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G.R. No. 160786, June 17, 2013 - SIMPLICIA O. ABRIGO AND DEMETRIO ABRIGO, Petitioners, v. JIMMY F. FLORES, EDNA F. FLORES, DANILO FLORES, BELINDA FLORES, HECTOR FLORES, MARITES FLORES, HEIRS OF MARIA F. FLORES, JACINTO FAYLONA, ELISA FAYLONA MAGPANTAY, MARIETTA FAYLONA CARTACIANO, AND HEIRS OF TOMASA BANZUELA VDA. DE FAYLONA, Respondents.
SIMPLICIA O. ABRIGO AND DEMETRIO ABRIGO, Petitioners, v. JIMMY F. FLORES, EDNA F. FLORES, DANILO FLORES, BELINDA FLORES, HECTOR FLORES, MARITES FLORES, HEIRS OF MARIA F. FLORES, JACINTO FAYLONA, ELISA FAYLONA MAGPANTAY, MARIETTA FAYLONA CARTACIANO, AND HEIRS OF TOMASA BANZUELA VDA. DE FAYLONA, Respondents.
Once a judgment becomes immutable and unalterable by virtue of its finality, its execution should follow as a matter of course. A supervening event, to be sufficient to stay or stop the execution, must alter or modify the situation of the parties under the decision as to render the execution inequitable, impossible, or unfair. The supervening event cannot rest on unproved or uncertain facts.
In this appeal, petitioners seek to reverse the decision in CA-G.R. SP No. 48033 promulgated on September 25, 2002,1 whereby the Court of Appeals (CA) directed the Regional Trial Court, Branch 30, in San Pablo City (RTC) to issue a special order of demolition to implement the immutable and unalterable judgment of the RTC rendered on November 20, 1989.
This case emanated from the judicial partition involving a parcel of residential land with an area of 402 square meters situated in the Municipality of Alaminos, Laguna (property in litis) that siblings Francisco Faylona and Gaudencia Faylona had inherited from their parents. Under the immutable and unalterable judgment rendered on November 20, 1989, the heirs and successors-in-interest of Francisco Faylona, respondents herein, would have the western portion of the property in litis, while the heirs and successors-in-interest of Gaudencia Faylona its eastern half.
Involved in the suit is a lot with an area of 402 square meters situated in the Municipality of Alaminos, Laguna and inherited by both Francisco (Faylona) and Gaudencia (Faylona) from their deceased parents. The lot is declared for taxation purposes under Tax Declaration No. 7378 which Gaudencia managed to secure in her name alone to the exclusion of Francisco and the latter’s widow and children. It appears that after Francisco’s death, his widow and Gaudencia entered into an extrajudicial partition whereby the western half of the same lot was assigned to Francisco’s heirs while the eastern half thereof to Gaudencia. There was, however, no actual ground partition of the lot up to and after Gaudencia’s death. It thus result that both the heirs of Francisco and Gaudencia owned in common the land in dispute, which co-ownership was recognized by Gaudencia herself during her lifetime, whose heirs, being in actual possession of the entire area, encroached and built improvements on portions of the western half. In the case of the petitioners, a small portion of their residence, their garage and poultry pens extended to the western half.
Such was the state of things when, on July 22 1988, in the Regional Trial Court at San Pablo City, the heirs and successors-in-interest of Francisco Faylona, among whom are the private respondents, desiring to terminate their co-ownership with the heirs of Gaudencia, filed their complaint for judicial partition in this case, which complaint was docketed a quo as Civil Case No. SP-3048.
Defendants to pay the costs of these proceedings.
“WHEREFORE, appealed decision is hereby AFFIRMED, except the amount of rental awarded which is hereby DELETED.
With no further appellate proceedings having been taken by the petitioners and their other co-heirs, an Entry of Judgment was issued by this Court on June 3, 1996.
To forestall compliance with the above, petitioners, as defendants below, again prayed the respondent court for a final extension of sixty (60) days from January 19, 1998 within which to comply with the order. To make their motion palatable, petitioners alleged that they “are about to conclude an arrangement with the plaintiffs and just need ample time to finalize the same.” To the motion, private respondents interposed an opposition, therein stating that the alleged arrangement alluded to by the petitioners did not yield any positive result.
Eventually, in an order dated January 28, 1998, the respondent court denied petitioners’ motion for extension of time to remove their improvements. Thereafter, or on February 6, 1998, the same court issued a writ of execution.
On February 12, 1998, Sheriff Baliwag served the writ on the petitioners, giving the latter a period twenty (20) days from notice or until March 4, 1998 within which to remove their structures which occupied portions of private respondents’ property. On March 6, 1998, the implementing sheriff returned the writ “PARTIALLY SATISFIED”, with the information that petitioners failed to remove that portion of their residence as well as their garage and poultry fence on the western half of the property.
On account of the sheriff’s return, private respondents then filed with the court a quo on March 11, 1998 a Motion for Issuance of Special Order of Demolition.
“That after the finality of the decision and on this stage of execution thereof, there was an event and circumstance which took place between the defendants and one of the groups of plaintiffs (Floreses)[which] would render the enforcement of the execution unjust.
On March 4, 1998, the Floreses, one of the plaintiffs as co-owners of the property-in-question in the Western portion, sold their one-fourth (1/4) undivided portion in the co-ownership of the plaintiffs to defendant Simplicia O. Abrigo, as can be seen in a xerox copy of the deed x x x.
Defendant Simplicia O. Abrigo is now one of the four co-owners of a ¼ portion, pro-indiviso of the property of the plaintiffs. Thus, until and unless a partition of this property is made, the enforcement of the execution and/or demolition of the improvement would be unjust x x x. This sale took place after the finality”.
“WHEREFORE, let an alias writ of execution issue for the satisfaction of the Court’s judgment. Defendants’ Motion to Defer Resolution of the Motion for a Writ of Demolition is hereby DENIED.
On May 20, 1998, petitioners filed a Motion for Reconsideration, thereunder insisting that being now one of the co-owners of the westernhalf, there is need to defer action of the motion for demolition until the parties in the co-ownership of said half shall have decided in a formal partition which portion thereof belongs to each of them.
A timely opposition to the motion for reconsideration was filed by the private respondents, thereunder arguing that the alleged Deed of Sale dated March 4, 1998 and supposedly executed by Jimmy Flores was merely falsified by the latter because one of the Floreses, Marites Flores, did not actually participate in the execution thereof, adding that the same document which seeks to bind them (private respondents) as non-participating third parties, cannot be used as evidence against them for the reason that the deed is not registered.
In order to stave off the impending demolition of their improvements encroaching the western half of the property in litis pursuant to the special order to demolish being sought by respondents, petitioners instituted a special civil action for certiorari in the CA against respondents and the RTC (C.A.-G.R. SP No. 48033), alleging that the RTC had gravely abused its discretion amounting to lack or in excess of jurisdiction in issuing the order of May 13, 1998 (denying their motion to defer resolution on the motion for demolition), and the order dated June 10, 1998 (denying their motion for reconsideration).
WHEREFORE, the instant petition is hereby DENIED and is accordingly DISMISSED. The respondent court is directed to issue a special order of demolition to implement its final and executory decision of November 20, 1989, as modified by this Court in CA-G.R. CV No. 25347.
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, COMMITTED REVERSIBLE ERROR WHEN IT AFFIRMED THE DENIAL OF THE RTC OF ITS ENFORCEMENT OF THE DECISION DESPITE THE OBVIOUS SUPERVENING EVENT THAT WOULD JUSTIFY MATERIAL CHANGE IN THE SITUATION OF THE PARTIES AND WHICH MAKES EXECUTION INEQUITABLE OR UNJUST.
The legal issue is whether or not the sale by respondent Jimmy Flores of his 1/4 share in the western portion of the 402-square meter lot constituted a supervening event that rendered the execution of the final judgment against petitioners inequitable.
We deny the petition for review, and rule that the CA correctly dismissed the petition for certiorari. Indeed, the RTC did not abuse its discretion, least of all gravely, in issuing its order of May 13, 1998 denying petitioners’ motion to defer resolution on the motion for demolition, and its order dated June 10, 1998 denying petitioners’ motion for reconsideration .
T he dispositive portion of the November 20, 1989 decision directed the partition of the 402-square meter parcel of land between the heirs and successors-in-interest of Francisco Faylona and Gaudencia Faylona, with the former getting the western half and the latter the eastern half; and ordered the latter to remove their improvements encroaching the western portion adjudicated to the former. The decision became final after its affirmance by the CA through its decision promulgated on December 28, 1995 in C.A.-G.R. CV No. 25347 modifying the decision only by deleting the award of rentals. There being no further appellate proceedings after the affirmance with modification, the CA issued its entry of judgment on June 3, 1996.
The contention of petitioners that the sale by Jimmy Flores to them of his 1/4 share in the western portion of the 402-square meter lot under the deed of sale dated March 4, 1998 was a supervening event that rendered the execution inequitable is devoid of merit.
Verily, petitioners could not import into the action for partition of the property in litis their demand for the segregration of the ¼ share of Jimmy Flores. Instead, their correct course of action was to initiate in the proper court a proceeding for partition of the western portion based on the supposed sale to them by Jimmy Flores.
We deem it highly relevant to point out that a supervening event is an exception to the execution as a matter of right of a final and immutable judgment rule, only if it directly affects the matter already litigated and settled, or substantially changes the rights or relations of the parties therein as to render the execution unjust, impossible or inequitable.10 A supervening event consists of facts that transpire after the judgment became final and executory, or of new circumstances that develop after the judgment attained finality, including matters that the parties were not aware of prior to or during the trial because such matters were not yet in existence at that time.11 In that event, the interested party may properly seek the stay of execution or the quashal of the writ of execution,12 or he may move the court to modify or alter the judgment in order to harmonize it with justice and the supervening event.13 The party who alleges a supervening event to stay the execution should necessarily establish the facts by competent evidence; otherwise, it would become all too easy to frustrate the conclusive effects of a final and immutable judgment.
Here, however, the sale by Jimmy Flores of his supposed ¼ share in the western portion of the property in litis, assuming it to be true, did not modify or alter the judgment regarding the partition of the property in litis. It was also regarded with suspicion by the CA because petitioners had not adduced evidence of the transaction in the face of respondents, including Jimmy Flores, having denied the genuineness and due execution of the deed of sale itself.
T he issuance of the special order of demolition would also not constitute an abuse of discretion, least of all grave. Such issuance would certainly be the necessary and logical consequence of the execution of the final and immutable decision. According to Section 10(d) of Rule 39, Rules of Court, when the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court issued upon motion of the judgment obligee after due hearing and after the judgment obligor or his agent has failed to remove the improvements within a reasonable time fixed by the court. With t he special order being designed to carry out the final judgment of the RTC for the delivery of the western portion of the property in litis to their respective owners, the CA’s dismissal of the petition for certiorari could only be upheld.
WHEREFORE, the Court DENIES the petition for review; AFFIRMS the decision promulgated on September 25, 2002 in C.A.-G.R. SP No. 48033; DIRECTS the Regional Trial Court, Branch 30, in San Pablo City to issue forthwith the special order of demolition to implement its final and executory decision of November 20, 1989, as modified by the Court of Appeals in C.A.-G.R. CV No. 25347; DECLARES this decision to be immediately executory; and ORDERS petitioners to pay the costs of suit.
14Anama v. Court of Appeals, G.R. No. 187021, January 25, 2012, 664 SCRA 293, 308; De Leon v. Public Estates Authority, G.R. No. 181970, August 3, 2010, 626 SCRA 547, 565-566; Lee v. Regional Trial Court of Quezon City, Br. 85, G.R. No. 146006, April 22, 2005, 456 SCRA 538, 554; Beautifont, Inc. v. Court of Appeals, No. L-50141, January 29, 1988, 157 SCRA 481, 494.

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Entitlement to service connection for chronic pain syndrome is dismissed.
In August 2018, prior to the promulgation of a decision in the appeal, the Veteran expressed her intent to withdraw the pending appeal of entitlement to service connection for chronic pain syndrome.
The criteria for withdrawal of the appeal of entitlement to service connection for chronic pain syndrome are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).
The Veteran served on active duty from July 2001 to September 2010.
Briefly, the Board notes the AOJ, prior to certifying the matter to the Board, granted entitlement to service connection for Bartholin’s cyst by way of a May 2018 rating decision.  As this grant represents a full grant of the benefits sought in this regard, the issue of entitlement to service connection for Bartholin’s cyst is not before the Board.
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b).
On August 1, 2018, the Veteran submitted a written statement expressing her desire to withdraw the claim of service connection for chronic pain syndrome. Accordingly, the Board does not have jurisdiction to review the Veteran’s appeal and the issue must be dismissed.


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DENISE GRIFFIN & another vs. AMERICAN MOBILE CORPORATION & another.
The plaintiffs, Denise Griffin, a minor, and her mother, Mary C. Lepore, brought this action of tort against the defendants, American Mobile Corporation, and its employee, David Gleitsman. After the close of the evidence the trial judge, subject to the plaintiffs' exceptions, directed verdicts for the defendants. The evidence most favorable to the plaintiffs is summarized: Gleitsman operated an ice cream truck owned by American Mobile Corporation. On the day of the accident, five or six teen-age friends of Gleitsman helped him load the truck and they accompanied him on his route as they had on other occasions. The minor plaintiff and other youngsters purchased ice cream being sold from the truck by Gleitsman's friends while he remained in the driver's seat. Denise observed the boys engaging in "horseplay" inside the truck when it arrived. Upon completion of sales the operator called out from the driver's seat and asked if anyone wanted a ride. Denise accepted the invitation. Although she had never been on the truck before she had observed others riding on the truck. Accompanied by a friend she sat in the truck on the "window shelf" with her legs dangling outside the vehicle. The boys inside the truck called them names and one of them pushed the plaintiff from the moving truck which by then had moved a distance of about twenty-five to thirty feet and had reached a speed of about five miles an hour. Gleitsman stopped the truck within five to ten feet. The plaintiffs concede that Denise Griffin was a gratuitous guest on the defendant's truck. In these circumstances the defendants were liable only for gross negligence. There was no evidence of gross negligence by the defendants. Bagley v. Burkholder, 337 Mass. 246, 248. Motta v. Mello, 338 Mass. 170, 172. Moreover, the plaintiffs did not establish that Gleitsman had authority to invite persons such as the minor plaintiff to ride on the vehicle, O'Leary v. Fash, 245 Mass. 123; Falden v. Crook, 342 Mass. 173, 176-177 (child thrown from ice cream truck), or that the boys on the truck were the agents of the defendant American Mobile Corporation. Hollidge v. Duncan, 199 Mass. 121, relied on by the plaintiffs, is not applicable. The judge correctly directed verdicts for the defendants.
COMMONWEALTH vs. CHRISTOPHER J. DAVIS.
argues that the trial judge erred by denying counsel permission to handle a pistol, clip, and cartridge casing introduced as exhibits at the trial and by making certain comments concerning the handling of the pistol in the court room. The record shows no abuse of discretion by the judge, who explained the need to exercise caution in a crowded court room. The defendant's counsel was afforded sufficient opportunity to inspect the objects in question and was given the opportunity to cross-examine the officer who had seized the pistol and the ballistics expert who examined it. The comments to which the defendant took exception appear to us to be inconsequential and were not prejudicial. Commonwealth v. Mele, 358 Mass. 225, 230. There was no error.


In Nielsen v. Preap, four justices joined Justice Samuel Alito yesterday to adopt an expansive interpretation of a mandatory-immigration-detention statute. In Demore v. Kim, in 2003, the Supreme Court interpreted 8 U.S.C. § 1226(c) to require detention (without bond hearings) for the broad class of potentially removable immigrants identified in the statute. With their decision in Nielsen v. Preap, the Supreme Court further broadened this mandatory-detention provision to cover immigrants who, respondent Mony Preap contended, are not covered by the plain language of the statute.
8 U.S.C. § 1226(c)(1) instructs that the Department of Homeland Security “shall take into custody” certain immigrants who fall into one of four statutorily defined categories “when the [immigrant] is released, without regard to whether the [immigrant] is released on parole, supervised release or probation, and without regard to whether the [immigrant] may be arrested or imprisoned again for the same offense.” 8 U.S.C. § 1226(c)(2) indicates that immigrants who fall under Subsection (c)(1) may be released from immigration detention only in a narrow, specified subset of cases not applicable to Preap’s situation. DHS asserts the power to subject all other immigrants identified in Section 1226(c)(1) to mandatory detention without a bond hearing.
DHS did not take Preap “into custody” until about seven years after Preap was released from criminal custody. The other respondents in the case were also detained by DHS years after their release. They argued that they were not subject to the virtually automatic mandatory-detention provision of Subsection 1226(c), but that they were instead entitled to a bond hearing to determine the legality of their detention, as permitted by Subsection 1226(a). DHS argued to the contrary that they fell within one of the four groups of immigrants identified in subsection 1226(c) and were therefore covered by the mandatory-detention provision even if DHS did not detain them when they were released from criminal custody. Alito, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, agreed.
In a section of the opinion joined only by Roberts and Kavanaugh, Alito added that even if DHS is late in effectuating the arrests, “better … late than never.” To conclude otherwise would create a “windfall” for the immigrants who would otherwise be covered. Specifically, those immigrants would receive a bond hearing to decide the validity of their detention.
What purpose does the “when released” language serve, then? The court explained that it ensures that DHS does not cut short a criminal sanction to detain an immigrant, and it “exhort[ed] the Secretary to act quickly” when the immigrant is released. The court also noted that a contrary interpretation would mean that certain immigrants covered by the terrorism subsections of the detention provision – which are not triggered by and do not necessarily require criminal convictions – would not be subject to the mandatory-detention provision because there would not be a moment when they would be released from criminal custody. The dissenters observed that this could be a feature, not a bug, precisely because the absence of a triggering criminal conviction might render a bond hearing all the more important before the imposition of indefinite detention.
Thomas, joined by Gorsuch, wrote separately to question whether the Supreme Court has jurisdiction over any cases involving noncitizens detained prior to a final order of removal.
Kavanaugh wrote a short solo concurrence to demonstrate the “narrow” nature of the holding. The dissent pointed out, however, that “in terms of potential consequences and basic American legal traditions,” the decision is broadly consequential. Nothing in Kavanaugh’s concurrence substantively narrows its scope.
Breyer also noted that in both Subsections 1226(a) and 1226(c), there are provisions specifying conditions of release that apply “only if the Secretary complies with the detention rule in that subsection.” In Subsection 1226(c), that detention rule includes taking the individual into detention upon release, and this is true even if Subsection 1226(c) is read as a limit on Subsection 1226(a)’s detention authority, as proposed by the majority.
Breyer looked to legislative history to bolster his conclusions. He noted that Congress delayed the implementation of these detention provisions to allow for the creation of increased detention capacity. That delay would have been entirely unnecessary if Congress intended the provision to be read to countenance detention of the relevant immigrants at any time, rather than “when released” from criminal custody.
To the extent this provision authorizes indefinite detention without a bond hearing – including of people who have never had any hearing regarding the factual basis of their detention – it creates for the dissenters a due process problem of constitutional dimensions.


April 18, 2017 October 28, 2017 Mike Ivancie, Esq.
This article is going to cover a specific subsection of Title 31 currency seizures. These seizures are typically initiated by U.S. Customs and Border Protection (CBP) to travelers who fail to declare currency they are traveling with in excess of $10,000. Additionally, CBP may seize currency when travelers conspire to defeat reporting requirements by structuring the carrying of funds to fall below the reporting threshold (for example, a group of five individuals carrying money for one person and each person holds $9,000 instead of the single owner of the funds carrying $45,000 total).
For those unfamiliar, CBP is a federal agency within the Department of Homeland Security that was formerly the U.S. Customs Service. CBP is charged with securing the country’s borders and preventing dangerous items and individuals from entering the country. CBP enforces a broad range of laws from agricultural laws, to product safety laws, foreign asset control laws, and classic trade laws and that involve collecting duty on foreign imported merchandise.
Title 31 of the United States Code includes various monetary, banking and financial rules. Covering the entirety of Title 31 far exceeds the scope of this article. Instead, we will focus on the two most common Title 31 violations enforced by CBP. Those violations include: 1) failing to report currency when you travel internationally (entering or leaving the United States) and are carrying more than $10,000, and; 2) structuring, wherein you purposefully structure the amount of money individual(s) are carrying to avoid currency reporting requirements.
The purpose of this statute is to prevent the transport of large amounts of currency without informing the government. It is important to note that carrying more than $10,000 in currency is not illegal. However, it is a violation of law if you fail to report when you are carrying large amounts of currency (> $10,000) internationally. The government has established these reporting requirements for a number of reasons, the most prominent being that it prevents money laundering. Moreover, it is common for illicit activity, like the drug trade, to be transacted in currency outside of the banking system. This reporting requirement attempts to regulate large currency transfers and prevent them from going undetected outside of regular banking institutions.
This section tries to minimize the circumstances in which parties may evade the reporting requirements of 31 U.S. Code § 5316(a). As mentioned before, a classic example is where multiple people carry a single entity’s currency so that none of them exceed the reporting requirement. Were a group of individuals to do this, they should expect that all of the group’s currency will be seized for violating 31 U.S. Code § 5324.
A less sophisticated example of structuring would be where an non-married couple transit through customs separately but the boyfriend is actually carrying $9,000 of the girlfriend’s money and she is carrying $9,000 of her own money as well. Technically neither of them trigger the reporting requirement, however, the fact that the money is the girlfriends and the fact that they distributed the currency to avoid the $10,000 reporting requirement suggests the money could be seized for structuring in violation of 31 U.S. Code § 5324(c).
What happens once my money is seized for a Title 31 violation?
So, what happens if CBP believes you have violated one of the above listed laws? Most likely they will ask you questions about why you were carrying the money, who you were carrying it for, where you got it, and how you planned to spend it. How you answer those questions could be critical to the determination CBP makes about the legality of your actions and whether you are entitled to any leniency later on if they pursue seizure and forfeiture.
If CBP ultimately determines that a violation has occurred, they will initiate a seizure action. Usually this will involve counting the total amount of currency then issuing a “Custody Receipt for Detained or Seized Property” (CBP Form 6051A). This form will include an accounting of the money seized and a chain of custody for the officers to complete. It is important that you provide accurate contact information to the officers because they will send an official seizure notice to the address you provide them that day. Sometimes the officers will not seize all the money you are transporting and will return some back to you for “humanitarian” reasons. The purpose of this money is to allow you to cover small costs and not leave you destitute if you were planning to fund your travels solely with the cash you were carrying. Usually the humanitarian release is a small percentage of the total money seized, so for a $50,000 currency seizure they may release $500 or $1,000 to the traveler for humanitarian reasons.
After you are released and the money is seized, it will be transferred to CBP’s Fines, Penalties & Forfeitures Office for further processing. This is the office that will issue the official seizure notice which is usually titled “NOTICE OF SEIZURE AND INFORMATION TO CLAIMANTS CAFRA FORM.” CAFRA, in this context, stands for the Civil Asset Forfeiture Reform Act of 2000 which governs the procedure for processing certain seizure and forfeiture actions. It is important that you respond promptly to the seizure notice. Generally, you only have 30 days to file a petition for relief in response to a seizure. See 19 C.F.R. § 171.2(b). The deadline for requesting judicial forfeiture is usually 35-days after mailing of the notice. 18 U.S. Code § 983(a)(2)(B). Every agency and office may vary these deadlines slightly, but the general guidance is that you need to act promptly. Sitting on a seizure notice could lead to you losing the right to challenge the forfeiture of the property, which would result in a total loss of all seized funds.
Seizure is the taking of funds by the government when there is a cognizable theory (probable cause) as to how those funds are connected to some illegal activity. Forfeiture is the next step in the process after seizure, wherein the government initiates the formal process of taking legal title to those funds. This is an important distinction: seized funds, while they may be held by the government they are not legally owned by the government, but once a forfeiture action is completed successfully, title to the forfeited funds formally passes to the federal government. In short, forfeiture transfers title of property from an individual to the government.
For purposes of ensuring compliance with the requirements of section 5316, a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States.
The court in imposing sentence for any violation of section 5313, 5316, or 5324 of this title, or any conspiracy to commit such violation, shall order the defendant to forfeit all property, real or personal, involved in the offense and any property traceable thereto.
Forfeitures under this paragraph shall be governed by the procedures established in section 413 of the Controlled Substances Act.
Any property involved in a violation of section 5313, 5316, or 5324 of this title, or any conspiracy to commit any such violation, and any property traceable to any such violation or conspiracy, may be seized and forfeited to the United States in accordance with the procedures governing civil forfeitures in money laundering cases pursuant to section 981(a)(1)(A) of title 18, United States Code.
31 U.S. Code § 5317 (emphasis added).
As you can see, this law gives CBP the right to search any person entering or departing from the United States. It also allows for the criminal or civil forfeiture of any assets that have been found to violate sections 5316, or 5324.


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It is the city’s intent that industrial uses be encouraged in accordance with the comprehensive plan and that potential industrial areas be retained as an essential element for a vital economic base for the population of Coos Bay. The intent of this district is to provide suitable areas for a variety of industrial and commercial uses, including manufacturing, wholesale trade and distribution activities. The industrial-commercial district is intended to contain uses that will not generate excessive noise, pollution, vibration, smoke, dust, gas, fumes, odors, radiation and other violation characteristics. Conditional uses are those which may have some violation characteristics that may be mitigated and where such uses may be appropriately sited in Coos Bay. Industrial-commercial districts are only intended to be located in areas with relatively level topography, adequate water and sewerage facilities, and access to arterial streets and highways. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016].
The following uses in the industrial-commercial (I-C) zone are permitted (P), conditional (C) or prohibited (X) as indicated in Table 17.235.020.
Residential uses above the ground floor or story and up to 30 percent of ground floor or story when secondary to commercial uses. Including residences for a caretaker or night watchman.
Sales/rentals, light equipment – Sale, retail, or wholesale, and/or rental from the premises of autos, noncommercial trucks, motorcycles, motor homes, recreational vehicles, boats, and trailers with generally less than a 10,000-pound gross cargo weight, together with incidental maintenance. Typical uses include automobile dealers, car rental agencies, or recreational vehicle sales and rental agencies, and small boat sales.
Cemetery – Places primarily for the burial of human remains; may include crematory and interring services. Typical uses include mausoleums, columbariums, and crematoriums.
Cremating/interring – Crematory services involving the purification and reduction of the human body by fire and/or the keeping of human bodies other than in cemeteries. Typical uses include crematories, crematoriums, columbariums, and mausoleums.
Auction – Auctioning of livestock on a wholesale or retail basis with incidental storage of animals produced off-property not exceeding a 48-hour period. Typical uses include animal auctions or livestock auction yards.
[Ord. 503 § 1 (Exh. B), 2018; Ord. 486 § 2, 2017; Ord. 473 § 3 (Exh. A), 2016].
(1) Shared access points with abutting or adjacent development shall be provided whenever practicable.
(2) New land divisions creating lots of less than one acre are not permitted unless consistent with a site plan approved under the standards of this title.
(3) Site plan review is required for all new development and modifications to existing permitted development unless expressly exempted by this title.
(4) Service Roads, Spur Tracks, Hard Stands, Outside Storage Area. No service road, hard stand or outside storage area, or similar use shall be permitted within required setbacks adjoining residential districts.
(5) Fences and Walls. Sight-obscuring fencing or walls, visible from the public right-of-way, shall be screened with dense sight-obscuring plant materials.
(a) Blank walls are discouraged next to residential zones. If a blank wall is adjacent to residential zones the applicant shall provide and maintain a vegetative buffer of at least 11 feet high that creates a varied appearance to the blank wall. Other features such as false or display windows, artwork, and varied building materials are acceptable.
(b) Building facades facing public streets shall have 50 percent of the total surface area of the wall transparent.
(c) Parking areas adjacent to rights-of-way shall be physically separated from the rights-of-way by landscaping or other features to a height of three feet. A combination of walls, berms and landscape materials is highly recommended. Sidewalks may be placed within this landscaping if the street is defined as a collector or arterial with a speed limit of 35 miles per hour or above, in order to separate the pedestrian from heavy or high-speed traffic on adjacent roads.
(d) Primary building entrances shall be physically oriented to the street or to a pedestrian walkway.
(e) If a development is located within 250 feet of an existing or proposed transit stop, the applicant shall provide a transit stop and shelter directly adjacent or as close as possible to the main building entrance as the transit authority requires.
(f) All off-street parking areas shall be planted with a minimum of one deciduous tree for every six parking spaces. Trees shall be of such species and spacing that a canopy effect shall result. Trees must be dispersed throughout the parking lot.
(g) Required setback areas adjacent to streets and those abutting a residential district shall be continuously maintained in lawn or live ground cover. Allowed uses in these areas are bikeways, pedestrian paths and water quality facilities.
(i) Minimum Size. A minimum of 10 feet depth and width with a minimum size of 650 square feet.
(ii) Paving. A minimum of 80 percent of the area shall be paved in a decorative paver or textured, colored concrete. Asphalt is prohibited as a paver in pedestrian plazas.
(i) Structures and open spaces should be clustered on site to maximize the campus and open space qualities within the development.
(j) When security fencing is required, it shall be a combination of solid wall, wrought iron, dense hedges or other similar treatment. Long expanses of fences or walls shall be interspersed with trees or hedges to break up the appearance of the wall at least every 50 feet for a distance of at least five feet.
(7) Pedestrian Access Plan. An on-site pedestrian circulation system must be provided, which connects the street to the public entrances of the structure(s) on site.
(a) The circulation system shall be hard-surfaced and be at least five feet wide.
(b) Where the system crosses driveways, parking, and/or loading areas, the system must be clearly identifiable through the use of elevation changes, speed bumps, varied paving materials or other similar methods approved by the reviewing authority and in compliance with the Americans with Disabilities Act (ADA).
(c) The on-site pedestrian circulation system and parking areas must be lighted to a level which provides adequate lighting so that parking areas can be used safely when natural light is not present.
(d) The pedestrian system must connect the site to adjacent streets and transit stops. The pedestrian system must also connect on-site public open space or parks, commercial, office and institutional developments to adjacent like uses and developments for all buildings set back 45 feet or farther from the street lot line, when existing development does not preclude such connection. Development patterns must not preclude eventual site-to-site connections, even if an adjoining site is not planned for development at the time of the applicant’s development.
(i) Maximum permissible noise levels shall not exceed permitted levels measured at the appropriate measuring points established by the Oregon Department of Environmental Quality. If there is doubt that the proposed use will violate these standards or if a valid complaint has been registered about the level of noise, the owner or agent may be required to show written compliance with state regulations.
(ii) Vibration. Vibration other than that caused by highway vehicles, trains, and aircraft, which is discernible without instruments at the property line of the use concerned, is prohibited.
(iii) Smoke and Particulate Matter. Air emissions must be within legal limits as approved by the Oregon Department of Environmental Quality.
(iv) Odors. The emission of noxious gases or matter in such quantities as to be readily detectable at any point beyond the property line of the use creating such odors is prohibited.
(v) Heat and Glare. Except for exterior lighting, operations producing heat and glare shall be conducted entirely within an enclosed building. Exterior lighting shall be designed to shield surrounding streets and land uses from violation and glare.
(b) Administration. As a condition for the granting of a building permit and/or site plan approval, at the request of the responsible official, the applicant shall furnish information sufficient to determine the degree of compliance with the standards in this section. Such request may include submission of continuous records of operation for periodic checks to assure maintenance of standards, and special surveys.
(9) Light and Glare Standards.
(a) Except for exterior lighting, operations producing heat and glare shall be conducted entirely within an enclosed building.
(b) Exterior lighting shall be shielded and directed away from lots in adjacent uses.
(c) Interior lighting in parking structures shall be shielded to minimize nighttime glare affecting lots in adjacent uses.
(d) When nonconforming exterior lighting is replaced, new lighting shall conform to the requirements of this section.
(a) All storage areas (including but not limited to areas used to store raw materials, finished and partially finished products and wastes) shall be screened from adjoining properties or public rights-of-way. Storage areas which adjoin residential districts or in areas where differences in elevation defeat the purpose of this requirement shall be screened with a fence which shall be placed on top of a berm in order to effectively screen the use.
(b) Screening shall be placed on all sides of storage areas other than where a building wall would act as a screen.
(d) The applicant shall demonstrate that both outdoor storage and the screening for outdoor storage are in the appropriate locations on the site to minimize impacts, given the operational practices of the facility.
(11) Vibration. Site-generated ground vibrations shall not be perceptible by a person of ordinary sensitivity, without instruments, at any point of any property line of the property on which a use or structure is located. Vibrations from temporary construction activities and vehicles that leave the property (such as trucks, trains, airplanes and helicopters) are excluded.
(12) Electromagnetic Interference. Electric fields and magnetic fields shall not be created that adversely affect the normal operation of equipment or instruments or normal radio, telephone, or television reception from off the premises where the activity is conducted. This section does not apply to telecommunication facilities which are regulated by the Federal Communications Commission under the Federal Telecommunications Act of 1996 or its successor. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016].

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Does Resentencing To Correct Clerical Omission Create New Opportunity for Offender to Appeal Conviction, Sentence?
Pursuant to the Supreme Court of Ohio’s 2008 decision in State v. Baker, does a trial court’s entry of an amended criminal sentencing order in its journal to correct a clerical omission effectively create a first “final appealable order” in the case, thereby empowering the defendant to initiate a new direct appeal challenging all aspects of her conviction and sentence, including issues that have already been litigated in a prior appeal?
In aggravated murder cases in which the trial court is required under R.C. 2929.03(F) to file a sentencing opinion separate from its judgment of conviction, should the judgment of conviction and sentencing opinion be read together in determining whether the court has met the requirements for a “final appealable order” set forth in Criminal Rule 32(C)?
BACKGROUND: This case involves an attempt by prison inmate Sandra Griffin to reopen her case. Griffin was convicted of participating in the 1989 robbery and murder of James Steurer of Coshocton, and has been imprisoned for that crime for the past 23 years.
Griffin was indicted on multiple felony counts including aggravated murder with a death penalty specification. In return for the state’s agreement not to pursue the death penalty, she waived her right to a jury trial and also waived trial before a three-judge panel, and instead was tried before a single judge. She was found guilty on all counts and the death penalty specification, and that judgment of conviction was recorded in the court’s journal on December 21, 1989. Following the statutory procedure for trials in which “death may be imposed as a penalty,” set forth in R.C. 2929.03(F), the trial judge conducted a separate sentencing hearing and on Janaury 29, 1990, made a separate journal entry recording a sentence of life imprisonment with the possibility of parole after 30 years. The sentencing entry did not include information (already journalized in the court’s judgment of conviction) about the not-guilty plea entered by Griffin or the fact that she was convicted in a bench trial.
Griffin pursued a direct appeal in which she raised among other issues a claim that her convictions and sentence were invalid because her indictment included a death penalty specification, and the trial court was therefore required to try her before a three-judge panel notwithstanding her putative waiver of that right. In 1992, the Fifth District Court of Appeals denied Griffin’s appeal, including her claim based on the single-judge issue. The Supreme Court of Ohio declined to review the Fifth District’s decision. Griffin subsequently raised the single-judge issue in a federal habeas corpus action. The federal court rejected that argument and affirmed her conviction in 1998.
In 2008, the Supreme Court of Ohio ruled in State v. Baker that a trial court’s journal entry of a criminal conviction meets the requirements of a “final” order that is subject to appeal if it sets forth in the same document (1) the guilty plea, jury verdict or finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) a notice of entry on the court’s journal by the clerk of court.
In August 2009, Griffin filed a motion asking the Coshocton County Court of Common Pleas to issue a final appealable order in her murder case. In that motion, Griffin cited the Baker decision and alleged that the trial court had never issued a final, appealable order in her case because the separate journal entries recording the court’s December 1989 judgment of conviction and its January 1990 sentencing opinion did not set forth in a single document all the elements specified in Baker. The trial court entered a revised sentencing entry in the case on August 27, 2009, incorporating all of the elements specified in Baker in a single document.
Griffin then filed a new notice of appeal of her murder conviction with the Fifth District, again raising the single-judge issue the court had rejected in 1992. In doing so, Griffin asserted that there had not been a valid final judgment in her case until the corrected 2009 sentencing entry was made, and therefore her prior appeal had been a legal nullity, and she was entitled to a “first appeal” of the final judgment that had only been completed by the recording of the corrected entry. The state filed a motion to dismiss, arguing that the Fifth District had already considered and rejected Griffin’s claims based on the single-judge issue 17 years earlier, and that relitigation of that issue was barred by res judicata (the legal doctrine that a matter already tried and decided cannot be raised again).
In a 2-1 majority opinion issued July 27, 2010, the Fifth District denied the state’s motion to dismiss and entered a judgment vacating her conviction and remanding the case for a new trial. In its decision, the court of appeals held that, based on Baker, there had not been a valid final, appealable judgment in Griffin’s case until the trial court made its 2009 corrective journal entry, and therefore the Fifth District’s 1992 ruling on her original appeal had been of no legal force. In considering Griffin’s single-judge argument “de novo” (as if for the first time), the court took note of State v. Parker, a 2002 decision in which the Supreme Court of Ohio held that in cases where a defendant was charged with a death penalty specification, the case must be tried before a three-judge panel even though the state has agreed not to seek the death penalty.
The state appealed the Fifth District’s ruling to the Supreme Court. The court summarily vacated the court of appeals’ decision and remanded the case for disposition consistent with this court’s 2010 holding in State v. Ketterer. In Ketterer, the court heldthat in death penalty cases where the entry of a separate judgment of conviction and sentencing opinion is mandated by law, the trial court’s judgment should be upheld as a final appealable order if all four elements required by Baker were contained in the two journal entries when they are read together. On remand, the Fifth District again vacated Griffin’s murder convictions and ordered a new trial, finding that unlike the trial court in Ketterer, the trial court in this case was not required by law to record a separate sentencing opinion because the court never considered the aggravating and mitigating factors supporting imposition of the death penalty. The state sought and was granted Supreme Court review of the Fifth District’s most recent ruling.
Attorneys for the state urge the court to follow its recent decision in State v. Lester, in which the justices held that when a trial court must make a corrective sentencing entry to remedy the clerical omission of the manner of a defendant’s conviction, as required under Baker, that entry does not give the defendant a new opportunity to re-open the entirety of his or her case to relitigate a conviction or sentence that was lawfully imposed. They also urge the court to find that, even though the state did not seek a death sentence, because Griffin was charged with a death penalty specification, the trial court that decided her case was required under R.C. 2929.03(F) to enter a sentencing entry separate from its judgment entry of conviction, and therefore fell under the exclusion from the “one-document” requirement of Baker that the court set forth in its Ketterer decision.
Attorneys for Griffin urge the court to affirm the judgment of the Fifth District, which they say correctly held that the court of appeals acted without jurisdiction when it heard and decided her 1992 appeal because the trial court had not issued a valid final order at that time. Because Griffin’s right of appeal only arose after the trial court made its corrected sentencing entry in 2009, they assert, the Fifth District also acted properly in applying the Supreme Court’s 2002 decision in State v. Parker to overturn her murder conviction and order a new trial on the basis that the law required a trial before a three-judge panel, and Griffin had no ability to waive that requirement.
Is Public Employee’s Statement to Inspector General in Investigation a ‘Compelled Statement’ That May Not Be Used in Criminal Prosecution?
ISSUE: When an employee of a state agency is questioned under oath by the Ohio Inspector General’s Office as part of an investigation of a suspected violation of law or administrative rules, and termination of employment is a possible sanction the employing agency could impose if the employee fails to fully and truthfully respond to questions posed by the inspector general, are the employee’s statements to the inspector general “compelled” statements under the U.S. Supreme Court’s decisions in Garrity v. New Jersey and Kastigar v. U.S., rendering information obtained through those statements inadmissible in a subsequent criminal proceeding against the employee?
BACKGROUND: In Garrity (1967) and Kastigar (1971), the U.S. Supreme Court held that when a public employee is required to fully and truthfully respond to questioning in connection with an administrative investigation of suspected wrongdoing, and the employee faces termination from his or her job as a consequence of refusing to answer, information disclosed by the employee in such a compelled statement may not be used directly or indirectly as evidence against the employee in a subsequent criminal prosecution.
In this case, four senior officials of the Ohio Department of Natural Resources, Division of Wildlife, (DOW) including division chief David Graham, conducted an internal investigation of alleged wrongdoing by a division employee, Brown County wildlife officer Allan Wright. The investigation was in response to an allegation that Wright had aided a friend and fellow wildlife officer from another state in obtaining an Ohio hunting license as an in-state resident rather than as an out-of-state resident. By listing Graham’s home address on his application, the out-of-state officer was able to obtain an Ohio license for $19 rather than the $125 out-of-state fee.
Graham, along with DOW’s human resources and law enforcement program managers, and the district manager whose territory included Brown County, conducted an internal review of the matter and reprimanded Wright, but did not refer the case to the Brown County prosecutor for criminal prosecution.
Several months later, information about the Wright incident was sent to the office of the Ohio Inspector General (OIG) by a confidential informant. After contacting ODNR and being informed that the division had already conducted its own internal review of the incident, the OIG notified ODNR that the OIG was going to conduct an independent investigation. Each of the DOW officials who had participated in the internal review was contacted by the OIG and instructed to come to the OIG office to be interviewed by Deputy Inspector General Ron Nichols. Prior to being interviewed individually by Nichols, the DOW officials were each required to sign a sworn statement that they would answer all questions fully and truthfully. The DOW officials were not advised before or during their interviews with Nichols that the legality of their actions in conducting the division’s internal review of the Wright incident was a focus of the OIG investigation.
After obtaining the statements of the DOW officials, the OIG sent a report to the director of ODNR and to the Brown County prosecutor’s office. The report questioned whether the DOW managers’ collective failure to refer Wright’s conduct for criminal prosecution was itself a violation of state law. Along with its report, OIG provided the prosecutor with transcripts of the sworn statements the DOW officials had made during their interviews with Nichols.
The prosecutor decided to seek indictments against the DOW officials by a Brown County grand jury. During grand jury proceedings, the prosecutor provided jurors with transcripts of the officials’ respective interviews with Nichols. The grand jury handed down indictments charging Graham and the other DOW officials with felony counts of obstructing justice and complicity to obstruct justice.
Graham and his codefendants filed motions asking the trial court to suppress all information obtained by the prosecutor through review of their statements to the inspector general. In support of that motion, they cited the U.S. Supreme Court’s holdings in Garrity, Kastigar and other cases barring the use of statements a public employee is compelled to make during an administrative investigation as evidence against the employee in a subsequent criminal prosecution.
The court conducted a suppression hearing at which it heard testimony from ODNR Labor Relations Administrator Bret Benack, the senior advisor to the director of ODNR on matters of employee discipline. Benack testified that department rules required all employees to fully and truthfully respond to questions posed to them during administrative investigations, and that refusal to answer questions during such an investigation, particularly by senior executives, could subject an employee to disciplinary action up to and including termination from employment. The court granted the motion to suppress, barring the state from making any direct or indirect use of information it had obtained by reviewing the defendants’ statements to the OIG.
The state appealed. On review, the Twelfth District Court of Appeals reversed the trial court, vacated the suppression order, and remanded the case for further proceedings. In a 2-1 majority opinion, the appeals court held that Garrity and Kastigar are applicable only in situations where a public worker is compelled by his or her employer to answer potentially self-incriminating questions during an administrative investigation, and the employer explicitly indicates that the consequence of refusing to answer those questions fully and truthfully would be termination. In this case, the majority noted, Graham and the other DOW managers were questioned by the OIG, a third-party agency that had no authority to terminate their employment or impose any other disciplinary sanctions against them other than seeking a contempt order. The court also ruled that there was insufficient evidence in the record to support the trial court’s findings that the defendants’ statements were involuntary, or that they had an objectively reasonable basis to believe that refusal to respond to the OIG’s questions would result in the loss of their jobs.
The defendants sought and were granted Supreme Court review of the Twelfth District’s ruling.
Attorneys for the defendants argue that, contrary to the Twelfth District’s holding, nothing in Garrity, Kastigar or other federal and state court decisions in similar cases requires that an employee’s compelled statement must have been compelled by his or her employing agency in order to render it inadmissible in a criminal prosecution. They point to a specific provision of state law, R.C. 121.45, that requires all state employees to cooperate fully with OIG investigations, and assert that Benack’s testimony at the suppression hearing supported the trial court’s finding that the refusal of an ODNR employee, and especially of a senior manager, to fully answer questions during either a departmental or an OIG investigation of suspected wrongdoing would be grounds for the department to impose a sanction up to and including termination. They also point to decisions from other states holding that a public employee’s statements made during an administrative investigation are “compelled,” and thus subject to suppression under Garrity, even when the potential consequence of noncompliance is a sanction less severe than firing, such as loss of a government contract or a professional license.
Attorneys for the state urge the court to affirm the Twelfth District’s decision, which they say correctly held that Garrity requires suppression of a public employee’s statements only in cases where the employee is directly and specifically threatened by his or her employer with termination if the employee refuses to truthfully answer questions that may prove to be self-incriminating. In this case, they assert, the OIG could not and did not threaten the defendants with termination or any other punishment if they declined to answer Nichols’ questions, but merely solicited their voluntary statements about a division employee’s illegal conduct and their handling of that incident.
Is Felonious Assault Based on Infliction of ‘Serious Physical Harm’ a Lesser Included Offense of Attempted Murder?
ISSUE: Under the test set forth in the Ohio Supreme Court’s 2009 decision in State v. Evans, in a trial where the defendant has been indicted only on a charge of attempted murder, may the court validly instruct the jury that it may find the defendant not guilty of the charged offense, but guilty of “serious physical harm” felonious assault under R.C. 2903.11(A)(1) as a lesser included offense of attempted murder?
BACKGROUND: The Ohio Constitution requires that before a person may be charged in court with a felony offense, the state must first present evidence to a grand jury, and the grand jury must return an indictment finding that the evidence presented was sufficient to establish probable cause that the accused committed the offense charged in the indictment.
Ohio Criminal Rule 31(C) provides that a court deciding a criminal case may find that the evidence presented by the state was insufficient to prove the offense charged in the indictment, but instead find the defendant guilty of a less serious crime not charged in the indictment, if that crime qualifies as a “lesser included offense” of the charged offense. When a criminal case is tried before a jury, if either the defendant or the state wishes the jury to consider one or more lesser included offenses in addition to the crime charged in the indictment, that party must request that the judge instruct the jury on the elements of each lesser offense before the jury retires to deliberate.
In this case, David Deanda of Tiffin was indicted by a Seneca County grand jury on one count of attempted murder for stabbing another man multiple times in the neck and chest while shouting that he intended to kill the victim. No other offenses were charged in the indictment.
At trial, before the case went to the jury, Deanda’s attorney asked the court to instruct the jurors that instead of convicting Deanda on the charged offense of attempted murder, they could instead find Deanda guilty of a lesser offense, aggravated assault. In response to the defense motion, the prosecutor asked the judge to also instruct the jury on a different lesser offense, felonious assault. Without objection from either party, the court instructed the jury on both lesser offenses as well as attempted murder.
The jury returned a verdict of not guilty on the attempted murder charge, but found Deanda guilty of felonious assault based on a finding that he had inflicted “serious physical harm” on the victim of his attack. The court sentenced Deanda to seven years in prison. He subsequently appealed his conviction, arguing that the trial judge had committed reversible error by instructing the jury on “serious physical harm” felonious assault, because that crime did not meet the requirements of a lesser included offense of attempted murder.
The Third District Court of Appeals agreed with Deanda’s argument, finding that the form of felonious assault of which he was convicted was not a lesser included offense of attempted murder because it was theoretically possible to attempt to murder someone (for example, by putting poison in food that the intended victim doesn’t eat) without actually causing that person to suffer serious physical harm. Based on that analysis, and the fact that Deanda had not been indicted for the separate offense of felonious assault, the court of appeals held that his conviction on that charge violated Deanda’s right to a fair trial and vacated his conviction and sentence.
The state sought and was granted Supreme Court review of the court of appeals’ decision.
Attorneys for the state argue that the test applied by the Third District, i.e., whether it was ever possible to commit attempted murder without also committing felonious assault, failed to follow the Supreme Court of Ohio’s 2009 decision in State v. Evans. In Evans, they assert, the court significantly modified the former test for lesser included offenses (set forth in State v. Deem, 1988) by eliminating the word “ever” from the required analysis. By doing so, they contend, the court eliminated the requirement that there be no abstract hypothetical situation in which the greater crime could possibly be committed without also committing the lesser offense, and instead required courts to consider whether an indictment for the greater offense put the defendant on notice that he was accused of conduct that would also support the lesser charge.
They argue that where the elements of a lesser offense are not equivalent to those of a more serious charge, as in this case, it is the responsibility of the state to present evidence to a grand jury and obtain an indictment on that separate offense. Because the state failed to obtain a separate indictment for felonious assault, and the trial court acted contrary to law in instructing the jury to consider felonious assault as a lesser included offense of attempted murder, they assert, the court should affirm the Third District’s determination that Deanda’s conviction and sentence for felonious assault were unlawful and therefore must be vacated.

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§ 62-5 Registration and permits.
§ 62-6 Obligations of Village; termination of system and permits.
§ 62-8 Dial alarm devices.
§ 62-10 Penalties for offenses.
The intent of this chapter is to provide for a police, fire or other emergency alarm system in the Village of Spring Valley, Town of Ramapo, County of Rockland and State of New York, together with standards, fees and procedures for connection thereto and providing for the issuance of permits thereunder, together with penalties for violation thereof.
The purpose of this chapter is to provide standards and regulations for various types of burglar, fire and other emergency alarm devices, unless more specifically stated in Chapter 82, whether by alarm company or other means, requiring response thereto by the Police Department, the Fire Department, Emergency Medical Technicians or other municipal agencies.
The provisions of this chapter shall apply to any person, firm or corporation (also referred to as the "alarm user") who operates, maintains or owns any alarm device or local alarm designed to summon the Police Department, the Fire Department, Emergency Medical Technicians or other municipal agencies to any location in response to any type of alarm signal. The terms of this chapter shall apply to any person, firm or corporation having a premises protected by an alarm device in accordance with § 62-5A and for the fee as established in § 118-4J(1).
Any type of alarm system actuating equipment providing warning of intrusion, fire, smoke, flood, medical elevator malfunction or other peril.
Any alarm device or combination of devices installed for one or more buildings at a location.
Any person, firm, corporation or business entity who or which has installed and/or receives compensation for service or maintenance of a burglar/security, non-fire emergency system alarm or fire alarm device from a resident upon whose property the device has been installed.
The owner or person in charge of any residence, firm or corporation or business entity upon whose premises within the Village of Spring Valley an alarm device is installed or operating. Also known as the "permittee."
As appointed by the Building Inspector.
That type of device, mechanical or electronic in nature, using telephone lines transmitting an alarm directly through the police switchboard that produces a prerecorded voice message reporting a criminal act, fire or other emergency calling for police, fire or medical assistance.
Any alarm actuated by inadvertence, negligence or unintentional act of someone other than an intruder and shall include as well alarms caused by malfunctioning of the alarm device or other relevant equipment that causes the summoning of the Police Department, the Fire Department, Emergency Medical Technicians or other municipal agencies to any location in response to any type of alarm signal.
Any alarm or device which, when actuated, produces a signal not connected to any monitoring station, such as store burglar alarms or fire sprinkler alarm actuating bell devices or any type of audio noise.
Includes but is not limited to elevator car emergency call button/telephone and nurses medical call system.
Any person owning an alarm device or a local alarm within the scope of this chapter.
Except as hereinafter provided, it shall be unlawful for any individual, partnership, corporation or firm to operate or maintain an alarm device, as defined by this chapter, without a valid permit, except fire or sprinkler alarms directly connected to Fire Control 44. A permit is valid for one year, commencing the first day of registration approval.
Any individual, partnership, corporation or firm which owns, operates or maintains an alarm device or devices, except a fire alarm or fire sprinkler system directly connected to Fire Control 44, shall make application to the Building Inspector or designated representative for a permit therefor on forms supplied by the Building Department. The application shall specify the name, address and telephone number, date of birth and driver's license of the owner of the alarm installation (also known as "alarm user"), the exact street address location of the alarm device or devices, the name and telephone number of the alarm installer/maintainer of said device (also referred to as the "alarm company"), the type of system located at premises, if any, provisions relating to false alarms and testing procedures, a secondary name, phone number, date of birth and driver's license of a person to be contacted in the event of an alarm and other information relating to the alarm device reasonably required by the Building Inspector or designated representative.
The Building Inspector or designated representative is the designated official of the Village of Spring Valley to issue and renew permits, to remove or suspend permits and to otherwise enforce and apply the provisions of this chapter.
An application for a permit or permit renewal may be denied if the Building Inspector or designated representative disapproves of the equipment intended to be used or continued by the applicant or the manner of use thereof or if the applicant has violated any other provisions of the law or is in default in the payment of the annual fee.
The permittee shall comply with all other provisions of this chapter.
Each person submitting an alarm permit application form for a burglar/security, fire alarm or fire sprinkler system not directly connected to Fire Control 44, or other non-fire emergency system, shall receive an alarm device system registration permit sticker, after paying the applicable alarm user registration fees as set forth in Chapter 118. The permit sticker shall be clearly displayed on or near the main entrance door to the premises served by the alarm system.
All existing burglar/security, fire alarm/fire sprinkler systems not directly connected to Fire Control 44 or other non-fire emergency system users must register their alarm device or system of alarm devices within 90 days of the effective date of this chapter.
Any alarm installer contracted to install a burglar/security or non-fire emergency alarm device or system of alarm devices must be licensed to perform home improvement pursuant to a license issued by the Rockland County Office of Consumer Protection.
Any alarm installer contracted to install a fire alarm device or system of alarm devices must be licensed pursuant to a license issued by the Rockland County Office of Fire and Emergency Services (aka, Fire Control 44) or possess a valid New York State Fire Alarm License or be NICET or UL certified in fife alarm installation and show proof when requested by the Building Inspector or designated representative.
Termination of outside audible signal. If a burglar/security or non-fire emergency alarm device or system of alarm devices activates an outside audible signal, such outside audible signal cannot be broadcast for more than 15 minutes after initial activation.
The Village of Spring Valley shall be under no obligation to any permittee hereunder. Upon recommendation by the Building Inspector or designated representative, for good cause shown, the Village Board of Trustees may terminate any individual permits issued hereunder, provided that 30 days' notice is given, in writing, to said permittee by certified mail.
All fire alarm devices shall be installed and maintained in accordance with the requirements of the Village of Spring Valley Fire Codes, NFPA 72 and Building Codes.
Editor's Note: See Ch. 82, Building Construction and Fire Prevention.
Any permittee utilizing the services of any alarm company shall provide for a representative to be on call at all times, and such service shall be provided immediately after notification by the Police Department, Fire Control 44, the Building Inspector or designated representative of any malfunction of any equipment.
In the case of a false alarm, any person having knowledge thereof shall immediately notify the Police Department in a manner to be prescribed by rules and regulations pursuant to § 62-9 of this chapter.
In addition, in the case of false alarms, where a written complaint by an officer of the Fire or Police Department or other person is made and contains the following: name and address of alarm user, date and time of false alarm, the circumstances of the agency response, the cause of the false alarm (if known) and any prior false alarms, if any, the Building Department of the Village of Spring Valley, shall cause an investigation to be made, shall issue a court appearance ticket and shall keep a record of such false alarms.
Where the investigation of the Building Department discloses continued abuse of the permittee in failing to take remedial steps to avoid false alarms, the Building Inspector or designated representative reserves the right to issue a summons or court appearance ticket in violation of Village of Spring Valley Code of Ordinances § 255-63A(2) for failure to comply with a written order and shall be subjected to § 62-10, Penalties for offenses.
Any unauthorized equipment found by the Building Inspector or designated representative not to be in compliance with this chapter may be disconnected, and any person installing or maintaining unauthorized equipment shall be prosecuted for violation of this chapter, and each and every day said equipment is in operation shall be considered a separate violation. Any permittee shall, by acceptance of the permit, be deemed as having consented to inspection of the premises on which said alarm devices are installed at reasonable hours by the Building Inspector or designated representative.
Within 10 days after an alarm system is tested or repaired, or when requested by the inspector, the alarm company of record shall forward a copy of the latest alarm system test report (whether system passed or failed) to the Inspector by way of mail or legible fax transmission. Note: As stated in § 82-32E(1)(b) of the Code of Ordinances of the Village of Spring Valley, fire alarms systems are required to be tested on a quarterly basis.
Dial alarm devices are not permitted in the Village of Spring Valley.
The Building Inspector may, from time to time, promulgate rules and regulations supplementing this chapter in order to provide for recordkeeping and efficient management of said system; provided, however, that the Spring Valley Village Attorney's Office must first approve said rules or any changes thereto.
Third false alarm in any consecutive twelve-month period, a fine of $100 shall be assessed and paid to the Village of Spring Valley.
Fourth false alarm in any consecutive twelve-month period, a fine of $200 shall be assessed and paid to the Village of Spring Valley.
Fifth false alarm in any consecutive twelve-month period, a fine of $500 shall be assessed and paid to the Village of Spring Valley.
Any number of false alarms in excess of five in any consecutive twelve-month period, shall make the offender subject to a fine not to exceed $5,000 and/or imprisonment for a period not to exceed 15 days, or both.