In asserting the applicability of this doctrine (although not referring to it by name), plaintiffs contend that BNY Mellon had superior knowledge about Madoff from three principal sources: First, they claim that BNY Mellon’s predecessor, The Bank of New York, “undoubtedly conducted substantial due diligence” in acquiring Ivy, a subsidiary that had evidence that Madoff was a fraud risk, and that BNY Mellon therefore “knew or should have known about the evidence that Madoff was misusing client funds.” (See amended complaint ¶¶ 72-82.) Second, plaintiffs claim that BNY Mellon was obligated to maintain business records reflecting purchases of its own stock and, based on these records, “would have actual and/or constructive knowledge that Madoff had not actually purchased the numbers of shares” he claimed. (Id. ¶ 69.) In response to BNY Mellon’s point that the shares were held in street name, plaintiffs argue that the Bank acted recklessly in not checking its own data. (Plaintiffs’ mem in opp at 20-21.) Third, plaintiffs argue that because Madoff maintained a BMIS account at BNY Mellon, the Bank had obligations under the Bank Secrecy Act to identify and report suspicious <mask> activities to the government. (Amended complaint ¶¶ 59-64.) Plaintiffs assert that the Bank therefore “either was or should have been suspicious of Madoff’s money laundering operations through the BMIS account,” and “recklessly overlooked or ignored evidence that something was wrong with the cash flows to and through the BMIS account.” (Id. ¶ 65.)


. The complaint alleges that BNY Mellon had an obligation under the Bank Secrecy Act (31 USC §§ 5311-5332) to conduct due diligence on BMIS in order to report <mask> transactions to the government; that BNY Mellon had a duty to avoid conflicting loyalties to Madoff and the Rye Funds; and that it failed to disclose its “conflict of interest arising from Madoff s suspicious banking activities,” thereby breaching both its duty of due care and its fiduciary duties. (Amended complaint ¶¶ 59-65.) In opposing defendants’ motion to dismiss, plaintiffs acknowledge that the Bank Secrecy Act did not impose any obligation on BNY Mellon to report to the Rye Funds about the BMIS account. Without withdrawing, or specifically addressing, the pleaded allegations, plaintiffs represent that they do not assert that BNY Mellon breached a duty under the Bank Secrecy Act, and assert generally that their claim is that the Bank breached its fiduciary and common-law duties as cash custodian and administrator to the Rye Funds. (Plaintiffs’ mem in opp at 21.)


The Attorney General argues that Mays was incorrectly decided and should not be followed by this court. To determine whether tracing was required for a Penal Code section 186.10 violation, the court in Mays looked to the federal <mask> statutes: sections 1956 and 1957 of title 18 of the United States Code (hereafter " section 1956" and " section 1957," respectively), and to federal cases interpreting those statutes.


On or about December 3, 1996, J&J presented the first of the four checks. It was dishonored. On or about December 10, 1996, J&J learned that Infinity had commenced bankruptcy proceedings. At the first meeting of creditors, Dilmanian learned from the testimony of Nathan Itzchaki, a principal of Infinity, that Republic had closed the account on October 10, 1996 (four days before Dilmanian’s second conversation with Perkins) and had been investigating Infinity for <mask>.


Though Appellant did not object to the jury charge at trial, he argued on appeal that the jury instructions permitted a non-unanimous verdict. Specifically, he argued the application paragraph did not require the jury to be unanimous regarding which predicate offense had been committed by Appellant and his criminal combination. According to Appellant, the predicate offenses of theft and <mask> were essential elements of the offense of engaging in organized criminal activity rather than alternate manner and means.


Compare Tex. Penal Code § 31.03(e)(7) (listing theft as a first degree felony if the value of the property stolen is $300,000 or more) with Tex. Penal Code § 34.02(e)(4) listing <mask> as a first degree if the value of the funds is $300,000 or more); see also White , 208 S.W.3d at 469 (holding that the state-jail-offenses of unauthorized use of a motor vehicle and evading arrest or detention in a vehicle were morally and conceptually equivalent).


Before Owen, Chief Judge, and Clement and Engelhardt, Circuit Judges. Edith Brown Clement, Circuit Judge: Adrian C. Hammond, Jr. pleaded guilty to bank fraud, <mask>, and obstructing the administration of internal revenue laws in 2017. At sentencing, the district court granted him a U.S.S.G. § 5K1.1 downward departure and a downward variance. It then sentenced him to one year and one day of imprisonment with three years of supervised release. Hammond was released in August of 2019. On March 29, 2021, the United States Probation Office (USPO) filed to revoke Hammond’s supervised release, alleging two Class C violations. Case: 21-30433 Document: 00516191695 Page: 2 Date Filed: 02/04/2022


As is relevant to the theory pursued by the prosecutor, Penal Code section 186.10, subdivision (a) provides: "Any person who conducts or attempts to conduct a transaction or more than one transaction within a seven-day period involving a monetary instrument or instruments of a total value exceeding five thousand dollars ($ 5,000) ... through one or more financial institutions ... knowing that the monetary instrument represents the proceeds of, or is directly or indirectly from the proceeds of, *764criminal activity, is guilty of the crime of <mask>."


In sum, we must return to eighth-grade grammar to determine what elements the jury must unanimously find beyond a reasonable doubt. At a minimum, these are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e. the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment, but narrowed down to one specific intent regardless of the date alleged). Generally, adverbial phrases, introduced by the preposition "by," describe the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the jury must be unanimous.36 In this case, the indictment and the jury charge used the preposition "by" to describe the manner in which the predicate offenses were alleged to have been committed rather than as a way to differentiate between the two predicate offenses of theft and <mask>.37 According to Appellant, this indicates that predicate offenses are elements rather than manner and means.


The magazine article, entitled Power Play, describes itself as an exclusive report revealing how the Russian mob has muscled its way into the National Hockey League. One of the subjects of the article is Slava Fetisov, who was questioned by the author, Mr. Friedman, in connection with the article. Mr. Fetisov is said to be linked to the mob, and a close associate of Vyacheslav Ivankov. The article quotes a confidential FBI report as describing Mr. Ivankov “as a shrewd and respected leader over a group of ruthless members knowledgeable in business, financial, legal and government operations * * * In addition to extortion, <mask>, drug trafficking, Ivankov is suspected of not only arranging numerous murders but bragging about them.” (Details, at 146.) Plaintiff Komarov is mentioned in the article in connection with the author’s interview of Fetisov, as follows:


It follows that Baez was never held for grand jury action on the charge named in his indictment waiver, and alleged in the superior court information. Baez was held under a felony complaint the accusatory part of which alleged concealment <mask>. The determination to hold him for grand jury action required a judicial determination of probable cause to believe he committed “the crime charged in the accusatory part,” and it is for this crime exclusively that he could validly have been held, irrespective of whether the complaint’s allega*914tions would have supported holding him on the promotion theory which “need never have been considered.” (Zanghi, 79 NY2d at 818.) Nor may Baez be deemed to have been held on the promotion theory on the supposition that any finding of probable cause to believe a defendant committed concealment money laundering necessarily implies a finding of probable cause to believe he committed the promotion variety too. (Cf. Menchetti, 76 NY2d at 474-477 [defendant held for grand jury action with respect to offense deemed held likewise on its lesser included offenses].) Simply put, one may knowingly hide the spoils of crime without intending to promote future criminal ventures. Thus, a defendant who commits concealment money laundering will not necessarily commit promotion money laundering concomitantly. (Cf. United States v Jackson, 935d 832, 842 [7th Cir 1991] [opining that “only in the unusual case” will one transaction support both theories].)


It is true, as the People argue, that checks are negotiable instruments, but this is irrelevant because mere delivery of such a check is not sufficient to pass title, as the statute requires. The purpose of the <mask> statutes is to prevent criminals from moving the profits of criminal activity into one or more anonymous forms of consideration. Each of the items included in the statute qualifies as anonymous financial consideration, but a personal check does not. Not only is its provence traceable, but it may not be converted to cash without endorsement, literally a signature. (UCC 3-202.) A personal check (except perhaps one drawn to “cash”) may not be effectively passed without such identifying endorsement. Accordingly, these counts must be dismissed.


If the specific enumerated offense was an essential element of the offense of engaging in organized criminal activity, then the use of the term "one or more" would be meaningless, because the commission of each enumerated offense would constitute a separate instance of the offense of engaging in organized criminal activity.8 Appellant petitioned this Court to determine whether the court of appeals erred in holding that unanimity is not required with respect to the predicate offenses of theft and <mask>. As he points out, his case is unique in that he was charged with committing two different predicate offenses rather than multiple instances of the same predicate offense. We therefore granted review.


Hammond admitted to the first violation and the district court found him guilty of the second violation. The district court calculated Hammond’s guideline range at 5 to 11 months. It then upwardly departed pursuant to § 7B1.4 cmt. n.4 and imposed a 24-month sentence, stripping him of the previous benefits afforded to him. Hammond timely appealed, claiming that the district court failed to put him on notice that it might upwardly depart under § 7B1.4 cmt. n.4. We affirm the district court’s sentence. I. On November 6, 2016, a federal grand jury returned an indictment against Hammond. The indictment was superseded on May 23, 2017. Following the superseded indictment, Hammond pleaded guilty on August 23, 2017, to bank fraud, <mask>, and obstructing the administration of internal revenue laws. His white-collar scheme included the following: (1) he knowingly and intentionally defrauded a bank when he provided it with falsified documents to obtain a loan; (2) he then laundered some of the proceeds from that loan; and (3) he did all this while attempting to subvert IRS’ efforts to collect taxes by filing false court documents and engaging in business transactions intended to conceal his earnings. After pleading guilty and initially refusing to cooperate with law enforcement, Hammond eventually provided the authorities with some information. As the government describes in its brief, however, that information “warranted only a ‘very modest benefit.’” The government accordingly recommended a one-point reduction under U.S.S.G. § 5K1.1. On August 22, 2018, the district court held Hammond’s sentencing hearing. According to his presentence report, Hammond initially faced 41 to 51 months of imprisonment as a Level 20, category III offender. The district court then granted Hammond a § 5K1.1 one-level reduction for his


“The legislature deems it necessary, in order to enhance consumer protection, reduce fraud and ensure the public welfare, that mortgage loan originators who originate mortgage loans on residential real property be subject to regulation by the superintendent and that such regulation be consistent with Title V of The Housing and Economic Recovery Act of 2008, also known as the S.A.F.E. Mortgage Licensing Act, as it may be amended from time to time, and regulations thereunder or interpretations thereof, that may be adopted from time to time by the Secretary of the U.S. Department of Housing and Urban Development.” In memoranda supporting the new legislation, it is specifically noted that no longer will applicants who have been convicted of a felony involving fraud, dishonesty, breach of trust or <mask> be eligible for an MLO license, absent a pardon. (Rampolla aff, exhibit F, at 1.)


The People originally filed a criminal complaint, but later dismissed it in favor of *721a grand jury hearing. On May 16, 2016, a Riverside County criminal grand jury returned an indictment against petitioner and codefendants Cary Abramowitz, Ana Solis, and Gladys Ross3 in Riverside County case No. RIF1670175. The indictment charges count 1 for conspiracy (§ 182, subd. (a)(1) ), for conspiring to knowingly make or causing to be made any false or fraudulent claims for payment of health care benefits, in violation of section 550, subdivision (a)(6) (Heidary, Abramowitz, Solis, and Ross); counts 2 through 19 for false or fraudulent claims for payment of health care benefits to 18 different, named insurers (§ 550, subd. (a) ) (Heidary, Abramowitz, Solis, and Ross); counts 20 through 37 for willfully and unlawfully making and causing to be made a knowingly false and fraudulent material statement and material representation to 18 different named insurers for payment of workers' compensation ( Ins. Code, § 1871.4, subd. (a)(1) ) (Heidary, Abramowitz, Solis, and Ross); counts 38 through 66 for <mask> ( Pen. Code, § 186.10, subd. (a) ) (Heidary); count 67 for unlicensed practice of medicine ( Bus. & Prof. Code, § 2052, subd. (a) ) (Heidary); count 68 for "capping" ( Pen. Code, § 549 ) (soliciting, accepting or referring any business with the knowledge that, or with reckless disregard for whether, the individual or entity intends to violate Pen. Code, § 550 or Ins. Code, § 1871.4 ) (Heidary, Abramowitz, and Solis); and count 69 for the unlicensed practice of law ( Bus. & Prof. Code, § 6126, subd. (a) ) (Heidary and Abramowitz). The indictment also alleges a white-collar crime enhancement ( Pen. Code, § 186.11, subd. (a)(2) ) (Heidary, Abramowitz, Solis, and Ross).


A forensic accountant identified a total of 524 unauthorized checks written against the law firm's payroll account that were made out to defendant, totaling $ 1,115,396. The unauthorized checks had all been signed by defendant. The forensic accountant also charted deposits into and expenditures from defendant's personal Wescom Credit Union account from 2007 through October 2013. In analyzing the transactions from defendant's credit union account, the forensic accountant identified the following, which comprised the basis for the <mask> counts:


Significantly, the defendants in Paul for Councilconceded that their conduct was illegal, but argued that despite the illegality, their conduct was nevertheless entitled to the protections of the anti-SLAPP statute. (Paul for Council, supra, 85 Cal.App.4th at p. 1366, 102 Cal.Rptr.2d 864["Defendants contend their campaign <mask> activity was taken 'in furtherance ' of their constitutional right of free speech, and therefore such activity comes within the parameters of section 425.16's protection, even though such activity was found to be illegal"].) The same is not true here. Defendants do not concede that all of the conduct underlying Sweetwater's complaint was illegal. As a result, Paul for Council is not as similar to this case as Sweetwater suggests, and it is clearly not controlling.


Renee A. White, J. On June 2, 1992 the defendant was convicted, after a jury trial, for the crimes of grand larceny in the second degree, two counts of criminal possession of stolen property in the second degree, two counts of criminal possession of a forged instrument in the second degree and <mask> in the second degree. Following the verdict, the People requested that bail be set. The court set bail in the amount of $25,000 and adjourned the matter to July 13, 1992 for sentence. On June 3, 1992 the defendant’s wife, Gloria R. Mosesson, posted the bail and the defendant was released.


Concurrent with the diversion of funds from BNU an investigation of Steve’s operations by the United States Department of Justice was underway. Two weeks after the hearing before this court on BNU’s motion for a TRO on the funds in the accounts in New York City, the United States Attorney filed an indictment against Steve’s principals, Steve Wangboje and Azie Guice, in the United States District Court in New Jersey. The indictment charged that they had engaged in "money laundering” of funds from narcotic operations, wire fraud and conspiracy. The affidavits of the United States Drug Enforcement Agency personnel in support of the orders for the interception of wire communications among the defendants indicated that the <mask> scheme was related to drug trafficking activities by car dealerships located in Nigeria. One such dealership was Skymit Motors, Ltd. in Lagos, Nigeria, to which Steve’s shipped luxury vehicles and parts. Communications intercepted from Wangboje’s home with the other defendants "reflect that the Subject[s] themselves are actively involved in fraudulent schemes * * * and have customers who were/are engaged in drug trafficking.” The wiretaps also revealed that Skymit attempted to impede the investigation in Nigeria by, inter alia, instructing Steve’s to manufacture and alter documents, and "stonewall” the investigators.


The Court of Appeals amended the order of the Appellate Division which dismissed the plaintiffs’ entire proceeding against the bank since it determined that plaintiff had sufficiently pleaded a cause of action for commercial bad faith. The court held that the plaintiff pleaded "not merely a lapse of Vary vigilance’ * * * or even 'suspicious circumstance which might well have induced a prudent banker to investigate’ ” but, instead, the plaintiff portrayed a scheme of massive dimension accomplished in part through a pattern of <mask> conducted on a near daily basis by a single individual concentrated within a few months at one branch (Prudential-Bache Sec. v Citibank, supra, at 276). The court held that using these facts prior to discovery the court was required to view plaintiffs’ assertion favorably and as such they were sufficient to form the basis for a cause of action for commercial bad faith.


Appellant essentially argues that permitting a conviction for engaging in organized criminal activity without requiring unanimity as to the predicate offense seems "contrary to due process" given the broad range of enumerated predicate offenses (e.g. , gambling to capital murder). There are two flaws with appellant's position. First, as this Court's majority opinion points out, here the two offenses that were pleaded in the alternative were both first-degree felonies involving the unlawful treatment of property-theft and <mask>. Second and perhaps more importantly, appellant fails to consider the statute as a whole, as required by this Court's precedent. See Yazdchi v. State , 428 S.W.3d 831, 837 (Tex. Crim. App. 2014). The punishment range for engaging in organized criminal activity is dependent on the punishment classification of the highest predicate offense found by the jury.3 Given the plain statutory language *397prescribing the punishment range for engaging in organized criminal activity, it is clear that the jury must unanimously determine any predicate offenses on which it relies as alternative manner and means if they are not the same grade misdemeanor or felony. Here, the two predicate offenses that the jury was permitted to find in the disjunctive were both first-degree felonies and thus, under the plain language of the statute, appellant would be sentenced to the same punishment range regardless of which predicate offense had been found by the jury. Appellant has made no argument to explain how there could be a due process violation under the circumstances here where the two predicate offenses alleged are both first-degree felonies involving property.4


Mays, supra, 148 Cal.App.4th 13, 55 Cal.Rptr.3d 356 was the first, and remains the only, published case in California addressing tracing under Penal Code section 186.10. In Mays , the defendant was convicted of pimping and <mask>. The money laundering counts involved checks written for rent on the office through which the defendant ran his prostitution business, rent on a residence at which the prostitutes lived, and bills for cell phones used in the business. ( Mays, supra, 148 Cal.App.4th at pp. 18, 20, 55 Cal.Rptr.3d 356.) The trial court concluded that a prosecution, based on the same theory employed here, namely that a defendant conducted "a transaction through a financial institution with a monetary instrument of $ 5,000 or more based on the knowledge of criminal proceeds theory, requires proof that (1) the defendant's entire business was illegal, (2) there were deposits of $ 5,000 or more in criminally derived funds, or (3) there was a transfer of all funds out of the account." ( Id. at p. 32, 55 Cal.Rptr.3d 356.)


There is no evidence that defendant left California during the period of the alleged conspiracy. Relying on People v Carvajal (6 NY3d 305 [2005]), defendant moves to dismiss the substantive counts of the indictment on jurisdictional grounds. The essence of his argument is that because he was never in New York, this state has no jurisdictional predicate for charging him with selling and possessing drugs or with <mask> in New York.1 For the reasons that follow, this court rejects defendant’s claim.


In the first cause of action, the amended complaint alleges that “[b]y virtue of its superior knowledge, BNY MELLON owed a common law duty of care to the Rye Funds to disclose material adverse facts affecting assets under BNY MELLON’s administration.” (Amended complaint ¶ 100.)1 It further alleges that BNY Mellon acted with gross negligence, and breached its common-law duty of care, in the following respects: First, the Bank allegedly failed to disclose that Madoff reported bogus trades on the Rye Funds’ behalf of BNY Mellon’s own shares, and calculated the Rye Funds net asset value (NAV) as if the trades in such shares were “real.” (Id. ¶ 101.) The amended complaint alleges that the Bank had business records reflecting *891the purchase and sale of its own shares and therefore had “superior knowledge of the true facts.” (Id. ¶¶ 69-71.) Second, the Bank failed to disclose suspicious activities in the BMIS account that was also maintained at the Bank. (Id. ¶ 102.) The amended complaint alleges that the Bank was required by the Bank Secrecy Act (31 USC §§ 5311-5332) to conduct due diligence on accounts maintained with it and to report <mask> transactions to the government. The amended complaint further asserts that BNY Mellon therefore had superior knowledge about the BMIS account, and acted with gross negligence in not disclosing to the Rye Funds “the conflict of interest arising from Madoff s suspicious banking activities” involving the BMIS account. {Id. ¶¶ 59-65.) Third, the Bank ignored “red flags” that should have alerted it to the fact that the Funds’ assets were at risk for fraud. {Id. ¶ 97.) The amended complaint catalogs red flags that included suspiciously consistent returns and patterns of purchases, suspect trading volumes, Madoff s role as both broker and custodian for all of the assets he managed, public reports questioning his operations, Madoff s use of paper trade confirmations, and the Rye Funds’ lack of electronic access to their accounts at BMIS. (Id. ¶¶ 9, 66-68.) Fourth, the Bank’s predecessor acquired a subsidiary, Ivy Asset Management LLC (Ivy), which purportedly limited its investments with Madoff due to concerns about his operations. The amended complaint alleges that the predecessor “undoubtedly conducted substantial due diligence on Ivy” before acquiring it, and the Bank therefore knew or should have known that Mad-off was misusing client funds. (Id. ¶¶ 72-82.) Fifth, as cash custodian for the Rye Funds, the Bank had common-law and fiduciary duties to “monitor and protect any and all cash and cash equivalents of the Rye Funds,” and should have discovered and disclosed the inadequacy of Madoff s sub-custodial records of cash and cash flows. (Id. ¶¶ 56-58.)


This is an action alleging libel based on an article written by Susan Edelman which contained a photograph by Devlin Barrett. The article was published on December 11, 2000 in the New York Post, which is published by NYP Holdings, Inc. The article reported that Boris Kotlyarsky was under a federal indictment charging him with conspiracy and <mask> for organized crime. It also described the alleged scheme, and reported that the government had stated that Reliable, a medical clinic run by the plaintiffs, was a “medical mill set up to defraud insurance companies.” On December 12, 2000, Boris Kotlyarsky left a message for Susan Edelman, which she returned on December 19, 2000. During the course of the conversation, Boris Kotlyarsky requested a retraction, after advising Susan Edelman that the contents of the article were false, and that his reputation, his wife’s, and that of his business, had been damaged. On January 3, 2001, he pleaded guilty to one count of conspiracy to money launder. Thereafter, Boris Kotlyarsky attempted to contact Susan Edelman between January 20, 2001 and March 18, 2001. However, a meeting between the two parties was not convened until April 20, 2001 at the New York Post office. At this meeting, Boris Kotlyarsky brought court documents from his criminal case, attempting to prove the falsity of the article. During the course of the meeting, photographs were taken with either the expressed or implied promise that they would be used in a retraction. On May 29, 2001, Boris Kotlyarsky began serving his sentence. While he was incarcerated, he received no news of the retraction, so he wrote a letter to Susan Edelman requesting a copy of the retraction. Susan Edelman responded in a letter dated February 12, 2002 that she had left messages with his criminal attorney about a possible article, and that since she did not receive a response, the requested retraction article was withdrawn. Plaintiffs Boris Kotlyarsky, Alla Kotlyarsky, and Reliable Rehabilitation Center, Inc., commenced this action against defendants New York Post, Susan Edelman, Devlin Barrett, and NYP Holdings, Inc., by filing the complaint on August 12, 2002. On September 4, 2002, plaintiff served defendant NYP Holdings, Inc. with the summons and complaint. Neither Susan Edelman nor Devlin Barrett was served. Issue was joined on September 24, 2002. Defendants now move for *152summary judgment dismissing the complaint based on grounds that it was time-barred.


As we explain more fully below, engaging in organized criminal activity is a "circumstances of the conduct," offense, the circumstance being the existence or creation of a combination that collaborates in carrying out criminal activities.23 Consequently, the jury was not required to be unanimous regarding the individual predicate offenses because they are a different manner and means of committing the same offense. Moreover, treating the predicate offenses as manner and means in this case does not run afoul of due process because the offenses at issue are morally and conceptually equivalent. Consequently, the trial court properly instructed the jury in the disjunctive with regard to the predicate offenses of theft and <mask>.


Appellant argues, however, that engaging in organized criminal activity is one of those crimes. We need not decide that question in this case because it is enough to say that the two predicate offenses alleged here-theft and money laundering-are morally and conceptually equivalent.85 Significantly, the <mask> statute requires proof of a temporal connection or nexus between the transferred money and some criminal activity, in this case the theft of the jewelry.86 So the jury was required to determine, when reaching its verdict, whether the "proceeds of criminal activity" came from the alleged theft in order to convict Appellant under a money laundering theory of engaging. In this way, the different predicate offenses are tied together similar to the way the underlying felonies are tied together in the felony murder statute.87 Moreover, the degree of offense for both theft and money laundering is tied to the same value ladder rendering both offenses first degree felonies.88 Consequently, the Legislature's decision to treat these predicate offenses as alternate manner and means of committing the same offense did not run afoul of due process.89


Subsequently, respondent was convicted in the United States District Court, Middle District of Florida, of one count of conspiracy to launder money in violation of 18 USC § 371 and one count of <mask> in violation of 18 USC § 1956 (a) (1) (B) (i). By order and decision entered November 15, 1994 (Matter of Stern, 205 AD2d 162), this Court determined that respondent’s convictions constituted "serious crimes” within the meaning of Judiciary Law § 90 (4) (d) and 22 NYCRR 608.12 (b), suspended respondent from the practice of law pursuant to Judiciary Law § 90 (4) (f) and referred the matter to the Disciplinary Committee for a hearing as to sanction.


524 U.S. at 351 (Kennedy, J., dissenting). Additionally, the dissent noted that because <mask> and drug smuggling are so difficult to prove, and “[o]ne of the few reliable warning signs of some serious crimes is the use of large sums of cash,” Congress made a strategic decision to punish all cash smuggling or nonreporting with heavy fines, so long as the conduct was “willful.” Id. at 353-54. State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting)


It is impossible for a trial court, faced with the imminent trial of an indictment for violations, inter alia, of a <mask> statute modeled on and very similar to its federal counterpart, to ignore the Santos decision. The Santos holding is that the rule of lenity requires that “proceeds” means and is limited to “profits” in the context of the federal criminal money laundering statute (18 USC § 1956 [a] [1] [A] [i]).21 have decided to apply that holding to the instant Rozenberg indictment. Not only was the New York statute modeled on the federal statute, but it has been authoritatively stated that “federal case law to date should guide the interpretation of these [New York] stat*237utes.”3 The New York statute is identical to the federal statute in many important respects — notably in failing to define “proceeds” within the four corners of that statute. I have found that the references submitted by the Attorney General to legislative history and other statutes, such as ones concerning civil forfeiture, are insufficient to overcome the United States Supreme Court analysis and application of the rule of lenity in the money laundering context.4 Federal and New York State civil forfeiture statutes have their own more expansive definition of proceeds — not found in the criminal statutes — and traditionally have had broader reach.


We hold that, when a defendant is charged with <mask> "knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity," the prosecution must demonstrate that the amount of the illegally obtained funds equals or exceeds the amount of the monetary transaction, whether or not the illegally obtained funds have been commingled with legally obtained funds. ( Pen. Code, § 186.10, subd. (a).) The prosecution need not trace every illegal dollar to the monetary instrument. In this case, there was sufficient evidence that the amount of money defendant embezzled from the law firm and placed in his Wescom Credit Union account was greater than the amount of the monetary transactions charged in the money laundering counts. Therefore, defendant's convictions for money laundering must be affirmed.


Baez’s prosecution then underwent an immediate and significant change in theory. In Supreme Court proceedings before me that same day, the prosecution requested that Baez waive indictment and consent to be prosecuted by a superior court information charging <mask> in the second degree exclusively under the promotion theory set forth in Penal Law § 470.15 (1) (b) (i) (A) and (iii). Under that theory, the prosecution is not required to prove that the defendant acted with knowledge that the transaction was designed to conceal the nature, location, source, ownership, or control of proceeds of past criminal conduct. However, it must prove, in pertinent part, that the defendant conducted one or more financial transactions “[w]ith intent to . . . promote the carrying on of specified criminal *909conduct.” (Id.) The variance from the felony complaint theory struck me as unusual, and I inquired of the prosecutor whether it was intended. I was told that it was. I allowed it, and Baez waived indictment by a document naming money laundering in the second degree exclusively under the statutory provisions defining the promotion theory.


In the present case, the Wall Street Journal article, after briefly describing the nature of the arbitration proceeding and indicating that plaintiff had received an award of $114,668, set forth DLJ’s position as follows: "Donaldson Lufkin said it fired Mr. Mulder for poor performance unrelated to his <mask> report. 'The fanciful tale of intrigue and cover-up Mulder made regarding money laundering in DLJ’s Miami office * * * is without basis in fact and is irrelevant to Mulder’s termination,’ the firm said in papers filed with arbitrators.”


The prosecution’s theory that Dr. Rozenberg’s endorsements to the management companies of checks received by AR Medical amount to <mask> is too dependent on a string of inferences about which I now believe I was too deferential in allowing the grand jury to draw. (See People v Deegan, 69 NY2d 976 [1987].) The inferences are: (1) that all or at least a large portion of these receipts were the proceeds of specified criminal conduct, which is contradicted in part by evidence that bona fide patients with real injuries were being treated at the clinic; (2) that all or a substantial number of such endorsements themselves constituted discrete illegal financial transactions; and (3) that Rozenberg by such endorsements intended to conceal the source of these receipts. Both inferences (2) and (3) *238are contradicted by the circumstances under which it was obvious that the management companies used much of these funds to pay expenses to run the clinic.


Tex. Penal Code § 34.02(a)(1) ; see also Deschenes v. State , 253 S.W.3d 374, 381 (Tex. App.-Amarillo 2008, pet. ref'd) ("In order for a conviction for <mask> under § 34.02(a)(1) to be upheld, there must be direct or circumstantial evidence of a temporal connection, or nexus, between the money and some criminal activity."). Arguably, the State could have even chosen to charge Appellant with theft of money rather than money laundering, making this case conceptually identical to the different thefts at issue in Renteria . This would further suggest that the underlying brute facts of the two alleged predicate offenses were morally and conceptually equivalent.


Mark Dwyer, J. Defendant Pinchuk and five others have been indicted on multiple counts of conspiracy in the second and fourth degrees, for <mask> in the second degree, and on 37 counts of sale and possession of controlled substances. The People’s theory is that between March 2009 and June 2010 defendant, based in California, supplied amphetamines, alprazolam, hydrocodone, and oxycodone to codefendant Pinchas Goldshtein and others in Brooklyn. Defendant would ship pills via Federal Express from Los Angeles to Brooklyn, often supplying Goldshtein with a tracking number in a text message. To pay for the pills Goldshtein would deposit money into a bank account in Brooklyn, and defendant would withdraw that money in Los Angeles. Over the course of their dealings, defendant and his California and New York accomplices exchanged numerous text and cell phone messages, many of which were intercepted pursuant to court order and were highly incriminating.


There are two distinguishing factors which make Feathers (supra) inappropriate and inapplicable in the view of this court. First, assuming the truth of the allegations, Money Center is accused of having committed an affirmative act in New York, <mask>, via instructions conveyed to BONY. (See, Pilates, Inc. v Pilates Inst., 891 F Supp 175 [SD NY 1995].) Second, to allow a defendant to conspire and direct tortious activities in New York, in furtherance of that conspiracy, and then avoid jurisdiction because it directs those activities from outside the State or country, is to ignore the reality of modern banking and computer technology in the end of the 20th century! A defendant with access to computers, fax machines, etc., no longer has to physically enter New York to perform a financial transaction which may be criminal or tortious, i.e., conversion. He may secrete himself and/or direct activities from locations where jurisdiction may be impossible to acquire, including a boat beyond the three-mile limit. Thus, the emphasis should be on the locus of the tort, not whether defendant was physically here when the tortious act occurred. Once the court finds that the tort occurred within the State, it should look at the totality of the circumstances, to determine if jurisdiction should be exercised under CLPR 302 (a) (2) (see, Parke Bernet Galleries v Franklyn, 26 NY2d 13 [1970] [which held that a telephone call during an auction from a buyer outside New York was sufficient to create an agency relationship to the gallery’s employee]). Having found that the tort occurred within New York the court concludes that defendant’s bodily presence is not an indispensable requirement for long-arm jurisdiction. It would be a travesty to permit the use of our institutions to channel stolen funds and/or the proceeds from *189heroin sales by those who impudently claim they are beyond our borders! It would be a gross violation of common sense and reality to shelter such activities.


“1. Findings. Notwithstanding any other law, the superintendent shall not issue a mortgage loan origination license unless he or she makes, at a minimum, the following findings: . . . “(b) No felony conviction. That the applicant has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court: “(i) During the seven-year period preceding the date of the application for licensing; or “(ii) At any time preceding such date of application, if such felony involved an act of fraud, dishonesty, or a breach of trust, or <mask>, provided *168that for purposes of this subdivision, the superintendent may, in his or her discretion, disregard a conviction where the felon has been pardoned.” These provisions are identical to those set forth in the Act.


DOE considered all the requisite elements. However, DOE erroneously concluded that the crime, and the facts which surrounded petitioner’s plea, bore a “direct relationship” to the license’s requirement of working with children and failed to give effect to the presumption to which petitioner was entitled. This conclusion is arbitrary and capricious as there is no evi*313dence in the record concerning this “direct relationship” nor does DOE ever articulate how petitioner’s crime or his prior acts bear a “direct relationship” with the job duties of a paraprofessional.3 Instead the denial appears to be based simply on supposition unsupported by facts. Such decision-making does not comport with the Correction Law, and runs athwart to the presumption of rehabilitation afforded by Correction Law § 753 (2) (see e.g. Matter of Dellaporte v New York City Dept. of Bldgs., 106 AD3d 446 [1st Dept 2013] [denial of the renewal of a stationary engineer license was arbitrary and capricious because the conviction for theft of funds bore no direct relationship to the duties of a stationary engineering license and respondent failed to afford petitioner with the mandatory presumption of rehabilitation attendant to petitioner certificate of relief from disabilities]; Matter of Gil v New York City Dept. of Bldgs., 107 AD3d 632 [1st Dept 2013] [respondents arbitrarily concluded that petitioner’s convictions of mail fraud and <mask> bore a direct relationship to the duties and responsibilities attendant to a stationary engineer]; compare with Matter of Bonaventure v Perales, 106 AD3d 665 [1st Dept 2013] [direct relationship existed between petitioner’s crimes including convictions for assault and larceny and his employment as a security guard whose duties consisted primarily of the protection of persons and property]).


In the present action, MetLife’s affiants have made reference to the existence of an anti-<mask> program, as required by the PATRIOT Act, by providing the court with internal policy statements apparently meant for its employees’ edification and use in evaluating insurance practices and risks. MetLife has not produced any specific documentary evidence of its underwriting practices, although it has offered the affidavit of an underwriter reiterating that MetLife’s decision to void the policies was made under the mandates of the PATRIOT Act.


The November 5, 2016 article noted Flater's relationship to Gallaher and that Flater had spent "nearly $192,000 on mailers and canvassing in support of three of the six candidates for City Council." That spending "accounts for more than a third of the total in the race, including spending by candidates' campaigns." The article observed, "The record-breaking infusion of private cash into the race has highlighted the inequity between the $500 limits Santa Rosa puts on individual contributions to local campaigns and the unlimited amounts state law allows donors and groups to spend on independent expenditures not associated with candidates' campaigns." The article also reported that "Gallaher was cleared earlier this year of a similar complaint alleging" one of his companies "`engaged in campaign <mask> by making contributions in the name of'" persons who received reimbursement from the company.


Title III of the PATRIOT Act (Pub L 107-56, 115 US Stat 272) is entitled the “International <mask> Abatement and Anti-Terrorist Financing Act of 2001,” and is, as its name suggests, concerned with the problem of money laundering within financial institutions. Pursuant to title III, as reflected in 31 USC § 5312 (a) (2) (M), an insurance company is a “financial institution.” 31 USC § 5318 (h) requires financial institutions, such as insurance companies, to “establish anti-money laundering programs,” with particular attention toward *964“the development of internal policies, procedures, and controls” (31 USC § 5318 [h] [1] [A]). 31 CFR 103.137, entitled “Anti-money laundering programs for insurance companies,” provides the regulatory framework for the insurance industry with regard to the creation of “anti-money laundering” programs, with emphasis on possible money laundering through the purchase of insurance products. 31 CFR 103.137 (b) provides that “each insurance company shall develop and implement a written anti-money laundering program applicable to its covered products that is reasonably designed to prevent the insurance company from being used to facilitate money laundering or the financing of terrorist activities.” Paragraph (c) sets forth the minimum requirements for the anti-money laundering programs, as applicable, as follows:


Upon further review of the grand jury presentation, prompted by this defense application under Santos, I have concluded that there was legally insufficient evidence to support the “intent to conceal” element of <mask> by Rozenberg. There was not a scintilla of direct evidence before the grand jury that Rozenberg knew what Polack and Kucherovsky did with those monies other than to run the clinic, which circumstance negates an intent to conceal. To impute knowledge to Rozenberg of concealment and money laundering by Kucherovsky and/or Po-lack was therefore too speculative and unwarranted.


. Federal prosecutors have been permitted to allege both theories conjunctively in support of a single count, yet seek to convict on proof of either (Garda-Torres, 341d at 64-67; Bolden, 325d at 486-487 & nn 19, 20; United States v Booth, 309d 566, 571-573 [9th Cir 2002]; cf. United States v Jackson, 935d 832, 842 [7th Cir 1991] [trial court erred in supposing proof of both required]). Indeed, one federal court of appeals has concluded that it would be improperly multiplicitous to allege in one count that a defendant committed concealment <mask>, and in another, by the same conduct, promotion money laundering. (United States v Stewart, 256d 231, 246-249 [4th Cir 2001]; but see United States v Sierra-Garcia, 760 F Supp 252, 255-257 [ED NY 1991].) I take no view here concerning analogous pleading questions under the New York statutes.


It is the contention of the plaintiff that the moneys attached in the brokerage accounts maintained by the various defendants in Panama and Miami, Florida, are proceeds of <mask> stemming from the activities of narcotics sales by the Cali Cartel in the State of New York. The defendants argue that the attachments must be vacated because the situs of the accounts are in Panama and Florida and are thus beyond the court’s attachment power. Moreover, the cross-moving defendants claim that they are in no way involved in drug activity, that they are legitimate business people in Columbia and that their acquisition of the claimed tainted moneys coming from the United States was innocent of any criminality or knowledge of its source.


Second, since both Rutgard and Mays were decided, section 1957 has been amended to include a definition of "proceeds." In U.S. v. Santos (2008) 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912, the Supreme Court held that the word "proceeds" in section 1956 was ambiguous and could mean profits or receipts. ( U.S. v. Santos, supra, 553 U.S. at p. 511, 128 S.Ct. 2020.) Under the rule of lenity, the court interpreted proceeds as meaning profits because to trace the <mask> transaction to the defendant's profits would require more from the prosecution in order to obtain a conviction. ( Id. at pp. 513-514, 128 S.Ct. 2020.)


. By written decision and order of December 17, 2007 the court dismissed this previous count 54 because the one and only predicate felony for this count, enterprise corruption (Penal Law § 460.20 [1] [a]) was dismissed on the Attorney General’s motion. For the first time after that decision, on July 16, 2008, the Attorney General moved orally for that count to be restored and reduced to <mask> in the second degree on the ground that only this count included Mighty Management, L.L.C., as distinguished from the different management company charged in count 55, Mighty Management Group, Inc. I originally sustained count 55. Despite the delay I would grant the application were I not to dismiss all the money laundering counts.


On the night of November 19, 2007, State Police investigators watched Baez carry a black bag into 80 Bennett Avenue in Washington Heights. The bag was seized and found to contain more than $500,000 in cash, claimed by the Special Narcotics Prosecutor to be the proceeds of narcotics traffic. By a one-count felony complaint filed November 20, 2007, Baez was charged based on these events with <mask> in the second degree.


"(a) A corporate account was apparently controlled by three lawyers, who were listed as officers of this corporation. One of these persons was linked with a <mask> scheme in *700the Pablo Escobar indictment proceeding in April, 1990. Shortly after the public release of the Pablo Escobar information, the salesman in charge of the account * * * [agreed] that this account * * * would leave DLJ and come back repackaged as an offshore trust. Subsequently, this account came back with the same [government-backed $10 million] securities, not as a trust but as an offshore corporation. However, the papers at DLJ did not disclose (in violation of SEC and New York Stock Exchange rules) any of the persons in control of the corporation because the officers listed for this corporation were not individuals, but three other offshore corporations. "(b) Money was being taken in from third parties and sent out to other third parties who had no apparent relationship to the accounts. Many of these accounts in which this occurred had no security transactions. The wiring of funds to third parties and the receipt of third party checks violated DLJ’s rules * * * "(c) Trades were done in apparently unrelated accounts, in a manner indicating that the salesman involved was using discretion without written authorization as required by DLJ rules * * * "(e) Money was wired overseas to third parties, in large amounts, to accounts in countries generally regarded as secrecy countries. In three instances, funds were wired in such a manner as to conceal the true name of the DLJ customer wiring the funds. "(f) Many accounts did not contain proper documentation for trading authorizations or disclose the individuals who actually controlled these accounts, in violation of DLJ and New York Stock Exchange rules.” After his discharge, plaintiff maintained that he had been dismissed because of his reporting of the alleged violations of rules and regulations to, among others, the defendant Robert Albano, DLJ’s compliance director. Thereafter, plaintiff brought an arbitration proceeding before the New York Stock Exchange. In the arbitration proceeding, plaintiff filed a statement of claim indicating DLJ’s alleged motivation for his discharge. DLJ filed a response to statement of claim which vigorously denied plaintiff’s allegations of violations of rules and regulations related to money laundering and maintained the plaintiff had been discharged because of poor job performance. In May 1993, the New York Stock Exchange issued an *701arbitration award in favor of Mulder in the amount of $114,668, and costs of $1,000. The decision did not specify the basis of the award. However, the award recited the following case summary: "Ex-employee, Internal Auditor vs. Member Firm and Officers alleging that when he uncovered and brought to senior management’s attention, by way of an audit report, a drug money laundering scheme within the firm, he was wrongfully terminated and his professional reputation was damaged. Claimant also alleges false reporting to the NYSE and seeks back pay and benefits, payment for his consulting services, future earnings and exemplary damages.”


New York’s <mask> statutes are substantially modeled on their modern federal counterparts {see Donnino, Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 470, 2008 Pocket Part, at 192), and, like their *908chief federal analogue, allow for the prosecution of money laundering under what are sometimes termed “concealment” and “promotion” theories (see generally United States v Garcia-Torres, 341d 61, 65 [1st Cir 2003] [contrasting theories in the federal statute]; United States v Bolden, 325d 471, 486-487 & nn 19, 20 [4th Cir 2003] [same]).1 The felony complaint charge against Baez, brought under Penal Law § 470.15 (1) (b) (ii) (A) and (iii), rested exclusively on the concealment theory. That is, it alleged, in pertinent part, that Baez conducted one or more financial transactions “[k] no wing that the transaction or transactions in whole or in part [were] designed to . . . conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified criminal conduct.” (Id.)


John A.K. Bradley, J. Among the many mundane cases that pass through this courtroom, occasionally a case more likely found in Hollywood than in New York Supreme Court arises. This is such a case, involving, among other things, high-priced call girls and a tony *468escort service, an allegedly corrupt senior police officer, a vengeful gun dealer and lover, relationship abuse, bigamy, alleged prosecutorial persecution, and much more. Before the court are a number of motions designed to parse through this exciting fact pattern and have this court rule on the efficacy of this prosecution for falsifying business records, <mask>, and promoting prostitution.


On February 7, 2011, a 107-count indictment was filed with the Nassau County Court Clerk charging 14 defendants, each with a count of enterprise corruption, conspiracy in the fourth degree and scheme to defraud in the first degree. Each defendant was charged with additional differing counts, including <mask> in various degrees, falsifying business records in various degrees, identity theft in the first degree and grand larceny in various degrees.


When Triggs’s employer confronted her about the payments, she said another employee was responsible and had threatened her. Triggs quit her job in May 2015, and she told her employer her husband had died. Triggs later admitted her husband was alive and she was responsible for the fraudulent payments. She promised to pay back the money she took. On January 2, 2018, the People filed an information charging Triggs with identity theft (§ 530.5, subd. (a); count 1), false personation for a written instrument (§ 529, subd. (a)(2); count 2), three counts of grand theft (§ 487, subd. (a); counts 3–5), and <mask> (§ 186.10, subd. (a); count 6). As to the grand theft charges, the People further alleged that Triggs engaged in a related pattern of felony conduct resulting in the loss of more than $100,000, within the meaning of section 186.11, subdivision (a)(3). On January 7, 2020, Triggs pleaded no contest to the charges and admitted the section 186.11 allegation. The court postponed sentencing because Triggs agreed to make scheduled restitution payments to her employer. Specifically, she agreed to make a $14,000 payment within a week, an $11,000 payment by June, and $2,000 payments each month beginning in February. The court noted if Triggs “fall[s] short on restitution, this is clearly a [state] prison case” and it would not “hesitate to send her to prison . . . .” Triggs had not made any payments to her employer as of early February 2020. On February 13, 2020, the employer received an envelope from Triggs, but it was empty. It appears Triggs claimed she mailed a check, but someone took it out of the envelope before it got to the employer. The prosecutor believed Triggs was lying.


Baez relies on this rule. As noted above, the felony complaint charged the concealment theory of <mask> in the second degree, and it was with respect to the offense as so charged that I held Baez for grand jury action. As further noted, Baez thereafter waived indictment by a document naming the distinct, promotion theory of money laundering in the second degree, and the promotion theory underlay the sole count of the superior court information, to which Baez pleaded guilty. Baez therefore contends that he impermissibly waived indictment with respect to, and pleaded guilty under a superior court information charging, a crime other than that for which he had been held for the action of the grand jury.


Per Curiam. On February 8, 2013, in the Supreme Court, Kings County (Chun, J.), the respondent pleaded guilty to 13 felony counts: 10 counts of grand larceny in the second degree, a class C felony, in violation of Penal Law § 155.40 (1); <mask> in the first degree, a class B felony, in violation of Penal Law § 470.20 (1); scheme to defraud in the first degree, a class E felony in violation of Penal Law § 190.65 (1) (b); and conspiracy in the fourth degree, a class E felony, in violation of Penal Law § 105.10 (D.


The kidnapping charges did not merge into the attempted escape charge since the continued restraint of the officers after other correction officers discovered that the inmates had taken over the facility constituted a discrete crime (see, People v Steel, 207 AD2d 744). In any event, the <mask> is not applicable to this case since the detention here was unusually brutal. All of the officers were bound, beaten and gagged; two were threatened with a razor or a knife; one was used as a "shield;” and defendant threatened to kill the "hostages” since he "had nothing to lose” (People v Taylor, 184 AD2d 218, lv denied 80 NY2d 897).


The principle underlying the de facto <mask> is that a purchaser cannot escape the assumption of liabilities ordinarily attendant with a merger by labeling the transaction something else. Whether fair value is paid for the assets acquired has no bearing on whether a New York court will look at a transaction or series of transactions and deem them “in substance a consolidation or merger of seller and purchaser.” (Cargo Partner AG, 352d at 45 [internal quotation marks omitted].) Thus, BAC’s argument that its payment of “fair value” defeats MBIA’s successor liability claim fails.18


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


This substandard lot was created by the zoning ordinance. Therefore and ordinarily, a subsequent variance would be mandatory so as to prevent a confiscation (Matter of Long Island Land Research Bureau v. Young, 7 Misc 2d 469; Matter of Waldorf v. Coffey, 5 Misc 2d 80; Matter of Macchia v. Board of Appeals, 7 Misc 2d 763). On the other hand, a <mask> can be validly invoked to prevent distortion of such continuing preordinance rights (Matter of Chasanoff v. Silberstein, 6 A D 2d 872; Matter of Bonan Realty Corp. v. Young, 16 Misc 2d 119; cf. Matter of Pappalardo v. Michaelis, 28 Misc 2d 808). The amended section here applies such doctrine and to that extent must be respected. But, in the first place, it is difficult to visualize what might be categorized as separate ownership in bad faith. Though we accept respondent’s argument that the law to be applied here is that existing at the time of our review, we find no indication of petitioner’s ownership of property in other than good faith.


Although the harshness of the prior kidnapping statute was somewhat ameliorated by the enactment of the present Penal Law § 135.00 et seq., the Court of Appeals sustained the continued viability of the <mask> in People v Cassidy (supra) wherein it held that, if it was the intention of the Legislature to require an extensive period of detention in order to constitute a kidnapping, or to abolish the merger principle by dividing kidnapping into various degrees, this could have been readily accomplished by clear, explicit legislative provision. In the absence of such language, it should be presumed that the Legislature intended the statute to be interpreted consistent with the merger doctrine (supra, 40 NY2d, at 766).


It appears to us that plaintiff's argument about the <mask> misses the critical point, and that the merger doctrine is not relevant in this case. To explain: The merger doctrine refers to the principle that "an easement usually is extinguished when the same person acquires the fee *610title to both the dominant and servient tenements." (6 Miller & Starr, Cal. Real *188Estate, supra , Easements, § 15:75.) Here, when plaintiff recorded the Lenope roadway easement, she (or her alter ego) owned both the dominant tenement (the Friese property) and the servient tenement (the Lenope property), so she was effectively granting an easement to herself. However, "[e]ven in circumstances where there might otherwise be a merger, whether or not there has been a merger depends on the actual or presumed intention of the person who holds both interests, and there will be no merger if it would be inequitable." (Ibid. )


What plaintiff All Brands Fork Lift Corporation fails to comprehend is that the aforementioned <mask> has no application to this case. This is because the principle of merger addresses the obligations between the vendee and vendor of real property. With the aforementioned exceptions, a deed entered between the vendor and vendee would have the effect of extinguishing unfinished obligations of the vendor or vendee arising from a prior contract of sale. (See e.g., Dourountoudakis v Alesi, 271 AD2d 640 [2d Dept 2000]; West 90th Owners Corp. v Schlechter, 165 AD2d 46 [1st Dept 1991].) In other words, the delivery and acceptance of an executed deed is considered prima facie evidence of a merger superseding the provisions of the antecedent contract which had imposed obligations upon the parties. (Id.)


The court is aware that literal application of McSparron’s language is extraordinarily difficult, without either running afoul of McSparron’s injunction against double counting of the license and the professional practice or creating another version of the now discredited <mask>. There is little doubt that a computation of the value of the license using the actual earnings of Husband as of the valuation date and the traditional methodology would result in a value which will nearly always be far greater than and duplicative of the practice value. That result is inherent in the traditional method of using the difference between actual earnings and a college graduate’s earnings and multiplying the result by the remaining work-life expectancy. A college graduate’s earnings are obviously going to be far less than the "reasonable compensation” figure for a comparable attorney used in an "excess earnings” formula, and the remaining work life is, except in cases of 62- to 65-year-old persons, far in excess of the one to three multiple used by experts in law practice valuations. In addition, since the same actual earnings are used in both computations the resulting value results in combining the values of the license and the practice, thereby effectively merging the practice value into the greater, more inclusive, license. Obviously that result was not intended by the Court of Appeals.


While, on the surface, the argument has some simplistic appeal, under the facts of this case, it would exalt form over substance and would be inconsistent with an individual’s right to be dealt with fairly, especially in terms of governmental prosecutions. At issue is whether a prosecutor may properly "juggle” the charges in the indictment in relation to the victims to eliminate certain charges vis-á-vis certain victims and thereby avoid the legal consequences of the <mask>.


"The <mask> is thus a means of effectuating the Legislature’s intent by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping. Moreover, despite the parity of punishment, the merger doctrine prevents multiple convictions for conduct that, in fairness, should result in a single conviction. * * * "The guiding principle is whether the restraint was 'so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’ (People v Cassidy, 40 NY2d, at 767, supra; see also, People v Cain, 76 NY2d 119, 125; People v Geaslen, 54 NY2d 510, 516-517) * * * where the restraint and underlying crime are essentially simultaneous, separate punishment may not be appropriate, depending on the circumstances (see, People v Cain, 76 NY2d 119, 125 [asportation and restraint of victim incidental to and inseparable from over-all scheme of robbery]; People v Dolan, 40 NY2d 763, 768 [sexual advances made while driving around]; People v Geaslen, 54 NY2d, at 517, supra [restriction of victim’s movements incidental to simultaneous commission of attempted rape])” (emphasis added). In terms of the applicable law, it has also been held that the merger doctrine is inapplicable to kidnapping in the first degree and only applies to kidnapping in the second degree (see, People v Pellot, 105 AD2d 223, 230-231; see also, People v Rivers, 150 AD2d 736, 737). In People v Pellot (supra, at 230-231) Justice Lazer, writing for a unanimous Appellate Division, in a careful, incisive analysis, held the merger doctrine inapplicable to " 'traditional’ ” or " 'conventional’ ” kidnappings, as prescribed by Penal Law § 135.25 (1) (citing People v Cassidy, 40 NY2d 763, 766, supra; People v Miles, 23 NY2d 527, 539; People v Lombardi, 20 NY2d 266, 271; People v Levy, 15 NY2d 159, 164-165), nor to those defined in section 135.25 (2), dealing with abductions for certain purposes, which last more than 12 hours, nor to those under subdivision (3), involving the death of the victim. In so holding, the Court recognized that criminal responsibility under subdivision (1) "focuses on the intent of the abduction and is applicable when*115ever the objective is to effectuate an extortion.” (People v Pellot, supra, at 232.)


The defendant’s claim that his conviction for kidnapping in the second degree should be reversed because of the <mask> is unpreserved for appellate review (see, People v Sage, 204 AD2d 746). In any event, the defendant’s restraint of his victim was of the sort which the Legislature intended to punish separately from the other crimes which he committed (see, People v Gonzalez, 80 NY2d 146, 152). Contrary to the defendant’s claim, the abduction was discrete from the burglary as the latter crime had been fully completed when the defendant forced the victim at knifepoint into a car and drove for 30 minutes before she was able to make her escape (see, People v Smith, 47 NY2d 83, 87).


David Goldstein, J. These are motions by defendants, made initially at the close of the People’s case and renewed before submission to the jury, inter alla, to dismiss the first two counts of the indictment for kidnapping in the first degree.* Although the defendants were acquitted of these charges and the lesser included counts of kidnapping in the second degree, in my view, the importance of the issue in relation to the improper conduct by the District Attorney in attempting to foreclose application of the <mask> warrants consideration of the motion on the merits.


Other decisions appear to treat a merged trust as merely suspended during the lifetime of the sole trustee/sole income beneficiary: “[D]uring the period of the merger the trust is not wholly destroyed but merely suspended, and upon the death of the [life beneficiary] it is revived, at which time the obligation of distribution falls upon her personal representatives. Final distribution upon the termination of the trust is as much a part of the duties of a trustee as the administration of the fund *766prior to the arrival of such time” (Matter of Lott, 148 Misc 1, 4 [Sur Ct, Queens County 1933]). Matter of Sackler (145 Misc 2d 950 [Sur Ct, Nassau County 1989]) is often cited to support the contention that a merged and suspended revocable living trust can spring back up on the life tenant’s death to become a proper receptacle for a pour-over (see, Schumacher, Sole Beneficiary I Sole Trustee: New York’s <mask>, NY St Bar Assn, Trusts and Estates Law Section Newsletter, summer 1993, at 4-9). The trust in that case, however, did not actually involve a merger, since individuals in addition to the life beneficiary/ trustee held present interests, and the notion of a continuing trust after the termination of the first estate was articulated in dictum. Nevertheless, Sackler is indicative of a judicial inclination, now codified in the amended EPTL 7-1.1, to mitigate the effects of merger on a trust’s viability, particularly at the death of the settlor, if possible. And indeed, in Matter of Howard (supra), we found that the trust, even if merged or suspended during the settlor’s lifetime, came back to life on his death to become an appropriate receptacle for the pour-over. The estate and trust assets could then be distributed by the successor trustee to the decedent’s daughters and nieces and nephews.


Notwithstanding, the wide latitude and discretion accorded to the prosecutor in terms of the charges to be presented to a Grand Jury, in my view, it is improper to withhold from the grand jurors’ consideration certain crimes in relation to certain victims in order to avoid the legal consequences which flow from application of the <mask>. This, to some degree, impinges upon the function and prerogative of the Grand Jury, both in terms of its investigatory role and in determining which charges are to be included in an indictment.


A similar analysis was approved in People v Miller (32 NY2d 157, at pp 159-160): "Under [Penal Law of 1909 § 1044] any felony, including assault, could be the predicate for a felony murder. Since, a fortiori, every homicide, not excusable or justifiable, occurs during the commission of assault, every homicide would constitute a felony murder.” Obviously, an assault occurs during the commission of every assault. The <mask> created to cure the same defect in the prior felony murder statute must necessarily be imposed here for the same reason.


I am of the opinion that the Legislature by making kidnapping in the second degree one of our most serious crimes, intended that it apply to situations where the threat of deadly physical force was real and not merely apparent. The recent history of the kidnapping statutes and judicial interpretation of them has been to limit the application rather than broaden the application of kidnapping. Thus, although detention and asportation actually occur and even though the threat of deadly physical force may be used, where the intent of the criminal is to commit another crime, such as robbery (People v Levy, 15 NY2d 159) or rape (People v Lombardi, 20 NY2d 266), "the direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident.” (People v Lombardi, supra, p 270.) As Judge Breitel pointed out in People v Miles (23 NY2d 527, 540) "the Levy-Lombardi rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal.” Again, as pointed out in People v Cassidy (40 NY2d 763, 765-766) "[t]he <mask> [merging the kidnapping into the underlying offense of robbery or rape] was of judicial origin and was based on an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available, where a period of abduction was brief * * * and there was lacking a genuine 'kidnapping’ flavor”.


New York law recognizes de facto merger “when a transaction, although not in form a merger, is in substance a consolidation or merger of seller and purchaser.” (Cargo Partner AG v Albatrans, Inc., 352d 41, 45 [2d Cir 2003] [internal quotation marks omitted].)9 A de facto merger occurs “when the acquiring corporation has not purchased another corporation merely for the purpose of holding it as a subsidiary, but rather has effectively merged with the acquired corporation.” (Fitzgerald v Fahnestock & Co., 286 AD2d 573, 574 [1st Dept 2001].) Underlying the de facto <mask> is the concept that “a successor that effectively takes over a company in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased.” (Id. at 575.) De facto merger is aimed at avoiding the “patent injustice which might befall a party simply because a merger has been called something else.” (Cargo Partner AG, 352d at 46.)


As a self-trusteed revocable living trust that terminates on its creator’s death, the instrument before us is an example of a type of will substitute widely promoted in many States, the effectiveness of which in New York has been problematic because of the <mask>. The respondents argue that because, according to the terms of the trust agreement, the decedent was the sole lifetime trustee and beneficiary, the legal and beneficial interests merge in him, which terminates the trust. They then urge that because there is no valid trust to govern the disposition of assets on the decedent’s death, the trust corpus passes according to the will. And, because estate assets cannot pour into a failed trust, and because the trust’s terms cannot be incorporated into the will, the decedent’s entire estate must be distributed to them by intestacy. Both the petitioner and the guardian ad litem take issue with such an argument, contending that any merger of interests does not wholly invalidate the trust and that its dispositive provisions must govern the distribution of the decedent’s property.


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


The <mask> was a judicially created response to the harsh consequences of former Penal Law § 1250 (1), which, in substance, defined kidnapping as confining another against the victim’s will and provided for a minimum sentence of 20 years to life. To prevent this harsh result in cases which, actually, amounted to a robbery, a rape, or some other underlying crime, but which did involve some degree of restraint, the Court of Appeals held that, where the restraint was part and parcel of some underlying crime, usually a robbery or rape, it would not escalate the crime to kidnapping, which *113would merge with the underlying crime (see, People v Cassidy, 40 NY2d 763; People v Lombardi, 20 NY2d 266; People v Levy, 15 NY2d 159, cert denied 381 US 938).


It is observed, at the outset, that similar legislation had passed the State Assembly in 1993 as "an act to amend the estates, powers and trusts law, in relation to validity of trusts when the same person is trustee and beneficiary” (1993 NY Assembly Bill A 8158; emphasis supplied). As approved by the Assembly, the legislation would have been effective "immediately” (id., § 2) and would have applied to all "trusts whether created before or after the effective date” (ibid.). In other words, when legislators had focused specifically on the merger issue, in 1993, they had found no reason to preserve the <mask> for purposes of some trusts, while eliminating it for purposes of others.


The trial court cited plaintiff's testimony "that she has been to her ranch property on a daily basis since 1996.... She boards her own horses and also leases out space for boarding and training of horses for private individuals. The ranch has had as many as thirty (30) to fifty (50) horses for boarding and training."10 The court found that "equity bars the application of the <mask> to prevent the granting of an express easement to the Plaintiff. There was no testimony that Plaintiff intended a merger." (This refers to the Lenope roadway easement plaintiff granted to her alter ego as owner of the Friese property.)


However, “[u]nder the well-established doctrine of merger, provisions in a contract for the sale of real estate merge into the deed and are thereby extinguished absent the parties’ demonstrated intent that a provision shall survive transfer of title” (Hunt v Kojac, 245 AD2d 858, 858-859 [3d Dept 1997]). Here, the plain language of the contract clearly and unambiguously expresses the parties’ intention that “the terms of this contract shall not survive the closing of title but rather shall be merged by delivery of the deed by [defendant]” (see Arnold v Wilkins, 61 AD3d 1236 [3d Dept 2009]; cf. Cerand v Burstein, 72 AD3d 1262 [3d Dept 2010]). Accordingly, it is clear that the parties intended the limited home warranties to constitute plaintiffs’ exclusive remedy for post-closing defects in the contracted work. Moreover, while collateral undertakings fall outside the <mask> (Hunt at 859), the contractual provisions relied upon by plaintiffs are by no means collateral to the transaction (see Cerand, supra [zoning code violations existing at time of clos*707ing]; CGM Constr. v Miller, 263 AD2d 831 [3d Dept 1999] [extra work claim on construction contract]).1


doubt that appellant “intentionally or knowingly committ[ed] or attempt[ed] to commit a felony, namely, . . . Aggravated Assault.” Accordingly, the charge is consistent with Penal Code section 19.02(b)(3), does not violate the <mask>, and is not erroneous for the reasons appellant contends. See Lawson, 64 S.W.3d 396, 397; Esquivel v. State, No. 01-16-00301-CR, 2017 WL 3910793, at *6 (Tex. App.—Houston [1st Dist.] Sept. 7, 2017, pet. ref’d) (mem. op., not designated for publication) (“We thus conclude that the jury charge’s application paragraph regarding felony murder was not erroneous, and the jury charge did not contain an invalid legal theory of murder.”); cf. Keen v. State, No. 03-19-00744- CR, 2021 WL 4819078, at *7 (Tex. App.—Austin Oct. 15, 2021, pet. ref’d) (mem. op., not designated for publication) (error in charge when submission of felony murder “did not differentiate between an aggravated assault committed intentionally or knowingly and one committed only recklessly”).


Jerome L. Reinstein, J. Since neither precedent nor reason requires application of the so-called <mask> to a kidnapping-attempted escape situation, defendant’s trial motion to dismiss the three kidnapping counts of the indictment was denied. Moreover, the State’s public policy should preclude its employment where, as here, three unarmed correction officers were overpowered, bound, gagged, blindfolded, punched, kicked and their very lives placed in jeopardy during an unsuccessful escape attempt.


In McSparron v McSparron (supra), the Court of Appeals rejected the line of cases which had held that a license to practice law "merges” into the resulting practice (e.g., Marcus v Marcus, 137 AD2d 131; Duffey v Duffey, 198 AD2d 581; Maher v Maher, 196 AD2d 530; cf., Finocchio v Finocchio, 162 AD2d 1044). The Court held that "[t]he <mask> should be discarded in favor of a commonsense approach that recog*814nizes the ongoing independent vitality that a professional license may have and focuses solely on the problem of valuing that asset in a way that avoids duplicative awards” (McSparron v McSparron, supra, 87 NY2d, at 285). The Court emphasized that the determination in each case must be individualized to account for the "harvesting” of a portion of the award prior to commencement of the matrimonial case. The Court also noted that methods must be adopted to insure that there is no duplication between the award for the value of the license and other distributive and maintenance awards in the same case.


Prior to People v Cassidy (40 NY2d 763) it was uncertain whether the judicially created <mask>, first enunciated in People v Levy (15 NY2d 159) and followed in People v Lombardi (20 NY2d 266), survived the 1967 revision of the Penal Law’s kidnapping provisions (People v Rodriguez, 52 AD2d 781). Cassidy held that it did. “The merger doctrine is [still] intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may. not fairly be attributed to them.” (People v Cassidy, supra, p 767; see, also, People v Geaslen, 54 NY2d 510, 516-517.)


One of the reasons for the problems resulting from the use of actual earnings is that it measures a combination of several factors: the license, the use to which it is put, the individual characteristics of the holder and the practice in which it is *816used. Patently, if the purpose of the exercise were solely to value the "license” itself, then the individual use to which it is put would be irrelevant. The result would be that all licenses issued at a particular date in a particular locality would have the same value. The cases which had adopted the <mask> were in part attempting to avoid this anomaly (see, Finocchio v Finocchio, supra; compare, Procario v Procario, 164 Misc 2d 79, 83-86). Wife’s expert attempted to deal with this question by ascribing a value to the "license” itself and a separate value to the "enhanced earnings” that result from it. Husband’s expert in one of her alternate scenarios also valued the license itself without regard to the enhanced earnings.


We are also extremely troubled by the operation of the <mask> on the continued existence of this trust and its eligibility as a pour-over receptacle. Most of the early cases dealing with merger (see, discussion, supra) held that the merger of interests in the life beneficiary caused the trust to fail, leaving a legal life estate and á legal remainder. Underlying such determinations is the conceptualization of the remainder as a legal interest to take effect after the termination of the trust rather than as an equitable interest under the trust itself. According to this reasoning, because the trust’s only beneficiary was the life beneficiary/trustee, the trust ceased to exist (13 Warren’s Heaton, Surrogates’ Courts § 209.02 [1] [b] [6th ed]). But later courts recognized the problems inherent in the life estate/remainder arrangement, in particular the issue of adequate protection for the interests of the remaindermen during the life estate and sought to promote continuation of the trusts. The Court of Appeals in Matter of Phipps (2 NY2d 105 [1956]) held that if the governing instrument evidenced any intention that the trust should continue, such as the designation of a successor trustee, the Court would appoint the denominated successor a cotrustee with the life beneficiary to forestall the merger and the termination.


In People v Levy (supra), the Court of Appeals, establishing the <mask>, concluded that restraints, sometimes accompanied by asportation, which are incidents to other crimes, should not be treated as kidnappings. Thus, “It was held in Levy that under the kidnapping statute then in effect (Penal Law, former § 1250) * * * the detention or asportation of a victim for a relatively short time as an incident to robbery should not normally be prosecuted as kidnapping.” (People v Lombardi, 20 NY2d 266, 271.)


Defendant’s argument that the <mask> compels *259dismissal of his convictions for kidnapping in the first degree and felony murder based upon kidnapping is unpreserved (CPL 470.05 [2]), and we decline to review it in the interest of justice. In any event, the merger doctrine is inapplicable to a first degree kidnapping conviction under Penal Law § 135.25 (3) (People v Pellot, 105 AD2d 223). Furthermore, since defendant was not formally charged with second degree kidnapping, the alleged predicate for one of his felony murder convictions, the merger doctrine has no application.


Dianne T. Renwick, J. *603This is an action for partition of certain real property jointly owned by plaintiff All Brands Fork Lift Corp. and defendant Yetish, Inc. Defendant Yetish, Inc. now moves for partial summary judgment on its counterclaim for partition and dismissal of plaintiff’s complaint. Plaintiff All Brands Fork Lift Corp. cross-moves for partial summary judgment on its claim for partition. The outcome of these motions depends on whether the <mask> extinguishes a clause in the buyers-prepurchase agreement allocating their respective percentage of ownership of real estate where such clause conflicts with a similar provision in the deed of conveyance that provides a different percentage of ownership.


Under Business Corporation Law § 901 (a) (1), a merger is defined as a transaction leading to the formation of a single surviving corporation. (See, Danziger v Kennecott Copper Corp., index No. 21941/1977, Sup Ct, NY County, Kirschenbaum, J, affd 60 AD2d 552.) The fact that the corporation whose shares are acquired continues to exist means that there is no requirement for shareholder approval under Business Corporation Law § 903 (a) (2). (Danziger v Kennecott Copper Corp., supra.) Effectively, said case stated that in circumstances similar to the instant case the de facto <mask> will not be applied. The de facto merger doctrine has been applied in this State, but only where it is apparent that the acquired corporation was quickly to be dissolved.


“Traditionally, once the buyer accepted the deed, he absolved the vendor of all duties under the sales contract. Under the <mask>, all contract obligations ‘merged’ into the deed when the seller delivered it to the buyer. If the vendor intended to fulfill additional obligations, the parties had to list the obligations in the deed” (McDaniel, The New York Housing Merchant Warranty Statute: Analysis and Proposals, 75 Cornell L Rev 754, 756 [1990]). The effect of the merger doctrine was to extinguish claims based upon defective home construction once the buyer accepted title to the underlying real estate. Consequently, because of the perceived unfairness and inequity of this result, the merger doctrine, at least in the context of new residential home sales, had long been under frontal attack by the legal academy and incremental erosion by the courts when the Court of Appeals decided Caceci (72 NY2d 52).


In Caceci, the Court placed its imprimatur upon a rule that in a home construction contract, “there is an implied term in the express contract between builder-vendor and purchasers that the house to be constructed would be done in a skillful manner free from material defects” (72 NY2d at 56). This alone would have broken no new ground, but the Court went on to hold that the <mask> applicable upon transfer of title, whether derived from the parties’ contract or otherwise by operation of law, would not extinguish the implied warranty (id. at 56-57). This was central to the case, because the plaintiffs’ contract with the builder called not only for home construction but conveyance of the underlying real property *741upon which the home was built. “To hold, in a case such as this, that the closing itself, the very act which triggers the claim, also served to extinguish it is self-contradictory, illusory and against public policy” (id.).


homicide.’” Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999) (quoting Garrett, 573 S.W.2d at 546). Instead of a general <mask>, the court stated that the doctrine exists only to the extent consistent with Penal Code section 19.02(b)(3). Thus, Garrett stands only for the proposition that “a conviction for felony murder under section 19.02(b)(3) will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter.” Id.


It is offered as a possible explanation that some textbooks refer to the fact that the Penal Code of 1881 did away with the doctrine of merger in this State. If that be the fact, the <mask> refers to mergers between misdemeanors and felonies and not to mergers between two felonies. Both an attempt to commit a crime and assault with intent to commit a crime, although misdemeanors under the common law, had long before 1865 been made felonies in this State.


Thus, in such a situation, the duration of the restraint is without dispositive effect. The observation and holding by the Appellate Division in People v Pellot is most instructive (supra, 105 AD2d, at 232): "So viewed, application of the <mask> to either subdivision 1 or subdivision 3 is patently inappropriate. This is so because the element which distinguishes these crimes quite simply has nothing to do with either the complexity of the asportation or the duration of the confinement, whereas the merger doctrine turns upon those very considerations (see People v Cassidy, 40 NY2d 763, 765-766, supra; People v Miles, 23 NY2d 527, 539, supra). To sustain a conviction for kidnapping in the first degree in violation of either subdivision 1 or subdivision 3, there must be an abduction consisting of the requisite act of restraint accompanied by either the isolation of the victim or the threat or actual use of deadly physical force. Once these technical elements are proven, however, a separately cognizable violation of subdivision 1 is shown by proof that the purpose of the abduction was extortion. If that be the case, the duration of the confinement is immaterial, and the defendant is guilty of kidnapping in the first degree, even if the victim manages to escape after only a few moments of confinement” (emphasis added).


The only basis for sustaining this factual scenario as representing a burglary-robbery vis-á-vis the father and a separate kidnapping, insofar as concerns the mother and son, is the imaginative manner by which the indictment was created to pose, in two neat, tidy packages, a burglary-robbery as to the *117father, and a kidnapping as to the mother and son. This approach, however, overlooks the actual facts as they unfolded. It also fails to perceive that, while the situation might have escalated into an actual kidnapping, the arrival of the police intervened. Clearly, under the facts of this case, there was no extortion at the time the police arrived. Inasmuch as, at that time, the extortion and the robbery were one and the same, we do not have two separate, independent crimes. (See, People v Pellot, supra, 105 AD2d, at 232.) Moreover, as stated, the manner by which the indictment was crafted, in avoidance of the legal and equitable principle underlying the <mask>, is improper and transcends the prosecutorial role, which does carry with it a degree of fairness in terms of the public.


¶23 Thompson does not offer any compelling reasons to overturn these cases. For the most part, he refuses to acknowledge our holdings that premeditated murder and burglary with the intent to murder are separate offenses. See State v. Styers, 177 Ariz. 104, 112 (1993) (“Although the jury findings in this case clearly demonstrate that the kidnapping was pursuant to a plan to kill, that does not mean that only one crime was committed. Thus, the <mask> would not apply here.”). Thompson seeks to distinguish Kuhs and Hardy because the defendants in those cases forced their way into their victims’ homes while he did not. STATE V. THOMPSON Opinion of the Court


In this case, the <mask> does not come into play. Plaintiff is really saying that in 2010, she intended to grant an easement over the Lenope roadway to her ranch property, not to the Friese property. If she had done so, the applicability of the merger doctrine, and her intent not to merge the "the fee title to both the dominant and servient tenements" would be relevant. But she did not grant the easement to her ranch property. The easement she granted is quite clear. Plaintiff, then owner of the servient tenement (the Lenope property) granted an easement "running with the land" for the benefit of the Friese property at 22590 Fern Ann Falls (the dominant tenement). She now says she intended to do something else - to grant an easement to her ranch property as the dominant tenement.30 But her intent does not matter if the easement grant was not ambiguous.


To support a murder conviction under a felony-murder theory, the predicate felony must be one “other than manslaughter.” Id. § 19.02(b)(3). In 1978, the Court of Criminal Appeals interpreted this provision and held that, in a felony- murder case, the felony had to be felonious conduct other than the assault causing the homicide. See Garrett v. State, 573 S.W.2d 543, 546 (Tex. Crim. App. [Panel Op.] 1978)). “This limitation on the felony-murder rule” became “known as the <mask>.” Murphy v. State, 665 S.W.2d 116, 119 (Tex. Crim. App. 1983). But the court subsequently disavowed its “overly broad statement” in Garrett that, in order to support a conviction under the felony-murder provision, “‘[t]here must be a showing of felonious criminal conduct other than the assault causing the


*649"The felony-<mask> never existed in the United States. Nevertheless, American courts followed the English rule, as stated in Baker v. Bolton, and it was uniformly established in the United States that there was no right of action for wrongful death, Moragne v. States Marine Lines, supra, at pages 382-388.” (Brief of Plaintiff/Appellee, pp 6-7 in Matter of Paris Air Crash, supra.)


Renee R. Roth, S. At issue is whether this application by the sole trustee and income beneficiary of a testamentary trust, established under a will admitted to probate on May 29, 1997, is governed by the recent legislation affecting this State’s "merger doctrine” (L 1997, ch 139, § 2, amending EPTL 7-1.1). At common law, such doctrine basically provided that no trust in New York (whether testamentary or inter vivos) could exist where the sole present income beneficiary was, or became, the sole trustee (Matter of Reed v Browne, 295 NY 184). An outgrowth of the Statute of Uses, and thus deeply embedded in the history of trusts, the <mask> was codified in 1896 as Real Property Law § 92, which became EPTL 7-1.1 (L 1966, ch 952), and applied with equal force to all types of trusts. The harsh effect of the merger doctrine, however, could be avoided by the appointment of an additional trustee (Matter of Phipps, 2 NY2d 105). In 1997, adding six new sections to the Estates, Powers and Trusts Law and amending four others in an omnibus enactment (L 1997, ch 139, §§ 1-7) entitled "an act to amend the estates, powers and trusts law in relation to lifetime trusts” (emphasis supplied [the Act]), the Legislature (L 1997, ch 139, § 2) replaced the original provisions of EPTL 7-1.1 with the following: "A trust is not merged or invalid because a person, including but not limited to the creator of the trust, is or may become the sole trustee and the sole holder of the present beneficial interest therein, provided that one or more other persons hold a beneficial interest therein”.


Harold Pozarny’s intention regarding the disposition of his assets at death was entirely straightforward and simple. The *771trust instrument and pour-over will he purchased, however, in their dependence on generic forms that failed to take account of the peculiarities of New York law (particularly the <mask>, which was in effect at the time the trust was executed and when its creator died, and the general prohibition against incorporation by reference), their looseleaf format, and their numerous ambiguities, errors, and inconsistencies, placed that dispositive scheme at grave risk. This decedent would have been better served by a simple will.


By its amendment of EPTL 7-1.1, the Legislature brought New York in line with the vast majority of States that have rejected the <mask>. In eliminating the doctrine, the Legislature also eliminated the drain on judicial and trust resources previously required in order to circumvent the doctrine through the appointment of additional trustees. As noted earlier, there is nothing in the language of the new EPTL 7-1.1, or in the nature of its subject matter, to suggest that the Legislature intended to achieve such benefit for some types of trusts, but not for others. The conclusion is, rather, that the *500new law was intended to apply to testamentary and lifetime trusts alike.


The court had reserved decision on the motions and, notwithstanding the verdict, now grants the motions at the close of the case, upon the prosecution’s failure to establish, beyond a reasonable doubt, the requisite elements of kidnapping in the first degree. The lesser included charges of unlawful imprisonment in the first degree are dismissed under the <mask> as inseparable from the underlying crimes of robbery and burglary and the verdict vacated only to that extent.


[T]he <mask> is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).


. Indeed, the Court of Appeals decision in Caceci v Di Cardo Constr. Corp. (72 NY2d 52 [1988]) to imply a common-law remedy that survives the closing of title arose precisely because the <mask> generally has the effect of extinguishing breach of contract claims based upon defective home construction (see Gorsky v Triou’s Custom Homes, 194 Misc 2d 736 [Sup Ct, Wayne County 2002]).