiated by any witness.


The federal <mask> statute defines two separate crimes: one prohibiting stalking via interstate travel under 18 U.S.C. § 2261A(1), and another prohibiting stalking via interstate communications (often called cyberstalking) under 18 U.S.C. § 2261A(2). See United States v. Gonzalez, 905 F.3d 165, 180 (3d Cir. 2018) (listing elements for both crimes). Only cyberstalking includes a “course of conduct” requirement. In contrast, interstate travel stalking requires that a defendant cause emotional distress “in the course of, or as a result of, such travel.” 18 U.S.C. § 2261A(1). Thus, for an interstate travel stalking charge, a single interstate trip is sufficient. See United States v. Lee, 790 F.3d 12, 18 (1st Cir. 2015) (affirming stalking conviction over challenges to sufficiency of the evidence where defendant took a single interstate trip); United States v. Walker, 665 F.3d 212, 224–25 (1st Cir. 2011) (holding that the interstate trip can itself be sufficient to convict where the victim suffered emotional distress as a result of that trip).


The accusatory instrument charged defendant with, inter alia, <mask> in the third degree (Penal Law § 120.50 [3]) and harassment in the first degree (Penal Law § 240.25). After a nonjury trial, defendant was found guilty of, as relevant to this appeal, attempted stalking in the third degree (Penal Law §§ 110.00, 120.50 [3]) and harassment in the first degree. This appeal ensued.


ny that conducted animal testing). We thus conclude that, in referring to “another person,” sections 2261A and 2262 apply to otherwise-covered conduct when the offender and victim are the same sex, and irrespective of the relationship between the offender and victim. Section 2261A also applies when an offender places the target of the <mask> in “reasonable fear of the death of, or serious bodily injury to,” the target’s “spouse or intimate partner” or “causes substantial emotional distress” to the target’s “spouse or intimate partner.” For purposes of VAWA, the term “spouse” cannot be read to cover an individual who is the same sex as the target of the stalking, even if they are married under state law, because the Defense of Marriage Act (“DOMA”) provides that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, . . . the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7 (2006). 4 DOMA does not, however, address the additional term “intimate part- ner,” which, for purposes of section 2261A, is defined in 18 U.S.C. § 2266(7) (2006). That section provides that the composite phrase “spouse or intimate partner” means “a spouse or former spouse of the target of the stalking, a person who shares a child in common with the target of the stalking, and a person who cohabits or has cohabited as a spouse with the target of the stalking”; “a person who is or has been in a social relation- ship of a romantic or intimate nature with the target of the stalking, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relation- ship”; or “any other person similarly situated to a spouse who is protected


We recently upheld the issuance of an IPO based on <mask> by a neighbor (with no other dating, familial or other special relationship with the victim noted) in an unpublished opinion – where apparently no argument was made on appeal that the lack of other relationship made the IPO invalid. See Steward v. Buckman, No. 2020-CA-1559-ME, 2021 WL 2484025 (Ky. App. Jun. 18, 2021). This unpublished case is not binding authority, and we do not cite it as such. See CR 76.28(4)(c). Instead, we simply note its existence.


Defendant argues that the court prejudicially erred by refusing to allow the defense to use Kerr's welfare fraud conviction to impeach her out-of-court statements that she feared defendant and that he was <mask> her, because preventing the defense from demonstrating Kerr was willing to lie cloaked her hearsay statements with a false air of truthfulness. Defendant's claim does not succeed: As explained below, even were defendant to show that the court abused its discretion in excluding the proffered evidence, the error did not prejudice him.


On May 9, 2013, a hearing was commenced before a Referee. Although informed of the hearing, respondent notified the Committee by email that he would not appear. In response, the Committee advised respondent that the hearing would proceed and that, upon his failure to appear, the charges against him would be deemed admitted pursuant to 22 NYCRR 605.12 (c). The Committee submitted documentary evidence at the hearing. In light of respondent’s failure to appear, the Referee deemed the charges admitted. The Committee argued before the Referee that respondent should be disbarred. By a report dated June 28, 2013, the Referee recommended disbarment citing respondent’s aforementioned failure to cooperate with the Committee as well as his egregious conduct consisting of his “mailing of box cutters, obscene email and voicemail messages, and the fear he put into numerous judges and lawyers due to his <mask> and harassment of them.”


<mask>, which is an unreasonable and unacceptable attempt to exert control over someone, takes many shapes and forms. In enacting the “Clinic Access and Anti-Stalking Act of 1999,” which created the crime codified under Penal Law § 120.45, the Legislature recognized that the “unfortunate reality is that stalking victims have been intolerably forced to live in fear of their stalkers” and that “[s]talkers who repeatedly follow, phone, write, confront, threaten or otherwise unacceptably intrude upon their victims, often inflict immeasurable emotional and physical harm upon them.” (L 1999, ch 635, § 2, cited in People v Stuart, 100 NY2d at 416, 417 [emphasis added].) Defendant is in every sense of the word a stalker who has “unacceptably intruded” on his victim. As such, he continues to pose a real and ongoing danger to plaintiffs safety and well-being. Accordingly, the court will grant her application for a final order of protection that will require him to not only stay away from her but to stay away from the Hideout.


Around the same time that Kerr was starting to confide in others that she feared defendant, defendant was talking to friends about the affair, saying he was frustrated with being "led on" by Kerr, and expressing open hostility toward Kerr's husband. One of the individuals with whom defendant spoke about the situation was Dwayne Kari, who also knew Kerr and was a good friend of Kerr's husband. Kari disapproved of the affair and repeatedly advised defendant to put an end to it. One morning in November 1998, Kari observed defendant driving his van toward Kerr's home. Kari gave chase and eventually caught up with defendant, accusing him of <mask> Kerr and telling him it needed to stop. Kari also warned defendant that "it was going to get personal" after defendant admitted having previously told Kari that he planned to stab Kerr's husband. Defendant responded by saying Kerr was "screwing him around." To prove his point, defendant retrieved some items from his van. The first item was a tape-recorded message that Kerr had left on defendant's answering machine that said, "All I can say about last night was 'yummy.' " The other item was a piece of paper on which Kerr had written "Lisa Brooks." Defendant said he was going to show these items to Kerr's husband "if she doesn't leave him."


We note the challenged stay-away provision in the CPO, preventing defendant from having any contact with A.H., is not technically a condition of his probation but instead was issued under section 1203.097 governing domestic violence. Subdivision (a) of this statute provides in relevant part: "If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code,[3 ] *896the terms of probation shall include all of the following: ... (2) A criminal court protective order protecting the victim from further acts of violence, threats, <mask>, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions." (Italics added.)


With regard to the <mask> charge, defendant argues that two incidents occurring six months apart do not constitute a course of conduct. In addition, defendant asserts that there is no allegation that his actions were likely to cause the complainant to *765be in reasonable fear that her employment would be threatened (McGrath affirmation 1Í1Í 24-26). Last, defendant argues that the accusatory instrument is defective because it fails to allege that he was present at the post office solely to stalk the complainant (McGrath affirmation 1Í 27).


the violence.” (§ 6220.)7 To effectuate this purpose, trial courts may issue a restraining order based on “reasonable proof of a past act or acts of abuse.” (§ 6300, subd. (a); In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225 (Marriage of Davila).) “The DVPA requires a showing of past abuse by a preponderance of the evidence.” (Marriage of Davila, supra, 29 Cal.App.5th at p. 226.) “Abuse is not limited to the actual infliction of physical injury or assault.” (§ 6203, subd. (b).) Rather, “ ‘abuse’ ” includes causing or attempting to cause bodily injury (id., subd. (a)(1)), “plac[ing] a person in reasonable apprehension of imminent serious bodily injury” (id., subd. (a)(3)), and behavior such as “<mask>, threatening, . . . harassing, . . . contacting, either directly or indirectly, . . . or disturbing the peace of the other party” (§ 6320, subd. (a); see § 6203, subd. (a)(4)). “ ‘[T]he plain meaning of the phrase “disturbing the peace of the other party” in section 6320 may be


<mask> requires Appellant's course of conduct would cause alarm to a reasonable person. "Alarm" is defined as "fear of danger of physical harm." In K.L.M. v. B.A.G. , the respondent sent anonymous letters warning the petitioner about the petitioner's boyfriend, the respondent's former boyfriend. 532 S.W.3d at 708-09. The respondent later sent another letter that attempted to persuade the petitioner to leave her boyfriend. Id. at 708. Finally, the respondent hacked the petitioner's Facebook *65page, downloaded her "profile picture," and inserted it into her own profile. Id.


The court recognizes that there is case law that would suggest a different allocation of evidentiary burdens for allegations of a “staged accident.” “In an action to recover the proceeds of a fire insurance policy, it is the insurer’s burden to establish the affirmative defense of <mask>,” and the “measure of persuasion is that of clear and convincing evidence.” (Hutt v Lumbermens Mut. Cas. Co., 95 AD2d 255, 256-257 [2d Dept 1983]; see also 3910 Super K v Pennsylvania Lumbermens Mut. Ins. Co., 219 AD2d 589, 589-590 [2d Dept 1995].) There are important differences, however, between the “affirmative defense of arson” and the issue of coverage for an intentional collision.


Steven W. Fisher, J. In two consolidated indictments, defendant Gerald G<mask>, a Justice of the Supreme Court of the Second Judicial District, stands charged with one count of bribe receiving in the third degree, six counts of receiving reward for official misconduct in the second degree, three counts of official misconduct, and one count of receiving unlawful gratuities. All the charges relate to the defendant’s conduct as a judge presiding over matrimonial cases in the Supreme Court of Kings County.


While the plaintiffs here, as successor attorneys in the matrimonial litigation, did not themselves apply for fees, their client, the wife, did so elect on behalf of herself and the prior attorneys — an election of remedies which binds plaintiffs. “ The wife’s attorney is in privity with her and he has no rights which are not derived through her, stemming as they do from the husband’s obligation to supply the wife with necessaries. If the application for counsel fees is made in advance of trial it is made by the wife in her suit * * * Just a.s the. wife eon Id not maintain an action for counsel fees after the determination of the merits of the principal litigation against her (Pe<mask> v. Pearson, 230 N. Y. 141) her attorney, may not do so in his own right or claim for himself any different consideration, or standard of determining his right to compensation.” (Weidlich v. Richards, 276 App. Div. 883, 385-886, supra,) A substituted attorney Is bound by the fixation of Joes *243prior to Ms entry into the case, and if the original award will not he sufficient it is up to him to move for an additional allowance when he appears in the matrimonial action. (Weidlich v. Richards, supra, pp. 385-386; Schaefer v. Schaefer, 30 Misc 2d 278.)


It is provided by statute, however, that an insured’s failure to file a proof of loss as required by the insurance contract (Insurance Law, § 168, subd 5, lines 90-101), shall not invalidate or diminish his claim under the policy unless the insurer, after the occurrence of the loss, gives the insured written notice that it desires such a proof of loss (Insurance Law, § 172, subd 1). No such demand was ever made in this case and the plaintiff was therefore entitled to prosecute this action and to recover the amount of its loss in spite of the fact that a proof of loss was never filed as required by the insurance policy (compare Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriters Assn., supra; Do-Re Knit v National Union Fire Ins. Co., supra). Under those circumstances the defendant must be deemed to have breached the parties’ agreement as of the date of service of its answer wherein it denied any liability under the policy on the grounds that the loss was caused by the plaintiff’s own act of <mask> (see Beckley v Otsego County Farmers Coop. Fire Ins. Co., supra). The jury having found that denial to have been unjustified, interest on the amount of the plaintiff’s loss shall be computed from that date.


A request to replead allegations properly dismissed pursuant to CPLR 3211 “shall not be granted unless the court is satisfied that the opposing party has good ground to support his cause of action” (CPLR 3211 [e]; see also, Ceres v She<mask> Lehman Bros., 227 AD2d 222, 223 [1st Dept 1996] [leave to replead is not appropriate where “there is no reason to believe that plaintiffs could correct the deficiencies of the pleading”]). Here, with respect to those causes of action in the complaint which the court has dismissed against some or all of the defendants, National Union has not shown, nor given the court any reason to believe, that an amended pleading would correct the defects in question (see also, Zigabarra v Falk, 143 AD2d 901, 902-903 [2d Dept 1988]). Therefore, the court declines National Union’s request for leave to replead.


*613Besides his life estáte Alfred Severin Bourne, Jr., possesses only a general testaínentáry power Of appointment over the principal of the trust without any right to reach or control thfe disposition of the principal during his life, with his surviving issue, as a class, now consisting of his three infant children, owning a remainder in the principal, subject only to the valid exercise of this power of appointment. (Crackanthorpe v. Sickles, 156 App. Div. 753 [1st dept., 1913]; Matter of Burchell, 299 N. Y. 351 [1949].) It was, in fact, observed by Surrogate Foley in a leading case (Matter of Weekes, 174 Misc. 930, 931 [Surrogate’s Ct., N. Y. County, 1940], affd. 260 App. Div. 1014 [1st dept., 1940]) that the “ usual method ” to create a remainder “is to provide for a gift to the issue of the life tenant ”. (See, also, Matter of Rumph, 205 Misc. 404 [Surrogate’s Ct., Richmond County, 1954]; Matter of Pe<mask>, 138 N. Y. S. 2d 489, 491 [Surrogate’s Ct., N. Y. County, 1954]; Matter of Ryan, 284 App. Div. 102, affd. 309 N. Y. 703.)


and is not required.” ’ [Citation.]” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The Attorney General argues remand is not necessary because the trial court emphasized numerous aggravating circumstances, which shows it would not have struck the enhancement had it recognized its authority to do so. The court, however, also found several mitigating circumstances, and it declined to impose the greatest possible sentence. Moreover, unlike other cases in which courts have found remand was unnecessary, the trial court here did not explicitly state that it would decline to strike the enhancement if it had authority to do so. (See, e.g., People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) On this record, it is not sufficiently clear how the trial court would have acted had it recognized its authority under section 1385. (See People v. Johnson (2019) 32 Cal.App.5th 26, 69 [remanding so the trial court could consider whether to strike a firearm enhancement, even though the court made statements showing it was not sympathetic to the defendants].) The Attorney General alternatively argues remand is not necessary because it would have been an abuse of discretion to strike the enhancement. (See People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1055 [“Whether the trial court believed it had discretion to strike the alleged prior felony convictions or not, appellant has suffered no prejudice since it would have been a manifest abuse of that discretion to exercise it on this record.”].) When deciding whether to exercise its authority under section 1385, a trial court must consider any mitigating and aggravating circumstances, as well as the general objectives of sentencing as set forth in the California Rules of Court. (People v. Pe<mask> (2019) 38 Cal.App.5th 112, 117.) The court


This action arises out of the death of Jonathan David L<mask>, a 35-year-old composer, lyricist, and playwright whose play “Rent” is now appearing on Broadway. It is undisputed that, at the time of his death on January 25, 1996, Larson was not married, had no children and was survived only by his father, plaintiff Allan S. Larson, his mother, Nanette Larson, and his sister, plaintiff Julie Larson McCollum, and her two sons.


An information charged LaDuke with <mask> ( § 451, subd. (d) ), vandalism of a building owned and occupied by a religious educational institution (§ 594.3, subd. (a) ), and vandalism causing damage in excess of $400 and also in excess of $10,000 (§ 594, subds. (a), (b)(1) ). At trial, the prosecution presented evidence substantially as described ante . In his defense, LaDuke testified that he was 63 years old, unemployed, and homeless. He stated that he was upset that "the Jews are always blamed for the crucifixion of Jesus" and decided to relieve himself of the burden of being "blamed for crucifying Christ." He admitted he bought a lighter and "some barbecue things" (e.g., lighter fluid), poured lighter fluid all over the University's sign, and lit the sign on fire. On cross-examination, LaDuke admitted he knew the sign had the name, "John Paul the Great Catholic University," on it. He knew the University was a Catholic *190university. He also saw that the sign had a cross on it, symbolizing Christ on the cross. He knew burning the sign was wrong, but he did not care. He stated a priest at the University refused to talk to him. He did not consider the University a religious organization. He asserted that Catholicism was a "group of teachings" with which he did not agree.


Nor is the second cause of action sufficient merely because the plaintiff has alleged therein that the publication of the letter caused ‘ ‘ his business associates to terminate the then two pending financial promotions, undertakings and joint ventures which would have resulted in financial gains to him of $50,000.00 each, because of their loss of confidence in him ”. Where a publication is not defamatory upon its face, the plaintiff is required “ to plead and prove special damage arising from injury to * * * [his] business as a result of the publication of words, however falsely or maliciously spoken or written ”. (Frawley Chem. Corp. v. L<mask> Co., 274 App. Div. 643, 644, and the authorities therein cited.) The conclusory allegation of temporal damage allegedly sustained by the plaintiff as the result of the publication of the letter here involved is insufficient to spell out the cause purported to be stated in the second cause of *593action. To state such a cause of action, the plaintiff must plead his special damages with such particularity as would enable the defendant to meet the same (Reporters’ Assn. v. Sun Print. & Pub. Assn., 186 N. Y. 437, 442), by giving “ a plain and concise statement of the material facts * * * but not the evidence by which they are to be proved ” (Civ. Prac. Act, § 241). The general allegation of special damages contained in the second cause of action is clearly insufficient without revealing the names of the business associates who terminated the alleged financial promotions, undertakings and joint ventures and the nature and status thereof at the time of the publication of the letter. As presently alleged, the special damages claimed by the plaintiff are left to the realm of speculation. (National Organization Masters, Mates & Pilots v. Curtis Pub. Co., 81 N. Y. S. 2d 920, 922; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377; Trachtenberg Bros. v. Henrietta Stein Inc., 64 N. Y. S. 2d 565.)


The plaintiff did submit an affidavit from a Dr. Angelo L. Pisani, Jr., a fire and explosion investigator certified by the National Association of Fire Investigators. In his affidavit, Dr. Pisani states that, like Mr. Mellusi, he too is a member of the International Association of <mask> Investigators and that the NFPA 921 Guide for Fire and Explosion Investigations is indeed *802the recognized guide and standards utilized by arson investigators and that the manual is endorsed and taught by those organizations. In addition, the guide is recognized as an authoritative manual in the field of fire and explosion investigations by the United States Bureau of Alcohol, Tobacco and Firearms, as well as other courts across the nation.


assault with a deadly weapon, as well as multiple prior misdemeanor convictions, including false imprisonment. The trial court further noted the probation report indicated defendant had “attack[ed] another inmate . . . without provocation” while at the jail. The trial court then noted defendant was 32 years old at the time of the current offense and provided a brief overview of the facts of this case, noting “a common element” shared by the current offense, defendant’s jailhouse conduct, and two of his prior convictions, i.e., “violence against someone else.” The trial court then stated: “The flip side of this, as you know, and it’s entitled to some consideration is that [defendant] is a relatively young person and we like to think that anyone can change over time.” The trial court then noted the loss suffered by the victim and his family and concluded: “The Court can’t find that in the interest of justice that the enhancement should be stricken, so the Court’s going to deny that motion.” “ ‘ “[A] court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is” reviewable for abuse of discretion.’ [Citation.] ‘In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” [Citation.] Second, a “ ‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ’ ” [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]” (People v. Pe<mask> (2019) 38 Cal.App.5th 112, 116.) Defendant argues the trial court’s decision declining to strike his firearm enhancement amounted to an abuse of discretion because “the fight precipitating the


Under New York law, an indictment is a written accusation by the Grand Jury charging the defendant with at least one felony and serves as the jurisdictional basis for a prosecution in a superior court (CPL 1.20, subd. 3; 200.10; 210.05). Its common-law and constitutional function is to identify the charge so that the defendant may have notice of the nature and character of the offense in order to prepare his defense, and, it also serves to identify the offense for double jeopardy purposes. (People v. Bogandoff, 254 N. Y. 16; People v. F<mask>, 244 N. Y. 413; 4 Blackstone’s Comm., p. 302.)


There is ample authority for charging a defendant with a single continuous crime for a course of conduct over a period of time which comprises the commission of any criminal acts of the same nature motivated by a single common illegal intent or forming part of a general plan or scheme. (People v. F<mask>, 244 N. Y. 413; People v. Cox, 286 N. Y. 137; Sturgis v. Spofford, 45 N. Y. 446; People v. Parkinson, 43 N. Y. S. 2d 690; People v. Fay, 184 Misc. 684.)


Moreover, petitioner 446 Realty Co. purchased the building directly from the landlord whom both the criminal courts and the administrative State housing agency found intentionally caused these conditions. Petitioner purchased the building with full actual and constructive knowledge of the conduct of its immediate predecessor in interest as, in the words of its former principal, the prior landlords were on their way to jail. Petitioner, for purposes of the substantial rehabilitation exemption to the rent stabilization laws, must stand in the shoes of its predecessor in interest. Free from rent stabilization, the building would be worth profoundly more than if continued rent stabilized. This statute, designed to create affordable, *640decent housing in this city, was not created to embrace a windfall to the old or present landlord based upon intentional criminal destruction of basic systems in the building. DHCR acknowledges this policy in its operational bulletin which, in pertinent part, precludes a finding of substantial rehabilitation where, as here, there is an outstanding finding of harassment of tenants or the commission of <mask>.


Based on these facts, BorgWarner and Emerson challenge the District's ability to prove that its response costs were "necessary" under the HSAA's third element, i.e., whether there is evidence that VOC releases from the Emerson site pose a threat to human health or the environment. (See C<mask> Harbor, supra , 270 F.3d at pp. 871-872 ; see also Alcoa, supra , 12 Cal.App.5th at pp. 327-328, 219 Cal.Rptr.3d 474.) BorgWarner and Emerson argue there is no triable issue of fact regarding whether the releases are such a threat because the RWQCB found that VOC's at the Emerson site were not a threat to beneficial uses of groundwater, and they further argue the District's expert did not rebut that conclusion.


This proceeding is premature. Shorter periods for instituting certiorari proceedings than the four months’ period prescribed in article 78 of the Civil Practice Act are valid and must be complied with. (Matter of City of Rochester v. Annis, 185 Misc. *165518; Matter of Island Trees Civic Assn. v. Town Bd. of Hempstead, 198 Misc. 1064. Cf., also, Matter of Layman v. Persons, 133 Misc. 661 and Matter of L<mask> v. Howland, 108 N. Y. S. 2d 231.)


According to Ms. Argentina, the decedent told her that he wanted to change his will, revocable trust and health care proxy before boarding the plane. On September 30, 2005, the day they were to travel to New York, he visited the offices of Shirley Wahl, Esq., of the law firm of C<mask>, Messinger, in Arizona and asked her to change the beneficiaries of the 2004 will and trust. The decedent executed a new will, an amendment of the 2004 trust and a health care proxy in Ms. Wahl’s office. The 2004 trust was amended to provide that, upon the decedent’s death, *192his sister receives one half of the trust principal, his granddaughter receives three eighths of the trust principal and his grandson receives one eighth. The decedent then left immediately for the airport, without stopping to get his glasses, clothes or medicine. They traveled back to New York that day, September 30, 2005.


Even more significant are two gifts in two separate trusts of $500,000 each for the benefit for life of her sisters, Mary P. Davidson and Maude P. L<mask>, respectively, with remainders to certain designated persons. In these gifts contained in paragraphs eighth and ninth of the will the language used is illuminative of a purpose to create these benefits in the full amount of the fund and undiminished by the apportionment and charge of any estate taxes. In each case the gift of the trust fund was to her executors in “ the sum of Five *444Hundred Thousand Dollars ($500,000), or property which they may value at that amount, such valuation, when made by a majority of my executors to be conclusive for all purposes, * * *.” (Italics mine.) The direction to set aside securities in the fixed amount precludes an inference that taxes were to be deducted.


“[t]his doctrine prevents a trustee from asserting a claim against a third-party where management has participated with that third-party in the wrongful acts. ‘Because management’s misconduct is imputed to the corporation, and because a trustee stands in the shoes of the corporation, the rule bars a trustee from suing to recover for a wrong that he himself essentially took part in.’ (Wight v. BankAmerica Corp., 219d 79, 86-87 [2d Cir 2000]; She<mask> Lehman Hutton, Inc. v. Wagoner, 944d 114, 117 [2d Cir. 1991]).” (Morgado Family Partners, LP v Lipper, 6 Misc 3d 1014[A], 2004 NY Slip Op 51791[U], *3 [Sup Ct, NY County 2004], affd 19 AD3d 262 [1st Dept 2005].) Justice Moskowitz did not reach the merits of the in pari delicto defense raised in Morgado by PwC but did comment that the trustee was the “best choice” to sue PwC because he was independent and, if successful, would benefit the entire partnership. (2004 NY Slip Op 51791[U], *5.) On appeal from the portion of that decision issuing a stay of derivative claims, the First Department noted, “[I]t is unsettled that in pari delicto can ever apply against an innocent, nonbankruptcy trustee.” (19 AD3d at 263.)


Defendants also argue that their statements to Museum officials are protected by a qualified privilege. Under New York law, "communications protected by a qualified privilege do not provide the communicant with an immunity against the imposition of liability in a defamation action” (Toker v Poliak, supra, at 219). Rather, good-faith communications by a party having an interest in a subject, or a moral or societal duty to speak, are protected by a qualified privilege if made to a party having a corresponding interest (Byam v Collins, 111 NY 143, 150; Buckley v Litman, 57 NY2d 516, 518-519; Bald*259win v Shell Oil Co., 71 AD2d 907, 910; Jung Hee Lee Han v State of New York, 186 AD2d 536, 537; Van Wyck v Aspinwall, 17 NY 190, 193). Indeed, the application of qualified privilege is not restricted within the narrow limits of absolute privilege but, rather, its application is widespread (G<mask> v Hendlin, 141 AD2d 55, 60, lv denied 74 NY2d 603; 44 NY Jur 2d, Defamation and Privacy, § 76, at 41 [1985 ed]).


The petitioner urges (1) that the law of New York applies in the determination of the nature and extent of the bequest under the will to testator’s nephew, James C<mask> Agnew; (2) that the condition attached to the gift, namely, that the share passing to this nephew be held in trust so long as he is married to his present wife, and in the event the marriage relationship is dissolved that the trust terminate and the principal be immediately paid over to him, is invalid as against public policy; and (3) that in any event the trust is invalid because it violates the Statute against Perpetuities. The nephew makes the same contention and further urges that he is entitled to one fourth of the residuary estate outright, as if no condition were annexed to the gift or as if the void condition had been complied with. The special guardian on behalf of infant remaindermen, submits that the court should declare inoperative the condition for the termination of the trust based upon dissolution of the marital status, should uphold the trust as far as possible in all other respects, and should apply the law of Minnesota as to the duration and administration of the trust.


Here, as in both P<mask> and Rippe , the only evidence presented to support the existence and extent of Yousey's brain injury and resulting impairment were his subjective complaints, the results of his neuropsychological testing, and the opinions of his treating physicians. While I recognize that Yousey's injuries were significant, I cannot ignore the statutory requirements set forth by our legislature. Because there were no objective findings of the brain injury, the Commission's award of a 29 percent permanent-impairment rating for this injury was not supported by substantial evidence. Accordingly, I must dissent from the majority's decision to reinstate this award.


“ The term ‘ abandonment ’ means neglect and refusal to perform the natural and legal obligations of care and support. If a parent withholds his presence, his love, his care, the opportunity to display filial affection and neglects to lend support and maintenance, such a parent relinquishes all parental claim, and abandons the child.” (Matter of Hayford, 109 Misc. 479, citing Matter of L<mask>, 31 Hun, 539.)


This was purely and simply a ruse, a subterfuge, a pretext, or a sham to bring defendant to the police precinct for questioning. His statements, after 9 to 11 hours of questioning were clearly the fruits of the poisonous tree. The requirements of the Fourth Amendment were circumvented since no Judge ever ruled on the question of probable cause as to the <mask>. Such misuse of court process cannot be countenanced as proper police action.


The dissent states that our invocation of the forfeiture rule is premised on the requirement that a defendant create a record in support of an objection for use on appeal and suggests that the record here would have been the same if defendant had objected. (Dis. opn., post , at pp. 209, 211-12.) Again, we respectfully disagree. It is true that a defendant's failure to object can result in an undeveloped record. We also note again that one court has already rejected a defendant's confrontation clause objection because he failed to make the objection in the trial court, resulting in an undeveloped record as to the testimonial nature (solemnity and primary purpose) of the hearsay statements. ( Ochoa, supra , 7 Cal.App.5th at p. 584, 212 Cal.Rptr.3d 703 [noting that "[h]ad defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay"].) Nevertheless, underlying our decision are the other purposes of the forfeiture rule and Evidence Code section 353 : giving the trial court an opportunity to make an informed decision to avoid prejudice ( Davis, supra , 168 Cal.App.4th at p. 627, 86 Cal.Rptr.3d 55 ), and giving the proponent of the evidence the opportunity to cure the defect or take other steps designed to minimize the prospect of reversal. ( Pe<mask>, supra, 56 Cal.4th at p. 438, 154 Cal.Rptr.3d 541, 297 P.3d 793 ; Morris, supra , 53 Cal.3d at pp. 187-188, 279 Cal.Rptr. 720, 807 P.2d 949.)


spirit.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Those factors support denial of the Romero motion here. The current crimes were serious—bank robbery and attempted robbery in which bank employees were ordered to the ground and guns pointed in their faces. The crimes were sophisticated, with the robbers wearing masks and gloves, switching vehicles, and jamming police radios. Although perhaps not the “mastermind,” Wallravin’s role was neither “passive” nor “minor.” The trial court imposed a three-strikes sentence of 25 years to life based on two prior robbery convictions from 1991. (§§ 211, 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) In a Romero motion, the court may consider the age of the prior offenses. (People v. Avila (2020) 57 Cal.App.5th 1134, 1141.) But the court may not strike a prior solely because it is remote in time. (People v. Humphrey (1997) 58 Cal.App.4th 809, 812-813 [error to strike 20-year-old strike]; People v. Pe<mask> (2008) 165 Cal.App.4th 740, 749-750 [strikes 24, 15, and 10 years old properly imposed].) Wallravin had been crime free between his release from prison in 2009 and the current offense in 2019. But his background included other criminal convictions, including a 2004 grand theft in which he pushed a woman down and took her purse. (§ 487, subd. (c).) His record reflected a large number of theft convictions. The trial court found no “reason to believe that . . . a mental health condition played any part in this incident.” And although Wallravin was 62 years old and a sentence of 25 years to life might result in him spending the rest of his life in prison, “middle age, considered alone, cannot take a defendant outside


Plaintiff also relies on Regulation T, National Association of Securities Dealers (NASD) rule 2520 and New York Stock Exchange (NYSE) rule 431 in support of his argument that the covenant of good faith and fair dealing requires defendant to make a margin call before selling plaintiff’s securities and an opportunity to cure a deficiency. Plaintiff claims that implicit in any mention of the term “margin calls” in Regulation T, e.g., definition of “margin call” and “payment period,” or the rules is a requirement that defendant make a margin call before liquidating. Plaintiffs reliance is misplaced. Regulation T and the rules are intended to protect the integrity of the market and to do so, brokers must be able to exercise their discretion without fear of subsequent claims of bad faith when market conditions improve. (Capital Options Invs., Inc. v Goldberg Bros. Commodities, Inc., 958d 186, 190 [7th Cir 1992].) Neither Regulation T nor the rules create a private right of action. (See e.g. Berliner Handels-und Frankfuter Bank, N.Y. Branch v Coppola, 214 AD2d 426, 427 [1st Dept], lv denied 86 NY2d 829 [1995]; Bennett v United States Trust Co. of N.Y., 770d 308, 311 [2d Cir 1985], cert denied 474 US 1058 [1986]; Establissement Tomis v She<mask> Hayden Stone, Inc., 459 F Supp 1355, 1360-1361 [SD NY 1978].) Likewise, plaintiff has not identified language in any of these rules that imposes an obligation to give customers notice of and an opportunity to cure margin deficiencies. Indeed, Regulation T provides that a broker may *258impose additional requirements or take action for its own protection (12 CFR 220.1 [b] [2]), as defendant has done here.


Defendant’s attorney, Darrow, has rendered legal services on behalf of the defendant, M<mask>, and the issue of the marriage, which were necessitated in the defense of the within action. I find that the reasonable value of said services is the sum of $3,500. Deducting the sum of $500 that defendant’s attorney, Darrow, has received from defendant, Marson, I find in favor of defendant’s attorney, Darrow, on his counterclaim and against the plaintiff in the sum of $3,000 for moneys that are due the defendant’s attorney for legal services rendered by him as a necessary for the defendant, Marson.


The recovery for wrongful death is the pecuniary value of the interrupted life to the statutory distributees. Young children being more a liability than a present asset, the dependence of parents upon them is largely in expectancy, as a return for the support *337and maintenance given the child until it grow up and be emancipated as to its own earnings. Obviously, if the parent has utterly cut the child off in that regard, he himself should be absolutely cut off. What Surrogate Slater once said in another connection may be copied here to explain the meaning of this word: “ The term ‘ abandonment ’ means neglect and refusal to perform the natural and legal obligations of care and support. If a parent withholds his presence, his love, his care, the opportunity to display filial affection and neglects to lend support and maintenance, such a parent relinquishes all parental claim, and abandons the child.” {Matter of Hayford, 109 Misc. 479; citing Matter of L<mask>, 31 Hun, 539.)


Respondents argue that the information redacted is confidential proprietary information which, if not protected, will adversely affect publication, credit, funding, and the researcher’s career. They contend releasing the redacted information may have a chilling effect on the researcher’s productivity because of fears of retaliation. In addition, respondents elucidated incidents of break-ins, thefts and <mask> at animal laboratory facilities throughout the county, as well as fear of harassment. As this court found in Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees of State Univ. (143 Misc 2d 522, 525, supra) "Although initially compelling, the argument by respondent that public disclosure of proposed research will stifle research at the University cannot prevail. The chilling effect on research complained about by respondent can enure only if detailed descriptions of a particular project are revealed to the public.”


The petition asks, in the alternative, whether the petitioners are constituted donees of a power in trust over the infant’s property or whether they are constituted trustees of the property of the infant during his minority. In the construction herein-above made the court has answered the only questions presented by the petition. The petition does not ask the court to define the respective rights and duties of the testamentary trustees and of the donees of the powers in trust. The will names the same persons as testamentary trustees and as testamentary guardians. Note should be made of the fact that the fourth paragraph of the will instructs the trustees ‘ ‘ to apply so much of the net income thereof as my Trustees, in their sole and absolute discretion, may deem necessary and appropriate to the care, maintenance, support and education of my son, * * * and to accumulate any balance of said net income for the benefit of my said son, until he shall attain the age of twenty-one (21) years and thereupon to pay over to him any accumulated net income The construction of the will in respect of the powers in trust, must not b.e understood as implying that either the decisions cited above or section 194-a of the Surrogate’s Court Act clothe the donees with powers or authority that are explicitly given by the will to another. Properly speaking, the petitioners are not trustees of the infant’s property during his minority; they are trustees under the will of this testator, for the term stated in the will, and with all of the powers and discretion granted to them in the will. There are numerous decisions which define the duties and responsibilities of trustees who are directed to apply income to the support of an infant. (Moore v. Hegemon, 72 N. Y. 376, 384; Matter of McCormick, 40 App. Div. 73; New York Trust Co. v. Black, 178 App. Div. 4, affd. 223 N. Y. 703; Matter of G<mask>, 161 Misc. 720, 723; Matter of Welwood, 88 N. Y. S. 2d 882, 884; Matter of Souren, 199 Misc. 583, 587; Matter of Connolly, 71 *999Misc. 388; Matter of Smidt, 135 Misc. 578; Matter of Quinlan, 147 Misc. 483, 484; Matter of Rosenthal, 155 Misc. 295, 298; see, also, Matter of Beams, 251 App. Div. 222, affd. 276 N. Y. 590.) The fact that the same persons are both trustees and donees does not justify them in ignoring the difference between the two separate functions, particularly as rights or interests hereafter asserted may depend upon the status in which they hold funds.


In Bank of Centerville v. L<mask> (47 S. D. 374; 199 N.. W. 46) the plaintiff purchased the defendant’s obligation on the faith of a letter signed by the defendant, directed to the plaintiff, stating “ you are at liberty to purchase my note of this date for $12,500 if you desire. There are no offsets or conditions against this note.” The Supreme Court of South Dakota held that the defendant was estopped from setting up fraud or failure of consideration as a defense, and said: “We hold that the maker of this instrument, under the facts disclosed, is estopped from asserting any defense against the note in the hands of the purchaser made in good faith without any notice of the vices connected with the transaction at the time of the purchase. Even if the note was obtained by fraud, the defendant could not escape from the written assurance that induced the purchase.”


I agree with the majority that Dodson mandates our holding that the trial court did not err in submitting a punitive damage instruction premised upon the parties' conduct showing a "complete indifference and conscious disregard to the safety of others." However, it is well settled that MAI and its Notes on Use are not binding to the extent they conflict with the substantive law. "Procedural rules adopted by MAI cannot change the substantive law and must therefore be interpreted in the light of existing statutory and case law." State v. C<mask>, 941 S.W.2d 518, 520 (Mo. banc 1997) ; see also State v. Celis-Garcia, 344 S.W.3d 150, 158 (Mo. banc 2011). The apparent strain between the Dodson court's analysis and clear language of Sections 538,205 and 538.210 suggests that this instructional issue merits further review by the Supreme Court.


Among the theories the prosecutor advanced in support of a verdict of guilt on the count charging first degree murder were premeditated and deliberate murder, and murder during the commission of kidnapping and <mask>. The jury was instructed accordingly. Defendant claims he was deprived of various constitutional rights by the court's failure to also instruct the jury that it must unanimously agree whether defendant was guilty of murder based on premeditation and deliberation, or on the felony-murder doctrine. As defendant acknowledges, this court has repeatedly rejected the precise arguments he raises here. (People v. Moore (2011) 51 Cal.4th 386, 413, 121 Cal.Rptr.3d 280, 247 P.3d 515 ; People v. Taylor (2010) 48 Cal.4th 574, 626, 108 Cal.Rptr.3d 87, 229 P.3d 12 ; People v. Morgan (2007) 42 Cal.4th 593, 616-617, 67 Cal.Rptr.3d 753, 170 P.3d 129.) He presents no persuasive grounds for reconsidering this court's prior pronouncements on the issue.


GEICO relies on the following cases: City Chiropractic v State Farm (Civ Ct, Kings County, Feb. 24, 2016, Thompson, J., index No. 37182/14 [relying on Department of Insurance opinion letters dated Oct. 15, 2002 and Dec. 22, 2006]); Gotham Massage Therapy v State Farm (Civ Ct, Bronx County, Dec. 20, 2010, Taylor, J., index No. 30502/09); and Karina K. Acupuncture v State Farm (Civ Ct, Kings County, Jan. 3, 2012, G<mask>, J., index No. 1702/11) as well as various arbitration awards and judgments entered thereon, all holding that the insurer has no obligation to state any reason for an EUO of the provider. (The *533court opinions and. orders are annexed as exhibit 5 to GEICO’s moving papers, and the arbitration awards are annexed as exhibit 6.)


Where the sole proximate cause of the injuries sustained by the plaintiff employee is the negligence of a coemployee, since the Workmen’s Compensation Law has freed the fellow employee from liability giving to the injured party a remedy in compensation, the employer also is made immune to the injured employee’s suit. For if this were not so, then the employer against whom recovery were had under such circumstances would have the right to recover from the active tortfeasor, the coemployee, and the purpose of the statute freeing the latter of liability would be defeated. (Naso v. Lafata, N Y 2d 585; see, 2 L<mask>, Workmen’s Compensation [1959 Cum. Supp.], § 72.20, pp. 51-52.) That in Rauch v. Jones (4 N Y 2d 591) a derivative liability of the owner of the offending motor *343vehicle arising by virtue of the Vehicle and Traffic Law was involved does not distinguish it from the case at bar. In fact, it Was there held that recovery, against the owner of the motor vehicle whose liability was based solely on consent to its use implied by the statute, would be disallowed on a plea that its operator was the plaintiffs’ coemployee.


Violations of OSHA standards, however, do not provide a basis for liability under Labor Law § 241 (6). (See, Schiulaz v Arnell Constr. Corp., 261 AD2d 247 [1st Dept 1999]; see also, Greenwood v She<mask>, Lehman & Hutton, 238 AD2d 311 [2d Dept 1997].) Bender also maintains that he is entitled to summary judgment on his Labor Law § 241 (6) claims based upon 12 NYCRR 23-1.5. However, the First Department has recently held that this section, entitled “General responsibility of employers,” is insufficient as a predicate for Labor Law § 241 (6) liability. (See, Hawkins v City of New York, 275 AD2d 634 [1st Dept 2000].) Additionally, 12 NYCRR 23-5.1 has been held insufficiently concrete or specific to support a Labor Law § 241 (6) claim. (See, Schiulaz v Arnell Constr. Corp., supra.) Therefore, Bender may not predicate his Labor Law § 241 (6) claims on either 12 NYCRR 23-1.5 or 23-5.1.


Based upon all of the foregoing, this court must conclude that plaintiff is entitled to judgment in this case. The final issue to be determined is the sum to which plaintiff shall be entitled. Pursuant to subdivision b of section 170-a of the Domestic Relations Law, the value of the economic and property rights and interest to which the plaintiff is entitled "shall be calculated as though the defendant died intestate and as if the death of the defendant had immediately antedated the divorce.” At the conclusion of defendant’s divorce action before Mr. Justice Berman, the court at that time, and under date of July 19, 1976, rendered its decision. That decision of Mr. Justice Berman covered in great detail the income and assets of the respective parties herein, particularly that of Mr. Pe<mask>. Mr. Justice Berman concluded after hearing all of the evidence that "Plaintiff’s total net worth, taking into consideration his one-half equity in the Harrison home occupied by the defendant, and the value of his later acquired home at Atlantic Beach, and another parcel of property in which he has a small interest, according to the Court’s calculation amounts to approximately $1,650,000.” This court accepts and adopts Judge Berman’s evaluation of Mr. Pearson’s net worth at $1,650,000 "at a time immediately antedating the divorce”. Accordingly, therefore, the plaintiff is granted judgment against the defendant in the amount of $550,000, with costs and disbursements.


There is yet another reason for assessing punitive damages against the defendant, which has nothing to do with the plaintiffs interests but affects the interests of all those who purchase fire insurance (both business and personal). The court takes judicial notice of the fact that <mask> fires have doubled in the past 10 years and that such losses are running at an annual rate in excess of $125,000,000. Further, that as a result of this tremendous increase in arson losses, fire insurance premiums have risen dramatically. Defendants’ complete *827lack of interest in investigating its suspicion of arson is symptomatic of the insurance industry’s abandonment of its public obligation to defeat fraudulent claims in favor of seeking higher premiums from the public. The defendants’ own witness admitted they completely abandoned the defense of arson because the fire marshal’s report "didn’t contain enough evidence.” It is well established that the burden of proof in a civil case is far less than in a criminal case. In a recent press release, the head of the New York State Professional Firefighter’s Association said, "Fire insurance premiums have soared because insurance companies would rather hike rates and have consumers absorb the cost of arson than restore routine investigations of suspicious fires.” (Rap, Insurance Firms on Arson, Long Island Press, Feb. 28,1977, p 3.)


2. Detective Dugan was of the opinion that the three fires underneath the stairway were set after the fire had been extinguished. It was Dugan’s opinion that the fire beneath the stairway had been set by the Fire Department in order to benefit the families of the deceased fire personnel. While defense counsel knew that the Police Department believed that the Fire Department had planted certain evidence of <mask>, he did not know that it was Detective Dugan who had made such an accusation. Indeed, a memorandum prepared by Assistant District Attorney Weinger merely states that the Police Department accused the Fire Department of setting the fire. In People v Young (79 NY2d 365), the Court held that *723although defendant knew the information he did not know the information was from the witness. This was a Rosario violation (supra, at 369-370).


The evidence clearly shows that after the execution of this agreement they came together, and lived as man and wife. The rule of law is well settled that separation agreements, are annulled by any subsequent cohabitation between husband and wife, even though such cohabitation be for ever so- short a time, provided, when such cohabitation takes place, it was their inten*340tion to resume permanently the marital relation. C<mask> v. Murray, 3 Paige, 483.


The defendant is charged pursuant to the Juvenile Justice Act of 1978 (L 1978, ch 481). He is charged as a juvenile offender with a designated felony which is not an armed felony. A "juvenile offender” is "(1) a person thirteen, fourteen or fiteen years old who is criminally responsible for acts constituting murder in the second degree as defined in section 125.25 of the penal law and (2) a person fourteen or fiteen years old who is criminally responsible for acts constituting the crimes defined in section 135.25 (kidnapping in the first degree); 150.20 (<mask> in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 (sodomy in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree) or subdivision two of section 160.10 (robbery in the second degree) of the penal law; or defined in the penal law as an attempt to commit murder in the second degree or kidnapping in the first degree.” (CPL 1.20, subd 42.)


Finally, the court finds that Harbeck’s actions could be found to be a proximate cause of the accident (see Rhea v Green, 29 Col App 19). According to the testimony of Deputy Simm, Harbeck’s acts of striking the parked vehicles and his failure to stop caused the pursuit which resulted in the death of the infant. The fact that the chain of causation was interrupted by the intervening acts of the defendant Simm is not significant; Harbeck’s conduct had such an effect in producing the harm that reasonable persons might regard it as a "cause” (see Daas v Pe<mask>, 66 Misc 2d 95, 101-102, affd 37 AD2d 921; Restatement, Torts 2d, § 431; 1 NY PJI2d 212).


V~Many other States have accomplished modification of the felony-murder concept by specifically limiting the felonies involved. In the majority of these States the underlying felonies are, in the main, crimes of violence against the person (e.g., <mask>, rape, riot, robbery and burglary) where reasonable foreseeability indicates that serious harm might flow as a natural consequence therefrom, j Where a lesser felony is the underlying crime, a lesser degree of murder or manslaughter is provided. Thus, whether the codification be by way of specifying ■'ofiíy a felony of violence, as distinguished from a nonviolent felony, or where the legal limit of criminal responsibility is fixed by restricting the theory of proximate causation, all of the statutes involved curtail the broad and rigorous application of common-law felony murder. The result is the prevention of the stringent results which could conceivably flow if the common-law.concept were left unbridled.


Subdivision 3 of section 125.25 of the Penal Law provides that: “A person is guilty of murder in the second degree when: * * * (3) [ajeting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, <mask>, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants”.


The defendant was previously charged by indictment with the crime of criminal possession of marijuana in the second degree (Penal Law § 221.25), a class D felony, based upon a search of apartment B at 118 Bridge Street in the city of Plattsburgh, Clinton County, conducted on May 24, 2013. The indictment was dismissed by this court (see People v Hardy, 42 Misc 3d 211 [2013]), because the evidence before the grand jury was legally insufficient to support each and every element of the crime. Specifically, the evidence was insufficient to establish that the defendant knowingly possessed more than 16 ounces of a substance containing marijuana based upon “constructive possession” (see Penal Law § 10.00 [8]; People v Francis, 79 NY2d 925 [1992]; People v Manini, 79 NY2d 561, 573 [1992]; People v Pe<mask>, 75 NY2d 1001 [1990]; People v Torres, 68 NY2d 677, 678-679 [1986]). No admissible evidence was presented to the grand jury establishing, inter alia, that the defendant was the lessee of the apartment, resided there, maintained any personal clothing or effects there, or that he was regularly observed coming and going from those premises.


Nor did the IAS Court err in dismissing the fourth cause of action, seeking to set aside plaintiff’s 1979 settlement with She<mask>, as barred by the six-year Statute of Limitations for causes of action for fraud, rescission and duress set forth in CPLR 213, since defendant Shearson presented prima facie proof establishing that the six-year Statute of Limitations had expired in July of 1985, more than six years before the commencement of the underlying action, and since the plaintiff failed to produce evidentiary proof establishing that the limitation period was tolled by its inability to discover Shear-son’s alleged fraud until 1992 (see, Watts v Exxon Corp., 188 AD2d 74).


" 'security guard’ shall mean a person employed by a security guard company to principally perform one or more of the following functions within the state: "a. protection of individuals and/or property from harm, theft or other unlawful activity; "b. deterrence, observation, detection and/or reporting of incidents in order to prevent any unlawful or unauthorized activity including but not limited to unlawful or unauthorized intrusion or entry, larceny, vandalism, abuse, <mask> or trespass on property.” Defendants maintain that a plain reading of the definition indicates that the Act may be applied to armored car carriers. Plaintiff and interveners maintain that the statute is ambiguous at best and makes no reference to armored car carriers. This court is mindful of the previous case law that states "where statutory language is clear and unambiguous, this court in interpreting a statute will give effect to the words used by a coequal branch of government, unless 'such applica*567tion would cause an anachronistic or absurd result contrary to the contextual purpose of the enactment’ ” (People v Boston, 75 NY2d 585, 588 [1990]). However, the courts have not foreclosed review of a statute for a lack of unambiguity. Rather the courts have stated that: "[w]hile the statutes may appear literally 'unambiguous’ on their face, the absence of ambiguity facially is never conclusive. Sound principles of statutory interpretation generally require examination of a statute’s legislative history and context to determine its meaning and scope.” (New York State Bankers Assn. v Albright, 38 NY2d 430, 434 [1975].)


Courts have struggled to determine fault without much success. This court concludes that the Court of Appeals holding, that interest should be awarded from the date of the liability finding, should be applied; however, the court’s implied ratification of the Trimboli dictum should be disregarded. Further, the courts should directly acknowledge that the fault rule is simply unworkable. Delay need not be the fault of either party. In Love v State of New York (supra) and Zegman v State of New York (99 Misc 2d 473) delay resulted only from the trial court’s scheduling difficulties. In the case at bar, it is not possible to allocate all fault to either party. Defendant delayed entering the judgment of dismissal for *965seven months. Plaintiffs were justified in their timely appeal from that judgment. Without doubt, the delay in the appellate process cannot be ascribed to either side. Delay in commencing the damages trial resulted from the court’s trial backlog.2 The facts here illustrate just how artificial and unproductive the analysis of fault can be. Moreover, a fault analysis does not relate to the reason for the award of interest — to compensate a plaintiff for the defendant’s use of plaintiff’s funds. The plaintiff lacks access to the money while defendant has use of it, regardless of fault. Once liability is determined, the unliquidated nature of the obligation does not change the equity of the result (Gunn<mask> v State of New York, supra, 70 NY2d, at 924; Malkin v Wright, supra).


Consequently, while George might certainly have intended the offense of criminal mischief in setting fire to McFadden's property inside the vehicle, had the fire spread and destroyed the vehicle as well, he could have been charged with <mask>. Of course, as noted above, McFadden did not have to show that a jury would have found George guilty of arson on these facts. Rather, she need only have presented some evidence from which a jury could have found that she reasonably believed that the use of deadly force was immediately necessary to prevent him from committing arson. Yet, the reasoning behind Section 6.04(b)(1) that would have allowed the State to prosecute George for arson had the fire spread to the vehicle likewise supports the conclusion that McFadden could reasonably have believed that he was in the process of committing arson.


He also testified that DHS had explored placement with relatives, including the maternal grandmother, Candida Pe<mask>, whose home was appropriate, but who was later rejected as having an issue with her background. She had failed to disclose that her daughter had once been in foster care. In addition, her husband, the children's grandfather, had not ever visited the children while they were in foster care for the year before the hearing. Mr. Baker also said he spoke with a cousin, Sarah Thompson, *425who was approved for provisional placement but who did not want to be considered for placement. Finally, he said that he had spoken with Catherine Griggs, the children's maternal great-aunt, who was a potential placement. The paperwork on Ms. Griggs was completed on October 16, 2017, several days before the termination hearing.


It is well established that, when an instrument is expressed in terms that clearly and unequivocally give up a right or discharge a claim (such as a waiver or release or renunciation), “effect must be given to the intent of the parties as indicated by the language employed” (Metz v Metz, 175 AD2d 938, 939 [1991]). Concomitantly, in determining the extent to which Laurent gave up his claims upon decedent’s estate, the language of the instrument he executed must be read without resort to extrinsic evidence unless we find such language is ambiguous as a matter of law (Wells v She<mask> Lehman/Am. Express, 72 NY2d 11, 19 [1988]).


In my opinion there is ho such legal, moral, social or material distinction as the courts should recognize, between a separation *383immediately followed by the written agreement, and a written agreement immediately followed by the public separation. In each set of circumstances, the open or public separation is, in all probability, the culmination of considerable thought and conference, and the document merely records the previous oral stipulations of the parties. In either situation there is not much doubt that, prior even to the oral arrangements, there has been an actual separation in the marital relationship, in private if not in public. This view is sustained by authoritative decisions, for it has also been held, both on the principle of stare decisis and on well-considered reasoning, that a written separation agreement, executed immediately prior to the open or public separation of the parties, is valid. (Clark v. Fosdick, 118 N. Y. 7,12, and cases therein cited; C<mask> v. Murray, 3 Paige, 483, 501; Leary v. Leary, 136 Misc. 13; Marks v. Marks, 127 id. 416; Fives v. Fives, supra; Landes v. Landes, 94 Misc. 486, 499; affd., 172 App. Div. 758.)


The attempted appointment of one third of the trust principal in further trust for the lives of the two granddaughters is plainly invalid. The property appointed is the property of the donor of the trust who died in 1910 and the two grandchildren who were born respectively in 1918 and 1921 were not in being at the time of his death. Thus the attempted appointment for the benefit of the grandchildren violates the Statute against Perpetuities and is invalid. (Personal Property Law, § 11; Hillen v. Iselin, 144 N. Y. 365; Fargo v. Squiers, 154 N. Y. 250; Matter of Pe<mask>, 20 Misc 2d 1020; Matter of Sheedy, 20 Misc 2d 900, affd. 12 A D 2d 461; Real Property Law, §§ 178, 179.)


*848Section 275, so far as here material, provides that the indictment must contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition.” Section 276 of the Code gives the form of a simplified indictment. In People v. Weiss (252 App. Div. 463; revd. on other grounds, 276 N. Y. 384) Mr. Justice Johnston said: “ In determining the sufficiency of an indictment the test is: Does it identify the charge against the defendant so that his conviction or acquittal will bar a subsequent charge for the same offense; does it notify him of the nature and character of the crime with which he is charged so as to enable him to prepare his defense and to permit the court to pronounce judgment according to the right of the case? (People v. F<mask>, 244 N. Y. 413; People v. Williams, 243 id. 162.) In applying this test courts should be liberal, not technical. Thus construed, the indictment is sufficient and the defendants were not prejudiced by the failure to plead the crime charged in the identical words of the statute. To hold otherwise ‘ would be to sacrifice substance to form and abandon much that has been accomplished to simplify procedure upon criminal trials.’ (People v. Marcus, 235 App. Div. 397, 400.) ” Tested by that rule, the indictment is clearly sufficient. The second ground of the demurrer is overruled.


The court in Corrigan also relies on In re Jonathan R. (2016) 3 Cal.App.5th 963, 971, in which the Court of Appeal concluded section 245, subdivision (a)(1) and (4), created separate offenses of assault with a deadly weapon and assault by means of force likely to produce great bodily injury, respectively, because under Gonzalez each subdivision stated the elements of the offense. (Corrigan, supra , 34 Cal.App.5th at p. ----, 245 Cal.Rptr.3d 756, 2019 WL 1513202, *5.) But the Court of Appeal in People v. Brunton (2018) 23 Cal.App.5th 1097, 233 Cal.Rptr.3d 686 declined to follow In re Jonathan R. , noting the Supreme Court's holding in Vidana supported consideration of the legislative history, which the Brunton court concluded supported its holding the Legislature did not intend by its 2011 amendment to section 245 to create two separate offenses of aggravated assault. (Brunton , at pp. 1106-1107, 233 Cal.Rptr.3d 686.) We likewise follow Vidana and conclude the legislative history and statutory scheme show the Legislature intended to create a single offense of simple <mask>.


The court has inspected the grand jury minutes which disclose the following: after ascertaining that the Ferrara family was absent, and while Michael Smyth acted as lookout, James Robertson and Matthew McC<mask> broke a door security device and invaded the defendants’ home. Once inside, each went to a separate room and executed a carefully planned scheme to steal. The fruits of the criminal enterprise included a coin collection and cash. The exact amount stolen is difficult to determine, if only because neither burglar was honest with the other as to the nature of his larcenous gain. The defendants discovered the identity of the thieves and threatened to turn them over to the police unless a certain sum of money was received.


Defendant asserts that the jury received "conflicting" instructions regarding the mental state required for <mask>, a general intent crime, because the felony-murder instruction told the jury that a killing committed during arson is first degree murder "when the perpetrator had the specific intent to commit that crime." His argument is beside the point. The instruction on arson correctly informed the jury that to establish the elements of arson causing great bodily injury in violation of section *399451, subdivision (a), the prosecutor must prove (1) that "a person set fire to or burned or caused to be burned *77property," (2) "the fire was set or burning was done willfully and maliciously," and (3) "the fire caused great bodily injury to another." The definition of arson created no inconsistency with the felony-murder instructions and would not have confused the jury.


John R. LaCava, J. Defendant Louis Cipolla, a former United States customs officer and firearms instructor, is charged under indictment number 94-1680 with various crimes arising out of a bombing incident that took place on May 18, 1994. They include: attempted <mask> in the first degree; criminal possession of a dangerous weapon in the first degree; and arson in the third degree. By indictment number 94-0999, he is also charged with numerous other crimes, the commission of which were discovered upon the investigation of the charges underlying indictment 94-1680. Criminal possession of a weapon in the third degree (11 counts) and criminal possession of a dangerous weapon in the first degree are among those charges.


Hartford further argues that it would create an incongruity in the law if a carrier were made subject to common-law liability and, at the same time, have the statutory right of subrogation against itself to recover paid compensation benefits when an employee recovers in a third-party action (see Workers’ Compensation Law, § 29, subd 1). The Legislature, it is contended, could not have intended such an incongruous result. Professor L<mask>, however, has neatly answered this: "By now the law is becoming quite accustomed to apparent incongruities of this kind, what with corporations, insurers, and even individuals 'wearing different hats.’ Increasingly common is the spectacle of an insurance carrier acting as compensation subrogation plaintiff and as defendant insurer on a third party’s automobile liability risk. Problems of conflict of interest and of public policy may arise, but no one worries much any more about the conceptual problem of whether the carrier can sue itself. The present issue is not essentially different once it is recognized that the compensation carrier is being sued, not as compensation carrier, but as clinic operator or safety inspection service, in which role it is just as differentiable as the automobile liability insurer.” (Larson, Workmen’s Compensation Insurer as Suable Third Party, 1969 Duke LJ 1130-1131, supra; citations omitted.)


a new judge rule on Ortiz’s 28 U.S.C. § 2254 habeas application on the ground that they were legally unsupported, denied Ortiz leave to proceed in forma pauperis (IFP), and certified that an appeal would not be taken in good faith. In the second appeal, the district court imposed sanctions, denied Ortiz leave to proceed IFP, and certified that an appeal would not be taken in good faith. Ortiz moves this court for leave to proceed IFP in both appeals. By seeking leave to proceed IFP, Ortiz is challenging the district court’s certifications that his appeals are not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). To obtain leave, Ortiz must show that he is financially eligible and that he will present a nonfrivolous issue for appeal. See C<mask> v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). If an appeal is frivolous, this court may dismiss it sua sponte. 5th Cir. R. 42.2. In appeal No. 20-40508, Ortiz seeks a certificate of appealability (COA) to challenge the district court’s denial of the two nunc pro tunc motions. Because the motions were not authorized by rule or statute and could not provide the relief sought therein, we DENY a COA as unnecessary to appeal them. 28 U.S.C. § 2253(c)(1); see Romero-Rodriguez v. Gonzales, 488 F.3d 672, 677–79 (5th Cir. 2007); United States v. Early, 27 F.3d 140, 141–42 (5th Cir. 1994). Rather than remand, we DISMISS Ortiz’s appeal from the denial of the motions as frivolous. See Early, 27 F.3d at 141-42. In light of Ortiz’s failure to identify a nonfrivolous issue to raise in this appeal, his motion for leave to proceed IFP in this appeal also is DENIED. See Baugh, 117 F.3d at 202 & n.24; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5th Cir. R. 42.2. In appeal No. 20-40702, Ortiz fails to address the district court’s imposition of sanctions. Accordingly, he has waived review of that issue and fails to present a nonfrivolous issue for this court’s review. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Baugh, 117 F.3d at 202; Howard,


In People v. Pe<mask> (188 Misc. 744 [1947]), at page 745 the court stated, 1 ‘ These observations suffice to show that even under our present Penal Law [referring to § 722] the offense of disorderly conduct is at least closely related to the crime of misdemeanor. It is in the nature of a crime and has all the attributes of a crime. The same rules of law and procedure are followed with regard to it as in the case of a crime. The right to a summary arrest exists; the complaint must be definite and state a specific charge; the burden of proving a defendant guilty is upon the People and must be established beyond a reasonable doubt; a trial on a charge of disorderly conduct constitutes jeopardy within the meaning or the Code of Criminal Procedure and the Constitution. ”


(2) A tenant in common of the fee has a title in the fee, separate and distinct from that of his cotenants with only a unity of possession between them. (3) A tenant in common of the fee has a right of possession exclusive against all other persons, except as to his cotenants or as to any incumbrances placed on it by the tenancy in common. (4) One tenant in common may maintain summary proceedings to evict a lessee of the tenancy in common who is holding over, even though his cotenant did not unite in the summary proceeding with him, but instead may have given or expressed a desire to give a new lease to the holdover tenant. *459(5) Under the provisions o£ subdivision (d) of section 8 of the commercial Bent Law, a tenant in common of the fee could be a “ landlord [who] owned or acquired an enforceable right to buy or take possession of the building1 or other rental area on or before January twenty-fourth, nineteen hundred forty-five ”, and thus would be entitled to maintain summary proceedings in his own name or in the name of the cotenancy to recover possession of the premises for his immediate and personal use, provided he could establish that he met the other requirements of the subdivision; or he could be “ a person who acquires title to the building or other rental area subsequent to January twenty-fourth, nineteen hundred forty-five,” and thus would be entitled also to maintain summary proceedings in the same manner and under the same conditions as stated above. Hence, tenants in common do not hold the fee as if they together constituted one person as is the case in joint tenancy where the fictitious unity of the tenants gives an entirety of interest whereby they hold together but one estate in the land. Though the estates of these five persons here mentioned were created by the same deed so that it may be said the four unities of time, title, interest and possession were present at the creation of the tenancy (Walsh on Property, § 200, p. 354), a tenancy in common was the estate granted by the deed to the five named individuals in their own right. (Real Property Law, § 66.) Tenancies in common are characterized by unity of possession, the only unity which exists in all forms of co-ownership, as there is no necessity for unity of interest or title. A tenant in common, though owner of an undivided share only in the land, differs from a joint tenant, in having a several and distinct estate therein, and except for the fact that he has not the exclusive possession, he has the same rights in respect to his share as a tenant in severalty. Each tenant in common holds his title and interest independently of the other tenants in common. (2 Tiffany on Real Property, § 426; Le Vee v. Le Vee, 93 Ore. 370; Tilton v. Vail, 42 Hun 638, 640; Chittenden v. Gates, 18 App. Div. 169, 172; Manhattan Real Estate Assn. v. Cudlipp, 80 App. Div. 532, 535.) Thus, a tenant in common may transfer, devise, convey, lease, mortgage or otherwise incumber his interest in the land, without seeking the consent or joinder of his cotenants to the transaction. (McKay v. Mumford, 10 Wend. 351; Valentine v. Healey, 178 N. Y. 391; B<mask> v. Mulligan, 191 N. Y. 306.)