At trial, Mr. Dincsalman testified that he just signed the subject papers without reading them. However, on further questioning, he indicated that in over 30 years of business he had probably never signed papers without reading them until, of course, the papers involved in this case. While a doubtful assertion on its face, the court having had the benefit of assessing his demeanor as Dincsalman rendered it, found the claim even more incredible and rejects it as nothing more than a convenient fabrication. Similarly incredible was the testimony of Mr. Erhan Kaatsiz. Mr. Kaatsiz took the stand as a prior felon, having been convicted on federal <mask> charges involving cocaine and heroin, and having served eight years in prison. It was shown that in their application for a New York State lottery license for their gas stations, where an applicant’s prior felony conviction would be fatal thereto, the ownership interests of Mr. Kaatsiz in the gas stations was omitted. On repeated questioning throughout his testimony Mr. Kaatsiz displayed evasive responses and would not definitively admit or deny whether he had knowledge of the critical facts at issue in this case including whether he knew of the debt to Americana, knew of the confession of judgment or knew of the assignment of the lease. Specifically, when asked whether he knew of the lease assignment to Americana he testified “I don’t remember,” and when asked whether he discussed it with Mr. Dincsalman he testified “I don’t think so,” and when asked whether he gave his permission for a confession of judgment for the debt of one million dollars to be entered against MP Associates he testified ‘T don’t remember.” In sum, he could not or would not definitively assert that he had no knowledge of the debt outstanding which his companies had run up for fuel deliveries from Americana or that he had no knowledge of the confession of judgment or lease assignment granted as security to insure further fuel deliveries for his gas stations.


In the petition filed below, Hill argued that he was actually innocent and was entitled to habeas and audita querela relief based on a United States Supreme Court ruling in Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which held that mere possession of a weapon is insufficient proof to sustain a conviction for use of a deadly weapon pursuant to a federal criminal statute applicable to <mask>. Hill alleged that the holding in Bailey represented a new constitutional rule that is retroactively applicable to his case and entitles him to scientific testing of items found at the crime scene, including a marble rolling pin, to establish that Hill did not actively "use" the rolling pin to murder the victim. Hill's reliance on Bailey is misplaced. Bailey construes the meaning of "use" in a federal criminal statute; it does not purport to be anything other than a statutory decision and does not represent a new rule of constitutional law. See Gray-Bey v. United States , 209 F.3d 986 (7th Cir. 2000). In any event, the circuit court denied Hill's petition based on the lack of jurisdiction to hear either claim.


As to the first issue defendant contends that various correspondence by governmental officials and agencies concerning the new statute (no commitee hearings were conducted),1 as *27well as Governor Mario Cuomo’s memorandum issued upon signing CPLR article 13-A into law (1984 McKinney’s Session Laws of NY, at 3627-3628), indicate that the statute is limited to crimes involving <mask>, white-collar crime and criminal activity involving organized crime. The court finds no such limitation within those memoranda and correspondence.


924(c)(1) titled “An Act to Throttle Criminal Use of Guns.” The 1998 amendment provided that “[s]ection 924(c) of title 18, United States Code, is amended . . . by striking ‘(c)’ and all that follows through the end of paragraph (1) and inserting the following: “‘(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of vio- lence or <mask> crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addi- tion to the punishment provided for such crime of violence or drug trafficking crime— “‘(i) be sentenced to a term of imprisonment of not less than 5 years; “‘(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and “‘(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. “‘(B) If the firearm possessed by a person convicted of a vio- lation of this subsection— “‘(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or “‘(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.’” Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469, 3469 (1998). The 1998 amendment therefore split section 924(c)(1) into two new subsections—18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(B)—and made three major changes to the section’s operation. First, new section 924(c)(1)(A) made clear that the offense created by section 924(c)(1) applies not only to any individual who “uses or carries a firearm,” but also to one who, “in furtherance of any such crime, possesses a firearm.” Second, the remain- ing portion of subsection (c)(1)(A) imposed new minimum terms of imprisonment for specified types of firearms use. In lieu of the pre-1998


We need not discuss whether a trial attorney in 1989 had an affirmative obligation to advise his client of the immigration consequences of a guilty plea under California law. ( Padilla v. Kentucky , supra , 559 U.S. at p. 374, 130 S.Ct. 1473 [announcing that the Sixth Amendment requires trial counsel to advise a criminal defendant about the risk of deportation arising from a guilty plea]; Chaidez v. U.S. (2013) 568 U.S. 342, 344, 350, 133 S.Ct. 1103, 185 L.Ed.2d 149 [holding that the rule announced in Padilla was not retroactive, but noting that prior to Padilla , state courts were required to resolve the issue for themselves].) This is not a case where trial counsel remained silent and failed to discuss immigration consequences with his client at all. Here, Ogunmowo raised his immigration concerns with Kaplan, and in return, Kaplan gave him incorrect advice without researching or investigating the issue. Affirmatively misadvising a client that he will not face immigration consequences as a result of a guilty plea in a *537<mask> case-when the law states otherwise-is objectively deficient performance under prevailing professional norms.


A claim may be dismissed for failure to state a cause of action (CPLR 3211 [a] [7]). Generally, in order to state a cause of ac- tion a petition must (1) give notice of the events out of which the petitioner’s grievance arises and (2) allege the substantive material elements of the particular cause of action relied on (New York County Dist. Attorney’s Off. v Rivera, NYLJ, Apr. 7, 1992, at 32, col 3; Siegel, NY Prac § 208 [2d ed, 1991]). RPAPL 741 (4) requires a petition to “[s]tate the facts upon which the special proceeding is based.” The petition must be based on a theory of recovery sufficiently particular and clear so as to inform the court and enable the respondent to-prepare for litigation (New York County Dist. Attorney’s Off. v Rivera, supra). RPAPL 711 (5) and 715 (1) create a cause of action which permits a landlord to recover possession of the premises and to remove the tenants therefrom where the premises is used “for any illegal trade or manufacture, or other illegal business.” (RPAPL 711 [5].) In a motion to dismiss for failure to state cause of action, every fact alleged in the petition is assumed to be true and the petition is construed liberally in the petitioner’s favor (New York County Dist. Attorney’s Off. v Hardin, Nov. 18, 1992, at 23, col 1). The term “use” has been construed to identify conduct which is continu- ous and recurrent (see, 1165 Broadway Corp. v Dayana, of N. Y. Sportwear, 166 Misc 2d 939; 1021-27 Ave. St. John Hous. Dev. Fund Corp. v Hernandez, 154 Misc 2d 141; Cohen v Car- roll, 63 Misc 2d 222; 190 Stanton v Santiago, 60 Misc 2d 224; Lituchy v Lathers, 35 Misc 2d 556). In the context of cases involving the use of the premises for the illegal business of <mask> and sales, the concept of “use” has been expanded to include the inference of the respondent’s participa-tion and/or acquiescence in the legal business (see, New York County Dist. Attorney’s Off. v Rivera, supra; see also, New York County Dist. Attorney’s Off. v Harvin, supra; Wingate Hall Co. v Bet- anees, NYLJ, Sept. 29, 1993, at 22, col 6). In the instant case, *1014petitioner has attached to the petition and to the notice of termination copies of the search warrant, arrest reports of the respondents, the police laboratory controlled substance analysis report indicating that 17/8 ounces and 41 grains of marihuana were seized at the premises. The police report also indicates that a scale and packaging materials were seized during the search and subsequent arrests. The annexation of the above materials to the petition and to the notice of termination gives clear notice of the events out of which the petitioner’s grievance arises and serves to allege adequately the elements of its cause of action. Respondent’s participation or acquiescence in the use of the apartment for illegal drug sales may be inferred from the indicia of drug measurement, packaging and sales recovered in the search of the premises.


To the extent that “counting heads” is an appropriate method of determining admissibility under Frye, even the Wesley concurrence does not call for blind acceptance of all experts’ opinions. The concurring opinion viewed several witnesses’ testimony as irrevelant because “[n]one . . . was expert in Forensic DNA analysis.” (Id. at 438.) Even Frye (293 F at 1013-1014) discussed the need for testimony from specific “physiological and psychological authorities” in order to find expert testimony concerning the results of a “deception” test to be admissible. Thus, at a Frye hearing, a court should not just count the scientist’s head, but should consider what expert hat can be worn on that head. This is the assessment that is supposed to be made at every trial when an expert testifies. The jury is instructed to consider, inter alia, “the qualifications and the believability of the witness” in determining “whether or not to accept [their] testimony.” (CJI2d[NY] Expert in General— Expert Witness.) Notably, there are even different approved jury instructions related to different areas of proffered expertise, such as Crime Victim Syndrome and <mask>. (See CJI2d[NY] Expert.)


Plaintiffs on the other hand argue that their appearance in the illustration is virtually identical to the photograph taken; that they were identified by friends as appearing in the illustration and that the illustration held them up to contempt, ridicule, and scorn in their community since they were depicted as involved in <mask>. They also assert that the photo and illustration were used without their consent.


Section 195.223.9 criminalizes <mask> in the second degree if a person possesses or has under his or her control more than 30 grams of methamphetamine. Where the person possesses 90 grams or more but less than 450 grams, the second-degree drug trafficking is a class A felony. Section 195.223.9(2). To establish second-degree trafficking, the State had to prove that Shigemura (1) had conscious and intentional possession of the substances, either actual or constructive, (2) was aware of the presence and nature of the substances, and (3) possessed more than 90 grams of methamphetamine. See *741State v. Zetina-Torres, 482 S.W.3d 801, 806-07 (Mo. banc 2016) (citing Section 195.223.9).


For example, in the Court of Appeals case of Muniz v Flohern, Inc. (77 NY2d 869, 870 [1991]), an infant plaintiff standing outside of a store located on defendant landlord’s premises was blinded by shotgun pellets discharged by a robber from inside the store; she sought to hold the landlord responsible for her injuries. The Court refused, holding that the landlord was entitled to summary judgment dismissing the complaint despite the fact that the landlord had been made aware that its tenant was engaging in illicit <mask> actively on the premises, yet made no attempt to stop it. As the Court reasoned, no special relationship existed between the landlord and either plaintiff or the gunman that would impose upon the landlord a duty to regulate the assailant’s conduct. As the Court held:


On September 15, 1986, a County Court Judge authorized an eavesdropping warrant for the seizure of telephone communications of a certain individual at his residence to obtain evidence of <mask>. The police on the same day intercepted three telephone conversations between that individual and the defendants which indicated that the defendants were engaged in gambling operations. These telephone calls and other calls of a similar nature were minimized because they did not pertain to the offense designated in the said warrant. The same County Court Judge on September 20, 1986 refused to amend the wiretap order at the request of the police to include the crime of gambling, finding that there was insufficient probable cause to justify the same. On January 11, 1987 after the completion of the narcotics investigation, the police obtained a search warrant for the defendants’ residence which was based in part upon the unanticipated conversation involving gambling. The defendants now seek to suppress the evidence of gambling confiscated by virtue of such warrant.


any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense” the resulting offense level “increase[s] by 4 levels.” Generally, this enhancement applies when the gun facilitated or had the potential to facilitate another felony offense and applies automatically “in the case of a <mask> offense in which a firearm is found in close proximity to drugs.” Id. cmt. (n.14(A–B)); Bishop, 940 F.3d at 1250. The Guidelines define a drug trafficking offense, in part, as “any offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt. (n.2); United States v. Martinez, 964 F.3d 1329, 1334 n.2 (11th Cir. 2020) (quoting United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004)) (“Although section 2K2.1 does not define ‘drug trafficking offense,’ we’ve said that ‘[w]here the same language appears in two guidelines, it is generally presumed that the language bears the same meaning in both . . . [W]here two sentencing guidelines are worded identically, absent any distinctions or clarifying words noted in the Commentary, they should be interpreted and applied in the same manner.’”). USCA11 Case: 20-14776 Date Filed: 01/14/2022 Page: 12 of 17


In this prosecution for a single street-level sale of crack observed by two Housing Police officers through binoculars, it was reversible error to permit, over defense objection, background testimony from Officer Laccone regarding the "High Intensity <mask> Act” program of which they were a part and then to permit Officer Abad to explain the hierarchy of street-level drug organizations and how they operate in housing projects. Such testimony, particularly Officer Abad’s, was neither brief and limited to its expressed purpose of explaining the small amount of money ($4) and drugs (two vials of crack) recovered from defendant at the time of his arrest (cf., People v Garcia, 83 NY2d 817; People v Woney, 205 AD2d 480, Iv denied 84 NY2d 835), nor " 'carefully monitored’ ” (People v Stanard, 32 NY2d 143, 146). Although the Trial Justice attempted to set limitations on this testimony in her pretrial ruling, she later permitted the prosecutor to exceed such limitations. In short, in order to explain the paucity of money and drugs found on defendant, there was no need to go into a full fledged explanation of illegal drug organizations, thus clearly prejudicing defendant by escalating evidence regarding a single sale of illegal drugs into testimony suggesting that defendant was part of a large-scale drug trafficking operation (cf., People v Garcia, supra; People v Williams, 204 AD2d 183, Iv granted 84 NY2d 834). Concur— Murphy, P. J., Sullivan, Rubin, Kupferman and Ross, JJ.


A careful review of the record reveals substantial evidence to support the trial court's decision, and we discern no error in its application of the law to the facts. We agree with the trial court that, although inartfully drawn, the search warrant authorized officers to conduct a search for images-both still and moving-for evidence of Applegate's involvement in <mask>. The memory card from the tablet-internal flash media used to expand storage capacity-was likewise included within the parameters of the search warrant. Applegate's contentions to the contrary are without merit.


Hobbs Act robbery constitutes a crime of violence and falls within the § 924(c) statute. B. Merits of Espinosa’s Claim Under § 924(c), it is a crime to brandish a firearm in further- ance of “any crime of violence or <mask> crime.” 18 U.S.C. § 924(c)(1)(A)(ii). For § 924(c) purposes, a predicate offense quali- fies as a crime of violence if it is a felony and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A). Subsection (A) is referred to as the “elements clause.” See St. Hubert, 909 F.3d at 337, 344–45. Twice this Court has held that a conviction for Hobbs Act robbery “clearly qualifies as a crime of violence” under the ele- ments clause. In re Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); St. Hubert, 909 F.3d at 345–46. Eight other circuits have also held that Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A)’s elements clause. See United States v. Richardson, 948 F.3d 733, 741 (6th Cir.), cert. denied, 141 S. Ct. 344 (2020); United States v. Barrett, 937 F.3d 126, 128–29 (2d Cir. 2019); United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019); United States v. Jones, 919 F.3d 1064, 1072 (8th Cir. 2019); United States v. Bowens, 907 F.3d 347, 353–54 (5th Cir. 2018), cert. denied, 139 S. Ct. 1299 (2019); United States v. García-Ortiz, 904 F.3d 102, 106–09 (1st Cir.


The government laid a sufficient foundation to establish Smith’s expertise. Smith testified that he had worked at the Cleveland Police Department for 21 years total, including 10 years as a detective in the vice unit. He explained that he has participated in a vast number of drug investigations, controlled buys, and interviews with drug users or traffickers. Smith also said that he is familiar with slang or code words used in the drug trade and with drug dealers’ tendency to use multiple phones to conduct a drug trade. He further testified that he has listened to jail calls during drug-trade investigations. Based on this testimony, the government clearly established that Smith had the “knowledge, skill, experience, training, or education” necessary to give his expert opinion on matters concerning <mask>. See Fed. R. Evid. 702.


Even though the indictment cited 18 U.S.C. § 924(c)(1)(A), the indictment adequately informed Reed that he was being charged with conduct prohibited in 18 U.S.C. § 924(c)(1)(B)(i)—that is, knowingly possessing, in furtherance of <mask>, a .410 gauge shotgun, bearing serial number A753311B, which was specifically described as “a short-barreled shotgun” with a “barrel length [of] less than 18 inches,” as defined by 26 U.S.C. § 5845(a)(1). The record makes plain that, consistent with § 924(c)(1)(B)(i), Reed was properly informed that he faced a ten- year mandatory minimum sentence in the operative plea agreement and again during the district court’s colloquy at the change of plea hearing. Reed expressly acknowledged he understood the penalties he was facing. Armed with this knowledge, Reed entered a plea of guilty. Given this irrefutable evidence, the statutory citation mistake in the indictment does not give rise to a claim entitling Reed to relief. See United States v. Buchanan, 574 F.3d 554, 565-66 (8th Cir. 2009)


This leaves Mendoza’s charges for conspiracy to distribute methamphetamine and RICO conspiracy. We concluded above that the government presented insufficient evidence to justify those two convictions. So, by the same token, we conclude that the government offered insufficient evidence to prove that Mendoza committed either of those two crimes as an “underlying crime” of <mask> or violence for the purposes of § 924(c). Hunter, 887 F.2d at 1003. Of course, the government need not “separately


Evidence also showed that Sadler actually participated in the conspiracy. After police arrested Tempo on June 14, 2016, geolocation data showed that the x3399 “Polo” number moved to 15652 Eastburn, an address that Sadler often visited (and possibly where he resided), and where his children lived with their mother. When Officer Villerot called the x3399 number trying to set up another undercover purchase on June 15, 2016, a man answered the phone and directed Officer Villerot to a location. Ultimately, Officer Villerot abandoned this undercover purchase. Around the same time, officers saw Sadler leave the Eastburn house in a black Escalade that officers had previously seen near “Polo” drug sales. Officers pulled Sadler over and found both “Polo” phones in the car. When police searched the 15652 Eastburn residence, they found a digital scale, a large bag with drug residue, sandwich bags, Noscapine—which is a popular heroin cutting agent—documents with Sadler’s name on them, and a firearm and ammunition. The jury heard evidence that these objects are commonly associated with <mask>.5 While these facts may not be enough, standing alone, to support the jury’s conviction, together, this evidence shows that Sadler sought out more involvement and leadership within “Polo” and that he attempted to take over “Polo” operations after many “Polo”


The Association of the Bar of the City of New York published its Final Report of the Joint Committee on New York Drug Law Evaluation in 1977.9 The report is the result of a project begun shortly after enactment of the new drug laws and its purpose was to collect data concerning the functioning of the new laws and to evaluate their effectiveness. After three years of exhaustive study, the Final Report states that available data indicates that despite the expenditure of substantial resources, neither did the new law deter <mask> nor contain its spread. The Final Report’s conclusion may be summarized as follows:


Later, when asked to explain his reasons for the challenge, the prosecutor highlighted the fact that Domanique J. questioned "whether the criminal *878justice system works for the most part." The prosecutor also noted that "at a time when he was living with his mother, she was arrested and charged and convicted of <mask>." The prosecutor felt that "he was living with her at the time, and then the fact that he has visited her in prison, certainly suggests someone who might be prone to sympathy at the prospect of somebody going to prison for a crime."


Defendant Hyne was arrested on February 1, 1989 for possession of "crack” cocaine. According to Police Officer Laura Romer’s affidavit, defendant was observed driving his 1979 Chevrolet Camaro to a known <mask> location in Queens. It appears that a passenger in defendant’s vehicle exited the car and was observed purchasing a controlled substance. When the passenger returned to the subject vehicle, defendant drove off. Shortly after leaving the aforementioned location, the vehicle was stopped and one glassine of "crack” cocaine was found on the front passenger seat. Seven more glassines were found on the floor of the rear passenger seat. Defendant Hyne and his passenger were both placed under arrest for criminal possession of a controlled substance and the vehicle was seized pursuant to Administrative Code § 14-140. The complaint alleges that the vehicle was used by defendant as the instrumentality of or to aid and further the commission of a crime.


The primary programmatic purpose must be determined by examining “the underlying reason for undertaking it” as opposed to “the particular manner in which the checkpoint was conducted” (Trotter, 28 AD3d at 169-170). Thus, where the Rochester Police Department checked vehicles at a checkpoint for windshield stickers, driver’s licenses and registrations as part of a larger initiative aimed at detecting and deterring violent crime and <mask> in a specific target area, the stop violated the defendant’s Fourth Amendment rights and all items seized from the defendant were properly suppressed (People v Trotter, 28 AD3d 165 [2006], supra).


In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). In United States v. Nixon, the Supreme Court explained that this privilege protects “the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking” by ensuring that the President and his advis- ers are “free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” 418 U.S. at 708. The privilege for presidential communications is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Id. The report at issue is a confidential communication to the President containing a Cabinet Secretary’s advice on decisions delegated by statute to the President—whether automobile and automobile-part imports “threaten to impair the national security” and whether they should be adjusted to remove that threat. 19 U.S.C. § 1862(b)(3)(A). The report is therefore a core presidential communication. See, e.g., Loving v. Dep’t of Def., 550 F.3d 32, 39 (D.C. Cir. 2008) (“easily” holding that “memo- randa from the Army and Defense Secretaries directly to the President advising him” on his statutory review of a court-martial death sentence “fall squarely within the presidential communications privilege”). The presidential communications privilege applies to the report in its entirety. See Sealed Case, 121 F.3d at 745–46. This conclusion is not affected by the fact that the report reflects the exercise of statutory authority delegated to the President pursuant to Congress’s constitutional powers to impose “Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cls. 1, 3. The presidential communications component of execu- tive privilege protects the President’s power to faithfully execute all of the laws. Communications related to the President’s independent constitu- tional functions may raise “particularly strong” confidentiality concerns, Assertion of Executive Privilege Concerning the Dismissal and Replace- ment of U.S. Attorneys, 31 Op. O.L.C. 1, 2 (2007) (Clement, Act’g A.G.), but the privilege applies equally to communications concerning the execu- tion of statutes, see, e.g., Assertion of Executive Privilege Over Communi- cations Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver Request, 32 Op. O.L.C. 1, 3 (2008) (Mukasey, A.G.); Assertion of Executive Privilege for Memorandum to the President Concerning Efforts to Combat <mask>, 20 Op. O.L.C. 8, 8 (1996) (Reno, A.G.).


In sentencing the defendant, this court was mindful of the “primary” objective of probation. The defendant is a troubled individual who admits to gun possession and has been previously involved in multi-state <mask> and needs supervision. According to the probation report, the defendant incurred no infractions while incarcerated, but was known to be affiliated with the “bloods” gang. Although while incarcerated the defendant earned a GED, his mother indicated to the Probation Department that the defendant has a history of mental health problems and needs the guiding hand of a male figure. The Probation Department recommended “counseling” for the defendant. This court deems the guiding hand of the New York State Department of Probation to be necessary to insure that the defendant does not further his narcotics habit, to prevent him from associating with persons who will improperly influence him and to insure that he gets proper counseling for his emotional and physical needs. A probationary sentence can only benefit the defendant in his future well-being.


Vera thus is misguided in arguing "Officer Maltese had already finished the mission of the traffic stop-to write a citation for illegally tinted windows-when he transmuted the stop into a <mask> investigation .... Officer Maltese had finished all aspects of the traffic stop when he began the dog sniff ...." The mission of the traffic stop was in fact not finished when the dog sniff began, because the citation had not yet been written. (See Rodriguez , supra , 135 S.Ct. at p. 1612 [referring to the mission "of issuing" a ticket for the violation, quoting Caballes , supra , 543 U.S. at p. 407, 125 S.Ct. 834 ].)


Since it was the plaintiff who set the chain of events in motion and the injuries were proximately caused by a criminal intruder, " 'it requires too much stretching of the imagination to hold the defendants] responsible’ ” (Waters v New York City Hous. Auth., 69 NY2d 225, supra, relying on Palsgraf v Long Is. R. R. Co., 248 NY 339, to determine that plaintiff was not within the zone of foreseeable harm). In the absence of a duty, there is no breach and without a breach there is no liability (Kimbar v Estis, 1 NY2d 399, 405). "[A]s a matter of policy the courts have consistently sought 'to limit the legal consequences of wrongs to a controllable degree’ * * * and to protect against crushing exposure to liability” (Russo v Grace Inst., 145 Misc 2d 242, 245, affd 153 AD2d 820). It would be unreasonable to impose liability upon defendants in the case herein where the facts conclusively show that defendants did not exercise control over the actions of the unidentified assailant. Thus, the court cannot reasonably subject defendants to liability for an unforeseeable criminal incident which was outside their control and stemmed from plaintiff’s own <mask>.


Continuing the Apprendi analysis, in Harris v United States (536 US 545 [2002]), the Supreme Court distinguished between factors extending the minimum, as distinguished from the maximum, sentence. (Id. at 566.) It reviewed the federal <mask> statute, which extended the minimum sentence if the court found that a gun had been “brandished” during the crime. Sustaining the conviction, the Court held that although factors extending the outer, or maximum, parameters of a sentence are elements which must be pleaded in (federal) indictments and proved to a jury, those factors extending the minimum penalty are sentencing considerations, properly left to the court alone. (Id. at 568.)


This factual summary is based on police reports in the augmented record as defendant waived preparation of a full probation report. Two officers were on patrol in a marked car in the early morning. As they drove through an area "known to have a lot of <mask>," they noticed a car in a parking lot with the driver's door open. Defendant was in the driver's seat, and another man was also in the car. A woman was standing next to the driver's door. When an officer approached, the woman walked away and ignored the officer's questions about what she was doing there. Defendant disclosed his name and informed the officers that he owned the car. After a records check revealed that defendant was on probation with search terms, the officers conducted a probation search of the car. In the fuse panel on the driver's side, an officer found a working scale and a black container with 14 hand-rolled cigarettes inside. The cigarettes contained a green leafy substance and crystal shards that later tested presumptively positive for methamphetamine.


*568We are also not persuaded by the appellate division's reliance on Vega , supra , 130 Cal.App.4th 183, 29 Cal.Rptr.3d 700. (Moore , supra , 236 Cal.App.4th at pp. Supp. 15-16, 187 Cal.Rptr.3d 132.) The Vega court held the criminal laboratory analysis fee does not apply to defendants convicted of conspiracy to transport cocaine because it is not a punishment. (Vega , at p. 185, 29 Cal.Rptr.3d 700.) The Vega court reached this conclusion by reasoning: "It is clear to us the main purpose of ... section 11372.5 is not to exact retribution against drug dealers or to deter drug dealing (given the amount of money involved in <mask> a $50 fine would hardly be noticed) but rather to offset the administrative cost of testing the purported drugs the defendant transported or possessed for sale in order to secure his [or her] conviction. The legislative description of the charge as a 'laboratory analysis fee' strongly supports our conclusion, as does the fact the charge is a flat amount, it does not slide up or down depending on the seriousness of the crime, and the proceeds from the fee must be deposited into a special ' criminalistics laboratories fund' maintained in each county by the county treasurer." (Vega , at p. 195, 29 Cal.Rptr.3d 700.)


any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense” the resulting offense level “increase[s] by 4 levels.” Generally, this enhancement applies when the gun facilitated or had the potential to facilitate another felony offense and applies automatically “in the case of a <mask> offense in which a firearm is found in close proximity to drugs.” Id. cmt. (n.14(A–B)); Bishop, 940 F.3d at 1250. The Guidelines define a drug trafficking offense, in part, as “any offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt. (n.2); United States v. Martinez, 964 F.3d 1329, 1334 n.2 (11th Cir. 2020) (quoting United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004)) (“Although section 2K2.1 does not define ‘drug trafficking offense,’ we’ve said that ‘[w]here the same language appears in two guidelines, it is generally presumed that the language bears the same meaning in both . . . [W]here two sentencing guidelines are worded identically, absent any distinctions or clarifying words noted in the Commentary, they should be interpreted and applied in the same manner.’”). USCA11 Case: 20-14776 Date Filed: 01/14/2022 Page: 12 of 17


On this record, we have no such “grave doubt” about whether Wright’s § 924(c) conviction rested on an invalid ground. The jury unanimously found Wright guilty of all three predicate crimes. And, as already discussed, all three predicate crimes were inextricably intertwined as they stemmed from the same plan and attempt to rob cocaine from a drug dealer’s stash house using firearms. See id. at 1293; see also Parker, 993 F.3d at 1265 (holding that the record made clear that if the jury relied on the invalid Hobbs Act conspiracy predicate, it also relied on the valid <mask> predicates because they were inextricably intertwined and therefore any error was harmless); Foster v. United States, 996 F.3d 1100, 1107 (11th Cir. 2021) (applying Parker and concluding, on virtually identical facts to those found in Wright’s case, that the jury “could not have found that Foster’s gun use or possession . . . was connected to his conspiracy to rob the stash house without also finding at the same time that they were connected to his conspiracy and attempt to possess with intent to distribute the cocaine he planned to rob from the same stash house” and thus “the inclusion of an invalid predicate offense in the indictment and jury instructions was harmless”). The record establishes that Wright was actively involved in the planning of, and attempt to commit, the armed stash-house robbery. Specifically, Wright met with the undercover agent several times to plan the stash-house robbery; knew the stash house had armed guards; knew that they needed an experienced robbery crew and firearms in order to steal the cocaine from the USCA11 Case: 20-14869 Date Filed: 01/14/2022 Page: 21 of 22


¶23 On the other hand, drug-courier evidence may be admitted where it “has significance beyond the mere suggestion that because an accused’s conduct is similar to that of other proven violators, he too must be guilty.” Lee, 191 Ariz. at 546, ¶ 19. Thus, such evidence may be used “to assist a jury in understanding the modus operandi of a drug-trafficking organization” or if it is otherwise “helpful to a jury’s understanding of the evidence.” Escalante, 245 Ariz. at 142–43, ¶¶ 22, 25. That said, an “expert may not provide an opinion comparing the modus operandi of [a drug- trafficking] organization with the conduct of a defendant in a particular case” because “it is the province of the jury to determine whether a defendant’s conduct fits within the modus operandi of a <mask> organization.” State v. Garcia-Quintana, 234 Ariz. 267, 271, ¶ 14 (App. 2014); see also Escalante, 245 Ariz. at 143, ¶ 25 (observing that an expert may explain how certain items “can be used to mask the smell of illegal drugs from police dogs” but may not take the further step of opining that the defendant’s possession of such masking agents, “together with other behaviors, was ‘consistent with drug trafficking’“).


At defendant’s trial, he moved for a Sandoval ruling. (People v Sandoval, 34 NY2d 371 [1974].) The People sought to question the defendant for impeachment purposes, should he choose to take the stand in his own defense, regarding his prior convictions, which included a prior felony conviction in Federal court. The defendant had pleaded guilty in Federal court on February 19, 1992 to possession with intent to distribute cocaine within 1,000 feet of a school and possession of a firearm during a <mask> crime, after having lost his motion to suppress the physical evidence underlying both those charges. In pleading guilty on the Federal case, the defendant entered a conditional plea which provided he could appeal the District Court’s denial of his suppression motion.


to one predicate but not the other.” Id. at 1289-90 (quotation marks omitted). The Court determined that, as in Cannon, Granda’s “alternative predicate offenses [were] inextricably intertwined— each arose from the same plan and attempt to commit armed robbery of a tractor-trailer full of cocaine.” And this “tightly bound factual relationship of the predicate offenses preclude[d] Granda from showing [on collateral attack] a substantial likelihood that the jury relied solely on” the one invalid predicate. Id. at 1291. Finally, for the same reason—that no reasonable juror would have concluded Granda conspired to possess the firearm in furtherance of only the invalid Hobbs Act conspiracy and not the <mask> crimes—this Court also concluded that Granda could not establish actual innocence. Id. at 1292; see also Parker v. United States, 993 F.3d 1257, 1263 (11th Cir. 2021) (following Granda as “materially indistinguishable” to conclude the § 2255 movant had not shown actual innocence to overcome the procedural default of his Davis claim where it was “undeniable on this record” that the movant’s “valid drug trafficking predicates [were] inextricably intertwined with the invalid Hobbs Act conspiracy predicate”). C. Wright’s Davis Claim is Subject to the Procedural Default Bar Wright argues his Davis claim cannot be procedurally defaulted because the error is jurisdictional. On collateral review, a defendant can avoid the procedural default bar altogether “if the alleged error is jurisdictional.” United States v. Bane, 948 F.3d USCA11 Case: 20-14869 Date Filed: 01/14/2022 Page: 13 of 22


Nadeem Makada, an immigration attorney, testified as an expert on the effect a drug-related conviction would have on a noncitizen's immigration status and what "reasonably competent specific affirmative advice would have been at the time of [the] plea." Makada said a <mask> offense was an aggravated felony known in the legal community as a "kiss of death." It permanently barred a noncitizen from reentering the United States and from obtaining any form of legal residency here.


Plaintiffs on the other hand argue that their appearance in the illustration is virtually identical to the photograph taken; that they were identified by friends as appearing in the illustration and that the illustration held them up to contempt, ridicule, and scorn in their community since they were depicted as involved in <mask>. They also assert that the photo and illustration were used without their consent.


At trial, Mr. Dincsalman testified that he just signed the subject papers without reading them. However, on further questioning, he indicated that in over 30 years of business he had probably never signed papers without reading them until, of course, the papers involved in this case. While a doubtful assertion on its face, the court having had the benefit of assessing his demeanor as Dincsalman rendered it, found the claim even more incredible and rejects it as nothing more than a convenient fabrication. Similarly incredible was the testimony of Mr. Erhan Kaatsiz. Mr. Kaatsiz took the stand as a prior felon, having been convicted on federal <mask> charges involving cocaine and heroin, and having served eight years in prison. It was shown that in their application for a New York State lottery license for their gas stations, where an applicant’s prior felony conviction would be fatal thereto, the ownership interests of Mr. Kaatsiz in the gas stations was omitted. On repeated questioning throughout his testimony Mr. Kaatsiz displayed evasive responses and would not definitively admit or deny whether he had knowledge of the critical facts at issue in this case including whether he knew of the debt to Americana, knew of the confession of judgment or knew of the assignment of the lease. Specifically, when asked whether he knew of the lease assignment to Americana he testified “I don’t remember,” and when asked whether he discussed it with Mr. Dincsalman he testified “I don’t think so,” and when asked whether he gave his permission for a confession of judgment for the debt of one million dollars to be entered against MP Associates he testified ‘T don’t remember.” In sum, he could not or would not definitively assert that he had no knowledge of the debt outstanding which his companies had run up for fuel deliveries from Americana or that he had no knowledge of the confession of judgment or lease assignment granted as security to insure further fuel deliveries for his gas stations.


with another who possesses [it] is insufficient” to show possession. Id. In Ochoa, we held that the government presented the jury with sufficient circumstantial evidence from which it reasonably could have concluded that the defendant had constructive posses- sion of ammunition because he exercised dominion and control over the bedroom in which it was located. United States v. Ochoa, 941 F.3d 1074, 1105 (11th Cir. 2019) cert. denied, 140 S. Ct. 2553 (2020). Specifically, the government connected the defendant to the bedroom through “his phones (one of which had on it a photo of Ochoa laying on the bed in the bedroom), personal identification cards, and travel papers bearing his name—all of which were found in the same bedroom as the ammunition.” Id. “The fact that other people had access to or may have also occupied the residence [did] not make [this] evidence insufficient.” Id.; see also United States v. Molina, 443 F.3d 824, 830 (11th Cir. 2006) (concluding sufficient ev- idence supported a defendant’s conviction for possession of a fire- arm in furtherance of a <mask> crime because the firearm was found in the defendant's bedroom and the dresser drawer con- tained her passport). Here, the government presented sufficient evidence at trial that Richards was in constructive possession of the firearms. Rich- ards’s statements to law enforcement indicated that he had knowledge of the firearms in the residence and intended to use them when needed, firearms were discovered in almost every room of the house, and Richards was discovered within reaching USCA11 Case: 21-10695 Date Filed: 01/26/2022 Page: 5 of 8


The primary programmatic purpose must be determined by examining “the underlying reason for undertaking it” as opposed to “the particular manner in which the checkpoint was conducted” (Trotter, 28 AD3d at 169-170). Thus, where the Rochester Police Department checked vehicles at a checkpoint for windshield stickers, driver’s licenses and registrations as part of a larger initiative aimed at detecting and deterring violent crime and <mask> in a specific target area, the stop violated the defendant’s Fourth Amendment rights and all items seized from the defendant were properly suppressed (People v Trotter, 28 AD3d 165 [2006], supra).


In early 1985 a police investigation led to the conclusion that the second floor apartment at 149 Highland Place in Brooklyn was being used for the packaging and distribution of heroin. The apartment was occupied by Manny Vargas, who *753the police suspected was the kingpin of this particular <mask> operation. The police set forth the facts supporting their conclusion in an affidavit and obtained a search warrant for the location. On February 9, 1985, at 8:45 p.m., the police unit consisting of approximately a dozen officers executed the search warrant and raided the apartment.


There are, at present, three nightclubs operating on the block on which the premises is located. Venture proposes to open a *269nightclub with a capacity to accommodate 300 to 400 people, which will serve food, and feature both live and recorded music. The club will be open Wednesday through Sunday from 9:00 p.m. until 3:30 a.m. The nightclub will be located on the premises recently vacated by another nightclub, known as Cheetah, which petitioners label “notorious” for its excessive noise, milling crowds, honking taxis, <mask>, and violent episodes, including, allegedly, a shooting. (Affirmation of urgency at 2.) Petitioners, who include local residents, community organizations, as well as a New York State Senator and a member of the New York City Council, claim that the neighborhood is already oversaturated with bars and nightclubs, and express their concern that the new club will be just as disruptive to the lives of the residents of the area as was Cheetah. Consequently, they oppose the Authority’s decision to bestow a liquor license on Venture.


Both officers testified at the instant hearing. Officer Guy testified that his informant never told him that the purchases were made within the second-floor apartment, in spite of his affidavit to the contrary. Bewildering was his further statement, that he made no personal investigations or observations to support his belief that <mask> was being conducted on the second floor, although his affidavit indicated that he did. Credulity was stretched even further, by his testimony that he read and signed his affidavit after he heard the contradicting testimony of his informant before the issuing Judge. In spite of all, he nevertheless, maintained that he believed that the affidavit was correct when he signed it.


Crippen's second point on appeal is that the circuit court clearly erred in finding that his trial counsel was not ineffective for failing to call the crime-lab chemist as a witness at trial, which he claims is a violation of his Sixth Amendment right to confront that witness. Again, he relies on the discrepancies in the description and weight of the drugs in the crime-lab report and in the testimony of Reese and contends that someone tampered with the evidence to overcharge him with <mask>. He argues the testimony of the chemist would have confirmed his theory.


Poplar Bluff, Missouri, detectives began investigating Reed in the spring of 2014, after receiving tips from informants that Reed was trafficking heroin out of his residence and complaints from Reed’s neighbors about unusually high traffic to and from the residence, consistent with <mask>. On May 21, 2014, while surveilling Reed’s residence, Detectives Jason Morgan and Josh Stewart observed a known heroin addict, James Hovis, leave the residence and approach a parked vehicle with three occupants. Aware that Hovis had an outstanding arrest warrant, the detectives arrested him. During a search incident to the arrest, Hovis was found to be in possession of heroin and hydrocodone. During an interview, Hovis informed law enforcement that Reed sold him heroin from a metal tin that Reed kept in his pants pocket. Based on the information received from Hovis and his personal observations, Detective Morgan prepared an application for a search warrant covering Reed’s residence and an affidavit in support of the application. A state judge issued the warrant.


However, in Watts , supra , 2 Cal.App.5th at page 231, 206 Cal.Rptr.3d 202, the court concluded, contrary to the above authority, that the criminal laboratory analysis fee is a fee rather than a fine and, thus, is not subject to penalty assessments. In reaching this conclusion, the Watts court rejected the Martinez courts' interpretation of the first paragraph of section 11372.5, subdivision (a). The court explained, "As to the statute's reference to 'total fine,' we fail to perceive how the fact that the crime-lab fee increases the 'total fine' necessarily means the fee is itself a 'fine' subject to penalty assessments. Nothing about the statute's use of the phrase 'total fine' is *495inconsistent with the conclusion that the crime-lab fee simply gets added to the overall charge imposed on the defendant after penalty assessments are calculated." ( Watts , supra , at p. 234, 206 Cal.Rptr.3d 202.) The court also cited legislative history that "bolsters the conclusion that the Legislature's characterization of the crime-lab fee as a 'criminal laboratory analysis fee' reflects an intent to treat the charge as an administrative fee not subject to penalty assessments" and explained that the fee was intended to defray administrative costs, not for retribution and deterrence. ( Id . at pp. 234-235, 206 Cal.Rptr.3d 202, citing People v. Vega (2005) 130 Cal.App.4th 183, 195, 29 Cal.Rptr.3d 700 ( Vega ) ["It is clear to us the main purpose of Health and Safety Code section 11372.5 is not to exact retribution against drug dealers or to deter drug dealing (given the amount of money involved in <mask> a $50 fine would hardly be noticed) but rather to offset the administrative cost of testing the purported drugs the defendant transported or possessed for sale in order to secure his conviction."].)


11 Elsewhere, the Aybar-Ulloa concurrence notes that "the application of the MDLEA to Aybar[-Ulloa]'s conduct in this case" -- i.e., conduct aboard a stateless vessel -- would likely be consistent with international law, [e]ven if we were to assume that the law of nations places limits on Congress's power under the Define and Punish Clause to subject foreign nationals on foreign vessels in international waters to our domestic criminal laws, and even if we were to assume that the United States may not assert protective jurisdiction over <mask> merely because it occurs on stateless vessels in international waters, see Robinson, 843 F.2d at 3-4.


Evidence also showed that Sadler actually participated in the conspiracy. After police arrested Tempo on June 14, 2016, geolocation data showed that the x3399 “Polo” number moved to 15652 Eastburn, an address that Sadler often visited (and possibly where he resided), and where his children lived with their mother. When Officer Villerot called the x3399 number trying to set up another undercover purchase on June 15, 2016, a man answered the phone and directed Officer Villerot to a location. Ultimately, Officer Villerot abandoned this undercover purchase. Around the same time, officers saw Sadler leave the Eastburn house in a black Escalade that officers had previously seen near “Polo” drug sales. Officers pulled Sadler over and found both “Polo” phones in the car. When police searched the 15652 Eastburn residence, they found a digital scale, a large bag with drug residue, sandwich bags, Noscapine—which is a popular heroin cutting agent—documents with Sadler’s name on them, and a firearm and ammunition. The jury heard evidence that these objects are commonly associated with <mask>.5 While these facts may not be enough, standing alone, to support the jury’s conviction, together, this evidence shows that Sadler sought out more involvement and leadership within “Polo” and that he attempted to take over “Polo” operations after many “Polo”


Moreover, it is certain that, with respect to this particular language, the alternative to a generous construction is a practical destruction of the avowed purpose of the legislation. If narcotics malefactors can avoid ultimate conviction for their participation in the packaging process by the simple expedient of fleeing to another room in the “factory” complex, then seldom will there be sufficient proof even to activate the “room presumption”. If the prosecution evidence cannot encompass a “close proximity” not measured by feet or locale alone, it can serve no practical or useful purpose in the continuing fight against illegal <mask> and packaging.


Arebalos asserts he was unaware at the first hearing of "extensive evidence regarding the regional narcotics task force surveillance" of him. But, beyond speculation, Arebalos does not explain-and nothing in the record shows-what this evidence was, what was allegedly new about it, and how it was material to the suppression motion. Without such details, Arebalos's claim fails. Arebalos focuses on Adelmann's motivation for stopping Arebalos's tractor-trailer, but the trial court could reasonably find that Arebalos's counsel knew prior to the first suppression hearing that Adelmann's motivation was to investigate Arebalos for <mask>. Arebalos's counsel therefore knew *194enough to articulate the potential relevance of his leading question, which Arebalos asserts was to explain the reasons for the stop, and pursue it and similar topics at the first suppression hearing.3 He therefore had the opportunity to present these arguments at the time of that hearing; he simply did not do so.


The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri, adopting the report and recommendations of the Honorable Abbie Crites-Leoni, United States Magistrate Judge for the Eastern District of Missouri. substance containing heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), as well as a charge of possession of a firearm in furtherance of a <mask> crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B). 2 The written plea agreement preserved Reed’s right to appeal the denial of the suppression motion. Reed now appeals, contending the search warrant affidavit was not supported by probable cause. We disagree and we affirm.


924(c)(1) titled “An Act to Throttle Criminal Use of Guns.” The 1998 amendment provided that “[s]ection 924(c) of title 18, United States Code, is amended . . . by striking ‘(c)’ and all that follows through the end of paragraph (1) and inserting the following: “‘(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of vio- lence or <mask> crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addi- tion to the punishment provided for such crime of violence or drug trafficking crime— “‘(i) be sentenced to a term of imprisonment of not less than 5 years; “‘(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and “‘(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. “‘(B) If the firearm possessed by a person convicted of a vio- lation of this subsection— “‘(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or “‘(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.’” Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469, 3469 (1998). The 1998 amendment therefore split section 924(c)(1) into two new subsections—18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(B)—and made three major changes to the section’s operation. First, new section 924(c)(1)(A) made clear that the offense created by section 924(c)(1) applies not only to any individual who “uses or carries a firearm,” but also to one who, “in furtherance of any such crime, possesses a firearm.” Second, the remain- ing portion of subsection (c)(1)(A) imposed new minimum terms of imprisonment for specified types of firearms use. In lieu of the pre-1998


This incident seemingly occurred in an area described as a "war zone”, plagued by <mask>, vandalism, robberies and rapes where the police are unsuccessfully fighting an uphill battle to curb criminal conduct. While a landlord has a nondelegable duty* to take minimal precautions to protect *439tenants and legitimate visitors from reasonably foreseeable criminal acts (Tartar v Schildkraut, 151 AD2d 414, 415, supra; Miller v State of New York, 62 NY2d 506, 513, supra; Iannelli v Powers, 114 AD2d 157, 161, lv denied 68 NY2d 604), it would be unreasonable to impose a duty to safeguard one such as the plaintiff because to do so would "cast the defendants in the role of insurers of the safety, of the premises” (Tarter v Schildkraut, supra, at 415, citing Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519, supra) for those engaged in criminal activities.


Every parent knows that teenagers make mistakes. A fifteen-year-old Henry Mendoza was no exception, though his error was far more serious than most. At that young age, Mendoza joined the Canta Ranas Organization (“CRO”), a Californian gang known for violent extortion and <mask>. Mendoza was a member of the CRO for at least eight years and served under the leadership of two of his childhood friends, the gang’s heads. All agree so far. But after this point, Mendoza’s path becomes less clear.


There is no merit to defendant’s contention that the classification of cocaine within the definition of the term "narcotic drug” is arbitrary and irrational. Conceding that the statutory definition is broader than the dictionary definition, the Legislature is not required to follow the latter in applying the term to a number of different classes of drugs for purposes of legal control (United States v DiLaura, 394 F Supp 770). In assessing the gravity of a criminal offense, the primary consideration is the harm it causes to society. The Legislature, in making this assessment, could properly view criminal narcotics sales not as a series of isolated transactions, but as symptoms of the widespread and pernicious phenomenon of <mask>. Social harm in drug distribution is great indeed. The drug seller, at every level of distribution, is at the root of the pervasive cycle of destructive drug abuse (see, generally, President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse [1967], p 7). Defendants would minimize drug trafficking by arguing that it is not a crime of violence. Because of their illegal occupation, however, drug traffickers do often commit crimes of violence against law enforcement officers and, because of the high stakes, engage in crimes of violence among themselves.


Treating first the dismissal of the libel actions, there can be little dispute regarding the proper standard to be applied in determining defendant’s liability for the allegedly defamatory picture. Although the infant plaintiffs are "private” persons, the subject matter of the article in issue — the involvement of juveniles in the city’s wide-reaching <mask> network —is unquestionably a matter "within the sphere of legitimate public concern” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199). Accordingly, defendant may not properly be cast in damages for defamation unless it is proven that it acted in a "grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” (supra, at p 199).


In contrast, the chain conspiracy usually involves several layers of personnel dealing with a single subject matter, as opposed to a specific person. Drug trafficking is often cited as a classic example of a chain conspiracy inasmuch as it is characterized by manufacturing links, wholesaling links and retailing links. (United States v Bruno, 105d 921 [2d Cir 1939], revd on other grounds 308 US 287.) A single conspiracy can be proven if each link knew or must have known of the other links in the chain, and if each defendant intended to join and aid the larger enterprise. (Marcus, op. cit.; Kotteakos v United States, 328 US 750 [1946]; Blumenthal v United States, 332 US 539 [1947].) The chain theory of conspiracy has been recognized by New York State courts in a <mask> case (People v Parker, 124 Misc 2d 772), and in a stolen property fencing scheme. (People v Kiszenik, 113 Misc 2d 462.)


Defendant relies on the cases of United States v Falcone (109d 579 [2d Cir 1940], affd 311 US 205 [1940]) and Direct *682Sales Co. v United States (319 US 703 [1943]). These cases are applications of the familiar principle, restated in the subsequent case of Ingram v United States (360 US 672 [1959]), that liability under the general federal conspiracy statute for a “[conspiracy to commit a particular offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.” (Id. at 678, quoting Note, Developments in the Law — Criminal Conspiracy, 72 Harv L Rev 922, 939 [1959]; see People v Ozarowski, 38 NY2d 481, 489-490 [1976].) In Falcone, a supplier of goods otherwise in free commerce, i.e., sugar, yeast and cans, was held not guilty of conspiring with a group of distillers to operate an illegal bootlegging operation because the suppliers had only a diffuse knowledge that the goods would be used in the illegal fashion actually contemplated by the buyer, and the supplier did not have knowledge that the buyer was conspiring with other distillers in a broader illicit distillery operation. In Direct Sales, by contrast, a supplier of morphine sulphate was held to have joined an illegal <mask> conspiracy engaged in by the doctor/buyer because the supplier sold a highly regulated product not in “free commerce” (id., 319 US at 710-711) “in such quantities, so frequently and over so long a period [the supplier] must have known [the doctor/buyer] could not dispense the amounts received in lawful practice and was therefore distributing the drug illegally.” (Id. at 705.) The defendant supplier in Direct Sales was held “not only [to] kno[w] and aquiesc[e], but [to] joi[n] both mind and hand with [the doctor/ buyer] to make its accomplishment possible.” (Id. at 713 [adding that “(t)he step from knowledge to intent and agreement may be taken” (emphasis supplied)].)


PER CURIAM: Nicole Lenae Hays pleaded guilty to drug possession, <mask>, and firearm possession charges in February 2017. The district court awarded Hays a downward dispositional departure to probation for 36 months with an underlying prison term of 160 months. After Hays tested positive for drugs on several occasions, the State moved to revoke her probation, and Hays stipulated to the violations. The district court revoked Hays' probation and ordered her to prison. On appeal, Hays argues the district court erred in imposing her underlying prison term without first ordering intermediate sanctions as mandated by K.S.A. 2014 Supp. 22-3716(c). Under the facts here, the district court was required to either impose a sanction in response to Hays'


704. In United States v. Ham, 628 F.3d 801 (6th Cir. 2011), the defendant argued that the district court erred by allowing an agent to testify whether certain quantities of crack were consistent with personal use. Id. at 805. The court emphasized that “this Court routinely allows qualified law enforcement officials to testify that circumstances are consistent with <mask> rather than personal use.” Id. (quoting United States v. Alford, 332 F. App’x 275, 282 (6th Cir. 2009)).


Neither the government’s question nor Smith’s response explicitly referenced Franklin’s intent. Rather, after establishing that 500 grams of cocaine and 300 grams of heroin constitutes a drug-trafficker’s amount, Smith defined the term “distribution amount” as “someone that’s trying to get rid of a lot of dope, it’s not just a guy selling just an ounce and two ounces in the house and breaking it down to 10s, 20s.” Given that this court has reiterated that an officer is permitted to testify that certain quantities of narcotics are consistent with <mask> rather than personal use, the district court did not plainly err in permitting Smith to testify that 500 grams of cocaine and 300 grams of heroin constitute a drug-trafficker’s amount.


Hernandez Lopez argues the district court’s application of §2D1.1(b)(12) was improper because the house was primarily a family home. This assertion is inconsistent with our precedent, which demonstrates that the enhancement applies when the defendant “uses the premises for the purpose of substantial drug-trafficking activities, even if the premises was also [his] family home at the times in question.” Id. at 707. Here the officers found distribution-level quantities of methamphetamine and a scale in the basement of the house where Hernandez Lopez lived with Escamilla and her children. The evidence established Hernandez Lopez stored methamphetamine in the basement and he dried and prepared the methamphetamine for distribution in the basement. Escamilla told the officers that Hernandez Lopez did not allow her or the children into the basement, and only his belongings were stored there. And, while there is no evidence of actual distribution occurring in the basement, the commentary to §2D1.1(b)(12) explicitly states that maintaining a premises for the purpose of <mask> includes storage of the drugs. USSG §2D1.1(b)(12), comment. (n.17); see also United States v. Garcia, 774 F.3d 472, 474-75 (8th Cir. 2014) (2-level enhancement appropriate where defendant stored drugs in a detached garage). The enhancement was appropriately applied here.


In 2005, Thompson was charged in a 49-count superseding indictment for his involvement in the Black Disciples <mask> network. He pled to a drug conspiracy count. At sentencing, the district court applied enhancements for Thompson’s role as organizer and leader of the gang’s drug activity, possessing and using a gun in connection with the drug dealing, and obstructing justice by lying to the court about his role in the Black Disciples during his plea colloquy. Though the government previously agreed to a reduction for acceptance of responsibility as part of the plea deal, the district court denied the offense level reduction based on Thompson’s false statements. The resulting Guidelines advisory range was life imprisonment. In the end, the district court sentenced Thompson to 540 months (45 years).


Using a confidential informant, the police made three methamphetamine purchases from Bone at his Des Moines, Iowa residence in September and October 2019. Thereafter, they obtained a search warrant for his home. The subsequent search revealed 42 grams of methamphetamine, a loaded .380 semiautomatic handgun, and other items relating to <mask>. After having his rights read to him, Bone admitted to possessing and selling methamphetamine and to owning the handgun.


At trial, the State included Roberts' prior conviction for distribution of methamphetamine in its opening statement, presented it as a stipulation at the end of its case, discussed it in its closing statement, and included it as a factor in its jury instructions. The State clearly relied on Roberts' prior conviction—but for what? Because Roberts never put his intent to possess drugs or paraphernalia in dispute—it is reasonable to assume the jury might have used Roberts' prior bad acts evidence to prove something other than intent, such as propensity. Other than his prior conviction, the State relied on evidence from Officer Cooper, a forensic scientist who testified that the substance in the suitcase was in fact methamphetamine, and Sergeant O'Hare who was at the scene but also testified regarding his experience with common <mask> practices. There was no testimony from Kennedy or anyone else identifying the owner of the suitcase. Officer Cooper provided circumstantial evidence, such as a lack of items labeled with Kennedy's name, that could demonstrate the suitcase did not belong to Kennedy. There was also circumstantial evidence that the suitcase did not belong to Roberts, such as its location, Roberts' contemporaneous statements at the scene, Kennedy's admission to recent drug use, and Kennedy's description of the needles used for his own drug use matching those found in the suitcase.


At trial, the State presented the following evidence. Detective Napier of the Fort Smith Police Department arranged a controlled buy of methamphetamine. In a controlled buy, an officer gives a confidential informant (C.I.) money to purchase drugs from a suspect. Detective Napier was investigating Curtis Jones for <mask> and arranged for a C.I. to perform a controlled buy with Jones. Detective Napier met with the C.I. on the morning of December 22, 2015, and had her purchase methamphetamine from Jones. The C.I. went to Jones's residence and purchased $200 worth of methamphetamine from Jones.


Brewer, 521 F.2d 556 (8th Cir. 1975), in which the Eighth Circuit Court of Appeals reversed a drug possession conviction where the district court had excluded evidence of how a testifying informant, who was the sole witness to the crime, had previously framed an individual in another criminal case. Id. at 562. Unlike in Brewer, R.E. did not testify at trial and was not the only witness to the drug deal that furthered the alleged <mask> conspiracy charged. Instead, video and audio evidence captured both the defendants' conversations – conspiratorial actions in and - 40 - (intentional or not) would have done little to help the defendants,


On both Defendants’ conspiracy charges, the jury found that the crimes “resulted in the death . . . [and] serious bodily injury of another person.” (Def. Tempo Jury Verdict, R. 665, Page ID #3629; Def. Sadler Jury Verdict, R. 667, Page ID #3643). On Tempo’s <mask> charges, the jury found that one count “resulted in . . . death” and four counts “resulted in . . . serious bodily injury.” (Def. Tempo Jury Verdict, R. 665, Page ID ##3629–31). Nos. 19-2217/2221/20-1177 United States v. Sadler, et al. Page 18


Tempo next argues that there was insufficient evidence to support his five charges under 21 U.S.C. § 841(a)(1), (b)(1)(C). He raises two issues in this regard: (1) whether he can be held liable for every “Polo” <mask> under § 841(a), and (2) whether “Polo” drugs caused the death and injuries of the four overdose victims as required under § 841(b)(1)(C).


The court admitted a February 2011 letter written by a deputy district attorney to a judge in a different case, regarding a probation hearing for prosecution witness Sabino Cabral (the Letter). The Letter states that Cabral is a material witness in the case against Aleman and Medrano, and was recently convicted in Arizona, in violation of his California probation. It continues, "Mr. Cabral testified at the preliminary hearing as a witness for the prosecution.... His testimony detailed the inner workings of a <mask> ring and the murder of a motorist on the 101 freeway. He has put *685himself at great personal risk by cooperating in this murder prosecution. [¶] To our knowledge he has not received leniency for his cooperation to date."


On questioning by Medrano's counsel, Cabral denied receiving leniency and denied that he testified about a <mask> ring, causing defense counsel to ask if the Letter is "a lie" adding, "You've never in your life detailed or testified about the inner workings of a drug distribution ring ... yet when the prosecutor asked you about it, you seemed to agree with it, correct?" When Cabral answered "yes," defense counsel said, "That's a dang lie. That statement is a lie because you've never done that, have you?" Cabral replied, "No."


There was no direct evidence admitted of a drug ring rivalry between defendants and the victims, only that they "had a beef" or engaged in altercations. No one proved that the victims were drug dealers, so the "beef" could have been anything-a family dispute, or disrespectful behavior. Even if the jury inferred that the beef was a <mask> rivalry, it went toward proving a motive for the seemingly unprovoked shootings, while the unarmed victims were driving down the road.


Despite defendants' best efforts to crush Cabral, the jury elected to believe his testimony against friends that he saw almost daily in 2008. The jury was *696informed that Cabral had immunity, but was not protected from a perjury charge. Owing to the Letter defendants used for impeachment, the jury knew that Cabral may have received leniency for his testimony, and was involved in a <mask> ring. The defense missed no opportunity to paint Cabral as a criminal unworthy of credence; they were not prevented from mounting a defense. As Aleman concedes, credibility is decided by the jury. (People v. Friend (2009) 47 Cal.4th 1, 41, 97 Cal.Rptr.3d 1, 211 P.3d 520 [" 'it is not a proper appellate function to reassess the credibility of the witnesses' "].)


The DDLA's genesis is the "Model Drug Dealers Liability Act" (the Model Act) presented to state legislators in the early 1990's by the "American Legislative Exchange Council" to provide " 'a means for parents and others to obtain monetary damages from drug dealers for the injuries caused by drugs to their family and communities.' " (145 Am.Jur. (rev. 2017) Trials § 2.) More than 20 states have adopted the Model Act or a version of it. (Ibid .; see, e.g. Ark. Code Ann. § 16-124-101, et seq. ; Col.Rev. Stat. Ann. § 13-21-801, et seq. ; Ga. Code Ann., § 51-1-46 ; Haw. Rev. Stat. Ann., § 663E-1, et seq. ; Mich. Comp. Laws Ann. § 691.1601, et seq. )8 The Council's Web site currently describes the goals of the Model Act: "(1) to allow all persons and companies harmed by illegal drugs to bring suit for damages against all persons who are part of the <mask> network within their 'target community'; (2) to deter people from becoming part of the drug distribution network; and (3) to encourage users to seek treatment and encourage companies to provide treatment, knowing that reimbursement may be possible from drug dealers themselves." (http://www.modelddla.com/Imposing_Products_Liability_ for_Illegal_Drugs.htm.)


The facts of Phillips are somewhat convoluted but offer an instructive parallel. Ms. Phillips and her husband attempted to sue a company (Cooper Laboratories, Inc.) that succeeded to the liabilities of a company (SMP-NY) that had purchased, for adequate consideration, a fertility <mask> business from E.S. Miller Laboratories, Inc. (Miller). ( Phillips , supra , 215 Cal.App.3d at pp. 1652, 1655, 264 Cal.Rptr. 311.) Miller and SMP-NY were both subsidiaries of Nestle, and after Miller sold the drug distribution business to SMP-NY, Miller continued as a profitable subsidiary, running warehouse operations for a decade until Nestle dissolved it. ( Id. at p. 1658, 264 Cal.Rptr. 311.) When plaintiffs sought to hold Cooper strictly liable for injuries allegedly suffered as a result of Ms. Phillips having ingested Miller's fertility drug, they failed. Cooper was not liable under Alad because the transfer of the drug distribution business from Miller to SMP-NY did not cause " 'the virtual destruction of the [Phillipses'] remedies against' " Miller. ( Id. at p. 1657, 264 Cal.Rptr. 311.) Miller had "continued as a separate viable corporate entity" and in the ensuing decade "was more profitable as a warehouse operation than it had been as a pharmaceutical operation." ( Id. at p. 1658, 264 Cal.Rptr. 311.) So, here, NCRS continued as a viable corporate entity after the sale of its car rental business, until its assets and liabilities were assumed by merger with General Motors. Nothing about the sale of its assets to New NCRS inhibited, let alone destroyed, Hernandez's remedies against NCRS, as she could have proceeded against NCRS or, after the merger, against General Motors for years after the sale to New NCRS.


Again, Appellant argues that State offered no evidence that he agreed to the conspiracy while in Brown County and also that he committed an overt act there to further the illegal <mask> ring in that county. We disagree that the State is required to do so to establish Appellant's guilt of engaging in organized criminal activity. Rather, the State must prove that Appellant conspired to commit an enumerated crime with the specific intent of participating in the criminal activity with a combination of persons and that he also possessed the intent to participate in the profits of the combination. PENAL § 71.02(a). And Article 13.21 of the Code of Criminal Procedure, enacted with the statute creating the organized criminal activity *343offense, provides a special venue rule. "This is similar to the portion of the venue provision dealing with conspiracy that permits prosecution for conspiracy in " 'any county in which one or more of the conspirators does any act to effect an object of the conspiracy.' " Id. "It is intended to permit placing venue in any of a large number of counties when the combination is an extensive one. There is no requirement that the defendant have committed an act in that county because the offense can be merely agreeing to commit an enumerated offense." George E. Dix & John M. Schmolesky, 40 Texas Practice Series: Criminal Practice & Procedure § 5:26 (2016). Thus, venue is proper where the engaging in organized criminal activity occurs. See 1 D. Mark Elliston & Terrence W. Kirk, Texas Practice Guide: Criminal Practice & Procedure § 2.23 (2016); see also Ford v. State , 282 S.W.3d 256, 266 (Tex. App.-Austin 2009, no pet.).


Therefore, the possession of cash in close proximity in both time and location to . . . where drugs were seized – and here it would be the shed which is up the stairs from the kitchen area – would be probative of <mask>. That the possession of that money and the secretion of that money . . . whether it be a space heater or in some sort of electrical socket in a wall shows . . . not only the proceeds of drug distribution which the State seeks to prove, but also a recognition or consciousness of guilt that the defendant chooses to hide that in the wall or a space heater.


This is a special proceeding to declare a forfeiture of respondent’s 1987 Volkswagen which was seized during the course of his arrest on a <mask> charge. The affidavit of the arresting officer states that he observed respondent arriving in *130his vehicle at a "known drug location”, then saw him exit the vehicle and enter an abandoned building where he purchased a white glassine envelope alleged to contain heroin. After returning to the vehicle and driving away, respondent was apprehended and placed under arrest and his vehicle seized.


Gutierrez likened the choice he faced between breath and blood testing to a defendant arrested in his car for <mask> who is then given a choice between two searches: a warrantless search of his car, which the constitution allows ( Arizona v. Gant (2009) 556 U.S. 332, 350, 129 S.Ct. 1710, 173 L.Ed.2d 485 ), and a warrantless search of his cellphone, which it does not ( Riley v. California , supra, 134 S.Ct. 2473 ). Counsel argued that if the suspect in this hypothetical chose the cellphone search, we would not consider it a valid search incident to arrest even though the suspect had chosen the cellphone search over a search that would have been a valid search incident to arrest. Counsel's argument is creative, but unpersuasive.


The defendant did not believe the police had the right to stop him and was very upset about the procedure. The defendant did not want the police officers to search him and tried to stop any search. The defendant struggled with the police officers and refused to be handcuffed. Eventually the defendant was handcuffed, arrested, and brought back to the police station. He was charged with harassment, resisting arrest, and felony <mask> (a search of the defendant incident to his arrest revealed drugs on his person).


As an initial matter, Penal Law § 220.78 contains six subdivisions. Subdivision (1) is concerned with a person who helps another person “who is experiencing a drug or alcohol overdose or other life threatening medical emergency.” (Id.) Subdivision (1) is the relevant subdivision here. The People ask the court to interpret subdivision (1) as being applicable (in regard to crimes under Penal Law art 220) only to crimes of possession of controlled substances, or involving paraphernalia, where the prosecution thereof relies on evidence obtained by the authorities as a result of the defendant seeking health care for another person who is experiencing an overdose or other life threatening medical emergency. The People assert the defendant here has not been charged with either a <mask> or a drug paraphernalia crime, and, therefore, the People argue Penal Law § 220.78 does not apply to this case.


Retribution is a recognized objective of criminal punishment (Notey at 282). But if a sentence of 25 years to life is appropriate for a getaway driver convicted of felony murder and reckless endangerment, why is a greater punishment warranted for defendant in the present case, convicted of only <mask> and reckless endangerment? Finally, to visit greater retribution on a defendant who was permanently disabled as a result of his crime serves no compelling penological objective (Notey, 72 AD2d at 282). The consecutive sentences imposed in this matter do not promote fairness in our criminal justice system and can only be regarded as unduly harsh and excessive.


“project manager interview “2. The project manager or his representative will interview the tenant in order to discuss the problem which may lead to termination of tenancy, seek to ascertain the facts involved, and, when appropriate, seek to assist the tenant by securing outside help. “the tenancy administrator “3. If remedial action by the Manager fails, or if the Manager believes that termination of tenancy is the appropriate course of action, he shall submit the entire file, together with his written recom*65mendations and the reason therefor, to the Tenancy Administrator for review and appropriate action. If the case is based on non-desirability, the Manager shall consider in reviewing the file, among other things, the extent of the impact of the behavior of the tenant’s family upon the project. If the Tenancy Administrator finds, after review of the file that a basis for termination of tenancy proceedings exists, the file shall be referred to the Legal Department for the preparation of a Notice of Charges.” There is no dispute that no such discussion was had with petitioner. Rather, respondent asserts that such a discussion is not required before a manager forwards the matter for a hearing because the charge involved allegations of criminal drug activity. Respondent cites no authority for this distinction between “common breach of rules and regulations, such as untimely payment of rent or improper disposal of garbage” and alleged <mask>. (Respondent’s mem of law at 11.) On the contrary, the Housing Authority Termination of Tenancy Procedures state at the outset that they “deal with termination of tenancy brought on any of the following grounds: Non-Desirability, Breach of Rules and Regulations, Chronic Breach of Rules and Regulations, Chronic Delinquency in the Payment of Rent, Non-Verifiable Income, Assignment or Transfer of Possession, Residual Single Person Occupancy and Misrepresentation” (H 1). Moreover, the language of the Termination Procedures (H 2) is that the manager “will,” not “may,” interview the tenant. Indeed, respondent’s interpretation is contradicted by the analysis in Escalera v New York Hous. Auth. (924 F Supp 1323, 1328 [SD NY 1996]), where the court identified the project manager interview as the first of the four decision-making levels provided for in the consent decree underlying the Termination of Tenancy Procedures.6


6. get her to strip for her dad’s friend because they needed money, but she would not do it. M.B. was so upset that the mandated reporting party called 911 so an officer could go check on her. The referral was substantiated for general neglect and deemed inconclusive for exploitation. Mother had a criminal history dating back to 2000, including various misdemeanor offenses such as <mask>, driving under the influence, petty theft, and elder cruelty. On September 3, 2020, the agency filed a petition on behalf of Joshua, Matthew, M.B., and M.S., contending they came within the juvenile court’s jurisdiction under section 300, subdivision (b)(1) (failure to protect). It was alleged the children had suffered or were at substantial risk of suffering serious physical harm or illness resulting from mother’s inability to protect them due to substance abuse issues, mental health issues, domestic violence issues with Joshua’s father, and failure to provide an appropriate home. As to Joshua, Matthew, and M.B., it was further alleged they came within the juvenile court’s jurisdiction under section 300, subdivision (j) (abuse of sibling) based on mother’s previous dependency case involving M.S. At the detention hearing on September 4, 2020, the juvenile court ordered the children detained from mother. That day, the social worker provided mother with referrals for parenting, individual counseling, and clinical assessments for mental health and medication and substance use disorders. The agency’s combined jurisdictional/dispositional report contained a social history of mother that was conducted in January 2019. Mother reported first using methamphetamine when she was 17 years old. She had previously undergone a mental health assessment, and the clinician informed her she had PTSD and bipolar disorder that may be substance induced. Mother further reported she was prescribed medication for depression through another clinician.


Wallach, J. The suppression court’s erroneous ruling, in this <mask> case, was based in part on an incomplete finding of facts. The unrefuted testimony in the record reveals that shortly after 9:00 p.m. on a late winter evening in 1992, uniformed Police Sergeant Gildea and Officer Fraiser chased and stopped a livery cab they had just observed running a red light on Fordham Road in the Bronx. Approaching with their weapons bolstered, Fraiser went to the driver’s side while Gildea took a position outside the passenger side, where he could observe the two occupants in the rear seat.


obstruction of justice charges. Defendant Demarco Tempo appeals his convictions and sentence on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; <mask> and distribution charges under § 841(a)(1), (b)(1)(C); and a drug possession and distribution near a school charge under §§ 841, 860. Defendant Kenneth Sadler challenges his convictions and sentence on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; a drug possession and distribution near a school charge under §§ 841, 860; a felon in possession of a firearm charge under 18 U.S.C. § 922(g)(1); a conspiracy to obstruct justice charge under § 1512(k); and witness tampering charges under § 1512(a)(2)(A). For the reasons discussed below, we AFFIRM Tempo’s convictions and sentence, AFFIRM Sadler’s convictions, but VACATE Sadler’s sentence, and REMAND for a new trial on the sole question of whether Sadler was within the chain of distribution as required before imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(C).


On November 4, 2014, the voters of California enacted "The Safe Neighborhoods and Schools Act" (hereinafter Proposition 47), which became effective the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 changed portions of the Penal Code and Health and Safety Code to reduce various <mask> and theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091, 183 Cal.Rptr.3d 362.) Section 3 of the initiative specified it was the "purpose and intent of the people of the State of California to:" "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession," "[a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors," "save significant state corrections dollars on an annual basis ... [and] increase investments in programs that reduce crime and improve public safety, such as prevention programs in K-12 schools, victim services, and mental health and drug treatment." (Voter Information Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70, § 3, subds. (3), (4), (6).) The electorate also directed that Proposition 47 "shall be liberally construed to effectuate its purposes." (Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1222, 189 Cal.Rptr.3d 907.)


The <mask> count was properly joined with the other counts in the indictment, because there was overlapping evidence that tended to prove both the drug charge and the charges relating to the original incident (see CPL 200.20[2][b]). Evidence of the original incident was relevant to explain how defendant came to be arrested for the drug charge, and evidence of defendant's flight from the police was relevant to all the charges (see People v Johnson, 48 NY2d 925, 926 [1979]; People v Khan, 174 AD2d 510, 510 [1st Dept 1991], lv denied 78 NY2d 968 [1991]). THIS CONSTITUTES THE DECISION AND ORDER


*315Simply put, New York has jurisdiction to prosecute, as an accomplice to <mask>, one who sent the drugs from another state to his fellow conspirators in New York. That conclusion is only underscored by the provisions of CPL 20.60 (2) which, as noted, state that one who causes property to be shipped to New York is “deemed to have personally transported” it to New York and “to have personally made . . . delivery” in New York. Under that rale, defendant is deemed to have been present in New York when Federal Express delivered to the coconspirators the pills he had tendered to that company for shipment.


Our Supreme Court has stated that an "essential element[ ]" of every <mask> case is that the defendant possessed a controlled substance " 'in a quantity usable for consumption or sale.' " ( People v. Martin (2001) 25 Cal.4th 1180, 1184, 108 Cal.Rptr.2d 599, 25 P.3d 1081 ; People v. Palaschak (1995) 9 Cal.4th 1236, 1242, 40 Cal.Rptr.2d 722, 893 P.2d 717 ). Accordingly, under the official instruction that states the elements in most simple-possession drug cases, the jury is told that the prosecution must demonstrate that "[t]he controlled substance was in a usable amount." ( CALCRIM No. 2304.) Likewise, our opinion today states that an element of the *358defendant's Penal Code section 4573.6 crime was that the drug was in an "amount sufficient to be used as a controlled substance." (Maj. opn., ante , at p. 343.)


Harlee argued that severance was required because of possible prejudice that might result to him from the jury hearing about his codefendant’s alleged <mask>. The evidence would show that defendants were best friends and that Harlee had stayed at Summers’ apartment the night before. Additionally, defendant Harlee argued that the drug counts were not properly joined in the indictment with the assault and robbery counts.


In denying the suppression motion regarding the Federal firearms prosecution, the court saw no impropriety with the BATF agent’s search of the premises under the State warrant, even though his goal was completely separate and distinct from the State goal, and there existed probable cause to obtain a Federal warrant. The court found that the State warrant was acquired in good faith and that there was collaboration on the part of the State and Federal agencies, notwithstanding the fact that the BATF agent was there to investigate a crime unrelated to <mask>.


Although the court’s research had discovered no case in New York which has answered this question, it has been addressed in other jurisdictions. Thus, in United States v Bazy (1994 WL 539300, *3, 1994 US Dist LEXIS 14165, *7 [D Kan, Aug. 29, 1994], affd without op 82d 427 [10th Cir 1996]) after the defendant was legally arrested on the street for <mask> and patted down, the police detected “something in his underwear.” They then placed him near a car, unbuckled his pants, and, stretching his clothes away from the defendant’s waist, and reaching into his underwear with a rubber-gloved hand, removed a block of cocaine from beneath his scrotum. In upholding this search, the Bazy court first noted that while a search incident to a legal arrest extends to a full search of the person (see, United States v Robinson, 414 US 218 [1973]), such authority does not permit a strip search. (Accord, People v More, 97 NY2d 209, 213 [2002].) The court also noted that a strip search, being an invasion of personal rights of the first *485magnitude (Chapman v Nichols, 989d 393, 395 [10th Cir 1993]), may only be justified on the street upon exigent circumstances. The court then found such circumstances existed based on the probable cause that the defendant had secreted drugs in his underwear; that if they were not immediately removed, they were subject to imminent destruction or disposal, and in fact posed a health risk to the defendant who was attempting surreptitiously to push them into his rectum. Moreover, the court noted that while the search was more than a pat down, it was still limited in scope: the defendant was not required to disrobe nor were his private parts visible to the public.5 The search was therefore reasonable.


Sections 1203.1ab and 1210.1 and Health and Safety Code section 11551 do not authorize the trial court's order. Section 1203.1ab authorizes an order requiring, as a condition of probation, a defendant convicted of an offense involving the unlawful possession, use, sale or other furnishing of any controlled substance to pay the cost of drug and substance abuse testing, under certain circumstances. Section 1210.1 requires drug testing as a condition of probation in a case where the defendant was convicted of a nonviolent <mask> offense. (§ 1210.1, subd. (a).) Defendant was not convicted of a drug-related offense. Moreover, even when it applies, Health and Safety Code section 11551, which authorizes periodic drug tests in certain circumstances, does not authorize an order requiring the probationer to pay the cost of administering the tests. ( Health & Saf. Code, § 11551, subds. (a), (d).)


Initially, we note that petitioner has abandoned his challenge to the finding of guilt with respect to unauthorized exchange inasmuch as his brief is limited to challenging the smuggling and <mask> charges (see Matter of Staine v Fischer, 111 AD3d 999, 999 [2013]). With respect to those charges, a portion of the confidential testimony that was relied heavily upon by the Hearing Officer in rendering the determination was unavailable because the recording was indecipherable, thereby precluding us from undertaking a meaningful review (see Matter of Gallagher v Fischer, 108 AD3d 802, 802 [2013]). Accordingly, the determination must be annulled to that extent and the matter remitted for a new hearing upon those charges (see Matter of Medina v New York State Dept. of Corr. Servs., 104 AD3d 976, 977 [2013], lv denied 21 NY3d 859 [2013]).


We find unpersuasive the defendant’s contention that a New York State Police Trooper acted illegally in requiring him to exit the vehicle in which he was a passenger. The hearing evidence demonstrates that the trooper, working alone, had lawfully stopped the subject automobile for violations of the Vehicle and Traffic Law (see, People v Ingle, 36 NY2d 413; People v Pincus, 184 AD2d 666; People v Foster, 173 AD2d 841) and was engaged in placing the operator of the vehicle under arrest and conducting a search of his person at the rear of the automobile. Hence, the trooper’s direction that the defendant exit the vehicle was a lawful and appropriate safety precaution (see, People v Robinson, 74 NY2d 773, cert denied 493 US 966; People v Sprinkler, 198 AD2d 313; People v Rodriguez, 167 AD2d 122; People v Babarcich, 166 AD2d 655). Moreover, the defendant’s act of discarding a cut plastic straw containing what appeared to be narcotics residue provided ample probable cause for his arrest on a <mask> charge.


Brewer, 521 F.2d 556 (8th Cir. 1975), in which the Eighth Circuit Court of Appeals reversed a <mask> conviction where the district court had excluded evidence of how a testifying informant, who was the sole witness to the crime, had previously framed an individual in another criminal case. Id. at 562. Unlike in Brewer, R.E. did not testify at trial and was not the only witness to the drug deal that furthered the alleged drug distribution conspiracy charged. Instead, video and audio evidence captured both the defendants' conversations – conspiratorial actions in and - 40 - (intentional or not) would have done little to help the defendants,