alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### HAVELL v. TIME, Inc.

District Court, S. D. New York.

Oct. 8, 1940.

Webster & Garside, of New York City, for plaintiff.

Cravath, deGersdorff, Swaine & Wood of New York City, for defendant.

HULBERT, District Judge.

This action was commenced on March 1, 1939, and issue was joined by the filing of the defendant’s answer on April 24, 1939, and the case was placed on the jury calendar of this court. On January 19, 1940, the defendant filed an amended answer and the action has been on the jury day calendar since May 27, 1940, but the trial has been postponed owing to the illness of the defendant’s counsel.

On October 4, 1940, defendant’s attorney served' a notice upon the plaintiff’s attorneys to take the deposition of the plaintiff who resides in New Canaan, Connecticut, on October 9, 1940, and to continue from day to day until completed.

Plaintiff moves to vacate the notice of examination on several grounds: (1) That plaintiff resides outside of the Southern District and has not been served with a subpoena. That objection is overruled. (2) That the place where the plaintiff is required to appear for examination is the office of the defendant’s attorneys. That objection is sustained. (3) That defendant should not have the examination because of its laches. There is some merit in that contention, but the case is No. 35 on the jury day calendar today and will not in all probability be reached for a matter of ten days so that there is no probability that the examination will delay the trial, and the motion will be denied upon condition that it proceed continuously until terminated.

The plaintiff will appear in room 506, United States Court House, Foley Square, New York City, October 9, 1940, at 11:30 A.M. to be sworn, and the court will then give directions with respect to the place of examination in the court house.
CERTIFICATIONS OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER


PURSUANT TO


18 U.S.C. SECTION 1350,


AS ADOPTED PURSUANT TO


SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002







I, Michael Neufeld, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report of Pegasi Energy Resources Corporation on Form 10-Q for the fiscal quarter ended September 30, 2010 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in this Quarterly Report on Form 10-Q fairly presents in all material respects the financial condition and results of operations of Pegasi Energy Resources Corporation.





By:

/s/    MICHAEL NEUFELDDate: November 12, 2010

Name:

Michael NeufeldTitle:

Chief Executive Officer




I, Richard Lindermanis, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report of Pegasi Energy Resources Corporation on Form 10-Q for the fiscal quarter ended September 30, 2010 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in this Quarterly Report on Form 10-Q fairly presents in all material respects the financial condition and results of operations of Pegasi Energy Resources Corporation.





By:

/s/    RICHARD LINDERMANISDate: November 12, 2010

Name:

Richard LindermanisTitle:

Chief Financial Officer
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMAL DAMON HENDRIX, 

Plaintiff-Appellant, 

 v. 

STATE OF NEVADA; et al., 

Defendants-Appellees. 

No. 16-16743 

D.C. No. 3:15-cv-00336-RCJ-WGC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Submitted April 11, 2017**

Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.

Jamal Damon Hendrix, a Nevada state prisoner, appeals pro se from the 

district court’s order in his 42 U.S.C. § 1983 action denying Hendrix in forma 

pauperis (“IFP”) status because he has three strikes under 28 U.S.C. § 1915(g). 

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Washington v. 

 

* 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

APR 21 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-16743 

Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1054 (9th Cir. 2016). We reverse 

and remand.

The district court denied Hendrix’s IFP request on the basis that he had 

accrued three prior “strikes” under 28 U.S.C. § 1915(g). The district court 

improperly counted No. 3:14-cv-398-RCJ-VPC as a strike because the dismissal of 

a mislabeled § 1983 action on the ground that it should have been brought as a 

habeas petition does not count as a strike. See El-Shaddai v. Zamora, 833 F.3d 

1036, 1047 (9th Cir 2016) (dismissal of § 1983 action that is mislabeled as a 

habeas petition does not count as a strike); Washington, 833 F.3d at 1057 (where a 

portion of the action sounds in habeas, dismissal does not count as a strike). The 

district court improperly counted No. 3:15-cv-155-MMD-WGC as a strike because 

an initial dismissal of a complaint for violation of Federal Rule of Civil Procedure

8(a), with leave to amend, does not count as a strike. See Knapp v. Hogan, 738

F.3d 1106, 1110 (9th Cir. 2013) (“[D]ismissals following the repeated violation of 

Rule 8(a)’s ‘short and plain statement’ requirement, following leave to amend, are 

dismissals for failure to state a claim under § 1915(g).”).

We reverse the district court’s order revoking Hendrix’s IFP status, and 

remand for further proceedings.

REVERSED and REMANDED.
Exhibit 10.13

                            FIRST AMENDMENT TO LEASE


In  reference  to the lease dated  September  5, 1991  between  111  Partners as
Landlord and Fair, Isaac and Company,  Incorporated as Tenant, the parties agree
that Tenant exercised its option to renew contained in Paragraph 32 of the lease
and that the current monthly rental rate is $69,927.23, subject to adjustment as
provided for in the lease each July 1st of the lease term.  The parties agree to
modify the terms of that lease as follows:

     A.   Landlord's Management Fee and the monthly amount paid as a maintenance
          reserve (hereinafter  "Maintenance Reserve") as described in paragraph
          5(b) shall each be increased as provided below effective each July 1st
          for the remaining term of the lease.

     B.   The parties  agree that as of July 1, 2001,  the amount of the monthly
          Management Fee was $1,287.00 per month and the Maintenance Reserve was
          $297.00 per month and that these  amounts  will be  effective  through
          June 2002.

     C.   The monthly amounts of the Management Fee and the Maintenance  Reserve
          will be  adjusted  effective  upon the  first day of the month of July
          2002  and  upon  the  expiration  of  each  12  months  thereafter  in
          accordance with changes in the U.S. Consumer Price Index for All Urban
          Consumers for San Francisco-Oakland-San  Jose (1982-84 = 100) ("CPI").
          The monthly payments will be increased to amounts equal to the product
          obtained  by  multiplying  the payment  amounts in effect  immediately
          prior  to  the  adjustment  date  (without  regard  to  any  temporary
          abatement  pursuant to other  provisions of the lease) by a fractions,
          the numerator of which is the CPI published most immediately  prior to
          the adjustment  date and the denominator of which is the CPI published
          for the month which is twelve months earlier.

     D.   All other terms and conditions of the lease will remain unchanged.


ACCEPTED AND AGREED:


  /s/ Henk J. Evenhuis                                   8/22/01
----------------------------                           -----------------
TENANT                                                 DATE


  /s/ Roger A. Smith                                     8/30/01
----------------------------                           -----------------
LANDLORD                                               DATE


  /s/ Michael J. Smith                                   8/30/01
----------------------------                           -----------------
LANDLORD                                               DATE
EXHIBIT
32.1







CERTIFICATION


PURSUANT
TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002


(Subsections
(a) and (b) of Section 1350, Chapter 63 of Title 18, United States
Code)





Pursuant
to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of
section 1350, chapter 63 of title 18, United States Code), each of the
undersigned officers of National Datacomputer, Inc., a Delaware corporation (the
“Company”), does hereby certify, to such officer’s knowledge, that:





The
Annual Report on Form 10-KSB for the period ended December 31, 2007 (the “Form
10-KSB”) of the Company fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934, and the information contained in
the Form 10-QKB fairly presents, in all material respects, the financial
condition and results of operations of the Company.








Dated:
August 19, 2008






/s/  William B.
Berens  William
B. Berens


President
and Chief Executive Officer











Dated:
August 19, 2008






/s/ Bruna
Bucacci


Bruna
Bucacci


Chief
Accounting Officer











A signed
original of this written statement required by Section 906 has been provided to
the Company and will be retained by the Company and furnished to the Securities
and Exchange Commission or its staff upon request.
#### UNITED STATES of America, Plaintiff-Appellee v. Robert TAYLOR, also known as Smutty, Defendant-Appellant.

No. 12-10219

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 4, 2012.

Katherine Ann Miller, Assistant U.S. Attorney, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Appellee.

Robert Taylor, Big Spring, TX, pro se.

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM: *

Robert Taylor, federal prisoner # 34588-177, was sentenced to 262 months of imprisonment following his plea of guilty to possession with intent to distribute more than 50 grams of crack cocaine. In 2008, following an amendment to the Sentencing Guidelines that lowered the offense levels for crack cocaine offenses (Amendment 706), the district court granted Taylor’s motion pursuant to 18 U.S.C. § 3582(c)(2) and reduced his sentence to a total of 210 months of imprisonment.

In 2011, Taylor again moved pursuant to § 3582(c)(2) for a sentence reduction based on a subsequent amendment to the crack cocaine guidelines (Amendment 750). The district court denied Taylor’s motion, and Taylor now appeals that denial. He argues that the district court abused its discretion in denying his § 3582(c)(2) motion for a reduction in his sentence.

Section 3582(c)(2) permits the discretionary modification of a defendant’s sentence in certain cases where the sentencing range has been subsequently lowered by the Sentencing Commission. *See United States v. Doublin,*572 F.3d 235, 237 (5th Cir.2009). In such cases, the district court may reduce a sentence after considering the applicable factors under 18 *362U.S.C. § 3553(a) and the applicable guideline policy statements. § 3582(c)(2). The district court’s determination of whether to reduce a sentence is reviewed for an abuse of discretion. *United States v. Evans,*587 F.3d 667, 672 (5th Cir.2009).

A review of the record reveals that in denying Taylor’s § 3582(c)(2) motion, the district court properly considered the § 3553(a) factors, guideline policy statements, Taylor’s self-improvement achievements, and Taylor’s lack of disciplinary incidents. *See Evans,*587 F.3d at 672-73; U.S.S.G. § 1B1.10; § 3582(c)(2). Taylor has not shown that the district court abused its discretion in denying his § 3582(c)(2) motion. *See Evans,*587 F.3d at 672-73.

AFFIRMED.

*

 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Respondent**

**v.**

**MICKEY SANTOS COLON,**

**Petitioner :** 

**:**

**:**

**:**

**:**

**:**

**:**

**:**

**:**

**:**

**: No. 769 MAL 2015** 

**Petition for Allowance of Appeal from the Order of the Superior Court** 

ORDER

PER CURIAM

AND NOW **, this 19th day of September, 2016, the Petition for Allowance of** 

**Appeal and Motion for Leave to File Amended or Supp lemental Petition for Allowance of** 

**Appeal are** DENIED

**.**

**Justice Mundy did not participate in the consideration o r decision of this matter.**
Ft

Z H- Ft U) C) U)

Z CD C)

o CD C) CD Di0

H CD rt U) 

CD

< C) Ft Ft U)

o CD ct H- 0.

H0 FtH 

o b< Ft C) C) U)

0

H

0 U)

C)

0

0 Ft CO C)Q C) CD U) C)

H U) U) 

0 Ij U)

H CD

0 FtH0 CD U) 

C) U) C) C) HH Ft

< H- U) U)

C) -, U)

- Ft H0 C) L< H- CO

H 

Ft U) U) CD CO C)

0 Ft

M U) U) 

CD U) C) CD U) CD

0

5

0

H 

CD C). U)0 C) C) H- U)

0 C)

H CD U) U) 

5 C) H- CD C). CD CO Ft

H U) 

U) H- Ft C) C) CD L< CD U) C) Ft U) 

CD Ft U) Ft

0 CD

H C) C) CD CD CD0 

CD U) CD CD U) Ft FtH

H U) 

C) U) Ft CD U) CD C).

0 CD CD Ft 

U)

HH Di Ft Ft C)

0 U) U) 

O Ft0

H Ft

0 0. Ft CD CD U) 

Ft U), C)

< U)

0 H- U) 

O U) CD ,- CD CD H0 U) H- U) 

C) CD CD H- C) Ft C) t- C) -H 

HH U) Cl 0. C)

H CD

0

5

Q C)

C)H CD CD H- CD Ft C)

0 U) 

CD L< Ft L< C)

0 U) Ft CD C) U) 

Ft H 0 H H Ft U) C) Ft CD 

U)

0

0 CL CD CD CD Ft CD CD 

CD

0 U) Ft CD CD CO CD C) U)F

< CD

0

H CD Ft Ft

H IH

CD CD H- U) C) H- CD Ft

0 U)

U)I Ft C) H- CD Ft Ft C) C) Ft

0 U)

0 U) U) HU

C) Ft Ft U) 0 CD 0 H- 0 H CD U) 0 CD U) 

01 CD CD CD Ft Ft Ft C) U) C) C) HU

Ft Ft C) CD CD H0 H- CD CD CD U) C)

H-L H- Cl 5 CL 0 Ft Ft CL C) CL U) HU

C)I

0 U) U) CD C)

5 U) U)

C) CD CD CD

Q CD C) H0 Ft H0 0U

01- Ft FtH C) CD Ft Ft

H

0 C)

• U)

C)I

0 CD CD

0

H0 CL

Ft

5 C) Ft Ft Ft

H CD CD Ft H-

— ZU

C) Ft N) CD

0

H U) C) C)

• C) Ft H- C) t- C) CD Ft CL CD CO

I U

CD C)

0 Ft L<

0 U) CD CL

0 CD

U)I

H CD C) Ft C) U) CD Ft H- C) C) Ft CDI Ft Ft H C) Ft CD H 0 C) 0 H- C) CD CD 5 U) C) CD C) U) o U)

CDI CD

< CD U) CD

0 C) CO C)

H

• U)

<I C)

H Ft C)

H CD Ft Ft U)

OI U) C) Ft CD Ft U) H- U) <C

H-I. Ft

0 CD CD Ft CD

0 U) C) U) CD

CDI(

S C)

H CD U) CD CD C)

< U) 

CDI

0

< C) CD CD< CD 

— I- C) CD H- Ft Ft CD C) Ft

C

I, Ft C) C) C)0 CL U) CD

0

CD H- U) CD CL Ft

0 CD

5 H-

• CD U)

H C) Ft CD CO

U) C)

H

• C) Ft

0 CD CD

• Ft

0 CL U) LQ

U)

0 U) CD H- U)

• Ft Ft CO CD

H- Ft

5 C) Ft Ft

*

5

0

0 Ft

CD C) C) C)

0

CD Ft

H C)

CD Ft
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 1 of 9 PageID: 1
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 2 of 9 PageID: 2
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 3 of 9 PageID: 3
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 4 of 9 PageID: 4
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 5 of 9 PageID: 5
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 6 of 9 PageID: 6
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 7 of 9 PageID: 7
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 8 of 9 PageID: 8
Case 3:11-cv-01061-FLW -TJB Document 1 Filed 02/25/11 Page 9 of 9 PageID: 9
DISTRICT OF NEW JERSEY

ARSENEAULT, WI{IPPLE,

FASSETT & AZZARELLO, LLPJohn C WbppIr., Esq. (.1W 1591)

360 Main StreetChathsam, New Jersey 07928

Telephone: 973-633-3366

Facsimile: 973-635-0855Attorneys for Dcfendant Atif Malik

UNITED STATES OF AMERICA,

Plaintill, Hoorabfr SauIey R. Chevier, US.DJ.

V.

Criminal No. 11-130

ATIF MALIK,

ORDER £XiENT)LNG

Defendant. VOLtJN1ARY SURRENDER DATE

THIS MAIlER having come before the Court upon te application of the Defendant,

AtifMalik, by his attorneys, Arseneault, Whipe, Fasseti & AzzEjrei!o II. (Joho. C Wmpple.Esq. appearing), for an Order extending Deic nts volune.s.i: srrrioer JtC. 5U U:ueC

States (Dennis C. Carletta, Esq., Assistant Ursoec States Attorney, appeann :nivsng consented

to the application, and the Court having cons]clered the reasons to the Defendarts request, and

good cause having been shown,
as notified by the CS, Probation Office.

SRCHSLFR

(Jnâttd States E)istr jet Court Judge

CONSENTED TO:PAUL I FJ$MAN

UNITED AjES A1TORNEY

By _/F

7IEM$ C. CARLETTA, ESQ.

1ssIstant United States Attorney

ARSENEAULT, WHIPPLE,

FASSETT & AZZARELLO, LLP

Attorneys for Defendant Atif Malik

BJ#áMC 4/L

John C. Whipple, E.K(
November 29, 2011

VIA FEDERAL EXPRESSHonorable Stanley R. Chesler, U.S.DJ.

United States District Court, District of New Jersey

ER. Lautenberg U.S. P.O. & Courthouse, Room 417

50 Walnut Street

Newark, New Jersey 07102

Re: United States v. Atif Malik

No. 1 l-cr-00 130 (SRC)

Order Extending Voluntary Surrender Date

Dear Judge Chesler:

I represent the Defendant Atif Malik in the above referenced matter. He is presently

scheduled to surrender for his sentence December 8, 2011,

I enclose for Your Honor’s consideration, a Consent Order which would extend Mr.

Malik’s surrender date to January 9, 2012. The Government has consent to this extension. Mr.

Malik is in the process of opening a small retail business which he hopes will generate incomefor his family while he is incarcerated. He needs an additional few weeks to accomplish this newbusiness venture. In addition. Mr. Malik’s father is pending sentencing before the Honorable

Anne U Thompson. Lnited States District Judge, in Trenton. New Jersey. Depending upon his

father’s sentence. the Malik family will have to plan for and coordinate their various financial

and personal affairs in the event that both thiher and son are incarcerated.
For the reasons expressed herein, we respectfully request that Your Honor grant the

Defendant’s application to extend his voluntary surrender date to January 9, 2012. Thank you

for your attention to this matter.

Respectfully yours.

ARSENEAULT, WHIPPLE,

FASSETT & AZZARELLO, LLP

By

John C, Whipple

JCW : dn

Enclosure

cc: Dennis C. Carletta, Esq., AUSA (w/enclosure) (Via E-Mail)

Marybeth Wohi, US Probation Office (v/enclosure) (Via E-Mail)

Erika DiPalma. US Pretrial Services Officer (w/enclosure) (Via E-Mail)
EX-10.68



 Exhibit 10.68 
 First Amendment to 
 The Progressive Corporation 

Executive Separation Allowance Plan 
 (2006 Amendment and Restatement) 
 WHEREAS, The Progressive
Corporation Executive Separation Allowance Plan (“Plan”) is currently maintained pursuant to the 2006 Amendment and Restatement; and 
 WHEREAS, it is deemed desirable to amend the Plan further; 
 NOW, THEREFORE,
effective August 1, 2007, the Plan is hereby amended as set forth below: 
 1. Section 2.1 of the Plan is hereby
amended by deleting the phrase “ninety (90) days” and inserting in lieu thereof the phrase “forty-five (45) days”. 
 2. Section 2.2 of the Plan is hereby amended by deleting the phrase “ninety (90) days” and inserting in lieu thereof the phrase “forty-five (45) days”. 

3. Section 14 of the Separation Agreement and General Release attached to the Plan as Exhibit A is hereby amended by deleting the
phrase “NINETY (90) DAYS” and inserting in lieu thereof the phrase “FORTY-FIVE (45) DAYS”. 
  

	 	4.	The following is hereby added as new Section 2.4 of the Plan: 

 “2.4 Notwithstanding anything in this Plan to the contrary, an Eligible Employee shall not be entitled to receive a separation allowance, and any Separation Agreement and General Release that such
Eligible Employee previously may have executed shall be considered null and void, if, at any time prior to payment of a separation allowance to such Eligible Employee, the Company determines that the Eligible Employee has at any time prior to such
payment committed a violation of Progressive’s Code of Business Conduct and Ethics that would have led Progressive to terminate the Eligible Employee’s employment in accordance with Progressive’s then current disciplinary practices
with respect to the type of violation in question had the Eligible Employee still been actively employed.” 
 5. Except as
expressly set forth in this Amendment, the terms and provisions of the Plan shall remain entirely unchanged and continue in full force and effect. 
 IN WITNESS WHEREOF, the Company has hereunto caused this Amendment to be executed by its duly authorized representative as of the 20th day of August, 2007. 

 

			
	The Progressive Corporation
		
	By:	 	/s/ Charles E. Jarrett
	Title:	 	Vice President
Case 2:11-cv-00329-CCC-JAD Document 30 Filed 12/27/11 Page 1 of 3 PageID: 861
Case 2:11-cv-00329-CCC-JAD Document 30 Filed 12/27/11 Page 2 of 3 PageID: 862
Case 2:11-cv-00329-CCC-JAD Document 30 Filed 12/27/11 Page 3 of 3 PageID: 863
#### The People of the State of New York, Respondent, v Norman Beckford, Appellant.

[853 NYS2d 582]

After renting his basement apartment to the complainant for approximately four months, the defendant informed the complainant that he would have one week to move out. The following night, however, the complainant returned to the defendant’s house to find his belongings in the driveway. After the complainant knocked and, at times banged, on the defendant’s door for approximately 10 minutes, the defendant opened the door and lunged at the complainant with a machete, striking him four times. The jury convicted the defendant of assault in the second degree *(see*Eenal Law § 120.05 [2]) as a lesser-*548included offense of assault in the first degree, which was charged in the indictment *(see*Penal Law § 120.10 [1]), and criminal possession of a weapon in the fourth degree *(see*Penal Law § 265.01 [2]).

Contrary to the defendant’s contention, the trial court did not err in denying his request to charge the jury on assault in the third degree *(see*Penal Law § 120.00 [3]) as a lesser-included offense of assault in the first degree and assault in the second degree. There was no reasonable view of the evidence presented that would support a jury finding that the defendant acted with criminal negligence rather than intent to cause serious physical injury or physical injury *(see People v Miceli,*235 AD2d 551 [1997]; CPL 300.50 [1]).

Further, the trial court properly denied the defendant’s request for a jury charge on the justifiable use of “physical force” (Penal Law § 35.20 [1], [2]) and “deadly physical force” (Penal Law § 35.20 [3]). Viewed in the light most favorable to the defendant *(see People v Padgett,*60 NY2d 142, 144 [1983]; *People v Watts,*57 NY2d 299, 301 [1982]), the evidence did not support a justification charge under either theory. Given the fact that the defendant stabbed the complainant four times with an approximately five-pound machete, it cannot be said that he utilized anything other than deadly physical force *(see People v Magliato,*68 NY2d 24, 29 [1986]; *People v Samuels,*198 AD2d 384 [1993]). Additionally, the evidence did not support a charge on the justifiable use of deadly physical force to prevent or terminate the commission or attempted commission of a burglary *(see People v Godfrey,*80 NY2d 860 [1992]; *People v White,*305 AD2d 616 [2003]). Mastro, J.P., Covello, Eng and Belen, JJ., concur.