A right is vested if it is one which is complete and consummated (Sochor v International Bus. Machs. Corp., 90 AD2d 442, 445 [2d Dept 1982], revd on other grounds 60 NY2d 254 [1983]), i.e., that it is "fixed or established and no longer open to controversy”. Rather than being such a fixed or settled right, "contribution or indemnification may be characterized as contingent and <mask> * * * for if the defendant is not found to be liable and pays no money to an injured plaintiff, there is no obligation to which a party must contribute or indemnify” (Majewski v Broadalbin-Perth Cent. School Dist., supra, 169 Misc 2d, at 431-432).


*361The language of the statute is unequivocal. The right qf an employee member of the retirement system in respect to the rate of payment of annuity benefits becomes fixed upon retirement and not at the time he becomes a member of the system, or even when he has attained eligibility. The contractual relationship created by section 7 of article V of the Constitution imposes upon the Teachers’ Retirement System the obligation to pay to the members upon retirement, a pension as additional compensation for services rendered in the past, and an annuity based upon the member’s contributions. Prior to retirement for superannuation the member’s rights are <mask>. (O’Dea v. Public School Employees’ Retirement Bd., 66 Dauphin County Reports [Pa.] 58.)


To the contra, the most that can be spelled from the letter itself is an understanding that the loans are to be paid back and that the commissions are to be applied to the advances. “ Any loans * * * shall first be paid back to us out of any commissions coming to you. * * * You will not get any commissions until these commissions are first applied to what you owe us, and then you get the difference.” But the absence of these words is not fatal, for any language, however informal, if it shows the intention of the owner to transfer the property therein to the assignee, will be sufficient. (See 5 C. J. 906.) However, if the letter lacks the language of assignment in law, can the defendant maintain its claim on the theory that its <mask> right to these future earnings had become vested?


Both the Board of Land Commissioners and federal courts regularly considered claims based on interests less than perfected titles from the Spanish or Mexican government. The Alviso case in this respect is hardly unique. Although not all provisional or <mask> claims were confirmed, the Board and the courts regularly entertained them. (See, e.g., United States v. Garcia (1859) 63 U.S. 22 How. 274, 16 L.Ed. 338 ; De Haro v. United States (1866) 72 U.S. 5 Wall. 599, 18 L.Ed. 681 ; United States v. Pico (D.Cal.1870) 27 F.Cas. 537, 538 ); United States v. Chaboya (N.D.Cal.1862) 25 F.Cas. 371 ).)


The statue is a remedial one, and must be liberally construed to advance the remedy. It was intended to give a lien where none existed before. The <mask> lien attaches from the moment the horses enter the stable ; it is-waived if the statutory notice be not given, and it ripens-the moment the notice is given into a complete statutory lien relating back and embracing all the charges due.


We reverse. “[T]he burden is upon the landlord to establish that during the specified period of 150 to 120 days prior to the expiration of the lease (when landlord would otherwise have been obligated to offer tenant a renewal lease pursuant to section 60 of the [Rent Stabilization] code) the exception to the section 60 renewal requirement relied upon by the landlord was indeed extant. Where a landlord fails to sustain that burden, the tenant’s right to an offer of renewal is deemed to have vested during the period 150 to 120 days prior to the expiration of the lease, and that right may not thereafter be abrogated.” (Short v Graves, 109 Misc 2d 672, 674, affd 88 AD2d 796.) It is apparent from this record that Caine’s intent to take over tenant’s apartment was not formulated until sometime in September, 1981, after the initial holdover proceeding had been commenced on Beattie’s behalf and discontinued, and well past the time when landlords would have been obligated to tender a renewal lease. The effect of the decision below is to impute Beattie’s <mask> good-faith intention to recover tenant’s apartment to Caine, resulting in an unwarranted extension of the scope of subdivision B of section 54 of the Rent Stabilization Code. Considering that the right to a renewal lease is one of the cornerstones of the rent stabilization system (subject to the limited exceptions set forth in section 54 of the Code), multiple co-owners of property should not be treated as an entity with interchangeable or fungible parts in these situations.


When Peter Moriarta, conveyed the rent in both the lots, without having his wife join in the conveyance, she remained entitled to an *566<mask> right of dower in the defeasible fee of the rents. And that fee might at any timo.have been defeated by the payment of the gross sum by the owner of the land charged to the holder of the estate in the rent. That such payment was to be made to the holder of the estate in fee is plainly expressed in the deeds. There was no actual payment of this gross sum, but an equivalent transaction took place. The owner of the rent became by purchase the owner of the property on which the rent was charged. This was a merger. And, furthermore, it became absurd to say that Andrews, the owner of the land, was to pay to himself, as the owner of the rent, the gross sum, upon the payment of which the rent was to be defeated The plaintiff might take the position that this transaction had rendered the redemption impossible, because Andrews could not pay to himself. But this would not be reasonable, for the parties could easily have arranged that the owner of the land should first redeem and then convey. The result would be practically the same with the present condition of things. ¥e may illustrate this by supposing that the' value of the first lot, as agreed between Andrews and Mallery, the owner of the land, if free of rent, was $1,000. Now the sum needed to redeem the rent of that lot was $250. Therefore Andrews would pay the owner for the land $750. This would be the same as if the owner Mallery had first redeemed and then received from Andrews $1,000.


1. Both the United States Constitution and the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures. Even a brief traffic stop constitutes a seizure of a vehicle’s occupants. However, under Terry v Ohio, 392 US 1 (1968), a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. A brief, on-the-scene detention of an individual is not a violation of the Fourth Amendment as long as the officer can articulate a reasonable suspicion for the detention. Colloquially, a brief detention of this sort is referred to as a Terry stop. Whether an officer has a reasonable and articulable suspicion to briefly detain an individual is a fact-specific inquiry that is determined on a case-by-case basis, using commonsense judgments and inferences about human behavior. Although reasonable and articulable suspicion is a lesser showing than probable cause, it still entails something more than an <mask> or unparticularized suspicion or hunch, because an officer must have had a particularized and objective basis for the suspicion of criminal activity.


*138¿Ft is also urged that the wife’s title should be protected to her, inasmuch as the consideration of the purchase of the property conveyed to her was the sale of other real property, in which she had an <mask> right of dower which she released. But the transfer to her was not made as a condition of her releasing her inchoate right of dower in the other property. That release was voluntarily made. Nor aught that can be seen she surrendered her inchoate right without any condition whatever. Then the title to the property in controversy was made to her ; and this was, as has been seen, fraudulent as to the creditors of her husband. But on the trial it was admitted by the defendants’ counsel that they did not attempt to support the deed by any consideration for it coming from her. This may, perhaps, have been intended to apply only to an actual payment by her of a money consideration. However this may be, it does not appear that the conveyance to Mrs. Breese was made to secure to her the value of her inchoate right of dower in the other real estate, which right she had released, or had agreed to release. We find no error affecting the merits in the admission or rejection of evidence. Nor do we think there is any inconsistency between the general and special findings of the referee which require notice. On the whole, we are of the opinion that the judgment directed by the referee must be affirmed.


This is far different than the case sub judiee. Here, after trial, it is found that there is no basis for any claim of fraud resulting in damage to defendant. Defendant obtained precisely what it sought, stock purchases in a quantity and at a time and at prices which it had agreed to and wished to pay, for a proper corporate purpose. The fact that later events made the transaction unprofitable has no bearing on the events as they occurred. If there was a fraud, it may well have been <mask> in the failure of Gilbert, De Sousa and Polivy to recognize that their loyalty to Bruce raised serious questions as to their right to set up the transaction for the benefit of Coraloc as against Bruce. The transaction, if performed as planned, could not have injured Coraloc. It might have been to the detriment of Bruce.


According to the face of the decree, the court upon the pleadings alone, and upon the defendant’s admissions therein, without any proof of the present or probable prospective income derivable from the defendant’s real estate, and without any reference to its possible increase in value and productiveness on the further .acquisitions of the defendant, arbitrarily require the plaintiff to relinquish all claim to dower therein. And to this the court left her no alternative, unless it be to refuse to take the divorce itself. No doubt the court deemed three thousand dollars a year of more value to the plaintiff, beginning from the commencement of this action, than her <mask> right of dower, but even the option to decline the alimony ordered, and retain her right to dower, does not appear to have been tendered to her. As the judgment stands, the divorce is decreed, and she is peremptorily required to relinquish her right of dower. How her release, mentioned in the decree, is to operate, whether she has such an interest or right as would pass to the plaintiff by a mere release to him, so as to exonerate the land, we need not inquire. The object of the decree was clearly to require such a release as should forever preclude any claim of dower in future..


There'are many cases where persons having contingent interests in the property may be concluded- by proceedings in partition,- without working any injustice. When- partition is actually made, a contingent interest in an undivided share may attach to the part, assigned in severalty t-o the owner of the particular estate on- which- the contingent fm terest was limited. For example, if Á. have' an estate for life in a moiety of the lands, with a contingent remainder in his share to B.: and C. have an estate for life in another moiety, with a contingent remainder in his share to D.: in such case, the remainder-men may be made' parties to the proceedings, and be concluded by the partition between the tenants for life. They lose nothing by it. Their contingent interests are neither destroyed nor impaired1. The effect of the partition upon their estates is the same, substantially, as it is Upon the estates of the tenants for life—their undivided interest in the whole property becomes a several interest in a particular parcel. So here, if partition had been made, the <mask> rights of dower of the two married women would have ceased to be an incumbrance on the whole property, and would attach to the portions allotted, to their husbands respectively.


Nothing of any legal import occurred in the conversation at the office of Mr. Nichols. The only material question, therefore, is, whether Mrs. Ebbs was a competent witness to prove the conversation which took place at Mr. Ward’s house. The Code* provides that no party to an action, nor any person interested in the event thereof, shall be examined as a witness, in regard to any personal transaction or comndunication between the witness and a deceased person. The fact that Mrs. Ebbs was the wife of the co-defendant, on whose behalf she testified, was not sufficient to exclude her.† Nor did the facts, that she was a party to the suit, and interested in the event thereof, render her incompetent.‡ She was a competent witness, but it was not permissible to examine her, as to the “ personal transaction or communication ” prohibited by section 399 of the Code. That the conversation related by her, comes within this prohibition, we think satisfactorily appears. She went with her husband to negotiate the loan, and participated throughout in that negotiation. She is one of the parties to the only instrument taken as security for the loan. It is not probable that the loan would have been made, unless she had executed the mortgage. Although, therefore, her interest in the mortgaged premises was *440only an <mask> right of dower, and her execution of the mortgage operated only as a release of that interest, yet the security would not have been perfect, if she had not participated in the transaction, by executing the mortgage. The principle would not be changed by considering that her husband was the actual borrower. The test of the prohibition, contained in section 399 of the Code, is not whether the interests of the witness were the subject of the transaction or communication. Oases will often arise, when a witness cannot be permitted to testify to a transaction or communication, in which he had at the time no interest. For example, when an admission has been made, respecting property of which the witness afterward became the owner; or when the witness acted for another in a transaction, in the subject of which he afterward acquired an interest; or when a loan is negotiated by A, in a conversation between him and the lender, in which B participates, and the negotiation is consummated at the same time, by A’s giving the lender his note, indorsed by B for A’s accommodation; or, as in the case before us, when the transaction and communication were personal ones between the witness, who had some interest in them, and another person, more directly and specially interested.


*457This principle of practice is absolutely settled, and would not be further discussed, except for a misapprehension which seems to have existed as to the meaning of section 452 of the Code, which provides for the bringing in of additional parties, “ where a complete determination of the controversy cannot be had without the presence of other parties. ” This section has reference more particularly to equity suits, partition foreclosure suits, etc., where the parties sought to be brought in have some interest, fixed or contingent, in the subject-matter of the controversy, such as that of the <mask> right of dower of a wife of whose existence nothing was known until the trial; and the rights as tenant by the curtesy of a husband whose existence was first discovered at trial, and whose interest formerly was of some substance, but is now shadowy, and subject to be defeated by the wife’s conveyance, either by deed or will; or where an injunction is sought, say against a copartnership firm, and where, at the trial, it is discovered that a person not a party is a member of such firm; and so illustration after illustration could be given showing that section 452 has application only to conditions entirely different from those existing in the case now under consideration. It must be confessed that this plaintiff’s case was not as fully presented as it could have been, for a half dozen well-directed questions, addressed to the defendant while on the witness stand, must have brought forth statements of the true conditions attending his entry into possession and his continued occupancy of the premises. The exhaustive brief of plaintiff’s counsel has, however, treated her meager case in such an able manner as to convince the court that the trial judge was justified in directing the verdict; for, eliminating the testimony of the plaintiff herself from the case, sufficient is left to establish, as an undisputed fact, that the defendant was a hold-over tenant of the premises, under the same" conditions as to rent,.etc., as those under which he held-possession of and occupied the premises for the previous year ending May 1, 1891; for, as above stated, he will not be allowed to defeat plaintiff’s recovery because of the nonjoinder of his partner as a defendant. The defendant does not deny the evidence of the witness Slattery that he occupied the premises under a yearly letting for the year ending May 1, 1891, at the yearly rental of $2,200, payable monthly; but simply denies that he made the verbal agreement testified to by Mrs. Garrick as made in April, and expressly admits that he held over under the old lease, under which he had occupied the premises for the previous year; for his testimony is: “I did not make any verbal lease with Mrs. Garrick; simply held on according to the old lease we had. I never made any personal agreement. ” If he had informed the plaintiff by his answer that he had a partner liable with him for the rent, she would have undoubtedly amended her complaint accordingly. The firmly established law of this state is that a tenant occupying premises under a letting from May to May, who holds possession after the expiration of the term, can, at the election of his landlord, be held liable for another year’s rent at the same rate and under the same conditions of the previous letting. Schuyler v. Smith, 51 N. Y. 309; Ackley v. Westervelt, 86 N. Y. 448; Laugbran v. Smith, 75 N. Y. 205; Coudert v. Cohn, 118 N. Y. 309, 23 N. E. Rep. 298. The plaintiff’s judgment must be affirmed, with costs. All concur.


The facts of the case, as stated by the referee and disclosed by the ■evidence, are as follows: On the 15th of July, 1872, after having been married for more than fifteen years and having, during that time, lived together as husband and wife, Justus Tale and Emily Yale separated, and after having lived apart for about two months and a-half, in the first days of October of that year, came to an agreement between themselves to live apart during the remainder of their lives, and that the said Justus should provide for the support of the said Emily and should secure her in such support during her lifetime, .and that the said Emily should release her dower in the lands of which the said Justus was seized and should secure and indemnify him against any charge for her support further or differently than as then agreed, and to save him harmless from any debts of her contracting on his account. In pursuance of this agreement, the said •Justus and Emily Yale, together with the plaintiff, Abram S. Mann, and others, executed the writing embodying the said agreement set out in the complaint, and as collaterial security for the faithful performance of the conditions thereof by the said Justus Yale, he, at the same time, executed and delivered to the said Mann, as trustee for said Emily Yale, the mortgage in suit. At the same time, or immediately thereafter, the said Justus Yale made executed and delivered to one Thomas B. Yale, a quit-claim deed of the lands described in the mortgage, in which deed the •said Emily Yale joined, thereby releasing her <mask> right of dower in the lands. This deed contained the following provision: ” All the premises above referred to, however, are subject to a mortgage bearing even date herewith, executed by the said Justus Yale to Abram S. Mann, trustee, and nothing herein contained shall impair or affect the security by the said mortgage created.” At the same time, by a declaration of trust executed by said Thomas B. Yale to said *29Justus Yale, bearing tbe same date as the mortgage, after reciting-the conveyance to him of the lands mentioned in the deed, said Thomas B. Yale declared and agreed that he held and would hold said lands in trust for said Justus Yale, and would, on request, deed and convey the same to such person or persons as the said Justus should elect or direct. Said agreement, mortgage, deed and declaration of trust all bear date July 15, 1872, although they were, in fact, executed as late as, and after, October first of that year.


When the testator died, the sheriff primarily possessed an <mask> claim or lien against the attached property for his poundage, and secondarily, a contingent claim against the decedent. Ordinarily the amount of the sheriff’s poundage and the source from which or by whom to be paid cannot be determined until the termination of the litigation by settlement between the parties (Morowitz v. Dadourian Export Corp., 179 Misc. 373), discontinuance of the action (Duffy v. Burton, 20 App. Div. 51, affd. 164 N. Y. 608; O’Brien v. Nat. Conduit & Cable Co., 43 Misc. 327), operation of law (Zarski v. Wohl & Cie, 186 Misc. 824), judgment (Matter of Dempsey v. Lynch Co., Inc., 175 Misc. 710, affd. 261 App. Div. 829; Gimenez v. Great Atlantic & Pacific Tea Co., 242 App. Div. 485) and vacatur of attachment (Bruskin v. Diamond Trading Co., 182 Misc. 444; Upton v. Electric Construction Co., 89 Hun 502).


We find People v. Bland (2002) 28 Cal.4th 313, 325, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland ) to be helpful in explaining how defendant's single act and single bullet could produce two victims: "The conceptual problem ... arose even where the deadly force missed the intended victim completely but the State nonetheless sought to charge the assailant with the <mask> crime of intent to murder or assault with intent to murder. If the mens rea were in limited supply, to which of two crimes should it be allocated? How could a single mens rea be made to do double duty?"


Defendant was convicted, after a nonjury trial, of witness tampering in the fourth degree (Penal Law § 215.10) and aggravated harassment in the second degree (Penal Law § 240.30 [1]), in connection with a single telephone call that he made to the complainant, an attorney and long-time acquaintance. The defendant’s telephone call, made on February 16, 1998 and tape-recorded by the complainant, was prompted by the complainant’s then recent action in reporting to police a series of incidents involving one Polansky, a former girlfriend of both disputants, in which Polansky allegedly made “phony,” “loveydovey” telephone calls to the complainant. The audiotape of the telephone conversation initiated by defendant, which spans just over one minute in duration, reveals that defendant told the complainant that he (defendant) had “two letters written to the grievance committee that [the complainant] used the legal system to harass people” and that defendant “can have [the complainant] arrested” based on “two witnesses that said that [the complainant] assaulted [defendant] in Southampton”; that *64defendant stated several times that he did not “want to go this way,” and indicated that he was calling as a “courtesy” to try to “work something out”; and that defendant once referred to the complainant dropping the <mask> criminal charges against Polansky (“[I]f you could drop the charges, I don’t have to do that”).


She cannot be treated as the surety of her husband because she joins with him in a mortgage of his lands, so as to have any charge against his estate by way of or for reimbursement for the injury she-may sustain by reason of the extinguishment in that manner of dower, and she can only take her dower in the equity of redemption of the mortgaged premises. (Hawley v. Bradford, 9 Paige, 200.) It is otherwise when she joins with him in a mortgage of her property to secure the payment of his debt. Then she is in fact his surety and entitled to all the rights incident to that relation. (Id.; Vartie v. Underwood, 18 Barb., 561; Erie Co. S. Bank v. Roop, 80 N. Y., 591.) The assignment of the mortgage to the defendant Brick cannot abridge any right which the wife of the mortgagor is at liberty at law or in equity to assert in respect to the premises, nor will it impair any rights which she had at the time the defendant took his title. And there is no principle applicable to the situation of the parties which equitably requires him to sacrifice any portion of the estate he purchased in the mortgaged premises, for the benefit of the mortgagor’s wife, or to protect or restore the <mask> right of dower released by the mortgage.


This position of the plaintiff is clearly untenable, and the authorities cited by the counsel have no application to the facts conceded in this case. The intention of the parties to the bond and mortgage is obvious. The wife of the plaintiff’s intestate refused to unite with him in a deed of certain premises of which he had the fee. To protect the purchasers against any loss from and on account of the <mask> dower right of his wife, a certain portion of the purchase-money or price was reserved and this bond and mortgage given. This sum so kept back and reserved was simply to protect and secure the grantee under his deed, by leaving one-third of the purchase-price unpaid upon the mortgage and bond, from and against any interest of his wife in said premises, in the event that 'she outlived him. The language of the bond, so far as it affects this action, is as follows : “ The sum of $1,400 is set apart and to be considered a standing indemnity, on interest, against said claim of dower, the interest to be paid to the said Benham (the intestate) anually during his life. In case he outlives his wife, the whole sum to to be paid to him or his heirs, executors and administrators twelve months after her decease.” In the event that the wife survived her husband and should elect to have one-third of the premises set apart for her use, instead of taking the interest on the sum so reserved, then no interest was to be paid on the sum secured by the bond and mortgage during her life, but the principal sum and interest from her death to be due and payable twelve months thereafter, “to the heirs, executors and administrators of John P. Ben-ham,” the intestate. But in the event that she should take the interest on the $1,400 so secured, “ and this she did, having outlived her husband,” then in that event, upon her death the unpaid interest and the principal sum were, by the terms of said bond, made due and payable, “ to the heirs, executors and administrators of the said *107intestate ” twelve months after Ms death. The intestate assigned all Ms interest in the bond and mortgage in Ms lifetime, as be bad a right to do. Its conditions, so far as the wife’s interest was concerned, bad been complied with, and before this action was commenced the bond and mortgage had been fully paid to the owner and holder thereof. It would be manifestly unjust to the obligors to be obliged to pay twice, unless some principle of law requires it, and from a careful examination I am satisfied such is not the ease.


The question raised is not free from doubt. On the part of the creditors, it is claimed that, as a consequence of the original making and delivery of the mortgage by her, in which it was provided that the overplus of the purchase money, if any there should be, should be rendered to her husband, Iris heirs, or assigns, and the sale having taken place according to the terms of the mortgage, the surplus became personal property, and should be paid to him or to those who claim in his right, and this view seems to be supported by Titus v. Neilson (5 Johns. Ch. 453) ; Bell v. Mayor, etc. (10 Paige 55) ; Frost v. Peacock (4 Edw. Ch. 678) ; Sickman v. Harsen (98 N. Y. 186); Moore v. Mayor, etc. (7 N. Y. 110). On behalf of the wife, it is claimed that <mask> right of dower attaches to the surplus, which pro haC vice is still to be deemed real estate, and 6ntiti.es her to claim her interest therein, under the rule laid down in Jackson v. Edwards (7 Paige 408) ; and this contention seems to be supported by Denton v. Naum (8 Barb. 618); Mills v. Van Voorhis (20 N. Y. 412); Simar v. Canady (53 N. Y. 298); Douglass v. Douglass (11 Hun 406); Matthews v. Duryea (4 Keyes 525).


It purports to have been made “for value received,” but in what form or to what amount is not expressed, and the question presented is whether the proof of the oral agreement under such circumstances, on an issue like the present, violates the elementary rule of evidence before referred to. The principle established by the authorities seems to be, that if no consideration be expressed in a written agreement, or if it *425purports to have been made on divers good considerations, that the true consideration may be proved aliunde (see the various cases on the subject collated in Sugden on Vendors [8th Am. ed), vol. 1, p. 238, note b, and see 6th ed., 3d vol., R. S., p. 672, sec. 124, and cases cited), and it is said by judge Huston in Bollinger v. Eckhert (16 Serg. & R., 424: “We have settled down in this: Whatever material to the contract was expressed and agreed to when the bargain was concluded and the article drawn may, if not expressed in the article, be proved by parol, unless it is expressed contrary in the writing.” Upon this principle parol evidence of what passed at the execution of a deed was held admissible in Pennsylvania, to show that the conveyance, though nominally absolute, was in fact for the purpose of enabling the grantor to institute an ejectment in the name of the grantee in the circuit court of the United States (Ingham agt. Crary, 1 Penrose & Watts, [Penn)., 389). In declaring the law in our own state justice Cowen, in McCrea agt. Purmont (16 Wend., 460), after a review of many of the leading authorities in England and in the United States, says in conclusion: “ Looking at the strong and overwhelming balance of authority, as collected from the decisions of the American courts, the clause in question, even as between the immediate parties, comes down to the rank of prima facie evidence, except for the purpose of giving effect to the operative words of conveyance. To that end, and that alone, it is conclusive. Such effect, I have no doubt, has long been ascribed to it by conveyancers and dealers in real estate. It is a construction that violates no rule of law, but harmonizes with well-settled . principles, and should be steadily maintained and applied whenever the ends of substantial justice may require it” (McCrea agt. Purmont, supra). This acknowledgment of consideration estops the grantor from alleging that the deed was executed without consideration, prevents a resulting trust in him and forever debars him from denying the deed for the uses therein mentioned; but for every other purpose it is open to explana*426tion, and may be varied by parol proof (see cases cited in Sugden on Vendors [8th Am. ed.], p. 238, note b). There seems to be nothing in the rule referred to, which conflicts with the plaintiff’s right to prove the oral understanding upon which the assignment was executed and delivered. He did not prove that the written assignment made by him to Fullerton was executed without consideration, but was allowed to prove what the consideration was as matter of fact. Ho trust, by implication or otherwise, resulted from the assignment, because it was drawn in form absolute on its face, so as to enable Fullerton to prosecute in his own name an action upon the claims assigned; nor did the verbal understanding impress any trust upon the assignment in Henderson’s favor, because all his interest in the claim, as against Chapman, irrevocably passed by that assignment, and the verbal understanding did not operate as a reservation of any part of it. It created an <mask> right of action, however, in Henderson’s favor, as against Fullerton, which matured and became complete upon the collection of the judgment. The distinction here pointed out is observable in the authorities. Henderson does not impeach the assignment, and does not deny the validity-of the transfer. He merely seeks to enforce, as against Fullerton, the agreement which was the consideration for the transfer, which agreement became efficacious when the transfer produced its results.


“ In the Capitol Distributors case the assignment was not one of a fund to come into existence in the future, but was of a present interest and for a present consideration; it was not, as here, a refund of a partly used-up license fee but a return to an unsuccessful license applicant of the deposit which he had made as against the issuance of a license applied for but never issued (see Alcoholic Beverage Control Law, § 54, subd. 2; § 63). “ Since the bank had in the Capitol Distributors case a legal assignment of an existing fund owned by its assignor, it got its priority over later creditors even when the latter were armed with judgment liens. But here appellant had only an <mask> or equitable claim on a yet to be created fund (see Matter of Strand v. Piser, 291 N. Y. 236, supra) and so it must yield priority to judgment lienors.” (Italics supplied.) In the eir*529cumstances here and in the light of what the prevailing opinion in Bedford does state, the following statement in the dissent therein is nevertheless valid (p. 435): “We have held, in a wide variety of circumstances, that where the fund is to arise out of an existing relationship between the assignor and the potential source of the fund, such an assignment is valid as against creditors of the assignor ivho acquire liens after the fund comes into existence ” (italics supplied). It is here urged by one of the defendants that the Bedford case is distinguishable from the instant case for the reason that in Bedford the statutory lien was created by a subpoena in supplementary proceedings, whereas here there was no judgment at the time of either attachment by the Sheriff. In this connection the attachment creditor urges that the Civil Practice Act expressly provides that an attachment lien and a judgment lien are of equal effect, with priority going to the one first attaching, whether it be an attachment lien or a lien of exclusion. In support of this contention, the attachment creditor relies on sections 680 and 681 of the Civil Practice Act. They are, however, wholly unrelated to the problem here presented as between the assignees and the attachment creditor. Even so, those sections referred to priority with respect to the property of the judgment debtor, and it is a fact that at the time of the levies pursuant to the attachment the debtor had available no property applicable to the levy.


My conclusions upon this branch of the case are, that the omission, during a year from the filing of the claim, to notify the clerk that legal steps have been taken, did not operate to discharge the lien,—the only object or necessity of such a notice, in any case, being to prevent the clerk from making the entry discharging the lien. That the <mask> lien created by the filing of the claim (no entry having been made by the clerk), continued after the year and until the judgment, which judgment became and is now a valid and subsisting incumbrance upon the premises; and the application to vacate the judgment upon the ground that the lien had ceased to exist when the judgment was rendered, is denied.


As Mrs. Feitner might have pleaded infancy in the foreclosure, the decree in the suit is binding upon her, notwithstanding the fact that she was an infant at the time it was entered, and the failure to have a guardian ad litem appointed for her.g The Court of Chancery had jurisdiction of. the subject-matter and of the parties. Its decree was therefore not void, but voidable only, and might have been opened and set aside upon motion of this plaintiff seasonably made. It was not necessary to serve her with the subpoena. Service upon her husband for her was sufficient in an action of the character of that under consideration. In an action for the foreclosure of a mortgage, where the wife has no interest in the property except an <mask> right of dower, service against the husband and wife on the husband alone is a good service on both (Ferguson v. Smith, 1 Paige 421). On a bill to foreclose a mortgage executed by husband and wife the subpoena may be served upon the husband only. Service upon the wife is only necessary where the proceeding is against her in respect of her separate estate and her husband is only a nominal party; not where the estate is. in the husband in right of the wife (Leavitt v. Conger, 1 Paige 421, citing 9 Vesey 486 and 2 Johns. Ch. 139; see, also, to the same effect, Eckerson v. Vollmer, 11 How. Pr. 42, citing 3 Chitty Gen. Pr. 263).


The next question to be determined is whether the effect of his marriage to the respondent subsequent to the making of the will should be determined by the laws of his domicile at the time of his death, or at the time of making the will. It has been strenuously argued by the petitioner that under the law of the Commonwealth of Massachusetts the deceased’s *1003marriage to respondent after making the will acted as a revocation thereof for the reason that it did not expressly state that it was made in contemplation of marriage. This is undoubtedly true under the law of Massachusetts as is indicated by the cases of Ingersoll v. Hopkins (170 Mass. 401) and Sughrue v. Barlow (233 Mass. 468), in both of which cases the person who is named in the will as a beneficiary later married the testator; but it was held that she was unable to recover for the reason that there was nothing to show that the will was made in contemplation of the marriage. The petitioner further claims, however, that the marriage acts as an immediate revocation and that since the deceased’s marriage to respondent was made while he was domiciled in Massachusetts, there was no valid will in existence when he became domiciled in Hew York State. A will is ambulatory and wholly ineffective for any purpose until the death of its author. (Brundage et al. v. Brundage et al., 60 N. Y. 544.) Ip the case Matter of Lavine (167 Misc. 879) it is stated that a will is an <mask> instrument and the rule is that the devolutionary effect of a will is solely determinable in accordance with the law in existence at the time of testator’s death. Section 47 of the Decedent Estate Law provides as follows: “ The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.”


A conspiracy exists where two or more people agree to commit a crime, they specifically intend both to agree and to commit the crime, and one of them performs an overt act in furtherance of their agreement. ( §§ 182, subd. (a)(1), 184.) "Conspiracy is an <mask> crime. [Citation.] It does not require the commission of the substantive offense that is the object of the conspiracy. [Citation.] 'As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime.' " ( *84People v. Swain (1996) 12 Cal.4th 593, 599-600, 49 Cal.Rptr.2d 390, 909 P.2d 994.) A "conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." ( People v. Prevost (1998) 60 Cal.App.4th 1382, 1399, 71 Cal.Rptr.2d 487.)


Third. That the defendant George "W. Douglas induced the . plaintiff to unite with him in a conveyance of the first-mentioned premises to said Alfred L. Holt, by representing that she would have the same rights in the premises in Fifty-second street that she had in the premises to be conveyed by him to said Holt; that such representations were made with the intention of defrauding the plaintiff of her <mask> right of dower in said premises described in schedule A.


Tinker National Bank is in a different position. While it has no lien upon the surplus moneys, it claims another status. It loaned the sum of $7,500 to Enrico’s Rest., Inc., on May 8, 1958 at which time Enrico Pucillo indorsed the note and transferred to Tinker, as collateral security, all of the issued and outstanding stock of Nino’s Continental, Inc. It is now in a position to take judgment in the amount of $6,750 against Enrico Pucillo, but has apparently done nothing to execute on the collateral. Tinker claims to be the equitable owner of the equity of redemption, a status which would entitle it to participate in the proceedings and test the validity or superiority of liens of other claimants. (Raynor v. Selmes, 52 N. Y. 579; Matter of Attorney-General v. Atlantic Mut. Life Ins. Co., 100 N. Y. 279; Davison v. MacDonald, supra.) It is, however, without the claimed status. At best, it has an <mask> right to execute upon the stock and a contingent right to become owner of all of the issued capital stock of the corporate defendant and thereby become enabled to take steps to enforce whatever rights that corporate defendant may have as owner of the equity of redemption. (Cf. York Props. v. Neidoff, 10 Misc 2d 439; Murrin v. Archbald Cons. Coal Co., 232 N. Y. 541.) Inchoate, contingent rights such as these, do not confer upon Tinker the equitable ownership of the equity of redemption of the foreclosed real estate. Since it has no such status, and since it has no lien against the surplus money, legal or equitable, it has no standing in this proceeding.


The existence of such right of a designated beneficiary to recover from the estate, upon payment of the indebtedness secured by the policy, is wholly inconsistent with the apparent contention of the respondent that such portion of the proceeds of the policy in question as are subject to the assignment is receivable by the executor and not by the named beneficiary. While it *794has been held that wheré, as here, the insured reserves the right to change the beneficiary, the rights of an assignee to whom the policy has been assigned for a valuable consideration are superior to those of the named beneficiary (Davis v. Modern Ind. Bank, 279 N. Y. 405), such holding is consistent with a recognition of all of the rights of the beneficiary, as against the estate. It follows, therefore, that although the decedent’s power to revoke the designation of his wife made her interest as designee <mask> during his lifetime (Davis v. Modern Ind. Bank, supra), such interest became vested upon the occurrence of his death subject only to the lien of the assignee.


Under the Appellate Division’s order, the plaintiff’s means will clearly be an issue at the hearing. Her financial disclosure form reflects no cash assets, a checking account balance of $675 and no income. Nevertheless, she has $24,000 in stock, drives an expensive though not new vehicle and lives in a $200,000 residence. These facts are hardly enlightening as to her financial means and given the latitude permitted married taxpayers filing separately on one return under New York tax law, one column on such *894a return adds little. Moreover, given the new “equitable distribution” statute (Domestic Relations Law, § 236), the court is entitled to consider a spouse’s equitable, if <mask>, interest in property and income acquired during marriage. (Matter of Felisa L. v Allen M., 107 Misc 2d 217.) The plaintiff and her present husband have elected to avail themselves of the benefits of filing joint tax returns. They cannot thereby prevent disclosure, but must share the burden of the policy favoring liberal financial disclosure in matrimonial actions. (See Angelo v Angelo, 74 AD2d 327, 331.)


1. Plaintiffs have a vested right to a pension under the supplemental plan and that right may not be abrogated by the *103LIRE or MTA. When any one of the plaintiffs attains the age of retirement, as fixed in the supplemental plan, he becomes entitled to the sum fixed in the supplemental plan as his pension, determined by his earnings, age, and years of service. 2. Defendants LIRR and MTA have a right to modify the supplemental plan so long as the modification is reasonable and does not interfere with plaintiffs’ <mask> right to a pension upon reaching the age fixed in the supplemental plan. 3. If plaintiffs wish to become eligible under the noncontributory new plan, they must opt to withdraw from the supplemental plan and take a return of 106% of their contribution. There is no showing that the fixing of the sum of 106% of contributions, to be returned by the managers, is arbitrary. 4. Plaintiffs are not entitled to remain members of the supplemental plan and also become members of the new plan.


The husband of the witness is not now seized of the real estate to which the present contention in part relates. And he may never become seized of the same or of any part of it. For aught that has yet appeared, it may hereafter be necessary, indeed, to devote the entire estate of the decedent to the payment of his debts. How, there are three things necessary to consummate a right of dower—marriage, seizin and survivorship. A wife’s dower interest attaches when the husband becomes seized of real property, and not before. It cannot be said with propriety that she has, until then, even an <mask> right. She simply enjoys the possibility of being thereafter endowed (Wait v. Wait, 4 N. Y., 99). If any interest may be aptly described as “uncertain, contingent and remote,” it would seem to be the interest *45of Mrs. Scherrer in the present controversy. In view of these considerations, I must deny the motion to strike out her testimony.


Section 176 of the Domestic Relations Law bears the catch-line "Property rights in action by wife” and provides as follows: "If, in an action for divorce brought by the wife, when final judgment is rendered dissolving the marriage, the plaintiff is the owner of any real property, or has in her possession or under her control any personal property or thing in action which was left with her by the defendant or acquired by her own industry or given to her by bequest or otherwise, or if she is or thereafter may become entitled to any property by the decease of a relative intestate, the defendant shall not have any interest therein, absolute or contingent, before or after her death. Where final judgment in such an action is rendered dissolving the marriage, the plaintiff’s <mask> right of dower in any real property of which the defendant then is or was theretofore seized is not affected by the judgment.”


In People v. Aguilar (1997) 16 Cal.4th 1023, 68 Cal.Rptr.2d 655, 945 P.2d 1204 ( Aguilar ), the California Supreme Court explained why-"except in those cases involving an inherently dangerous weapon" ( id. at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204 )-the determination of whether an <mask> is committed under section 245(a)(1)'s deadly weapon clause or force-likely clause is "functionally identical." ( Aguilar , at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204.) The Aguilar court reasoned a noninherently dangerous object becomes a deadly weapon (thereby satisfying section 245(a)(1)'s deadly weapon clause) only when it is used in a manner likely to produce death or great bodily injury (thereby also satisfying the force-*691likely clause). ( Aguilar , at p. 1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204.)4


APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Reversed in part and affirmed in part. Jason M. Howell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent. ____________________ Denis Vasquez was convicted following a jury trial of simple assault (Pen. Code, § 240)1 as a lesser included offense of assault with a deadly weapon (§ 245, subd. (a)(1)), first degree burglary (§ 459) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), with a true finding that Vasquez had personally inflicted great bodily injury during the commission of the burglary and <mask>. On appeal Vasquez contends, and the Attorney General agrees, that the simple assault conviction should be reversed because that offense was necessarily included within the aggravated assault for which Vasquez was also convicted. We also agree with Vasquez and reverse the simple assault conviction. FACTUAL AND PROCEDURAL BACKGROUND 1. The Information Vasquez was charged in an information filed July 5, 2017 with assaulting Ramiro Avila with a deadly weapon, a knife, on April 4, 2016 (count 1); first degree burglary on that date by entering a home occupied by Avila with the intent to commit a felony (count 2); and assaulting Avila by means of force likely to produce great bodily injury (count 3). The information specially alleged as to counts 2 and 3 that Vasquez had personally used a deadly or dangerous weapon in the commission of the offenses (§ 12022, subd. (b)(1)) and as to all three counts that Vasquez had personally inflicted great bodily injury upon Avila in the commission of the offenses (§ 12022.7, subd. (a)).


In Crumpton , the Court of Criminal Appeals held that the trial court properly entered a deadly weapon finding because the jury, in finding the defendant guilty of criminally negligent homicide, necessarily found that he used a vehicle as a deadly weapon. 301 S.W.3d at 664. The court reasoned: "If a deadly weapon is anything that is capable of causing death or serious bodily injury, and the indictment alleges that the defendant caused death or serious bodily injury [by striking the complainant's vehicle with her vehicle], and the jury finds the defendant guilty as charged in the indictment, the verdict is necessarily a finding that a deadly weapon was used." Id. at 665 ; see also Blount v. State , 257 S.W.3d 712, 714 (Tex. Crim. App. 2008) (holding that allegation of <mask> by causing serious bodily injury with weapon or instrument "necessarily implies the use of a deadly weapon," which is anything that in the manner of its use or intended use is capable of causing serious bodily injury).


On February 25, 2019, [Appellant] was arrested on the following charges: <mask> (18 Pa.C.S. § 2702(a)(1)); conspiracy to commit aggravated assault (18 Pa.C.S. § 903); robbery-inflict serious bodily injury (18 Pa.C.S. § 3701 (a)(1)(i)); conspiracy to commit robbery-inflict serious bodily injury (18 Pa.C.S. § 903); firearms not to be carried without a license (18 Pa.C.S. § 6106 (a)(1)); and person not to possess, use, manufacture, control, sell or transfer firearms (18 Pa.C.S. § 6105(a)(1)). On March 1, 2021, [Appellant] filed a motion in limine to exclude forensic firearm and toolmark testimony which the [trial c]ourt denied on March 9, 2021. The Commonwealth provided [Appellant’s] counsel with the report, photographs, notes, and curriculum vitae of the Pennsylvania State Police firearm and toolmark examiner, David A. Krumbine. On March 29, 2021, the [trial c]ourt denied [Appellant’s] motion to dismiss for lack of speedy trial. Prior to the start of trial, on March 29, 2021, the Commonwealth withdrew both conspiracy counts. Following a four-day jury trial which ended April 1, 2021, [Appellant] was found guilty of aggravated assault and carrying a firearm without a license and not guilty of robbery. Immediately following the verdict, a bench trial was held on the charge of a ____________________________________________


It wasn't a brand new fact pattern; it was a continuation of the same fact pattern. The alleged <mask> occurred, the shooting occurred, and then there was a subsequent effort alleged--alleged subsequent effort of retaliation against the complainant[.] The trial court then took the expunction request under advisement and issued an order the following day denying Appellant's request for the expunction of his records and files related to his acquitted aggravated assault offense.


PER CURIAM: Davino Marquan Daniels timely appeals, arguing the district court abused its discretion by denying his motions to withdraw his pleas and that provisions of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., violate his constitutional rights. Daniels pled guilty to one count of aggravated robbery and one count of <mask> in 19CR656 and one count of violating the Kansas Offender Registration Act (KORA), K.S.A. 2020 Supp. 22-4901 et seq., in 19CR796. Prior to sentencing, Daniels moved to withdraw his guilty pleas in both cases. Upon our extensive review of the record, we find the district court did not abuse its discretion when


The trial court’s charge was in accord with Commonwealth v. Spencer, 263 A.2d 923 (Pa. Super. 1970). Appellant does not argue that counsel should have objected to the Spencer charge. The record reflects that the jury commenced further deliberations at 11:15 a.m. N.T. Trial, 2/2/16, at 14. Shortly thereafter, they returned to the courtroom with two questions, and returned to deliberations at 11:45 a.m. Id. at 14-15. At 1:45 p.m., the jurors entered the courtroom with a unanimous verdict. Id. at 16-18. The foreperson represented that all twelve jurors agreed. Id. at 16. They found Appellant not guilty of attempted murder of Robert Edwards, guilty of conspiracy to murder Robert Edwards, guilty of <mask> of Robert Edwards, not guilty of attempted murder of Aaron Douglass, guilty of


On September 30, 2016, the State filed an amended felony information charging Hill as a habitual offender with aggravated robbery, aggravated residential burglary, and <mask>. Before trial, the State filed a motion in limine to exclude testimony pursuant to Arkansas Rules of Evidence 404(a)(2) and 405. In its motion, the State requested that the circuit court grant the motion to prevent the defense from calling witnesses to provide testimony regarding specific instances of Dillard's conduct. The circuit court granted the motion.


After completing the remaining United States Sentencing Guidelines Manual (“Guidelines”) calculations, the district court found Lopez-Castillo had a total offense level of 25 and a criminal history category of VI, resulting in a recommended sentencing range of 110 to 120 months of imprisonment. The district court then sentenced Lopez-Castillo to 102 months of imprisonment. Lopez-Castillo appeals, challenging only the district court’s conclusion that <mask> under Ariz. Rev. Stat. § 13-1204(B) qualifies as a crime of violence.


This is not the first time our court has relied on Simons when concluding a instrument *682that is not inherently deadly was used as a deadly weapon. In Page , supra , 123 Cal.App.4th 1466, 20 Cal.Rptr.3d 857, the defendant and his female accomplice robbed the victim and, after rifling the victim's pockets for his wallet, the female accomplice held a sharp pencil to the victim's neck and told him not to call the police. ( Id . at pp. 1468-1469, 20 Cal.Rptr.3d 857.) The defendant *332challenged his conviction for assault with a deadly weapon contending the pencil was not a deadly weapon. ( Id . at p. 1470, 20 Cal.Rptr.3d 857.) Relying on Simons and similar cases, this court concluded the accomplice used the pencil in such a manner that it was capable of producing serious bodily injury and, therefore, that under the facts of that case the pencil was a deadly weapon as a matter of law. ( Id . at pp. 1470-1473, 20 Cal.Rptr.3d 857.) We rejected the suggestion that Simons was distinguishable simply because it did not address the <mask> statute. " '[N]o sound reason appears to define a "deadly weapon" for purposes of [Penal Code] section 245 differently than it is defined in other contexts under other statutes.' [Citations.] Cases discussing the definition of a deadly weapon routinely rely on other cases dealing with different statutes. [Citations.]" ( Page , at p. 1472, 20 Cal.Rptr.3d 857.)


Hernandez is mistaken. Unless the legislature expressly defines an allowable unit of prosecution for a particular criminal offense, the gravamen or gravamina of the offense best describe the allowable unit of prosecution. Garfias v. State , 424 S.W.3d 54, 61 (Tex. Crim. App. 2014). The legislature has not expressly defined the unit of prosecution for <mask> with a deadly weapon, but we have determined that the offense is result oriented and that the gravamina of the offense are the victim and the bodily injury that was inflicted. Johnson , 364 S.W.3d at 298, n.45. Consequently, because the manner and means by which an aggravated assault is effectuated is not a unit of prosecution for aggravated assault, nor does it describe a unit of prosecution for aggravated assault, the manner-and-means allegation is not included in the hypothetically-correct jury charge and should be disregarded in a legal-sufficiency analysis. We reaffirm our conclusion on original submission that, assuming that the State had to prove two offenses, under Johnson , the variance between the manner-and-means alleged in the aggravated-assault-with-a-deadly-weapon count and the proof at trial is only an immaterial non-statutory allegation.1


"The concept of proportionality is central to the Eighth Amendment." Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). Embodied in the Constitution's ban on cruel and unusual punishments is the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910) (sentence of 15 years to hard and "painful" labor for submitting false invoice held cruel and unusual). But when a punishment falls within a legislatively prescribed range, the judge or jury's selection of a particular sentence is generally unassailable, subject only to "exceedingly rare" circumstances when the sentence is grossly disproportional. Barrow v. State , 207 S.W.3d 377, 381 (Tex.Crim.App. 2006). And there is no doubt here that the forty year sentence fell within the punishment range for this crime. Tex.Penal Code Ann. § 22.02(b) (West 2011)(<mask> is generally a second degree felony); Tex.Penal Code Ann. § 12.42(b) (West Supp. 2016)(second degree felony punished as first degree felony when defendant has prior felony conviction); Id. at § 12.32(a)(West 2011) ("An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.").


A debate arose at sentencing as to whether the firearm used in connection with another felony must be the same firearm that was the subject of the felon-in-possession charge. After a brief recess, Dexter’s attorney conceded that the firearm need not be the same. Dexter appears to have forfeited that argument, but in any event, the district court concluded that the weapon used in connection with the <mask> was the same weapon subject to the felon- in-possession charge. Dexter does not argue that the alleged conduct—firing a shotgun into Sesley’s apartment—would not be, if true, a felonious aggravated assault. We therefore assume that the conduct qualifies as a felony.


On review before this Court, the majority has concluded that the court of appeals erred by failing to consider all of the evidence presented at trial that might have supported the <mask> offense alleged in the indictment when conducting its legal sufficiency analysis. Specifically, the court of appeals failed to consider the evidence supporting what the majority views as the second assaultive event-evidence showing that Appellant used one hand to choke Melanie while simultaneously using the other hand to pour water down her throat.


A. Flores argues that his <mask> conviction is not an aggravated felony because he was not sentenced to a “term of im- prisonment” of at least one year. We disagree. Flores’s sentence to five years confinement, to be served on probation, was a qualifying “term of imprisonment” under Section 1101(a)(43)(F). We have held that, for the purpose of defining “aggravated felony” under the INA, a “term of imprisonment” includes “all parts of a sentence of imprisonment from which the sentencing court excuses the de- fendant,” including those parts probated under state law. United States v. Ayala-Gomez, 255 F.3d 1314, 1316–17 (11th Cir. 2001). Flores’s term of imprisonment thus included the entire five-year confinement term to which he was initially sentenced. Accord- ingly, on remand, the BIA need not revisit the “term of imprison- ment” issue. B. Flores also argues that his aggravated assault conviction is not an aggravated felony because it does not qualify as a crime of violence. A crime of violence is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). Importantly, decisions analyzing the definition of “violent felony” in the Armed Career Criminal Act’s elements clause “provide substantial guid- ance” in analyzing the definition of “crime of violence” under 18 U.S.C. § 16(a) because the two provisions are practically identical. United States v. Gonzalez-Lopez, 911 F.2d 542, 546 n.4 (11th Cir. USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 7 of 10


Pursuant to Penal Law § 120.11, a person is guilty of <mask> on a police officer when “with intent to cause serious physical injury to a person whom he knows or reasonably should know to be a police officer . . . engaged in the course of performing his official duties, he causes such injury by means of a deadly weapon or dangerous instrument.” In contrast, a person is guilty of assault on a police officer “when, with intent to prevent a . . . police officer . . . from performing a lawful duty, he causes serious physical injury to such . . . police officer” (Penal Law § 120.08). The element of intent with respect to the crime of aggravated assault upon a police officer relates to the causing of physical injury, while the element of intent with respect to the crime of attempted assault of a police officer “relates not to the result proscribed by the statute — causing the injury — but to the circumstances which make that result one for which defendant is strictly liable” (People v Campbell, 72 NY2d 602, 605 [1988]). Since “the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met” (Green, 56 NY2d at 431, citing People v Graham, 44 NY2d 768 [1978]).


20. The Accused posted the videos online “as re- venge” because he believed SPC [V.G.] might be ro- mantically involved with members of his unit. The Accused told [agents of the Criminal Investigation Command] that he posted the videos “roughly be- tween 30 April and 5 May 2018.” The Accused’s con- duct had a reasonably direct and palpable connec- tion to a military mission or military environment. In conjunction with the Accused’s profile name, “cbhiser02” other Soldiers could have reviewed the video and known SPC [V.G.] was depicted, particu- larly as her distinctive, military-style bun was visi- ble. At the time of the offenses, SPC [V.G.’s] legal [last] name was . . . Hiser. She was, and is, an active duty Soldier. SPC [V.G.] and PFC Hiser were well- known as a dual-military couple within the Fort Drum military environment. Based on the entirety of the stipulation of fact and Appel- lant’s answers during the providence inquiry, a military judge sitting as a general court-martial found Appellant guilty of the three specifications of wrongfully broadcasting intimate visual images quoted above, in violation of Article 117a, UCMJ, 10 U.S.C. § 917a, and also of one specification of dis- respecting a superior commissioned officer, one specification of <mask>, one specification of assault consum- mated by a battery, and one specification of communicating a threat, in violation of Articles 89, 128, and 134, UCMJ, 10 U.S.C. §§ 889, 928, 934 (2018). The military judge sentenced Appellant to a reduction to the grade of E-1, confinement for thirty-nine months, and a dishonorable discharge from the service. In accordance with the terms of the pretrial agree- ment, the convening authority approved only so much of the adjudged sentence as provided for a reduction to the grade of E-1, confinement for three years, and a dishonorable dis- charge. The ACCA affirmed the findings of guilty and sen- tence. United States v. Hiser, No. ARMY 20190325 (A. Ct. Crim. App. Feb. 10, 2021). We granted review of the following question: “Whether the military judge abused her discretion by accepting Appellant’s guilty plea to a violation of Article 117a, UCMJ, when Appel- lant posted intimate videos of a person under circumstances where the person was not readily identifiable and there was no reasonable connection to the military environment.”


Sufficient evidence supported the conviction. We thus reject Mitchell's contentions that (1) he lacked the requisite mental *787state to be found guilty of <mask> because "he did not intend to harm the deputies," and (2) the State did not prove beyond a reasonable doubt that the officers were in fear of imminent bodily injury. We address each in turn.


Defendant alleges that Federal law enforcement officers are not included in the list of police or peace officers in CPL 1.20 (34) and 2.10, which name 72 separate State and local law enforcement officers and agencies. He argues that that omission suggests that the Legislature intended to exclude them as subjects of <mask> (Penal Law § 120.11), and moves to dismiss counts 4, 5 and 6, which charge violations of section 120.11.


Before Smith, Elrod, and Oldham, Circuit Judges. Per Curiam: On remand from the Supreme Court, this case asks us to reconsider whether Gomez Gomez’s conviction for <mask> in Texas qualifies as an “aggravated felony” under 8 U.S.C. § 1326(b)(2). We agree with the parties that, in light of Borden v. United States, 141 S. Ct. 1817 (2021), it does not. Accordingly, we REMAND to the district court to REFORM the judgment. Case: 17-20526 Document: 00516170143 Page: 2 Date Filed: 01/18/2022


intimidation[ ]” which involved previous charges. The State also elicited testimony at trial that Reyes was on probation on the night in question, and therefore was prohibited from consuming alcohol and being present in a bar, which Reyes had been prior to the incident with Marina. After the State rested, the district court dismissed count four of the information—malicious injury to property. The jury convicted Reyes of domestic battery, attempted strangulation, and <mask>. The district court imposed an aggregate sentence of five years fixed, followed by five years indeterminate. Reyes appealed to the Idaho Court of Appeals, which affirmed his convictions. See State v. Reyes, No. 46439, 2020 WL 3496329 (Idaho Ct. App. June 29, 2020). This Court granted Reyes’ petition for review. II. STANDARD OF REVIEW “When reviewing a case on petition for review from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the decision of the trial court.” State v. Chernobieff, 161 Idaho 537, 539, 387 P.3d 790, 792 (2016) (quoting State v. Lute, 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011)). “This Court is not merely reviewing the correctness of the Court of Appeals’ decision; rather, this Court is hearing the matter as if the case were on direct appeal from the trial judge’s decision.” Gilpin-Grubb v. State, 138 Idaho 76, 79, 57 P.3d 787, 790 (2002). Marsalis v. State, 166 Idaho 334, 458 P.3d 203, 208 (2020). “The question of whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion.” State v. Hall, 163 Idaho 744, 781, 419 P.3d 1042, 1079 (2018) (quoting State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006)). To determine if a trial court abused its discretion, this Court considers whether the trial court (1) perceived the issue as one of discretion, (2) acted within the outer boundaries of that discretion, (3) acted consistently with the legal standards applicable to the specific choices available to it, and (4) reached its decision by an exercise of reason. State v. Abramowski, 164 Idaho 857, 860, 436 P.3d 678, 681 (2019) (citing Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). III. ANALYSIS On appeal, Reyes contends that multiple errors occurred during his trial, two of which were conceded by the State. Because these multiple errors rendered Reyes’ trial unfair, we vacate his convictions under the cumulative error doctrine.


Appellant was originally indicted for <mask> on a family member with a deadly weapon. The indictment alleged that Appellant caused serious bodily injury to Rene Caso. Testimony would later reveal that Caso lost his right eye as a result of the assault. The original indictment identified the deadly weapon as either a vase, a tissue box, or Appellant's hand. The State later struck the deadly weapon language from the indictment. But the State also enhanced the punishment range by claiming that Appellant had previously been convicted of another felony offense some seven years before the date of the aggravated assault.


The United States Probation Office recommended classifying Lawson as a career offender because he had two prior state court convictions—one for a crime of violence (a 2011 Florida conviction for <mask> of a law enforcement officer with a firearm) and another for a controlled substance offense (a 2004 Florida conviction for possession, sale, or delivery of cocaine within 1000 feet of a place of worship). See U.S.S.G. § 4B1.1(a). As USCA11 Case: 20-14776 Date Filed: 01/14/2022 Page: 4 of 17


In January 2021, Cooper's probation officer reported that he had violated the conditions of his probation in several ways. The alleged violations included committing the crimes of criminal damage to property, <mask>, and aggravated battery against his wife; failing to provide proof of completing an anger-management class, as recommended by his domestic-violence assessment; failing to provide proof of a job search; and not making scheduled court payments. The court prohibited Cooper from having contact with his wife and scheduled an evidentiary hearing. In late March, before the evidentiary hearing, Cooper's probation officer filed an additional probation-violation warrant, stating Cooper committed the crimes of driving while suspended and possession of marijuana and alleging Cooper had violated the court's no-contact order on various occasions.


Appellant was convicted by [a] jury on September 12, 2002, of first-degree murder, conspiracy to commit homicide, kidnapping, conspiracy to commit kidnapping, [unlawful restraint, false imprisonment, <mask>, tampering with or fabricating physical evidence, and persons not to own or possess firearms. 2] Appellant was sentenced that [same] day to life imprisonment for the murder conviction, but sentenc[ing] was deferred on the remaining convictions. On November 22, 2002, Appellant was sentenced to an aggregate sentence of [46] to [92] years[’] ____________________________________________


The First Court of Appeals, in an opinion authored by Chief Justice Radack, disagreed. "[O]nce the trial court included self-defense in the abstract portion of the charge," the court said, self-defense became "law applicable to the case."10 This meant that "the trial court was required to apply that defensive issue properly" to the entire case-including the lesser offense of <mask>.11 Analyzing a number of factors, the court went on to determine that the omission of a self-defense instruction on aggravated assault was egregiously harmful, and reversed Mendez's aggravated-assault conviction.


Although both the indictment and the jury charge listed two potential complainants—“[Jane] and/or [Kyle]”—Wahl did not object to the charge on this basis and he does not raise the issue on appeal. We decline to address the issue sua sponte. Cf. Mohler v. State, No. 02-15-00024-CR, 2016 WL 5442066, at *2 n.3 (Tex. App.—Fort Worth Sept. 29, 2016, pet. ref’d) (mem. op., not designated for publication) (implying that defendant was convicted of two offenses under one count of one indictment but declining to address the issue sua sponte). The indictment is ambiguous regarding which subsection of the harassment statute each factual allegation of harassment relies upon, but the trial court charged the jury using the definition of harassment in Section 42.07(a)(2). Wahl interprets the indictment’s reference to “bodily injury” as an implicit reference to assault or <mask>, and the State does not appear to challenge this interpretation We therefore assume without deciding that the indictment implicitly identified assault or aggravated assault as one of the relevant offenses Wahl threatened to commit against Kyle.


On appeal, Venegas raises four issues: (1) the computer-generated animation of the accident was unreliable because it was based on estimates and not actual measurements; (2) the trial court erred in denying Venegas's motions for continuance; (3) the evidence was legally insufficient to support the jury's verdict of <mask> based on Venegas's driving "too fast;" and (4) the trial court erred in pronouncing sentence, a critical stage of the trial, without providing Venegas assistance of counsel.


At the close of evidence, appellant requested an instruction on deadly conduct as a lesser-included offense to the charged offense of <mask> on a public servant. See TEX. PENAL CODE §§ 22.05(a) ; 22.02(a)(2), (b)(2)(B). The trial court denied the request. The jury found appellant guilty of all three charges and the enhancement paragraphs true, and the trial court assessed punishment at eighteen years' confinement for both the evading arrest and aggravated assault on a public servant charges, and ten years' confinement for possession of heroin.


It appears from appellant's brief that he contends the evidence is insufficient because the State failed to prove the conduct alleged in the information: "striking the complainant with his hand." However, the State was not required to prove the manner and means of causing the injury alleged in the information. See Johnson v. State , 364 S.W.3d 292, 298-299 (Tex. Crim. App. 2012) (holding that the State was not required to prove the allegation in the indictment for <mask> that the defendant hit the victim with his hand or twisted the victim's arm with his hand because any variance between the allegation and proof at trial would be immaterial); cf. Phelps v. State , 999 S.W.2d 512, 518 (Tex. App.-Eastland 1999, pet. ref'd) (holding that the hypothetically correct jury charge for injury to a child would not include the descriptive phrase "with his hand" because the phrase unnecessarily increased the State's burden of proof). Regardless, the evidence is sufficient to support the pleaded manner and means of the cause of the injury because the complainant said during the 911 call that appellant "beat" her with his "fist."


I agree with the majority's decision to reverse the judgment of the court of appeals and reinstate Appellant's conviction. The evidence was sufficient to support the jury's verdict of <mask> with a deadly weapon. I write separately, however, because I arrive at that conclusion via a different route than the majority. In holding that the evidence was sufficient to support the conviction, the majority opines that the variance between what was alleged in Count 2 of the indictment and what was proved at trial is immaterial. I would instead hold that there was no variance at all.


For example, felony murder can be based upon the underlying felony of <mask>, which can be a result-oriented offense. Lawson v. State , 64 S.W.3d 396, 396-97 (Tex. Crim. App. 2001) (holding that intentional and knowing aggravated assault can serve as the predicate felony for felony murder); see also Landrian , 268 S.W.3d at 537 (noting that aggravated assault is a result-oriented offense). But it can also be based upon the offense of felony DWI which is not. Lomax v. State , 233 S.W.3d 302, 309 (Tex. Crim. App. 2007) (holding that felony DWI can serve as the predicate offense for felony murder); see also Ex parte Benson , 459 S.W.3d 67, 81 (Tex. Crim. App. 2015) (noting that the gravamen of the offense of felony DWI is either a conduct-oriented offense or a circumstances-oriented offense). The dissent argues that treating the offense of engaging as a circumstance-oriented crime would abrogate Ngo v. State , because it would treat credit-card-abuse as a circumstance-oriented crime rather than a conduct-oriented crime. But the dissent's interpretation is vulnerable to the same criticism. Treating engaging as a conduct-oriented crime, as the dissent argues, would have the effect of treating result-oriented predicate offenses as conduct-oriented offenses. Using the dissent's logic, this would abrogate precedent such as Landrian, for example, which holds that jury unanimity is not required regarding the different manner and means of committing a result-oriented offense. 268 S.W.3d at 541-42. Ultimately, this cautions us against treating engaging in organized criminal activity as either a conduct-oriented crime or a result-oriented crime.


It is [] clear that [trial counsel’s] advice that [Appellant] should not testify at trial was based upon an erroneous legal conclusion that [Appellant’s] <mask> conviction was admissible at trial if [Appellant] testified. The conviction was not for a crime of falsehood nor was it admissible for any other reason (both of which were conceded by [trial counsel] and not rebutted by the Commonwealth). In fact, the Commonwealth in its[] cross- examination of [trial counsel] only attempted to imply that the conviction may have become admissible if [Appellant] had opened the door to it by testifying that he was not a violent person. Such an implication is a theory at best and in no way can serve as evidence that it would have been a basis for [Appellant] to not testify. [Trial counsel] in his testimony explicitly denied that this was even a consideration. Based upon the foregoing it is not possible for counsel's advice for [Appellant] to not testify to be advice that was reasonable and designed to effectuate [Appellant’s] best interest.


1 The shooting occurred on July 2, 2017. In August 2017, a Barrow County grand jury indicted Appellant for malice murder, felony murder, <mask>, aggravated cruelty to animals, and two counts of possession of a firearm during the commission of a felony. In August 2019, a jury found Appellant guilty on all counts. The trial court sentenced Appellant 1. The evidence presented at trial showed that Appellant


The Arkansas Department of Human Services (DHS) took a seventy-two-hour hold on the children on June 30, 2016, after learning that appellant had threatened to "shoot the whole place up" while under the influence of drugs and, at one point, pointed a gun at S.S. Although the incident began as a domestic situation between Madison and appellant, Madison did not want a protection order. Therefore, the children were removed due to abuse, neglect, and parental unfitness. An arrest warrant was subsequently issued for appellant for <mask> on a family or household member and terroristic threatening. DHS filed a petition for emergency custody and dependency-neglect on July 5, 2016. An ex parte order for emergency custody was filed the same day.


On appeal, Sampson argues there was insufficient evidence to support his aggravated-assault convictions. A person commits <mask> if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. § 5-13-204(a)(2) (Repl. 2013). Sampson further argues he was acting in self-defense, and the provisions of section 5-13-204 do not apply to a person acting in self-defense or the defense of a third party. Ark. Code Ann. § 5-13-204(c)(2). Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Green v. State , 2011 Ark. App. 700, 2011 WL 5562803. The circuit court instructed the jury on justification. Sampson contends the State failed to disprove his justification defense beyond a reasonable doubt. Neither of these sufficiency arguments is preserved for appellate review.


The jury was unable to reach a verdict on kidnapping, and the court declared a mistrial on that charge. The jury found appellant guilty of aggravated residential burglary, <mask> on a family or household member, and first-degree terroristic threatening. They further found that he had employed a firearm to commit each of these three felony offenses. As noted above, appellant received an aggregate sentence of life plus fifteen years' imprisonment, as well as a fine. This appeal followed.


The more serious crime of <mask> in violation of Penal Code section 245 can be committed in a number of ways. Three types of aggravated assault are relevant here: (1) by means of force likely to produce great bodily injury, (2) by means of an inherently deadly weapon, and (3) by means of an object not designed to be a weapon but alleged to be a deadly weapon as used . The first and third type require a *685showing of the amount of force the defendant used during the assault. "[T]he jury's decisionmaking process in an aggravated assault case ... is functionally identical regardless of whether, in the particular case, the defendant employed a weapon alleged to be deadly as used or employed force likely to produce great bodily injury; in either instance, the decision turns on the nature of the force [the defendant] used ." ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204, italics added.) Only the second variety, assault with an inherently deadly weapon, requires no showing of force. Merely using the weapon to attempt an injury is enough.


B. Appeal and Discretionary Review *551On appeal, Mendez complained that the trial court's instruction on self-defense was "erroneous and incomplete."4 Mendez pointed out that the application paragraph permitted the jury to acquit Mendez on self-defense grounds only if it first determined that he "did cause the death of Jacob Castillo, as alleged."5 This instruction, Mendez argued, necessarily suggested that self-defense could serve to justify the offense of murder, but not the lesser offense of <mask>. Candidly acknowledging that he had failed to object to the charge at trial, Mendez observed that, in Almanza v. State , we said that even un-preserved jury-charge error may "call for reversal," so long as the appellant can show that the error caused "egregious harm."6 Mendez undertook to demonstrate egregious harm by arguing that, had the jury been fully and correctly instructed on self-defense, he likely would have been acquitted of both crimes.


In 2011, however, the two variants of <mask> under former section 245, subdivision (a)(1), were placed in separate paragraphs of subdivision (a). (Stats. 2011, ch. 183, § 1.) The reason for the change was to make it easier going forward to determine whether a defendant's prior convictions for aggravated assault under section 245, subdivision (a), involved conduct subjecting the defendant to certain recidivist provisions, because enhancements such as the Three Strikes law applied to prior assault convictions only when those convictions involved the use of a deadly weapon. ( Jonathan R. , supra , 3 Cal.App.5th at p. 971, 208 Cal.Rptr.3d 159 ; see *1029People v. Banuelos (2005) 130 Cal.App.4th 601, 604-607, 30 Cal.Rptr.3d 315.) There was no need to similarly amend section 245, subdivision (c), because an aggravated assault against a peace officer is a serious felony and qualifies as a "strike" regardless of whether a deadly weapon was used. (§ 1192.7, subd. (c)(31); People v. Semien (2008) 162 Cal.App.4th 701, 709-710, 75 Cal.Rptr.3d 880.)


In Boorman v Deutsch, after a remand to reassess as excessive compensatory and punitive damages of $5,000,000 awarded upon default (152 AD2d 48, 55 [1st Dept 1989]), a second inquest or assessment of damages was held on August 13, 1990 in Supreme Court, New York County (index No. 29609/84), in iA Part 2, before Justice Eugene L. Nardelli. Justice Nardelli thereafter awarded $1,000,000 past compensatory damages; $750,000 future compensatory damages plus $1,000,000 punitive damages for sexual and <mask> over an evening and a night for which defendant was convicted of two felonies in New Jersey, following testimony by plaintiff and a psychologist. The plaintiff and defendant had renewed a prior social and sexual dating relationship which turned violent.


1 The crimes occurred on September 5, 2004. In December 2004, a Fulton County grand jury indicted Terrell, along with Kelvin Gilliam, Dwight Parks, and Michael Stinchcomb, for malice murder (Count 1), felony murder predicated on <mask> (Count 2), aggravated assault with a deadly weapon (Count 3), aggravated assault against Tamara Ross, D. R., G. R., Anthony Taylor, Michael Mitchell, Keretesha Hines, Unita Hines, Lisa Johnson, A. H., Charlene Thompson, Charlie Nixon, and Orlando Wimbley (Counts 4-15), and possession of a firearm during the commission of a felony (Count 17). Terrell was separately indicted on one count of possession of firearm by a convicted felon (Count 18), and Stinchcomb was separately charged with an additional count of aggravated assault against Janet Lymon (Count 16). Prior to trial, Parks pleaded guilty to Count 3. A joint trial of Terrell, Gilliam, and Stinchcomb was held from April 4 to 14, 2005. The trial court entered a directed verdict of acquittal on Counts 12, 13, 14, and 15. The jury found Terrell guilty of Counts 2, 3, 5, 6, 8-11, and 17, but not guilty of Counts 1, 4, 7, and 18. The jury also found Gilliam guilty of Counts 5, 6, and 8- 11 and Stinchcomb guilty of Counts 5, 6, 8-11, and one count of simple battery as a lesser included offense of Count 13; their convictions are not at issue in to a new trial based on the inordinate delay of his appeal, the State’s


Navarro was fifteen years old when he was charged with murder and two counts of <mask>. He was at a party. When the party got too large, the host told a group of people, including Navarro, to leave because he did not know them. An altercation ensued during which three people were stabbed, including the host, who died at the scene. Navarro fled in a car with his friends and returned to his home later that night. The next morning, detectives showed up at Navarro's home after they were told that he may have stabbed the people at the party. Navarro was eventually taken into custody.


We determine the basis of a jury's verdict for Dunn purposes by applying our variance law, as Hernandez alludes to in his brief. In line with that jurisprudence, and as applied to Dunn , a non-statutory allegation that does not describe a unit of prosecution does not constitute a basis for the jury's verdict because it is not part of the legal or factual theory submitted to the jury, even if it is included in the jury charge. The State's legal theory was that Hernandez committed <mask> with a deadly weapon. The State's factual theory was that Hernandez exhibited or used water as a deadly weapon while he caused Molien bodily injury, and the evidence *330supported that theory. The State was not bound to prove how Hernandez assaulted Molien or how he exhibited or used water as a deadly weapon as part of its factual theory. There might be a Dunn problem if, for example, the State had alleged that Hernandez caused a specific bodily injury, and the jury convicted him on that basis, but an appellate court revised the basis of that conviction because, while there was insufficient evidence to support the pled injury, there was sufficient evidence of another injury to support the conviction. This is because the allegation would be a non-statutory allegation that describes a unit of prosecution for aggravated assault, and in that scenario, Hernandez's conviction would have been sustained based on a factual theory not alleged in the indictment. Similarly, if Hernandez had been indicted for aggravated assault with a deadly weapon, and the jury convicted him of that offense, but the evidence showed only that he caused the victim serious bodily injury, not that he used a deadly weapon, an appellate court would err in upholding the conviction based on the serious bodily injury because that "legal theory" was not presented to the jury.


THE COURT: Back on the record. Mr. Reyes, we have been off the record, and the Court has attempted to explain to you what an <mask> is, that if there is an allegation of serious bodily injury, that makes the assault aggravated. Now, the State has stricken the language concerning a deadly weapon. THE DEFENDANT: Yes. THE COURT: But because you have a prior felony conviction, that elevates your offense to a first-degree punishment range of from 5 years to 99 years or life imprisonment. THE DEFENDANT: Yes. THE COURT: Knowing that, would you like to continue with this open plea today? THE DEFENDANT: Okay. Yes. The court then heard testimony from Rene Caso (the victim), Claudia Rodas (the fiancé of Mr. Caso), and Julia Castellanos (Rene Caso's mother). The trial court also took testimony from Appellant. After argument of counsel, the trial court assessed a forty year prison sentence and a $5,000.00 fine.


Examining the elements and descriptive averments in the charged offense of <mask> as compared to the elements of deadly conduct, we observe at the outset that the offenses employ different terminology. Whereas the charged offense requires proof that appellant threatened another with "imminent bodily injury" while using or exhibiting a motor vehicle as a deadly weapon, the offense of deadly conduct requires proof that the actor engaged in conduct that placed another in "imminent danger of serious bodily injury." The State maintains that these differences in terminology show that deadly conduct is not, as a matter of law, a lesser-included offense of aggravated assault as charged, but appellant argues that the elements are functionally equivalent because the proof required to establish aggravated assault as alleged here necessarily includes all the proof necessary to establish the elements of deadly conduct. To resolve this dispute, we next turn to this Court's holding in Bell .


*868State v. Allen , 346 S.W.3d 713, 716 (Tex. App.-Austin 2011, pet. ref'd) ; see also Ex parte Smith , 185 S.W.3d 887, 889, 893 (Tex. Crim. App. 2006) (noting indictment for <mask> that did not mention more specific crime of hazing was "valid on its face"). Likewise, the Court of Criminal Appeals has held that when the charging instrument was unobjectionable on its face, it was only after the State's evidence disclosed the statutory provisions purportedly at issue that the basis for an in pari materia challenge became manifest. See Azeez, 248 S.W.3d at 194.


Reynolds appealed the judgment at issue here, which reflected his convictions for <mask> and kidnapping and imposed an aggregate sentence of life imprisonment. This court affirmed. Reynolds v. State , 2016 Ark. 214, 492 S.W.3d 491. The mandate issued on June 7, 2016, and under Rule 37.2(c)(ii), Reynolds's Rule 37.1 petition had to be filed within sixty days of that date. Jackson v. State , 2018 Ark. 209, 549 S.W.3d 346. The petition was marked as filed on November 28, 2016, or 143 days after the mandate issued. Reynolds's petition included an affidavit that stated he was incarcerated and identified the unit *871where he was incarcerated; stated that he was proceeding pro se; and indicated that the petition had been placed in the unit's legal-mail system on July 3, 2016, with first-class postage prepaid and addressed to the circuit clerk for filing. July 3, 2016, was twenty-six days after the mandate issued and well within the sixty-day limit in Rule 37.2(c)(ii).


In response to the terrorist attacks of September 11, 2001, effective December 21, 2005, the New York State Legislature, in an extraordinary session, enacted the Crimes Against Police Act.2 The act (L 2005, ch 765, as amended) supplemented the Penal and Criminal Procedure Laws by establishing the crimes *427of menacing of a police officer (Penal Law § 120.18), <mask> upon a police officer (Penal Law § 120.11), aggravated criminally negligent homicide (Penal Law § 125.11), aggravated manslaughter in the first degree (Penal Law § 125.22), aggravated manslaughter in the second degree (Penal Law § 125.21) and aggravated murder (Penal Law § 125.26), and increased the minimum sentences of imprisonment for certain offenses involving the assault of police officers.


4 The State also argues that Miller’s attorney reasonably may have elected to purse an all-or-nothing strategy by arguing self-defense rather than seeking an aggravated-assault instruction. The State reasons that if Miller had been successful on his self-defense claim, he would have been acquitted rather than potentially convicted of <mask>. However, Miller is not arguing that his attorney should have pursued aggravated assault rather than self-defense. Miller appears to argue that this is the unusual case where the evidence potentially supported both theories. If this were true, we would see no strategic reason to foregoing pursuing an aggravated-assault instruction. In such a case, the jury would have the option to find sudden passion or a fit of rage and serious provocation and to convict Miller of aggravated assault rather than felonious assault if it rejected self- defense. We see no potential downside to Miller in such a scenario. Here, however, Miller’s testimony does not support a finding that he acted out of sudden passion or in a fit of rage. Therefore, there simply was no basis for an aggravated-assault instruction.


[T]hat a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. For instance, depending upon attendant circumstances, it is possible for the act of striking another person with an object to meet the definitions of each of the crimes of: simple battery, OCGA § 16-5-23, a misdemeanor; aggravated battery, OCGA § 16-5-24, a felony; simple assault, OCGA § 16-5-20, a misdemeanor; <mask>, OCGA § 16-5-21, a felony; and malice murder, OCGA § 16-5-1, a felony. In such a circumstance, a defendant may be prosecuted for more than one crime. OCGA § 16-1-7 (a). However, the injustice that must be avoided is sentencing the defendant for more than one crime following his conviction of multiple crimes based upon the same act. When a defendant is so prosecuted, the principle of factual merger operates to avoid the injustice.


When the trial court charged the jury on the issue of self-defense in the abstract, it thereby declared that issue to be law applicable to the case. The jury was informed under what circumstances it should convict Mendez of <mask>. Self-defense being law applicable to the case meant that the trial court should also have informed the jury under what circumstances it should acquit him of that offense. We affirm the court of appeals' judgment.


The charged corporal injury and <mask> counts arose from events in August 2014. The police arrived at Amezcua's residence in response to a domestic violence call. Amezcua, who was crying, told the responding officer that she and defendant had argued after she refused to let him use her cell phone. He pushed her onto the couch, got on top of her, and grabbed her throat with his hand. Defendant choked her for a minute. She could not breathe, and she lost consciousness for a few seconds. When she regained consciousness, he told her not to say anything. She pushed him off her and tried to run away, and after a struggle with defendant, she escaped his grasp, left the residence, and called 911. She asked the officer to obtain a protective order for her, and he did so. Amezcua's neck was red and had a small abrasion, and she reported pain in her neck.


Details about the <mask> and robbery that resulted in his imprisonment are not in the record; however, it appears that Curtis has changed little while in prison. Curtis testified that while incarcerated, he has incurred several infractions including insolence to staff members, three refusals to obey orders, refusal of assignments, and two unexcused absences. Also, Curtis continued to fail to support or communicate with B.H. It is with this extensive background that Donna Posey, his mother, testified that it was her hope that when Curtis gets out of prison Curtis can step up to the plate and step into B.H.'s life and be a good person.


*419The defendant was first charged with the crimes of burglary in the first degree, assault in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and was released on bail. While these matters were pending on the Trial Calendar, the defendant was allegedly involved in a shoot-out with police officers. As a consequence of this incident, the defendant is now charged with the crimes of attempted <mask> upon a police officer, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.