Opinion
B328622
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. TRAVIS GEORGE, Defendant and Appellant.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA277679, Mildred Escobedo, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
MORI, J.
Appellant and defendant Travis George appeals the order denying his petition for resentencing under Penal Code former section 1170.95 (now section 1172.6) following an evidentiary hearing. George contends substantial evidence did not support the trial court's finding that he directly aided and abetted the murder with intent to kill. We disagree and affirm.
All subsequent statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. All further references to the statute will be to the new section number.
Our summary of the facts is taken from the opinion of George's direct appeal following his conviction, People v. George (March 19, 2007, B190858 [nonpub. opn.]), which affirmed the judgment. We do not rely on the facts in resolving this appeal.
In December 2004, David Anthony Lyles was shot outside of a birthday party held by Michael Hammond on West 62nd Street in Los Angeles. Hammond's neighbor, Marasho Mazique, had gone to the party and returned home. At approximately 8:30 p.m., Mazique heard eight gunshots in rapid succession coming from the street. Mazique went outside and saw Lyles. Lyles screamed, "Marasho, I'm hit." Mazique saw Lyles looking in the direction of two males running towards Menlo Avenue; one was wearing a red t-shirt, and the other was wearing a white t-shirt. Lyles said, "Those are the motherfuckers that shot me," and fired a gun at the two men. The men got into a car and fled the scene. Lyles received four gunshot wounds and died later that evening.
Michael Hammond was outside his house when he heard 10 to 11 gunshots from a few feet away. Hammond heard Lyles scream he was shot and saw him stumble into the middle of the street. Hammond saw two men running toward Menlo Avenue. One was wearing a white t-shirt.
Approximately 10 minutes later, around 8:40 p.m., Takema Lawrence, who lived on 81st Street and was at home with her cousin Gregory Smith, heard "moaning and groaning" outside. Lawrence and Smith went outside and saw George, a friend of Smith's, shirtless and bleeding from a gunshot wound to his chest. Smith took off his own shirt and tied it around George's wound, while Lawrence called 911. Smith put his bloody shirt in a trash bag in the front yard.
Los Angeles Police Officer James Carroll responded to Lawrence's call. George told Carroll a car pulled up and fired three shots at him, but he did not know who the shooter was. When asked where the shooting occurred, George pointed in different directions. George claimed he was going to visit his grandmother in the area of 82nd Street and had been visiting a friend on 81st Street. When Carroll asked the name of George's friend and where he lived, George said he did not know.
Officer Carroll and several other officers investigated the area George claimed he was shot and did not find any blood, bullets, casings, or evidence of shots fired, nor did they find a bloody t-shirt. People in the neighborhood said they had not seen or heard anything.
Meanwhile, other police detectives investigated the scene of the Lyles shooting on West 62nd Street. They found blood drops a few houses down from Hammond's house and five bullet casings nearby. None of the casings were fired from Lyles's gun.
Police Detective Frank Alvelais interviewed George at the hospital. George told Alvelais he was walking home from Lawrence's house when a car drove by and someone shot him, but he did not see the shooter. George said he was wearing a white t-shirt with no writing and did not know what happened to it. He admitted he was a member of the 8-Tre Hoover gang.
Alvelais then went to Lawrence's house and found a trash bag hanging from a fence. The bag contained three shirts: a white shirt with the words "Crabs" and "Slobs" with a hole in the upper left portion, a muscle shirt, and a black shirt. Smith identified the black shirt as the one he applied to George's wound. DNA tests revealed the blood on the black shirt matched one of the blood stains at the scene of the shooting, which matched a saliva sample from George.
Police Detective Robert Quiroz testified as a gang expert. He knew from his past contacts and George's tattoos that George was an active member of the 8-Tre Hoovers. The 8-Tre Hoovers did not associate with either the Bloods or Crips. They used the derogatory terms "Crabs" and "Slobs" for the Crips and Bloods. Their territory was around 81st Street and Lawrence's house. The neighborhood where Lyles was shot was in the territory of the Brims street gang, an offshoot of the Bloods and rivals of the 8-Tre Hoovers. Younger members of the 8-Tre Hoovers were called "rascals," and Quiroz explained they were the ones who committed shootings for the gang. George had a tattoo typical of a rascal tattoo. When presented with a hypothetical of an 8-Tre Hoover gang member entering into the heart of Brims territory wearing a shirt insulting Brims, committing a shooting, and returning to his own gang's territory, Quiroz opined that the shooting was for the purpose of elevating the 8-Tre Hoovers' status and promoting the shooter's own rank in the gang.
The procedural history from the post-conviction proceedings is taken in part from this Court's prior opinion in People v. George (Jan. 6, 2022, B309785 [nonpub. opn.]).
A. Trial and Direct Appeal
In 2005, George was charged with the murder of Lyles. The information also alleged George or a principal personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)), and that George committed the murder for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(A).) During George's jury trial, the prosecution dismissed the personal use allegation. It nevertheless argued George was the direct perpetrator, or alternatively, that George was a direct aider and abettor or was guilty under the natural and probable consequences doctrine.
The jury found George guilty of first degree murder and found the remaining firearm and gang allegations true. The court sentenced him to 25 years to life for the murder, plus 25 years to life for the firearm enhancement. George's conviction and sentence were affirmed on direct appeal. (People v. George (Mar. 20, 2007, B190858) [nonpub. opn.].)
B. Habeas Petition
In 2018, George filed a petition for writ of habeas corpus seeking relief pursuant to People v. Chiu (2014) 59 Cal.4th 155, superseded by statute on another ground as stated in People v. Lewis (2021) 11 Cal.5th 952, 959, fn. 3. Chiu held that aiders and abettors could not be convicted of first degree murder under the natural and probable consequences doctrine. After full briefing, the trial court granted George's petition and vacated his first degree murder conviction.
The prosecution elected not to retry George. In 2019, the trial court resentenced him to 15 years to life for second degree murder, plus 25 years for the firearm enhancement.
C. Initial Section 1172.6 Proceedings and Prior Appeal
In June 2019, George filed a petition for resentencing under section 1172.6. The trial court appointed counsel, accepted briefing by the parties, and issued an order to show cause. George's petition was denied in November 2020. In its written decision, the court stated that George was only entitled to relief under section 1172.6 "if he could not have been convicted of first or second degree murder had [section 1172.6] been in effect at the time of the commission of the crime." The court concluded appellant did not meet this standard, and thus, was ineligible for relief "beyond a reasonable doubt."
George appealed the order denying his petition. We reversed the trial court's denial, finding the court applied an incorrect standard of proof. The matter was remanded for a new hearing for the trial court to apply the correct standard. (People v. George (Jan. 6, 2022, B309785 [nonpub. opn.].)
D. Evidentiary Hearing on Remand and Present Appeal
After remand, George and the prosecution filed briefs for a new evidentiary hearing. The prosecution also submitted a compact disc containing a copy of the trial record from George's direct appeal. In January 2023, the trial court held the evidentiary hearing. The court relied on and considered all the briefs and documents in the trial court file. Neither side presented any live witnesses.
The prosecution offered three theories: (1) that George was a direct aider and abettor with intent to kill, (2) that there was a conspiracy to commit murder, and (3) that George was guilty under an implied malice murder theory of liability. The prosecutor asserted George, as an 8-Tre Hoover gang member, went into rival gang territory with a shirt that said, "Fuck crabs and slobs," which was confrontational and antagonistic. The prosecutor contended George either shot or stood with the shooter, with George's blood placing him at the scene, and that Lyles perceived George as one of his assailants. Further, the prosecutor asserted George fled with his confederate, expressed no shock or surprise about the murder, and lied to the police about several matters. The prosecutor argued the evidence established George and his confederate were on a mission to commit murder and George was either the shooter or shared the specific intent to kill.
George argued there was no evidence of a conspiracy or mission. Regarding Lyles's statement, "Those are the motherfuckers who shot me," George asserted the statement was limited at trial to explain Mazique looking in the direction George was running. George further asserted there was no evidence the other person involved in the shooting was a gang member or that George knew he had a gun. George argued the witnesses did not see any writing on his shirt, so it was "just as logical or reasonable" that the muscle shirt he was wearing was covering the white shirt.
The trial court noted there were only two potential shooters: George and his confederate. The court found, "from all the evidence that we have here, the slogans, the dress down, the manner, the behavior, the actual shooting itself, it doesn't matter how or why it happened. There's a shooting in gang territory. Those all convince this court, beyond a reasonable doubt, that [George] is a direct aider and abettor with the intent in mind to commit this type of crime. . . . [¶] [A]nd it is reasonable circumstantial evidence to believe and in fact discern that this is what both men were ready to do and to commit, which they did." The court determined George was ineligible for relief under section 1172.6 and denied the petition.
George timely appealed.
DISCUSSION
A. Governing Law: Section 1172.6
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) to clarify the felony-murder rule and eliminate the natural and probable consequences doctrine "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e); People v. Lewis, supra, 11 Cal.5th at pp. 957, 959.) SB 1437 also added what is now section 1172.6, providing a procedure for individuals convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief by petitioning the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).)
If a petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold a hearing, where "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) The court may consider evidence admitted at any prior hearing or trial that is admissible under current law, or any new or additional evidence submitted by the parties. (§ 1172.6, subd. (d)(3).) The trial court acts as an independent factfinder and determines whether the prosecution has met its burden. (People v. Ramirez (2021) 71 Cal.App.5th 970, 984.)
B. Standard of Review
"'Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence.'" (People v. Njoku (2023) 95 Cal.App.5th 27, 41.) However, citing People v. Reyes (2023) 14 Cal.5th 981 and People v. Aguilera (2020) 50 Cal.App.5th 894, George argues this appeal requires both a substantial evidence test regarding the trial court's factual determinations and independent review of whether the circumstantial evidence was sufficient to support the court's order. Neither Reyes nor Aguilera held independent review was required to determine whether circumstantial evidence was sufficient to support a trial court's order after an evidentiary hearing denying a section 1172.6 petition.
George's reliance on a jury instruction, CALCRIM No. 225,to argue this court must independently evaluate circumstantial evidence is similarly unpersuasive. This instruction does not govern our standard of review. The instruction is "'primarily for the guidance of the trier of fact.' [Citations.] 'The rule . . . does no more than to instruct the jury that if a reasonable doubt is created in their minds for any reason they must acquit the defendant.'" (People v. Towler (1982) 31 Cal.3d 105, 118.) "[E]ven though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant's innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.] Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations and fn. omitted.]" (Ibid.) Accordingly, we review the trial court's ruling for substantial evidence. (People v. Njoku, supra, 95 Cal.App.5th at p. 41; People v. Oliver (2023) 90 Cal.App.5th 466, 480.)
CALCRIM No. 225 provides in part, "[B]efore you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
"In reviewing the trial court's findings for substantial evidence, we apply well settled principles. 'We "'"examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the necessary fact] beyond a reasonable doubt."'" [Citation.] Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt.'" (People v. Oliver, supra, 90 Cal.App.5th at p. 480.) Reversal is not warranted unless "'"upon no hypothesis whatever is there sufficient substantial evidence to support the [judgment]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
C. Substantial Evidence Supports the Trial Court's Finding George Directly Aided and Abetted Murder
George argues substantial evidence does not support the trial court's finding beyond a reasonable doubt that he was a direct aider and abettor to Lyles's murder who acted with intent to kill. We disagree.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Express malice is the manifestation of "intent to kill." (§ 188, subd. (a); see People v. Soto (2018) 4 Cal.5th 968, 976 ["[t]he primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not"].)
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164; see § 31.) For aiding and abetting express malice murder, "the aider and abettor must know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Aiding and abetting may be shown by circumstantial evidence. Factors to consider when determining whether a person aided and abetted the commission of a crime "'include presence at the scene of the crime, failure to take steps to attempt or prevent the commission of the crime, companionship, flight, and conduct before and after the crime.' [Citation.]" (People v. Garcia (2008) 168 Cal.App.4th 261, 273 (Garcia).)
Here, George proceeds on the assumption that his confederate was the shooter and essentially points out what evidence is not in the record, such as direct evidence of a preplanned mission. George also draws inferences from the available facts contrary to those supporting the trial court's decision and concludes the evidence was insufficient to prove George shared his confederate's intent to kill. But a defendant "does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see also People v. Cuevas (1995) 12 Cal.4th 252, 261 ["The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on '"isolated bits of evidence"'"].) Reviewing the evidence in the light most favorable to the court's determination, there is substantial evidence to support the court's reasonable inferences that the person who shot Lyles acted with the intent to kill, that George shared that intent, and that his participation in the crime aided and abetted the actual shooter.
George does not dispute that, at a minimum, a confederate acted with an intent to kill in firing multiple shots at Lyles. (See People v. Cardenas (2020) 53 Cal.App.5th 102, 119-120 [pointing a gun in the direction of two people and firing multiple shots supported inference of intent to kill].) There was also no question that George, who was an admitted 8-Tre Hoover gang member, was present at the time of the shooting. After Lyles told Mazique, "Those are the motherfuckers that shot me," causing Mazique to look in the direction Lyles was looking, Mazique saw two persons running, one of whom was wearing a white shirt. George admits he was wearing the white "Crabs" and "Slobs" shirt, and his blood was found at the scene. While George's "'"mere presence alone at the scene of the crime is not sufficient to make [him] a participant,"'" his presence at the scene of the murder "'"may be [a] circumstance[ ] that can be considered by the jury with the other evidence in passing on his guilt or innocence."'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).)
Officer Quiroz, the gang expert, testified the 8-Tre Hoovers were known as "jump out boys" or "jump off boys" because they would get out of a vehicle to do a shooting on foot. George and his confederate went into and were on foot in the heart of rival gang territory when the shooting happened. The gang expert also testified that gang members generally acted with others, with each person having a specific role and acting together to carry out the crime. Further, George had a tattoo characteristic of "rascals," young members of the gang who committed shootings and homicides. The fact George was wearing the white shirt with "Slobs" written on it could reasonably be inferred George went to the scene specifically to provoke and instigate the shooting.
Under the circumstances, a reasonable factfinder could determine George's conduct promoted, encouraged, or instigated his confederate's killing of Lyles in rival gang territory. (Nguyen, supra, 61 Cal.4th at p. 1055 [Although "'gang evidence standing alone cannot prove a defendant is an aider and abettor to a crime,'" expert testimony strengthened inferences arising from other evidence specific to defendant's role in the crime at issue]; see also People v. McDaniels (1980) 107 Cal.App.3d 898, 904 [evidence was sufficient to sustain defendant's murder conviction on an aiding and abetting theory when defendant drove to scene with fellow gang members, departed murder scene with the other gang members as soon as the shooting occurred, and later falsely denied presence at the scene].) Indeed, virtually all the probative factors used to determine whether a defendant is an aider and abettor are present-presence at the scene of the crime, companionship, and conduct before and after the crime, including flight. (Garcia, supra, 168 Cal.App.4th at p. 273; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Additionally, there was evidence from which a reasonable factfinder could conclude George shared the shooter's mens rea at the time of the murder. "'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.'" (Nguyen, supra, 61 Cal.4th at p. 1055.) Consequently, "it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.)
The gang expert testified that George's and the 8-Tre Hoovers' reputations would have been enhanced by committing the charged crime. Officer Quiroz testified that by going into Brims gang territory to kill someone, they would get respect from other gangs and instill fear in neighboring citizens and their rival gangs. Indeed, George's presence announced to the community the 8-Tre Hoovers were responsible for the killing. Moreover, Quiroz explained a person with the "rascals" tattoo would do a shooting to move up in rank within the gang. A reasonable factfinder could infer from the evidence that George had a motive to promote, encourage, or assist in Lyles's murder. (See People v. Smith (2005) 37 Cal.4th 733, 741 ["evidence of motive is often probative of intent to kill"]; see also People v. Sanchez (2001) 26 Cal.4th 834, 849 [motive in gang shootings is reasonably inferred from hatred felt for rival gang members].) While George contends there is no direct evidence he knew his confederate was armed, there can be sufficient evidence that a gang member intended to kill a rival gang member even without proof that the member knew one of his cohorts possessed a gun. (People v. Medina (2009) 46 Cal.4th 913, 924; see also People v. Montes (1999) 74 Cal.App.4th 1050, 1056.)
After the shooting, George and his confederate fled together to the same vehicle with a driver apparently waiting for them down the street. Their concerted action reasonably implies a common purpose and demonstrates planning. Further, since there is no evidence George was surprised or shocked by his confederate's conduct, and instead fled together to the same waiting vehicle, this could reasonably be viewed as part of a common plan he shared with his confederate to commit the shooting. (People v. Medina, supra, 46 Cal.4th at p. 924 [evidence defendants fled after the shooting was treated as an additional factor suggesting aiding and abetting liability]; see also People v. Bonilla (2007) 41 Cal.4th 313, 329 [flight and failure to seek assistance imply consciousness of guilt].) Moreover, George's lies to the police about his gunshot wound and his presence at the scene showed consciousness of guilt. (People v. Bowman (2011) 202 Cal.App.4th 353, 366 [false statement and alibi made concerning whereabouts during robbery was evidence of consciousness of guilt]; People v. Loza (2012) 207 Cal.App.4th 332, 361 [fact that defendant lied and made-up story about murder was evidence of aiding and abetting the crime].)
George contends this matter is analogous to People v. Lara (2017) 9 Cal.App.5th 296 (Lara) and In re K.M. (2022) 75 Cal.App.5th 323 (K.M.). However, a comparison of the facts of different cases to prove the insufficiency of evidence is not useful, as each case necessarily depends on its own facts. (People v. Thomas (1992) 2 Cal.4th 489, 516.) This is especially so when the issue involves the defendant's state of mind. (See People v. Mendoza (2011) 52 Cal.4th 1056, 1075.) The cases are also distinguishable from this matter.
At oral argument, George argued People v. Underwood (2024) 99 Cal.App.5th 303, is also analogous to this matter. However, Underwood involved a spontaneous robbery-a crime of opportunity that happened quickly-during which the defendant's confederate killed the victim. The case did not involve any gang-related evidence. (Id. at pp. 314-316, 321.) Underwood, thus, is also factually distinguishable.
In Lara, the conviction of one of three gang member defendants, Lara, was reduced from first degree murder to second degree murder. Although there was sufficient evidence to support a finding that Lara aided and abetted an assault with a firearm on a fellow gang member, Lucero, the evidence was insufficient to support a finding that he subsequently fired the shots that killed Lucero or willfully aided and abetted the murder. (Lara, at p. 319.) The evidence supported an "equally strong possibility" a third person shot Lucero without Lara knowing. (Ibid.) Regarding two other defendants, Flores and Espinoza, there was no evidence they were present when the assault on Lucero occurred or that they acted as Lara's companions, and instead Flores and Espinoza disassociated themselves from the shooting and from Lara. (Id. at pp. 321- 323.)
In. K.M., the record did not support the finding that a minor aided and abetted a cellphone robbery. (K.M., supra, 75 Cal.App.5th at p. 329.) The victim could only guess what actions the minor may have taken. (Ibid.) At most, there was substantial evidence that the minor stood behind the victim and yelled "'[y]ou hurt my friend, we're going to hurt you.'" (Ibid.) "But there was no nexus between this action and the crime-the theft of the phone. The yelling occurred after [the cellphone was taken]." (Ibid.)
Unlike Lara and K.M., the factors present here indicate that George was either the actual shooter or aided the shooter. These include George's gang membership and rascal status, going to a gathering in rival gang territory with the shirt displaying slurs to rival gang members, his companionship, fleeing with his confederate to the same vehicle after the shooting, and lying about what happened to the police. Even if the evidence does not establish George was the person who shot Lyles, the evidence permitted a reasonable inference George knew of his confederate's intent to kill and shared it. (Nguyen, supra, 61 Cal.4th at p. 1055.)
DISPOSITION
The order is affirmed.
We concur: CURREY, P.J., ZUKIN, J.