The indictment charges <mask> in the second degree and alleges that the defendant Carlson manipulated “ certain switches and machinery ” controlling the operation of the elevator in the apartment house of which he was superintendent “ in a culpably negligent manner ” and that “ by reason of the acts, procurement, omissions and culpable negligence of the defendant, said elevator suddenly and without any warning thereof, ascended, the elevator door thereto and the gate thereon being open and without any one pushing any button therein, thereby causing said Renee Alprin to be thrown against the top of the elevator door, and sustaining divers wounds and injuries as a result of which she died on the aforesaid date, said acts of the defendant not being justifiable or excusable.”


Citing Batchelor, supra, 229 Cal.App.4th at pages 1116 through 1118, 178 Cal.Rptr.3d 28, defendant contends that the trial court erred when it refused to advise the jury that he had been convicted of gross vehicular <mask> in the first trial. In Batchelor, as here, at the first trial the defendant was convicted of gross vehicular manslaughter, but the jury could not reach a verdict as to the murder charge. Also, as here, at the second trial *641the defendant was convicted of murder. The court in Batchelor held that the trial court committed reversible error because it did not advise the jury in the second trial that he had been convicted of gross vehicular manslaughter in the first trial. (Id . at pp. 1116-1117, 178 Cal.Rptr.3d 28.) The court reasoned that the failure to so advise the jury gave it the "false impression" that the defendant would be "unpunished" if he was not convicted of murder. (Ibid . )


The defendant’s contention that the evidence was legally insufficient to establish that he acted recklessly in causing the death of the victim is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Huddleston, 101 AD3d 901 [2012]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of <mask> in the second degree beyond a reasonable doubt (see Penal Law § 15.05 [3]; People v Licitra, 47 NY2d 554 [1979]; People v Johnson, 205 AD2d 707, 708 [1994]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).


On September 21, 1978 defendant, then approximately 18 years of age, entered a plea of guilty to <mask> in the first degree before Honorable John R. Starkey, now retired. On November 17, 1978 he was sentenced to a minimum of 5 and a maximum of 15 years in State prison. The sentence was appealed to the Appellate Division, Second Department, on the grounds of excessiveness. The Appellate Division affirmed, without opinion, on June 11, 1979. Defendant was released on parole on June 20, 1984. Since that time he has been detained in the Immigration and Naturalization Processing Center detention facilities, pending deportation.


APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Mike Camacho, Judge. Reversed and remanded with directions. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, Charles S. Lee, Daniel C. Chang and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ Maria Duarte pleaded guilty in 2005 to two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 and admitted criminal street gang (§ 186.22, subd. (b)(1)) and firearm enhancement allegations (§ 12022.53, subds. (b) & (e)). On March 1, 2021 the superior court summarily denied Duarte’s petition for resentencing under section 1170.95, ruling Duarte was ineligible for relief because she had been convicted of attempted murder, not murder. While Duarte’s appeal was pending, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which amended section 1170.95 to expressly include within its reach certain convictions for attempted murder and voluntary <mask>. In light of this new legislation, we remand Duarte’s case for the superior court to permit Duarte to amend her petition and, following amendment, to appoint counsel for Duarte and to determine in accordance with the procedures described in section 1170.95, subdivision (c), and People v. Lewis (2021) 11 Cal.5th 952 (Lewis) whether Duarte has made a prima facie showing she is entitled to relief. FACTUAL AND PROCEDURAL BACKGROUND 1. Duarte’s Convictions for Attempted Murder According to testimony at Duarte’s preliminary hearing and admissions by Duarte at her plea hearing, Duarte drove a


everyone within a kill zone, can support an intent to kill an individual. Also, Smith was shot when he was behind Pascal and therefore in the line of fire. Evidence that a shooter purposefully fired at the victims, one of whom was positioned one behind the other, “with each directly in his line of fire, can support an inference that he acted with intent to kill both.” People v. Smith (2005) 37 Cal.4th 733, 743.) Thus, there is evidence of an intent to kill someone in the group the shooter fired into, and that defendant, a fellow gang member with the shooter, drove the truck in a way to facilitate the attempt to kill. Since, as the Supreme Court held in Stone, “a generalized intent to kill someone, but not necessarily a specific target, is sufficient” to support an attempted murder conviction (Stone, supra, 46 Cal.4th at p. 136), there is sufficient evidence to support the attempted murder verdict under Stone, as there was substantial evidence of an intent to kill someone in the group.7 The People shall have the option of retrying petitioner on the attempted murder charge. II Remaining Contentions Petitioner’s remaining contentions, that he had inadequate notice he could be principal for the purposes of the section 12022.53 enhancement, that failure to instruct on attempted voluntary <mask> deprived him of due process, that cumulative error warrants reversal, and that failure to raise any of his habeas contentions at trial or on appeal constituted ineffective assistance, are mooted by our reversal of the attempted


I am confronted with two versions of a homicide, but, as distinguished from "Rashomon,” both come from one and the same source. It is essential that there be a factual determination, ab initio, as to which version is credible since the original version spells out an intent to kill (which defendant seeks to have mitigated to <mask> first degree on the basis of the claimed influence of "extreme emotional disturbance”). The subsequent story spells out no intent to kill, but *140rather an accidental death, based on self-defense. In my judgment, the first set of confessions represents the truth, for the following reasons:


Because the jury expressed the possibility of being unable to reach a unanimous verdict, the trial court referred the jury to CALCRIM No. 3550 and emphasized their duty to try to reach a unanimous verdict. The trial court also referred the jury to CALCRIM No. 640 regarding the “range of determinations” that could be made with respect to the murder count and its lesser included offenses. As delivered to the jury, this instruction provides in relevant part: “1. If all of you agree that the People have proved beyond a reasonable doubt that a defendant is GUILTY of first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms for Count One. “2. If all of you cannot agree whether a defendant is guilty of first degree murder, inform me that you cannot reach an agreement and do not complete or sign any verdict forms for Count One. “3. If all of you agree that a defendant is NOT GUILTY of first degree murder but also agree that a defendant is GUILTY of second degree murder, complete and sign the form for NOT GUILTY of first degree murder and the form for GUILTY of second degree murder. Do not complete or sign any other verdict forms for Count One. “4. If all of you agree that a defendant is NOT GUILTY of first degree murder but cannot agree whether a defendant is guilty of second degree murder, complete and sign the form for NOT GUILTY of first degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms for Count One. “5. If all of you agree that a defendant is NOT GUILTY of first degree murder and NOT GUILTY of second degree murder, but also agree that a defendant is GUILTY of voluntary <mask>, complete and sign the forms for NOT GUILTY of first degree murder and NOT GUILTY of second degree murder and the form for GUILTY of voluntary manslaughter. Do not complete or sign any other verdict forms for Count One.


Petitioner is the brother of a homicide victim, Darren McNamara. John Bonizio (Bonizio) was hired by Peter Rosner to avenge an insult to his daughter Cheryl Rosner. On August 25, 1982 Bonizio and an unknown companion carried out their contract by bludgeoning Darren McNamara to death. Bonizio was convicted of first degree <mask> and sentenced in January 1984 to a term of imprisonment of 6 to 18 years, which he is serving. At his sentencing, the Assistant District Attorney stated that Bonizio was involved with organized crime and that he had been sentenced to a concurrent term of imprisonment for certain felonies related to organized crime. Petitioner alleges that Bonizio, and Bonizio’s associates, threatened his life, that of a witness to the crime and that of an undercover police officer.


*458On the facts established on the. trial defendant might have been indicted for the crime of murder in the second degree. There was a possible view of the facts which would justify a verdict other than conviction of murder in the first degree or an acquittal. The jury might have ignored the element of the crime charged in the indictment that defendant was engaged in the commission of a felony, which raised it to murder in the first degree (Penal Law, § 1044; People v. Miles, 143 N. Y. 383, 389), and found merely that defendant assaulted Biggs with a loaded revolver, without deliberation and premeditation, but with intent to kill him, and killed Severance instead. Then the offense would be murder in the second degree. (People v. Spohr, 206 N. Y. 516, 521.) Beyond that was room for the exercise of a power to find the defendant guilty of <mask> in the first or second degree, depending upon the absence of the intent to kill. (Penal Law, §§ 1049, 1050, 1052.)


The court finds that this is the case here. There is no direct proof of intoxication submitted, or that such intoxication caused the accident. However, the defendant presents the affidavit of the office manager of defendant’s law firm, Christopher Roselli, who states that the police report revealed that plaintiffs assignor, Luis Vargas, was arrested at the accident scene on charges of driving while intoxicated. He further states that he spoke to Orange County Assistant District Attorney Steven Goldberg, who informed him that Vargas was indicted on 34 charges, including two counts of driving while intoxicated. A formal request for a copy of the indictment was made, and the results of that request, a copy of the indictment, is annexed to defendant’s reply papers. Among other things, the indictment *500contains not only a charge of driving while intoxicated, but also of vehicular <mask> in the first degree, as a passenger in Vargas’s vehicle was ejected and killed as a result of his operation of the vehicle while under the influence of alcohol. Other felony counts are based on injuries to other passengers. Thus, in addition to allegedly driving while intoxicated, his operation of the vehicle may have resulted in his having been injured while committing a felony.


This case has a unique history. On or about May 20, 2005, the plaintiff was involved in a violent altercation with Anthony J. Sciortino. In the course of the altercation, the plaintiff struck Sciortino in the head and neck with a baseball bat, and he subsequently died. The plaintiff was indicted for this incident for <mask> in the second degree. At trial he asserted the defense of justification, and was acquitted of the charge. On or about April 28, 2006, the Sciortino estate brought a wrongful death personal injury action against the plaintiff. Plaintiffs insurer initially disclaimed coverage and defense, although ultimately it did provide a defense for the plaintiff. However, it has steadfastly denied any duty to indemnify the plaintiff.


If the jury were not satisfied that it was justifiable, they were next to inquire whether it was excusable? It is so under our law, when committed by accident of misfortune, in the heat of passion, upon a sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used. The nature of the weapon used, and the manner in which it was used, must .be mainly instrumental in determining this question. Thus if, in the heat of passion, upon sufficient provocation, or upon a sudden combat, a man had used his walking stick, or a butcher, in his stall, had used the knife that lay near him, or a cooper had used the adz with *66which he was then at work, and had given a blow which was fatal, bnt without any intention to take life, the homicide might be excusable. But that could hardly be where the weapon used was of a dangerous character, constructed solely for the purpose of taking life, and which could scarcely be fired off without hazarding it. If, in the melee, the prisoner had used the pistol, as he might any other hard substance found at the instant in his pocket, by striking a blow with it, calculated rather to wound than to kill, but had killed, it might be attributed to accident or misfortune. But that could not with propriety be predicated of the act of intentionally firing the pistol, and, unless such firing was justifiable, it was either murder or <mask>.


The court’s instructions, however, did not leave the jury free to convict of the lesser crime. In giving such instructions the court committed serious error, and I think the exceptions which I have pointed out are sufficient to *481raise the question here. The defendant was found guilty of <mask> in the first degree and was sentenced to imprisonment for not less than ten nor more than twenty years.


Here, Fields seeks to take advantage of the legislature's decision to repeal an existing provision, rather than relying on a newly enacted provision; thus, the first prong of the inquiry counsels against retroactive application. Under the second prong, we must determine whether the 85% mandatory minimum prison term provision of § 565.024.2 affected the penalty or punishment of first-degree involuntary <mask> as it existed at the time of Fields's offense.


Petitioner was convicted of <mask> in the first degree and sentenced on September 23, 1977 to an indeter*72mínate period of imprisonment of a minimum of 3 and a maximum of 10 years. Prior to being sentenced, he had never been convicted of a crime. The instant crime had been characterized by respondents in their parole summary as “reportedly a family dispute, revenge type offense .” Petitioner became eligible for parole on November 16,1979, and before that date, he attended a parole hearing on October 23, 1979. In a remarkably brief hearing — [the record only consists of 4y2 double spaced typewritten pages] — petitioner’s conduct and activities during his imprisonment were the subject of a cursory inquiry by the Parole Board. At the hearing’s conclusion, the Parole Board denied petitioner’s early release and stated in its written decision:


The Judge charged the jury that the prisoner was on trial for murder, but might be convicted of <mask>. There being no doubt that he had perpetrated the homicide, the only question was as to the nature of the offense. If they could find that he had intended to kill, then it was murder, but if they could not find such an intention then the homicide was manslaughter, and being perpetrated in a cruel and unusual manner, it was the second degree of that crime.


The defendant, who had been convicted, on a plea of guilty, of <mask> in the first degree and assault in the first degree, appealed from the trial court’s dismissal of his motion to correct a sentence that was imposed in an illegal manner. The defendant had claimed in his motion that he was incompetent at the time of sentencing and that the sentencing court failed to order, sua sponte, a competency evaluation and hearing before imposing sentence. The defendant submitted with his motion to correct a police report, psychiatric evaluation and records from the Department of Correction that had become available after he was sen- tenced, all of which concerned his mental illness and psychiatric treat- ment prior to sentencing. The trial court dismissed the defendant’s motion to correct for lack of subject matter jurisdiction, concluding that the motion challenged his competency at the time he pleaded guilty and, thus, constituted a collateral attack on his conviction. The Appellate Court upheld the trial court’s dismissal of the defendant’s motion, con- cluding that he had failed to raise a colorable claim that he was incompe- tent at the time of sentencing. On the granting of certification, the defendant appealed to this court, claiming that the Appellate Court incorrectly concluded that the trial court lacked subject matter jurisdic- tion to correct his sentence on the ground that he had failed to allege a colorable claim within the scope of the rule of practice (§ 43-22) authorizing a judicial authority to correct an illegal sentence or a sen- tence imposed in an illegal manner. Held that the Appellate Court improp- erly upheld the trial court’s dismissal of the defendant’s motion to cor- rect, as the factual allegations and evidence the defendant presented in connection with his motion made clear that he raised a colorable chal- lenge to the character of the procedure that led to the imposition of his sentence, rather than the underlying conviction, and, thus, his claim nominally fell within the scope of § 43-22: although the prosecutor and defense counsel during the sentencing proceeding had discussed the defendant’s psychiatric background and diagnosis of schizophrenia, the factual allegations and evidence the defendant offered in support of his claim demonstrated a possibility that a factual basis necessary to establish jurisdiction existed, as the police report and psychiatric evalua- tion showed that he previously had suffered from hallucinations, had attempted to commit suicide, and had not received treatment for his mental health for many years, and the department records showed that he had refused to take his prescribed medication and had suffered from auditory hallucinations approximately nine months before sentencing; moreover, contrary to the state’s assertion that the trial court decided the merits of the defendant’s claim and determined that the sentencing procedure complied with all constitutional and statutory requirements, that court’s decision was limited to the issue of jurisdiction, as the court never explicitly ruled on the merits of the defendant’s claim or made findings as to whether the proffered evidence overcame the presumption of competency. Argued March 25—officially released October 21, 2021*


Citing to this court's opinion in People v. Batchelor (2014) 229 Cal.App.4th 1102, 178 Cal.Rptr.3d 28 (Batchelor ), defendant contends that the trial court erred by denying his request that the jury for his retrial be informed that he had been convicted in a prior trial arising out of the same underlying facts of gross vehicular <mask> while intoxicated, instead informing the jury only that he had been convicted "of two of the three charges brought by the district attorney." We agree that the trial court's instructions to the jury were erroneous in several respects, including this one, and that these errors require reversal of the second degree murder conviction.


of murder because of Senate Bill No. 1437’s changes to the definition of the crime. (Lewis, at p. 957; Gentile, at p. 843.) In determining whether a petitioner has carried the burden of making a prima facie showing he or she falls within the provisions of section 1170.95 and is entitled to relief, it is appropriate to examine the record of conviction, “allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) 2. Reyes’s Appeal In accord with the procedures described in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, we appointed counsel to represent Reyes on appeal. After reviewing the record, Reyes’s counsel filed a brief raising no issues. Appointed counsel advised Reyes on November 15, 2021 that he had 30 days after he filed his no-issue brief to submit a brief or letter raising any grounds of appeal, contentions or arguments he wanted the court to consider. We provided a similar notice to Reyes on the same date. On December 13, 2021 we received a two-page typewritten supplemental letter brief from Reyes pointing out that the Legislature had enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which amended section 1170.95 to expressly include within its reach certain convictions for attempted murder and voluntary <mask>. As Reyes indicates in his letter, section 1170.95, subdivision (a), now provides, “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural


Assuming the results are the same after this respondent has exhausted his appeals, if any, the undersigned finds that the language in Riggs (supra) may ultimately be applicable to the within situation. While not suggesting that a temporal analysis is determinative in cases such as this, had Deanna Palladino not post-deceased her mother so soon after Dianne Edwards’ death, Brandon Palladino’s expectation from his wife’s estate might not include the assets of his mother-in-law’s estate. In this case it is clear, however, that but for Brandon Palladino’s actions, there would be no inheritance to be obtained through his wife Deanna. Respondent made that possible; and, upon his conviction for <mask> in the first degree (a class B felony defined under Penal Law § 125.20 [1] as intentionally causing serious physical injury to an individual resulting in such individual’s death), he should not be allowed to profit in any way thereby.


With this in mind an analysis of the Pennsylvania case, heretofore discussed, justifies the conclusion that malice is the fact which differentiates murder from voluntary <mask>. In that respect the Pennsylvania law differs from ours. Under our statutes an essential characterization of murder in either degree is the intent — “ a design to effect the death of the person killed, or of another.” (Penal Law, §§ 1042, 1046.) If the killing be with deliberation and premeditation; that is with malice, under our statutes it is first degree murder; if without deliberation and premeditation, i. e., malice, it is murder in the second degree.


Roberts argues that because the jury could consider voluntary <mask> as a lesser included offense to the second-degree murder charge in count 3, the court should have given felony-murder instructions for counts 1 and 2 that allowed the jury to consider voluntary manslaughter as an alternative underlying felony to intentional second-degree murder. Roberts claims that if the court had included a voluntary manslaughter felony- murder instruction, the jury would have been more inclined to convict him of voluntary manslaughter on the underlying offense, rather than second-degree murder. Roberts acknowledges that he did not request the felony-murder voluntary manslaughter instruction.


Harold J. Rothwax, J. The defendant, having been indicted for <mask> in the second degree (Penal Law, § 125.15), moves to dismiss the indictment upon the ground that the prosecution herein is untimely under the applicable Statute of Limitations. (CPL 210.20, subd 1, par [f]; 30.10, subd 2, pars [a], [b]; see People v O’Neil, 107 Misc 2d 340, 341.) The court has also reviewed the Grand Jury minutes and finds the evidence sufficient to support the charge filed herein and the proceedings to have conformed in all respects with the procedures outlined in the defendant’s motion.


The "note on use" following AMI Crim. 2d 1004-A provides that this instruction is used with AMI Crim. 2d 1004 when the defendant is asserting the defense of extreme emotional disturbance. The note further instructs to use AMI Crim. 2d 301 (Lesser Included Offenses: Introductory Instruction) and AMI Crim. 2d 302 (Lesser Included Offenses: Transitional Instruction) with the bracketed language for extreme emotional disturbance <mask> with the instructions for the murder offense(s) being submitted, then this instruction, followed by AMI Crim. 2d 1004.


The Court of Appeals found the evidence insufficient to sustain the conviction of <mask> in the second degree or any lesser included offense, which would include, of course, criminally negligent homicide. Noting the possibility that a disagreement might have led to a heated argument, prompting the defendant to seize the weapon in order to threaten the deceased, the Court found that it was equally possible that the production of the gun was unrelated to any disagreement, "perhaps displayed in friendship and carelessly discharged as a result of ordinary negligence.” (Supra, at 57.) Most significantly though, the Court found that "even assuming that the weapon was in the defendant’s hand at the time of the shooting, neither this circumstance nor any other factors in the case compels the inference that the manner in which the defendant handled the weapon, if negligent, rose to the level of a criminal act [citation omitted].” (Supra, at 57-58.)


This court analyzes jury instruction challenges in a four-step progression. First, it considers whether the issue is properly reviewable based on preservation and jurisdiction standpoints; second, this court determines whether the instruction was legally appropriate; third, it determines whether the instruction was factually appropriate; and finally, if an error occurred, this court will determine whether it requires reversal. State v. Green, 311 Kan. 960, 983, 469 P.3d 1228 (2020). As a preliminary matter, Aue objected to the inclusion of the PIK Crim. 4th 52.050 jury instruction language in the instructions for reckless second-degree murder, voluntary <mask>, and involuntary manslaughter—arguing it was unnecessary and including it three times overemphasized its importance. Thus, Aue preserved this issue for review. See State v. Perez-Medina, 310 Kan. 525, 533-34, 448 P.3d 446 (2019).


the house, and where the victim, who was not part of the alter- cation, had been standing on the porch. Similarly, in State v. Moore, 32 we affirmed the defendant’s convictions for assault in the first degree and use of a weapon to commit a felony (and his sentence to two consecutive terms of 20 to 20 years’ imprisonment), when, without taking any real “‘aim,’” the defendant fired one shot toward a house with little indication anyone was home, the shot pierced the house, and it hit the victim who was sitting inside, paralyzing her. [9] Under the factual basis presented here, a trier of fact could infer that Morton, intentionally firing a lethal weapon toward the front of the house and porch where several people were congregating, had intended to cause the death of “a per- son.” While there was no evidence Morton intended to harm any specific individual, an indiscriminate killer is just as culpable as one who targets a specific person. 33 The Court of Appeals, by concluding the facts better fit the crime of unlaw- ful discharge of a firearm, failed to recognize that the facts could support that level of culpability, and that they indisput- ably supported <mask>, and thus, it was not an abuse of discretion for the court to impose a commensurate level of punishment. [10] And while we note that the sentencing range for unlaw- ful discharge is greater than that of manslaughter, it appears the Court of Appeals also used its reasoning as to what crime it believed better fit the facts to minimize the substantial bene fit Morton received from the plea bargain agreement. The sentencing court took into account that but for his plea bar- gain agreement, Morton would have been facing a charge of second degree murder—in addition to unlawful discharge and two charges of use of a firearm—instead of the manslaughter and one count of possession of a firearm he was convicted State v. Moore, 276 Neb. 1, 3, 751 N.W.2d 631, 633 (2008). See People v. Perez, 50 Cal. 4th 222, 234 P.3d 557, 112 Cal. Rptr. 3d 310 (2010). - 369 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. MORTON Cite as 310 Neb. 355


*605( People v. Barton, supra , 12 Cal.4th at p. 201, fn. 8, 47 Cal.Rptr.2d 569, 906 P.2d 531.) These facts were not "evidence that a reasonable jury would find persuasive" to show Johnson committed a lesser included offense to first degree murder. ( Ibid. ) The trial court's failure to instruct on second degree murder or <mask> was not error.


In this vein, defendant argues that, if he were to have been accused of the commission of any of such crimes of violence or threatened violence as second degree arson, first degree burglary, criminal mischief in the first degree, second degree kidnapping, <mask>, or first degree rape, robbery or sodomy, he could expect to receive a maximum sentence of imprisonment of 25 years, if convicted.


Prior to the amendment of CPL 310.70, effective September 1, 1974, this defendant undoubtedly could not be retried on the <mask> in the first charge under subdivision 2 of that section which read as follows: "2. Upon the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried upon an unresolved count of an indictment when such unresolved count is consecutive, as that term is defined in subdivision two of section 300.30, as to every count upon which the jury did render a verdict, whether of guilty or not guilty.”


Defendant has appeared in this action and moved to dismiss plaintiffs complaint for lack of subject matter jurisdiction and *523failure to state a valid cause of action. Defendant does not deny the 14-year relationship with plaintiff, the New Mexico “marriage” ceremony or that the parties entered into a civil union in Vermont. Defendant instead characterizes plaintiffs action as a frivolous contrivance in order to <mask> to steal defendant’s real and personal property and to avoid her eviction from defendant’s home. She states that plaintiff has no legal rights to any of defendant’s property and that plaintiff has not contributed anything to defendant’s property. In addition, defendant maintains that as the parties are not legally “married” any relationship she has with any other person is not adultery but rather “my own business.”


The parties offered conflicting testimony regarding VW's visitation with Williams. Williams described a warm relationship with his daughter, centered on church, and he testified that they played basketball together. He testified that visitation was hampered by Lofton's refusal to respond to texts or to make him aware of VW's sports and school events. Lofton testified that Williams inconsistently exercised his visitation, that he did little to make VW feel comfortable at his home, and that VW had spent the night at Williams's house twice in twelve years. Lofton explained that Williams failed to take VW to extracurricular activities when she was with him and that he made no <mask> to see VW on her birthday. We defer to the circuit court on credibility determinations, Ford v. Ford , 347 Ark. 485, 65 S.W.3d 432 (2002), and in light of our deference to the circuit court's ability to weigh the credibility of the witnesses, we hold that the circuit court did not err in its visitation determination. The circuit court thoughtfully addressed the visitation issue to fulfill VW's best interest and that also grants Williams the standard visitation he requested as he exercises his right consistently. We find no error in the circuit court's visitation order, and we affirm.


Detective Petrak again left defendant in the library and returned at 4:07 p.m. with Detective Ferrari, who had previously obtained a written statement from defendant at 3:30 p.m. during one of Detective Petrak’s absences. On this occasion, in an apparent <mask> to wrap up any possible loose ends, Detective Petrak also wore a concealed recording device during Detective Ferrari’s questioning. A 26-minute recording of defendant’s statement resulted.


California's felony murder rule is not worded so restrictively. It applies broadly to all killings "committed in the perpetration of, or <mask> to perpetrate" one of the statutorily enumerated felonies. ( Pen. Code, § 189.) That being the case, we are reluctant to impose any additional limitations on the causal requirement for felony murder in this state. We see no reason in law or logic why the felony murder rule, when otherwise applicable, cannot be applied when the victim dies as a result of inaction by defendant.


With respect to defendant’s contention that the court did not have jurisdiction to reduce the charge to an <mask>, under the Penal Law, “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). An attempt exists as an identifiable, *56separate offense from the crime that is being attempted (see People v Campbell, 72 NY2d 602, 605 [1988]). The Court of Appeals has held that where a penal statute imposes strict liability for committing certain conduct, with no result component, an attempt is legally cognizable, since a person can attempt to engage in that conduct (see People v Aponte, 16 NY3d 106, 109 [2011] [attempted stalking]; People v Prescott, 95 NY2d 655, 659 [2001] [attempted driving while intoxicated]; People v Saunders, 85 NY2d 339 [1995] [attempted criminal possession of a weapon]). Similarly here, the crime of patronizing a prostitute contained no result component. Rather, the statute proscribed particular conduct, either the payment or the agreement to pay a fee to another person pursuant to an-understanding that, in return therefor, such person (or a third person) will engage in sexual conduct, or the solicitation or the requesting of another person to engage in sexual conduct in return for a fee. There is nothing impossible about attempting to engage in such a course of conduct, since there can be an attempt to make such a solicitation or agreement, for example, if the communication never reached its intended recipient (see generally Aponte, 16 NY3d at 109). Thus, a defendant “may legally and logically attempt to act in the manner proscribed by this penal statute” (Saunders, 85 NY2d at 341), i.e., attempt to patronize a prostitute (see e.g. People v Ward, 123 AD3d 590 [2014]; People v Rodriguez, 56 AD3d 574 [2008]; People v Gallicchio, 189 Misc 2d 182 [Westchester County Ct 2001]; People v Sharif, 141 Misc 2d 80 [Crim Ct, NY County 1988]).


Dr. Allee had brief telephonic conversations with Roe on February 9 and 10, 2015, to ask Roe "a few last questions." At Dr. Allee's request, Roe emailed photographs of her bathing suits. Dr. Allee contacted all individuals the parties had identified as potential witnesses, but did not <mask> to contact anyone who had been mentioned during the investigation but not fully identified.


The defendant appeared by attorney and answered. There has been a substitution of attorneys for the defendant. According to a statement, unsworn to by the attorney for the defendant, an <mask> has been made to substitute the defendants Huff for the defendant Redeye in said Peacemakers’ Court action on the grounds of a conveyance on June 1, 1965, from Redeye to the Huffs.


Administrative agencies may not impose additional requirements which have not been mandated by the Legislature. In Acorn Employment Serv. v Moss (supra), the Court of Appeals disallowed the commissioner’s <mask> to require employment agencies, inter alla, to obtain its approval before selling business records to other agencies or before providing night telephone service. The court stated (292 NY, at p 153): “There can be no doubt that the functions thereby adjudged to belong to the Commissioner are legislative in character. Nor can there be any doubt that such exercise of undefined general power must be *292denied to administrative officers.” Regulation 10 resembles the regulation in Acorn because it forces employment agencies to comply with requirements not mandated by statute. It is legislative in nature and exceeds the department’s limited authority.


The word “assault”, which is generally recognized as a synonym, has been frequently defined as “an unlawful offer or <mask> with force or violence to do corporal hurt to another ” (Pope v. State of New York, 192 Misc. 587, 593, affd. 277 App. Div. 1015; Decker v. Werbenec, 36 Misc 2d 220). No actual contact is required (Brown v. Yaspan, 256 App. Div. 991).


Claimant also submitted to the court following trial various literature in which the purportedly potential harmful effects of pepper spray are discussed. Defendant’s objection to such information as an <mask> to inteiject expert opinion outside the confines of the trial is well taken. Moreover, claimant in the case before the court did not suffer dire or deadly effects from the pepper spray. Indeed, he suffered no permanent injuries and the effects of the spray ostensibly subsided within approximately one week.


We do not wish to be understood as holding that the state assumes any insurance liability to protect travelers on the highway when such travelers <mask> to proceed through a fog. But it seems plainly apparent that if a traveler does run into a fog in a valley, as this traveler did, and attempts to travel through the fog in that valley on his way to his home, he must of course assume certain risks if he chooses to proceed. But those risks should be only those which remain after the state has taken the precautions necessary to protect a traveler who is using the road under ordinary conditions in the night-time, exclusive of such fog conditions. It was not incumbent upon the state to protect this traveler from ordinary risks which-he assumed by traveling through the thick fog, nor is that the holding in this case. But the state having failed to provide a fence or barrier at this dangerous curve, where failure was negligence with respect to a traveler traveling in the night-time even in the absence of fog, it was the absence of such barrier that permitted this traveler to drive off the embankment which at the point he left the highway was close to the edge of and within a very few feet of the legal edge of the highway. Had a suitable bar*404rier been placed at “ dug hill ” curve it would have prevented this traveler going over the retaining .wall, even though he had been traveling in a dense fog in the night-time, as he was.


This determination is in no manner affected by the fact that plaintiff had made no <mask> to exhaust the administrative remedies available to it. The doctrine of exhaustion of administrative remedies, although a device by which the courts deny premature or unnecessary resort to their jurisdiction, is not without limitation. If an administrative remedy would afford a plaintiff substantially less than adequate relief for a wrong or no relief at all, the failure to exhaust remedies should not be a bar to seeking relief in the court through any appropriate means (cf. Lesron Junior v. Feinberg, 13 A D 2d 90, 94). It is obvious that the instant situation is quite unique and an exhaustion of administrative remedies would serve no useful purpose and would, indeed, be a futile act. Involved here is not a mere question of the interpretation made by a local rent administrator, but the legitimacy of -certain policies and regulations promulgated by the City Bent Agency itself. We are dealing solely with a question -of law. This court sees no reason to delay the resolution of this -controversy any further. Contemporary notions of distributive justice and simple fair play require that plaintiff be permitted immediate relief and the right to have the existing controversy formally determined. Accordingly, plaintiff’s motion for a preliminary injunction is granted. Defendants are to serve their answer upon plaintiff within 20 days after service of a copy of this order with notice of entry thereof.


We conclude that the economic burden test does not allow a boundless search for abstract cost-carrying of a tax by a litigant. Instead, we have applied the test under a specific set of circumstances: when an entity is contesting the applicability of the statute to its services but, out of an abundance of caution, chooses to pay the IRS itself rather than <mask> to collect the tax from its customers. See, e.g., id.; see also McGowan, 296 F.2d at 253. Because the would-be “collector” has not in fact “collected” the tax from someone using its services but rather paid the taxes itself, it does not expressly satisfy Section 6415’s language. Because it has borne the economic burden, though, we have held that these parties still may pursue a refund. The circumstances of these cases applying the economic burden test differ materially from the facts of this case. JetPay actually collected the taxes from the customers and certainly did not pay the IRS preemptively before litigating the applicability of some tax. Moreover, none of the cases deal with a contractually imposed obligation to refund customers like JetPay assumed here. Every case instead concerns an entity arguably obligated under the statute to collect and pay the tax; none feature a self-imposed obligation like JetPay has assumed here. The narrow exception recognized in these cases is inapplicable to JetPay. III. Equitable subrogation to the taxpayer’s rights JetPay’s final theory is that it is equitably subrogated to the rights of the taxpayers to whom JetPay refunded the ticket costs. Effectively, JetPay says that by refunding Direct Air’s taxpaying customers their excise taxes, it has stepped into their shoes and is thus able to assert their rights to a tax refund under 28 U.S.C. § 1346. Section 1346 sets out a basic sovereign immunity waiver in tax refund suits. See § 1346(a)(1). The statute grants the district courts original jurisdiction over civil actions against the United States “for the recovery of


A party must establish a reasonable probability of prevailing before pursuing a "cause of action against an attorney for a civil conspiracy with his or her client arising from any <mask> to contest or compromise a claim or dispute[.]" ( § 1714.10, subd. (a).) The court makes this determination after considering a plaintiff's verified petition accompanied by the proposed pleading, "supporting affidavits stating the facts upon which the liability is based," and any opposing affidavits. (Ibid. ) However, "[t]his section shall not apply to a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney's acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney's financial gain." ( § 1714.10, subd. (c).)


Finally, we reject again appellants' <mask> to marshal comparable jurors, here arguably to show that they had experiences with incarceration similar to Domanique J., but were not challenged by the prosecutor. Juror No. 3's questionnaire disclosed that, 30 years ago, the juror had visited an inmate at Vacaville Prison. The individual apparently was not a relative or close friend. Juror No. 12 indicated that "years ago" she picked up her brother at the Santa Rita Jail after he had been arrested on a domestic violence charge for which he was never prosecuted. And Juror No. 12 stated that he worked as a counselor at a correctional facility for six months during graduate school. Obviously, none of these experiences compares with visiting a close relative convicted of a serious crime on multiple occasions while she was incarcerated. Appellants also suggest the same comparable jurors on the issue of the fairness of the criminal justice system that they advanced in their challenge to Pierre M. But this attempt fails here for the same reason: None of those jurors had any other serious disqualifying issue, such as Domanique J.'s experiences *880regarding his aunt's incarceration or Pierre M.'s problems with the one witness rule. Thus, they were not similarly situated.9


from the applicant as to whether the applicant is under felony charges is unnecessary information for the purpose of deter- mining whether an individual is disqualified from purchasing or possessing a handgun. Such charges would, under 18 U.S.C. § 922, disqualify the applicant from purchasing a handgun. The information thus relates to the sole purpose of determin- ing whether the individual is disqualified from purchasing or possessing a handgun and not to any impermissible purpose. Nothing in § 69-2409, or any other provision of the statutory scheme pertaining to handguns, limits a background check as the sole means of obtaining the information of whether an applicant is disqualified from purchasing or possessing a handgun. Section 69-2408 makes it a crime to provide false infor- mation “on an application form” that was approved by the Superintendent of Law Enforcement and Public Safety and is in compliance with any rules and regulations adopted by the Nebraska State Patrol and the governing statutes. Hofmann does not contest that the application form was duly approved and was in compliance with all governing rules, regula- tions, and statutes. We decline Hofmann’s invitation to read § 69-2408 as making it a felony to provide false information only with respect to the minimum information of the appli- cant’s full name, address, date of birth, and country of citizen- ship (and place of birth and alien or admission number if not a U.S. citizen), while shielding the applicant who provides false information in response to other lawful inquiries under the application. Even in light of principles of strict construction and reading § 69-2408 together with § 69-2404, we find no merit to Hofmann’s argument that an applicant cannot <mask> to provide false information in violation of § 69-2408 simply because the false information in question was something other than the applicant’s full name, address, date of birth, and coun- try of citizenship (and place of birth and alien or admission number if not a U.S. citizen). - 621 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. HOFMANN Cite as 310 Neb. 609


Defendants do not deny the prejudicial nature of these articles. They do claim that they will have no effect on the trial. It is pointed out that the newspapers in which the articles were published have a local circulation, not extending throughout the county. An <mask> is made to show that only a small number of talesmen on any panel would come from the area in which these newspapers circulate, but either from mistake or ingenuousness the proper figures from which the conclusion could be drawn are not given.


Finally, the majority's opinion is inconsistent with Andrews because actions by the State are at issue in this case. Although *259the majority explains that-"the AOGC is a named defendant, but its role in the proceeding is that of a tribunal or a quasi-judicial decision-maker rather than a real party in interest"-and that "it has no vested interest in the outcome of the appeal other than whether its decision is upheld," this is not the standard under Andrews . Andrews held that the State may never be made a defendant in any of her own courts. Accordingly, despite the majority's <mask> to narrow Andrews , the broad language of Andrews includes the actions alleged in this case. Here, Hurd alleges that the AOGC's actions were beyond the AOGC's authority as a State board and acted in an ultra vires manner. Therefore, State conduct is at issue, and Andrews bars suit.


The D.C. Circuit, however, strenuously rejected this <mask> to turn the authority to make statutory choices under Chevron into an engine for preemption. See Mozilla, 940 F.3d at 82–85. The court explained that the discretion to classify a communications service under federal law does not permit the FCC to impose upon the states the policy preferences underlying that definitional choice. See id. As the D.C. Circuit explained, ACA CONNECTS V. BONTA 23


Service by posting is not the best method for giving notice of the commencement of an action. In order to pass constitutional muster service must be “notice reasonably calculated, under all [of] the circumstances, to apprise interested parties of the pendency of the action”. (Mullane v Central Hanover Trust Co., 339 US 306, 314; cf. Velazquez v Thompson, 321 F Supp 34, 39, affd 451d 202.) The method of service must not be “ ‘unlikely to succeed’ ” or “‘predestined to failure’” or the court may find it equivalent to “‘no <mask> at all.’” (815 Park Owners v West LB Admin., 119 Misc 2d 671, 677; Palumbo v Estate of Clark, 94 Misc 2d 1.) As the Supreme Court has recently said in Greene v Lindsey (456 US 444, 452-453): “Short of providing personal service, then, posting notice on the door of a person’s home would, in many or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him.” General principles concerning service lead to the conclusion that in a “conspicuous place” service the place of posting must be on the premises in a *40location, preferably the entrance door, which, in the reasonable opinion of the process server, is sufficiently obvious to the occupant so to be expected to be seen.


(courts “must determine the intent of the Ohio General Assembly not from the expressions of a single legislator, but from the expression of the legislative body as a whole”). But more importantly, we will not use legislative debate “to muddy clear statutory language.” Milner v. Dept. of the Navy, 562 U.S. 562, 572, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). And here, clear language in Section 6 establishes that the section’s standards are not merely aspirational. “Aspirational” denotes a desire to achieve something. See Webster’s Third New International Dictionary at 130 (defining “aspirational” as “of relating to aspiration,” which itself is defined as “a strong desire for realization,” id.). Section 6 speaks not of desire but of direction: the commission shall <mask> to achieve the standards of that section. While Section 6 contemplates that the standards set forth in it may not come to fruition, it nevertheless requires the commission to try to achieve them. 2. Article XI, Section 6 claims are actionable {¶ 91} Senate President Huffman, House Speaker Cupp, and the statewide officeholders also argue that the claims based on Section 6 must be dismissed because Article XI does not provide a specific remedy for the commission’s failure to comply with Section 6. They focus on Section 9(D)(3), which prescribes the scope of this court’s remedial power for certain violations of Article XI:


Convicted of the crimes of larceny in the first degree, <mask> to commit larceny in the first degree, larceny in the second degree and conspiracy to commit larceny in the first degree in connection with certain financial transactions involving an elderly victim, the defendant appealed to this court. The defendant was hired as an in-home aide for the victim, and increasingly involved herself in the victim’s life. A few months after the defendant was hired, the pastor of the defendant’s church was granted power of attorney over the victim, and from that point forward the victim’s banking activity began to diverge from several long-standing patterns. Increasing sums of money were being withdrawn from the victim’s bank accounts and used by the defendant to pay for her various personal expenses. Following a trial, the jury returned a verdict of guilty of all four counts against the defendant. Held: 1. The defendant could not prevail on her claim that the trial court improperly instructed the jury as to the wrongfulness element of the offense of larceny, the charge to the jury having adequately conveyed the appro- priate levels of intent for both taking and retaining property in accor- dance with State v. Saez (115 Conn. App. 295), which outlined the state’s obligation to show that the defendant acted with the subjective desire or knowledge that her actions constituted stealing: the court’s charge to the jury, when considered as a whole and in light of the penal code’s definition of larceny, was sufficient to adequately guide the jury; more- over, the language in the court’s charge linking the requirement that the state must prove the defendant intended to permanently deprive the owner of his property with the requirement that the state must prove that the defendant took the property with an unlawful purpose adequately conveyed the requirement that the defendant must have intended to take the property wrongfully, such that the jury properly was apprised of the elements of larceny and the bar that the state had to meet with respect to the specific intent requirement in order to convict the defendant. 2. The defendant could not prevail on her claim that the jury instructions provided by the trial court granted the jury impermissibly broad latitude in considering the possibility of the victim’s mental incapacity, that contention not being supported by the plain language of the court’s instructions: the jury was informed that, even if it concluded that the victim was mentally incapacitated in any way, the instructions did not mandate a conclusion that the victim could not and did not consent to the defendant’s taking of the property, and, by instructing the jury that it ‘‘may’’ determine that the victim’s mental incapacity prevented him from consenting to the taking of his property, the charge permitted the jury to exercise its discretion and consider whether the evidence before it supported such a finding; moreover, the jury charge clarified that an owner’s inability to consent must be paired with the defendant’s awareness of that inability in order to satisfy the wrongfulness require- ment of larceny, and the charge contained sufficient safeguards against the jurors improperly drawing conclusions as to the wrongfulness of the defendant’s conduct. Argued September 13, 2021—officially released January 11, 2022


It appears that Stephenson's contention that the habeas statute should be viewed more broadly was essentially an <mask> to broaden the scope of a habeas action to include claims of trial error and the sufficiency of the evidence to sustain the judgment. If so, we have held that a habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and a writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. The remedy in such a case is a direct appeal. Birchett v. State , 303 Ark. 220, 795 S.W.2d 53 (1990).


The Legislature of this State, in its wisdom, has given hospitals a lien upon the proceeds of a recovery in a tort action (Lien Law, § 189). While an <mask> has been made through the introduction of legislation in the Legislature, to include physicians within the benefits of such law, this proposed legislation has failed of passage, and the Legislature has turned down the suggestion that physicians have such a lien. (See 1949 N. Y. Legis. Index, Senate Intro. No. 2045, Senate Print *210No. 2253, defeated March 29, 1949.) It was in an attempt to by-pass the Legislature’s determination in that regard, that the printed form of assignment which was originally in existence was altered, so as to include within its scope that which the Legislature refused to enact into law. Somehow or somewhere, someone conceived the ingenious thought that physicians could be preferred over other creditors, by including the provision for an assignment to them, within the body of the hospital assignment itself.


The testimony also sufficiently established that Brandi resisted and obstructed Chief Pearsall during the execution of the arrest warrant. A review of the testimony and body-camera footage indicates that after she was informed there was a warrant for her arrest, Brandi denied a warrant existed and insisted that she had never been stopped for excessive noise or loud exhaust. After the exchange between Anthony and Chief Pearsall, Brandi went back into the house, despite Chief Pearsall’s instruction to stop, his <mask> to physically stop her from entering the house, and his repeated statement that he had a warrant for her arrest, which could be resolved by coming with him and paying $500 to get out of jail. After coming out of the house, Brandi continued to be verbally defiant toward the responding police officers and requested to see a copy of the arrest warrant. Even after Trooper Reynolds showed her the warrant, Brandi continued to be argumentative, insisted the warrant information was incorrect, and “almost had to [be] pick[ed] [up] and [carried] to the patrol car.”


"For purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody, including any period of mandatory supervision, or until release on parole or postrelease community supervision, whichever first occurs, including any time during which the defendant remains subject to *713reimprisonment or custody in county jail for escape from custody or is reimprisoned on revocation of parole or postrelease community supervision." (Italics added.) As we explain below, the second flaw in the People's argument is the <mask> to apply subdivision (d) of section 667.5 to the circumstances in this case to determine whether defendant suffered a prior prison term in case BF147747A under section 667.5, subdivision (b). Established case law reveals the flaw in the People's argument.


*894In behalf of the defendants George and Victor Mishkin it is urged that since knowledge is an essential element of proof, the offense is not malum prohibitum. Here, again, we suggest that a careful reading of said section B36-23.0 indicates that guilt may be predicated upon a sale or delivery or <mask> to sell or deliver or an offer to sell or deliver or starting, out for delivery, or causing to be started out for delivery less than 2,000 pounds by weight to the ton of solid fuel.


The rules of the State Liquor Authority (promulgated by the respondent itself and amended by the respondent from time to time) at all times provided very specifically in subdivision 10 of rule 2, which relates to revocation hearings, under the heading of ‘ ‘ Notice of Hearing ’ ’, that ‘1 Such notices shall be deemed to have been duly served if sent by registered or certified mail to the licensee addressed to the licensed premises and a copy thereof by ordinary mail to the residence of the licensee or to the residence of any officer of a corporate licensee,” and, further, that “ Notices of hearing shall be mailed at least five days prior to the date set forth in said notice for the holding of said hearing unless the Authority, in its discretion, shall shorten the time fixed herein ”. Yet the notice of the hearing in this case when petitioner’s default was quickly taken which, as received by counsel for the petitioner, set forth a wrong time for the hearing, which was sent out on June 21,11 days before the hearing date, was sent only by Western Union telegram and there was not so much as even a confirmation by mail. According to the testimony adduced in this case by respondent, no notice is ever sent by mail in any case; all notices are by Western Union telegram, obviously at much greater expense to the State, and no <mask> is ever made to verify the accuracy of transmission.


The District Court had jurisdiction pursuant to 18 U.S.C. § 3241. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Kuntz attempted to incorporate other arguments from his codefendants pursuant to Federal Rule of Criminal Procedure 28. His brief did not identify which issues he intended to adopt. Nor did it <mask> to individualize any arguments. His attempt to adopt arguments is therefore insufficient under Rule 28(i). See United States v. Fattah, 914 F.3d 112, 146 n.9 (3d Cir. 2019). of trial, Kuntz and Brown each had his own counsel, so there was no conflict of interest.


The plaintiff fails on the second and third prongs as well. Even where the recognition of a private right of action might promote one aspect of a statute’s legislative goals, the greater concern is the “ ‘consistency of doing so with the purposes underlying the legislative scheme’ ” (Sheehy v Big Flats Community Day at 634, quoting Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 325 [1983]). “[A] private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme” (Sheehy v Big Flats Community Day at 634-635). As previously noted, the Superintendent of Insurance possesses broad regulatory powers over the sale of insurance policies in this state. Section 109 (d) of the Insurance Law reveals that only the Superintendent of Insurance is empowered to maintain a civil action. This provision, together with the broad disciplinary powers given to the Superintendent of Insurance, make plain the legislature’s desire to establish the Superintendent as the sole regulator. This conclusion is supported by the express language of section 2130 (g), which provides, “Nothing in this section shall be *771construed to . . . diminish the power of the superintendent to take any other disciplinary action otherwise authorized by this chapter.” As noted throughout this decision, if the plaintiffs members fail to provide documents or pay fees, the plaintiff is to report it to the Superintendent of Insurance. Allowing the plaintiff to act independently, and perhaps in contravention of the Superintendent of Insurance, would, in essence, set ELANY up as a co-regulator and undermine the clear legislative intent that ELANY’s actions be supervised by the Superintendent of Insurance. It is unlikely that the legislature would have intended for the plaintiff to be a co-regulator with the Superintendent, and the plaintiff has offered little evidence of this intention other than its assertion that the words “facilitate” and “encourage compliance” in Insurance Law § 2130 (a) (10) should be read that way. It is more likely that the legislature would not want a group of competitors to have the right to bring an action against a fellow competitor, which is exactly what has happened here. Given that the plaintiffs members are competitors in the insurance industry, there is no way of knowing whether this litigation is a legitimate <mask> to enforce the Insurance Law or an attempt to punish, injure, or obtain an unfair advantage. Therefore, the proper balance seems to be that the plaintiff may notify, advise, or inform the Superintendent of Insurance and allow the Superintendent to make an independent evaluation of what steps to take. If the Superintendent of Insurance finds that punishment is warranted it could respond in a variety of ways, including suspending the violator’s license for noncompliance with the statute (see Insurance Law § 2105 [a]). Thus, recognition of a private right of action under the present circumstances would not advance the legislative purpose and would be inconsistent with the legislative scheme (see Hudes v Vytra Health Plans Long Is., 295 AD2d 788 [2002]). Accordingly, the court finds that ELANY does not have a private right of action under the Insurance Law.


The Court of Appeals in Matter of Ryan (291 N. Y. 376, 416) in quoting with approval from Matter of Long Island Loan & Trust Co. (92 App. Div. 1, affd. 179 N. Y. 520) which the court held to be “ in point both on the matter of opening the decrees and the claimed acquiescence ’ ’, repeated the following words: ‘ ‘ ‘ The trustee accounted in 1898, but none of the questions here raised was put in issue in that proceeding, and the decree on that accounting discharged the trustee only as to the assets directed to be distributed thereunder and the amount of the trust estate. As the trustee claims this decree to have worked an estoppel, the burden of proof is upon the trustee to show clearly that the question in issue in this case was litigated and determined in the former action (Rudd v. Cornell, 171 N. Y. 114, 127, and authority there cited), and having failed to show this, the life tenant is not estopped to assert her rights at this time. Nor is the position of the trustee changed by the fact that the life tenant made a motion in May, 1903 to open the decree of August, 1898, in which the matters here involved were set up as a reason for opening the former decree. The opening of the former decree rested in the discretion of the learned Surrogate, and as the former decree did not <mask> to settle any of the questions which are urged on this motion, the denial of the motion did not affect any substantial right of the life *1061tenant, and, under well-established rules, it could not work an estoppel on this accounting.’ ” (Emphasis added.)


The first objection to this allowance is, it no where appears that Wattles ever assented that the mortgage should secure any thing beyond the specific objects for which it was given. The assignment of the partnership goods to the respondent was subsequently taken as a collateral security. There is no proof that advances were made on the credit of the original security. A mortgage made to secure against future as well as present responsibilities is undoubtedly good. In some cases, a subject pledged for a debt may be considered as a security for further loans. The cases referred to by his honor the Chancellor, in Hendricks v. Robinson, (2 John. Ch. Rep. 309,) do not support the right claimed by the respondent. In Shirras v. Craig, (7 Cranch, 34,) the mortgage was executed, in part, to secure the payment of money actually due at the time, and in part to secure sums to be advanced. So, in The United States v. Hooe, (3 Cranch, 73,) the mortgage was to secure against existing and future responsibilities. The <mask> here is, without any understanding or agreement, to hold the mortgaged premises charged for a general balance. It is highly probable, from the testimony, that on an account taken, (after first applying partnership property to the payment of partnership debts,) a sufficient sum will remain out of the merchandize and other articles assigned as a collateral security with the mortgage, to pay off and discharge the note of $5000, and the responsibility incurred by the bond to Granger.


I find that exigent circumstances existed here which justified Detective Eiden in entering defendant’s room with a key without giving notice of his authority or purpose. Eiden had been informed that defendant was a fugitive and he knew of defendant’s getaway when Inspector G-aughran tried to apprehend him on the street. Under the circumstances, it was perfectly natural for the Detective to believe that defendant would again <mask> to escape if he knew he were about to be taken into custody. Eloquent proof of the Detective’s rational and normal apprehension both for his own safety and the possible disappearance of the defendant are found in the fact that the Detective was accompanied by two uniformed police officers and that he drew his gun before turning the key and opening the door. To have done any less would have been extremely dangerous and would properly have subjected the Detective to criticism if the defendant had eluded him. I have therefore concluded that the arrest and the search and seizure incident thereto were entirely lawful.


With these considerations in mind, we may now turn to the evidence. At the trial, Bundy testified that he was forced off the pavement, at a point about seventy feet from the bridge, by another car overtaking and passing. Prior to the trial, however, he had made statements to the effect that he was not forced off the road. The only other eyewitness, who was approaching from the opposite direction and s.aw Bundy go off *862the road and strike the bridge, testified that he saw no car attempting to pass Bundy or even near him. Bundy stated that his car struck only the sidewalk, but the preponderance of evidence indicates that he first struck the last two guardposts ahead of the bridge and then struck both the parapet and the sidewalk. The guardposts and cables showed evidence of damage, and the parapet wall was chipped and scratched. Further, the right-hand door was torn off the car and hurled down the west embankment of the creek, and the entire right side of the car was heavily damaged. He testified that his speed was between forty-five and fifty miles per hour, although he knew of the thirty-mile speed limit, but the totally demolished car and its 150 foot upside down skid strongly suggest a much greater speed. Bundy was familiar with the road and knew of the existence of the bridge. The highway and the bridge were well lighted and the end of the sidewaEc was marked with alternating yellow and black stripes. When he went off the road, he made no <mask> either to apply his brakes or to slacken his speed. The conclusion is inescapable that Bundy was negligent in operating his car at excessive speed, in leaving the pavement without good reason, in failing to slow his car, and, generally, in failing to observe what he was about.


Defendants oppose the motion, claiming that plaintiffs counsel was in fact aware on Feburary 5, 1987, immediately before the hearing, that Dannon had been substituted for Gertel and that plaintiffs allegations regarding Dannon’s qualifications are an insufficient basis upon which to vacate the panel’s findings, absent any specific assertion or evidence of impropriety, bias or incompetence on the part of Dannon. Defendants, therefore, urge that plaintiffs sole recourse is to <mask> to impeach the attorney panelist at trial.


Hayes also cites to a legislative committee report referring to certain "technical amendments" recommended by the executive branch that reflect " 'the administration's desire "to change current law as little as possible ...." ' " (Assem. Com. on Education, Rep. on Sen. Bill No. 818, Reg. Sess. (1993-1994), as amended June 21, 1993, p. 2, italics added.) Those comments are taken out of context and do not pertain to or <mask> to explain the deletion of the last sentence of section 44951.


Comity does not call upon us to recognize the decree — as we might feel called upon to do in the case of a judgment on a commercial transaction transitory in nature where for one reason or another, an action is brought in a foreign country unrelated to the parties or the transaction and a defendant chooses to appear. No doubt Chihuahua would recognize a *109decree of divorce granted by our courts; but we do not recognize its power to decide for us the marital status of our domiciliarles, its power to grant the divorce in question. There is no magic in the formula “ personal appearance of plaintiff followed by appearance of the defendant by attorney ” in a case of this kind. And we should not recognize the decree. Such a decree was not recognized in the Calchvell case; nor in the Heine case; nor in the Molnar case from which I have quoted (the Molnar case was affirmed without opinion by the Appellate Division, First Department, 284 App. Div. 948, but the court’s decision below was on alternative grounds — the divorce was no different from a “ mail order ” divorce; and the power of attorney to the defendant’s Mexican attorney was invalid). There was just as much collusion here as in the Caldwell and Heine cases; just as much evasion of our laws and jurisdiction. The evasion is not made any the less transparent by the device of one side presenting papers instead of mailing them. There was agreement to dissolve the marriage by the signing and presentation of papers to a court lacking jurisdiction. The vice in the Caldwell case was not in the mailing, but in what was attempted by the mailing. That vice is not cured by what was done here; and the <mask> was the same. “ [T]he Mexican divorce here involved is a nullity, and of no more validity than a so-called mail-order divorce ” (Heine v. Heine, 10 A D 2d 864).


MVAIC charges that petitioner’s delay of several months in making the instant application has increased the amount of interest payable on the judgment by enlarging the interest period. However, the court does not find, nor does MVAIC make any <mask> to show, that such delay has in any way prejudiced the petitioner’s right to receive payment of interest from the date of entry of judgment.


We find that, based on the clear and unambiguous text of Correction Law § 168-a (2)(a), first-degree assault as a sexually motivated felony is not a registerable offense under SORA because first-degree assault is not one of the enumerated offenses in subparagraphs (i) or (ii) of that provision. Subparagraph (iii) of Correction Law § 168-a (2)(a), as amended, includes in the definition of sex offense "a conviction of or a conviction for an <mask> to commit any provisions of the foregoing sections committed or attempted as a sexually motivated felony defined in section 130.91 of such law" (emphasis added). Thus, according to the clear language of the statute, a defendant who is convicted of a sexually motivated felony offense can only be required to register under SORA if the underlying offense is specifically included as one of the Penal Law provisions listed in subparagraphs (i) and (ii) of Correction Law § 168-a(2)(a), which are the only "foregoing sections" in the definition of sex offenses. As it is undisputed that assault in the first degree is not one of the Penal Law provisions listed in subparagraph (i) or (ii) of Correction Law § 168-a(2)(a), assault in the first degree as a sexually motivated felony is not a registerable offense under SORA. When the legislature amended the statute, it could easily have included all sexually motivated felonies in the definition of "sex offense." However, based on the clear wording of the amendment, the legislature chose to include only certain sexually motivated felonies in the definition of "sex offense," and we must give effect to the plain meaning of the statute, as amended (see Patrolmen's Benevolent Assn., 41 NY2d at 208).


inconsistently, not for [Lane]) to carry on working at their community business, or to be responsible . . . for its loss of value, in the absence of gross negligence or intentional misconduct not present here.” This reasoning is completely at odds with the family court’s findings. The court did not require either party to continue working for the business, but it implicitly did assume that if either did it would not be with the intent of actually harming the business. Crouch did not wind up the business or <mask> a bona fide sale. Crouch and Lane might, in the abstract, have had reciprocal “fiduciary duties,” but they could hardly be called “parallel,” if for no other reason than Crouch had greater knowledge of the business as well as actual possession and control of its physical assets. Because Crouch was in charge of DCCH, it was he who “singlehandedly” tried to “dissipate or destroy” Lane’s interest in the business. That amounts to “gross negligence or intentional misconduct” in anybody’s book. (2) Crouch next argues that he “did not breach his fiduciary duty by going to work for Zega,” “by taking steps to wind down DCCH’s activities in 2012 based on his desire to change his work.” He believes that the family court “did not find that [he] stopped working at DCCH and went to work for Zega for any bad-faith reason such as in order to deprive [Lane] of funds, or that his conduct was grossly negligent, reckless, intentional misconduct, or in violation of law.” This is not only hair-splitting, it is simply wrong. The family court did expressly find that Crouch’s conduct was “in violation of law,” namely, the Family Code statutes codifying the obligations of spousal fiduciary duty. A finding of breached fiduciary duty would certainly


This bargain has been enacted into law. In 1967 (L. 1967, ch. 171, § 1; ch. 584, § 1) the Legislature provided for the sanitation men, and in 1968 (L. 1968, ch. 290, § 1) for the transit employees, the right to have pensions computed to produce a retirement allowance equal to one half of the employee’s annual salary for the year prior to retirement. This is the law. The Legislature may try to negotiate a lower salary; but any law which attempts to modify the formula .rather than the input data is an <mask> to modify a contractual right guaranteed by the Constitution.


Altesse argues that it removed the case to federal court because it fairly believed the state lawsuit was a counterclaim to its previously filed federal suit. Even if we ignore the federal court's conclusions that the removal was an <mask> to avoid the effect of the TRO and that the state suit was improperly removed, the removal was not a legitimate basis for ignoring the TRO. Post-removal, state-court orders generally "remain in full force and effect until dissolved or modified by the [federal] district court." 28 U.S.C. § 1450.


Upon this showing the court has no discretion to deny the application. All the later California cases are in agreement upon this point. The heirs, legatees, and devisees occupy no better position than creditors. The right to a homestead is statutory and superior to any <mask> at testamentary disposition. The executors are in error in their contention that the amount of the homestead is limited; the cases cited by them do not apply here. The law as now laid down was declared by the supreme court in Estate of Levy, 141 Cal. 652, 99 Am. St. Rep. 92, 75 Pac. 301, which says, in effect that in the absence of a statutory limitation as to value, the right of the applicant is paramount to all others, even though its assertion should absorb the half or the whole of the estate, where the only premises suitable for a homestead are indivisible, and where to deny such application would be to deprive the widow of her claim under the statute. The proof in this case justifies the court in decreeing that the applicant widow is entitled to an absolute homestead in the Ellis street property, and that the petition of the executors for an order of sale should be denied, and it is so ordered.


"In order to <mask> to establish stability and permanency in the lives of the children affected, final orders of adoption should not be lightly set aside. (See McGaffin v Family & Children’s Servs. of Albany, 6 Misc 2d 776, affd 7 AD2d 769.)” (Matter of Kane, 104 Misc 2d 83, 85.) The Legislature repealed Domestic Relations Law §§ 118, 118-a, 118-b and 118-c in 1974 which permitted abrogation of adoptions under certain circumstances which developed after an adoption became effective. Under current law, an order of adoption may be set aside only where there is fraud, newly discovered evidence, or other sufficient cause (Domestic Relations Law § 114). The New York State courts have been sensitive and responsive to the religious needs of children especially as they are affected by *745adoptions (Matter of Santos, 278 App Div 373; Ramon v Ramon, 34 NYS2d 100). In today’s society a custodial parent should have a strong voice on the religious training of his children and it would not be improper to request his new spouse to raise the children under a particular faith as a condition to consenting to the adoption (People ex rel. Rich v Lackey, 139 Misc 42).


*143It must be borne in mind that perhaps the only practical purpose which a division fence serves is to keep stock upon them owner’s land. The case here under consideration serves to illustrate the proposition that the dangerous character of a fence does not necessarily add to its effectiveness as a barrier. It should not, therefore, be constructed in such a way as to prove a trap instead of a barrier. It is not going too far then to assume that the legislature in prohibiting the use of barbed wire in the construction of division fences had in view the natural propensity of certain domestic animals to leap fences and intended not only to protect them from injury while on their owner’s side of the fence but also from unnecessary injury, when, acting upon that instinct which moves the brute creation, they might <mask> to break over an obstruction, the purpose of which they could not understand.


The Legislature’s decision not to use the word “indictment” in the statute defining the Supreme Court’s trial jurisdiction over misdemeanors cannot be viewed as an oversight. In fact, the legislators did require grand jury action and/or indictments when defining the parameters of the Supreme Court’s jurisdiction in other parts of article 10. For example, the Legislature stated that “[l]ocal criminal courts have preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries.” (CPL 10.30 [2] [emphasis added].) More germane to the issue before the court today, the Legislature did require that the Supreme Court could preside over cases in which “petty offenses” were charged “only when such an offense is charged in an indictment which also charges a crime.” (CPL 10.20 [1] [c] [emphasis added].)7 Accordingly, in terms of jurisdiction, since the Legislature required an indictment be voted before the Supreme Court could *182preside over a case charging only a petty offense, but did not specify that an indictment was required for the Supreme Court to assert its trial jurisdiction over misdemeanor cases, it is clear that CPL 210.05 cannot be read as an <mask> by the Legislature to limit, the Supreme Court’s ability to exercise its trial jurisdiction over misdemeanor cases.8


Similarly, the evidence is insufficient to support the crimes of conspiracy to commit a scheme to defraud, scheme to defraud or falsifying business records on the part of DiSario in regard to the circulation scheme. DiSario was chosen by the conspirators, his superiors in the circulation department, to deliver 2,000 papers nightly to Citiwide drivers, who in turn delivered these papers to vendors, substituting the 2,000 papers for earlier editions of the Post in an <mask> to make it appear to auditors that papers were in fact being distributed for sale by the vendors named to the auditors. The evidence before the Grand Jury showed that DiSario returned the substituted papers to the Post where they were destroyed. While these deliveries may have been unusual, there is no evidence that the defendant DiSario was aware of the reason for the deliveries or of the alleged conspiracy to inflate circulation figures.


In construing this statute, we must bear in mind that we have before us a somewhat unusual law. If A is indebted to B and cannot meet the obligation when it is due, B’s remedy is by civil action; he cannot invoke the aid of the criminal courts. If, to forestall the civil suit, A gives his promissory note payable at his bank and if, on the due date of the note, A’s funds or credit in his bank are sufficient to meet it, the note is paid by the bank; if not, B is still confined to a civil suit, either on the note or on the original indebtedness. The litigation is still private, with B as the plaintiff and A as the defendant. But should A <mask> to discharge the debt by his check, which is dishonored by his bank for lack of funds ór credit, then the matter takes on a new aspect; the Penal Law is invoked; the machinery of the criminal courts comes into action; the State now becomes the aggrieved party and B is only the complaining witness, who may be compelled to testify against his will; the district attorney is now empowered to step in, representing the State — in short, a crime has been committed. Doubtless the startling features of this law may be defended on the ground that they are necessary for the protection of business dealings; no objection has been raised, and possibly none can be raised, on constitutional grounds. Nevertheless the fact remains that this section is something new in the criminal law, though it closely resembles what used to be known, and abhorred, as “ imprisonment for debt ” in the civil law.


*53appeal of the denial of an open-space land designation entitled them to attorney's fees under section 42.29 and held that it did not. Id. The taxpayers pointed to section 42.29's award of attorney's fees to a property owner who "prevail[ed] in an appeal to the court under Section 42.25 or Section 42.26 of [the Property Tax Code]." Id. (citing Act of May 30, 1983, 68th Leg., R.S., ch. 905, § 1, 1983 Tex. Gen. Laws 5033 (amended 2013) (current version at TEX. TAX CODE § 42.29 ) ). Section 42.25 provides, as it did at the time of Seven Investment Co. , that a taxpayer is entitled to a reduction of the appraised value on the appraisal roll if "the court determine[s] that the appraised value of the property according to the appraisal roll exceed[s] the appraised value required by law." TEX. TAX CODE § 42.25 (emphasis added). The court of appeals in Seven Investment Co. reasoned that by protesting the denial of the open-space land designation, the taxpayers also simultaneously protested the excessive appraised value of their property. Dall. Cent. Appraisal Dist. v. Seven Inv. Co. , 813 S.W.2d 197, 205 (Tex. App.-Dallas 1991, pet. granted), rev'd, 835 S.W.2d 75 (Tex. 1992). We reversed, holding that the statutory provisions allowing for a protest of an excessive appraisal ( section 41.41(a)(1) ) or for a protest of an unequal appraisal ( section 41.41(a)(2) ) were "separate and distinct" from the provision allowing for a protest of a determination that property does not qualify for an appraisal ( section 41.41(a)(5) ). Seven Inv. Co. , 835 S.W.2d at 78-80. In other words, section 42.29 limited the recovery of attorney's fees for the appeal of a protest under section 41.41(1) or (2) ; however, the taxpayers had protested under section 41.41(5). See id. The fact that the Legislature had identified the two protests separately was a clear indication that the two were not synonymous. Id. at 78. "Such a broad interpretation of section 42.29 is contrary to the [L]egislature's <mask> to limit the award of attorney's fees to excessive appraisals and unequal appraisals under section[ ] 42.25." Id. at 79.


In this court’s own research of cases in other jurisdictions, the one case that appears to be persuasive on the issue in the instant case is Commonwealth v. Mink (123 Mass. 422 [1877]). In that case, the court held that, although an <mask> to commit suicide is not punishable as a crime, yet a person who, in attempting to kill himself, accidentally kills another who is trying to prevent such suicide, is guilty of manslaughter. The language of Chief Justice Gray is particularly significant and apposite.


In an <mask> to demonstrate that he had standing, Justin produced three affidavits-his, his parents', and his lawyer's-alleging that he was ZK's father and had developed a relationship with ZK. He also provided a report from a "home paternity test" that he claimed resulted from samples taken from him and ZK, but the report Justin provided did not name the individuals tested and specifically made the following disclaimer:


*1011At the trial conducted herein, plaintiff sought to bulwark its contention as to its right to recover for breach of contract by resorting to parol evidence. Parol evidence may not be introduced if the writing in question expresses the complete agreement between the parties and is unambiguous. The parties may not show, or <mask> to show, that they attached a meaning different from the ordinary meaning of the language used, (General Phoenix Corp. v. Cabot, 300 N. Y. 87; 1 Mottla, N. Y. Evidence, Proof of Cases [2d ed.], § 154.)


The Court will deny the motion. As defendant did not <mask> to correct his testimony pertaining to those sections of the transcript described as “missing words,” “illegible,” or which individually “makes no sense,” the Court will grant him an additional 30 days from the date of entry of this order to provide corrected testimony for those portions of the deposition. The Court notes that many of defendant’s corrections contained in his errata sheets fail to provide the reasons for the correction, a violation of the statute and case law, which require that the deponent provide a reason for each correction (Marine Trust Co. v Collins, supra, 19 AD2d, at 857; Columbia v Lee, supra, 239 App Div, at 850; CPLR 3116 [a]). Accordingly, defendant may, within the 30-day extension granted above, submit the reasons for each correction noted in his errata sheets. In the event that defendant is unable to reconstruct those questionable portions of his testimony, the Court will accept a sworn affidavit from the defendant incorporating his answers to the questions posed.


As we explained at part III.B., ante , Defendants are not entitled to summary judgment based on a lack of causation. As part of their motion, Defendants did not <mask> to meet their initial burden of showing that Plaintiffs could not produce evidence that the product failed to satisfy ordinary consumer expectations as to safety. Instead, they argued that, as a matter of law, the consumer expectation test is inapplicable to the Subject Lift, because the Subject Lift is a "complex piece of industrial equipment" "beyond the typical understanding of the ordinary consumer." The trial court agreed and declined to apply the consumer expectation test on the basis that "the minimum safety of the [Subject Lift]'s design is not within the common knowledge of ordinary consumers"-at least in part because "the analysis of the [Subject Lift]'s design necessarily involves determining technical issues of feasibility, cost, practicality, risk and benefit, ... [which] require[s] expert opinion about the merits or deficiencies of the design."8 On appeal, Defendants continue to assert that the consumer expectation test cannot apply to Plaintiffs' claims, because the ordinary consumer has no experience, and thus no expectation, as to the design and safety of the Subject Lift-a complex and technical product.


Similarly here, the act of cancellation alone was sufficient to nullify the will. The record is barren of any oral evidence to show the time of the performance of the cancellation. The instrument itself stands without explanation by oral proof of the exact time when any of the alterations were made. If he made the notation at a time before, or after the obliteration, its effect was futile. If he made it before the actual obliteration of his signature, it was an ineffective <mask> to revoke the will. (Matter of Akers, 173 N. Y. 620, affg. 74 App. Div. 461.) He may have actually revoked it with the intent to leave both the last will and the prior will ineffective under a true understanding of our law and with a consequent vesting of his property by intestacy in his three sons. If he revoked the will, first by obliteration and then attempted by a notation subsequently made to revive his prior will, the act in making the notation of revival, without publication and attestation, as required by section 41 of the Decedent Estate Law, was worthless. But regardless of the subsequent notation, bis act of complete revocation under the statutory procedure forever destroyed the will which had been previously obliterated and canceled.


APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION In 2017, appellant Shacarria Tavares entered a conditional guilty plea to a charge of battery by an inmate on a nonconfined person (Pen. Code, § 4501.5).1 Following negotiations, the People agreed to dismiss this charge after two years if appellant abided by certain terms and conditions; if appellant did not comply, she would serve a prison term of four years. In 2019, appellant sought dismissal of this criminal matter. The People opposed that request, contending that she was in violation of her plea agreement. The trial court determined that a material term of the plea agreement was ambiguous, and it gave appellant the opportunity to file a motion to withdraw her plea. Appellant, however, asked the court for specific performance. The trial court concluded that appellant was in violation of the plea agreement, and it sentenced her to prison for four years. In the present appeal, appellant contends the trial court erred. According to appellant, the written plea agreement is not ambiguous, and the court should have granted her specific performance, resulting in a dismissal of this case. Respondent takes the opposite view, asserting that the court properly resolved this dispute. Respondent asks us to affirm appellant’s judgment. We conclude that appellant has the better argument. The express terms of the written plea agreement control in this situation, and we find no ambiguity. Moreover, even if we presume ambiguity exists, appellant’s interpretation of the disputed terms is reasonable. To protect appellant’s due process rights, the plea agreement must be construed in her favor. We conditionally reverse the judgment and remand for further proceedings. The People may elect to dismiss the charges or, consistent with how the plea agreement has been construed in this opinion, the People may <mask> to establish that appellant violated the 2017 plea agreement.


Persons entering the IDTU are directed to turn off radios and place cell phones on vibrate. Officer Re did not <mask> to implement any similar safeguards in the field. Indeed, it is not clear that such procedures could even be observed during a car stop. Officer Arav testified that the Intoxilyzer 5000 uses three “air blanks” at different intervals surrounding a test to ensure that there is nothing in a room which might skew a breath sample. No evidence was presented as to whether the SD2 has a similar feature. The Intoxilyzer 5000 can recognize a spike in radio frequencies and will abort a test if such a spike is detected. The court did not learn anything about whether the SD2 has a similar feature. Health Department regulations require that a “system purge” precede both the testing of a subject and a calibration test. (10 NYCRR 59.5 [c].) The court did not learn whether the SD2 complies with this feature. The Intoxilyzer machine is calibrated every six months. The SD2 in this case was calibrated annually.9


In Matter of Ronan v Levitt (73 Misc 2d 35), certain officers of the New York City Transit Authority made similar arguments in an <mask> to quash subpoenae duces tecum served by the Comptroller. The authority in the Ronan case for the Comptroller’s audit was Public Authorities Law § 2503 which gave him the right to examine the books and accounts of the Transit Authority, including its books, receipts, disbursements, contracts, and other matters relating to its financial *854standing. The court held that this language did not "attempt to tell the Comptroller how to conduct such audit”, nor did it "draw such semantic distinction between 'management operational audits’ and 'financial audits’, as the petitioner[s] [Transit Authority] urge[s].” (73 Misc 2d, at p 38.)


In the opinion of the court the respondent stretched the facts beyond recognition in an <mask> to show some provision for the child by stating that he had purchased two insurance policies, one in the sum of $5,000 and the other in the sum of $10,000, and that his son was the beneficiary of those policies. It was stated that the policies would be submitted to the court. When the policies were not produced after several months, the hearing was reopened. At the resumption of the hearing it developed that two policies in the principal sum of $1,000 each had been issued in 1951 but were permitted to lapse. Parenthetically, it should be noted that one policy covered death of the insured by accidental means, the weekly premium being 10 cents. The other policy was a 20-payment-life policy with a weekly premium of 85 cents. There was some further discussion with respect to policies in which the respondent’s mother was the beneficiary. These policies, however, were not produced and would seem to bear no relation to the issue other than on the question of credibility.


No party argues that Section 51.0412 of the Family Code, which became effective on September 1, 2013-before the December 2017 transfer hearing on remand-applies. See Tex. Fam. Code § 51.0412, Acts 2013, 83rd Leg., ch. 1299 (H.B. 2862), § 7, eff. Sept. 1, 2013 (permitting juvenile court to retain jurisdiction over person if, among other things, person is respondent in adjudication proceeding and proceeding is not complete before respondent turns eighteen, so long as court enters finding that prosecuting attorney exercised due diligence in <mask> to complete proceeding before respondent became eighteen years of age).