police officers.” He also asked Ryan “to step out of the vehicle, which he willingly did so.” Pham then asked, “What’s going on?” Ryan responded that he was “[j]ust trying to find a place to smoke weed” and that he “kn[e]w what goes on right here,” namely that the area was “known for <mask>.” Pham accepted Ryan’s statement that he was “not trying to get any hookers.” He assured Ryan that was not their concern (“Nobody’s here to judge”) and told Ryan that “we’re definitely not worried about, you know, any, any bit of marijuana.” Pham added, “[W]e’re trying to, we’re trying [to] get things figured out, we’re just get[ting] things sorted out. You’re not under arrest. You understand that, right?” Ryan answered, “Okay.” Pham turned the conversation to “last Saturday night,” asking, “Hey, um, Kyle where were you at, um, last Saturday night?” Ryan answered, “Last Saturday? Huntington Beach.” When Pham asked if there was an “occasion” for Ryan to be there, Ryan claimed he was working there that night, but then made no further mention of work. Instead, as Pham and Ryan continued to talk about Ryan’s day in what the trial court characterized as “a casual conversation” in which both parties were “calm,” and Ryan “was consenting to this verbal exchange,” Ryan stated he arrived down at “the pier” by himself about 10:00 a.m., stayed “[a]bout two hours,” then left to retrieve his camera at a friend’s house in Costa Mesa before returning to the pier area for “pretty much . . . the whole day.” Ryan acknowledged this was “only a few days ago” and then added detail to his account. On his return from Costa Mesa “like around 2:00 or so,” he stopped at a liquor store where he bought a “tall can” of beer that he consumed at the beach. Ryan said he hung out on Main Street, where he “talk[ed] to . . . people with dogs” since he trained dogs, and he “talked with the street, street artists [and] I think two girls,” at which time Pham asked, “um, did you get any phone numbers from girls, dog trainers, or anybody like that?” Ryan said no.


In McKinney’s Consolidated Laws of New York, book 14, page 30, section 8 of the Domestic Relations Law is annotated as follows: “ Re-marriage of one divorced for adultery as bigamous. For the purpose of enforcing a statute which declares that every person having a husband or wife living who shall marry again, shall, except in specified cases, be adjudged guilty of bigamy, a person against whom a divorce has been obtained because of adultery and who has not received a judicial permit to remarry, is regarded as having a husband or wife living. A person, therefore, so divorced and so under a disability, who marries, is guilty of bigamy. (People v. Faber, [1883] 92 N. Y. 146; 44 Am. Rep. 357; reversing 29 Hun, 320, and over-ruling People v. Hovey, 5 Barb. 117; compare Moore v. Moore, [1877] 8 Abb. N. Cas. 171.) ” (6) The United States Code, title 18, section 398, provides as follows: “ Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any territory or in the District of Columbia, any woman or girl for the purpose of <mask> or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other unmoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, *13or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court. (June 25, 1910, c. 395, § 2, 36 Stat. 825.) ” (7) Decedent was a dominant character who had reached the pinnacle of far-reaching power and prominence in the theatrical world, his properties and business being located in many of the populous cities in this country. His brother, one of the proponents, was, until recently retired, a Supreme Court judge; until recently he was a bachelor and lived during the period of the relationship of the parties with his unmarried sister, Ray, who died during the trial of this issue. Contestant was a daughter of Rudolph Fixel and Deha Ferdelin, and a cousin of Olivia Leventritt and a niece of the late Supreme Court Judge David Leventritt. She took up voice culture with Clara Kalisher in 1902 and later went on the stage, appearing in many well-known productions. “ In cases of this kind the character of the parties to the alleged marriage is of much importance.” (Surrogate Fowler in Matter of Eichler, 84 Misc. 672, 673, citing Chamberlain v. Chamberlain, 71 N. Y. 423; Matter of Brush, 25 App. Div. 610.)


Our problem in analyzing the ease stems in considerable part from the draftsmanship of section 2460 of the Penal Law. The principal object of this statute and its forerunners is to get the tycoons of organized vice, which it is conceded that Jelke was not, men such as the defendant in People v. Luciano (277 N. T. 348). The main purpose is not to reach the lowly pimp. To be sure, subdivision 8 of section 2460 is aimed at such unlovely characters, but defendant has not been convicted under that subdivision. The purpose has frequently been adverted to in opinions of the courts, e.g., “ The legislation dealt with the systematizing of <mask> and concubinage upon a commercial basis; it sought to prevent prostitution and concubinage as a business ”. It was designed to punish those “ conscienceless vampires who make merchandise of the passions of men ”.


The facts offered to be proved’ on the trial are, substantially, that in February, 1820, from time to time; and at sundry times, the plaintiff introduced into the-house, (two rooms upon the second floor and two rooms upon the third floor whereof had- been leased to the' defendant,) divers lewd women or prostitutes,- and kept and detained them- in the said house all night, for the purpose- of <mask>; - that the said- lewd- women or prostitutes would frequently enter the said house in the'day time,- and- after staying all night, would leave the- same by day-light in the- morning; that the plaintiff sometimes introduced! other men into the said premises; who, together with him, kept company with the said lewd; women-or- prostitutes during the night; that on suoh occasions, the plaintiff and-the said* lewd women ór prostitutes, being in company in certain parts of the said house,, not included in the lease to the defendant, but- adjacent thereto, and in the occupation-or use of the plaintiff, were accustomed to make a great deal of indecent noise *736an<^ disturbance, sa^ women or prostitutes often scream ing extravagantly, and so as to be heard throughout the house, and by the near neighbors, and frequently using 0l3Scene and vulgar language so loud as *to be understood at a considerable distancethat such noise and riotous proceedings, being from time to time continued all night, greatly disturbed the rest of persons sleeping in other parts of the said house, and particularly in , those parts thereof demised to the defendant; that the practices aforesaid were matters of conversation and reproach in the neighborhood, and were of a nature to draw, and did draw, odium and infamy, upon the said house, as being a place of ill fame, so that it was no longer respectable for moral and decent persons to dwell or enter therein; that all the said immoral, indecent' and unlawful practices and proceedings were by the procurement or with the permission and concurrence of the plaintiff; that the defendant, being a person of good and respectable character, was compelled, by the repetition of the said indecent practices and proceedings, to leave the said premises, and did, for that cause, leave the same on or about the beginning of March, 1820, after which he did not return thereto, &c.


The defendants are both charged under count one with attempted promoting <mask> in the third degree, in violation of Penal Law §§ 110.00 and 230.25 (1), in that the defendants, each aiding the other, on or about and between May 1, 1997 and May 15, 1997 in the County of Queens, knowingly attempted to advance and profit from prostitution. Under count two the defendants are charged with criminal facilitation in the fourth degree in that the defendants, each aiding the other, on or about and between May 1, 1997 and May 15, 1997, in the County of Queens, when believing it was probable that they were rendering aid to a person who intended to commit a crime, engaged in conduct which provided such person with the means or opportunity for the commission thereof and which in fact aided such person in committing a felony, to wit: promoting prostitution in the third degree.


On February 3, 1928, an order which was not offered in evidence but which apparently had been issued by the Magistrates’ Court adjudging the defendant to be a disorderly person, on the complaint of his wife, was vacated on the ground that the complainant’s conviction for <mask> terminated the defendant’s duty to support her. Whether it was an order adjudging the defendant a disordery person after trial or a consent order it is impossible to determine from the record.


In only one case that the People cite, People v. Bhakta (2008) 162 Cal.App.4th 973, 978-979, 76 Cal.Rptr.3d 421 ( Bhakta ), did the appellate court apply the gist-of-the-action analysis to conclude a government enforcement action was properly tried by the court. In that case, the government sought injunctive relief and statutory penalties under the Red Light Abatement Law ( Pen. Code, § 11225 et seq. ) and the UCL, against a motel owner who allegedly ran a <mask> ring. ( Bhakta , at p. 976, 76 Cal.Rptr.3d 421.) The government first obtained preliminary injunctive relief, which was affirmed on appeal, and then obtained a permanent injunction and $10,000 in statutory penalties. ( Ibid. ) The Court of Appeal rejected the defendant's claim that he was *460entitled to a jury trial, stating " ' "the right of trial by jury did not exist at common law in a suit to abate a public nuisance" ' " and "the unfair competition law provides for only equitable remedies." ( Id . at p. 979, 76 Cal.Rptr.3d 421.) Respectfully, this is not an accurate description of the remedies under the UCL. Indeed, in its analysis, the court did not even mention the availability of statutory penalties. The availability of statutory penalties is critical , however, to the analysis of whether the right to jury trial is constitutionally secured. (See Tull , supra, 481 U.S. at pp. 418-425, 107 S.Ct. 1831 ; 1941 Chevrolet , supra , 37 Cal.2d at p. 295, fn. 15, 231 P.2d 832.) We thus conclude Bhakta 's analysis was incomplete, and we decline to follow its holding.11


In the present case, the first defence sec up in the answer, is in. substance that the defendant entered into the contract for the hiring of the dwelling house in the complaint specified/ *101without the knowledge of the fact that it had been previously occupied as a brothel, with the assent of the plaintiff, who with intent to defraud and deceive, suppressed that fact from the defendant at the time of such hiring. That he entered into the occupation of the house with his wife and family, and was annoyed and insulted by lewd persons calling at all times during the day and evening, to obtain entrance for purposes of <mask>, that he could not quietly and peacefully occupy the premises, and was therefore evicted therefrom by the wrongful acts of the plaintiff.


In Girardy v. Richardson, (1 Esp. Rep. 13,) the action was assumpsit for the use and occupation or certain rooms belonging to the plaintiff. For the defendant, it was proved that she was a woman of the town; that the rooms had been let to her by the wife of the plaintiff, who, it was proved, managed the business of his house in letting the lodgings; that at the time of letting them, she was informed of the defendant’s mode of life, and consented that she should be at liberty to receive male visitors, for the purpose of <mask>. Lord Kenyon ruled that under these circumstances the action was not maintainable; that the contract was contra bonos mores, and therefore could not support an action, and directed a verdict for the defendant.


After the prosecutor had completed redirect examination of D.T., defense counsel asked the court to reconsider its ruling due to her testimony that Calhoun had been her only pimp and was responsible for prostituting her to 20 customers. Defense counsel argued that D.T.'s testimony created the misleading impression that she ceased engaging in <mask> once Calhoun was in custody. The trial court confirmed its ruling that evidence of D.T.'s subsequent acts of prostitution was inadmissible under Evidence Code section 1161(b).


*86It is not entrapment in a <mask> case where a police officer secures ready acquiescence by a defendant and the defendant was not overly persuaded or put under any compulsion of any description, the only deception practiced upon defendant being that the person with whom she expected to unlawfully associate was a police officer, and such decoy did no more than others seeking to avail themselves of the opportunity to so associate and the defendant did exactly what she would have done in any other instance.18


To maintain the plea that the plaintiff had expelled him from the possession, the defendant offered to prove, upon the trial, that the plaintiff introduced, into the part of the house' which he occupied, lewd women and prostitutes at various times, keeping them all night for the purpose of <mask>; that he was in the habit of introducing other men, who, with himself, kept company with the women, and who together kept up such noise and disturbance throughout the night, using obscene and indecent language, so as to disturb the rest of persons sleeping in the part of the house demised to the defendant, in consequence of which the defendant was compelled to leave the house before the rent became due for which the action was brought.' It was held by the Supreme Court (4 Cow. 584), that the evidence was properly excluded; that there could be no eviction without an actual entry and expulsion; that the matter complained of simply amounted to a nuisance, which the defendant could have abated by applying to the police; that he was under no necessity, physical or moral, to abandon the premises; and that his abandonment was voluntary, and was no answer to the covenant for the payment of rent.


Relevant to this appeal, Mother testified at trial that she had previously been employed as a prostitute in Nevada but that she was no longer so employed. She stated that she accepted employment at the Moonlight Bunny Ranch for financial reasons due to the large amount of debt she had accumulated pursuing her master's degree and Father's failure to provide child support for the minor children. When questioned about why she did not disclose her relocation to Nevada and her employment there, she stated that she was not asked about it. At the time of trial, Mother was employed as a social worker, and she provided documentation to that effect. She indicated that she would not return to <mask> because that line of work seemingly affected the court's decision with regard to her continuing to be the primary residential parent and because the code of ethics of her current career strictly forbade such work.


Tbe charge contained in tbe tenth paragraph of tbe complaint is much more indefinite by reason of tbe omission of any specific place. Tbe individual has been named and tbe times between which tbe intercourse is stated to have occurred are set forth, but a statement of tbe places has been omitted. Tbe allegation on that subject is that it was at various bouses of <mask> or assignatio a in tbe city of New York. A charge so general even the most alert could not be expected to be prepared to meet with evidence. It comprehends too much space and too many suspected localities, and evidence under it could not fail to operate as a surprise upon tbe defendant. This should be rendered definite and certain as to tbe place intended to be referred to or it should be stricken from tbe complaint. Reasonable certainty as to these charges can only be secured by stating tbe place or places intended, and they can be given if tbe misconduct alleged has sufficient color of foundation to. render it a proper subject of legal investigation. As to this paragraph tbe complaint should be made more definite and certain by stating tbe places where tbe misconduct is supposed to have occurred; and tbe order should be so far modified as to require that to be done. Tbe former practice allowed tbe defect to be corrected by putting tbe issue to be submitted to tbe jury in definite form. (Wood v. Wood, supra, 113.) But tbe provision of the Code, under which a reasonable degree of definiteness and certainty in pleadings can be secured by motion, renders it unnecessary for tbe defendant to resort to that alternative.


McCunn, J. In effect, this is an action of covenant for a quarter’s rent, alleged to be due August 1, 1862. *63The defense interposed is, that by consent and connivance of the landlord the basement of the house in question'was converted into a place of <mask>, and that, by reason thereof, the appellant (lessee) was obstructed and defeated in his business ; and that, in consequence, and before the rent in controversy, or any portion of it, accrued due, he abandoned the premises. In other words, the answer sets up a plea of eviction.


The respondent contends that this case is similar to Edwards v “Roe” (68 Misc 2d 278) which involved a proceeding under RPAPL 711 (subd 5) to evict a tenant from her residence based on the fact that she was engaging in an adulterous relationship. The respondent quotes Judge Irving Younger’s decision at length to support the proposition that any and all consensual sexual conduct not harmful to others and not involving either disorder, or <mask> is protected behavior and may not constitute a basis for eviction under RPAPL 711 (subd 5).


For that purpose it would have been sufficient to have shown that the prisoner kept a house of <mask>. Its direct tendency was to corrupt and deprave public morals, and disturb the peace, and for that reason it was a common nuisance. That has uniformly been held to he the law. (1 Whart. Grim. Law, § 2392; 1 Bish. Crim. Law, §§ 665, 1046; Jennings v. Commonwealth, 17 Pick., 80; Ros. Crim. Ev. [6th Am. ed.], 735 ; Warren v. People, 3 Park., 544; Lowenstein, v. People, 54 Barb., 299; People v. Carey, 4 Park., 238.) The indictment in the case of Hunter v. Com. (2 Sergt. & R., 297) did not charge the keeping of a house of prostitution, and for that reason it was not within these authorities and the principle which they sustain.


The prohibition of the offensive public conduct associated with the solicitation of <mask> may be a legitimate State objective. Since it has been demonstrated that only this, public element of prostitution may make that conduct harmful, and that public conduct may be dealt with separately from the sexual conduct itself, it would be unreasonable for the State to completely proscribe private, sexual conduct in order to reach *83distinct public solicitation. Members of the public may have a protectible privacy interest: not to be repeatedly accosted on the streets by a prostitute any more than a religious zealot, peddler, alcoholic or panhandler, and not to have a group of street musicians, noisy teenagers, solicitors for charities, or streetwalkers converging at his or her doorstep. These public interests can be protected, but by less intrusive means than those now employed by the State. Private, consensual sexual conduct between adults, whether or not performed for a fee, is protected by the right of privacy. If the State has a legitimate interest in curbing public disorder, it can and must accomplish this objective without depriving the individual of his or her right to engage in private, consensual, sexual relations. The constitutionally protected right of privacy makes it incumbent upon the State to implement its policy by more reasonable, less intrusive means.


That portion of chapter 287 of the Laws of 1916 (Parole Board Act) pertaining to this case is as follows: “ that no person convicted in any of said cities of vagrancy, disorderly conduct tending to a breach of the peace, public <mask>, soliciting on the streets or public places for the purpose of prostitution, or the violation of section one hundred and fifty of chapter ninety-nine of .the laws of 1909, as amended, shall be sentenced to any such workhouse for a definite term until the finger print records of the city magistrates’ courts of said city are officially searched with reference to the particular defendant and the results thereof duly certified to the court; and provided, further, that if it shall appear to the court at any stage of the proceeding prior to the imposition of sentence and after due notice and opportunity to the defendant to be heard in opposition to such accusation of prior convictions that any person convicted of any or each of these offenses last enumerated has been convicted of any or each of these offenses two or more times during the twenty-four months just previous, or three or more times previous to that conviction, thei^the court shall sentence such offender to a workhouse of the said department of correction in said city for an indeterminate period. The' term of imprisonment of any person convicted and sentenced to any *29such workhouse for an indeterminate period shall not exceed two years and shall be terminated by the parole commission in the manner prescribed in section five of this act and not otherwise.”


Failure to define terms does not render a statute unconstitutional when the terms have a commonly understood meaning (Matter of Gold v Lomenzo, 29 NY2d 468). The only reported case construing the terms "sexual conduct” and "fee” as regards the <mask> statute is People v Block (71 Misc 2d 714). In the Block case the court defined "sexual conduct” by engrafting the définition of that term contained in section 235.20 of the Penal Law. The definition in section 235.20 is expressly restricted in its application to sections 235.21 and 235.22 of the Penal Law, which deal with the dissemination of indecent materials to minors. Since this restriction prevents its application to other sections in article 235, it clearly cannot be engrafted to the prostitution article. Moreover, the definition of sexual conduct in section 235.20 includes contact with the clothed genital areas, clothed buttocks and clothed female breasts, types of activity not normally included within the concept of prostitution.


*716It is unquestionable that <mask> can be profitable and that such activity should be deterred by every available legal means, particularly in view of the escalating number of victims of "AIDS” and other sexually transmitted diseases. Prostitution is, however, a class B misdemeanor (Penal Law § 230.00), and absent appropriate legislative enactment, a District Attorney lacks the authority to seek the forfeiture of the proceeds of prostitution, no matter how profitable the activity, nor how strong the public policy may be in deterring such activity.


The Supreme Court explained the section 236.1 statutory scheme: “The first two subdivisions of section 236.1 define human trafficking as ‘depriv[ing] or violat[ing] the personal liberty of another with the intent to obtain forced labor or services,’ ([§ 236.1, subd. (a)]), or with ‘the intent to effect or maintain . . . violation[s] of’ various laws regulating <mask>, pimping and pandering, pornography, and extortion ([§ 236.1, subd. (b)]). Subdivision (c) does not speak of violating a victim’s personal liberty. Instead it defines human trafficking another way: the inducement of a minor to engage in commercial sex acts. Subsequent provisions make clear that neither a minor’s consent ([§ 236.1, subdivision (e)]), nor a mistake of fact as to a victim’s age ([§ 236.1, subd. (f)]), is a defense. Subdivision (c) specifically targets trafficking minors. A completed violation of subdivision (c) will, obviously, involve the inducement of a particular person, and that person must be a minor. By contrast, to violate subdivision (c) as an attempt, the defendant must intend to induce a minor, but the target of that inducement need not be an actual minor. This understanding of the statute supports a conclusion that, as long as the defendant has attempted to induce a person and intends that the object of his inducement be a minor, the elements of the attempt provision are satisfied. This understanding honors the general law of attempt that punishes a criminal intent coupled with an ineffectual act done towards its commission.” (Moses I, supra, 10 Cal.5th at pp. 907-908, fn. omitted.) The Moses I court clarified that section 236.1, subdivision (c)’s sentence structure “does not reflect an intent by voters to deviate from the established law of attempt. Instead, it conveys the voters’ intent that human trafficking of a minor, whether successfully completed or merely attempted, is to be punished in a uniform way.” (Moses I, supra, 10 Cal.5th at p. 908.)


Id. (citations and internal quotation marks omitted) (emphasis added). The Fifth Circuit concluded that “[w]hile it is true that [the prostitute] did have a child in the area, and they could have been traveling in order to visit the child, this fact is not inconsistent with the <mask> plan. A reasonable jury could find beyond a reasonable doubt that the group was traveling to New Mexico to visit [the prostitute’s] daughter and engage in prostitution.” Id. (emphasis in the original); see also United States v. Hitt, 473 F.3d 146, 152 (5th Cir. 2006) (holding that evidence that the defendants “engage[d] in a grooming process designed to reduce [the victim’s] resistance to sexual advances” was sufficient to demonstrate that the defendants “transported the victim to Louisiana with an efficient and compelling purpose to engage in illicit sexual activity”) (citations and internal quotation marks omitted).


The testimony of the witnesses Moss and Thompson, together with their affidavits, is substantially to the effect that in conversations with the witness Gladys Clayton immediately after the alleged killing, she stated that she was unable to identify any one connected with the killing. They also aver that she told them that she identified the defendant because of police compulsion. Gladys Clayton on her cross-examination upon the trial was interrogated as to whether she identified the defendant because of police pressure and threats to charge her with <mask>. This she denied.


*543I certainly do not accept the defeatist attitude that nothing can be done to limit or suppress the world’s oldest profession, or the equally defeatist attitude that since total eradication is unattainable, more limited remedies are pointless. The success of the Nuisance Abatement Law (Administrative Code § 7-701 et seq.) as a tool in the suppression of open and notorious houses of <mask> in this City shows firmly to the contrary (see, e.g., City of New York v Taliaferrow, 158 AD2d 445; City of New York v Jai Balaji, 176 Misc 2d 719). Indeed, as the Justice assigned to all nuisance abatement cases in Queens, over the last few years I have directed the closing of dozens of houses of prostitution, pursuant to the provisions of that law, in all parts of Queens. Similarly, I have pursuant to that law directed the closing of well over a hundred other illegal businesses which created a nuisance in their neighborhoods, such as crack houses, fencing operations, illegal sales of liquor, gambling dens, nude dancing establishments and the like. Other Justices have done the same in the other counties of this City.


As St. Louis Metropolitan Police officers were patrolling an area associated with a high rate of <mask>, drug sales, and robberies, they pulled over to speak with Stragliati and another individual, who were standing on a street corner. The officers asked for Stragliati's pedigree information, which she provided. The officers ran Stragliati's information through the computer system and discovered active warrants for Stragliati's arrest relating to a forgery. The officers placed Stragliati under arrest and conducted a search incident to arrest. Inside a briefcase Stragliati carried, the officers found a glass tube commonly recognized as a smoking device for narcotics. The officers seized the glass tube, which a laboratory test later revealed had cocaine base residue.


The pleaded Penal Law § 240.37 charge under docket number 2013BX041375 stated that, at a specified time and street location, defendant “loitered and wandered about the above location for a period of approximately five minutes, during which time defendant beckoned to passing traffic and stopped or attempted to stop 1 male motorist.” These allegations, describing only a single instance of conduct alleged to have occurred, were insufficient to establish reasonable cause to believe and a prima facie case that defendant engaged in the type of repeated conduct proscribed by Penal Law § 240.37 (2), i.e., “repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of <mask>.”


We conclude that counsel’s failure to provide meaningful representation deprived defendant of a fair trial (see, People, v Baldi, 54 NY2d 137, 146-147). Although the failure to make motions does not automatically constitute ineffective assistance, the failure to request a Sandoval ruling, in combination with subsequent occurrences at trial, exhibited counsel’s ignorance of that fundamental and prophylactic rule of law, and of the related Ventimiglia protection. In that connection, we note that counsel failed to insulate defendant from cross-examination concerning prior similar charges of weapon possession and prior bad acts involving cocaine. Moreover, counsel opened the door and failed to object to prejudicial evidence of prior uncharged crimes and bad acts introduced by the prosecutor. Further, counsel elicited prejudicial hearsay testimony that defendant was trying to force the victim into <mask>. Finally, counsel failed to request a missing witness charge concerning the victim of the shooting. We perceive no tactical explanation for those failures and conclude that, viewed as a whole, counsel’s representation was constitutionally inadequate (cf., People v Felder, 186 AD2d 1050; People v Donovan, 184 AD2d 654, 655-656; People v Dombrowski, 163 AD2d 873, 874). (Appeal from Judgment of Monroe County Court, Connell, J.—Rape, 1st Degree.) Present—Denman, P. J., Lawton, Wesley, Balio and Boehm, JJ.


omission of a unanimity instruction. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Hernandez (2013) 217 Cal.App.4th 559, 576 [“There is a split of opinion in the appellate courts as to whether the Chapman standard or Watson standard for harmless error applies in a unanimity instruction case”; court held alleged error was harmless under either standard].) C. Analysis The two underlying statutes on which the prosecution based the human trafficking charge in this case, pandering and pimping, have been held to be continuous crimes not requiring unanimity instructions: “[S]ection 266i (the pandering statute) is somewhat similar to [ ] section 266h (the pimping statute). Under [ ] section 266h, the offense is one ongoing offense—a defendant deriving support or maintenance from the earnings of a prostitute. [Citation.] [S]ection 266i, subdivision (c), is similar to section 266h since, once the female is procured for a house of <mask>, the one offense becomes ongoing as long as the female plies her trade in such house. ‘The pandering statute and [ ] section 266h (pimping) are both designed to discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitute’s operation, or increasing the supply of available prostitutes.’ ” (People v. White (1979) 89 Cal.App.3d 143, 151-152.) As this court pointed out in a case involving pandering and pimping, “The language of the charging document, specifying that the acts . . . took place over a specified period of time, reflects that the prosecution intended to charge [the defendant] in this manner.” [Citation.] ‘This language alerts the jury that the charge consists of a continuous course of conduct, to be proved by evidence of more than one individual act.” (People v. Leonard (2014) 228 Cal.App.4th 465, 491-492.)


On June 2, 2016, at about 3:06 a.m., Santa Ana Police Officer Robert Velasco was patrolling the area of Harbor Boulevard and Hazard Avenue in *287Santa Ana. The area is known as the Santa Ana Blade and is well known for pimping and trafficking of juveniles. Velasco had conducted over 100 pimping and <mask> investigations during his four and a half years as a police officer.


The facts set forth in the accusatory instrument herein were sufficient to apprise the defendant of the charge against him under section 230.40 of the Penal Law. The factual portion of the accusatory instrument described the alleged activities of the defendant in aiding and abetting <mask> on his bar premises. The complaint is not invalidated because it did not state that the defendant failed to make reasonable efforts to halt or abate prostitution. That neglect is fairly implied from the claim that he facilitated prostitution on his premises.


*256Destiny told Yolanda that if Yolanda tried to get help or run away, she would beat her. Yolanda was afraid of defendant and Destiny. Destiny dressed Yolanda in leggings and a see-through blouse and defendant drove them to Harbor Boulevard in Santa Ana, which was an area known for <mask>. Yolanda "made it clear [to defendant and Destiny] several times" that she did not want any of this to happen.


I will briefly consider the validity of the reasons thus assigned. The construction which it behoves a court of justice to put on a publication which is alleged to be libellous, is to be derived as well from the expressions used, as from the whole scope and apparent object of the writer. Now, what was that in this case ? The writer imputes the authorship of a certain publication, which professes to have for its object, among other things, the maintenance and support of religion, to the plaintiff. He calls public attention, and seeks to enlist public prejudice against him, as practising hypocrisy in that respect, for sinister purposes; a species of hypocrisy of all others the most odious and detestable; and, by way of ensuring public odium and settling public opinion, it is admitted that he charges the plaintiff with a <mask> of “ hypocrisy and deception,” in effecting the passage of an important bill through a branch of the legislature, of which he was a member, sworn to a faithful discharge of the duties attached to his station. In construing such a publication, it does not seem to me, that the purposes of justice would be best effected by testing it by the rules of grammatical accuracy, or weighing it with scrupulous precision; nor can I consider the construction I adopt, as at all “ straining the libel” to a sense in any other degree odious than the author has made it, but, on the contrary, I am well satisfied that it is consistent with the spirit and object of the publication.


Section 2320 of the Public Health Law provides that whoever shall “erect, establish, continue, maintain, use, own, or lease any building, erection, or place used for the purpose of lewdness, assignation, or <mask> is guilty of maintaining a nuisance.” If the existence of the nuisance is admitted or established the court is mandated to enter an order of abatement directing the removal from the subject premises of all furnishings used in conducting the nuisance and directing their sale and the effectual closing of the premises against its use for any purpose for a period of one year (Public Health Law, § 2329, subd 1). Such order of abatement may be canceled upon payment by the owner of all costs of the proceeding and filing a bond in the full value of the property and on the condition that the owner will immediately abate the nuisance and prevent it from being established within a one-year period (Public Health Law, § 2332, subd 1).


*297The issue presented here is whether Evidence Code section 1161(b) applies only to the human trafficking victim's sexual conduct and acts of <mask> committed before the alleged human trafficker was placed in custody. Calhoun argues that Evidence Code section 1161(b), by referring to "sexual history " and "history of any commercial sex act," only excludes evidence of D.T.'s conduct prior to his arrest. (Italics added.) The Attorney General argues that nothing in the text of the CASE Act limits the scope of Evidence Code section 1161(b) to sexual acts and acts of prostitution committed before the alleged human trafficker was placed in custody. In resolving this question, we work on a blank slate. No reported decision has addressed the scope of Evidence Code section 1161(b).


In City of Costa Mesa , supra , 214 Cal.App.4th 358, 154 Cal.Rptr.3d 698 a city sued a commercial landlord for injunctive relief to abate a public nuisance and refused to issue any new business licenses for the property until the landlord *836complied. ( Id. at pp. 365-366, 154 Cal.Rptr.3d 698.) The landlord filed a cross-complaint for slander, trade libel, and interference with prospective economic advantage, alleging city employees made certain statements to the landlord's prospective tenants and potential contractors about illegal activity at the landlord's property, including that the landlord " 'ha[d] been convicted of <mask> and drug dealing that occurred at the Property' " and that " 'the entire building' " would be " 'shut down because of illegal activity that [was] conducted there.' " ( Id. at pp. 365-367, 154 Cal.Rptr.3d 698.) On appeal from an order granting a special motion to strike under section 425.16, the court held the landlord's causes of action arose from "oral statements 'made in connection with an issue under consideration or review by a[n] ... executive ... body' " under section 425.16, subdivision (e)(2). ( City of Costa Mesa , at p. 372, 154 Cal.Rptr.3d 698.)


She tore up or burned paper currency but not coins. It appears Ms. Brown offered at least two versions to the hospital doctors to explain this behavior. One hospital psychiatrist testified she perceived those who offered her money as people trying to exercise control over her. Burning the offered money was her way to dispel the control. In the other version, she saw the offerers as Black males, whether they were or not, who wanted to buy sex. The destruction of the currency was her attempt to purge herself of the taint of <mask> and elicit respect. This behavior, say the hospital psychiatrists, is delusional. Also, when asked why she urinated and defecated on herself, she responded with a totally irrelevant account of events in Connecticut. The hospital psychiatrists find this nonassociation of thought delusional thinking.


It is this court’s opinion that the Legislature was justified in concluding that the crimes classified as class A drug felonies represent a most serious and constant threat to our society. Drug *77trafficking .and its consequences are a problem foremost in the minds of ¡all citizens. The contention that the .statute here must-be -struck down because other so-called more serious and violent crimes are dealt with le-ss -severely cannot prevail. In fact, such an argument begs the question before the court. In the -words of Justice Joseph D. Quinn, Jr., who recently upheld the constitutionality of these same statutes: “We are not * * * dealing with 1 nonviolent ’ offenses here. Realistically, we deal with but •one phase of a large scale, well entrenched criminal activity that springs from human greed and preys on man’s weakness — one that turns buyers into sellers, makes addicts out of newborn infants and sets addicts to mugging, thievery, <mask>, robbery and murder to support an insatiable appetite.” (People v. Gardner, 78 Misc 2d 744, 750.)


Count two charges that: "The defendant, in the County of New York, during the period from January 1, 1977 through April 26, 1977, knowingly and intentionally advanced and profited from <mask> by managing, supervising, controlling, and owning, alone and in association with others, a house of prostitution business, and an enterprise involving prostitution activity by two and more prostitutes.” Defendant has moved, inter alia, for an order dismissing these counts upon the ground that the evidence before the Grand Jury was legally insufficient to establish the offense charged or any lesser included offense.


As such, the sentencing range for promoting <mask> in the second degree (Penal Law § 230.30 [1]), a nonviolent class C felony, is an indeterminate sentence of from 1 to 3 years to 5 to 15 years for a first felony offender such as defendant. The *562sentencing range for rape in the third degree (Penal Law § 130.25), a nonviolent class E felony, is an indeterminate sentence of from 1 to 3 years to lVs to 4 years. However, for the third degree rape charge only, pursuant to Penal Law § 70.00 (4), if this court,


In McKinney’s Consolidated Laws of New York, book 14, page 30, section 8 of the Domestic Relations Law is annotated as follows: “ Re-marriage of one divorced for adultery as bigamous. For the purpose of enforcing a statute which declares that every person having a husband or wife living who shall marry again, shall, except in specified cases, be adjudged guilty of bigamy, a person against whom a divorce has been obtained because of adultery and who has not received a judicial permit to remarry, is regarded as having a husband or wife living. A person, therefore, so divorced and so under a disability, who marries, is guilty of bigamy. (People v. Faber, [1883] 92 N. Y. 146; 44 Am. Rep. 357; reversing 29 Hun, 320, and over-ruling People v. Hovey, 5 Barb. 117; compare Moore v. Moore, [1877] 8 Abb. N. Cas. 171.) ” (6) The United States Code, title 18, section 398, provides as follows: “ Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any territory or in the District of Columbia, any woman or girl for the purpose of <mask> or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other unmoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, *13or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court. (June 25, 1910, c. 395, § 2, 36 Stat. 825.) ” (7) Decedent was a dominant character who had reached the pinnacle of far-reaching power and prominence in the theatrical world, his properties and business being located in many of the populous cities in this country. His brother, one of the proponents, was, until recently retired, a Supreme Court judge; until recently he was a bachelor and lived during the period of the relationship of the parties with his unmarried sister, Ray, who died during the trial of this issue. Contestant was a daughter of Rudolph Fixel and Deha Ferdelin, and a cousin of Olivia Leventritt and a niece of the late Supreme Court Judge David Leventritt. She took up voice culture with Clara Kalisher in 1902 and later went on the stage, appearing in many well-known productions. “ In cases of this kind the character of the parties to the alleged marriage is of much importance.” (Surrogate Fowler in Matter of Eichler, 84 Misc. 672, 673, citing Chamberlain v. Chamberlain, 71 N. Y. 423; Matter of Brush, 25 App. Div. 610.)


As the trial court acknowledged in its decision, no similar statute exists for local criminal court cases (People v Harris, 14 Misc 3d 497, 510 [2006]). Clearly, the Legislature, without referencing CPL 200.60, has specified in CPL 100.45 that certain other provisions of article 200, applicable to indictments, also apply to informations filed in local criminal courts, i.e., CPL 200.20 (severance of counts and defendants), CPL 200.40 (consolidation of indictments) and CPL 200.95 (bills of particulars). Indeed, in recognition of this omission, several lower court decisions have held that in order to raise the level of an offense based upon the fact of prior convictions, such fact must be alleged in the information and/or in the accompanying supporting deposition (see People v Lazzar, 3 Misc 3d 328, 330 [2004], citing People v Powlowski, 172 Misc 2d 240, 242 [Rochester City Ct 1997]; People v Jackson, 177 Misc 2d 657 [1998]). A different approach, however, was taken in the earlier case of People v Denise L. (159 Misc 2d 1080, 1082 [1994]), wherein the court held that the People were required, pursuant to CPL 200.60, to file a special information charging prior qualifying convictions in order to prosecute the violation of loitering for the purpose of engaging in a <mask> offense as a class B misdemeanor (no special information required where the defendant admits the prior conviction during the plea allocution).


Administrative Code § C16-2.2 (now § 7-703) provides: "The following are declared to be public nuisances: (a) Any building, erection or place, including one-or two-family dwellings, used for the purpose of <mask> as defined in section 230.00 of the penal law. Two or more criminal convictions of persons for acts of prostitution in the building, erection or place, including one-or two-family dwellings, within the one-year period preceding the commencement of an action under this title, shall be presumptive evidence that the building, erection or place, including one-or two-family dwellings, is a public nuisance.”


(i) of any person with the intent to extort money or pecuniary benefit, (ii) of any person with intent to defile such person, (iii) of any child under sixteen years of age for the purpose of concubinage or <mask>, (iv) of any person for the purpose of prostitution, or (v) of any minor for the purpose of manufacturing child pornography[.]


The allegation of the complaint as to the inability of the police to stop the criminal activity is fleshed out in the affidavits by allegations that the female defendants are hardened recidivists, who have already been arrested numerous times for <mask> activities and returned to them. It is claimed that these arrests are of little enforcement value, since they are “routinely disposed of through plea bargaining to a disorderly conduct charge and the imposition of a modest fine and release.” (Plaintiffs posthearing mem, at 9.) The male defendants, the pimps, have allegedly escaped arrest because while they brazenly appear in the street and in a local donut shop, they are never seen taking money from the prostitutes, and a prostitute would be risking her life to testify against them.


The Padlock Law, effective August 6, 1984, authorizes the Police Commissioner to impose sanctions for public nuisances *327by barring the use of property in violation of penal laws, such as those relating to <mask>, gambling and drugs. Specifically, the Padlock Law defines, as a public nuisance, any building where violations of certain provisions of the Penal Law (such as Penal Law art 225, relating to gambling) are occurring, and where at least two such criminal convictions have occurred within one year of commencement of proceedings pursuant to Administrative Code § 436-8.1. The law creates a statutory presumption of continuing criminal activity, where an arrest for violation of the relevant provisions was made within 30 days of issuance of notice pursuant to section 436-8.1 (Administrative Code § 436-8.0). The Police Commissioner’s regulations provide for notice of arrests to the owner of property, informing him that if two or more convictions are obtained within 12 months for such public nuisances, proceedings may be commenced resulting in possible closure of the premises. The proceedings are commenced by service of notice of hearing on the owner, lessor, lessee and mortgagee, pursuant to CPLR article 3. A public hearing presided over by a hearing officer, employed by the police department, is held to determine whether a public nuisance exists, and to report to the Police Commissioner with recommendations, either for abatement of any nuisance, or for vacatur of a closing order.


earned while engaging in <mask> supported [Whisenton]. [T.D.] describes she turned the money over to [Whisenton], but you don’t even need that. [¶] [Whisenton] asked for payment or received payment for soliciting prostitution customers. The deal was, they go out, they walk the streets, they make money, they give the money back. [¶] Even though [L.D.] didn’t make any money, there was still the understanding that they were out there to make money and that she was supposed to provide money if she made it. And [T.D.] and [L.D.] were minors under the age of 16. [¶] Prostitution is synonymous with commercial sex.” The prosecutor argued that the online advertisements sufficed for the jury to convict Whisenton for conspiring with K.S.: “When [Whisenton and K.S.] took the pictures and they started to advertise [T.D. and L.D.], they were pimping them out. They were putting them on the market. They were looking for customers. They were engaging in pandering and pimping.” The prosecutor pursued a conspiracy theory, arguing to the jury: “We have two people. We have [K.S.] and we have [Whisenton] and they were both sort of working together to traffic these two young ladies. And they committed acts in furtherance of that conspiracy. [¶] And those are the acts . . . about the defendant driving [T.D.] and [L.D.] to [Oakland]; or driving them to [San Jose]; or directing [them] to pose for photographs [ ]; these are all acts that occurred during the commission of the two and a half day conspiracy to traffic these two young women. [¶] All you have to agree is one of those acts occurred, and that they had an agreement to commit the crime, and you can convict the defendant under a conspiracy theory.” Defense counsel argued his theory of the case to the jury, challenging the victims’ credibility, and claiming they were biased against Whisenton. Defense counsel also argued Whisenton’s identification was an issue because


Citing section 230.35 of the Penal Law, defendant argues that since the complainant was not under 17 years of age, she is deemed to be an accomplice whose testimony must be corroborated before the Grand Jury in order for same to be legally sufficient. (CPL 60.22, 70.10.) Such is certainly not the intent of the statute and defendant reaches this conclusion by means of convoluted logic. The apparent intent of this provision of law is to insure that a prostitute witness under the age of 17 “shall be deemed not to be an accomplice.” (Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 230.35, p 189.) Even if it were implicit in the statute that a prostitute is an accomplice of his or her pimp as a matter of law, there has been not one scintilla of evidence presented to the Grand Jury which would warrant the assumption that the complainant was a prostitute, or that the defendant acted as her pimp. There is, however, sufficient uncontradicted and unexplained evidence that the complainant was abducted and restrained by the defendants to promote the crime of <mask> in the third degree. Certainly, the victim of a kidnapping was never intended by the Legislature, implicitly or otherwise, to be deemed an accomplice within the meaning of the law.


Finally, facts that are irrelevant should not be considered. This includes information found on Ms. Cotten's personal computer after her death suggesting that she may have been involved in <mask> or X-rated filmmaking, or both. There is no evidence that these activities contributed to her suicide. Our focus should be on what Dr. Wilson knew or should have known in November 2014 that would make Ms. Cotten's suicide with his gun reasonably foreseeable. Information that Dr. Wilson learned from Ms. Cotten's computer after her death cannot be made relevant by suggesting that she did not share with Dr. Wilson, her family, or friends every private detail of her life. What is relevant is the ample evidence in the record-undisputed by Dr. Wilson-that he knew he should not leave someone with Ms. Cotten's mental health issues and history of attempted suicide alone with access to a gun and ammunition. The information about Ms. Cotten's alleged "illicit activities" has no bearing on the issue of foreseeability, makes an assumption unsupported by the evidence, fails to allow all reasonable inferences in favor of the Estate as required, and serves to cast Ms. Cotten in a bad light to justify a result.


*688Mr. Gonzalez, who is a hotel employee, also testified he feared someone would rape the child. His fears were not unjustified given Officer Alvarez's testimony that the InTown Suites was in an area subject to numerous police calls for assaults, vehicle thefts, shootings, <mask>, rapes, and drug activity. He specifically stated he had responded to calls at the hotel for disturbances by the homeless, drug activity, family violence, assaults, burglaries, thefts, and stolen vehicles. The jury could have reasonably concluded that an unsupervised child in this area was subject to impending peril.


The prosecutor disclosed to the defendant that one of the park employees to whom the victim ran for assistance after the sexual assault, who was a prosecution witness, possessed information which would be material to the defense. The witness could testify that approximately 10 months after the attack his truck was flagged down by the victim who asked him if he wanted to party because she needed $20 to purchase diapers for her baby. He could further testify that there were other instances when he had seen the woman attempting to solicit the drivers of automobiles for the purpose of <mask>. This latter proffered testimony was summarily excluded as it involves sexual contact with other than the defendant (People v Bergeron, supra; People v Clark, supra).


had consensual vaginal and anal sex at the hotel. Victim did not think that Simmons knew that he had penetrated her anus during sex. Afterwards, Simmons took victim back to her school. Victim met Simmons again that same month. Simmons went to victim’s school to pick her up, and he took her to a different hotel where they had consensual vaginal and oral sex. Simmons told victim that she could make money by sleeping with other men, but victim did not pay attention to this comment. A few days later, victim called Simmons. During their conversation, Simmons brought up the topic of making money. Victim understood that Simmons was talking about <mask>. On February 4, 2015, about a week after their last conversation, victim called Simmons and told him that she was ready to make money. Later that same day, victim called Simmons and told him to come pick her up at a class that she was taking at a church. Simmons drove victim to a store to buy a phone and to a house in Oakland, where they had vaginal sex. Victim’s mother filed a missing person’s report when she did not return from her class. The next day, victim received a few calls on her new phone. Simmons drove victim to an “outcall,” but nobody showed up at the designated address.4 Sometime later, Simmons drove victim to meet a “date” in Hayward. 5 Simmons also put an ad for victim’s prostitution services on a website called Backpage. Simmons wrote the language of the Backpage ad and gave victim a false name. After staying in Hayward, Simmons took victim to San Francisco, where he was violent with her for the first time. Simmons became angry after victim failed to pick up


. To the degree that petitioner relies on People ex rel. Colletti v Morehead (50 NYS2d 78), that case disproves his contentions. In Colletti (p 80), the court quoting from the People’s memorandum, apparently agreed that a keeper (Rubenstein) of two young women in a mistress-type relationship would have been found guilty if charged with promoting <mask>. It should be noted that Colletti was decided in 1944, long before the statutes being challenged were enacted.


The SLA hearing officers sustained the Island Steak House charges against Mock. After a subsequent hearing on the remaining charges, the hearing officer determined that several named persons had sexual relations with a woman introduced by Mock, that Mock had called the woman to the Gam Wah premises itself on eight occasions for the purposes of <mask>, and that Mock himself had relations with the woman.


In opposition to this evidence, defendant’s principal submits his own affidavit, in which he does not deny the allegations of the moving affidavits, but merely urges that "it has never even been asserted that there is any <mask> or that there has ever been any solicitation for prostitution on the premises. We have always employed professional dancers who have never been permitted to touch patrons.” On oral argument of this motion, counsel for defendants, in unsworn hearsay, denied that the "performance” at the subject premises is lewd. In fact, he likened it to a performance of the ballet "Swan Lake”.


. Indictment No. 656/14 charges defendant with multiple counts of sexual abuse in the first degree, attempted criminal sexual act in the first degree, attempted promoting <mask> in the second degree, attempted sex trafficking, criminal possession of a weapon in the fourth degree and related charges in connection with his conduct with respect to T.C. In addition the court has granted the People’s motion to consolidate indictment No. 3153/14 with indictment No. 656/14. Indictment No. 3153/14 charges defendant with sexual abuse in the first degree, sex trafficking and related charges in connection with his conduct with respect to then 17-year-old S.W. Defendant also stands separately indicted under indictment No. 1195/14 which charges him with attempted rape in the first degree and related charges in connection with his conduct with respect to C.S. For the purpose of publication, only the initials of the victims are used to identify them.


#I bow to the rule, as I find it established : but I lament the complicated and artificial anomalies in the relations of domestic life, which have grown, and are still growing, out of the practice of marriage-settlements. They give to the wife the amphibious character of a feme covert and tí feme sole. I view it as an adulteration of that holy union : as a divorce, pro tanto, Of the marriage contract. A wife, in the “ independent enjoyment of her separate estate,” armed with distrust of her husband, and shutting out his affections and confidence, by refusing to give her own in mutual exchange, is an object of compassion and disgust. Legal chastity cannot be denied to her.: but there is danger, that the sacred institution of marriage may degenerate into mere form. It is sometimes, in practice, little more than legalized <mask> ; and the parties seem to have no higher objects than sexual intercourse, and the sanction of legitimacy for their offspring. If, in the rapid progress of refinement in civilization, it shall be thought expedient to go one step further, and to allow the wife, by ante-nuptial contract, to stipulate for an exemption from personal control over her by the husband, then the quasi divorce would be extended one degree further, so as to confer on her the independent enjoyment of the rights and privileges of a kept mistress. But she would have little claim, indeed, to the endearing appellation and character of a wife.


Reviewing the testimony in the Williams case, the credible testimony supports the conviction. The offer of money is always an inducement. The testimony of the defendant acknowledges the offer and receipt of the money in the bar for the purpose of <mask> although defendant denies any purpose on her part to so act. Overpersuasion cannot be found as a matter of law in this case and the alleged compulsion to remove her clothes is not persuasive.


Mother's criminal history includes arrests for receiving stolen property, taking a vehicle without consent, and threatening a crime with intent to terrorize (2000); failure to obey a juvenile court order and loitering with the intent to commit <mask> (2001); possession of marijuana for sale (2003); battery on a person and obstructing/resisting a public officer (2008); assault with a deadly weapon (not a firearm) with great bodily injury likely (2008); domestic battery and vandalism (2008); transportation/sale of narcotics (2011); and possession of a controlled substance (2016).


During a break in D.T.'s cross-examination, the trial court returned to the issue of evidence of D.T.'s acts of <mask> after Calhoun had been placed in custody. The court stated: "There is so far uncontroverted testimony that [D.T.] had not been a prostitute until the defendant brought her into the business, this is from direct examination from the prosecution, the testimony that [Calhoun] caused it by having her make money, a term she stated that she had never heard before. Going into her subsequent sexual history as a prostitute is not relevant to the case. It is inflammatory. And even if [ Evidence Code section] 1161 hypothetically did not exist, this would be a very simple [ Evidence Code section] 352 analysis which also applies here because any probative value is outweighed by the prejudice. [¶] Now if that becomes an issue, we can talk about that. So far the only evidence that the witness prostituted herself was because of how the defendant taught her to do that. That's after the fact, after the defendant was arrested. According to her, he gave her the tools. The subsequent conduct does not become relevant at that point."


Section 230.00 of the Penal Law of the State of New York: "A person is guilty of <mask> when such person engages *992or agrees or offers to engage in sexual conduct with another person in return for a fee.” Section 230.40: "A person is guilty of permitting prostitution when, having possession or control of premises which he knows are being used for prostitution purposes, he fails to make reasonable effort to halt or abate such use.”


In determining whether a dominant purpose exists, we instead ask whether the illicit behavior is one of the efficient and compelling purposes of the travel. Accordingly, many purposes for traveling may exist, but, as long as one motivating purpose is to engage in <mask>, criminal liability may be imposed under the Act. When no dominant purpose exists, it is because any UNITED STATES V. FLUCAS 23


*256Destiny told Yolanda that if Yolanda tried to get help or run away, she would beat her. Yolanda was afraid of defendant and Destiny. Destiny dressed Yolanda in leggings and a see-through blouse and defendant drove them to Harbor Boulevard in Santa Ana, which was an area known for <mask>. Yolanda "made it clear [to defendant and Destiny] several times" that she did not want any of this to happen.


On June 23, 2008, the New York State Legislature passed the Safe Harbour for Exploited Children Act (L 2008, ch 569, codified at Family Ct Act §§ 311.4, 712 [a]; § 732 [a]; Social Services Law §§ 447-a, 447-b). The law seeks to provide support and services to youths who are victims of sexual exploitation. (Assembly Mem in Support, Bill Jacket, L 2008, ch 569, at 13.) In 2010, the Legislature amended CPL 440.10 to add a provision allowing a judgment to be vacated where defendant was arrested for loitering for the purposes of <mask> or engaging in prostitution and defendant’s participation in the offense was a result of sex trafficking under Penal Law § 230.34 or the TVPA (CPL 440.10 [1] [i]).


As such, the sentencing range for promoting <mask> in the second degree (Penal Law § 230.30 [1]), a nonviolent class C felony, is an indeterminate sentence of from 1 to 3 years to 5 to 15 years for a first felony offender such as defendant. The *562sentencing range for rape in the third degree (Penal Law § 130.25), a nonviolent class E felony, is an indeterminate sentence of from 1 to 3 years to lVs to 4 years. However, for the third degree rape charge only, pursuant to Penal Law § 70.00 (4), if this court,


<mask> is big business for commercial gain and may be regulated under the police power of the State (People v Fegelli, *358163 App Div 576, 578-580, supra; People v Draper, 169 App Div 479, 484; Matter of Dora P., 68 AD2d 719, 731, supra; Tisdale v State, 640 SW2d 409, 413, 414 [Tex], supra; State v Allen, 37 Conn S 506, 424 A2d 651, 654, supra; 63A Am Jur 2d, Prostitution, § 3, at 343). This court does not sit to legislate morality, that is within the province of the Legislature (see, People v Onofre, 51 NY2d 476, 488, n 3, supra; People v Costello, 90 Misc 2d 431, 434, supra; People v Johnson, 60 Ill App 3d 183, 376 NE2d 381, 386; State v Price, 237 NW2d 813, 818 [Iowa], supra). The narrow question before this court is whether Penal Law §§ 230.00 and 230.03 violate due process. This court holds that they do not.


“ It was the opinion of the court below, that, irrespective of the tenant, the law prohibiting the use of premises for purposes of <mask> is not violated, unless it is established by direct or circumstantial evidence that the premises were actually used for such purpose by the occupant of a room. Such a strained construction would virtually nullify the statute in question. * * *


OL’s aunt’s boyfriend saw the advertisements with pictures of OL and called to set up a faux date for a large sum of money. After setting up the date, he called police, who arrived at the motel, investigated the situation, and ultimately arrested Jones and Miles-Johnson. The State charged Jones with two counts of promoting the commercial sexual abuse of a minor, one for OL and one for TC; two counts of second degree promoting <mask>, again one for each of the girls; third degree rape of a child for allegedly having sex with OL; and attempted tampering with a witness and violation of a protection order for phone calls Jones made to OL after his arrest.


Reviewing the testimony in the Freeman case, it is apparent that the defendant readily acquiesced and was not persuaded in any manner except by the money tendered to her. She admitted previous acts of <mask> to the officer and apparently relies more upon the claim of an invasion of her constitutional rights by the use of wire tap information, than upon the defense of entrapment.


This court is not unmindful of the fact that a literal *418interpretation of the <mask> laws, and their vigorous enforcement may create potentially a chilling effect on the exercise of First Amendment freedoms. It is not inconceivable that a person involved in the filming of a sexually explicit film, may unexpectedly find him or herself criminally prosecuted for sexual conduct which occurred during that filming, whether or not the film itself is actually obscene or even whether or not the explicit sexual conduct appears in the final edited version of the film. However, when a State undertakes to regulate a social evil such as prostitution, or pornography, it has a greater power to regulate the nonverbal physical conduct which may occur than to suppress depictions or descriptions of the same. (United States v O’Brien, 391 US 367, reh den 393 US 900.) While First Amendment considerations may protect the dissemination of printed or photographic material regardless of the manner in which it was obtained, this protection will not shield one against a prosecution for a crime committed during the origination of the act. As noted in People v Fixler (supra, p 326): "The fact that a motion picture of an actual murder, rape or robbery in progress may be exhibited as a news film or a full length movie without violating the law does not mean that one could with impunity hire another to commit such a crime simply because the primary motivation was to capture the crime on film.”


The testimony of the witnesses Moss and Thompson, together with their affidavits, is substantially to the effect that in conversations with the witness Gladys Clayton immediately after the alleged killing, she stated that she was unable to identify any one connected with the killing. They also aver that she told them that she identified the defendant because of police compulsion. Gladys Clayton on her cross-examination upon the trial was interrogated as to whether she identified the defendant because of police pressure and threats to charge her with <mask>. This she denied.


We note Edwards rejected the employer's argument that the Legislature meant the word " 'restrain' " in section 16600 to mean " 'prohibit,' " such that a "mere limitation on an employee's ability to practice his or her vocation would be permissible under section 16600, as long as it was reasonably based." ( Edwards , supra , 44 Cal.4th at p. 947, 81 Cal.Rptr.3d 282, 189 P.3d 285, italics added.) Moyes use of a reasonableness standard in analyzing the non<mask> clause there at issue thus appears to conflict with Edwards's interpretation of section 16600, which, under the plain language of the statute, prevents a former employer from restraining a former employee from engaging in his or her " 'lawful profession, trade, or business of any kind ,' " absent statutory exceptions not applicable here. ( Edwards , at p. 945, 81 Cal.Rptr.3d 282, 189 P.3d 285, italics added.)


In September 2015, Cybertron purchased customer lists, existing customer contracts, and accounts receivable from one of its competitors, ITK, which was owned by Capps and Garland Egerton. Capps was paid an initial sum of cash and was given Cybertron stock. He further agreed to accept additional monthly payments from Cybertron to ITK and was hired by Cybertron as its vice president of technology services. Capps also entered into a 60-month RCA with Cybertron beginning September 1, 2015, which contained, among other things, noncompete, nondisclosure, non<mask>, and liquidated damages clauses. In relevant part, the RCA provided:


The defendants have moved to dismiss that portion of the in-formations charging criminal <mask> in the fourth degree.2 The defendants assert that this charge must be dismissed on the grounds that (1) the informations are defective within the meaning of CPL 100.15, 100.40 and 170.30, and (2) there exists a legal impediment to conviction. The People oppose these motions. Oral argument was held on May 5, 1995.3


With respect to the merits of this application, the supporting affidavits of both the Assistant Special Prosecutor and the Assistant District Attorney include several allegations pertaining to the underlying facts in the disputed case in an attempt to show that the alleged criminal activity does, or does not, fit the following language: "arising out of, relating to, or in any way connected with the offer, payment, acceptance or <mask> of funds or other consideration in connection with the obtaining or retaining of public employment or public office, or with the obtaining or retaining of any contract or other benefit from a public employee, public officer, public agency or the State or any of its political subdivisions”. (Executive Order No. 42, 9 NYCRR 3.42.)


A summary of, that statute is set forth in Martindale Hubbell Law Directory of 1976 (vol VI, Law Digests, p 347) as follows: "Personal jurisdiction over nonresident individual or foreign partnership, or his or its executor or administrator, may be exercised where he or it, in person or through an agent: (1) Transacts business in state; or (2) commits tortious act other than defamation of character in state; or (3) commits tortious act outside state causing injury to person or property within state, if (a) regular doing or <mask> of business, persistent conduct, or revenue from within state, or (b) in interstate commerce, and expects or should expect act to have consequences in state; or (4) interest in real property in state. Jurisdiction based on any of these acts does not confer jurisdiction for unrelated cause of action. (52-59b). Constructive service on Secretary of State and registered or certified mailing to defendant’s last known address required (33-41 l[c], added by 52-59b).”


Moreover, the first writing in the case in hand provided that the defendant would pay “ commission on all shipment Gross Billings ” and the second that it would pay “ commissions on all merchandise manufactured and shipped to Bobbie Brooks, Inc.” Neither promise is qualified by any requirement that *466the plaintiff should activate himself in obtaining for the defendant future business or further orders. As I see the ease, neither the original oral agreement nor the subsequent oral modification contemplated the <mask> or servicing of orders by the plaintiff, and there seems no reason to read into the writings an unexpressed restriction upon a promise stated unconditionally. The second agreement did not “ supersede ” the first, as suggested by the defendant. The word “ supersede ’ ’ may not be read so literally. It is plain that the parties intended only to modify the first agreement by substituting a commission computed at the rate of 35 cents per dozen for one of 3%.


Only one of the four statutory elements in the instant statute is the same as in the statute that was held to be facially invalid in Lo , and, therefore, this similarity is not enough to require consideration of the merits of appellant's challenge. Here, there are material differences between the two statutes that would require this Court to conduct an entirely different substantive First Amendment analysis than the one that this Court conducted in Lo because the improper-relationship statute, as compared to the Lo statute, is much narrower in some ways and potentially much broader in some ways. On the one hand, the improper-relationship statute is narrower than the Lo statute in that it applies only to certain employees of certain types of schools, certain students at certain types of schools, and only when the employee works where the complainant is a student. On the other hand, the improper-relationship statute is broader in that it applies to all school employees and not just people who are seventeen years old or older, and to a "student" of any age and not just a "minor," as that word is defined in the Lo statute. Given the substantial differences between the two statutes, we cannot conclude that appellant's facial challenge is cognizable merely because the complained-of statute incorporates as one of its several elements the same language that had been found to be facially unconstitutional in Lo . As we have explained above, this Court's holding in Lo was necessarily based on the online-<mask> statute's overbreadth in reaching all sexually explicit electronic communications between all adults and all minors, but that same analysis would not apply to the improper-relationship statute, given its far narrower focus on the school environment. We note, however, that, if a facial challenge to a statute were premised on a contention that the complained-of statute was nearly identical to a statute that had been found to be facially unconstitutional, then there might be a more persuasive argument that this Court should consider the merits of the claim under the rationale in Smith v. State , 463 S.W.3d 890 (Tex. Crim. App. 2015). Because this case does not present that situation in light of the significant differences between the two statutes that we have described above, we leave that question for another day.


"[T]he mere <mask> of employee grievances prior to an election is not a per se violation." ( Idaho Falls Consol. Hospitals, Inc. v. N.L.R.B. (9th Cir. 1984) 731 F.2d 1384, 1386.) Nor is it a violation merely to have an open door policy or to express a willingness to listen to grievances. ( Id . at p. 1387.) By itself, "a simple offer to hear any complaints the employees may have, or to set up machinery to that end, is ... non-coercive." ( N.L.R.B. v. K & K Gourmet Meats, Inc . (3rd Cir. 1981) 640 F.2d 460, 466.) Again, a mere "willingness to listen and to consider" employee concerns is not a violation. ( Id . at p. 467.)


The plaintiff, M Co., which had obtained a judgment in California against the defendants, J and G, sought to enforce that judgment in Connecticut and to recover damages in connection with a home staging services and lease agreement between the parties. Pursuant to the agreement, M Co., a California corporation, was to provide design and decorating services, including the delivery and installation of rental furniture and décor, for the purpose of making the defendants’ Connecticut residence more attractive to potential buyers. J was the sole signatory to the agreement, but M Co. negotiated the agreement exclusively with G. The lease required an initial payment and had an initial term of four months. If the residence was not sold within that term, the lease would continue on a month-to-month basis at a monthly rate. One provision of the agreement contained both a choice of law clause, providing that Califor- nia law governed the agreement, and a forum selection clause, which vested courts in Los Angeles, California, with jurisdiction over disputes arising under the agreement and provided that the parties consented to the jurisdiction of that court. Beneath that provision, G amended the choice of law clause, writing in that, ‘‘[s]ince this is a contract for an agreement taking place in the state of Connecticut, Connecticut laws will [supersede] those of California.’’ Additionally, although G did not sign the agreement, he signed an addendum to the agreement authorizing M Co. to charge his credit card for the initial payment. G made the initial payment to M Co., which then delivered and installed the rental furniture and décor. Thereafter, the defendants defaulted on their pay- ment obligations. The defendants denied M Co. access to the premises when it attempted to repossess its furniture and décor, which ultimately remained in the residence for approximately three years. M Co. filed an action in California Superior Court, which rendered a default judgment against the defendants after they failed to appear. When the default judgment remained unsatisfied, M Co. filed the present action, seeking enforcement of the California judgment and alleging breach of contract and quantum meruit. As to the claim seeking enforcement of the Califor- nia judgment, the trial court concluded that the California court lacked personal jurisdiction over J, but not over G, and that the California court’s judgment was entitled to full faith and credit as to G. As to the breach of contract claim, the court found that J had breached the home staging services agreement. In doing so, it rejected J’s special defense that the agreement was unenforceable because it failed to comply with certain provisions of the Home <mask> Sales Act (§ 42-134a et seq.) (HSSA). The court specifically determined that a home staging agree- ment, which involves the use of goods and services to facilitate the sale or rental or real property, was excluded from the purview of the HSSA, which exempts transactions ‘‘pertaining to the sale or rental of real property’’ from its requirements. Accordingly, the trial court rendered judgment for M Co. and against G in connection with the enforcement of the California judgment and awarded M Co. the full amount of that judgment. In connection with the breach of contract claim, the court rendered judgment for M Co. and against J, and awarded M Co. damages for the conversion of M Co.’s furniture and décor, as well as for the associated rental loss of that inventory. Having done so, the court declined to address M Co.’s quantum meruit claim as to J. Thereafter, M Co. withdrew the breach of contract and quantum meruit claims as to G, and the defendants appealed. Held: 1. The trial court correctly concluded that the California court had personal jurisdiction over G, G having consented to jurisdiction in California by virtue of the agreement’s forum selection clause, and, accordingly, the trial court properly found that the California judgment was enforceable against G: although a nonsignatory to a contract generally is not bound by a forum selection clause contained therein, under the ‘‘closely related’’ doctrine, a nonsignatory may be bound by that clause if he was so intimately involved in the negotiation, formation, execution, or ratifica- tion of the contract that it was reasonably foreseeable that he would be bound by it, considering factors such as the nonsignatory’s relation- ship to the signatory and whether the nonsignatory received a direct benefit from the agreement; in the present case, the defendants did not dispute that the forum selection clause in the agreement was valid and enforceable, and G was so closely related to the agreement that he was bound by its forum selection clause, especially when G was married to J and lived in the residence she owned, in which they wrongfully used M Co.’s inventory for three years; moreover, in addition to receiving a direct benefit under the agreement, only G, and not J, participated in the negotiations, he made a substantive change to the agreement prior to its execution, notably amending the choice of law clause while leaving the forum selection clause in that same provision untouched, and he executed an addendum to the agreement, pursuant to which he author- ized the sole payment made to M Co. that prompted M Co.’s full perfor- mance of its contractual obligations. 2. The defendants could not prevail on their claim that the home staging services agreement was unenforceable due to M Co.’s noncompliance with certain provisions of the HSSA, as the trial court correctly con- cluded that the transaction between the parties was not a ‘‘home solicita- tion sale,’’ as defined therein, and, therefore, was outside the purview of the HSSA: the provisions of the HSSA apply only to ‘‘home solicitation sale[s],’’ the statutory (§ 42-134a (a) (5)) definition of which excludes any transaction ‘‘pertaining to the sale or rental of real property’’; moreover, although a narrow construction of that language that applied only to contracts for the sale or rental of real property was inconsistent with the dictionary definitions of the phrase ‘‘pertaining to,’’ this court none- theless concluded that it would yield absurd results to construe the real property exception as applying to all transactions for goods and services that relate to, or are an adjunct or accessory to, the sale or rental of real property; accordingly, this court turned to extratextual sources, including legislative history, the federal regulations on which the real property exception was based, and sister state precedent, and, consistent with the liberal construction afforded to remedial statutes such as the HSSA, concluded that a ‘‘home solicitation sale’’ is not strictly limited to the sale or rental of real property but, instead, includes a limited category of consumer goods and services that may be excluded under the real property exception; in the present case, the sale of the residence was the stated purpose of the agreement, the duration of the agreement was defined by how long it took for the property to sell, and the sale of the property delimited the agreement’s various terms by, for example, allowing M Co. to remove the furniture and décor if the defendants’ residence was not listed for sale within a prescribed period of time, such that the terms of the agreement were so intertwined with the sale of the defendants’ property that the agreement was inextricably related to, or an integral adjunct or accessory to, the sale of the home. 3. There was no merit to the defendants’ claim that the award of damages was improper insofar as the trial court awarded M Co. double damages by rendering judgment against both G and J for the same loss and included the conversion value of the furniture and décor in the amount of damages for which J was liable in connection with the breach of contract claim; although a party may recover just damages for the same loss only once, it was undisputed that M Co.’s loss was wholly unsatisfied when the trial court rendered judgment in its favor on the claim against G concerning the enforceability of the California judgment and on the breach of contract claim against J, and the trial court was not foreclosed from rendering judgment in favor of M Co. against both defendants, jointly or separately, for injuries for which each is liable; moreover, the trial court’s award of damages for the conversion value of the furniture and décor was not clearly erroneous in light of the fact that J caused M Co.’s total loss of that inventory by keeping and using it in her personal residence for three years, as M Co.’s loss of the furniture and décor was a reasonably foreseeable consequence of J’s breach of the home staging services agreement. (Two justices concurring in part and dissenting in part in one opinion) Argued September 8, 2020—officially released September 22, 2021* Procedural History


The bribery statute in Minnesota in that case, "M.S.A. § 613.02,” in substance defines bribery "as giving or offering or causing to be given or offered to a public official a bribe or any money, property, or value of any kind, or promise with intent to influence him”. The court there held that something more than mere <mask> of another to commit the crime of bribery was required, since in that case the intended crime of bribery was unaccompanied by overt acts pursuant to the bribe offer; that at no time did the defendant or his agent make contact with the person to be bribed, and that therefore the intended crime fell short of establishing an attempt at bribery.


In sum, the improper-relationship statute is an entirely different statute that applies in a much narrower context than did the former online-<mask> provision. Thus, this Court's decision in Lo that invalidated the online-solicitation provision did not also automatically invalidate the improper-relationship statute. Because no binding judicial authority from this Court or the Supreme Court has ever declared the improper-relationship statute to be invalid, the Smith exception does not apply. We, therefore, agree with the court of appeals's conclusion that, absent the Smith exception, appellant's first-time facial constitutional challenge to the statute of conviction falls under the general rule that provides that such complaints may not be presented for the first time in a post-conviction habeas proceeding. See Beck , 2016 WL 2732131, at *6. We hold that, under these circumstances, appellant has forfeited his complaint that the improper-relationship statute is facially unconstitutional, and he may not now litigate that issue in the instant post-conviction habeas proceeding.


To establish a “substantial nexus” with the taxing state, “physical presence of the vendor is required, [however] it need not be substantial. Rather, it must be demonstrably more than a ‘slightest presence.’ And it may be manifested by . . . economic activities in the taxing State performed by the vendor’s personnel or on its behalf’ (Matter of Orvis Co. v Tax Appeals Trib. of State of N.Y., 86 NY2d 165, 178 [1995] [citation omitted], cert denied sub nom. Vermont Info. Processing, Inc. v Commissioner, N.Y. State Dept. of Taxation & Fin., 516 US 989 [1995]). As Amazon acknowledges, physical presence “can be *424actual or imputed based on the in-state <mask> of sales by an employee, agent, or independent contractor of the retailer on its behalf” (Amazon’s mem of law [Amazon mem] at 14).


An order mailed or given to a foreign corporation outside the State creates of itself no inference that the corporation was doing business in the State of New York. To be “ doing busi*671ness ’ ’ in this State implies a continuity of conduct, a systematic and regular course of conduct, in furtherance of its normal business dealings, rather than an isolated transaction or a casual or occasional transaction of a temporary character. In Debrey v. Hanna, (182 Misc. 824, 827) it was said (Eder, J.): “ The cases are many that merely soliciting orders within the State which are accepted outside the State does not constitute doing business within the State ”. Here, too, the affidavits merely indicate a mere <mask> of an order, even accepting the defendant’s version of the transaction, with a claim of delivery of an order for a small part of the work to the secretary of the plaintiff in Brooklyn, New York. There is no showing of Nicetown’s acceptance of the order at that time and place (People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159, 165; Penn Colleries Co. v. McKeever, 183 N. Y. 98, 103). In International Text Book Co. v. Tone (220 N. Y. 313, 318) the distinction between service of process on a foreign corporation allegedly “ doing business here ” and the “ doing business ” which gives rise to the requirement to take out a license is made by Judge Cabdozo where it was stated: “Business may be sufficient to subject the foreign corporation that does it to the service of process, and yet insufficient to require it to take out a license. In Tausa v. Susquehanna Coal Co. (220 N. Y. 259), decided herewith, this distinction is emphasized. The question before us here is not one of the jurisdiction of courts under the rules of private international law. It is one of statutory construction. We have steadily upheld the right of foreign corporations, without the aid of any license, to engage in activities incidental to commerce between the states.”


be at some slight inconvenience in order that the State may protect its citizens from injury. Without doubt a State may protect its citizens from fraudulent <mask> by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience.”


“ In connection with your comments concerning the appointment of an agent of the Soviet Union to represent the Lithuanian heirs and obtain possession of the funds willed, you may be interested in the enclosed copy of a letter dated March 26, 1948, which the Department sent to the Governors of the states informing them that since this Government does not recognize the incorporation of the Baltic States into the Soviet Union, it consequently does not regard Soviet officials or their attorneys as having any right to act on behalf of non-resident Latvian, Estonian or Lithuanian nationals with respect to distributing shares owed to them from estates of persons dying in the United States. (Emphasis supplied.) “ The effect to be given to such a power of attorney, when executed in the Soviet Union by nationals of Lithuania, is of course one for the Courts of New York to decide, and the action of the consul places no obligation on the Courts of New York to recognize such power of attorney.” It is therefore not necessary for the invalidation of the power of attorney to respondents to indulge in surmise and suspicion and find the existence of duress in its procurement, as claimed by petitioner, whether or not based upon proof (cf. Danisch v. Guardian Life Ins. Co., 18 F. R. D. 77, 151 F. Supp. 17; The Denny, 127 F. 2d 404), or upon judicial notice of Soviet law and “ police state ” conditions which some courts have held sufficient *678basis to discredit such instruments (Sobko Estate, 88 Pa. D. & C. 76; Matter of Azna, Sheboygan County Ct., Wis., decided Dec. 14, 1959, infra; Matter of Mikenes [Mikshis v. Palionis], Probate Court of Suffolk County [Mass.], decided Feb. 20, 1962, infra; cf. Matter of Geiger, 7 N Y 2d 109). Petitioner in fact has not produced any direct evidence of legal duress practiced upon the distributees, nor of their alleged illiteracy or ignorance of the contents of the instrument. Such evidence, it may be conceded, is not easily procurable. Nor is petitioner’s claim of unlawful <mask> of legal business by “Iniurcolleguia” well taken. Soviet nationals have no choice under Soviet law other than to use the services of “ Iniurcolleguia ” in their foreign legal matters. Heir-hunting for that reason is not involved here (cf. Matter of Wellington, 154 Misc. 271; Matter of Lynch, 154 Misc. 260; Ann. 171 A. L. R. 351-359; Penal Law, § 270-d). Moreover, respondents accepted the matter and their appointment in good faith. The fatal defect in their relationship to the Lithuanian distributees based upon the power of attorney running to them stems from the covert intervention and direct control exercised by a Soviet official body in its procurement and the attempt to accomplish indirectly what may not be accomplished directly, namely, Soviet representation of nationals of the. Baltic countries.


Examination of the general sales agency contract between BOAC and BCPA reveals that BOAC performed in this State an integral part of BCPA’s activities and functions which consisted of something more in degree than a mere <mask> of transpacific flight passage. The “ Schedule of G-eneral Provisions ” of said general sales agency contract specifically enumerated such duties and responsibilities, on the part of BOAC in behalf of BCPA, in addition to those hereinbefore described, so as to reasonably conclude that BCPA is doing business here. The obligations and duties include, among others, “ the reasonable cost of office accommodations so arranged and of any other expenses specifically incurred in connection therewith shall be recharged to the Airline ’’; full liaison with BCPA staff members and arrangements for their accommodations; indemnification of BOAC by BCPA against all actions, claims, proceedings, costs, losses, damages, charges and defenses which BOAC may sustain, incur or pay by reason of any service rendered by BOAC.


The informations charging some of the defendants with criminal <mask> in the fifth degree allege that they attempted to buy a "marihuana-type substance” or "fake” marihuana from undercover police officers.2 Because the allegations that the defendants "attempted to buy” "marihuana-type substance” or "fake” marihuana do not allege that the defendants solicited any conduct constituting a crime, a necessary element of criminal solicitation, as set forth above, the informations in those cases are dismissed as defective. Had they alleged that the defendants solicited the officers to sell them marihuana, the informations would be dismissible because of the exemption provision in the Penal Law with respect to criminal solicitation charges, as set forth above. Had they alleged an attempt to possess marihuana they would be dismissible as defective because there can be no attempt under the Penal Law to possess marihuana in amounts that would only be chargeable as violations if actually possessed.


The "super strikes" are: (1) " 'a sexually violent offense' " as defined in Welfare and Institutions Code, section 6600, subdivision (b) ; (2) oral copulation or sodomy, or sexual penetration of a child under 14 years of age and more than 10 years younger than the defendant, as defined in Penal Code sections 286, 288a, and 289 ; (3) a lewd and lascivious act involving a child under 14 years of age, in violation of Penal Code section 288 ; (4) any homicide offense, including attempted homicide, as defined in Penal Code sections 187 through 191.5 ; (5) <mask> to commit murder, as defined in Penal Code section 653f, subdivision (b) ; (6) assault with a machine gun on a peace officer or firefighter, as defined in Penal Code section 245, subdivision (d)(3) ; (7) possession of a weapon of mass destruction, as defined in Penal Code section 11418, subdivision (a)(1) ; and (8) any serious and/or violent felony offense punishable in California by life imprisonment or death (Pen. Code, § 667, subd. (e)(2)(C)(iv) (I-VIII) ).


“The court will not make appointments of attorneys for absent or minor heirs except in cases where it is manifestly *523necessary, and in no case upon the suggestion of an executor or administrator, or other person in possible adverse interest to the party sought to be represented. The judge of the court prefers to use his own judgment, without being hampered by <mask> or importunity.” Despite this rule based upon reason and experience, Mr. Lyons applied to the court in a letter of which a copy is here inserted:


It is this court’s opinion that the defendants in the instant cases were merely “ crying his own wares in his own establishment.” It is conceded by the prosecution that such outcries were made by these defendants while standing on private property. It is further conceded that these defendants did not personally accost and personally approach the pedestrians with direct and personal importunities, urgings, or <mask>. The acts of the defendants were simply the manifestations of a technique of ballyhoo common to barkers and hawkers. It is this court’s opinion that without personal accosting there can be no “ pulling-in.”