Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. 080865. Darryl Ferguson, Judge.
Nuttall & Coleman and Roger T. Nuttall for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Salvador Zapien was convicted of second degree murder for the stabbing death of his ex-girlfriend, Angela Campos Ruiz (the victim). On appeal, defendant contends: (1) his second degree murder conviction should be reversed or reduced to voluntary manslaughter because it is not supported by sufficient evidence and the evidence shows, as a matter of law, he killed the victim in a heat of passion on sufficient provocation; and (2) the trial court erred by failing to give, sua sponte, instructions on involuntary manslaughter on a theory of voluntary intoxication, or his trial counsel rendered ineffective assistance for failing to request such instructions. We will affirm the judgment.
FACTS
The fatal stabbing in this case occurred on September 22, 2001. About two months earlier, the victim moved out of the residence she shared with defendant. The victim apparently did not reveal to defendant the address or phone number of her new residence. However, defendant continued to call the victim on the cell phone she used for work. A few days before the killing, the victim asked her work supervisor if her cell phone number could be changed because defendant was calling her. Although the victim’s request for a new number was approved, it was not changed before she was killed.
On the evening of September 22, 2001, the victim attended a wedding reception for one of her male coworkers. She arrived at the reception hall at approximately 5:00 p.m., around the same time as her friend and coworker, Virginia Contreras, and Contreras’s date, Juan Moya. The three sat at a table near one of the exits of the reception hall.
About an hour later, defendant showed up. The victim, who had not mentioned defendant was going to be there, looked at Contreras with an expression of surprise. Defendant came up to their table, presented the victim with a plastic red rose and asked if he could join them. The victim replied, “‘Well, I guess, if you want.’”
Defendant did not appear to be intoxicated when he arrived at the wedding but, in Moya’s words, was “talking real well.” During the course of the evening, the victim, Moya, and Contreras each had one or two beers, and defendant may have had two or three beers. Defendant never appeared intoxicated to Moya or Contreras. They also observed no arguing between defendant and the victim, who danced together once or twice.
During the evening, defendant conversed with Moya. Defendant asked him about the possibility of Moya hiring him as a truck driver. Moya told defendant they could talk once defendant obtained a truck-driving license. Defendant also asked Moya questions about who the victim was seeing. Moya responded that it was not his (Moya’s) business to check up on who the victim was seeing.
Around 9:00 p.m., the victim, Moya, and Contreras decided to leave the wedding reception. They walked together from the reception hall to their vehicles. Contreras testified:
“THE COURT: Who is ‘he’?
“We got into the car immediately when they were approaching Angela’s car. She unlocked it and opened the door. And when she was going to get in, we were already – had pulled behind her, so we saw her get in the car, and Salvador closed the door. And then we moved up so that she can pull behind Juan and I, and she was right behind us. And then he continued – Salvador continued to walk towards the hall though the main entrance.”
Contreras confirmed she did not see any kind of argument between defendant and the victim.
After they left the parking lot, Moya and Contreras initially observed the victim’s car behind them but shortly lost sight of her. Contreras called the victim’s cell phone several times and left messages when the victim failed to answer. After Moya briefly stopped at a stop sign to wait for the victim’s car, Moya and Contreras continued on their journey home. On cross-examination, Moya confirmed they were not concerned enough to turn around to see where the victim was, explaining, “We didn’t think that anything could have happened, that’s why .…” Contreras also testified: “I didn’t worry because there was no arguments. There was no other indication of him [defendant] being upset. He wasn’t drinking. He wasn’t drunk. He didn’t smoke. He was actually – he was calm. So there was no – nothing that indicated to me that [the victim] was in danger .…”
Around 9:19 p.m., a sheriff’s deputy discovered the victim’s car abandoned in a vineyard about a mile or so outside the town where the wedding reception was held. It appeared the car had traveled out of its lane of the two-lane road, crossed the dirt shoulder, and come to rest in a couple rows of grape vines. The interior of the car was covered with blood and a black-handled knife was seen stuck into the panel of the driver’s door. About five to ten minutes later, the deputy was notified about someone being brought into the hospital. He testified the hospital was about a 15-minute drive from the crime scene.
Analysis of evidence gathered from the crime scene and damage to the victim’s car and defendant’s pickup truck revealed that the front end of defendant’s truck had collided with the left side of the victim’s car while traveling at a high rate of speed. The evidence also indicated that the driver’s window of the victim’s car had been shattered while it was in the up position. None of her other windows was broken.
A hospital security guard testified that he observed defendant driving at high speed up to the emergency driveway entrance to the hospital. About 15 minutes later, the security guard was paged to the waiting room. He noticed a lot of blood on defendant. The security guard asked defendant to move his truck and to go to the waiting room to register his wife. Defendant complied with the request. The security guard testified that, when defendant returned from moving his truck, he was crying and “got on his knees and begged to see his wife.” The security guard asked defendant what had happened. Defendant said, “it was a long story, that they were separated and he – he saw her and got jealous and they both did it.” Shortly thereafter, around 9:30 p.m., a sheriff’s deputy arrived at the hospital and the security guard left.
A pathologist testified that the victim had 29 stab wounds to her upper body. Five of the wounds were deeply penetrating, causing injury to internal organs, including her heart. The stab wound to the victim’s heart completely severed the left ventricle and ended in the heart chamber. The pathologist opined that after this wound was inflicted, the victim would have lost consciousness within a matter of minutes. The victim also had a number of defensive wounds on her hands. The pathologist opined that the cause of death was multiple stab wounds to the chest.
The sheriff’s deputy who arrived at the hospital around 9:30 p.m. met defendant in the lobby and had him go outside and sit on the curb. Defendant told the deputy he used to live in Fresno with his wife. He said they had been at a party and had left to get some beer and to be by themselves. While inside his wife’s car, they got into an argument. Defendant said he picked a knife up off the floorboard and stabbed her “a lot.”
Another deputy arrived to transport defendant to the local substation of the sheriff’s department. A photograph of defendant’s right hand, taken after his arrest, showed his fingers and knuckles were swollen. He also had a slight abrasion on his arm. During the ride to the substation, defendant was crying and kept asking if the victim was okay.
Defendant remained at the substation until around 1:00 a.m., when Frank Arnold, a sheriff’s detective, arrived to transport defendant to the violent crimes unit. Detective Arnold noticed defendant appeared to have trouble walking and thus thought he might be intoxicated. The detective gave defendant a bag and told him not to throw up in his car.
A blood sample was taken from defendant around 2:00 a.m. No measurable amount of alcohol was found in the sample. A forensic toxicologist testified that, had a person stopped drinking at 9:00 p.m., and had a blood alcohol of .00 percent at 2:00 a.m., the maximum number of drinks that person could have had before 9:00 p.m. would have been four. If the person’s blood alcohol level had peaked at 9:00 p.m., the person’s maximum blood alcohol level would have been .1 or .12 percent at that time. By 1:00 a.m., the person’s blood alcohol level would be around .02 percent. At that level, the toxicologist would not expect the person to exhibit signs of extreme intoxication, such as having difficulty walking.
In an interview starting sometime between 1:30 and 2:00 a.m., defendant spoke with Detective Arnold and another detective about the stabbing. Defendant’s heat of passion theory at trial, and now on appeal, was based on the statements he made to the detectives during this interview. We therefore set forth defendant’s statements in some detail below.
Defendant told the detectives that he called the victim on her cell phone around 4:30 p.m., and that she invited him to come to the wedding. Defendant also described consuming a number of alcoholic beverages before and during the wedding reception. According to defendant, around 3:00 p.m., he drank three or four inches from a bottle of rum. Before he reached the wedding reception, he stopped at a convenience store, where he purchased the plastic rose for the victim, plus a small bottle of rum. While he was driving, he consumed the rum and threw the bottle out the window. During the wedding reception, he had four or five beers.
Defendant claimed that when the victim and her companions got up to leave the wedding reception around 9:00 p.m., defendant asked the victim to remain with him. When she declined, defendant asked why. The victim responded with a number of insults, including that defendant was “not a man,” a “piece of shit,” and a Spanish slur defendant translated for the detectives as meaning a “bull with no balls.” Defendant told the detectives he became upset and said to the victim, “so all this time, I’m being a bull … fuck you.” But when the victim responded by starting her car, defendant stood in front of her car and said, “[P]lease Angela.” The victim replied, “get out of here, go to hell” and then drove away.
Defendant admitted that he followed the victim in his pickup truck and said that, at one point, she stopped her car and said, “stop following me, God damn asshole. I told you don’t, I don’t want to be with you anymore.” When he continued to follow her, the victim tried to speed up. The defendant sped up, trying to pass her. Defendant claimed he hit the victim with his truck as he was trying to pass her and that she then went “under the vines.” Defendant got out of his truck to go talk to the victim and help her out of her car. When he reached her car, the victim said, “stop it, get the fuck out of here you mother fucker.” Defendant tried to open the driver’s door but the victim locked it.
According to defendant, he and the victim started arguing and hitting each other through the open window of her car. “She yell at me, you son of a bitch. And I say you God damn bitch all these things I was using, using me. All these, all those two years you was using me and yeah and we start, we start, she starts throwing for my head and I don’t know how, I don’t know how the knife come in.” Defendant confirmed he had a folding knife in his pocket, which he took out and opened.
Defendant admitted to detectives, “I was mad about that time already.” When asked what he did with the knife, defendant said, “I stuck it three or four times.” When asked where, defendant replied, “I think by the lips something like that because … it’s because we, she, we struggle with the hand, the hand and my knife.” Defendant confirmed the victim was trying to stop him by grabbing his hand and arm.
Defendant said he then opened the door and tried to pull the victim out but something, probably her seatbelt, was holding her. Defendant said the victim threw a punch at his stomach and he went to hit her with his hand, “but I forget I have a knife.” Defendant said he “just throw like that one or two or three times” in the victim’s body. He thought he hit her in the stomach but was uncertain.
Defendant got the car door open and stood in front of it. He could not remember which hand the knife was in. The victim said to defendant “you son of a bitch.” Defendant replied, “yeah I’m a son of a bitch now, before what and I start hitting more, hitting more, hitting more.” Defendant claimed he did not know where the knife was at this time or see that the victim was bleeding. Defendant stated: “That’s when I, I get out of the car and put her over me and put her in the, take her to the hospital because after that she say see what we doing, I say yes, that’s what you wanted.”
Defendant described “driving like hell to the hospital” and repeatedly saying “don’t die.” Defendant claimed that on the way to the hospital, the victim was breathing and her eyes were open. The victim said to defendant, “Oh I love you or I know.”
When asked how many times he stabbed the victim, defendant said, “I don’t know. Probably three or four or I don’t know.” Defendant then said he could not remember, though he remembered hitting her a lot. When asked how he was feeling at the time, defendant said, “I was mad, I don’t want to kill her. I don’t want to, just only try to because she was making me so mad she know, she try to provoking me to get mad or something like that and she provoking me, she know how to do it and she know to tell me all those bad things.”
Later during the interview, defendant explained he did not know how many times he stabbed the victim because “I not was in my conscious, I was so pissed off.” Defendant also asserted, “I was drunk, she invite me to the wedding and I was drinking and I was drunk.” When asked why he followed her instead of just going home, defendant responded: “Because I was pissed off for her” and “I want to argue more with her about why she doing something like that. Inviting me to the, to the wedding to start fighting.”
DISCUSSION
I. Sufficiency of evidence of second degree murder
Defendant contends his conviction of second degree murder must either be reversed or reduced to manslaughter because it is not supported by sufficient evidence.
The applicable standard of appellate review is well established. When assessing the sufficiency of the evidence, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hawkins (1995) 10 Cal.4th 920, 955.) The reviewing court presumes in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.) We do not reweigh evidence or determine if other inferences more favorable to the defendant could have been drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Penal Code section 187 states in relevant part: “(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”
Further statutory references are to the Penal Code unless otherwise specified.
Section 188 states in relevant part:
Section 189 states in relevant part:
The elements of second degree murder are (1) an unlawful killing; (2) accomplished with malice aforethought, whether express or implied. (People v. Malfavon (2002) 102 Cal.App.4th 727, 735.) Malice is expressed when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. More specifically, malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. (People v. Robertson (2004) 34 Cal.4th 156, 164.) In such circumstances, it is not necessary to establish that the defendant intended his or her act would result in the death of a human being. (People v. Bohana (2000) 84 Cal.App.4th 360, 368.) Nevertheless, an unlawful killing may constitute manslaughter rather than murder – even in the presence of intent to kill or conscious disregard for life – if the defendant killed in a sudden quarrel or heat of passion or in an unreasonable but good faith belief in the need to act in self-defense. (People v. Robertson, supra,34 Cal.4th at pp. 164-165.)
In the instant case, defendant contends his state of mind was compromised by the fact he was acting under the heat of passion upon adequate provocation by the victim without a sufficient cooling period. The test of whether provocation or heat of passion can negate malice so as to mitigate murder to voluntary manslaughter is objective. No defendant may set up his or her own standard of conduct and justify or excuse himself or herself because in fact his or her passions were aroused unless the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable person. On the other hand, the test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder is subjective. If this were not so, the provocation would be a defense to murder and would be sufficient to reduce the crime to manslaughter. (People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
Here, defendant first asserts the second degree murder conviction is not supported by sufficient evidence and then goes on to posit an alternative theory – based on his statements to detectives several hours after the stabbing – that he did not possess the requisite malice for second degree murder because he killed defendant in a heat of passion after she adequately provoked him with what he describes as a “tirade of degrading verbal remarks.”
Initially, we note that defendant’s argument and briefing on appeal focuses on the evidence favorable to his position and ignores evidence to the contrary. For almost a quarter of a century, this court has held that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. If a defendant contends some particular issue of fact is not sustained, they are required to set forth in their brief all of the material evidence on the point and not merely their own evidence. Unless this is done, the error is deemed to be waived. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) A defendant bears the burden of demonstrating there is no substantial evidence to support the challenged finding or findings and a recitation of only defense evidence is not the demonstration contemplated under this rule. (Id. at p. 283.)
Assuming for purposes of argument the briefing is sufficient, we must nevertheless reject defendant’s challenge to the sufficiency of the evidence to support the malice element of second degree murder. From the evidence presented, the jury reasonably could have concluded that after the victim left the wedding reception, defendant followed her in his pickup truck, rammed the side of her car, causing her to drive off the road into a vineyard, forcibly broke through her car window, and repeatedly stabbed her in the vulnerable upper body region as she struggled to fight him off with her hands. The jury reasonably could have concluded that defendant acted with malice when he stabbed the victim 29 times either because his actions manifested a deliberate intention unlawfully to take away her life or because the circumstances showed an abandoned and malignant heart. The evidence presented at trial was more than sufficient to support defendant’s conviction of second degree murder for killing his former girlfriend.
Defendant nevertheless contends “the facts … reveal a classic manslaughter case.” He contends that adequate provocation may be legally established by the victim’s verbal abuse or incitement of the defendant to anger. Defendant’s contention is essentially predicated on the notion that we may reweigh the evidence in his favor on appeal. The power to judge the credibility of witnesses, to resolve conflicts in testimony, to weigh evidence, and to draw factual inferences is vested in the trier of fact. (In re Arturo D. (2002) 27 Cal.4th 60, 77.) Factual contradictions and conflicts are for the jury to consider and the appellate court must resolve them in support of the verdict. (People v. Vy (2004) 122 Cal.App.4th 1209, 1213; People v. McPhillips (1957) 149 Cal.App.2d 687, 688.)
Defendant’s contention implies there was no conflict in the evidence regarding his account of a heated encounter with the victim prior to the stabbing. However, the jury reasonably could have discredited defendant’s version of events based on inconsistencies in his statements and conflicting witness observations. For example, within the first half hour of the stabbing, defendant admitted he stabbed the victim “a lot” and made no mention of her insulting him. However, several hours later, defendant claimed to detectives he could not clearly remember the stabbing and did not know how many times he stabbed her while at the same time recounted her alleged insults to him in considerable detail.
Other circumstances raising doubts about the veracity of defendant’s version of events include his suggestion to detectives during the interview that the victim encouragingly invited him to meet her at the wedding reception. The prosecution presented conflicting evidence indicating that the victim was in the process of severing all ties with defendant. Just days before the murder, she requested her work cell phone number be changed, which appears to have been defendant’s remaining means of calling her directly. There was also evidence the victim appeared surprised when defendant appeared at the wedding. And her response to his request to sit at their table – “‘Well, I guess, if you want’” – was equivocal and lukewarm. Additionally, witness descriptions of defendant walking with the victim to her car, briefly standing next to her car, and then closing the car door are not easily reconciled with defendant’s description of a more drawn-out verbal exchange, wherein, at one point, he allegedly stood in front of the victim’s car, imploring, “Please, Angela.” “‘[I]t is left to the jurors to say whether or not the facts and circumstances in evidence are sufficient to lead them to believe that the defendant did, or to create a reasonable doubt in their minds as to whether or not he did, commit his offense under a heat of passion.’” (People v. Berry (1976) 18 Cal.3d 509, 515.) As there was conflicting evidence on the heat of passion issue, we are required to defer to the jury’s resolution of the issue against defendant.
However, even if we could reweigh the evidence, and even assuming the veracity of defendant’s account of events, defendant has presented no legal authority or persuasive argument for his suggestion that the victim’s purported conduct – i.e., making offensive remarks impugning his masculinity – was sufficiently provocative, as a matter if law, to provoke an ordinarily reasonable person under the circumstances to a lethal attack. As the People point out, the cases on which defendant relies to support his claim bear no resemblance to the instant case. (See People v. Berry, supra, 18 Cal.3d at pp. 513-515 [over a two-week period, the murder victim alternated between verbally taunting her husband about her extramarital affair and sexually teasing him]; People v. Borchers (1958) 50 Cal.2d 321, 323-326, 329 [the murder victim engaged in “long continued provocatory conduct[,]” including an extramarital affair, threats to commit suicide, an attempted suicide, and verbal taunting of the defendant including taunting him to kill her]; People v. Kelley (1929) 208 Cal. 387, 390, 393 [the murder victim’s “fatal injuries [were inflicted] during a sexual debauch in which the decedent was a willing participant” and “there [was] nothing in the record from which it [could] with reason be argued that they were inflicted with that intent or that malice aforethought which is a necessary ingredient of the crime of murder”].)
In view of the absence of compelling legal support for his argument, and the other reasons discussed above, we reject defendant’s claim the evidence only showed he committed heat of passion voluntary manslaughter and find sufficient evidence of second degree murder.
II. Instructions on involuntary manslaughter
Defendant’s other contention on appeal is that there was sufficient evidence to support instructions on the lesser included offense of involuntary manslaughter. Defendant specifically argues that, because he presented substantial evidence he was intoxicated at the time of the stabbing, the jury should have been instructed that, if it determined as a result of his voluntary intoxication he was unable to form the mental state necessary for first degree murder, second degree murder, or voluntary manslaughter, it could still convict him of involuntary manslaughter. Thus, defendant agues either the trial court erred by failing to give instructions on involuntary manslaughter sua sponte, or his trial counsel rendered ineffective assistance for failing to request such instructions.
A. Failure to instruct sua sponte on involuntary manslaughter
Involuntary manslaughter is a lesser included offense of murder. (People v. Parras (2005) 128 Cal.App.4th 1603, 1612-1613.) A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Conversely, even on request, a trial court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) In this context, substantial evidence is evidence sufficient to deserve consideration by the jury; in other words, evidence that a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.) The testimony of a single witness, including that of the defendant, can constitute substantial evidence requiring the court to instruct sua sponte. (People v. Lewis (2001) 25 Cal.4th 610, 646.)
In noncapital cases, error in failing to instruct sua sponte, or to instruct fully, on all lesser included offenses and theories which are supported by the evidence are reviewed for prejudice exclusively under the Watson test. Thus, a conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142, 178.)
People v. Watson (1956) 46 Cal.2d 818, 836.
Assuming, without deciding, there was substantial evidence to support instructions on involuntary manslaughter, any error was harmless. Evidence that defendant was unable to form the malice required for second degree murder as a result of voluntary intoxication was weak, at best. Despite his account to detectives of drinking a considerable quantity of alcohol up to and during the time of the wedding reception, defendant’s suggestion that he was in a drunken rage when he killed the victim conflicted with the toxicological evidence that before 9:00 p.m., he could have consumed, at most, four alcoholic beverages, and that his blood alcohol level at that time, would have been around .1 or .12 percent. The toxicologist testified on cross-examination that at this level of intoxication a person might not be thinking clearly. He also testified that, even if the person was not showing outward signs of intoxication, it would not be safe for the person to drive or fly a plane. This is a far cry, however, from defendant’s suggestion that his intoxication essentially rendered him unaware, or unconscious, of his actions during the stabbing.
Moreover, defendant’s supposed lapses of awareness occurred at incredibly convenient times. Although he claimed to detectives to remember little about the actual stabbing, as noted above, he did remember his alleged argument with the victim in great detail; in particular, he managed to remember all her humiliating remarks, which served as the basis for voluntary manslaughter instructions. In addition, defendant told detectives that he was unaware of how seriously injured the victim was or that her blood covered his clothes and the interior of his truck. Nonetheless, he had the wherewithal to drive the victim to the emergency room and recounted, again in detail, how he begged her not to die and how she said “I know” or “I love you” to him. Finally, witnesses who observed defendant near the time of the stabbing testified he did not appear intoxicated but was speaking well.
On this record, if the jury had been instructed on the offense of involuntary manslaughter on a theory of voluntary intoxication, it is highly unlikely that the jury would have found defendant guilty of this crime rather than of murder. Accordingly, we find the failure to give such instructions, if error at all, was harmless.
B. Failure to request instructions on involuntary manslaughter
In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was deficient because his or her representation fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must also show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown only when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Thomas (2006) 37 Cal.4th 1249, 1256.)
Once again, evidence defendant’s mental state was affected by intoxication was extremely weak. For the reasons discussed above, we see no reasonable probability the jury, even if fully instructed, would have found that defendant was so intoxicated that he could not form the mental state required for murder and instead convict him of involuntary manslaughter. Defense counsel’s failure to request instructions on involuntary manslaughter in no way undermines our confidence in the verdict. Accordingly, the asserted ineffective assistance of counsel was not prejudicial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.