The basis of the contention that the <mask> hearing should not be held first is that such a hearing is governed by no formal procedure and need only conform with the common understanding of due process (see People v. Oskroba, 305 N. Y. *17113, 117) and that petitioner therefore runs the risk that unless he testifies at the section 935 (Code Grim. Pro.) hearing, his probation will be revoked. This, it is claimed, violates petitioner’s constitutional right against self incrimination with respect to the criminal charges which may be later separately tried. In United States ex rel. MacLaren v. Denno (173 F. Sup. 237, affd. 272 F. 2d 191, cert, denied 363 U. S. 814) the court held at page 241: ‘ ‘ The facts that the probationer must make his defense to the probation violation prior to a possible criminal trial encompassing the same transactions as the violation does not violate the probationer’s constitution [sic] rights.” The court agrees with that conclusion. Petitioner may stand on his constitutional right against self incrimination in the probation proceeding as he could in the criminal proceeding or in any civil proceeding involving the same facts. What he really complains of then is not that he is being denied his privilege against self incrimination, but that he is being denied due process because the probation granted to him on his first conviction may be withdrawn if he exercises the privilege. There is no denial of due process in such circumstances (see Cohen v. Hurley, 366 U. S. 117).


In misdemeanor cases, a trial court may generally grant unsupervised or "summary" probation. (§ 1203b; People v. Caron (1981) 115 Cal.App.3d 236, 246, 171 Cal.Rptr. 203.) However, a court may revoke, modify, or terminate probation at any time before the term expires, after conducting a <mask> hearing. (§§ 1203.1-1203.3.) Indeed, if the imposition of sentence has been suspended, and a trial court revokes probation, the court may take the defendant into custody and impose a sentence up *1190to the maximum punishment allowed for the underlying charge. (§ 1203.1.) Thus, at probation violation hearings, courts routinely take into account the defendant's actions, including what has occurred during the entirety of the underlying "case," in order to decide whether to revoke, modify, or terminate probation.


A summary of the evidence and testimony before the court is necessary to understand and address the issues Sills raises on appeal. Sills was the first witness called by DHS. He testified that he had been incarcerated on the day B.S. was born and was not responsible for the child's removal. He *253continued to be incarcerated in the Arkansas Department of Correction on a <mask> (failure to pay fines), he had been incarcerated for 17 months, but he was set to be released soon. He testified that his expected release date was August 1 but that he fully anticipated to be released mid-June. He stated that he is on parole until January 2021. He testified that once he is released from custody, he intends to live with his mother and work at Anchor Packaging.


Several months after Oliver's conviction in 18CR2402, the State moved to revoke Oliver's probation based on new crimes he was alleged to have committed in violation of the terms of his probation. Oliver admitted the <mask> at the hearing on the State's motion. With respect to Oliver's new crimes, he entered into a plea agreement with the State that resulted in him pleading guilty to one reduced charge and the rest were dismissed. The sentence imposed for that new conviction is the subject of Oliver's current appeal.


On May 7, 2015, Caretto appeared for a <mask> hearing. The trial court appointed a public defender and suggested that a motion to reduce the charges under Proposition 47 might be appropriate. The next day Caretto filed a one-page motion asking that the two charges for which he was convicted be reduced to misdemeanors under Proposition 47. While he alleged the value of the stolen property was less than $950, he did not identify the stolen property or attach a declaration or other evidence showing the value of the stolen property did not exceed $950.


On December 3, 1977, he was arrested and subsequently indicted for the crimes of attempted sodomy, sexual abuse, burglary and attempted robbery. He was tried and acquitted. He was then charged with the instant probation violations which concededly arose out of incidents leading to the December 3, 1977 arrest and indictment for which he was acquitted. However, while the acquittal may be persuasive, it is not determinative of the issues in this case. For the defendant is not charged with the same crime or any crime, but with a <mask>. Moreover, the standard of proof required for a finding of such violation is preponderance of the credible evidence not guilt beyond a reasonable doubt (CPL 410.70).


A <mask> information, sworn to by a probation officer with the Essex County Probation Department and dated June 4, 2014, was filed with the Town of Elizabethtown Justice Court. The sole violation alleged was that the defendant then owed $490 in restitution, the defendant having only paid $635 when he should have paid $1,125 (15 months at $75 per month). On June 12, 2014, the defendant admitted to the violation of probation, and the case was adjourned until December 11, 2014. When the defendant failed to appear at the December date, a warrant for his arrest was issued, and the town justice signed a judgment in the amount of $519.59 against the defendant, that being the amount then owed toward his restitution obligation. The defendant was arrested on December 31, 2014 and upon being brought before the local court he was remanded without bail to the county jail.


Pursuant to People v Tyrrell (101 AD2d 946): "A hearing on a <mask> is a summary, informal procedure which *346does not require strict adherence to the rules of evidence; statutory and due process requirements are met so long as defendant is given formal notice of the charges and an opportunity to be heard and to confront the witnesses against him through cross-examination” (CPL 410.70 [3]; People v Oskroba, 305 NY 113, 117; People v Compton, 42 AD2d 201; cf. People v Crandall, 51 AD2d 841).


The salient facts of this case are relatively simple. Howard Blake is charged under a governor’s warrant with being the South Carolina fugitive, Larry Barnett, who allegedly escaped from the Anderson South Carolina Stockade in 1976. Barnett was serving a sentence of seven years for passing several bad checks and a <mask> from a prior grand larceny. Howard Blake has lived continuously at the same address in Suffolk County, New York, since 1983. He was married in 1987, helping to raise his wife’s three children from a prior marriage. He and his wife also had two children of their own in 1988 and 1992.


“The government may not use or solicit false evidence or allow it to go uncorrected.” United States v. Funchess, 422 F.3d 698, 701 (8th Cir. 2005). To prove a due process violation on the grounds that the government presented false testimony at his trial, Gross must show that: “(1) the prosecution used perjured testimony; (2) the prosecution should have known or actually knew of the <mask>; and (3) there was a reasonable likelihood that the perjured testimony could have affected the jury’s verdict.” United States v. Bass, 478 F.3d 948, 951 (8th Cir. 2007) (quoting Funchess, 422 F.3d at 701).


This rule, however, requires that the materiality must appear on the face of the indictment, even though it is alleged that the testimony stated to constitute -<mask> is material. In People v. Peck, 146 App. Div. 266, the court said (p. 268): “ Willfully and knowingly testifying to an immaterial fact is not perjury. (People v. Teal, 196 N. Y. 372.) The indictment does not in words charge that any or all of the statements therein alleged to have been made by defendant were material or were of and concerning a matter material in the proceeding then being conducted by the examiner. It is not necessary that the indictment so charge, provided the facts, which are set forth therein, are sufficient in themselves to show that the sworn statements alleged to be false were material. But the materiality must be shown in the indictment itself either by direct statement or by the facts stated therein. (Wood v. People, 59 N. Y. 117, 121; People v. Gillette, 126 App. Div. 665, 672; Commonwealth v. Pollard, 53 Mass. 225, 229.)”


Drouet made clear that evidence controverting the landlord's stated intent was highly relevant. In rejecting the tenants' concern that "the retaliatory eviction defense is 'the only method available to protect one's home from an alleged phony Ellis [Act] eviction,' " the Drouet majority disagreed. ( Drouet, supra , 31 Cal.4th at p. 597, 3 Cal.Rptr.3d 205, 73 P.3d 1185.) It explained, "[A] tenant who believes the landlord's invocation of the Ellis Act ... is phony and that the landlord actually intends to offer the vacated units to new tenants may controvert the landlord's statement of intent . The landlord will then have the burden to establish his or her bona fide intent to withdraw the property from the market by a preponderance of the evidence. It is that requirement, and not the retaliatory eviction defense itself, that will prevent or deter phony evictions." ( Drouet , at p. 597, 3 Cal.Rptr.3d 205, 73 P.3d 1185, italics added & omitted.) The tenants' fear, "that a landlord may invoke the Act but secretly intend to re-rent the units once the existing tenants have been displaced ... presupposes that although the tenant controverted the landlord's intent, the landlord committed <mask> at the hearing, the tenant was unable to uncover the perjury by cross-examination or by other evidence , and the fact finder was unable to detect the perjury. The likelihood of an erroneous outcome is further diminished by the landlord's awareness that an Ellis Act eviction followed closely in time by a re-renting of the premises to new tenants would be persuasive evidence of the landlord's bad faith in any future Ellis Act proceeding . ( Civ. Code, [former] § 1942.5, subd. (e) ; Evid. Code, § 1101, subd. (b).)" ( Drouet , at p. 598, 3 Cal.Rptr.3d 205, 73 P.3d 1185, italics added.) Finally, the Drouet majority noted that "perjury concerns do not arise in this case" because "San Francisco has eliminated the incentive for sham Ellis Act evictions by adopting ordinances strictly limiting the landlord's right to re-rent the withdrawn property to others, to raise the rent, or to sell the property unencumbered by these limitations. (S.F. Admin. Code, § 37.9A, subds. (a), (c), (d), (g); see Gov. Code, §§ 7060.2, 7060.3.)" ( Drouet , at p. 598, 3 Cal.Rptr.3d 205, 73 P.3d 1185.) Martin reads Drouet selectively to support his argument, asserting Drouet suggests there is no incentive for a San Francisco landlord to use the Ellis Act as pretext, all the while harboring a secret intent to re-rent withdrawn units. Yet, we cannot agree the existence of these penalties means circumstantial evidence of a landlord's intent should be wholly excluded in an Ellis Act unlawful detainer action.


We now come to the testimony of claimant herself. This was probably objectionable, at least in part, and objection was interposed thereto at the hearing, the testimony being taken subject to a motion *585to strike out. The objection was; however, subsequently withdrawn in the memorandum of the attorney for the administratrix. In the course of her voluminous examination and cross-examination, the claimant proved to be a most evasive and unsatisfactory witness, entitled to absolutely no credibility whatsoever. In the early part of her examination she seemed to strive to reconcile her testimony with that which had been elicited from the witnesses for the estate, but she later reverted at times to the facts sworn to hi her proof of claim, with the result that so far, at least, as she was concerned, the record became a patchwork of contradiction and palpable <mask>. Thus she testified that, beginning in the fall of 1902, decedent and his wife came “ almost every year during the winter months, the spring, fall arid winter months,” before and after the time they spent the summer at Rockaway Beach, but “ long after ” that, about 1916 or 1917, although she was “ not positive ” of the time, down to her death, but not including 1920, or 1923. Mrs. Brush spent “ I should imagine between two to three — about three months each year, I should think ” (Stenographer’s Minutes, p. 106), “ about every year ” (Id. p. 106), “ I am pretty sure ” (Id. p. 124). “ Mrs. Brush generally spent three or four weeks, sometimes four, and sometimes less, and sometimes more.” “ They generally came up every year.” Mrs. Brush would spend “ several weeks, I would say. I could not very well remember.”


¶21 The Court in Milkovich considered an opinion piece titled “Maple beat the law with the ‘big lie.’” Id. at 4. The article in its entirety was about the coach, identified by name, and the superintendent, who testified at a court hearing. Id. at 3–5. The Court concluded that the article’s caption and nine sentences were actionable because they clearly implied that the coach had committed <mask>, an assertion that was provable as false. Id. at 21.


In affirming the trial court’s factual determination regarding the equitable distribution of this marital asset in Mahoney-Buntzman v Buntzman (12 NY3d 415 [2009]), the Court of Appeals held that, as a matter of policy, it could not permit parties to assert positions in legal proceedings that are contrary to declarations made under the penalty of <mask> on income tax returns.


And so came Victaulic's closing arguments, with their focus on "Finberg," "RFAs," "lies," and "penalty of <mask>," words used so often, and so interrelatedly, that it is truly difficult to count. The jury deliberated for some five hours, and returned with a verdict answering a total of six separate questions, one of which had seven subparts, a total of 13 separate questions. That verdict awarded damages for breach of contract totaling $1,073,868.80, finding for Victaulic on each of seven claims in the exact amount sought. The verdict awarded attorney fee damages for bad faith of $8,259,712.31, the exact amount Victaulic's expert testified to. And the jury also found, by a nine-to-three vote, the insurers acted with fraud, oppression, or malice committed by a managing agent. All this, after a three and one-half week trial, in some five hours of deliberation.


"We have that here. Both of these. AIG's lying on the RFAs, lying on the interrogatories is despicable under any measure. Under oath, penalties of <mask>. They know what they are doing. They lied. And they did it with complete disregard for the law and for Victaulic's rights. Not only, though, do those constitute, those RFAs, the interrogatories, do they constitute malice and oppression. It's fraud. It is fraud. They knew what they were doing and they intentionally misrepresented the facts.


Although EPTL 3-4.1 (a) (2) (A) does not explicitly state that the physical act of revocation must take place upon the will itself, it would be a tortured and imaginative reading of the statute to infer that an act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction would refer to anything other than the executed original. The purpose underlying the enactment of the Statute of Wills (EPTL 3-2.1), which is a variant of the Statute of Frauds in even stricter form, is to protect a decedent’s estate, preserve the integrity of a testator’s plan for the distribution of his assets, and to close the door as far as possible to the obvious temptations of fraud, <mask>, and collusion (Matter of Coffed, supra; Matter of Tremain, supra). Objectants have not cited, nor has the court found, a single decision in which the court permitted revocation by physical act to take place other than *957upon the testamentary instrument itself. It might be surmised that the absence of any authority directly holding that a will may not be revoked by a physical act upon a copy of the will was only due to the fact that the objectants were the first who were ingenious enough to advance such a proposition.


All the evidence tends to show that the contract was for the sale of a monument. It was spoken of as a thing then existing to be sold, not as a thing to be manufactured. They called it a monument with reference to the use for which it was designed. It -was a sale, if there were any bargain made, of the marble then comprising what the parties called a monument; as much so, in my opinion, as if the article had been a carriage, requiring for its completion an additional coat of paint or of varnish,, a tongue, or thills, or whiffletree or other like appendage. ¿The work to be done to finish the monument was not essential to its existence, character or design, but to its completeness and comeliness merelyf The legislation in England has put an end to all such questions in that country, by an act of the 9th of George 4, ch. 14, which enacts “that the provisions of the statute of frauds shall extend to all contracts for the sale of goods, and notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for making or completing thereof or rendering the same fit for, delivery.” . The supreme court of Wisconsin, in Hardell v. Medium, (1 Chand. Rep. 278,) say of this act that they regard it as “ laying down no new principle, covering no new ground,” but as containing in remarkably clear, simple and explicit language “ the true construction of the original act.” To this I fully agree; and it seems that the late decisions had brought back the law before the passage of this act to about the same point, and conforming to the plain intent and fair interpretation of the original statute; particularly the case' of Garbut v. Watson, and Donn v. Ross, with which coincide Atkin*212son v. Bell, (8 Barn. & Cress. 277,) and Smith v. Surman, (9 561.) In this latter case, which was an action for the sale of lumber, Bayley, J. says: “ The vendor, so long as he was felling the trees and preparing the timber for delivery, “ was doing work for himself, and not for the defendant.” So in this case, so long as the plaintiff was polishing and finishing up this monument he was doing work for himself. This, Judge Harris, in Comstock v. Stewart, (supra,) says presents the true rule in such cases. See also, Allen v. Jarvis, (20 Conn. Rep. 50,) where the same rule is asserted. The case of Donovan v. Willson, (26 Barb. 138,) is not in conflict with these views. In that case the contract was to “ manufacture, furnish and deliver beer.” It comes perhaps within the class of cases referred to by Chief Justice Shaw, “ where the workman is to put together materials and construct an article for the employer.” That case, however, was decided upon the authority of Bennett v. Hull, (10 John. 364,) in which the contract was to deliver 100 barrels of apples. The price exceeding $25, the court held that the contraqt was within the statute, and that the statute applied to executory contracts; and upon that of Crookshank v. Branch, and Small v. Freely, the first of which was rightly decided, and the latter, in effect, overruled in Donn v. Ross, and mistakenly followed and under protest, in Robertson v. Vaughn, (5 Sand. S. C. R. 1.) I have always doubted the correctness of the decision in the case of Donovan v. Wilson, but think it may possibly stand, upon the cases of Crookshank v. Bennett, and Mixer v. Howarth, (supra.) But I cannot but think that the case, as Judge Duer says, in Robertson v. Vaughn, was “ within the mischief the statute of' frauds was designed to prevent, and the contract between the parties was substantially a sale of goods and merchandise, and not for work and labor.” The statute of frauds was designed to prevent frauds and perjuries. Instead of fulfilling its office it has doubtless been the most prolific cause of-fraud and <mask> of any statute ever enacted, and *213since parties are permitted to be witnesses in their own favor, the temptations and facilities for committing perjury are obviously not so diminished as to make it wise to repeal the statute, or defeat its operation by further judicial refinements. | The tendency in all our courts, at the present day, is to construe the statute of frauds in all its particulars according to the obvious meaning and fair import of its language. (Mallory v. Gillett, 23 Barb. 612, recently affirmed in the Court of Appeals; Brewster v. Silence, 4 Seld. 211; 11 Barb. 144.) In the language of my brother Johnson, in the last case, I regard the statute as plain and imperative, and feel much more inclined to yield to its authority than to any array of opinions or dicta which have sought to evade or nullify it to save hard cases and prevent or remedy some particular act of injustice.” I think the motion for nonsuit should have been granted, and that the case should go back for a new trial. |


*988The Grand Jury’s primary function is to "determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution” (People v Calbud, Inc., 49 NY2d 389, 394). In a <mask> case, the Grand Jury cannot fulfill its function unless it is given the opportunity to decide whether identified, specific and particularized statements are false. "A grand jury, in order to make that ultimate determination, must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him” (Russell v United States, 369 US 749, 770, supra).


“Evidence of prior specific criminal, vicious or immoral conduct should be admitted if the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility.” (34 NY2d at 376.) “A demonstrated determination deliberately to further self-interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity.” (Id. at 377.) “Lapse of time . . . will affect the materiality if not the relevance of previous conduct.” (Id. at 376.) But “Commission of <mask> or other crimes or acts of individual dishonesty, or untrustworthiness (e.g., offenses involving theft or fraud, bribery, or acts of deceit, cheating, breach of trust) will usually have a very material relevance, whenever committed.” (Id. at 377.)


In the case of People ex rel. Valenti v McCloskey (6 NY2d 390) the Court of Appeals dealt with the distinction between clear, direct and unequivocal testimony which might be perjurious and testimony so patently false on its face so as to be considered as no testimony at all. The Valenti case involved two writs of habeas corpus brought by individuals who had been committed to civil jail as a result of prior testimony before the State Commission of Investigation. The relators testified a second time before the commission but the commission refused to assent to their release stating that the relators "gave 'some sort of answer to each question’ but * * * that the answers given were 'in varying degrees, false, evasive and obstructive of its investigation; indeed, in many instances the answers are inherently incredible’.” The Court of Appeals ruled that both relators should be released. The opinion stated (pp 403-404): "the only meaningful standard by which it may be determined whether each of the relators 'submitted] to do the act which he was required to do’ * * * is whether he 'directly responded’ to the enumerated 26 questions 'with unequivocal answers * * * clear enough so that if they are shown to be false [he] would clearly be guilty of <mask>.’ * * * When the answers given by Frank and Costenze are carefully measured against this standard, it becomes apparent that, though they may have been false, they were definite and unequivocal”. Thus, the court found that the answers in question were not, as the commission contended, so incredible as to be unbelievable and perjurious, without extrinsic proof. It is significant that in arriving at this decision the Court of *174Appeals acknowledged (p 398): "With respect to both civil and criminal contempt, however, the courts of this State have recognized that under certain circumstances a response to a question may be so false and evasive as to be equivalent to no answer at all.”


I. That the count of <mask>, first degree, is based on facts alleged which do not constitute (and the evidence before the Grand Jury could not have sustained as) the crime charged as a matter of law. He argues that he did not himself make the false statement under oath alleged in the indictment, since he only performed the ministerial act of notarizing the verification of his co-owner, Paul Gould. But Bergen is charged with more than having notarized Gould’s verification. He is charged with having acted in concert with and aided, abetted and induced Gould in the making and filing of the application containing the *878false statement of cost of the new kitchen cabinets. The evidence before the Grand Jury sustains the commission of both alleged acts. Under section 2 of the Penal Law, a person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, or who directly or indirectly counsels or induces another to commit a crime, is a principal.


The conversation turned to the issue of immunity. Defense counsel argued that if the prosecutor really had no intention of charging appellant with <mask>, then the court should grant appellant immunity for it. The judge thought that was a good idea in theory. However, he felt he lacked the authority to grant immunity on his own. When the prosecutor was unwilling to offer immunity to appellant, the prospect was forgotten.


As the Supreme Court long ago held, “the constitutional guaranty of the 5th Amendment does not deprive the lawmaking authority of the power to compel the giving of testimony, even [though] the testimony, when given, might serve to incriminate the one testifying, provided immunity be accorded * * * in all respects commensurate with the protection guaranteed by the constitutional limitation.” (Glickstein v United States, 222 US 139, 141 [1911]; see also Kastigar v United States, 406 US 441 [1972].) The New York Legislature exercised this power by enacting CPL 50.20, which provides that “a [person who] * * * refuse [s] to give evidence requested of him on the ground that [the testimony] may tend to incriminate him” (CPL 50.20 [1]) may nonetheless be compelled to give that evidence if he receives immunity from a “competent authority.”6 (CPL 50.20 [2] [a], [b].) A person who testifies in a legal proceeding with the transactional immunity granted pursuant to CPL 50.10 (2) “cannot * * * be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein,” but “may nevertheless be convicted of <mask> as a result of having given false testimony in [the] legal proceeding [in which he is an immunized witness].” (CPL 50.10 [1]; see People v Gottfried, 61 NY2d 617 [1983]; Matter of Rush v Mordue, 68 NY2d 348, 357 [1986].)


In the present case, the defendant swears also <! that be has cause to suspect and does suspect,” that the wool was stolen by Bishop. The indictment alleges that he had not cause to suspect, and did not suspect that the wool was stolen by Bishop. The jury have pronounced the charge in the indictment to be true. Whatever doubts may have once existed, it is now clearly settled that a man may be “ convicted of <mask> in swearing that he believes a fact to be true which he knows to be false.” (2 Russ. 1753, 1754.) On this ground also the conviction of the defendant is regular, and supported by adjudged cases.


“I explained the concepts of immunity, self-incrimination, <mask> and contempt, and that they were obliged to answer all questions truthfully and responsively. “I further explained to the witnesses that though the company had hired me to be available to them during their ordeal, no one was obliged to accept my services, and that I had no intention of foisting myself upon anyone. I also explained that regardless of whether they wanted to avail themselves of my services, since they had all been involved with the store’s coupons in one way or another, it would be imprudent of them not to speak with some lawyer. Each witness was further told that there was at least a hypothetical risk, in any situation where one attorney represents more than one client, that conflicts of interest could arise; but I offered my professional judgment that no such risk was lurking in this case, as none of them was a target and all would obtain complete transactional immunity from any state prosecution. I further informed the witnesses that if, for whatever reason, any witness preferred to obtain separate counsel, I would be able to secure an adjournment of their appearance until such counsel were ready to act in their behalf.” The District Attorney alleges, and the attorney admits, that he further counseled his clients to tell the truth but not to provide additional information.


Meredith Lintott's retraction stated: "In 2010, during my campaign to be re-elected District Attorney, I published a political campaign advertisement on the radio which stated or implied that Mr. Robert Forest had felony charges pending against him, that he had assaulted an unarmed man with a firearm, and that he had bribed my opponent to obtain a permit to carry a concealed weapon. Robert Forest did not bribe anyone. Mr. Forest did not have any criminal charges pending against him and he did not commit an *1112assault on an unarmed man with a gun. I personally dismissed all of the criminal charges that were pending against him more than 2 years before my campaign advertisement was broadcast on the radio. I want to confirm that I made the right decision when I dismissed the charges that were pending against Mr. Forest. I apologize for the harm my statements have caused Mr. Forest, his family, and his businesses. [Signed] Meredith Lintott" (Italics added.) The statement was not sworn under penalty of <mask> and, as noted, was part of the settlement of a lawsuit filed by defendant against her for defamation.


The defendant’s motion to suppress his Grand Jury testimony is based on the argument that the absence of the warnings violated his constitutional rights, tainted the Grand Jury testimony and made it inadmissible for the purpose of proving on a trial for <mask>, that his testimony was false. In Robinson v. United States, (supra, p. 251) the court answered that contention: “ The theory of the defendant’s contention is so elusive that it is difficult to write about it. It is a really a tour de force, rather than a reasoned conclusion. It requires, sub silentio, an assumption that there is a duty upon the government to have an observer present at all trials to give a specific warning to any witness who, it is thought, may perjure himself, that if he does perjure himself, he may be prosecuted.”


The second problem is the state never placed the accused at the vehicle or proved he fired any weapon of any type, no person identified the accused as having taken the vehicle or being associated with it. I am sure the state will argue this point, but no person ever identified who the "he" was that was referred to as taking the vehicle. In addition there was no evidence whoever took it remained at all, we must be mindful two officers committed <mask> on the stand. In any event even the judge claims "I don't think you even put him at the scene" where the judge doubts you have placed the defendant at the scene this is reasonable doubt. No person saw anyone fire a shot, no less the defendant, nor did anyone see him anywhere around the residence or the vehicle with or without a firearm, again, no person testified who was present on the evening in question or how many persons were in the area of the vehicle, or carrying weapons.


The arbitrator found that the alleged reimaging contract was to be performed over three years.7 Under California's statute of frauds, when, as here, a contract is not to be performed within one year it "or some note or memorandum thereof, [must be] in writing and subscribed by the party to be charged or by the party's agent." ( Civ. Code, § 1624, subd. (a).) The writing need not contain all of the contract's terms; it is sufficient "if it identifies the subject of the parties' agreement, shows that they made a contract, and states the essential contract terms with reasonable certainty." ( Sterling v. Taylor (2007) 40 Cal.4th 757, 766, 55 Cal.Rptr.3d 116, 152 P.3d 420.) The purpose of this requirement is " 'to require reliable evidence of the existence and terms of the contract and to prevent enforcement through fraud or <mask> of contracts never in fact made.' " ( Ibid. , quoting Rest.2d Contracts, § 131, com. c., p. 335.)


“ The effect of the judgment of the court of appeals was the same as if the whole of the plaintiff’s cause of action had been admitted.' It was equivalent to an admission, by a failure to put in an answer, that the defendants had, maliciously and without probable cause, caused the plaintiff to be arrested, imprisoned and prosecuted upon a charge of <mask>. But the amount paid for counsel fees and costs the plaintiff had to prove upon the assessment, for that was in no way settled by the judgment of the court of appeals, the effect of which was simply to establish the plaintiff’s cause of action as averred in his complaint, but nothing more, and the ruling of the judge upon this point was, in my opinion, erroneous (jP. 76). * * * As respects the assessment of damages in this case, it is to be regarded as analogous to a *395default upon a failure to answer, and to be governed by the practice which existed upon assessing damages upon an inquest at the circuit or upon a writ of inquiry before a sheriff's jury” (P. 78).


*641In considering this case, I have entirely disregarded the testimony of Miss Lee, as unworthy of credit. It abundantly appeared from the evidence on both sides that she and the deceased cohabited for many years, i Yet she, not choosing to decline answering, boldly testifies to the contrary. Her denial is clearly untrue. That portion of the history of the life of the decedent is regarded as material, and therefore the rulefalsus in uno, falsus in omnibus, is applicable. I cannot agree with those who justify swearing to a falsehood in such cases. It is simply adding <mask> to vice. But there are other reasons why she is considered unworthy of credit. It is unnecessary to enumerate them here.


“During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities. These insufficiencies include: failure of plaintiffs and their counsel to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits which falsely attest to such review and to other critical facts in the foreclosure process; and ‘robosignature’ of documents by parties and counsel. The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel” (emphasis added). The mandatory affirmation requires the plaintiffs attorney to state, under the penalties of <mask> pursuant to CPLR 2106, that he or she communicated with plaintiffs representative (the name and title of whom must be specified) on a specified date, and that such representative informed the attorney that the representative


This court’s treatment of the witness Isaac, ruling that as a matter of law he was not an accomplice to intentional murder or manslaughter, even though he could be an accomplice as a matter of fact for felony murder, is consistent with rulings in pertinent, although not identical, situations. There are appellate holdings that a witness who took part in a serious crime *713that was closely connected to the crime charged was not an accomplice to the crime charged, despite the connection between the two crimes and the witness’s implication of himself in a felony; this was so even though the two crimes had a common element, as they do in this case (causing the death). These cases confirm that Isaac’s status as a potential accomplice to the related attempted burglary or attempted larceny at the victim’s store, and thereby to the felony murder, does not entail his status as a potential accomplice to the intentional shooting of the victim. (See, People v McAuliffe, 36 NY2d 820 [accomplice to bribery is not an accomplice to the defendant’s <mask> about that bribery]; People v Brooks, 34 NY2d 475 [receiver of stolen property is not an accomplice to the theft]; People v Greenberger, 96 AD2d 910 [vendors who paid kickbacks to the defendant, a hospital administrator, were not accomplices to the defendant’s attempt to evade payment of income taxes by failing to report those kickbacks as income]; People v Maldonado, 123 AD2d 788 [witness was not accomplice to manslaughter in the first degree alleged to have been committed when the defendant shot the deceased after a brawl, merely because during the brawl the witness tried to pass the defendant a large knife].)


On June 4,1980, Leo reappeared before the Grand Jury. The statutory definition of immunity from prosecution was read to him, and he was informed that notwithstanding its grant by operation of law he could be prosecuted for <mask> and for contempt for refusal to answer legal and proper questions. Asked whether he understood the meaning of contempt, he refused to answer any questions and read a prepared statement.


However, the first time the Court of Appeals had the question before it, it affirmed, without opinion, the lower court’s exercise of discretion in granting the disclosure of grand jury minutes to residents of the Town of Mt. Pleasant to aid them in proceedings to remove the Receiver of Taxes. (Matter of Quinn, 293 NY 787.) In People v Di Napoli (27 NY2d 229, 234), the Court of Appeals clarified its position: "We start with the proposition that secrecy of grand jury minutes is not absolute.” Disclosure rests in the discretion of the Trial Judge who must balance public interest in disclosure against that in secrecy. Ascribing as reasons for the mainte*105nance of secrecy, the court listed (p 235): "(1) prevention of flight by a defendant who is about to be indicted; (2) protection of the grand jurors from interference from those under investigation; (3) prevention of subornation of <mask> and tampering with prospective witnesses at the trial to be held as a result of any indictment the grand jury returns; (4) protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and (5) assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely.”


2. The complaint alleges the giving of a mortgage, its subsequent foreclosure and perfecting of title, and possession of the premises by due course of law in the defendant. The plaintiffs were parties to that action. This pstops them from questioning the validity of that judgment or the proceedings under it in this action. Embury v. Conner, 3 N. Y. 511-522; Lyon v. Lyon, 67 N. Y. 250; Rawiszer v. Hamilton, 51 How. Pr. 297. Even though the judgment was recovered by fraud and <mask>, yet it cannot be questioned collaterally. Railroad Co. v. Harrold, 65 How. Pr. 89. The complaint is to be taken as a whole in its construction, and as a whole it shows that the plaintiffs were ousted of possession by j udgment and writ authorized by law, and so long as as that stands, it must be regarded as conclusive upon their rights. Calvo v. Davies, 73 N. Y. 211. If the mortgage upon which the judgment is obtained was procured by fraud and is void, it and the judgment under it may be impeached in an equitable action, (Krekeler v. Ritter, 62 N. Y. 372;) but it is conclusive upon the right of the plaintiffs to maintain this action. The demurrer is sustained, and judgment ordered in favor of the defendant, with costs.


The People's brief does not cite Caldwell, supra , 212 Cal.App.4th 1262, 152 Cal.Rptr.3d 99, but that case contains a holding that is very similar to the People's argument here. Defense counsel argued that detectives testified falsely about whether they used correct procedures in conducting a photo lineup. On rebuttal, the prosecutor contended that the detectives would not risk their careers by committing <mask>. While conceding that the prosecutor's remarks were similar to those in other cases where vouching was found to have occurred, the Court of Appeal nevertheless concluded that the prosecutor "was not vouching for [the police witnesses'] credibility; he was rebutting the defense attorney's charge that the officers had lied about the photo lineup." ( Id. at p. 1271, 152 Cal.Rptr.3d 99.)


Bernard J. Fried, J. Defendants Adam Cohen, Stanley Cohen, Jamie K. C. Scher (nee Jamie Cohen), Todd Spehler and Eileen Torrillo are charged in a 27-count indictment, which includes 21 counts of <mask> in the first degree. At issue is whether the State of New York has jurisdiction over these perjury charges, and whether New York’s perjury statute encompasses perjury, before the National Association of Securities Dealers (NASD).


Although we do not have precedent interpreting Code § 8.01-4.3, the Supreme Court of Virginia did consider the statute’s application in Spruill v. Garcia, 298 Va. 120, 125 (2019). In that case, the Supreme Court held that an unsworn statement that was “merely ‘acknowledged’ as ‘true and correct’ before a notary public” was not “an unsworn declaration made under penalty of <mask>.” Spruill, 298 Va. at 125 (citing Code § 8.01-4.3). In contrast, the phrase “substantially similar” has been interpreted by this Court. See, e.g., Mason v. Commonwealth, 64 Va. App. 599, 608 (2015). “[T]wo things are ‘substantially similar’ if they have common core characteristics or are largely alike in substance or essentials.” Johnson v. Commonwealth, 53 Va. App. 608, 613 (2009). “Similar,” on the other hand, means “having characteristics in common” or being “alike in substance or essentials.” Id. (quoting Similar, Webster’s Third New International Dictionary (1993)). example attestation clause.5 See Johnson, 53 Va. App. at 613 (quoting Substantial, Webster’s,


The indictment averred the contrary of each of these statements to be true, and charged the appellant with having “ falsely, wickedly, willfully, knowingly, unlawfully and corruptly committed willful and corrupt <mask> ” in giving this testimony. To this indictment the appellant, by his counsel, filed a demurrer in writing on the ground that the facts stated in said indictment did not constitute a crime. Upon the hearing of the demurrer the court overruled the same and ordered that the defendant plead to the indictment.


And in People v. Morrison, 98 Misc. Rep. 555, following the reasoning in the Peck case, the court held that where the facts alleged negatived the materiality of testimony and showed that it must have been immaterial the indictment is bad on demurrer. Nott, J. (on p. 557), stating the rule, said: “ There is no doubt of the general rule that an allegation in an indictment for <mask> that the testimony is material is sufficient. * * * But where the facts further alleged in the indictment negative the materiality of the testimony and show that it must have been immaterial, the indictment is bad on demurrer in spite of the allegation contained therein that the testimony was material.”


With regard to the third count, the indictment charges all three defendants with the crime of attempted grand larceny in the first degree by common scheme or plan. Section 1290-a of the Penal Law requires that “if * * * the defendant made use of any false or fraudulent representations * * * in the course of accomplishing * * * the theft, evidence thereof may not be received at the trial unless the indictment * * * alleges such representation or pretense ”. The indictment alleges common-law larceny by unlawful scheme and plan without alleging any false pretense as an overt act. The only attempted larceny established at the trial is one by the false representation that a bill for services rendered was a valid one. Such overt act must be alleged in the count charging larceny and the prosecution may not rely upon a <mask> count in the indictment in order to cure its error in pleading, since larceny is not a derivative of perjury.


The affirmation as recommended by the Senate Finance Committee in its Sixth Report is the most precise manner of complying with the rule. The affirmation should read as follows: “ The undersigned, attorneys of record [of counsel with the attorney of record] for A. B. affirms that the foregoing statement is true, under penalty of <mask>. O. D. [address] ” (p. 206).


This court heard the defendant’s testimony, which concerned adjudicative facts: defendant’s forcible, unlawful taking of the complainant’s jacket which defendant admitted under oath in the Grand Jury but denied under oath at trial. The prosecutor persuasively asserts these are facts about which defendant is not likely to be mistaken. The defendant was convicted by a jury of the crime of robbery in the first degree, which defendant under oath at trial denied committing. The defendant’s guilt of the crime was established beyond a reasonable doubt by the testimony of the victim and two police officers as well as the defendant’s own testimony in the Grand Jury. The question arises as to whether the proof of defendant’s apparent <mask> is sufficiently strong and the perjury so material that enhancement is warranted. In Dunnigan (supra) defendant categorically denied any involvement with illegal drugs. On the Government’s case-in-chief, five witnesses testified to personal observations of defendant’s illegal drug trafficking, four of whom admitted complicity in these enterprises.


In view of this and other evidence in the record, it cannot be said that Traver and Slocum committed <mask>, nor that, without their testimony, there is in the record ‘ ‘ no proof that Tony Nadile was in Syracuse on the day of the crime ”. The allegations in the petition fit the description stated in People v. White (309 N. Y. 636, 641, supra): “Many sworn allegations are palpably untrue, not improbable or unbelievable, but untrue.” The court is satisfied that the “new evidence” offered by defendant fails to create a question of fact to rebut the presumption of validity attached to the factual basis for the original judgment which is essential to the granting of a hearing. (People v. Richetti, supra; People v. Wurzler, 280 App. Div. 1020.)


Clearly, therefore, the power to cause the arrest and prosecution of William Lomnicky for the crime of <mask> or any other related crime, as sought by petitioner, is vested solely in the respondent Frank D. O’Connor, District Attorney of Queens County. Under the circumstances, the respondents, the Magistrates’ Court of the City of New York and John M. Murtagh, its Chief City Magistrate, may not be directed to usurp the function of the District Attorney to arrest and prosecute William Lomnicky of the crime of perjury or any other related crime (Matter of McGraw v. Finegan, 243 App. Div. 778; Matter of Bailey v. Kern, 177 Misc. 904) and the application in that regard must be and is denied.


The defendant has attacked the aborted immunity on three fronts: (1) The prosecutor’s offer of immunity was such as to prevent the defendant’s access to the informant; (2) the prosecutor’s offer of immunity was tantamount to threatening the informant with <mask> prosecution if he testified favorably to the defendant; and (3) the court indicated that the immunized *751statement could possibly be used as evidence in a future perjury prosecution.2 The defendant concluded that the combination of these alleged errors resulted in an ineffective offer of immunity which deprived the defendant of vital testimony and that as a consequence the motion to suppress should have been granted.


By the fourth count of Indictment 910C-72, defendant Percy is charged with official misconduct for failure to pay just com*532pensation as to Parcels 12 and 13 based on submitted appraisal figures. Count 11 of Indictment 910G--72 charges him with <mask>, premised again on the theory that at the time of settlement the county’s appraised value figure was $132,000 and not $56,000. Assuming, that by being the ultimate signatory to the settlement agreement, Percy bears responsibility, it is amply clear that the minutes nowhere reveal the awareness by the jury of the existence of the $56,000 figure and offer.


If the defendant herein seeks a suppression hearing to challenge the scope of police conduct, defendant must affirmatively assert that he has a legitimate expectation of privacy in the item seized or in the area searched (Rakas v Illinois, 439 US 128, supra; Rawlings v Kentucky, 448 US 98; United States v Salvucci, 448 US 83, supra). The defense bar cannot have it both ways. They cannot challenge the seizure of items found in public places by claiming their clients’ constitutional rights were violated and then maintain at trial that the property recovered doesn’t belong to their clients at all. Defendants must affirmatively state that the property belongs to them and, in circumstances where the property is not recovered on the person of the defendant, that their discarding of the property was a "spontaneous reaction” to unlawful police conduct (People v Howard, 50 NY2d 583, 593; compare, People v Wilson, 201 AD2d 399 [spontaneous response], with People v Myrick, 199 AD2d 823, Iv denied 83 NY2d 808; People v Thomas, 203 AD2d 96, Iv denied 83 NY2d 972 [calculated act]). The defense bar should be reminded that suppression hearing testimony or pleadings made in support of a suppression hearing cannot be used at trial against a defendant on the prosecution’s direct case, thus removing much of the self-incriminating dilemma that had motivated the automatic standing rule (People v Wes*263lev, 73 NY2d 351, 356, supra; Simmons v United States, 390 US 377, supra). It follows that unless someone seeks to suborn <mask>, the doctrine of legal standing is not an obstacle to justice.


In People v. Davis (247 Mich. 602) the defendant had testified that he had not previously been arrested and convicted of any offense. The court, after asking defendant a question, said, among other things, in the presence of the jury, “ Mr. Prosecutor, as soon as the court is dismissed, you make a complaint, and Mr. Sheriff you can sign it charging the respondent here with <mask>, and take him into custody. Go ahead with your questions.”


On the contrary, it is fair to assume that, in view of the fact that many of the States had repudiated the doctrine of Wain n. Warlters from the start"; that in others, where it had been followed to some extent, it was either considerably modified by the courts, and in the course of time restricted to a small class of. cases, or entirely abrogated by statute ; that even the courts of England found themselves compelled to modify and refine it by degrees; that after an attempt and. trial for more than *317thirty years to enforce it in this State by express statutory enactment, it was found to do more harm than good, inasmuch as it operated as a fraud on the merchant, the farmer, the mechanic and the laborer, who acted upon •the faith of the written promise of a third person, but who in most cases found it very difficult to state the real consideration of the collateral promise in legal and technical form, so as to make a valid agreement; that, therefore, in this age of great and rapid commercial progress, the further requirement of a compliance with a technical rule of law not prescribed by nor observed in other States, the enforcement of which has proved an endless source of trouble, annoyance and injustice, without yielding in a corresponding degree the benefits expected to flow from it,—namely, the prevention of the crime of <mask>, was inconsistent with the true commercial interests of the great State of New York, with its rapidly increasing population, composed in part of valuable foreign elements,—it is fair to assume, I repeat, that in view of all these considerations, the legislature changed the statute in 1863 with the express intention that the requirement that the consideration be expressed in every agreement, should thereafter no longer be insisted on in any manner. I can arrive at no other conclusion, and whoever will undertake the task of reading and studying among other cases the decision in Brewster v. Silence (8 N. Y. [4 Seld.], 207), followed in Glen Cove Ins. Co. v. Harrold (20 Barb., 298), and in Draper v. Snow (20 N. Y, 331), and on the other hand the case of the Union Bank v. Coster (3 Id. [3 Comst.], 203), the controlling principle of which decision was necessarily involved and reaffirmed and approved in Gates v. McKee (13 Id. [3 Kern.], 232), and again in Church v. Brown (21 Id., 315), and then notice the frank admission of Chief Justice Comstock, in the last named case, that the decision of the case of Brewster v. Silence, which he had followed, with his associates, in Draper n. Snow (20 Id., 331), was erroneous, and therefore he should be prepared to uphold the contracts and dealings of men, belonging to the *318class which, are condemned in the decision referred to ; whoever, I say, will undertake that task, will,'in all probability, arrive at the same conclusion to which I have arrived as regards the reasons which induced the legislature, among other things, to change the statute in 1863. It is true the legislature might have been more explicit, and enacted, in the words of the Massachusetts statute, “That the consideration of any such promise, contract or agreement, need not be set forth or expressed in the writing, signed by the party to be charged therewith, but may be proved by any other legal evidence,” or the words of the Indiana statute, which is nearly similar to that of Massachusetts; but, although this has not been done, I think the legislature of this State has been sufficiently explicit, under all the circumstances, in making known its determination to enact the same rule. In the face of this legislative intent sufficiently expressed, the judicial interpretation of the law, as applied in some cases to the law of 1813, in conformity with the English doctrine, must cease, as inconsistent therewith and totally repugnant thereto. I have no doubt that since 1863 securities to an immense amount have been taken in business throughout this State, in reliance upon the idea that a compliance with the old rule is no longer necessary; the interpretation contended for by the defendant would place all the contracts entered into in respect to these securities in jeopardy, and would thus greatly increase the .uncertainty of the law, which is now proverbial.


As we have stated, Wilder was not cross-examined as to the matter involved in the question put to George Morse. Suppose he had been, and admitted the declaration, could witnesses be called to sustain his general character ? Rex v. Rudge (2 Peake N. P. Cases, 232) is an authority for a negative answer. It was said, in Jackson v. Lewis (13 Johns., 505) that “ inquiry as to any particular immoral conduct is not admissible against a witness.” It was held in Rex v. Hemp (5 Carr. & P., 468) that a witness cannot be asked whether he has heard the witness sought to be impeached commit <mask> in the trial of a cause. In Harrington v. Lincoln (3 Gray, 133), the court refused to receive evidence that a witness said if he had been on the stand he would have said something-even if it had been untrue, after the witness had denied so stating.


It is true that in the case of the People v. Petmecky (99 N. Y., 421), the language of the court might seem to justify the adherence to the rule existing previous to the change in respect to the disqualifying effect of a conviction for <mask>. But as the question was not considered by the court, it cannot be held to have been adjudicated upon. The learned court, therefore, having left the whole question entirely to the jury, as to what weight they would give to this testimony of Fullgraff and Duffy, did all that it was required *46to do by reason of any exception wbicb was taken upon tbe part of tbe defendant’s counsel.


*1015“ Q. Are you retired? A. Yes sir. u Q. What are you retired from? A. I refuse to answer on the grounds that 1 cannot he compelled to testify against myself. “ Q. Now Mr. Healy, I am going to tell you that you cannot refuse to answer questions unless you invoke your Constitutional privileges and state the reasons for refusing to answer questions. A. I have the same answer. “ Q. Mr. Healy, if I tell you that I am going to insist that you answer questions, or else have the Foreman direct you to answer, I would advise that if you fail to answer we will seek to hold you in contempt, will you answers [sic] the questions then? A. Give me the questions. “ Q. What are you retired from? A. I refuse to answer on the Constitutional grounds that I cannot he compelled to testify against myself. “ Q. What is the basis for that refusal? A. What you told me this morning. “ Q. What did I tell you? A. That I was going to be indicted. “ Q. Didn’t I say that you would be indicted if you didn’t tell the truth? A. That I was going to be indicted and that was it. “ Q. If you didn’t tell the truth, didn’t I tell you that? A. You did not. “ Q. If I tell you now that if you don’t tell the truth we will seek an indictment against you, will that change your position? A. No. “ Q. Under what circumstances would you testify? A. None. “ Q. If I tell you Mr. Healy, that I will then request the Foreman of the Grand Jury to advise you that if necessary we will give you Immunity and then compel your answers, will you then answer the questions? A. I will answer: I have to answer then. “ Q. You do realize that? A. Yeah. “ Q. You realize that as a result of your former employment as a police officer, is that correct? A. No, it’s in the Constitution. “ Q. And you want to follow the Constitution and don’t want to impede the investigation of this Grand Jury? A. No I do not. ‘1 Q. You would not tell a lie would you? A. No sir. “ Q. You realize what telling a lie would constitute at this point, do you not? A. I know its <mask>. “ Q. You realize you have taken an oath and sworn to tell the truth? A. Yes. “ Q. Do you feel that any answers you might give would incriminate you? A. I do. *1016“ Q. If I tell you now that I am going to ash the Foreman to excuse you and then to consider whether or not they will give you Immunity, in return for your cooperation, will you take that under advisement and then come bach and answer questions? A. I don’t understand you. 11 Q. If 1 tell you that I am going to ash the Foreman of the jury to give you Immunity from prosecution and then after they have decided to give you Immunity, I will then put certain questions to you and compel you to answer, do you, understand that? A. 1 understand that. “ Q. Will you be willing to do that? A. As far as I am able. “ Q. Do you realize even if you are given Immunity, it does not grant you Immunity from prosecution for perjury? A. I understand that. “ Q. Do you realise that before I ash the Grand Jury to give you Immunity that I will have to talh to you outside, myself, for a minute? A. Alright. 11 Q. Do you realise Mr. Mealy that if, after Immunity is grcmted, you refuse to answer any questions, you will be held in contempt and face a possible jail sentence? A. 1 understand that. “ Q. Did you discuss with anybody your appearance before this Grand Jury? A. No. “ Q. Mr. Foreman, at this time I ask that the witness be excused for a minute. By Foreman: You may be excused. “ Witness excused.” (Emphasis supplied.) Subsequently, on the same day, i-iealey was recalled before the Grand Jury and was questioned, in part, as follows: “ Q. Mr. Healey, did you ever receive any money from any other sergeant in the precinct to which you were attached? A. No. “ Q. Did you ever give any other sergeant any money? A. No sir. “ Q. Did you ever hear of the Sergeants Club? A. No. * ‘ Q. What precinct were you assigned to ? A. The last was the 109. “ Q. When were you there? A. December 1, 1955 to 1960, when I retired. “ Q. All that time you never received any money from any other sergeant? A. No sir. “ Q. Did you ever receive any money from Bichard Davis? A. Bichard Davis ? I don’t know him. “ Q. Did you ever receive any money from him? A. I don’t know him even. *1017“ Q. Did you ever receive any money from William Lade? A. I did. “ Q. You did? A. Yeah. “ Q. What for? A. He gave it to me, that’s all. “ Q. Well, how did it come about? A. 1 went to see him and he gave me money, five or six times. “ Q. What did you do with the money? A. I kept it; spent it. “ Q. How much did he give you? A. Sometimes fifty, sometimes seventy-five. “ Q. Dollars? A. Yes. “ Q. Tell us what he gave it to you for? A. I don’t know. I never done anything for him. “ Q. I am glad you have decided to co-operate Mr. Healey. I am glad you have decided to tell the truth. At this point, I am going to give you a minute to catch your breath and sit out in the other room. Would you? A. You want me to sit out in the other room? “ A. Just for a minute. Take your glass of water with you. (Witness leaves jury room.) “ Witness excused.” (Emphasis supplied.) In view of the conclusion to which I have come as to how this motion must be decided, it is not necessary to determine whether at that point in the proceedings healey had in fact already been given immunity from prosecution by the District Attorney so as to preclude his subsequent indictment. It should be pointed out, however, that the Assistant District Attorney had recalled the defendant healey for questioning after representing to him ‘ ‘ that I am going to ask the Foreman of the jury to give you Immunity from prosecution and then after they have decided to give you Immunity, I will then put certain questions to you and compel you to answer


This whole contention, of course, rests on the assumption that the original stories told by the witnesses Ames and Mary Ballant were false. It is my opinion, after a careful review of all the documents and records in this case, that the original *471stories told by the witnesses Mary Ballant and Harold Ames were true, that Mary Ballant was guilty of <mask> on the trial, was properly indicted therefor, and should have been convicted therefor and that the witness Ames was not coerced into giving false testimony against the defendant.


By the facts as alleged in his amended complaint, plaintiff acknowledges that (1) ConEd hired him despite the fact that he reported his <mask> conviction, and (2) ConEd’s subsequent termination of him was based on the assertion that “everyone knew” “who [plaintiff] was” (amended complaint f 33) and because of “potential disruption of business operations” and “damage to the Company’s reputation.” (Amended complaint *][ 36.) Plaintiff also alleges that he was involved in the Louima incident. However, there is no allegation that ConEd considered the perjury conviction as a factor in terminating the plaintiff; nor is there any mention of the perjury conviction with respect to plaintiff’s interaction with McGrath or Frankel. And, although not binding, case law submitted and found by the *842court indicates that Frankel’s “silence” when plaintiff voiced his belief that he was being terminated for his convictions is insufficient to support an inference that plaintiff was terminated based on his perjury conviction (see Van Houdnos v Evans, 807d 648, 655 [7th Cir 1986] [“Silence alone, however, is not evidence of discriminatory intent”]; Alms v AdvancePCS, 2006 WL 2032746, *3, 2006 US Dist LEXIS 50100, *11 [D Ariz, July 18, 2006, No. 2:04-CV-00332 (JWS)] [finding that silence by hiring agent did “not suggest he agreed with the age-discrimination allegation implicit in (plaintiff’s) question”]; Ali v Stetson Univ., Inc., 340 F Supp 2d 1320, 1325 [MD Fla 2004] [“Whatever might have been behind the board’s silence, it is not in the nature of a remark ‘whose intent could be nothing other than to discriminate’ ”]). Thus, when read as a whole, the amended complaint fails to support a claim that ConEd terminated him because of his perjury conviction of lying under oath.


*628“ Since the only means available to contradict and impugn that <mask> was to peruse the transcript of the first trial for comparison of the testimony, counsel moved the trial court for time to obtain a copy of the transcript for his use in cross-examination of the witnesses. The Court denied this motion, thus leaving petitioner and his counsel with no means to refute the perjurrers prejudicial testimony.


defendant through the introduction of his own coerced tes- timony. It did so despite the strong and obvious interest in preventing <mask> because the very introduction of the coerced testimony would violate the Fifth Amendment’s provision that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” In view of that guarantee, balancing of interests was “not simply un- necessary,” but “impermissible.” Portash, 440 U. S., at 459. The Sixth Amendment speaks with equal clarity: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” It admits no exception for cases in which the trial judge believes un- confronted testimonial hearsay might be reasonably neces- sary to correct a misleading impression. Courts may not overlook its command, no matter how noble the motive. See United States v. Gonzalez-Lopez, 548 U. S. 140, 145 (2006) (“It is true enough that the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair”). D The State warns that a reversal will leave prosecutors without recourse to protect against abuses of the confronta- tion right. These concerns are overstated. State and fed- eral hearsay rules generally preclude all parties from intro- ducing unreliable, out-of-court statements for the truth of the matter asserted. See, e.g., Fed. Rule Evid. 802. Even for otherwise admissible evidence, “well-established rules,” such as Federal Rule of Evidence 403, “permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U. S. 319, 326 (2006). If a court admits evidence before its misleading or unfairly prejudicial na- ture becomes apparent, it generally retains the authority to 14 HEMPHILL v. NEW YORK


We also note that Code of Civil Procedure section 98, applicable in limited civil cases, allows for the presentation of “prepared testimony of [relevant] witnesses in the form of affidavits or declarations under penalty of perjury” in lieu of presenting “direct testimony.” (Italics added.) Thus, our Legislature has described such declarations as “testimony,” at least in the context of limited civil cases. (Code Civ. Proc., § 98.) We need not, however, determine whether a declaration under penalty of <mask> submitted in another action amounts to “former testimony” within the meaning of section 1290 because we conclude the defendant Dunmores had no opportunity to cross-examine Ruth Dunmore in the underlying bank actions with an interest and motive similar to that which they have in this case. “The essence of the hearsay rule is a requirement that testimonial assertions shall be subjected to the test of cross-examination. [Citation.] The basic theory is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination.” (Buchanan v. Nye (1954) 128 Cal.App.2d 582, 585.) In accordance with this requirement, section 1291 requires, as a condition of admissibility, that “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (§ 1291, subd. (a)(2).) Here, the defendant Dunmores were parties in the underlying bank actions, and the question of whether or not Ruth and George Dunmore signed the loan documents or authorized anyone to do so on their behalf was certainly at issue. However, Ruth was obviously not subject to cross-examination in her own declaration. Such a declaration provides prepared testimony akin to a direct examination. (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1347.) In the context of limited civil cases, where declarations may be presented in lieu of live testimony, the right of cross-examination is preserved by


Subsequent to said interview, the defendant was called before the Grand Jury and, in response to a question by the Assistant District Attorney who conducted the interview, as to whether or not the bid that was finally submitted was very high, he responded "No”, but that "maybe it was a little high”. The District Attorney then asked whether or not defendant had told him during the April, 1975 interview that the bid was "very high”, to which he responded "No”, resulting in one count of <mask>.


Rule 7 of the Rules of the Board of Zoning Appeals of the Village of Matinecock provides in pertinent part: “All appellants, applicants, opponents and witnesses shall ei*982ther be sworn or, in the absence of being sworn, shall be required to state the truth, the whole truth and nothing but the truth as if under oath and under legal liability for full penalties for <mask>.” Petitioners contend that the Board’s failure to enforce this rule and its taking of unsworn evidence constituted a procedural error requiring the setting aside of its determination. It would appear that the Chairman misconstrued the Board’s own rules although he accurately stated the law; “The statements of the witnesses do not have to comply with the technical requirements applicable to testimony in court. They are not even under oath. It is enough that reasonable men could view them as entitled to probative effect.” (People ex rel. Fordham Manor Reformed Church v Walsh, 244 NY 280, 287; see, also, Matter of Von Kohorn v Morrell, 9 NY2d 27, 33; Matter of Holy Spirit Assn. for Unification of World Christianity v Rosenfeld, 91 AD2d 190, 201.) Accordingly, any procedural defect in not swearing witnesses or requiring that they make their statements under the penalties for perjury was de minimis and harmless especially where no objection was raised at the hearing.


Richard T. Andrias, J. In September 1989 defendant Judith Goldfinger was charged in a five-count indictment with conspiracy in the fifth degree, *766grand larceny in the second degree, criminal possession of stolen property in the second degree, commercial bribing in the first degree and <mask> in the third degree. In essence, it is alleged that Ms. Goldfinger, who sells commercial business forms for her employer, codefendant Cosmos Forms, Ltd. (Cosmos), conspired and schemed to defraud one of her corporate customers, Guardian Life Insurance Co. (Guardian), by inflating invoices for goods sold and delivered in 1987 and 1988.


In the case of O'Reilly v. People (86 N. Y. 154), the affiant had the intention to verify a document, but no words were exchanged between him and the notary, who merely affixed his seal. The court there ruled that there could be no <mask> conviction since there had been no “ obligation of an oath ” (p. 162). No doubt, it was to avoid such requirements that the new supplemental perjury statute was enacted applicable to “ statements ”. This new subdivision 4, unlike subdivisions 1 and 2, does not use the word 1 ‘ swear ’ ’ but instead merely states: one who “ subscribes ” a statement.


That proper examination of a talesman on his voir dire to test his qualifications as a juror is material, generally speaking, is beyond question, and but for the importance of this case and the strenuous energy with which it was urged in the argument, that the questions propounded as indicated in the indictment did not constitute <mask>, the. foregoing would be perhaps sufficient on this subject.


I. That the count of <mask>, first degree, is based on facts alleged which do not constitute (and the evidence before the Grand Jury could not have sustained as) the crime charged as a matter of law. He argues that he did not himself make the false statement under oath alleged in the indictment, since he only performed the ministerial act of notarizing the verification of his co-owner, Paul Gould. But Bergen is charged with more than having notarized Gould’s verification. He is charged with having acted in concert with and aided, abetted and induced Gould in the making and filing of the application containing the *878false statement of cost of the new kitchen cabinets. The evidence before the Grand Jury sustains the commission of both alleged acts. Under section 2 of the Penal Law, a person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, or who directly or indirectly counsels or induces another to commit a crime, is a principal.


The testimonial oath is designed to serve two discrete functions: to alert the witness to the moral duty to testify truthfully and to deter false testimony by establishing a legal basis for a <mask> prosecution. (.Matter of Brown v Ristich, 36 NY2d 183,189.) To achieve these purposes, it is evident that the giving of an oath to testify truthfully must be a meaningful exercise. The test is whether the prospective witness “has sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what he has seen and heard vis-a-vis the subject about which he is interrogated.” (People v Rensing, 14 NY2d 210, 213; accord District of Columbia v Armes, 107 US 519, 521-522.) “The witness must, at a minimum, have ‘some conception’ of the obligations of an oath and the consequences of giving false testimony.” (People v Parks, 41 NY2d 36, 46, quoting from People v Washor, 196 NY 104, 109.)


"[The prosecutor's] argument strayed ... into impermissible territory when *563she implicitly suggested that all 12 unidentified, mostly nontestifying officers ... had been involved in a case or cases involving higher stakes such as kilos of cocaine, heroin, and stolen Maserati parts, but had not risked their careers for the higher stakes case or cases; and the same 12 officers had mortgages, car loans, and children in private schools. Although the officers' financial obligations and experience were irrelevant to appellant's guilt, [the prosecutor] argued these factual matters outside of the record to attempt to establish the veracity of the few members of the group of 12 officers who testified. This constituted vouching." ( Woods, supra, 146 Cal.App.4th at p. 115 [53 Cal.Rptr.3d 7].) The published California case law on this particular form of vouching (asserting without evidence that law enforcement witnesses would not lie because of the professional, financial or legal harm they would suffer) is scant; besides Woods , we have found only one other case ( People v. Caldwell (2013) 212 Cal.App.4th 1262, 152 Cal.Rptr.3d 99, about which we will have more to say below), although we suspect this prosecutorial tactic is not uncommon. As indicated in Rodriguez's brief, there are also some federal appellate cases in which the same fact pattern was found to constitute improper vouching. ( United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1146 [among statements constituting improper vouching was assertion that police officer witnesses would not lie because they would risk prosecution and loss of jobs and pensions; existence of such risks was outside record]; United States v. Combs (9th Cir. 2004) 379 F.3d 564, 574-576 [prosecutor's argument that agent would not lie because it was "darn sure" he would be fired for <mask> was improper vouching]; United States v. Gallardo-Trapero (5th Cir. 1999) 185 F.3d 307, 319-321 [prosecutor committed improper (but harmless) vouching with argument that federal agents and federal prosecutor would not commit perjury, as this would endanger their careers].)


An award of punitive damages is further supported by the fact that Pimsler pleaded guilty to criminal impersonation. (See Mulder v Donaldson, Lufkin & Jenrette, 208 AD2d 301, 308 [1st Dept 1995] [punitive damages warranted where misconduct demonstrates “such wanton dishonesty as to imply a criminal indifference to civil obligations”].) Furthermore, Pimsler has shown no remorse for his actions and, in light of the jury’s finding, has committed <mask> in this action. Finally, the jury’s decision to award punitive damages was proper in order to deter any such future conduct, and to send a message to the public that they can have confidence in the legal profession. (See 164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49, 60 [1st Dept 2004] [“deterent value of punitive damages is most effective against frauds, and is especially appropriate when the fraud is aimed at the public generally”].) In light of these aggravating factors, the court concludes that the jury’s award of punitive damages against Pimsler was not contrary to the weight of the evidence or contrary to law.


The Court of Appeals has “declined to prescribe fixed rules prohibiting or allowing the use for credibility purposes of prior offenses based solely upon the potentially inflammatory impact of the crime or the victim involved, even in the sensitive area of sex offenses.” (See People v Bennette, 56 NY2d 142, 147 [1982].) In People v Bennette, the defendant had been convicted of a sex offense involving a child who was eight years old. “The defendant’s conviction for sodomy was not irrelevant to the question of his veracity.” (Id. at 148.) “A person ruthless enough to sexually exploit a child may well disregard an oath and resort to <mask> if he perceives that to be in his self-interest.” (Id.) The probative value of the conviction “was not diminished by the passage of time”; the incident was not “buried deep in the defendant’s past,” but rather was a “recent conviction” for which the defendant was still on parole at the time of trial. (See id.)


In determining the thrust of Miranda and in evaluating its scope, it is necessary to bear in mind that it was concerned with the effect of custodial interrogation on Fifth Amendment rights. That amendment guarantees that no person may be compelled to be his own. accuser. To insure against police intrusion upon this constitutionally guaranteed privilege, statements made by a defendant during such custodial interrogation are excluded unless it is demonstrated that the requisite procedural safeguards have been employed. However, to bear witness against himself, the defendant must have already committed the act. To commit the act by the statement is not to bear witness to it. Thus, a witness, who is compelled to testify to criminal acts committed by him under a grant of immunity (CPL 50.20, subd 2) or under circumstances where immunity attaches as a matter of law, may not be prosecuted for the criminal acts to which he is compelled to testify. Nevertheless, a prosecution for <mask> will lie if he willfully testifies falsely (People v Tomasello, 21 NY2d 143, 149; CPL 50.10, subd 1). "The immunity does not extend in futuro” (United States v Tramunti, 500d 1334, 1344), nor does it confer a license to commit perjury (Glickstein v United States, 222 US 139, 142; United States v Tramunti, supra). .'


The People's brief does not cite Caldwell, supra , 212 Cal.App.4th 1262, 152 Cal.Rptr.3d 99, but that case contains a holding that is very similar to the People's argument here. Defense counsel argued that detectives testified falsely about whether they used correct procedures in conducting a photo lineup. On rebuttal, the prosecutor contended that the detectives would not risk their careers by committing <mask>. While conceding that the prosecutor's remarks were similar to those in other cases where vouching was found to have occurred, the Court of Appeal nevertheless concluded that the prosecutor "was not vouching for [the police witnesses'] credibility; he was rebutting the defense attorney's charge that the officers had lied about the photo lineup." ( Id. at p. 1271, 152 Cal.Rptr.3d 99.)


Certain of the claims asserted in Waggoner's pro se motion (such as challenges to the sufficiency of the evidence to support his conviction; claims of instructional error; and claims of a variance between the charging instrument and the evidence at trial) are plainly claims that could-and should-have been raised in Waggoner's direct appeal. Those claims are not properly asserted in a motion for post-conviction relief, yet counsel retained them verbatim , and without any attempt to justify consideration of those claims in a post-conviction relief proceeding. Many of the other claims Waggoner asserted (such as claims of witness tampering; suborning <mask>; forgery of documents; interference in jury deliberations; alteration of the trial transcript; "rampant judicial misconduct" and juror misconduct; and "[r]ampant perjury, forgery, [and] manufacture of false evidence") are factually extravagant. Counsel retained all of those claims in Waggoner's "amended" motion, without reciting a single additional fact or legal authority, and without any indication that counsel had herself determined that a good-faith factual and legal basis actually existed for the claims. It is significant in this regard that the circuit court initially dismissed all of the claims in Waggoner's pro se motion as frivolous-yet appointed counsel later repeated all of those same claims, with no substantive revision or supplementation.8


In People v. Hyde (supra), the learned judge further said: “ The subject was discussed at some length by the Supreme Court of Massachusetts in Commonwealth v. Smith (11 Allen, 243), the question being whether a suborner of <mask> was an accessory before the fact of the perjurer. The court said: ‘ The crime of subornation of perjury is clearly in its nature that of an accessory before the fact to the perjury. Both perjury and subornation are felonies under our statute, being punishable by imprisonment in the State prison. * * * Whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact, for it is not necessary that there should be any direct communication between the accessory and the principal. * * * And the accessory is a felon, though his felony is different in kind from that of the principal. * * * So it is said to be a principle in law which can never be controverted, that he who procures a felony to be done is a felon. * * * We cannot see that the application of these principles is changed when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted.’


At trial, had Applicant been armed with and able to use Godfrey's <mask> to impeach him in front of the jury, our confidence that the jury would have convicted Applicant is likewise not undermined. Even if the jury was convinced that Godfrey was not credible and it did not believe any of his testimony, the other officers testified that Applicant consented to the search.


"But the prosecutor says nothing like this could ever happen, because the officers would fear for their jobs and pensions and would risk prosecution for <mask>. Nonsense. Maybe in fantasyland-not in the real world. How many times have you read in the newspaper that an officer was fired and jailed for perjury? Yet studies have shown that working in law enforcement involves quite a bit of lying, more than in civilian life. Officers know they can get away with it, because they have that code of silence, the omerta you have heard about; because prosecutors will not go against them; because the system is their system.


The elements necessary under the statutory charge of <mask> as set forth in section 210.10 of the Penal Law are as follows: "A person is guilty of perjury in the second degree when he swears falsely and when his false statement is (a) made in a subscribed written instrument for which an oath is required by law, and (b) made with intent to mislead a public servant in the performance of his official functions, and (c) material to the action, proceeding or matter involved.”


While this court finds that the policies favoring immunity do not extend to the remaining claims, which concern allegedly criminal conduct and/or conduct constituting an intentional tort, it also concludes that plaintiff has failed to state a cognizable cause of action for damages. Specifically, reviewing those claims in a manner most favorable to plaintiff (see, Szczerbiak v Pilat, 229 AD2d 977), the court notes that there is no common-law cause of action for harassment (see, CBS Inc. v Arcane Visuals, 156 Misc 2d 665, 667), annoyance, intimidation or <mask> and that the only statutes that exist are criminal statutes. Plaintiff has also failed to plead the necessary elements of a cause of action for intentional infliction of emotional distress (see, Howell v New York Post Co., 81 NY2d 115, 121; Freihofer v Hearst Corp., 65 NY2d 135, 143), negligence (see, Pulka v Edelman, 40 NY2d 781) or defamation (see, 2 NY PJI 157 [2001 Supp]). Furthermore, the remedy for any alleged violation of an order of the Greene County Family Court is to petition that court for appropriate relief. Thus, plaintiffs complaint must be dismissed as to those claims, as well.


In reply, ConEd argues that article 23-A does not apply to plaintiff’s vacated conviction because a conviction vacated on appeal is not a conviction within the meaning of the law. Thus, the vacated conviction cannot serve as a basis for plaintiff’s claims under the New York State and City Human Rights Laws, incorporating article 23-A. Plaintiffs application did not disclose the vacated conviction, and if “convictions” included convictions vacated on appeal, then plaintiff could have been terminated for failing to disclose such convictions in his employment application. Plaintiff’s termination had nothing to do with the fact that he was convicted of <mask> in 2002. His notoriety stemmed from his record as a police officer, not his record as a “criminal” as plaintiff claims. Article 23-A does not apply where the ex-offender is terminated for reasons other than a previous conviction. And, case law strictly construes the scope of article 23-A.


The purpose of an oath is to secure truth. "In its broadest sense, an oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully” (58 Am Jur 2d, Oath and Affirmation, § 1). Traditionally, its function was to purge the conscience and impress upon the witness a due sense of religious obligation, so as to secure the truth of his testimony under the influence of its sanctity (see, O’Reilly v People, 86 NY 154 [1881]). Then, as *317now, false testimony or statements under an oath authorized by law subjected one to punishment for <mask> (Penal Law § 210.45).


It is the defendant’s claim that the indictment does not allege facts constituting the crime of <mask> in that it does not set forth that an oath was administered, that the defendant was sworn to give testimony in the case of Stiner v. Stiner, that the occasion upon which defendant signed the alleged false affidavit was- not one wherein an oath was required by law or one on which an oath could lawfully be administered, that the indictment does not allege that the statement was made in connection with the prosecution and trial of the case of Stiner v. Stiner, or that the notary public had authority to administer oaths in the county of Broome and finally that it appears on the face of the indictment that the alleged false affidavit was not material to any issue involved in the prosecution and trial of the Stiner case.


Although it has been held that “ The law requires the testimony of witnesses to be given under the sanctity of an oath ” (People v. Frindel, 58 Hun, 482), I cannot find any statute commanding it, but the practice is universal and supported by statutes prescribing the “ mode of swearing ” and punishment for <mask>. It is a part of our judicial system by inheritance, and a method of procedure having the sanction of settled usage is commonly regarded as due process. (Waters & Co. v. Gerard, 189 N. Y. 302; Bookman v. City of New York, 200 id. 53.)


2. The complaint alleges the giving of a mortgage, its subsequent foreclosure and perfecting of title, and possession of the premises by due course of law in the defendant. The plaintiffs were parties to that action. This pstops them from questioning the validity of that judgment or the proceedings under it in this action. Embury v. Conner, 3 N. Y. 511-522; Lyon v. Lyon, 67 N. Y. 250; Rawiszer v. Hamilton, 51 How. Pr. 297. Even though the judgment was recovered by fraud and <mask>, yet it cannot be questioned collaterally. Railroad Co. v. Harrold, 65 How. Pr. 89. The complaint is to be taken as a whole in its construction, and as a whole it shows that the plaintiffs were ousted of possession by j udgment and writ authorized by law, and so long as as that stands, it must be regarded as conclusive upon their rights. Calvo v. Davies, 73 N. Y. 211. If the mortgage upon which the judgment is obtained was procured by fraud and is void, it and the judgment under it may be impeached in an equitable action, (Krekeler v. Ritter, 62 N. Y. 372;) but it is conclusive upon the right of the plaintiffs to maintain this action. The demurrer is sustained, and judgment ordered in favor of the defendant, with costs.


The next witness is William Leehe also proves the will. He says he was requested by Doctor Arden to go with him to see a sick patient; he went; he never saw Mrs. Mo until he met her at the house where Jones was lying sick. His testimony, in substance, concurs with that of Arden and Waters; but it is assailed on several grounds. I will briefly consider them. Lee says, that on the third of May, Mrs. H. called on him, and gave Mm the first information of Jones’s decease. Walter Furlong testifies, that he informed Lee of the decease of Jones, the morning he diedo Whether Lee received the information on the 15th of April, or the 3d of May? is a circumstance irrelevant and unimportant, in respect to the subject of this will 5 it could have no effect whatever, allowing that the witness intended to aid the cause of Mrs. JET. If Lee was corrupt enough to sacrifice his integrity, he would have testified falsely to some fact that might be material. It would be in character, for a knave, on prudential grounds, to adhere to truth in circumstances of no moment | he would not expose himself to contradiction where nothing could be gained. I perceive no motive for stating the time of receiving information falsely. The law will not impute <mask> on such a state of facts, but will ascribe the variance to misapprehension or mistake ; besides, Lee? who swears to one day, is equally credible as Furlong, who swears to another.


*652The factual circumstances of the act involved in the offense of being a subscribing witness to a nominating petition that contains a false statement were unknown to the common law. However, the underlying criminal conduct that is the essence of this offense is perjurious in nature. <mask> is one of the notorious crimes recognized by the common law (People v Teal, 196 NY 372; Hoormann v Climax Cycle Co., 9 App Div 579). As the inherent nature of this offense has its antecedent roots in the common-law crime of perjury, it should be construed as requiring the same mens rea element of knowledge that the statement subscribed and sworn to by the witness was known by him to be false. This result is in comportment with the court’s view that under all of the circumstances, justice and basic fairness requires that the defendant be permitted an opportunity to defend himself against these perjury-related charges by asserting a factual lack of knowledge defense that would constitute a complete defense to the perjury charges in chief.


When a prosecutor makes uninvited and unsubstantiated accusations of improper conduct directed toward a defense attorney in an attempt to prejudice the jury against the defendant, courts refer to this as striking a defendant over the shoulders of his counsel. Id. at 355. This can be seen, for example, when the prosecutor argues that defense counsel has manufactured evidence, suborned <mask>, accepted stolen money, or represented criminals. Id. This type of argument is improper. Dinkins , 894 S.W.2d at 357.


Morales cites no authority for the proposition that a defendant's dubious incentive to commit <mask> constitutes an absurd consequence, and it's easy to see why. For a defendant who is willing to lie, the incentive to do so is not even unusual, much less absurd. An innocent defendant who has not committed each element of a less serious crime may choose to enter a plea agreement in order to reduce his or her sentencing exposure in the event of a conviction after trial on a more serious one. Or a guilty defendant may testify *808falsely to try to avoid conviction altogether. While we recognize these unfortunate realities, we decline to treat the decision to commit perjury as a mere economic calculation. Those who testify under oath are required to tell the truth, regardless of any purported incentives. Accordingly, we find that no absurd consequences follow from construing Page , Garza , and the plain meaning of Penal Code section 490.2 to allow defendant's felony Vehicle Code section 10851 conviction to stand.


*988The Grand Jury’s primary function is to "determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution” (People v Calbud, Inc., 49 NY2d 389, 394). In a <mask> case, the Grand Jury cannot fulfill its function unless it is given the opportunity to decide whether identified, specific and particularized statements are false. "A grand jury, in order to make that ultimate determination, must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him” (Russell v United States, 369 US 749, 770, supra).


Outside of New York, particularly in the Federal jurisdictions, there is more authority dealing with specificity of corroboration as it applies to the "two-witness” rule. In United States v Seavey (180d 837) the fact pattern is similar to that in the instant case. Based upon the defendant’s Grand Jury testimony denying illegal payments to one Sales or other employees of the War Shipping Administration, two witnesses testified at defendant’s trial for <mask>. One stated that she had seen $50 pass from defendant to Sales on one occasion. Sales himself testified to having received $125 from the defendant on another occasion. In rejecting the defendant’s contention on appeal that the two-witness rule must apply to each alleged passing of money, the court stated (supra, p 839): "It should be borne in mind that what the defendant is being prosecuted for here was not the giving or taking of bribes, but an alleged perjured statement that he had never made any payments on behalf of his employer to a given group of persons. Two witnesses testified, each to a different payment. The defendant has, therefore, been proved a perjurer by the testimony of two witnesses”.