Y. Decisions of other jurisdictions likewise uphold, without question, the validity of such an agreement 1. Sir William Scott declared in Lindo v. Belisario (161 Eng.Rep.530-535; 1 Hagg. Consist. 216, 230): “ According to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract; and, at the present time, it is not to be considered as originally and simply one or the other. It is a contract according to the law of nature, antecedent to civil institution, and which may take place to all intents and purposes, wherever two persons of different sexes engage, by mutual contracts, to live together. Our first parents lived not in political society, but as individuals, without the regulation of any institutions of that kind. * * * A marriage is not every casual commerce; nor would it be so even in the law of nature. * * * But when two persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation, — That, in a state of nature, would be a marriage, and in the absence of all civil and religious institutes, might safely be presumed to be, as it is popularly called, a marriage in the sight of God.” (See testimony of John J. Dillon.) 2. Likewise in Dalrymple v. Dalrymple (2 Hagg. Consist. 54, 69) the same judge stated: “ In the latter case of Collins and Jesson (3 Anne) it was said by Holt, Chief Justice, and agreed to by the whole Bench, that ‘ if a contract be per verba de prcesenti, it amounts to an actual marriage, which the very parties themselves cannot dissolve by release or other mutual agreement, for it is as much a marriage in the sight of God as if it had been in facie ecclesice.’ ” 3. In Hutchins v. Kimmett (31 Mich. 126; 18 Am. Rep. 164) the court declared: “ Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts; the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated.” 4. Marriage per verba de prcesenti is thus referred to in the note to Grigsby v. Reib (L. R. A. 1915E, 23): “ Where express present consent is clearly shown, marriage is in most instances, held to have been constituted. To constitute a marriage de. prce*138send, the parties must be in the presence of each other when the agreement is entered into, and there must be an agreement to become husband and wife immediately from the time when the mutual consent is given; but it need not be made in the presence of a witness, though without a witness it might be difficult to establish it.” Lord Cranworth in Campbell v. Campbell (L. R. 1 H. L. Sc. App. Cas. 182) said: “The parties may express the agreement by parol; they may signify it by whatever ceremony their whim or their taste or their religious belief may select; it is the agreement itself and not the form in which it is couched which constitutes the contract; and the words used or the ceremony performed are mere evidence of a present intention and agreement of the parties. The agreement may be written or oral, with or without witnesses and may be proved like any other contract.” 5. Judge Sanborn in Adger v. Ackerman (115 Fed. 124, 126) declared: “ Marriage is a civil contract. It is the agreement of one man and one woman, competent to contract, to then become and thereafter to be husband and wife so long as they both shall live. It differs from ordinary civil contracts in the fact that it may not be revoked or dissolved by the mutual consent or act of the parties. Like other agreements, however, it may be made without ceremonies, civil or religious, and it may be either express or implied. It may consist of a formal written instrument signed by the parties or of an express parol agreement between them. But neither documents nor spoken word is indispensable to its existence. An implied contract of marriage is as binding and effective as one expressed in words or spread upon parchment, and such a contract comes into being whenever the minds of the' parties meet in a common understanding of and consent to the present and future existence of the relation of husband and wife between them.” (See, also, Sharon v. Sharon, 75 Cal. 1; 16 Pac. 345; Meister v. Moore, 96 U. S. 76; Askew v. Dupree, 30 Ga. 173; Vincennes Bridge Co. v. Vardaman, 91 Ind. App. 363.) VI. The validity of the agreement is not impaired by reason of the fact that the decedent, barred by the divorce decree from marrying in New York during the lifetime of his former wife, went with the contestant to New Jersey to evade the inhibition that restricted him from marrying in this State. 1. The Court of Errors and Appeals of New Jersey (1890), passing upon a so-called interstate marriage, declared as follows (Smith v. Smith, 52 N. J. Law, 207, 213): “It having been thus shown, that by the law of Massachusetts this was a valid marriage between the demandant and Hezekiah B. Smith, the next question presented by the exceptions is, will this marriage be recognized in New Jersey where the demand of dower is made. It was said by this court, in Harral v. Harral (39 N. J. Eq. 279, 287) that ' the doctrine generally adopted and supported by *139reason and public policy is, that a marriage celebrated according to rites and ceremonies recognized by the laws of the country where the marriage takes place, is valid everywhere.’ * * * Certainly it is a law of comity between the different states of this country. This is the case even where the parties, being residents of one State, for the sake of evading the law, go into another State, where such a marriage is valid, are there married and immediately return and continue their place of residence; the marriage is valid there, and after the husband’s death his widow is entitled to dower in his estate. (Putnam v. Putnam, 8 Pick. 433; Medway v. Needham, 16 Mass. 157; Van Voorhis v. Brintnall, 86 N. Y. 18; Moore v. Hegeman, 92 id. 521; Meister v. Moore, 96 U. S. 76; Ross v. Ross, 129 Mass. 243; Pe<mask> v. Howey, 6 Halst, 18, 21; 2 Kent Com. 87, 91, 92; Story Confl. Law, par. 123, etc.; 2 Greenl. Ev. § 460.) There is nothing in our law or any statute of this state which would make such a marriage as this invalid, if performed here, and there is no reason why it should not be here recognized, as entitling the demandant to dower in her deceased husband’s land.” (It is interesting to note here that in this decision twelve judges of said court concurred.) 2. The Court of Appeals in an opinion by Judge Kellogg (Fisher v. Fisher, 250 N.Y. 313, 318) declared: “It is well settled that the provisions of our statute forbidding the remarriage of a party who has been divorced for adultery have no extraterritorial effect; that a subsequent marriage of the guilty party, during the life of the innocent party, in a sister State if valid in that State will be recognized here as a lawful marriage. (Moore v. Hegeman, 92 N. Y. 521.) ” 3. The same court previously in Cunningham v. Cunningham (206 N. Y. 341, at p. 349) held: “ We do recognize the remarriage of a former husband or wife who has been divorced and has been forbidden to again marry, where such remarriage took place in a state in which it was authorized, but this is upon the ground that the forbidding to remarry was in the nature of a penalty which had no effect outside of this state.” (See, also, Thorp v. Thorp, 1882, 90 N. Y. 602, revg. 47 N. Y. Super. Ct. 80; People v. Chase, 1882, 23 Hun, 310; Matter of Eichler, 1901, 34 Misc. 667; Reid v. Reid, 1911, 72 id. 214; Haviland v. Halstead, 1866, 34 N. Y. 643; Roberts v. Ogdensburgh, etc., R. Co., 1884, 34 Hun, 324; Bolmer v. Edgall, 90 N. J. Eq. 299, 306; Horton v. Horton, 198 Pac. 1106; Matter of Seymour, 113 Misc. 421; Matter of Briggs, 138 id. 136; affd., 232 App. Div. 666; Miller v. Amalgamated Laundries, Inc., 257 N. Y. 70; Matter of Schmidt, 42 Misc. 463; Matter of Garner, 59 id. 119; Earle v. Earle, 141 App. Div. 611; Fuller’s Administrator v. Fuller, 40 Ala. 301.) No support for their contention nor strength for their conclusions can be derived by proponents from the two decisions which they. *140stressed in oral argument and have emphasized in their briefs (Collins v. Voorhees, 47 N. J. Eq. 555, and Matter of Pratt, 233 App. Div. 200), and which they try to make the basis of their attack upon the marriage declaration and acquiescence of the parties in the boardwalk wedding-ring episode. (A) They construe the Collins v. Voorhees decision to require where the relations of the parties have been meretricious, proof of an actual marriage subsequently to the lifting of the impediment that has prevented a valid marriage; and then they endeavor — futilely indeed ■ — to argue that here the marriage has not been proven and to support the latter proposition they rely upon the Pratt case. In the face of the convincing proof of the agreement of the parties during the first week of November, 1927, adduced upon the trial and above carefully outlined, it seems academic to dwell at length upon the Collins v. Voorhees decision, but it may contribute to the force of our conclusions herein if a clear view be presented of the authorities in New Jersey respecting so called “ impediment ” cases, viz., where either or both of the parties cohabiting and desiring matrimony are under some inhibition due to failure of divorce, a former spouse still living, barrier of divorce decree, etc. Before discussing these authorities it should be clearly understood that in the present case the actual marriage agreement has been proven and the change in the relationships of the parties clearly shown. Proponents’ assertions are as follows (p. 90 of the brief): “ Particularly clear must be the proof that there were indeed two such promises, where, as here, the parties are shown long to have lived together meretriciously (Bates v. Bates, 7 Misc. 547; Collins v. Voorhees, 47 N. J. Eq. 555; Arnold v. Chesebrough, 58 Fed. 833 (affg. 46 Fed. 709). A meretricious relationship having been (once) established, the authorities agree that its continuance must be presumed until proof of a change and of a marriage, and that in such a case marriage will not be presumed from cohabitation and reputation, but proof of a subsequent actual marriage is necessary. This may be shown by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and to satisfactorily prove that it was changed into that of actual marriage by mutual consent (Bates v. Bates, supra).” The facts in the Collins v. Voorhees case were, briefly, as follows: In 1867 Voorhees sued for divorce in Connecticut for desertion. The proceeding was a fraud from the beginning and under New Jersey authorities the decree a nullity. He married a second time. Subsequently the first wife obtained a divorce from him. Thereafter Voorhees cohabited with the second wife and treated her before the world as though he was married to her. It was urged upon the court *141that such cohabitation formed the basis of an inference that there had been an interchange of consent. This inference was rejected by the Court of Errors and Appeals, Beasley, Ch. J., writing the opinion, which held that Voorhees knew that his divorce in 1867 was fraudulent and ineffective and that, therefore, he could not give the necessary consent to a common-law marriage, and further that that cohabitation, with habit and repute being accompaniments of the original status, could not per se be taken as proof that a new status had been agreed to by the parties. Chief Justice Beasley erroneously asserted that the Breadalbane decision, reported in Law Reports (2 H. L. Sc.), 269, was the only authority opposed to the conclusion of the court. Two facts should at this point be recorded: (1) Judge Garretson of this court dissented in a striking opinion in which he, destroying the conclusions of his colleagues, declared: “Where parties are cohabiting matrimonially but unlawfully because of an impediment to their marriage, matrimonial consent may be presumed to have been interchanged as soon as the parties were enabled by the removal of the impediment to enter into the contract,” and “It may, I think, be safely asserted that no case can be found in the New York Reports from 1809, when Fenton v. Reed was decided, down to Gall v. Gall, decided in 1889, in which any different doctrine had been held or even intimated.” Concluding he states concerning the doctrine adopted by his court: “ It stands, as it appears to me, as an innovation upon established law upon a most important branch of jurisprudence, and is radically destructive of the principle of public policy to which I have alluded, the uniform application of which is illustrated amongst others by the distinguished authorities to which I have referred.” The decision and dissenting opinion were handed down in June, 1890. In the October term, 1904, the same court, with many new members and with Judge Garretson still a member, decided the appeal in Chamberlain v. Chamberlain (68 N. J. Eq. 737), affirming a remarkably scholarly opinion of Vice-Chancellor Stevenson in the court below (Chamberlain v. Chamberlain, 68 N. J. Eq. 415), in which he adopts views in harmony with the uniform decisions of New York courts such as Fenton v. Reed (supra), Rose v. Clark (supra), Matter of Crandall (supra). Confirmation of this principle is found also in Jackson v. Jackson (113 Atl. 495); Robinson v. Robinson (83 N. J. Eq. 150, 156; 90 Atl. 311); Bey v. Bey (83 N. J. Eq. 239; 90 Atl. 684); Schaffer v. Krestovnikow (88 N. J. Eq. 192; 102 Atl. 246; affd., 89 N. J. Eq. 549; 105 Atl. 239); Schuchart v. Schuchart (60 Pac. 311); Sorenson v. Sorenson (219 App. Div. 344); Matter of Haffner (254 N. Y. 238); Sheedy v. Riley (189 App. Div. 582); Applegate v. Applegate (118 Misc. 359); Hynes v. McDermott (91 *142N. Y. 451); Dodge v. Campbell (135 Misc. 644); Matter of Terwilliger (Hopkins, S., 63 id. 479); Townsend v. Van Buskirk (33 id. 287); Matter of Wells (123 App. Div. 79); Adger v. Ackerman (115 Fed. 124); University of Michigan v. McGuckin (62 Neb. 489; 87 N. W. 180).


6 Given these conclusions, we reject Garcia’s argument about the timeliness of plaintiffs’ appeal. Plaintiffs served notice of entry of the December 4, 2019 judgment on February 27, 2020, triggering the 60-day appeal period per California Rules of Court, rule 8.104(a)(1)(B). Because the 60-day deadline fell within a period covered by a Covid-19-related order applying to deadlines occurring between April 19, 2020, to and including May 18, 2020 (see April 15, 2020 Implementation Order for the Renewed Order Pursuant to Rule 8.66 of the California Rules of Court at <https://www.sdcourt.ca.gov/sites/default/files/sdcourt/generalinformation/ covid-19info>), the deadline to file an appeal was extended until May 27, 2020. Plaintiffs timely filed their notice of appeal on May 27, 2020. We accordingly informed the parties on September 28, 2020, that the appeal of the December 4, 2019 judgment as to FPS and Garcia could proceed but dismissed the appeal as to City as untimely. mandatory language giving them an opportunity to challenge the abatement costs. They further contend the court ignored a provision stating that the Municipal Codes were not the exclusive remedy to address a code violation, and as a result it erred by concluding they had failed to exhaust administrative remedies. In response, FPS asserts plaintiffs’ opposition to its motion was filed late. Even if a late filing justified disregarding the opposition papers, it would not be dispositive of plaintiffs’ appeal. A trial court’s order sustaining a demurrer without leave to amend is reviewable for abuse of discretion even though no request to amend is made. (Code Civ. Proc., § 472c, subd. (a); Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 144-145; Mercury Ins. County. v. Pe<mask> (2008) 169 Cal.App.4th 1064, 1072.) And a plaintiff can make a showing how amendments would cure defects for the first time on appeal. (Smith, at p. 145.) FPS’s other arguments relating to exhaustion are made without required citation to any authority or reasoned


In January 1987, defendant was indicted in Rensselaer County on one count of <mask> in the first degree and four counts of murder in the second degree. The charges arose out of a fire which took place on September 1, 1986 in the City of Troy. Two young girls, who were sleeping in the dwelling at the time of the fire, were killed and Donald Gilbert, who lived in the building, suffered serious burns.


As to the merits, "[w]here, as here, a youth has been convicted of an armed felony offense, he or she is eligible to be found a youthful offender if the sentencing court determines that one or more of the factors set forth in CPL 720.10 (3) are present — namely, whether there are <mask> that bear directly upon the manner in which the crime was committed or, if the defendant was not the sole participant in the crime, whether the defendant's participation was relatively minor, although not so minor as to constitute a defense" (People v Jones, 182 AD3d 698, 699 [2020] [internal quotation marks, brackets and citations omitted]; see People v Meridy, 196 AD3d 1, 6-7 [2021], lv denied 37 NY3d 973 [2021]; People v Colon, 173 AD3d 1255, 1256 [2019]). "If the court determines, in its discretion, that neither of the CPL 720.10 (3) factors exist[s] and states the reason for that determination on the record, no further determination by the court is required" (People v Jones, 182 AD3d at 699 [internal quotation marks and citation omitted]).


When reviewing the legal propriety of penalty phase instructions addressing <mask>, we must consider whether the instructions, considered together as a whole, fairly and accurately state the applicable law and "whether a jury could have been misled into not considering certain mitigating circumstances that, by law, should have been considered." Gleason II, 305 Kan. at 820 (Stegall, J., concurring); see also In re Care and Treatment of Quillen, 312 Kan. 841, 849, 481 P.3d 791 (2021) ("When reviewing jury instruction challenges, we consider '''jury instructions as a whole . . . to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury."'").


"Perhaps most important, plea negotiation serves the ends of justice. It enables the court to impose 'individualized’ sentences, an accepted ideal in criminology, by avoiding mandatory, harsh sentences adapted to a class of crime or a group of offenders but inappropriate, and even Draconian, if applied to the individual before the court [citation omitted]. Obviously no two defendants are quite alike even if they have committed, in legal definition, identical offenses. The negotiation process often brings to light <mask> unknown when the defendant was charged [citation omitted].”


*299To prove the prejudice prong of Strickland , "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695 , 104 S.Ct. 2052. When the issue is whether to grant a new trial on the imposition of a sentence of death the Court determines "whether there is a reasonable probability that, absent the errors, the [jury] ... would have concluded that the balance of aggravating and <mask> did not warrant death." Id.


The record is unclear as to whether this occurred. After stating its reasons for imposing consecutive sentences on Counts Two through Five (§§ 664/187), the trial court stated it would run one 25-years-to-life firearm enhancement, i.e., that attached to Count Five, concurrently "in light of the constitutional scheme argued by defense." Thus, it appears the trial court considered the constitutional arguments raised by Adam and Isaac and agreed the probation officer's recommendation would amount to cruel and unusual punishment. However, running one of the firearm enhancements concurrently did not reduce the sentence below that of a functionally equivalent LWOP. As a practical matter, there is no difference between the sentence recommended by probation (170 years to life plus 37 years 4 months), the sentence the trial court would have imposed without running one firearm enhancement *846concurrently (145 years to life plus 9 years 4 months), and the sentence actually imposed (120 years to life plus 9 years 4 months). In other words, if an individualized consideration of "all <mask> attendant in the juvenile's crime and life" (Caballero, supra, 55 Cal.4th at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 ), would have rendered the functional LWOP sentence recommended by the probation department a violation of the Eighth Amendment, then the sentence imposed by the trial court-also a functional LWOP-was also a violation of the Eighth Amendment. At the same time, if the trial court did consider "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison" (Miller, supra, 132 S.Ct. at p. 2469 ), but nevertheless concluded these particular juveniles were deserving of spending the rest of their lives in prison without possibility of parole, there would be no such violation. The problem is the record does not reveal which occurred.


Thereafter, Johnson filed the present action seeking a writ of mandate. She argued that the pre-termination notice violated her due process rights because it did not adequately inform her of the allegations against her so she could prepare a defense with rebuttal evidence. She also argued that the hearing officer failed to proceed in a manner required by law by terminating her section 8 voucher without recognizing its discretion to consider <mask>.


The homeowner’s policy issued by the plaintiff to the parents of the Darby youth contained the usual general provision that notice be given “as soon as practicable” after an occurrence takes place. Such a provision has been construed to require that such notice must be given within a reasonable time in the light of all of the facts and circumstances of a particular case. (Deso v. London & Lancashire Ind. Co. of Amer., 3 N Y 2d 127.) The reasonableness of a delay in giving such notice, where <mask> are present, is ordinarily a question to be resolved by the triers of fact. (Deso v. London & Lancashire Ind. Co. of Amer., supra; Gluck v. London & Lancashire Ind. Co. of Amer., 2 A D 2d 751, affd. 2 NY 2d 953; Marcus v. London & Lancashire Ind. Co. of Amer., 6 A D 2d 702, affd. 5 N Y 2d 961.) Although the court in the Deso case held that on the facts of that case the notice was not timely as a matter of law, it distinguished p, situation such as that present in the Gluck case where the insured had testified that the reason for the delay was his unawareness that the contract of insurance covered the accident, indicating that “ once the insured was alerted to contract coverage he gave prompt notice ”. (Deso v. London & Lancashire Ind. Co. of Amer., supra., p. 131.)


*844There can be no doubt the sentences imposed in this case, i.e., 120 years to life plus 9 years 4 months, are the functional equivalent of LWOP.7 (See Caballero, supra, 55 Cal.4th at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 [sentence of 110 years to life amounted to functional equivalent of LWOP].) This being a murder case, Graham 's categorical ban on imposition of an LWOP sentence on a juvenile nonhomicide offender does not apply. (Graham, supra, 560 U.S. 48, 130 S.Ct. 2011.) However, under Miller, the trial court was still required to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." ( *836Miller, supra, 132 S.Ct. at p. 2469.) This required the trial court to consider "all <mask> attendant in the juvenile's *837crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development...." (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.) The question we must resolve is whether the trial court took these circumstances into consideration before imposing such a harsh penalty.


The Appellate Division in People ex rel. Newcomb v Metz (64 AD2d 219, 222) found "the interests of fundamental fairness mandate a consideration of a person’s mental competency” at a parole revocation hearing. It has also been held by the Appellate Division that a defense of justification can be a bar to prison disciplinary charges. (See, Matter of Burgos v Coughlin, 108 AD2d 194.) "[E]vidence of * * * <mask> is [also] relevant in a prison disciplinary proceeding”. (Matter of De Mauro v LeFevre, 91 AD2d 1156, 1157.)


Alan D. Marrus, J. The District Attorney, after having secured an indictment *675against the defendant for murder in the first degree and related charges, elected not to seek the death penalty. On January 30,1997, following a jury trial, the defendant was convicted of murder in the first degree and robbery in the first degree. This court now has the power to sentence the defendant to a minimum term of imprisonment of from 20 to 25 years, with a maximum term of life imprisonment, or to sentence the defendant to life imprisonment without parole. (CPL 400.27 [1]; Penal Law § 70.00 [3] [a] [i].) Should this court now conduct a special fact-finding hearing to consider aggravating and <mask> before making this determination?


Were it not for the <mask> presented herein as to the difficulty of plaintiff’s attorney in ascertaining the whereabouts of the defendant, insured, so as to effect service of process upon him, the court would be constrained to hold the plaintiff to have no greater rights than the insured and to dismiss the complaint because notice would not then have been given as soon as was reasonably possible.


“I must thus conclude that Mr. Bonamo refused to submit to a random drug test and under the DOT’s recent zero tolerance drug policy the DOT normally would have the right to terminate an employee. However, given the fact that the Union was unable to examine the circumstances under which the testing was done, I have found that there were <mask> that warrant reduction of the penalty of termination to that of a suspension” (emphasis added). In short, the arbitrator concluded that Bonamo had indeed refused to submit to a random drug test, but nullified the City’s decision to terminate him pursuant to DOT’s zero tolerance policy. Instead, the arbitrator ordered Bonamo’s reinstatement or “reduction of the penalty,” to use his words.


Thus a look at CPL 180.75 (subd 4, par [b]) as it relates to removal of actions involving murder in the second degree is in order. CPL 180.75 (subd 4, par [b]) states: "[T]he court may, with the consent of the district attorney, order removal of an action involving a complaint charging a juvenile offender with murder in the second degree, or an armed felony as defined in subdivision forty-one of section 1.20 of this chapter, to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter provided, however, that a determination that such an action should be removed to the family court shall be based solely upon one or more of the following factors: (i) <mask> that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in proof of the crime”.


Given the enormity of the State's evidence supporting aggravating circumstances, the isolated nature of the comments in question, and the correcting influence of the jury instructions, we cannot see any reasonable possibility these two errors affected the jury's ultimate conclusion regarding the weight of the aggravating and <mask>, i.e., the death sentence verdict. Sherman, 305 Kan. 88, Syl. ¶¶ 6-8.


As for CPL 210.43 (subd 2, par [c]), the court has examined the Grand Jury minutes and finds the proof to be sufficient for indictment. (CPL 200.50, 210.30.) On the basis of all the proof and allegations presented, the court is unable to conclude that <mask> existed, or that the defendant was a minor participant, as opposed to sole actor.


The instructions viewed together as a whole correctly and clearly informed the jurors of the law governing their consideration of <mask>. Accordingly, we find no error in the instructions as given. See State v. McDaniel, 306 Kan. 595, 616, 395 P.3d 429 (2017) ("The trial court did not err by failing to instruct the jury with the additional language [defendant] request[ed] because the instruction given fairly and accurately stated the law and accordingly was legally appropriate.").


*731The Miller court thus reasoned that "Graham, Roper [v. Simmons (2005) 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (Roper ) ] [[5] and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider <mask> before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment." (Miller, supra, 132 S.Ct. at p. 2475, italics added.) Thus, the Miller court extended the Eighth Amendment imperative for individualized sentencing inquiry to juveniles sentenced to LWOP and added the attributes of youth as a specific consideration for such cases.


of the crime or the aggravating or <mask>.” [Citation.]’ [Citation.] The evidence must not be unreliable [citation], incompetent, irrelevant, lack probative value, or solely attack the legality of the prior adjudication [citations].” (Hamilton, at p. 912.) McClain sought to present testimony from severed codefendants Bowen and Bailey about their plea agreement and McClain’s purported lack of involvement in the murders. He argued these men could tell the jury whether he was present or not at the shooting scene and “if they [had] seen [him] at any time during the night.” The court denied the request, explaining it was not appropriate evidence for the penalty phase. This ruling was within the court’s discretion. It was clear from McClain’s offer of proof that he was merely speculating about the evidence Bowen and Bailey might provide. He made no specific offer of proof. Neither man testified in the guilt phase trial, and McClain did not claim he was aware from any source that they were present at the crime scene. He apparently based his speculation on the men’s negotiated dispositions, but, as the prosecutor noted, they had steadfastly refused to admit guilt. Because McClain offered no basis for the court to conclude Bowen and Bailey would provide admissible evidence about the circumstances of the crime, the court did not err in excluding their testimony. (See Hamilton, supra, 45 Cal.4th at p. 912.) The analysis is different for eyewitness expert Kathy Pezdek. McClain sought to present Pezdek’s testimony to refute Gabriel Pina’s identification of him as the driver of the lead car on Wilson Street. The trial court denied the request, reasoning that identity was not an issue at the penalty phase and the evidence would be irrelevant. To the contrary, the proffered testimony was relevant as to lingering doubt, and section 190.3


The majority reasons that the following quote from Caballero supports its conclusion that trial courts must still engage in *733an Eighth Amendment compelled individual sentencing inquiry post-S.B. 260: " 'Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.... [T]he sentencing court must consider all <mask> attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time *1510when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison "based on demonstrated maturity and rehabilitation." ' ( [Caballero, supra, 55 Cal.4th] at pp. 268-269 145 Cal.Rptr.3d 286, 282 P.3d 291, quoting Graham, supra, 560 U.S. at p. 75 130 S.Ct. 2011.)" (Maj. opn., ante, at pp. 715-16, italics added.)7


Again: Under the provisions of section 165 of the Code, a defendant is entitled to allege in his answer, both the truth of the matter charged as defamatory, and any <mask>. The portion of the answer complained of, is alleged both by way of justification and mitigation. If not good as a justification, it certainly contains matter proper to be taken into consideration as mitigation.† And if proper to be pleaded for any purpose, the matters contained in the allegation cannot be considered as irrelevant or redundant. I am therefore in favor of affirming the order of the Special Term, with costs.


The court then proceeded to recite some circumstances it thought were mitigating, such as Shell's difficult childhood, mental and physical health, remorse, and his not brandishing or using a gun when fleeing from police. It was at this point in the hearing that the court briefly mentioned the sentences of similarly situated defendants and offered its view of the relevant statistics. But after making that remark, the court abandoned its short detour and returned to the main subjects of its reasoning—the aggravating and <mask> of the case. It said, "I can't get over the relative seriousness, the aggravating aspects of the specific offenses of conviction here" and Shell's significant criminal history. The court said that it could not reconcile those considerations "with a sufficient justification to vary downward from the guideline range." It added, "If anything, I could make a really good case for imposing sentence at the upper end of the guideline range" but decided otherwise in light of the mitigating circumstances. "So for those reasons," the court concluded, it sentenced Shell to 262 months. The record therefore shows that the court fixed Shell's sentence by focusing in a determined way on the aggravating and mitigating circumstances of his case, not on the sentences that other 924(c) career offenders received.


“Sanctions of attorneys convicted of misdemeanor tax offenses have ranged from private reprimand to censure to suspension. Public censure has been deemed appropriate in tax avoidance cases where the behavior is aberrational or marked by substantial <mask> or factors. When less substantial evidence in mitigation has been presented, or when aggravating factors exist, attorneys have been suspended” (Matter of Eppner, 62 AD3d 151, 155 [1st Dept 2009] [internal citations omitted]).


It contains what may be considered a justification of the alleged slander, with <mask> tending to disprove malice, and although the plaintiff may desire more particularity, yet I do not understand how she can be gratified. Certainly, it will be a sufficient defence if the defendant proves a justification as full and as broad as the charge; and if she should fail in so doing, under the decisions in Bush a. Prosser (1 Kern., 347), and Bisbey a. Shaw (2 lb., 67), the evidence offered for the purpose may be relied on to disprove malice. The answer seems to me sufficiently definite and certain to permit defences of the kind suggested, and is not open to the plaintiff’s objection. (Code, § 160.)


The Grand Jury minutes reveal that the defendant also shot himself twice in the head and received similar serious injuries. The language of the indictment alleges that both counts were committed under the influence of extreme emotional disturbance. Ordinarily such is an affirmative defense reducing the gravity of the crime from attempted murder to attempted manslaughter (Penal Law § 125.25 [1] [a]), which the defendant, and not the People, must prove to secure the benefit of the statutory mitigating defense (Penal Law § 25.00 [1]). However, the minutes show the Grand Jury itself was divided and refused to indict the defendant for attempted murder, even though it obviously resulted from the deliberate use of a deadly weapon. The People candidly have disclosed here that the language in the indictment relating to the defendant’s emotionally disturbed state at the time of the offense was included at the express direction of the Grand Jury. Considering such, and that the defendant did not testify before it, I find that the unsolicited extraneous conclusion by the Grand Jury as to the existence of extreme emotional influence is itself indicative of the exceptional nature of the <mask> involved.


*380The provisions of the policy relative to notice stem from the language of section 167 (subd. 1, par. [d]) of the Insurance Law. The Court of Appeals in Deso v. London & Lancashire Ind. Co. (3 N Y 2d 127) in construing an identical clause as in the instant policy, held that a failure of the insured to give timely notice to the insurer is a breach of the conditions of the policy calling for notice as soon as practicable, unless a satisfactory explanation or <mask>, such as absence from the State, lack of knowledge of the occurrence or its seriousness, is presented and that the reasonableness of such delay under such circumstances is one of fact and for the court or jury (see Mason v. Allstate Ins. Co., 12 A D 2d 138; Rushing v. Commercial Cas. Ins. Co., 251 N. Y. 302, 304; Melcher v. Ocean Acc. & Guar. Corp., 226 N. Y. 51; Gluck v. London & Lancashire Ind. Co., 2 A D 2d 751, affd. without opinion 2 N Y 2d 953; Lukin v. Mass. Bonding & Ins. Co., 28 Misc 2d 876). It is the court’s opinion that the facts pleaded sufficiently fall within the ambit of these authorities. The reliance of the plaintiff on Reina v. United States Cas. Co. (228 App. Div. 108, affd. without opinion 256 N. Y. 537) in support of its contention is clearly distinguishable. There the court stated: 1‘ The only excuse or explanation offered is that through his inadvertence and mistake notice was sent to the wrong company. No claim is made that he did not know of the change of coverage ” (p. 110; emphasis supplied).


Defendant’s claim that his sentence was harsh and excessive is also unavailing. Our review of the record reveals no extraordinary circumstances or abuse of County Court’s discretion warranting modification of the sentence (see People v Butler, 111 AD3d 1024, 1025 [2013]; People v Iadicicco, 100 AD3d 1147, 1147 [2012]). In fact, County Court granted defendant’s application for a violent felony override and the sentence for each count of the indictment was only six months more than the allowable minimum sentence for each conviction (see Penal Law § 70.02 [3] [b]).2 Thus, the sentence reflected an appropriate measure of leniency, presumably in consideration of defendant’s <mask>.


The plaintiff also invokes section 241 of the Civil Practice Act, which provides that a ‘ ‘ pleading shall contain a plain and concise statement of the material facts, without unnecessary repetition, * * * but not the evidence by which they are to be proved ”. It is well, on the issue thus raised, to direct attention to two other pertinent provisions of the Civil Practice Act — sections 338 and 339. Under the latter section, “ the defendant may prove, at the trial, facts [although] not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff’s damages, if they are set forth in the answer ”. And since, under section 338, “ the defendant may prove [emphasis supplied] <mask>, including the sources of his information and the grounds for his belief ”, it is obvious to me that he may plead such circumstances in his answer. In my opinion, section 241 must be read in the light of the nature of the action and the nature of the defenses pleaded thereto. With these factors in mind, I do not find that the defenses as pleaded are vulnerable to the attack now being-considered.


Here, with respect to imposing consecutive sentences for Counts Two through Five (§§ 664/187), i.e., the four attempted murders, the trial court stated: "The Court finds that each of those offenses was a separate act of violence, and I will articulate this factual finding as it relates to each of them. [¶] This is not a situation where there was only one or two shots fired. Factually in this case, multiple guns were basically unloaded. [¶] And it is quite clear that it is appropriate, in the Court's view, to recognize the imposition of a separate sentence as it relates to each of the individual victims in this case." We do not dispute these are appropriate reasons for imposing consecutive sentences. (See People v. Thurs (1986) 176 Cal.App.3d 448, 451-453, 222 Cal.Rptr. 61 [trial court may impose consecutive sentences for separate acts of violence against multiple victims].) However, as previously explained, where the defendant is a juvenile, and the result of imposing consecutive sentences is an aggregate prison term that is the functional equivalent of LWOP, the Eighth Amendment requires the trial court to specifically consider "all <mask> attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development," before imposing such a harsh sentence. (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.) Thus, while rule 4.425 provides circumstances in mitigation "may be considered," the circumstances of this case required the trial court to consider such mitigating circumstances, separately with respect to each juvenile offender, as a matter of constitutional law.


subdivision (h) allows the court to, “in the interest of justice pursuant to Section 1385 . . . , strike or dismiss an enhancement otherwise required to be imposed by this section.” Defendant argues the trial court abused its discretion in refusing to strike the enhancements or impose lesser uncharged and unfound enhancements pursuant to sections 12022.53 and 12022.5. “ ‘[A] court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is’ reviewable for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 373.) A “ ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.]” (Id. at p. 377.) “ ‘A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]” (People v. Stuart (2007) 156 Cal.App.4th 165, 179.) Absent an indication to the contrary, we presume the trial court considered all relevant facts and arguments. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 447; People v. Myers (1999) 69 Cal.App.4th 305, 310.) In determining whether to strike enhancements, a trial court is to consider the factors enumerated in the California Rules of Court5 relating to general sentencing objectives and aggravating and mitigating factors. (People v. Pearson (2019) 38 Cal.App.5th 112, 117.) General sentencing objectives include protecting society, punishing the defendant, deterring future offenses by others, preventing defendant from committing new crimes, and achieving uniformity in sentencing. (Rule 4.410(a)(1), (2), (4), (5) & (7).) Aggravating circumstances include: the crime involved threat of great bodily harm, and the defendant was armed with or used a weapon during the commission of the crime. (Rule 4.421(a)(1) & (2).) <mask> include: the victim


rejected similar claims. The instruction is legally sound and provides appropriate guidance on how the jury should approach its task in determining the appropriate penalty. “ ‘[T]he instruction is “not unconstitutional for failing to inform the jury that: (a) death must be the appropriate penalty, not just a warranted penalty [citation]; (b) [a sentence of life without the possibility of parole] is required, if it finds that the <mask> outweigh those in aggravation [citation] or that the aggravating circumstances do not outweigh those in mitigation [citation]; (c) [a sentence of life without the possibility of parole] may be imposed even if the aggravating circumstances outweigh those in mitigation [citation]; [and] (d) neither party bears the burden of persuasion on the penalty determination.” ’ ” (People v. Garton (2018) 4 Cal.5th 485, 523; see also People v. Linton, supra, 56 Cal.4th at p. 1211.) b. Failure to Define Life Without the Possibility of Parole McClain and Holmes argue the trial court had a sua sponte duty to instruct the jury on the meaning of life without the possibility of parole. We have previously rejected similar claims, explaining “the term has a plain meaning that does not require further explanation.” (People v. Watson (2008) 43 Cal.4th 652, 700.) Defendants do not persuade us to hold otherwise.


Appellant claims that the trial court failed to consider relevant mitigating factors. "The court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. [Citations.]" (People v. Kelley , supra , 52 Cal.App.4th at p. 582, 60 Cal.Rptr.2d 653.) No contrary showing has been made here. The mitigating factors that the trial court allegedly failed to consider were set forth in the Defense Sentencing Statement and the probation report. At the sentencing hearing, the trial court declared that it had "read and considered" the probation report "with all attachments and letters." It had also "read and considered the [D]efense [S]entencing [S]tatement." In addition, it had "considered aggravating and <mask>."


The prosecutorial error concerning the jury's weighing equation and the error on the verdict forms instruction are related in that they both recited incorrect standards for determining how the relative weight of aggravating and <mask> impacted its verdict. The prosecutor told the jury to impose the death penalty if aggravating factors were outweighed by mitigating factors. The instruction told the jury to use a verdict form rejecting a sentence of death if one or more jurors was not convinced the aggravating circumstances did not outweigh the mitigating circumstances.


Applying this rule, we will conduct a Chapman harmless-error review. We clarify that when conducting a Chapman harmless-error review of multiple errors in a capital penalty-phase proceeding, we ask whether we are persuaded there is no reasonable possibility the errors' cumulative effect, viewed in light of the record as a whole, affected the jury's ultimate conclusion regarding the weight of the aggravating and <mask>, i.e., the death sentence verdict. See Cheever II, 306 Kan. at 800-01.


If, however, the restrained property is held in the name of someone other than the judgment debtor, or if the judgment creditor is aware or should have been aware that the said property is OAvned by another, then, in that event the judgment creditor is proceeding at his oavh risk and should be held responsible for his acts. The trial court taking into account any and all <mask>.


To the contrary, in my view, for a trial court to simply ignore that a directive of this court is itself error. See State v. Clark, 313 Kan. 556, 565, 486 P.3d 591 (2021) ("'[P]oints of law established by a court are generally followed by the same court and courts of lower rank in later cases in which the same legal issue is raised.'"). And the majority does not hold the directed instruction would misstate the law. Instead, it determines "[t]he instructions viewed together as a whole correctly and clearly informed the jurors of the law governing their consideration of <mask>." R. Carr II, 314 Kan. at ___, slip op. at 56. Granted, we often hold a court does not err when it refuses to give a requested instruction that provides additional information to a jury even if the instruction would properly explain the law. But we often tell trial judges that giving the jury added information would be a better practice. See, e.g., State v. Barlett, 308 Kan. 78, 86, 418 P.3d 1253 (2018). And in Kleypas, 272 Kan. at 1078, this court took the added step of directing judges to give the instruction.


The recall provisions in section 1170, subdivision (d)(2), are substantively different from the mandatory parole consideration provisions in section 3051. Under subdivision (d)(2)(A)(i) of section 1170, a person who was under age 18 at the time of the commission of the offense and sentenced to LWOP may petition to have the sentence recalled after serving at least 15 years. Nothing happens if the prisoner does not file a petition. Certain defendants are statutorily excluded, regardless of the <mask>. Those excluded include prisoners who tortured their victims and where the defendant's victim was a public safety official. (§ 1170, subd. (d)(2)(A)(ii).) Also, to qualify, section 1170, subdivision (d)(2)(B), requires that defendant's petition state: (1) the defendant had been convicted of felony murder or aiding and abetting murder; (2) the defendant did not have prior juvenile felony adjudications for assault or other felonies "with a significant potential for personal harm to victims"; (3) the defendant committed the offense with at least one adult codefendant; and (4) "The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse." (§ 1170, subd. (d)(2)(B)(i)-(iv).) If the petition does not include all of this information, the trial court shall return the petition and advise that it cannot be considered without the missing information. (§ 1170, subd. (d)(2)(C).) If the trial court finds by a preponderance of the evidence that statements in the petition are true, then the court must hold a hearing to consider the recall. (§ 1170, subd. (d)(2)(E).) In addition to the facts required for the petition, in deciding whether to grant the petition, the court "may consider" the following facts: (1) prior to the commitment offense, the defendant had "insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress"; (2) the defendant "suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendant's involvement in the offense"; (3) the defendant has performed acts that tend to indicate rehabilitation or show evidence of remorse; (4) the defendant has maintained family ties or connections; and (5) the defendant has no disciplinary actions for violent activities in the last five years in which the defendant was the aggressor. (§ 1170, subd. (d)(2)(F)(iv)-(viii).) If the sentence is not recalled, the defendant will have three more opportunities to petition for recall-at 20 years, 24 years, and 25 years of incarceration. (§ 1170, subd. (d)(2)(H).) If the sentence is recalled, the trial court shall have the discretion to resentence the defendant "in the same manner as if the defendant had not previously been sentenced." (§ 1170, subd. (d)(2)(G).)


Despite the foregoing qualification, we will assume the contested evidence in this case is subject to the Confrontation Clause based on the statements and rationale set forth in the court's prior decision. On the facts of the case, however, we hold any Confrontation Clause violation was harmless because there is no reasonable possibility the assumed error affected the jury's ultimate conclusion regarding the weight of the aggravating and <mask>, i.e., the death sentence verdict. See Ward, 292 Kan. at 565 (providing degree of certainty in outcome required to hold an error that implicates federal constitutional rights was harmless).


R. Carr asserts the prosecutor was arguing he had no right to offer mitigating evidence and, rather than consider it, the jury should be angry and insulted. J. Carr argues this passage "implore[d] the jury not to consider any <mask> relating to the character and record of the defendants because the victims did not have a chance to have their characters and records considered in mitigation." The State contends this was a proper appeal for a just sentence.


Attempted murder, the lead charge in this case, carries an offense gravity score (OGS) of fourteen, and [Appellant’s] prior record score (PRS) is a two. Thus, under the deadly weapons used matrix, the guideline sentence is one hundred [and] fourteen months up to the statutory limit of confinement, plus or minus twelve months for aggravating or <mask>. As such, this court’s sentence of ten to twenty years of confinement is within the aggravated guidelines range.[6]


In R. Carr II, we held the prosecutor's errors, endorsing Pay's credibility and misstating the jury's weighing test, did not cumulatively deprive R. Carr of a fair trial. R. Carr II, 314 Kan. at ___, slip op. at 132 ("Given the enormity of the State's evidence supporting aggravating circumstances, the isolated nature of the comments in question, and the correcting influence of the jury instructions, we cannot see any reasonable possibility these two errors affected the jury's ultimate conclusion regarding the weight of the aggravating and <mask>, i.e., the death sentence verdict."). The additional error in J. Carr's case—the prosecutor's improper reference to a fact not in evidence, which was quickly remedied and added little to the well-established fact that J. Carr fully participated in the murders—does not require a different result. We hold there is no cumulative prosecutorial error.


Notwithstanding such <mask>, this court would be powerless to prevent an injustice if in fact the gross miscalculations resulted solely from a failure to compute the freight charges in accordance with the scheduled tariff carefully spelled out and understood by all those affected thereby. On the other hand, relief could and should be granted if the language contained in the tariff schedule was equivocal and/or ambiguous. Jn that instance the language would be strictly construed as against the draftsman (in this instance, the plaintiff) and in favor of the shipping public (defendant). (See Calcium Carbonate. Co. v. United States, 256 F. Supp. 99, 102; Atlantic Coast Line & Southern Ry. Co. v. Atlantic Bridge Co., 57 F. 2d 654; Union Wire Rope Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 66 F. 2d 965; United States v. Missouri Pacific R. R. Co., 250 F. 2d 805, 808; United States v. Missouri-Kansas-Texas R. R. Co., 194 F. 2d 777; United States v. Strickland Transp. Co., 200 F. 2d 234, 235; Chicago, Rock Is. & Pacific R. R. Co. v. Furniture Forwarders of St. Louis, 267 F. Supp. 175, 177.)


"(3) Notwithstanding the provisions of subdivision two, a youth who has been convicted of an armed felony offense is an eligible youth if the court determines that one or more of the following factors exist: (i) <mask> that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution. Where the court determines that the eligible youth is a youthful offender, the court shall make a statement on the record of the reasons for its determination, a transcript of which shall be forwarded to the state division of criminal justice services, to be kept in accordance with the provisions of subdivision three of section eight hundred thirty-seven-a of the executive law.” (CPL 720.10; emphasis added.)


29. When reviewing cumulative error in a capital penalty-phase proceeding, the court's focus is on the errors' cumulative effect on the jury's ultimate conclusion regarding the weight of the aggravating and <mask>. In other words, we are looking for the errors' effect in their aggregate, recognizing errors can differ in their individual or cumulative effect. Ultimately, the court must determine whether there is a reasonable possibility the errors' cumulative effect, viewed in light of the record as a whole, affected the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances, i.e., the death sentence verdict.


. During the period from the effective date of New York’s first degree murder statute through October 10, 1997, 21 defendants charged with murder in the first degree have pleaded guilty. Thirteen have been sentenced to life imprisonment without parole. Although this court is not aware of any plea discussions in the instant case, it would seem essential that defense counsel be aware of the existing evidence respecting both aggravating and <mask> in the case in order to responsibly counsel a teenaged defendant on the advisability of pleading guilty in exchange for a sentence of life imprisonment without parole.


likelihood that the stun belt had at least some effect on defendant’s demeanor” meant that “there [wa]s a reasonable probability that the error affected the outcome of defendant’s trial.” (Mar, supra, 28 Cal.4th at p. 1225.) Here, the court imposed the stun belts during the penalty phase retrial after the first penalty jury hung, and the second penalty jury deliberated for nine days before reaching death verdicts. The jury’s perception of the defendants, one of whom was representing himself, would have been critical in weighing aggravating and <mask>. (See People v. Jackson (2014) 58 Cal.4th 724, 777 (Jackson) (conc. opn. of Liu, J.) [“Wearing a stun belt carries a substantial risk of altering a defendant’s demeanor, and a defendant’s demeanor is often one of the most important considerations for the jury in deciding whether a capital defendant deserves to live or die. (See Riggins v. Nevada (1992) 504 U.S. 127, 143–144 (conc. opn. of Kennedy, J.) . . . .”].) A stun belt is “a device that . . . delivers an eight-second- long, 50,000-volt, debilitating electric shock when activated by a transmitter controlled by a court security officer.” (Mar, supra, 28 Cal.4th at p. 1204.) “ ‘The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures.’ ” (Id. at p. 1215.) The trial court read to defendants a form that explained the device’s capability — that “when activated [it] is capable of


Despite Collings's argument to the contrary, it is clear his two trial counsel conducted a thorough investigation into possible <mask> prior to trial. They hired a total of eight experts with experience related to mental disorders and development before ultimately deciding to call only Dr. Draper as an expert witness to testify during the penalty phase of trial. As explained above, Collings's counsel also made a strategic decision not to focus on evidence of his drug and alcohol use as they believed such evidence and argument would antagonize the jury.


After careful review and consideration of the entire record, we conclude that "the evidence supports the findings that" one or more aggravating circumstances "existed and that any <mask> were insufficient to outweigh the aggravating circumstances." K.S.A. 2020 Supp. 21-6619(c)(2). Having confirmed that Reginald Dexter Carr Jr. received a fair trial and the jury's sentence was not "imposed under the influence of passion, prejudice or any other arbitrary factor," K.S.A. 2020 Supp. 21- 6619(c)(1), we affirm Reginald Dexter Carr Jr.'s death sentence for the capital murder of H.M., J.B., B.H., and A.S.


Defendant’s argument that banning relitigation of the aggravating factors is constitutionally impermissible misinterprets the role of aggravating factors as articulated by the Supreme Court in Lowenfield v Phelps (supra). There the Court upheld Louisiana’s sentencing scheme which provided that an aggravating factor which duplicated an element of the offense of which the defendant had been convicted could form the basis of eligibility for a death sentence determination. In so holding the Court said: “Here, the ‘narrowing function’ was performed by the jury at the guilt phase * * * The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process * * * [The State statutory] scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of <mask> and the exercise of discretion. The Constitution requires no more.” (Supra, at 246.)


It is my view, however, that the present plea of justification is not adequately pleaded. Section 338 of the Civil Practice Act provides in part, that ‘ ‘ the defendant may prove <mask>, including the sources of his information and the grounds for his belief ”. Specifically alleging sources of information and grounds of belief appears to be permissive because of the use of the word ‘ ‘ may ’ ’. In 1931 the Appellate Division, Third Department, in Goodrow v. New York American (233 App. Div. 37) so held, although the court stated that the plaintiff was entitled, if he so desired, to be informed of such sources and grounds — presumably by means of a bill of particulars. A later ruling by the Appellate Division, First Department (Meyers v. Huschle Bros., 273 App. Div. 107) held, however, that a statement in the answer of the sources of information and the grounds of belief was essential, in order to show absence of actual malice (see, also, as to the Second Department, Weisberger v. Condon, 285 App. Div. 827, motions for reargument or leave to appeal denied 285 App. Div. 894).


In connection with that ruling and in excluding the proffered testimony I pointed out that the relevant statute (Penal Law, § 1045-a, subd. 3) provides that in the sentencing proceeding “ evidence may be presented by either party on any matter relevant to sentence including, but not limited to, the nature and circumstances of the crime, defendant’s background and history, and any aggravating or <mask> ” and that ‘1 Any relevant evidence, not legally privileged, shall be received regardless of its admissibility under the exclusionary rules of evidence ’ ’ but I then concluded that in this case ‘‘ we have heard the defendant’s background and history on the witness stand through him and through the members of his family. We have heard the circumstances of the crime during the trial proper, and we are now going into any aggravating or mitigating circumstances. The District Attorney has introduced proof to show what he considers to be aggravating circum*507stances. You are permitted to introduce any proof showing mitigating circumstances. The defendant’s mental condition is not before us now; that’s already been passed upon by the jury”.


Defendant’s conduct, in compelling sexual intercourse, sodomy by the admitted use of a knife, implicit or explicit threats of violence and cutting of plaintiff and her clothing are reprehensible, whatever the subject <mask> which this court finds, in fact and law, quite incredible and plaintiff’s version substantially credible. No one for a moment much less hours has the right to forcibly attack, intrude upon and injure the personal, emotional, psychic, sexual and physical dignity and integrity of any other human being, however naive, foolish or even sexually provocative in behavior or suggestion. A clear "No!”, by words and/or acts, must be accepted as "No!” in a democratic and lawful country. It is a nuclear part of every person’s inalienable rights to life, liberty and the pursuit of happiness articulated in the American Declaration of Independence, adopted July 4, 1776, by the Representatives of the 13 Colonies, that became the basis of these United States of America, at the birth of this country. It is the core of any civilized society or democracy, under due process of law so that its violation cannot be tolerated by a court of law.


In Caballero , supra , 55 Cal.4th at page 268, 145 Cal.Rptr.3d 286, 282 P.3d 291, our Supreme Court applied Graham to nonhomicide juvenile offenders who receive a sentence that is so long it amounts to a de facto LWOP sentence. The court held that the sentence must provide a "meaningful opportunity [for the juvenile offender] to demonstrate [his or her] rehabilitation and fitness to reenter society in the future" and must take into consideration all <mask>, including the juvenile's age, role in the crime, and physical and mental development. ( Id. at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.)


Turning to the merits, we conclude the failure to give the instruction was not error under Kansas law. Granted, under the first component of the four-part framework, both R. Carr and J. Carr preserved this challenge by requesting the <mask> burden-of-proof instruction at trial. See State v. Perez, 306 Kan. 655, 667-68, 396 P.3d 78 (2017) (holding first step satisfied when defendant challenged on appeal district court's failure to give requested instruction).


Typically, in these exceptional cases, an analysis of whether a sentence constitutes cruel and unusual punishment involves *575an objective evaluation whereby the gravity of the offense is weighed against danger the offender poses to society (People v Broadie, supra). This type of inquiry considers the particular <mask> of the defendant’s commission of the offense to determine whether the punishment imposed was grossly disproportionate to the severity of the crime (see, e.g., People v Rivera, 128 Misc 2d 593, revd 119 AD2d 705 [2d Dept 1986]; People v Alvarez, 65 AD2d 146, 154 [1st Dept 1978]; People v Hooks, 96 AD2d 1001 [3d Dept 1983]; People v Dowd, 140 Misc 2d 436).


"Read together, the instructions repeatedly emphasize the need for unanimity as to any aggravating circumstances found to exist. Conversely, the trial court's instructions do not inform the jury as to a contrary standard for determining <mask>. The jury is left to speculate as to the correct standard. Under these circumstances, we conclude there is a substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances." 286 Kan. at 107.


J. Carr also points to several remarks made in closing that he characterizes as improper for similar reasons. He asserts prosecutors not only told the jury not to consider any <mask> but also to disregard defendants' mitigation evidence as truly mitigating because it could not excuse or justify the crimes or was not causally related to them. J. Carr places the following comments in this category:


Finally, defendant's theory that a good faith and reasonable belief under section 278.7, subdivision (a) operates as a complete defense to child custody deprivation under section 278.5 does violence to Neidinger 's definition of malice. As noted, Neidinger concluded that section 278.5 incorporates the definition of malice set forth in section 7, subdivision (4), which provides: "The words 'malice' and 'maliciously' import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." Our Supreme Court has explained that section 7, subdivision (4) describes two types of malice: "malice in fact," which "consists of actual ill will or intent to injure" and "malice in law," which "may be 'presumed' or 'implied' from the intentional doing of the act without justification or excuse or <mask>." ( In re V.V. (2011) 51 Cal.4th 1020, 1028, 125 Cal.Rptr.3d 421, 252 P.3d 979.) As the Supreme Court explained in People v. Atkins (2001) 25 Cal.4th 76, 85-86, 104 Cal.Rptr.2d 738, 18 P.3d 660, "the term 'malicious,' as used in section 7, subdivision (4), does not transform an offense into a specific intent crime." " 'Rather, the requirement of malice functions to ensure that the proscribed conduct was "a deliberate and intentional act, as distinguished from an accidental or unintentional" one.' " ( People v. Rodarte (2014) 223 Cal.App.4th 1158, 1170, 168 Cal.Rptr.3d 12.)


After hearing argument by the prosecutor, the court announced its ruling finding that the aggravating circumstances outweighed the <mask>, and denying the motion to modify sentence. In explaining the reasons for its ruling, the court described the aggravating and mitigating evidence the court had independently reweighed as it related to each of the 11 sentencing factors provided in section 190.3, including the circumstances of the crime, defendant's prior violent conduct, whether defendant was acting under extreme mental or emotional disturbance, and other circumstances that extenuated the gravity of the crime or aspects of defendant's character on which a sentence less than death could be based. (See § 190.3, factors (a), (b), (d), (k).)


Contrary to defendant's further contention, the court did not err in concluding that defendant was not eligible to be adjudicated a youthful offender. Where, as here, a defendant is convicted of an armed felony (see CPL 1.20 [41]), he or she may be adjudicated a youthful offender only where he or she was not the sole participant in the crime and his or her participation was relatively minor (see CPL 720.10 [3] [ii]), or where there exist "<mask> that bear directly upon the manner in which the crime was committed" (CPL 720.10 [3] [i]), i.e., circumstances that "bear directly on defendant's personal conduct in committing the crime" (People v Garcia, 84 NY2d 336, 342 [1994]; see People v Middlebrooks, 25 NY3d 516, 519 [2015]).


Having considered the parties' joint affirmation, the parties' stipulation of facts, respondent's conditional admissions, the parties' summation of aggravating and relevant <mask> and the recitation of the parties' agreed-upon disciplinary sanction, we grant the joint motion. Moreover, upon review of the stipulated [*2]misconduct and relevant circumstances, we find that, while the charges of professional misconduct are serious, the maximum recommended sanction is appropriate under the circumstances and is not inconsistent with prior precedent (see e.g. Matter of Andrews, ___ AD3d ___, ___, 2021 NY Slip Op 07064, *2 [2021]; Matter of Shmulsky, 186 AD3d at 1880; Matter of Scudieri, 174 AD3d 168, 173 [2019]; Matter of Aber, 283 AD2d 767, 768 [2001]). Accordingly, we hold that, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent is suspended from the practice of law for a six-month period, effective 30 days from the date of this decision.


The overwhelming majority of cases, on the other hand, recognize that a party normally gets but one trial. So long as the proponent has had a “full and fair opportunity to either prosecute or defend an action, but has, without <mask>, failed to do so”, the resulting adjudication is “on the merits” (Greyhound Lines v Pamtours, NYLJ, Feb. 27, 1978, p 11, col 2, and cases cited therein).


Despite the absence of <mask> absolving the school boards, as in Matter of Gilbert v. German (supra), such as reliance upon any prior opinions by their attorneys, the affidavits of the two presidents who urge merely against any action resulting in delay, and the architect who persists in arguing as an advocate that the local licensing law is superseded by the *28Education Law, the court, in the exercise of its discretion, will not, at this time, enjoin the school boards. The motion is, therefore, denied as to these defendants, without costs, but without prejudice to a renewal of the application in the event the school board officials fail to act. Submit order on notice.


Furthermore, when petitioner pleaded guilty, 9 NYCRR 8005.19 (b) required the ALJ to “direct the presentation of evidence, if any, with respect to mitigation of the violations and restoration to parole.” As set forth above, the ALJ never made any evidentiary finding relating to the curfew violation or any inquiry of petitioner as to the facts supporting the violation. Then, after perfunctorily accepting his plea, she also failed to provide him any opportunity to present evidence of the <mask> surrounding his delay in arriving home. Respondent has never challenged this proffered evidence, as much of it derives from the Division itself: the length of the delay, only 15 minutes; his explanation that he encountered unavoidable traffic; his advance notice to his parole officer; and the parole officer’s assurances that the lateness would not be considered important.


"<mask> under the law as you remember are those that reduce the degree of moral culpability. How has anything that they have said done that? Under the law, the Legislature said these things may be considered. That they have no significant history of prior criminal activity. Is that what you heard? That this crime was committed when the defendants were under the influence of extreme mental or emotional disturbance. The foundation of all, if any, this brain trauma. The foundation of all their experts, all the evidence that you heard . . . was based on a manipulated picture, an altered picture. A picture of a PET scan that does not accurately reflect, does not accurately reflect their brains and this picture does not accurately reflect who they are.


Another grave objection to the receipt of the proposed evidence in this action is, that even if its sufficiency as a subsequent legal appropriation to plaintiff’ s use, as well as its competency, be assumed, it is not pertinent to any of the issues raised by the pleadings, because not pleaded. Defendant’s counsel, it is true, strenuously argued that it should have been received, at least in mitigation of damages, and that for that purpose it did not require being pleaded. But on a critical examination, this claim will also be found to be untenable. <mask> do not, and never did amount to a defense to any part of plaintiff’s claim. They may diminish the nominal claim made by him, but do not diminish the real claim, or reduce it below what it was originally. A defense, as understood in law language, on the other hand, is a full answer to whole or to some part of plaintiff’s de*149maud. Under the old practice, both were admissible under the general issue, without being pleaded, and this fact led to a frequent confusion of the distinction, to some extent at least, between partial defenses and circumstances of mitigation (Harter v. Crill, 33 Barb., 283).


Were we to apply the Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), harmless error standard to the facts before us, we are convinced there is no reasonable possibility the omitted instruction affected the jury's ultimate conclusion regarding the weight of the aggravating and <mask>, i.e., the death sentence verdict. Based on the amount and quality of guilt-phase evidence, which the


AlIDID. 7. 2-- V Z-13 ( tO) 1947A As to the RPC 1.15 violation, we conclude that clear and convincing evidence supports the panel's findings. In re Discipline of Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995) (recognizing the State Bar's burden of proof in a disciplinary matter). As to the discipline, Jimmerson violated a duty owed to his clients (safekeeping client funds), and the record supports the panel's conclusion that he should have known not to make four of the transfers, given that he acknowledged that he did not verify whether his clients had actually paid their bills before making three of the transfers and that he made the fourth transfer before earning the fee, albeit with the client's permission. The record likewise supports that Jimmerson made a clerical error and thus acted negligently as to the fifth transaction. The panel found and the record supports that no actual injury occurred but the transfers from the trust account had the potential to injure clients.' Suspension generally applies as a baseline sanction for Jimmerson's misconduct. See Standards for Imposing Lawyer Sanctions, Compendium of Professional Responsibility Rules and Standards, Standard 4.12 (Am. Bar Asen 2017) (providing that suspension is appropriate when a lawyer should know that he is dealing improperly with client property and causes potential injury to clients). But based on the evidence supporting the weight of <mask> (free and full disclosure to the disciplinary authority and cooperative attitude in the proceedings; personal


In People v Garcia (supra), the Court addressed the scope of the analogous provisions of Penal Law § 70.25 (2-b), requiring a sentencing court to impose consecutive sentences where a defendant is convicted of a violent felony offense committed after *756arraignment and while released on recognizance or bail but committed prior to sentencing on the pending felony charge, unless the court determines that there exist “<mask> that bear directly upon the manner in which the crime was committed.” There the Court observed that the provision for consecutive sentences was designed to circumscribe, rather than eliminate, the court’s sentencing discretion. (Garcia, supra, at 341.) It also observed that factors “ ‘directly’ flowing from and relating to defendant’s personal conduct while committing the crime qualify [as mitigating circumstances].” (Id., at 342 [citations omitted].) In rejecting the trial court’s finding that the defendant’s age, prior criminal history and drug abuse problem constituted such circumstances, the Court observed that such factors “generally * * * do not pertain to defendant’s direct manner in the commission of the crime.” (Id.)


This is an automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation to publicly reprimand James J. Jimmerson for violating RPC 1.15 (safekeeping property) by making five transfers from his trust account to his business account and a personal account. Jimmerson made three of the transfers before clients paid bills for earned fees, one transfer from a client's retainer before earning the fee, but with that client's permission, and one transfer through a clerical error. The State Bar does not contest the panel's conclusions as to Jimmerson's violation of RPC 1.15, his mental state, or potential injury to clients, but it argues that the recommended discipline is too lenient. In that regard, the State Bar asserts that two of the mitigating factors found by the panel (absence of dishonest or selfish motive and personal or emotional problems) are not supported and that, regardless of the other mitigating factors, discipline short of a suspension is not proper in a case involving misappropriation of client funds. Jimmerson does not contest the RPC 1.15 violation but asserts that the weight of <mask>, his mental state, and the level of harm, which all factor into a discipline determination, support the panel's recommendation.


There can be no doubt the sentences imposed in this case, i.e., 120 years to life plus 9 years 4 months, are the functional equivalent of LWOP. (See Caballero, supra, 55 Cal.4th at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 [sentence of 110 years to life amounted to functional equivalent of LWOP].) This being a murder case, Graham's categorical ban on imposition of an LWOP sentence on a juvenile nonhomicide offender does not apply. (Graham, supra, 560 U.S. 48, 130 S.Ct. 2011.) However, under Miller, the trial court was still required to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Miller, supra, 132 S.Ct. at p. 2469.) This required the trial court to consider "all <mask> attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development...." (Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.) The question we must resolve is whether the trial court took these circumstances into consideration before imposing such a harsh penalty.


Removal, in accordance with legislative intent, may be ordered only in the "exceptional case” (Matter of Vega v Bell, 4(1 NY2d, at p 553). The Legislature promulgated statutory criteria. There may be no removal in the absence of either <mask> concerning the commission of the alleged crime, limited and minor complicity by the defendant, or deficiencies in proof. (CPL 210.43, subd 1, par [b], cls [i], [ii], [in].) If one or more features exist, the court must weigh eight factors that bear on the issue of removal (CPL 210.43, subd 2, par [a]-[h]) in the interests of justice.


By failing to challenge the court’s instruction on the permissive inference connected with defendant’s recent and exclusive possession of stolen property, defendant has failed to preserve *345the claim for review (People v Hoke, 62 NY2d 1022). Since the court’s instructions, as a whole, adequately conveyed to the jury that the defendant must be proven guilty beyond a reasonable doubt as to each element of each offense, we decline to review in the interest of justice. Finally, considering the brutality of the crime and the lack of <mask>, we find no basis to disturb the sentence imposed. Concur—Ellerin, J. P., Wallach, Kupferman, Asch and Mazzarelli, JJ.


The Hearing Panel concluded that respondent should be suspended from the practice of law for nine months for his admitted neglect and more importantly for his evasion and lack of cooperation with the Committee and the complaining clients. The misconduct involving the false acknowledgment of clients’ signatures was considered a separate basis for serious discipline. His prior clean record and the lack of venal or financial motive were considered to be <mask>, but the psychiatric evidence was not.


"Under these circumstances, we are convinced there is no reasonable possibility the identified errors, deemed harmless in isolation, cumulatively affected the jury's ultimate conclusion regarding the weight of the aggravating and <mask>, i.e., the death sentence verdict. To borrow again from the United States Supreme Court, given the State's evidence '[n]one of that mattered.' 577 U.S. at 126. We are satisfied the jury correctly understood its charge and was not swayed by the aggregate impact of these identified defects." 314 Kan. at ___, slip op. at 144.


3 The statute applies equally to convictions resulting from guilty pleas and those following jury verdicts. RCW 9.94A.640(1). We agree with Johnson and the State that the 2019 amendments to RCW 9.94A.640 apply to Johnson’s 1997 conviction. See LAWS OF 2019, ch. 331, § 3. 4 In exercising its discretion, the court may consider “the facts of the crime” and any other relevant aggravating or <mask>. See Kopp, 15 Wn. App. 2d at 287-88.


Even in the absence of a constitutional imperative, trial courts should consider whatever mitigating information is presented to them by the parties and the probation department. Indeed, it is incumbent upon defense counsel to present <mask> to the trial court at the time of sentencing, and there are already mechanisms in the law providing such opportunities. (§ 1204 [defendant entitled to sentencing hearing to present mitigating circumstances, including the introduction of sworn testimony]; Cal. Rules of Court, rule 4.437 [allowing defendants to file statements in mitigation prior to the sentencing hearing].) Thus, when trial attorneys do their jobs-a job that is no different whether individualized sentencing inquiry is constitutionally mandated or not-trial courts will be required to consider what has been proffered.


"2. In any prosecution under subdivision one, it is an affirmative defense that: "(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” In so doing, the Legislature clearly provided for a court or jury, upon a proper showing of <mask> in a consummated killing, to reduce what would otherwise be a murder in the first degree charge to manslaughter in the first degree. Quaere, however, does the same opportunity exist for one whose attempt proves unsuccessful? Prior to the above-noted Lanzot decision (supra), the few cases dealing with the issue of extreme emotional disturbance were all consummated murders. (People v Patterson, 39 NY2d 288, affd 432 US 197; People v Lyttle, 95 Misc 2d 879; People v Shelton, 88 Misc 2d 136.) However, in Lanzot (67 AD2d 864, supra), where the central issue involved the trial court’s error in charging that a *162fire marshal was a police officer as a matter of law, the First Department, in dicta and without discussion, also unanimously agreed that the affirmative defense of extreme emotional disturbance should have been submitted upon the top count of attempted murder in the first degree.


That said, the erroneous statement was isolated; the prosecutor's argument correctly described the weighing process elsewhere, as did the judge's instructions. There is no reasonable possibility the misstatement standing alone affected the jury's ultimate conclusion regarding the weight of the aggravating and <mask>, i.e., the death sentence verdict. See Kleypas II, 305 Kan. at 316; Sherman, 305 Kan. 88, Syl. ¶¶ 6-8.


In view of the <mask> now presented, which offer some explanation for but do not excuse respondent’s professional misconduct, we grant her motion to the extent of considering such circumstances and reducing the sanction previously imposed from disbarment to a six-month suspension. Respondent’s reinstatement to practice will be conditioned upon her submission of medical opinion that she has the mental and emotional capacity to resume the practice of law and upon her payment of the stenographic fees and all attorney registration fees due and owing (see, e.g., Matter of Farley, 205 AD2d 874; Matter of Kent, 182 AD2d 157; Matter of Relyea, 175 AD2d 949).


Prevailing professional standards for capital defense work require trial counsel to "discover all reasonably available mitigating evidence." Wiggins v. Smith , 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156 L.Ed.2d 471 (2003) ; Johnson v. State , 388 S.W.3d 159, 165 (Mo. banc 2012). This evidence includes "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Id. Section 565.032.3 outlines <mask>, including extreme mental or emotional disturbance, extreme distress or domination by another, and substantial impairment of capacity to appreciate the criminality of his or her conduct or to *602conform it to the requirements of law, which can be submitted to the jury in an effort to avoid a death sentence.


The only excuse for the delay in giving notice of loss is that plaintiff thought that the discrepancy may have been due to short shipment and not short delivery. This court finds from *518all the evidence that plaintiff knew, no later than September, 1954, that there were shortages of bags of coffee and such losses were “apt to be a claim” under the policy. Plaintiff failed to give notice “ as soon as may be practicable ”. Furthermore, there has been no showing of any <mask> to justify or excuse the delay. This was a default under the policy and voids the contract (Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127, 129; Bazar v. Great Amer. Ind. Co., 306 N. Y. 481; Haas Tobacco v. American Fid. Co., 226 N. Y. 343; Greater N. Y. Mut. Ins. Co. v. Powers, 25 Misc 2d 393).


I then advised the parties that with respect to the issue of whether or not defendant’s prior sexual victimization constituted <mask> within the meaning of CPL 720.10 (3) (i) for the purpose of determining his eligibility for youthful offender status, I would be considering, and would entertain their views on, the information and conclusions contained in Earl F. Martin and Marsha Kline Pruett, The Juvenile Sex Offender and the Juvenile Justice System (35 Am Grim L Rev 279 [1998] [hereinafter Martin and Pruett]).2


All employees are expected to conduct themselves in accordance with department/division policies, Administrative Regulations of the Department of Personnel, Civil Service Rules and Regulations, Ordinances, the Charter of the City of St. Louis, and generally acceptable work behaviors including the City's Employee Code of Conduct. Employees in supervisory positions should set an example by their own conduct, work habits, and commitment to the City Service. ... Disciplinary actions include: A. Written reprimand; B. Suspension (up to 28 calendar days in a 12 month period); C. Temporary reduction in pay for a period not to exceed 13 bi-weekly pay periods; D. Disciplinary demotion (to a vacant position in lower pay grade for which the employee is qualified within the division/department); E. Dismissal ... VII. PRE-TERMINATION WRITTEN NOTICE AND REVIEW When corrective discipline has failed to correct the employee's actions or the employee commits an act(s) which is (are) so serious that corrective discipline is inappropriate, dismissal from the City Service shall be considered. The Department of Personnel and/or the City Counselor's Office should be consulted prior to dismissing an employee. The following steps must be adhered to when dismissing an employee for cause from the City Service: A. Pre-termination Written Notice. A pre-termination review is required prior to the imposition of a dismissal of a permanent employee. The pre-termination review is an informal procedure in which the appointing authority or his/her designee advises the employee of the charges against him/her, gives an explanation of the charges and evidence, allows the employee and/or his/her representative an opportunity to review the evidence, and then allows the employee and/or his/her representative an opportunity to present facts to mitigate the proposed penalty. This review is not a formal hearing, nor is it an extended procedure at which the employee is afforded the right to present witnesses, cross-examine individuals, etc. The employee shall also be informed of his/her right to have a representative present and, if the employee chooses to exercise the right, every effort should be made to schedule the pre-termination review so that a representative can attend and represent the employee.... The written notice shall be hand-delivered to the employee or sent by certified mail and include the following: That dismissal is being considered; The specific charges/reasons; The place, date and time of review; The right to have a representative; If the employee's prior work record is being considered; Failure of the employee to appear shall waive the employee's right to a pre-termination review. B. Pre-termination Review. The pre-termination review should be conducted before the employee's last day at work or within thirty (30) days of being placed on forced leave (see below), unless the forced leave has been extended with the approval of the Director of Personnel. The appointing authority should provide employees with sufficient notice to obtain representation if so requested or otherwise prepare for the pre-termination review. Typically three (3) to five (5) working days (excluding weekends) should suffice although other time frames may be agreed upon by the parties. The following should occur: State purpose of review (to consider employee's dismissal); Advise employee of charges; Allow the employee and/or his/her representative an opportunity to review the evidence; Give the employee the opportunity to verbally respond to the charge; present <mask> and submit any written witness statements; Maintain record of review, list of those present, the date, the proceedings, and any relevant facts presented. The appointing authority shall make a determination regarding the employee's employment status within fourteen (14) calendar days from the pre-termination review and notify the employee of the decision in writing within (14) fourteen calendar days from the date of review. This decision may be: (1) no disciplinary action is required; (2) dismissal is too severe, but a lesser form of disciplinary action is required; or (3) dismissal is warranted. Exceptions to Progressive Discipline. There are some actions which are so serious that progressive discipline is inappropriate or insufficient and, therefore, immediate dismissal is warranted. Listed below are some examples of actions which may be exceptions to progressive discipline. These examples are not intended to be all inclusive: The commission of any act while on duty or off duty which would be a violation of Federal, State or local law, other than minor traffic violations. This does not mean that a conviction or even an arrest need have occurred for such a violation....


Fourth, CPL 400.27 (11) (a) further safeguards a defendant’s constitutional rights. The New York statute permits a jury to decide that the aggravating circumstances, substantially and beyond a reasonable doubt, outweigh the <mask>, but, nevertheless decline to impose the death penalty. (See, CPL 400.27 [11].) This court sees nothing wrong with permitting — for a defendant’s benefit — a narrow window through which human mercy can fit.


The executive, however, cannot be indifferent to an appeal for clemency coming from so high a source as the judge of a court which has so signally manifested its own respect for our rights, and has so firmly and effectually exerted its official influence and authority for the protection of one who was exposed to danger for obedience and regard to the rights of our citizens and the vindication of our laws. Strongly impressed with a desire to yield to such an appeal, from such a source, and relying upon the <mask> and other considerations stated by you, and especially on the assurance from you that the proceedings against the captain were instituted, not by Lane, but by others in his name, and hoping that the interposition of executive clemency, under the circumstances of this case, may exert a salutary moral influence on the public feeling in the Northern States, on subjects of this kind, the governor has granted a pardon to the prisoner.


But R. Carr defines this right broadly to preclude capital punishment, even where a jury has convicted a defendant of capital murder and determined beyond reasonable doubt that one or more statutory aggravating circumstances exist and outweigh <mask>, as prescribed under Kansas' capital sentencing scheme. R. Carr's argument is premised on the assumption that the right to life guaranteed within section 1 is absolute, meaning the law cannot limit or infringe upon this right in any circumstance. See Merriam-Webster.com Legal Dictionary, Merriam-Webster, https://www.merriam- webster.com/legal/absolute%20right (defining "absolute right" as "a legally enforceable right to take some action or to refrain from acting at the sole discretion of the person having the right").


Here, the record establishes that defendant was the only person who possessed the handgun at issue. Furthermore, although "lack of injury to others and nondisplay of a weapon [constitute] qualifying mitigating circumstances" (Garcia, 84 NY2d at 342; see People v Lindsey, 166 AD3d 1565, 1565 [4th Dept 2018], lv denied 32 NY3d 1206 [2019]), the record establishes that, during an argument, defendant procured the weapon from a hidden location in a [*2]vehicle, purposely displayed it, and activated the slide on the weapon to chamber a round into the gun. Thus, although there were no injuries, we perceive no basis to disturb the court's determination that defendant is not an eligible youth because, based on defendant's display of the weapon and his implicit threat to use it, there are insufficient <mask> to support such an adjudication (see People v D.M., 168 AD3d 879, 880 [2d Dept 2019], lv denied 33 NY3d 947 [2019]; People v Stewart, 140 AD3d 1654, 1655 [4th Dept 2016], lv denied 28 NY3d 937 [2016]; People v Henry, 76 AD3d 1031, 1031 [2d Dept 2010]).


The probation report indicates that the defendant comes from an emotionally volatile, although concerned family background. This was his first arrest and it appears, without condoning defendant’s actions, that the defendant was not acting alone but was acting in concert with another who was armed. The defendant was subject to intense peer pressure in engaging in the conduct which was the basis of this conviction. It further appears that the defendant is an individual who would be greatly aided by the supervision inherent in a term of probation which would have been available to him if he were at least 16 years old but less than 19 years of age and this court found such <mask> as required by CPL 720.10 (subd 3).


and that any <mask> were insufficient to outweigh the aggravating circumstances." K.S.A. 2020 Supp. 21-6619(c)(2). Having confirmed that Jonathan D. Carr received a fair trial and the jury's sentence was not "imposed under the influence of passion, prejudice or any other arbitrary factor," K.S.A. 2020 Supp. 21-6619(c)(1), we affirm Jonathan D. Carr's death sentence for the capital murder of H.M., J.B., B.H., and A.S.