*569" 'Private security guard’ shall mean an individual employed by a security guard company to principally perform one or more of the following functions: "a. protection of individuals and/or property from harm or theft; "b. prevention, observation or detection of any unlawful or unauthorized intrusion, entry, activity, larceny, <mask>, abuse, arson or trespass on private property; "c. control, regulation or direction of the flow or movements of the public; "d. street patrol service; "e. transportation of currency, jewelry, securities, works of art or other valuables in a specially equipped motor vehicle which offers a high degree of security; and "f. response to but not installation of service of a security system alarm installed and/or used to prevent or detect unauthorized intrusion, robbery, burglary, theft, pilferage, and other losses and/or to maintain security of a protected premises.” In response to this inclusion the armored car carrier industry raised concerns and contacted Senator Mega, author and sponsor of the bill. In response to those concerns and on behalf of Senator Mega, Richard Olsen, the Executive Director of the Judiciary Committee, responded by letter which represented that armored car services had been removed from the bill. That decision was apparently reached after lengthy review and discussion.


Briefly, the cause is predicated upon (1) negligence on the part of the defendant in maintaining its plumbing fixtures in the subject premises “in a defective, rotten and worn-out condition, causing them to break and burst ” and (2) defendant’s failure to take prudent and reasonable precautions to protect the subject premises so as to prevent <mask> and the entry of trespassers.


Appellant claims Visalia violated the California Environmental Quality Act ( Pub. Resources Code, § 21000 et seq. ; "CEQA") by failing to analyze the potential for the land use policy to cause a phenomenon called urban decay. "CEQA does not define urban decay" but some have defined it as "visible symptoms of physical deterioration that invite <mask>, loitering, and graffiti that is caused by a downward spiral of business closures and multiple long term vacancies." ( Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 685, 204 Cal.Rptr.3d 464 ( Joshua Tree ).)


Furthermore, we are not limited to the application of this common-law presumption. Where we have, as we do here, a proof of actual tampering as opposed to malfunction, plus a proof of protracted and continuous receipt of current charge, or at inordinately low charge, we have a classic case of circumstantial evidence. And the suggestion has never been successful that an indictment may not be grounded on circumstantial evidence. The only limitation is that such circumstantial evidence must exclude, to a moral certainty, every reasonable hypothesis except guilt. (People v Eckert, 2 NY2d 126.) And search as we may, we are unable to extract any reasonable hypothesis as to why someone other than the subscriber himself would tamper with a meter so as to deprive the supplier of its lawful charges. Vandalism? Not with respect to the deliberate purposeful kind of diversion we find in these cases — <mask> is simply, here, not a reasonable alternate hypothesis.


Lot 50E was originally used for dumping of the residue from the village incinerator. In 1960 a metered parking lot was constructed on a small portion of lot 52. In 1963 after the State of New York had completed a pedestrian overpass which ended at the property herein involved, the village constructed blacktop walkways where paths had been worn by the people using the overpass. In addition lights were installed, which were later removed because of <mask>, and some park benches placed along the paths. A short time later a few shrubs and trees were planted to discourage ball playing due to complaints. The testimony established that people use the walks and that children play on the property. In addition some use of the benches was established.


The prosecutor then questioned Turner about his earlier arrest. Turner denied that he had possessed a box of identical ammunition on that occasion or that he had ever possessed such ammunition. In rebuttal, another San *408Pablo police officer testified that he had previously arrested Turner for <mask>. Turner had had a different bag with him at the time, and when the officer conducted an inventory search of it approximately 30 minutes after the arrest, he discovered a 50-round box of Fiocchi .38 caliber Super-Auto ammunition inside.


On appeal, defendant contends that there is insufficient record evidence to support his conviction of assault with a deadly weapon; that the court *478prejudicially erred in instructing the jury on the meaning of the phrase "deadly weapon"; and that defense counsel violated his constitutional rights by allegedly conceding during closing argument that defendant was guilty of the <mask> charge in count 2. As we explain, we disagree with these contentions and affirm the judgment.


People ex rel. Gallo v Acuna (14 Cal 4th 1090, 929 P2d 596, supra, cert denied Gonzalez v Gallo, 521 US 1121) is the case closest to this in terms of the factual setting and in terms of *548the injunctive relief upheld. The contrasts between the situations, however, the remedies employed and the sources of the courts’ authority are stark and instructive. The court in Acuna confronted what it described as an “urban war zone” and “an occupied territory.” (14 Cal 4th, at 1100, 929 P2d, at 601.) Several urban gangs had commandeered a residential neighborhood known as Rocksprings for their drug bazaar, taking over the streets, lawns and homes, making “[mjurder, attempted murder, drive-by shootings, assault and battery, <mask>, arson, and theft * * * commonplace.” (14 Cal 4th, at 1100, 929 P2d, at 601.) Utilizing both criminal and civil public nuisance statutes as authority, the California court issued an injunction in which it addressed the gang activity. The injunction consisted of 25 provisions, of which the one relevant here is the first. The defendants were enjoined from:


The probation department's dispositional report indicated Juan was chronically truant, received poor grades, and had been suspended from school twice, as well as disciplined for sexual harassment and <mask>. Although Juan denied being in a gang, several of his coparticipants were admitted gang members affiliated with the Norteños.1 Juan reported experimenting with alcohol and using marijuana regularly to "stop [himself] from getting mad." Juan's mother reported violence and substance abuse in the family home. Juan's father had been deported approximately a year prior, and Juan's mother reported being illiterate and feeling overwhelmed by Juan's behavior.


“[t]he Village Board has determined that large numbers of minors have been congregating in the Village after dark causing general disturbance to residents. In order to reduce juvenile crime and <mask>, protect the children of this municipality, and reinforce parental authority, it is necessary that a curfew be established to keep minors out of public areas after dark.” (Hilton Village Code § 5-2.) The actual curfew “Restrictions” set forth in the Hilton Curfew Law is embodied in section 5-3. That section states that


In January 2020, Mother was arrested for vandalizing a car. She pled guilty in November 2020 to misdemeanor <mask>. During trial, Mother acknowledged that she had pled guilty to vandalism and stated: “I ain’t worried about that. My kids was getting abused in their home.” The affidavit of complaint identifies Jordan L., who is apparently a sister of Ramone L., as the victim and states that Mother had punctured all four tires on the vehicle, destroying them. It states that she also “scratched and scribbled deep the word


penetration offenses (§ 667.6, subd. (d)9) plus a consecutive term of eight months (one-third the middle term of two years) on the <mask> offense. The court imposed the lower term of 16 months on the second- degree burglary offense, but stayed execution of that term as it found it was “obligated to” do so under section 654. The court explained that it was imposing the aggravated terms for the forcible sexual penetration offenses based on several aggravating factors described in the California Rules of Court10, including that the offenses disclosed a high degree of “callousness” (rule 4.421(a)(1)); the victims were “particularly vulnerable” (rule 4.421(a)(3)); the manner in which the crimes were carried out indicated “planning,” “sophistication,” and “professionalism” (rule 4.421(a)(8)); and defendant’s conduct was “violent” and posed a “danger to society,” involving “sexual assault by force” that was not “slight” (rule 4.421(b)(1)).


In Moore , the Court of Appeal rejected essentially the same argument in connection with the crime of <mask> (§ 594, subd. (a) ) and held the trial court did not err in refusing to instruct on voluntary intoxication. ( Moore, supra , 19 Cal.App.5th at p. 891, 228 Cal.Rptr.3d 261.) As the court explained, section 594 "is part of a set of statutes dealing with malicious injury to property, and follows the language of the original malicious mischief statutes." ( Moore , at p. 894, 228 Cal.Rptr.3d 261.) Section 591, at issue here, is also one of these statutes.2


robbery, one year for the weapons enhancement, and three one-year terms for three prison prior enhancements. The trial court then sentenced Lewis to the agreed-upon two-year sentence in the new cases—one eight-month term for the grand theft count and two eight-month terms for each of the <mask> counts, to run consecutively. Lewis appealed. While that appeal was pending, on October 8, 2021, the Governor signed Senate Bill No. 483, effective January 1, 2022, which added section 1171.1, subdivision (a): “(a) Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” (Stats. 2021, ch. 728, § 3.) Section 1171.1 further provides that once the sentencing court identifies defendants serving a term including a one-year prior prison term enhancement, the court “shall recall the sentence and resentence the defendant,” (§ 1171.1, subd. (c)), and that such resentencing “shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.” (§ 1171.1, subd. (d)(1).) And the legislation provides: “It is the intent of the Legislature that any changes to the sentence as a result of [Senate Bill No. 483] shall not be a basis for a prosecutor or court to rescind a plea agreement.” (Stats. 2021, ch. 728, § 1.)


On December 27, 2018, a felony complaint was filed against Del Castillo alleging residential burglary with a hot prowl allegation, <mask>, and receiving stolen property. On December 28, 2018, he was arraigned on the complaint, and the preliminary hearing was set for January 10, 2019. On January 10, the court granted the People's request for a one-day continuance. On January 11, 2019, Del Castillo waived his right to a preliminary hearing within 10 days, but expressly preserved his right to have the hearing commence within 60 days. The preliminary hearing was set for February 19, 2019.


During the past year there have been intrusions into the building by nonresident teen-agers and considerable <mask>, burglary and abusive conduct, both verbal and physical, toward tenants. Several of the tenants who gave evidence identified one Ann Marie, a nonresident teen-ager, as a central figure in these disturbances, both personally and by her invitation of many other teen-age nonresidents into the building.


With respect to the northern portion, as it faced upon new Stewart Avenue, the court views the matter differently. Access during construction of Stewart Avenue was still possible by way of the frontage on Union Avenue and, therefore, no award should be made for culverts and fill to provide temporary access off new Stewart Avenue during construction. However, the northern portion, as it faced on new Stewart Avenue, was mqde *1021open to theft and <mask> and, accordingly, the court finds an allowance for a gate and fencing to be appropriate and, accordingly, awards $500 of the $1,000 claimed for the northern portion.


The ALJ then considered the conduct underlying the convictions and determined that it constituted unprofessional conduct, independently justifying a restricted license. Both petty-theft convictions were for shoplifting from Macy's. The first time, Moustafa "attempted to switch the price tags on two items and was detained by store security while attempting to pay." The second time, "she 'stole a BCBG dress ..., hid it in [her] purse[,] and was *1127detained as [she] attempted to walk out with the merchandise.' " Finally, she was convicted of <mask> after her "forcible removal" of a boot placed on her car for unpaid parking tickets. After the police contacted her, she returned the boot, which she was required to pay for because it was so damaged that it "appeared unusable."


During the 1960’s, however, parental responsibility statutes, enlarging the scope of parents’ common-law liability, were routinely introduced in the Legislature, and were routinely either killed in committee, or vetoed by Governor Rockefeller.2 Bill Jacket documents reveal that persistent proponents of these bills were the New York State School Boards Association, seeking fiscal remedies for escalating <mask> in the schools,3 and the New York State Association of Cemeteries, citing the appalling rise in cemetery maintenance costs due to desecrations by juveniles.4 Equally persistent opponents comprised the New York State Department of Social Services, who resisted the measures because they would most seriously affect parents who were poor,5 and the Association of the Bar of the *675City of New York, whose objections were two-fold: (1) imposing nonfault liabilities on parents and shifting burdens of proof to parents to demonstrate diligence raised constitutional due process issues, and (2) severely limiting the amount of liability (the proposed statute set a limit of $500) foreclosed any practical deterrent objectives which the bills sought to achieve.6


The account presents the question of the trustees’ power in relation to property taken over in foreclosure of a mortgage. Here the trustees took over in foreclosure a one-story building and found themselves confronted with the necessity of protecting a building already substantially injured by <mask>. They were confronted with the need to invest substantial additional principal sums to rehabilitate the building or to find a purchaser who was willing to take it in its then condition. They pursued the latter course and the purchaser gave back a purchase-money mortgage for the entire purchase price and after taking possession rehabilitated the building and put it into good order and condition. It is now operating satisfactorily and the trustees are obtaining income on the purchase-money mortgage. The purchase-money mortgage no doubt exceeds the limit permissible to these trustees if they were making a new mortgage loan on the same property. The special guardian objects to the transaction on that ground. There is presented, therefore, the question whether the limits upon trustees in respect of new mortgage investments are applicable to the acts of trustees in .disposing of property which they are forced to take over in the effort to protect an original mortgage investment lawfully made.


Section 1217 of volume 30 of New York Jurisprudence explains and discusses comprehensive automobile insurance and its genesis as follows: “In addition to the risks covered by policies insuring against fire, theft, or collision or upset, damages or destruction may be caused by a variety of other events such as windstorm, hail, flood, explosion, <mask>, or malicious mischief, and lightning, falling objects, or civil riot or commotion. Moreover, the cause of the loss, damage, or destruction may be of such an unusual nature that not even an extremely prudent person would, in advance of the occurrence, be prone to anticipate such a happening. To cope with this situation, therefore, automobile insurers have developed what are commonly called ‘ comprehensive coverage ’ policies or clauses, which are, generally speaking, designed to afford protection against all causes of loss, damage, or destruction not specifically excluded. These policies include all of the conventional coverages, such as theft, fire, and windstorm, as well as providing blanket coverage in other respects, but usually exclude collision losses, since collision coverage is a comparatively expensive one and can be obtained separately by the insured if he so desires, and usually also exclude other specified causes of loss.”


*656Defendants' reliance on Penal Code section 415 is also misplaced. They argue Thomas violated Penal Code section 415 by "start[ing] an unlawful fight in public" and his actions constitute a defense to the <mask> charge. Thomas was not charged with such a crime and, in any event, comparative fault is not a defense in criminal proceedings. ( People v. Armitage , supra , 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515.) Accordingly, there was no ineffective assistance of counsel. (See People v. Price (1991) 1 Cal.4th 324, 387, 3 Cal.Rptr.2d 106, 821 P.2d 610 [defense counsel is not required to make frivolous objections].)


“You know that FIC 64r-7 in the letting of March 5 1964 is for highway construction project and the unit items include the demolition of the same buildings that were in the letting of *974October 24, 1963. However, there is an express optional provision in the construction specifications of FIG 64-7 which permit DPW to exclude the demolition work. ‘ ‘ Experience over a considerable period of time has demonstrated that when a project reaches the stage of complete design and is ready for bidding, the unit price for demolition is frequently less than if the demolition were undertaken earlier by another contractor. <mask> has influenced separate contracts for demolition well in advance of construction operations. Also, the highway contractor has the responsibility of the demolition work, and if he employs a subcontractor, the highway contractor cannot blame the State for delay in the demolition work.


The affirmation submitted in opposition by Lawrence Schwind states that Attorney Schwind has served as the attorney for the Village of Hilton since 1989 and argues that this court is not required to find the Hilton Curfew Law unconstitutional under the Court of Appeals’ decision in City of Rochester based upon the fact that the Court of Appeals did not hold that all curfew laws are unconstitutional. Attorney Schwind argues that the Court of Appeals rather provided the framework under which curfew laws should be analyzed for constitutional purposes. Attorney Schwind submits further that the Hilton Curfew Law is distinguishable from that at issue in the City of Rochester case and states that this court must examine the impetus behind the curfew and decide whether the ends justify the means. Attorney Schwind states that the purpose of the ordinance was to reduce juvenile crime and <mask>, protect the children of the municipality, and reinforce parental authority.


“ As a result of the inordinately long and dilatory tactics of the defendants, the vicinity of the plaintiff’s property has suffered a condemnation blight which has transformed the area into one which is highly undesirable for either residential or commercial purposes. The area has become a high-crime area, <mask> is rampant, and it is not safe to live or work there. Both residential and' commercial tenants have moved from the area, the plaintiff has lost substantial amounts of rental income, he has been placed in a special insurance pool which has forced him to pay excessive premiums, he has been compelled to expend *127monies to protect the property from vandalism, and his property has been drastically reduced in value.


. (See also e.g. Seltzer v Bayer, 272 AD2d 263, 264 [1st Dept 2000] [allegations of <mask> (tossing lighted cigarettes and eggs into plaintiff’s yard) and threats of vandalism (threatening to paint a swastika on the front of plaintiffs home) not enough to be held as outrageous conduct]; Zimmerman v Carmack, 292 AD2d 601 [2d Dept 2002] [allegations of excessive noise and intentional accumulation of dog waste, rotting food, and garbage did not impose liability for intentional infliction of emotional distress, but rather stated a claim for trespass]; Owen v Leventritt, 174 AD2d 471 [1st Dept 1991] [threat made to kill plaintiff at meeting where plaintiff was not present was not outrageous conduct to support claim of intentional infliction of emotional distress]; see also Roth v El Al Israel Airlines, Ltd., 709 F Supp 487, 490-491 [1989]; James v Saltsman, 99 AD2d 797, 798 [2d Dept 1984]; Sirianni v Rafaloff, 284 AD2d 447 [2d Dept 2001].)


In arguing that the standard for exclusion under section 352 was met, Turner relies on People v. Williams (2009) 170 Cal.App.4th 587, 88 Cal.Rptr.3d 401, which he contends establishes that evidence of prior arrests, as opposed to convictions, "is *462not admissible for impeachment." In Williams , the Fourth District Court of Appeal concluded that evidence of a defendant's prior arrests for various crimes "was inadmissible either as proof of guilt or for impeachment." ( Id. at pp. 609-610, 88 Cal.Rptr.3d 401.) The court observed, "Generally, evidence of mere arrests that do not result in convictions is inadmissible because such evidence invariably suggests the defendant has a bad character," and "prior convictions minimize the risk the jury would be tempted to punish the defendant for the uncharged acts." ( Ibid. ) Williams is distinguishable, however, because in that case evidence of the defendant's prior arrests was admitted to prove gang-related crimes and enhancements, and there is no indication that this evidence impeached his testimony on any particular point as opposed to just reflecting negatively on his general veracity. (See id. at pp. 595, 598-600, 603, 88 Cal.Rptr.3d 401.) Williams does not stand for the proposition that an arrest is inadmissible for any type of impeachment. Moreover, although Turner's possession of ammunition was uncovered during his arrest for <mask>, it was his possessing ammunition, not the arrest, that was relevant to impeach his testimony.


In July 2016, defendant pleaded no contest to charges of stalking Christina T. between January 14, 2016, and February 23, 2016 ( Pen. Code, § 646.9, subd. (a) ),1 felony <mask> of Elizabeth T.'s home (§ 594, subd. (a)), and disobeying a domestic relations order (§ 273.6, subd. (a)). The victims were mother and daughter. The issue of restitution was considered at the sentencing hearing, held in September 2016. The victims' losses totaled $17,639.68, including $5,796.79 to install a residential security system. The system included a monitored alarm system in the house with four cameras, installed on or about January 27, 2016. Two more cameras were installed in March 2016, along with motion detectors and security lights. Insurance paid $9,642.66 toward repair of the house and car but paid nothing toward the security system.


Based upon the above law and facts, it is the decision of the court that, for purposes of this discovery motion and hearing only, defendant has met his burden of showing *371under CPL 240.40 (subd 1, par [b]) that additional discovery is material in the preparation of his defense and that such request is reasonable based upon the fact and holding of this court that at the time of the alleged crime(s) defendant was suffering a retrograde amnesia or alcoholic blackout of his recollection of the dates, times, places and events in question. It is for the People to now show under the Wilson standards above that defendant can get a fair trial given such finding. To assist in that determination, which is properly left for the Trial Judge, this court orders that the People supply defendant with any and all prior written, recorded or oral statements of the actual witnesses to the alleged crimes (not including statements of police who were nonwitnesses), including the Grand Jury statements of such witnesses, if any. However, keeping in mind that the evidence now shows that defendant is capable of acting without memory of his actions, and assuredly without reflection or insight during the course of such alcoholic binges; defendant’s prior criminal record involving at least, crimes of <mask> and possession of weapons; the violent nature of the instant allegations involving the use or display of a firearm; the court in its discretion under CPL 240.50 orders that the names, addresses and any other identifying characteristics of the witnesses shall be redacted from any and all prior statements released, noting also that under CPL 240.50 (subd 2) this court further orders that the release of such statements or material derived therefrom shall be maintained in the exclusive possession of the attorney for defendant only, and shall be used for the exclusive purpose of preparing for the defense of this instant action. Fictitious names may be used and noted, if desired.


In opposition, the plaintiff in the foreclosure action contends that the purchaser’s claim that the price bid was excessive is without merit since the bid was made solely on the purchaser’s own volition. Furthermore, it is contended that a purchaser at a judicial sale bids for the property as it is at the time of the bid; that after the foreclosure sale neither the plaintiff nor the Referee had legal title to the property or any right or responsibility to enter onto the property for the purpose of protecting or repairing it. It is claimed that the risk of loss or deterioration in any improvements on the premises is on the purchaser and he can minimize any such loss by taking title from the Referee immediately after the sale. Finally, it is argued that there is no proof submitted that the alleged damage due to <mask> took place after the foreclosure sale or that the cost of repairing such damage would equal the sum of $1,500 as claimed by the purchaser.


In the City of Buffalo, the money saving bailment rationale *954is in violation of public policy. Public policy can be established by this court taking notice of the ordinances of the City of Buffalo. Section 393 of chapter V, of the Ordinances of the City of Buffalo states: "Every application for a license here under [annually applied for license of a parking lot] shall be accompanied by a policy of * * * legal liability insurance up to twenty thousand dollars ($20,000.00) for fire, theft, and <mask>, covering vehicles parked or stored on the licensed premises.” (Parking lot is defined under section 340 of Chapter V of the Ordinances of the City of Buffalo, as "any open, outdoor space * * * where more than five (5) motor vehicles may be parked”.)


A third petition (Petition C) was filed on November 14, 2014, and it alleged a single count of misdemeanor <mask> ( Pen. Code, § 594 ). On November 19, G.C. admitted the vandalism allegation. On February 13, 2015, a fourth petition (Petition D) was filed alleging a single count of felony vandalism. On February 19, Petition D was amended to add a misdemeanor petty theft ( Pen. Code, §§ 484, 488 ) allegation, which G.C. admitted, and the felony count was dismissed. The four petitions, which were all pre-disposition, were then transferred to Alameda County.


In the instant proceedings by the owner of the premises, joined in by the first mortgagee, there are but two issues with which this court is concerned. One issue which this court must determine is whether the dangerous conditions, constituting the nuisance upon which the order of receivership was predicated, have been corrected or removed. Multiple Dwelling Law (§ 309, subd. 5, par. d, cl. 4) authorizes the termination of the receivership once the nuisance has been eliminated. It is conceded that since his appointment, the Receiver has had no construction work done on the premises and has confined his activities to ‘ ‘ housekeeping ’ ’ chores such as the removal of rubbish and debris and the boarding-up of the premises to prevent <mask>. Perforce the receivership, the owner and mortgagee have not had any work done at the premises since the Receiver took possession. It therefore follows that the dangerous conditions which were found to exist on November 22, 1963 continue to exist up to the present time. At the request of the court, a current reinspection of the premises was made on January 14, 1965, by inspectors of the New York City Department of Buildings, who testified at the hearings that the building is still in a hazardous state. Inspector Edward Krishok testified that ‘‘ if a fire started it would go through the entire building like a flue The court finds that the physical status of the building remains unchanged from the date the Receiver was appointed. Therefore the court determines that the movants have failed to sustain the first ground for removal and discharge of the Receiver.


In addition, there is a question of fact regarding the policy terms. The insurance company sets forth in its affidavits at various times that the policy provides limits of insurance for physical damage coverage quoting “Section IV — physical damage coverage, subparagraph A. and C.” There is no dispute that the plaintiff’s policy was on a nonreporting premium basis. Commercial’s affidavits indicate that the application of the language contained in the policy at section IV, Physical Damage Coverage, C.2.c. leads to the conclusion that they owe only $1,725.75. However, at no time do the affidavits give specific references to the policy terms or coverage as to how this conclusion is reached. The only limit of insurance is stated under item seven of the “Garage Coverage Form — Auto Dealers’ Supplementary Schedule”. This limitation is stated as being for the limit for each location and for comprehensive coverage. There is no indication of the limit for collision coverage which is marked above as a coverage for used autos and autos owned. This entire check box is under item seven for physical damage coverage. In addition, the limit of insurance for each location states an amount of $26,250 “minus $250 deductible for each covered auto for loss caused by theft or mischief or <mask> subject to $1000 maximum deductible for all such loss in any one event.” This does not indicate limitations on losses for collision.


Exhibit C of plaintiff’s affidavit in opposition to the motion consists of a series of eight letters, written during a period of eight months from June 20,1974 through February 6,1975, in which plaintiff had complained to defendant *657that extensive <mask> had resulted from inadequate security due to defendant’s improper supervision, failure to coordinate the work of the other contractors, and failure to accept the work in a timely manner.


*925The initial investigation ordered by the State Authority, a copy of which is annexed to their answer, appears "to be thorough and painstaking. The areas of inquiry include “ accessibility of stores, social conditions, traffic movement in area, population density and retail business activity.” The investigator found this to be primarily a residential section with the area adjoining to the north “ characterized, principally, by warehouses, junkyards and factories.” There has been no population increase since the 1960 census and the number of housing units has decreased as a result of abandonment and closing of property by owners. Windows and doors of many small units have been boarded up, with consequent <mask> and extreme deterioration, so that they are “ unfit for immediate re-occupancy.” No new housing construction is now in progress or planned for the immediate future. Petitioner alleges additionally that an entire square block of housing property adjacent to the premises has been demolished for the erection of a new public school. This is denied in the answer of respondent but the report of its investigator submitted October 18, 1966 does state that “ a new school is being built at the present time ” one block from the premises.


*529In 1989, in case number MCR97449, appellant was placed on probation after being convicted of one misdemeanor count of evading a peace officer under Vehicle Code section 2800.1. In 1996, in case number *93SCR22536, appellant was convicted after a jury trial of one felony count of criminal threats under section 422 and three misdemeanor counts: child abuse under section 273a, subdivision (b), <mask> under section 594, subdivision (a), and being under the influence of a controlled substance under Health and Safety Code section 11550, subdivision (a). He was denied probation and sentenced to prison.


case arising from the <mask> arrest was filed in the Bellflower Courthouse. At a February 15, 2019 probation violation hearing in the instant case, Simpson’s counsel informed the trial court that the vandalism case had been dismissed, and the prosecution recommended Simpson admit to a probation violation in this case—apparently based on the vandalism—in exchange for time served. Simpson stipulated to a probation violation, and the court found Simpson in violation of his probation in this case. The court revoked and reinstated probation. The terms and conditions of probation in this case included: serving 77 days in county jail (with credit for 77 days); and reporting to his probation officer within 48 days of his release, in addition to the terms and condition previously imposed and not modified. IV. July 2020 Probation Violation Hearing On July 29, 2020, Simpson pleaded no contest to misdemeanor simple battery (§ 242) in case number OBL04328 (Bellflower Courthouse). The trial court sentenced him to 60 days in county jail. Pursuant to the plea, the court dismissed two misdemeanor charges for driving with a suspended or revoked license and driving without proof of insurance (Veh. Code, §§ 14601.1, subd. (a) & 16028, subd. (a)) in case number OBL04059. At the same hearing, Simpson admitted he violated his probation in the instant case based on the battery conviction. The trial court found Simpson in violation of his probation in this case. The court revoked and reinstated probation. Simpson agreed to a one-year extension of his probation until September 25, 2021. The terms and conditions of probation in this case included serving 60 days in county jail (concurrent to the jail


Cash (supra) was cited as holding that a landowner’s request for removal justifies impoundment in People v Schultz (93 Ill App 3d 1071, 418 NE2d 6, 9 [1981]), which held that without such a request impoundment and related search of a lawfully parked car were unlawful. Similarly, State of Iowa v Kuster (353 NW2d 428, 432 [Sup Ct, Iowa]) held that: "where the vehicle was in no imminent danger of <mask>, theft, or other injury to it or its contents and was so attenuated from the actual site of the defendant’s arrest as to negate any need for protection by the police, that the impoundment was unreasonable.” The court took note of circumstances also present in Bonneau’s case: that defendant "was not near the vehicle when he was arrested; the vehicle was locked, legally parked, and it presented no danger to the public. There was no evidence the vehicle was in danger of theft or vandalism as to it or its contents.” (Supra, at 432.)


Assuming that the gates and board were open, the claimant has not established fault or negligence on the part of the state, unless it is to be found that the state’s witnesses, particularly Eastman, testified at variance from the facts, and it is to be inferred that some state employee was thus being protected. Such a conclusion is not justified, and the claimant presented his case on the theory that the negligence of the state consisted in maintaining gate stems of the simple design and in the exposed situation of those at the weir, thus permitting their manipulation by unauthorized persons, and because Eastman failed to discover opportunely, or at all, that they were open. The case is barren of any proof of the identity of the individual who opened them, or the manner in which it was done. Having refused to infer that Eastman opened the gates and flashboard, the question remains if the state is, responsible for their manipulation by an unauthorized agency. No evidence was afforded that it is necessary or usual to equip gates at waste weirs, or in similar situations, differently from these. There was testimony that in water supply systems, and at dams, arid barge canal locks, devices are in use to prevent unauthorized interference. These consist of houses *16built over the gate mechanism, or irregular shaped stems, requiring a wrench of special design, or the securing of the stems by Yale locks. However proper and usual in such situations, they have not been shown reasonably necessary for the waste weir of a canal feeder. These stems are not readily operable. They require a large wrench, and Eastman kept his in the care of a relative living near the weir. This was sufficient protection against ordinary <mask> and small boys. Due care did not require the state to anticipate any other interference with the gates. What motive was to have been anticipated for such interference, and who could have the motive? This was not an important hydraulic mechanism, and no one could profit by interfering with it. The likelihood and consequences of interference were not such as to require the state to take special precautions. Furthermore, any one interested to the extent of bringing to the scene and applying a large wrench necessarily would have found little difficulty in entering a house or shanty erected over the stems, or in applying a iStillson wrench to a specially shaped or designed gate stem, or destroying a lock and operating the gates. The use of Yale locks and the necessity for having the appropriate key might result in delay in operation at times when the necessity was immediate. But, in any event, the main fact is that reasonable care and precaution did not require the state to anticipate that any one would interfere with the gates. Due care to guard against overflow of the feeder and danger to the banks might have required more efficient patrol than Eastman gave but we are not interested in that phase of the matter. Negligence is imputed to him by the claimant, in not visiting the weir to observe the condition of the gates, — a different proposition. There was no negligence in that respect. He testified to the condition in which *17he left the weir, and that the gates were closed and the flashboard in place. He had no reason to anticipate that they had been interfered with, or to visit and inspect the weir with great frequency to see if they had. He testified that his son visited there daily and that he personally went to the gates on July third. His omission to be there July second was not negligence for which the state is liable.


In the case at bar the court is of the opinion that the purchaser’s contentions with regard to the alleged overbid would not warrant the court invoking its equity powers and exercising its discretion and thus relieve the purchaser of the purchase, since the bid was made upon the purchaser’s own volition which, if excessive, was due to the purchaser’s own negligence. Furthermore, the court is of the opinion that the purchaser’s contention with respect to the alleged damage inflicted by <mask> is also without merit. The purchaser has failed to submit any evidence which would substantiate the allegation that the property was in fact damaged and that it was damaged prior to the foreclosure sale. Nor is there any proof that the extent of the alleged damage is as the purchaser claims.


Defendants’ affidavits do not substantially controvert the basics of the picture outlined. They argue, instead, that the stay is too broad in scope; that plaintiff failed to show irreparable injury; that, in fact, cessation of classes resulted from student boycott because of the announced increase in tuition, not disruption, and that the few who wished to attend classes in Shuster Hall could have been accommodated in another building at little expense or injury to plaintiff. The theft and <mask> are described as an isolated incident; nor, say defendants, were they shown to have been involved in the incident. They also *980state that students remained overnight in the library with the permission of a dean; and further, that at a meeting of the faculty, a motion was adopted urging the president of the college to instruct the Corporation Counsel to discontinue the action.


It was undisputed on the argument that official inspections of the building have established and noted over 600 violations. A substantial number involve hazardous conditions, dangerous to the life and health of the occupants. There are defective, rotten and sagging floor beams; parts of the floor areas are sagging ; brick parapet walls are eroded and out of bond; the steel and concrete arch in the cellar is broken; steel supports are corroded and defective; fire alarm systems are not working; plaster walls and ceilings throughout the building are broken and many are sagging. Garbage and debris are strewn about. There is no janitorial service. There have been several fires. As recently as March 16, 1972, four fire companies responded to put out a fire in the building. There are open vacant rooms subject to <mask>. The plumbing is broken and unworkable. There is no hot water, gas or electricity. Many other bad, serious and hazardous conditions exist.


During that time and on March 15, 1975, certain acts of <mask> occurred and damage was done to the premises. Charles F. Flanagan, Bureau Chief, Office of General Services, acknowledged claimant’s notification of the vandalism and consequent damage by letter to claimant of March 27, 1975. By letter dated June 18, 1975, Richard J. Higgins, Executive Deputy Commissioner of the Office of General Services, advised claimant that, despite the vandalism, the State was precluded from reducing the sale price of the property after *240public sale in which other bidders participated. He noted that the information, with regard to the vandalism, was being investigated and that any claim of vandalism or other damage to the premises would be treated as a separate matter.


“[t]he Village Board has determined that large numbers of minors have been congregating in the Village after dark causing general disturbance to residents. In order to reduce juvenile crime and <mask>, protect the children of this municipality, and reinforce parental authority, it is necessary that a curfew be established to keep minors out of public areas after dark.” (Hilton Village Code § 5-2.) The actual curfew “Restrictions” set forth in the Hilton Curfew Law is embodied in section 5-3. That section states that


Until the kettle was effectuated by SLMPD officers, people were freely entering and exiting the area even after the Officers purportedly issued dispersal orders. The video evidence does not show any real sense of urgency or confrontation visible in the crowd. There was no attempt by SLMPD officers to separate the subset of people previously engaged in earlier acts of violence or <mask> or any unlawful assembly from the innocent bystanders milling about. The Officers’ assertion that they had probable cause or arguable probable cause to believe some members of the crowd violated laws earlier in the day and that “many” were apparently violating the law by refusing to disperse is insufficient to establish a “unit” that may justify a mass arrest as a matter of law. Police may be entitled to qualified immunity protections if they arrest individual offenders with at least arguable probable cause, see White v. Jackson, 865 F.3d 1064, 1074 (8th Cir. 2017), but officers cannot enjoy such protections by alleging that “the unlawful acts of a small group” justify the arrest of the mass, Bernini, 665 F.3d at 1005.


Testimony further revealed that during such construction project other improvements were made on behalf of the Village by the Department, including the construction of a service road and the provision of electrical service. Thereafter, the Village conducted yearly inspections of the property, intermittently tested the wells, monitored the wells to prevent <mask> and trespassing, and maintained the property by plowing the access road and clearing out the culverts. On April 12, 1976, the Village acquired title to all of the permanent improvements and salvaged items remaining on the property under a written agreement between itself and the State.


Defendants' trial counsel argued it was up to the jury to decide which items, if any, the prosecution proved were included in the <mask> charge, and the trial court instructed the jury that it was the jury's duty to make that factual determination and referred the jury back to the jury instructions. The pertinent part of CALCRIM No. 2900, as read to the jury, provides: "To prove that a defendant is guilty of [vandalism], the People must prove that: [¶] 1. The defendant maliciously damaged personal property; [¶] 2. The defendant did not own the property; [¶] AND [¶] 3. The amount of damage caused by the vandalism was $400 or more." CALCRIM No. 2901 provides: "If you find the defendants guilty of vandalism ... you must then decide whether the People have proved that the amount of damage caused by the vandalism was $400 or more." These instructions provided a complete and accurate statement of the governing law to the jury, and defendants do not discuss how trial counsel should have sought to clarify these instructions, or *657how such clarification would have resulted in "a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." ( People v. Kelly , supra , 1 Cal.4th at p. 520, 3 Cal.Rptr.2d 677, 822 P.2d 385.)


Defendant is a labor organization representing approximately 250 security guards and maintenance employees employed by the plaintiff. Apparently the last collective bargaining agreement between the parties terminated at midnight on October 31, 1978. Thereafter the members of defendant went on strike. It is alleged that shortly thereafter certain acts of violence and <mask> were committed against the persons of *1082employees of a private security firm hired by plaintiff and against the buildings and property of the plaintiff.


While perhaps one or two of the foregoing incidents might have been attributed to the unfortunate results of a boyish prank, it must be remembered that petitioners are engaged in the business of renting some 154 apartments tenanted by persons seeking quiet, safety and the esthetic benefits of a finely decorated building for which they pay substantial rentals. When as here, the acts of wanton destruction increase to the point where they border upon <mask>, the landlord should not be unduly prevented by technicalities from asserting those rights which he needs must assert in order to protect his own interest as well as those of his tenants.


While certainly the stairway here was located within the basement, and connected the basement area with outside, it can hardly be conceived that a stairway leading to trapdoors set in the sidewalk would constitute a “required exit.” (See Rivera v Nelson Realty, LLC, 7 NY3d 530 [2006] [radiator was not “piping,” as that term is used in the 1968 Building Code].) While admittedly an access stair is defined as “a stair between two floors [in a building], [that] does not serve as a required exit” (§ 27-232 [emphasis added]), and this stairway did not join two floors in a building, nevertheless, it is clear that this type of stairway, found throughout the City of New York, is more akin to an “access” stair than an “interior stair.” Cellar stairs into vaults have commonly been used, and were designed for, deliveries of merchandise into cellars and basements, and not the passage of persons seeking an exit to the outside of a building. Such doors are often locked to protect against <mask> and to avoid pedestrians falling into open vaults. (See Cuevas v 73rd & Cent. Park W. Corp., 26 AD2d 239 [1966], affd 21 NY2d 745 [1968] [holding that there was no requirement that cellar doors be locked, although noting that this is often the case].) It would not be logical to think that stairways leading from basements to locked doors in the sidewalk would serve as required exits from buildings. Nor did the plaintiff establish that the basement or cellar, used for commercial storage, required an exit to the outside for safety reasons. The requirements of the Code, as to enclosures, handrails, and other particulars do not logically apply to the type of stairs at issue, which are used only for access *663for storage. This court holds that the stairway at issue is not an “interior stair” within the meaning of the 1968 Building Code.


With respect to the northern portion, as it faced upon new Stewart Avenue, the court views the matter differently. Access during construction of Stewart Avenue was still possible by way of the frontage on Union Avenue and, therefore, no award should be made for culverts and fill to provide temporary access off new Stewart Avenue during construction. However, the northern portion, as it faced on new Stewart Avenue, was mqde *1021open to theft and <mask> and, accordingly, the court finds an allowance for a gate and fencing to be appropriate and, accordingly, awards $500 of the $1,000 claimed for the northern portion.


Aitken contradicted defendant’s testimony as to his principal *1087role in the arsons, testifying that it was defendant who proposed, planned and committed each of the crimes — which occurred in April, June, September and October 2009 — while Aitken was the passive follower. The jury plainly did not credit all of this self-serving testimony, as it acquitted defendant of everything but trespass charges in relation to the April and June arsons despite his acknowledged presence at both scenes and Aitken’s claims that defendant committed them.3 Nevertheless, a jury is entitled to accept the testimony of a witness in part while rejecting the rest (see People v Alteri, 49 AD3d 918, 920 [2008]). Here, the jury could have credited Aitken’s testimony, at least in part, regarding defendant’s participation in the subsequent crimes — consisting of serial acts of <mask> and arson at three gravel banks and two residences on a single night in September, followed in October by the arson of the church and a barn — and refused to credit defendant’s claims of continued ignorance and uninvolvement. We find that the totality of the evidence, viewed in a neutral light, supports the conclusion “that the crimes of which defendant was convicted represented the culmination of a continuum of events in which he continued to participate after the intentions of [Aitken] became manifest, so as to justify the jury’s conclusion that he shared [Aitken’s] criminal intent and aided in commission of the crimes” (People v McDonald, 257 AD2d 695, 696-697 [1999], lv denied 93 NY2d 876 [1999] [internal quotation marks and citation omitted]; see People v Allah, 71 NY2d 830, 832 [1988]; People v Gage, 259 AD2d 837, 839 [1999], lv denied 93 NY2d 924 [1999], lv denied on reconsideration 93 NY2d 970 [1999]).


The People note that the Legislature amended section 594.3 in 1983 to add subdivision (b),4 which subdivision defines the separate, but related, "hate crime" offense of <mask> of religious property and, in so doing, the *103Legislature stated that the amendment was in response to an "alarming increase in the number of incidents involving acts of vandalism to religious institutions," which acts were often done to intimidate and deter individuals "from freely exercising their religious beliefs." (Stats. 1983, ch. 726, § 2(a), (b).) Although that amendment involved a different subdivision and different offense, we believe it is reasonable to presume the Legislature held the same concerns when originally enacting section 594.3, subdivision (a) two years earlier. Therefore, the Legislature's expressed concerns in 1983 are instructive in interpreting section 594.3, subdivision (a), which was enacted in 1981. (Stats. 1981, ch. 211, § 2.) In particular, we infer that in enacting that statute, the Legislature sought to protect the rights of persons to freely exercise their religious beliefs by making it a criminal offense to vandalize certain religious properties, including buildings owned and occupied by religious educational institutions. To further that legislative purpose, we presume the Legislature intended to prohibit malicious damage not only to the actual physical structures within which religious or religious educational activities are conducted, but also to personal property or fixtures located on or attached to the real property of, and related to, that structure or "building owned and occupied by a religious educational institution." (§ 594.3, subd. (a).)


McCreary informed Stricklin that after he told them what happened she could help him get his affairs in order and tried to persuade Stricklin to tell her what happened. Stricklin said, "Tell me I ain't going to jail tonight." Officer Minze responded, "I can't do that." Stricklin said, "Tell me I can get out tomorrow." Officer Minze responded, "That would be whatever bond they set. I mean, if you go, I can't tell you that." Stricklin said, "I want to know you're, what exactly is I'm being charged with right now? What exactly are you charging the person that did this with right now?" Officer Minze stated it would be <mask>. Stricklin said, "I want tomorrow to get my affairs in order. Please?" Officer Minze responded, "I can't promise you that. I mean, you'll have bond." Stricklin asked if he would get a public defender if he admitted to causing Victim's injury and Officer Minze told him he would get a public defender if he did not have the means for an attorney. Stricklin stated, "[i]f that's what it takes to keep her out of trouble," then admitted he accidently put his finger in Victim's vagina. Stricklin said Victim was crying in the middle of the night and he found her in the closet with her diaper around her ankles so he picked her up, tripped over a toy, fell, and when he did, his finger went inside Victim's vagina. He said he did not see any blood.


On August 10, 2016, the State filed two counts of <mask> against Gilton. The first count stemmed from the February *2592016 allegations, and the second count stemmed from actions that were alleged to have occurred between October and November 2014. On September 15, 2017, the State filed an amended information charging Gilton as a habitual offender. Gilton waived his right to a jury trial, and a bench trial ensued.


Heavican, C.J. Yerania O. and Juan P. worked together in the early morn- ings at a grocery store in Lincoln, Nebraska, for approximately 2 years. Yerania quit this job in December 2020, and in March 2021, she sought and obtained an ex parte <mask> pro- tection order against Juan. Yerania’s petition alleged that Juan had “[p]ester[ed]” her at work, verbally and physically, and that he had followed her when she took her children to school and threatened to kidnap Yerania and her children. Juan requested and was granted a show cause hearing on whether the sexual assault protection order should remain in effect, at which hearing he denied Yerania’s allegations and asserted that their relationship had been consensual. After the case was submitted, the district court, sua sponte, filed Yerania’s petition under a new case number, then entered a harassment protection order. The court found that it had jurisdiction and concluded a harassment protection order was - 751 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


Appellant asserts that he was denied important constitutional rights by the exclusion of 112 of Elaine's social-media posts. He argues that these posts established three defensive theories: (1) "her motive to lie about the <mask> was to get herself out of trouble with her parents by falsely blaming all her negative conduct on Appellant, including the allegation that he assaulted her"; (2) Elaine was not embarrassed by her conduct as she stated at trial and actively sought relationships with older men; and (3) because some of the posts extolling her use of drugs and alcohol occurred shortly before her trial testimony, they would "impeach her capacity and competency to testify in a drug induced state."


. Predatory <mask> is a class A-II felony, with a maximum sentence of life imprisonment. Rape in the first degree, criminal sexual act in the first degree, and burglary in the first degree as a sexually motivated felony are class B violent felonies, each with a maximum determinate sentence of 25 years, followed by up to 25 years postrelease supervision (see generally Penal Law § 70.00 et set/.; Penal Law § 70.45 [2-a]; § 70.80).


Carla Thomas, a sexual-assault nurse examiner with the Pine Bluff Children's Advocacy Center, testified that she completed a sexual-assault examination on D.D. on 3 March 2016 and that the results were indicative of <mask>. D.D. also told Thomas that she had sex with Shaw. On cross-examination, Thomas said that she completed a sexual-assault kit, including a combing of the vaginal area and a DNA swab, and that the kit had been picked up by the police.


Dr. Parkin-Joseph explained that her “diagnosis” was not based on any of her objective findings and instead was based solely on the reports from AB’s mother. Essentially, Dr. Parkin- Joseph’s testimony could be viewed as saying, “Because AB’s mother said it happened, I too am saying it happened.” This type of testimony is inadmissible. MRE 704 provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Our Supreme Court has repeatedly held, however, that “an examining physician cannot give an opinion on whether a complainant had been sexually assaulted if the conclusion [is] nothing more than the doctor’s opinion that the victim had told the truth.” People v Thorpe, 504 Mich 230, 255; 934 NW2d 693 (2019) (quotation marks and citation omitted; alteration in original). An examining physician’s testimony is objectionable if, absent evidence qualifying her as an expert in assessing credibility, “[her] opinion was based solely on what the victim had told [her].” People v Smith, 425 Mich 98, 109; 387 NW2d 814 (1986). This is because the physician’s testimony lacks a “reliable foundation,” and jurors are just as qualified to evaluate the complainant’s credibility. Id. Even so, “an examining physician, if qualified by experience and training relative to treatment of <mask> complainants, can opine with respect to whether a complainant had been sexually assaulted when the opinion is based on physical findings and the complainant’s medical history.” Thorpe, 504 Mich at 255.


Religious Technology Center “along with a network of Scientology organizations that sit underneath [them], including [Celebrity Centre International], make up what is informally known to the public as ‘The Church of Scientology’ or ‘Scientology.’ ” We collectively refer to the institutional defendants as “Scientology” or “the Church.” Defendant Masterson is an individual member of the Church. Plaintiffs allege both that Masterson was an agent of the Church, and that the Church was an agent of Masterson.2 The Church and Masterson are real parties in interest in this writ proceeding. Plaintiffs Bixler, Jane Doe #1, Jane Doe #2, and Riales each allege that Masterson raped them. This, however, is not the gravamen of their complaint in this case; in fact, they state no cause of action against Masterson for <mask>.3 Instead, they allege causes of action against all defendants for stalking


The court finds that on January 2, 1965, Patrolman G-iordano received a police call instructing him to go to a certain intersection in Inwood. At a service station at that location he was met by the complainant who stated that he had been robbed and *892had been the subject of a <mask> and that these acts had been committed by a male, whom he described. Accompanied by the complainant, his father, and a probationary patrolman, the officer went to the scene of the alleged attack and there inquired of the owner of a used car business at that location whether he had seen a person answering the description given by the complainant. The owner of the business stated that he had seen such a person a few minutes earlier walking towards Far Rockaway. The time was about 6 o’clock and darkness had fallen. The officer and companions drove toward Far Rockaway and about a quarter of a mile from the area where the incident allegedly occurred saw a man who they thought fitted the description given. The complainant made a positive identification of the defendant who was then standing in front of a laundromat in Far Rockaway. A goodly number of passers-by were moving about in the vicinity. The officer arrested the defendant. He searched the defendant on the sidewalk and found nothing. The defendant was placed in the police automobile and on the way to the police headquarters the officer asked the-defendant if he had a knife. The officer patted the defendant’s clothing and while engaged in doing this the defendant himself withdrew the knife from a shirt pocket. This knife is one of the subjects of this motion.


The jury convicted Movant of the deviate <mask> charge, and the trial court sentenced Movant, as a prior offender, to seven years' imprisonment. Movant appealed his conviction, which this Court affirmed in State v. Esters, 482 S.W.3d 825 (Mo. App. E.D. 2016) ; this Court's mandate was entered on March 23, 2016. Movant prematurely filed his pro se Rule 29.15 motion for PCR on April 13, 2015, while his direct appeal was still pending, which the court accepted as timely-filed pursuant to Rule 29.15(e)3 . Movant was appointed post-conviction counsel on May 4, 2015. Pursuant to Rule 29.15(g), Movant's amended Rule 29.15 motion was due by May 23, 2016; however, the motion court granted Movant's counsel's request for an extension of thirty days to file the amended motion.4 Movant's amended Rule 29.15 motion was timely filed on June 22, 2016. Movant argued in his PCR motion that his trial counsel was ineffective for failing to make an offer of proof at trial regarding evidence of the drive-by shooting and for failing to object to Victim's outburst and subsequent apology and explanation. The motion court issued findings of fact and conclusions of law denying Movant's Rule 29.15 motion without an evidentiary hearing.


The definition of predatory <mask> is unambiguous in its language and intent. In order to be charged with the crime, a defendant must commit one of the four designated violent sexual felonies, along with one of four aggravating factors. The aggravating factor defined by Penal Law § 130.95 (2) is that the defendant has engaged in conduct constituting any one of the same four violent sexual felonies against one or more additional persons. Nothing in the language indicates that this subdivision of the statute is connected to or dependent upon the next subdivision of the statute. In fact, the subdivisions of the statute that define the four aggravating factors end in the conjunction “or,” which indicates that they are independent factors, commission of any one of which completes the crime of predatory sexual assault. No reasonable interpretation of Penal Law § 130.95 (2) would find that it is limited to convicted juvenile sexual offenders and defendants with out-of-state violent sexual felony convictions.


The offense of continuous sexual abuse of a child has five elements: (1) a person (2) who is seventeen or older (3) commits a series of two or more acts of sexual abuse (4) during a period of thirty or more days, *782and (5) each time the victim is younger than fourteen. Tex. Penal Code Ann. § 21.02(b) ; Carter v. State , No. 04-15-00319-CR, 2016 WL 2595071, at *3 (Tex. App.-San Antonio May 4, 2016, no pet.) (mem. op., not designated for publication). Indecency by contact with the genitals as alleged in this case is one of the predicate "acts of sexual abuse" for the continuous sexual abuse offense and, thus, is a lesser-included offense of continuous sexual abuse. Tex. Penal Code Ann. § 21.02(c), § 21.11(a)(1) (West 2011); see Soliz v. State , 353 S.W.3d 850, 854 (Tex. Crim. App. 2011) ; Bleil v. State , 496 S.W.3d 194, 214 (Tex. App.-Fort Worth 2016, pet. ref'd). Likewise, aggravated <mask> by (a) intentionally or knowingly causing the penetration of the sexual organ of a child younger than fourteen or (b) intentionally or knowingly causing the sexual organ of a child younger than fourteen to contact the mouth of the actor are predicate "acts of sexual abuse" constituting lesser-included offenses of continuous sexual abuse. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii) (West Supp. 2016).


Defendant argues that Penal Law § 130.95, predatory <mask>, does not apply to the case at bar because the legislature intended it to apply only to “egregious acts of sexual assault” and the instant matter does not satisfy this requirement (defendant’s affirmation at 14). Repeating the traditional definition of “egregious” conduct as that which “shocks the conscience” (id. at 14-15 [citations omitted]), he suggests that the conduct alleged “is not of such a heinous character” as to warrant prosecution under this section (id.).1 He argues, instead, that since the alleged offense is properly encompassed by Penal Law § 130.35 (1), rape in the first degree, predatory sexual assault must be dismissed.


“We decline to apply the reasoning set forth in Goldberg. Instead, we conclude that the clear intent of section 2801-d was to expand the existing remedies for conduct that, although constituting grievous and actionable violations of important rights, did not give rise to damages of sufficient monetary value to justify litigation.” Instead, the Doe court (at 110) found that the rape of the plaintiffs decedent “is precisely the sort of conduct that [section 2801-d] was designed to target, but recovery for such conduct is often barred for plaintiffs who sue at common law.” In this regard, the Doe court pointed out, claims for <mask> based on negligent hiring, training and supervision usually flounder due to the absence of foreseeability. Because nursing home patients are a particularly “vulnerable population,” the Doe court noted (at 111), the Legislature provided them with an easier route for enforcing rights and holding their caretakers liable. Citing the provision of Public Health Law § 2801-d (4) that the statutory remedies are “in addition to” other remedies, the Court found (at 112) that “[i]t is precisely because of the inadequacy of the existing common-law causes of action to redress abuse of patients in nursing homes that Public Health Law § 2801-d was enacted.” Therefore, the Doe court reasoned, the Legislature could not have intended to prevent patients from asserting a statutory claim merely because their common-law claims survived a motion to dismiss. (Id.)


“In this state, evidence that a victim of <mask> promptly complained about the incident is admissible to corroborate the allegation that an assault took place (see, People v Rice, 75 NY2d 929, 931 [1990]; People v Deitsch, 237 NY 300, 304 [1923]; People v O’Sullivan, 104 NY, at 486-487; Richardson, Evidence § 292 [Prince 10th ed]). Historically, the doctrine evolved from the common-law requirement of ‘hue and cry,’ where all victims were required to prove they immediately alerted the community that a crime had occurred (State v Hill, 121 NJ 150, 157, 578 A2d 370, 374 [1990]; Note, A Matter of Time: Evidence of a Victim’s Prompt Complaint in New York, 53 Brooklyn L Rev 1087, 1089 [1988]).” (People v McDaniel, supra at 16.) Prompt outcry is admissible as an exception to what would otherwise be hearsay but testimony concerning the statement must be a concise and accurate representation which does not convey any details except those necessary to elicit the nature of the complaint. (People v McDaniel, supra; People v Green, 298 AD2d 209 [1st Dept 2002].)


cause[d] bodily injury to Melanie Molien by striking [her] head or body with [his] hands, and [he] did then and there use or exhibit a deadly weapon, to-wit: water, during the commission of said assault. After trial, the jury convicted Appellant of non-aggravated <mask> and of aggravated assault with a deadly weapon while acquitting him of assault/family violence. The jury assessed a seven year sentence for the aggravated assault with a deadly weapon conviction and a ten year sentence, suspended to community supervision, for the sexual assault conviction.


J.R.’s mother testified that she was on the porch when J.R. returned home that morning and that J.R., who usually avoided her, sat down on the porch and looked like she wanted to talk. According to J.R.’s mother, J.R. then voluntarily told her what had happened. J.R.’s mother then called the police, who responded to the call at J.R.’s home. Subsequently, J.R. went to the hospital and was treated for <mask>. The responding officers went to the hotel, where they found Dickerson and Jenkins asleep in the hotel room. Both men were arrested.


On the other hand, there are numerous decisions which sustain an arbitrator’s award in reducing dismissal as a punishment for sexual misconduct. In Communication Workers v Southeastern Elec. Coop. (882d 467 [10th Cir 1989]), the court upheld the arbitrator’s decision that an electric *1007company lineman accused of <mask> should be suspended for one month without pay rather than be discharged, noting that the employee’s conduct could be remedied by punishment less severe than discharge.


MULLINS, J. The issue before us in this certified appeal is whether the Appellate Court properly dis- missed the appeal of the petitioner, Robert Goguen, from the judgment of the habeas court on the ground that he failed in his brief to the Appellate Court to brief the claim that the habeas court had abused its discretion in denying his petition for certification to appeal pursu- ant to General Statutes § 52-470 (g).1 The petitioner, proceeding as a self-represented party, filed a petition for a writ of habeas corpus challenging his 1996 convic- tion, pursuant to a guilty plea, of <mask> in the second degree. The habeas court declined to issue the writ for lack of jurisdiction on the ground that the petitioner was not in the custody of the respondent, the Commissioner of Correction. The petitioner then filed a petition for certification to appeal to the Appel- late Court pursuant to § 52-470 (g), which the habeas court denied. Notwithstanding that ruling, the petitioner appealed to the Appellate Court, challenging the merits of the habeas court’s ruling declining to issue the writ of habeas corpus. Goguen v. Commissioner of Correction, 195 Conn. App. 502, 503, 225 A.3d 977 (2020). The Appel- late Court dismissed the appeal on the ground that the petitioner failed to brief any claim that the habeas court had abused its discretion in denying his petition for certification to appeal. See id., 505. This court then granted the petitioner’s petition for certification to appeal from the judgment of the Appellate Court on the following issue: ‘‘Did the Appellate Court properly dismiss the self-represented petitioner’s appeal because he failed to brief whether the habeas court had abused its discretion in denying his petition for certification to appeal?’’ Goguen v. Commissioner of Correction, 335 Conn. 925, 234 A.3d 980 (2020). Our task in this appeal is to harmonize the legislative mandate of § 52-470 (g) that no appeal may be taken from a habeas court’s judgment unless certification is granted with this court’s interpretation of that statute in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994) (Simms II), which provides guidance on the procedure to be followed when a habeas court denies certification to appeal. In light of the statutory require- ment, we explained in Simms II that, if a habeas court denies certification to appeal, a petitioner may obtain review only if he makes a ‘‘two part showing’’ on appeal: first, as a threshold matter, he must ‘‘demonstrate that the habeas court’s ruling constituted an abuse of discre- tion,’’ and, second, ‘‘[i]f the petitioner succeeds in sur- mounting that hurdle, the petitioner must then demon- strate that the judgment of the habeas court should be reversed on its merits.’’ Id. What Simms II leaves unclear is what exactly is required of an appellant to satisfy the threshold showing of an abuse of discretion before plenary review of the merits by a reviewing court is warranted. As we discuss more fully in this opinion, the Appellate Court has concluded in several cases that the petitioner can satisfy the threshold requirement by expressly alleg- ing in his brief that the arguments on the merits of the appeal demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal. Conversely, the Appellate Court has held that, when a petitioner fails to expressly allege or brief that the denial of certification was an abuse of discretion and simply briefs the merits of his underlying claim without any reference to the requirement of Simms II, the petitioner’s appeal must be dismissed. See part I of this opinion. We conclude that, in order to make sense of the statutory requirement and Simms II, a petitioner must at least expressly allege and explain in his brief how the habeas court abused its discretion in denying certifi- cation. We recognize, just as the Appellate Court has, that this may be done by expressly referring the reviewing court to the portion of the brief addressing the merits of the appeal and pointing out that, if the appeal is successful on the merits, then an abuse of discretion necessarily has been demonstrated. The peti- tioner must at least do that, however, in order to comply with the statute and Simms II. The petitioner may not simply disregard the require- ment of Simms II and brief only the merits of the underlying claim without any effort to comply with the ‘‘two part showing’’ required by Simms II, which includes the discrete question of whether the habeas court abused its discretion in denying certification. Simms v. Warden, supra, 230 Conn. 612. In this appeal, the petitioner never expressly alleged that the habeas court abused its discretion in denying certification to appeal. He argued only that the habeas court erred in declining to issue the writ. Accordingly, the Appellate Court’s dismissal of his appeal appropriately adheres to the dictates of § 52-470 (g) and Simms II and its progeny, and must be affirmed. The record reveals the following undisputed facts and procedural history. In 1996, the petitioner was con- victed, after entering a guilty plea, of sexual assault in the second degree in violation of General Statutes (Rev. to 1995) § 53a-71 (a) (3). The petitioner was sentenced on October 25, 1996, to ten years in prison, execution suspended after four years, and five years of probation. Thereafter, in 1998, the legislature passed legislation, now codified at General Statutes § 54-250 et seq., requir- ing persons who have been convicted of certain sexual offenses, including the petitioner’s offense, to register as sex offenders. See Public Acts 1998, No. 98-111. The legislation applied to the petitioner because he was released from prison after its effective date. On April 11, 2017, the petitioner, proceeding as a self- represented party, filed a petition for a writ of habeas corpus, claiming, among other things, that he should be allowed to withdraw his 1996 guilty plea because, due to ineffective assistance of his counsel, his plea had not been made voluntarily. Specifically, he alleged that, while he was residing in Maine in 2012, he was convicted under federal law of failing to register as a sex offender—a requirement imposed as the result of his 1996 Connecticut conviction.2 He further alleged that, as of the date he filed his habeas petition, he was incarcerated as a result of violating the conditions of supervised release that were imposed on him under federal law as a result of the federal 2012 conviction. Pursuant to Practice Book § 23-24 (a),3 the habeas court declined to issue a writ for lack of jurisdiction because, at the time that the petitioner filed the petition, he was no longer in the custody of the respondent as a result of the 1996 conviction.4 Although the habeas court did not elaborate on its basis for this determina- tion,5 it is undisputed that neither the petitioner’s term of incarceration nor his term of probation for the 1996 conviction was in effect on the date that he filed his petition for a writ of habeas corpus. The petitioner filed a petition for certification to appeal from the habeas court’s judgment pursuant to § 52-470 (g), which the habeas court denied. Despite the denial of his petition for certification, the petitioner appealed to the Appellate Court from the habeas court’s judgment declining to issue a writ of habeas corpus.6 In his brief to that court, the petitioner did not allege that the habeas court had abused its discretion in denying his petition for certification to appeal. He also did not ask the Appellate Court to con- strue his argument on the merits as a demonstration of the habeas court’s abuse of discretion. Instead, the petitioner claimed only that the habeas court had incorrectly determined that he was not in the custody of the respondent and that he should be allowed to withdraw his 1996 guilty plea because it was unintelli- gently and involuntarily made.7 The respondent con- tended in his brief that the habeas court had not abused its discretion in denying the petitioner’s petition for certification to appeal and that it had properly declined to issue the writ. The Appellate Court noted in a per curiam opinion that, under Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), the petitioner was required, as a threshold matter on appeal, to ‘‘demonstrate that the denial of his petition for certification constituted an abuse of discretion.’’ (Internal quotation marks omit- ted.) Goguen v. Commissioner of Correction, supra, 195 Conn. App. 504. The Appellate Court further noted that, to establish such an abuse of discretion, the peti- tioner was required to demonstrate that the habeas court’s resolution of the underlying claim involved issues that ‘‘are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encourage- ment to proceed further.’’ (Internal quotation marks omitted.) Id.; see, e.g., Simms v. Warden, supra, 230 Conn. 616 (same). Finally, the Appellate Court noted that it had held previously that, ‘‘[i]f this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consider- ation by [the Appellate] [C]ourt.’’ (Internal quotation marks omitted.) Goguen v. Commissioner of Correc- tion, supra, 504. Because the petitioner had failed to brief this threshold issue, the Appellate Court declined to review the merits of the petitioner’s claims and dis- missed the appeal.8 Id., 505. The petitioner then filed a motion for reconsideration in which he claimed that the habeas court had abused its discretion when it denied his petition for certification to appeal. In support of this claim, the petitioner argued the merits of his underlying claim that the habeas court had incorrectly determined that he was not in the respondent’s custody. The Appellate Court denied the motion. This certified appeal followed. On appeal to this court, the petitioner contends that his argument in his brief to the Appellate Court concerning the merits of his underlying claim that the habeas court incorrectly determined that it lacked jurisdiction to entertain his habeas petition because he was not in the respondent’s custody ‘‘inherently demonstrate[s] that the habeas court [had] abused its discretion in . . . denying the petition for [certification to appeal].’’ He further con- tends that, because he was proceeding as a self-repre- sented party, the Appellate Court should have liberally construed his brief on the merits as demonstrating that the habeas court had abused its discretion in denying his petition for certification for appeal, even though he had not expressly made that allegation. Accordingly, he argues, the Appellate Court incorrectly determined that he was not entitled to review of his claims on appeal. The respondent contends that, to the contrary, the Appellate Court correctly determined that it had no authority to entertain the merits of the petitioner’s appeal under § 52-470 (g), as that statute was construed by this court in Simms I and Simms II. Specifically, the respondent argues that, under Simms II, the petitioner must ‘‘make a two part showing’’ when the habeas court has denied his petition for certification to appeal. (Emphasis added; internal quotation marks omitted.) Simms v. Warden, supra, 230 Conn. 612. To allow a petitioner to ignore the threshold requirement of dem- onstrating that the habeas court abused its discretion when it denied the petition for certification, the respon- dent argues, would entirely eviscerate the mandate of § 52-470 (g) that ‘‘[n]o appeal from the judgment ren- dered in a habeas corpus proceeding . . . may be taken unless the appellant’’ petitions the habeas court for certification to appeal and the habeas court grants the petition. We conclude that the Appellate Court prop- erly declined to review the petitioner’s claims and dis- missed the appeal. I Whether the Appellate Court had the authority to review the petitioner’s claims on appeal from the judg- ment of the habeas court when he failed even to allege that the habeas court had abused its discretion in deny- ing his petition for certification to appeal pursuant to § 52-470 (g) is a question of statutory interpretation over which we exercise plenary review. See, e.g., General Statutes § 1-2z (plain meaning rule); Canty v. Otto, 304 Conn. 546, 557–58, 41 A.3d 280 (2012) (general rules of construction are aimed at ascertaining legislative intent).


At the resentencing hearing, the State argued Fisk's sodomy conviction under Article 125, irrespective of Article 134, required mandatory life sentences under section 12.42(c)(2). See TEX. PENAL CODE ANN. § 12.42(c)(2). The trial court agreed with the State and made findings of fact and conclusions of law. The trial court concluded the elements of sodomy under the former version of UCMJ Article 125 were substantially similar to <mask> under section 22.011 of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.011. Under Texas Penal Code section 12.42(c)(2), the trial court again imposed a life sentence for each of Fisk's convictions for indecency with a child.


Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered September 17, 2018, as amended November 14, 2018, convicting defendant, after a nonjury trial, of two counts of predatory <mask> against a child, three counts of sexual abuse in the first degree, three counts of rape in the second degree, seven counts of criminal contempt in the second degree, and one count each of endangering the welfare of a child and attempted assault in the third degree, and sentencing him to an aggregate term of 52 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentences for the predatory sexual assault convictions be served concurrently, resulting in a new aggregate term of 32 years to life, and otherwise affirmed.


Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. I. INTRODUCTION Marvin L. Wood appeals from his conviction of first degree <mask> of a child. He asserts the trial court erred by refusing to appoint him a DNA expert, sustaining the prosecu- tion’s objection to further use of a forensic video to refresh the victim’s recollection, and sustaining the State’s relevancy objection to his attempt to adduce the fact that the declarant of certain out-of-court statements was a convicted felon. Wood also makes numerous claims of ineffective assistance of his trial counsel, including the failure to adequately support the motion for a DNA expert, the handling of the State’s DNA evi- dence, and the cross-examination of the victim. We affirm the judgment below. II. BACKGROUND With counsel different from trial counsel, Wood appeals his conviction, following a jury trial, of first degree sexual assault of a child pursuant to Neb. Rev. Stat. § 28-319.01(1)(a) (Reissue 2016). Trial counsel did not request that the jury be instructed on a lesser-included offense of attempted first degree assault of a child. The victim was friends with Wood’s daugh- ter, and the assault occurred during a sleepover with Wood’s daughter at Wood’s apartment. The victim was 8 years old at the time of the assault and 9 years old at the time of trial. 1. Motion to Employ Expert Witness Wood was charged in September 2019. Due to laboratory delays in DNA testing, trial was continued to August 3, 2020, with a pretrial conference set for July 2. The DNA test results became available to the defense on June 8. At the July 2 pre- trial conference, defense counsel indicated readiness to go - 397 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


Booto claims that three specific comments by the trial judge constitute error: (1) the comment to the jury that the trial's late start was Booto's fault; (2) an order for defense counsel to refer to A.P.'s <mask> examination as a "rape kit"; and (3) questions the judge personally posed to A.C. about her musical interest. Each will be addressed in turn.


assault and then have a pediatrician examine her “on a part of her body that isn’t normal for an eight-year-old girl to have examined.” Lastly, the prosecution described the testimony indicating the victim’s changes in behavior and demeanor after the assault. Trial counsel emphasized in closing arguments the burden of proof. Trial counsel pointed out that the victim had told three different stories and that there were multiple inconsistencies in her statements about the alleged assault. In fact, trial counsel had counted the inconsistencies to be “into the teens.” Trial counsel asserted, “It’s easy to remember the truth. It’s very hard to remember a lie.” Trial counsel also emphasized that its expert found no injury demonstrating <mask> and that the presence of epithelial cells in underwear worn overnight while in Wood’s “messy apartment” was not incriminating, given that the cells can be transferred via surfaces.


Heavican, C.J. Yerania O. and Juan P. worked together in the early morn- ings at a grocery store in Lincoln, Nebraska, for approximately 2 years. Yerania quit this job in December 2020, and in March 2021, she sought and obtained an ex parte <mask> pro- tection order against Juan. Yerania’s petition alleged that Juan had “[p]ester[ed]” her at work, verbally and physically, and that he had followed her when she took her children to school and threatened to kidnap Yerania and her children. Juan requested and was granted a show cause hearing on whether the sexual assault protection order should remain in effect, at which hearing he denied Yerania’s allegations and asserted that their relationship had been consensual. After the case was submitted, the district court, sua sponte, filed Yerania’s petition under a new case number, then entered a harassment protection order. The court found that it had jurisdiction and concluded a harassment protection order was - 751 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


Here, section 22.011(f) contains objective criteria-"prohibited from marrying" the victim-alerting an actor to the type of situation in which a <mask> may be enhanced to a first-degree felony. See id. The fact that Senn could have violated this prohibition in more than one way does not make the statute vague as applied to Senn. Cf. Earls v. State , 707 S.W.2d 82, 86-87 (Tex. Crim. App. 1986) (stating that the fact that a person's conduct violates two parts of a statute or even two different statutes does not make the statute vague as long as the proscribed conduct is described so as to give a person fair notice that it violates the statute); State v. Empey , 502 S.W.3d 186, 193-94 (Tex. App.-Fort Worth 2016, no pet.) (holding that section 31.03 did not violate due process and did not encourage arbitrary and discriminatory enforcement merely because prosecutor could choose between pursuing alternative but clearly-defined penalties that may apply to the same act of theft). Because section 22.011(f) is general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that the actor will be penalized more harshly if he is prohibited from marrying the victim-as Senn is here, it is not vague as applied to Senn and therefore does not permit arbitrary enforcement. See Colten , 407 U.S. at 110, 92 S.Ct. at 1957 ; Watson , 369 S.W.3d at 871.


Defendant has not addressed the specific criteria set forth in CPL 210.40 (1), but argues, in sum and substance, that the penalty for a conviction of predatory <mask> would be unjust in light of his lack of a criminal record. It is clear, however, that the absence of a criminal record, by itself, is an insufficient basis for granting dismissal in the interest of justice (see People v Varela, 106 AD2d 339, 340 [1st Dept 1984], lv denied 64 NY2d 893 [1985]). Even the “ ‘exemplary’ background” of an individual “does not immunize him from the normal processes of the criminal law” {id.). The possibility that a defendant could face a lengthy period of incarceration upon conviction does not present a compelling reason to simply dismiss the charge.


The pediatrician testified that she observed during the physi- cal examination “an extreme amount of redness and irritated tissue from about 3 o’clock going around to about 9 o’clock on the face of a clock.” She explained, “Lots of young girls have redness down there, but this was impressive, much more than you see on a standard exam of a child.” The pediatrician also observed a superficial, vertical lac- eration at about the 9 o’clock position and in the folds of the labia minora adjacent to the vaginal opening. The tissue of the vagina heals very quickly; therefore, she concluded the observed injuries were recent. The victim’s injuries, the pediatrician explained, could have caused bleeding when they first occurred, as well as burning during urination. Further, there would not necessarily be blood on the victim’s underwear given the injuries and reported bleeding. Rather, “[t]he way that it’s hidden up in these tis- sues,” it was possible that “when [she] wiped over it, it opened it up again or that that blood had sort [sic] been tucked up in that tissue.” The pediatrician stated the observed injuries could be con- sistent with digital or penile penetration of the vagina. On cross-examination, the pediatrician conceded it was “possible” the observed injuries were caused by acts that were not “crimi- nal or nefarious.” 8. Defense Expert Witness The defense called as an expert witness the <mask> nurse examiner, who was also a nurse practitioner with a doctorate degree in nursing. The expert works as the assistant manager of a forensic assessment consultation and treatment program. She had reviewed the police records, a transcript of the forensic interview, the medical records from the hospital, and the medical records from the forensic examination. The expert testified that redness is a nonspecific finding that “really holds no significance to the exam.” She observed no physical injuries from the photographs taken during the examination. - 413 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. WOOD Cite as 310 Neb. 391


(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony in the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.1 Appellant argues that this statute differentiates between married and unmarried sex offenders in violation of the Equal Protection Clause. Appellant is incorrect. The classification at issue in this statute is rationally related to enforcing the prohibition against bigamy and <mask> committed pursuant to a bigamous relationship. As such, it does not violate the Equal Protection Clause. Consequently, I concur in the Court's conclusion, though I disagree with its reasoning. However, because the Court chooses to remand the case to the court of appeals rather than address the appropriate standard of review for Appellant's equal protection claim, I respectfully dissent.


Reflecting modern thought in attempting to lessen the effects of complaining of a <mask>, a number of jurisdictions have enacted laws which restrict the admissibility of evidence concerning a victim’s prior sexual conduct (see, e.g., Fed Rules Evid, rule 412). Such statutes go far toward making sex crime prosecutions less special, by treating those complaining of sex crimes as equals to complainants in other criminal cases (Government of Virgin Is. v Scuito, supra, at 876, citing Berger, Man’s Trial. Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 97 [1977]). In 1975, New York enacted its own version of a so-called rape shield law,1 and in the State of New York, the general rule is that *282evidence of a victim’s sexual conduct is not admissible in a prosecution for an offense defined in article 130 of the Penal Law (which defines sexual offenses). Four exceptions to the rule are strictly limited, and the fifth, a catch-all, permits the Trial Judge discretion to admit otherwise proscribed evidence of the victim’s sexual conduct where the court finds it "relevant and admissible in the interests of justice”. To accomplish this the statute requires the Trial Judge to first take an offer of proof by the accused outside of the jury’s hearing or to conduct such other hearing as may be required (CPL 60.42 [5]). The obvious purpose of CPL 60.42 is to bar harassment of victims with respect to irrelevant issues while also keeping from the jury confusing and prejudicial matters which have no proper bearing on the issue of guilt or innocence of the accused (Bellacosa [now Judge Bellacosa of NY Ct App], Practice Commentary, McKinney’s Cons Laws NY, Book 11 A, CPL 60.42, at 564-565). To accomplish this twofold objective, the Legislature attempts to strike a reasonable balance between protecting the privacy and reputation of a complaining witness, while permitting an accused, when it is found relevant, to present evidence of a victim’s sexual conduct (ibid.).


The offense of continuous sexual abuse of a child has five elements: (1) a person (2) who is seventeen or older (3) commits a series of two or more acts of sexual abuse (4) during a period of thirty or more days, *782and (5) each time the victim is younger than fourteen. Tex. Penal Code Ann. § 21.02(b) ; Carter v. State , No. 04-15-00319-CR, 2016 WL 2595071, at *3 (Tex. App.-San Antonio May 4, 2016, no pet.) (mem. op., not designated for publication). Indecency by contact with the genitals as alleged in this case is one of the predicate "acts of sexual abuse" for the continuous sexual abuse offense and, thus, is a lesser-included offense of continuous sexual abuse. Tex. Penal Code Ann. § 21.02(c), § 21.11(a)(1) (West 2011); see Soliz v. State , 353 S.W.3d 850, 854 (Tex. Crim. App. 2011) ; Bleil v. State , 496 S.W.3d 194, 214 (Tex. App.-Fort Worth 2016, pet. ref'd). Likewise, aggravated <mask> by (a) intentionally or knowingly causing the penetration of the sexual organ of a child younger than fourteen or (b) intentionally or knowingly causing the sexual organ of a child younger than fourteen to contact the mouth of the actor are predicate "acts of sexual abuse" constituting lesser-included offenses of continuous sexual abuse. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii) (West Supp. 2016).


“whether a liability insurer is obligated to defend and indemnify its insured . . . in an action brought against the insured based on an alleged <mask> by the insured’s employee. We hold that the alleged assault was an ‘accident’ within the meaning of the policy, and that the policy’s exclusions for injuries expected or intended from the standpoint of the insured and for bodily injury arising out of body massage do not apply. We therefore hold that the insurer is obligated to defend and indemnify.” In RJC, a hair salon brought an action against its insurer seeking indemnification for a claim against it arising out of the alleged improper sexual contact committed by one of its employees.


Prudholm first compared California's sexual battery statute with Texas's <mask> statute and observed that sexual battery encompassed "a markedly different range of conduct" than sexual assault. 333 S.W.3d at 599. California's sexual battery statute criminalized "touching" - i.e., physical contact with - an "intimate part" - i.e., sexual organ, anus, groin, or buttocks of any person or the breast of a female - whereas Texas's sexual assault statute criminalized the " 'penetration or contact' of a person's 'anus' or 'sexual organ[.]' " Id. Moreover, the sexual battery statute explicitly excluded rape and sexual penetration from its scope. Id. For those reasons, Prudholm held that while the elements of sexual battery and sexual assault might "be similar in a general sense, they do not display the high degree of likeness required to be substantially similar." Id.