"Respondents vigorously object to the limitation of wholesaler’s tax-exempt cigarette sales through the 'probable demand’ mechanism. We are persuaded, however, that New York’s decision to stanch the illicit flow of tax-free cigarettes early in the distribution stream is a 'reasonably necessary’ method of 'preventing fraudulent transactions,’ one that 'polices against wholesale evasion of [New York’s] own valid taxes without unnecessarily intruding on core tribal interests.’ Colville, 447 U.S., at 160, 162, 100 S.Ct. at 2084-2085, 2085. The sole purpose and justification for the quotas on untaxed cigarettes is the State’s legitimate interest in avoiding <mask> by non-Indian consumers.” (Emphasis added.)


In the case at bar, the State has a valid interest in ensuring compliance with lawful liquor taxes that might easily be evaded through purchase of tax-exempt liquor on reservations; and the sole purpose and justification of chapter 508 of the Laws of 1993 is the State’s legitimate interest in avoiding <mask> by non-Indian consumers through this enforcement statute.


Petitioner counters that such review is now a well-worn path and that higher legal authority has preempted further consideration, having decreed that New York’s interest in collecting its lawful taxes and in preventing <mask> by non-Indians does not unnecessarily intrude on "core” tribal interests. Thus, State taxing regulations which seek to enforce their tax impact upon non-Indian purchasers by imposing the minimal burdens of a precollection regime upon Indian traders have already been found to be valid and enforceable. (Citing Department of Taxation & Fin. v Milhelm Attea & Bros., 512 US 61 [1994]; Snyder v Wetzler, 193 AD2d 329 [1993], affd 84 NY2d 941 [1994].)


The decedent was involved in an astounding course of events concerning his business transactions, his marital difficulties and his troubles with respect to Federal income taxes. Although decedent’s earnings were substantial, he failed to pay his income taxes, with the result that he was convicted of <mask> and sentenced in October, 1955. The United States has asserted a claim for unpaid income taxes which on its face appears to be valid and which, as above stated, exceeds $600,000, as a result of which a tax lien was filed against the decedent in September of 1955, more than two years prior to his death in 1958. The decedent’s difficulties with the United States were equalled, if not exceeded, by the numerous controversies and protracted litigation between him and his wife. The parties were married in August, 1935. The only child of such marriage was born in September of 1942 and the parties separated in July of 1946. Decedent’s will dated April 19, 1955, was admitted to probate by a decree of this court dated June 26, 1958, following the decedent’s death in March of 1958. The litigation between the decedent and his wife ran the gamut of every court from the Magistrates’ Court in the City of New York to the Court of Appeals. Until his death in 1958 decedent and his wife had been involved in more than 70 actions and proceedings against each other. (See Matter of Rosenfield, 213 N. Y. S. 2d 1009, 1013.)


The cases cited by the petitioner, Commissioner of Internal Revenue v. Procter (142 F. 2d 824, cert. den. 323 U. S. 756) and United States, v. Taylor (254 F. Supp. 752), are not in point. There is a vast difference between legal tax avoidance and attempted <mask>. The testator could and did make valid tax-exempt charitable bequests and the legislative intent to encourage such gifts has been clearly expressed and supported by our courts (Commissioner of Internal Revenue v. Upjohn’s Estate, 124 F. 2d 73; Edwards v. Slocum, 264 U. S. 61; Arthur Jordan Foundation v. Commissioner of Internal Revenue, 210 F. 2d 885). In these days of high taxation the testator’s concern with the payment of taxes and his attempt by legal means to avoid their full impact is readily understandable.


JONES, Judge: Petitioner, John M. Larson, along with two other individuals, Robert A. Pfaff and David Amir Makov, promoted a fraudulent tax shelter transaction known as Bond Linked Issue Premium Structure (BLIPS). Mr. Larson was convicted of <mask> for his involvement in BLIPS, but the central issue in this case concerns the use of a restricted stock agreement to defer recognition of income earned from these transactions.


Craig P. Orrock was accused of <mask> for concealing income he received from the sale of a vacant lot that he controlled. Rather than report the sale proceeds on his personal tax return, he belatedly disclosed the sale in the return of a partnership that he also controlled. In that return, he significantly underreported the sale proceeds. For this offense, the government charged Orrock with evading the 4 UNITED STATES V. ORROCK


But the government advances a different view. Although the government agrees that the statute of limitations can start once all the elements of the offense are satisfied, it also maintains that the limitations period can run from the last affirmative act furthering the <mask>. Under that interpretation, the government alleges that Orrock committed another, final act of evasion on May 9, 2011, when he filed the partnership tax return. If the government is right—that Orrock’s last act of evasion restarts the statute of limitations—then the indictment was brought 13 months before the expiration of the limitations period.


We thus conclude that the statute of limitations for § 7201 evasion of assessment offenses runs from the last act necessary to complete the offense, the later of either: (1) a tax deficiency, or (2) the last affirmative act of <mask>. In so ruling, we align evasion of assessment cases with evasion of payment cases, see Carlson, 235 F.3d at 470 (“[T]he six year limitations period in evasion of payment cases runs from the last act of evasion[.]”), and join all the other circuit courts that have addressed the issue. See, e.g., United States v. Ferris, 807 F.2d 269, 271 (1st Cir. 1986); United States v. DiPetto, 936 F.2d 96, 98 (2d Cir. 1991) (per curiam); United States v. Wilson, 118 F.3d 228, 236 (4th Cir.


Second, we later recognized in Carlson that the statute of limitations may “run[] from the last act of evasion” for evasion of payment cases. Id. We do not think that Carlson intended to create separate rules for evasion of assessment and evasion of payment cases, which Congress enacted by the same statutory text and designed to punish the same, “single crime of <mask>.” Mal, 942 F.2d at 688. Thus, no reason exists to “draw[] a distinction between evasion of assessment and payment for the purposes of applying the statute of limitations.” United States v. Hunerlach, 197 F.3d 1059, 1065 (11th Cir. 1999). We therefore read Carlson as treating evasion of assessment and evasion of payment cases the same for calculating the limitations period. 12 UNITED STATES V. ORROCK


As also set forth in Kaplan's affidavit, in 1993, the federal district court sentenced the deputy to 16 years in prison "for stealing money seized in drug investigations, conspiracy to commit perjury, <mask>, aiding and abetting perjury, submitting false documents on a loan application, and attempting to possess and distribute 66 pounds of cocaine for $6 million profit." In connection with his section 1473.7 motion, Ogunmowo submitted newspaper articles detailing the corruption scandal as a whole and this particular deputy's criminal case and resulting prison sentence.


Looking at the legislative intent, the SDL was enacted to "curtail the dissemination of stolen property and to facilitate the recovery of stolen property by means of a uniform, statewide, state-administered program of regulation of persons whose principal business is the buying, selling, trading, auctioning, or taking in pawn of tangible personal property and to aid the State Board of Equalization to detect possible sales <mask>." ( Bus. & Prof. Code, § 21625.)


Essentially, what the court held is that, to prevent <mask> by non-Indians who purchase cigarettes, Montana may enlist tribal sellers in an effort to collect tax owed by these shoppers. ( Moe , supra , 425 U.S. at pp. 481-483, 96 S.Ct. 1634.) The court explained, "Since nonpayment of the tax is a misdemeanor as to the retail purchaser, the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax." ( Id. at p. 482, 96 S.Ct. 1634.) Noting that the burden imposed on Indian sellers "is not, strictly speaking, a tax at all" because the ultimate tax burden falls on purchasers-which is why cases invalidating direct taxation of reservation Indians did not apply-the court held that the precollection requirement was nothing more than an expedient "minimal burden designed to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a concededly lawful tax." ( Id . at p. 483, 96 S.Ct. 1634.)


*397... We are persuaded ... that New York's decision to stanch the illicit flow of tax-free cigarettes early in the distribution stream is a 'reasonably necessary' method of 'preventing fraudulent transactions,' one that 'polices against wholesale evasion of [New York's] own valid taxes without unnecessarily intruding on core tribal interests.' Colville, 447 U.S. at 160, 100 S.Ct. 2069 [ ]. The sole purpose and justification for the quotas on untaxed cigarettes is the state's legitimate interest in avoiding <mask> by non-Indian consumers. ... [¶] ... [¶] ... [And b]y requiring wholesalers to precollect taxes on, and affix stamps to, cigarettes destined for nonexempt consumers, New York has simply imposed on the wholesaler the same precollection obligation that, under Moe and Colville, may be imposed on reservation retailers." ( Milhelm , supra , 512 U.S. at pp. 73-76, 114 S.Ct. 2028, fns. omitted.)


Essentially, what the court held is that, to prevent <mask> by non-Indians who purchase cigarettes, Montana may enlist tribal sellers in an effort to collect tax owed by these shoppers. ( Moe , supra , 425 U.S. at pp. 481-483, 96 S.Ct. 1634.) The court explained, "Since nonpayment of the tax is a misdemeanor as to the retail purchaser, the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax." ( Id. at p. 482, 96 S.Ct. 1634.) Noting that the burden imposed on Indian sellers "is not, strictly speaking, a tax at all" because the ultimate tax burden falls on purchasers-which is why cases invalidating direct taxation of reservation Indians did not apply-the court held that the precollection requirement was nothing more than an expedient "minimal burden designed to avoid the *93likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a concededly lawful tax." ( Id . at p. 483, 96 S.Ct. 1634.)


"Although Moe and Colville dealt most directly with claims of interference with tribal sovereignty, the reasoning of those decisions requires rejection of the submission that [a provision of the Indian Trader Statutes] bars any and all state-imposed burdens on Indian traders.... [¶] ... [¶] ... We are persuaded ... that New York's decision to stanch the illicit flow of tax-free cigarettes early in the distribution stream is a 'reasonably necessary' method of 'preventing fraudulent transactions,' one that 'polices against wholesale evasion of [New York's] own valid taxes without unnecessarily intruding on core tribal interests.' Colville, 447 U.S. at 160 [100 S.Ct. 2069] [ ]. The sole purpose and justification for the quotas on untaxed cigarettes is the state's legitimate interest in avoiding <mask> by non-Indian consumers.... [¶] ... [¶] ... [And b]y requiring wholesalers to precollect taxes on, and affix stamps to, cigarettes destined for nonexempt consumers, New York has simply imposed on the wholesaler the same precollection obligation that, under Moe and Colville , may be imposed on reservation retailers." ( Milhelm , supra , 512 U.S. at pp. 73-76, 114 S.Ct. 2028, fns. omitted.)


Monica Murphy, previously a physician, was granted use immunity upon the prosecutor's request before her testimony. Following a conviction for <mask> in 2003, Murphy was not able to practice on her own and was hired as a physician by Rios to work for Visalia Industrial and P & R. She later lost her medical license and worked for P & R as a medical assistant for about a year.


As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree on the mode of commission. That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, that one can conceive of novel "umbrella" crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process. Schad v. Arizona , 501 U.S. 624, 649-50, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring) (citations omitted). What the plurality pointed out was that "nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of 'Crime' so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, <mask>, or littering, for example, would suffice for conviction." Id. at 633, 111 S.Ct. 2491 (plurality op.).


smuggling or failing to report cash is more serious than the Court is willing to acknowledge. The drug trade, money laundering, and <mask> all depend in part on smuggled and unreported cash. Congress enacted the reporting requirement because secret exports of money were being used in organized crime, drug trafficking, money laundering, and other crimes. See H. R. Rep. No. 91-975, pp. 12-13 (1970). Likewise, tax evaders were using cash exports to dodge hundreds of millions of dollars in taxes owed to the Government.


• In 1987, President Reagan gave notice of the termination of the United States-Netherlands Antilles Income Tax Convention, on the ground that it had facilitated <mask> using accounts and companies based in the Antilles. See id. • In 1995, President Clinton gave notice of the termination of a 1980 tax treaty with Malta, on the ground that recent changes in Maltese law allowed exploitation of the terms of the treaty. See id. at 203–04; Dep’t of the Treasury, United States Terminates Tax Treaty with Malta, Treas. RR-717, 1995 WL 685012 (Nov. 20, 1995). • In 2007, President George W. Bush gave notice to terminate a tax treaty with Sweden because Sweden had abolished the tax in question. Dep’t of the Treasury, United States Terminates Estate and Gift Tax with Sweden, Treas. HP-436, 2007 WL 1724190 (June 15, 2007). • In 2016, President Obama gave notice to withdraw the United States from the South Pacific Tuna Treaty in accordance with that treaty’s withdrawal provision. See Treaty Amendment, 2016 Di- gest of United States Practice in International Law, ch. 4, § B, at 149 (“2016 Digest of U.S. Practice”). 8 In view of these historical examples of presidential action, combined with what has usually been congressional acquiescence, there can no longer be serious doubt that the President may terminate a treaty in ac- cordance with its terms. See Validity of Congressional-Executive Agree- ments That Substantially Modify the United States’ Obligations Under an Existing Treaty, 20 Op. O.L.C. 389, 395 n.14 (1996) (“[T]he executive branch has taken the position that the President possesses the authority to terminate a treaty in accordance with its terms by his unilateral ac- tion[.]”); Goldwater v. Carter, 617 F.2d 697, 699–708 (D.C. Cir.) (en banc) (per curiam) (upholding President Carter’s authority to terminate a mutual defense treaty with the Republic of China according to the treaty’s terms), vacated, 444 U.S. 996 (1979); Restatement (Fourth) of Foreign


Appraisal District had more than a “tangential, tenuous, or remote relationship” with the appraised value of Kinder Morgan’s mineral interests. The final question is whether the Appraisal District is a “governmental body.” CIV. PRAC. & REM § 27.001(4)(B). The TCPA does not define the term “governmental body.” However, “governmental” means “[o]f, relating to, or involving a government,” Governmental, BLACK’S LAW DICTIONARY (10th ed. 2014), and the most applicable common definition of the term “body” is “[a]n aggregate of individuals or groups” or “a deliberative assembly,” Body, BLACK’S LAW DICTIONARY (10th ed. 2014). The Appraisal District is a political subdivision of the State. TAX § 6.01(c). It is governed by a board of directors, which are selected by the Taxing Units, id. § 6.03(a), and has the responsibility to determine the value of property in Scurry County for purposes of ad valorem taxes, id. § 6.01(b). Therefore, as an aggregate of individuals or a deliberative assembly related to or involving the government, the Appraisal District is a “governmental body.” See Enter. Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 295 (Tex. App.— Houston [14th Dist.] 2020, no pet.) (holding that the City of Sealy was “a ‘governmental body’ and a political subdivision of this state”). The Taxing Units argue that the TCPA is intended to protect constitutional rights; that Kinder Morgan had a constitutional duty to pay taxes without fraud and did not have a constitutional right to engage in criminal behavior or to commit civil wrongs; that the TCPA’s broad definition of the exercise of the right to petition is necessarily restricted by the statute’s purpose to protect constitutional rights; and that “[a]ny application of the TCPA to taxpayer fraud for property <mask> would be contrary to the purpose of the TCPA, the constitutional requirement that equal and uniform taxes be paid, and the comprehensive tax scheme established by the Legislature.” However, in determining whether the TCPA applies to a legal action, we are required to apply the statutory definitions, which are not co-extensive with rights protected by the First Amendment to the United States Constitution. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 133–34 (Tex. 2019); Youngkin, 546 S.W.3d at 680–81 (“It does not follow from the fact that the TCPA professes to safeguard the exercise of certain First Amendment rights that it should only apply to constitutionally guaranteed activities.”); Beving v. Beadles, 563 S.W.3d 399, 405 (Tex. App.—Fort Worth 2018, pet. denied) (“[D]espite the TCPA’s express purpose to protect constitutional rights, the TCPA’s definition of ‘the right to petition’ is far broader.”). Based on the statutory definitions, Kinder Morgan established that it exercised its right to petition because its communications to the Appraisal District, a governmental body, had more than a tangential, tenuous, or remote relationship with an issue, the value of Kinder Morgan’s mineral interests in Scurry County, that was under consideration by the Appraisal District for purposes of imposing ad valorem taxes. See CIV. PRAC. & REM. § 27.001(4)(B); Enter. Crude, 614 S.W.3d at 294 (holding that applications for land disturbance and building permits to the city was the exercise of the right to petition under Section 27.001(4)(B) of the TCPA); CVK Enters., L.L.C. v. Pullen, No. 13-20-00047-CV, 2020 WL 6602153, at *5 (Tex. App.—Corpus Christi–Edinburg Nov. 12, 2020, no pet.) (mem. op.) (holding that a rezoning application was “indisputably” the exercise of the right to petition under Section 27.001(4)(B) of the TCPA). 5 The TCPA applies to the Taxing Units’ claims if those claims are based on, related to, or in response to Kinder Morgan’s exercise of the right to petition. CIV. PRAC. & REM. § 27.003(a), .005(b). Kinder Morgan, as the TCPA movant, was required to establish a nexus between its exercise of the right to petition and the Taxing Units’ claims. See Davis v. Gulf Coast Auth., No. 11-19-00309-CV, 2020


Per Curiam. Respondent was admitted to practice law at the First Judicial Department in 1975, and has maintained an office for such practice within this Department at all relevant times since then. In May 1994 respondent pleaded guilty, in United States District Court for the Eastern District of New York, to three counts of mail fraud (18 USC § 1341) and one count of <mask> (26 USC § 7201). Each of these counts is a Federal felony (18 USC § 3559), but there is no New York felony analog (Matter of Teplin, 82 AD2d 296, 297; see, Matter of Levine, 168 AD2d 116). Thus, disbarment is not automatic (cf., Judiciary Law § 90 [4] [b]), and a "serious crime” inquiry would normally be warranted (subd [4] [d]), unless the criminal conduct admitted to in the Federal plea allocution satisfies the elements of a New York felony.


In general, legislation will not be stricken as unconstitutional, even though it may interfere with existing contracts, if the legislation is " 'addressed to a legitimate end and the measures taken are reasonable and appropriate to that end’ ” (Matter of Department of Bldgs. [Philco Realty Corp.], 14 NY2d 291, 297; see also, Crane Neck Assn. v New York City/ Long Is. County Servs. Group, 61 NY2d 154, 167, cert denied 469 US 804; New York State Socy. of Enrolled Agents v New York State Div. of Tax Appeals, 161 AD2d 1, 9). The means used here of requiring direct payment to the Commissioner is a reasonable and appropriate measure to deal with the problem of sales <mask> in motor vehicle repairs. In any event, we find that the plaintiffs’ claim of harm in this regard is premature, as the State indicated that Regulation 64 would be amended in light of the statute, and is speculative, as it rests on the assumption that claimants will not be able to find motor vehicle vendors who will accept the vouchers.


We conclude that the plaintiffs have failed to overcome the strong presumption of constitutionality that attaches to the statute, and accordingly, grant the State’s cross motion for summary judgment and declare the statute constitutional. Although the Supreme Court questioned the wisdom of the statute and noted the potential for misuse of the refund provisions, courts are not free to invalidate a statute because they disagree with its wisdom (see, Rochester Gas & Elec. Corp. v Public Serv. Commn., supra; New York State Socy. of Enrolled Agents v New York State Div. of Tax Appeals, supra). Our review is limited to determining "if any state of facts known or to be assumed, justifies the disputed measure” (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11-12). We conclude that the Legislature’s concern regarding sales <mask> in the repair of motor vehicles justifies the statutory scheme.


As a result of FBI surveillance of petitioners’ business on 50th Street in Manhattan between September and December 1982, petitioners, Gelb and others, were indicted on a variety of Federal charges, including a scheme to evade a large portion of sales tax on the gross sales of P&G. After a jury trial, petitioners and Gelb were found guilty of, inter alia, a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (see, 18 USC § 1961 et seq.), mail fraud regarding filing of State sales tax returns and <mask>. These convictions were upheld by the Second Circuit Court of Appeals (see, United States v Ianniello, 808d 184, cert denied 483 US 1006). In its decision, the Second Circuit noted that Gelb had acted as a front for petitioners who actually, but secretly, directed and supervised the affairs of an enterprise which included the Mardi Gras as well as other bars and restaurants in Manhattan. The court further found that P&G, through its operation of the Mardi Gras, was the most profitable business of said enterprise and that from 1979 through 1982 petitioners and Gelb regularly "skimmed” its cash receipts, dividing over $2 million in unreported income equally among themselves.


In 1984 respondent was invited to become a general partner and manager of a limited partnership involved in thoroughbred breeding syndication. Respondent’s patron in this venture was Irwin Feiner, a racehorse owner, who respondent soon learned was under criminal investigation. (Feiner would later be convicted of fraud and <mask>, and sentenced to four years’ imprisonment.) In an effort to raise working capital for the partnership, respondent applied for a series of loans from the North Florida Production Credit Association. Inasmuch as respondent did not have reportable income sufficient to justify the needed credit, he submitted to the lending agency a copy of his girlfriend’s 1983 income tax return, with pertinent data fraudulently altered to make it appear that the return was his own. The Credit Association approved the application and granted respondent about $500,000 in loans.


On December 5, 2007, the People called Investigator Robert Grudzinski, an investigator with the <mask> Unit. Investigator Grudzinski testified that he went to the Village of North Syracuse Police Department on November 21, 2006 accompanied by Investigator Donald Markert.1 Prior to going to the North Syracuse Police Department, they obtained permission from the Chief of Police, Thomas Conley, to look at the computers and the network.2 Upon arriving at the police department, they were met by Thomas Johnson, a contract employee of the department, who took them to the basement of the *416department where the network is maintained.3 After downloading e-mails of the defendants to a computer disk, they went to the defendants’ individual computers to retrieve any e-mails that were not on the network.4 Investigator Grudzinski requested Mr. Johnson to turn on Captain Casey’s computer and was immediately confronted with a document with a heading entitled “discrepancies, 2001 — Marcellus Police Department.”5 Investigator Grudzinski described the document as a work sheet in grid form.6 He immediately directed Mr. Johnson to remove the document from his view, and he called Assistant District Attorney Matt Doran for direction on how to proceed.7 Doran advised Grudzinski to obtain a search warrant, and Grudzinski prepared an affidavit which was faxed to the District Attorney’s Office.8 Ultimately, a search warrant was signed by the Honorable Anthony Aloi, a judge of this court, and both Casey’s and Wilkinson’s computers were seized.9


In the case at bar, it is clear that the Department and Commission were able to establish minimum qualifications for the positions of tax investigator I, II, III and IV. It is equally clear that the Department "found that the emphasis originally placed on investigating <mask> lead to insufficiently stringent minimum qualifications”. Thus, it cannot be seriously questioned that those qualifications were capable of determination. What is apparent is that it was simply the minimum qualifications which were insufficient, rather than the ability to determine merit and fitness by the examination process. As such, the inescapable conclusion is that the qualifications need to be refined, altered or upgraded to reflect the actual qualification requirements for those persons needed to perform the function envisioned by the Commissioner. Vague references to the ability to make permanent appointments or afford greater latitude in the selection process simply do not form a rational basis for abrogating the constitutional man*326date of examination, in some form, to determine merit and fitness.


In the published portion of this opinion, we agree that the trial court imposed an unauthorized sentence because a <mask> enhancement *1237is a disqualifying factor under the Criminal Justice Realignment Act of 2011 (operative Oct. 1, 2011, as added by Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1). Accordingly, the trial court imposed an unauthorized sentence as it lacked discretion to strike the white collar enhancements under section 1385, and thus could not impose a split sentence.


The information alleged <mask> sentencing enhancements under section 186.11, subdivision (a)(2) and (3) against the Avignones. It further alleged that the Avignones were subject to mandatory state prison incarceration under section 1170, subdivisions (f) and (h)(3). At the start of the change of plea hearing, the trial court stated it had discussed its indicated sentence with counsel during "a series of unreported chambers conferences" and when they met today, the court had given "an indicated sentence ... if there were a plea to the sheet."4 The trial court informed the Avignones:


*1243Section 1170, subdivision (h) makes suffering a white collar enhancement a disqualifying factor for sentencing to county jail under that statute. ( People v. Sheehy (2014) 225 Cal.App.4th 445, 450, 169 Cal.Rptr.3d 899 [section 1170 requires that a prison sentence be imposed if a defendant, among other things, has sustained a section 186.11 aggravated <mask> enhancement]; Lynch , supra , 209 Cal.App.4th at p. 357, 146 Cal.Rptr.3d 811 [same].) Section 1170, subdivision (f) provides that the trial court's striking of the white collar enhancement was unauthorized. Read together, the plain language of section 186.11 and subdivisions (f) and (h)(3) of section 1170 provide that the trial court lacked the authority to strike the white collar enhancements and that any sentence imposed on the enhancements must be served in state prison, not local custody. Accordingly, the trial court's split sentence was unauthorized.


As to the first requirement, the statute provides that the defendant's property may be levied to satisfy restitution if the defendant is convicted of white collar felonies and "the existence of facts that would make *876the person subject to the aggravated <mask> enhancement ... have been charged in the accusatory pleading and admitted or found to be true by the trier of fact." ( Pen. Code, § 186.11, subd. (d)(1).) Here, it is clear that the white collar enhancement was alleged, but there is no evidence that Tesfai admitted it or that it was found true by any trier of fact. The County has established that Tesfai was charged with numerous crimes to which a while collar enhancement could have attached, and the enhancement was alleged; but the County offered no evidence that she admitted the enhancement or the facts supporting it.7 At trial, the County relied solely on the abstract which *909identified the four counts of which Tesfai was convicted. The County argued only, "These crimes meet the definition of 'white collar crimes' defined by Penal Code [section] 186.11." But the abstract shows only conviction of the four offenses, which do not constitute white collar crimes under the statute unless the crimes constitute a pattern of related felony conduct involving the taking of, or resulting in the loss of, more than $100,000. ( Pen. Code, § 186.11, subd. (a)(1).) The abstract shows Tesfai's sentence was not increased for the white collar enhancement, nor did the County submit any evidence suggesting that Tesfai admitted her offenses caused losses exceeding $100,000.


Also, it is alleged under the aggravated <mask> enhancement that Avignone committed two or more related felonies involving fraud or embezzlement resulting in loss to another person of more than $500,000 (§ 186.11, subd. (a)(2); count 10), and Avignone committed two or more related felonies involving fraud or embezzlement involving loss to another person of more than $100,000 but less than $500,000 (§ 186.11, subd. (a)(3); count 10). In addition, it is alleged that neither the victim or law enforcement had actual or constructive knowledge of the offense prior to the offense discovery date; thus, there was no violation of any limitation of time for the offense to be charged. (§ 803, subd. (c); counts 1, 3, 5.) It is alleged that in the commission or attempted commission of count 3, Avignone did take, damage, and destroy property with the intent to cause such taking, damage, and destruction and the loss exceeded $200,000. (§ 12022.6, subd. (a)(2); count 3.) It is further alleged that in the commission and attempted commission of some of the charged offenses, Avignone did take, damage, and destroy property, with the intent to cause such taking, damage, and destruction, and the loss exceeded $65,000. (§ 12022.6, subd. (a)(l); counts 5, 7.)


In the unpublished portions of this opinion, we conclude that (1) there was sufficient evidence of money laundering in count 25 of the operative charging document; (2) defendant forfeited an issue regarding the jury instructions for the money laundering counts; (3) the sentencing enhancements for <mask> must be reversed; (4) the trial court did not err by imposing consecutive rather than concurrent sentences on the money laundering counts; and (5) the minute order and abstract of judgment must be amended to reflect the correct amount of defendant's custody credits.


Dora sought an accounting of Rick's businesses to understand the full scope of his affairs, so she hired Karon Murff, a *425certified public accountant who specializes in <mask>. Murff pored through more than 30,000 pages of Rick's books, but despite that volume of data, Murff only received access to a limited portion of Rick's business records because Rick destroyed some of those records in advance of trial.


Respondent now operates through an independent Internet "host” source. Fifty disgruntled consumers found their way to the New York State Attorney-General, the Better Business Bureau of Metropolitan New York, Inc., the National Fraud Information Center, and the <mask> Database. The Telemarketing Fraud Database is jointly maintained by the United States Federal Trade Commission and the National Association of Attorneys General. Thereafter, the complaints were collected and the New York State Attorney-General then commenced this action.


Section 2703 procedures for obtaining customer records covered by the SCA afford two distinct layers of protection to the customer or subscriber. First, a government entity may compel disclosure of records that identify the customer and provide details about the customer's use of the provider's service by issuing an administrative subpoena authorized by a federal or state statute. (§ 2703(c)(1)(E) & (c)(2).) Second, to compel disclosure of other customer records pertaining to a subscriber or customer of an ECS or RCS (not including content of communications) the government entity must obtain one of the following: (1) a warrant from a court of competent jurisdiction; (2) a court order based upon a showing that the information is pertinent to an ongoing criminal investigation; (3) consent of the customer or subscriber; or (4) authorization pursuant to a written request to a law enforcement agency investigating <mask>. (§ 2703(c)(1)(A)-(D).)


This court adheres to the opinion heretofore expressed by it that, under the authority of Peo. v. Mansi, 129 App. Div. 386, <mask> tending to a breach of the peace may render a person liable under section 1459 of the Consolidation Act, although the acts be not specifically described in section 1458 of the same statute (Laws of 1882, chap. 410). Still in every case the judicial condemnation must be justified by proof of facts bringing the individual instance within the general description included in the statute.


With respect to the “bench warrant” it appears, through the testimony of the defendant himself, that sometime in March, 1981 he was arrested for petit larceny and arraigned in Albany Police Court; at arraignment he was automatically assigned a Public Defender, whose name he never knew, pleaded guilty to <mask>, and was sentenced to pay a fine of $100. He believes his mother paid *625the fine that very day of his guilty plea but apparently the records of Albany Police Court failed to reflect this and on April 3, 1981, Judge Keegan issued the subject bench warrant for nonpayment of the fine.


In addition, both committees in the United States Congress that studied section 232 prior to its enactment concluded that the legislation was needed because in certain instances "Indian Tribes” were not enforcing the law covering offenses committed by Indians. As noted before, Indians had residual jurisdiction over crimes under section 1153 of title 18 of the United States Code. The overriding need to correct the ineptitude of the Indian courts was further pointed out in letters that were made a part of the congressional committee report on this matter. The first letter was from the United States Attorney in Buffalo, New York. (See US Code Cong & Admin News, 1948, vol 2, pp 2285-2286.) The United States Attorney stated that while in theory "petty offenses”, such as <mask>, were within the jurisdiction of the . Indian courts, no provisions existed for punishment in those courts. He further complained that nothing was being done about these petty offenses and requested that if the United States did not wish to do anything about it, then it should allow the State of New York the privilege to do so. The second letter was from the Under Secretary of the Interior who stated: "None of the Indian groups in the State [New York] have courts which now handle crimes not subject to Federal jurisdiction * * * I am sure they [Indians] would be benefited by the imposition of State criminal laws which would not conñict with Federal jurisdiction.” (US Code Cong & Admin News, 1948, vol 2, p 2287; emphasis added.)


Plaintiff testified that in March, 1959, subsequent to the decision herein, defendant waved at her, as she was leaving her place of employment, a colored photograph which exhibited plaintiff’s face and bare bust and that shortly thereafter plaintiff found on the windshield of her car a photograph of her private parts with the picture part facing the inside of the car, on the back of which *348was a note from the defendant requesting her to meet him. Suffice it to say plaintiff did meet the defendant and subsequently caused a summons to be issued out of the Magistrate’s Court for his <mask>. Plaintiff produced no other witnesses who saw either photograph. Defendant, prior to the hearing in the Magistrate’s Court, surrendered to the plaintiff all of the photographs taken of nude portions of her body which she had voluntarily posed for during the time that their relations had been more amiable. There was no testimony by plaintiff that she became ill or was injured because of these pictures. It was further conceded by plaintiff that the car on which the photograph had been left was actually owned by John Benson and that her association with him continued subsequent to the decision rendered herein which association had been found by this court to constitute misconduct on her part.


Court proceedings are accorded a presumption of regularity (see Richardson, Evidence [10th ed], § 72; People v Rosello, 97 Misc 2d 963). In this case, the presumption is augmented by the evidence that the arraignment court had replaced the yellow file back with a blue back and that the Judge himself noted the charges against defendant as sections 265.01 and 240.20 of the Penal Law at a Bench conference. Given this evidence, the court reporter’s failure to record the addition of the charge of <mask> (Penal Law, § 240.20) is certainly not enough to render the addition improper or the proceeding irregular.


The court found defendant guilty of: (1) attempted assault in the third degree; (2) <mask> (two counts); and (3) harassment in the second degree. The court found defendant’s testimony regarding her demeanor at the scene “incredible and unbelievable.” It also found that the videotape introduced by the defense corroborated the police officers’ account because it showed “mayhem” at the scene.


Plateau next argues that the informations are legally insufficient on their face. For an information to be legally sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be alleged, and the failure to do so renders any resulting conviction jurisdictionally defective. (CPL 100.40 [1] [c]; 100.15 [3]; People v Hall, 48 NY2d 927 [1979].) For example, in Hall, a defendant’s conviction of harassment was reversed because the information upon which he was tried failed to allege an essential element of that offense, which was that the defendant acted “with intent to harass, annoy or alarm.” (48 NY2d at 928; see also e.g. People v Tarka, 75 NY2d 996 [1990] [<mask> conviction reversed because the information charging defendant failed to allege an essential element of that offense of either intent or recklessness]; People v *777Caravousanos, 2 Misc 3d 7 [2003] [conviction of Executive Law § 382 reversed and case dismissed because the accusatory instrument upon which defendant was tried did not contain nonhearsay allegations of fact that established, if true, every element of the offense charged].)


Jonathan testified that he had been arrested for <mask>, assault, and failure to pay fines during the pendency of the case. As to the assault charge, he explained that it involved a neighbor who had been harassing him but that he and Whitney had since moved and the issue had been resolved. He testified that he did not have a driver's license and that due to his disability, he is unable to understand or retain the information necessary to obtain a license. He stated that Whitney would obtain a license. He testified that his visitations with the children had gone well but that he had also noticed the bruises and the boils on them. He admitted that he had spanked the children frequently in the past but stated that he had learned to appropriately discipline the children through the parenting classes; he does not "believe" in spanking the children anymore. He agreed with Whitney that they had not attended counseling sessions because they had not received a referral from DHS.


The courts of this State and of the United States have sanctioned the right of Jehovah’s Witnesses to try.to convert those of different religious beliefs. To that end, they have invalidated ordinances prohibiting the distribution of literature (People v. Barber, 289 N. Y. 378; Lovell, v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Murdock v. Pennsylvania, 319 U. S. 105; Martin v. Struthers, 319 U. S. 141); they have permitted parading without a license (People v. Kiernan, 26 N. Y. S. 2d 291); and they have reversed convictions for <mask> even where there has been persistent, inconsiderate and offensive disrespect for the right of privacy (Cantwell v. Connecticut, 310 U. S. 296; People v. Ludovici, 13 N. Y. S. 2d 88; People v. Guthrie, 26 N. Y. S. 2d 289; People v. Reid, 180 Misc. 289).


The remaining charge is violation of section 205.30 of the Penal Law (resisting arrest). Such a violation requires that the peace officer must be prevented "from effecting an authorized arrest”. Since the evidence shows that there was no proper basis for the charges of <mask> and assault, which were the grounds upon which the complainant was arresting the defendant, there is no legal support for the charge of resisting arrest. Section 35.27 of the Penal Law, which prohibits the use of physical force to resist an arrest, whether authorized or unauthorized, does not expand the substantive scope of the section charging resisting arrest. (People v Stevenson, 31 NY2d 108; People v Barton, 30 AD2d 726; People v Lyke, 72 Misc 2d 1046; People v Ailey, 76 Misc 2d 589.)


Paragraph 15 of the affidavit of appeal alleges that after the defendants were arraigned, the court called the defendants before the bench and addressed certain remarks to them ‘ ‘ stating that they had not been convicted of a crime but of an offense and it would not affect their applying for a job or going into the service but that they were not advised that they would have to state on any application where the question was asked if they had ever been arrested, that they would have to say yes, and that if the disposition of the arrest was asked they would have to say they were convicted of <mask> and deponent understands that such a conviction might affect their going into the service or applying for a job or applying for a civil service job or going to college or military academy and they were not advised that the certificate of their convictions for disorderly conduct, which is sometimes called a criminal offense would be required to be filed in the book of convictions in the Otsego County Clerk’s Office at Cooperstown, New York; that as the defendant is advised and believes, a certificate of defendant’s conviction for disorderly conduct was filed in the Otsego County Clerk’s Office February 19, 1957, setting forth that defendant was convicted February 14, 1957, before Judge Db Angelo and fined Ten ($10.00) Dollars and given six months’ suspended sentence, Otsego County Jail and one year probation. ’ ’


¶6 Based on his testimony, Estrada requested a jury instruction that justifies a defendant’s use of physical force against another. The State objected, noting Estrada did not merely use physical force against the driver, but deadly physical force. Agreeing with the State, the trial court instructed the jury on Estrada’s use of deadly physical force as a justification defense. The jury found Estrada guilty of theft of means of transportation, aggravated assault, <mask>, possession of dangerous drugs, and four counts of child abuse, but not guilty of armed robbery.


The record shows that appellants were charged with a violation of section 722 of the Penal Law in relation to <mask> in that, among other things, on November 13, 1957, in company with others, they extinguished the lights on certain flares placed on Main Street in the city of Oneida to guard barricades where road repairs had been made, and left said flares out. The testimony shows that the offense was committed between the hours of eight and nine o’clock that night.


The respondent is correct and the petition must be dismissed. While there has always been a distinction between a “ crime ” and minor violations dealt with by Magistrates or Justices of the Peace (People v. Grogan, 260 N. Y. 138, 141-42; Matter of Cooley v. Wilder, 234 App. Div. 256) the latter are regarded as special proceedings of a criminal nature (People v. Du Pont, 28 A D 2d 1135, citing People ex rel. Burke v. Fox, 205 N. Y. 490; Steinert v. Sobey, 14 App. Div. 505). The revision of the Penal Law, particularly section 10.00 thereof, recognized the difficulty in classifying the petty or noncriminal offense or violation, such as <mask>, and gave a new noncriminal definition to the words “violation” and “offense” while retaining criminal procedures and actions for trying and sentencing offenders. It follows, therefore, that the holding in People v. Du Pont (supra) has not been altered by the change in the Penal Law, effective September 1, 1967. Interestingly, the new Criminal Procedure Law, effective September 1, 1971, does not carry over the provisions of section 552-a of the old code. In fact, the new CPL is much more stringent in that it enlarges the instances when fingerprints and photographs may be taken and provides no machinery for their return.


On July 3, 1961, at approximately 3:55 a.m. the defendants were seen entering a fenced-in area behind a large building housing Bomboy’s Garage. The arresting officers, two State Troopers, drove their car on to the property, behind the building and ascertained that the enclosed area was a swimming pool. The officers asked the defendants several times to identify themselves and they refused. The defendants were thereupon advised that they were under arrest for <mask> for *1003refusing to answer the officers’ inquiries. Thereafter the defendants engaged in some loud conversation with the arresting officers and used vile and obscene language in refusing to identify themselves and in ordering the officers to remove themselves from the property. The defendants were handcuffed together and at that time defendant Peter Bomboy, Jr., while handcuffed, struck one of the arresting officers on the nose with his fist. Defendants were then brought before this Justice and informations were filed charging them with violations of the sections hereinbefore mentioned. Defendants were not charged with the offense of disorderly conduct, although they had been advised they were under arrest for committing the same.


It is plain that the city has attempted to expand the definition of <mask> beyond the limits of the Penal Law. This it may not do. In Fields v. Taylor (274 App. Div. 810) the Appellate Division held invalid an ordinance of the City of Mount Yernon purporting to authorize stay of warrants of eviction for longer periods than provided for in the Civil Practice Act.


“ It is most salutary that our subway and elevated trains be kept free of drunks, vagrants and loafers i:= * # However, it is even more important that the rights of every individual * * * be safeguarded ”, said the court in People v. Sustek (204 Misc. 514, 515) * * * in dismissing a complaint charging the defendant with sleeping on a train. To constitute 1 ‘ <mask> ’ ’ there must be an actual or threatened breach of the peace (People v. Perry, 265 N. Y. 362, 365). “ The key phrase of the statute is ‘ breach of the peace ’ and, traditionally, that language means a violation of public order and tranquility ”. (People v. Chesnick, 302 N. Y. 58, 60.) Until such time as the Legislature makes sleeping on a train an offense, the" courts cannot make it so, desirable as it may be to keep our subway trains free of questionable characters.


It has been urged, in support of the action taken at the trial, that the dismissal of the complaint was justified under chapter 186 of the Laws of 1880. But while there was evidence in a measure tending to prove <mask> on the part of the plaintiff, it was controverted by his own testimony and that of other witnesses taken at the trial. Hpon that subject a question of fact was created by this state of the evidence which could only be legally solved by submitting the case to the jury. It was likewise in the same condition as to the charge made at the station-house against the plaintiff.


*526Defendant’s motion to dismiss the crime of resisting arrest is also denied. The information contains nonhearsay allegations establishing every element of the offense, including that the arrest was authorized and that there was probable cause to arrest the defendant for the underlying crime of obstructing governmental administration in the second degree and for the offense of <mask>. The allegations in the information that defendant grabbed a metal fence, refused to remove his hands, then flailed his hands and twisted his body adequately established the element that defendant attempted to prevent his arrest.


Finally, we acknowledge that in order to receive qualified immunity, a police officer must have at least "arguable probable cause" to make an arrest. Bernini v. City of St. Paul , 665 F.3d 997, 1003 (8th Cir. 2012). "Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is objectively reasonable." Ulrich v. Pope Cty. , 715 F.3d 1054, 1059 (8th Cir. 2013). Despite Harris's argument as to the existence of probable cause to arrest Parrish on charges of <mask>, obstructing governmental operations, and resisting arrest, we do not reach the merits of this argument. As previously discussed in Martin , supra , the question whether there was arguable probable cause for Harris to arrest Parrish for purposes of qualified immunity in this excessive-force claim and under these particular circumstances lends itself to be a legal question that "sits near the law-fact divide" and is a matter to be resolved at the trial court level.


In the instant case no action was brought by the village of Alexandria Bay to recover the penalty in a civil action, but a proceeding criminal in its nature was begun by the arrest of the defendant, appellant, under section 338 of the Village Law, for the violation of an ordinance, which violation constituted <mask>. The question now raised for the first time on appeal as to the sufficiency of the information or the warrant by reason of failure to set out the elements of the offense in more detail or the failure to charge the defendant specifically with disorderly conduct, is not before me and does not need to be decided at this time. If no appeal was properly taken, according to the statutes, that question and others cannot be now determined.


"[a] person is guilty of harassment when, with intent to harass, annoy or alarm another person * * * "2. In a public place, he uses abusive or obscene language, or makes an obscene gesture”. (Penal Law § 240.25 [2]; People v Dietze, supra, at 51.) The portion of the <mask> statute which the defendant challenges in this case states, in relevant part, that:


That portion of chapter 287 of the Laws of 1916 (Parole Board Act) pertaining to this case is as follows: “ that no person convicted in any of said cities of vagrancy, <mask> tending to a breach of the peace, public prostitution, soliciting on the streets or public places for the purpose of prostitution, or the violation of section one hundred and fifty of chapter ninety-nine of .the laws of 1909, as amended, shall be sentenced to any such workhouse for a definite term until the finger print records of the city magistrates’ courts of said city are officially searched with reference to the particular defendant and the results thereof duly certified to the court; and provided, further, that if it shall appear to the court at any stage of the proceeding prior to the imposition of sentence and after due notice and opportunity to the defendant to be heard in opposition to such accusation of prior convictions that any person convicted of any or each of these offenses last enumerated has been convicted of any or each of these offenses two or more times during the twenty-four months just previous, or three or more times previous to that conviction, thei^the court shall sentence such offender to a workhouse of the said department of correction in said city for an indeterminate period. The' term of imprisonment of any person convicted and sentenced to any *29such workhouse for an indeterminate period shall not exceed two years and shall be terminated by the parole commission in the manner prescribed in section five of this act and not otherwise.”


Section 182 of the Village Law (amd. L. 1927, ch. 650), in referring to a police justice of a village, provides, in part: “ Such police justice shall have exclusive jurisdiction to take the examination of a person charged with the commission in such village of a felony and also to hear, try, and determine charges against a person of being a vagrant or disorderly person within such village, or of having committed <mask> therein * *


The information charges the defendant with the offense of <mask> committed by willfully, wrongfully and unlawfully engaging in an illegal occupation; that illegal occupation is set forth as the sale of alcoholic beverages at a house in the city of Norwich without a license or authority to so engage. It was intended to charge an offense as described in subdivision 11 of section 722 of the Penal Law. In order to sustain the conviction, it must appear that the defendant engaged in some illegal occupation. A review of the evidence taken on the trial shows the sale to the complainant of a pint of liquor. The evidence was confined to one sale. There was no evidence given as to appellant’s occupation or the business, if any, in which he was legally engaged. The deposition of Leían Brookins, one of the police officers of the city, showed that the appellant had no license authorizing him to sell alcoholic beverages. In order to convict of disorderly conduct, because of engaging in some illegal occupation, it is necessary to show that the defendant was so engaged. The general business of selling alcoholic beverages without authority and unauthorized by law would be an illegal occupation and doubtless would constitute disorderly conduct under the section referred to. A single sale is not sufficient, however, to constitute an occupation. An occupation is not acquired by a single transaction. It involves a continuous series of transactions; acts engaged in with continuity sufficient to become a business. “ Occupation ” is defined in Bouvier’s Law Dictionary as “ a trade, business or mystery; as, the occupation of a printer.” Webster defines the meaning of the word as: “ That which occupies, or engages, the time and attention; the principal business of one’s life; vocation; employment; calling; trade.”


“In People v Munafo (50 NY2d 326 [1980]), this Court stated that ‘[<mask> is á statutory creation. Intended to include in the main various forms of misconduct which at common law would often be prosecuted as public nuisances * * * [A] common thread that ran through almost all of this legislation was a desire to deter breaches of the peace or, more specifically, of the community’s safety, health or morals * * * And, although it has always been difficult to essay any precise definition of “breach of the peace” * * *, this court has equated that term with “public inconvenience, annoyance or alarm”, the governing phrase of our current disorderly conduct statute’ (id., at 330-331 [citations omitted; emphasis added]).” The allegations in the instant case, as set out in the complaint, make no reference to a public nuisance. The sine qua non of the offense in question is an “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof’ (Penal Law § 240.20). In fact, said complaint makes no reference to the number of individuals present at the time of the arrest. No indication is given as to whether or not anyone other than the arresting officer was present. There is an allegation that the defendant “was told several times to please lower her voice, defendant refused.” Nevertheless, no other information was provided as to whether defendant’s voice caused any public disturbance, such as a third party complaining about a disturbance or loud noises. The allegations that the defendant “started to yell and make unreasonable noise” are conclusions unsupported by any evidence of their effect on individuals not involved in the situation. Again, the allegation *652that the defendant used “obscene language” is not only a conclusion, but said language is not prescribed by the subdivision in question. Nor is the court assisted by the presentation of a supporting deposition. Thus the court is left with only the face of the complaint to consider. The only way the court could hold that the People have established a prima facie case would be to speculate using unsworn documents such as the crime investigation report. The court is constrained from so doing based on Criminal Procedure Law § 100.15 (3), which states the requirement that when a misdemeanor complaint is used to charge a defendant, “The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” This complaint fails to meet that standard as same is established by prior case law, since no reference as to a public disturbance is made. In fact, one could conclude from the complaint that only the arresting officer and the defendant were present at the scene and that no one else was affected by the situation.


A turkish bath is located at 10 St. Marks Place. The police officer testified as set forth in the complaint, amplifying that the transaction was exclusively between him and the defendant, that he had never seen the defendant before, that the whole Occurrence took ‘' approximately a minute or two ’ ’, that it was *838in an ordinary conversational tone of- voice, that nobody stopped to look and listen while it was going on, that the defendant did not speak loud' or boisterously and that he was rather friendly, and that after this brief and friendly conversation which lasted a couple of minutes, no one else being present, the policeman identified himself and placed the defendant under arrest, and that the foregoing was the whole story. In dismissing the complaint the court said to the police officer: “ I am dismissing this complaint not because I doubt what you said. I believe what occurred is as you testified. I am granting the motion to dismiss this complaint because this defendant is not charged with sexual deviation, not with indecency or lewdness. He is charged with <mask> which can only occur if and when the defendant acts with intent to provoke a breach of the public peace or behaves in a manner whereby the public peace is breached or may be breached. Also, the law is that a police officer is a peace officer charged with the preservation of the public peace. This transaction was entirely between you and this defendant; as you said, a friendly conversation. Surely, this defendant did not intend to breach the public peace. He did not want to attract public attention. Had he known you were a policeman he would have had nothing to do with you. And so, notwithstanding the fact that I do not doubt you told the truth, I am required to dismiss this complaint, the law under which this prosecution occurs being what it is.”


In that case it was held that a prior prosecution for public intoxication did not bar a later prosecution for <mask>, based upon some of the same actions, for one can be drunk without being disorderly and, therefore, different facts would have to be proved at the second trial, and that although the crimes may be closely related on the facts, they are separate and distinct as a matter of law.


The petitioner contends, however, that the Criminal Court has no jurisdiction over a 16-year-old school delinquent where the charge of assault in the third degree arose out of the same facts upon which the determination of school delinquency was made. That contention is without merit. There is a substantial difference between the conduct of a school delinquent as defined in section 3214 of the Education Law and an assault in the third degree as defined in section 120.00 of the Penal Law. The District Attorney points out that a school delinquent is one who is habitually truant, habitually insubordinate, or habitually disorderly, and that ‘1 disorderly ’ ’ has a recognized meaning in the law. “ Disorderly ” means such acts as are defined to be <mask> (Penal Law, § 240.20) and harassment (Penal Law, § 240.25). Under the Education Law it also includes habitual misconduct and disruptive behavior in school as opposed to the standard of good conduct. 1 ‘ ‘ Misconduct ’ perhaps refers more particularly to demeanor within the walls of the institution or in connection with the ordinary activities of student life * * * But the implied stipulation of good conduct [is] variable in its meaning and incapable of precise definition as that term must always be * * * (Samson v. Trustees of Columbia Univ., 101 Misc. 146,150, affd. 181 App. Div. 936). ’ ’ (Matter of Carr v. St. John’s Univ., 17 A D 2d 632, 634.)


In discussing the subject of <mask>, distinction must be made between the cases involving conduct upon private property and conduct upon the public streets or in public places. Many of the authorities cited relate to conduct on private property. A person is guilty of disorderly conduct who, with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned, acts in such a manner as to *257interfere with or he offensive to others or causes a crowd to collect except where lawfully addressing the same. A breach of the peace is an offense well known to the common law. It is a disturbance of the public order by an act of violence or an act likely to produce violence or which, by causing consternation and alarm, disturbs the peace and quiet of the community. (People v. Most, 171 N. Y. 423.) But, where such an offense is charged, much must depend upon the time, place and circumstances of the act. Thus, where the disturbance took place in a restaurant without actual annoyance, disturbance or interference with anyone, it cannot be said to constitute disorderly conduct in violation of the Penal Law. (People v. Perry, 265 N. Y. 362.) The same is true of a quarrel between husband and wife in their own apartment with no other persons present (People v. McCauliff, 267 N. Y. 581) and, also, of a conversation over the telephone, the possibility of a breach of the peace being occasioned thereby being too remote. (People v. Monnier, 280 N. Y. 77.) The same rule would apply to the unreported authorities cited by the defendants. (People v. Ludovici, 13 N. Y. S. 2d 88; People v. Guthrie, 26 N. Y. S. 2d 289.) In the Ludovici case, the defendant, like the defendants in the instant case, was a member of Jehovah’s Witnesses. She called at private residences to interest the occupants in her religious belief and on their private property attempted to engage in conversation those who answered the door and to leave printed matter with them. Although the occupants informed her that they were not interested and requested her to leave, she lingered. She spoke, however, only in an ordinary tone of voice and it could not be said that there was an noise, alarm, consternation or disorder to the disturbance of the public and, consequently, nothing tending to a breach of the peace. So, too, in the Guthrie case, the action took place entirely within a private home and the enclosed porch thereof. Following the decisions of the Court of Appeals in the Perry and Mormier cases (supra), the court held that the actions of the defendant within a private home, in the presence of the occupant thereof, only, did not constitute disorderly conduct.


Therefore, by reason of imputation from the police officers’ and the District Attorney’s own affirmative conduct in regard to the yellow sheet, I conclude there was a suppression of the facts of the 1966 <mask> conviction and the psychiatric history of Febles which would have become evident. To label such suppression intentional or negligent is unnecessary. It is enough that the prosecution was the active and effective cause of the nondisclosure of the evidence. If the prosecutor did not erect a barrier to the evidence it certainly enshrouded the information in fog. If such not be a willful suppression, the result was a de facto suppression.


Police Officer Joseph J. Bonaimo says that on March 8, 1982 he assisted in the arrest of Raymond Brookshire after a search of his rented car. The search was allegedly based on probable cause. Drug paraphernalia “commingled” with United States currency amounting to $8,605 was found on the floor behind the driver’s seat. Several suitcases of marihuana were found in the trunk of the car. Bonaimo states that Brookshire confessed that he was a “runner” from Florida who brought marihuana to the New York City area for sale and returned to Florida with the proceeds of the sales. Brookshire was arrested on felony and misdemeanor charges but was permitted to plead guilty to <mask>, a violation, and was sentenced to a conditional discharge.


Mr. Presiding Justice Postee of the Appellate Division, Third Department (now an Associate Judge of the Court of Appeals) said in Matter of Erway v. MacAffer (282 App. Div. 287, 290) : ‘1 This we conclude was clear legislative recognition of a distinction between crimes and offenses.” In that case a unanimous court annulled the certificate of a Supreme Court Justice permitting the removal under section 57 of the code of a <mask> case under section 722 of the Penal Law from a Police Justice’s Court for prosecution .by indictment.


Even if the written information contained allegations that the defendants were noisy and boisterous in a public restaurant, this court seriously doubts that such acts standing alone would be sufficient to constitute <mask>. The defendants are all college students. It often happens that young people, while congregated in a restaurant, laugh and speak in a loud and boisterous manner. Unless they persisted in such conduct after they had been admonished by the proprietor or someone in charge of the restaurant, it would seem unreasonable to brand mere conviviality as disorderly conduct. It is entirely possible that the conduct of these defendants on this particular occasion, resulting in their arrest, was more aggravated than the record indicates. However, if this were so, the defendants have not been confronted with the specific accusation. The information to which they pleaded guilty was defective and insufficient and, consequently, the conviction must be reversed and the information dismissed as to each defendant. An order may be submitted accordingly.


*763The learned magistrate’s vigorous dissent necessitates a further reference, not to what was, but to what was not, decided by me. It was not held that the Eighteenth Amendment of the United States Constitution or the National Prohibition Act prohibits the drinking of intoxicants. The dissenting magistrate correctly states that “Any person who is in legal possession of liquor may offer a drink to his guests with impunity and what he may offer they may consume.” But the possession is illegal which comes from unlawful transportation. It was not decided that the Eighteenth Amendment and the Volstead Act are enforcible in the courts of the State of New York. New York has no enforcement act. Because the Eighteenth Amendment and the Volstead Act cannot be enforced, according to their tenor in a State court, it does not follow that they may be flouted with impunity. When the violation is public, offensive and annoying, section 722 of the Penal Law of the State of New York is adequate to punish the offenders. In the absence of such a general statute so defining “ <mask>,” the offensive act may not be punishable in a State court.


Defendant was initially charged with grand larceny based on allegations that she used her mother’s debit card, without consent, to withdraw $1,000 from her mother’s account. On May 21, 2012, defendant entered a plea of guilty to the charge of petit larceny in full satisfaction of the accusatory instrument. Pursuant to the terms of the plea agreement, if defendant was not arrested during the next year, paid restitution and complied with an order of protection, she would be allowed to replead to <mask> and receive a sentence of time served. The plea allocution thoroughly advised defendant of the rights she was waiving by pleading guilty (see Boykin v Alabama, 395 US 238 [1969]).


Regarding the claim that the officers had probable cause to arrest Wood for “yelling” and “screaming” at Blair, the defendants provide no further argument or any case citations as to how that constituted <mask>. Forfeiture aside, see United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006), the claim is meritless. Even assuming, as the defendants argue, that the “level of noise [Wood] was making could itself violate Section (A)(2),” under the statute’s clear language, “a disorderly conduct charge against h[im] can stand only if []he ‘recklessly caused inconvenience, annoyance, or alarm’ by ‘unreasonably’ making the noise.” Goodwin, 781 F.3d at 333–34 (quoting Ohio Rev. Code Ann. § 2917.11(A)(2)).


The relator was arrested by a police officer and charged with the offense of <mask> in violation of subdivision 2 of section 722 of the Penal Law. Said section provides: “ Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: * # * 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct or be offensive to others ”.


This case would certainly bolster the authority of a decision like People v. Bellows (281 N. Y. 67 [1939]), in which our Court of Appeals sustained a conviction for <mask> arising out of picketing in a secondary boycott situation. But People v. Bellows was decided before the Supreme Court had laid down the proposition that picketing was an expression of labor’s right to freedom of speech. Two years later, in the case of People v. Muller (286 N. Y. 281 [1941]), the Court of Appeals reversed a conviction for disorderly conduct in a similar situation by a split decision of four to three. One may doubt whether this case would have been decided the same way if it had come after the decision of Carpenter’s Union v. Ritter’s Cafe (supra). Nevertheless, the majority of the Court of Appeals in People v. Muller (supra), made a far more logical application of the principles of the Thornhill and Carlson cases than did the Supreme Court in the Ritter case.2


Does the act of the defendant in writing the word “ Yes ” in answer to the question 7 (in compliance with the printed requirement beneath the space set out therefor that it should be answered “ Yes ” or “ Ho ”) and thus indicating that he stated orally that being a subject of Austria he was willing and desir *109ous of returning to that country and entering its military service and fighting against the United States, constitute <mask> under the State statutes defining that charge %


It is further the observation of this corut, although it is not a fact in this instance, where women have been convicted of <mask> of this and similar character and subsequently physically examined, that at least approximately ninety per cent of them are infected with one or more types of virulent and highly infectious venereal diseases. The court has also observed in its experience that some of these women, knowing themselves to be thus infected, and with utter indifference and criminal disregard of the hygienic security of the men they contact, approach and seek to entice these men into sexual relationship with them.


Beyond Greene and Kennedy, we had already made clear by 2016 that profanity alone is insufficient to constitute fighting words under Ohio’s <mask> statute. See D.D., 645 F. App’x at 425, 427 (denying qualified immunity to officer on false arrest claim because “Ohio’s disorderly conduct statute and the First Amendment require more than the uttering, or even shouting, of distasteful words,” and “no competent officer would have found probable cause to arrest [the plaintiff]”); Leonard, 477 F.3d at 359 (“The Supreme Court has held that a state may not make a ‘single four-letter expletive a criminal offense.’” (quoting Cohen, 403 U.S. at 26)); McCurdy v. Montgomery Cnty., 240 F.3d 512, 515, 520 (6th Cir. 2001) (finding that plaintiff’s “right to challenge verbally” officer’s conduct, including stating “what the fu*k do you want” and “what the fu*k is your job,” was “well-established”); Sandul, 119 F.3d at 1256 No. 20-3599 Wood v. Eubanks, et al. Page 16


The statute provides that the Criminal and Family Courts shall have concurrent jurisdiction over acts which *51constitute “<mask>, harassment, menacing, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses” (Family Ct Act, § 812). In this indictment, which charges criminal possession of a weapon in the third degree, we do not have one of the charges specifically enumerated in the statute, but there is a claim that the charge occurred in conjunction with a charge of menacing which was the subject matter of an action in the District Court. Inasmuch as the language of the present statute is substantially similar to the prior section of the Family Court Act, we can look to the cases under that earlier provision for some guidance.


If this court were to attempt to try a sovereign of Europe upon an allegation of <mask> the proceedings would *225be defective on the ground that we had no jurisdiction of the person involved. If, however, a person is subject to the authority of the court and due notice has been given him, and there has been a contact between the court and the person charged, so that the person charged has had an opportunity to defend his rights, then the jurisdiction of the person has been accomplished. Here in this particular case, the defendant has appeared in court and taken part in the proceedings, he appeared here and plead not guilty. The Criminal Courts Act says that there are certain cases which the magistrate may send to the Court of Special Sessions for determination. These papers have been filed with the clerk of the court, they have duly come into his hands from the district attorney’s office. The district attorney follows that custom. Looking at that record, we find the commission of an offense by this defendant, of which offense this court has jurisdiction. There is absent the formal opening and that the district attorney makes the charge, and there is absent the signature of the district attorney, but all the essential elements of the charge of the offense is there in the papers. That paper has been read to the defendant at his pleading. It has been recognized throughout the litigation in this court, and to all intents and purposes, it has served as the necessary pleading on the part of the people. I think the spirit of modern times in the improvement of procedure in court, usually is to disregard technicalities, so as to prevent the waste of time and the consideration of mere formalities. I am of the opinion that judgment can be pronounced.


The officer that made the arrest is the only witness for the People. He says that at the time and on the day mentioned he was regulating traffic, when a car pulled up at the side of the street. The appellant was seated with the chauffeur of the car, and the officer, addressing the chauffeur, said, “ Parking limit is one hour.” That the appellant who had alighted from the car said to the officer, “ Hey, we just came from Headquarters.” The officer Said, “ I am not talking to you in the first place, and if you don’t keep quiet why I will lock you up.” Then the officer said to the chauffeur, “ I think that Auburn was on the other side of the street this morning. Now the parking regulation is one hour.” The officer then states that the appellant kept on hollering. On being asked what the appellant said, the officer stated that he said, “ We did not park there this morning.” The officer then said to the appellant, “All right if you want to keep on talking and hollering like that I will lock you up for <mask>.”- The officer then took *603the appellant to the station house, and the lieutenant ordered the officer to give him a summons for disorderly conduct. The officer also testified that this altercation had ca ’.sed a crowd to collect.


The information on which the warrant of arrest was issued states that the defendant “ did commit the crime of <mask> in Viol Sect 722 Penal Sub-Divs. 1 & 2 against the person or property of Gertrude E. Huyck by wrongfully, unlawfully, willfully, corruptly, and knowingly did use offensive, disorderly and abusive or insulting Language conduct or behavior and did annoy disturb others, he did call me a liar and a Hell Hore did grab me by the arm and try to pull me Back & down stairs and Mrs. Beardslee’ came to my assistance.” While it is charged in the information that defendant committed the crime, in that he violated subdivisions 1 and 2 of section 722 of the Penal Code, there is no statement of any fact showing that he acted in such a manner “ as to annoy, disturb, interfere with, obstruct or be offensive to others;” the statement that he “ did annoy or disturb ” others is a conclusion rather than an “ allegation made to a magistrate that a person has been guilty of a designated crime.” (Code Crim. Proc. § 145.) Neither is the statement in the information that attempts to designate a crime under subdivision 1 of said section sufficient to charge the defendant with disorderly conduct. In People v. Wacke (77 Misc. 196), in discussing the sufficiency of an information under section 145 of the Code of Criminal Procedure (at p. 197), it is said: “ It performs the same function as an indictment in a court of record, and must set forth facts to establish the crime; not with the exactness of an indictment, but with sufficient preciseness to inform the magistrate that a designated crime has been committed. If it charges the crime in the words of the statute, it should allege the time, place, person and other circumstances that constitute such crime. *. * * All the material facts constituting the offense must be stated. No essential element of the crime can be omitted.] *469The principal facts must be charged.” There is no statement that the alleged acts complained of were done with the intent to provoke a breach of the peace or that a breach of the peace might have been occasioned thereby. There is no allegation to show that the acts alleged to have been committed took place in a public place and, so far as appears from the information, whatever was said or done by the defendant may have been within his own home. (People v. Oczko, 272 N. Y. 604.)


The defendant has been living in the Rochester area for 22 years. In cross-examination the defendant admitted that he had been convicted of <mask> in 1961, but explained that it arose out of an occurrence when he tried to stop a fight between two other men and was arrested, together with one of the men involved, after he had taken him into his car to take him home. Cross-examination also brought out evidence of a prior arrest in 1957 on charges which were dismissed before trial.


Section 9. *' 3' * A risk shall not be entitled to insurance nor shall any subscriber be required to afford or continue insurance under the following circumstances: (A) If the applicant or anyone who usually drives the automobile is engaged in an illegal enterprise, or has been convicted of any felony or high misdemeanor during the immediately preceding thirty-six months or habitually disregards local or state laws as evidenced by two or more non-motor vehicle convictions during the immediately preceding thirty-six months. * * * See. 14. 'Garners Notice to Applicant. * * * (a) Issue a policy or a binder if all information necessary for the carrier to fix the proper rate is contained in the application form, such policy or binder to become effective 12:01 A.M. on the day following the second working day, or * * *. See. 18. Cancellations. (A) Cancellation at Request of Insured. If for any reason the insured requests cancellation, the carrier shall retain the short rate earned premium for the period covering or the sum of $10.00 per car, whichever is greater, and return the balance to the insured. *835(B) Cancellation by Company. A carrier which has issued a policy or binder under this Plan, shall have the right to cancel the insurance by giving notice as required in the policy or binder if the insured (1) is not or ceases to be eligible or in good faith entitled to insurance, or ' (2) has failed to comply with reasonable safety requirements, or (3) 'has violated any of the terms or conditions upon the basis of which the insurance was issued, or (4) has obtained the insurance through fraud or misrepresentation, or (5) has failed to pay any premium due under the policy. Each such cancellation shall be on a pro rata basis, subject to the minimum charge of $10.00 per car, and a copy of each such cancellation notice shall be furnished to the producer of record. A statement of facts in support of each such cancellation shall be furnished to the Manager and, except in the ease of cancellation for nonpayment of premium, to the Superintendent of Insurance of the State, ten days prior to the effective date of cancellation. Cancellation shall be effective on the date specified and coverage shall cease on such date. Section 19. Right of Appeal. An applicant denied insurance or an insured given notice of cancellation of insurance under the Plan, may appeal such action to the Committee. Each notice of cancellation or denial of insurance shall contain dr be accompanied by a statement that the insured or applicant has a right of appeal to the Governing Committee of the Plan. A subscriber to the Plan shall also have the right of appeal to the Committee. The action of the Committee may be appealed to the Superintendent of Insurance of the State. The Manager shall promptly notify the company, the insured or applicant, and the producer of record, of the disposition of the appeal, which notification in the case of refusal to sustain a cancellation shall include notice that upon payment of the deposit premium to the insurer a policy or binder will be issued. An appeal shall not operate as a stay of cancellation, provided, however, that if either the Committee or the Superintendent of Insurance refuses to sustain the cancellation, the carrier which issued the policy or binder shall, within two working days after receipt of the deposit premium, provided such deposit premium is received within 30 days after determination of the appeal, issue a new policy or binder effective for a period of one year from the date of issuance of such new policy or binder. The balance of the premium shall be payable as provided in Section 14. Had .¿Etna Co. known of O’Connor’s police record it could, under the terms of the Plan, have refused the application. It could also have cancelled the policy at any time for the same reason, i.e., “ during the period of thirty-six months prior to the application convicted on four occasions of <mask> and drunkenness ”.


The section of the Penal Law applicable here is as follows: ” § 722. <mask>. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others. ’ ’


As to the nature of the evidence, were the facts of the sexual basis of the <mask> conviction the only issue here, I might be inclined to agree that such evidence would be merely cumulative of the trial attempt to impeach the witness and not sufficiently material under Brady or the criteria of People v. Salemi (309 N. Y. 208, supra). This would be so even if it advanced a new theory challenging credibility (People v. Mark-*288man, 15 N. Y. S. 2d 746, 751; but, cf., Davis v. Alaska, 415 U. S. 308). But the quintessential evidence here is the long-standing and on-going mental condition of a major eyewitness, in conjunction with an apparent sexual aberration. This mental condition raises the question of the accurateness, perception, truthfullness and susceptibility to suggestion of Febles as a witness. His capacity to be a witness may even be in question. As our Court of Appeal's recognized in People v. Rensing (14 N Y 2d 210, 213) .evidence of mental illness is a special type of evidence in that it is a fact a jury would be entitled to know to “ assess and evaluate the • testimony given by him and not accept it * * * as the statement of a ‘ normal ’ individual ”. This is especially so where a witness acts normally throughout the trial, and his demeanor in the courtroom and on the witness stand furnishes no basis for inferring that there is “ ‘ something mentally wrong ’ ” with him (p. 214). There was no indication at the trial here that Febles had any psychiatric disorders. His conduct was not extraordinary. During summations, the District Attorney held him out as an ordinary witness. Febles himself hid his mental history. It is well recognized that mistaken identification “ ‘ probably accounts for more miscarriages of justice than any other single factor ’ ” (United States v. Wade, 388 U. S. 218, 229). Of the three eyewitnesses, Febles’ description of the defendant most accurately fit his actual attributes. His testimony remained relatively unimpeached.


*526Defendant’s motion to dismiss the crime of resisting arrest is also denied. The information contains nonhearsay allegations establishing every element of the offense, including that the arrest was authorized and that there was probable cause to arrest the defendant for the underlying crime of obstructing governmental administration in the second degree and for the offense of <mask>. The allegations in the information that defendant grabbed a metal fence, refused to remove his hands, then flailed his hands and twisted his body adequately established the element that defendant attempted to prevent his arrest.


A person is guilty of <mask> under Penal Law § 240.20 (5) “when, with intent to cause public inconvenience, *14annoyance or alarm, or recklessly creating a risk thereof . . . [sh]e obstructs vehicular or pedestrian traffic.” Notwithstanding the majority’s focus on mens rea being conceded, nonetheless, the other necessary elements were not proved. At most, the People proved a mere “temporary inconvenience” caused to pedestrians, which is insufficient. While the Penal Law does not define “obstructs vehicular or pedestrian traffic,” the Court of Appeals has made clear that “[s]omething more than a mere inconvenience of pedestrians is required to support the charge” (People v Jones, 9 NY3d 259, 262 [2007] [emphasis added]; People v Pearl, 66 Misc 2d 502 [App Term, 1st Dept 1971] [something more than the temporary inconvenience caused to pedestrians by the demonstrators’ blocking of the crosswalk, resulting in pedestrians entering the roadway to get to the other side, was required to sustain a conviction for obstructing pedestrian traffic]; see also People v Nixon, 248 NY 182, 187-188 [1928], revd on other grounds People v Santos, 86 NY2d 869 [1995]).


“ In the past, wives and other members of the family who suffered from <mask> or assaults by other members of the family or household were compelled to bring a 1 criminal charge ’ to invoke the jurisdiction of a court. Their purpose, with few exceptions, was not to secure a criminal conviction and punishment, but practical help. “ The family court is better equipped to render such help, and the purpose of this article is to create a civil proceeding for dealing with such instances of disorderly conduct and assaults. It authorizes the family court to enter orders of protection and support and contemplates conciliation procedures. If the family court concludes that these processes are inappropriate in a particular case, it is authorized to transfer the proceeding to an appropriate criminal court.” (Emphasis supplied.) The stated purpose is to provide a civil proceeding and to extend help in dealing with family altercations which properly are correctable by orders of protection or conciliation proceedings and which do not lend themselves to criminal court treatment (see, also, Joint Legis. Committee Report on Court Reorganization [1962], Family Ct. Act, p. 2). In light of such expressed legislative intent and our previous discussion, we do not find the directive ‘' shall be transferred ’ ’ as mandatory but rather permissive (Family Ct. Act, § 813) in the case of felonious assaults.


In the course of its routine investigation relating to the desirability of the petitioner as a tenant the respondent discovered, among other things, that petitioner’s husband, during the past eight years, has been arrested seven times. On four of these occasions he has been adjudicated a youthful offender or a juvenile delinquent. On at least two occasions he has been incarcerated. In addition to the four juvenile and youthful offender offenses, he was, in 1964, arrested for <mask>, found guilty and sentenced to 10 days in the Workhouse. In July of 1965 he was arrested for possession of drugs, which charge was ultimately dismissed. The record further reveals that the first juvenile delinquency adjudication was as a result of an altercation with one of the respondent’s public housing guards.


I think that upon the entire record it can be found that there was sufficient evidence for the Trial Justice to make such a determination. It is true that the <mask> statute is unfortunately often abused. There is no quarrel here with the opinion of the City Court of New York Magistrate in People v. Tinston (6 Mise 2d 485) denouncing such abuse. On the other hand, we have in the instant ease a situation in which a police officer has obtained a tow truck to clear the intersection at the scene of an accident. There is evidence that he performed this act with the consent of the owner of the automobile. It appears that a growing number of people were present in the heart of a residential section, having been attracted by the action of the *979defendant in arguing with the policeman in a loud voice. There is also evidence that traffic was being interfered with at the intersection by the events that were transpiring. Under these circumstances, it seems clear to me that the officer was within his rights and in the proper exercise of his duties to admonish the defendant to stop interfering with the- procedure that was taking' place. Instead of acquiescing, however, the defendant apparently continued the argument until, in order to clear the intersection, the policeman and a fellow officer, who patrolled the area in a prowl car, felt compelled to arrest the defendant and to restrain him with the use of handcuffs. As a matter of fact, although just how it happened is not clear, it appears that one of the police officers received an injury to a finger in the course of the altercation which required hospital treatment.


In People v. Goldfarb (152 App. Div. 870, affd. 213 N. Y. 664) a defendant had been charged with <mask>. On the trial of the charge and before all the evidence was in, the court directed that a new complaint be made and the. defendant discharged. The appellate court said that what occurred was in effect an acquittal and ruled that defendant could not be subsequently tried.


In discussing the police command to disperse and its validity in light of the constitutional issues, the court undertook a painstaking review of the case law in this area, including most of the holdings referred to in the instant opinion. The court specifically and very carefully distinguished the Supreme Court decisions in Edwards and Cox, precisely on the same grounds explained earlier in this opinion. The heart of the opinion follows (p. 625): “ Contrary to appellants’ assertion, subdivision 3 [of the <mask> statute] would not, by its terms, ‘ prohibit all street meetings ’. It requires both that defendant 1 congregates with others ’ and ‘ refuses to *996move on when ordered by the police There must be a showing of an actual or potential breach of the peace together with a congregating and refusal to obey the police order. Although those congregating may do so in an orderly and inoffensive way, in the absence of a showing that the police direction ‘ was purely arbitrary and was not calculated in any way to promote the public order ’, the refusal to obey violates the statute


In Property Clerk, N. Y. City Police Dept. v Corbett (116 *131Misc 2d 1097, 1100 [Sup Ct, NY County 1982]), cited with approval by the Appellate Division in Hurlston (supra), it was held that a plea to <mask> does not necessarily bar a forfeiture, the court observing that "neither a decision to abandon criminal charges, nor even a judgment of acquittal, necessarily represents a finding (much less a finding conclusive in a later civil proceeding) that no crime was committed”. Justice Edith Miller, in Property Clerk, N. Y. City Police Dept. v Conca (NYLJ, Oct. 26, 1987, at 16, col 1), came to a conclusion contrary to that reached in Corbett, differentiating the Appellate Division decisions on the ground that they involved procedural dismissals rather than determinations on the merits. However, this court agrees with the rationale in Corbett as in forfeiture proceedings we are dealing with the civil preponderance of the evidence burden of proof concept, and there is nothing in the statute that makes the decision not to criminally prosecute serve as a bar to the subsequent civil action. (See also, Property Clerk, N. Y. City Police Dept. v Covell, 139 Misc 2d 707 [Sup Ct, NY County].)


Hyman T. Maas, J. The defendants-respondents were charged by an information dated November 29, 1980, with <mask> in violation of subdivisions 1, 2 and 5 of section 240.20 of the Penal Law. Defendants-respondents moved in Rochester City Court before Judge William H. Bristol, to dismiss the apeusatory instruments on the grounds that the information was defective and that subdivisions 1, 2 and 5 of section 240.20 of the Penal Law were unconstitutional for vagueness. This appeal is confined to only that portion of the trial court’s order dismissing the charge under subdivision 2 of section 240.20 of the Penal Law as unconstitutional.


The defendant contends that subdivision 3 of section 240.20 of the Penal Law is overbroad and facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution and cites three United States Supreme Court cases in support of his claim. A review of these decisions does not substantiate the assertion that the violation charged herein is necessarily unconstitutional. In two of the cases (Lewis v City of New Orleans, 415 US 130; Hess v Indiana, 414 US 105) it was indicated by the Supreme Court that the statutes under review had been applied to punish only "spoken words”, and as a result any enforcement thereunder would certainly affect speech protected by the Constitution. Also the laws being interpreted by the said court in the two cases were somewhat different from the New York <mask> statute which latter statute by its language *267is directed against utterances which would or could inflict possible public alarm or tend to incite an immediate breach of the peace, and is not limited to speech alone. In the other cited case (Gooding v Wilson, 405 US 518) the Supreme Court said that since the State of Georgia by its rulings had not limited the application of its statute to "fighting words” likely to create or excite a breach of the peace, the law had to be stricken. The constitutionality of subdivision 3 of section 240.20 of the Penal Law had been indicated by the New York State Court of Appeals in People v Todaro (26 NY2d 325) and though this decision antedated the United States Supreme Court cases referred to by the defendant, the constitutionality of the charged statute has not been affected by these subsequent rulings since the New York law has been applied consistently to instances involving the use of language which provokes or produces, or recklessly creates the risk of, an "immediate breach of the peace”.