A most apparent analogy is where a defendant seeks to escape payment for goods sold and delivered, on the ground that plaintiff is using the goods in connection with the conduct of business violating the antitrust laws. The courts have been astute to draw a fine line, and to insist upon honoring commercial obligations which are not an integral feature of the antitrust violations. (See Kelly v Kosuga, 358 US 516; Bruce’s Juices u American Can Co., 330 US 743, 755.) As Mr. Justice Jasen said in Fleet-Wing Corp. v Pease 011 Co. (29 Misc 2d 437, 439, mod on other grounds 14 AD2d 728): “An affirmative defense charging violation of the antitrust laws must be struck down upon motion to dismiss unless the contract for the sale of goods is alleged to be an integral part of the illegal <mask>. The contract must in itself carry out the terms of the illegality and be part and parcel of the violations to allow the defense to stand.”


The former employer of the three individual defendants seeks damages in its first cause of action for alleged loss of profits in the sum of $50,000, claiming that while still in its employ the three individual defendants organized the defendant Nueborne Concrete Breaking Corporation, whose name was thereafter changed to that of Able Breaking Corporation; that they entered into a <mask> that said corporations would compete with the plaintiff and entice away and obtain its business and customers for their own benefit and contrary to the interests of the plaintiff and to its detriment and damage; that, pursuant to this conspiracy, the defendants, while still in the employ of the plaintiff and unknown to it, purchased certain machinery, *248and with the aid "of other of plaintiff’s employees solicited the business of its customers and others and actually procured from such customers business and orders which were formerly given to the plaintiff; that the aforesaid competition and all of the acts and conduct of the defendants were contrary to and in violation of- the obligation of the individual defendants to be loyal to their trust and to their employer.


The second indictment (No.- 43-55) was found on January 5, 1955. It charged defendant Winter as sole defendant with additional violations of sections 270-a and 270-d of the Penal Law. The third indictment (No. 45-55) was also found on January 5, 1955. It charged defendants Winter and Wolf jointly with the crimes of <mask>, attempt to suborn perjury in the first degree, inducing another to commit perjury, and attempting fraudulently to induce a witness to give false testimony and to withhold true testimony.


On September 28, RCCC filed its opposition to the 7 Stars anti-SLAPP motion, included within which was a declaration of Hirschhorn testifying as to the facts that underlay the TAC. The declaration was 10 pages long, and set forth in vivid detail what the defendants did to RCCC, detail that supported Hirschhorn's testimony of a <mask> among defendants to harm RCCC-their "war on RCCC."


Phylis Skloot Bamberger, J. The defendant was convicted of grand larceny in the second degree, grand larceny in the third degree, <mask> in the fourth degree and 20 counts of offering a false instrument for filing in the first degree. The charges were based on a scheme to defraud the New York State Medicaid system by billing in violation of the Medicaid regulations. Before and during the trial, the defense repeatedly asked that all charges be dismissed on the ground that the defendant’s interpretation of the Medicaid regulations was correct and consequently her conduct was proper. This court rejects the defendant’s interpretation of the rules and finds no legal defense based on them.


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


Similarly, the case of Associated Press v. United States (326 U. S. 1) may be distinguished, on the basis that there a <mask> was involved which included all papers subscribing to the Associated Press. The Associated Press by-laws prohibited service of news to nonmembers and empowered members to block membership applications of competitors and make them pay high fees for entering. It was held that this conspiracy *443violated the Sherman Act since a new paper could be prevented arbitrarily from obtaining Associated Press news in competition with member papers in its area. In the present case there is no membership association which is blocking entry of anyone from competition. There is no concerted action by the plaintiffs at all. There is no conspiracy. The plaintiffs have not even refused to sell to defendants. The only thing sought to be enjoined is the defendants’ unfair appropriation of plaintiffs’ unpublished property.


On page 1 of the Grand Jury minutes the District Attorney advised the defendant that “ the Grand Jury is in the process *374of conducting an investigation to determine whether or not there has been committed in this county crimes of <mask>, larceny and other crimes in connection with office holders and public employees. At the moment you are being called as a witness * * * [p. 2] it is quite conceivable in the course of this investigation that you may turn out to be a defendant, although at this moment we are calling you as a witness.” (Italics in the above quotation made by this court.)


Skinners conveyed the property to plaintiff on November 5, 1960. Five days later, plaintiff, by his attorney, directed a letter to the Skinners and to Mrs. Butcher stating that he was the owner of the premises. The Butchers say that this is the first knowledge they had of the delinquent taxes on the property and that upon receipt of that letter, their attor*1084ney contacted plaintiff’s attorney in an unsuccessful effort to repurchase their interest by repayment of the taxes with interest and penalties and any other expenses the plaintiff may have incurred. On November 29, 1961, this action was instituted by the plaintiff against the defendants. The Butchers entered a general denial and a counterclaim alleging a <mask> by plaintiff and Skinners to defraud them. The defendant Mary 0. Skinner is the niece of plaintiff’s wife and neither the defendant Charles A. Skinner nor Mary 0. Skinner has appeared in this action.


Regarding instruction No. 4, contrary to Betancourt’s asser- tion, the typographical errors to which he draws our attention were insignificant and did not detract from the instruction’s meaning or purpose. With respect to instruction No. 8, con- trary to Betancourt’s assertion, the inclusion of the second paragraph, which is not in NJI2d Crim. 5.1, was an accurate statement of the law. See State v. Kennedy, 239 Neb. 460, 476 N.W.2d 810 (1991). Regarding instruction No. 15, contrary to Betancourt’s assertion, whether Betancourt fled from justice was in fact relevant to whether the <mask> charge was time barred and whether Betancourt could be found guilty of the conspiracy charge. See § 29-110(7) (tolling statute of limita- tions when defendant has fled). See Taylor v. State, 138 Neb. 156, 292 N.W. 233 (1940). Further, contrary to Betancourt’s assertion, it did not improperly shift the burden of proof to Betancourt. [21] Instruction No. 13 read: “An issue in this case is whether [Betancourt] was present in Madison County, Nebraska, on November 15, 2003. The State must prove that he was.” We agree with Betancourt and the State that with respect to count III, conspiracy, instruction No. 13 was an inaccurate statement of the law because Betancourt’s physical presence in Madison County need not have been proved for purposes of the conspir- acy. Neb. Rev. Stat. § 28-202(1) (Reissue 2008), which defines criminal conspiracy, states: A person shall be guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony: (a) He agrees with one or more persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense; and (b) He or another person with whom he conspired com- mits an overt act in pursuance of the conspiracy. Thus, the crime of conspiracy does not require the physical presence of the accused. It has been noted that conspiracy may be charged in both the place of the agreement, as well as any locale where any overt act by any one of the conspirators - 460 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


• Fraud by misrepresentation and nondisclosure . These causes of action rest upon the contention that GTECH is factually responsible, at least in part, for the wording of the Game 5 instructions. These actions by GTECH, in turn, are alleged to amount to fraud upon the Steele Plaintiffs, either affirmatively or through its silence. • Aiding and abetting TLC's fraud . This cause of action assumes that TLC is responsible for the Game 5 instructions and committed the asserted fraud through those instructions. The wrong alleged of GTECH is intentionally "assisting" TLC by printing and distributing the Fun 5's tickets, activating the *792tickets to make them available for sale, and operating the Texas Lottery computer system in a manner that declined to validate the Steele Plaintiffs' tickets as winners. • Tortious interference with existing contracts . The premise of this cause of action is that a contract was formed between TLC and each of the Steele Plaintiffs when the latter "exchanged $5 of their hard-earned cash for each of their Fun 5's tickets in return for the promise that they would be entitled to receive five times the amount in the Prize Box if their ticket revealed a Money Bag." GTECH "willfully and intentionally interfered" with these contracts, the Steele Plaintiffs maintain, "by using and continuing to use a non-conforming computer program" that omitted their tickets from the list of winning tickets. • <mask> . This cause of action asserts that GTECH and TLC had a "meeting of the minds" to "print misleading and deceptive instructions on Fun 5's tickets, to distribute the misleading and deceptive tickets for sale to lottery players in Texas, and to use GTECH's computer system to validate tickets as non-winners when the clear language of the tickets represented that they should be validated as winning tickets." The latter three causes of action are founded on alleged acts by GTECH that would merely comply with TLC requirements and directives, and regarding which the relevant contracts left GTECH no discretion to do otherwise.


In the course of the colloquy which took place the following appears: “ The Court: Well, in view of the statutes that govern bribery and <mask> I am going to direct you to answer, Doctor. I think the inquiry as to this is material and pertinent to the charges that are laid against this defendant. The Witness [defendant herein]: Will that give me immunity? The Court: It will give you immunity because of anything you may testify here."


4During oral argument, Overton’s counsel argued for the first time that the district court’s refusal to revoke Overton’s bail following the plea proceeding demonstrated that it had not truly accepted Overton’s plea. Counsel asserted that the crime of conviction required a mandatory remand following a guilty plea and that even the government expressed a belief at that time that the court would “continue the defendant on his current bond” because of “the provisional nature of the plea and Probation’s recommendation.” App’x at 301–02. But that misconstrues the record. Although the district court did indeed continue Overton on his bond at the conclusion of the plea hearing, it never stated – or even suggested – that its decision was based on the provisional nature of Overton’s plea. Rather, the court indicated that it did not consider remand to be mandatory based on the charged offense. See id. at 302 (“[F]or your information, this is a <mask> charge, it’s not a substantive charge. [And 18 U.S.C. §] 1594 is not enumerated as a crime of violence under the statute. . . . I’m considering that as well in terms of what is reasonable and in terms of the danger to the public as well as the risk of flight.”); 18 U.S.C. § 3143; see also id. §§ 1591(b)(2), 1594(c), 3142(f)(1), 3156(a)(4).


undertook the action. . . . The premise of the co-conspirator rule is that the conspirators have formed together for an unlawful purpose, and thus, they share the intent to commit any acts undertaken in order to achieve that purpose, regardless of whether they actually intended any distinct act undertaken in furtherance of the object of the <mask>. It is the existence of shared criminal intent that is the sine qua non of a conspiracy.


RAJESH and INN [Lending] since the security of the loan and the value of the property depended on a signed ‘absolute NNN lease’ as well. RAJESH and INN were clearly aware of the fraud and . . . participat[ed] in the <mask>.” In addition to alleging fraud in the execution of the September 13 lease, the Complaint also sufficiently alleges Munoz’s excusable ignorance of its terms. These allegations include: 1. Munoz is more than 80 years old, Spanish is his primary language, and he is “not proficient in reading English . . . .”9 2. Although he has purchased real property before this transaction, none involved a hotel or a leaseback. 3. The “Selling Defendants” drafted and circulated the July 17 lease, “which was confirmed as the final lease at least four times,” with the last confirmation “just days before the close of escrow.” 4. Because the July 17 lease was the only one ever circulated, Munoz “reasonably believed” the lease transmitted on September 13 was the same and the changes, although material, “were not so numerous to be obvious.” 5. The e-mail from Davis to Cassidy on July 17, which transmitted the July 17 lease, only reserved the defendants’ right to make changes “in case there was an error or oversight,” and prior to close of escrow, defendants did not make any corrections, nor did they ever contend there was an “error or oversight” needing correction. To the contrary, the July 17 lease was “circulated multiple times” without change. It was the only lease agreement circulated before the close of escrow and was approved by Munoz. 6. “Shivam made it appear that he was signing the July 17 lease and did not attempt to identify any difference” between the two leases.


The Court of Special Sessions of the City of New York has jurisdiction to hear and determine a charge of <mask>; and such trial without a jury does not violate any constitutional guaranty. *398(See People ex rel. Frank v. McCann, 253 N. Y. 221, 225; Inf. Crim. Cts. Act [Laws 1910, chap. 659, as amd.], § 31.) “ A misdemeanor is misconduct or offense inferior to a felony. As a rule, misdemeanors do not present difficult questions- of law or intricate questions of fact. They are not necessarily punished by severe penalties. Though they may be prosecuted by indictment, yet a statutory assignment of criminal law work has committed the trials of misdemeanors in the first instance to the Court of Special Sessions, with the exclusion of libel, which exclusion is significant. This jurisdiction is subject to the power of certain judges to certify that it is reasonable that a charge of misdemeanor should be prosecuted by indictment.” (People v. Butts, 121 App. Div. 226.)


By their fourth affirmative defense defendants assert a counterclaim against plaintiff and the joined parties seeking damages for loss of use of their land and other unspecified damages. As a basis for those claims, defendants contend that James Wadsworth, representing the estate of Robb, and Anthony Dutton, acting as either a trustee of plaintiff or as its legal counsel, were both members of the same law firm and that this amounted to a conflict of interest which injured defendants by interfering with their contract rights. Paragraph 30 of defendants’ answer alleges : “That specifically, Wadsworth, rather than properly representing his client by attempting to clear title to the Robb parcel, conspired with Dutton to to [sic] improve the plaintiff Seminary’s position.” Defendants’ conclusory allegations of <mask> and interference with contract rights are not supported by the facts and thus fail to state a cause of action.


It is agreed by all that there are two kinds of <mask>, into one or the other of which, all offences of that description may be divided. The jirsi, where the conspiracy is to commit a criminal act, in which case it is immaterial by what *means the object is to be accomplished; second, where it is to commit an act, not criminal in itself, by criminal means. Here the object is immaterial, and the illegality of the means used or intended to he used, constitutes the offence. In the first ease, it is the nature of the object; in the second, the nature of the means by which the offence is ascertained.


But regardless of whether abortion is or is not a crime against the person, the indictment appears to be valid because at least one of the alleged overt acts is sufficient to sustain the indictment as a pleading. Thfi Court of Appeals has held that the crime of abortion may be the subject of a <mask> and irrespective of the fact that the victim may not be prosecuted under the section, nor is an accomplice therein nor consents thereto, she is nevertheless a co-conspirator and her acts and declarations in furtherance of the conspiracy are competent evidence against all the conspirators (People v. Davis, 56 N. Y. 95 [1874]).


The government’s only argument in support of the jury’s guilty verdict against Sadler is that Sadler is liable as a co-conspirator under Pinkerton. “The doctrine holds that a member of a <mask> is liable for ‘substantive offense[s]’ committed by his co-conspirators, even if he did not participate in them, as long as: (1) the offenses are ‘done in furtherance of the conspiracy,’ (2) they ‘fall within the scope of the unlawful project,’ and (3) they are reasonably foreseeable ‘consequence[s] of the unlawful agreement.’” Hamm, 952 F.3d at 744 (quoting Pinkerton, 328 U.S. at 647–48).


Finally, defendant asserts four claims of sentencing error, which the People concede. The parties agree the trial court should strike the one-year section 12022, subdivision (a)(1), enhancement as to the assault with a firearm count (count 4). The trial court should also stay under section 654 the one-year section 12022, subdivision (a)(1), enhancement as to the <mask> count. In addition, under section 654, the trial court should also stay the separate punishment either for count 2 or count 5. Defendant further asserts in supplemental briefing that this court should remand this matter for resentencing on his firearm enhancement ( § 12022.53, subd. (c) ) under recently enacted Senate Bill No. 620 ( (2017-2018 Reg. Sess.) § 2), which amended section 12022.53, subdivision (h). The parties agree in their supplemental briefs that the recent amendment applies in this case retroactively, because the amendment took effect before final judgment.


clear iPic in Houston. And when AMC requested clearances against iPic Frisco in July 2014, it was implementing a policy that AMC had unilaterally adopted more than a year-and-a-half earlier, before the <mask> is alleged to have begun. iPic argues that by teaming up and making their formal requests on the same day, Regal and AMC would have a greater chance of success with distributors. But it is hard to see why Regal’s requests for clearances in Houston would have any impact on a distributor’s decision how to allocate films 270 miles away in Frisco, or vice versa. iPic also contends that Regal and AMC’s teaming up sends a stronger message to iPic than either exhibitor’s requesting clearances alone would have. But the clearance requests target only two iPics, one of which was never built. Except for iPic Houston, all iPic’s theaters have had access to all first-run films since the day they opened their doors. One of these, iPic Los Angeles, opened within a three-mile radius of an AMC theater in April 2013—after the conspiracy allegedly began—and AMC declined to clear it. If AMC and Regal did conspire in January 2013 to “crush iPic with clearances”, the conspiracy was a failure. 74 B iPic nonetheless contends that it has presented evidence of


The United States Supreme Court has held on more than one occasion that the mere existence of a <mask> to achieve a specific object crime does not imply the existence of a continuing conspiracy to conceal the detection and apprehension of the coconspirators after the "main aim” or "central criminal purpose” of the underlying conspiracy has been accomplished. Thus, the duration of a conspiracy cannot be indefinitely extended in this manner so as to make the subsequent acts or statements of one of the coconspirators binding upon the others (see, Grunewald v United States, 353 US 391, *693400-406; Lutwak v United States, 344 US 604, 615-620; Krulewitch v United States, 336 US 440). Here, the prosecution does not contend that there was an express agreement among the defendant, Wisan, and her two alleged conspirators "to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission” (Grunewald v United States, supra, p 404), accordingly, the language of that case is particularly apposite. As the Supreme Court stated: "We cannot accede to the proposition that the duration of a conspiracy can be indefinitely lengthened merely because the conspiracy is kept a secret, and merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished * * * [A] vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime” (Grunewald v United States, supra, p 405).


It is unnecessary to analyze minutely the allegations of the <mask> charge. Suffice to say the theory is far fetched, fantastic, incredible. Many of the allegations are wholly unsupported by evidence) many of the allegations are inconsistent with and contrary to the evidence. So far as the Gretsches are concerned no facts are established to sustain the charge against them.


Plaintiffs have submitted some evidence which would support all class members’ claims that each defendant, as a member of the alleged <mask>, adopted standard policies and procedures whereby the same fraudulent methods were used to sell cigarettes to plaintiffs and the class members. Differences in brands, design changes, and variety of tar and nicotine levels may not create individual issues at trial because defendants were allegedly aware of and manipulated the amount of nicotine that is needed in any cigarette to keep a normal smoker addicted. Any individual issues of reliance are subordinate to the common class-wide issues, because proof that defendants engaged in a coordinated scheme of fraudulent activities is sufficient at the class certification stage to raise a presumption that the common issues are predominate. (Brandon v Chefetz, 106 AD2d 162, supra; Stellema v Vantage Press, 109 AD2d 423 [1st Dept 1985].)


In the main action the plaintiff has stated several causes of action alleging fraudulent conversion by the defendants in relation to the sale of 1,000 electric organs in that the defendants conspired to obtain money from the plaintiff through fraudulent *719documents of title and delivery, by reason of which -plaintiff did part with a substantial sum of money and received delivery of none of the electric organs. By the third-party complaint defendant and third-party plaintiff Berger alleges that in fulfillment of the contract with the plaintiff and acting as an officer of the defendant International Organ Corp., he negotiated with Paul R. Brown, acting for himself and the defendant Paul R. Brown Co., Inc., for the purchase and delivery of 285 electric chord organs. It is then alleged that the third-party defendants conspired to defraud the third-party plaintiff. It is further alleged in the third-party complaint that the defendant and third-party plaintiff had never participated in any scheme, plan or <mask> but relied upon the acts and representations of the third-party defendants in dealing with the plaintiff and 11 if the plaintiff is entitled to judgment, it is entitled to judgment solely against the third-party defendants because of their individual and combined fraud and deceit, since in fact said Abraham H. Berger did pay over the sum of $14,300.00 to receive the organs to complete the obligation of International Organ Corp. to the plaintiff and said funds were actually paid to Max Jakob, Ltd. for same.” Finally it is alleged that the affirmative and active participation of the third-party defendants in the plan and scheme caused any loss sustained by the plaintiff and judgment is demanded dismissing the complaint but in the event the plaintiff is entitled to judgment that such judgment should be rendered against the third-party defendants. Apart from the question of whether any damage is alleged in the third-party complaint, there is no request for the recovery of judgment thereon or for the recovery of judgment over. Thus there is in fact no complaint set out in compliance with the provisions of section 193-a pursuant to which the third-party action has been initiated. What is here attempted is solely to bring in additional defendants who may be liable to plaintiff and whom plaintiff has not elected to sue. Accordingly, the motion is granted dismissing the third-party complaint for legal insufficiency, with leave to amend within 20 days from service of a copy of this order with notice of entry.


At issue here is the status of these five alleged "overt acts”, each of which was allegedly committed by one or more of the coconspirators after the central purpose of the alleged <mask>, i.e., the murder of defendant’s husband, had been accomplished. They include Jones driving Berry from the scene of the alleged murder to New Jersey (17); Berry dropping the weapon alleged to have been used in the shooting into a sewer in New Jersey (18); the payment of money by the defendant, Wisan, to Jones (19); and a meeting between Jones and Berry at which time Jones gave Berry a sum of money (20 and 21). Each of these five acts was allegedly committed on the day of, or on the day following the commission of the alleged murder, either in the State of New York or in the State of New Jersey.


*710It appears that the relief sought by the beneficiary in the <mask> action and the special proceeding is similar. In both, he demands general damages, a dissolution of the partnership, an accounting, rescission of the trust indenture and a surcharge of the trustee. There are also certain common issues alleged in both suits. The objections in this special proceeding charge the trustee with fraud, breach of fiduciary obligation by favoring the interests of the other partners above his own, and by conspiring with the partners to wrongfully interfere with the beneficiary’s financial interest in the company. The complaint charges the partners with conspiracy to wrongfully interfere with the beneficiary’s financial interest and conspiracy to induce the trustee to breach his fiduciary obligations.


For its premise, the high court relied on the United States Supreme Court's application of the federal hearsay exception in Williamson v. United States (1994) 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476, which states: " '[W]hether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant's interest. "I hid the gun in Joe's apartment" may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. "Sam and I went to Joe's house" might be against the declarant's interest if a reasonable person in the declarant's shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam's <mask>. And other statements *365that give the police significant details about the crime may also, depending on the situation, be against the declarant's interest. The question ... is always whether the statement was sufficiently against the declarant's penal interest "that a reasonable person in the declarant's position would not have made the statement unless believing it to be true," and this question can only be answered in light of all the surrounding circumstances.' [Citation.]" ( Cortez, supra, 63 Cal.4th at p. 127, 201 Cal.Rptr.3d 846, 369 P.3d 521, quoting Williamson v. U.S., supra, 512 U.S. at pp. 600-601, 114 S.Ct. 2431, original italics & italics added, fn. omitted.) *64Applying this test to the facts before it, the Cortez court found the codefendant's out-of-court identification of the defendant disserved the codefendant's interest in several respects. When he made the statement, he knew the defendant and her car were already in police custody. By identifying the defendant, he increased the likelihood police would find evidence connecting him to the shooting. In fact, police found on the floor of the passenger side of defendant's car a live round matching the caliber and brand of several found at the scene. ( Cortez, supra, 63 Cal.4th at p. 127, 201 Cal.Rptr.3d 846, 369 P.3d 521.) The codefendant also knew that linking himself to the defendant would implicate him in a drive-by shooting for which the defendant had been arrested. ( Ibid . )


Defendants misread MRI (supra). To understand their error, the history of this litigation is relevant. Plaintiffs’ initial com*837plaint from 19892 asserted claims based on negligence, product liability and fraud, and also asserted claims for restitution and indemnity. Plaintiffs also claimed that the defendants were jointly and severally liable upon four theories: civil <mask>, concert of action, enterprise liability and alternative and market share theory. In 1991, the court, upon defendants’ motion, dismissed the negligence and product liability claims as time barred, but found that the fraud claim had been timely commenced under CPLR 213 (8). (See, City of New York v Lead Indus. Assn., 1991 WL 284454 [Sup Ct, NY County, Dec. 23, 1991, Dontzin, J.].) Defendants had also moved to dismiss the restitution claims on grounds other than untimeliness; the court denied that branch of the motion. Defendants did not challenge, and the court did not address, the indemnity or joint and several liability claims. The Appellate Division affirmed, explicitly finding that the fraud claim was timely commenced under CPLR 213 (8). (City of New York v Lead Indus. Assn., 190 AD2d, supra, at 177.) No further appeal was taken from LIA I.


Napa County Sheriff's Deputy David Quigley was dispatched to investigate the call of suspicious activity involving the white van. Quigley spotted the van, and someone in its driver's seat, in a parking lot near the property where the 911 caller had originally seen it; Morales got out as Quigley approached. Quigley found drug paraphernalia on Morales, who said that a man named Shawn gave him the van to use because Morales was homeless. Morales was to return the van to Shawn in a few days. Morales was arrested and charged by information with felony unlawful taking or driving of a vehicle ( § 10851, subd. (a) ), and other counts not relevant to this appeal. The information also alleged three prior felony convictions in Nevada for robbery and <mask> to commit robbery.


The ultimate position of the former is, apparently, that the document was a forgery and the product of a <mask> between the chief beneficiary, his son, who was one of the purported subscribing witnesses, and the scrivener-physician, who purported to be the other. In support of their contention, affidavits are submitted by two handwriting experts who unequivocally maintain that position.


We need not be detained by the first ground urged, for there are sufficient ultimate facts set forth, as distinguished from conclusions of law, to make out a cause of action in <mask>. However, citing Finkelstein v. Kesalp Realty Corp. (279 App. Div. 939) to the effect that “ agents who, acting within the scope of their authority, induce the principal to breach a contract are not liable in damages to the other party to the contract ”, the individual defendants say that upon that ground the fourth cause of action is insufficient as to them.


Next there is an information charging the two defendants, Lazarus Harrison and John De Bidder, which states: “ The defendants did agree to commit the offense of promoting gambling in the second degree in violation of section 225.05 of the Penal Law of the State of New York; and, among other overt acts in furtherance of said <mask>, defendants did engage in policy.”


Additionally, I disagree with the majority's reliance on People v. Huerta (2016) 3 Cal.App.5th 539, 207 Cal.Rptr.3d 637. I find Huerta to be inapplicable to this case. In Huerta , the defendant pled guilty to second degree commercial burglary based on her theft of eight bottles of perfume worth $463; she petitioned to have her conviction redesignated as a misdemeanor. ( Id. at p. 541, 207 Cal.Rptr.3d 637.) The People appealed from the trial court's order granting the defendant's petition. ( Ibid. ) The People argued that the burglary *139involved an uncharged <mask> to commit larceny and that "burglary predicated on such a conspiracy may be charged as a felony even after the electorate enacted Proposition 47." ( Id. at p. 545, 207 Cal.Rptr.3d 637.) We disagreed and stated: *273"It follows under the plain text of the statute [ Pen. Code, § 459.5 ] that prosecutors would have been required to charge [the defendant] with shoplifting and could not have charged her with burglary predicated on conspiracy had Proposition 47 been in effect at the time of her offense. [The defendant] therefore qualifies to have her burglary conviction redesignated as misdemeanor shoplifting." ( Ibid. , fn. omitted.) Moreover, we noted that "we indulge in every presumption to uphold the judgment and look to the appellant to show error. ( People v. Sullivan (2007) 151 Cal.App.4th 524, 549, 59 Cal.Rptr.3d 876.)" ( Id. at p. 545, 59 Cal.Rptr.3d 876.) We found that the People did not give us any reason "to question the trial court's finding." ( Ibid. ) "Conspiracy played no role in the prosecution of [the defendant]. The People charged her with burglary, petty theft, and grand theft. The People entered a plea bargain with [the defendant] whereby she pled guilty to burglary and the People agreed to dismiss the grand and petty theft counts. [The defendant] entered a plea agreement based on these facts. Based on this history, we conclude the trial court did not abuse its discretion in finding larceny was the predicate of the burglary charge, and therefore did not err in granting [the defendant]'s petition." ( Ibid. ) The facts in this case are different. Here, unlike Huerta , the People charged defendant with robbery. Hence, robbery played a role in the prosecution of defendant and he entered into a plea agreement based on the charged offenses. Moreover, as the Huerta court noted, on appeal, "we indulge in every presumption to uphold the judgment and look to the appellant to show error. ( People v. Sullivan (2007) 151 Cal.App.4th 524, 549, 59 Cal.Rptr.3d 876.)" ( Id. at p. 545, 59 Cal.Rptr.3d 876.) Based on the facts and history of this case, I "conclude that the trial court did not abuse its discretion" in denying defendant's petition.


With respect to the second defense and counterclaim asserted in the proposed answer in behalf of the defendant Norma McNeil, the court has examined the facts as set forth in the papers and finds that the charges of false representations and acts allegedly done as part of a <mask> by the plaintiffs to defraud the defendant Norma McNeil completely lacking in merit.


took place. See 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(b)(2) (3d ed. 2018). Instruction No. 13 was an accurate statement of the law as to count I, kidnapping, and count II, use of a firearm to commit a felony, and we conclude that although erroneous as applied to the <mask> charge, any such error was harmless. See State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012). The undis- puted evidence was that all three alleged crimes physically took place in Madison County, and as such, instruction No. 13 would not have confused the jury. A hearing on this claim was not warranted. (l) Right Not to Testify Betancourt claims that appellate counsel did not raise that trial counsel did not adequately advise him about his right not to testify and that if he decided not to testify, that fact could not be considered an admission of guilt and must not influence the verdict in any way. Regardless of whether trial counsel advised Betancourt he had a right not to testify, the record shows that he was so advised by the court. At his arraignment, Betancourt was advised of his right not to testify, as well as advised that if he chose not to testify, that fact could not be used against him. Thus, even if trial counsel failed to advise Betancourt in this regard, he was not prejudiced thereby and appellate counsel was not ineffective in not pursuing this argument. A hearing on this claim was not warranted. (m) Sentence for Count III, Conspiracy Betancourt claims that appellate counsel, while serving as trial counsel upon remand for resentencing on the conspiracy conviction, was ineffective for not objecting to the district court’s imposition of a sentence of “life imprisonment without parole.” The State concedes that Betancourt’s conspiracy sen- tence of “life imprisonment without parole” is not authorized. In Betancourt I, the direct appeal, we remanded the cause for resentencing on the conspiracy conviction with directions to impose a life sentence. We said: - 461 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


Whatever rights plaintiff may have against any other defendant, he sets forth no cause of action against the defendants Geneva and Goldman. The only connection between the said defendants and the claimed <mask> is the conclusory state-*356meat that the price paid by them for the foreclosed chattel® ‘‘ was a wholly inadequate consideration therefor ’ ’. In addition, plaintiff is a general creditor and had acquired no lien on the property of the debtor. That being so, he has no right to maintain an action at law for this tort, based upon the claim as alleged in the complaint (Bartol v. Bennett, 56 N. Y. S. 2d 314; Braem v. Merchants’ Nat. Bank, 127 N. Y. 508).


Plaintiff alleges that Guzzone “conspired with Defendant Edythe Dagostino in obtaining credit cards in Plaintiffs name.” Although not labeled as such, this appears to be a cause of ac*657tion alleging that Guzzone conspired to commit fraud. A “mere <mask> to commit a fraud is never of itself a cause of action” (Brackett v Griswold, 112 NY 454, 466 [1889]; Crispino v Greenpoint Mtge. Corp., 2 AD3d 478 [2003]; Agostini v Sobol, 304 AD2d 395 [2003]). The Brackett case and others have held that there is no separate cause of action for conspiracy to commit fraud since the principles which govern the action for fraud and permit a recovery by a plaintiff are the same; there must be some overt act undertaken to carry out the fraud in order to warrant the finding of liability and the subsequent awarding of damages, if any.


The complaint alleges a continuing <mask> from May 17, 1955 to the present time to prevent the plaintiff from acquiring the property covered by the contract of that date and from building any homes thereon. Since, however, conspiracy as such is not civilly actionable (Green v. Davies, 182 N. Y. 499, 504; Brackett v. Griswold, 112 N. Y. 454, 466-467; Miller v. Spitzer, 224 App. Div. 39), the plaintiff must show the commission of acts recognized in law as tortious. Scrutiny of the plaintiff’s answering affidavit, read in the light of his complaint, shows that his grievance is still the refusal to allow him to connect the sewer mains or pipes on his property with those on the property of the Club and Harrison-Rye—in other words, the refusal to accord bim a sewer easement. In the face of the plain and persistent rejection of his demand for such an easement both before and at the closing of September 20, 1956, on what does he predicate his assertion that the denial of the easement is tortious ? The answer is found in paragraphs 33 and 40 of his complaint, in which he alleges that the defendants “ fraudulently induced ’ ’ bim to discontinue his lawsuits against them ‘ ‘ on their false promise that he would have their ‘ goodwill ’ and cooperation ’ ’ in the acquisition of the property and in building homes *762thereon. In his answering affidavit he states again that the settlement was “ fraudulently induced.” This is the gist of his claim on which he must stand or fall.


Carrabis, together with 30 other defendants, has been charged with scheme to defraud in the first degree, section 190.65 of the Penal Law, <mask> to commit scheme to defraud, section 105.05 of the Penal Law, and violations of sections 352-c and 352-e of the General Business Law. During the course of the investigation of these charges, conversations were tape recorded by a confidential informant, working in conjunction with the Federal Bureau of Investigation. With the sole exception of Carrabis’ voice, the other voices on the tape can evidently be identified by a testifying witness.


Tbe plaintiff not bemg entitled to tbe aid of tbe court, in compelling tbe delivery of mvy stock, by reason of bis own illegal acts, it is useless to inquire whether tbe stock delivered to him corresponded with tbe description contained in bis contract witb Brown and Seligman, or whether tbe defendants, or either of them, were guilty of tbe fraudulent <mask> alleged.


The second case of the trilogy (in actuality four separate cases decided in the same opinion), People v Abbamonte (43 NY2d 74), involved defendants who had been convicted in the Federal courts of <mask> to violate Federal drug laws and were then prosecuted for substantive State drug offenses allegedly committed during the period covered by the Federal conspiracy charges but, unlike the posture in Abraham (supra), not alleged as overt acts in the Federal prosecutions. In People v Abbamonte (supra, p 79) the Court of Appeals extended its Abraham holding and taught us that when the substantive State drug offense was not, but could have been, alleged and proved in the Federal conspiracy prosecution, the "subsequent State prosecution offends the statutory mandate.” The court repeated the steps taken in its analysis in the Abraham case and then concluded (supra, p 86): "The problems for prosecutors engendered by CPL 40.20 and the analysis applicable to criminal prosecutions are due, it bears repeating, to the embracive nature of the crime of conspiracy. With respect to more narrowly deñned substantive crimes there are no serious problems (cf. People v Lo Cicero, 14 NY2d 374, 379, supra). The public policy choice is either to avoid using the conspiracy alternative if double prosecution of offenders in *118criminal partnership is regarded as desirable, or to redefine the distinctions in CPL 40.20 to permit, in some manner, an exception for conspiracy along with the other exceptions. Neither in policy nor logic should the accident of pleading allegations or proof upon the trial be determinative. The unsound paradoxes to which that would lead have been discussed and need no repetition.” (Emphasis supplied.)


“Declarations made by one conspirator in the prosecution of the enterprise are evidence against all, but they must be made in furtherance of the enterprise and while the enterprise is pending. Narration of the past facts after the enterprise has come to an end by success or failure is not admissible in evidence against the others. (People v. Davis, 56 N. Y. 95; Logan v. United States, 144 U. S. 263.) Here the statements were not made in furtherance of the common enterprise. That had come to an end by failure. They were merely part of explanation given for the failure. The conspirators in making the statements were certainly not acting as agents in behalf of their fellows when they made this explanation to them. It follows that the reception of this narration as evidence binding upon the defendants who had no personal knowledge of the facts is erroneous. It has no more logical probative force against them than any other hearsay testimony.” (Ryan at 305; see also People v Vaccaro, 288 NY 170 [1942]; People v Davis, 56 NY 95, 103 [1874] [“(a) mere relation of something already done for the accomplishment of the object of the conspirators is not competent evidence against the others”].) Consistent with the Ryan holding are two more recent opinions of New York’s trial courts. First, in People v Wisan (132 Misc 2d 691 [Sup Ct, Richmond County 1986]), the court considered whether certain conduct constituted overt acts done during the charged murder <mask>. Those alleged overt acts all occurred after the murder. The court concluded that when *590the victim was killed, “the sole objective of the conspiracy was accomplished, and the conspiracy was at an end.” (Wisan at 693.)2


Danann’s defense, stated in various forms, is that the March 31, 1960 maturity date was inserted in the note and mortgage by mutual mistake, or by mistake on its part and fraud on the part of Associates. There is a separate defense, wholly unproved, that the assignment by Associates to the plaintiff was made pursuant to a fraudulent <mask> and that the plaintiff is not the real party in interest. Danann prays for reformation of the note and mortgage to delete the March 31, 1960 maturity date and for declaratory judgment to like effect.


One of the coconspirators confronted the victim’s father by brandishing a box cutter and threatening to “go through” the victim’s entire family in an effort to find him. When the coconspirators learned that the victim had been located, they swiftly assembled and drove to his location, where Mattis was given a gun by a coconspirator. The other coconspirators then waited in the car while Mattis engaged the victim in conversation, shot him twice, including a fatal shot to the back of his head, and then returned to the car. They all then fled the scene. When defendant heard of the shooting later that same day during phone calls, he warned one of the coconspirators to “see no evil, hear no evil” and “don’t even talk” if questioned. In our view, the reasonable inferences to be drawn from this evidence provide ample support for the jury’s conclusion that defendant conspired to murder the victim in order to prevent him from testifying and thus was guilty of <mask> in the second degree (see People v McCoy, 89 AD3d at 1221-1222; People v Booker, 53 AD3d 697, 703-704 [2008], lv denied 11 NY3d 853 [2008]).


The government also relies on the comment attached to the Ninth Circuit Model Criminal Jury Instruction on intent to defraud. The instruction reads: “An intent to defraud is an intent to deceive [or] [and] cheat.” 9th Cir. Model Crim. Jury Instr. 5.12 (2021), https://www.ce9.uscourts.gov/jury- instructions/sites/default/files/WPD/Criminal_Instructions_ 2021_9_0.pdf. The comment states, in relevant part: “[F]or purposes of other statutes, such as <mask> to defraud the United States (18 U.S.C. § 371), intent to defraud only requires intent to deceive, not to cheat.” Id. The comment, however, does not discuss which formulation of the instruction is appropriate for violations under the statute at issue, § 1029(a), and more importantly, is only instructive at best. See United States v. Tuan Ngoc Luong, 965 F.3d 973, 983 (9th Cir. 2020) (“Pattern jury instructions are not authoritative legal pronouncements.”); see also Caveat, 9th Cir. Model Crim. Jury Instr. iv (“The Ninth Circuit Court of Appeals does not adopt these instructions as definitive. Indeed, occasionally the correctness of a given instruction may be the subject of a Ninth Circuit opinion.”).


The mandate is predicated on a finding that the contemner when called as a witness to testify before the Dutchess County Grand Jury investigating an alleged <mask> to commit the crimes set forth in sections 1747, 1751, 1752, 1533, 483 and 101 of the Penal Law and the alleged commission of crimes set forth in .sections 1751 and 1752 of the Penal Law, willfully, unlawfully and contumaciously refused to answer legal and proper ques*431tions before the Grand Jury after having been duly subpoenaed, sworn and after having been granted immunity pursuant to section 2447 of the Penal Law.


The jury returned a verdict in favor of Havey on his breach of contract claim against Shadow Creek; the jury also answered "yes" to a question asking whether Mandy was individually liable under an alter ego theory, and "yes" to questions asking whether Mandy was individually liable for common law fraud and <mask>. The jury awarded $30,500 in damages for Havey's unpaid commission and $55,750 in attorney's fees. The trial court signed a final judgment in conformity with the jury's verdict.


The Supreme Court also properly denied that branch of the appellant’s motion which was for summary judgment dismiss*896ing the sixth cause of action, which alleged <mask> to commit fraud. “New York does not recognize civil conspiracy to commit a tort. . . as an independent cause of action” (Dickinson v Igoni, 76 AD3d 943, 945 [2010]; see Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968, 969 [1986]; Brackett v Griswold, 112 NY 454, 466-467 [1889]). However, “a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme” (Litras v Litras, 254 AD2d 395, 396 [1998]; see Alexander & Alexander of N.Y. v Fritzen, 68 NY2d at 969; Brackett v Griswold, 112 NY at 466-467; Romano v Romano, 2 AD3d 430, 431-432 [2003]). “The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives. Therefore, under New York law, [i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement. A bare conclusory allegation of conspiracy is usually held insufficient” (Faulkner v City of Yonkers, 105 AD3d 899, 900-901 [2013] [internal quotation marks and citations omitted]).


The People contend that the defendant is responsible for the delay because he chose not to return to court after March 1993. The People concede that a delay of one year can be attributed to them. In the cases relied upon by the People, the defendants were wholly responsible for the delay in sentencing. (People v Lopez, 228 AD2d 395 [1st Dept 1996], lv denied 88 NY2d 1022 [1996]; People v Purtell, 225 AD2d 496 [1st Dept 1996], lv denied 88 NY2d 940 [1996]; People v Davidson, 158 AD2d 317 [1st Dept 1990], lv denied 75 NY2d 965 [1990].) The defendants in those cases absconded, used aliases, or presented false pedigrees. For example, in Lopez (supra), the defendant absconded twice after providing different names and birth dates in connection with his September 1987 plea of guilty. The Court held that the defendant was responsible for the delay until October 1992, when the State authorities were notified by Federal authorities that the defendant was in their custody for <mask> to import cocaine.


The case of the Com. v. Kingsbury, (5 Mass. Rep. 106) is relied upon to sustain this objection; but,1 on examination, it will be found that the object of the <mask> in that case was, the procurement of goods in a manner amounting to larceny ; and the court very properly held that the conspiracy being a misdemeanor, was merged in the felony. They, *however, go on to say that the same rule would apply in cases of misdemeanor; that “ an intent to commit a misdemeanor manifested by some overt act is a misdemeanor; but if the intent be carried into execution, the offender can be punished but for one offence.” I do not perceive how the general remark is strengthened by this illustration. Granting that the offender can be punished but once for the misdemeanor, it does not thence follow that he may not be punished for the conspiracy. No case is cited by the court in support of this general remark : and it was not called for by the case. The cases cited by the counsel in the cause are far from sustaining *651the principle. The King v. Sharpless, (1 Leach, 108,) and King v. Charlewood, (1 Leach, 456,) were two of the cases cited, both of which were indictments for larceny. The King v. Doran, (2 Leach, 608,) was another; where there were two indictments for the same offence ; one for a misdemeanor at common law, and the other for the felony under the statute ; and the court held that both could riot be sustained; for the misdemeanor was merged in the felony. The case in Massachusetts, therefore, does not warrant the observation of the judge, that an executed conspiracy is merged in the misdemeanor which maybe the object of it. No other case has been cited in support of the principle.


alleging, inter alia, that Garcia conspired with FPS to hide the fact it did not perform the work by claiming FPS “hand cut” the weeds when confronted with information that the parcels were locked and gated, and “invented” the “fine cut” theory when plaintiffs asked for the disposal invoice. Plaintiffs argued they fell within an exception to the rule requiring fraud be pleaded with specificity when City and Garcia possessed the full information about the relevant communications. FPS’s Motion for Judgment on the Pleadings FPS moved for judgment on the pleadings, arguing the operative complaint did not state any cause of action and statutes of limitations barred the causes of action for slander of title and defamation, depriving the trial court of jurisdiction. It argued the complaint’s allegations showed plaintiffs knew FPS’s bills were false because they knew the weeds had been abated, and thus they could not allege they justifiably relied to their detriment on the bills or the liens stemming from those bills. FPS argued the same points defeated plaintiffs’ <mask> allegations as the conspiracy was premised on fraud. FPS argued the three-year statute of limitations barred plaintiffs’ slander of title claim, as plaintiffs had constructive notice of the recorded December 2014 liens’ existence, or alternatively they knew or should have known of the liens no later than January 13, 2015, when they obtained the e- mail from FPS to the reporter. FPS further argued plaintiffs could not allege they suffered any actual pecuniary loss relating to its filing of the liens; that allegations that their bankers or other creditors were aware of the liens were insufficient. As for the defamation cause of action, FPS argued that claim, predicated on the January 13, 2015 e-mail directed to the reporter, was barred by the one-year statute of limitations. Additionally, they argued plaintiffs’ complaint did not state a cause of action because the statement


Defendants’ reasoning would thus, necessarily, apply to other degrees of <mask> defined in part by the ages of the conspirators, i.e., conspiracy in the third, fourth and fifth degrees. The courts have not, however, construed those statutes in the manner defendants suggest. Moreover, it seems evident that the text of section 105.17 does not indicate any legislative intent to radically distinguish the type of agreement criminalized from those criminalized by the statutes defining the other degrees of conspiracy.


The People point out that CPL 30.30 (3) exempts from statutory speedy trial requirements any "criminal action” in which a defendant is accused of homicide.3 CPL 1.20 (16) provides that a criminal action: "(a) commences with the filing of an accusatory instrument against a defendant in a criminal court * * * (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument * * * and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.” In People v Osgood (52 NY2d 37, 44 [1980]), the Court of Appeals applying to the term "directly derived” its ordinary meaning of being traceable to originating from, held that an indictment charging the defendant with the same crimes contained in a previously dismissed felony complaint was "directly derived” from the complaint. (See also, People v Colon, 76 AD2d 805 [1st Dept 1980] [commencement date for speedy trial purposes of count of superseding indictment charging <mask>, which was not included in original charges, was same as for counts previously charged]; People v Ramkisson, 114 Misc 2d 535 [Sup *286Ct, NY County 1982] [indictment including crimes charged in felony complaint was "directly derived” from complaint even though it included other crimes].)


Insofar as issues c, d, e, and f are concerned, the plaintiffs’ abrupt withdrawal of the fraud, negligent misrepresentation, and breach of express warranty causes of action from class action consideration undermines, in whole or in part, their contention about commonality. After the Appellate Division’s CPLR 3211 order and after the plaintiffs’ withdrawals, the only causes of action remaining for class consideration are the first (failure to warn prior to 1969), the fifth (negligent and defective design), the sixth (strict products liability), the eighth, in part (breach of implied warranty of merchantability), the ninth, in part (breach of implied warranty of fitness for a particular purpose), and the derivative claims. The plaintiffs did not show that scienter and deception remain in this case as allegedly significant common issues after the withdrawal of their central fraud claim. Moreover, a <mask> must rest on an intentional tort (see, Cresser v American Tobacco Co., 174 Misc 2d 1; Portnoy v American Tobacco Co., 1997 WL 92040, 1997 NY Misc LEXIS 31 [Sup Ct, NY County, Feb. 19, 1997, Eerier, J.]; Lindsay v Lockwood, 163 Misc 2d 228), and the plaintiffs did not adequately show that a viable intentional tort remains in their case. At best for the plaintiffs, they have muddied the record concerning whether conspiracy remains in this case as a common issue, and, if it does not, then a further question arises concerning whether the nonmanufacturing defendants (the parent companies and trade organizations) may be held in.


Defendant McBoberts contends that this cause of action is defective on its face because it fails to allege that defendant McBoberts made any specific representations to plaintiffs Yackel, Castle, Bubino, Coles or Frank. However, the complaint *983does allege that the defendants were acting in <mask>, and a reading of paragraph Fifth of the bill of particulars herein dated November 14,1961 discloses that the “ defendants [including McRoberts] falsely and fraudulently represented to the stockholders of plaintiff corporation that the corporation was the owner of the lease rights on the Charleroi Mountain Club property”. Inasmuch as plaintiffs are stockholders of the plaintiff corporation, this objection to the pleading fails.


Given the dismissal of the underlying fraud claim, plaintiffs’ <mask> and aiding and abetting claims are also dismissed. (See Oster v Kirschner, 77 AD3d 51, 55 [1st Dept 2010]; Hoeffner v Orrick, Herrington & Sutcliffe LLP, 85 AD3d 457, 458 [1st Dept 2011] [“While a plaintiff may allege, in a claim of fraud or other tort, that parties conspired, the conspiracy to commit a fraud or tort is not, of itself, a cause of action”].)


Goldman’s reliance on Ryan v Hunton & Williams is similarly misplaced (Ryan v Hunton & Williams, 2000 WL 1375265, *10-11, 2000 US Dist LEXIS 13750, *29-30 [ED NY 2000]). There, plaintiffs asserted a claim for <mask> fraud against a bank for failure to shut down accounts being used in an alleged fraudulent scheme and for not informing plaintiffs of the suspected fraud. In dismissing the claim against the defendant bank for aiding and abetting fraud, the court stated that “[a]bsent a confidential or fidu*290ciary relationship between the plaintiff and the aider and abettor, the inaction of the latter does not constitute substantial assistance warranting aider and abettor liability.” (Ryan, 2000 WL 1375265, *10, 2000 US Dist LEXIS 13750, *29.) In contrast, plaintiffs’ claim for aiding and abetting breach of fiduciary duty against Goldman in no way resembles the claim for aiding and abetting fraud asserted against a bank for failure to disclose.


*1191. Section 1030 of the Penal Law is vague and indefinite and, therefore, is invalid; 2. The alleged acts did not occur “ in or while attending ” a public school or institution of learning; 3. The victims consented to the acts; and 4. The victims were accomplices as a matter of law and there was no corroboration of their testimony. The indictment accuses the defendants of the crime of 1 ‘ hazing ”, in violation of section 1030 of the Penal Law of the State of New York, committed as follows: “ The defendants, Robert LENTI, ROBERT PELLEGRINO, GAETANO ALISEO and PRANK GANNON, each <mask> the other and acting in concert, and accompanied by juveniles, in the County of Nassau, State of New York, on or about the 4th day of April, 1964, did wilfully and unlawfully engage in what is commonly called hazing, while attending an institution of learning in Union Free School District #11, Oceanside, County of Nassau, State of New York, to wit, the defendants, Robert lenti, Robert Pellegrino, gaetano aliseo and prank gannon, each aiding and abetting the other and acting in concert, and accompanied by juveniles, during an installation of pledges in an initiation known as “ Hell Night ”, for the purpose of inducting certain pledges into a fraternal organization, known as Omega Gamma Delta Fraternity, did wilfully, wrongfully and knowingly assault michael kalogris, DANIEL WILLIAM ALEXANDER, JOHN THOMAS BRENNAN, DAVID DENNIS and richard stewart by [sic] striking them about the body and face with clenched fists, open hands, forearms and feet.”


Contreras cannot escape this conclusion simply by alleging conspiracy or <mask>. It is settled that "a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a " 'garden variety' " tort or contract claim when in fact the claim is predicated on protected speech or conduct." (Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes, Inc. (2015) 235 Cal.App.4th 361, 368, 185 Cal.Rptr.3d 8 ; see Baral v. Schnitt, supra, 1 Cal.5th at p. 392, 205 Cal.Rptr.3d 475, 376 P.3d 604 ["the application of section 425.16 cannot reasonably turn on how the challenged pleading is organized"].) Conspiracy and aiding and abetting, the labels Contreras attaches to her claim, are no more than legal conclusions. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419, 57 Cal.Rptr.3d 156 [allegations that named and unnamed defendants "conspired to conceal their improper loss valuations" amounted to "bare legal conclusions"].) Such terms have "no talismanic significance[.]" (Berg & Berg, supra, 131 Cal.App.4th at p. 824, 32 Cal.Rptr.3d 325.) Here, Dowling himself is not alleged to have done anything "outside the scope of normal, routine legal services." (Cabral v. Martins, supra, 177 Cal.App.4th at p. 481, 99 Cal.Rptr.3d 394.) Contreras does not claim he personally took part in the alleged wrongful entries, and the Complaint alleges no facts showing how Dowling might have assisted his clients' wrongful conduct.9 Conclusory allegations of conspiracy *722or aiding and abetting do not deprive Dowling's actions of their protected status. (See Flores v. Emerich & Fike (E.D. Cal. 2006) 416 F.Supp.2d 885, 909 ["conclusory allegations" of conspiracy by attorneys "have no legal significance. It is not alleged that the [attorneys] independently converted the Flores' property, only that they conspired to do so. This is not a legally cognizable claim."].)


*687With proof that Aliuddin and Urtis knew “of the essential nature of the conspiratorial plan” (Rosenblatt, 554d at 39), there is enough to send the conspiracy case to a trial jury on the theory that the supply to defendant of such a dangerous and integral part of his murderous plan is, prima facie, circumstantial evidence of their agreement to the plan. (Gallishaw, 428d at 763.) As in Direct Sales, “[t]he step from knowledge to intent and agreement may be taken” (id., 319 US at 713). Supplying a gun in such circumstances is more than merely <mask> a conspiracy, which is a separate crime not charged in this indictment. (Direct Sales, 319 US at 709 [“one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy”]; United States v Ortega, 44d 505, 506 [7th Cir 1995, Posner, Ch. J.] [“while a conspirator is almost always also an aider and abettor, an aider and abettor is often not a conspirator” (citations omitted)].)


*842Here, Carter's conviction for first degree murder was not based solely on the theory of felony murder. The jury was instructed on separate theories of first degree murder-premeditated and deliberated murder and felony murder-and it was further instructed on theories of both direct liability and vicarious liability (<mask> the commission of a murder and conspiracy). There was substantial evidence supporting the trial court's finding that the murder was premeditated because Carter shot Brandon three times to avenge his cousin's death-including Carter's own statement that night that he "got the guy" who killed Aaron. The court reasonably could have concluded Carter's objective in attempting to rob the victim was independent of his objective in killing the victim, thereby justifying multiple punishments under section 654.


The judgment is reversed. The trial court's order on respondents' motion for summary judgment is reversed to the extent it granted summary adjudication of Applied's claims for breach of contract, conversion, and <mask> conversion; summary adjudication of the remaining claims is affirmed. The case is remanded for further proceedings consistent with this opinion. Each party shall bear its own costs on appeal.


however, that CALJIC No. 8.11, entitled “ ‘Malice Aforethought’ —Defined,” which the trial court gave to the jury, “is clearing natural and probable consequences theory including in the murder instruction [sic].” Counsel referred to the jurors’ questions about <mask> and the trial court’s supplemental instruction, arguing “the jury had questions and concerns about a non-killer and any liability especially in a case like this where at best [there] was only circumstantial evidence of any kind of intent as to Mr. Robbins.” Counsel concluded Robbins had made a prima facie case and “[a]ny issue of any exception is the subject of an OSC.” Counsel attached as exhibits to his reply Robbins I, the jury’s questions, portions of the reporter’s transcript where the court discussed the questions with counsel, some of the jury instructions (CALJIC Nos. 3.00, 3.01, 8.10, 8.11 8.20, 8.30, 8.31, 8.70, and 8.71),3 and portions of the reporter’s transcript of the prosecutor’s closing argument. The prosecutor talked about aiding and abetting, using the examples of a getaway driver in a bank robbery or someone who drives the shooter in a drive-by. The prosecutor never mentioned natural and probable consequences, nor did he suggest Robbins could be liable for any intended crime other than murder. On June 10, 2020, Robbins’s counsel filed a supplemental brief citing People v. Drayton (2020) 47 Cal.App.5th 965. Counsel reiterated his argument that the “Court must find a prima facie finding of eligibility and set for an OSC.”


About a month later, Zenovic filed a motion to compel arbitration in the San Diego action. He contended VBV's entire complaint was arbitrable because the allegations for each cause of action qualified as a "Construction Dispute" under the terms of the arbitration agreement, including VBV's causes of action for accounting, <mask> fraud and breach of fiduciary duty based on allegations of mismanagement of construction and billing practices, and violation of Penal Code section 496 based on allegations of theft of construction funds.


Defendants assert the evidence was insufficient to sustain the robbery convictions. They claim: (1) the victims did not have possession of the funds because the funds were in the ATM and were owned by the bank; (2) the funds were not in the immediate presence of the victims; and (3) there was insufficient force or fear. Defendant Mullins also claims: (4) the evidence of <mask> was insufficient, and (5) the evidence of conspiracy was insufficient. We conclude there was sufficient evidence to convict on each of the counts.


Specifically, the informations allege that on the various Sundays therein mentioned, the defendants, each <mask> the others, sold the following allegedly prohibited items: three sets of men’s underwear, a pair of boys’ shorts, two pairs of socks and a hammer. Many other articles, not *256authorized to be sold on a Sunday, were then and there displayed for sale.


2 For purposes of resolving defendant’s appeal, we need not address the People’s contention defendant could be convicted as a direct perpetrator of implied malice murder. contended defendant committed the crime of <mask> implied malice murder; defendant shared in the shooter’s culpable mental state that the shooter “was going to do an act that was inherently dangerous and act with conscious disregard for human life.” Defense counsel argued that a primary issue was who threw the gun. Defense counsel emphasized that Celica, Veronica, and a third witness all told police after the shooting that defendant did not throw the gun, but rather Guerrero either knocked the gun from defendant’s hand or grabbed it and threw it. Defense counsel emphasized Celica was the only witness to testify at trial that defendant threw the gun. However, her testimony contradicted what she had previously told a police detective in her native Spanish. Defense counsel argued that Celica’s testimony could not be credited and, even if it could, the prosecution still failed to prove conscious disregard and the subjective awareness that the gun would be used to kill someone. Defense counsel further asserted there was no evidence defendant was subjectively aware of the high probability of death. The trial court denied the petition, concluding defendant “does not satisfy” the requirement that he “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).) We discuss the trial court’s decision in greater detail, post. DISCUSSION I Senate Bill No. 1437 “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) “For purposes of Section 187, malice may be express or implied.” (§ 188, subd. (a).) Prior to the enactment of Senate Bill No. 1437, “the natural and probable consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248.)


Plaintiffs argue that JPMorgan’s knowing participation in a fiduciary breach should be inferred from the fact that “many of the transaction terms were illegal per se” (plaintiffs’ brief at 29). As discussed above, however, the deal protection devices were permissible under the circumstances and the Bear Stearns defendants did not breach their duties to the company’s shareholders. Absent a primary breach of fiduciary duty, <mask> liability cannot attach to JPMorgan’s conduct. The record reflects arm’s length, nonstop negotiations in which both sides were aggressively represented by teams of professional legal and financial advisors. Plaintiffs have not alleged, much less proven, that JP-Morgan wrongfully created conflicts on Bear Stearns’ board or conspired with any of its members.


We agree with the parties that the “independent fact finder” standard, as opposed to the “substantial evidence” standard, is the appropriate standard of review. (See People v. Garrison (Dec. 17, 2021, B308319) ___Cal.App.5th___ [2021 Cal.App. Lexis 1111] [the split of authority has been resolved by actions of both the Supreme Court and the Legislature; the trial court, acting as an independent fact finder, must determine, beyond a reasonable doubt, whether the defendant is guilty of murder under a valid theory]; People v. Ramirez (2021) 71 Cal.App.5th 970, 984 [the trial court must act as independent fact finder and determine whether the evidence establishes the petitioner would be guilty of murder under §§ 188 and 189 as amended and is thus ineligible for resentencing under § 1170.95, subd. (d)(3)].) We conclude that, in considering a section 1170.95 resentencing petition after issuing an order to show cause, the trial court is required to independently determine that it would convict the defendant on a theory that remains viable under sections 188 and 189 as amended, not merely that a reasonable jury could find the defendant guilty on such a theory. III Additional Background -- The Trial Court’s Order In its order, the trial court stated defendant was not eligible for section 1170.95 relief because “he does not satisfy” the third requirement of section 1170.95, that he “could not be convicted of first or second degree murder because of changes to Section 188 or 189 . . . .” (§ 1170.95, subd. (a)(3).) The court stated: “Defendant . . . cannot make this showing because his murder conviction still holds up under the current law.” (Italics added.) The trial court noted defendant’s jury had been instructed on two theories: direct <mask> and the natural and probable consequences doctrine. The court recounted the events leading up to and including the altercation, as well as the gang evidence. The court credited Celica’s testimony that defendant threw the gun to his companions. The court stated: “There was sufficient evidence to support the conclusion the person who picked up the firearm was . . . Jose . . . .” The shooter then shot the victim, killing him. The trial court also emphasized defendant’s close relationship with Jose and their shared Norteño gang affiliation.


The jury was instructed on three theories of murder as to counts 1, 2, and 3: direct liability as a perpetrator under CALCRIM No. 520,3 direct <mask> of murder under CALCRIM No. 401,4 and murder based on the natural and probable consequences of conspiracy to murder Alford under CALCRIM No. 417.5 The jury also was instructed under CALCRIM No. 402 that defendants could be found guilty of murder on counts 1 and 3 if those killings were the natural and probable consequences of aiding and abetting the murder of Alford.6 In addition, the jury *292was instructed under CALCRIM No. 521 that "A defendant is guilty of first degree murder if the People have *982proved that he acted willfully, deliberately, and with premeditation. A defendant acted willfully if he intended to kill. A defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. A defendant acted with premeditation if he decided to kill before completing the acts that caused death. [¶] ... [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder."


"[A] person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." ( People v . McCoy (2001) 25 Cal.4th 1111, 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) "[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ( People v . Beeman (1984) 35 Cal.3d 547, 561, 199 Cal.Rptr. 60, 674 P.2d 1318.) "Thus, proof of aider and abettor liability *814requires proof in three distinct areas: (a) the direct perpetrator's actus reus-a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea-knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus-conduct by the aider and abettor that in fact assists the achievement of the crime." ( People v . Perez (2005) 35 Cal.4th 1219, 1225, 29 Cal.Rptr.3d 423, 113 P.3d 100.) "[N]either presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish <mask> its commission. [Citations.] However, '[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " ( People v . Campbell (1994) 25 Cal.App.4th 402, 409, 30 Cal.Rptr.2d 525.)


Bach of the provisions of the Penal Law and the Nassau County Government Law referred to in each of the counts of the indictment relates to the misdeeds of public officers or employees. This defendant is not such a public officer or employee. Despite this, he may be indicted under these sections because in each count he is charged with <mask>, and if the charges are proven he is a principal under section 2 of the Penal Law. (People v. Mullens, 292 N. Y. 408, 412.)


In the case of People v. Brophy (49 Cal. App. 2d 15), the defendants submitted racing results to known book-makers by means of telephones. The defendant sent out information which *68included probable odds, names of jockeys, etc., and it was conceded that such information was a help to book-makers in that it assisted them in fixing odds and making payoffs. The court in finding that no crime was committed by the transmission of such information said (pp. 33-34): “ Respondent’s claim that the furnishing of racing news to bookmaking establishments by telephone constitutes an <mask> in a violation of section 337 a of the Penal Code is without merit. It is not the transmission by use of a telephone of information concerning the results or probable results of horse races that constitutes a violation of the quoted Penal Code section, but it is the use which persons may make of such information in the acceptance of bets or maintaining places for the reception of bets that constitutes a violation of the law. Neither the telephone company nor appellant in his capacity of a subscriber for telephone service was accused in the injunction suit of managing, operating or participating in any gambling place or enterprise maintained for the acceptance of wagers on horse races or other contests of skill between men or beasts; * * *.


The jury was presented with the legally correct theory that Anthony, Price and Campbell directly aided and abetted or conspired in Flowers's first degree murder of Charles. "Aiders and abettors may still be convicted of first degree premeditated murder based on direct <mask> principles. [Citation.] Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission." ( Chiu , supra , 59 Cal.4th at pp. 166-167, 172 Cal.Rptr.3d 438, 325 P.3d 972.) As for conspirators, one who conspires to commit a murder is guilty of first degree murder when a co-conspirator commits the murder. ( People v. Cortez (1998) 18 Cal.4th 1223, 1237, 77 Cal.Rptr.2d 733, 960 P.2d 537 ["all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder"].)


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


In September 2015, plaintiff filed a complaint against defendant, codefendant Hill, and their alleged companies for breach of contract, fraud, negligent misrepresentation, conspiracy, and <mask> fraud. Defendant moved to quash service of summons in November 2015. In an abundance of caution, plaintiff re-served the summons and complaint, thereby rendering the motion to quash moot. In January 2016, defendant demurred to the complaint, but later requested to take the demurrer hearing off-calendar. Concurrently with his request to take the demurrer hearing off-calendar, defendant filed a motion to strike the complaint under Code of Civil Procedure section 435.


Plaintiff claims discrimination against him based on his Indian national origin, his Muslim religion, and his age based on the New York City Human Rights Law and the New York State Human Rights Law (Administrative Code of City of NY § 8-107 et seq.; Executive Law §§ 291, 296 et seq.). Plaintiff also sues for intentional infliction of emotional distress, which defendant Wodzenski also moves to dismiss. Plaintiff claims that after he informed Wodzenski, his supervisor, that plaintiff had cancer, plaintiff was terminated after 32 years of employment. Previously, plaintiff had been the subject of a number of dismissals and reinstatements. Wodzenski is charged by plaintiff with <mask> the corporate defendants in their discriminatory acts.


under which defendant could still be convicted were as a direct aider and abettor of express or implied malice murder, and as a direct perpetrator of implied malice murder. 2 With regard to <mask> express or implied malice murder, the People asserted the evidence supported the conclusion Jose shot Guerrero and defendant had the intent that such lethal violence be used against Guerrero as demonstrated by the gang evidence and defendant’s actions before and after the shooting. The People asserted the evidence supported a finding that defendant and Jose acted with malice aforethought in assaulting Guerrero with a firearm “and that each was aware of the other’s malice.” The People continued: “At a minimum, [defendant] intended to, and in fact did, aid and abet Jose in committing an act, the natural consequence of which was dangerous to human life with conscious disregard for human life and thus is guilty of aiding and abetting implied malice murder.” Defendant countered that the People failed to prove malice. Specifically, he asserted the People failed to prove that he knew Jose would shoot Guerrero when he picked up the gun, that defendant “actually aided the murder,” that defendant intended to aid the murder, and that he acted with conscious disregard for human life. Defendant also addressed the issue of who threw the gun to Jose, emphasizing the conflicting evidence on the subject. Moreover, according to defendant, even if he threw the gun, nothing more than speculation supported the premise that he did so intending that Jose shoot and kill Guerrero. Defendant further asserted the People could not establish he would be guilty of implied malice murder because there was no evidence he “actually appreciated that death was a consequence of his action” or that he consciously disregarded that danger. At the hearing, the People asserted there were three grounds on which to deny defendant’s petition: (1) “direct perpetration”; (2) as a direct aider and abettor based on Celica’s testimony defendant threw the gun to Jose; and (3) aiding and abetting “while he was being held by the victim.” Relying on People v. Gentile (2020) 10 Cal.5th 830, the People


hearing under Penal Code section 1170.95, acts as an independent fact finder or reviews the record for substantial evidence. On April 14, 2021, the Supreme Court granted respondent’s petition. In October 2021, the Legislature passed Senate Bill 775 (2021–2022 Reg. Sess.) which, among other things, amended the language of Penal Code section 1170.95, subdivision (d)(3). (Stats. 2021, ch. 551, § 2.) On December 22, 2021, the Supreme Court transferred this case to us with directions to vacate our decision and reconsider the matter in light of the passage of Senate Bill 775. Having vacated our original decision and reconsidered the issues presented in light of the new legislation, we again reverse and remand with directions to the superior court to issue an order to show cause and conduct a new evidentiary hearing in accordance with Penal Code section 1170.95, subdivision (d)(3), as amended. DISCUSSION The trial court suggested two bases for denying defendant’s petition for resentencing: (1) the jury necessarily convicted defendant under a direct <mask> theory; and (2) there was sufficient evidence in the record supporting defendant’s conviction as a direct aider and abettor. The parties agree, as do we, that the first ground is unsupportable. In reaching its conclusion, the trial court relied on language in CALJIC No. 8.20 providing that “[i]f you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation . . . , it is murder of the first degree.” The court reasoned, in light of this instruction, the jury must have concluded defendant acted with the intent to kill when it convicted him of first degree murder.


The trial court granted summary judgment to respondents on all of Applied's causes of action. We conclude the court erred as to the breach of contract, conversion, and <mask> conversion causes of action, but the court properly granted summary judgment as to Applied's fraud-based causes of action (fraudulent concealment, aiding and abetting fraudulent concealment, and breach of fiduciary duty) on statute of limitations grounds.5


In the discussion with counsel that followed, the trial court treated the jury's question as two separate queries: one seeking guidance as to whether the jury could consider evidence of defendant's conduct after the shooting in determining guilt based on <mask>, and the other about the point at which the crime ends. After conferring with the parties, the trial court provided a written response to the jury's question, which omitted any guidance about when the commission of the crime came to an end: "Factors relevant to the determination of whether defendant is guilty of aiding and abetting include but are not limited to presence at the scene of the crime, companionship, and conduct before and after the offense." Later that day the jury reached its verdict convicting appellant of second degree murder and finding the gang and firearm allegations true.


“BY SIGNING THIS AGREEMENT YOU AND BEAR STEARNS AGREE, THAT CONTROVERSIES ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY ACTIVITY BETWEEN YOU AND BEAR STEARNS, . . . SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD ONLY AT THE FACILITIES OF, BEFORE AN ARBITRATION PANEL APPOINTED BY, AND PURSUANT TO THE RULES OF THE NEW YORK STOCK EXCHANGE, INC., OR THE NATIONAL ASSOCIATION FOR SECURITIES DEALERS, INC.” (Petition 11 3, quoting § 25 [a] of Customer Agreement, annexed as exhibit A thereto.) *609The underlying arbitration arises out of ICMC’s claims that petitioners committed common-law and securities fraud in connection with the hedge fund, and that Bear Stearns failed to process and revoked ICMC’s alleged irrevocable redemption of its investment in the hedge fund in October 2006 (see petition 1i 6, exhibit B annexed thereto). In the statement of claim, filed on July 25, 2008, ICMC sought recovery for breach of contract, negligence, promissory estoppel, fraud, breach of fiduciary duty, <mask> breach of fiduciary duty, and negligent misrepresentation. It sought, in addition to other damages, reasonable attorneys’ fees, and other costs and expenses (exhibit B to petition, statement of claim 1f 106). Petitioners filed a statement of answer in which they denied all claims and any liability, asserted affirmative defenses, and requested that ICMC be directed to pay costs, fees and expenses, including reasonable attorneys’ fees (exhibit C to petition, statement of answer at 24).


commission of the offense (§ 12022, subd. (a)(1)). The trial court sentenced defendant to 25 years to life for the murder, one year for a firearm enhancement, and two years for a probation violation. (Maldonado, supra, C041013 at p. 1.) Defendant appealed and this court affirmed the judgment. (Maldonado, supra, C041013 at p. 17.) In the opinion on direct appeal, this court noted that the jury was instructed on the natural and probable consequences doctrine for first degree murder.3 (Id. at pp. 9-10.) In June 2020, defendant filed a petition for resentencing under section 1170.95. In his declaration, defendant checked the boxes to indicate a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, and at trial he was convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine. Defendant also checked the box to indicate that he “could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code § § 188 and 189, effective January 1, 2019.” The prosecutor filed a response and motion to dismiss the petition and defendant’s appointed counsel filed an opposition to the motion to dismiss. On October 5, 2020, the trial court denied defendant’s petition. The trial court noted defendant had been convicted of first degree murder and the jury had been instructed on this charge under both direct <mask> as well as the natural and probable consequences doctrine, so defendant “could have been convicted under the natural and probable consequences doctrine.” However, after reviewing the summary of evidence in this court’s prior opinion, the trial court found that there was evidence defendant intended for Deponte to kill Garcia. “Thus, the court now concludes that as a


Alternatively, under both the NYSHRL and NYCHRL, an individual employee may be held liable for <mask> discriminatory conduct (Executive Law § 296 [6]; Administrative Code § 8-107 [6]; see Mitchell v TAM Equities, Inc., 27 AD3d 703, 707 [2d Dept 2006]; D’Amico v Commodities Exch., 235 AD2d 313, 315 [1st Dept 1997]; Peck v Sony Music Corp., 221 AD2d 157, 158 [1st Dept 1995]). In general, an individual defendant who actually participates in the conduct of an employer giving rise to the discrimination claim may be an aider and abettor, even when the individual lacks the authority to hire or fire the plaintiff. (See Feingold v New York, 366d 138, 158 [2d Cir 2004].) An aiding and abetting claim against an individual employee depends on employer liability, however, and, “[w]here no violation of the Human Rights Law by another party has been established, . . . individuals cannot be held liable ... for aiding and abetting their own violations of the Human Rights Law.” (Strauss v New York State Dept. of Educ., 26 AD3d 67, 73 [3d Dept 2005]; see Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d 886, 888 [2d Dept 2010]; Nicholson, 2011 WL 344101 at *3, 2011 US Dist LEXIS 11616 at *12; JG & PG ex rel. JGIII v Card, 2009 WL 2986640, *12, 2009 US Dist LEXIS 85372, *34 [SD NY 2009].)


murder.” (Torres, supra, C069510, italics added.) Defendant asserts: “If appellant could conceivably have been convicted of second degree murder as a direct accomplice of murder then the instructional error would have applied to both theories of liability.” However, the language quoted from this court’s opinion on defendant’s first appeal addressed only the contention he advanced on that appeal: “that the jury instructions were erroneous because they did not allow the jury to consider whether he might have been guilty of only second degree murder under the natural and probable consequence doctrine, even if the shooter was guilty of first degree murder.” (Torres, supra, C069510.) The jury was also instructed with CALCRIM No. 400 on the general principles of <mask> and CALCRIM No. 401 on direct aiding and abetting. This court was not asked to, and did not, make any determination as to the instructions in relation to direct aiding and abetting. The quoted language from this court’s prior opinion on defendant’s first appeal does not preclude a trial court finding defendant would be guilty of second degree murder on a direct aiding and abetting theory based on res judicata, the law of the case, or any other theory. In short, nothing about Jose’s original conviction, or this court’s prior opinion, establishes, as a matter of law, defendant “could not be convicted” of second degree murder under a direct aiding and abetting theory. (§ 1170.95, subd. (a)(3).) The denial of defendant’s petition is not precluded by double jeopardy or res judicata principles. DISPOSITION The order denying defendant’s petition is reversed. The case is remanded for the trial court to conduct a new hearing under section 1170.95, subdivision (d)(3).


While no witness confirmed that one of the two accomplices seen in the video surveillance footage was Guthrie, the video footage combined with the cell phone evidence showing Guthrie's involvement with Johnson (and to a lesser extent the testimony that Guthrie was a former boxer), amply supported the inference that Guthrie was one of Johnson's accomplices. (See People v. Campbell (1994) 25 Cal.App.4th 402, 409, 30 Cal.Rptr.2d 525 [" '[A]mong the factors which may be considered in making the determination of <mask> are: presence at the scene of the crime, companionship, and conduct before and after the offense.' "].) In sum, there was sufficient evidence to support the jury's finding that Guthrie knowingly and willingly participated in the murder of Canady.