The second and proposed third amended complaints contained all the allegations at issue in the instant proceeding. The plaintiff’s RICO claim alleged mail and <mask>. In order to satisfy the fraudulent scheme requirement, which formed the predicate for the acts of mail and wire fraud, the plaintiff had to allege the manner in which the purported misrepresentations were fraudulent and further, had to establish fraudulent intent (see, Beck v Manufacturers Hanover Trust Co., 820d 46, 50-51, cert denied 484 US 1005; see also, Anitora Travel v Lapian, 677 F Supp 209, 214). To establish its common law cause of action for fraud, the plaintiff had to demonstrate that the defendants knowingly uttered a falsehood intending to deprive the plaintiff of a benefit and that the plaintiff was thereby deceived and damaged (Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407). The essential elements are the representation of a material existing fact, falsity, scienter, deception and injury (supra, at 407).


Shortly after this latest meeting, which took place on December 5, 1990, Wilson ceased cooperating with the FBI; the United States Attorney’s office believes that Wilson thereupon revealed to respondent that he had surreptitiously recorded their conversations for the brief period in question. Wilson was arrested in February 1991, and later pleaded guilty to Federal felony charges of conspiracy to launder funds, conspir*179acy to commit bank fraud, and <mask>. Released on bail pending sentence, he has been a fugitive at large ever since.


By order dated November 18, 2013, the Supreme Court of Georgia granted respondent’s unopposed voluntary petition to resign from the Georgia bar based upon his conviction of <mask> in violation of 18 USC § 1343, a federal felony. Respondent also admitted that, by his conviction, he violated the Georgia Rules of Professional Conduct. In accepting the voluntary surrender of respondent’s license, the court specifically noted that this surrender was tantamount to disbarment and directed that respondent’s name be removed from the rolls of persons entitled to practice law in Georgia (see generally Matter of Goodhart, 56 AD3d 889, 890 [2008]).


Per Curiam. Respondent was admitted to the practice of law in New York in 1972, at this Judicial Department. In 1987 he pleaded guilty, in United States District Court for the Southern District of New York, to charges of making false statements in support of a loan application (18 USC § 1014) and <mask> (18 USC § 1343). On July 6, 1989 we determined that these Federal felonies were "serious crimes” within the meaning of Judiciary Law § 90 (4) (d), and ordered respondent suspended from practice pending final disciplinary action (148 AD2d 152). Respondent was ordered to show cause why a final order of "suspension, censure or removal from office” should not be made (Judiciary Law § 90 [4] [g]).


While Federal "serious crime” convictions for <mask> and making false statements have generally been met with *9the sanction of suspension from practice (see, e.g., Matter of Laboz, 200 AD2d 239; Matter of Cecil, 190 AD2d 986; Matter of Martin, 181 AD2d 156), this respondent’s deliberate engagement in a spiraling series of fraudulent acts in conjunction with an unsavory business associate who he had good reason to believe was involved in criminal conduct warrants the more severe sanction of disbarment (see, Matter of Catalfo, 181 AD2d 213). Accordingly, we reject the recommended suspension and find that disbarment is the only appropriate punishment (see, Matter of Friedman, 196 AD2d 280, 296, appeal dismissed 83 NY2d 888, cert denied — US —, 115 S Ct 81).


Per Curiam. On November 29, 1994, the respondent was found guilty, after a trial before the Honorable Jacob Mishler, of two counts of conspiracy and three counts of <mask>, in violation of 18 USC §§ 371 and 1343, in the United States District Court for the Eastern District of New York. The charges involved conspiring and knowingly and willfully devising a scheme and artifice to defraud The Federal Home Loan Mortgage Corporation (hereinafter Freddie Mac) to obtain money and property from Freddie Mac by means of false and fraudulent pretenses and, for the purpose of executing such scheme and artifice caused to be transmitted, by wire in interstate commerce, writings, signs, and signals.


On November 19, 1994, respondent pleaded guilty in the United States District Court for the Southern District of New York to one count of conspiring to commit bank fraud, in violation of 18 USC § 371; one count of <mask>, in violation of 18 USC §§ 1343 and 2; one count of submitting false statements, in violation of 18 USC § 1001; and one count of bank fraud, in violation of 18 USC § 1344. Respondent’s conviction arose from events which took place beginning in October 1993 when he joined a conspiracy to launder millions of dollars in cash which were the proceeds of narcotics trafficking. Respondent has not yet been sentenced.


Finally, the last six counts concern the defendants’ alleged demand that Sikowitz’s campaign committee participate in the proposed joint election campaign outlined in the second of the two written proposals submitted to her, by paying Boone $16,100 for the “Central Brooklyn Operations.” The seventeenth and nineteenth counts charge the defendants with attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.35) and *806attempted grand larceny in the fourth degree (Penal Law §§ 110.00,155.30 [6]), allegedly committed “on or about and between June 1, 2002 and August 1, 2002,” with the first count alleging that the amount the defendants attempted to extort exceeded $3,000, and with both alleging that the larceny was committed by means of <mask>. The eighteenth and twentieth counts each charge the defendants with conspiracy in the fifth degree (Penal Law § 105.05 [1]) and allege, respectively, that they conspired to commit the larcenies that the seventeenth and nineteenth counts allege they attempted to commit. The twenty-first and twenty-second counts charge the defendants with attempted coercion in the second degree (Penal Law §§ 110.00, 135.60 [9]) and conspiracy in the sixth degree (Penal Law § 105.00), on the theory that the defendants attempted to force, and conspired to force, Sikowitz to pay for the primary day operations.


5As relevant here, the predicate crime of <mask> requires that the accused "with the intent to . . . gain any money or other property or.. . . to do or abet or procure any illegal or wrongful act, whether or not the purpose is accomplished, threaten [ ] directly or indirectly" to (1) "injure a person or property"; (2) "expose or impute to any person any deformity or disgrace; oe (3) "expose any secret." NRS 205.320(2), (4), (5). SUPREME COURT OF NEVADA (0) 19-17A


2 Consistent with these provisions, the jury was properly instructed that <mask>, for the purposes of the People’s attempted extortion charge, is made up of the following elements: “1. The defendant threatened to unlawfully injure or used force against the property of another person or a third person; 2. When making the threat or using force, the defendant intended to use that fear or force to obtain the other person’s consent to give the defendant money or property; 3. As a result of the threat or use of force, the


Judge Earl further says: “ So far as I can discover there is absolutely no authority upholding the contention of the learned counsel for the defendant, that because the defendant did not inspire fear in the mind of Mrs. Amos by his threats, and thus could not have been guilty of the completed crime of <mask>, therefore, he cannot be convicted of attempting to commit the crime. That contention is, as I believe, also without any foundation in principle or reason.”


Under the requirements of section 850 an indictment, charging the crime of <mask> and arising out of the fact situation quoted above, must plead the following elements: (1) That property was obtained; (2) That it was obtained with the victim’s consent; and (3) That the obtaining of the property was induced by wrongful use of force or fear. Under each of the four counts in the indictment it is alleged that the defendants actually obtained from the victim certain property owned by it, to wit, a stated sum of lawful currency of the United States of America. There can be no question that lawful currency issued by the Federal Government qualifies as property under the intendment of this statute and that the allegation as to that property satisfies in each count the element of “ obtaining of property from another.” (People v. Hagen, 212 App. Div. 879; People ex rel. Short v. Warden of City Prison, 145 App. Div. 861.)


The application of the District Attorney for Albany County and the affidavit of Thomas J. 0 ’Donnell indicate that the intention at that time was to receive an amendment of the warrant of May 4, 1971, and discontinuance of that warrant and a new replacing warrant. The warrant issued on May 26, 1971, included the new crimes of grand larceny first degree by <mask>, and criminal usury. It also included the numbers listed to defendant Sher and to one Louise Lozoff. It did not amend the warrant of May 4, 1971.


Section 155.05 of the Penal Law defines conduct which constitutes the crime of larceny. Subdivision 2 of section 155.45 of the Penal Law provides that “[p]roof that the defendant engaged in any conduct constituting larceny as defined in section 155.05 is sufficient to support any indictment * * * for larceny other than one charging larceny by <mask>.” (See, also, People v Farruggia, 41 AD2d 894.) Subdivision 1 of section 155.05 of the Penal Law broadly states that “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” Subdivision 2 sets forth specific means by which larceny may be committed. Additionally, grand larceny in the second degree requires that the property stolen exceed $1,500 in value (see Penal Law § 155.35). It is the People’s position that defendant’s conduct constitutes larceny committed by the means set forth in subdivision 1 of section 155.05 of the Penal Law and, additionally, by embezzlement and by obtaining property by false pretenses (see Penal Law, § 155:05, subd 2, par [a]).


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


The defendant claims that the evidence fails to establish that a larceny was committed in the manner specifically alleged in the first count. An indictment need not specify that a defendant committed a larceny in any particular manner, unless the theory of prosecution is that the larceny was from a person or was committed by <mask> (Penal Law § 155.45 [1]). In particular, when the theory of the prosecution is that the larceny was committed by false pretenses, the indictment need not so specify. (See People v Duffy, 231 AD2d 586 [2d Dept 1996]; People v Cannon, 194 AD2d 496, 498 [1st Dept 1993]; People v Farruggia, 41 AD2d 894 [4th Dept 1973].) Here the grand larceny count nonetheless specifically alleges that the defendant committed the larceny “by means of false pretenses.” This form of larceny, Penal Law § 155.05 (2), is committed when a person obtains possession of personal property by means of “a false material statement about a past or presently existing fact.” CPeople v Norman, 85 NY2d 609, 619 [1995]; Penal Law § 155.05 [2] [a]; see, People v Churchill, 47 NY2d 151, 156 [1979].) In contrast, larceny by false promise is committed when, “pursuant to a scheme to defraud,” a person obtains property by means of an express or implied representation “that he . . . will in the future engage in particular conduct, and when he does not intend to engage in such conduct.” (Penal Law § 155.05 [2] [d]; see People v Ryan, 41 NY2d 634 [1977].)


<mask> is a form of larceny under the law of this State (Penal Law § 155.05 [2] [e]). The respondent’s demands for payment ranged from $5,000 up to $400,000. As such, the crime of which the respondent was convicted is essentially similar to grand larceny in the second degree or grand larceny in the third degree (Penal Law §§ 155.40, 155.35).


It is obvious that the portion of the opinion just quoted refers to both economic matters and matters purely of public polity. There was nothing in the evidence to warrant any implication that in this state any rich escaped taxation, or that Mrs. Green was among those who so did escape. It may be so, but such an inference was dehors the proofs in this case. Consequently I feel at liberty, but for strictly juridical and ethical purposes, to consider the same economic matters and matters of public polity outside of the case, but at greater length. In democratic republics, with universal suffrage, the growing danger of injustice is not to the poor, but to people of property. We should remember that other great states have failed in the past when the country swarmed with a consuming hierarchy of <mask>, and the receivers of taxes outnumbered the taxed, who were destroyed under forms of law.


At trial Kaufman sought to present a defense that his prosecution for grand theft resulted from his refusal to give in to Emmet's attempted <mask>. On appeal Kaufman argues the trial court prejudicially erred in denying his pretrial motion in limine to admit evidence that Emmet threatened criminal prosecution if Kaufman failed to pay him. He also argues the court erred by failing to instruct the jury that Emmet's alleged extortion was a defense to *391grand theft. Kaufman claims the court's rulings should be reviewed under *351Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 ( Chapman ) because they deprived him of his constitutional rights to present a defense theory and to a jury determination of all facts pertaining to his guilt or innocence.


The plaintiff brought an action against the defendant, and declared, amongst other things, “ That he being vicar-general to the Bishop of “ Lincoln, the defendant had caused to be printed a petition to parlia- “ ment, charging him with divers crimes,' as <mask>, oppression, *362“ and corruption in his office.” The defendant justified the publication, and insisted on the truth of the subject matter of the petition. The act*on was Golden not to lie, the petition being the necessary and usual mode of complaint to parliament for the redress of any grievance. Holt’s Law of Libel, p. 184. Lake y. King, 1 Saund. 121. (K.) and is recognized in Hawk. P. C. 194. 2 Inst. S28. 2 Burr. 811. 3 Taun. 456. 2 N. Rep. 341. See also Croswell’s case, 3. Johns. Gas. 337. Duane’s case, 1 Binney, 601. 5 Johns. Rep. 1. 5 Johns. 508. Clapp’s case, 4 Mass. Rep. 163.


In this case, the indictment goes well beyond what is required. A larceny count need not specify that the defendant committed the larceny in any particular manner, unless the theory of prosecution is that the larceny was from a person or was committed by <mask> (Penal Law § 155.45 [1]). In particular, as already noted, a larceny count need not specify that the larceny was committed by false pretenses when that is the theory of the prosecution (see People v Duffy, supra; People v Cannon, supra; People v Farruggia, supra), and here the first count of the indictment, charging the defendant with grand larceny in the third degree, specifically alleges that the defendant committed the larceny by false pretenses. Even more particularly, it alleges that the property stolen was United States currency the defendant sought and obtained from the State of New York as “reimbursement for travel expenses ... by means of false pretenses in written instruments that the defendant offered for filing.”


Considering the context of Flanigan’s statements and their inclusion in a newspaper article concerning plaintiff’s attempts to evict a local manufacturer, no reasonable reader could understand Flanigan’s statements as saying that plaintiff committed the criminal act of <mask>. To the contrary, it is clear from the context of the article and Flanigan’s statements that Flanigan was concerned not with the legality of plaintiff’s actions, but with the impact those actions would *943have on the community in general and on a manufacturer to which the IDA had provided financial assistance to bolster the local economy. Nor is there anything in Flanigan’s statements or the newspaper article to imply that Flanigan’s use of the word "extortion” was based upon undisclosed evidence. Neither the article nor Flanigan’s remarks suggest that Flanigan was privy to any "inside information” about the lengthy and complicated legal dispute to which neither he nor the IDA was a party. Also lacking is anything to suggest that Flanigan was in a position to supervise plaintiffs actions or that Flanigan’s statements were the product of a deliberate, careful, in-depth investigation (cf., Brown v Albany Citizens Council on Alcoholism, 199 AD2d 904). A reasonable reader would understand Flanigan’s statements for exactly what they were: an impromptu reaction elicited by a newspaper reporter which the reporter used to add zest to an article about an otherwise mundane legal matter. Considering the communication as a whole, and in its immediate and broader social contexts, we conclude, as a matter of law, that a reasonable reader would be unlikely to understand Flanigan’s remarks as provable fact, but would understand his remarks as likely to be opinion.


"Respondent urges that Winfield’s testimony as to the substance of appellant’s statement (at the time it was alleged that the 'pay offs’ were to be change from appellant to Caputo) 'That that was the way it was going to be,’ constituted a threat that induced fear. Assuming but not deciding that the words constituted a threat, we find nothing in the record which indicated any fear was created in the mind of Winfield, who testified that his conversations with appellant 'were always cordial and on a friendly basis.’ In order to constitute the crime of <mask> the statute clearly requires evidence of a threat which creates fear in the person threatened. We find the evidence here insufficient to support the jury verdict on this charge in the indictment.” (People v Rollek, 280 App Div 437, 439, affd 304 NY 905; emphasis supplied.)


The second count of the indictment alleges that the defendants, each acting in concert with one another: "stole certain property which was obtained by <mask> committed by instilling in the victim, Daniel Leon, a fear that the actor or another person would use or abuse his position as a public servant by engaging in conduct within or related to his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely, namely, the defendants acting in concert demanding a quantity of United States currency to have defendant Latanya Gray, a police officer, withdraw criminal charges she had commenced against Daniel Leon.”


Kaufman's argument raises a pure question of law subject to de novo review. ( People v. Rells (2000) 22 Cal.4th 860, 870, 94 Cal.Rptr.2d 875, 996 P.2d 1184.) He admits he has not found any authority suggesting attempted <mask> by a victim provides a defense to criminal prosecution for grand theft by larceny. The cases he cites indicate only that if the facts supported it, the People could charge Emmet with extortion for abusing the criminal process. ( Beggs , supra , 178 Cal. at p. 81, 172 P. 152 ; Umana , supra , 138 Cal.App.4th at p. 628, 41 Cal.Rptr.3d 573 ; Morrill , supra , 93 Cal. at p. 456, 28 P. 1068 ; §§ 518, 519.) These authorities do not suggest alleged extortion by the victim should be an affirmative defense to the crime of larceny by the defendant .


The purpose of the licensing statute is stated in section 167 of the same article to be the “ safeguarding [of] the public against fraud, <mask>, exorbitant rates and similar abuses ”. The law was obviously directed at abuses in connection with resales of tickets by theatre ticket brokers and speculators and not at the prices charged by theatres at their own box offices, wherever located. Far from being detrimental to the public *211interest, the extension of theatre box offices to locations in Macy stores and elsewhere is a boon to the public, serves the public interest and should be encouraged. The fact that the business of theatre brokers, who sell tickets at premiums over box-office prices, may be adversely affected, furnishes no justification for holding that the box-office extensions or branches must be or should be licensed.


Michael Crumble and Ramell Markus (together, “Defendants”) appeal their respective judgments of conviction and their sentences. Defendants were indicted for kidnapping and committing physical violence against Daniel Nieves to obtain drugs and money. They were convicted after a jury trial of kidnapping conspiracy, 18 U.S.C. § 1201(c), kidnapping, id. § 1201(a)(1), and committing physical violence in furtherance of an <mask>, id. § 1951(a). They were acquitted of using, carrying, and possessing a firearm. Id. § 924(c). Markus was given a below- guidelines sentence of 180 months’ incarceration, to be followed by five years of supervised release. Crumble was given a below-guidelines sentence of 108 months’ incarceration, followed by five years of supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.


“ The Grand Jury is conducting an investigation into conspiracy to commit the crimes of bribery, corruption, <mask>, and as part of this investigation the Grand Jury has seen fit to call you as a witness. The Grand Jury is seeking to determine whether or not certain individuals have conspired to commit the aforementioned crimes as a means of entering legitimate business areas. The Grand Jury is seeking to determine that these individuals have agreed among themselves to use tactics which could be violations of the State Penal Law as a means of entering legitimate business enterprises, is that clear? ” He was further advised that if he testifies without asserting his privilege against self incrimination, he may be waiving his rights and that anything he says may be used against him. He was further advised as follows: “If you are going to assert your Fifth Amendment privilege against self incrimination, you will have to state so with respect to the questions put to you to indicate that you wish to be granted immunity by this Grand Jury. Now Mr. Oddo, in what business are you engaged in presently? ” He declined to answer on the ground that he had no opportunity to consult with his counsel and therefore he is asserting the Fifth Amendment privilege against self incrimination. The District Attorney thereupon requested the Grand Jury to grant the witness immunity from prosecution, The *585Grand Jury, in the absence of the witness, the stenographer and the District Attorney, voted to grant the witness immunity. He returned to the Grand Jury room; was advised that the Grand Jury voted to grant him immunity whereby anything he testifies to cannot be used against him, and if he discloses any crime he cannot be indicted for such crime. Upon being asked the same question, he advised the Grand Jury that he wished to consult with counsel because he did not understand the meaning of the word “ immunity ” and he was excused until the 20th of October.


Under the circumstances, and because it will enable the plaintiff to review this'ruling with a short record, and because the article makes it crystal clear that Mickey Sheen was a name adopted by this man Watson, who was in fact arrested for <mask>; that he had no right to use the name — he was not authorized to use the name; and that he was not in fact Mickey Sheen, or anyone by that name, is also made very, very clear by the article. As a matter of fact, alongside of the article is a picture of John Watson, who used falsely and wrongfully the name of Mickey Sheen. All this the article makes indubitably clear. Under the circumstances, this plaintiff whose theatrical name is Mickey Sheen cannot be held to have been libelled.


The People have adduced some evidence to establish each and every element of grand larceny by <mask> including a threat to: "Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.” (Penal Law, § 155.05, subd. 2, par. [e], cl. [ix].)


. Under the common law, compensatory damages for mental distress are only available under certain circumstances, as in cases involving extreme misconduct. (See, Prosser and Keeton, Torts § 12 [5th ed 1984].) Under this standard, liability has often been imposed for insult and indignity inflicted by persons in positions of power or responsibility with respect to the public (op. cit., at 57-59); or, "[t]he extreme and outrageous nature of the conduct may arise not so much from what is done as from abuse by the defendant of some relation or position which gives the defendant actual or apparent power to damage the plaintiff’s interests. The result is something like <mask>.” (Op. cit., at 61.) The statute protects employees from acts of extortion motivated by prejudice, and the insult and indignity perpetrated by employers who discriminate. Compensatory damages are available for mental distress caused in every employment discrimination case, as long as the emotional harm is proved.


It must be borne in mind that the Code does not in general terms define forgery, w'hile it does define other crimes, such as homicide, robbery, larceny, <mask>, etc.; and in order to ascertain what act or acts constitute forgery the several sections which treat of the subject, and their subdivisions, must be examined; and from such an examination it is clearly apparent that all of the sections and the subdivisions thereof are not interdependent or governed by a general definition.


The grand jury, acting properly within its broad inquisitorial powers (People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 391), is investigating whether the crime of conspiracy and <mask> had been committed in connection with the unionization of retail vegetable and fruit stores and in connection with the trucking of fruits and vegetables in the county of New York.


The defendants apparently rely upon the trial court’s action in submitting only representative counts to the jury as a new circumstance justifying a further evidentiary review. The trial court, to avoid placing an unduly heavy burden on the jury in its deliberation, decided to submit, as representative of the People’s case, only those counts of coercion and <mask> predicated on a theory of a threatened injury to persons (CPL 300.40 [6] [b]). The defendants therefore urge this court to again review the Grand Jury minutes and trial testimony, asserting that the evidence is insufficient to support this limited theory of prosecution.


The crime of <mask> "is the obtaining of property from another, with his [ ] consent, ... induced by a wrongful use of force or fear ...." ( § 518.) The "elements of the offense are: (1) A wrongful use of force or fear, (2) with the specific intent of inducing the victim to consent to the defendant's obtaining his or her property, (3) which does in fact induce such consent and results in the defendant's obtaining property from the victim." ( People v. Hesslink (1985) 167 Cal.App.3d 781, 789, 213 Cal.Rptr. 465 ( *725Hesslink ). ) A defendant may induce fear by threatening to expose, or impute to a person "a deformity, disgrace or crime" or "expose a secret affecting him [or her]." (§ 519; see Flatley v. Mauro (2006) 39 Cal.4th 299, 326, 46 Cal.Rptr.3d 606, 139 P.3d 2 ( Flatley ).) A "secret" includes a factual matter unknown to the general public, or to some particular portion of it interested in obtaining knowledge of the secret, and "must affect the threatened person in some way so far unfavorable to the reputation or to some other interest of the threatened person [such] that threatened exposure would be likely to induce him through fear to pay out money or property for the purpose of avoiding the exposure." ( Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1078, 267 Cal.Rptr. 457.) Whether a threatened exposure would affect the victim is a factual question and depends on the nature of the threat and the susceptibility of the victim. ( Ibid. ; see Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1424, 173 Cal.Rptr.3d 173 [threat may be implied from circumstances].) Extortion is a specific intent crime; guilt depends on the intent of the person who makes the threat and not the effect the threat has on the victim. ( People v. Umana (2006) 138 Cal.App.4th 625, 641, 41 Cal.Rptr.3d 573.)


Under the requirements of section 850 an indictment, charging the crime of <mask> and arising out of the fact situation quoted above, must plead the following elements: (1) That property was obtained; (2) That it was obtained with the victim’s consent; and (3) That the obtaining of the property was induced by wrongful use of force or fear. Under each of the four counts in the indictment it is alleged that the defendants actually obtained from the victim certain property owned by it, to wit, a stated sum of lawful currency of the United States of America. There can be no question that lawful currency issued by the Federal Government qualifies as property under the intendment of this statute and that the allegation as to that property satisfies in each count the element of “ obtaining of property from another.” (People v. Hagen, 212 App. Div. 879; People ex rel. Short v. Warden of City Prison, 145 App. Div. 861.)


Percoco and eight codefendants were charged via criminal complaint on September 20, 2016, and indicted November 22, 2016, accused of various corruption, <mask>, bribery and fraud offenses which are the subject of the Buffalo Billion/ Nano investigation. On December 21, 2016, United States District Court Judge Valerie E. Caproni signed a protective order on consent, binding on all parties, prohibiting disclosure to the public, including members of the media, of specified “disclosure material” produced by the USAO to defendants. The Executive Chamber itself is not a named party in the indictment.


A joint indictment against the defendants, Steve Wuckich, alias Steve Wilson, and George Lee, alias George Foster, charging them with the crimes of conspiracy in violation of section 580-a of the Penal Law and the crime of <mask>, was returned by the Grand Jury of Onondaga County, having been filed on the 7th day of December, 1959 and thereafter, on the same date, having been remitted to the Onondaga County Court for trial or other disposition. It appears that the indictment was sealed for the reason that the whereabouts of the defendants was then unknown.


The only basis for sustaining this factual scenario as representing a burglary-robbery vis-á-vis the father and a separate kidnapping, insofar as concerns the mother and son, is the imaginative manner by which the indictment was created to pose, in two neat, tidy packages, a burglary-robbery as to the *117father, and a kidnapping as to the mother and son. This approach, however, overlooks the actual facts as they unfolded. It also fails to perceive that, while the situation might have escalated into an actual kidnapping, the arrival of the police intervened. Clearly, under the facts of this case, there was no <mask> at the time the police arrived. Inasmuch as, at that time, the extortion and the robbery were one and the same, we do not have two separate, independent crimes. (See, People v Pellot, supra, 105 AD2d, at 232.) Moreover, as stated, the manner by which the indictment was crafted, in avoidance of the legal and equitable principle underlying the merger doctrine, is improper and transcends the prosecutorial role, which does carry with it a degree of fairness in terms of the public.


Silas B. Ferguson in making tbis loan acted as tbe agent for bis brother, and exacted a bonus or allowance of ten per cent as tbe condition of tbe loan. Tbe mortgage was given for $2,700 and only $2,430 of tbe defendant’s money was ever paid to tbe plaintiff thereon. It is true that tbe defendant knew nothing of tbe transaction at tbe time it took place; that bis agent kept tbe $270 for himself, and sent tbe mortgage by mail to tbe defendant who then resided in Otsego county and charged him $2,700 therefor. Tbis was in 1873. A year later, however, the defendant learned that tbe mortgage, as be expresses it in bis testimony, “ was bought at a discount. ” He then learned or would have learned if be bad prosecuted tbe inquiry, that he was bolding a mortgage for $2,700 upon which only $2,430 of bis money bad been loaned, and that bis agent bad exacted $270 usury thereon. It was then open to him either to ratify the act of bis agent or to repudiate it. He chose to ratify it by receiving interest for several years upon tbe whole sum and finally b.y seeking to foreclose for tbe whole sum. To restrain such foreclosure tbis action is brought. We think the judgment should be affirmed. Tbe defendant cannot with full knowledge of all the facts appropriate to himself the fruits of bis agents action, without ratifying ,the instrumentalities by which it was accomplished. No case is presented showing that tbe agent made any separate bargain for a bonus for the benefit of himself Tbe transaction was an express exaction of ten per cent, ostensibly for tbe benefit of tbe lender, without pretense that it was for the benefit of the agent, a transaction which the principal in no way has repudiated. In this respect the case differs from Philips v. Mackellar (92 N. Y., 34); Estevez v. Purdy (66 id., 446); Van Wyck v. Waters (81 ib., 352), and other similar cases in which the lender advanced the entire sum for which the security was given, and the agent in some way appropriated part of it to himself. Here the lender did not advance the face of the mortgage. His agent had his funds and could advance for him as much or as little as his thrift in <mask> required, and the result in this case was *375the principal obtained a $2,700 bond and mortgage for $2,430, and he allowed his agent to charge him $250 for his services; thus the> principal took all of the usury, and allowed his agent liberal wages,, not out of it, but because of it. The case seems to be much stronger than Algur v. Gardner (54 N. Y., 360).


him in the event of the failure to accomplish his <mask> and of a prosecution for his attempted crime.” (People v. Sanders (1922) 188 Cal. 744, at pp. 749-750; cited with approval in Flatley, supra, 39 Cal.4th at p. 327.) Again, it is the fact that the threat is directly linked to the monetary demand that is the critical factor. “‘It is the means employed [to obtain the money] which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition.’” (Flatley, supra, 39 Cal.4th at p. 326, italics added.) Applying these rules to the current facts, we believe Mousavi’s initial communication with Falcon on September 6, 2019, as described above, was innocent. Her next e-mail sent on October 8, 2019, is a closer call when considered by itself. That e-mail contained at least an implicit threat, as Mousavi specified the crimes Falcon had allegedly committed, though she never directly linked her settlement demands to them. Instead, she explained how she had calculated her client’s damages without making any direct reference to the alleged criminal misconduct. A skeptical observer might reasonably wonder why Mousavi referenced the “BBC Violations” at all within that demand. Indeed, we share that curiosity. We nonetheless conclude the October 8 correspondence standing alone may not have crossed the line into misconduct. But the October 8 e-mail must be considered in context along with the October 11, 2019 e-mail. In that e-mail Mousavi informed Falcon’s counsel she had already “put the attorneys for Harvest Health & Recreation Inc. (‘Harvest’) on notice about Mr. Honard’s claim for wages, without disclosing other issues mentioned in my letter of October 8, 2019.” There can be no doubt that bribing a deputy district attorney (as alleged in the October 8 e-email) involves criminal misconduct. Mousavi then added, “Harvest has requested that I forward the demand letters I have sent you. I am planning to


. Since under the original statutory scheme, no greater degree of larceny could be committed than that committed by <mask>, the prosecution had no incentive to frame a charge of grand larceny by extortion based solely upon the value of the property. In 1986, the Penal Law was amended to include a degree of larceny based upon the value of the stolen property exceeding $1,000,000 (Penal Law § 155.42, L 1986, ch 515, § 3), which exceeded larceny by extortion in the severity of punishment available.


The Home Owners’ Loan Act makes no provision for the outright payment of money to any particular class. It simply provides a means for loaning money to home owners to an amount not exceeding eighty per cent of the appraised value and in no case more than $14,000 on any one parcel of property. The loan bears interest and has to be repaid within a definite period of time. The loans are not limited to those who are improvident or incapable of properly protecting their own interests. The benefits of this act are open to all those who, because of the financial emergency, are unable to amortize their debt elsewhere. Public policy, therefore, does not require that this class of citizens be protected against <mask> or improvident bargains. Indeed, the type of person who owns his own home is usually well able to make contracts and to fully protect his rights. This is not a case, therefore, where Congress may interfere with the guaranties under the Fifth Amendment.


First, the subject matter of the Nassau County case was highly technical. Del Col, an attorney, was charged along with another with attempted <mask> from Data Treasury Corporation. The codefendant, who was Del Col’s client, was scheduled to testify in a civil suit between the corporation and Wells Fargo relating to the use of technology patented by the corporation. The People’s theory was that the defendant told the corporation that the codefendant’s testimony would be favorable or unfavorable, depending on whether the corporation paid them off. The Special ADA in Del Col was selected because of his particular technical expertise, developed during past service in the District Attorney’s Technology Crimes Unit. His special knowledge would naturally make his decisions difficult to “supervise.”


It appears to the court that the Legislature by adopting these special rules of pleading and proof in regard to <mask>, simply acknowledged the separate origin of the crime of extortion apart from the common-law crime of larceny. Under the former Penal Law, extortion was a crime separate and *1008apart from larceny (former Penal Law §§ 850, 851). Extortion involves special problems of proof, and is more akin to robbery than to other forms of larceny. (See, People v Woods, 50 AD2d 941, 942 [2d Dept 1975] [dissenting opn, Cohalan, J.]; former Penal Law § 2120.) Upon enactment of the revised Penal Law, the crimes of extortion and larceny were merged. (See, Denzer and McQuillan, Practice Commentary, McKinney’s Con Laws of NY, Book 39 [1967], Penal Law former § 155.40, at 458.) The previously recognized common-law forms of larceny and the statutory crime of extortion were incorporated into the revised Penal Law as larceny. (See, Penal Law § 155.05 [2].) Extortion became the most severely punished form of grand larceny. (Penal Law former § 155.40.)2 The revisers of the Penal Law believed that including extortion within larceny was a "somewhat novel arrangement”. (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 155, at 103.) Since extortion was not larceny at common law, former Penal Law § 1290-a did not encompass charges of extortion. Therefore, under this predecessor to revised Penal Law § 155.45, an indictment for extortion necessarily would have specifically pleaded the separate statutes. The revisers of the Penal Law simply maintained a vestige of the historical separation between these crimes, by requiring that "[w]here it is an element of the crime charged that property was * * * obtained by extortion, an indictment for larceny must so specify” (Penal Law § 155.45 [1]). In the court’s view, this legislative history indicates an intent to continue to require special pleading as to any indictment upon evidence which would have constituted the crime of extortion under the former Penal Law.


Notably, each of these cases preceded the 2002 creation of unlawful possession of personal identification information, a crime that, as discussed above, indicates the diminished relevance of the term “tangible” in the Penal Law’s definition of “possess.” We are thus inclined to reject the reasoning of Molina and Tansey and, instead, adopt an analysis more consistent with Johnson. The proposition that intangible property cannot be criminally possessed leads to the bizarre result that a person may commit larceny of intangible property, but may not be guilty of criminally possessing the very property which he or she has stolen (see Richard A. Greenberg et al., Criminal Law § 15:24 [3d ed 6 West’s NY Prac Series 2007]). The Tansey court pointed out that “[i]n neither Spatarella nor Garland did the Court [of Appeals] suggest that this view of property would be applicable to larceny by means other than <mask>, or to a possession offense” (Tansey, 156 Misc 2d at 239). However, the Court did not foreclose the possibility of expanding that view to criminal possession offenses.


The claim is made, first, that the District Attorney should be required to make more specific, by bill of particulars, the site where it is claimed that the alleged crime of <mask> was committed since “ in the County of New York ” includes all of Manhattan Island. It has been repeatedly held that a given county is a sufficient allegation of fact and is all that the statute requires in such case. The District Attorney cannot be compelled to furnish the particular building with address or location thereof and, unless he consents, the defendants are not entitled to this information which is in the nature of evidence.


However, the decision actually compels the opposite result. The Court of Appeals was willing to force juries to split hairs in deciding which crime had been committed. (People v Dioguardi, 8 NY2d 260, 273-274.) But it did so only because of the logical inconsistency between a crime involving compulsion by one guilty party and one involving a voluntary agreement by two guilty parties. In contrast to the Dioguardi prosecution, the indictment at bar charges attempted <mask>, not extortion, and the solicitation of a bribe, not its actual receipt. Under the People’s theory of the case there is no incongruity: both allegations point to guilt only on the defendant’s part.


There is also included in the “ unclear ” area referred to in People v. Barr (supra) a situation where the pleaded crime is so remote (not “ factually connected ”) to the crime charged in the indictment, that its acceptance constitutes a violation of the constitutional provision (N. Y. Const., art. I, § 6) that “no person shall be held to answer for a capital or other infamous crime * * * unless on [presentment or] indictment of a grand jury.” (See People ex rel. Cooper v. Martin, 5 A D 2d 736, supra; People v. Englese, 7 N Y 2d 83, supra; People v. Barr, 12 A D 2d 722.) But as a practical problem such instances are not likely to arise. Courts do not accept pleas to crimes so remote from the crime charged in the indictment as not to be at least 1* factually connected ’ ’. Thus a plea to robbery in an indictment alleging a felony murder would be ‘ ‘ factually connected ”; as would crimes such as coercion or <mask> to robbery or larceny. But even such hypothetical cases have not arisen in any jurisdiction. Courts require much closer factual connection before accepting pleas.


Of course, Yellen and Sikowitz had no legal right to be endorsed by the Party, or to continue to be endorsed or supported by the Party, and the Party had the legal right to endorse and to withdraw the Party’s endorsement and support from any candidate it chose. (Eu v San Francisco County Democratic Cent. Comm., 489 US 214, 224 [1989] [“Barring political parties from endorsing and opposing candidates not only burdens their freedom of speech but also infringes upon their freedom of association”]; California Democratic Party v Jones, 530 US 567, 575 [2000] [“In no area is the political association’s right to exclude more important than in the process of selecting its nominee”].) However, <mask> and coercion may be committed by threats to engage in conduct that is otherwise legal (People v Dioguardi, 8 NY2d 260, 271 [1960] [“(the) entire character (of picketing by a labor union) changed from legality to criminality . . . when it was used as a pressure device to exact the payment of money as a condition of its cessation”]), and a person may commit extortion or coercion by making a lawful demand for an unlawful reason. (People v Forde, 153 AD2d 466, 473 [1st Dept 1990] [defendant committed extortion when he “threatened the use of the otherwise legal ‘matching’ clause (of a labor contract) to harm (the victim’s) company business, unless (the victim) paid him $2,000, since the defendant’s use of the ‘matching’ clause was intended to extort money, rather than to carry out a legitimate objective of the Union”]; see also United States v Enmons, 410 US 396, 406 n 16 [1973] [for defendant charged with violation of the federal Hobbs Act, which incorporated New York’s definition of extortion, “when the objectives of the picketing changed from legitimate labor ends to personal payoffs, then the actions became extortionate”].)


*584The regular April 1964 Grand Jury of the County of Kings, as extended, has been and is conducting an investigation to determine whether the crimes of conspiracy, bribery, corruption, coercion, <mask> and usury were committed in Kings County by certain individuals. The Grand Jury heard testimony of several witnesses and examined certain books and records pertinent to the investigation. A reading of the Grand Jury minutes by the court leads it to the conclusion that the inquiry being made by the Grand Jury was in compliance with the law conferring duties upon the Grand Jury, section 245 of the Code of Criminal Procedure, which reads as follows: “ Power of grand jury to inquire into crimes, etc. The grand jury has power, and it is their duty, to inquire into all crimes committed or triable in the county, and to present them to the court.”


(Flatley, supra, 39 Cal.4th at p. 326, fn. omitted.). “Attorneys are not exempt from these principles in their professional conduct.” (Id. at p. 327.)7 The Supreme Court addressed a pivotal argument tendered by Mousavi both in the trial court and before us—that her conduct did not constitute <mask> since she threatened no direct disclosure of Falcon’s alleged criminal misconduct to either law enforcement or the media. We recognize at this point that this argument will strike a familiar chord with many lawyers who might ask, isn’t this type of posturing standard operating procedure for aggressive litigators? Don’t lawyers regularly link settlement demands to threatened consequences? In response, we concur with the answers provided by the Supreme Court in Flatley: “threats to do the acts that constitute extortion under Penal Code section 519 are extortionate whether or not the victim committed the crime or indiscretion upon which the threat is based and whether or not the person making the threat could have reported the victim to the authorities or arrested the victim. [Citations.] Furthermore, the crime with which the extortionist threatens his or her victim need not be a specific crime.” (Flatley, supra, 39 Cal.4th at p. 327.) In other words, it is the threat to reveal damaging information, not any subsequent revelation, that makes the conduct illegal when the threat is linked to a monetary demand. Many, perhaps most, extortionate threats may never actually be conveyed to either law enforcement or the media. The reason for this is obvious enough: the threat had its desired effect. “[T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect California Rules of Professional Conduct, rule 3.10 also prohibits attorneys from making threats “to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.”


might be read as creating such a bright-line distinction, we respectfully disagree. While <mask> may “commonly” involve a threat of future harm, the statute does not so require. Section 518 does not prescribe a minimum opportunity for the victim to “consent” to avoid the harm threatened. And, as the “consent” is not actual consent but coerced capitulation, we see no reason to distinguish between threats of immediate harm, that leave little time to the victim to consider his options, and threats of far-off harm, that offer more time for reflection. Indeed, the more immediate the threat, the more likely it is to prompt compliance, strengthening the inference that the perpetrator sought to induce the victim’s “consent” within the meaning of section 518.3


As to his contention that the facts stated do not constitute the crime of <mask>, the defendant insists that there was no threat to do an unlawful injury to the property of another and, further, that no property was obtained by the defendants from any of their alleged victims. In addition he claims that the alleged acts, if true, would constitute, at best, the crimes of conspiracy and coercion, which are misdemeanors, but would not constitute the crime of extortion, a felony.


<mask> is the obtaining of property from another, with his consent induced by a wrongful use of force or fear. Fear such as will constitute extortion, may be induced by a threat: to do an unlawful injury to the property of the individual threatened. The common-law offense of extortion, affecting public office, has been extended by statute so as to include acts of private individuals. (2 Cyc. Crim. Law, § 1198; 3 Whart. Crim. Law [11th ed.], § 1895.)


<mask> (Penal Law, § 850 et seq.) and bribery in connection with labor relations (Penal Law § 380) have long been the subject of regulation in this State. They are certainly within the ambit of the historic and traditional police power of the State. There is nothing in the language of the Federal statute here involved or in its legislative history to suggest that Congress intended to foreclose the States from continuing to protect their inhabitants from such evils. On the contrary, such sources of Congressional intent as are available indicate that Congress did not purpose to invalidate existing State legislation on such subjects or to preclude State action with regard thereto.


In the instant case defendants are charged with <mask> by aiding and abetting the threat to picket certain stores unless they changed from nonunion cartmen to General Sanitation Service Corporation or others said to be, but which in fact were not, union carting companies. It is not necessary to extend *565this decision by a detailed analysis of the testimony. Suffice it to note that the evidence would not be sufficient unless it can be said with moral certainty that the only purpose it spells out is to benefit the defendants rather than the union. The testimony of Nolan and of each of the three store managers was that no suggestion was ever made concerning which cartman on the list proffered by Nolan was to be taken, that Nunzio Squillante though present did not speak until after General Sanitation had been selected, and that the sole reason for selecting General Sanitation was that it was first on the list. Recognizing the problem thus presented, the People introduced testimony intended to show a relationship between Vincent Squillante and most of the other companies on the list or to show that the remaining companies were not qualified to handle the business. Whether the evidence is of sufficient strength to bridge this gap in the chain of circumstances is a substantial question for the Appellate Division’s consideration.


Harold J. Rothwax, J. The defendants are before this court following rendition of a partial verdict on the indictment by a trial jury, which reached an impasse resulting in a mistrial as to the remaining counts. Of the original 51 counts contained in the indictment, 12 (Nos. 40-51) were severed by this court as involving only the defendant Leisner in a conspiracy exclusive of Marx and hence improperly joined (People v Ruiz, 130 Misc 2d 191, n, 193 [Sup Ct, NY County 1985]); and two were dismissed by this court for insufficiency of the evidence before the Grand Jury to establish the defendants’ complicity in burglary. In addition, prior to jury submission, the trial court dismissed two counts each of attempted grand larceny (Nos. 18, 32) and attempted coercion (Nos. 20, 34), apparently for legal insufficiency of the evidence at trial, and withdrew 18 counts, evenly divided between attempted grand larceny and coercion based upon the theory of damage to property (Penal Law former § 155.40 [2] [b]; § 135.65 [1]), apparently in order to simplify the jury’s tasks of deliberation by limiting the charges to <mask> and/or coercion by means of instilling fear of physical injury (Penal Law former § 155.40 [2] [a]; § 135.65 [1]). Fifteen counts were submitted to the jury, resulting in a verdict of guilty as to the first (a charge of conspiracy in the fourth degree), and a verdict of not guilty as to the second and fourth (attempted grand larceny and attempted coercion) counts. The jury was unable to agree on a verdict as to the remaining 12 counts and a mistrial was declared, without the defendant’s consent, after five days’ deliberation. The defendants have appealed the conspiracy conviction and the appeal is pending. The remaining counts are here for retrial.


The issue then is whether the exemptions contained in Local Law No. 9 remedy the due process constitutional difficulties of the SRO legislation. Upon examination of the exemptions contained in Local Law No. 9, I find that they fail to alleviate the constitutional infirmities which existed in prior SRO legislation and create additional ones. The exemptions are tantamount to <mask>. While purportedly allowing the SRO owners to one day recover the use of their buildings, the law extracts a very high price for exercise of property rights. The regulatory scheme contained in Local Law No. 9 places an unfair and uncompensated burden on one class of property owners. The legislation in effect forces private indi*109viduals to subsidize a low-income housing program administered by the City of New York. Such a regulatory scheme severely interferes with plaintiffs’ property rights. Accordingly, I find Local Law No. 9 was enacted in violation of plaintiffs’ due process rights.28


There are two indictments against these defendants, one filed February 26, 1943, and the other filed March 10, 1943, the latter being a superseding indictment adding the crime of <mask> to the crime of attempt to commit the crime of extortion as originally charged. The attempted crime is alleged to have been committed, by these defendants in the county of New York between on or about December 1,1938, and on or about January 13, 1939, attempting to obtain extortively the sum of $100,000, property of the Dravo Corporation, from E. T. Gott, Richard W. Hemp and J. S. Miller, officers of said corporation, in order to unlawfully injure the property of said corporation by corruptly and unlawfully fomenting and declaring strikes among its employees and by unlawfully and corruptly using their power to prevent the Dravo Corporation from entering into a contract with the International Union of Operating Engineers and the International Hod Carriers, Building and Common Laborers *605Union, by unlawfully and corruptly using their power to prevent said corporation from employing members of said union, by unlawfully and corruptly using their power to prevent said corporation from, employing members of said union at prevailing and reasonable rates of wages and by unlawfully and corruptly hindering and impeding the conduct of the business of said corporation and otherwise interfering with'it.


Howard E. Goldfluss, J. The defendant is charged in the indictment with criminal usury in the first degree and grand larceny by <mask>. He moves herein to suppress all evidence acquired or derived from electronic surveillance pursuant to an order of a Justice of this court previously issued on June 26, 1979. He relies on the recent decision of the New York State Court of Appeals, People v Shapiro (50 NY2d 747), which declared the New York statutory scheme for authorizing wiretapping unconstitutional as applied to the defendant therein. He maintains that the rationale and the conclusion in the Shapiro case must apply to him as well.


“ ‘ But there are other laws which are calculated for the protection of the subject against oppression, <mask>, deceit, etc. If such laws are violated, and the defendant takes advantage of the plaintiff’s condition or situation, then the plaintiff shall recover; and it is astonishing that the reports do not distinguish between violations of the one sort and the other.’ Two things are to be noted in this extract. That a distinction is taken between contracts malum prohibitum merely, and such as are immoral or contrary to general principles of policy; and also that stress is laid upon the fact that the law contravened in this case was intended to protect one party from oppression by the other. The first is a valid distinction, which runs through all the subsequent cases ■ — ■ the last was merely incidental to the particular case, and not essential to the principle. The first cases in which the principle was applied, were naturally those where the statute violated was intended for the special protection of the party seeking relief from some undue advantage taken by the other, because those were the cases in which the injustice of applying the same rule to both parties would be the most glaring. But it soon came to be seen that the principle was equally applicable to cases where the law infringed was intended for the protection of the public in general. * * *


“ (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or <mask> or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.


The defendant testified before the Grand Jury that when he heard the two men arguing with other club employees about the missing money, he heard one of them say that they were going to kill someone in the club if the money was not returned. He testified that when the argument became heated, he was "very scared” and went to his room to get his gun. He returned to the room where the men were arguing. He testi*709fied that the men stood, side by side between him and the front entrance to the club, and that the rear entrance led to a blind alley. He told the men that if they would tell him "where they came from” he would tell his boss to pay the money. The men said they were "Tong On”, a gang the defendant recognized as having a "bad” reputation for murder, <mask> and kidnapping. The defendant testified that he was afraid that if he did not pay them, the men would kill him. The men said that they wanted the money "right now”. One of the men said that if the defendant did not have any money, the man was going to kill somebody from the club. The defendant testified that the man pulled his jacket to the side and the defendant saw what he believed to be a gun handle. Defendant pulled his gun and fired twice without looking at the man. As the man approached him, the defendant continued to fire until the man fell. The other man ran. He denied chasing after and firing at the other man. The defendant also denied trying to flee, and denied possessing the bag that contained the gun.


In respect of the fund of $45,000 included in the tax estate the record furnishes no intelligible explanation why the sum should have been included in the tax estate at all. Its inclusion appears to be another evidence of arbitrary and irrational conduct of taxing officers of the government in forcing citizens to pay taxes in excess of the amounts actually due because some bureaucrat in the revenue department insists on the inclusion of an arbitrary addition to the taxable property of deceased though unable to advance any defensible theory for its inclusion. Here it would seem that the taxing authorities attempted an utterly indefensible inclusion in the tax estate of deceased of a fund put *893in trust by her in 1921. That trust ended in 1935 and the beneficiaries of the principal thereupon created other trusts with what they received. In respect of these further trusts deceased had certain rights. There is no basis upon which $45,000 can be asserted to be the measure of those rights. The sum of $45,000 included in the tax estate of deceased appears to be merely the lowest figure at which the estate representatives could compromise the indefensible demands of the revenue authorities. It appears to have been included by the assent of the estate representatives in surrender of their legal rights because of fear of attempted larger exactions and of fear of the cost of the estate assets of insistence upon the estate’s legal rights. Nowhere in the assessment notices or in the computations of the taxing authorities is any description given of the property taxed which explains the figure $45,000. Nor is there given any statement of the source of that fund. No combination of calculations on any theory can produce a sum of $45,000 as a figure representing any property value subject to tax by reason of deceased’s death. It stands on this record as the basis merely to an <mask> of excessive taxes from the estate. In these circumstances the court cannot find that it is related to any deed of trust of deceased at all. That of 1921 contains no language charging the property affected thereby with the tax. That of 1935 was not deceased’s indenture and so is not within the terms of the will. The ultimate consequence is that the true estate must pay the exaction.


*301The indictment charges the defendants with attempted <mask>. It alleges that the Croation Printing and Publishing Company was a New York corporation “ engaged in the City and County of New York and elsewhere in the business of editing, publishing and distributing a certain daily newspaper,” and that one Zotti was an officer and stockholder in the corporation; and that the defendants did feloniously attempt to obtain from said Zotti 1,000 shares of the stock of said corporation by means of a threat, “ then and there made to do an unlawful injury to the property of the said corporation; ” that is to say, by preventing, persuading and obstructing advertisers from inserting advertisements in the said newspaper.


The second count of the indictment alleges that the defendants, each acting in concert with one another: "stole certain property which was obtained by <mask> committed by instilling in the victim, Daniel Leon, a fear that the actor or another person would use or abuse his position as a public servant by engaging in conduct within or related to his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely, namely, the defendants acting in concert demanding a quantity of United States currency to have defendant Latanya Gray, a police officer, withdraw criminal charges she had commenced against Daniel Leon.”


On the other hand, when a union official threatens to picket a company unless the company agrees to hire a firm that uses the union’s members, the action threatened — picketing unless such a firm is hired — would materially benefit the union official in his representative capacity by furthering the interests of the union and its membership. (People v Adelstein, 9 AD2d 907 [2d Dept 1959], affd without op 8 NY2d 998 [1960].) As the United States Supreme Court has itself observed, “judicial construction of the New York statute reinforces the conclusion that, however militant, union activities to obtain higher wages do not constitute <mask>. For extortion requires an intent ‘to obtain that which in justice and equity the party is not entitled to receive.’ ” (United States v Enmons, 410 US at 406 n 16, quoting People v Cuddihy, 151 Misc 318, 324 [Ct Gen Sess, NY County 1934], affd 243 App Div 694 [1935].)


The court of appeal then turned to the term imposed for the <mask> count. The court noted that the conviction for extortion under section 518 required the jury to find "the use of force or fear induced by threat." ( Anaya, supra, 221 Cal.App.4th at p. 272, 164 Cal.Rptr.3d 216.) The court further noted that the subdivision (b)(4)(C) life term applies to extortion under section 519, which defines fear induced by threat. From these observations, the court inferred that the Legislature intended for the subdivision (b)(4)(C) life term to *56apply when the offense involves a threat, but not when it involves a use of force absent any threat. The court rejected the Attorney General's argument that this would result in absurd results by punishing threats more harshly than the actual use of force. The court held that "reserving the seven year-to-life term for the crime of extortion that involves a threat comports with the Legislature's desire to punish that threat more harshly. The use of force only, on the other hand, could amount to nothing more than a battery. Therefore, we believe the Legislature intended extortion committed via a felonious threat to be treated more harshly than extortion by simple force." ( Id. at p. 273, 164 Cal.Rptr.3d 216.) Because the jury could have convicted the defendants of extortion based the use of force without a finding of fear induced by threat, the court vacated the enhanced sentence.


e-mail those letters on Tuesday.” The implication is clear: settle the case now or Harvest will become aware of Falcon’s alleged criminal misconduct next week. “It is not necessary that a threat should be apparent from the face of the letter, nor even necessary that it should be implied therefrom. The statute says if the language used is adapted to imply a threat, then the writing is sufficient. Parties guilty of the offense here alleged seldom possess the hardihood to speak out boldly and plainly, but deal in mysterious and ambiguous phrases . . . .” (People v. Choynski (1892) 95 Cal. 640, 641–642; Umana, supra, 138 Cal.App.4th at p. 640.) If Mousavi had not crossed the line earlier, her October 11 e-mail clearly did. As discussed above, Penal Code section 518 outlaws “obtaining of property . . . from another, with his or her consent . . . induced by a wrongful use of force or fear.” (Pen. Code, § 518, subd (a).) The statute specifically provides that fear can be created by accusing “the individual threatened. . . of a crime.” (Pen. Code, § 519.) Mousavi’s $490,000 settlement demand, as explained in her October 8 e-mail correspondence, was for unpaid wages, commissions, and related expenses. The demand was unrelated to any alleged criminal conduct. Thus, to paraphrase Flatley, Mousavi’s threat to disclose criminal activity entirely unrelated to her client’s damage claim “‘exceeded the limits of respondent’s representation of his client’ . . . . (State v. Harrington, supra, 260 A.2d at p. 699 [attorney’s veiled threat to have his client in a divorce action inform on her husband to the Internal Revenue Service and Bureau of Immigration and Naturalization supports attorney’s conviction of extortion].)” (Flatley, supra, 39 Cal.4th at pp. 330-331.) B. Evidence of <mask> As the trial court noted, the evidence made clear that Mousavi expressly linked her next potential communication with Harvest—which she knew would inevitably reveal her accusations of criminal misconduct against Falcon—to Falcon’s failure to meet her settlement demand. This was extortion: “obtaining of property . . .


Penal Law § 110.10 applies when, as here, a person mistakenly believes that another participant in a criminal transaction is acting as a criminal, not as an undercover officer, and the crime is impossible according to its statutory definition because the other participant is an undercover officer. In such cases a charge of a completed crime must be reduced to an attempt to commit the crime (see, People v Zodda, 153 Misc 2d 94, supra; People v Babits, 122 Misc 2d 6, affd 116 AD2d 1047, supra; People v Coleman, 74 NY2d 381 [attempted promoting prostitution in the second degree (attempting to enlist as a prostitute a person less than 16 years old) was committed when the defendant, proposing to become a pimp for a young woman, mistakenly believed her to be a 15-year-old runaway, when she was actually a 24-year-old undercover police officer]; People v Zaborski, 59 NY2d 863 [while it was impossible to commit the crime of criminal possession of stolen property when the defendant received the stolen property from a police agent in a sting operation, the crime of attempted criminal possession of stolen property was established]; People ex rel. Perry v Gillette, 200 NY 275 [although the intended victim of a shakedown paid money to the defendant in an apparent response to the defendant’s threats, he did so while acting on behalf of the police, and therefore the <mask> was not consummated; the proper charge was attempt to commit extortion]; People v Bon*261signore, 21 AD2d 309 [same]; People v Leichtweis, 59 AD2d 383 [the crime of burglary, charged as entering a building “unlawfully” to commit a larceny, was impossible because the security guard whom the defendants had bribed to facilitate their entry was secretly working with his employers to permit defendants’ entry, in order to catch them inside, so their entry was authorized and not unlawful; however, attempted burglary was established because the defendants were unaware of that law enforcement plan]).


The <mask> and coercion statutes at issue here violate neither the right to free speech nor the right of association. While the conduct each statute targets unquestionably includes speech, and while in this case the speech was uttered in the context of a political party’s endorsements of candidates for public office, each statute requires that the speech constitute a threat that the speaker will cause the victim “material harm” and that the conduct threatened be such that it would not “materially benefit” the actor. (Penal Law § 135.60 [9]; § 155.05 [2] [e] [ix].) Because the statutes are thus focused on threats of damage made for no legitimate purpose, they fall outside “ ‘the realm of social or political conflict where threats to engage in behavior that may be unlawful may nevertheless be part of the marketplace of ideas, broadly conceived to embrace the rough competition that is so much the staple of social or political discourse.’ ” (United States v Jackson, 986 F Supp 829, 833 [SD NY 1997], vacated on other grounds 180d 55 [2d Cir 1999] [error in jury instructions], revd on rearg 196d 383 [2d Cir *8191999] [conviction restored because error was harmless], quoting United States v Velasquez, 772d 1348, 1357 [7th Cir 1985].)13 For the same reasons, application of these statutes to the conduct with which the defendants are charged does not impermissibly interfere with the “internal administration of [a] party organization.” (Smith v Pigeon, 174 Misc 2d 97, 101-102 [Sup Ct, Erie County 1997].)


The indictment sets forth a designated period of time during which the alleged crime was committed by the defendant, the designated county in which the crime took place, and that the defendant stole property of the nature or value required to constitute the commission of the crime of grand larceny in the second degree. The People are under no obligation to set forth the particular way or manner in which the sum of $245,284.91 was stolen or the particular theory of larceny involved (Penal Law, § 155.45, subd 1). See, also, People v Farruggia (41 AD2d 894), in unanimously affirming the defendant’s conviction for grand larceny in the second degree, the court said: "Appellant urges that the indictment does not comply with CPL 200.50 (subd. 7) requiring a plain and concise statement of facts supporting the offense charged because it does not allege that the larceny was committed by false pretenses. The offense *337charged is larceny. False pretense is an evidentiary allegation of the means used to commit the crime and need not be specifically alleged. (CPL 200.50, subd. [7]; Penal Law, § 155.45.) An indictment charging larceny generally is supported by proof of any conduct constituting larceny as defined by section 155.05 of the Penal Law, except where property is taken from the person or obtained by <mask>. (Penal Law, § 155.45, subd. 2.) CPL 200.50 (subd. 7) is a re-enactment of similar provisions of the Code of Criminal Procedure. We find no reason to infer that these provisions of the Criminal Procedure Law enacted after section 155.45 of the Penal Law impliedly repealed it.”


Based upon an investigation of the foregoing facts, which included interviews with Mrs. Burnham at the hospital on *419four separate occasions, Detective Favuzzi arrested the defendants on June 5, 1985. The defendants were indicted under indictment No. 2887/85 for the following crimes: attempted murder in the second degree; assault in the first degree (two counts); grand larceny in the first degree by <mask>; grand larceny in the second degree (17 counts); criminal possession of stolen property in the second degree; coercion in the second degree; and conspiracy in the fourth degree.


Per curiam. Delivered by Radcliff, justice. This is a case on error, from the sessions in Montgomery. The plaintiff was indi filed in the sessions for <mask>, as an attorney of the court of common pleas for that county. General errors have been assigned, and a number of objefitions taken to the indifitment and to the record, some of which are objefitions of form, and others of substance.


APPEAL from a judgment of the Superior Court of Los Angeles County. Mike Camacho, Judge. Affirmed in part, vacated in part, and remanded with directions. Christine Dubois, 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, Stephanie A. Miyoshi and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________ Defendant Richard Bert Mendoza, Jr. (Defendant) appeals the judgment entered following a jury trial in which he was convicted of (1) attempted <mask> (Pen. Code, §§ 664, 518);1 (2) attempted robbery (§§ 664, 211); (3) assault with a deadly weapon (§ 245, subd. (a)(1)); (4) assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)); (5) robbery (§ 211); (6) assault with a deadly weapon (§ 245, subd. (a)(1)); and (7) dissuading a witness (§ 136.1(b)(1)). The jury further found true the allegations of personal use of a deadly or dangerous weapon with respect to the first and second counts (§ 12022, subd. (b)(1)) and for inflicting great bodily injury with respect to the third and fourth counts (§ 12022.7, subd. (a)). The trial court imposed an aggregate sentence of 24 years and 4 months. Defendant contends: (1) his conviction for attempted extortion was unsupported by evidence; (2) he should not have been separately sentenced for distinct criminal acts committed during a continuous attack; and (3) multiple issues pertaining to the trial court’s exercise of discretion in sentencing him require resentencing. We agree in limited part due to a change in the law, vacate a portion of Defendant’s sentence, and remand for resentencing as set forth below. BACKGROUND Defendant’s convictions stem from two separate criminal episodes in the city of Pomona occurring weeks apart in 2018. The Spadra Cemetery Incident On the evening of September 16, 2018, young cyclists on a group ride sought to take a shortcut through the Spadra


The moving papers do not disclose, and the court is, therefore, left in doubt, as to whether the applicants view this alleged transaction as a species of duress, as <mask> or merely as a type of usury. Furthermore, it is not indicated which, if either, got the worst of the bargain. It is inferable that the lady in the case was the loser, as the petition for her appointment indicates that the decedent at the time he was killed possessed no assets, which would lead to a belief that she not only has lost her husband, but her money as well.


Further support for the view that acts, to be jurisdietionally significant under section 134, must be substantively essential to the commission of a crime, is derived from People v. Fowler (152 N. Y. S. 672 [Sup. Ct., N. Y. County, 1914]). In this case, the defendant, in Onondaga County, extorted a payment of money in the form of a check on an Onondaga bank. The check was indorsed for deposit at a bank in New York County from which it was sent to a correspondent bank in Albany, which ultimately caused the Onondaga bank to pay the item. The tainted fund originally deposited in the New York County bank was thereafter drawn upon in New York County. In denying the existence of any jurisdiction to prosecute for the crime of <mask> in New York County, the court wrote concerning the events occurring there (pp. 678-679): “ It is obvious that none of these acts is a constituent element of extortion. None of them constitutes any part of the offense. Nor were any of these acts ‘ requisite ’ to the consummation of the offense. The word ‘ requisite ’ here means, necessary, essential, indispensable. While these acts were steps taken by defendant to realize the value of the check, and could be shown on the trial, they were *1040nevertheless mere incidents in the history of the check, and not necessary, essential, or indispensable to the consummation of the crime.”


Even assuming jurisdiction, it does not appear that an adequate RICO claim is set forth. The United States Court of Appeals for the Second Circuit in Sedima, S.P.R.L. v Imrex Co. (741d 482, 492, decided July 25, 1984), held that under the statute, a party is entitled to treble damages only if it is alleged and proved that an enterprise’s affairs have been conducted through a “ ‘pattern of racketeering activity’ ”, which is defined under section 1961 (1) to include acts involving murder, kidnapping, gambling, robbery, bribery, narcotics, embezzlement, <mask>, fraudulent securities and mail and wire fraud. The court in Sedima believed there was no evidence that Congress intended to create a broad civil cause of action under RICO unrelated to organized crime and its attempt at infiltration of private businesses. The court noted that while there were few cases where RICO had been used against reputed mobsters, there was a veritable explosion of cases alleging RICO offenses against legitimate enterprises where “garden variety” allegations of fraud were alleged. Such use of the RICO statute was characterized by the court as “extraordinary, if not outrageous” (p 487). The court went on to hold that for “ ‘pattern of racketeering activity’ ” (p 492) to exist, the predicate acts upon which a RICO claim could be based would require at least two prior criminal convictions. Additionally, the court declared that beyond ordinary damages, one asserting a civil action under RICO must allege a “separate, distinct racketeering enterprise injury”. There was a vigorous dissent from Judge Cardamone.


- B.W.'s assertions to police thus gave investigators reason to believe that Boyd's phone, not B.W.'s phone, contained the probative information. Thus, B.W.'s phone did not "so obvious[ly]" contain exculpatory evidence, particularly in the form of photos, such that the failure to collect the photo evidence amounted to gross negligence. Cf. Randolph v. State, 117 Nev. 970, 988, 36 P.3d 424, 435 (2001) (concluding "that the potential evidentiary significance of blood evidence "was [not] so obvioue as to constitute gross negligence by investigators' failure "to impound and tese it). We have also said that the selective collection of evidence does not prove even negligence, much less gross negligence. See Johnson v. State, 117 Nev. 153, 167-68, 17 P.3d 1008, 1018 (2001). Boyd also failed to show that it was possible for police to collect the data given the limitations of extraction tools. Randolph, 117 Nev. at 988, 36 P.3d at 435. Because Boyd failed to show materiality and gross negligence, we conclude that the district court did not abuse its discretion in refusing to give the evidence-collection instructions. Sufficiency of the evidence Boyd argues that B.W.'s testimony demonstrates that she moved freely during the four-month period the State alleged the kidnapping occurred such that the evidence does not support his first-degree kidnapping conviction.4 He contends that the State failed to offer sufficient evidence to prove that any kidnapping was not incidental to any <mask> because "[n]one of the facte relied on by the State to establish first-degree kidnapping "go beyond what is required to prove [the predicate offense of]


The court is aware of the contrary holding in People v Crean (115 Misc 2d 996, 1000-1002 [Sup Ct, Westchester County 1982]). In Crean, the defendant obtained in New York County a check payable to the victim in Westchester County, deposited the check and withdrew the proceeds from a bank in New York County. The Westchester court held that venue was proper there since Westchester was the situs of the loss to the *23victim as a result of the larceny. This holding was contrary to a previous holding in People v Brown (69 Misc 2d 412 [Suffolk County Ct 1972]), that Suffolk County did not have venue of the larceny of proceeds of a sale of land located in that county, where the sale was consummated and the proceeds thereof converted in New York County. The court in Crean distinguished Brown on the grounds that Brown was limited to considering whether an element of the offense occurred in Suffolk County. This analysis overlooks the requirement that the result upon which venue is based must be an element of the crime charged. CPL 20.10 (3) states that "[a]n offense of which a result is an element is a 'result offense’.” (Emphasis added.) Moreover, Crean relies on People v Schlatter (55 AD2d 922 [2d Dept 1977]), which does not support the proposition for which it is cited. In Schlatter, the Court held that in the absence of proof that forged checks were made or altered in Nassau County, the deposit of such checks in a Nassau County bank was not a sufficient basis for venue of the forgery offense in Nassau County. The Court noted that forgery is not a result offense, meaning that obtaining money in Nassau County as a result of the forgery would not support venue. The Court remanded the larceny counts for trial in Nassau County, not because larceny is a result offense, but because the checks were deposited in and paid to an account in Nassau County. In other words, property in the form of money was obtained in Nassau County. (See also, People v Zaccaro, 132 AD2d 589, 590 [2d Dept 1987] ["the only conceivable specific consequence or result of the crime of attempted grand larceny in the second degree by <mask> is that an element of that crime would be obtaining property by extortion”].) In fact, the result of the larceny in Schlatter was felt in New York County, since the offices of the corporation on whose account the checks were drawn were located in New York County.


Howard E. Goldfluss, J. The defendant is charged in the indictment with criminal usury in the first degree and grand larceny by <mask>. He moves herein to suppress all evidence acquired or derived from electronic surveillance pursuant to an order of a Justice of this court previously issued on June 26, 1979. He relies on the recent decision of the New York State Court of Appeals, People v Shapiro (50 NY2d 747), which declared the New York statutory scheme for authorizing wiretapping unconstitutional as applied to the defendant therein. He maintains that the rationale and the conclusion in the Shapiro case must apply to him as well.


The crime of <mask> "is the obtaining of property from another, with his [ ] consent, ... induced by a wrongful use of force or fear ...." ( § 518.) The "elements of the offense are: (1) A wrongful use of force or fear, (2) with the specific intent of inducing the victim to consent to the defendant's obtaining his or her property, (3) which does in fact induce such consent and results in the defendant's obtaining property from the victim." ( People v. Hesslink (1985) 167 Cal.App.3d 781, 789, 213 Cal.Rptr. 465 ( *725Hesslink ). ) A defendant may induce fear by threatening to expose, or impute to a person "a deformity, disgrace or crime" or "expose a secret affecting him [or her]." (§ 519; see Flatley v. Mauro (2006) 39 Cal.4th 299, 326, 46 Cal.Rptr.3d 606, 139 P.3d 2 ( Flatley ).) A "secret" includes a factual matter unknown to the general public, or to some particular portion of it interested in obtaining knowledge of the secret, and "must affect the threatened person in some way so far unfavorable to the reputation or to some other interest of the threatened person [such] that threatened exposure would be likely to induce him through fear to pay out money or property for the purpose of avoiding the exposure." ( Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1078, 267 Cal.Rptr. 457.) Whether a threatened exposure would affect the victim is a factual question and depends on the nature of the threat and the susceptibility of the victim. ( Ibid. ; see Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1424, 173 Cal.Rptr.3d 173 [threat may be implied from circumstances].) Extortion is a specific intent crime; guilt depends on the intent of the person who makes the threat and not the effect the threat has on the victim. ( People v. Umana (2006) 138 Cal.App.4th 625, 641, 41 Cal.Rptr.3d 573.)


See 3 Duesenberg & King, Sales & Bulk Transfers under the UCC, § 4.04(2). It does not follow however that if the modification is not procured by <mask>, duress, or some such action, it necessarily is enforceable. Though Comment 2 of section 2-209 of the Uniform Commercial Code states that “The extortion of a ‘modification’ without legitimate commercial reason is ineffective as a violation of the duty of good faith”, there would seem to be no reason to read this comment as indicating approval of a modification without consideration, no matter what its objective, so long as it was not procured through “extortion”.


Statutory duplication is hardly a new phenomenon — it is, rather, the general practice in penal legislation. Thus, the thief who, by means of <mask>, appropriates for his own use a $2,000 automobile commits, under the New York Penal Law, at least seven crimes: three separate and distinct degrees of grand larceny (Penal Law, §§ 155.40, 155.35, 155.30), petit larceny (Penal Law, § 155.25), three separate and distinct degrees of criminal possession of stolen property (Penal Law, §§ 165.40, 165.45, 165.50) and finally, unauthorized use of a vehicle (Penal Law, § 165.05, subd 1). Each of these seven crimes is delineated in separate provisions of the law, and the extortion of the $2,000 automobile could properly be covered by any one or all of those separate provisions. The logic of the defense position would have us argue that larceny and possession of stolen property are general concepts, whereas, the use of an automobile without the owner’s permission is completely specific, wherefore only the misdemeanor of unauthorized use was "intended” to apply where the property which is taken is an automobile. Manifestly, the argument crumbles of its own weight.


(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or <mask>, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The statute is violated when a defendant, in the course of committing a theft, either “(1) intentionally, knowingly, or recklessly causes bodily injury to another,” or “(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” Tex. Penal Code Ann. § 29.02(a). We refer to the first alternative as robbery- by-injury and the second as robbery-by-threat.


took their money. Defendant was charged with <mask> by force or fear (Pen. Code, § 518 -- count 1),1 attempted extortion (§ 524 -- counts 2-4), and second degree robbery (§ 211 -- counts 5-7). It was further alleged as to all counts that defendant had previously been convicted of a prior serious or violent felony, a strike (§ 667, subds. (b)-(i)), and as to counts 5 through 7, that he had been convicted of a prior serious felony (§ 667, subd. (a)(1). Defendant pleaded no contest to two counts of robbery, counts 5 and 6, and admitted the strike allegation. The remaining charges and enhancements were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758. In accordance with the plea agreement, the trial court sentenced defendant to a stipulated aggregate term of eight years in state prison, as follows: the midterm of three years on count 5, doubled for the strike, plus one year (one-third the midterm) on count 6, doubled for the strike. The trial court ultimately awarded 606 days of presentence credit (527 actual and 79 conduct), and ordered defendant to pay various fines and fees. At a restitution hearing, the trial court set restitution in the amount of $5,690, less $1,320 that law enforcement officers previously seized from defendant. II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.


Plaintiffs made a motion to set aside the verdict as against the weight of the evidence, impermissibly inconsistent or compromised or, in the alterative, tainted by juror misconduct. In support of the claimed jury misconduct plaintiffs annexed affidavits from two jurors, Daniel and Garrison. Daniel stated that during the trial he was asked by juror number 4 what he thought of plaintiffs’ counsel, Mr. Alterman. He responded that he didn’t believe defendant Tsui. Juror number 3 remarked that “if you can hate Mr. Tsui, then I can hate the attorneys,” apparently referring to Mr. Alterman. Daniel also stated that juror number 5 stated “maybe I’ll go and eat and [sic] Jing Fong and talk to Mr. Tsui.” Other jurors agreed, saying “Oh, yeah, maybe we should all go.” Daniel could not state if the jurors did in fact go to the restaurant. Other jurors referred to *545Mr. Tsui as “very handsome” with a “nice smile.” Daniel stated that the jury never deliberated, never discussed the claims or the testimony in the case, instead juror number 3 stated she was voting no and nothing could change her mind. Each time the jury foreperson sought to ask each person to discuss their viewpoints, “he was shouted down” by the four female members of the jury. Daniel stated that when he sought to discuss the case and state his opinions he was “shouted down and cursed at because of his beliefs.” When a readback of the testimony allegedly supporting the <mask> charge was requested, “the four women jurors refused to consider it” with one remarking “forget it, even if that was the evidence I won’t change my mind.” Daniel stated that the jury never deliberated on the damage to plaintiffs’ reputation, refused to consider records submitted into evidence, and refused to discuss the matter of tips.


testified at the hearing, Defendant instructed an associate to “talk to Gilly [another associate] ASAP and let him know what that fool did, homie. And let him know, fuckin’, you know what I mean. I said talk to Diablo [another associate].” For his conduct relative to Reyes on October 2, 2018, the jury convicted Defendant of (i) attempted <mask> of Reyes (§§ 664, 518); (ii) attempted robbery of Reyes (§§ 664, 211); (iii) assault of Reyes with a deadly weapon (§ 245, subd. (a)(1)); and (iv) assault of Reyes with force likely to cause great bodily injury (§ 245, subd. (a)(4)). For the various convictions stemming from the two separate incidents, the trial court imposed an aggregate term of 24 years and four months imprisonment. In accordance with section 1170.1, subdivision (a), the court based the principal term on Defendant’s conviction for assaulting Reyes with a deadly weapon, as enhanced (i) for causing great bodily injury (§ 12022.7, subd. (a)); (ii) under the Three Strikes laws (§§ 1120.12, subds. (a)-(d) & § 667, subds. (b)-(i)); and (iii) for a prior conviction of a serious felony (§ 667, subd. (a)(1)). It imposed subordinate terms, subject to applicable enhancements, for all other convictions other than the attempted robbery and attempted extortion of Reyes. The court stayed sentences for the latter two convictions pursuant to section 654. Defendant timely appealed. DISCUSSION I. Substantial Evidence Supported Defendant’s Conviction For Extorting Reyes On October 2, 2018 Defendant argues the evidence was insufficient to support his conviction for attempted extortion, on the premise that Defendant’s actions were inconsistent with an effort to obtain


Michael Crumble and Ramell Markus (together, “Defendants”) appeal their respective judgments of conviction and their sentences. Defendants were indicted for kidnapping and committing physical violence against Daniel Nieves to obtain drugs and money. They were convicted after a jury trial of kidnapping conspiracy, 18 U.S.C. § 1201(c), kidnapping, id. § 1201(a)(1), and committing physical violence in furtherance of an <mask>, id. § 1951(a). They were acquitted of using, carrying, and possessing a firearm. Id. § 924(c). Markus was given a below- guidelines sentence of 180 months’ incarceration, to be followed by five years of supervised release. Crumble was given a below-guidelines sentence of 108 months’ incarceration, followed by five years of supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.


(Flatley, supra, 39 Cal.4th at p. 326, fn. omitted.). “Attorneys are not exempt from these principles in their professional conduct.” (Id. at p. 327.)7 The Supreme Court addressed a pivotal argument tendered by Mousavi both in the trial court and before us—that her conduct did not constitute <mask> since she threatened no direct disclosure of Falcon’s alleged criminal misconduct to either law enforcement or the media. We recognize at this point that this argument will strike a familiar chord with many lawyers who might ask, isn’t this type of posturing standard operating procedure for aggressive litigators? Don’t lawyers regularly link settlement demands to threatened consequences? In response, we concur with the answers provided by the Supreme Court in Flatley: “threats to do the acts that constitute extortion under Penal Code section 519 are extortionate whether or not the victim committed the crime or indiscretion upon which the threat is based and whether or not the person making the threat could have reported the victim to the authorities or arrested the victim. [Citations.] Furthermore, the crime with which the extortionist threatens his or her victim need not be a specific crime.” (Flatley, supra, 39 Cal.4th at p. 327.) In other words, it is the threat to reveal damaging information, not any subsequent revelation, that makes the conduct illegal when the threat is linked to a monetary demand. Many, perhaps most, extortionate threats may never actually be conveyed to either law enforcement or the media. The reason for this is obvious enough: the threat had its desired effect. “[T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect California Rules of Professional Conduct, rule 3.10 also prohibits attorneys from making threats “to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.”