alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### The People of the State of New York, Respondent, v David Riddick, Appellant.

—Appeal by defendant from a judgment of the County Court, Dutchess County (Rosenblatt, J.), rendered September 23, 1980, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

On the present record, it cannot be concluded that the Trial Justice unduly or improperly interjected himself into the proceedings or displayed hostility or bias prejudicial to defendant. Indeed, some of the actions of the court complained of by defendant actually resulted in rulings favorable to him. Viewing the record as a whole and closely examining the specific claims raised by defendant, the record clearly indicates that the court maintained an unbiased and impartial demeanor at trial and, when it did inject itself into the fact-finding process, it did so in the proper exercise of its supervisory function *(see, e.g., People v Jamison,*47 NY2d 882, 884; *People v De Jesus,*42 NY2d 519, 523).

We have examined defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Thompson, Rubin and Kunzeman, JJ., concur.
IV 

112TH CONGRESS 

1ST SESSION S. CON. RES. 8 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 1, 2011 

Referred to the Committee on Armed Services 

CONCURRENT RESOLUTION 

Recognizing women serving in the United States Armed 

Forces. 

Whereas women have served with distinction in the United 

States Armed Forces since the American Revolution and 

have made significant and lasting contributions to the security of the United States; 

Whereas in 2011, women comprise nearly 16 percent of the 

United States Armed Forces and serve in positions of responsibility in the active and reserve components of the 

Army, Marine Corps, Navy, Air Force, and Coast Guard, 

as compared with less than 5 percent in 1976 when 

women were first integrated into the service academies; 

Whereas women serve at the highest levels in the Department 

of Defense and other governmental organizations contributing to the defense of the United States; and 

Whereas the accomplishments of generations of women have 

contributed to the history of the United States Armed 


smartinez on DSKB9S0YB1PROD with BILLS
2 

SCON 8 RFH 

Forces and to the strength of the United States: Now, 

therefore, be it 

1 Resolved by the Senate (the House of Representatives 

2 concurring), That Congress— 

3 (1) recognizes the importance of women to na4 tional defense throughout the history of the United 

5 States; and 

6 (2) encourages the people of the United States 

7 to honor women who have served and who continue 

8 to serve the United States in the United States 

9 Armed Forces. 

Passed the Senate February 28, 2011. 

Attest: NANCY ERICKSON, 

Secretary. 


smartinez on DSKB9S0YB1PROD with BILLS
#### In the Matter of William Elliott, Petitioner, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.

[942 NYS2d 698]

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

As a result of an investigation and confidential information, petitioner was served with a misbehavior report charging him *1327with assault, fighting and violent conduct. The charges stem from two alleged incidents: one where hot liquid was thrown on an inmate while he was in a bathroom stall on January 20, 2011 and the other the following day when petitioner and that inmate engaged in a fight outside the bathroom. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. The determination was affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.

First, we reject petitioner’s contention that he was deprived of his right to call witnesses at the hearing. Although, at the outset of the hearing, petitioner informed the Hearing Officer that he would like a statement from the alleged victim of the assault, when later asked if he had anything else to add in his defense before the Hearing Officer rendered a disposition, petitioner responded in the negative, thereby effectively waiving the right to present further evidence *(see Matter of Green v Bradt,*91 AD3d 1235, 1237 [2012]; *Matter of Cross v Goord,*19 AD3d 990 [2005], *lv denied*5 NY3d 715 [2005]; *Matter of Vigliotti v Duncan,*10 AD3d 776, 777 [2004], *lv dismissed*4 NY3d 738 [2004]).

We find that the misbehavior report, coupled with the confidential testimony, constitute substantial evidence of petitioner’s guilt *(see Matter of Reynoso v Fischer,*67 AD3d 1166 [2009], *lv dismissed*14 NY3d 767 [2010]; *Matter of Arnold v Fischer,*60 AD3d 1177, 1177 [2009]; *Matter of Lightfoot v Fischer,*54 AD3d 459, 459 [2008]). Although the Hearing Officer did not interview the confidential informant, he made adequate inquiries of the correction officer who received the information to properly ascertain the informant’s reliability (see *Matter of Butler v Fischer,*74 AD3d 1651, 1652 [2010]; *Matter of Sanders v Haggett,*72 AD3d 1372, 1372 [2010]).

Mercure, J.P, Spain, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
EXHIBIT 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES OXLEY ACT OF 2002

CERTIFICATION

In connection with the
Annual Report of Power Sports Factory, Inc. (the Company) on Form 10-K for the year ended December 31, 2007 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Steve Rubakh, President
and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.



|                                     
|-------------------------------------
|/s/ Steve Rubakh                     
|Steve Rubakh                         
|President and Chief Financial Officer
|August 15, 2008
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**Exhibit 10.38**

 

AMENDMENT 

TO

CAREMARK RX, INC. 1998 NEW EMPLOYEE STOCK OPTION PLAN 

EFFECTIVE NOVEMBER 15, 2000 

 

The Caremark Rx, Inc. 1998 New Employee Stock Option Plan (the “Plan”) is hereby amended as follows: 

 

1. Amendment Regarding Transferability of Options. Section 6.10 of the Plan is hereby amended by deleting Section 6.10 in its entirety andsubstituting the following new Section 6.10 therefor: 

 

6.10 TRANSFERABILITY OF OPTIONS. To the extent not prohibited by any statute, rule or regulation applicable to the Plan, the Options or the registration with the Securities and Exchange Commission of the Common Stock to be issued uponexercise of the Options, the Committee may, in its discretion, authorize all or a portion of Options granted to a Participant to be on terms which permit transfer by such Participant to (i) Immediate Family Members, (ii) a trust or trustsfor the exclusive benefit of such Immediate Family Members, or (iii) a partnership in which such Immediate Family Members are the only partners, provided that (A) the Award Agreement pursuant to which such Options are granted must beapproved by the Committee, and must expressly provide for transferability in a manner consistent with this Section, and (B) subsequent transfers of transferred Options shall be prohibited except those by will or the laws of descent anddistribution. Following transfer, any such Options shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of this Plan, the term “Participant” shall bedeemed to refer to the transferee. The events of termination of employment shall continue to be applied with respect to the original Participant, following which the Options shall be exercisable by the transferee only to the extent, and for theperiods specified in this Section 6.10. Notwithstanding the foregoing, should the Committee provide that Options granted be transferable, the Company by such actions incurs no obligation to notify o otherwise provide 

 

1 

notice to a transferee of early termination of the Option. In the event of a transfer, as set forthabove, the original Participant is and will remain subject to and responsible for any applicable withholding taxes upon the exercise of such Options. 

 

2. Effective Date. The effective date of this Amendment shall be November 15, 2000. 

 

3. Miscellaneous. 

 

(a) Capitalized terms not otherwise defined herein shall have the meanings given them in the Plan. 

 

(b) Except as specifically amended hereby, the Plan shall remain in fullforce and effect. 

 

IN WITNESS WHEREOF, the Company has causedthis Amendment to the Caremark Rx, Inc. 1998 New Employee Stock Option Plan to be executed as of the Effective Date. 

 

CAREMARK RX, INC.

Sara J. Finley, Corporate Secretary

 

2
UN PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20
- 1471

DANIEL FELIX , Plaintiff

- Appellant ,

v. DARE COUNTY SHERIFF’S DEPARTMENT; DOUG DOUGHTIE, Sheriff; DONAVAN RUTH, Deputy; JEFF CRUDEN, District Attorney; ANDREW WOMBLE, District Attorney; DISTRICT ATTORNEY BLAND; JOSH STEIN, NC Attorney General; ROY COOPER, NC Governor , Defendants

- Appellees

.
Appeal from the United States District Court for the Eastern District of North Carolina , at El izabeth City

. W. Earl Britt, Senior District Judge. ( 2:19

- cv
- 00030

- BR )

Submitted : December 31, 2020 Decided: January 21, 2021

Before GREGORY , Chief Judge, MOTZ , and FLOYD, Circuit Judges.

Affirmed as modified in part and affirmed in part by un published per curiam opinion

.

Daniel Felix , Appellant Pro Se. Brian Florencio Castro , Christopher J. Geis , WOMBLE BOND DICKINSON (US) LLP, Winston

- Salem, North Carolina; Kathryn Hicks Shields , Assistant Attorney General, Bryan Grant Nichols , NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM:
Daniel Felix appeals the district court’s order dismissing his civil action for lack of personal jurisdiction and for failure to state a claim. We have reviewed the record and find no reversible error. The court’s dismissal for lack of personal jurisdiction, however, should have been without prejudice. See S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC , 713 F.3d 175, 185 (4th Cir. 2013) . We therefore modify that portion of the district court’s order to reflect that the dismissal is with out prejudice and
affirm that dismissal as modified. See 28 U.S.C. § 2106; MM ex rel. DM v. Sch. Dist. of Greenville Cnty. , 303 F.3d 523, 536 (4th Cir. 2002) (“[W]e are entitled to affirm the court’s judgment on alternate grounds, if such grounds are appa rent from the record.”). We affirm the remainder of the district court’s dismissal for the reasons stated by the district court. Felix v. Dare Cnty. Sheriff’s Dep’t , No. 2:19

- cv
- 00030

- BR (E.D.N.C. Apr. 8, 2020).
We dispense with oral argument because th e facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional
process.
AFFIRME D AS MODIFIED IN PART , AFFIRMED IN PART
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. DENISE L. SHARP,

Defendant

- Appellant. No. 19

- 30072
D.C. No. 4:17

- cr - 00069

- BMM

- 6

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Submitted October 15, 2019 **
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges. Denise L. Sharp appeals from the district court’s judgment and challenges
the 9

- month sentence imposed following her guilty

- plea conviction for theft from an Indian tribal government receiving federal funding , in violation of 18 U.S.C. § 666 ( a )(1) ( A ) , and wire fraud, in violation of 18 U.S.C. § 1343 . We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

OCT 23 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 19

- 30072

jurisdiction under 28 U.S.C. § 1291, and we affirm. Sharp first contends that the court erred by applying a two

- level
enhancement for abuse of a position of trust pursuant to U.S.S.G § 3B1.3. We review the court’s factual findings for clear error and its application of the Sentencing Guidelines to those findings for abuse of discretion. See United States
v. Gasca

- Ruiz , 852 F.3d 116 7, 1170 (9th Cir. 2017 ) (en banc)

. The record reflects that Sharp was a personnel manager who was subject to minimal supervision and
had the discretion to set extended working hours , including the fraudulent overtime
hours that formed the basis of her offense

. T he court did not clearly err by finding that Sharp held a position of trust that she used to conceal the commission of the
offense

. See U.S.S.G § 3B1.3 cmt. n.1; United States v. Laurienti , 731 F.3d 967, 973 (9th C ir. 2013) (“[T]he presence or lack of professional or managerial discretion represents the decisive factor in deciding whether a defendant occupied a position of trust.” (internal quotation marks omitted)). Sharp also argues that the sentence is substant ively unreasonable. Contrary

to Sharp’s contention, t he district court considered the totality of the
circumstances , including the amount of fraudulent overtime attributed to her, and
did not abuse its discretion in imposing the significantly below

- Guidelines

sentence

. See Gall v. United States , 552 U.S. 38, 51 (2007)

. AFFIRMED.
<PAGE>

Exhibit 23.1


INDEPENDENT AUDITORS' CONSENT


         We consent to the incorporation by reference in (1) the Registration
Statement on Form S-3/A, File No. 333-81320, (2) the Registration Statement on
Form S-8, File No. 333-60004 and (3) the Registration Statement on Form S-8,
File No. 333-35450 of our report dated February 12, 2003 on the financial
statements of PacificHealth Laboratories, Inc. as of December 31, 2002 and for
the year then ended included in this Annual Report on Form 10-KSB.


Eisner LLP

Florham Park, New Jersey
March 31, 2003
<TABLE> <S> <C>


<ARTICLE>                     5
       
<S>                             <C>
<PERIOD-TYPE>                   12-MOS
<FISCAL-YEAR-END>                          DEC-31-1998
<PERIOD-START>                             JAN-01-1998
<PERIOD-END>                               DEC-31-1998
<CASH>                                       3,415,120
<SECURITIES>                                         0
<RECEIVABLES>                                  277,825
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<INVENTORY>                                    375,074
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<INCOME-TAX>                                         0
<INCOME-CONTINUING>                         (2,463,054)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
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<NET-INCOME>                                (2,463,054)
<EPS-PRIMARY>                                    (0.54)
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</TABLE>
#### In the Matter of Michael J., Appellant.

—In a proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Deutsch, J.), dated March 5, 1984, which, upon a fact-finding order of the Supreme Court, Kings County (Broomer, J.), dated February 23, 1984, that the appellant had committed acts which, if committed by an adult, would have constituted the crime of robbery in the second degree, adjudged him to be a juvenile delinquent and placed him with the Division for Youth. The appeal brings up for review the fact-finding order dated February 23, 1984.

*603Order of disposition affirmed, without costs or disbursements.

We reject the appellant’s contention that the trial court was required to declare a mistrial or immediately conduct a *Wade*hearing once his counsel elicited testimony concerning a police showup held shortly after the commission of the crime. While a *Wade*hearing is preferable where evidence of a possibly suggestive pretrial identification procedure is discovered during trial, the absence of such a hearing does not constitute reversible error where, as here, an independent source for identification is demonstrated *(see, People v Williams,*87 AD2d 876; *People v Tillman,*74 AD2d 911). In light of the complainant’s uncontroverted testimony that he observed the appellant’s face at a close distance under well-lighted conditions for upwards of two minutes at the time of the crime, the trial court properly found that an independent source for the identification had been established. In addition, this finding, when coupled with other evidence directly linking appellant to the crime, was sufficient to render harmless any error in the receipt of testimony concerning the pretrial showup *(see, People v Adams,*53 NY2d 241; *People v Burton,*106 AD2d 652; *People v Wells,*89 AD2d 784). Nor do we find the trial court’s denial of appellant’s severance motion to be an abuse of discretion *(see, People v Cruz,*66 NY2d 61; *People v Bornholdt,*33 NY2d 75, *cert denied sub nom. Victory v New York,*416 US 905).

Furthermore, the partial restriction placed upon the appellant’s cross-examination of his accomplice with respect to impeachment of the latter’s general credibility must be considered harmless beyond a reasonable doubt in light of the entire record *(see, People v Malizia,*62 NY2d 755, *cert denied*469 US 932; *People v Allen,*67 AD2d 558, *affd*50 NY2d 898). We have considered the remaining contentions of the appellant and find they are either unpreserved for appellate review or without merit. Gibbons, J. P., Thompson, Niehoff and Kunzeman, JJ., concur.