Section 381 of the Penal Law * reads as follows: “ A person offending against any provision of any section of this chapter relating to <mask> and corruption, is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution.” This section has bearing on the compulsion of persons to testify, the use that may be made of their testimony, and the granting of immunity.


The necessity for a strict application of the constitutional provision, concerning local bills (Const., art. 3, sec. 16), was never greater than in the case before-us, in view of the abuses that might result, and have resulted from it. It is not pretended that the contract in suit was awarded to the lowest bidder. The manner in which it was procured leaves no doubt that <mask> was resorted to to obtain it.


Appellant also relies on United States v. Collins to support his argument that a pretrial survey of prospective jurors was permissible per se because it did not compromise the integrity of the jury selection process. In Collins , a federal judge was charged with <mask>, obstruction of justice, and conspiracy relating to allegations that a criminal defendant had paid the judge and his associate $100,000 in exchange for a lenient sentence. Prior to trial, the prosecution commissioned a telephone survey of 457 persons in the Eastern District of Louisiana, asking them various questions relating to the upcoming trial. The defendants found out about the survey and reported it to the district court, which in turn ordered the prosecution to cease all polling and to turn over the results of the poll to the court. After reviewing the polling material and the results collected, the court concluded that the integrity of the jury selection process had not been compromised.


[c]ommon sense dictates that when it is alleged and proved that the defendant offered or solicited a proscribed benefit, it is not necessary to further prove that the offer or solicitation resulted in a bilateral arrangement or unlawful contract with the other party. The offense of <mask> is complete when the offer or solicitation is made. ... ... [W]here it is alleged the accused offered or solicited a benefit as consideration for an official act, it is not necessary for the State to prove the party to whom the offer or solicitation was made accepted the proposition or even understood the unlawful nature of the proposition; proof that the offer or solicitation was made by the accused with the purpose to promote or facilitate the exchange of the benefit for the official action is all that is required. Martinez v. State , 696 S.W.2d 930, 932-33 (Tex. App.-Austin 1985, pet. ref'd). We agree. Common sense dictates that a bilateral agreement is not a required element to establish commercial bribery.6 Many criminal defendants are prosecuted for offering a bribe to a person who refuses to accept the bribe and instead becomes the State's witness. Similarly, many criminal defendants are prosecuted for soliciting a bribe from a person who refuses to pay the bribe and instead becomes the State's witness.


Accordingly, the first count of the indictment, charging the defendant with the crime of <mask> in the third degree, is reduced to an attempt to commit that crime, and the motion to dismiss that charge, as so reduced, is denied. Pursuant to CPL 210.20 (6), within 30 days of the entry of this order the People must file a reduced indictment charging the defendant with the crime of attempted bribery in the third degree. The second count of the indictment, charging the defendant with the crime of attempted unlawful Grand Jury disclosure, is dismissed.


The third category deals with crimes involving individual dishonesty or untrustworthiness, and virtually every court has uniformly agreed that these particular acts possess such a direct *817bearing of credibility as to outweigh any harm that their admission might bring to the defendant. Among the acts that would follow in this category are: “ Commission of perjury * * * or acts of individual dishonesty, or untrustworthiness (e.g., offenses involving theft or fraud, <mask>, or acts of deceit, cheating, breach of trust). ” (People v. Sandoval, supra, p. 377.)


. In Moll v United States Life Tit. Ins. Co. (710 F Supp 476, 481, n 3 [SD NY 1989]), a civil RICO action, where the plaintiff real estate purchasers’ "sole allegation of economic harm is that they did not receive the title insurance at a lower fee”, Judge Leisure held that New York’s commercial <mask> statute, as a matter of law, cannot be violated by a kickback paid to purchase such insurance, because the premium was nonnegotiable. While it may be that for Federal pleading purposes the complaint is deficient absent further allegations (compare, Merrill Lynch, Pierce, Fenner & Smith v Young, 1994 WL 88129 [SD NY, Mar. 15, 1994, Haight, J.]), I do not agree, that as a *820matter of law, there cannot be economic harm to an employer whose employee accepts kickbacks when a purchase price is fixed.


In December of 1973, an indictment was found by a Grand Jury in the United States court charging petitioners, amongst others, with <mask> and conspiracy in connection with harness racing. Their licenses were immediately suspended by respondents Racing ¡Board, and petitioners applied for a hearing in accordance with applicable rules and statutes. On February 6, 1974, a hearing was held at which testimony was taken which resulted in a finding by the hearing officer favorable to petitioners, with a recommendation for full reinstatement of their licenses. On February 22, 1974, the Racing Board ordered the hearings to be reopened for the taking of further testimony bearing ion the propriety of continuing the suspensions pending the outcome of the indictment.


“court may for good cause shown * * * issue a protective order for a stated period regulating disclosure of the business or residential address of any prospective or sworn juror to any person or persons, other than to counsel for either party. Such good cause shall exist where the court determines that there is a likelihood of <mask>, jury tampering or of physical injury or harassment of the juror.”


Zarate contends the State failed to produce any evidence of an agreement to accept or an acceptance of $500.00 cash from Daisy Rich and Harry Rich. Zarate contends the variance is material because he did not have notice that the State intended to prove that he committed <mask> by receiving money from Rachel Elizondo; more importantly, Zarate avers he could potentially be subject to prosecution again for the crime that was actually proved at trial. Alternatively, Zarate contends the State only introduced evidence that Zarate agreed to accept $500.00 in cash to reduce Daisy Rich's bond, and not the bond for Harry Rich.


Thus, as with <mask>, the crime of bribe receiving is complete upon the solicitation and agreement; if there is an “attempt” crime, it is when there is a solicitation of a bribe without an agreement that the public servant’s action will be influenced. Where there is an apparent agreement, the defendant’s state of mind being controlling, it is immaterial whether the benefit is conferred. As the Second Department held in People v Souvenir (209 AD2d 455 [2d Dept 1994]), the solicitation of a bribe is itself an attempt; thus, if there is an agreement, the fact that the bribe was never paid does not entitle a defendant to a charge down to the attempted crime. It is only in the Sanoguet situation, where there is no agreement, that there can be an attempt to commit the crimes of bribery or bribe receiving.


Criminal defendants have a constitutional right to trial by unbiased, impartial jurors. ( U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 16 ; Irvin v. Dowd (1961) 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751, superseded on other grounds by statute; People v. Nesler (1997) 16 Cal.4th 561, 578, 66 Cal.Rptr.2d 454, 941 P.2d 87 ( Nesler ).) An impartial jury is one in which no juror has been improperly influenced, and every juror is capable and willing to decide the case based solely on the evidence. ( In re Hamilton (1999) 20 Cal.4th 273, 294, 84 Cal.Rptr.2d 403, 975 P.2d 600 ( Hamilton ).) "Juror bias does not require that a juror bear animosity towards the defendant. Rather, juror bias exists if there is a substantial likelihood that a juror's verdict was based on an improper outside influence, rather than on the evidence and instructions presented at trial, and the nature of the influence was detrimental to the defendant." ( People v. Cissna (2010) 182 Cal.App.4th 1105, 1116, 106 Cal.Rptr.3d 54.) "A sitting juror's involuntary exposure to events outside the *213trial evidence ... may require ... examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by <mask> or intimidation." ( Hamilton, supra, 20 Cal.4th at pp. 294-295, 84 Cal.Rptr.2d 403, 975 P.2d 600, 20 Cal.4th 1083A at pp. 294-295.) "Because a defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced." ( People v. Pierce (1979) 24 Cal.3d 199, 208, 155 Cal.Rptr. 657, 595 P.2d 91.)


Although not controlling, the definitions of lexicographers may furnish guidance in determining the sense with which a word is used in a statute. (McKinney’s Cons Laws of NY, Book 1, Statutes § 234.) "Corrupt” has been defined in one respected dictionary as: "1. guilty of dishonest practices, as <mask>; *852lacking integrity; crooked * * *. -Syn. 1. false, untrustworthy. corrupt, dishonest, venal apply to one, esp. in public office, who acts on mercenary motives, without regard to honor, right, or justice.” (Random House Dictionary of the English Language [unabridged 2d ed 1987].)


*25In Kremer v. Kremer (51 N. Y. S. 2d 394, affd. without opinion 269 App. Div. 827) Mr. Justice Cohalax makes it abundantly clear that where a defense such as the defendants Gold contend for in this case is relied upon, it is necessary for the defendants to prove that the alleged <mask> or illegality practiced upon the General Motors Corporation has actually been consummated. There was no such proof in this case in any way. Consequently, under this doctrine an express charge to the jury might have been improper for there was no evidence of consummation of a bribe to influence the employee of General Motors.


The court does not consider the term "particular” superfluous. It has been variously defined as meaning "individual; specific; local * * * partial in extent * * * not universal” (Black’s Law Dictionary [4th ed]), "apart from others; special; limited; specific” (67 CJS, p 881). The drafters of the paragraph took care in using the term to circumscribe jurisdiction over offenses committed wholly out-of-State, which they recognized as "somewhat more delicate and controversial than the other categories. The kinds of offenses contemplated [by the *234paragraph] are exemplified by <mask> and perjury, the 'effects’ of which are confined to corruption of New York’s governmental and judicial processes” (Staff Comment to Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed New York Criminal Procedure Law, p 41 [1967]).


"This court is empowered by section 36 of the Public Officers Law to remove a public official for what amounts to intentional wrongdoing, moral turpitude, or a violation of a public trust” (Matter of Pisciotta, 41 AD2d 949, 950). The intent of the law is to bestow on the courts discretion to draw a line between an actual intentional breach and mere oversight. Thus, certain administrative oversights and municipal accounting deficiencies by the Mayor of a village, though clearly technical violations of village law, were found attributable to the Mayor’s inexperience and did not constitute grounds for removal. (Matter of Pisciotta, supra.) Had the deficiencies continued unabated, such continuation could be found to constitute an intentional disregard of duty. Where a town supervisor willfully refused to furnish a monthly report pursuant to former section 119 of the Town Law (renum *594§ 125), he could be removed from office. (13 Opns St Comp, 1957, p 250.) Larceny of public funds constitutes grounds for removal (Matter of Abare v Hatch, 21 AD2d 84) as does corrupt bargaining for appointment (48 NY Jur, Public Officers and Employees, § 232), and <mask> (48 NY Jur, Public Officers and Employees, § 233). Even continued incapacitation of a councilman due to sickness, with the consequent inability to perform the duties of his office might constitute maladministration (17 Opns St Comp, 1961, p 448). Gross nonfeasance and neglect of duties often constitute negligence. (23 Opns St Comp, 1967, p 902). Whether the acts of a supervisor are sufficient grounds for removal from office is a question for the court to determine. (48 NY Jur, Public Officers and Employees, § 230, 4 Opns St Comp, 1948, p 57.)


These subpoenas were issued by John Harlan Amen, Assistant Attorney-General of the State of New York. The petitioners assert that the Assistant Attorney-General is conducting the present proceeding before the grand jury “ for the sole purpose of finding an indictment against the petitioner John J. Halleran accusing him of the crime of <mask> in violation of the Penal Law of the State of New York * * * or in connection with a charge against said petitioner thereon of -misconduct as a public official of the Borough of Queens by way of a presentment or report to be handed up to-this Court and filed with the Department of the President of the Borough of Queens as the basis of a proceeding *945to remove said petitioner John J. Halleran from said office of Commissioner of Borough Works, and in attempt to deprive hito of his pension rights under said New York City Employees Retirement System."


True indeed it is that money was given by Paramount, or Keough, to a duly appointed representative of a labor organization with intent to induce him not to cause a strike by employees of Paramount and of its subsidiaries, and in that sense the money was so given with intent to influence that duly appointed representative in respect to his acts. But the essence of <mask> is the voluntary giving of something of value to influence the performance of official duty (2 Bishop, Criminal Law [9th ed., 1923] § 85; Clark & Marshall, Crimes [4th ed., 1940] § 434; 9 C. J., Bribery, p. 402; 11 C. J. S., Bribery, § 1, pp. 840-841) and here the giving of the money was not voluntary and it was not given to influence the performance of official duty. There is not the slightest evidence that this duly appointed representative of a labor organization was or even pretended to be under any legal duty to cause a strike. He did not ask for pay *1004to influence him in the performance of any duty, real or pretended. He simply threatened to do unlawful injury to Paramount, and other similar companies, by calling a strike or strikes he was under no duty to call, and the only part his position as a representative of a labor organization played in the matter was that it constituted such a source of power as to give meaning to his threat and thereby induce consent to the giving of the money he demanded. In short, he was not the acceptor of a bribe but an extortioner (Penal Law, §§ 850, 851; People v. Feld, 262 App. Div. 909).


The necessity for a strict application of the constitutional provision, concerning local bills (Const., art. 3, sec. 16), was never greater than in the case before-us, in view of the abuses that might result, and have resulted from it. It is not pretended that the contract in suit was awarded to the lowest bidder. The manner in which it was procured leaves no doubt that <mask> was resorted to to obtain it.


But more significantly, as is pointed out in present counsel’s argument to this court, never before has there been an instance where the Commission has denied a trade waste license without a finding or even an allegation which included one or more of the following: (1) being a member of organized crime, (2) racketeering, (3) a principal convicted of a crime, (4) association with organized crime figures, (5) board member of a criminal cartel, (6) business with organized crime, (7) nondisclosure of a principal, (8) operating as an unlicensed hauler, (9) applicant gave false testimony, (10) applicant engaged in predatory pricing and efforts to prevent independent companies from entering the New York City market, (11) <mask> of public officials and/or police officers, (12) business records falsified to conceal crime, (13) participation in property rights grievances, (14) failure to disclose crime to the Commission, (15) refusal to accept monitor and/or pay monitor fees, or (16) extensive illegal dumping. To support his argument, counsel obtained all of these decisions via a request under the Freedom of Information Law and included them as exhibits to his papers. He urges that the prior decisions prove that the instant denial by the Commission was at sharp variance with its 10 years of decision making.


Finally, in the first count of the People v Mercorella indictment, the alleged agreement to resign is made the basis for a charge against Mr. Mercorella of bribe receiving in the second degree. The theory of this count is that the resignation involved an "exercise of discretion as a public servant” and that Mr. Mercorella was bribed to resign at a particular time by the offer of a nomination to the Civil Court. The single-count indictment against Mr. Cunningham charging him with <mask> in the second degree involves precisely the same theory in a different form.


However, the single act of using a telephone to promote <mask> and extortion was held to provide no basis for a conviction under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) which requires two separate predicate acts, even though the act encompassed two different criminal offenses (United States v Walgren, 885d 1417; 18 USC § 1961 et seq.). The Walgren decision was consistent with the holdings in other Federal RICO cases which determined the number of predicate acts charged (see, United States v Kragness, 830d 842; Polycast Technology Corp. v UniRoyal, Inc., 728 F Supp 926).


Defendant also appeals from a judgment convicting him, after a jury trial, of two counts of <mask> in the first degree and one count each of conspiracy in the fourth degree and forgery in the second degree. There is no merit to his contention that statements made in the absence of counsel and while in custody on the drug charges should have been suppressed. A defendant’s right to counsel is not violated where, as here, defendant initiates a bribe offer in counsel’s absence and defendant responds to further inquiry and investigation concerning that bribe offer (see, People v Middletown, 54 NY2d 474; cf., People v Bell, 73 NY2d 153).


It is the position of respondent that the withholding of the payments is justified by reason of the fact that the District Attorney of New York County has officially advised the Mayor of the city of the refusal of Vincent B. Turecamo, vice-president of the petitioner corporation herein, to sign a waiver of immunity when called before the Grand Jury of New York County pursuant to its subpoena. Respondent contends that the Grand Jury is investigating possible collusion in submitting bids and obtaining awards of painting contracts with various governmental agencies, including the Transit Authority of the City of New York, and possible collusion in obtaining payments thereof by <mask> of inspectors and other employees of such agencies. Moreover, under section 103-b of the General Municipal Law it is provided: ‘ ‘ Any person who, when called before a grand jury to testify concerning any transaction or contract had with the state, any political subdivision thereof, a public authority, or with a public department, agency or official of the state or of any political subdivision thereof or of a public authority, refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract, and any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any municipal corporation or fire district, or with any public department, agency or official thereof, for goods, work or services, for a period of five years after such refusal or until a disqualification shall be removed pursuant to the provisions of section one hundred three-c of this article.”


Moore Freight terminated Mr. Mize’s employment, purportedly for cause, on November 7, 2019, slightly less than two years into Mr. Mize’s five-year term under the Employment Agreement. His termination followed an internal investigation into what Moore Freight terms a “<mask> scheme,” consisting of “cash payments, meals, personal items, used cars, and vacation packages” purportedly provided by Mr. Mize to “a key employee” of one of Moore Freight’s customers (“Customer”).2 Moore Freight had retained outside counsel, Vinson & Elkins, to conduct the internal investigation. Vinson & Elkins is not representing Moore Freight in the instant action.


The next lower felony classification [Class B] which carries a discretionary maximum of 25 years and no mandatory mini*741mum (Penal Law, § 70.00) embraces arson in the second degree [causing fire in occupied building] (Penal Law, § 150.15); <mask> in the first degree (Penal Law, § 200.04); bribe receiving in the first degree (Penal Law, § 200.12); burglary in the first degree (Penal Law, § 140.30); conspiracy in the first degree (Penal Law, § 105.15); criminal mischief in the first degree (Penal Law, § 145.12); kidnapping in the second degree (Penal Law, § 135.20); manslaughter in the first degree (Penal Law, § 125.20); rape in the first degree (Penal Law, § 130.35); robbery in the first degree (Penal Law, § 160.15); sodomy in the first degree (Penal Law, § 130.50); and possession of explosives with intent to use unlawfully against the person or property of another (Penal Law, § 265.05, subd. 7).


Not disputing the possibility of another candidate, the District Attorney nevertheless argues against dismissal by drawing the analogy to certain case law pertaining to the <mask> offenses which holds those crimes to be complete upon the bribe receiver’s promise to act, even though the contemplated result is beyond his authority to accomplish (citing People v Chapman, 13 NY2d 97, People v Jackson, 191 NY 293 and People v Mitchell, 40 AD2d 117).


Further, the July 2015 Designation provides an appropriate method for a preliminary assessment of whether superseder is *675excluded under EO 147 because no significant question exists as to whether the deceased was armed at the time of their death. EO 147 confers the responsibility for this determination upon the AG, which necessarily involves mixed questions of law and fact. Indeed, interpreting EO 147 to require that the district attorney make that initial determination would undermine the very concern that prompted supersession. (See People v Weiner, 63 AD2d 722 [2d Dept 1978] [<mask> of police officers was involved placing the case under state special prosecutor’s jurisdiction and requiring the district attorney to obtain the former’s authorization before presenting the case to a grand jury].) Accordingly, the court finds that the July 2015 Designation permitting the AG, as Special Prosecutor, to require a district attorney to conduct some investigative activities and refrain from others is consistent with EO 147’s legal mandate. (Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14, 18 [1980] [a governor’s authority and that of the special prosecutor designated by him extend only to those matters set forth in the Governor’s order] .)


While the court agrees with the People, citing People v Lugo *99(93 Misc 2d 195, 199), that "the personnel records of a police officer should not be examined by a Magistrate, prosecutor or defense counsel each time an arrest is made”, in a situation such as the instant, where the statutes pertaining to <mask> of a public servant places the police in a pivotal position of being a necessary party to the alleged crimes, said records might very well bear some relevance and materiality in the prosecution of these crimes. (See, Penal Law §§ 200.00, 10.00 [15].)


Because the People failed to accord defendant discovery of *978certain surveillance photographs (see, CPL 240.20 [1] [d]), the trial court refused to admit those photographs into evidence. The court also should have granted defendant’s request to strike testimony concerning those photographs. Proof of defendant’s guilt was overwhelming, however, and there is no significant probability that, absent that error, defendant would have been acquitted. Thus, that error is harmless (see, People v Crimmins, 36 NY2d 230, 242). We have reviewed defendant’s remaining contention and conclude that it is without merit. (Appeal from Judgment of Erie County Court, D’Amico, J.—<mask>, 1st Degree.) Present—Denman, P. J., Green, Balio, Wesley and Callahan, JJ.


The Brasch court turned for authority for this reasoning to Jaehne (103 N. Y. 182, supra), a <mask> case, for which crime *371there is no tangible corpus delicti and indeed on the Jaéhne facts no corpus delicti at all. As noted (supra), Jaehne used “ the corroboration of the truth of the confession test” rather than the “corpus delicti” test. The Brasch court quoted Jaehne (p. 61): “The words of the statute, ‘ additional proof that the crime charged has been committed,’ seem to imply that the confession is to be treated as evidence of the corpus delicti * * * in other words, as competent proof of the body of the crime, though insufficient without corroboration to warrant a conviction.”


engaged in the exercise of their official duties in public places. [Citations.]” (Askins v. United States Dep’t of Homeland Security (9th Cir. 2018) 899 F.3d 1035, 1044.) 16 Moreover, a person may record a confidential communication without violating section 632 when the recording is done “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication” of certain enumerated crimes, such as extortion, kidnapping, <mask>, and any felony involving violence against the person, including human trafficking and domestic violence. (§ 633.5.)


“court may for good cause shown * * * issue a protective order for a stated period regulating disclosure of the business or residential address of any prospective or sworn juror to any person or persons, other than to counsel for either party. Such good cause shall exist where the court determines that there is a likelihood of <mask>, jury tampering or of physical injury or harassment of the juror.”


During the course of these simultaneous but independently conducted investigations each of these defendants was subpoenaed to appear before both the Federal and State Grand Juries. In each they indicated an intention to refuse to testify or otherwise co-operate with the authorities on the grounds of their constitutional privileges against self incrimination. They were thereupon excused by the State authorities and did not appear before the County Grand Jury. The Federal authorities elected to compel their testimony, however, and each defendant was granted immunity from prosecution pursuant to section 2514 of title 18 of the United States Code. Upon being thus immunized from prosecution and compelled to testify by order of the local United States District 'Court, each of these defendants freely informed the Federal Grand Jury as to their knowledge of and joint participation in the <mask> of certain members of the County Legislature.


The court does not consider the term "particular” superfluous. It has been variously defined as meaning "individual; specific; local * * * partial in extent * * * not universal” (Black’s Law Dictionary [4th ed]), "apart from others; special; limited; specific” (67 CJS, p 881). The drafters of the paragraph took care in using the term to circumscribe jurisdiction over offenses committed wholly out-of-State, which they recognized as "somewhat more delicate and controversial than the other categories. The kinds of offenses contemplated [by the *234paragraph] are exemplified by <mask> and perjury, the 'effects’ of which are confined to corruption of New York’s governmental and judicial processes” (Staff Comment to Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed New York Criminal Procedure Law, p 41 [1967]).


In a decision with respect to indictment No. 3488/13 dated May 1, 2014, the court found: (1) the evidence presented to the *581grand jury with respect to causation was legally sufficient; (2) the prosecution was not barred on double jeopardy grounds; (3) defendant would be given credit for the almost 10 years that he served on his sentence on the attempted murder charge if he is convicted on the pending murder charge; and (4) that defendant’s constitutional right to a speedy trial was not violated (People v Carromero, 43 Misc 3d 1218[A], 2014 NY Slip Op 50714[U] [2014]). Additionally, relying upon People v Latham (90 NY2d 795, 799 [1997]), the court denied defendant’s motion to preclude the use of his prior guilty plea at a trial on the murder charge. (Id.) This latter ruling was premised in part on the fact that defendant had not yet moved to withdraw or set aside his plea to the attempted murder charge. In the intervening year between the court’s decision and the present, based upon a conflict of interest raised by defendant’s counsel, the court assigned new counsel for defendant. That counsel has now filed a motion, pursuant to CPL 440.10 (1) (h), seeking to vacate defendant’s 1986 plea and conviction to attempted murder and <mask>, which, if granted, would preclude the use at defendant’s murder trial of the factual admissions made by defendant during the course of his 1986 plea allocution. (See People v Moore, 66 NY2d 1028, 1030 [1985] [a guilty plea once withdrawn or vacated is out of the case forever for all purposes, including the use of the contents of the plea allocution on the People’s direct case or for impeachment purposes should defendant testify at trial].)2 For the following reasons, defendant’s motion is denied.


The second count is in the words following : “ While corruption was thus diffusing itself through the veins and arteries of the political body, the republican party, relying implicitly on the fidelity of their representatives, were unapprehensive, after the decisions of the legislature, and after these decisions had been confirmed by a warmly contested election ; foreign invasion was not more distant from their thoughts, than the incorporation of the hostile bank. Almost every republican, who was originally a stockholder, has sold out; none but the bribers and the bribed contemplated the incorporation (meaning that the said plaintiff, and others, had been guilty of <mask> and corruption, in obtaining the ihcorporation of the said bank.) The only remaining *438question is, whether this count be good; and this will depend on the relevancy of the innuendo.


Since this court cannot legislate in the guise of interpreting a statute, nor extend its scope to include acts not encompassed in its language, I must grant the motion to dismiss the indictment since I conclude that Cilento’s acts were those of a trustee, and not as a labor representative. The conspiracy count must fall, too, since it is based upon the same acts alleged in the <mask> counts. Submit order.


The statutory economic harm requirement was added in 1983 when first degree commercial <mask> was raised to a class E felony, although the term economic harm was not defined in either the statute and/or in the legislative history. Indeed, at the time of the amendments, Attorney-General Robert Abrams, who considered the bill to amend the commercial bribery statutes "part of [his] legislative program,” and Senator James J. Lack, the Senate sponsor of the amendment, both thought that by adding the concept of economic harm, they were creating an affirmative defense. The Attorney-General wrote that *817"[l]ack of economic harm to the employer or principal is an affirmative defense to both commercial bribery and commercial bribe receiving in the first degrees.” (Attorney-General’s Legislative Program, at 1, Bill Jacket, L 1983, ch 577.) During the Senate debate on the bill, Senator Gold asked Senator Lack, "[c]an you tell me the philosophy behind creating an affirmative defense in a bribery situation? Is it based upon economic harm? How does that all get determined * * * Am I to understand that if there is a situation of commercial bribery, but it’s a bribery between two competitive interests who may be at the same price and one interest decides that, in order to get the contract, they will make a commercial bribe, that since the employer may not suffer economically since it’s between competing interests at the same price, that we are creating an affirmative defense?” To which Senator Lack replied, "that is correct. If it did not cause economic harm, it is an affirmative defense in a commercial bribery situation.” (Senate debate transcripts, at 9759-9760.)


The amended complaint alleges that on September 29, 2010, when the company admitted that illegal tactics were utilized to obtain these lucrative contracts, FalconStor’s chair, president and chief executive officer (Mr. Huai) resigned his positions and the board announced that it had created an internal investigative committee to review certain practices. Thereafter, according to plaintiffs, the company’s stock price fell over 22%. FalconStor’s director of regional sales, defendant Lin, as well as a JP Morgan employee, Ted Zahner, pleaded guilty to violations of the Travel Act and Lin also pleaded guilty to extortion, in which Lin testified that he extorted Mr. Huai due to Huai’s involvement in the <mask> scheme (compl ¶ 15).


The defendant herein was indicted on June 25, 1975 and charged with burglary in the third degree, <mask> in the second degree, possession of burglar’s tools, and criminally possessing a hypodermic instrument. A review of the Grand Jury minutes shows no difficulty with the burglary and possession crimes but presents a unique question regarding the bribery charge; namely, does an offer to assist the police constitute bribery?


To be sure, “[i]n appropriate instances, evidence of uncharged crimes may be allowable as background or narrative because juries might ‘wander helpless’ trying to sort out ambiguous but material facts” (id., quoting People v Green, 35 NY2d 437, 441 [1974]; see People v Gleason, 285 App Div 278, 281 [1954]). Here, however, Gibson’s murder constituted an entirely separate event that occurred after the charged crimes were allegedly completed. Proof of Gibson’s murder was not so interwoven with “the evidence on which the guilt or innocence of the defendant [would] be determined” that the jury required knowledge of the murder to make sense of the material facts of the tampering and <mask> charges (People v Gleason, 285 App Div at 281; see People v Stanard, 32 NY2d 143, 146-147 [1973]). Indeed, when proof of the charged crime may be amply understood without resort to evidence of an uncharged crime, the Court of Appeals has rejected similar “completing the narrative” contentions as a matter of law, even in circumstances where the uncharged crimes were actually committed contemporaneously with the charged crimes (see People v Resek, 3 NY3d at 389; People v Cook, 42 NY2d at 208; see also People v Foster, 295 AD2d at 112-113).


In United States v Brewster (408 US 501 [1972]) the Supreme Court rejected the claim of a former United States Senator that he was immune from prosecution for soliciting and accepting bribes in the performance of his official Senate duties. The court noted that "[t]he sweeping claims of appellee would render [legislators] virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office” (408 US, supra, at 520). The court looked to the history and purpose of the clause which is not intended to confer blanket immunity from criminal prosecution on the class of legislators, but to protect the integrity , of the legislative process. Unlike the English Parliaments whose struggle against executive dominance gave rise to the clause, our Legislatures are coordinate branches of government and our clause "designed to preserve legislative independence, not supremacy” (supra, at 508). Therefore the court concluded that while the executive branch could not maintain a conspiracy prosecution upon evidence of the text of a speech given in Congress, nor the courts inquire into the Congressman’s motivation for the speech (United States v Johnson, 383 US 169 [1966]), it could maintain a <mask> prosecution which required nothing more than evidence of a promise to perform a legislative act. (United States v Brewster, 408 US, supra, at 526-527.) The court observed that "[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act” (supra, at 526). "[A] prosecution that, though founded on a criminal statute of general application, 'does not draw in question the legislative acts of the defendant member * * * or his motives for performing them.’ [United States v Johnson, supra, at 185]” (supra, at 510) is not at odds with the Speech or Debate Clause.


The duplication process occurs in almost all the multiple areas of penal legislation. Thus, the offender who commits the highest degree of any given crime thereby automatically commits the lowest degree as well, to say nothing of other *987additional related crimes in separate areas of the law, e.g., burglary, trespass, <mask>, unlawful gratuities, arson, criminal mischief, resisting arrest, obstructing governmental administration, rape, assault, etc. So pervasive is this duplication that the Legislature itself, recognizing and thereby confirming its own repetitions, has expressly afforded constitutional protection to defendants by way of barring duplicate punishments for the same act, and delineating specific instructions for the withdrawal of duplicative counts from a jury’s consideration. (Penal Law, § 70.25, subd 2; CPL 300.30, 300.40, 300.50.) It is in fact probable that in most meter-tampering situations the misdemeanor theft of services will constitute as to larceny a lesser included offense. This will depend on the factual situation in each case — for the application of the lesser included offense definition in CPL 1.20 (subd 37) must be handled on a case to case basis. (People v Johnson, 39 NY2d 364.) If this proves to be the situation, the Trial Judge is commanded, under the sections just cited, to protect the defendant by eliminating submission of legislatively defined "concurrent counts” in an indictment. But this is hardly a command to dismiss any such counts in advance of trial. The validity of an indictment is not affected by duplicative counts —the only kind of duplication which is prohibited is that which occurs within one count itself, which is to say each single count of an indictment "may charge one offense only.” (CPL 200.30.) (Parenthetically, it must be added that the theft of services provision in our law embraces a good deal more than the supply of electricity. It covers such items as restaurant, hotel, railroad, subway, and bus services, etc., with the result that in many instances the larceny statute may not apply, as where only a service, as opposed to a commodity, is involved. But where, as here, there is both a service and an actual commodity, then both the larceny and theft of services are applicable.)


The indictment describes the criminal enterprise as the "Post Circulation Crew” (hereinafter identified as the Crew), which allegedly existed for the purpose of controlling the circulation department of the New York Post by means of extortion, coercion, the falsification of business records, larceny, <mask> and other crimes for financial gain. The evidence before the Grand Jury established that the Bonnano crime organization employed the structure of the Post’s delivery department to conduct a variety of unlawful schemes. The Crew included the superintendent of delivery of the Post, Robert Perrino, who is also an associate of the Bonnano crime organization. An eavesdropping device, installed inside Perrino’s office at the Post, intercepted conversations which revealed the hierarchy within the criminal enterprise. Tapes show that Perrino received instructions from Salvatore Vitale, an unindicted coconspirator and the acting boss of the Bonnano crime organization. Perrino remitted portions of the proceeds of the Crew’s illicit activities to Vitale. Perrino conducted various criminal schemes on the premises of the Post, using his position as superintendent of delivery to fur*12ther these criminal schemes. Among the schemes was usury, which Perrino conducted in part by his control over checks issued to men who worked under him and who were the victims of his usury. The evidence also showed that the defendant John Vispisiano, the business agent at the Post for the News and Mail Deliverer’s Union (NMDU), in concert with Perrino, accepted payment to influence his discretion in regard to the enforcement of union rules covering Post drivers. Additionally, Vispisiano and Perrino engaged in a larcenous scheme to cause the Post to repurchase as unsold newsstand newspapers (known in the industry as "returns”), papers distributed free as samples for home delivery. Perrino oversaw this and another larcenous returns scheme operated by Perrino with one Joe Torre through the corporate defendant, Citiwide News. Perrino used Post drivers to carry out these larcenous schemes by funneling nonredeemable papers back to the Post as legitimate "returns”. Salvatore Vitale shared in the proceeds of these larcenies. Perrino also created and operated a payroll scam which involved placement on the Post payroll of a nonexistent person using the Social Security number of a deceased member of the Bonnano organization. In addition, Bonnano member Richard Cantarella was paid on the Post payroll for work he did not perform.


The allegations as pleaded by the plaintiffs reveal defendants’ concerted effort to assert by speech and publication their views against the potential purchase of the Complex by a white purchaser, although these verbal and written statements can be characterized as unpleasant sharp attacks concerning race (cf., Brandenburg v Ohio, 395 US 444), defendants have not asserted violence, threats, physical intimidation, libel, slander, fighting words, perjury, fraud, <mask> or any misrepresentation of law or facts (Gertz v Robert Welch, Inc., 418 US 323; California Transp. v Trucking Unlimited, 404 US 508; Brandenburg v Ohio, supra; Cox v Louisiana, 379 US 559, reh denied 380 US 926; Roth v United States, 354 US 476, reh denied 355 US 852; Chaplinsky v New Hampshire, 315 US 568). Speech may not be restricted because of its content (People ex rel. Arcara v Cloud Books, 101 AD2d 163, lv *309granted 103 AD2d 1049, mod 65 NY2d 324, cert granted 474 US 978, revd 478 US 697, on remand 68 NY2d 553).


It is argued that "[u]nder the plain language of the felony <mask> statutes, only that portion of the alleged bribe payment which is actually 'conferred] * * * upon’ the employee * * * may be counted toward the $1,000 threshold amount.” Therefore, since it is alleged that the plaintiff’s attorney paid the expected percentage of the settlement amount directly to the middleman, who kept one half, and gave the balance to the adjuster, the defense argues that the amount retained by the middleman cannot be used towards satisfaction of the $1,000 statutory minimum amount. I disagree.


As discussed, for purposes of Public Officers Law § 30 (1) (e) the court looks to the elements of the offense, not the specific facts of petitioner’s particular offense. (Feola v Carroll, 10 NY3d at 573; Duffy v Ward, 81 NY2d at 130.) Misdemeanors similar to stalking impugn an officer’s moral integrity, even in the absence of specific falsehoods or corruption through fraud, perjury, or <mask>, for example. (Matter of Pirozzi v Safir, 270 AD2d 2 [1st Dept 2000] [aggravated harassment]; Matter of Segars v City of Buffalo, 237 AD2d 910 [4th Dept 1997] [menacing].) Although this authority predates Feola v Carroll (10 NY3d at 573), which held that child endangerment implied a lack of moral integrity, the Court of Appeals nowhere suggests that offenses involving harm to minors are the only misdemeanors that impugn integrity. Instead, the Court of Appeals emphasizes the willfulness of the harm inflicted.


Plaintiff charges defendants with commercial <mask> in that the transfer restrictions are intended to influence employees to arrange travel for individual gains to the employers’ detriment. To state a cause of action for commercial bribery, plaintiff must allege that defendants conferred a benefit on plaintiff’s employee, without plaintiff’s consent, with the intent to influence the employee’s conduct. (Shemin v Black & Co., 19 AD2d 596.)


Finally, there was plenty of evidence that defendant's conduct was motivated by a lewd intent. "Conviction under [ section 288 ] has never depended upon contact with the bare skin or 'private parts' of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious *505act can occur through the victim's clothing and can involve 'any part' of the victim's body." ( People v. Martinez (1995) 11 Cal.4th 434, 444, 45 Cal.Rptr.2d 905, 903 P.2d 1037 ( Martinez ).) "[T]he lewd character of an activity cannot logically be determined separate and apart from the perpetrator's intent. It is common knowledge that children are routinely cuddled, disrobed, stroked, examined, and groomed as part of a normal and healthy upbringing. On the other hand, any of these intimate acts may also be undertaken for the purpose of sexual arousal. Thus, depending upon the actor's motivation, innocent or sexual, such behavior may fall within or without the protective purposes of section 288.... [T]he only way to determine whether a particular touching is permitted or prohibited is by reference to the actor's intent as inferred from all the circumstances." ( Martinez , at p. 450, 45 Cal.Rptr.2d 905, 903 P.2d 1037.) The relevant circumstances include "the defendant's extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, <mask>, or deceit used to obtain the victim's cooperation or avoid detection [citation]." ( Martinez , at p. 445, 45 Cal.Rptr.2d 905, 903 P.2d 1037.)


Unlike the cited cases, the case at bar involves a leasehold on real property. Is McKeon therefore obligated to pay real estate taxes, make mortgage payments and maintain the warehouse in accordance with the building code and applicable ordinances while Prudential continues to collect rent from its subtenants and not pay rent itself? While the Legislature provided for criminal sanctions against perpetrators of commercial <mask>, it did not contemplate nor should the court contemplate under the circumstances present here the granting to a lessee of real estate carte blanche to remain in possession gratis and in perpetuity.


Although the answer in this action does not set forth any such affirmative defense, defendant’s posttrial brief is replete with accusations against plaintiff of fraud, deceit and <mask> of a real estate broker. Such charges against plaintiff, a member of the Bar, are not supported by the credible evidence adduced upon the trial. They are, for the most part, based on defendant’s suspicion, surmise and conjecture. In any event, it is highly improper and unfair to make accusations of this nature in a brief without previously having set them forth in the pleadings.


Finally, and perhaps most importantly, New York does not follow Sager (supra). In New York, "[t]he crime of conspiracy is an offense separate from the crime that is the object of the conspiracy” (People v McGee, 49 NY2d 48, 57, cert denied sub nom. Waters v New York, 446 US 942). In New York, a defendant may be charged with both conspiracy and substantive <mask> counts. (See, People v Sanders, 56 NY2d 51, rearg denied 57 NY2d 674; People v Manfredi, 166 AD2d 460, lv denied 76 NY2d 1022; People v Koopalethes, 166 AD2d 458, lv denied 76 NY2d 1022; People v McGee, supra [wherein the convictions of McGee’s codefendants of both bribery and conspiracy were upheld].) Although in none of these cases was the issue of the propriety of charging both conspiracy and bribery specifically litigated, the courts seem to have taken for granted that charging both crimes is proper.


Thus, as with <mask>, the crime of bribe receiving is complete upon the solicitation and agreement; if there is an “attempt” crime, it is when there is a solicitation of a bribe without an agreement that the public servant’s action will be influenced. Where there is an apparent agreement, the defendant’s state of mind being controlling, it is immaterial whether the benefit is conferred. As the Second Department held in People v Souvenir (209 AD2d 455 [2d Dept 1994]), the solicitation of a bribe is itself an attempt; thus, if there is an agreement, the fact that the bribe was never paid does not entitle a defendant to a charge down to the attempted crime. It is only in the Sanoguet situation, where there is no agreement, that there can be an attempt to commit the crimes of bribery or bribe receiving.


Each of the sixteen counts of the indictment, dealing with <mask>, charges that defendant Cilento, being a duly appointed representative of a labor organization, to wit, a trustee of the Social Security Fund of the Distillery, Rectifying and "Wine Workers’ International Union of America (A. F. of L.) and secretary-treasurer of said union, solicited, agreed to accept and did accept moneys from one Louis Saperstein, upon an understanding that Cilento should be influenced in respect of his acts, decisions and other duties as such representative. The other defendants are charged with having aided and abetted Cilento in the commission of the crime of bribery.


Nothing in the record indicates that Zarate was either subjectively or objectively induced by Elizondo or law enforcement to commit the offense by such persuasion that would cause an ordinarily law-abiding person of average resistance to commit the crime of <mask>. See TEX. PENAL CODE ANN. § 8.06(a) ; England , 887 S.W.2d at 908. Additionally, the evidence supports that Zarate made the call to the sheriff's office and reduced the bonds prior to Elizondo providing the monies. In fact, all of the witnesses, and the video-recording offered before the jury, supported the State's position that Zarate reduced the *272bonds for both Daisy and Harry Rich in anticipation of receiving the $500.00. Elizondo simply supplied the $500.00. Assuming, arguendo, Elizondo introduced the topic of bribery during one of her telephone calls with Zarate, the evidence supports that Zarate told Elizondo during their meeting, "What they gave you [the money], that's for me." He then confirmed, "Yes, I already lowered [the bond for] both of them." The evidence supports that Zarate came to an agreement with a third party for the benefit of Daisy and Harry Rich, called the jail and lowered the bonds for both Daisy and Harry Rich, met with Elizondo for the sole purpose of collecting $500.00, and the money was in exchange for Zarate's actions in reducing the bonds from $30,000.00 to $5,000.00 for both Daisy and Harry Rich. See Resendez v. State , 160 S.W.3d 181, 189 (Tex. App.-Corpus Christi 2005, no pet.).


It was Penal Law of 1909 § 379, the predecessor of Penal Law § 215.05 (bribe receiving by a witness), that contained a reference to “trial, hearing, or other proceeding, before any court, or any officer authorized to hear evidence or take testimony”. This offense was found in article 34 dealing with “<mask> and Corruption”. The revised Penal Law that we have today condensed *341the language of section 379 to the tailored phrase “any action or proceeding” which now appears in both Penal Law §§ 215.00 and 215.05.


If he had said to each individual taxpaying elector of the county, in order to influence votes in his favor: “Vote for me and I will pay you a certain sum of money, or I will see that you are saved the payment of a certain sum of money in your taxes,” naming the sum, and which might be just the proportion which each individual taxpayer would have to pay in order to raise the sum of $1,300.; this would clearly be an act of <mask> to be punished criminally, and no intelligent man could innoCtently assume that this did not prevent him from truthfully taking the oath prescribed.


As an affirmative defense to NBS's breach of contract claim, Cotter & Sons argued the Contracts were unenforceable because they were procured through commercial <mask>. The second question in the jury charge asked whether the Contracts were procured by bribery. The terms "Contracts" and "bribery" were defined in the charge. NBS did not object to the question or the definitions. The jury found that the Contracts were not procured by bribery. In its motion for new trial, Cotter & Sons did not challenge the legal sufficiency of the evidence supporting the jury's finding of no bribery; it only argued that the jury's finding was against the great weight and preponderance of the evidence.


No controversy exists regarding the ban by suppression. Conceding the illegality of the search in an opposing affidavit, the District Attorney takes the bull by the horns and moves therein for a dismissal of the first count of the indictment, being the count in which the subject matter resulting from the illegal search, is alleged. He contends, however, that the illegal search does not render impotent the second count in which the facts of the attempt to commit the <mask>, are alleged.


The defendant is charged with three counts of <mask> in the second degree in violation of Penal Law § 200.00. Count one alleges that on June 5, 1986 defendant Euston Roy Thomas paid Police Officer Henry Winter a sum of money "upon an agreement or understanding that [Winter] would utilize the Police Department computer at the stationhouse to check the license plate numbers of individuals who were taking pictures of defendant’s store, in order to identify them”. Counts two and three allege that on June 21 and August 19, 1986 the defendant paid a sum of money to Police Officer Winter "upon an agreement or understanding that [Winter] would refrain from making arrests at defendant’s drug business location.”


Defendant has entered a plea of guilty to the crime of attempted <mask>, a class E felony, allegedly committed on September 26, 1973. The presentence report of the Probation Department reveals, and defendant concedes, that in April, 1959 he was convicted in the United States District Court for the Southern District of New York of a felonious conspiracy to violate the Federal narcotics laws (U. S. Code, tit. 21, former §§ 173, 174). He was thereupon incarcerated for some seven years, placing that conviction within a 10-year period of the instant offense, as extended by the incarceration. According to the new second-felony offender law, therefore, defendant has a predicate felony conviction, requiring the imposition of a mandatory minimum sentence for the present offense.


"(1) 'racketeering activity’ means (A) any act or threat involving murder, kidnaping, gambling, arson, robbery, <mask>, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), sections 1461-1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement) * * * section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering) * * *


However, the single act of using a telephone to promote <mask> and extortion was held to provide no basis for a conviction under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) which requires two separate predicate acts, even though the act encompassed two different criminal offenses (United States v Walgren, 885d 1417; 18 USC § 1961 et seq.). The Walgren decision was consistent with the holdings in other Federal RICO cases which determined the number of predicate acts charged (see, United States v Kragness, 830d 842; Polycast Technology Corp. v UniRoyal, Inc., 728 F Supp 926).


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


The defendant nevertheless argues that it was improper to issue an eavesdropping warrant on the basis of recorded statements by Elmann because he was never shown to be a rehable informant. The fact is that Elmann was not an informant at all; he was an apparent conspirator, soliciting bribes and boasting of his ability to influence cases in court. He took $5,000 from the woman upon the representation that it would he used to affect the outcome of her custody case. If his representations were true, he was guilty of <mask>; if they were false, he was guilty of grand larceny. In either case, the judge who issued the first warrant for electronic surveillance in the case — surveillance of Elmann’s cell and business phones — had probable cause to believe that Elmann had committed a designated offense and that communications concerning that offense would be obtained through the electronic surveillance.4


Whether or not the conspiracy conviction is a felony or a *622misdemeanor under New York law is uncertain and depends on the underlying crime. Murphy’s conviction for conspiracy under 18 USC § 371 does not specify the underlying crime, be it <mask> or receipt of an unlawful gratuity. However, assuming, arguendo, that the underlying crime was the more serious charge of receipt of a bribe, the concomitant New York statute would be former section 200.10 of the Penal Law which provided:


There are sound policy reasons why an indictment for both charges should be permitted. Any line drawn between solicitation and the attempted compulsion with which defendant is charged is bound to be perilously thin. Indeed, every solicitation would seem to imply some amount of coercion. As the Tenth Circuit Court of Appeals stated in United States v Hall (536d 313, 321): “[i]t cannot be said that in a <mask> case there is never an aspect of coercion on the part of the bribee.” At least one other court has specifically held that solicitation of a bribe can be an attempted extortion. (State v Begyn, 34 NJ 35; see, also, United States v Phillips, 577d 495, 503, cert den 439 US 831; United States v Furey, 491 F Supp 1048,1057, cert den 451 US 913; Finley v State, 84 Okla Crim 309.)


The first count of the indictment alleges that the defendants, each acting in concert with one another: "compelled or induced a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will accuse some person of a crime or cause criminal charges to be instituted against him, or use or abuse his position as a public servant by performing some *17act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely, and thereby compelling or inducing the victim to commit or attempt to commit a felony, namely, inducing and compelling Daniel Leon to pay the defendants a quantity of United States currency in exchange for defendant, Latanya Gray, a police officer, to withdraw criminal charges she caused to be brought against Daniel Leon, and thereby inducing and compelling Daniel Leon to commit the crime of <mask> in the third degree, a class D felony.”


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


[c]ommon sense dictates that when it is alleged and proved that the defendant offered or solicited a proscribed benefit, it is not necessary to further prove that the offer or solicitation resulted in a bilateral arrangement or unlawful contract with the other party. The offense of <mask> is complete when the offer or solicitation is made. ... ... [W]here it is alleged the accused offered or solicited a benefit as consideration for an official act, it is not necessary for the State to prove the party to whom the offer or solicitation was made accepted the proposition or even understood the unlawful nature of the proposition; proof that the offer or solicitation was made by the accused with the purpose to promote or facilitate the exchange of the benefit for the official action is all that is required. Martinez v. State , 696 S.W.2d 930, 932-33 (Tex. App.-Austin 1985, pet. ref'd). We agree. Common sense dictates that a bilateral agreement is not a required element to establish commercial bribery.6 Many criminal defendants are prosecuted for offering a bribe to a person who refuses to accept the bribe and instead becomes the State's witness. Similarly, many criminal defendants are prosecuted for soliciting a bribe from a person who refuses to pay the bribe and instead becomes the State's witness.


There is nothing in the case law that contradicts this construction of Penal Law § 195.00. In 1969, an upstate trial court recited the history of the statute and its predecessor provisions and held that the crime of official misconduct requires "[a] culpable motive * * * which must be directly connected with the duty which the public servant [violated] * * * and such motive must be of a venal nature.” (People v Thompson, 58 Misc 2d 511, 513.) The culpable mental state for the crime of official misconduct is defined by Donnino, Practice Commentary (McKinney’s Cons Laws of NY, Book 39, Penal Law § 195.00, at 431) as "a specific intent to obtain a benefit or to injure another person or deprive another person of a benefit.” A few courts have fleshed out the statutory definition of "benefit” in the context of <mask> and bribe receiving under Penal Law article 200. (See, e.g., People v Hyde, 156 App Div 618; People v Cavan, 84 Misc 2d 510; People v Adams, 86 Misc 2d 634.) In all cases, the "benefit” was required to be more than merely tangential and had a nexus personal to the defendant.


The prior act of <mask> in this case was a separate and independent transaction. There was nothing in the prior crime that evinced any preconceived general plan or design that encompassed the present crime. There was no concurrence of time, place or circumstance that joined them as one (People v Grutz, 212 NY 72). This case is distinguishable from People v Duffy (212 NY 57) where there was a systematic scheme of collecting bribes evidenced by a written list of bribe givers and of collections made pursuant tó a system that joined the prior act of bribery with the crime charged. There is no such intertwining here, no "visible connection”, tending to prove the commission of this crime (People v Molineux, 168 NY, supra, at 309).


The defendants first contend that the offenses designated in the eavesdropping warrant are not crimes for which such warrant may lawfully issue pursuant to Federal legislation (US Code, tit 18, § 2516, subd [2]). The cited section limits the States’ authority to eavesdrop to instances “when such interception may provide or has provided evidence of the commission * * * of murder, kidnapping, gambling, robbery, <mask>, extortion, or dealing in * * * dangerous drugs, or other [felonies] dangerous to life, limb, or property” designated by the State’s eavesdropping statute. There is no doubt that the Criminal Procedure Law authorizes eavesdropping to obtain evidence of the designated offenses of criminal possession of stolen property in the first and second degree (Penal Law, §§ 165.45, 165.50) and of usury in the first and second degree (Penal Law, §§ 190.40,190.42). (CPL 700.05, subd 8, pars [b], [e].) However, “examination of New York’s wiretapping provisions reveals that the range of crimes in which electronic interception is permitted is much more encompassing than the Federal standard would seem to admit” (People v Shapiro, 50 NY2d 747, 764) and to that extent “runs afoul of the supremacy clause (US Const, art VI, cl 2)” (p 763).


As the result of the investigation, both present and former officials of the City of Buffalo were indicted and charged with the crimes of conspiracy and <mask>. In its report to the court, the Grand Jury recommended that City of Buffalo officials examine the possibility of rescinding certain paving contracts and of recovering from collusive bidders the amounts of money paid under said contracts.


Appellants argue the jury's finding that the Contracts were not procured by <mask> was against the great weight and preponderance of the evidence. As previously noted, the jury charge contained two definitions of bribery: one focusing on the actions of the fiduciary, Simpson, and one focusing on the actions of the non-fiduciary, NBS. Appellants argue the jury should have answered that the Contracts were procured by bribery if either Simpson or NBS engaged in bribery as defined in the charge. Appellants rely on evidence that Simpson was a fiduciary of Cotter & Sons, and he agreed to accept-and accepted-a personal benefit in exchange for his agreement that Cotter & Sons would enter into new janitorial contracts with NBS. Appellants further rely on evidence that NBS paid a benefit to Simpson as an owner of Premier on the condition that Cotter & Sons would enter into the new janitorial services contracts.


The defendant was subpoenaed to testify before the Grand Jury which was investigating the alleged <mask> and, when appearing, refused to waive immunity. After asserting his Fifth Amendment privilege before the Grand Jury, he was excused as a witness. It is asserted by the defendant and not denied that the Special Prosecutor had been advised beforehand that the defendant refused to waive his privilege; nevertheless, the prosecutor insisted on calling the defendant to "place his refusal on the record.” It is contended that the calling of a "target” to force his assertion of privilege before the Grand Jury is a deliberate tactical device used to improperly suggest to the layman on the Grand Jury that the defendant had something to hide and in fact, was criminally culpable.


In his testimony before these investigators annexed to the said plea, the defendant testified that he was admitted to the bar of the State of New York sometime in October, 1912, and that he became acquainted with Russell in June or July, 1912. The substance of the defendant’s testimony before the investigators was,, that he denied ever having offered Russell any money or attempting to bribe Russell in any way, but alleged that Russell asked him for a bribe which the defendant refused. The court refused to allow this plea to be interposed upon the ground that there was no provision of law for the interposition of such a plea. The defendant then on the same formal plea and the facts therein alleged moved to quash the indictment, which motion was also denied. The defendant then refused to plead, the court ordered a plea of not guilty to be entered, and upon these facts the defendant claims that he was entitled to immunity from prosecution on a charge of <mask> or attempt to bribe Dr. Russell by reason of his testimony before these investigators. The question of the defendant’s immunity is really the only serious question presented on this appeal, as we all agree that the evidence amply justified the jury in finding the defendant guilty and that no error was committed on the trial which would justify a reversal of the judgment.


The FalconStor defendants also assert that while the amended complaint alleges that the company “issued a series of materially false and misleading statements regarding the Company’s purported financial performance, in which [it] concealed that the company’s so-called financial ‘results’ [that] were, in substantial part, only ‘achieved through a secret and illicit <mask> scheme,” there is no description of the role that a single board member played in connection with the statements or allegation that any of those six members knew or should have known that these statements were misleading when they were made. With regard to the plaintiffs’ allegations that the board failed to provide sufficiently specific disclosures concerning its internal investigations and to respond properly to SEC inquiries, the FalconStor defendants set forth: (1) that following the SEC’s letter, the company filed its form 10-Q for the quarter ending March 2011 and supplemented its prior disclosures (compl ¶ 18); (2) that the company also responded to the SEC’s letter by providing additional information and explaining, as requested, the reasons the company believed its disclosures had been adequate; and (3) that the SEC did ultimately accept the company’s disclosures (exhibits C-K, containing SEC and FalconStor correspondence).


Moreover, it would be contrary to public policy to hold that the owner’s inadvertent or deliberate acceptance of rent after commission of an illegal act could operate to waive the illegality, even if the owner’s agents knew of the arrest or the underlying illegality, as respondent asserts. To so hold would be an open invitation to <mask> or intimidation of a landlord or managing agent, or collusion between the parties, to the detriment of the community.


The crime of <mask> consists of offering a bribe to a public officer with intent to influence him in his official conduct. (Penal Law, § 378.) The crime of bribery is thus committed though the public officer rejects the offer to bribe him. The acceptance of the bribe entails the commission of a distinct crime by a public officer. This distinct crime is separately defined in section 372 of the Penal Law. We will confine ourselves solely to sections 372 and 378 of the Penal Law as regards their force and effect upon section 381 of the Penal Law.


After hearing this evidence, the trial court denied a motion to dismiss the charges, two counts of <mask> in the third degree. The court found that while there was no agreement between the defendant and the inspector or the investigator, there may have been an understanding, which it defined as an " 'expectancy * * * that hopefully [the inspector] would not file’ the violation.” (People v Tran, 80 NY2d, at 174, supra.) In its final instructions to the jury, the court explained that "the words 'upon an * * * understanding’ refer to the defendant’s understanding. The court added that those words 'as applied to this case, are equivalent to the words, "with intent to”.’ ” *776(People v Tran, 80 NY2d, at 174.) Thus charged, the jury convicted the defendant on both counts of bribery.


On April 10, 1939, the grand jury for the Extraordinary Term of the Special and Trial Term of the Supreme Court in and for the county of Kings indicted the petitioner, charging him with the crime of <mask> and the crime of taking unlawful fees in violation of section 1826 of the Penal Law, in that the said petitioner did on and between July 29,1937, and October 21,1937, ask and receive the sum of SI,000 from the said Duke and others upon his promise *920that he, the said petitioner, as a judge of this court, would dismiss the indictment as above set forth. Petitioner makes this motion, as alleged in the moving affidavit upon the grounds that the proper and adequate preparation of his case necessitates an inspection of the grand jury minutes upon which the abortion indictment of Duke and others was found. This motion is opposed by the Attorney-General through his special assistant who states that “ the People cannot consent to this application for the reason that such consent might establish a precedent detrimental to their welfare.”


When dealing with residential picketing by social protestors we are not dealing with "pure speech” but invariably involved in confrontation. As Professor Kamin so aptly describes it, confrontation "laden with emotion, full of suggestions of acute economic conflict and even unspoken possibilities of a violent physical encounter.” (61 Nw U L Rev 177, 211.) Such confron*130tation, as here, at the family home is fraught with danger and threatens the peace and tranquility of the entire neighborhood. It subjects not only one’s family but also his neighbors to the harassment of the picketers. Certainly the foregoing is descriptive of the situation which occurred at the Walinsky home on August 4-5, 1977. Unfortunately, as the picketing becomes more vociferous the pressure to change one’s position to that held by the picketers increases more out of concern for one’s family and neighborhood than because of the strength of the picketers’ arguments. All too often, as in this case, it becomes clear that the defendants seek not so much a forum to express their ideas but rather to force (by mounting social pressure and intimidation) a private citizen to change his views on one of the important issues of the day. As Professor Kamin notes (61 Nw U L Rev 177, 231) in his article heretofore mentioned: "[W]hen a group resorts to residential picketing, it [in many instances] introduces a note of physical intimidation and coercion which is as foreign to our notions of proper public decision-making as <mask>, blackmail, or overt physical coercion. If public decisions are to be made in this way, the group which can bring the greatest * * * [pressure] to bear upon officials will see its views prevail. A government somewhere might function this way — but it would not be a democracy.”


Nor is plaintiff barred by the policy of McConnell v Commonwealth Pictures Corp. (7 NY2d 465, supra), an action to recover compensation for obtaining a contract by <mask>. In denying recovery the Court of Appeals carefully limited the authority of its decision to actions on contracts performed illegally by commercial bribery or the like. No feat of imagination can extend that doctrine to the present Case.


Defendant also appeals from a judgment convicting him, after a jury trial, of two counts of <mask> in the first degree and one count each of conspiracy in the fourth degree and forgery in the second degree. There is no merit to his contention that statements made in the absence of counsel and while in custody on the drug charges should have been suppressed. A defendant’s right to counsel is not violated where, as here, defendant initiates a bribe offer in counsel’s absence and defendant responds to further inquiry and investigation concerning that bribe offer (see, People v Middletown, 54 NY2d 474; cf., People v Bell, 73 NY2d 153).


In affirming the Supreme Court and the Appellate Division’s denial, inter alia, of the husband’s request for discovery on the issue of egregious marital fault for purposes of equitable distribution, the court held that the circumstances of the case were insufficient for that purpose. It reiterated its statement in the landmark case of O’Brien v O’Brien (66 NY2d 576, 689-590 [1985]) that marital fault is not a “just and proper” factor under Domestic Relations Law § 236 (B) (5) (d) (14) for equitable distribution “ ‘except in egregious cases which shock the conscience of the court.’ ” In Howard S., the Court stated that in order to be a factor in making determinations on the economic aspects of the marriage, the egregious conduct “must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action.” (14 NY3d at 436.) It added, however, that there may be situations where grounds for divorce and egregious *384conduct will overlap, but “it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets.” (Id.) It contrasted the case before it with cases where such an adjustment would be appropriate, one involving the attempted <mask> of the trial judge, the other a vicious assault of the other spouse in the presence of the children. (See Levi v Levi, 46 AD3d 520 [2d Dept 2007] and Havell v Islam, 301 AD2d 339 [1st Dept 2002].)


But it may be said that the question in each case was raised by demurrer which admitted all the allegations in the pleadings, and among others, that a sufficient number of voters were influenced by the promise to change the result; that it was only necessary to decide in those cases that the votes so influenced were null and void. This the court did, in each case, judicially determine. But the whole reasoning of the court goes to the extent of holding the entire transaction a fraud and nullity; a species of <mask> clearly against public policy and not to be tolerated.


As before stated, the Constitution has made an offer or promise to bribe, if it be rejected by the officer to whom it was tendered, a felony. It provides no immunity for any person who should be guilty of that offense, but the fundamental law of the State makes <mask> or an offer or promise of a bribe a crime, and apparently it is the only crime that is created by the Constitution, except the misdemeanor provided for by section 5 of the same article. Section 3 of the article, which makes this offer or promise to bribe a felony, provides for a case where *528the offer is accepted by the officer. It is there prescribed that a person who offers or promises a bribe to an officer, if it shall be received, is guilty of a felony. But there is a limitation which follows, that such a person offering or promising a bribe shall not be privileged from testifying in relation thereto upon a prosecution of the officer for receiving such bribe, and if he so testifies he shall not be liable to 'civil or criminal prosecution therefor. The Constitution there steps in and itself provides the immunity that shall be given to a person who has offered or promised a bribe to a public officer, and I do not see how the Legislature has any power to extend that immunity beyond that which the Constitution itself has provided. There is no such provision of immunity for a person who should offer or promise a bribe to an officer if the bribe be rejected, but any person who makes such an offer or promise is guilty of an attempt to bribe, which is declared to be a felony. As before stated, we have not to do in that case with the question as to how far this provision limits the provision in section 6 of article 1 of the Constitution, that a person shall not be compelled in a criminal case to be a witness against himself. We have not the question as to whether any testimony that the defendant had given in an investigation could be received against him as evidence upon the trial of this offense. We have a claim here that, because he did testify in an investigation instituted by the Governor that he was not guilty of the crime, he is immune from punishment when proved guilty, a claim which, if allowed, would seem to be in direct violation of the constitutional provision that any person who should offer or promise a bribe, if it be rejected by the officer to whom it was tendered, is guilty of a felony.


The underpinning of the allegations of plaintiffs’ amended complaint is based upon the admitted allegations. It states that as a result of its <mask> scheme, the company entered into contracts with JP Morgan worth over $12 million. However, since the contracts resulted, at least in part, from illegal bribes paid to employees of JP Morgan and/or their family members, the named defendants, members of the company’s board of directors, certain officers and employees, concealed the bases *918for the lucrative contracts (compl ¶ 7).1 Thus, plaintiffs assert that the company made materially misleading public statements about the true nature of its business relationship with JP Morgan.


[t]he Commission of any act while on duty or off duty, which would be a violation of Federal, State or local law, other than minor traffic violations. This does not mean that a conviction or even arrest need have occurred for such a violation. (Emphasis added.) Stealing property from the cars on the tow lot or assisting his friend in such <mask> would be a violation of state law. A conviction beyond a reasonable doubt or an arrest based on probable cause is not required for Appellant to be dismissed under this provision of AR 117. Rather, the Commission bears the burden of proving that Appellant's employment should be terminated by a preponderance of the evidence. Spencer v. Zobrist, 323 S.W.3d 391, 398 (Mo. App. W.D. 2010). Appellant was in fact arrested for stealing over $500 because the police determined they had probable cause to believe he had aided Marshall and Davis in the theft.


Respondent nevertheless posits that affirmance is still appropriate because the trial court "could simply have denied the petition" on the grounds that petitioner did not meet his prima facie burden of showing (1) he did not intend to commit a <mask> of property exceeding $950, (2) he did not intend to commit a nontheft felony, and (3) the value of the stolen property did not exceed $950.


Agarwal waived indictment and pleaded guilty to one count of aggravated identity <mask>, in violation of 18 U.S.C. § 1028A(a)(1), and two counts under the CFAA for intentionally accessing a protected computer without authorization and obtaining information valued at more than $5,000, in violation of 18 U.S.C. §§ 1030(a)(2) and 1030(c)(2)(B)(iii). The plea agreement stated that sentencing was “within the sole discretion of the sentencing judge” and that the statutory maximum prison sentence was twelve years (five years for each CFAA violation, plus a mandatory two-


*241Since Doss was decided, this Court, relying on successor provisions in subsequent penal codes, has repeatedly upheld convictions for <mask> in cases in which the defendant caused another person, unaware of the criminal nature of the acts, to appropriate property belonging to someone other than the defendant. See Houston v. State , 98 Tex.Crim. 280, 265 S.W. 585, 585-86 (1924) (holding that a defendant was properly charged with theft when he purported to sell a bale of cotton that was not his even though it was the buyer who removed it from the cotton yard); Wade v. State , 115 Tex.Crim. 160, 29 S.W.2d 377, 379 (1930) (holding that a defendant is liable for theft if, with a fraudulent purpose, he directs an innocent agent to secure a car on the defendant's behalf). In 1942, this Court declared, with respect to the offense of theft, that "[i]f [a] defendant fraudulently procured a person innocent of any fraudulent intent to take the property for him, it is a taking through an innocent agent, and a taking by an innocent agent is a taking by [the] defendant." Spivey v. State , 144 Tex.Crim. 432, 164 S.W.2d 668, 672 (1942) (citations omitted). Therefore, the terms "innocent" and "nonresponsible person," as those terms are used in Section 7.02(a)(1), include persons who are unaware that their conduct is unlawful.17


“Once the transportation of the goods has started, the property remains protected under the policy during the ordinary delays in transshipments incident to such movements. In consonance with the foregoing statement, the term ‘in transit’ in a policy insuring a broker against <mask> while property is in transit means while the property is in the possession of a messenger making delivery to a customer, and is not confined to periods of actual movement, but includes periods of rest during the progress of the continuous undertaking. “Whether an interruption in actual transit is suf*152ficient to remove the goods from coverage depends on the extent and purpose of the interruption and the context of the risk contemplated. The temporary interruption for purposes related to the carriage itself does not remove the property from transportation. The true test is whether the goods, even though temporarily at rest, were still on their way with the stoppage being merely incidental to the main purpose of the delivery” (Anne M. Payne & Joseph Wilson, New York Insurance Law § 19:35 at 680 [31 West’s NY Prac Series, 2013-2014 ed]). Applying these principles of New York law to the instant case, the “In Transit” provision of the bond must be understood to cover the loss here. MVMC was responsible for picking up the cash from the Federal Reserve Bank and delivering it to Cash-Zone locations. As in Underwood, the transit process was never completed for the portion of the funds that, through the “trick and false device” of failing to segregate the funds as required, MVMC instead commingled them in order to facilitate and conceal its larceny. The transit for those funds was never completed.


The plain language of section 666.5 supports the conclusion that it applies only to current felonies. It states that "[e]very person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code, or felony grand <mask> involving an automobile ..., or felony grand theft involving a motor vehicle ..., or a felony violation of Section 496d..., is subsequently convicted of any of these offenses shall be punished by imprisonment for two, three, or four years ...." (§ 666.5, subd. (a), italics added.) The phrase "any of these offenses " can only be read to refer to the felonies previously enumerated in the same sentence. (Ibid. , italics added.) The plain language of section 666.5 thus requires that both the prior and the current offenses must be felonies in order for section 666.5 to apply.


The check was stopped by defendant because it was amongst 1,000 blank teller’s checks which defendant alleges were “lost or stolen prior to or during shipment to Bowery”. No facts are set forth as to how, where or when the <mask> occurred; whether such incidents had occurred in the past; what precautions are taken by the bank to avoid such an occurrence; nor what publicity it gave to let others *1072know of the theft of such a large number of checks. The bank claims that the signature on the check on the line above the word “teller” of a “Jerry Smith” is not that of any of the employees.


*652“<mask> of Identity. No person, firm, partnership, corporation, or association or employee thereof shall knowingly and with the intent to defraud, obtain, possess, transfer, use or attempt to obtain, possess transfer, or use credit, goods, services or anything else of value in the name of another person without his or her consent.” At the same time General Business Law § 380-Z was amended to provide:


We do not find that Page is helpful to our analysis here. Page simply reiterated the well-settled rule that a crime need not be explicitly defined as "grand theft" for Proposition 47 to apply. (See, e.g., Romanowski , supra , 2 Cal.5th at p. 910, 215 Cal.Rptr.3d 758, 391 P.3d 633 [Prop. 47 applies to statutes defining " 'any ... provision of law defining grand theft' " and statutes proscribing " 'obtaining ... property by theft' "].) As discussed above, section 530.5 is not defined as grand <mask>, and does not proscribe "obtaining property by theft." Section 530.5 addresses harms much broader than theft; and section 530.5, subdivision (c) has no requirement that the information be acquired or retained without the consent of its owner, a hallmark requirement of a theft crime. ( Romanowski , at p. 912, 215 Cal.Rptr.3d 758, 391 P.3d 633 ; see also § 484, subd. (a).)


"11. INDEMNITY: Tenant(s) does hereby Indemnify and hold harmless Landlord from any loss by reason of injury or damage to person or property, from whatever cause, all or in part connected *506with the condition or use of the premises.... *529"12. INSURANCE: Tenant, at Tenant's expense, shall maintain a policy of fire, extended coverage endorsement, burglary, vandalism and malicious mischief insurance for the actual cash value of stored property. Insurance on Tenant's property is a material condition of this agreement and is for the benefit of both Tenant and Landlord. Failure to carry the required Insurance is a breach of this agreement and Tenant assumes all risk of loss to store property that would be covered by such Insurance. "[¶] ... [¶] "19. CUSTOMER GOODS PROTECTION PLAN: If Tenant(s) elects to participate in [the Protection Plan], those provisions in this rental agreement concerning landlord's liability which are modified by [the Protection Plan] are considered never to have been in effect." The Protection Plan reiterated terms of the Rental Agreement, including that the tenant assumed the sole risk of loss or damage to stored property, A-1 was not liable for loss or damage to stored property, and the tenant must insure his or her stored property. The Protection Plan stated, however, that for an additional payment of $10 per month, A-1 would retain liability for loss of or damage to the tenant's stored property up to $2,500 for losses caused by fire, explosion, smoke, <mask>, vandalism, malicious mischief, roof leaf, water damage, vandalism, or collapse of the building where the property was stored. The Protection Plan went on to state that, if elected, "[t]his limited acceptance of liability is a modification to the waiver of liability in paragraph eleven (11) of the rental agreement that it forms a part of. It satisfies the insurance requirement stated in paragraph twelve (12)."


It is concluded that the purpose of the statute is twofold. It is indeed a deterrent to <mask>. It is also a safety device; for to lock the ignition, to remove the key and to set the brake, all result in preventing interference with the automobile’s stationary condition and mechanical immobility. It is protection to life and property which might otherwise be affected by improper movement of the automobile. And the Legislature’s own explanation of its purpose corroborates the clear intent derived from the very words of the statute itself.


[O]ne of the things on Count 1 that, sure, we don't have anybody-neither one of the victims testified that they saw him take the money. Neither one. And [defense counsel] asked you more than once, is that what you're proceeding on. And you said yes before he got started. Now I can jump with all this other stuff that, yeah, he went in the house. I *756believe he went into the house. And he just didn't go in there just to say I showed up with someone. ... And I don't know where I'm going with it at this time, so I'm not sure that I'm right, that I'm going to grant your motion because I'm making a jump here. The problem is, I think he went in with a gun. I just-because they both said they saw it. I think he went in. Now, I'm having problems with I, II, and III because I'm not sure if there's a <mask>, but there's a problem. He said he went-came out with $3,000. Now, there's an issue of whether or not he took it from them by force or they just gave it to him. So therefore, I believe, just based on that, his own testimony from them-from what we just heard as part of the State's case, gave the Court some cause and some concern to shift it back. So based on that, I won't grant your motion for Directed Verdict at this time or to dismiss it based on their case. After verifying that the court was denying the dismissal of counts I, II, and III, defense counsel stated, "I do think that Count No. 1 asked the Court to consider the lesser included offense of Burglary and for Count No. 2, the lesser included offense of Robbery." The State responded that it did not object to including the lesser offenses, but it believed it had met its burden "for the charges that were made." The court confirmed its denial of the motion for dismissal.


*837On the question of liability defendant’s position is (1) that, because the car was locked and the key taken by plaintiff, there was no bailment and no responsibility, (2) that the disclaimer of liability for loss or <mask> printed on the parking ticket bars recovery, because plaintiff admittedly read it before he parked his car, and (3) that there is no presumption of negligence and plaintiff has failed to prove any.


Although the court agreed that <mask> of access card information differed in some respects from other forms of theft, "Proposition 47 broadly reduced punishment for 'obtaining any property by theft' where the value of the stolen information is less than $950." ( Romanowski, supra, 2 Cal.5th at p. 906, 215 Cal.Rptr.3d 758, 391 P.3d 633, citing § 490.2, subd. (a).) Thus, a defendant convicted of stealing access card information could seek resentencing under Proposition 47 if the market value of the stolen information (considering possible illicit sales) was below the $950 threshold in section 490.2. ( Ibid. )


Indeed, the Pennsylvania robbery statute, based on the Model Penal Code, contains no requirement that force be used for the purpose of accomplishing the <mask>. As one Pennsylvania appellate court has remarked, "[u]nder 18 Pa.C.S. § 3701 (a) (2), 'in the course of committing a theft’ is unusual * * * insofar as it makes classification of robbery depend in part on behavior after the theft might be said to be accomplished.” (Commonwealth v Maldonado, 343 Pa Super, at 167, 494 A2d, at 408, supra.)


It is the view of this court that of the two, the result and rationale of Mr. Justice Conway is more appropriate. In applying destitution as a test Hinton v Lavine invoked the test to be applied on an original application for emergency assistance (Social Services Law, § 350-j, 18 NYCRR Part 372). However, as noted in Brown v Lavine, where replacement is sought of a lost check or lost cash, section 352 of title 18 of the regulations, which deals with standards of assistance is to be applied and that regulation of the Commissioner of Social Services is concerned with the amount to be awarded once initial eligibility is determined. Further, it is within that part that one finds the rules concerning replacement of a stolen check or stolen cash. Finally, the court notes that section 372.2(c) of title 18 of the Official Compilation of Codes, Rules and Regulations of the State of New York provides that emergency assistance shall not be provided when destitution is due to loss, <mask> or diversion of a grant already made. In Domine v Shreck (44 AD2d 98) the Appellate Division, Third Department, held that while this rule could not be applied as to children so as to deny temporary relief where the loss was due to theft or diversion of a grant, it could be applied to deny emergency assistance to adults. However, as noted above the present proceeding does not involve Part 372, but Part 352 of the regulations which does authorize replacement of cash which has been lost or stolen.