KELLER, J. In this certified appeal,1 the defendant, Jamaal Coltherst, appeals from the judgment of the Appellate Court affirming the judgment of the trial court, which resentenced him for crimes he committed in 1999, when he was seventeen years old. In his original brief to this court, the defendant claimed that the Appel- late Court incorrectly concluded that the trial court followed the statutory requirements of General Statutes § 54-91g in resentencing him to eighty years of incarcer- ation.2 He argued that the statute created a presumption against the imposition of an effective life sentence, which can be overcome only upon the court’s finding that the defendant is incorrigible. Because we conclude, as we explain in this opinion, that § 54-91g does not apply to the defendant, we do not reach the issue of whether the Appellate Court correctly concluded that the trial court followed the statutory requirements of § 54-91g in resentencing the defendant to a term of eighty years of incarceration. Following oral argument, this court ordered the par- ties to file supplemental briefs addressing two issues: First, ‘‘[d]oes [§] 54-91g apply in cases where, as here, the defendant was not charged as a child and trans- ferred from the docket for juvenile matters to the regu- lar criminal docket of the Superior Court pursuant to [General Statutes §] 46b-127 but, rather, [was] charged as an adult under the regular criminal docket of the Superior Court?’’ Second, ‘‘[i]s the defendant eligible for parole when he received two distinct total effective sentences of 85 years and 80 years, respectively, to run consecutively, and, if so, when is he eligible for parole on each case?’’ As to the second issue, we conclude, consistent with an affidavit submitted by Richard Spar- aco, the executive director of the Connecticut Board of Pardons and Paroles (board), that the defendant will be eligible for parole after serving 30 years of the 165 year aggregate term of the two distinct total effective sentences that he is currently serving. As to the first issue, we conclude that § 54-91g does not apply to the defendant. Accordingly, we affirm the judgment of the Appellate Court. The following facts and procedural background are relevant to the resolution of this appeal. This case arose from the October 15, 1999 carjacking, <mask>, and murder of the victim, Kyle Holden, by the defendant and Carl Johnson. See State v. Coltherst, 263 Conn. 478, 485–86, 820 A.2d 1024 (2003). On the day that the defendant was released from juvenile detention, where he had been incarcerated for violating probation after having been convicted on charges of assault in the third degree, the defendant and Johnson planned to commit a carjacking. Id., 483–84. They scouted out various loca- tions and potential targets before settling on the victim, whose car was parked outside an exotic dance club in East Hartford. Id., 484–85. When the victim exited the club, Johnson held a gun to his head, and Johnson and the defendant forced the victim into his car. Id., 485. Johnson then drove the car to an automated teller machine (ATM), while the defendant, who held the gun, sat with the victim in the backseat. Id. They used the victim’s bank card to withdraw money from the ATM and then brought the victim to a nearby entrance ramp to Interstate 84, where Johnson shot the victim in the head, killing him almost instantly. Id., 485–86. Over the next eight days, the defendant and Johnson continued to use the victim’s car and made withdrawals from his bank account using his bank card. Id., 486. Thereafter, they were arrested by the police, who had been on the lookout for the victim’s car after the victim was reported missing. See id., 486–87. Because the defendant was seventeen years old at the time he committed these crimes, he was tried as an adult under the then applicable law. See General Statutes (Rev. to 1999) § 46b-120 (1) (limiting, as general rule, for purposes of delinquency, definition of ‘‘child’’ to persons under sixteen years of age at time of offense). ‘‘After a jury trial, the defendant was convicted of capi- tal felony, murder, felony murder, kidnapping in the first degree, robbery in the first degree, robbery in the second degree, larceny in the first degree, conspiracy to commit kidnapping in the first degree, and larceny in the fourth degree. The trial court merged the convic- tions of capital felony, murder, felony murder and kid- napping in the first degree and imposed a sentence of life imprisonment without the possibility of release on the capital felony count, twenty years imprisonment on the count of robbery in the first degree, ten years imprisonment on the count of robbery in the second degree, twenty years imprisonment on the count of larceny in the first degree, twenty years imprisonment on the count of conspiracy to commit kidnapping in the first degree, and one year imprisonment on the count of larceny in the fourth degree, all to be served consecutively to the sentence of life imprisonment, for a total effective sentence of life imprisonment without the possibility of release followed by seventy-one years [of] imprisonment.’’ State v. Coltherst, supra, 263 Conn. 487–88. Subsequent to the defendant’s original sentencing, significant changes in juvenile sentencing law prompted the resentencing proceedings that are the subject of this appeal. We recently summarized the effect of those changes: ‘‘Under the federal constitution’s prohibition [against] cruel and unusual punishments, a juvenile offender cannot serve a sentence of imprisonment for life, or its functional equivalent, without the possibility of parole, unless his age and the hallmarks of adoles- cence have been considered as mitigating factors. Miller v. Alabama, 567 U.S. 460, 476–77, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); Casiano v. Commissioner of Correction, 317 Conn. 52, 60–61, 115 A.3d 1031 (2015), cert. denied sub nom. Semple v. Casiano, 577 U.S. 1202, 136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016); State v. Riley, 315 Conn. 637, 641, 110 A.3d 1205 (2015), cert. denied, 577 U.S. 1202, 136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016).’’ State v. Williams-Bey, 333 Conn. 468, 470, 215 A.3d 711 (2019). The United States Supreme Court has held that Miller applies retroactively to cases on collateral review. Montgomery v. Louisiana, 577 U.S. 190, 206, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). The court clarified, however, that ‘‘[g]iving Miller retroactive effect . . . does not require [s]tates to relitigate sen- tences, let alone convictions, in every case [in which] a juvenile offender received mandatory life without parole. A [s]tate may remedy a Miller violation by per- mitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.’’ Id., 212. To comply with the decision of the United States Supreme Court in Miller, as well as this court’s deci- sions in Riley and Casiano, the legislature enacted No. 15-84 of the 2015 Public Acts (P.A. 15-84). Section 1 of P.A. 15-84, codified at General Statutes § 54-125a (f) (1), ensures parole eligibility for all persons convicted of crimes committed when they were under eighteen years of age who received a sentence of ten years or more.3 Section 2 of P.A. 15-84, codified at § 54-91g, requires a sentencing court to consider, inter alia, the ‘‘the hallmark features of adolescence’’ and the differ- ences between the brain development of a child and an adult when sentencing a child who has been con- victed of a class A or B felony following transfer of the child’s case from the docket for juvenile matters to the regular criminal docket of the Superior Court. The defendant became eligible for resentencing pur- suant to § 6 of P.A. 15-84, which repealed General Stat- utes § 53a-46a, the capital felony provision, pursuant to which the defendant had been sentenced. The substi- tute provision, codified at General Statutes (Supp. 2016) § 53a-46a, made persons who committed a capital fel- ony when they were under eighteen years of age ineligi- ble for the death penalty.4 The passage of P.A. 15-84, therefore, rendered the defendant’s capital felony con- viction invalid.5 Relying on that change in the law, the defendant filed a motion to correct an illegal sentence. He sought to have his conviction of capital felony vacated and argued that, upon resentencing, § 54-91g (a) (1) required the trial court to consider his age at the time of the offense, the hallmark features of adoles- cence, and any scientific and psychological evidence showing the developmental differences between child and adult brains. He also argued that § 54-91g (a) (2) required the court, if it proposed to sentence him to a lengthy sentence under which he would be likely to die while incarcerated, to consider how the factors listed in subsection (a) (1) counseled against such a sentence. At the hearing on the defendant’s motion, neither the state nor the trial court questioned the defendant’s reliance on § 54-91g. In resentencing the defendant, the court considered the mitigating factors of youth but also took into account the horrific nature of the crimes, the defendant’s level of involvement in them, his crimi- nal history, his attempts to deflect blame for his crimes, and his disciplinary record in prison. The court dis- missed the counts of capital felony and felony murder, and sentenced him to a total effective sentence of eighty years of imprisonment on the remaining counts.6 The court further ordered the defendant’s total effective sentence in the present case to run consecutively to the sentence of eighty-five years of imprisonment the defendant is serving for a conviction involving his shoot- ing of another victim four days after he and Johnson killed the victim in the present case. See State v. Col- therst, 87 Conn. App. 93, 95–98, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005). The court noted that the defendant would be eligible for parole. In his appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court improperly failed, pursuant to § 54-91g, ‘‘to account adequately for the defendant’s youth at the time he committed the underly- ing crimes . . . .’’7 State v. Coltherst, 192 Conn. App. 738, 740, 218 A.3d 696 (2019). The Appellate Court rejected the defendant’s argument that § 54-91g creates a presumption against the imposition of an effective sentence of life imprisonment—in the present case, eighty years—for defendants who were minors at the time they committed their crimes. Id., 752–53. The court grounded its decision on the plain and unambiguous language of the statute; see id., 751; which requires that the sentencing court ‘‘[c]onsider’’ how the scientific and psychological evidence showing the differences between a child’s brain development and an adult’s brain devel- opment counsels against the imposition of a lengthy sentence under which it is likely that the child will die while incarcerated. General Statutes § 54-91g (a) (1) and (2); see also State v. Riley, 190 Conn. App. 1, 26–28, 209 A.3d 646 (rejecting, on basis of plain language of § 54-91g, defendant’s argument that language and legis- lative history of P.A. 15-84 created ‘‘a presumption against the imposition of a life sentence on a juvenile defen- dant,8 and such exceedingly rare sentences can only be imposed after a specific finding that the juvenile being sentenced is permanently incorrigible, irreparably cor- rupt, or irretrievably depraved’’ (footnote added; inter- nal quotation marks omitted)), cert. denied, 333 Conn. 923, 217 A.3d 993 (2019).9 This certified appeal followed. I We first address the question of whether and when the defendant, who has received two distinct total effec- tive sentences of eighty-five years of imprisonment and eighty years of imprisonment, respectively, to run con- secutively, will be eligible for parole. On the basis of the parties’ submissions, we conclude that the defen- dant will be eligible for parole after serving thirty years of the aggregate term of the two definite sentences of imprisonment that he is currently serving. The following additional facts are relevant to our resolution of this issue. Four days after the defendant and Johnson killed the victim in the present case, they, along with a third person, Rashad Smith, accosted Michael Clark in the parking lot of an insurance firm in Wethersfield where Clark worked. State v. Coltherst, supra, 87 Conn. App. 96. They took Clark’s laptop and credit card, and were in the process of forcing him into his car when he broke free and ran, but Johnson tackled him. Id., 97. The defendant and Clark then struggled, and the defendant shot Clark in the head. Id. Grievously injured, Clark nonetheless survived the shooting. See id., 98. In connection with this incident, the defendant was convicted of numerous offenses (Wethersfield assault conviction) and received a total effective sen- tence of eighty-five years of imprisonment. Id., 95. In the present case, when the trial court resentenced the defendant, it ordered the total effective sentence of eighty years in the present case to run consecutively to the total effective sentence of eighty-five years that the defendant received as a result of the Wethersfield assault conviction. Under the facts of these two cases, the defendant’s parole eligibility is governed by General Statutes § 53a- 38 (b) (2), read in conjunction with § 54-125a (f) (1). The question of how the defendant’s parole eligibility date is calculated under those two statutes presents a question of statutory interpretation subject to plenary review. See, e.g., Commissioner of Emergency Ser- vices & Public Protection v. Freedom of Information Commission, 330 Conn. 372, 380, 194 A.3d 759 (2018); Barrett v. Montesano, 269 Conn. 787, 792, 849 A.2d 839 (2004). In construing the relevant statutes, ‘‘[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.’’ (Internal quota- tion marks omitted.) Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008). We begin with the language of the statutes. Section 53a-38 (b) provides: ‘‘A definite sentence of imprison- ment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run; (2) if the sentences run consecutively, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term.’’ Pursuant to § 53a-38 (b) (2), therefore, the defen- dant’s aggregate term is 165 years and the two consecu- tive, definite sentences are satisfied by the discharge of the 165 year aggregate term. Section 54-125a (f) (1), which is set forth in full in footnote 3 of this opinion, does not expressly provide that the aggregate term is used for purposes of calculating eligibility for parole when an incarcerated person is serving more than one definite sentence. It refers only to a ‘‘definite sentence’’ and provides that, if a person who falls within the ambit of the statute ‘‘is serving a sentence of more than fifty years, such person shall be eligible for parole after serving thirty years.’’ General Statutes § 54-125a (f) (1) (B). The plain language of §§ 53a-38 (b) (2) and 54-125a (f) (1), accordingly, does not resolve whether the parole eligibility date of a prisoner serving more than one definite sentence should be calculated on the basis of the aggregate term or each definite sentence. Interpreting §§ 53a-38 (b) (2) and 54-125a (f) (1) to require that parole eligibility be calculated on the basis of the defendant’s definite sentences rather than the aggregate term, however, would be contrary to the legis- lative intent underlying § 54-125a (f) (1). As we have explained in this opinion, the legislative intent behind the parole eligibility guarantee in § 54-125a (f) (1) is to comply with the constitutional standards enunciated in the decisions of the United States Supreme Court in Miller and Montgomery, as well as in this court’s deci- sions in Riley and Casiano. See Miller v. Alabama, supra, 567 U.S. 479 (holding that ‘‘the [e]ighth [a]mend- ment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders’’); see also Montgomery v. Louisiana, supra, 577 U.S. 212 (holding that ‘‘[a] [s]tate may remedy a Miller violation by permitting juvenile homicide offend- ers to be considered for parole, rather than by resen- tencing them’’); Casiano v. Commissioner of Correc- tion, supra, 317 Conn. 54, 69 (holding that Miller announced watershed rule of criminal procedure, appli- cable retroactively); State v. Riley, supra, 315 Conn. 659–61 (applying Miller to state’s sentencing scheme and holding that defendant’s 100 year sentence violated Miller because sentencing court did not consider miti- gating factors of youth in sentencing defendant, who was under eighteen years of age at time of offense, to functional equivalent of life). Treating each definite sentence separately for pur- poses of parole eligibility would yield the result that the defendant’s only opportunity for parole would be 30 years after he began serving the 80 year sentence in the present case, 115 years after he began serving the sentence for the Wethersfield assault conviction. He would die long before becoming eligible for parole, rendering the intended remedy of parole eligibility meaningless—his sentence would effectively be one without the opportunity for parole. That interpretation would flout every recent juvenile sentencing decision of both this court and the United States Supreme Court and, therefore, would also be inconsistent with the intent of the legislature in § 54-125a (f) (1). Accordingly, consistent with the legislative intent underlying § 54- 125a (f) (1), we conclude that, when a defendant is serving more than one definite sentence, his parole eligibility date for purposes of § 54-125a (f) (1) is calcu- lated on the basis of the aggregate term of the definite sentences. Our conclusion is consistent with the board’s inter- pretation of and current practice in applying §§ 53a-38 (b) (2) and 54-125a (f) (1). In an affidavit procured by the state in response to the second issue in this court’s order for supplemental briefing regarding the defen- dant’s parole eligibility, Sparaco, the executive director of the board, stated that, in circumstances such as those in the defendant’s case, pursuant to §§ 53a-38 (b) (2) and 54-125a (f) (1), the board uses the aggregate term to calculate a parole eligibility date. Accordingly, Sparaco stated that, because the defendant’s 165 year aggregate sentence is more than 50 years, he will be eligible for parole after serving 30 years. On the basis of our inter- pretation of §§ 53a-38 (b) (2) and 54-125a (f) (1), we agree with Sparaco’s conclusion that the defendant will be eligible for parole after serving 30 years of the 165 year aggregate term of the two definite sentences. II We next address the question of whether § 54-91g applies to the defendant. The defendant, whose case was not transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court but, rather, was charged under the then applicable law as an adult under the regular criminal docket; see Gen- eral Statutes (Rev. to 1999) § 46b-120; claims that the provisions of § 54-91g nonetheless apply to him. We conclude that the plain language of the statute, which restricts its application to children whose cases are transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court, makes clear that the statute does not apply to the defendant. The applicability of § 54-91g to the defendant pre- sents a question of statutory interpretation, subject to plenary review. See State v. Ruiz-Pacheco, 336 Conn. 219, 232, 244 A.3d 908 (2020). ‘‘When construing a stat- ute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned man- ner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seek- ing to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the mean- ing of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.’’ (Internal quotation marks omitted.) Trin- ity Christian School v. Commission on Human Rights & Opportunities, 329 Conn. 684, 694, 189 A.3d 79 (2018). We begin with the language of the statute. Section 54-91g (a) provides: ‘‘If the case of a child, as defined in section 46b-120, is transferred to the regular criminal docket of the Superior Court pursuant to section 46b- 127 and the child is convicted of a class A or B felony pursuant to such transfer, at the time of sentencing, the court shall: (1) Consider, in addition to any other information relevant to sentencing, the defendant’s age at the time of the offense, the hallmark features of adolescence, and any scientific and psychological evi- dence showing the differences between a child’s brain development and an adult’s brain development; and (2) Consider, if the court proposes to sentence the child to a lengthy sentence under which it is likely that the child will die while incarcerated, how the scientific and psychological evidence described in subdivision (1) of this subsection counsels against such a sentence.’’ Subsection (a) of § 54-91g sets forth two conditions that trigger the required sentencing considerations in subdivisions (1) and (2) of that subsection. First, the case of a child, as defined in General Statutes § 46b- 120, must be transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court pursuant to § 46b-127. Second, the child must be convicted of a class A or B felony pursuant to the transfer. Under the facts of the present case, neither of these two conditions has been met. Because the defendant was over the age of sixteen at the time that he committed his crimes, he was not a ‘‘child’’ under the then applicable law. See General Statutes (Rev. to 1999) § 46b-120 (1). In 1999, when the defendant committed his crimes, General Statutes (Rev. to 1999) § 46b-120 (1) defined a delinquent ‘‘child’’10 as ‘‘any person (A) under sixteen years of age . . . .’’11 The defendant, who was seven- teen at the time he committed the crimes, was treated as an adult criminal. Accordingly, the defendant’s case was never initiated as a juvenile matter in the docket of the Superior Court for juvenile matters. Instead, the defendant was charged as an adult, and the state’s case against him was filed in the regular criminal docket. See General Statutes (Rev. to 1999) § 46b-127 (a). Of course, because the defendant’s case was not trans- ferred from the docket for juvenile matters to the regu- lar criminal docket, the defendant was not convicted pursuant to any such transfer. See General Statutes § 54-91g (a). Thus, neither of the two conditions that would make § 54-91g (a) applicable was met. This court’s previous interpretation of § 54-91g con- firms that the legislature did not intend the statute to apply retroactively to defendants who, although under the age of eighteen when they committed their offenses, were initially charged and tried as adults. Specifically, in State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016), although the defendant did not expressly claim that § 54-91g applied to him retroactively, we considered and rejected that interpretation of the statute as part of our analysis of his claim that he was entitled to be resentenced. See id., 814. We explained: ‘‘There are ten sections in P.A. 15-84, four of which specify that they are ‘[e]ffective October 1, 2015, and applicable to any person convicted prior to, on or after said date.’ . . . P.A. 15-84, §§ 6 through 9. In contrast, P.A. 15-84, § 2, provides [that] it is ‘[e]ffective October 1, 2015,’ indicat- ing that the legislature did not intend for this section to apply retroactively. Moreover, there is nothing in the text of . . . § 54-91g or the legislative history of P.A. 15-84 to suggest that the legislature intended that all [persons] convicted of a class A or B felony [committed when they were under the age of eighteen] who were sentenced without consideration of the age related miti- gating factors identified in Miller would be resentenced. In sum, even if the defendant had alleged that his sen- tence was imposed in an illegal manner because the trial court failed to adhere to the requirements of [§ 54- 91g], he would not be able to demonstrate that that [statute] applies to him.’’ State v. Delgado, supra, 814. We added: ‘‘Although the text of [§ 54-91g] seems clear insofar as the retroactivity issue is concerned, to the extent that there is any ambiguity in the applicable statutory language, the pertinent legislative history clar- ifies that the legislature did not intend for this [statute] to apply retroactively. The limited discussion on this topic occurred before the Judiciary Committee. Attor- ney Robert Farr, a member of the working group of the Connecticut Sentencing Commission, which helped craft the proposed legislative language, discussed how the legislation would affect previously sentenced indi- viduals. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015 Sess., pp. 949, 955–56. He first mentioned this court’s decision in Riley, in which the defendant in that case had been sentenced to 100 years in prison and then resentenced, and noted that, under the proposed legislation, ‘instead of having to worry about resentencing what would have happened is in 30 years, 21 years from now there will be a parole hearing and then that parole hearing would decide whether [the defendant in Riley] was going to be—get another parole hearing . . . . So it gave some resolution to this which was consistent we believe with the federal—with the [United States] Supreme Court cases.’ Id., p. 956, remarks of Attorney Farr.’’ State v. Delgado, supra, 814 n.9.12 Relying on both the statutory language and its legisla- tive history, we concluded in Delgado that, even if the defendant in that case had claimed that the trial court had failed to adhere to the requirements of § 54-91g, his claim would fail because the statute’s provisions did not apply to him. Id., 814. Our conclusion in Delgado that § 54-91g does not apply retroactively is consistent with the plain language of the statute, which, as we have explained, limits its application, effective October 1, 2015, to children convicted of a class A or B felony following transfer from the docket for juvenile matters to the regular criminal docket of the Superior Court, and supports our conclusion that § 54-91g does not apply to the defendant.13 Accordingly, because the trial court incorrectly applied § 54-91g in considering adolescent mitigating factors in resentencing the defendant, he received more consideration than was required, resulting in a much reduced sentence with the possibility of parole after he serves thirty years. The state recognizes that the defendant received more consideration than that to which he was statutorily entitled but does not request that the defendant’s case be remanded for resentencing and requests that this court affirm the Appellate Court’s judgment. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. * October 13, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. This court granted the defendant’s petition for certification to appeal, limited to the following issue: ‘‘Did the Appellate Court correctly conclude that the trial court had followed the statutory requirements under General Statutes § 54-91g in resentencing the defendant to eighty years of incarcera- tion?’’ State v. Coltherst, 333 Conn. 946, 219 A.3d 377 (2019). General Statutes § 54-91g provides in relevant part: ‘‘(a) If the case of a child, as defined in section 46b-120, is transferred to the regular criminal docket of the Superior Court pursuant to section 46b-127 and the child is convicted of a class A or B felony pursuant to such transfer, at the time of sentencing, the court shall: ‘‘(1) Consider, in addition to any other information relevant to sentencing, the defendant’s age at the time of the offense, the hallmark features of adolescence, and any scientific and psychological evidence showing the differences between a child’s brain development and an adult’s brain devel- opment; and ‘‘(2) Consider, if the court proposes to sentence the child to a lengthy sentence under which it is likely that the child will die while incarcerated, how the scientific and psychological evidence described in subdivision (1) of this subsection counsels against such a sentence. *** ‘‘(c) Whenever a child is sentenced pursuant to subsection (a) of this section, the court shall indicate the maximum period of incarceration that may apply to the child and whether the child may be eligible to apply for release on parole pursuant to subdivision (1) of subsection (f) of section 54-125a. . . .’’ General Statutes § 54-125a (f) (1) provides: ‘‘Notwithstanding the provi- sions of subsections (a) to (e), inclusive, of this section, a person convicted of one or more crimes committed while such person was under eighteen years of age, who is incarcerated on or after October 1, 2015, and who received a definite sentence or total effective sentence of more than ten years for such crime or crimes prior to, on or after October 1, 2015, may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which such person is confined, provided (A) if such person is serving a sentence of fifty years or less, such person shall be eligible for parole after serving sixty per cent of the sentence or twelve years, whichever is greater, or (B) if such person is serving a sentence of more than fifty years, such person shall be eligible for parole after serving thirty years. Nothing in this subsection shall limit a person’s eligibility for parole release under the provisions of subsections (a) to (e), inclusive, of this section if such person would be eligible for parole release at an earlier date under any of such provisions.’’ This court has since held that, regardless of a defendant’s age at the time of the commission of a crime, the death penalty violates article first, §§ 8 and 9, of the Connecticut constitution. See State v. Santiago, 318 Conn. 1, 119, 122 A.3d 1 (2015). Because the passage of § 6 of P.A. 15-84 rendered § 53a-46a, the provision under which the defendant had been sentenced, invalid, this case is distin- guishable from State v. McCleese, 333 Conn. 378, 215 A.3d 1154 (2019), and State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016). In each of those cases, this court concluded that the trial court lacked subject matter jurisdiction over the defendant’s motion to correct an illegal sentence. See State v. McCleese, supra, 387; State v. Delgado, supra, 813. In those cases, the sole defect relied on by the defendants in seeking resentencing was the failure of the trial court, in the original sentencing, to consider the mitigating factors of youth in sentencing each of them to a sentence without eligibility for parole. See State v. McCleese, supra, 385; State v. Delgado, supra, 803–804. Because the passage of §1 of P.A. 15-84, codified at § 54-125a, made those defendants eligible for parole, we explained, their sentences were no longer invalid. See State v. McCleese, supra, 387; State v. Delgado, supra, 812. By contrast, in the present case, although the defendant is now eligible for parole, it is indisputable that his capitol felony conviction and sentence were rendered invalid by the passage of § 6 of P.A. 15-84. Thus, not only did the trial court retain jurisdiction to modify his sentence, but, because the sentence had been rendered invalid, the court was required to resentence him. See Practice Book § 43-22 (‘‘[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner’’). The court sentenced the defendant as follows: on count two, for murder in violation of General Statutes §§ 53a-8 and 53a-54a (a), forty years; on count four, for kidnapping in the first degree in violation of General Statutes §§ 53a-8 and 53a-92 (a) (2) (B), twenty years; on count five, for robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), ten years; on count six, for robbery in the second degree in violation of General Statutes (Rev. to 1999) § 53a-135 (a) (1), five years; on count seven, for larceny in the first degree in violation of General Statutes (Rev. to 1999) §§ 53a-8 and 53a-122 (a) (3), ten years; on count eight, for conspiracy to commit kidnap- ping in the first degree in violation of General Statutes §§ 53a-48 and 53a- 92 (a) (2) (B), ten years; and, on count nine, for larceny in the fourth degree in violation of General Statutes (Rev. to 1999) § 53a-125 (a), one year. Counts two, four, five, and eight run consecutively. Counts six, seven, and nine run concurrently to counts two, four, five, and eight. The defendant also claimed that the trial court improperly allowed him to provide additional remarks to the court at the time of resentencing, in violation of his rights to counsel, due process, and allocution. State v. Coltherst, 192 Conn. App. 738, 740–41, 218 A.3d 696 (2019). The Appellate Court’s rejection of that claim is not before us in this appeal. Although the defendant in the present case often refers to himself as a ‘‘juvenile’’ because he was a minor when he committed the crimes, we emphasize that, in 1999, the law did not afford him juvenile status for purposes of delinquency proceedings. Seventeen year olds were not afforded juvenile status until 2012. See generally Public Acts, Spec. Sess., June, 2007, No. 07-4, §§ 73 through 78; Public Acts, Spec. Sess., September, 2009, No. 09-7, §§ 69 through 89. The United States Supreme Court recently held that Miller does not require a sentencing court, prior to imposing a discretionary sentence of life imprisonment without the possibility of parole on defendants convicted of a homicide committed when they were under the age of eighteen, to make a separate factual finding of permanent incorrigibility. See Jones v. Mississippi, U.S. , 141 S. Ct. 1307, 1318–19, 209 L. Ed. 2d 390 (2021). By contrast, under the current statute, a delinquent ‘‘child’’ includes ‘‘any person . . . who is . . . under eighteen years of age and has not been legally emancipated . . . .’’ General Statutes § 46b-120 (1) (A) (i) (I). General Statutes (Rev. to 1999) § 46b-120 (1) (B) provides that the term ‘‘child’’ applies to a person over sixteen years of age only if that person, ‘‘prior to attaining sixteen years of age, has violated any federal or state law or municipal or local ordinance, other than an ordinance regulating behavior of a child in a family with service needs, and, subsequent to attaining sixteen years of age, violates any order of the Superior Court or any condition of probation ordered by the Superior Court with respect to such delinquency proceeding . . . .’’ A child under sixteen years old charged as a delinquent in 1999 and made subject to a court order in that delinquency proceeding by the Superior Court for juvenile matters could, at any time after he turned sixteen or older, be subject to a juvenile prosecution for violating the court’s order. Neither of the parties addressed in their supplemental briefs the import of our conclusion in Delgado that § 54-91g does not apply retroactively. We observe, however, that, in light of that conclusion, even if the defendant had been transferred from the docket for juvenile matters to the regular criminal docket of the Superior Court pursuant to § 46b-127, § 54-91g would not apply to him. We disagree with the defendant’s conclusory statement in his supple- mental brief that this construction renders § 54-91g unconstitutional because it violates his right to equal protection. Even if we agreed with the defendant’s statement that he is similarly situated to a child sentenced after October 1, 2015, who is convicted of a class A or B felony following transfer to the regular criminal docket—which we do not—the differing treatment survives rational basis review. That is, the legislature rationally could provide one remedy for persons in the defendant’s class and a different remedy to persons who meet the conditions under which the provisions of § 54-91g apply. This is the sole constitutional argument that the defendant raises in this appeal.


Josie Anderson : A friend of Carty's. Josie saw that Carty had purchased a baby car seat, a diaper bag with baby items, and items from the medical supply store-a stethoscope, nurse's scrubs, and a pair of surgical scissors. Carty told Josie that she had planned a "lick" (a robbery where you kick in the door) of an apartment where there was a pregnant lady and her husband. Josie and Carty recruited Josie's boyfriend, Christopher Robinson, and his friend Marvin "Junebug" Caston to participate in the "lick." Carty told the group that she wanted the woman's baby and was going to cut it out of the lady. Josie thought that Carty "was crazy" and decided not to participate in either the home invasion or the <mask>. Marvin Caston: (Also known as "Junebug"). The group helping Carty with the "lick" did not believe they were going to do anything to Rodriguez or to the baby. A couple of days before the kidnapping, Carty picked up Caston and was "really, really talking about the baby thing." Carty told Caston that "she just wanted that specific baby because she was saying that her husband was having an affair with the woman." Caston testified that Carty said she "wanted to cut the baby out because she is not knowing that the baby was already born." Carty was living in a hotel because she had moved out of her apartment. Caston carried a baby bag into the hotel room for Carty. When Josie and Carty showed up at Caston's mother's house where Caston was staying, he had his mother tell them he wasn't home. Caston did not participate in the "lick." Chris Robinson : He testified at trial that he had not been promised anything or threatened with anything. He said that the first time he met Carty was on Mother's Day (May 13, 2001) when she was with Josie and "Junebug" (Caston). Carty was organizing a "lick." She told them about Rodriguez ("the lady") and the baby. Carty told them to kill everyone and take the pregnant lady so she could cut the baby out of the lady. He said the plan was for him (Robinson) and Twin (Williams) to kick in the door. Baby G (Anderson) was with them. Anderson and Twin brought the lady out and Carty had the baby. Anderson put the lady in the trunk, then they drove to a storage unit, and Anderson put the lady in Carty's trunk. Then they all met again at the Van Zandt house and Carty had the baby. The three men were mad at Carty because they felt that she used them. There was no marijuana at the apartment. They were there just to kidnap the lady and the baby. Robinson said that Carty was the one who instructed them to tape up the lady and close her in the trunk. They talked about shooting Carty and letting the lady go, but then the men left the house. When Robinson returned he saw Carty doing something in the trunk. When he got closer he saw that Carty had put a *155bag over the lady's head. Robinson tried to rip it off but the lady was already dead. Robinson then took Carty to her hotel and it was full of baby clothes and baby things. He ended up taking the baby back to the Van Zandt house and leaving him in his car seat in the air conditioned car. Zebediah Comb : He was Robinson's half-brother and lived with their grandmother at the Van Zandt house where Rodriguez's body was found in Carty's rental car. Comb was on electronic monitoring house-arrest for the federal offense of bank robbery and could not leave the Van Zandt Street address where he lived. Before the incident, the group that was preparing for the "lick" came to the Van Zandt address to pick up Robinson. Comb testified that Carty "had a job" for them to do involving a drug deal, and "for the drug deal she wanted a favor in return." The favor was to "bring the lady to her," and Carty was "going to handle it from there." Comb testified that he was present for conversations about the lick on May 13, 2001, that he helped recruit Carliss "Twin" Williams on May 15, 2001. Comb said he was also present when Rodriguez was brought to the Van Zandt house late that night, after the kidnapping. He testified that Carty said "I got my baby." Comb said that he saw Rodriguez in the trunk of Carty's Pontiac and refused her request to put Rodriguez in another car parked in the yard. Comb testified that the men were angry at Carty because there was no money or drugs in the house. Comb told Carty and the men that they needed to get in their cars and leave, but Carty refused to drive her car with the woman in the trunk. Comb testified that when he awoke the next morning Robinson was there, and Carty arrived about twenty minutes later driving a black Chevrolet with a baby in the car. He also said that Rodriguez's body was in the Pontiac's trunk and she was bound with tape with a torn bag over her head. Comb also testified that Carty was talking about disposing of the body by burning it. Carty then left again and returned one to two hours later with the baby. Comb said he saw Robinson, Carty, and Anderson putting together packets of fake and real money to use in ripping off a dope dealer. Then Carty, Robinson, and the baby left in the Chevrolet and Anderson and another man left in a different car. Robinson returned with the baby about three hours later, and he left the baby in the Chevrolet with the air conditioner running. Comb said that Robinson then used Lysol to wipe down the cars. Neither Gerald "Baby G" Anderson nor Carliss "Twin" Williams testified at Carty's trial.4 The non-accomplice witness testimony at trial showed that Carty's stories about being pregnant and having a baby coincided with the kidnapping of baby Ray. At trial, the following non-accomplice witnesses testified:


Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed in part, and in part reversed and remanded with direction. Brad J. Montag, of Egley, Fullner, Montag, Morland & Easland, P.C., for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Harder and Masteller, District Judges. Miller-Lerman, J. I. NATURE OF CASE Rosario Betancourt-Garcia (Betancourt), who is serving sentences of imprisonment for his convictions for kidnap- ping, use of a firearm to commit a felony, and conspiracy to commit <mask>, filed a petition for postconviction relief. The district court for Madison County granted an evidentiary hearing on three of Betancourt’s claims and denied the bal- ance of Betancourt’s petition without an evidentiary hearing. Betancourt appeals. He claims on appeal that he was entitled to an evidentiary hearing generally concerning several layered claims of ineffective assistance of appellate counsel, related to, - 443 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


Lucy Billings, J. Petitioner has been on parole since May 3, 2012, following his conviction January 22, 1982, and subsequent incarceration for <mask> in the first degree. When he was convicted in 1982, kidnapping in the first degree was not classified as a sex offense. Even now, kidnapping in the first degree is classified as a sex offense only if the victim is under 17 years old, which petitioner’s victim was not. (Correction Law § 168-a [2] [a] [i]; People v Howard, 27 NY3d 337, 339-340 [2016]; People v Knox, 12 NY3d 60, 65 [2009].) As part of the conditions of his parole, however, respondent New York State Department of Corrections and Community Supervision (DOCCS) Division of Parole and Parole Officers in November 2013 assigned him to a unit for sex offenders and in February 2015 required him to participate in a sex offender treatment program. Petitioner seeks reassignment out of the sex offenders’ unit and removal of the condition that he participate in sex offender treatment, on the grounds that these conditions are arbitrary, not rationally based on the facts or law, and an abuse of discretion. (CPLR 7803 [3].)


In 1938, murder in the first degree, <mask> and treason were capital crimes. The first degree murder statute encompassed "deliberate and. premeditated” killings, "depraved mind” and felony murders and intentional homicides committed in the course of arsons or train wrecks (former Penal Law § 1044 [l]-[4]). The capital punishment provisions of the kidnapping statute and the depraved mind and felony murder variations of first degree murder were discretionary. Specifically, regarding depraved and felony murder "[a] jury * * * may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life.” (L 1937, ch 67, § 2, former Penal Law § 1045-a.) All other forms of first degree murder as well as treason carried a mandatory death sentence.


4.1 • ',was (quoting Clem v. State, 104 Nev. 351, 354, 760 P.2d 103, 105 (1988))), holding modified on other grounds by Mendoza v. State, 122 Nev. 267, 275- 76, 130 P.3d 176, 181 (2006). Also, the statute does not provide any demarcation for the length or degree of detainment. See NRS 200.310(1). The crime is complete when the actor commits the actus reus with the requisite mental state, regardless of whether the victim thereafter leaves on his or her own volition. See id. Accordingly, perpetual restraint of the victim does not constitute a necessary condition to the charge of first-degree <mask>. NRS 200.310(1) can encompass conduct that also constitutes a separate offense depending on the circumstances. Wright, 94 Nev. at 417, 581 P.2d at 443 (explaining that "[1]iterally applied, [the statute] . . encompass[es] . . . ordinary robbery," which carries a lighter sentence). Thus, when a defendant faces separate charges of kidnapping and an enumerated offense, as here, we require that the State rely on a movement not "incidentar to the underlying offense. Id. at 417-18, 581 P.2d at 443-44. A movement is not incidental where it (1) "serves to substantially increase the risk of harm to the victim over and above that necessarily present in an associated offense," (2) "substantially exceeds that required to complete the associated crime charged," or (3) "stands alone with independent significance from the underlying charge." Mendoza, 122 Nev. at 274-75, 130 P.3d at 180-81. While B.W. testified that she left Boyd's presence on several occasions, mostly to visit her family, and thus, Boyd never physically restrained her, the evidence supports a theory that her movements did not reflect her free will because she felt compelled to return to Boyd out of fear for the harm that he would inflict on her and her family. B.W. testified that


The first prong is subjective; it requires a determination of whether the defendant had the requisite belief that deadly force was necessary to avert death, serious bodily injury, <mask>, rape, or forcible sodomy. The factfinder is required to place itself in the shoes of the defendant, determine the point of view which the defendant had at the time of the incident, and "view the conduct of the [victim] with all its pertinent sidelights as the [defendant] was warranted in viewing it." State v. Janes, 121 Wash.2d 220, 238, 850 P.2d 495, 504 (1993) (quoting State v. Tribett, 74 Wash. 125, 130, 132 P. 875 (1913)). Evaluating the evidence from a subjective point of view ensures that the factfinder "fully understands the totality of the defendant's actions from the defendant's own perspective." Id. at 239, 850 P.2d at 505.


The courts have time and again refused to interfere with prosecuting attorneys who in the exercise of discretion have determined not to institute prosecutions or determined that they would prosecute for one crime and not another. Thus in People v. Florio (301 N. Y. 46), the court said (p. 53): “ However, the District Attorney may possibly have avoided asking the Grand Jury to indict the defendants for abduction in addition to <mask>, * * *. * * * In any event, the District Attorney of a county, familiar with the conditions there and responsible to the People of the county, has the duty of recommending to the Grand Jury indictment for the crime or crimes which the protection of the community requires and we are not here to determine that for him.” (Italics ours.)


In People v Gonzalez (80 NY2d 146) the Court of Appeals held the merger doctrine inapplicable to the facts of that case. The victim, four months pregnant, was taken by automobile for about two hours, during which time she was terrorized. She was verbally and physically abused, which included punching and hitting about the face and head, both with fists and with a gun. When the vehicle stopped at a vacant lot, she was taken out of the automobile, whereupon defendant punched and kicked her and, while she was on the ground, told her he was going to rape her. Complainant lost consciousness and was unable to say if she actually had been sexually assaulted, although she did conclude that she had been raped. Her legs, stomach and vagina felt sore and her legs were "sticky.” She found her clothing strewn about the lot. Defendant was acquitted of attempted rape but was convicted of <mask> in the second degree. The Appellate Division concluded that the kidnapping conviction should be merged in the attempted rape acquittal and dismissed that charge. The Court of Appeals reversed, holding, under the facts of that case, that merger did not preclude a kidnapping conviction since the kidnapping had already been completed when the sexual attack took place: "The abduction constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted. The restraint was not a minimal intrusion necessary and integral to another crime, nor was it simultaneous and inseparable from another crime. It was a crime in itself’ (supra, 80 NY2d, at 153).


Section 667.61 subdivision (a) provides that an accused under specified circumstances can be subject to an indeterminate sentence of 25 years to *511life.2 (See People v. Carbajal (2013) 56 Cal.4th 521, 534, 155 Cal.Rptr.3d 335, 298 P.3d 835 ; People v. Anderson (2009) 47 Cal.4th 92, 102, 97 Cal.Rptr.3d 77, 211 P.3d 584.) Section 667.61, subdivision (c) identifies the offenses which can result in an indeterminate term if a specified qualifying circumstance is present. Two of the offenses which can result in an indeterminate term when accompanied by a qualifying circumstance are present in this case: rape and oral copulation in concert. (§§ 667.61, subds. (c)(3) and (7).) The qualifying circumstances are found in section 667.61, subdivisions (d) and (e). One of the qualifying circumstances which can result in an indeterminate 25-years-to-life sentence is specified in section 667.61, subdivision (d)(2) which states, "The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." (See People v. Byrd (2011) 194 Cal.App.4th 88, 100-101, 124 Cal.Rptr.3d 430 ; People v. Jones (1997) 58 Cal.App.4th 693, 712-716, 68 Cal.Rptr.2d 506.) In our case, the jury convicted defendant of rape and forcible oral copulation in concert and found the section 667.61, subdivision (d)(2) <mask> qualifying circumstance allegation true. Both defendants were sentenced on count 4 to indeterminate life terms for kidnapping to commit rape and oral copulation in violation of section 209, subdivision (b). The count 4 indeterminate sentences carry specified minimum parole eligibility dates.


Applying those factors, the panel concluded that the government failed to prove beyond a reasonable doubt that a <mask> occurred. The first factor, the duration of the holding, weighs against kidnapping, as a seven-minute holding would be quite brief on the spectrum of possible kidnappings. The second and third factors—the presence of a separate offense and the degree to which the holding was inherent in the other offense—strongly indicate that there


As explained below, defendant's contention that his confession followed an invocation of his Miranda right to remain silent is forfeited due to the absence of a timely and specific objection, as well as defense counsel's subsequent withdrawal of all objections to the prosecution evidence. Defendant's secondary position-that trial counsel was ineffective in failing to make an objection to preserve the Miranda invocation issue for appeal-is meritorious. Defendant has established prejudice and reversal is required of the conviction for first degree murder. Defendant has not, however, established prejudice as to his *909conviction of <mask> in count 3, which we affirm.


An information charged Johnson with (1) <mask> to commit another crime (§ 209, subd. (b)(1)) (count one), (2) forcible rape ( § 261, subd. (a)(2) ) (count two), and (3) rape of an intoxicated person ( § 261, subd. (a)(3) ) (count three). As to count two, the information included special allegations that Johnson kidnapped the rape victim (§ 667.61, subd. (e)(1)) and that the kidnapping substantially increased the risk of harm to the victim beyond the level inherent in the underlying rape (§ 667.61, subd. (d)(2)).2


Furthermore, a reading of the minutes by the court discloses there were sufficient facts before the District Attorney and Grand Jury to indicate that the complainant required an interpreter and that she had some difficulty in expressing herself on previous occasions, and that there was sufficient evidence to sustain the finding of the indictment charging <mask>. Motion denied, submit order.


Next, however, we review the trial court’s finding that the defendant possessed a deadly weapon during the commission of the offense. Per the indictment and the proof at trial, all three offenses with which the defendant was charged took place after the defendant and the victim bought drugs and returned to the victim’s apartment. The <mask> charge, on which the defendant was acquitted, was based on the defendant’s alleged refusal to allow the victim to leave the apartment or summon for help while in the apartment. The remaining charges on which the defendant was convicted, aggravated assault by strangulation and domestic assault, also took place while the defendant and the victim were in the apartment. While there was testimony that the defendant produced a box cutter when he was initially in the car with the victim prior to buying drugs, there is no proof in the record alleging that the defendant possessed the box cutter during the offenses that took place in the apartment. Per the statute, the enhancement factor is applicable when a defendant possesses the deadly weapon during the commission of the offense. See Tenn. Code Ann. § 40-35-114 (9) (emphasis added). The proof at trial only establishes that the defendant possessed the weapon some five plus hours prior to the commission of the offense not during the commission of the offenses charged or on which the defendant was convicted. Thus, this factor is not applicable to the defendant’s case and should not have been relied on by the trial court.


Appellant's current convictions for <mask> with intent to commit a sexual offense and assault with intent to commit a sexual offense in counts 1 and 2 were serious and/or violent felonies. (§ 667.5, subd. (c)(14) & (15); § 1192.7, subd. (c)(10), (20) & (29).) Consecutive sentences are required on those counts pursuant to section 1170.12, subdivision (a)(7). Appellant's conviction for failing to register as a sex offender was not a serious or violent felony, but because the serious/violent felonies had to be consecutive "to the sentence for any other conviction for which the defendant may be consecutively sentenced," sentence on that count must also be consecutive. (§ 1170.12, subd. (a)(7).) On remand the court should impose sentence accordingly.


For over 20 years it has been the law of the State of New York — by judicial fiat rather than through the legislative process — that, as a general principle,1 offenders may not stand convicted for <mask> when that charge is combined with another (usually rape, robbery, or assault) which actually provides the flavor for the criminal enterprise more so than the incidental technical kidnapping.2


In 2007, a jury found Daniel Hargrove guilty of <mask>, family violence aggravated battery, and two counts of family violence aggravated assault. On direct appeal, we reversed his kidnapping conviction, but otherwise affirmed, Hargrove v. State, 299 Ga. App. 27 (681 SE2d 707) (2009), and the trial court resentenced Hargrove on remand. In 2021, Hargrove filed a pro se motion to vacate a void sentence. The trial court denied Hargrove’s motion on December 2, 2021, and Hargrove filed this appeal on January 7, 2022. We lack jurisdiction. To be timely, a notice of appeal must be filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Pretermitting whether Hargrove is entitled to a direct appeal from the trial court’s order denying his motion to vacate a void sentence, his notice of appeal is untimely, as it was filed 36 days after entry of the order he seeks to appeal. Consequently, this appeal is hereby DISMISSED for lack of jurisdiction. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/31/2022 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.


On February 27, 2017, Stephanie was arrested on charges of <mask>, endangering the welfare of a minor, possession of drug paraphernalia, and possession of a controlled substance. Gregory was arrested on charges of criminal mischief, resisting arrest, endangering the welfare of a minor, possession of drug paraphernalia, possession of marijuana, and driving on a suspended license.1 Their arrests came after they had removed a relative's child from the hospital because they feared the child would be taken by the Department under "Garrett's law." In order to escape with the child, Stephanie punched a nurse in the face. Stephanie subsequently admitted being under the influence of methamphetamine and K2 at the time of her arrest. Because two-year-old I.M. was with them at the time of their arrest, I.M. was taken into custody on a seventy-two-hour hold. The Department subsequently learned that a relative had been caring for I.M. for over two months before Stephanie's arrest and that Stephanie had never cared for I.M. long term.


The jury was instructed as to the elements of rape (count 2) and forcible oral copulation (count 3) in concert pursuant to CALCRIM Nos. 1000, 1001, 1015 and 1016. In addition, the jurors were instructed concerning the section 667.61, subdivision (d)(2) <mask> qualifying circumstance in compliance with CALCRIM No. 3179 : "If you find the defendant guilty of the crimes charged in Counts 2 and/or 3, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant kidnapped Diane [ ]. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To decide whether the defendant kidnapped Diane [ ] please refer to the separate instructions that I have given you on kidnapping. You must apply those instructions when you decide whether the People have proved this additional allegation. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."


The gist of defendant’s cruel and unusual punishment claim is that the penalty which has been legislatively imposed and must be judicially imposed, if there is a conviction, is too harsh for the alleged crimes. He contends that when, in 1973, the Legisla*747ture, in an effort to come to grips with the threat which the drug problem admittedly poses to society, incorporated such “ nonviolent ” sale and possession offenses, involving, as at bar, narcotic drugs in any quantity, regardless of the amount or value thereof, within the Class A felony scheme, and ranked them, insofar as mandatory maximum life imprisonment is concerned, with the most serious crimes known under New York Law, i.e., murder, attempted murder of a police officer, first degree <mask>, and arson in the first degree, it exceeded its constitutional limitations and imposed a punishment which is excessive and disproportionate to the seriousness of the offenses to which it applies.


Age is one of the variables recognized as bearing on whether punishment is proportional to an offender's individual culpability. ( People v. Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.) Moreover, one of the virtues of age as a measure of proportionality is its objectivity. As pointed out by Justice Kennedy in Harmelin, proportionality review should be informed by " 'objective factors to the maximum possible extent.' " ( Harmelin v. Michigan, supra, 501 U.S. at p. 1000, 111 S.Ct. 2680 (plurality opn.), quoting Rummel v. Estelle (1980) 445 U.S. 263, 274-275, 100 S.Ct. 1133, 63 L.Ed.2d 382.) Age is among the Board's regulatory factors tending to show suitability for release, but only inasmuch as "the prisoner's present age reduces the probability of recidivism" (Regs., §§ 2281, subd. (d)(7), 2402, subd. (d)(7), italics added); the Board's regulations relating to suitability do not consider a prisoner's age at the time of the commitment offense a factor tending to show suitability. The legislative directive to accord "great weight" to the "diminished culpability of youth as compared to that of adults" makes clear, as did the United States Supreme Court in Miller , Graham , and Roper , that the imposition of more lenient punishment on youth offenders than on adult offenders serves the proportionality principle inherent in the cruel and/or unusual punishment provisions of the state and federal Constitutions. The circumstances of Palmer's life offense exemplify the " 'hallmark features' " of youth-" 'immaturity, impetuosity, and failure to appreciate risks and consequences' " ( Franklin, supra, 63 Cal.4th at p. 283, 202 Cal.Rptr.3d 496, 370 P.3d 1053, quoting Miller, supra, 567 U.S. at p. 477, 132 S.Ct. 2455 )-that diminish youth offenders' culpability. As a 17-year-old high school dropout, Palmer made an impulsive "spur of the moment" decision to turn an attempted robbery with an unloaded gun into a <mask> for robbery, during the course of which Palmer was shot by the victim. That Palmer had no idea of the consequences of *75his conduct is demonstrated by his question to the police officer who waited with him at the emergency room: "What will I get for doing this, six months or a year in custody?"


No doubt, the jurors impliedly found that the movement of Diane increased the risk of harm to her. As noted, the jurors were instructed on the charge of <mask> for the purpose of rape or oral copulation pursuant to CALCRIM No. 1203. The jurors were instructed, "The movement must have increased the risk of physical or psychological harm to that person beyond that necessarily present in the rape or oral copulation." As instructed, in order to convict defendant of aggravated kidnapping within the meaning of section 209, subdivision (b)(1), the jurors were required to find the movement increased the risk of harm to Diane. As we have noted, after January 1, 1998, an increase in the risk of harm was an essential element of section 209 subdivision (b)(1) aggravated kidnapping. Thus, the jury impliedly found that there was an increase in the risk of harm because of the lengthy asportation that occurred in our case. ( People v. Mincey (1992) 2 Cal.4th 408, 438, 6 Cal.Rptr.2d 822, 827 P.2d 388 ["[A] trial court's failure to instruct on a lesser included offense is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions."]; People v. Stankewitz (1990) 51 Cal.3d 72, 99, 270 Cal.Rptr. 817, 793 P.2d 23 ["By finding the firearm-use allegation to be true, the jury impliedly found that defendant was a direct participant, or, at a minimum, that he aided the robbery with the requisite intent."].) Thus, the sole prejudicial error issue that remains relates to the "substantial" increase in the risk of harm element in section 667.61, subdivision (d)(2). While deciding the aggravated kidnapping charge in count 4, the jurors impliedly found that there had been an increase in risk of harm during the lengthy asportation.


“Due to increasing population mobility, cases involving simultaneous and conflicting jurisdiction over guardianship are increasing. Adult guardianship jurisdiction issues commonly arise in situations involving snowbirds, transferred/long-distance care giving arrangements, interstate health markets, wandering, and even the occasional incidence of elderly <mask>. The process of appointing a guardian is handled in state courts. Often, jurisdiction in adult guardianship cases is complicated because multiple states, each with its own adult guardianship system, may have an interest in the case. Consequently, it may be unclear which state court has jurisdiction to decide the guardianship issue.” (Sponsor’s Mem, 2013 NY Assembly Bill A857; see also Sponsor’s Mem, 2013 NY Senate Bill S2534.) Mental Hygiene Law § 83.33 specifically outlines a procedure for a New York State court to accept a guardianship proceeding transferred from another state.


- B.W.'s assertions to police thus gave investigators reason to believe that Boyd's phone, not B.W.'s phone, contained the probative information. Thus, B.W.'s phone did not "so obvious[ly]" contain exculpatory evidence, particularly in the form of photos, such that the failure to collect the photo evidence amounted to gross negligence. Cf. Randolph v. State, 117 Nev. 970, 988, 36 P.3d 424, 435 (2001) (concluding "that the potential evidentiary significance of blood evidence "was [not] so obvioue as to constitute gross negligence by investigators' failure "to impound and tese it). We have also said that the selective collection of evidence does not prove even negligence, much less gross negligence. See Johnson v. State, 117 Nev. 153, 167-68, 17 P.3d 1008, 1018 (2001). Boyd also failed to show that it was possible for police to collect the data given the limitations of extraction tools. Randolph, 117 Nev. at 988, 36 P.3d at 435. Because Boyd failed to show materiality and gross negligence, we conclude that the district court did not abuse its discretion in refusing to give the evidence-collection instructions. Sufficiency of the evidence Boyd argues that B.W.'s testimony demonstrates that she moved freely during the four-month period the State alleged the <mask> occurred such that the evidence does not support his first-degree kidnapping conviction.4 He contends that the State failed to offer sufficient evidence to prove that any kidnapping was not incidental to any extortion because "[n]one of the facte relied on by the State to establish first-degree kidnapping "go beyond what is required to prove [the predicate offense of]


Dan Lamont, J. This case presents an issue which arguably remains unresolved by the Court of Appeals decision in People v Dodt (61 NY2d 408 [1984]), to wit: If a defendant restrains another *730person by “threatening to use deadly physical force,” but the handgun actually threatened to be used was in fact a starter pistol, can such defendant be convicted of <mask> in the second degree? This issue was first confronted by the undersigned as the Trial Judge when the case was to be submitted to the jury (see, CPL 300.30 [1]).


Defendant argues that the trial court's instruction explaining the elements of the special circumstance allegation that defendant murdered the victim while engaged in <mask> stated an incorrect definition of the asportation requirement. We agree with defendant that the court erred by instructing the jury with a definition of asportation that was not in effect at the time of the crimes in question. We conclude, however, that the error was harmless beyond a reasonable doubt, and therefore does not require that either the kidnapping-murder special-circumstance finding or the death sentence be set aside, as explained below.


On March 25, 1980 a felony complaint and warrant of arrest were issued by the Police Court of the City of Albany charging defendant of the violation of section 135.20 of the Penal Law, <mask>, second degree, a class B felony, for the alleged abduction of the one-year-old daughter of the affiant (and apparently defendant). A teletype advising of the “activé warrant kidnapping second degree” was teletyped to and received at Peekskill Headquarters that day. That evening Sergeant Hayes and Police Officer *834Coons saw defendant’s sister-in-law at her home in Peeks-kill and advised her of the Albany warrant outstanding against defendant. Defendant, who was apparently advised of the officers’ visit, called his attorney in Albany later that evening; arrangements were then made for defendant to surrender himself to Albany at approximately 9:00 A.M. t£le following morning (March 26) in the presence of his attorney. This procedure was followed and between 9:15 a.m. and 10:00 a.m. on March 26, 1980 defendant was booked, the original charge was reduced by Judge Keegan of the Police Court of the City of Albany to the misdemeanor of unlawful imprisonment, second degree (Penal Law, § 135.05), defendant was released on his own recognizance and the case was adjourned in contemplation of dismissal to October 17, 1980. The warrant of arrest which had been issued the previous day was vacated. Two detectives in Albany stated they would have the warrant canceled. However, the Peekskill Police Department was not notified of the vacatur of the arrest warrant. Defendant returned to Peekskill.


Defendant was convicted in November 2016 upon his plea of guilty of the crimes of burglary in the first degree, robbery in the second degree, <mask> in the second degree, burglary in the second degree (two counts) and attempted burglary in the second degree and was sentenced to a term of imprisonment (158 AD3d 1299 [2018], lv denied 31 NY3d 1014 [2018]). The sentencing court denied defendant's request for youthful offender treatment and, upon appeal, the Fourth Department declined to adjudicate defendant a youthful offender in the interest of justice (id. at 1300). In June 2017, defendant — then 17 years old — was indicted and charged with one count of promoting prison contraband in the first degree. The charge stemmed from defendant's possession of a metal razor blade. Defendant pleaded guilty to that crime with the understanding that he would be sentenced to a prison term of 2 to 4 years. The plea agreement also required defendant to waive his right to appeal. County Court summarily denied defendant's request for youthful offender treatment and sentenced defendant as a predicate felon to the contemplated term of imprisonment. This appeal ensued.


*836In response to their son’s <mask>, Jacob’s parents formed the Jacob Wetterling Foundation, an advocacy group for children’s safety. The Foundation’s mission, stated on its Web site,5 is to protect children from sexual exploitation and abduction. In 1994, the Wetterlings, along with other interested individuals and groups, successfully lobbied Congress to pass what is commonly known as “the Jacob Wetterling Act” (hereinafter referred to as JWA).6


Appellant's argument focuses on the element of <mask> relating to deadly force. The element is contained in the definition of the term "abduct," which, as noted, means "to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force." TEX. PENAL CODE ANN. § 20.01(2). The phrase "using or threatening to use deadly force" does not describe a conduct element. Rather, it describes one of the "two alternative components of the specific intent element." Brimage v. State, 918 S.W.2d 466, 475-76 (Tex. Crim. App. 1994) ; see Laster, 275 S.W.3d at 521 ; State Bar of Tex., TEXAS CRIMINAL PATTERN JURY CHARGES: CRIMES AGAINST PERSONS & PROPERTY : PJC 81.8, 81.9 (2016). As the court explained in Laster, 275 S.W.3d at 521, the term "abduct" thus includes two elements. "First, the defendant must have restrained another, which is the actus reus requirement. Second, the defendant must have had the specific intent *835to prevent liberation, which is the mens rea requirement." Id. (citations omitted). The use or threat of use of deadly force is a component of the mens rea requirement of the offense, not the actus reus. Brimage, 918 S.W.2d at 476.5 Accordingly, to prove appellant committed the offense, the State was required to prove appellant moved Hooser from one place to another with the intent to prevent his liberation by using or threatening to use deadly force. Examining the record for evidence appellant possessed such an intent, we find ample evidence.


An indictment was filed on February 15, 1979 by a Queens County Grand Jury charging defendant with the crime of <mask> in the second degree. On March 20, 1979, defendant was ordered to be examined for the purpose of determining if she is still an incapacitated person as defined in CPL article 730 and the case was adjourned until April 20, 1979; and at that time the court found defendant sane and fit to proceed to trial.


Mosley alleges that the State did not disclose prior to trial that the victim had denied that an accident had occurred to the vehicle that he was driving when he and the victim traveled to the place where the two engaged in intercourse. He contends that "Mosley's vehicle is the DNA that proves Mosley innocent" and that the "vehicle in Mosley's case disproves the underlying <mask>." Mosley contended at trial, and on direct appeal, that the State failed to prove that the sex was not consensual. Mosley asserts that, if he could have shown that his car was dented, it would have discredited the victim's testimony, presumably about other matters. It appears that Mosley is contending that the victim did not mention the accident in her testimony until after she learned that the car had been dented and thus her testimony was shown to be unreliable. While Mosley alleges that the victim in a pretrial statement had denied that the accident happened, he does not say when he learned that the State had concealed the statement or otherwise provide any factual substantiation for the claim that it did so.


*853The holdings in Bell and Moi were based on the court’s determination that there is no rational connection between the challenged offenses and the purposes of SORA where no sexual component is alleged. That conclusion, however, fails to take into account that it is for the Legislature, not the judiciary, to determine whether making <mask> and unlawful imprisonment of a minor subject to SORA serves the public interest.


*521Pursuant to section 209, subdivision (d), defendants could not be punished for the same act that violated both *559sections 209, subdivision (b)and 667.61. The act prohibited by section 209, subdivision (b), as applicable here, is <mask> to commit rape or oral copulation. The section 667.61 conduct is the section 667.61, subdivisions (c)(3) and (7) rape or oral copulation in concert violations under the section 667.61, subdivision (d)(2) qualifying circumstances. Section 667.61, subdivision (d)(2) requires a kidnapping occur. The violations of section 209, subdivision (b) and 667.61 subdivisions (c)(3) and (7) under the section 667.61, subdivision (d)(2) qualifying circumstances have two common elements. In our context, the section 209 subdivision (b) violation requires the commission of a kidnapping with the intent to commit one of the enumerated sex offenses. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6, 47 Cal.Rptr.3d 575, 140 P.3d 866 ; People v. Bell (2009) 179 Cal.App.4th 428, 435, fn. 2, 102 Cal.Rptr.3d 300.) The 667.61 subdivisions (c)(3) and (7) violations under the section 667.61, subdivision (d)(2) qualifying circumstances involve both the kidnapping and commission of a section 209, subdivision (b) enumerated sex offense.


On appeal, Ledesma asserts his conviction must be reversed because both the crime of aggravated <mask> and the One Strike Law sentence enhancement for aggravated kidnapping are constitutionally defective. Specifically, he argues that under the United States Supreme Court's decision in Johnson v. United States (2015) 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 ( Johnson ) these statutes violated his due process rights because they are impermissibly vague. Ledesma also asserts, and the Attorney General concedes, that the abstract of judgment should be modified to remove the inaccurate reference to a true finding of personal use of a firearm. We reject Ledesma's constitutional vagueness challenge and affirm the judgment as modified to accurately reflect the sentence imposed by the trial court.


Although we conclude that Jones's convictions must be reversed because of the lack of a valid waiver of her right to a jury trial, we also must consider the sufficiency of the evidence to determine whether she may be tried again on the charges. ( People v. Morgan (2007) 42 Cal.4th 593, 613, 67 Cal.Rptr.3d 753, 170 P.3d 129 ["Although we have concluded that the <mask> conviction must be reversed because it was presented to the jury on both a legally adequate and a legally inadequate theory, we must nonetheless assess the sufficiency of the evidence to determine whether defendant may again be tried for the kidnapping offense."]; People v. Hayes (1990) 52 Cal.3d 577, 631, 276 Cal.Rptr. 874, 802 P.2d 376 ["Although we have concluded *241that the robbery conviction must be reversed for instructional error, we must nonetheless assess the sufficiency of the evidence to determine whether defendant may again be tried for this offense."]; see People v. Story (2009) 45 Cal.4th 1282, 1295, 91 Cal.Rptr.3d 709, 204 P.3d 306 [" 'an appellate ruling of legal insufficiency is functionally equivalent to an acquittal and precludes a retrial' "].)


We recognized the wisdom of this warning in Etsitty. See 130 F.3d at 427. There, the defendant lassoed the victim around the neck, dragged her on the ground for twenty feet, repeatedly attempted to tie her up and gag her, knocked her unconscious, and then tried to take her away on his horse. Id. at 423. Under these facts, we concluded that the government proved a violation of § 1201(a)(2), as “a reasonable trier of fact” could find that the defendant seized the victim “for a substantial period of time.” Id. at 427. But we repeated Chatwin’s warning about the danger of broadening <mask> “into a secondary charge wherever there is a detention accompanying another crime.” Id.


Applying those factors, the panel concluded that the government failed to prove beyond a reasonable doubt that a <mask> occurred. The first factor, the duration of the holding, weighs against kidnapping, as a seven-minute holding would be quite brief on the spectrum of possible kidnappings. The second and third factors—the presence of a separate offense and the degree to which the holding was inherent in the other offense—strongly indicate that there


The People admit that the proof of the overt acts alleged in the Federal indictment are the facts which the evidence possessed by the People will establish, and will sustain the charge of <mask>. They assert, however, that to convict under the Federal indictment proof of additional facts was necessary, and that such additional facts are not essential in the State prosecution. But proof of the overt acts as to the kidnapping and confinement of Wendel was essential to a conviction in the Federal court. Judge Clark’s charge is conclusive on that question. If the People’s contention should prevail, then section 139 of the Code of Criminal Procedure could rarely be successfully invoked. It would seem to be an inexcusably narrow construction to hold that every fact essential to secure a conviction under the Federal statute must be established in the proof required on trial of the State indictment before the bar of section 139 can be invoked. It appeals to me as a more reasonable construction that if it be imperative that an essential act be established to secure a conviction under both statutes, it is sufficient to raise the bar.


We are not persuaded that such a contradiction affecting substantial rights occurred here. In Hillhouse , the challenged instruction told the jury that motive was not an element of the various crimes charged (murder, robbery, and <mask> for robbery) and need not be shown. ( *350Hillhouse , supra , 27 Cal.4th at p. 503, 117 Cal.Rptr.2d 45, 40 P.3d 754.) The defendant argued on appeal that motive was an element of those crimes. The Supreme Court reasoned that if the defendant had been correct (though he was not), the instruction "would have contradicted other instructions regarding the elements of the crimes." ( Ibid . ) Because "[i]nstructions regarding the elements of the crime affect the substantial rights of the defendant," no objection was required for appellate review. ( Ibid . ) The court distinguished this type of elemental error from the general premise that "[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial." ( Ibid . ; People v . Hart (1999) 20 Cal.4th 546, 622, 85 Cal.Rptr.2d 132, 976 P.2d 683.)


(n) Jury Instruction on Lesser-Included Offense of First Degree False Imprisonment Betancourt claims that his appellate counsel was ineffective for not challenging the district court’s refusal to instruct the jury on the lesser-included offense of first degree false impris- onment. He claims that such an instruction would have allowed the jury to determine whether Betancourt intended to commit <mask> or the crime of first degree false imprisonment. The lesser-included offense instruction was not warranted by the evidence. This claim is affirmatively refuted by the record. We have stated: “Where the prosecution has offered uncontroverted evi- dence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some - 462 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. BETANCOURT-GARCIA Cite as 310 Neb. 440


Although the sexual assault victims named in this appeal are not minors, we identify the victims by initials because appellant did so in his brief. See Act of May 28, 1973, 63rd Leg., R.S., ch. 426, art. 2, § 1, sec. 19.03(a)(2), 1973 Tex. Gen. Laws 1122, 1123 (capital murder defined, in part, as intentionally committing murder in the course of committing or attempting to commit <mask>, burglary, robbery, aggravated rape, or arson); Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 6, sec. 19.03(a)(2), 1983 Tex. Gen. Laws 5311, 5317 (amending “aggravated rape” to “aggravated sexual assault”; version in effect at time of offense) (amended 1993, 2003) (current version at TEX. PENAL CODE ANN. § 19.03(a)(2)). 2018. As required by law, the trial court sentenced appellant to confinement for


Aside from being unnecessary to our analysis ( Dillon, supra, 34 Cal.3d at p. 487, fn. 38, 194 Cal.Rptr. 390, 668 P.2d 697 ), an interstate comparison is also the least useful means of assessing proportionality in the present case because it is so difficult to determine what sentence a like crime-considering all circumstances related to the offense and offender-would receive in other jurisdictions. The fact that-as will be discussed-many states authorize punishment of up to life in prison for a <mask> in facially similar circumstances (i.e., for the purpose of robbery, with use of a firearm and without injury to the victim) is *727of limited significance without knowing whether and how such states would account for matters such as the facts that the firearm was not loaded and appellant was 17 years old. In general, reliance upon an interstate comparison may be subject to the criticism leveled by respondent here, that even if California imposes the harshest penalty for a given offense, this does not necessarily demonstrate the penalty is constitutionally excessive. ( People v. Martinez , supra , 71 Cal.App.4th at p. 1516, 84 Cal.Rptr.2d 638.) Nevertheless, a few points are worth making.


We conclude that the court in this case had a duty to instruct on the independent felonious purpose rule because there was evidence from which the jury could have inferred that defendant placed Kerr in the back of her car and drove off for the sole purpose of killing her. Significantly, there was evidence suggesting that defendant killed Kerr by setting her and her car on fire, without ever having moved her from the position in the car in which defendant had originally placed her, or done anything else to her. That defendant kidnapped Kerr by placing her in her car and then killed her in that vehicle raised a reasonable inference that his sole purpose in placing her in the car and driving off was to transport her to the location where he would set the fatal fire. The evidence showed furthermore that defendant had stated to his plumbing assistant shortly before the murder that he wanted to get Kerr "off his mind" by blowing up her car or setting it on fire. This evidence likewise created an inference that defendant kidnapped Kerr solely to carry out that plan, and that his act of setting her car on fire was not an afterthought following the <mask>.


“In short, the Levy-Lombardi rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutional zeal. It was not designed to merge ‘true’ kidnappings into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity. Moreover, it is the rare <mask> that is an end in itself; *29almost invariably there is another ultimate crime.” (People v Miles, 23 NY2d 527, 539-540.)


Conaway's position-that the "merely incidental" test should apply to <mask> for the purpose of shielding-would be unworkable. For example, in this case, in addition to kidnapping, Conaway was charged with endangering the welfare of the Victim, and with resisting a lawful detention. Conaway's briefing acknowledges that it is unclear which of those other counts should be considered the "underlying offense" for purposes of determining if the kidnapping charge involved "merely incidental" conduct. Conaway's confusion on this point is understandable: the fact is, the kidnapping charge in this case has no underlying offense-it is a *384"stand-alone," independent criminal charge.


The merger doctrine does not apply to the case at bar since "the rule has no purpose of ignoring as independent crimes alternative or optional means used in committing another crime which, by the gravity and even horrendousness of the means used, constitute and should constitute a separately cognizable offense.” (People v Miles, 23 NY2d 527, at p 539.) The facts of the instant case clearly fall into this exception. The crimes of <mask> and robbery were certainly not incidental to the crime of intentional murder, but were independent crimes which, due to the particular fact pattern here, should clearly constitute separate offenses from that of intentional murder, as well as felony murder. In fact, consecutive sentences for the intentional murder and the robbery are permitted by case law (People v Tanner, 30 NY2d 102, 108).


The Washington State Court of Appeals had occasion to examine a substantially similar statute in the context of a case involving rape and <mask>. In State v Tuitasi (46 Wash App 206, 729 P2d 75 [1986]), the defendant had threatened to kidnap his own daughter unless his estranged wife consented to have sexual relations with him. The mother submitted to his demand, and the court found that this constituted "forcible compulsion” from fear of the threatened kidnapping. This is prohibited by Washington Criminal Code, title 9A, § 44.010 (5), which concerns sexual offenses. The Washington kidnapping statutes are included in Washington Criminal Code, title 9A, §§ 40.020-40.030.


¶19 In contrast, a person commits the offense of aggravated assault if he “intentionally or knowingly impedes the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth” in the context of a domestic violence assault. A.R.S. § 13-1204(B). The State presented evidence, separate from the <mask>, that Jones covered Megan’s nose and mouth until she lost consciousness. Sufficient evidence supports each of Jones’s convictions for the kidnapping and aggravated assault of Megan.


Given the record before us, we cannot say with fair assurance that the erroneous admission of the surveillance video did not affect appellant's substantial rights. The surveillance video was a central piece of evidence in the case. Other than information provided by complainants, admitted con artists, the video was the only strong evidence showing appellant's involvement in the offenses. Although the State presented other compelling evidence of the scene on the highway and of complainant's injuries, none of this evidence showed appellant's involvement in the aggravated robbery and aggravated <mask> of complainants. The State relied primarily on the video in making its closing arguments. In addition, the trial court explicitly stated that the video evidence impacted appellant's sentencing. Under these circumstances, we must reverse the convictions.


Essential to the commission of the crime of <mask> is the requirement that it occur against the will, or at least *542without the consent, of the victim. (Marks and Paperno, Criminal Law in NY [2d ed], § 233, p 285.) This requirement is reflected in the Penal Law which provides that the movement or confinement of a person “without consent” may be accomplished by physical force, intimidation or deception. Thus, asportation of the victim, which is a necessary element of kidnapping (People v Levy, 15 NY2d 159, 164), may be accomplished by trick or device, and in the first instance, there need not be a resort to physical force or intimidation.


*421On May 9, 2005, after a jury trial conducted before this court, defendant was found guilty of two counts of sodomy in the first degree, a class B violent felony, one count of <mask> in the second degree, a class B violent felony, two counts of assault in the second degree, a class D violent felony, and one count of endangering the welfare of a child, a class A misdemeanor.


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


Third, the prosecutor's argument to the jury as to the <mask> charge made no mention of defendant's confession to the murder. Instead, the prosecutor relied on Montellano's testimony, which was corroborated by "a videotape of the commission of the crime" of kidnapping. (See People v. Neal (2003) 31 Cal.4th 63, 86, 1 Cal.Rptr.3d 650, 72 P.3d 280, citing Cahill , supra , 5 Cal.4th at p. 503, 20 Cal.Rptr.2d 582, 853 P.2d 1037 [a video recording of a crime could support a finding that erroneous admission of a confession is harmless beyond a reasonable doubt, a higher standard than applicable to a claim of ineffective assistance of counsel].) The prosecutor played the video recording for the jury during argument, highlighting how it corroborated Montellano's testimony.


KB’s behavior, including her submissions in this court and others, demonstrated her lack of capacity to protect her interests. There were, for example, her persistent, unsupported charges that “Executioner” Anne had murdered their mother, *552who had died in a nursing facility while in Seattle to be near Anne. Even after an autopsy by the Seattle Medical Examiner had resulted in a finding of death from natural causes, KB continued to report to this court that the death was the subject of an ongoing homicide investigation in Seattle. There were, as further example, the intemperate language of her document demands under SCPA 1404 and the haranguing and threatening nature of her examination of the witness at SCPA 1404 depositions despite the presence of a member of the Law Department. There was the barrage of motions in which KB sought referrals by this court to Federal, State and local authorities concerning the collection of charges that she leveled at others who were involved in this proceeding. Indeed, to the list of persons whom KB accused of crimes ranging from <mask>, perjury, and larceny to “criminal indifference to civil obligations”, KB eventually added (as a “coconspirator”) the name of May Glazer, the attorney this court had appointed court evaluator in the proceeding brought by KB’s sister Elinor in July 1996 under article 81 of the Mental Hygiene Law to determine whether KB required the appointment of a guardian of her person or property.


In 2007, a jury found Daniel Hargrove guilty of <mask>, family violence aggravated battery, and two counts of family violence aggravated assault. On direct appeal, we reversed his kidnapping conviction, but otherwise affirmed, Hargrove v. State, 299 Ga. App. 27 (681 SE2d 707) (2009), and the trial court resentenced Hargrove on remand. In 2021, Hargrove filed a pro se motion to vacate a void sentence. The trial court denied Hargrove’s motion on December 2, 2021, and Hargrove filed this appeal on January 7, 2022. We lack jurisdiction. To be timely, a notice of appeal must be filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Pretermitting whether Hargrove is entitled to a direct appeal from the trial court’s order denying his motion to vacate a void sentence, his notice of appeal is untimely, as it was filed 36 days after entry of the order he seeks to appeal. Consequently, this appeal is hereby DISMISSED for lack of jurisdiction. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/31/2022 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.


<mask> may be accomplished without the use of physical force,; inveiglement is sufficient. (People v. De Leon, 109 N.Y. 226, 229.) The very essence of inveiglement is deceit. It may be that every deceptive practice does not constitute an inveiglement, but here,- as in the De Leon Case (supra), a distinct, affirmative wrong was done the plaintiff. He was induced to go far from'his home, into an unknown country, where the climate and sanitary conditions were, as the event proved, practically unbearable, by representations that he was to be given employment at a village near New York—only a few miles away, five hours’sail on the -steamer — where the railroad fare back to New York was only ninety cents. (See People v. Fitzpatrick, 57 Hun, 459, 461.)


Because we agree, we need not reach Romero's other claims on appeal which challenge his convictions for the attempted <mask> of Brittney as well his section 136.1, subdivision (b)(1), conviction. We do note, however, that sufficient evidence supported both convictions. Further, although all agree that the abstract of judgment incorrectly states Romero was convicted of dissuading a witness from testifying-rather than dissuading a witness from reporting a crime-our reversal renders that error moot.