Defendant’s reliance on People v Retamozzo (25 AD3d 73 [1st Dept 2005]), which involved the same trial judge, is misplaced. In Retamozzo, we held that the defendant was denied a fair trial on <mask> charges by the trial court’s repeated questioning of the defendant during his direct testimony and of prosecution witnesses during cross-examination. However, in Retamozzo, the court posed questions that assumed facts that had not yet been testified to in order to bolster the People’s witnesses, repeatedly interrupted the defense cross-examination of the People’s eyewitnesses in order to “devalu[e]” and “denigrare]” the defense, and engaged in extensive questioning of the defendant to attack his credibility (25 AD3d at 76-78). This significant interference, which advocated the prosecution’s case and completely undermined the defense, does not exist here.


The petition also alleged that mother had an unresolved substance abuse problem; a history of methamphetamine use. She reportedly had last used methamphetamine approximately two weeks prior to the incident in which minor cut his finger. Mother's probation officer reported that mother was not enrolled in a drug treatment program, had multiple positive drug tests, and was not attending Narcotics Anonymous meetings. Mother's criminal history included spousal battery (Pen. Code, § 243, subd. (e)(1) ), vandalism (Pen. Code, § 594, subd. (a) -(b)(1) ), and <mask> offenses (Health & Saf. Code, §§ 11351, 11377, subd. (a) ). Minor's father had an even more extensive criminal history, and his whereabouts were unknown.


The voters accomplished precisely the same result by passing Proposition 47. The initiative proposed to "[r]equire misdemeanors instead of felonies for nonserious, *539nonviolent crimes like petty theft and <mask>." (Voter Information Pamp., Gen. Elec., supra, text of Prop. 47, p. 70, § 3, subd. (3).) It also sought to "[a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors." (Id. at § 3, subd. (4).) The reclassification and resentencing procedure is expressly available retroactively because it applies to anyone "currently serving a sentence for a conviction ... of a felony ... who would have been guilty of a misdemeanor under the act that added this section." (§ 1170.18, subd. (a), italics added.) We conclude, therefore, that the voters of California expressly changed the law for reasons of public policy in a way that is intended to affect the sentences of offenders like Gonzalez, notwithstanding the plea agreement, and that Gonzalez was therefore eligible for resentencing. Moreover, because the People conceded Gonzalez did not pose *1068an unreasonable risk of danger to the public safety, the trial court was required to grant her petition and recall her sentence.


. People’s exhibit 9 reveals that defendant was taken into custody on May 29, 2001 on charges of contempt and domestic violence. The minutes of his guilty plea in New Jersey also refer to an April 29, 2000 <mask> charge and a May 4, 2001 robbery of one Donnell Shields. There is no claim of any relationship between these charges and the May 17, 2001 Newark bar robbery or this indictment’s May 15, 2001 carjacking-kidnapping-homicide charges.


The testimony also showed that Riggs's homelessness, instability, <mask>, and subsequent plea to a charge of possession of drug paraphernalia prevented her from engaging in visitation with her children, and the circuit court found that these factors demonstrated that the children faced potential harm if returned to Riggs's custody. We have affirmed a circuit court's best-interest finding, in part, because a parent's overall lack of stability was evidence of potential harm. Robinson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 262, 520 S.W.3d 322. Moreover, both DHS and the tribal representative from the Cherokee Tribe were in agreement that returning the children to Riggs would be detrimental to them.


Turning to the case at bar, the juror in question stated that he had once used cocaine in the past and that he felt marihuana possession should be legalized. The juror admitted that he presently does not take any drugs and agrees with laws dealing with <mask> and drug sale. The juror only expressed reservations with marihuana possession, a crime which is not relevant to the charges in this case.


Petitioner claims that it presented no witnesses because the federal officials would not respond to its attorney’s subpoena. Even if this is true, petitioner presented no other proof of the alleged nuisance conduct. Certainly if respondent had been engaged in ongoing <mask> and sales over the course of three years as petitioner claims, a neighbor or building employee would have made some observation of such. Petitioner makes a point of the many playgrounds and children in the complex. If respondent was dealing drugs in the subject premises or grounds, some concerned parents undoubtedly would have complained and there would be at the very least a complaint or police report.


The dispositional report filed by the San Mateo County Human Services Agency (Agency) indicated that mother was homeless after an August 2014 *394domestic violence incident with M.C., which led to arrests for both on domestic violence and <mask> charges. Mother reported M.C. " 'punched and stomped her in the chest' " and so she " 'cracked him over the head' " with a bong. Mother admitted consistent past methamphetamine use with M.C. She told the social worker she no longer used methamphetamine, but did drink alcohol. She reported a diagnosis of schizophrenia and stated she often heard voices. Mother was pregnant with M.C.'s second child and, according to the social worker, her focus appeared to be on rekindling her relationship with M.C.


"While the petition is extremely difficult to decipher, it is apparent he does not feel he is being treated fairly when it comes to interaction with other inmates and claims that jailers have threatened to frame him for <mask>. He does not indicate that any of these actions have occurred, and the most he can assert in regards to any actual fact is that he feels uncomfortable and threatened. Not only is he seeking release from pretrial detention, he is seeking relief of dismissal of the charges against him. This is relief that cannot be obtained through habeas corpus, and further, the facts do not justify his pretrial detention release. If he has grounds for release, he should seek them through the criminal actions against him." (Emphasis added.) Bowers timely appealed. His appointed counsel filed an appellate brief on his behalf but Respondent, Barton County Sheriff Brian Bellendir, never submitted a brief.


Immunity from the narcotics laws was again denied to members of the Neo-American Church in North Carolina v. Bullard (267 N. C. 599 [1966]). The defendant’s brief correctly points out that the North Carolina court questioned the sincerity of the defendant’s claim. However, the court then went on to say: “ Even if the defendant were sincere and possessed and used such drugs only as required by his religious belief, his First Amendment rights did not protect him from criminal liability for such forbidden <mask>. The court said that it was true that the First Amendment permits a citizen complete freedom of religion, so that he may belong to any church or to no church and may believe whatever he will, but nowhere does it authorize him in the exercise of his religion to commit acts which constitute threats to the public safety, morals, peace, and order. The court concluded: ‘ The defendant may believe what he will as to peyote and marijuana and he may conceive that one is necessary and the other is advisable in connection with his religion. But it is not a violation of his constitutional rights to forbid him, in the guise of his religion, to possess a drug which will produce hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia, and his position cannot be sustained here — in law nor in morals. ’ ” (Ann. 35 ALR 3d 946-947).


*434Defendant, then age 29, had five prior felony convictions, four of which occurred in New Jersey and three of which involved <mask>. All occurred between 1991 and 1997. None of his prior convictions constituted violent predicates, and he was not sentenced here as a prior violent predicate felon. Nevertheless, on August 19, 2003, the court imposed the maximum sentence of 25 to life for the first-degree possession count, 1272 to 25 years for the third-degree possession count, with the sentences to run concurrently, and 27s to 7 years for the first-degree reckless endangerment count, with that sentence to run consecutively to the drug crime sentences.


“Eligibility. “An inmate must satisfy all criteria set forth in subdivisions (a) through (d) of this section to be eligible for merit time consideration . . . “(b) Disciplinary record criteria. An inmate must not commit any serious disciplinary infraction. A serious disciplinary infraction shall be identified as behavior which results in criminal or disciplinary sanctions as follows: “(1) any conviction for a State or Federal crime that was committed after the inmate was committed to the Department of Correctional Services; “(2) a finding under Part 253 or 254 of this Title of violation of any of the following rules as described in section 270.2 of this Title: “(i) 1.00 — Penal Law offenses; “(ii) 100.10 — assault on inmate; “(iii) 100.11 — assault on staff; “(iv) 100.12 — assault on other; “(v) 101.10 — sex offense; “(vi) 101.20 — lewd exposure; “(vii) 104.10 — rioting; “(viii) 105.12 — unauthorized organization; “(ix) 108.10 — escape; “(x) 108.15 — abscondance; *995“(xi) 113.10 — weapon; “(xii) 113.13 — alcohol; “(xiii) 113.24 — drug use; “(xiv) 113.25 — <mask>; “(xv) 117.10 — explosives; “(xvi) 118.10 — arson; “(xvii) 118.22 — unhygienic act; “(xviii) 180.14 — urinalysis violation; “(3) receipt of disciplinary sanctions under Part 253 and 254 of this Title which total 60 or more days of SHU and]or keeplock time-, or “(4) receipt of any recommended loss of good time as a disciplinary sanction under Part 254 of this Title.” (Emphasis supplied.) Statutory construction is clearly a function of the courts (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 75; see also, Matter of Yong-Myun Rho v Ambach, 74 NY2d 318 [1989]). The rules of statutory construction require that when the language of a statute is clear, the court must give effect to the plain and ordinary meaning of the words used therein (see, Statutes § 94; see also, People v Munoz, 207 AD2d 418 [2d Dept 1994]). Moreover, Statutes § 94, Comment explicitly provides in part as follows: “The Legislature is presumed to mean what it says.”


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).


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 defendant Outley was denied an “evidentiary” hearing, and his sentence was enhanced after the trial court heard the *549defendant’s attorney explain that the defendant had no intention to violate court orders which were the basis for his arrest for criminal contempt between plea and sentence. The defendant Ogtong likewise was denied an “evidentiary” hearing, and he received a more severe sentence after the defendant’s attorney explained to the court that the defendant’s arrest for a misdemeanor <mask> charge was only a technical violation and that the defendant lacked any intention to violate the court’s “no arrest” condition.2


On December 14, 2004, Governor Pataki signed into law chapter 738 of the Laws of 2004, known as the “2004 Rockefeller Drug Law Reform Act” (DLRA), which, among other things, includes provisions that increased the weight thresholds from four to eight ounces for A-I felony <mask> and from two to four ounces for A-II felony drug possession, changed the sentencing structure for drug felonies from indeterminate to determinate sentences, eliminated life sentences, permitted certain sentenced A-I drug offenders to apply for immediate resentencing and provides for sentenced A-II drug offenders to have additional merit reductions of the minimum term of their sentences. The new law also provides for the termination of lifetime parole for sentenced class A-I and A-II felony drug offenders after three years of unrevoked parole.


Finally, we note our decision comports with the stated goals of Proposition 47, which declares the "act shall be broadly construed to accomplish its purposes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 74, § 15 (Voter Information Guide).) "One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative." ( Harris v. Superior Court (2016) 1 Cal.5th 984, 992, 209 Cal.Rptr.3d 584, 383 P.3d 648.) The Act "also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes.' " ( Gonzales, supra , 2 Cal.5th at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437 ; see Voter Information Guide, text of Prop. 47, § 3, par. (3), p. 70.)


The primary issue in Williams was whether Williams's motion to suppress was specific enough to afford the prosecution notice of the grounds for the motion. But the court also elaborated on the prosecution's failure to meet its burden of proof and the importance of requiring it to do so. ( Williams , supra , 20 Cal.4th at pp. 138-139, 83 Cal.Rptr.2d 275, 973 P.2d 52.) The facts of the case, the court wrote, "underscore forcefully the reason behind [the] rule [that a valid inventory search must adhere to a preexisting policy or practice]. Deputy Hunt was surveilling defendant on suspicion of drug-related offenses and had called Deputy Oliver for assistance before defendant made the right turn without signaling. Deputy Hunt was likely looking for an opportunity to search defendant's truck. If he and Oliver truly intended to take an inventory pursuant to a preexisting policy or practice rather than to search for drugs, why did they fail to complete the inventory? Why, when they found what they assumed to be drugs, did their need to inventory defendant's truck mysteriously evaporate? Having found the drugs, the police still needed to tow the truck, but apparently they were no longer very concerned about following policy. The inference *803is strong that they were never very concerned about following policy; Hunt opened the leather bags, not because he wanted to take an inventory pursuant to a preexisting policy, but because he suspected defendant of <mask> and wanted an excuse to 'rummage[e]' for evidence." ( Id . at p. 138, 83 Cal.Rptr.2d 275, 973 P.2d 52.)


Following a six-month investigation, petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit unauthorized exchange, <mask>, smuggling, stealing and extortion. Following a tier III disciplinary hearing, petitioner was found guilty of unauthorized exchange, drug possession and smuggling and not guilty of the remaining charges. Petitioner’s administrative appeal was unsuccessful, prompting this CLR article 78 proceeding.


Our interpretation is consistent with the voters' overall intent in passing Proposition 47. Proposition 47 was intended to "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70.) Petty theft by false pretenses is precisely the type of nonserious, nonviolent crime Proposition 47 was aimed towards affecting. For example, Proposition 47 also made the crimes of forgery and drafting checks without sufficient funds of less than $950 misdemeanors. (§ 473, subd. (b); § 476a.) Moreover, theft by false pretenses is less likely to involve violence than a situation where a person has the intention to steal openly displayed merchandise from a store. To provide misdemeanors for that type of theft, but not for theft by false pretenses, would contradict the voters' general intent of requiring misdemeanors for nonserious, nonviolent theft crimes.


However, on cross-examination, petitioner testified he had abstained from illicit drugs since April 2004 — two months before his first arrest in June 2004 for <mask>. Petitioner admitted on cross-examination he has used heroin, cocaine, and marijuana in the past. Petitioner testified he receives mental health treatment, takes medications, and is supervised by parole. Although petitioner testified he now sees his daughter, he conceded that he is the sole occupant of his apartment.


Since his release in 1992 (and since his last conviction in Aug. 1987 almost 30 years ago), petitioner has not been arrested, was released from probation and pardoned for one of his <mask> charges,4 and has been a very successful and productive member of society. For example, petitioner graduated from Fordham University magna cum laude and earned a Master’s degree in social work, attaining licensure to work as a licensed clinical social worker. During that period, petitioner became a member of the National Association of Social Workers (NASW), and received the Black Men of Distinction Award from New York State Senator Marty Markowitz for his contributions to community service, entrepreneurial activities, and personal achievement. Petitioner also passed New York State’s Credentialed Alcoholism and Substance Abuse Counselor exam, and helped prepare students for the exam. Petitioner worked as a supervisor for the Addiction Research and Treatment Corporation in Brooklyn, became a provider of *898clinical screening and assessment services for impaired driver offenders, and was a director for a women’s shelter in Brooklyn, responsible for 48 employees and compliance with state and federal regulations. Petitioner also worked as a part-time social worker for the Lower Eastside Service Center in Manhattan, providing psychotherapy to inmates pursuant to New York State parole mandate, and organizing therapy groups to combat domestic violence. And, petitioner was a part-time adjunct professor at St. Joseph’s College in'Brooklyn, teaching courses in areas of health and substance abuse.


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.


Thus, the analysis of whether Bowers' K.S.A. 60-1501 petition may be dismissed must begin by accepting as true the allegations set forth in Bowers' initial K.S.A. 60-1501 petition. The district court failed to do this. Rather, in its order of dismissal, when discussing the petition's factual allegations, the district court found that "it is apparent [Bowers] does not feel he is being treated fairly when it comes to interaction with other inmates and claims that jailers have threatened to frame him for <mask>." Thus far, this is an accurate reading of the petition.


Despite "the broad consumer protection" objective underlying section 484e, the Supreme Court in Romanowski held this to be no reason to disregard the limitation to misdemeanor treatment prescribed by Proposition 47 if the $950 threshold is not crossed. ( People v. Romanowski, supra, 2 Cal.5th at pp. 913-914, 215 Cal.Rptr.3d 758, 391 P.3d 633.) We can discern no reason why enforcing the strong public interest in preventing identity theft is not subject to the same limitation prescribed by Proposition 47 and recognized in Romanowski . We repeat what the Supreme Court stated in Gonzales: " 'One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citations.] The Act also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes.' " ( People v. Gonzales, supra, 2 Cal.5th at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Both Page and Romanowski demonstrate the Supreme Court's view that the language of Proposition 47 should be "construed 'broadly' and 'liberally' to effectuate its purposes." ( People v. Page, supra, 3 Cal.5th at p. 1187, 225 Cal.Rptr.3d 786, 406 P.3d 319.) As the court pointed out in Page, "In the voter guide to Proposition 47, the Legislative Analyst explained that under existing law, theft of property worth $950 or less could be charged as a felony 'if the crime involves the theft of certain property (such as cars).' [Citation.] Under the initiative, according to the analysis, such crimes would no longer be charged as grand theft 'solely because of the type of property involved.' [Citation.] To the extent section 490.2 is ambiguous as to its inclusion of a theft charged under Vehicle Code section 10851, these indicia of the voters' intent support an inclusive interpretation." ( Ibid. ) These indicia similarly support an inclusive interpretation with respect to the theft of personal identifying information charged under section 530.5, subdivision (c)(2).


The framework for the principal issues before us was summarized in Jimenez , supra , 22 Cal.App.5th at pages 1286-1288 as follows: "On November 4, 2014, California voters enacted Proposition 47, 'The Safe Neighborhoods and Schools Act,' which became effective the next day. [Citation.] Proposition 47 reduced certain theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. [Citation.] ... [¶] Proposition 47 directs that the 'act shall be broadly construed to accomplish its purposes.' [Fn. omitted.] One such purpose of Proposition 47 is ' "to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative." [Citations.] [Proposition 47] also expressly states an intent to "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes." ' [Citations.] [¶] Proposition 47 added several new provisions, including section 459.5, which created the crime of shoplifting. Section 459.5, subdivision (a) provides: 'Notwithstanding [s]ection 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary.' 'Shoplifting is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense.' [Citations.] Section 459.5, subdivision (b) explicitly limits charging with respect to shoplifting: ' "Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." ' " (Citing People v. Gonzales (2017) 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437.)


¶14 As with <mask>, circumstantial evidence may support a conviction for possession of drug paraphernalia. See State v. Gill, 248 Ariz. 274, 278, ¶¶ 9–10 (App. 2020) (evidence sufficient to uphold conviction absent any DNA evidence or fingerprints on paraphernalia). Here, however, insufficient evidence supported Morrison’s using the syringe to hold heroin, let alone for the purpose of injecting heroin. See supra ¶¶ 9–13. Insufficient evidence, therefore, also supported Morrison’s conviction for possession of drug paraphernalia.


Second, the record contains evidence showing that the State connected the package, and its contents, to Shigemura. The package was addressed to Shigemura, at his residence. Within the package, the officers discovered a large quantity of methamphetamine-$12,000 worth-which supports an inference of Shigemura's possession under the totality of the circumstances. See *742State v. Smith, 850 S.W.2d 934, 944 (Mo. App. S.D. 1993) (finding sufficient evidence of <mask> where police uncovered 500 grams of marijuana hidden in a variety of locations throughout the apartment, even though there was joint possession of the apartment and the defendant had many guests the day the police discovered the drugs).


To convict a defendant of possession with the intent to distribute, the government must show “(a) the defendant knowingly (b) possessed a controlled substance (c) with the intent to distribute.” United States v. King, 339 F. App’x 604, 608 (6th Cir. 2009) (citing 21 U.S.C. § 841(a)(1), (b)(1)(B)). The defendant does not need to be in actual possession of the substances; “constructive” or “joint” possession suffices. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006). The evidence demonstrates constructive possession when it shows “ownership, dominion, or control over the contraband itself or the premises or vehicle in which the contraband is concealed.” United States v. White, 932 F.2d 588, 589 (6th Cir. 1991) (quoting United States v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983)). <mask> may be proven either by direct or circumstantial evidence, and such evidence need not “remove every reasonable hypothesis except that of guilt.” United States v. Morgan, 469 F.2d 83, 83 (6th Cir. 1972) (quoting United States v. Prieur, 429 F.2d 1237, 1238 (6th Cir. 1970)). Intent to distribute may be inferred from a large quantity of drugs. United States v. Phibbs, 999 F.2d 1053, 1065–66 (6th Cir. 1993) (finding that the possession of one kilogram of cocaine was enough to support an inference of intent to distribute).


The dispositional report filed by the San Mateo County Human Services Agency (Agency) indicated that mother was homeless after an August 2014 *394domestic violence incident with M.C., which led to arrests for both on domestic violence and <mask> charges. Mother reported M.C. " 'punched and stomped her in the chest' " and so she " 'cracked him over the head' " with a bong. Mother admitted consistent past methamphetamine use with M.C. She told the social worker she no longer used methamphetamine, but did drink alcohol. She reported a diagnosis of schizophrenia and stated she often heard voices. Mother was pregnant with M.C.'s second child and, according to the social worker, her focus appeared to be on rekindling her relationship with M.C.


Leija's case is closer to Berney than it is to Herrera or Pearson. In both Herrera and Pearson, the <mask> crimes had the physical evidence of the drugs themselves. But in Berney, the jury could only rely on the testimony of the victim who said that Berney took her tip jar without permission. The video of the incident was


*892Appellant attempts to avoid this conclusion by challenging respondent's assertion that "[o]ne has to possess marijuana in order to smoke or ingest it." Appellant points out that possession is not necessarily an inherent aspect of smoking or ingesting marijuana. A person can smoke marijuana without possessing it, for example, by smoking a joint in the possession of another person. Caselaw has recognized that "[i]ngestion ... at best raises only an inference of prior possession." ( People v. Palaschak (1995) 9 Cal.4th 1236, 1241, 40 Cal.Rptr.2d 722, 893 P.2d 717.) "[D]epending on the circumstances, mere ingestion of a drug owned or possessed by another might not involve sufficient control over the drug, or knowledge of its character, to sustain a <mask> charge." ( Ibid . ; People v. Spann (1986) 187 Cal.App.3d 400, 408, 232 Cal.Rptr. 31 [" 'possession,' as used in [ Penal Code section 4573.6 ], *286does not mean 'use' and mere evidence of use (or being under the influence) of a proscribed substance cannot circumstantially prove its 'possession' "].)


Brittney was convicted on August 21, 2014 on charges of child cruelty and felony <mask>. She was sentenced to three years of probation with a *515condition she serve 181 days in county jail. Due to a conviction for identity theft in Arizona, she was subsequently confined in state prison in Perryville, Arizona, with a reported January 6, 2017 release date.4


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).


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>.


Finally, we note our decision comports with the stated goals of Proposition 47, which declares the "act shall be broadly construed to accomplish its purposes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 74, § 15 (Voter Information Guide).) "One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative." ( Harris v. Superior Court (2016) 1 Cal.5th 984, 992, 209 Cal.Rptr.3d 584, 383 P.3d 648.) The Act "also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes.' " ( Gonzales, supra , 2 Cal.5th at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437 ; see Voter Information Guide, text of Prop. 47, § 3, par. (3), p. 70.) Accordingly, we reverse the juvenile court's order declaring E.P.'s offense a second degree burglary.


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]).


The pertinent statutes and regulations do not permit the parole board to calculate a single parole eligibility date for multiple offenses, nor do they permit the board to delay a parole vote on an eligible offense until an inmate is also parole eligible on a much longer concurrent sentence. By refusing to consider applicant for parole based on his eligibility date for his ten-year forgery sentence, and by instead delaying a parole vote for that offense until he is eligible for parole on his forty-year sentence, the parole board has deprived applicant of the possibility of beginning to serve his cumulated ten-year sentence for <mask>. This is an arbitrary deprivation of applicant's statutory right to be considered for parole on each offense after a specified period, and it may result in him being imprisoned for longer than other similarly situated inmates serving single sentences under materially identical circumstances. Given these circumstances, I cannot agree with the Court's conclusion that applicant is entitled to neither habeas nor mandamus relief. I, therefore, respectfully dissent.


Far more compelling is defendant's argument that "categorically excluding petty thefts charged under Health and Safety Code section 11368 contradicts *565Proposition 47's explicit purpose of reducing prison spending and maximizing alternatives for nonserious and nonviolent crime."3 The electorate intended Proposition 47 to "reduce punishment for any theft of property worth less than $950 that could previously be charged as grand theft based on the type of property." ( People v. Romanowski, supra , 2 Cal.5th at p. 910, 215 Cal.Rptr.3d 758, 391 P.3d 633.) As the court pointed out in People v. Gonzales, supra, 2 Cal.5th at page 870, 216 Cal.Rptr.3d 285, 392 P.3d 437, " 'One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citations.] The Act also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes.' " As the court there stated with respect to the contention that larceny should be treated differently from other forms of theft, "[t]here is no indication that the electorate somehow viewed ... differently" obtaining a small amount of drugs by the use of an altered prescription from doing so by other means of petty theft or shoplifting. ( Ibid . )


“Nor can claimant’s arrest on the <mask> charge support a finding of misconduct, because that charge was ultimately dismissed and there is no evidence in the record to suggest that claimant was in fact involved in any drug-related activity. To hold otherwise would give rise to an implication that willfulness has come to mean being in the wrong place at the wrong time. Indeed, such a holding would establish a dangerous precedent, i.e., that disqualifying conduct may be predicated on a mere arrest unsupported by a conviction.” (See also Matter of Weigand [Nassau County Civ. Serv. Commn.— Commissioner of Labor], 259 AD2d 824 [3d Dept 1999] [a finding of misconduct cannot be predicated upon an arrest for driving under the influence without a conviction].) Indeed, such a decision was made by the Unemployment Insurance Appeal Board in Silberzweig’s own case. (See exhibit 1 to reply mem.) Initially, the Department of Labor had disqualified Silberzweig from receiving benefits on the ground that his employment had been lost through misconduct because he had been absent without leave during his incarceration. The Appeals Board reversed, stating that


"Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." Proposition 47's addition of section 490.2 specifically reduced punishment for the "category of theft crimes ... that could previously be 'charged as grand theft' simply because 'the crime involves the theft of certain property' " by creating a $950 threshold regardless of the type of property involved. ( People v. Romanowski (2017) 2 Cal.5th 903, 910, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ), citing Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35 (Voter Information Guide).) This section was added to target certain "nonserious and nonviolent property and drug offenses": grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and <mask>. ( Ibid . )


We also acknowledge that the Court of Appeals, in Matter of Joseph M. (82 NY2d 128), declined to recognize an "inherent power” to unseal records, outside the literal provisions of CPL 160.50. In that case, the records were sought by a school board for the purpose of initiating disciplinary proceedings against a teacher for <mask>. Previously, the teacher had been acquitted of the identical charge. Clearly, a determination to open the records under those circumstances would have collided directly with the public policy which motivated the enactment of section 160.50.


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.)


In the first of those cases, Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County (37 NY2d 560), the petitioners, who had been convicted in the Federal court of conspiring to distribute and to possess with the intent to distribute narcotic drugs, were charged in New York State, inter alia, with criminal possession of a dangerous drug in the first degree. The conduct constituting the State possession charge was alleged as an overt act in the Federal indictment. After rejecting the petitioners’ Fifth Amendment double jeopardy argument on the basis of the dual sovereignty doctrine, the Court of Appeals turned to an analysis of the pertinent New York statutes. It found that the acts involved in the successive prosecutions constituted a single criminal transaction. The exception contained in CPL 40.20 (subd 2, par [b]) was found to be inapplicable because "[c]learly, the Federal drug conspiracy laws and the State’s <mask> laws are aimed at the same evil — narcotics trafficking” (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, supra, p 567).


The presentence report prepared in September 1993 states that defendant is 48 years old and that her first contact with the criminal justice system occurred when she was arrested and charged with criminal possession of a controlled substance in the fifth degree (cocaine) under indictment No. 1771/91. She was sentenced to an unconditional discharge on that case on May 21, 1991. She was again arrested for <mask> before the end of 1991. Approximately a year later, she was arrested for this case and charged with selling a total of three vials of crack to two separate individuals. Defendant has never been involved in any type of drug treatment program. The criminal justice system has never previously offered her any referrals or assistance in entering such a program.


"[Proposition 47] also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes.' [Citation.]" ( Gonzales , supra , 2 Cal.5th at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Martin lacks the prior convictions that would disqualify her from misdemeanor treatment under Proposition 47.


PER CURIAM: Nicole Lenae Hays pleaded guilty to <mask>, drug distribution, 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'


The issue is particularly troubling since if the presumption is to be routinely applied to anyone who enters a car, innocent people who step into a car, not knowing drugs are in the trunk, can be charged with the serious crime of <mask>. That frightening possibility must be balanced, however, against the equally important concern that if the presumption is not applied to drugs in the trunk, drug dealers, if wise enough, could transport their drugs in the trunk and only the driver would be subject to successful prosecution. Indeed, it was the difficulty in prosecuting drug traffickers which caused the Legislature to originally create the drug presumption (People v Leyva, 38 NY2d 160) and its constitutionality is well settled. (Ulster County Ct. v Allen, 442 US 140.)


*892Appellant attempts to avoid this conclusion by challenging respondent's assertion that "[o]ne has to possess marijuana in order to smoke or ingest it." Appellant points out that possession is not necessarily an inherent aspect of smoking or ingesting marijuana. A person can smoke marijuana without possessing it, for example, by smoking a joint in the possession of another person. Caselaw has recognized that "[i]ngestion ... at best raises only an inference of prior possession." ( People v. Palaschak (1995) 9 Cal.4th 1236, 1241, 40 Cal.Rptr.2d 722, 893 P.2d 717.) "[D]epending on the circumstances, mere ingestion of a drug owned or possessed by another might not involve sufficient control over the drug, or knowledge of its character, to sustain a <mask> charge." ( Ibid . ; People v. Spann (1986) 187 Cal.App.3d 400, 408, 232 Cal.Rptr. 31 [" 'possession,' as used in [ Penal Code section 4573.6 ], *286does not mean 'use' and mere evidence of use (or being under the influence) of a proscribed substance cannot circumstantially prove its 'possession' "].)


*324At the opening of the trial of the two brothers on the <mask> charge, counsel for the defendants moved to sever the trials on the ground that the defendant Galen Smalls by reason of his age was eligible to apply for youthful offender treatment. The motion to sever was granted and the separate trial of Rodney Smalls commenced. It was later revealed that Galen Smalls was 21 years of age and therefore ineligible for youthful offender treatment.


Brittney was convicted on August 21, 2014 on charges of child cruelty and felony <mask>. She was sentenced to three years of probation with a *515condition she serve 181 days in county jail. Due to a conviction for identity theft in Arizona, she was subsequently confined in state prison in Perryville, Arizona, with a reported January 6, 2017 release date.4


Our interpretation is consistent with the voters' overall intent in passing Proposition 47. Proposition 47 was intended to "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70.) Petty theft by false pretenses is precisely the type of nonserious, nonviolent crime Proposition 47 was aimed towards affecting. For example, Proposition 47 also made the crimes of forgery and drafting checks without sufficient funds of less than $950 misdemeanors. (§ 473, subd. (b); § 476a.) Moreover, theft by false pretenses is less likely to involve violence than a situation where a person has the intention to steal openly displayed merchandise from a store. To provide misdemeanors for that type of theft, but not for theft by false pretenses, would contradict the voters' general intent of requiring misdemeanors for nonserious, nonviolent theft crimes.


Defendant’s criminal history includes a youthful offender adjudication (YO) for burglary in the third degree in 1974, a resisting arrest and obstructing governmental administration conviction in 1980, a Georgia conviction for auto theft, aggravated assault and <mask> in 1982 (with a 3-year sentence imposed after revocation of a 10-year probation term), a felony cruelty to animals conviction in 1990, and this 1984 rape and associated offenses. Defendant’s effort to show that his Georgia convictions were for acts which are not felonies under New York law is improbable, given the sentences imposed and the title of the crimes involved. He does not allege that his convictions were not for felonies under Georgia law, and he fails to establish that the guidelines promulgated pursuant to Correction Law § 168-Z (5) (b) (iii) intended to import the definition of a second felony offender in Penal Law § 70.06 (1) (b) (i). (See New York State Board of Examiners of Sex Offenders, Sex Of*476fender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [Factor 9] [Nov. 1997] [referencing the Penal Law only in connection with the term “violent felony”].) I find that the People have, prima facie, established the existence of the prior felony, and the defendant’s proffer of the stack of Georgia statutes (exhibit A), is insufficient to put the court to the obligation to demand more particularized proof.


Here, had defendant knowingly faced the options of pleading guilty and subjecting herself to “a near-certainty of multiple decades of banishment from the United States” (United States v Orocio, 645d at 645) or proceeding to trial and risking a likely one-year period of incarceration and separation from her family upon conviction, she may well have chosen to proceed to trial in the hope of avoiding deportation and permanent exile from her loved ones upon partial or full acquittal. Moreover, had defendant proceeded to trial, it is not certain that she would have been convicted on the felony drug sale charge (Penal Law § 220.39). It is possible on the facts presented that defendant could have been convicted only of <mask> with intent to *767sell (Penal Law § 220.16 [1]), or of simple drug possession (Penal Law § 220.03), as a lesser included offense, and thus might have avoided a conviction for an aggravated felony and the certainty of elimination of the possibility of discretionary cancellation of removal.


The defendant Outley was denied an “evidentiary” hearing, and his sentence was enhanced after the trial court heard the *549defendant’s attorney explain that the defendant had no intention to violate court orders which were the basis for his arrest for criminal contempt between plea and sentence. The defendant Ogtong likewise was denied an “evidentiary” hearing, and he received a more severe sentence after the defendant’s attorney explained to the court that the defendant’s arrest for a misdemeanor <mask> charge was only a technical violation and that the defendant lacked any intention to violate the court’s “no arrest” condition.2


Proposition 47 directs that the "act shall be broadly construed to accomplish its purposes."3 One such purpose of Proposition 47 is " 'to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citations.] [Proposition 47] also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes.' " ( Gonzales , supra , 2 Cal.5th at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437, citing Harris v. Superior Court (2016) 1 Cal.5th 984, 992, 209 Cal.Rptr.3d 584, 383 P.3d 648, and the Voter Information Guide, supra , text of Prop. 47, §§ 2-3, par. (3), p. 70.)


CPL 30.30 (1) (a) provides that an indictment must be dismissed "where the people are not ready for trial within * * * six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.” It is well settled that a criminal action commences upon the filing of the first accusatory instrument notwithstanding the fact that this instrument may be replaced or superseded by a subsequent indictment during the course of the action (People v Lomax, 50 NY2d 351 [1980]; People v Osgood, 52 NY2d 37 [1980]). Therefore, both the robbery and <mask> charges are deemed to have *338commenced on January 21, 1993, when the felony complaint was filed.


Rena K. Uviller, J. Defendant has been indicted for first degree rape. At his arraignment bail was set in the amount of $15,000, bond or cash. *782Based upon defendant’s prior conviction for <mask>, the arraigning Judge directed that any proposed surety be examined prior to defendant’s release. (CPL 520.30.) Notwithstanding the Judge’s order, defendant was released from custody upon the posting of a bond two weeks later, without the surety having been examined. The bond was issued by the Frontier Insurance Company in the amount of $15,000. The justifying affidavit attached to the bond attested that Moisés Medina posted, in support of the bond, $5,000 cash, which included $3,910 as collateral plus a service charge and premium.


Defendant failed to provide a record supporting his contention that a Sandoval hearing was conducted in his absence. Thus, there is no basis to review his claim that his right to be present at all material stages of the proceedings was violated People v Bharat, 204 AD2d 169), or that the court’s Sandoval ruling was an abuse of discretion. In any event, in regard to the latter claim, the court’s ruling permitting inquiry into prior convictions for criminal mischief and criminal sale of a controlled substance, while precluding inquiry into two <mask> convictions, was a proper exercise of discretion.


Far more compelling is defendant's argument that "categorically excluding petty thefts charged under Health and Safety Code section 11368 contradicts *565Proposition 47's explicit purpose of reducing prison spending and maximizing alternatives for nonserious and nonviolent crime."3 The electorate intended Proposition 47 to "reduce punishment for any theft of property worth less than $950 that could previously be charged as grand theft based on the type of property." ( People v. Romanowski, supra , 2 Cal.5th at p. 910, 215 Cal.Rptr.3d 758, 391 P.3d 633.) As the court pointed out in People v. Gonzales, supra, 2 Cal.5th at page 870, 216 Cal.Rptr.3d 285, 392 P.3d 437, " 'One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citations.] The Act also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and <mask>, unless the defendant has prior convictions for specified violent or serious crimes.' " As the court there stated with respect to the contention that larceny should be treated differently from other forms of theft, "[t]here is no indication that the electorate somehow viewed ... differently" obtaining a small amount of drugs by the use of an altered prescription from doing so by other means of petty theft or shoplifting. ( Ibid . )


But the lab could not determine the quantity of methamphetamine on each scrap. Thus, Polk's primary argument in this appeal is that the prosecution failed to prove an essential element of his <mask> crime: that he possessed a "usable quantity" of the methamphetamine. His argument has appeal based on the language of the element. After all, if an unknown quantity of methamphetamine on three tiny scraps of paper is sufficient to show a "usable quantity" beyond a reasonable doubt, it is hard to see how any quantity could ever be too small. We nevertheless hold that his argument fails under existing law.


. People’s exhibit 9 reveals that defendant was taken into custody on May 29, 2001 on charges of contempt and domestic violence. The minutes of his guilty plea in New Jersey also refer to an April 29, 2000 <mask> charge and a May 4, 2001 robbery of one Donnell Shields. There is no claim of any relationship between these charges and the May 17, 2001 Newark bar robbery or this indictment’s May 15, 2001 carjacking-kidnapping-homicide charges.


In June 2014, mother was convicted on felony <mask> charges (which were later reduced to misdemeanors) for which she was sentenced to three years' probation and 180 days in jail. While in jail, mother took several classes, including Narcotics Anonymous, parenting classes, and substance abuse classes. When mother was asked why these classes "didn't work" (i.e. she began using methamphetamine again after release), she stated, "I honestly did take a lot of what I learned to use out there, and it ... did help me. But then ... I got released August 5th, and my dad passed away [as a result of alcoholism] August 8th, so that was really hard for me to deal with."


Immunity from the narcotics laws was again denied to members of the Neo-American Church in North Carolina v. Bullard (267 N. C. 599 [1966]). The defendant’s brief correctly points out that the North Carolina court questioned the sincerity of the defendant’s claim. However, the court then went on to say: “ Even if the defendant were sincere and possessed and used such drugs only as required by his religious belief, his First Amendment rights did not protect him from criminal liability for such forbidden <mask>. The court said that it was true that the First Amendment permits a citizen complete freedom of religion, so that he may belong to any church or to no church and may believe whatever he will, but nowhere does it authorize him in the exercise of his religion to commit acts which constitute threats to the public safety, morals, peace, and order. The court concluded: ‘ The defendant may believe what he will as to peyote and marijuana and he may conceive that one is necessary and the other is advisable in connection with his religion. But it is not a violation of his constitutional rights to forbid him, in the guise of his religion, to possess a drug which will produce hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia, and his position cannot be sustained here — in law nor in morals. ’ ” (Ann. 35 ALR 3d 946-947).


The jury convicted Tempo on seven counts: one count of drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; five counts of <mask> and distribution under § 841(a)(1), (b)(1)(C); and one count of drug possession and distribution near a school under §§ 841, 860. The court sentenced him to 30 years of imprisonment. The jury convicted Sadler on six counts: one count of drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; one count of drug possession and distribution near a school under §§ 841, 860; one count of possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1); one count of conspiracy to obstruct justice under 18 U.S.C. § 1512(k); and two counts of tampering with witnesses under 18 U.S.C. § 1512(a)(2)(A). The court sentenced him to 20 years of imprisonment for the drug conspiracy and distribution offenses, 10 years of imprisonment for the firearm offense, and 5 years of imprisonment for the obstruction of justice charges.


Rodriguez was convicted of second degree assault, a Class IIA felony. See Neb. Rev. Stat. § 28-309(1)(b) (Reissue 2016). Rodriguez’ sentence of 5 to 8 years’ imprisonment is within the statutory sentencing range for Class IIA felonies which are punishable by a minimum of no imprisonment and a maximum of 20 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). Because Rodriguez’ sentence is within the statutory limits, we consider only whether the court abused its discretion in weighing the appropriate factors. When imposing a sentence, a sentencing court is to consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019); State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017). At the time of the preparation of the PSR, Rodriguez was 28 years old, single, with no dependents. She graduated from high school and had a minimal criminal history which included convictions for speeding, <mask>, first offense driving under the influence, and refusal to submit to a preliminary breath test. The PSR reflected that Rodriguez had issues with alcohol and marijuana and that continuing mental health treatment would be beneficial. The probation officer set forth in the PSR: Based upon [Rodriguez’] minimal criminal history, her expressed preference [for] probation, interest in continuing mental health treatment, and the number of programs which would benefit [Rodriguez] and reduce her risk to recidivate, I believe she would benefit from a supervisory structure with cognitive and behavioral programming. Therefore I recommend she be sentenced to a term of probation in this matter. Based upon the severity of the offense, I recommend said sentence of probation be for an extended duration and include a period of incarceration. These conditions will emphasize the seriousness of the offense and promote respect for the law.


The second factor, whether the alleged offense included violence, the evidence is undisputed that it did. Lohman is alleged to have struck the victim from behind with some type of metal rod. This factor weighs in favor of retention. Lohman claims that the third factor, motivation for the offense, weighs in favor of transfer because he was acting in defense of his brother when he struck the victim. He describes the motive as “a typically juvenile motivation. A dispute over a girl.” The district court acknowledged Lohman’s reason for striking the victim, but also recognized that other witnesses indicated that the victim was not engaged in the fight prior to being struck by Lohman. The court described the motivation as “muddled” but concluded it weighed in favor of retaining jurisdiction. We find no abuse of discretion in this finding. Given Lohman’s close proximity to his 18th birthday, the district court reasoned that the time during which the juvenile court would have jurisdiction over him was “rapidly coming to an end.” Therefore, because of Lohman’s age and the circumstances of others involved in the offense, this factor weighed in favor of retention. Lohman argues that since the participants were between the ages of 16 and 18 years of age and had apparently gone to the park to fight, “the ages of the participants supports the transfer of this case to the juvenile court.” Brief for appellant at 21. We disagree, and find that Lohman’s age weighs in favor of retention. One of the most influential factors for retaining jurisdiction is Lohman’s previous history with the juvenile court system. Although Lohman refers to his prior juvenile adjudications as involving “relatively minor offenses,” the evidence supports the district court’s characterization of them as “regular and consistent involvement” with the court. His prior brushes with the law include charges for criminal mischief (damaging the hood of an automobile causing damage of $0-$500), <mask>, including marijuana and drug paraphernalia, theft (which was ultimately dismissed), possession of marijuana and drug paraphernalia, another charge of theft, criminal mischief with damage between $501 and $1,499, and terroristic threats, amended to disturbing the peace. As a result of these adjudications, Lohman has had a myriad of services provided to him, yet his actions continue to escalate. This factor weighs in favor of retention. The district court found that consideration of public safety and Lohman’s ability to appreciate the nature and seriousness of the crime both weighed in favor of retaining jurisdiction. Considering the fact that Lohman went to the park with a weapon and given his prior experience with the juvenile court, we agree with the district court that public safety is a concern and that Lohman had an appreciation of the consequences of his action and the danger that it posed. Lohman argues that because the altercation involved a female acquaintance, there “is no evidence that [Lohman] is out, wandering the streets of Sidney looking for his next victim.” Brief for appellant at 26. However, given the escalating nature of Lohman’s aggressive behavior, it is uncertain as to who, or what, may next set him off. These factors weigh in favor of retention. The only factor that the court found weighed in favor of transfer was a consideration of Lohman’s best interest, but recognized that it “is difficult to readily evaluate” his best interests. The remaining factors it found either neutral or irrelevant to the facts of this case. After considering all of the evidence, given the services which have already been provided to Lohman, the violent nature of the offense, Lohman’s age and previous history with the juvenile court system, and the need for public safety, we find no abuse of discretion in the district court’s order denying transfer of Lohman’s case to the juvenile court.


On February 22, 2017, appellant was adjudicated delinquent in case no. JV-2017-51 for <mask> of a handgun, obstructing governmental operations, and theft by receiving. His disposition was 24 months' probation and 90 days in the juvenile detention center. During his time in juvenile detention, appellant allegedly attacked a fellow juvenile and was charged with battery in the third degree on April 3, 2017. In addition, the State filed a petition to revoke appellant's probation in case no. JV-2017-51 based on the battery charge. An adjudication hearing took place on May 10, 2017, in which the trial court heard both cases together.


Jennifer Baptist testified that she was Zion's juvenile-probation officer. Prior to the current charges, Zion had been adjudicated delinquent for <mask> of a handgun and was on an indeterminate period of probation. According to Ms. Baptist, Zion had complied with some of his probation requirements but had failed to complete anger management and had twice tested positive for marijuana.


The juvenile court found that C.S. "does not have much by the way of juvenile offenses," and listed C.S.'s police contacts and the citations he received as a 14-year-old for misdemeanor possession of marijuana ( Health & Saf. Code, § 11357 ) and being a <mask> of alcohol ( Bus. & Prof. Code, § 25662 ), which resulted in letters of reprimand from the probation department. The court observed that C.S. was also cited for residential burglary and stealing a car when he was 14, "both felonies for which [a petition] was filed in [the juvenile] court."9 In addition, the court noted that C.S.'s fingerprints had been found on a stolen car but charges were not filed because the statute of limitations had run.


The holdings of the various cases are difficult to reconcile. It seems to me that the question is very well discussed in the opinion of Judge Hazard, in People v. Bevins (74 Misc. 377) in the Oneida County Court. After referring to some of the decisions mentioned above, Judge Hazard discusses the questions applying to the particular case before him. In that case the defendant had been convicted of <mask>. Afterwards he was being tried upon the charge of disorderly conduct arising out of the same transaction. The court said: “ It seems to be obvious that the crimes are separate and distinct as a matter of law, although they may be closely related on the facts. A man may be intoxicated without using profane and obscene language, and, vice versa, he may use profane and obscene language in excess without being intoxicated. Defendant could not have been convicted of the crime of public intoxication by proof of any quantity of obscene and profane language. There must have been other proof. As a matter of fact, there was proof in the intoxication case that he talked loudly, walked unsteadily and staggered.”


The first of the claimant’s witnesses was a Donald Roselle. He had been in the Chatterbox when Dixson came in and had talked to him for a few moments. He did not think Dixson appeared to be drunk. Roselle left the restaurant and was starting to drive away when he saw Dixson come out the door ahead of two troopers. He said Dixson’s hands were behind him and that he saw Trooper Sacco pounding Dixson around the face and neck with his fists. Roselle said he called to Sacco “ that’s a hell, of a way to pound a guy ” and that Sacco hollered back “ get out of here Roselle or I’ll get you later.” Roselle drove away. He was arrested the next night by Trooper Sacco for <mask>. Mr. Roselle had been drinking that evening and had a record of several convictions for speeding, impaired driving, etc.


Trooper Sacco was the first witness for the State. He stated that he and Trooper Field arrived at the Chatterbox Restaurant about 2:15 a.m. They visited for a few moments with Anna Doran and then were invited into the restaurant by off-duty Trooper Huckle and a Mr. Cashman to have a cup of coffee. He and Trooper Field went into the restaurant and as they walked back to the Huckle table he heard Dixson say ‘ ‘ here come those bastards.” He walked by Dixson and sat down at the table and ordered a cup of tea. He heard Dixson call “ Hey Buster ” a couple of times and then said Dixson walked over to the table and put a hand on the table and leaned on Sacco’s shoulder. Trooper Sacco said he could smell alcohol on Dixson and he was mumbling. The trooper said he told Dixson to sit down and that he replied that Sacco was not man enough to make him sit down. With that, Trooper Sacco said he stood up, told Dixson he was under arrest for <mask>, took him by the shirt and belt and took him out the door of the restaurant. He stated that as they went out the door Dixson twisted away from him and struck at him and fell to the ground. Sacco said he picked Dixson up and that Dixson struck him in the chest with his cast. Sacco said he struck once and only once. He said Dixson kept on punching so he and Trooper Field handcuffed him. They then took Dixson to the jail where Sacco cleaned his face with a wet towel and then called the troop substation and advised the duty officer of what had happened. He and Field then took Dixson to Dr. Stevenson who bandaged his head and they then returned Dixson to jail. Trooper Field essentially corroborated Sacco’s testimony. Both Sacco and Field are about six feet and three inches in heighth and we would estimate weigh between 195 and 215 pounds.


After the interview at the Canton substation, Dixson was taken by two other troopers to a Justice of the Peace in Nor-wood, where he was charged with <mask> and arraigned by the Justice. He was released on $10 bail after a plea of not guilty. He was eventually tried before Police Justice Halliday at Potsdam, without a jury, and was found not guilty.


If we did find such probable cause, we would also find that the State, through the agency of the State troopers, particularly Trooper Sacco, exercised bad judgment and extremely excessive force in effecting this arrest. In such a situation the State must respond in damages. (Piatkowski v. State of New York, 43 Misc 2d 424, mod. 24 A D 2d 544; Lippert v. State of New York, 207 Misc. 632.) We observed all the witnesses very closely and have weighed and considered their testimony carefully and thoroughly. We find that Mr. Dixson had been drinking but that his conduct did not approach that of <mask>. *108Wc find that Trooper ¡Sacco acted in a fit of pique and that, when his temper got the better of his training and judgment, he acted with brutal and unrestrained physical force on the body and person of the claimant herein; “he exceeded all proper and rational bounds.” (People v. Denker, 225 App. Div. 517, 520.)


The claim that the trial court committed errors in admitting certain other evidence upon the trial is not sustained. The evidence of Mrs. Keeling as to the transaction and her injuries is material, relevant and admissible. The question of the admission of the certificate of conviction for <mask> of the defendant is provided for by statute. It was for the jury to decide whether the defendant in this case was the person mentioned in the certificate.


It is specifically charged here that the defendant was advised to see the complainant in this case and pay him some money to withdraw the charge. I can see no honest reason why the complainant in the case would be interested in withdrawing a charge of intoxication and disorderly conduct upon the payment of any sum of money. <mask> is also a matter in which the community where the alleged offense took place is interested, and it is not a personal matter.


A prosecution is commenced when an information is laid before a magistrate charging the commission of a crime. The information is an allegation made to a magistrate that a person has been guilty of some designated crime. (Code Crim. Proc. § 145.) An information performs the same function as an indictment in a court of record and must set forth the facts to establish a crime, but the exactness required in an indictment need not be present. All that is necessary is that the information should state the crime charged with such accuracy that the defendant may know the exact offense which it is claimed he has committed. (People v. Olmsted, 74 Hun, 323.) However awkwardly an information in a police court may be drawn, if it charges a crime known to the law and states acts done by the accused that constitute such a crime, it will be sufficient. {People v. Pillion, 78 Hun, 74.) The information in this case clearly informed the defendant as to the precise crime with which he was charged and no error was committed by the magistrate in refusing to dismiss the charge. The defendant also contends that *582the magistrate erred in receiving certain other evidence in the case but I am unable to find any erroneous ruling made by the magistrate in the reception of evidence that in any way prejudiced the right-s of the defendant. In fact, the defendant made very few objections to the conduct of the trial and apparently relied entirely upon an alibi which he hoped to establish. The defendant contends that after having heard the alibi testimony the court should have dismissed the charge against the defendant at the close of the case due to the fact that the principal witness for the People had been convicted of several offenses. The witness McCarthy testified that he had been convicted a number of times for <mask>, once for petit larceny, and probably once for disorderly conduct, but the trial court could not find as a matter of law that because of these convictions for minor offenses the witness was unworthy of belief. “ Criminals may tell the truth. If after weighing their story, in view of all of the circumstances and all corroboration, it seems credible, we need not reject it merely because their reputation is bad or their habits vicious. Such facts are but a warning that caution should be used. For it is also to be remembered that in fixing the blame for such a crime as we are here considering the state is not likely to discover witnesses of high character.” {People v. Cohen, 223 N. Y. 406.) A jury may believe a witness of bad character in preference to one of good character if they feel the former has told the truth and the latter has not.


If the conclusion that <mask> is not a crime, and not covered by said section 1694, then we may logically say that one convicted of vagrancy or being a disorderly person, likewise does not come within its provisions. So, one confined in a county jail or other institution upon a conviction and commitment for any of such offenses, might with impunity, if occasion permitted, walk out on those in whose legal custody he was in, without fear of the penalty prescribed in said section. This creates a dangerous situation, and one of great importance to all the sheriffs of the State and the custodians of the institutions to which such commitments are made.


*1043The indictment charges a violation of section 1694 of the Penal Law, which makes an escape from custody or confinement by a prisoner a misdemeanor, if such custody or confinement is “ upon a charge, arrest, commitment, or conviction ” for a misdemeanor. The district attorney contends that <mask> is a misdemeanor. The defendant contends that it is not a misdemeanor.


In support of his contention the district attorney cites People v. Reson (249 App. Div. 54), decided by the Appellate Division, Third Department, on November 11, 1936, the facts in which case are the same as in the instant case and which raised the precise question as is raised here. That court held that <mask> is a crime, a misdemeaaor, and overruled a demurrer which had been interposed as here.


In support of his position, the defendant has submitted his own affidavit, the affidavit of his wife and the affidavit of his attorney. The affidavit of defendant’s attorney, John F. Cenesky, contains the statement, that on a prior occasion in March, 1953, when the defendant was arrested on a charge of <mask>, the Justice of the Peace told the defendant’s attorney in a telephone conversation, “ if the Defendant ever appeared before him for anything at all, he would throw the book at him and that he had no use for the individual. ’ ’


He cites People v. Reson (249 App. Div. 54). In that case the Third Department held that a man who broke out of jail while confined on a sentence for <mask> could be indicted for escape as a misdemeanor, holding the public intoxication was a misdemeanor and not an offense. That court stated that a person charged with public intoxication was entitled to a jury trial.


The Court of Appeals has thus settled the law. There is no right to a jury trial for <mask> under section 1221 of the Penal Law. Public intoxication is an offense, triable summarily by the court. (See, also, McQuage v. City of New York, 285 App. Div. 249; People v. Waters, 153 Misc. 686; People v. Cleary, 182 Misc. 302.)


The People contended that the defendant committed perjury in verifying the answer in regard to the allegations contained in paragraph fourth of the complaint and contended that the defendant denied that she had meretricious relations with one Theron 0. Freeman and lived in adulterous intercourse with him and denied that she was convicted of <mask> and that she was not a woman of chaste, virtuous and temperate habits and did not have a good character, record and reputation.


Both of the crimes of which the defendant was found guilty are crimes against the general public and one of the necessary ingredients of both the charge of <mask> and disorderly conduct is that the public must be disturbed. Without proof of such there is no violation. Since the crimes of which the defendant has been convicted, if they occurred, occurred in an isolated area with no persons or houses around it, the defendant could not be guilty of either such charge. (People v. Hook, 3 N Y 2d 485; People v. Huyck, 171 Misc. 467; People v. Perry, 265 N. Y. 362.)


“A. Shortly after midnight Jack Buchal of the Monticello Police Department came out to the Monticello Raceway and at that time he advised me that Charles Wingate, one of our drivers, had been arrested on a charge of <mask>, was presently confined in the Monticello village lock-up and at that time he told me that when the personal effects were removed from the prisoner there were various slips and papers which might be betting slips and papers, and he asked me if I was interested and I told him that I would proceed to the village lock-up with him as soon as the Raceway money had been deposited. This I did.


If the language of section 155 is to be literally construed, and if offenses and infractions are to be classified as misdemeanors, the Justice of the Peace would be required to inform every defendant charged with an offense or an infraction of his right of removal and grant him an adjournment for such purpose, if demanded. However, neither the County Court nor the Supreme *433Court is likely to grant such a certificate for the reason that a G-rand Jury has jurisdiction to investigate crimes only and has no authority to investigate nor indict for violations constituting offenses or infractions. Hence, even if such certificate was granted, in instances of offenses and infractions, it would have the bizarre effect of removing a case from a court which has original jurisdiction to a Grand Jury which has none. Regardless of the unqualified language of section 155 of the Vehicle and Traffic Law, such result could never have been intended. See, also, People v. Mulkins (25 Misc. 599, 601-603) where it was held to be no error to fail to inform defendant of the right to remove a charge of <mask>, an offense, from the court of original and exclusive jurisdiction. The same reasoning applies here.


On the evening of June 3,1971, two off-duty Village of Johnson City policemen, Patrolmen Robert Uhler and Stephen Holgash, decided to have a few drinks before going home from work and, after stopping briefly at two other taverns, proceeded to the Peppermint Lounge at 60 Broad Street in Johnson City where they arrived shortly after midnight on the morning of June 4, 1971. Present were the defendant and several other individuals, some of whom later testified on behalf of the defendant. Within a few minutes of the time that the two policemen entered the Peppermint Lounge, a personal argument took place between the defendant and Patrolman Uhler which involved, at most, some shoving and grabbing, and lasted approximately a minute. *1047It ended abruptly when the female proprietor intervened and separated the participants. At this time, the defendant moved to the other end of the bar, Patrolman Uhler went back to his bowling game, and 10 to 15 minutes passed without further incident. However, Patrolman Uhler evidently was not satisfied with the outcome of this minor fracas, for shortly thereafter he approached the defendant and either demanded an apology and accompanied this demand with the threat of arrest, or requested an apology and when the defendant declined to do so, attempted to place the defendant under arrest. In any event, a second scuffle ensued and after several people, including the defendant’s mother, either slipped and fell or were knocked down, the defendant was physically escorted by the two off-duty policemen out the door of the bar, across the street, and to the Johnson City police station. Here he was booked on charges of <mask>, harassment and resisting arrest. Bail was set at $100 and, following the posting of bail by several patrons of the Peppermint Lounge, the defendant was immediately released.


At the trial the prosecution rested its direct case after calling the two policemen involved in the incident in question and defendant moved to dismiss the charges against him. The Village Justice complied to the extent of dismissing the <mask> charge and the trial proceeded on the two remaining offenses. The defendant then called several witnesses, all of whom were either patrons or employees of the Peppermint Lounge on the night of the incident and all of whom substantially contradicted the policemen’s version of the events leading up to defendant’s brief incarceration. After the defendant himself took the stand, there was a rebuttal and surrebuttal and the defense unsuccessfully renewed its motion to dismiss.


Applying that standard to the facts, this court concludes that a reasonable man awakened from sleep and ordered out of his car by a uniformed officer would conclude that he was in custody and being subjected to “custodial interrogation.” Even if we premised our consideration on the proposition that the defendant was dead drunk, a fact which is not in any way sustained by the evidence as no proof whatsoever of the extent of the defendant’s intoxication was produced, it must be concluded that the defendant had not, was not and was not about to commit any crime, or offense or infraction of law. Intoxication, even <mask>, has been removed from the penal statutes of this State.


In that case it was held that a prior prosecution for <mask> did not bar a later prosecution for disorderly conduct, based upon some of the same actions, for one can be drunk without being disorderly and, therefore, different facts would have to be proved at the second trial, and that although the crimes may be closely related on the facts, they are separate and distinct as a matter of law.


In People v. Daniels (285 App. Div. 619) the defendant allegedly said “Hello, Honey: that’s my baby ” or words to that effect to a passenger in the car of a passing motorist who had asked police officers directions. One of the officers reprimanded defendant and then proceeded to place him under arrest. He was not told why or given any reason for the arrest. No charge of <mask> or disorderly conduct was ever lodged against him.


A city magistrate has summary jurisdiction to impose a sentence of imprisonment only in a limited number of offenses, such as disorderly conduct, vagrancy, <mask>, and with regard to violations of certain sections of the Sanitary Code (N. Y. City Crim. Cts. Act, §| 102, 102-c, 120). It is the Court of Special Sessions of the City of New York which has exclusive jurisdiction of all misdemeanors committed within the city, except charges of libel (N. Y. City Crim. Cts. Act, § 31). It is true that a city magistrate may hold a Court of Special Sessions where the misdemeanor is of a certain type, including any violation of any provision of the Multiple Dwelling Law (N. Y. City Crim. Cts. Act, § 130, subd. g); but that may only be where, upon arraignment before him, and after taking the information, deposition and statement of the defendant or his waiver, and after informing defendant of his right to be tried by three justices of the Court of Special Sessions, defendant consents to have the action heard and determined by the magistrate sitting as a court (N. Y. City Crim. Cts. Act, § 131). In that event, the conviction is the determination of the Court of Special Sessions and the commitment states, as it should, that it is issued out of the Court of Special Sessions of the City of New York; the entire proceeding, and, of course, the matter of jurisdiction with it, has been transferred into one properly before the Court of Special Sessions.


*813At the opening of this trial, although the defendant had joined the issue, it was shown that before another part of this court, he had announced the withdrawal of his answer to permit the case to go by default. At the same time he made the unsworn statement that lie was an alcoholic. He did not attend the trial. The case was tried on three separate days, the plaintiff testifying on the first, her nephew and brother on the second and she again on the third day. The plaintiff is a mature woman formerly married happily and in business with her former husband for 27 years. On a visit to her summer home in Woodbourne, N. Y., while helping in her sister’s restaurant she met the defendant in November, 1954. On 15 or 20 social occasions together when she imbibed, she testified that the defendant refused saying “ I don’t drink.” There was no direct inquiry by her for Iris disclaimer that he was not addicted to intoxicating stimulants. They were married in March, 1955, took up residence in her New York City apartment on Bennett Ave., and lived happily until just a year later when in March or April, 1956, upon returning to the apartment, she found him drunk and disorderly. Testimony by the plaintiff that there was a telephone call to an unidentified person affiliated with an organization whose objective is the rehabilitation of victims of alcoholic addiction and also that the defendant was taken to a hospital for related treatment must be rejected as hearsay and thereby incompetent. The defendant returned to Bennett Ave. five days later. The plaintiff says she told him that their marriage was at an end for his concealment but they continued to live at the apartment although not as husband! and wife. Four months later he repeated his drunkenness and then she packed up and moved out. Documentary proof was received of three convictions of this defendant for <mask> (Penal Law, § 1221) in 1951 and 1952, in courts near the place where the parties met and where the defendant had lived for 17 or 18 years. On the second day of trial the plaintiff’s nephew testified in corroboration of the plaintiff to the defendant’s premarital disavowal of the use of spirituous liquors. The plaintiff’s brother testified regarding his discovery of the defendant’s bad habits in December, 1956. On the third day the plaintiff was recalled. She changed her testimony as to post discovery relations between the parties. She had first said that their separate and independent occupancy of the same apartment had continued for four months, from his first drunken display in March, 1956 until the second in July or August, 1956. Evidently, to reconcile her story with her brother’s testimony, she now changed the time of the rupture to December, 1956. *814Thus for 9 months, she testified, they were in the same 2% room apartment, the defendant’s occupancy limited to sleeping there alone and nothing else. He did not eat there nor was his laundry supplied.


On March 4, 1956 defendant O’Connor’s automobile covered by the policy was involved in an accident as a result of which defendants Millie and Perley Hamilton sustained personal injuries and the defendant Millie Hamilton sustained property damage. Defendant O’Connor reported the accident to the ¿Etna Co. and on April 16, 1956, after an investigation, the ¿Etna Co. rescinded the policy, returned the premium with interest to O’Connor, and notified him in writing of the recission for the reason that plaintiff learned, after the accident, that *834O’Connor’s answer to question “ 15 (m) ” was false. There is no dispute that O’Connor was convicted on four occasions for disorderly conduct and <mask> during the 36-month period prior to the application.


Thereafter and on or about May 29,1961 the attorney for petitioner requested the then Mayor of North Tonawanda to approve *678five individual agents of petitioner to solicit funds for the American Eescue Workers. On May 31,1961 by létter to petitioner’s attorney, the then Mayor denied application of four of the five applicants. He denied the application of Loretta E. Ackerson on the ground that she submitted untrue statements in her affidavit, to wit: that she had not been convicted of any crime, misdemeanor or other violation of municipal ordinance when, in fact, she had been convicted on April 25,1959 for soliciting funds for the petitioner without the Mayor’s permit. The Mayor denied the application of Dewitt Ackerson on generally the same grounds and for the additional reason that his affidavit failed to disclose three violations of <mask> in the City of Buffalo in the years 1929 and 1934.


The petitioner was involved in a minor traffic accident in the City of Rome, Oneida County, New York, on November 7, 1963. There was some property damage, but no personal injuries were involved. The Rome City police came to the scene of the accident. Patrolman Fuller arrested the petitioner at the scene on a charge of driving while intoxicated. His sworn report, of November 7, 1963, stated: “ Upon arriving to investigate an accident, the driver of one car, Paul Williams Barnes (petitioner) was unable to stand or walk a straight line, his speech was slurred and his breath smelled strongly of alcohol. Barnes admitted he had been drinking ”, The petitioner was then taken to the Rome City Police Station. He was asked to take the chemical test, but he refused to answer. He finally said: “ I don’t think that I will take the test ”. He was then advised that his refusal would mean the loss of his license. Later that same night, the charge against the petitioner was changed from driving while intoxicated, to <mask>, which is a violation of Ordinance 2 of the 'City of Rome. An affidavit regarding this changed charge was sworn to on December 6,1963, by Patrolman Fuller. Both of the affidavits by Fuller were forwarded to the Commissioner of Motor Vehicles in Albany. The information filed in the City Court of Rome, sworn to by Sgt. O’Brien of the Rome Police Department on November 8,1963, charged the petitioner with public intoxication. On November 20, 1963 the charge of public intoxication was dismissed upon the motion of the petitioner’s attorney. The petitioner pleaded guilty to violation of subdivision (a) of section 1120 of the Vehicle and Traffic Law for failure to keep right.


Petitioner claims that respondent Commissioner acted in error and without jurisdiction since the information filed charged petitioner with <mask> (Ordinance 2 of City of Rome) and not driving while intoxicated (Vehicle and Traffic Law, § 1192), and that petitioner under that charge did not have to submit to a chemical test. Petitioner also contends that the subsequent affidavit by the same police officer, charging petitioner with public intoxication, indicates that the police officer did not have reasonable grounds to believe petitioner guilty of driving while intoxicated.


Section 1192 of the Vehicle and Traffic Law states that whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a traffic infraction. Subdivision^. of the section further provides, however, that no conviction shall be had unless it is shown by means of a chemical test administered within two hours of defendant’s arrest that there was at least 10/100 of one per centum of alcohol in the defendant’s blood. Since the peti*848tioner refused to submit to a chemical test, there could be no conviction under section 1192. (People v. Wagonseller, 25 Misc 2d 217 [I960].) The record is clear that it was after the defendant’s refusal, that the arresting officer charged defendant with <mask>. Under these circumstances the information filed is not controlling but is treated merely as a pleading. (People v. Belcher, supra.)


The petitioner has attached to his moving papers an affidavit from Judge Close in which he states that he ‘ ‘ never refused to take jurisdiction over the defendant or to sit as a Court of Special Sessions * * * but the arresting officers failed, neglected and refused to explain why the defendant was being brought before your deponent rather than * * * a nearer available Magistrate in the Town of Camillus and * * * refused to lay the information.” The answering affidavits by the Deputy Sheriff and the two State Troopers who participated in these arrests uniformly state that Justice of the Peace Close was abusive, used profane language and complained that he did not know why the troopers were bringing cases to him when they had never done so before and that he was overheard saying that “ since the matter did not occur in his township he did not feel he should handle the case.” There appears to be no dispute as to the fact that Judge Close refused to take jurisdiction and no information was laid before him, nor were any of 'the individuals arraigned in Judge Close’s court. Subsequent to that, another call was made to the dispatcher asking if another Judge might be available to handle these arrests and the dispatcher contacted Judge James Jerome in the Town of Geddes, who indicated he would be willing to accept 'an arraignment at that time. It was then about 4:40 a.m. The defendants, including the petitioner, were .thereupon brought before Judge Jerome, an information was laid charging the *287petitioner with <mask> (Penal Law, § 1221) and disorderly conduct (Penal Law, § 722, subd. 1) and he was arraigned on both of these counts.


Defendants were charged by two officers of the Troy Police Force with various offenses, arising out of an apparent "evening on the town” in view of leave granted to Theodore Darling from his naval duties. Theodore was accused by the arresting officers of violations of section 1192 of the Vehicle *488and Traffic Law pertaining to driving while under the influence of alcohol. William Darling was accused of <mask>, lewdness and violation of an ordinance of the City of Troy concerning open containers.