Defendant moves, inter alia, for in camera inspection of the Grand Jury minutes, for disclosure of the minutes and of the prosecution’s charge, and for dismissal or reduction of the indictment or the counts thereof. In particular, defense counsel questions the adequacy of the People’s charge concerning sexual performance, and questions whether there was any evidence in support of what he assumes was <mask> testimony. The prosecution has not opposed inspection of the Grand Jury minutes, and this branch of the motion is therefore granted. The Court has read the minutes, and now turns to the remaining branches of defendant’s motion.


The court charged the jury regarding Mancini as follows: “ The People claim that among other witnesses they have corroborated what Daniello said, and have shown the defendant’s connection with this crime by the witness Mancini. Mancini, you may remember, was the man who testified that he was a partner of Daniello some years ago in the restaurant business, and claims that he was present at one or two of the conferences at Coney Island and elsewhere, and also in the restaurant on Myrtle avenue on the day of the alleged murder. Mancini claims that he was in those places; that he heard some of the talk as to the planning of this shooting in Navy street; and that he went over to New York with Daniello at the time of the killing of Ferrazano, who is said to have been the third member of the Morello gang to be killed pursuant to this conspiracy. Although there is no claim that Mancini had a hand in the actual killing of Ferrazano, he appears to have been outside of or near the restaurant with Daniello at the time that the two other men went into the restaurant and did the actual killing. The claim of the defense is that Mancini was also an <mask>; that he was a party to the same undertaking, and was just as guilty as Daniello. An accomplice, very briefly, is anyone who has a hand in the commission of a crime, where the proof shows that he himself could be indicted for the crime. In other words, the proof has to show, before a jury can find that a witness is an accomplice, that the alleged accomplice could himself have been legally and properly charged with the commission of the offense in question. I have said, as to Daniello, that there is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. But *653as to Mancini, he does not say that he was a member of the gang, or had any hand at all in this killing. That he knew the others; that he went with them more or less and met them here and there is not denied, but whether or not he was an accomplice in the eyes of the law I am going to leave to you as a question of fact. It will be determined, as I have already indicated to you, by your decision as to whether or not you find on the proof in this case that he, Mancini, could himself have been properly and legally prosecuted for this particular crime. If he could have been, he is an accomplice; if he could not have been, he is not an accomplice. If he is not an accomplice, and you believe what he says, then you might — I do not say you would — find in his testimony corroboration of what Daniello said, at least as to some part, tending to connect the defendant with the commission of this crime.”


While the principal justification for the venue requirement is to protect the accused from the hardship and unfairness of being charged in a remote county, it also protects the interests of the community in which a crime or related activity occurs. ( Chavarria, supra , 213 Cal.App.4th at p. 1371, 153 Cal.Rptr.3d 378.) The flow of drugs into Yolo County was an effect of the phone calls that initiated the transactions in which defendant involved himself. Like the residents of Ventura County in Chavarria , the residents of Yolo County undoubtedly have a legitimate interest in the local prosecution of individuals who are *151responsible for the influx of illegal drugs into their community. ( Ibid . ) We conclude that Yolo County was a proper venue because defendant aided and abetted an <mask> who engaged in preparatory acts and whose conduct had preparatory effects in that county.


The <mask> testimony was adequately corroborated by non-accomplice testimony that defendant had a motive for the robbery, as well as the opportunity to plan for it, and was observed immediately prior to the robbery in possession of a gun (later found secreted in defendant’s apartment) that appeared to be the same gun used during the robbery, while utilizing a telephone near the robbery location at the time *406reported by the accomplice to be the occasion defendant chose to convey to the accomplice instructions regarding the robbery (see, People v Dory, 59 NY2d 121, 129).


In the instant proceeding, the Property Clerk seeks to have *675the car forfeited pursuant to the Administrative Code of the City of New York. Section 14-140 (b) provides, in pertinent part, that the Property Clerk may take possession of "all property * * * suspected of having been used as a means of committing crime or employed in aid or furtherance of crime”. Where the seized property has "been used as a means of committing crime or employed in aid or in furtherance of crime * * * a person * * * who so used, [or] employed * * * any such * * * property or permitted or suffered the same to be used, [or] employed * * * or who was a participant or <mask> in any such act * * * shall not be deemed to be the lawful claimant entitled to any such money or property” (Administrative Code § 14-140 [e] [1]). The cases hold that this statutory scheme permits the Property Clerk to seek forfeiture of items used "in aid or furtherance of crime” (Property Clerk, N. Y. City Police Dept. v Hyne, 147 Misc 2d 774, 777, affd 171 AD2d 506; Moreno v City of New York, 69 NY2d 432, 435-436; Property Clerk, N. Y. City Police Dept. v Seroda, 131 AD2d 289, 295).


Having concluded therefore that the books described in the foregoing exhibits violate the statute, the question presented is whether the defendant’s connection with the publication, possession and hiring of others to assist him in the commission of the crime charged against him, has been established beyond a reasonable doubt. In the main, the testimony against the defendant was given by witnesses who, under the law, are deemed accomplicesl' However, we find that such testimony was amply corroborated by independent proof. It must be borne in mind that corroboration need not extend to every element of the crime charged. Testimony in corroboration as to some material fact is all that the law requires. (People v. Oglo, 104 N. Y. 511, 515; People v. Kress, 284 N. Y. 452, 460; People v. Swersky, 216 N. Y. 471, 480; People v. Patrick, 182 N. Y. 131, 157.) The evidence must be such as tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the triers of the facts that the <mask> is telling the truth. (People v. Crum, 272 N. Y. 348, 353; People v. Patrick, supra, p. 157; People v. Malizia, 4 N Y 2d. 22, 27; People v. Lashkowitz, 257 App. Div. 518; People v. Dixon, 231 N. Y. 111, 116, 117.)


The argument that the likelihood of success by the People has been diminished is not sustained. The case against these defendants is predicated on the testimony of an <mask> who minutely detailed the plan and operation of the conspiracy to rob and kill the victims and is corroborated by the identification of the respective defendants by eyewitnesses. All these witnesses are still available and, as heretofore mentioned, gave testimony upon which another codefendant, Robert Rice, was convicted.


Further, although Smith's statements may have, as a legal matter, implicated her not only in the robbery/burglary, but in Kelley's murder as well, as a result of the felony murder rule, the exception for statements against interest focuses on whether a "reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) A "reasonable" person would not necessarily recognize the full legal import of the felony murder rule; rather, such a person would likely believe that it was in her penal interest to minimize her role and place the blame for an unintended death on an <mask>.


Corroborative evidence need tend only to connect defendant with the crime in such a way that the jury may be reasonably satisfied that the <mask> is telling the truth (see, People v Breland, 83 NY2d 286, 292-293; People v Steinberg, supra, at 683; People v Glasper, 52 NY2d 970, 971; People v Daniels, supra, at 629). The corroborative evidence, however, "must be independent of, and may not draw its weight and probative value from, the accomplice’s testimony” (People v Steinberg, supra, at 683; see also, People v Moses, 63 NY2d 299, 306). Tapes of telephone conversations intercepted through the use of legal wiretaps can corroborate the testimony of an accomplice (see, People v Jewsbury, 115 AD2d 341, 342; People v Potenza, 92 AD2d 21, 28). If the incriminating nature of the conversations can be ascertained only by reference to the accomplice’s testimony, however, the conversations are insufficient to corroborate the accomplice’s testimony (see, People v Rosica, 199 AD2d 773, 775-776, lv denied 83 NY2d 876; People v Argueta, 192 AD2d 538, 539, lv denied 81 NY2d 1069; People v Pynes, 170 AD2d 981, lv denied 78 NY2d 972; cf., People v Weaver, 157 AD2d 983, 985-986, lv denied 76 NY2d 744). Here, as in Rosica, Argueta, and Pynes, the conversations, standing alone, are not incriminating. Only when they are referenced to the testimony of the accomplices, who explain what was "actually” being discussed, do the conversations become incriminating. Consequently, the conversations fail to corroborate the testimony of the accomplices, requiring reversal of the conviction and dismissal of the indictment. In light of that determination, it is unnecessary to reach defendant’s remaining arguments. (Appeal from Judgment of Cayuga County Court, Corning, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Green, J. P., Wesley, Callahan, Doerr and Davis, JJ.


To support his argument, Jackson relies on Henderson v. State , 279 Ark. 435, 437, 652 S.W.2d 16, 18 (1983), for the general proposition that in Arkansas, a "full cross-examination" should be allowed in order to show bias. However, Henderson is distinguishable from the case at bar. The disputed testimony in that case was from Henderson's admitted <mask> who was questioned about the type of deal he was getting from the State in exchange for his testimony against Henderson. See Henderson , 279 Ark. at 438, 652 S.W.2d at 18. Our supreme court held that the testimony should have been allowed because it was a direct evidentiary link between Henderson and the murders. See id. There was no such direct link here. The circuit court is allowed wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, waste of time, confusion of issues, or interrogation that is repetitive or only marginally relevant. E.g. , Green v. State , 2018 Ark. App. 38, at 2, 2018 WL 523256.


There are many troubling aspects to this ad hoc photo identification procedure. In the first place, it had none of the reliability protections that come with a properly executed six-pack photographic lineup utilizing one suspect and five fillers as discussed earlier. The prosecutor essentially conducted a photographic lineup with only one photograph. There was also presumably *802no formal admonition. Further, the prosecutor's showing of the booking photo to Gomez during the period of her uncertainty gave Gomez precisely the type of positive feedback that experts in the field feel should be avoided. That is, the booking photo undoubtedly signaled to Gomez that she had correctly identified Miles as <mask> Two; she could plainly see from the booking photo that Miles was, in fact, the person that had been arrested near the time of the robbery. Moreover, the entire episode appears to have reduced or eliminated any doubt that she may have had. This undoubtedly engendered a false sense of confidence, and Gomez's confidence in her identification was undoubtedly communicated to the jury.


In determining whether to hold a person criminally liable for the acts of another, the “ultimate question” for the jury is whether the defendant, acting with the state of mind required for the commission of the crime, intentionally aided another person as an <mask>. (People v Roldan, 211 AD2d 366, 370 [1st Dept 1995].) Proof of an accomplice’s mental state may be inferred from his actions and the circumstances surrounding the commission of the offense. (Id.)


1 All statutory references are to the Penal Code. of voluntary manslaughter. Accordingly, we shall reverse the trial court’s order denying appellant’s petition and remand the matter for further proceedings in accordance with section 1170.95 as amended. STATEMENT OF FACTS AND PROCEDURAL HISTORY Appellant pleaded no contest prior to a preliminary hearing. The relevant facts, therefore, are derived from the probation report. On November 16, 2015, appellant’s codefendants Raul Hidalgo and Luis Gomez entered a liquor store, grabbed several items, and attempted to leave through the rear exit. One of them was detained by a store employee. Employees Brian Jaime and Alfredo Alvarado followed the other man out of the store until he reached a vehicle driven by appellant. When someone in the vehicle pointed a gun at Jaime and Alvarado, they retreated and returned to the store. The detained <mask> told them “[y]ou’ll regret this, this is 18 Street, this is our hood and you’ll regret this. You don’t know who you’re fucking with.” He was tragically prophetic. The vehicle driven by appellant began circling the store. An unidentified individual got out of the vehicle, entered the store, and repeatedly shot Jaime and Alvarado. Alvarado was killed and Jaime was seriously injured. The shooter and detained accomplice fled in the vehicle driven by appellant. Appellant was charged with murder (§ 187, subd. (a)), attempted murder (§§ 187, subd. (a), 664) robbery (§ 211), assault with a semiautomatic firearm (§ 245, subd. (b)), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), and voluntary manslaughter (§ 192, subd. (a)), with gang and firearm use allegations. In June 2018, appellant pleaded no contest to voluntary manslaughter and admitted the crime was committed


The retrial commenced on March 15, 1993, and concluded on March 30, 1993, when defendant was again convicted of murder in the second degree. On May 24, 1993, he was sentenced to no less than 20 years to life imprisonment and his appeal to the Appellate Division, Second Department, is pending. At that trial the prosecution presented evidence beyond that offered at the first trial. Specifically, in addition to two eyewitnesses who testified at the first trial, an <mask> — one Michael Hodge — testified that the defendant had participated in a robbery and the homicide which resulted. As noted above, Ronald Holloway also testified for the first time that the defendant had confessed to him while both were in custody.


Appellant argues that she meets none of the requirements of an <mask> under Ark. Code Ann. § 5-2-403, claiming that no evidence was presented that she aided, agreed to aid, or attempted to aid Butler in robbing or killing Scroggins. She maintains that she was simply present before and after Butler killed Scroggins and that she drove the vehicle to meet up with a guy who owed Butler money.


section 12022.53(j) authorizes the court to impose an enhancement under section 12022.53(b) or (c) after striking a section 12022.53(d) enhancement. To answer that question, we must determine whether the existence of facts required by section 12022.53(b) and (c) were alleged and found true. Those requirements were met here. In connection with the robbery count, the information alleged that defendant “did personally and intentionally discharge a firearm which proximately caused great bodily injury or death to another person, not an <mask> . . . within the meaning of Penal Code section 12022.53(d).” This charging language referred to facts necessary to prove allegations under section 12022.53(b) and (c) as well. Firing a gun as alleged would meet the use requirement of section 12022.53(b) and the discharge element of section 12022.53(c). Likewise, the jury’s findings established that these same facts were proven true. To summarize: When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j),


Arkansas law makes no distinction between the criminal liability of a principal and an <mask>. Starling v. State , 2015 Ark. App. 429, at 4, 468 S.W.3d 294, 296 ; see Ark. Code Ann. § 5-2-402(2). Appellant's argument fails to acknowledge that death was inflicted on Scroggins during the commission of a robbery. See Ark. Code Ann. § 5-12-103(a)(3). Because the evidence established that appellant participated or aided in the commission of an aggravated robbery in which death was inflicted on the victim-regardless of her knowledge of whether a gun might be used in the commission of the offense-Scroggins's death made the offense an aggravated robbery; accordingly, appellant was an accomplice to that crime.


On April 19, 1991, at approximately 10:00 p.m., the defendant and an unapprehended <mask>, each armed, entered the Jamaican Food Restaurant at 1135 Flatbush Avenue in Brooklyn. The defendant held a gun to the head of the cashier and demanded money. When the cashier responded that she did not know where the money was, the defendant pointed the gun at the chef and again demanded money. The chef placed money from the register into a bag at the defendant’s command. A struggle ensued between the defendant and the chef, and the chef knocked the gun from the defendant’s hand. The defendant then called to his accomplice, who was guarding the door, and told him to kill the chef. The accomplice fired a shot at the chef, but the chef escaped uninjured. The defendant and the unapprehended accomplice fled, leaving the bag of money inside the restaurant.


The instant case is somewhat distinguishable from Aviles (supra) since there is no mention in that case of a misleading entry sign. In any event, in our view the question should not be whether the plaintiff is trapped on all sides by physical barriers. (As alluded to above, a knife-wielding male, with an <mask>, intent on robbery is often more than enough of a barrier for a surprised and cornered female in a subterranean setting.) Rather, the question should be whether NYCTA’s allegedly negligent acts and/or omissions were undertaken in a proprietary or a governmental capacity. We hold today that in the instant case NYCTA’s alleged acts and/ or omissions were well within the proprietary sphere.


Defendants assert the trial court erred in upholding a codefendant attorney's claim of work-product privilege in declining to turn over a report of an interview the codefendant's attorney and the attorney's investigator had conducted with a jewelry store victim. The codefendant had pleaded guilty to reduced charges by the time defendants requested the interview midtrial or, alternatively, requested to call the codefendant's attorney to testify about the interview. Defendants assert the interview was relevant to the provocative acts doctrine because it naturally would touch on why the victim shot at the unarmed <mask> (Desmond Brown) whose death formed the basis of the murder charge against defendants. In particular, if the victim stated in the interview that he shot Brown because of Brown's aggressive conduct, rather than because of another robber's violent acts, that would aid the defense theory that Brown was solely responsible for his own death, relieving them of vicarious liability under the provocative acts doctrine. As our Supreme Court has explained, however, the Penal Code does not provide for discovery among codefendants. ( People v. Thompson (2016) 1 Cal.5th 1043, 1095, 210 Cal.Rptr.3d 667, 384 P.3d 693 ( Thompson ).) This is consistent with the general rule in litigation that each party is responsible for his or her own investigation and trial presentation. Thompson recognized exceptions exist to ensure the defendant's right to a fair trial. ( Id. at p. 1096, 210 Cal.Rptr.3d 667, 384 P.3d 693.) But none apply here, particularly where defendants' chief claim of the value of the codefendant's interview-that it was conducted entirely in the shopkeeper victim's native language *118-turned out to be inaccurate, and where neither defendant suggested he could not secure an interview with the shopkeepers. In these circumstances, there was no infringement of defendants' right to a fair trial. *168Defendants also challenge the sufficiency of the evidence to support their murder conviction under the provocative acts doctrine, but there is no merit in that claim and we therefore affirm the judgment.


It is conceded that the only proof offered to sustain the serious charges made against all these petitioners was the uncorroborated oral testimony of one Harry Gross, a claimed alleged <mask>, who by his own admission is a man whose sole activity for many years was widespread commission of crimes; one who confessedly made crime his business and lived on its proceeds by, he claims, widespread bribery and corruption on his part of public officials. He had no memoranda or records; he said he always destroyed his records shortly after they were made; he used no notes and his testimony involved not only the present petitioners but many others in the police department *395against whom no charges appear. A reading of the record indicates that he did not testify ‘ ‘ forthrightly ’ ’ as the Trial Commissioner found, but glibly and apparently even boastfully enjoying the important position that he conceived himself to occupy from which, merely by his oral say-so, he could strike down any policeman against whom he saw fit to make charges of taking bribes from him. Thus he testified to bribery of patrolmen, captains, lieutenants, inspectors and “ divisions ”. Not as a penitent criminal seeking sincerely to make amends for a confessed life of crime did he appear before the Trial Commissioner. The reason that he first gave for refusing previously to testify, namely, regard for the families of the accused, was destroyed by his own later admissions. When asked to tell why he.had repeatedly refused to testify before Judge Riekind and at the request of the Corporation Counsel, he answered as follows: A. “ Counselor, I was never talked to; I was — nobody come to see me. Nobody said a word. I was taken out of Rikers Island; I was put in a van; I was brought down here; my name was called out; I took the stand, and in my own knowledge I thought I was doing what I — I was protecting myself for. Whatever plan the District Attorney might have had, or the Corporation Counsel, I didn’t know. It wasn’t discussed with me. Nobody told me what could be done for me or what — how I could help myself or anything else.” He then added that the only time he found out he ‘6 could help myself ’ ’ was at his sentencing when he was assured that he would get “ consideration ” if he testified “ in these police trials ”. In answer to a question as to whether he was told a recommendation would be made for leniency for him if he did so testify, he answered that the Corporation Counsel would make the recommendation and go along with the District Attorney’s recommendation “ which he had said at my sentencing.” He was then asked and answered as follows: “ Q. What prompted your talking now? A. That, yes, I hope to get consideration.”


Here, the Grand Jury’s reconsideration was clearly not sua sponte, but the result of prosecutorial overreaching. The prosecutor’s affirmation demonstrates that he unilaterally intervened in the proceedings in a manner which caused or contributed to the Grand Jury’s decision to reconsider their action by (1) entering the chamber and engaging in an “off the record” conversation with grand jurors about their vote, (2) specifically inquiring as to the other 10 charges not true billed, including four counts of attempted murder, after he was initially informed that they only true billed the misdemeanor assault charge, all of which occurred after his second charge, at their request, on <mask> liability, assault in the second degree and assault in the third degree as to one complainant, (3) discussing “acting in concert” for the third time, now “off the record”, and (4) discussing their deliberative process while witnessing the ensuing passionate debate.


Murder committed in the perpetration of, or attempt to perpetrate, robbery is deemed by statute to be first degree murder. (Former § 189, now § 189, subd. (a).)4 Subdivision (a)(17) of section 190.2 provides for a penalty of death or LWOP for a defendant found guilty of first degree murder committed "while the defendant was engaged in, or was an <mask> in, the commission of, attempted commission of, ...: [¶] (A) Robbery in violation of Section 211 ...." ( § 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A).)


The Santa Clara County District Attorney charged Bedolla by information filed on January 11, 2017, with attempted first degree burglary, a felony, committed on October 31, 2014 ( Pen. Code, §§ 664, 459, 460, subd. (a) ;1 count 1). The information also alleged a special circumstance within the meaning of section 667.5, subdivision (c)(21), that a person not an <mask> (A.D.)2 was present in the residence during the commission of the attempted burglary.


It is not necessary at this point to fully review the entirety of the evidence. In short, the prosecution relied on the eyewitness testimony of Patlan and Gomez who identified Miles as <mask> Two at the scene of the Fidelity office in Fullerton on June 29, 1998. Without that testimony, which can now fairly be characterized as "false" within the meaning of the habeas corpus statute, there is a reasonable probability that the jury would not have convicted Miles. Thus, in my opinion, the false identification evidence was "material" and therefore would have been dispositive for the purposes of granting Miles habeas corpus relief.


In People v Cona (49 NY2d 26 [1978]), defendants appealed on the theory that the evidence at trial was legally insufficient based on the absence of corroboration of an accomplice’s testimony. The Appellate Division reversed the convictions. The Court of Appeals reinstated the convictions despite the lack of corroboration based on defendants’ failure to preserve the issue through a specific objection: "To create and preserve a question of law amenable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction * * * In the instant case, no objection was made to that portion of the court’s charge which dealt with the application of the <mask> corroboration rule * * * hence, under settled rules of law and statutory construction, these defendants failed to preserve a question of law as to the correctness of that portion of the charge” (People v Cona, supra, at 33 [citations omitted]).


By amended information, defendant was charged with two counts of robbery in the first degree ( §§ 211, 212.5, subd. (a) ; count 1 (victim J.T.)), robbery in the second degree ( §§ 211, 212.5, subd. (c) ; count 2 (victim J.N.)), burglary in the first degree (§§ 459, 460 subd. (a); count 3 (victims J.T. & I.A.)), possession of a controlled substance ( Health & Saf. Code, § 11350, subd. (a) ; count 4), two counts of petty theft with a prior conviction (§§ 484, subd. (a), 488, 666, subd. (b); counts 5 & 6), possession of controlled substance paraphernalia (former Health & Saf. Code, § 11364.1 ; count 7), and two counts of impersonating an officer (§ 146a, subd. (a); counts 8 & 9). In connection with count 3, the information alleged that, during the commission of the first degree burglary, another person not an <mask> to the crime was present in the premises within the meaning of section 667.5, subdivision (c)(21). The information further alleged that defendant had two *714prior strike convictions within the meaning of section 667, subdivision (e)(2), that he was previously convicted of a serious felony within the meaning of section 667, subdivision (a)(1), and that he served a prior prison term within the meaning of section 667.5, subdivision (b).


The principal witness against the defendant was Maria Bodine, on whom it is charged the abortion was produced. The defendant’s counsel objected to her admissibility as a witness, on the ground that she had been the principal in, and instigator of, the offence charged in the indictment. The law is well settled that a principal is a competent witness against an accessary. So also are accomplices against their copartners in crime. The principle is founded on rules of public policy. In many cases there is but little other evidence; and it is better that an <mask> should be punished than that all should escape. Besides, the practice has a tendency to prevent dangerous combinations under which the worst crimes are perpetrated. In the case of David Conkling, tried for murder, in Orange county, before Van Ness, J., in 1819, Jack Hodges, who shot the deceased, and was therefore a principal, was admitted as a witness, and Conkling was convicted, partly upon his testimony. The case of The People v. Whipple, (9 Cowen’s Rep. 707,) is an authority in favor of the rule, and not against it, as was *224supposed by the defendant’s counsel. The court there refused to admit Strang as a witness, not because he was incompetent, but because it was discretionary to admit or* reject him, and it would have defeated the ends of public jüsticé to allow him to testify. In the case of The People v. Costello, (1 Denio, 83,) it was expressly decided that the woman on whom an abortion was produced was a competent witness. There can be no doubt on this point.


Additionally, at the plea hearing, Mr. Booker also pleaded guilty to two other offenses-second degree robbery and misdemeanor assault-for which he was charged in a separate case under a theory of <mask> liability. During the plea, Mr. Booker expressed some confusion that he could be charged for robbery when he assaulted the victim but it was his codefendant who removed money from the victim. The plea court called a recess for Mr. Booker to talk with his attorney. After the break, the plea court went through the evidence of the offense again and inquired whether his attorney explained to him what it meant to be "acting with another." The plea court then asked if he understood this, and Mr. Booker answered affirmatively. When questioned regarding his guilty plea in this case, Mr. Booker did not equivocate in admitting he "acted with" others in committing the assault on A.A. The record, therefore, refutes Mr. Booker's assertion that his plea was unknowing and involuntary because he was unaware whether he was being charged as a principal or an accomplice.


On Whittaker's argument the State failed to produce sufficient evidence showing he appropriated the lawn mower because it was attached to the truck via a bungee cord, taking the evidence most favorably to the State, the police officer testified he was told by Victim and Victim's girlfriend that Whittaker was pushing the lawnmower away from the truck when Victim approached him. This would allow the trier of fact to reasonably infer a bungee cord was no longer attached to the lawn mower. But even if a bungee cord was attached, the State still produced sufficient evidence showing Whittaker appropriated the lawn mower and he admitted as much at trial, testifying that he took the lawn mower from the truck and placed it on the ground. See State v. Escoe , 78 S.W.3d 170, 174 (Mo. App. W.D. 2002) (noting that crime of robbery is consummated when the robber gains control of the property, even for a moment); State v. Hackney , 750 S.W.2d 621, 622 (Mo. App. E.D. 1988) (finding sufficient evidence to show the defendant exercised complete dominion over victim's purse despite the defendant ultimately leaving purse behind in victim's car as he fled because victim released it to him in the car and the duration of the dominion is immaterial); State v. West , 629 S.W.2d 429, 433 (Mo. App. W.D. 1981) (concluding sufficient evidence was presented to establish the defendant and his <mask> "assumed control over the camper shell by removing it from the place where they found it and this taking, inconsistent with the owner's rights, was an appropriation."). Whittaker's bungee cord argument is too much of a stretch. There is no doubt Whittaker appropriated the lawn mower by removing it from the truck and placing it on the ground, whether a bungee cord was attached to it or not. Point I is denied.


There is no merit to the defendant’s claim that the testimony of his <mask> was insufficiently corroborated. The nonaccomplice evidence presented by the People, if credited by the jury, was legally sufficient to meet the standard of CPL 60.22 (1), which provides that a defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense. Accordingly, the trial court did not err in submitting the murder count to the jury.


under the accomplice-witness rule, we eliminate the <mask> testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the offense. Malone, 253 S.W.3d at 257. To meet the requirements of this rule, the corroborating evidence by itself need not prove the defendant’s guilt beyond a reasonable doubt. Id. Rather, the evidence simply must link the defendant in some way to the commission of the offense and show that rational jurors could conclude that this evidence sufficiently tends to connect the defendant to the offense. Id. Thus, when there are two permissible views of the evidence, one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense, appellate courts should defer to the view of the evidence chosen by the fact-finder. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The issue is not how an appellate court independently would assess the non-accomplice evidence but whether a rational fact-finder could conclude that the non-accomplice evidence tends to connect the accused to the offense. See id. at 509.


juvenile bound over to adult court under the mandatory-bindover provisions because the juvenile committed a crime with a firearm, the charged juvenile had to have actually had possession of the firearm. The statute provides that a child is eligible for mandatory bindover when “[t]he child is alleged to have had a firearm on or about the child’s person or under the child’s control while committing the act charged and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the commission of the act charged.” R.C. 2152.10(A)(2)(b). Therefore, the statute requires that to be eligible for mandatory bindover based on an aggravated robbery, a juvenile must have himself possessed the firearm. {¶ 88} In State v. Hanning, 89 Ohio St.3d 86, 728 N.E.2d 1059 (2000), paragraph two of the syllabus, this court held that the complicity statute does not apply to the juvenile-bindover criteria set forth in former R.C. 2151.26 (now R.C. 2152.12, see Am.Sub.S.B. No. 179, 148 Ohio Laws, Part IV, 9447, 9549). That is, in the context of a bindover proceeding, the element of controlling a firearm cannot be satisfied by the activity of an <mask>. {¶ 89} But the determination by the juvenile court in this case that there was no probable cause to believe that Smith had the firearm himself did not end the inquiry as to whether he and the case should be transferred to the adult court. That finding meant only that Smith was not subject to a mandatory transfer. The juvenile court then had to decide whether transferring Smith and his case to the adult court was proper based on the statutory requirements of discretionary bindover. Conclusion {¶ 90} Today the majority creates an outcome by inserting its own policy- making preferences into the language of the statute. The majority therefore elevates its policy preferences over the will of the people and the people they elected to serve in the General Assembly who are entrusted on behalf of all Ohioans to make policy decisions through the enactment of laws.


The leading case on the subject in this State is People v. Evans ([1869] 40 N. Y. 1, 3), where it was held that the jury could not convict for subornation of perjury upon the uncorroborated testimony of a single witness — the admitted perjurer. This decision was rendered prior to the time when it was necessary to corroborate the testimony of an <mask>, and held in effect that the necessity for corroborating the testimony of the perjurer in prosecutions for subornation of perjury was an exception to the general rule. The question involved in these motions was raised directly on the appeal in the foregoing case. Upon the trial of the defendant for subornation counsel requested the court to charge that if the evidence of the perjurer were not corroborated, the jury could not convict upon the perjurer’s unsupported testimony and the court declined so to charge. This was held to be error, and the conviction was reversed. Judge Mason, writing the opinion, states: “ I am of opinion, that in the case at bar, the judge should have advised the jury, that if they found Near uncorroborated, they should acquit the defendant. There must be some exceptions to all general rules, and I would make this case an exception to the general rule, that a prisoner may be convicted on the uncorroborated testimony of an accomplice.”


The information charged Bedolla with attempted first degree burglary and alleged that a person not an <mask> was present in the residence during *541the commission of the attempted burglary, within the meaning of section 667.5, subdivision (c)(21). The jury found the allegation to be true. Bedolla argues the section 667.5, subdivision (c)(21) allegation must be stricken because the evidence at trial showed that neither Bedolla nor Mariscal gained entry to the house. The People agree that section 667.5, subdivision (c)(21) does not apply to attempt crimes and must be stricken.


"The following constitutional provisions and statutes require evidence that corroborates a witness's testimony: Cal. Const., art. I, § 18 [treason]; Pen.Code, §§ 1111 [<mask> testimony]; 1111.5 [in-custody informant]; 653f [solicitation of felony]; 118 [perjury]; 1108 [abortion and seduction of minor]; 532 [obtaining property by false pretenses]. "Give the bracketed phrase 'if you decide (he/she) is an accomplice' and CALCRIM No. 334 if the jury must determine whether a witness is an accomplice."


The property clerk contends that the $8,605 is the proceeds of, and is derived from, the sale of a controlled substance and is therefore subject to forfeiture pursuant to section 435-4.0 (subd e, par 1) of the Administrative Code of the City of New York. Section 435-4.0 (subd e, par 1) provides that: “Where moneys or property have been unlawfully obtained or stolen or embezzled or are the proceeds of crime or derived through crime * * * or derived through the use of [sic] sale of property prohibited by law from being held, used or sold * * * a person who so obtained, received or derived any such moneys or property, or who so used, employed, sold or held any such moneys or property or permitted or suffered the same to be used, employed, sold or held, or who was a participant or <mask> in any such act, or a person who derives his claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to any such moneys or property”.


The predicate in the Ultramares case is misrepresentation— misrepresentation, negligent or otherwise, that causes economic loss to a third party even though there be lack of privity between the injured party and the one making the misleading representation. That element is missing here. "When the bank certified the check it accurately represented a fact — the fact that the drawer of the check had sufficient funds on deposit to pay the amount certified. The subsequent alteration of the check by the drawer or the drawer’s <mask> did not convert into misrepresentation by the bank a representation,,that was truthful when made by the bank.


2 The State argued the federal felony conviction for conspiracy to commit murder in aid of racketeering was comparable to Washington’s conspiracy to commit murder or first degree murder under <mask> theory. These offenses are both class A felonies. RCW 9A.28.040(3); RCW 9A.32.030(2); RCW 9A.08.020(3). As a “violent offense” either crime would contribute 2 points to Escobar’s offender score. Former RCW 9.94A.030(55)(a)(i) (2018); RCW 9.94A.525(8). If the federal felony conviction is not comparable to a Washington offense, it is scored as a class C felony and scores as 1 point. RCW 9.94A.525(3), (8); former RCW 9.94A.030(34) (2018).


Thereafter, the District Attorney appeared in County Court on June 9, 1993, while there on another matter, and on the record, without the presence of the defendants or their attorneys, moved to dismiss the indictment based upon the pleas in Town Court, and made the following statement: "May it please the Court, in the matter of the People against Cummings, Curcio, Hartle, Pistolesi and Streeter, the People respectfully move the Court to dismiss the indictments. These defendants have recently plead to separately filed Informations charging them with sexual misconduct. The reason I’m moving to dismiss the indictments is the evidence before the grand jury, any evidence that we could garner to take these matters to trial would be insufficient, in my estimation, even to get to the injury on the basis of not being able to prove a corpus delicti. Granted we have a confession or statement from three of them, but under 60.50 of the Criminal Proce*1121dure Law, they cannot be convicted solely upon those statements. If they were called to testify individually in seven [sic; probably should read 'separate’ or 'several’] trials, they would be entitled to take their 5th Amendment right, and the only thing that could be done is they could be confronted with their previous statement, and under, I believe it’s 60.35 of the Criminal Procedure Law, that cannot be used as direct evidence, but only to discredit your own witness, and each one would be considered accomplices, and under another section of 60 point, I can’t remember that section, but they cannot been [sic] convicted solely upon <mask> testimony. We have no independent evidence that a crime was committed. We have a complaining witness who cannot even testify that she was at the scene of the crime, any remembrance whatever of any incident that happened. There is no forensic evidence, no clothing, no possibility of doing any DNA testing, because there was [sic] no specimens, no rape kit done. I feel that justice has been done by the pleas in local court, and we respectfully move to dismiss the indictment pending against these five defendants.” The court then and there dismissed the indictment on application of the People. The court made no findings and stated no other reasons.


It is urged on argument of this motion, however, that while Autuori and Loffredo might be accomplices so far as each was suborned, that, although all the transactions and conversations alleged to have taken place between the defendant and themselves were at the same times, that Loffredo was not an <mask> of defendant in the subornation of Autuori and vice versa. On argument I expressed dissent to this contention. I am now fortified in my opinions by the decision in People v. Batt, (165 Misc. 540; affd., 253 App. Div. 718.)


"As used in this section, 'serious felony' means any of the following: ... (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an <mask>...." The Three Strikes law (§§ 667, subd. (b)-(i), 1170.12, subd. (b)) provides for enhanced penalties for those previously convicted of a serious felony (§§ 667, subd. (e), 1170.12, subd. (c)), and defines serious felony by reference to section 1192.7, subdivision (c). (See §§ 667, subd. (d), 1170.12, subd. (b) ["Notwithstanding any other provision of law ... a prior serious ... conviction of a felony shall be defined as: (1) ... [A]ny offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state"].)


But as to incest, our statutes are silent in so far as corroboration is concerned. It may well be that if the prosecutrix-were over the age of consent and had been a willing participant in the crime charged, that then corroboration would be required, not because of the sexual nature, of the crime but on the theory that she was a criminal <mask>. However, that question is not involved here. In each count charged in this indictment the prosecutrix is under the age of consent and in the absence of statutory provision to the contrary, the common-law rules of evidence will apply. No corroboration is required in the present case.


The results of re-testing of the items will not prove the defendant innocent, and viewing all possible results in a light most favorable to defendant would merely muddy the waters. The denials were appealed and affirmed.7 The court of appeals noted in Kussmaul's case that, even if identity were an issue, exculpatory results would not matter: an exculpatory inference "would not outweigh the three <mask> witnesses' testimony, the evidence corroborating such testimony, and Kussmaul's jailhouse confession."8 In Long's case the court said that "Long does not challenge the court's finding concerning identity." So even if the convicting court applied the wrong standard to the issue of "whether Long would have been prosecuted or convicted if DNA testing yielded exculpatory results, we would not reverse the court's decision."9 In Pitts' case, the court said: "Had DNA results revealed the presence of Pitts's DNA at the scene, this could indicate guilt. If DNA results revealed the absence of Pitts's DNA at the scene, this neither negates his participation nor disproves his culpability as a party to the offense."10


The defendant seeks an order dismissing the indictment on the grounds that the Grand Jury presentation was defective since the grand jurors lacked proper guidance and constitutionally sound legal instructions when they reached their charging decision. The defendant claims that the Grand Jury proceedings were impaired since there is no guarantee that 12 grand jurors concurred when they voted on the first degree murder charges as to the defendant’s status as principal or <mask>.


Where there is no conflict in the evidence or it is not susceptible of two different constructions, the court must determine as a matter of law whether a witness is or is not an <mask>; *246but, if the testimony raises a question of fact as to whether a witness is or is not an accomplice of the defendant in the commission of a crime, that question must be submitted to the jury for determination. People v. Sweeney, 213 N. Y. 37, 46. It is well settled that in order to constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an accessory before the fact. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and a person who directly or indirectly counsels, induces or procures another to commit a crime is a principal, as defined by section 2 of the Penal Law, and is therefore an accomplice. The failure to disapprove or the mere approval of a crime after the event, or even before the event, may not of itself be sufficient to constitute one an accomplice. Some act or word of counsel, inducement, encouragement, participation or procurement must be added to passive acquiescence. It is clear that one cannot be made an accomplice from the mere fact that he is asked by another for a bribe, but his subsequent conduct upon the making of such suggestion may indicate that he is or is not an accomplice. As was stated by Justice McLaughlin in People v. Hyde, 156 App. Div. 618, at page 625: “ the person to whom the officer is made, if he rejects it, is clearly not an accomplice.” If, on the other hand, he undertakes negotiations or by counsel or act furthers the suggestion, with intent to participate in the crime, he would be an accomplice.


Appellant argues on appeal that the State failed to present sufficient evidence to corroborate the <mask> testimony *278of Jorge Chirinos. Appellant specifically argues that the State failed to present evidence to connect him with the commission of the crimes in addition to proving the occurrence of the crime. Appellant further argues that his statements to law enforcement, if considered, establish only his mere presence at the crime scene, which is insufficient. Additionally, appellant argues that the State failed to present sufficient evidence to show that appellant was an accomplice to the alleged crimes because the evidence showed only his mere presence at the crime scene and did not show the requisite criminal intent. We disagree.


Count V also alleged Defendant "rummaged through [Patel's] pockets," and it appears there was no evidence presented at trial that this specific conduct took place. Defendant does not argue on appeal that the State was required to prove the conduct because it was alleged in the substitute information. Nevertheless, we find sua sponte that the alleged conduct of rummaging through Patel's pockets is mere surplusage the State was not required to prove in order to convict Defendant of attempted second-degree robbery. This is because, (1) the language of the charging document informed Defendant of the offense charged and, as explained below, the facts ultimately proven fell within the definition of the offense of attempted second-degree robbery under a theory of <mask> liability; and (2) Defendant does not argue or demonstrate his defense was impaired by any variance between the substitute information and the evidence presented at trial. See State v. Edwards , 510 S.W.3d 374, 379-80 (Mo. App. E.D. 2017) and State v. Bradshaw , 411 S.W.3d 399, 402-03 (Mo. App. S.D. 2013) and State v. Nelson , 334 S.W.3d 189, 195-98 (Mo. App. W.D. 2011) (finding language in an indictment was mere surplusage under similar circumstances).


Two police officers observed the alleged <mask>, Otis McFall, near a telephone booth. They then observed the defendant emerge from a driveway, call to McFall and hand to McFall what appeared to be an electric cord and a handkerchief. The officers stopped the defendant and McFall and, in response to questioning, the handkerchief containing some money rolled up in it was produced by McFall. The officers subsequently learned that a nearby apartment had been broken into. The defendants were arrested, the cord and handkerchief were seized from McFall and a radio and cassette tapes were seized from the defendant Johnson. Defendant Johnson sought to suppress all the seized property including the handkerchief, money and the cord taken from McFall upon the grounds his (Johnson’s) Fourth Amendment rights were violated.


The defendant further contends that the Supreme Court erred by failing to submit a jury instruction for an <mask> as a matter of law pursuant to CPL 60.22 with respect to Lovell, who testified against the defendant at trial pursuant to a cooperation agreement with the People. This contention is unpreserved for appellate review because the defendant did not request an accomplice corroboration jury instruction pursuant to CPL 60.22, and he did not object to the final charge as given for failing to include the instruction (see CPL 470.05[2]; People v Darby, 196 AD3d 643). In any event, while the court should have instructed the jury that the subject witness was an accomplice as a matter of law (see CPL 60.22; People v Montello, 197 AD3d 575), the error was harmless because the evidence of the defendant's guilt was overwhelming, and there was no significant probability that the error affected the verdict (see People v Crimmins, 38 NY2d 407; People v Montello, 197 AD3d 575). The defendant failed to establish the absence of a strategic reason for defense counsel not requesting an accomplice charge pursuant to CPL 60.22 and, therefore, contrary to the defendant's contention, defense counsel was not ineffective in failing to request one (see People v Thorpe, 141 AD3d 927; People v Anderson, 120 AD3d 1549).


A person commits murder in the first degree if, acting alone or with one or more other persons, the person commits or attempts to commit a felony and, in the course of and in the furtherance of the felony or in immediate flight from the felony, the person or an <mask> causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-102(a)(1)(A) & (B).


On appeal, appellant contends that the evidence was insufficient to corroborate Easter's testimony as to either the commission of the offense or his involvement in it. He argues that the elements were not proved because no one, other than Easter, testified that a theft occurred or that weapons were used. He contends that the circuit court should not have allowed Officer Jones to testify about what Pickens told him because it was hearsay and violated his rights under the Confrontation Clause. The test for corroborating evidence is whether, if the testimony of the <mask> were totally eliminated from the case, the remaining *174evidence independently establishes the crime and tends to connect the accused with its commission. MacKool , 365 Ark. at 430, 231 S.W.3d at 688. When reviewing the sufficiency of the evidence supporting a conviction, we consider all the evidence introduced at trial, whether correctly or erroneously admitted, and disregard any alleged trial errors. Williams v. State , 2018 Ark. App. 277, at 4, 550 S.W.3d 42, 46.


to forfeiture, rather than the amount that was received by the entire criminal enterprise. We therefore conclude that the DHS can meet its burden of demonstrating a loss in excess of $10,000 to the victims of an offense involving fraud or deceit under section 101(a)(43)(M)(i) by showing that a respondent was subject to criminal forfeiture for such an amount and that the forfeiture ordered was traceable and sufficiently tethered to the conviction. See Chiao Fang Ku v. Att’y Gen. U.S., 912 F.3d 133, 140 (3d Cir. 2019) (considering a forfeiture allegation contained in the information and holding that a conviction under 18 U.S.C. § 1343 constituted an aggravated felony under section 101(a)(43)(M)(i)); Eversley-MacClaren v. Holder, 578 F. App’x 664, 666 (9th Cir. 2014) (determining that the Board appropriately relied on a forfeiture order, along with other sentencing documentation, to find the loss to the victims exceeded $10,000 under section 101(a)(43)(M)(i)); cf. Barikyan v. Barr, 917 F.3d 142, 146–47 (2d Cir. 2019) (holding that an order of forfeiture showing a respondent laundered more than $10,000, established that he was convicted of aggravated felony <mask> pursuant to section 101(a)(43)(D) of the Act). In the instant case, the respondent was convicted of conspiracy to commit wire fraud under 18 U.S.C. §§ 1349 and 1343. He agreed in his plea agreement that he was subject to forfeiture for his offense under 18 U.S.C. § 981(a)(1)(C) (subjecting to forfeiture all property derived from proceeds traceable to the offense, or a conspiracy to commit the offense). See Thompson, 990 F.3d at 683 (involving a defendant convicted under 18 U.S.C. §§ 1349 and 1343 who was subject to forfeiture under 18 U.S.C. § 981(a)(1)(C)); United States v. Day, 524 F.3d 1361, 1375–76 (D.C. Cir. 2008) (describing when a forfeiture order is appropriate under 18 U.S.C. § 981(a)(1)(C)). The sentencing judge applied the Supreme Court’s decision in Honeycutt in determining the forfeiture amount, specifically linking this amount to proceeds directly traceable to the respondent. See Thompson, 990 F.3d at 689 (determining Honeycutt applies to forfeiture under 18 U.S.C. § 981(a)(1)(C)); see also Honeycutt, 137 S. Ct. at 1632–35 (holding that forfeiture is limited to property or proceeds in the defendant’s possession that are directly traceable to his or her conduct). According to the amended judgement, the respondent was ordered to pay “[f]orfeiture traceable to the offense, in the amount of $346,717.08.” The amended judgment and the letter from the Federal prosecutor both explicitly state that the $346,717.08 forfeiture amount was traceable to the respondent’s criminal conduct of conspiring to defraud cell phone customers. 3 This amount is thirty-four times greater than $10,000. The respondent asserts that the prosecutor’s letter is not sufficiently reliable to establish that he agreed to the $346,717.08 forfeiture amount. However, as we previously noted,


The PATRIOT Act is an important piece of legislation containing directives to the insurance industry concerning many aspects of the procurement of policies, revealed through the regulations which have been promulgated thereunder. Despite the paucity of specifics provided by MetLife as to what aspect of the PATRIOT Act would permit it to void the subject policies on the ground that the premiums were paid by Stanley rather than by decedent, this court finds that MetLife has put forth sufficient evidence to show that it may have had reason to revoke the policies, or at least to investigate the situation with regard to Stanley, under its legislatively-required anti-<mask> program, adequate to forestall summary judgment at this time. Whether MetLife’s decision to void the policy was a reasonable exercise of its rights under the PATRIOT Act is a factual question.


Defendant Jedadiah Ray Bolding was convicted of one count of grand theft and eight counts of <mask>. On appeal, he challenges his money laundering convictions, in part, on the ground that the prosecution failed to offer sufficient evidence tracing the illegally obtained money to the monetary transactions involved in each of the money laundering counts. We conclude there was sufficient evidence supporting defendant's money laundering convictions based on the language of Penal Code section 186.10, subdivision (a), and current analogous federal law on money laundering.


Kenneth L. Gartner, J. A published news article recently reported that an investiga*10tion into possible <mask> being conducted through the racetracks operated by the defendant New York Racing Association was prompted by a small-time money laundering case in which a Queens bank robber used stolen money to purchase betting vouchers and then exchanged the vouchers for clean cash. (Newsday, Sept. 28, 2000, at A33, col 1.) The instant case does not involve any such question of wrongdoing, but does raise a novel legal issue regarding the negotiability of those same vouchers when their possession is obtained by a thief or finder. The defendant concedes that “there are no cases on point.”


O'Brien , 482 S.W.3d at 607 ("The indictment states that Kelvin committed the enumerated offense of theft 'by acquiring and otherwise exercising control over property ... owned by' Karat 22 and the enumerated offense of <mask> 'by purchasing a house, by purchasing a pool, by purchasing motor vehicles,' etc."). The application paragraph of the jury charge adopts this construction.


Appellant was tried on one count of engaging in organized criminal activity. That count alleged that Appellant, with the intent to establish, maintain, or participate in a combination3 or in the profits of a combination, committed second degree theft or second degree <mask>.4 The theory was that Appellant was part of a criminal ring that committed multiple jewelry store heists. The biggest heist, and the focus of the trial, was that of a Houston store called Karat 22, which was owned by Aku Patel. As the name might imply, Karat 22 specialized in high-quality gold jewelry.


MetLife contends that the payment of the premiums by Stanley may have been a form of illegal speculation in insurance, which is disallowed under its underwriting practices, in con*959junction with, and mandated by, the federal “USA PATRIOT Act,”2 in order to avoid potential <mask> in furtherance of terrorism. It claims to have a “strict policy” of not accepting third-party checks without knowledge of the source of the funds, especially where payment of the premiums is made by a party who is not closely related to the insured. MetLife argues that decedent falsely represented that he would be paying the premiums, and that plaintiffs actively concealed the identity of the true payor.3 It claims that it would not have issued the policy had it known that the decedent would not be paying as represented. MetLife maintains that “at minimum, MetLife would have postponed issuing the policy while it conducted an investigation with respect to whether the intended premium payor had an acceptable explanation for paying the premiums” so that it could “properly estimat[e] the degree and character of the risk it was assuming.” (MetLife’s mem of law in opposition at 2.)


prison hanging oﬀ the skids of a helicopter.1 He was convicted in the Southern District of Illinois for drug and criminal en‐ terprise oﬀenses and in the Southern District of Florida for racketeering, and $60 million and $50 million forfeiture judg‐ ments were entered against him, respectively, as part of his sentences.2 Over a decade later, Kramer filed a motion for an accounting in the Southern District of Illinois of the amounts collected by the government to satisfy his $60 million forfei‐ ture judgment. The district court granted the motion but, given the complexity of his case, limited the accounting to what was collected in the Southern District of Illinois toward that judgment. On appeal, Kramer argues that the district court should not have credited to his judgment the amounts forfeited un‐ der a 2003 settlement agreement. He also claims that the dis‐ trict court abused its discretion in limiting the accounting only to the amounts that were collected in the Southern Dis‐ trict of Illinois. We disagree and aﬃrm the district court’s judgment. In the 1980s, Kramer and his associates oversaw a nation‐ wide drug smuggling operation. The venture was lucrative, generating about $180 million in profits. To keep their ill‐got‐ ten gain, they sought the help of Sam Gilbert, who devised an elaborate international <mask> scheme. As


Additionally, even though the majority already holds that the jury does not need to be unanimous as to the predicate offenses, it nevertheless engages in Schad analysis to reach the holding that the theft and <mask> in this case are both morally and conceptually equivalent. The majority's analysis in this regard is hedging its bets: in case it is wrong about whether the predicate offenses need unanimous verdicts as a general rule of law, at least the predicates in this case do not. As far as the actual analysis about why the offenses are morally and conceptually equivalent, I am unsure if the majority's reasoning is sound. Essentially, the reasoning is: (1) the offenses are connected because the money laundering is laundering the proceeds of the theft; (2) they are both first degree felonies in this case. This is nowhere near the same as the kill-and-burn/burn-and-kill example given by Justice Scalia.


Lastly, DeskSite posits that <mask> is a "known concern" within the automobile industry, especially with high-end exotic cars. Even if we accept this to be true, the use of a third party's check to pay for a car by itself is still not a red flag of money laundering, particularly where, as here, the check contains a memo line with the customer's initials on it. Further, courts have refused to fashion new duties to deal with similar endemic problems such as identity theft and have justified that refusal with reasoning that is equally applicable here: "Given the scope of the problem and the consequences to the community of imposing a noncontractual duty with resulting liability for breach, a decision to shift the burden of loss from the actual victim to a third party duped by the thief is one to be made, if at all, by the Legislature, not the judiciary." ( Rodriguez , supra , 162 Cal.App.4th at p. 466, 75 Cal.Rptr.3d 543.)


Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, KELVIN LYNN O'BRIEN, heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, with intent to establish, maintain or participate in a combination or in the profits of a combination, said combination, consisting of Kelvin O'Brien and at least two of the following: John O'Brien and/or Derenda O'Brien and/or Jason Kennedy, commit the offense of theft in that the defendant on or about February 6, 2011 did unlawfully appropriate by acquiring or otherwise exercising control over property, namely, gold, jewelry, gems and watches owned by C. Patel or Karat 22 Jewelers of the value of over two hundred thousand dollars with the intent to deprive C. Patel or Karat 22 Jewelers of the property then you will find the defendant guilty as charged in the indictment; or If you find from the evidence beyond a reasonable doubt that in Harris County, Texas, the defendant, KELVIN LYNN O'BRIEN, heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, with intent to establish, maintain, or participate in a combination or in the profits of a combination, said combination consisting of Kelvin O'Brien and at least two of the following: John O'Brien and/or Derenda O'Brien and/or Jason Kennedy, commit the offense of <mask>, namely in that he heretofore on or about August 13, 2007 and continuing through April 12, 2013, did then and there unlawfully, knowingly transfer, invest or expend funds which constituted the proceeds of criminal activity, of the value of at least two hundred thousand dollars by purchasing a house, by purchasing a pool, by purchasing motor vehicles, by purchasing a boat, by purchasing a watch, by purchasing heavy equipment, by moving funds from one bank account to another or by paying bondsmen's fees, then you will find the defendant guilty as charged in the indictment. The word "unanimously" appeared in the section of the jury charge dealing with selection of the jury foreman:


In 2010, the BLP collapsed and Plaintiffs lost their investments. An FBI investigation revealed that Sigillito operated the BLP as a Ponzi scheme. Unsealing the indictment in May 2011, the United States charged Sigillito with <mask>, wire fraud, and mail fraud. The federal indictment asserted that, inter alia , Sigillito and Brown retained unauthorized placement fees after transferring their clients' assets. A jury found Sigillito guilty, and the federal district court sentenced him to forty years in prison. Sigillito's convictions and sentences were affirmed. United States v. Sigillito, 759 F.3d 913, 941 (8th Cir. 2014).


Plaintiff claims she provided money to defendant in several ways. Much of it she gave to him in the form of “investment” checks. These checks were paid in increments of $10,000, $12,000 or $13,000. Plaintiff signed, dated and wrote the amount on these checks, but left the payee portion blank. She provided these checks to defendant multiple times throughout any given month. Apparently, defendant cashed many of these checks in money exchange houses in South America and in the United States, including the Beacon Hill Service Corporation in New York. That company was later the subject of a criminal *352investigation for <mask> and for transmitting funds without a license. Plaintiff claims that between 1992 and 2004, she wrote checks to defendant for “investments” in the amount of $7,579,500.


In the unpublished portions of this opinion, we conclude that (1) there was sufficient evidence of <mask> in count 25 of the operative charging document; (2) defendant forfeited an issue regarding the jury instructions for the money laundering counts; (3) the sentencing enhancements for white collar crime must be reversed; (4) the trial court did not err by imposing consecutive rather than concurrent sentences on the money laundering counts; and (5) the minute order and abstract of judgment must be amended to reflect the correct amount of defendant's custody credits.


The trial court sentenced defendant to 10 years in state prison: an aggravated term of three years on count 1; a consecutive five-year term for the Penal Code section 186.11, subdivision (a) enhancement; and a consecutive two-year term for the Penal Code section 12022.6, subdivision (a)(2) enhancement on count 1. The court imposed a three-year aggravated term on each of the <mask> charges, and ordered that those sentences be served concurrently to the sentence on count 1. The Penal Code section 186.10, subdivision (c)(1)(A) enhancements on counts 20 through 27 were stricken for purposes of sentencing. In addition to other fees and fines, the court ordered defendant to pay $ 1,115,396 plus interest in restitution.


The majority view, as summarized by the Fourth Circuit Court of Appeals, is: "Money is fungible, and when funds obtained from unlawful activity have been combined with funds from lawful activity into a single asset, the illicitly-acquired funds and the legitimately-acquired funds (or the respective portions of the property purchased with each) cannot be distinguished from each other [citation]; that is, they cannot be traced to any particular source, absent resort to accepted, but arbitrary, accounting techniques [citation]. As a consequence, it may be presumed in such circumstances, as the language of section 1957 permits, that the transacted funds, at least up to the full amount originally derived from crime, were the proceeds of the criminal activity or derived from that activity. [Citations.] A requirement that the government trace each dollar of the transaction to the criminal, as opposed to the non-criminal activity, would allow individuals effectively to defeat prosecution for <mask> by simply commingling legitimate funds with criminal proceeds." ( U.S. v. Moore (4th Cir. 1994) 27 F.3d 969, 976-977 ; see U.S. v. Silver (S.D.N.Y. 2016) 184 F.Supp.3d 33, 51-52.)


In September 1994 the United States Attorney for the Southern District of New York informed petitioner of an investigation her office had conducted in 1990, which implicated respondent in narcotics trafficking and <mask>. Respondent’s alleged involvement in these activities was through her relationship with one Selwyn Wilson, a young man whom her firm had represented in a criminal matter in the mid-1980’s. Charged with assault and robbery, Wilson had pleaded guilty to reduced charges and received a sentence of probation, on condition that he maintain lawful employment. Respondent developed a "warm familial relationship” with Wilson (counsel describes him as respondent’s "surrogate son”), employing him briefly as an office clerk and then as her personal assistant and driver. According to Wilson, he escorted respondent in the latter capacity to meetings and social functions, and on those occasions he often spent the night at her homes in the Bronx or in Brookville, Long Island.


An additional dubious inference regards the amounts of money involved. As the court’s December 17, 2007 decision shows, 19 of the larceny and insurance fraud counts had to be reduced because of a failure of proof to meet the monetary thresholds. It is true that in that same decision the court implicitly allowed the grand jury to infer that a significant portion of the clinic’s revenues could be considered proceeds subject to <mask>. However, it is one thing to extrapolate from the revenues of the “staged” accident victims and the overtreated patients to reach larger threshold sums; it becomes quite another to do so using “profits.” When the amounts of money are limited to “profits,” and here I refer back to my decision to follow Santos, and the defense has rightly argued that a “profit analysis” was never done in the grand jury, the inference drawn from these calculations to reach the required threshold monetary amounts becomes too speculative and untenable.


Applying the capable-of-ascertaimnent test objectively, the facts alleged by Plaintiffs demonstrate that their damages were capable of ascertainment by May 2011, The parties agree that the BLP collapsed after an FBI investigation in 2010 and that Plaintiffs received notice of their extensive investment losses shortly thereafter. The parties acknowledge that Sigillito's federal indictment was unsealed in May 2011. Sigillito's indictment revealed the charges of <mask>, wire fraud, and mail fraud arising from BLP operations. The federal indictment exposed the wrongful nature of the BLP venture, linking Plaintiffs' investment losses to, and unveiling the damage caused by, the BLP's administration. The federal indictment also established that Sigillito, in managing the BLP, retained numerous unauthorized placement fees before directing the distribution of his clients' assets to overseas borrowers and committed improper self-dealing in these transfers.


The remaining counts of <mask> in the second degree are based upon the defendant’s demand that McCormack International deposit $50,000 in an Irish bank account in his wife’s name. This deposit, according to the victims of *1012the extortion, was a direct result of Capparelli’s threats. Credit in an account in a financial institution is a form of "[equivalent property” (Penal Law § 470.00 [2]), and a deposit of money into a bank account is a "[transaction” (Penal Law § 470.00 [3]) within the meaning of the statute. However, not every transaction involving the proceeds of specified criminal conduct is money laundering. (See, e.g., United States v Sanders, 928d 940, 944-947 [10th Cir 1991].) The evidence must establish that the transaction involved an "exchange” of proceeds of criminal conduct for other monetary instruments or equivalent property. Had the defendant attempted to withdraw these funds, the withdrawal would have constituted a "[t]ransaction” (Penal Law § 470.00 [3]) in which the proceeds were exchanged, and would have established money laundering. (See, e.g., United States v Jackson, supra, 935d, at 841.) Here, the $50,000 deposit was the product of the crime. Accordingly, only the first part of the required exchange occurred. Nonetheless, the evidence justifies the inference that the defendant intended by this deposit in his wife’s name, to conceal the source of this money and to benefit from his extortion. Only the further requirement of his wife’s personal presence to complete forms, prevented culmination of the exchange. Since the evidence showed that the McCormacks’ deposit of the $50,000 put it within the defendant’s power to complete the exchange, which he apparently failed to do only out of fear of detection, these counts are reduced to an attempt to commit money laundering in the second degree. (People v Mahboubian, 74 NY2d 174, 191-192 [1989].)


A jury convicted defendant of one count of grand theft ( Pen. Code, § 487, subd. (a) [count 1] ), and eight counts of <mask> (id. , § 186.10, subd. (a) [counts 20 through 27] ). The jury found defendant not guilty of 18 counts of fraudulently falsifying records. (Id. , §§ 470, 471 [counts 2 through 19].) The jury found true the sentencing enhancement allegations that the conduct in counts 1 and 20 through 27 involved the taking of more than $ 500,000 (id. , § 186.11, subd. (a)(1), (2)); that the transactions represented by counts 20 through 27 involved more than $ 50,000 but less than $ 150,000 (id. , § 186.10, subd. (c)(1)(A)); and that the value of the property loss in count 1 was in excess of $ 200,000 (id. , § 12022.6, subd. (a)(2)).


smuggling or failing to report cash is more serious than the Court is willing to acknowledge. The drug trade, <mask>, and tax evasion all depend in part on smuggled and unreported cash. Congress enacted the reporting requirement because secret exports of money were being used in organized crime, drug trafficking, money laundering, and other crimes. See H. R. Rep. No. 91-975, pp. 12-13 (1970). Likewise, tax evaders were using cash exports to dodge hundreds of millions of dollars in taxes owed to the Government.


Second, the prosecutor proffers an assertion that “the charge in the SCI was supported by the facts in the complaint.” Even if true, this is immaterial. The People likewise asserted in Zanghi that the felony complaint supported the information charge, but, as noted, the Court dismissed the point as insignificant because the judge who held the defendant for grand jury action “need never have . . . considered” whether they did so. (79 NY2d at 818.) Likewise here, there was no necessity, in holding Baez for grand jury action, to determine whether the felony complaint’s allegations supported probable cause to believe he had committed promotion <mask>. Thus, even if the allegations did so, this would not alter the fact that, under Zanghi, he was held on a different offense. (Cf. Kohl, 19 AD3d at 1155-1156 [defendant held on credit card theory of grand larceny not held on credit card theory of felony possession of stolen property despite “common elements of fact and law”].)


“[a]t a minimum, the program required by paragraph (b) of this section shall: “(1) Incorporate policies, procedures, and internal controls based upon the insurance company’s assessment of the <mask> and terrorist financing risks associated with its covered products. Policies, procedures, and internal controls developed and implemented by an insurance company under this section shall include provisions for complying with the applicable requirements of subchapter II of chapter 53 of title 31, United States Code and this part, integrating the company’s insurance agents and insurance brokers into its anti-money laundering program, and obtaining all relevant customer-related information necessary for an effective anti-money laundering program.” 31 CFR 103.137 also provides for the appointment of a compliance officer ([c] [2]), ongoing training ([c] [3]), and independent testing to see if the company is in compliance with the regulations ([c] [4]).


Finally, there are two other items that indicate that Money Center was not duped into participating in the <mask> scheme but was a knowing participant. First is the reference to Money Center in the DEA summaries of the wire taps monitoring the conversations between Skymit’s principal, Tayo Ayeni, and Steve’s principal, Steve Wangboje. The summary states: "They discuss the guy with the Money Center, Mr. Ogbege [sic] and Skymit.” Second is the conclusion stated in the "Letter Of Request for the Apprehension of Funds” from the Criminal Investigation Court of Macau which states, inter alia, referring to the Money Center BONY account, "upon the holder[s] of those accounts exist strong suspicion of having received such funds, being well aware were originated of criminal activities”. Taken as a whole there is enough to rebut a motion to dismiss.


Capparelli’s stated purpose in obtaining these checks was to make a down payment on the Queens house. With the aid of the checks, Capparelli was able to purchase the house, enabling Capparelli to benefit from the extortion by investing the cash derived from that crime and further aiding Capparelli to commit and profit from that crime by providing opportunity for the use of labor and materials extorted from McCormack International and its subcontractors on the Tudor project. (Penal Law § 470.10 [2]; see, e.g., United States v Saget, 991d 702, 712 [11th Cir 1993].) It is important to note that the purchase of the house with the proceeds of the crime is not <mask> under our statute, since real estate is not "[equivalent property” as defined by section 470.00 (2). The purchase of the house is relevant only insofar as it proved that the defendant’s intent in converting the cash to checks, was to enable him to benefit from the proceeds of the crime, and to facilitate its commission. (See, e.g., United States v Montoya, 945d 1068, 1076 [9th Cir 1991] [applying 18 USC § 1956 (a) (1) (A) (i) defendant’s deposit of bribe check sufficed under statute requiring proof that defendant engaged in the transaction with " 'inten(t) to promote the carrying on of specified unlawful activity’ ”].) Accordingly, these counts are sustained.


However, an allegation of fraud may be based on "an act or conduct by defendant” that is intended to deceive plaintiff. Concealment of facts one has an obligation to disclose with the intent to defraud has the same legal effect as an affirmative misrepresentation. (See, Quadrazzi Concrete v Mastroianni, 56 AD2d 353 [1977].) Here, the complaint alleges that Money Center was part of the conspiracy to defraud BNU which began in Macau with Chan’s misappropriation of the $6.5 million. The heart of the allegation is that Money Center willingly took part in a phase of the conspiracy. Money Center’s financial links to Steve’s, Keymon and Skymit are clear. There is a strong indication that those three entities were involved in a <mask> scheme that included the purloined BNU funds.


On March 20, 2013, the Supreme Court sentenced the respondent to concurrent indeterminate terms of imprisonment of 2 to 6 years for each of the grand larceny convictions, 3 to 9 years for the <mask> conviction, 2 to 6 years for the scheme to defraud conviction, and 1 to 3 years for the conspiracy conviction. The respondent was also directed to pay a crime victims’ assessment fee of $25, a DNA fee of $50, and a surcharge of $300. The respondent failed to notify the Court of his convictions.


consecutive terms of 60 months and 84 months that were required for his two 18 U.S.C. § 924(c) convictions. Lewis was also convicted of one count of conspiracy to interfere with commerce by threats or violence, a violation of the Hobbs Act; eleven counts of <mask>; one count of money transactions in property derived from specific unlawful activity; seven counts under the Hobbs Act for interference with commerce by threats or violence; and one count of possession of a firearm by a felon. Lewis first challenges the district court’s application of the five-level enhancement under U.S.S.G. § 2B3.1(b)(2)(C) to two robberies. The enhancement applies if a firearm is brandished during a robbery. With respect to the robbery in Strongsville, Ohio, the district court did not clearly err in determining that it was reasonably foreseeable to Lewis that a firearm would be brandished. See United States v. Jordan, 945 F.3d 245, 263-64 (5th Cir. 2019), cert. denied, 140 S. Ct. 2698 (2020), and cert. denied, 141 S. Ct. 606 (2020). Although Lewis did not commit the Strongsville robbery himself, the evidence sufficiently connected him to the robbery and the unknown person who brandished the firearm while committing the robbery. The evidence showed that Lewis entered the jewelry store about two weeks before the robbery and discussed the availability of high-priced diamonds with the manager. The unknown person later stole diamonds from the same case of large diamonds where Lewis spoke to the manager. Lewis also stayed at a hotel near the store, and he later possessed diamonds that were consistent with ones taken in the robbery. He also had personal knowledge that brandishing a firearm was one way to commit a robbery because he earlier provided a different accomplice with a firearm and that accomplice brandished the firearm during two other robberies. Lewis also challenges the application of the § 2B3.1(b)(2)(C) enhancement to the robbery of Wright Pawn and Jewelry Company. Contrary to Lewis’s argument that the Government failed to rebut the


DOE arbitrarily and capriciously concluded that the crime and facts surrounding petitioner’s plea bore a “direct relationship” to the license’s requirement of working with *392children. According to DOE, as part of her licensing investigation, petitioner revealed that she was convicted of petit larceny for stealing merchandise while employed at Best Buy. DOE proffers no evidence demonstrating how such conduct would be relevant to petitioner’s potential employment as a school bus attendant, where she would not be in charge of sales, handling cash, or taking in orders and processing returns (see Matter of Gil v New York City Dept. of Bldgs., 107 AD3d 632 [1st Dept 2013] [holding that respondents arbitrarily concluded that petitioner’s conviction for mail fraud and <mask> bore a direct relationship to the duties and responsibilities attendant to a stationary engineer]). DOE’s argument that petitioner would be responsible for the “confidential information” of children during the performance of her duties is unpersuasive. DOE does not specify what, if any, “confidential information” of children petitioner would be responsible for in her capacity as a school bus attendant. Had the potential for a financial benefit been shown here, DOE could have established a link between petitioner’s prior offense and the license she now seeks. No such connection was established. Indeed, DOE has not shown that a situation could emerge wherein petitioner would use the “confidential information” of children for the purpose of inuring a financial benefit to herself. Instead, DOE’s denial appears to be based on supposition unsupported by facts.


First, only a portion of the 69 counts in the operative indictment involve aggregation of multiple acts into single counts. Notably, counts 2 through 19 for insurance fraud in violation of Penal Code section 550, subdivision (a)(6), explicitly allege that "the aggregate amount of claims and amount at issue exceeded Nine Hundred Fifty dollars ($950) ...." Counts 20 through 37 for violations of Insurance Code section 1871.4, subdivision (a)(1) (the workers' compensation claims as defined in Lab. Code, § 3207 ), do not overtly use the term "aggregate" regarding multiple acts, but the counts are based on such multiple acts. Further, petitioner argues as much in the petition and in his traverse, contending that the insurance and workers' compensation fraud claims are improperly aggregated, violate the due process requirement of adequate notice of the charges against him (discussed in the next section), and that the other counts against him (e.g., conspiracy, capping, etc.) must fall if the fraud claims are improper. Counts 38 through 66 for <mask> ( Pen. Code. § 186.10, subd. (a) ), addressed solely against this petitioner, do not aggregate claims, nor do the remaining counts. Accordingly, we will only address the aggregation issue with respect to counts 2 through 19 and 20 through 37.


“A person is guilty of <mask> in the second degree when that person exchanges or receives in exchange, in one or more transactions, one or more monetary instruments which are the proceeds of specified criminal conduct and have a total value exceeding ten thousand dollars for one or more other monetary instruments and/or equivalent property when that person knows that the monetary instrument or instruments exchanged or received in exchange are the proceeds of any criminal conduct and that person: “1. intentionally makes the exchange to conceal or disguise the nature, the location, the source, the ownership, or the control of such proceeds; or “2. intentionally makes the exchange to aid himself or another person to commit or profit or benefit from specified criminal conduct”. (Penal Law § 470.10.) As set forth in the Practice Commentaries to Penal Law article 470, the essential conduct involved in money laundering is the exchange of certain forms of ill-gotten money for other forms of money or equivalent property. (Donnino, Practice Commentaries, McKinneys Cons Laws of NY, Book 39, Penal Law art 470, at 582.) Usually, cash is the medium of money laundering, but it need not be. Here the allegation is that credit with *471American Express was obtained, through which American Express would give checks and electronic deposits to the limousine companies, which would then give checks to defendant Carlyle, the escort service. The defendants’ point is a technical one, that checks are not monetary instruments within the meaning and intent of the statute. The People argue that the statutory definition of “monetary instrument” includes “coin and currency of the United States or of any other country; bank checks; traveler’s checks; money orders; and investment securities and negotiable instruments in such form that delivery is sufficient to pass title.” (Penal Law § 470.00 [1].) Here, however, the checks at issue were none of these; they were personal business checks. The equivalent Federal statute tracks the State definition almost precisely (see, 18 USC § 1956 [c] [5]), except the Federal statute explicitly includes “personal checks”. While the People assert that this was a mere oversight and the Legislature intended to include personal checks, the court cannot agree. The inclusion of bank checks, which are independent obligations of the bank issued on behalf of, in some instances, an anonymous remitter, shows that the Legislature focused on the issue of checks, but deliberately excluded personal checks. The instruments here are not bank checks.


It is true that punitive damages are not normally granted unless there is a wrong to the public (Walker v Sheldon, 10 NY2d 401). However, punitive damages can be awarded for a breach of contract where there is bad faith or a dishonest failure to carry out a contract (Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427). Although punitive damages in contract actions are relatively rare, they can be awarded where the defendant’s conduct is deemed by the court to be truly egregious. For example, in Aero Garage Corp. v Hirschfeld (185 AD2d 775 [1st Dept], lv denied 81 NY2d 701), in which a landlord deliberately prevented a tenant from obtaining a permit needed to operate the tenant’s business, the Court awarded the tenant punitive damages against the landlord. In the instant case, if plaintiff’s allegations are assumed to be true, as they must be for present purposes, DLJ dismissed plaintiff by reason of his attempt to report serious violations of securities laws and regulations designed to prevent <mask>. Certainly there is a strong public policy in favor of encouraging persons such as plaintiff to report violations of these laws without fear of retaliation by the employer. Thus, the claim for punitive damages in the first cause of action shall be sustained.


The Rye Funds entered into two substantially similar administrative services agreements—a July 1, 2007 agreement between Rye Select Broad Market Fund LP and Rye Select Broad Market Prime Fund LP and BNY-AIS (Mehta aff, exhibit D); and a September 1, 2006 agreement between Rye Select Broad Market XL Fund LP and BNY-AIS. (Mehta aff, exhibit E.) The agreements provided for BNY-AIS to furnish the administrative services listed on schedule I, which include: establishing and maintaining accounts in the name of the Rye Funds; receiving and disbursing subscription payments in connection with the sale of the Funds’ shares; receiving and paying fees and expenses on behalf of the Funds; acting as registrar and transfer agent with respect to the Funds’ shares and, in that capacity, processing subscription applications and maintaining subscriber registers and ledgers; preparing and maintaining customary financial and accounting books and records; acting as liaison with the Rye Funds’ independent public accountants; computing the net asset value of the Funds’ shares; and providing specified anti-<mask> services involving subscribers.


Defendants request the court to revisit the viability of the <mask> counts against these defendants (count 44 [originally 54 — Penal Law § 470.15 (1) (b) (ii) (A); (iii)];1 count 45 [originally 55 — Penal Law § 470.15 (1) (b) (ii) (A); (iii)]) and for a dismissal of those counts or an order precluding proof of them by the prosecutor at trial, based upon United States v Santos (553 US —, 128 S Ct 2020 [2008]).


This was not the only fraud in this matter, but was the only one discussed in the affidavit. Nyamekye was tried on charges of conspiracy to commit <mask>, 18 U.S.C. § 1956(h), and engaging in monetary transactions in property derived from specified unlawful activity, § 1957(a). The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.


After you retire to the jury room, you should select one of your members as your Foreman. It is his or her duty to preside at your deliberations, vote with you, and when you have unanimously agreed upon a verdict, to certify to your verdict by using the appropriate form attached hereto and signing the same as Foreman. *382Without objection, the prosecution explained at closing, as it had in voir dire, that the jury did not have to agree on whether Appellant committed the predicate offense of theft, or that of <mask>. Appellant was convicted and punishment was assessed at life in prison.


Even before Rutgard was decided, a majority of other courts had employed an analysis when tracing in <mask> cases recognizing that money is fungible. As explained by the Tenth Circuit Court of Appeals: "The government had the burden of showing that the criminally derived property used in the monetary transactions was in fact derived from specified unlawful activity. This does not mean, however, that the government had to show that funds withdrawn from the defendant's account could not possibly have come from any source other than the unlawful activity. Once proceeds of unlawful activity have been deposited in a financial institution and have been credited to an account, those funds cannot be traced to any particular transaction and cannot be distinguished from any other funds deposited in the account. The 'tainted' funds may be commingled with 'untainted' funds, with the result being simply a net credit balance in favor of the depositor. The credit balance gives the depositor a claim against the bank and allows him to withdraw funds *767to the extent of the credit. In the context of a withdrawal, the portion of § 1957 requiring a showing that the proceeds were in fact 'derived from specified unlawful activity' could not have been intended as a requirement *1046that the government prove that no 'untainted' funds were deposited along with the unlawful proceeds. [Citation.] Such an interpretation would allow individuals to avoid prosecution simply by commingling legitimate funds with proceeds of crime. [Citation.] This would defeat the very purpose of the money-laundering statutes." ( U.S. v. Johnson (10th Cir. 1992) 971 F.2d 562, 570.)


We hold that, in a prosecution for <mask> under Penal Code section 186.10, subdivision (a), when the prosecution proceeds on the theory that the defendant conducted money laundering activities "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. Acknowledging the fungibility of money, we also hold that, whether or *762not the illegally obtained funds have been commingled with legally obtained funds, the prosecution need not prove full or dollar for dollar tracing between the illegally obtained funds and the monetary transaction, as Mays held. Because the statutory basis on which Mays rested its holding has changed, we publish our opinion to clarify the current state of the law.


Martin Marcus, J. The defendant was indicted by the grand jury of Bronx County and charged with 21 counts of grand larceny in the second degree (Penal Law § 155.40 [1]); eight counts of grand larceny in the third degree (Penal Law § 155.35 [1]); and two counts each of <mask> in the first degree (Penal Law § 470.20 [1] [b] [i] [A]; [ii] [A]) and scheme to defraud in the first degree (Penal Law § 190.65 [1] [a], [b]). The defendant is also charged with two counts of fraudulent practices in respect to stocks, bonds and other securities (General Business Law § 352-c [5], [6] [hereinafter the Martin Act counts]). In essence, the defendant allegedly operated a “Ponzi scheme” in which he fraudulently induced 29 people to place with him some or all of their retirement savings or other funds, totaling millions of dollars. Promising to invest their money either in a real estate project or in various financial instruments, and assuring them that they would receive a (more or less) guaranteed rate of return, he did not invest their funds as promised, and instead used their money to make some payments due to earlier investors and to pay airlines, casinos, restaurants and others for personal expenses. Some of the investors received none of the *566payments their agreements called for. A few initially received the monthly payments they were due, but soon those payments came in lesser amounts and then stopped altogether.


“The MetLife Enterprise is firmly committed to complying with all applicable anti-<mask> laws, rules, and regulations. Specifically, the USA PATRIOT ACT requires MetLife to verify the identity of its customers and understand the source of all funds that it receives for the purchase of financial products. The task of certifying the source of funds for financial product purchases and subsequent payments is extremely difficult when we receive monetary instruments or funds from other than the owner of an account or policy.” Consequently, MetLife has, as applicable here, devised procedures to track, among other things, third-party checks “written on a checking account, annuitant, or insured of the MetLife account or policy.” (Id.)