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People v. Cotto
Cotto v. Herbert
This summary of the hearing testimony is taken largely from the New York Court of Appeals' opinion, as well…
People v. Turnquest
The Confrontation Clause of the Sixth Amendment to the Constitution requires that in all criminal…
141 Citing Cases
Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RICHARD COTTO…
Date published: Jul 1, 1998
Copy Citations
92 N.Y.2d 68 (N.Y. 1998)
677 N.Y.S.2d 35
699 N.E.2d 394
finding that trial court did not err in admitting victim's statements heard by police officer and EMT under excited utterance exception to hearsay rule where victim was severely wounded by gunshot from close range and attempted to escape additional shots fired at him by defendant, sustained severe injuries leading EMT to conclude he would die, victim was in great pain and condition worsened, and his physical shock and trauma never subsided
Summary of this case from Pringle v. Bradt
See 6 Summaries
92 N.Y.2d 68 699 N.E.2d 394, 677 N.Y.S.2d 35 The PEOPLE of the State of New York, Respondent, v. Richard COTTO, Appellant. 1998-06559 New York Court of Appeals July 1, 1998.
Carro, Velez, Carros&sMitchell, L.L.P., New York City (John Carro, of counsel), for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone and Robert M. Raciti, of counsel), for respondent.
OPINION OF THE COURT
KAYE, Chief Judge.
Whenever the People allege specific facts which demonstrate a "distinct possibility" that a criminal defendant has engaged in witness tampering, the court must grant a Sirois hearing to test the validity of that claim (see, Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591; see also, People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817). Defendant challenges his conviction for second degree murder and related crimes primarily on the ground that the trial court's ruling after a Sirois hearing was flawed in several respects. Perceiving no error warranting a new trial, we affirm the Appellate Division order upholding the conviction.
At defendant's March 1996 trial for the shooting death of Steven Davilla in New York City, the prosecution planned to call eyewitness Anthony Echevarria, a 22-year-old neighborhood resident who knew both defendant and the victim. The People indicated in pretrial disclosure to defense counsel and in their March 15 opening statement that Echevarria would testify that he was present at the time Davilla was shot and that defendant was the shooter. Echevarria had met with prosecutors and the police on March 13 and 14, at which time he had identified defendant as the shooter.
On March 17, the day before he was to testify, Echevarria, then incarcerated at Rikers Island on an unrelated charge, telephoned the lead prosecutor and left a voicemail message that he would no longer testify as to the shooter's identity. He said that his family was "in jeopardy" and "everything is off, I'm not doing nothing. You put me on the stand, do whatever you got to do but I don't know nothing. I didn't see nothing * * * Forget everything."
After informing the trial court of this development the next morning, the prosecution met with Echevarria, at which time the witness promised that he would tell the truth about what he had seen. When called at trial later that day, however, Echevarria once again claimed he could not identify the shooter and asked to speak to the Trial Judge. As he told her:
"Spanish Harlem is a small place, okay. My family lives there. All right. I don't live there. Okay.
"Steven was a friend of mine, a good friend of mine. All right.
"Now, see, I got to think about my family, all right. Even though I'm not going to live there, my family is going to be there, you know what I'm saying."
The People at that point noted that Echevarria had told a prosecutor that some men had approached members of his family and gave them reason to believe that there was a "contract" out on him, and they moved to introduce the prior statements Echevarria had made to law enforcement officials implicating defendant. The court ordered a Sirois hearing to test the People's assertion that defendant had intimidated Echevarria.
At the hearing, the People called Police Officer Wilson Vargas and Detective Hedxan Quinones, who had been present at the March 13 and 14 trial preparation sessions. They testified that at the first session the prosecutor confronted Echevarria with a written statement he had made to the police shortly after the murder in which he gave a false name and did not identify the shooter; Echevarria responded that he had been scared at the time. In each of the sessions, according to these witnesses, Echevarria described the events he saw the night of the shooting, relating that while he was using a telephone on the corner, he saw defendant cross the street in a crouched manner, holding his hand close to his side. When he reached the corner, defendant approached Davilla, said "What's up now, money?" pointed a gun at Davilla and shot him. Davilla fell backward, stumbled and attempted to run away. Defendant followed, continuing to fire shots. Defendant then turned around, looked at Echevarria face-to-face, pointed the gun at him without firing, and fled. Vargas and Quinones further testified that during the two sessions, Echevarria was seated in a chair, was not in handcuffs, did not appear nervous, demonstrated a positive frame of mind, engaged in conversation without any sign of discomfort and was not promised anything for his trial testimony.
Officer Vargas testified, additionally, that he and a prosecutor met with Echevarria again on March 20, two days after Echevarria testified that he could not identify the shooter, but before the Sirois hearing. Echevarria said at that meeting that early on the day before he was to testify, he spoke by telephone to his fiancee. She had expressed fear for herself and her child, and told him that someone had approached his mother and sister and inquired as to his whereabouts. Echevarria said that he was afraid "something might happen to [his] family" if he testified and that "there would probably be a contract" out on him.
Detective Quinones further testified that he had spoken with Echevarria's mother and sister a few days before the Sirois hearing. The sister told Quinones that a few days earlier, unidentified people from her neighborhood had approached her and asked her exactly where Echevarria was being housed in Rikers Island. She told the detective that "word on the street" was that her brother "was talking." She added that she knew defendant's family had "killed a family a while ago" and that if anyone talked against defendant's family, they would be killed.
When called by the People at the Sirois hearing, both Echevarria and his sister denied the statements attributed to them indicating that threats had been made. The sister denied that she had been harassed, and denied telling Detective Quinones or her mother about a conversation with the harassing party. Moreover, although testifying that she knew Richie Cotto by face, when asked if she could identify him in the courtroom, she answered, several times, "I don't know." Echevarria himself reiterated his trial testimony that he could not identify the shooter, and explained the voicemail message by stating that he did not want to testify at trial because he did not want to miss an upstate parole hearing, since that would delay his release date from prison and adversely affect his family.
The People also called Echevarria's mother as a hearing witness. She testified that prior to the morning of March 17, her daughter had told her that someone had stopped her in the street with her baby and had asked whether her brother was incarcerated. The questioner also stated that Echevarria had "talked" about the murder. Echevarria's mother testified that her daughter said she was scared and afraid for her brother--a sentiment she had never previously expressed. When her daughter learned that her mother had related this incident to Quinones, she became upset and told her mother that she had a "big mouth."
At the conclusion of the hearing, the trial court announced that the People had met their burden of showing, by clear and convincing evidence, that Echevarria had been intimidated by defendant, that his March 13 and 14 statements would be admitted at trial, and that cross-examination of Echevarria would not be permitted but that the jury would have before it "Echevarria's live direct testimony as well as his [conflicting] out-of-court statements to the police." Defense counsel asked whether she would be permitted to question Vargas and Quinones about the "res gestae of the statement," but otherwise made no objection regarding cross-examination. The Trial Judge later issued a written opinion on the Sirois issues (see, 169 Misc.2d 194, 642 N.Y.S.2d 790).
At trial, Quinones and Vargas testified as to Echevarria's statements at the March 13 and 14 meetings and were cross-examined by defense counsel. Echevarria did not return to the stand. The jury ultimately returned a guilty verdict. On appeal, the Appellate Division affirmed defendant's conviction, and we now affirm the order of that court.
In People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817, we held that at a Sirois hearing, the People must demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused a witness's unavailability. If the People meet that burden, the defendant is precluded from asserting either "the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness's out-of-court declarations" (id., at 366, 625 N.Y.S.2d 469, 649 N.E.2d 817). Contrary to defendant's argument, we conclude that the People satisfied their heavy burden, so that Echevarria's out-of-court declarations could be evaluated by the jury.
First, there was sufficient evidence to establish that threats were made against Echevarria. At the Sirois hearing, Quinones and Vargas testified as to Echevarria's out-of-court statements as well as the interviews with his sister and mother, showing that he was prepared to identify defendant but had been scared into silence. Echevarria and his sister, in their testimony, denied that threats had been made and that they had told police or prosecutors anything about those threats. That credibility clash has been resolved by findings of the Trial Judge (who observed the witnesses)--affirmed by the Appellate Division--that the People's evidence was credible, the contrary evidence not. In the words of the trial court:
"during his testimony both on March 18 and again at the Sirois hearing, Echevarria appeared to be anxious, uncomfortable and forced in his responses, a demeanor inconsistent with truthfulness and consistent with a state of mind demonstrating a fear of harm to his family or to himself if he should testify against Richard Cotto" (169 Misc.2d 194, 198, 642 N.Y.S.2d 790).
Similarly, the court rejected Echevarria's sister's testimony as incredible, finding that it conflicted with the testimony of Quinones and her own mother, as well as with Echevarria's out-of-court statements. The testimony of Detective Quinones and Officer Vargas, reporting Echevarria's March 13 and 14 statements, was by contrast found credible. In the courts' view, Echevarria's attempts at the Sirois hearing to explain his voicemail message and March 18 statement to the court were unbelievable and wholly at odds with his panicked voice and demeanor on both occasions.
Second, the evidence is sufficient to link these threats to defendant. Because of "the inherently surreptitious nature of witness tampering" circumstantial evidence may be used to "establish, in whole or in part, that a witness's unavailability was procured by the defendant" (People v. Geraci, 85 N.Y.2d, supra, at 369, 625 N.Y.S.2d 469, 649 N.E.2d 817). Defendant, who knew Echevarria from his neighborhood, was out on bail when the threats were made and had the opportunity to arrange and orchestrate them. Echevarria and his family, moreover, received the threats immediately after it was revealed that he would implicate defendant--thus giving defendant uniquely good reason to want to intimidate Echevarria--and there was no suggestion that anyone else stood to gain from the witness's silence (see, by contrast, People v. Geraci, supra, 85 N.Y.2d, at 369-370, 625 N.Y.S.2d 469, 649 N.E.2d 817). Additionally, as the trial court noted, defendant had previously successfully threatened Echevarria when, at the time of the shooting, he looked him in the eye and pointed a gun at him which prompted Echevarria to give the police a false name and deny being able to identify the shooter. All of these affirmed facts, together, clearly and convincingly link defendant to the threats.
Contrary to the dissent, the Court is not setting a new standard by accepting "unsubstantiated visits by unnamed individuals" (dissenting opn., at 86, at 45 of 677 N.Y.S.2d, at 404 of 699 N.E.2d.) Here, unlike People v. Hamilton (70 N.Y.2d 987, 526 N.Y.S.2d 421, 521 N.E.2d 428), there was well-established motive, opportunity, timing and prior intimidation to link defendant to the threats. Requiring specific identification in situations invariably involving surreptitious conduct permits easy evasion of the principle, and sound public policy, that defendants should neither interfere with witnesses nor benefit from such wrongful conduct.
Defendant next challenges the reliability of Echevarria's statements. He claims that Geraci should be limited to Grand Jury testimony and that, even if discussions with law enforcement officials may be admissible, Echevarria's statements lack sufficient indicia of reliability to satisfy due process. Again, we perceive no error in the Appellate Division order.
Initially, we are unpersuaded by defendant's contention that Geraci is limited to admitting prior Grand Jury testimony of an intimidated witness. Although Geraci itself involved Grand Jury testimony, the Court did not limit its reach to those particular out-of-court statements and indeed made clear that it applied to "hearsay evidence such as the Grand Jury testimony" (id., at 368, 625 N.Y.S.2d 469, 649 N.E.2d 817 [emphasis added] ). Nor would the policy objectives underlying Geraci be served by foreclosing admissibility of other reliable evidence (see, id., at 367-368, 625 N.Y.S.2d 469, 649 N.E.2d 817; see also, United States v. Thai, 29 F.3d 785 [2d Cir.] [prior statements to police admissible], cert. denied sub nom. Lan Ngoc Tran v. United States, 513 U.S. 977, 115 S.Ct. 456, 130 L.Ed.2d 364; United States v. Aguiar, 975 F.2d 45, 47 [2d Cir.] [prior statements to drug enforcement agents and Assistant United States Attorney admissible] ).
While surely statements admitted pursuant to Geraci cannot be so devoid of reliability as to offend due process, no such danger is presented here. Echevarria's statements were repeated only days after they had first been made, were (according to the affirmed findings) lucid and credible, and described in detail defendant's actions both before and after the shooting. Those same statements were made on two separate occasions, and recounted in the testimony of two witnesses subject to cross-examination, thus making it unlikely that Echevarria was misunderstood. Additionally, the testimony indicated that Echevarria received no special treatment from the police and had no motive to change his original story and put himself or his family at risk. The statements were thus certainly sufficiently reliable for evaluation by the jurors.
Finally, defendant urges that the trial court improperly precluded him from any cross-examination of Echevarria as a result of the Sirois hearing. Indeed, defendant now argues to this Court that the trial court improperly adopted a standard used in Federal courts which, when the People meet their burden at the Sirois hearing, precludes cross-examination of the intimidated witness for all purposes (see, e.g., United States v. Aguiar, 975 F.2d 45, 47, supra ). This contention, however, was not raised by objection before the trial court and is thus unpreserved for our review.
While we cannot reach the merits of the unpreserved issue and decide the permissible scope of cross-examination, we cannot let stand the suggestion of the dissent that the trial court "explicitly and inexplicably" rejected a rule of law announced by this Court (see, dissenting opn., at 80, 83, at 41, 43 of 677 N.Y.S.2d, at 400, 402 of 699 N.E.2d). The trial court stated that no "truth-serving function will be served by allowing defendant to cross-examine Echevarria on any subject, under the circumstances here presented " (People v. Cotto, 169 Misc.2d 194, 203, 642 N.Y.S.2d 790 [emphasis supplied] ).
Alternatively, defendant seeks reversal of his conviction on the ground that the trial court erroneously admitted statements of the victim, heard by a police officer and an Emergency Medical Technician in the ambulance on the way to the hospital, under the "excited utterance" exception to the hearsay rule. We conclude that the trial court's in limine ruling admitting the statements was correct, and do not reach the People's alternative argument that the statements qualified as dying declarations.
An excited utterance occurs " ' "under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection" ' " (People v. Brown, 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515). While it is critical that statements be made before a declarant had an opportunity to reflect, the relevant time period " ' "is not measured in minutes or seconds" but rather "is measured by facts" ' " (People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328). The court must examine "not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim"(People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229). That statements were made in response to an inquiry does not disqualify them as excited utterances but rather is a fact to be considered by the trial court (id., at 498-499, 419 N.Y.S.2d 45, 392 N.E.2d 1229).
Here, as found by the trial court and affirmed by the Appellate Division, the victim was severely wounded by a gunshot from close range and attempted to escape additional shots fired at him by defendant. The victim's injuries were severe enough that he had no discernible blood pressure on his trip to the hospital, leading the attending EMT to conclude that he was going into shock and could die. Although the victim remained lucid for much of his trip in the ambulance, he was in great pain, his condition only worsened and his physical shock and trauma never subsided. It is this extraordinary stress that prevented Davilla from engaging in reflection and gives his statements the necessary indicia of reliability (People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328, supra ). Neither the short interval between the shooting and the statements, nor the fact that the statements were made in response to questioning was sufficient to interrupt the excitement of the shooting and consequent injuries (People v. Brooks, 71 N.Y.2d 877, 527 N.Y.S.2d 753, 522 N.E.2d 1051 [2 1/2-hour delay between injury and statements, prompted by questioning]; People v. Brown, 70 N.Y.2d 513, 522 N.Y.S.2d 837, 517 N.E.2d 515, supra [30-minute delay between injury and statements, prompted by questioning] ). Thus, we cannot say that the trial court erred as a matter of law in admitting the victim's statements.
While we agree with the dissent that the passage of time is not, in itself, dispositive, the dissent nonetheless implies that the victim spent substantial time being questioned in the ambulance, affording him an opportunity to reflect. To the contrary, the trip from the site of the shooting to the hospital took less than 10 minutes, and the entire exchange between the victim and the police officer took approximately two minutes.
Defendant's remaining contentions are either unpreserved or without merit.
Accordingly, the order of the Appellate Division should be affirmed.
SMITH, Judge (dissenting).
Because I believe that this Court cannot accept a decision by a trial court that it will not follow a rule of law announced by this Court, I dissent. In addition, the ruling by the trial court took away completely the right of the defendant to confront the primary witness against him in this proceeding.
On the night of November 28, 1992, Steven Davilla was shot to death on a street in Manhattan. The only living eyewitness to the crime at the time of the trial was Anthony Echevarria. From the time of the shooting in 1992 until a few days before the trial in 1996, the witness never identified defendant as the shooter. Shortly before trial, Echevarria informed the prosecutors that he had seen the defendant shoot the deceased. On Sunday, March 17, 1996, the day before his scheduled testimony in the trial of the defendant, Echevarria telephoned the prosecutor in the case from Rikers Island where he was being held on an unrelated charge and left a message that he would say nothing and that his family was in jeopardy.
The next morning the prosecutors interviewed Echevarria and then had an ex parte conference with the court. The prosecutors told the court that Echevarria's mother and wife had been told that there was a contract on Echevarria and they wanted to know whether Echevarria was going to testify in the case. The court offered to postpone Echevarria's testimony, but the People declined the offer. When Echevarria was called to the stand, he testified that he did not see the person who had shot Davilla. After a sidebar conference and after the jury was removed from the courtroom, Echevarria stated
"Spanish Harlem is a small place, okay. My family lives there. All right. I don't live there. Okay. Steven was a friend of mine, a good friend of mine. All right. Now, see, I got to think about my family, all right. Even though I'm not going to live there, my family is going to be there, you know what I'm saying. And--."
Echevarria was then excused from the courtroom. The People moved to introduce into evidence Echevarria's out-of-court statements in which he identified Cotto as the shooter. The People also moved to introduce into evidence threats allegedly made to Echevarria's relatives, arguing that this was circumstantial evidence of the defendant's guilt.
As required, Supreme Court conducted a Sirois hearing (see, People v. Geraci, 85 N.Y.2d 359, 365, 625 N.Y.S.2d 469, 649 N.E.2d 817; Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591). It concluded that there was clear and convincing evidence that Echevarria had "changed his testimony and became unavailable to the People due to intimidation which was either initiated or approved by defendant" (People v. Cotto, 169 Misc.2d 194, 202, 642 N.Y.S.2d 790). Consequently, the court held that Echevarria's out-of-court statements to the prosecutors could be admitted at trial. However, the court further stated that
"As already noted, under the law of New York a defendant whose misconduct causes the unavailability of an adverse witness forfeits his right to confront and cross-examine that witness on the substance of the out-of-court statements received in evidence as a consequence of the defendant's misconduct [citing People v. Geraci, 85 N.Y.2d 359, 367, 625 N.Y.S.2d 469, 649 N.E.2d 817]. In this case, however, it would seem appropriate to follow the Federal rule, which holds that the defendant who commits such misconduct forfeits his right of confrontation for all purposes as to that witness [citation omitted]. No-truth serving function will be served by allowing defendant to cross-examine Echevarria on any subject, under the circumstances here presented. Because the jury will have before it Echevarria's live direct testimony as well as his out-of-court statements to the police, however, an appropriate limiting instruction will be given to the jury by the court" (People v. Cotto, supra, at 203, 642 N.Y.S.2d 790).
The trial court further permitted the introduction of evidence that defendant pointed a gun at the witness on the night of the shooting as consciousness of guilt. The court stated:
"In assessing whether the evidence in question is more probative than prejudicial, I find that the gunpoint threat made by defendant to Echevarria on the night of the crime is highly probative of defendant's consciousness of guilt and exceeds the prejudicial effect of such evidence. For this reason, and because of my Sirois findings, I hold that evidence of Echevarria's statements regarding defendant pointing the gun at him after seeing him at the scene of the crime is admissible to establish defendant's consciousness of guilt" (169 Misc.2d, at 203, 642 N.Y.S.2d 790 [citations omitted] ).
The court did not permit the introduction of threats allegedly made to Echevarria's sister.
Defendant was subsequently convicted and sentenced. The Appellate Division affirmed the conviction (People v. Cotto, 240 A.D.2d 193, 658 N.Y.S.2d 278).
In People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817, supra, this Court held that where a defendant has procured a witness's unavailability through violence, threats or chicanery, a trial court may admit, as direct evidence, the out-of-court statements, including Grand Jury testimony, made by the now unavailable witness (id., at 365-366, 625 N.Y.S.2d 469, 649 N.E.2d 817). While recognizing the necessity, on grounds of public policy, of "reducing the incentive to tamper with witnesses" (id., at 368, 625 N.Y.S.2d 469, 649 N.E.2d 817), the language and tenor of the decision make clear that the Court was concerned by the possible repercussions of such a rule. In order to mitigate the attendant dangers, this Court held that such testimony would only be admissible where clear and convincing evidence of defendant's misconduct had been proffered. Rejecting the Federal "preponderance of the evidence" standard, the Court stated the clear and convincing standard was "more exacting" (id., at 367, 625 N.Y.S.2d 469, 649 N.E.2d 817) and was "the test that best recognizes the gravity of the interest at stake and most effectively balances the need to reduce the risk of error against the practical difficulties of proving witness tampering"(id., at 367, 625 N.Y.S.2d 469, 649 N.E.2d 817).
The Court also recognized that a finding of misconduct by the defendant would result in that defendant's forfeiture of the right to cross-examine the witness about the substance of the statements initially made by the witness. To even this limited and narrow abridgment of the right of confrontation, we stated:
"[A] defendant's loss of the valued Sixth Amendment confrontation right constitutes a substantial deprivation. Additionally, and even more significantly, society has a weighty investment in the outcome, '[b]ecause of the intimate association between the right to confrontation and the accuracy of the fact-finding process' " (id., at 367, 625 N.Y.S.2d 469, 649 N.E.2d 817 [citation omitted] ).
The Court's concern was obvious and manifest. By requiring the proffer of clear and convincing evidence, the Court sought to minimize the damage its rule could wreak upon "the process of determining the truth in adjudicative proceedings" (id., at 367, 625 N.Y.S.2d 469, 649 N.E.2d 817). It is clear then that the Court's decision to limit the loss of the fundamental right of confrontation only to the substance of the hearsay statements is consistent with the tone, tenor and language of the decision, and its desire to protect and insure the integrity of the truth-seeking process (see, e.g., People v. Maher, 89 N.Y.2d 456, 461, 654 N.Y.S.2d 1004, 677 N.E.2d 728 [rejecting the expansion of the Geraci rule and recognizing "the weighty countervailing interests, that is, the constitutional right of confrontation and the strong New York policy for narrow treatment of exceptions to the hearsay rule"] ).
The Federal rule adopted by the trial court was articulated in United States v. Aguiar, 975 F.2d 45. There, the defendant was arrested on drug charges with the assistance of George Albino, a courier. Approximately four months after defendant's arrest, and after Albino had entered into a plea agreement, Albino told the Government that he would no longer cooperate because he had been threatened by the defendant. Albino expressed fear for himself and his family. Pursuant to a search warrant, agents found two threatening letters in Albino's prison cell. One letter contained defendant's fingerprints and the other was from "a very good friend of [the defendant.]"
Faced with Albino's continued refusal to cooperate, the Government sought a hearing and attempted to introduce Albino's prior testimony inculpating the defendant (see, United States v. Mastrangelo, 693 F.2d 269). The District Court admitted the testimony and held that defendant had procured Albino's unavailability and had thereby waived his confrontation rights and hearsay objections (United States v. Aguiar, supra, at 47). The Second Circuit affirmed. It held that "although Mastrangelo involved sworn grand jury testimony, we did not there, and do not here, limit its rationale to such testimony. A defendant who procures a witness's absence waives the right of confrontation for all purposes with regard to that witness, not just to the admission of sworn hearsay statements " (id., at 47 [emphasis supplied] ).
By comparison, in People v. Geraci, supra, this Court held that "[a] determination that the defendant has procured a witness's unavailability results in the admission of hearsay statements and the forfeiture of the right to cross-examine about the substance of those statements " (id., at 367, 625 N.Y.S.2d 469, 649 N.E.2d 817 [emphasis supplied] ).
Yet, the trial court explicitly and inexplicably rejected this Court's rule. It stated that a recent articulation of State law should not be deemed authoritative and, instead, Federal law should supply the operative rule (see, United States v. Aguiar, supra, at 47). In clear contravention of State decisional law, the trial court specifically stated:
"In this case, however, it would seem appropriate to follow the Federal rule, which holds that the defendant who commits such misconduct forfeits his right of confrontation for all purposes as to that witness [citation omitted]. No-truth serving function will be served by allowing defendant to cross-examine Echevarria on any subject, under the circumstances here presented" (People v. Cotto, 169 Misc.2d 194, 203, 642 N.Y.S.2d 790, supra ).
The majority has concluded that defense counsel's failure to object places the issue beyond our reach. It should be clear, however, that defense counsel did oppose the prosecutor's efforts to admit the out-of-court statements into evidence, arguing that the evidence that defendant threatened the witness was not clear and convincing and protesting the loss of the right of cross-examination. Thus, in accordance with CPL 470.05, defendant made clear what ruling was desired. In my view, no further objection was necessary, particularly when the court stated that it would not follow the rule of law announced by this Court.
There can be no doubt that the trial court's ruling deprived the defendant of his right of confrontation even more so than the Geraci rule envisioned or necessitated. Several reasons underscore the importance of cross-examination in this case. First, Echevarria was the only living witness against the defendant. The defendant's freedom rested upon the strength and weakness of this sole witness's testimony. The removal of defendant's right to confront this sole witness against him was a fatal blow to defendant's case. Second, a cross-examination of the witness could have brought forth the fact that the witness had a motive to support the People's view of the evidence. According to defense counsel, cross-examination as to the timing of Echevarria's statements inculpating the defendant would have revealed that these statements were made only during a period when Echevarria had a motive to fabricate. Specifically, the statements were made while there existed the possibility that cooperation with the People would speed his release from prison. Additionally, defense counsel argued that cross-examination could have revealed that the sole witness against the defendant was less than forthcoming on the stand in describing his prior offenses, and that in the witness's initial discussions with the police investigators, he did not name the defendant as the shooter. The relative merits of these arguments, and the weight, if any, to be accorded them, should have been questions for the jury to determine.
Contrary to the trial court's decision, there was no clear and convincing evidence that defendant engaged in misconduct so as to render the witness unavailable. While the majority relates the facts of this case to those in People v. Geraci, supra, it is clear that there is a substantial difference between the two cases. First, a defendant will always be the greatest beneficiary where the primary and only witness against him refuses to testify against him. But unless there is clear and convincing evidence linking the defendant to the witness's subsequent refusal to testify, a defendant should not be penalized for the witness's action. It is possible, or even likely, that a witness in a criminal trial will come to realize, on his or her own, that testimony against the accused may put that witness or his or her family at risk of retaliation or retribution. Or it may be that the witness, becoming more and more aware of the risk of harm as the trial looms large, experiences an inchoate fear or senses danger lurking behind every gesture or word. In these circumstances, the witness will understandably seek to renege on his prior statements and may do so by stating that a threat has been made against the witness's safety or that of his or her family. But Geraci has made it clear that the focus of the court's inquiry should not be upon either the existence of a risk of harm or upon the perceived sincerity of the witness's, or his family's, fear. Rather, the critical gaze of the court must rest upon what role, if any, the defendant, or those acting on his behalf, played in bringing about the witness's unavailability. Without clear and convincing evidence of such interference, a defendant may not be held to have waived his constitutional right.
In Geraci, not only was the defendant out on bail, but he also approached the chief witness against him and stated that his lawyer wanted to discuss the case with the witness. Additionally, a known and identifiable individual--the defendant's uncle--spoke with the witness, and several thousand dollars was promised to the witness. In fact, at the time of the trial, the witness had already received $2,000 and was to receive $250 per week until the end of the trial.
In the instant case, the witness, Echevarria, claimed that "someone" had approached his mother and sister and inquired as to his whereabouts. He also stated that "there would probably be a contract" out on him. Echevarria's sister claimed that "unidentified people" from the neighborhood had approached her and asked where he was being housed at Rikers Island. These same "unidentified individuals" also allegedly expressed dismay that he was going to testify. Echevarria's sister stated that the "word on the street" was that Echevarria was "talking." Additionally, his sister stated that she knew that defendant's family had "killed a family a while ago." Next, Echevarria's mother stated that while no one in the community had uttered a single word to her, her daughter had related to her the story of being approached by one or more unidentified individuals questioning the whereabouts of the witness.
This is the sum and substance of the evidence of defendant's alleged threats causing the witness's unavailability. Such "proofs" simply do not rise to the level of clear and convincing evidence. There is no proof that a "contract" existed on the witness. There is no proof that the defendant or anyone acting on his behalf ever spoke to the witness's sister. Although defendant was out on bail, there is no proof that he or anyone associated with him made any contact with the witness (see, People v. Hamilton, 70 N.Y.2d 987, 988, 526 N.Y.S.2d 421, 521 N.E.2d 428). Instead, the People proffer, as evidence of a threat, the statement of Echevarria, the witness, that the defendant, at the time of the shooting, looked Echevarria in the eye and pointed a gun at him. However, even assuming this statement to be true, and the incident did occur on November 28, 1992, the incident appears to be of little relevance since Echevarria went on to identify the defendant on two separate occasions--March 13 and March 14, 1996. Thus, this alleged incident, occurring almost four years before Echevarria first identified the defendant, then withdrew his identification, can hardly be the threat which caused the defendant's unavailability.
Most troubling is the precedent being set by this Court in sustaining the trial court's ruling. Under the authority of this case, vague allegations of "word on the street" combined with tales of unsubstantiated visits by unnamed individuals will suffice to establish clear and convincing evidence of a defendant's unlawful interference with a witness. Such a conclusion could not have been intended by this Court when it reasoned that "our statutory and decisional law counsels a cautious approach that permits use of the exception only when the predicate facts are proven with the degree of certainty that the 'clear and convincing evidence' test assures" (People v. Geraci, 85 N.Y.2d 359, 368-369, 625 N.Y.S.2d 469, 649 N.E.2d 817, supra ). The truth-seeking and truth-protecting aspects of the "clear and convincing" standard are not preserved by an affirmance in this case.
Although the court held that the victim's statements could not be admitted into evidence as dying declarations, the court erred in admitting the statements as excited utterances. It has been clearly established that an out-of-court statement may be introduced for the truth of its content if the statement is made "before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance" (People v. Marks, 6 N.Y.2d 67, 72, 188 N.Y.S.2d 465, 160 N.E.2d 26). The linchpin of an excited utterance is that
" 'under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control * * *. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts' " (id., at 71-72, 188 N.Y.S.2d 465, 160 N.E.2d 26).
Moreover, "[w]hile the statement must have been made before the declarant had the opportunity to reflect, ' "the time for reflection is not measured in minutes or seconds," ' but rather ' "is measured by facts" ' " (People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328). Before admitting a statement as an excited utterance, the trial court must
" 'assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection ' " (People v. Brown, 70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 517 N.E.2d 515 [citation omitted] [emphasis in the original] ).
The facts of this case show that the victim, Steven Davilla, was found lying in the street at 103d Street and Second Avenue by two officers. Though no blood was visible, it was believed that Davilla had sustained a gunshot wound to the abdomen or chest, and the officers summoned an ambulance. When the ambulance arrived, Davilla, who was conscious and lucid, was placed on a gurney and into the ambulance. An officer rode along with the victim. As the ambulance sped away, the officer asked Davilla, "Who shot you?" Davilla responded by tapping his own chest and saying, "I know." Believing that Davilla did not want to speak with the officer, the emergency medical technician on board told Davilla, "You're not doing too good. Why don't you talk to the officer." The officer reiterated this assertion.
At this point, Davilla began to cooperate and gave the officer his name, address and apartment number. The officer then asked, "Who shot you?" and Davilla replied, "Richie." The officer asked for "Richie's" last name, but Davilla did not answer. So the officer again stated, "Do you realize that there's a good chance you're going to die?" Davilla responded, "Yeah." After some period of time--perhaps seconds, perhaps minutes--Davilla stated that the shooter was "Richie from my building." The officer asked whether the shooter was named "Richard Cotto," and Davilla responded affirmatively and added that it was "Richie from the fourth floor." At this point in time, the officer again asked, "Do you realize that there's a chance you're going to die?" and Davilla again responded affirmatively. The officer then asked, "Are you sure who shot you?" and Davilla responded, "Yeah" and--seconds or minutes later--added, "Richie Cotto shot me." At this time, according to the testimony of the officer, Davilla became somewhat ashen and began to experience some difficulty breathing. But the officer was able to ask, "What kind of car does he drive, because I want to make sure we're talking about the same person here. What kind of car does he drive?" And Davilla was able to respond that it was a white car.
It is difficult to conclude from this recitation of the facts that the victim's statements constituted an excited utterance. It is evident that the witness listened to the multiple questions and proddings of both officer and technician, reflected upon his answers, deliberated before responding, and weighed his responses accordingly. A statement or utterance made in response to an inquiry is merely one factor bearing on spontaneity (see, People v. Edwards, 47 N.Y.2d 493, 498, 419 N.Y.S.2d 45, 392 N.E.2d 1229; People v. Brown, 70 N.Y.2d 513, 522, 522 N.Y.S.2d 837, 517 N.E.2d 515, supra [the "nature, extent and purpose of the questions and the identity, position and manner of the questioner" are additional factors to be considered] ). However, the facts of this case demonstrate that the officer was engaged in a conversation with the witness and was clearly attempting to prod loose from the witness the name of his attacker.
The facts show that the witness at first affirmatively declined to name his attacker. There was no evidence that this reluctance was occasioned by his medical condition rather than his own cognitive function or decision-making process. But after continuous prompting by the medical technician and police officer, the witness offered a first name. And again, after gentle and helpful reminders of his imminent demise, the witness agreed that his attacker was the defendant. In fact, the medical technician's own observations and testimony support the view that Davilla clearly reflected upon his statements before responding to the officer's inquiries. When asked during cross-examination whether it was the patient or the officer who first named the defendant, the medical technician stated:
"The patient [said] 'Richie.' He didn't say it right away. He sort of like thought about it for a few seconds and then he said 'Richie'."
The safeguards or indicia of reliability which form the core of this hearsay exception are greatly attenuated in this case. There is no doubt that a gunshot wound constitutes an "external startling event" (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229, supra ) which may precipitate an excited utterance. However, there is no presumption that a statement attendant to the infliction of such a wound will in all cases constitute an excited utterance. The circumstances of each case and the behavior of each witness must be carefully examined (see, People v. Brown, supra, at 522, 522 N.Y.S.2d 837, 517 N.E.2d 515 ["The focus of the inquiry remains the same: the physical, psychological, and emotional condition of the declarant and whether it can be reasonably concluded 'that the remarks were not made under the impetus of studied reflection'."] ). Here, there was no evidence of the "extreme pain and unrelenting physical and emotional trauma" that this Court found dispositive in People v. Brown, supra, at 520, 522 N.Y.S.2d 837, 517 N.E.2d 515. In fact, neither the officer nor the medical technician testified that the victim himself expressed any sense of urgency or fear during the questioning, or that he appeared to be excited or under stress when he spoke (see, People v. Nieves, 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109). As previously stated, the witness was conscious and lucid throughout the majority of the questioning. The deliberative and reflective nature of Davilla's statements in response to questions by the officer and medical technician is striking and should have served to remove the statements from the realm of the excited utterance exception.
Also relevant here are the allegations of a long-standing feud or enmity between Davilla and the defendant and the fact that the witness died before trial and thus could not be subject to cross-examination (see, 6 Frumer and Biskind, Bender's New York Evidence--CPLR § 24.03[1], at 24-6 [stating that factors that must be taken into account in determining whether a declaration was an excited utterance include "the fact that the complainant was subject to cross-examination"] ).
Thus, I conclude that the trial court's failure to follow State decisional law which caused defendant to be deprived of his constitutional right of confrontation provides sufficient ground upon which to reverse the order of the Appellate Division. Additionally, there was no clear and convincing evidence of defendant's misconduct. Finally, the trial court erred when it admitted into evidence the testimony of the victim as an excited utterance.
Accordingly, I would reverse the order of the Appellate Division and order a new trial.
BELLACOSA, LEVINE, CIPARICK and WESLEY, JJ., concur with KAYE, C.J.
SMITH, J., dissents and votes to reverse in a separate opinion in which TITONE, J., concurs.
Order affirmed.
In Cotto, the People's sole witness, who had identified defendant as the assailant to police a few days prior to defendant's trial, took the stand at trial and testified that he did not know the identity of the assailant.
Summary of this case from People v. Bosier
In People v. Cotto, 92 N.Y.2d 68, 677 N.Y.S.2d 35, 699 N.E.2d 394, a statement by the deceased identifying the shooter, made to the police as he lay dying in an ambulance, was admitted as an excited utterance.
Summary of this case from People v. Fratello
In Cotto, the Court of Appeals found that while statements admitted pursuant to Geraci cannot be so devoid of reliability as to offend due process, no such danger was presented in Cotto, where the witness's statements were repeated only days after they had first been made, were lucid and credible, and described in detail the defendant's actions both before and after the shooting.
Summary of this case from In re Duane F
In People v. Cotto, supra, 92 N.Y.2d at 73, 677 N.Y.S.2d 35, 699 N.E.2d 394, for example, an eyewitness to a shooting began to express reluctance about testifying at defendant Cotto's trial because he believed his family was in jeopardy.
Summary of this case from People v. Turnquest
In People v. Cotto, 92 NY2d 68 [1998], the Court of Appeals found that based upon the past actions of a defendant as well as the accumulation of all the facts that were developed at a Sirois hearing, a court could properly link a defendant to the unavailability of a complainant.
Summary of this case from People v. Ali


This blog is dedicated to the belief that a lot of what we consider aging in the modern world is just accumulated years of misuse (sitting!), plus years of eating stuff our bodies weren't designed to handle.
We already see unhealthy aging becoming a huge societal problem, and I'm determined not to be part of it.
Living long enough, and well enough, to see a good chunk of "the rest of the story," in my family, as well as nationally and globally. I can't wait to see what happens next.
In this blog, I'll focus on aging well through the lens of Paleo or "caveman" life, looking at food, exercise, sleep, stress management, and more.
Why should you take advice from me? Well, I lost 40 lb and kept it off since the year 2000 by doing the stuff I'll be talking about – easily, with no hunger (I have zero willpower). It also worked for my husband and son.
2010 in Maui. At age 50, I'd been on the path for some years, but my boys lagged a bit. Once they got going, though, they zoomed ahead (I think Andrew's FiveFingers were his secret weapon). Now Andrew and Sam inspire me every day with their dedication to fitness and healthy eating.
For the last 16 years, I've eaten very little sugar, but I'm now moving to zero tolerance – not even in my toothpaste! See tomorrow's post for all the details. It's going to be difficult, but I'm determined.
Until then, I wish you a happy, healthy 2017.


The claim relates to the fact that millions of people subscribe to broadband services based on bandwidth rather than capacity.
According to the report, British broadband users are collectively losing up to £750 million a year by paying for faster-than-needed services, with many customers subscribing to ADSL2+ "up to 20mbps" services when most only need an ADSL1 8mbps service.
The research found that only five per cent of British broadband users actually download music and just three per cent download movies.
"This research clearly highlights the need for the industry as a whole to re-think the way it sells broadband," said Sebastien Lahtinen of Thinkbroadband.com.
The study comes at a time O2 plans to launch a set of usage-based tariffs so it's perhaps unsurprising that the conclusions of the report appear to back up the marketing angle behind the new internet services.
The claims of 'wastage' based on using flat rate packages ignores the reality that ISPs set their pricing based on total demand. There may well be better deals for certain types of low-use consumer but equally many will be served well in getting decent value at a flat rate price regardless of exactly how much bandwidth they use.
ISPreview.co.uk also points out that technical improvements means extra bandwidth often doesn't cost extra and that bandwidth costs continued to fall. "A growing number of ISPs have simply replaced their 'up to' 8Mbps (ADSL) packages with 24Mbps (ADSL2+) solutions, often at no additional cost," they said.


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Railway tickets sales for trains between Dedovichi and Orsha Centr starts 45 days in advance. If you buy them earlier then you have more chances to choose better seats. The less days you have before departure the less seats are available.


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text:
We'd like to think we have some experience saving our listeners from bad advice. After all, we have a segment that's literally called "Bad Advice." But in a SFW twist, we're gonna chat today with Quinn Cummings, whose job is to actually give what she calls "bad advice."
As a kid, Cummings earned an Oscar nomination for her role in the movie "The Goodbye Girl." She's also an author, and now hosts a podcast in which she answers listeners who seek her advice on topics from work, to relationships, to wigs. It's called "Quinn Cummings Gives Bad Advice," but we think her advice is pretty good. In that spirit, we're gonna set her loose on a few listener emails today!
Then in this week's Work Pop segment, we'll find out what the ABC sitcom "Better Off Ted" can teach us about how NOT to boost company morale. And Liz and Rico advise listener Jennie on how to escape some "golden handcuffs": where you have it so good, it's tough to leave your job, no matter how badly you want to hightail it outta there.
And last but not least, we've got a letter from listener Tamara whose team is making some big demands in their review meetings.
As always, if you've got a burning workplace question and need some advice, don't hesitate to send us an email (that email, unsurprisingly, is also Safe@Wondery.com). You can also find us on Twitter, we're @SafeFor Work. Don't forget to follow our sage hosts on Twitter, too; they're @SSLiz and @RicoGagliano. And if you want to check out Liz's other show, Satellite Sisters, you can find it on Apple Podcasts or Art19.
The Best 'Bad Advice' With Quinn Cummings

redpajama_set_name: RedPajamaCommonCrawl


When talking about SEO, how can we not talk about keywords? Keywords play an important role in optimizing the blog content for SEO. Having such content will make sure that along with the audience, your content is liked by the Search Engines as well. And here's where keyword research comes into the picture.
Factors related to the site and on-page optimization are also crucial for SEO and you can read about the on-page SEO techniques on our blog.
Whether it's a million dollar company or a startup, keyword research is the most sought after area when it comes to SEO. Companies at times hire freelance SEO experts and spend a great deal of money just to get the keyword research right.
In this article, I'll show you another way around to produce targeted content with proper keyword research without spending thousands of dollars. Here is a list of best keyword research tools to help you find the right keywords.
While most of them are paid, a few of the keyword research tools are free.
Google Keyword Planner tool is a free and most used keyword research tool. Its integration with Google AdWords and the fact that it is free has made it very popular.
You've got to have an AdWords account to use this tool.
It offers all the features necessary for keyword research. You can check the stats like competition, CPC, average monthly traffic for a keyword and much more. But all these stats are for the Google search engine so you may find this feature as a limitation since you cannot see how a keyword performs with other search engines.
This can be a good tool for beginners in the early stages of your site's SEO.
For an in-depth analysis of this tool and a guide on using it to find high paying Adsense keywords, read the related article on this blog.
Take your keyword research to the next level with this desktop software. This keyword research tool being a paid one is the most popular and most trusted tool.
The platinum version of this tool gives you an in-depth and detailed analysis of the keywords you are targeting and want to rank in your content. With this tool, you can actually find the high performing and highly paid keywords and optimize your blog post accordingly.
The competition checker lets you know how difficult it is to rank for a particular keyword.
This is the best keyword research tool I've ever come across. SEMRUSH has much more to offer than just keyword research. I have a great experience of finding the high performing keywords that are used by my competitors using SEMRUSH.
Yes, you can find what keywords your competitors are using with this keyword research tool. There is a detailed guide on how to use this tool on theblogtip.com. Refer the article to know about the various features of SEMRUSH and start using to up your SEO game.
And many other factors that would come handy in structuring your SEO strategy.
They have a 14 day Free Trial that you could make use of in understanding the tool and then you can decide for yourself if you wanna go with it.
Basically, Keyword Spy is an SEO optimization tool which well serves the purpose of keyword research.
With the ever growing market, some features are at times left behind in the competition. One such example is the tracking feature of Keyword Spy which may not hold well in markets with less competition and smaller businesses.
You can get a research account or track account subscription for $89.95 a month.
A professional account will cost you $139.
Agencies and companies can avail additional options of pricing.
This tool is mostly used by small companies to build a sound SEO strategy and find the right keywords to create targeted content.
Let's see some of the tools in WordTracker.
To begin with, let's talk about the tool that you are here for in the first place: the Keyword Tool. This keyword tool is an easy way of finding new keyword ideas and also the relevant keywords that you can use along with the exact matching ones.
Another crucial factor for SEO optimization is links. The Link Builder of WordTracker helps you in identifying the prospects for inbound links.
There are times when you want to get back to the macro and look at your SEO strategy to see if any revisions are necessary. Strategizer lets you do this.
The cool features of WordTracker come from its uniqueness.
Link Builder cannot be found in any other keyword research tool on this list.
Similarly, the view of your SEO strategy you get with Strategizer is unique too as this kind of view cannot be found anywhere else.
Firstly the interface isn't intuitive and doesn't come as expected for a tool with such cool features.
Second is the number of results you'd find with WordTracker. They are fewer as compared to other keyword research tools on this list.
If you want to take it slow and pay on a monthly basis, you can go for a monthly subscription of $69 or If you are confident about using this tool for a long time, a yearly subscription of $449 is waiting for you.
I don't think it's a good idea to go after all the above-listed tools. What would be better is if you stick to one or two of them and get acquainted with its system.
Now get back to the drawing board and decide your SEO strategy, see which of the tools goes well with it and start your keyword research right away.


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Tag: I miss 1993
Categories xxOLDCommunity News
Sonic the Comic Online Release Issue Number 250
Author Adam Tuff
Those of you lucky enough (and old enough!) to be a UK resident will no doubt hold dear in your heart the memory of picking up the first issue of Sonic the Comic from your newsagents way back in 1993 and squealing with delight at the plethora of stories and articles before you. Unfortunately that all came to a bitter end in 2002 when after months of re-releasing older stories and losing the interest of the die-hard fans, the comic ceased production.
However as a testiment to the captivating script writing and gorgeous artwork, a band of fans simply could not let the comic die.
From the ashes rose Sonic the Comic Online (or STC-O as it is known), took off from issue 224 where the official release left off, with a large group of fan artists and writers joining forces to produce issues every few months in the style of the original. Over the years the comic has gradually gained momentum, caught the attention of the writers from Fleetway (including SoS regular Nigel Kitching!) and has being nominated for many online comic awards.
This month STC-O celebrates the new decade with the release of issue 250, a milestone in the comic's history! I think you'll agree the artwork is nothing short of fantastic (the team of artists include no less than three SatBK art contest winners, with others going on into the world of professional comic book writing!), and the plot as convincing as those from way back in the day.
TSS caught up with STCO artist Stiv, who kindly commented on the release of the issue:
"It's been a labour of love. First conceived over 7 years ago, it's been brilliant to see it finally reach the masses. So many people have worked very hard on getting it finished and it's the most exciting thing in the Sonic Community I've taken part in."
Go check out the new issue issue over on the Sonic the Comic Online Web page.
Maybe if I write to Megadroid they'll do another Sparkster comic for me…
Everybody loves StivFleetwayI miss 1993Issue 250Sonic the ComicSTCO


After a short break Mali Zulu took to the stage and brought the beats with a handful of songs that got the crowd up out of their camping chairs and to the front of the stage for a warm up session of dancing, singing and good times – preparing the sold-out crowd for more great South African entertainment to come.
The full capacity crowd went crazy when Jeremy Loops and his instrumental, musically gifted crew took to the stage, performing a selection of music that fans have come to know and love, mixed up with the woozy summer-inspired songs from his latest album. After a five week global tour, this was the first show for the band since returning home, to much-loved South African soil. Fans were treated to a perfect mix of old and new, and a full night of great entertainment from this world-famous muso.
With an ever-increasing lifestyle-driven community, the Marriott Ballito Beats Music Series will continue to help create a social and fun experiential offering for Ballito's locals, delivering on its promise to all locals looking for family entertainment right in their very own back yard.
See you at the next show Ballito!


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Vote for your man of the match against Leeds
Tony Scholes December 27, 2020 Vote for your man of the match against Leeds2020-12-27T20:57:16+00:00
Burnley have been beaten 1-0 today at Leeds through an early penalty and now is your opportunity to choose your man of the match.
The winner in the last game, the 2-1 home win against Wolves last Monday, was left back Charlie Taylor who had an outstanding ninety minutes which included the cross for our opening goal scored by Ashley Barnes, but who will be your choice from this game.
As in previous seasons, the top four in the vote will win points towards the Up the Clarets Player of the Year as will the players who finish in the top four places in the player ratings on the message board.
This vote is now underway and will close at 8 p.m. on Tuesday to allow for the Sheffield United vote to get underway. It can be found below and, if viewing the desktop version of the site, on every page below the monthly archive links.
Who was man of the match in the 1-0 defeat at Leeds?
Josh Brownhill (56%, 206 Votes)
Charlie Taylor (12%, 43 Votes)
Ashley Westwood (11%, 41 Votes)
James Tarkowski (5%, 20 Votes)
Nick Pope (5%, 19 Votes)
Ashley Barnes (5%, 18 Votes)
Josh Benson (2%, 8 Votes)
Matt Lowton (2%, 7 Votes)
Ben Mee (1%, 5 Votes)
Chris Wood (1%, 3 Votes)
Erik Pieters (0%, 1 Votes)
« Burnley lose at Leeds
We had so many chances to find the final key pass »


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The Mosquito Food Pyramid
What do mosquitoes eat You might be surprised to learn that blood is only a part of their diet.
Mosquitoes have earned a reputation for being blood-suckers or ectoparasites (i.e., insects that visit hosts and attach themselves to the hosts' bodies to feed), but these insects are no vampires. You may be surprised to learn that mosquitoes are primarily vegetarians, and they only occasionally indulge in carnivorous cravings. To understand why we need to know precisely what mosquitoes eat and how their diets change as they mature.
The beginning of the mosquito food pyramid
All mosquitoes begin life as larvae hatched from eggs laid either on the surface of or near a body of water. These baby mosquitoes thrive just under the water's surface and feed on algae, which form the foundation of the mosquito's food pyramid.
Once they leave the larval stage through molts — phases in which they shed their skins — mosquitoes become pupae. Mosquito pupae do not feed at all. Instead, all of their fuel for this stage of life must be acquired during the larval stage.
Eventually, the pupae rise to the water's surface, sprout wings and become the adult mosquitoes with which we're all familiar. Here the mosquito's food pyramid broadens rather than narrows. Why? It all comes down to the difference between male and female mosquitoes.
Why only female mosquitoes drink blood
Adult mosquitoes are either male or female. Like butterflies, bees and many other insects, all male and female mosquitoes have a nutritional need for sugar, which can be supplied by the nectar of flowering plants.
However, once they reach adulthood, female mosquitoes are ready to breed and lay eggs. To do this, they require protein and lipids—both of which are found in the blood of other animals. Meanwhile, male mosquitoes simply still need the sugar meals.
Do mosquitoes drink blood from animals other than humans?
A female mosquito ready to lay eggs doesn't need to feed exclusively on human blood. Birds, like crows, jays, robins and sparrows, must also fend off biting mosquitoes. The same goes for waterfowl, such as ducks, geese and herons.
Outside of the bird kingdom, small mammals such as raccoons have a place on the mosquito's food pyramid, as do some snakes, lizards, frogs and fish.
So why do mosquitoes drink human blood at all?
While some mosquito species, like the tiger mosquito, do prefer to drink human blood, the real reason mosquitoes bite humans is because they often present the most attractive target when their preferred food source is in short supply.
Mosquitoes are alerted to the presence of a nearby food source by a number of factors, including movement, smell, the source's carbon dioxide (CO2) emissions and much more. The average human being exhales more CO2 than, say, a squirrel, and makes a bigger blip on the hungry female mosquito's radar and an easier overall target. The human body also features odor-producing chemicals that, while unpleasant or undetectable to us, make the female mosquito's mouth water.
Are human beings a mosquito delicacy? Maybe so. But many of us know firsthand that our position at the top of the mosquito food pyramid doesn't mean we rarely get bitten. Mosquitoes begin breeding mere days after achieving maturity, and female mosquitoes can live for more than one month and lay thousands of eggs.
So although that cloud of mosquitoes may not bother you now, the mating that swarm could represent doesn't bode well. Aggressive and opportunistic, a mosquito out for blood won't hesitate to feed on whatever — or whoever — it can.
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Next > How To Get Rid Of Mosquitoes
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"Don't let the bed bugs bite." We've all heard the phrase before, probably not paying too much attention to it when it was said. As the bed bug populations have stabilized and they continue to move around, you may encounter bed bugs more frequently, giving the phrase more weight. Bed bugs are known for hitching rides in various ways, such as resting on objects like books and suitcases and going where those objects' owners go. Keep reading to learn more about bed bug history, and how they became the pests they are today
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Mosquito Evolution: How Have They Evolved Since Prehistory
With the average adult mosquito measuring less than one-half of an inch long and weighing between 2 and 2.5 milligrams, mosquitoes are an especially small pest. But the impact they have on humans, as well as their evolutionary history, is anything but small.
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2020 NATIONAL MOSQUITO AWARENESS WEEK
June 21-27 is National Mosquito Control Awareness Week and Terminix is joining in on the conversation.


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package com.etiennelawlor.loop.network.interceptors;

import com.etiennelawlor.loop.models.AccessToken;
import com.etiennelawlor.loop.utilities.RequestUtility;

import java.io.IOException;
import java.util.HashMap;
import java.util.Map;

import okhttp3.Interceptor;
import okhttp3.Request;
import okhttp3.Response;

/**
 * Created by etiennelawlor on 12/5/16.
 */

public class AuthorizedNetworkInterceptor implements Interceptor {

    // region Member Variables
    private AccessToken accessToken;
    // endregion

    // region Constructors
    public AuthorizedNetworkInterceptor(AccessToken accessToken) {
        this.accessToken = accessToken;
    }
    // endregion

    @Override
    public Response intercept(Chain chain) throws IOException {
        if (chain != null) {
            Request originalRequest = chain.request();

            if (accessToken != null) {
                Map<String, String> headersMap = new HashMap<>();
                headersMap.put("Authorization", String.format("%s %s", accessToken.getTokenType(), accessToken.getAccessToken()));
                headersMap.put("Accept", "application/vnd.vimeo.*+json; version=3.2");
                Request modifiedRequest = RequestUtility.updateHeaders(originalRequest, headersMap);

                return chain.proceed(modifiedRequest);
            } else {
                return chain.proceed(originalRequest);
            }
        }

        return null;
    }
}

redpajama_set_name: RedPajamaGithub


text:
xmas tree-t
Fair City star Ryan Andrews shows off stunning tree as he and girlfriend Michaela celebrate first Christmas in new home
Elsa McEvoy
FAIR City star Ryan Andrews has shown off a stunning Christmas tree as he and his girlfriend Michaela gear up to celebrate the festivities in their new home for the first time.
The soap star admitted that there have been a of "firsts" since buying a house but said he was most looking forward to their first Christmas there together.
Ryan and Michaela will be celebrating their first Christmas in their new house
The pair have been renovating their new Dublin home
Taking to Instagram, he shared a sweet snap of himself and Michaela all smiles as they posed by the beautiful decorations.
He wrote: "here have been so many 'firsts' since buying our new home, but getting ready for our first Christmas has definitely been my favourite!
"We couldn't wait any longer to start on the decorations, so we started with some of the most important pieces!
"Now that we've started we won't be able to stop - the house will be like Santa's workshop by the time December comes!"
'GORGEOUS'
Fans flocked to the actor's comment section to compliment the decorations.
Michaela replied: "t's beginning to look a lot like Christmas."
Fionnuala added: "Ahhh the tree is up! Gorgeous!"
Ciara commented: "Love following you guys on Instagram so positive and uplifting! Your tree is stunning."
This comes after Ryan recently gave fans a "quick update" on the renovations of his new Dublin home.
The actor, who plays Sean Cassidy in the hit RTE soap, bought his dream home in Dublin with Michaela earlier this year.
Most read in Showbiz
Fair City's Ben Condron reveals he and partner Rachel are expecting baby number 2
Taking to his Instagram, Ryan brought his followers on a tour around the new house.
He answered some of his fans' questions about the flooring and the huge mirror in the hallway and revealed that the pair have decided to paint the whole house white.
The 27-year-old said: "Good morning! I'm going to give a quick update - I don't know where I'm looking, whether I'm looking in this camera or this I don't know what's going on but quick update because people are asking for certain things in the house, information on where we got them and stuff so quick one!"
Michaela and Ryan bought their house earlier this year
Ryan Andrews


Home » Blog » Wordpress » Optimize Your WordPress Blog using WP Optimize Plugin!
Every newbie definitely ask about how to optimize WordPress blog easily and without need to understand about HTML Code. It is true, do little editing on WordPress blog if it has to go through its Stylesheet with HTML code will be very difficult for those who do not have coding skills. In fact, understanding on how to optimize blog with ease is depend on where you want your blog to be better. But if you want your blog to perform better on all sides, then of course you need to understand a little more problems on your blog. If you already understand the problems in your blog, then you will be easier to find a solution. And WP Optimize plugin exists to be your solution to optimize WP blog.
WP Optimize Plugin has long existed to help bloggers optimize their blogs. The bloggers around the world have been using this plugin for a trouble-free of problems on blogs. Many newbie in blogging are having trouble when more than one error arises from within the WordPress dashboard. However, all error can be overcome with just the help of plugin. Not to worry, all the plugins that already exist in the WordPress.org archive are safe to use, all have been tested by WordPress team.
When you post good quality articles, regularly publishes articles on the blog every day, set Onpage good SEO, then you will need a WP Optimize Plugin to optimize performance of your WP blog. This plugin is more than just speed up web pages loading. And the plugin will not take up much of your hosting capacity.
This plugin can be downloaded free of charge at http://wordpress.org/extend/plugins/wp-optimize/. It should be noted that this plugin only works in the minimum WordPress version 2.7 or greater.
In order to more easily and quickly, you can download this plugin directly through the tab menu in WordPress Plugin – Add New. Once you enable it you can do simply setting on the plugin.
1. Click on the WP Optimize menu option on the Dashboard.
2. Select the action you want to do.
Clean marked Spam comments, will remove all comments that Spam labeled. Therefore you should make sure all comments are spam and you want to remove it all then click "Review spams".
Clean unapproved comments, will remove all comments that we do not agree.
Optimize Database Tables, will optimize the database tables indicated by the WP-Optimize WP-Optimize [ caption id="attachment_1542" align="aligncenter" width="377" caption="Wp-Optimize d"]Wp-Optimized [/caption ]. Security Tools, to change the username account of WordPress blog. For example, from "admin" to "administrator".
Once completed, the WP Optimize plugin will give a report of how much your database successfully optimized. Well, it's so easy, right?


The bridge and groom wanted an Irish-inspired Sweet Table that was more Celtic Woman than Fighting Irish. This mint green and gold dessert table included filigree-accented serving pieces, backdrop and sugar cookies. Plus, some really fun Irish-flavored desserts, including Green Velvet cake pops, Bailey's mini cupcakes and Irish sode bread cookie bites. Our biggest congratulations go out to Dawn and Scott in celebration of their beautiful day!


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See more Press Releases
Seismic Fall 2021 Release launches new Digital Sales Rooms to accelerate deal cycles and streamline buyer engagement
Seismic also announces HubSpot integration at INBOUND 2021
SAN DIEGO (October 12, 2021) – Seismic, the global leader in enablement, today announced its Fall 2021 product release headlined by Digital Sales Rooms where sellers can collaborate with their buyers, provide hyper-relevant content, and deliver differentiated, personalized customer experiences. Seismic will be showcasing the new capability this week at INBOUND 2021, where the company will also feature its integration with HubSpot, a leading CRM for scaling companies.
Seismic's Fall Release arrives as the B2B selling environment continues to become more complex. On average, there are 27 interactions between the seller and buyer, with 11 people influencing the buying decision, according to Forrester. Seismic's latest platform enhancements focus on helping sellers accelerate deals in spite of this increased complexity. Moreover, go-to-market teams can continue to use these rooms as the relationship with the client evolves — from onboarding to ongoing account management — keeping all of the people, content, and context in the same persistent place.
"The next wave of enablement includes connecting with buyers where, when, and how they want to engage, and providing immersive, personalized buyer experiences. Digital Sales Rooms serve as a key component of that promise by delivering easy access to all relevant information in one place," said Doug Winter, co-founder and CEO, Seismic. "Seismic's comprehensive enablement platform enables sellers to effectively engage with buyers at the right time and place across every channel — from social media to email, SMS, Interactive Content, and now the ability to collaborate in digital sales rooms."
Now available to Seismic customers, Digital Sales Rooms support two-way communication where sellers and buyers can comment, tag, pose questions, and use emoji reactions to collaborate throughout a deal cycle and beyond. The new feature builds on Seismic's existing set of engagement capabilities, including SMS and dynamic email templates that enable go-to-market teams to engage with prospects and customers wherever they are, all while tracking the analytics sellers know and love from sharing content through Seismic.
"The new Digital Sales Rooms by Seismic serve as an engagement nexus between our sellers and our customers," said Matt Bennett, Director of Revenue Acceleration, PROS. "It's a much more effective and innovative way to build on the conversation throughout the buying process from one central location, and stand out to the buyer."
Seismic's Fall 2021 Release follows its acquisition of Lessonly, the training and coaching solution now available as Lessonly by Seismic. The acquisition added native training and coaching capabilities to Seismic, delivering the most comprehensive and powerful enablement platform on the market.
Seismic integration with HubSpot CRM
Launching in time for this week's INBOUND 2021 event, Seismic's integration with HubSpot CRM surfaces smart content recommendations and targeted playbooks leveraging data from HubSpot and Seismic, leading to more personalized interactions with customers. Seismic is one of the only sales enablement platforms with an out-of-the-box integration for HubSpot CRM.
INBOUND 2021 attendees can visit Seismic's virtual booth to learn more about the new integration or visit the Seismic page on HubSpot's Marketplace. To learn more about Seismic's Fall Release, visit the Blog and find more resources on the new rules of buyer engagement on Seismic's website.
Seismic is the global leader in enablement, helping make sales teams better by becoming more productive and engaging with buyers in a compelling way. Seismic's platform provides continuous guidance to improve behavior, content, and skills to win more deals and deliver better experiences. Nearly 2,000 organizations including IBM and American Express have made Seismic their enablement platform of choice. Seismic integrates with business-critical platforms including Microsoft, Salesforce, Google and Adobe. Seismic is headquartered in San Diego, with offices across North America, Europe, and Australia.


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Zackary Momoh Joins Nyong'o And Gurira In HBO Max's Americanah
Photo Courtesy of Blog Spot
HBO Max's Americanah has already enlisted Black Panther stars Lupita Nyong'o and Danai Gurira but to make the deal sweeter, HBO Max has put Doctor Sleep star Zackary Momoh on the roster, according to Variety.
The series tells the story of Ifemelu (Nyong'o), a young, beautiful woman raised in Nigeria, who as a teenager falls in love with her classmate Obinze. Since they reside in a military-ruled country, the two split ways, with Ifemelu heading for America and Obinze setting sail for London. Once settling in, Ifemelu finds out what it means to be black. And while Obinze had hoped to join her, he cannot due to post-9/11 America to him. He comes to learn that the London lifestyle is quite dangerous.
Coming Soon states, "Americanah is an incredible exploration of the human experience that crosses three continents to give an empathetic, compelling view of the complex realities of race, politics, immigration and identity."
Tags Americanah Danai Gurira HBO Max Lupita Nyong'o Zackary Momoh
Breaking free from the concrete with an open ear, idioms and wit, Natalee digs out compelling topics and opinionated reviews on the hip-hop scene. Follow @natalee_federal on Instagram to learn more.


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