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December 13, 2010
SANDRA STANGLE, PLAINTIFF,v.ALA CARTE ENTERTAINMENT, INC., 1893 WALDEN OFFICE SQUARE, INC. D/B/A MORETTI'S, AND JAMES EARLY, DEFENDANTS.
Sandra Stangle sued Ala Carte Entertainment ("ACE"), 1893 Walden Office Square, and James Earley*fn1 for violations of Title VII of the Civil Rights Act of 1964 and Illinois law. Stangle has moved for partial summary judgment on counts 1 and 4 of her complaint. For the reasons set forth below, the Court denies Stangle's motion on count 1 and grants it in part on count 4.
The following facts are drawn largely from Stangle's statement of material facts (Pl.'s Stmt.). Because defendants failed to provide a statement of facts that complies fully with Local Rule 56.1, the Court deems admitted, for purposes of this motion, all facts in Stangle's statement that were not controverted in defendants' statement. N.D.
Ill. R. 56.1(b)(3)(c); see also Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009).
ACE is a corporation that owns a number of businesses, including Moretti's Restaurant and Pizzeria. Pl.'s Stmt. ¶ 2. ACE employed Stangle as a server and bartender beginning in 2004. Id. ¶ 3. ACE also employs defendant Earley as its "corporate general manager." Id. ¶ 5. While Stangle worked at Moretti's, Earley would come to the restaurant approximately twice per week for drinks. Id. ¶ 13. Stangle alleges that Earley sexually harassed her on numerous occasions during his visits to Moretti's.
Earley admits he engaged in some of the conduct that forms the basis for Stangle's claims. Specifically, Stangle alleges that on March 20, 2008, Earley put his hands on both sides of Stangle's face and kissed her on the lips. Id. ¶ 18. During a deposition, Earley admitted to having done this. Id. He also testified that he apologized to Stangle for the kiss and admitted his actions were improper. Id. ¶¶ 20-21. Additionally, Stangle alleges that at various points Earley told Stangle to "do [him]," that she looked good in white, and that he wanted to "bite [her] chops." Id. ¶¶ 31-33. Earley admits making these comments but contends that he did so in a benign context. Defs.' Mem. 2, 7-8.
Stangle's complaint includes other allegations that Earley denies. In particular, Stangle contends that Earley frequently tried to stick his finger in her ear and rub her shoulders. Pl.'s Stmt. ¶ 49. She also alleges that after Earley kissed her on March 20, 2008, he told her "I would f--- you." Id. ¶ 50. Finally, Stangle asserts that on or about May 29, 2008, Earley grabbed her hair and tried to force her head into his crotch. Id. ¶
51. Earley contends that none of these incidents occurred. Defs.' Mem. 4. Discussion
On a motion for summary judgment, the Court draws "all reasonable inferences from undisputed facts in favor of the nonmoving party and [views] the disputed evidence in the light most favorable to the nonmoving party." Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2009). A party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Summary judgment is appropriate "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
After Stangle submitted her motion for partial summary judgment, defendants filed a motion pursuant to Rule 36(b) to withdraw admissions they had made by failing to respond to Stangle's requests to admit. The Court granted this motion in part on August 10, 2010 and revisits that ruling here before turning to the merits of Stangle's motion.
1. The Rule 36(b) motion
Stangle served her first set of requests to admit on both Earley and ACE on May 4, 2009. Defendants did not respond in timely fashion and did not seek or obtain an extension of time. Instead, they served late responses to the requests, on August 11, 2009. Because defendants' responses were served over three months after Stangle's requests were served, the facts contained in her requests were admitted by operation of law. Fed. R. Civ. P. 36(a)(3) ("A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney").
On June 21, 2010, Stangle moved for partial summary judgment, relying in part on defendants' admissions. Defendants then moved on July 26, 2010 to withdraw the admissions. They argued that withdrawal of the admissions was appropriate because "[t]he actual evidence presented in this case . . . raise[s] multiple issues of fact to be resolved by the jury." Defs.' Mot. 2.
"A court, in its discretion, may permit a party to rescind admissions when doing so better serves the presentation of the merits of the case and the party who benefits from the admissions (usually by relying on them) is not prejudiced." Banos v. City of Chicago, 398 F.3d 889, 892 (7th Cir. 2005); see also Fed. R. Civ. P. 36(b). A court retains discretion to deny a motion to withdraw admissions, however, even if the movant meets the conditions for withdrawal. See United States v. Kasuboski, 834 F.2d 1345, 1350 n.7 (7th Cir. 1987) ("Rule 36(b) allows withdrawal of admissions if certain conditions are met and the district court, in its discretion, permits the withdrawal") (emphasis added); see also In re Fisherman's Wharf Fillet, Inc., 83 F. Supp. 2d 651, 661 (E.D. Va. 1999) ("Clearly, no absolute right to withdraw admissions exists").
At a hearing on the motion to withdraw on August 3, 2010, the Court conditionally agreed that allowing defendants' admissions to be withdrawn would better serve the presentation of the case on its merits. The Court noted, however, that defendants had served tardy responses for no reason other than inexcusable neglect and then had allowed nearly a year to pass before filing moving to withdraw their admissions. Just as importantly, the Court noted that granting defendants' motion would render moot significant portions of Stangle's arguments in support of partial summary judgment, thus turning that part of the motion into a waste of the time and effort of Stangle's counsel.
The Court therefore proposed that it would grant defendants' motion to withdraw the admissions only if defendants agreed to pay the reasonable attorney's fees incurred by Stangle in preparing the now-wasted portions of her motion. Defendants agreed to do so. In reliance on this agreement, the Court granted the motion to withdraw conditioned on defendants' payment of Stangle's reasonable attorney's fees that were wasted as a result. The Court also set a schedule for briefing and determining the amount of the fee award.
In their brief addressing the amount of fees to be awarded, defendants effectively reneged on their prior agreement, arguing that Stangle is not entitled to a fee award because "preparation of a motion for partial summary judgment does not constitute prejudice" within the meaning of Rule 36(b). Defs.' Mem. in Opp. to Award of Atty's Fees 1. Defendants cite no authority for the proposition that a finding of "prejudice," as that term is used in Rule 36(b), is necessary to support a fee award in this context. Even if prejudice is required, however, Stangle established it; her attorney spent significant time and effort preparing arguments that were rendered moot upon defendants' belated withdrawal of the admissions.
In any event, the Court's determination to award reasonable attorney's fees to Stangle is supported by defendants' express agreement to condition withdrawal of their admissions upon payment of plaintiff's reasonable attorney's fees. That agreement, stated in open court on August 10, 2010, was not the result of a spur-of-the-moment decision by defendant or its counsel. Rather, at an earlier hearing on the motion, held on August 3, 2010, the Court laid out its proposal and gave counsel an opportunity to confer with defendant before responding. There was nothing improper or coercive about putting defendants to a choice that resulted only from their own inexcusable neglect in failing to make a timely response to Stangle's requests to admit and their later request to relieve themselves from the consequences of that neglect.
The fee award is also supported by this Court's inherent authority to "assess attorney's fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (internal quotation marks omitted). The Seventh Circuit has recognized that under this common law authority, an award of fees is appropriate if a party "act[s] recklessly or with indifference to the law." In re TCI Ltd. (Appeal of William L. Needler & Assocs., Ltd.), 769 F.2d 441, 445 (7th Cir. 1985) (concerning 28 U.S.C. § 1927); see also id. (noting that § 1927 is "merely another way to state the traditional approach" to bad faith fee awards). More recently, the Seventh Circuit has noted that bad faith includes "unnecessary delay" and "needless increase in the cost of litigation." Mach v. Will Cnty. Sheriff, 580 F.3d 495, 501 (7th Cir. 2009).
Defendants served their late responses to Stangle's requests to admit over three months after the requests were served. They did so in complete disregard of Rule 36(a)(3) and thus were deemed to have admitted facts central to Stangle's claims.
Defendants then waited over eleven months to file their motion to withdraw and did so only after Stangle filed her motion for partial summary judgment. This egregious delay caused a needless increase in the cost of this lawsuit, as Stangle relied heavily on the now-withdrawn admissions in her motion. Accordingly, the Court reiterates its conclusion that it is appropriate to assess against defendants Stangle's reasonable attorney's fees for the extra work necessitated by the withdrawal of defendants' admissions.
2. Sexual harassment claim
In count 1, Stangle argues that ACE is liable to her under Title VII for sexual harassment committed by Earley. "To establish a prima facie case of sexual harassment under Title VII, a plaintiff must show that 1) she was subjected to unwelcome harassment; 2) the harassment was based on her sex; 3) the harassment was sufficiently severe or pervasive so as to alter the condition of her employment and create a hostile or abusive atmosphere; and 4) there is a basis for employer liability."Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007).The Court concludes that genuine issues of fact remain as to whether Earley's conduct satisfies the third prongof the test outlined in Boumehdi. Accordingly, Stangle is not entitled to summary judgment on count 1.
3. Battery and assault claims
In count 4, Stangle alleges that Earley is individually liable to her for battery and assault.The parties appear to agree that Illinois law governs these claims. Intentional battery consists of "a willful touching of another person without the consent of the person who is touched." Kling v. Landry, 292 Ill. App. 3d 329, 339, 686 N.E.2d 33, 41 (1997). In other words, "'[t]o be liable for battery, the defendant must have done some affirmative act, intended to cause an unpermitted contact.'" Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072, 1084, 622 N.E.2d 108, 117 (1993) (quoting Mink v. Univ. of Chicago, 460 F. Supp. 713, 717 (N.D. Ill. 1978))."A person commits an assault when he places another in reasonable apprehension of receiving a battery." S & F Corp. v. Daley, 59 Ill. App. 3d 1024, 1030, 376 N.E.2d 699,703 (1978) (internal quotation marks omitted).
As discussed above, Earley admitted to placing his hands on both sides of Stangle's face and kissing her. He also testified that doing so was improper and that he apologized to Stangle. Based on these facts, the Court concludes that no reasonable jury could find that Earley did not commit a battery. Earley's admissions conclusively demonstrate his intent to kiss Stangle. Defendants' argument that "Earley did not intend to cause unpermitted contact in the context of the situation" is beside the point, since "[a]n action for battery does not depend on the hostile intent of the defendant, but on the absence of the plaintiff's consent to the contact." Kling, 292 Ill. App. 3d at 339, 686 N.E.2d at 41. Though defendants argue that the parties "would have such physical contact as giving each other high fives," no rational jury could conclude on this basis, and in light of Earley's admissions and other facts in the record, that Stangle consented to being grabbed and kissed by Earley.And contrary to defendants' view, even a brief kiss may constitute a battery. See Prosser and Keaton, The Law of Torts §§ 8-9 (5th ed. 1984) ("[A] person may commit a battery when intending only a joke, or a compliment--where an unappreciated kiss is bestowed without consent, or a misguided effort is made to render assistance").
For similar reasons, the Court concludes that Earley's admitted conduct constitutes an assault. Earley testified that Stangle "came up behind me and tapped me on the shoulder" just before he turned around, grabbed her face, and kissed her. Earley Dep. 70:20-21, Feb. 11, 2010. The record contains no countervailing facts suggesting that Stangle was unable to sense that Earley was trying to kiss her. Considering all of the facts, no rational jury could conclude that Stangle did not reasonably apprehend a battery when Earley placed his hands on her face and attempted to kiss her on the lips.
As discussed above, Stangle also alleges that Earley tried to stick his fingers in her ear, rubbed her shoulders, and grabbed her head and forced it into his crotch. Earley disputes these allegations, and genuine issues of fact remain as to whether they occurred. Accordingly, the Court grants Stangle's motion for summary judgment on count 4 only with respect to the March 20, 2008 incident in which Earley grabbed Stangle's head and kissed her.
4. Amount of fee award
In connection with the Court's award of attorney's fees and expenses arising from the withdrawal of defendants' admissions, Stangle seeks to recover a total of $13,453, broken down as follows:
- Attorney Uche Asonye, 3.75 hours at $425/hour: $1,593.75
- Attorney Scott Fanning, 15.35 hours at $225/hour: $3,453.75
- Law clerk Jason Keck, 61.25 hours at $125/hour: $7,656.25
- Two legal assistants, 6.95 hours at $100/hour: $695.00
- Photocopying charges: $54.25
Defendants do not object to the proposed hourly rates, and accordingly the Court finds they are reasonable. Defendants argue, however, that the amount of attorney and other time requested is unreasonably high.
The Court agrees with defendants in part. The attorney time that plaintiff seeks is properly justified. In light of the amount of attorney time spent, however, the Court is unpersuaded that sixty-one hours of law clerk time was reasonably necessary with regard to the part of the summary judgment motion that was rendered a waste of time by the withdrawal of defendants' admissions. The Court reduces that time by two-thirds, to $2,552. The Court also eliminates as not reasonably necessary the legal assistant time that Stangle requests. As a result, the Court directs defendants to pay to Stangle's counsel, within fourteen days of this order, the sum of $7,653.75.
For the reasons stated above, the Court grants plaintiff's motion for summary judgment in part and denies it in part [# 34]. The Court denies the motion with respect to count 1. The Court grants Stangle's motion with respect to count 4 as it relates to the March 20, 2008 incident but denies it with respect to any other conduct encompassed in count 4. The Court directs defendants to pay Stangle's counsel $7,653.75 within fourteen days. The case is set for a status hearing on January 12, 2010 at 9:30 a.m. for the purpose of setting a trial date and discussing the possibility of settlement.
MATTHEW F. KENNELLY United States District Judge
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Lethal Injections Are Now Much Harder To Carry Out, Thanks To Pfizer
Pfizer isn't letting states buy its drugs for executions anymore.By Ben Lawson | May 14, 2016
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Elder Wand Owners
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Forums: Index > The Wizengamot archive > Elder Wand Owners
Ok, so i made this topic because I think something is wrong in the Elder Wand article.
In the infobox , we can see the owners section. The last two owners were Draco Malfoy and Harry Potter. Actually , Draco Malfoy was never the owner of the Elder Wand. He was only the Elder Wand's master. So he should be removed from that section. Also, we can consider Voldemort an owner of the Elder Wand, even though he wasn't the master of it.
So, I think personally think that we should change the owners section to the masters section, so Draco will be kept in. We could also keep the owners section, but we must remove Draco and insert Voldemort in.
If you agree with this, I'm gonna make the edit. :) Ronweasleypwns
- Done added masters to the info on the Elder Wand article pday2387 11:57, June 1, 2010 (UTC)


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I made my first fondant cake today ( I was so pleased) by once I cut into the cake, the fondant on top kind of caved in. I suspect the fondant was heavy, please let me know if their is a specific thickness. Thanks for reading
Most people do theirs anywhere from 1/8" to 1/4".
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New Jersey Superior Court, Appellate Division
January 23, 1992
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.FRANK PIERRO, DEFENDANT-APPELLANT
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Antell, Long and Baime. The opinion of the court was delivered by Baime, J.A.D.
This case presents novel questions concerning the scope of Evid.R. 65. This rule permits introduction of evidence affecting the credibility of a declarant whose out-of-court statement has been admitted under an exception to the hearsay rule. We hold that evidence of the defendant's threats resulting in the declarant's refusal to testify and recant his previously admitted declaration against penal interest may be introduced. We also hold that when impeachment evidence is admitted under Evid.R. 65, the trial court should instruct the jury respecting its limited probative effect.
Defendant appeals from convictions of burglary (N.J.S.A. 2C:18-2) and theft (N.J.S.A. 2C:20-3) for which he received an aggregate sentence of ten years. At trial, defendant admitted into evidence the affidavit of a fellow inmate of the Bergen County Jail in which the affiant confessed that he alone committed the offenses charged in the indictment. On rebuttal, the State was permitted to introduce the inmate's subsequent statement in which he recanted his confession and claimed that he had been coerced by defendant and his cohorts into preparing
[235 NJSuper Page 283]
the affidavit. In addition, the State was allowed to admit testimony indicating that the inmate refused to testify because he feared retribution at the hands of the defendant.
On appeal, it is argued that the trial court erred by (1) admitting evidence concerning the inmate's expressions of fear that he would be attacked by defendant, (2) failing to instruct the jury pertaining to the limited probative effect of the State's rebuttal testimony, and (3) imposing an illegal sentence on the theft conviction. We find no merit in any of the arguments advanced.
We need not recount the facts at length. In the early evening hours of September 1, 1988, Catherine Gertz's house was burglarized. The burglar entered the house by breaking through a kitchen window. Cash, jewelry and other articles totaling approximately $3,000 in value were taken.
At 10:45 p.m. on the same night, Nicole Andez and her boyfriend were returning to her apartment which was in close proximity to Gertz's residence when their attention was drawn to defendant, who was on foot. According to Andez, their suspicions were immediately aroused because defendant had a VCR under one arm and something "bulky" under the other. When defendant noticed the presence of Andez, he furtively "looked down" and began "walking fast" in the opposite direction. The next morning Andez learned that Gertz's house had been burglarized. Andez telephoned the police and later selected defendant's photograph from an array presented to her. She subsequently identified defendant in a line-up conducted by the Bergen County Sheriff's Department.
Based upon this evidence, the jury found defendant guilty of burglary and theft. Following his convictions, defendant moved for a new trial based on newly discovered evidence. The evidence consisted of an affidavit signed by Paul Giordano, an inmate in the Bergen County Jail. In the affidavit, Giordano
[235 NJSuper Page 284]
confessed that he had committed the burglary of Gertz's house. Corrections Officer Alfonzie Lee Moore testified that Giordano had asked him to notarize an affidavit which would "clear" another inmate and implicate himself in a crime. Based upon this affidavit and Moore's testimony, the court granted defendant's motion for a new trial.
At the second trial, the State presented essentially the same evidence we described previously. Although defendant elected not to testify, Giordano's affidavit was admitted into evidence as a declaration against penal interest. In addition, Moore testified that he cautioned Giordano against making the confession unless it were true. In rebuttal, the State presented Detective Sergeant Nicholas Valdez, a Wood Ridge police officer, who testified that Giordano had telephoned him and had requested a meeting concerning the contents of the affidavit. At a later meeting, in the presence of his attorney and an Assistant Bergen County Prosecutor, Giordano claimed that defendant and other inmates had coerced him into making the inculpatory statement. However, Giordano refused to sign a sworn statement recanting his confession and insisted that he would not testify because he was afraid of defendant and his friends. In surrebuttal, Moore testified that Giordano signed the affidavit "of his own free will," stating that "it was something he wanted to do."
Defendant was again found guilty of burglary and theft. This appeal followed.
Initially, defendant challenges the admission of the State's rebuttal evidence. Defendant concedes that the trial court was correct in allowing Valdez to testify respecting Giordano's claim his confession was coerced. However, defendant asserts that it was improper to admit evidence concerning Giordano's fear of future retribution. We reject this contention.
The State's rebuttal testimony was properly admitted pursuant to Evid.R. 65. That rule provides:
Evidence of a statement or other conduct by a declarant inconsistent with a statement received in evidence under an exception to Rule 63, is admissible for the purpose of discrediting the declarant, though he had no opportunity to deny or explain such inconsistent statement. Any other evidence tending to impair or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness.
While our research discloses no reported New Jersey opinion explicitly dealing with the requirements of Evid.R. 65, we are convinced that Giordano's claims of coercion and fear of retribution constituted evidence "tending to impair" his credibility and fell squarely within the purview of the rule.*fn1
Contrary to defendant's argument, this evidence was not intended to focus upon the issue of "consciousness of guilt." In a series of decisions, our courts have held that "[t]estimony of threats made by a defendant against a witness with the intent to induce him not to testify" is admissible as substantive evidence because it "illuminates [the declarant's] 'consciousness of his own guilt' and is not subject to the restriction of Evid.R. 55." See State v. Johnson, 216 N.J. Super. 588, 611, 524 A.2d 826 (App.Div.1987); see also State v. Hill, 47 N.J. 490, 500, 221 A.2d 725 (1966); State v. Lassiter, 197 N.J. Super. 2, 8, 484 A.2d 13 (App.Div.1984); State v. Plowden, 126 N.J. Super. 228, 231, 313 A.2d 802 (App.Div.), certif. denied, 64 N.J. 504, 317 A.2d 717 (1974). Defendant correctly points out that Evid.R. 65 limits the admission of out-of-court statements to those affecting the credibility of a declarant whose declaration has been admitted as an exception to the hearsay rule. He properly notes that, although threats and coercion of a witness by a
[235 NJSuper Page 286]
defendant are admissible to show "consciousness of guilt," they may not be introduced by way of a hearsay declaration.
This much conceded, we have long permitted admission of evidence of threats and coercion "to explain discrepancies or contradictions in a witness' testimony." See, e.g., State v. Gray, 112 N.J. Super. 412, 418, 271 A.2d 597 (App.Div.1970), certif. denied, 57 N.J. 596, 274 A.2d 51 (1971); State v. Rivera, 232 N.J. Super. 165, 180, 556 A.2d 1227 (App.Div.), certif. denied, 117 N.J. 169, 564 A.2d 885 (1989); State v. Walter, 14 N.J.Misc. 547, 186 A. 429 (Sup.Ct.1936), aff'd o.b., 117 N.J.L. 547, 189 A. 621 (E. & A. 1937). In State v. Rivera, for example, a witness was permitted to testify that she did not implicate the defendant in her initial statement to the police because she feared he would beat her as he had in the past. 232 N.J. Super. at 180, 556 A.2d 1227. We held that this evidence was admissible on the question of the witness' credibility because it explained why she wanted to protect the defendant in her initial statement to a law enforcement official. Ibid. Similarly, in State v. Gray, we held that evidence of a witness' fear of the defendant was admissible to show why he had initially equivocated in identifying him on the first day of trial. 112 N.J. Super. at 418, 271 A.2d 597. We said that the witness' "description of the circumstances, both objective and subjective, which triggered his fears," was properly admitted to explain "his reasons for giving the variant testimony." Ibid. Likewise, in State v. Walter, the old Supreme Court upheld the admission of evidence of threats against a witness to show why the testimony he gave before the grand jury was "at variance with his testimony at the . . . trial." 14 N.J.Misc. at 550, 186 A. 429. The Court said that this evidence was properly admitted because it affected the credibility of the witness. Ibid.
These principles apply with equal force here. Evid.R. 65 makes it clear that the credibility of a declarant is subject to attack when his statement is admitted by virtue of an exception to the hearsay exclusionary rule. See Biunno, Current N.J.Rules of Evidence, Comment to Evid.R. 65 (1992). Giordano's
[235 NJSuper Page 287]
statement that he was coerced into making the confession was admissible to cast doubt upon the truth of his prior declaration against penal interest. The declarant's fear of retribution was admissible to explain the reason for his refusal to provide a written recantation of his confession. The State's rebuttal was offered to impeach Giordano's credibility and was thus properly admitted under Evid.R. 65.
That leads us to defendant's contention that the trial court failed to instruct the jury with respect to the limited probative effect of Valdez's testimony. This point does not require extended Discussion. We agree with defendant's assertion that when evidence is admitted under Evid.R. 65 the jury should be instructed as to its limited effect. For example, where a statement is admitted which is inconsistent with a hearsay declaration that has been received under an exception to Evid.R. 63, the trial court should instruct the jury that it may consider the inconsistent statement only for the purpose of affecting the declarant's credibility, not as substantive evidence. Biunno, Current N.J.Rules of Evidence, Comment to Evid.R. 65 (1992); see also Evid.R. 6.
The instructions given by the trial court in this case fully comported with that principle. The trial court emphasized that Giordano's oral statements were admitted only for the purpose of discrediting his truthfulness. The court specifically admonished the jury that Giordano's oral statements "could not be taken as substantive evidence," but instead were "admitted to attack the credibility" of his written affidavit. The trial court's metonymic references to Giordano's written statement did not undermine this peremptory language. Jurors do not sit in solitary isolation "parsing instructions for subtle shades of meaning in the same way lawyers might." Boyde v. California, 494 U.S. 370, 381, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316,
[235 NJSuper Page 288]
329 (1990). We are thoroughly satisfied that the appropriate legal principles were fairly conveyed to the jury.
Defendant's final contention is that he was sentenced for third degree theft, but convicted of the lesser-included offense of fourth degree theft. The verdict sheet given to the jury was in accord with the statutory language, which makes theft a third degree crime where the value of the goods taken is "in excess" of $500, and a fourth degree offense where the value is "at least" $200 but "does not exceed" $500. See N.J.S.A. 2C:20-2b(2)(a) and N.J.S.A. 2C:20-2b(3). In returning the jury's verdict, the foreperson stated "[w]e find the defendant guilty of $500." Defendant asserts that the foreperson's response to the trial court's question indicated that the jury intended to return a guilty verdict of fourth degree theft.
The foreperson's statement was indeed ambiguous. However, the trial court subsequently clarified the jury's finding as to the value of the goods taken by polling the jurors individually. The jurors' responses indicated that the jury found the value of the goods stolen was in excess of $500.
Defendant was sentenced to a four year term of imprisonment to run concurrently with the ten year extended term imposed on the burglary conviction. The sentence was within statutory bounds and was manifestly legal. See N.J.S.A. 2C:43-6a(3).
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Teradyne Inc. (TER) Shares Bought by Tocqueville Asset Management L.P.
Tocqueville Asset Management L.P. boosted its position in shares of Teradyne Inc. (NYSE:TER) by 11.9% during the second quarter, according to its most recent filing with the SEC. The institutional investor owned 681,472 shares of the company's stock after buying an additional 72,663 shares during the period. Tocqueville Asset Management L.P. owned about 0.34% of Teradyne worth $13,418,000 as of its most recent filing with the SEC.
Other large investors have also recently made changes to their positions in the company. American Century Companies Inc. boosted its stake in shares of Teradyne by 31.9% in the second quarter. American Century Companies Inc. now owns 8,633,347 shares of the company's stock worth $169,991,000 after buying an additional 2,088,082 shares in the last quarter. Lazard Asset Management LLC boosted its stake in shares of Teradyne by 13.2% in the first quarter. Lazard Asset Management LLC now owns 6,864,105 shares of the company's stock worth $148,196,000 after buying an additional 801,400 shares in the last quarter. State Street Corp boosted its stake in shares of Teradyne by 3.0% in the first quarter. State Street Corp now owns 5,882,377 shares of the company's stock worth $127,004,000 after buying an additional 173,717 shares in the last quarter. JPMorgan Chase & Co. boosted its stake in shares of Teradyne by 14.3% in the first quarter. JPMorgan Chase & Co. now owns 2,430,603 shares of the company's stock worth $52,477,000 after buying an additional 303,407 shares in the last quarter. Finally, Bank of Montreal Can purchased a new stake in shares of Teradyne during the second quarter worth about $37,852,000. Institutional investors and hedge funds own 91.42% of the company's stock.
Shares of Teradyne Inc. (NYSE:TER) traded up 1.15% during mid-day trading on Friday, reaching $21.19. The company's stock had a trading volume of 1,506,403 shares. Teradyne Inc. has a 12-month low of $17.34 and a 12-month high of $22.13. The stock's market capitalization is $4.29 billion. The company's 50-day moving average price is $21.16 and its 200-day moving average price is $20.30.
Teradyne (NYSE:TER) last announced its earnings results on Wednesday, July 27th. The company reported $0.55 earnings per share (EPS) for the quarter, topping the consensus estimate of $0.50 by $0.05. The business had revenue of $532 million for the quarter, compared to analysts' expectations of $526.75 million. Teradyne had a positive return on equity of 14.84% and a negative net margin of 5.88%. The business's revenue for the quarter was up 3.7% on a year-over-year basis. During the same period last year, the firm posted $0.53 earnings per share. On average, equities research analysts forecast that Teradyne Inc. will post $1.26 earnings per share for the current fiscal year.
The company also recently announced a quarterly dividend, which was paid on Friday, September 30th. Shareholders of record on Wednesday, September 7th were given a $0.06 dividend. The ex-dividend date of this dividend was Friday, September 2nd. This represents a $0.24 annualized dividend and a yield of 1.15%. Teradyne's payout ratio is -46.15%.
A number of equities research analysts recently issued reports on TER shares. Zacks Investment Research cut Teradyne from a "hold" rating to a "sell" rating in a research note on Friday, July 29th. Needham & Company LLC started coverage on Teradyne in a research note on Thursday, July 7th. They issued a "buy" rating and a $23.00 price objective on the stock. Deutsche Bank AG lowered their price objective on Teradyne from $23.00 to $22.00 and set a "buy" rating on the stock in a research note on Friday, July 29th. DA Davidson boosted their price objective on Teradyne from $24.00 to $25.00 and gave the company a "buy" rating in a research note on Friday, July 29th. Finally, Pacific Crest reiterated a "hold" rating on shares of Teradyne in a research report on Friday, July 29th. Six investment analysts have rated the stock with a hold rating and seven have assigned a buy rating to the company's stock. The company has an average rating of "Buy" and a consensus target price of $22.50.
In other news, Director Michael A. Bradley sold 64,650 shares of Teradyne stock in a transaction dated Thursday, August 25th. The stock was sold at an average price of $20.93, for a total transaction of $1,353,124.50. Following the transaction, the director now directly owns 224,371 shares of the company's stock, valued at approximately $4,696,085.03. The transaction was disclosed in a legal filing with the SEC, which can be accessed through this link. Also, Director Michael A. Bradley sold 31,502 shares of Teradyne stock in a transaction dated Monday, August 29th. The shares were sold at an average price of $21.19, for a total value of $667,527.38. Following the transaction, the director now directly owns 171,223 shares in the company, valued at $3,628,215.37. The disclosure for this sale can be found here. 0.76% of the stock is owned by company insiders.
About Teradyne
Teradyne, Inc supplies automation equipment for test and industrial applications. The Company designs, develops, manufactures and sells automatic test systems used to test semiconductors, wireless products, data storage and complex electronics systems in the consumer electronics, wireless, automotive, industrial, computing, communications and aerospace and defense industries.
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[25nl FR] AJ River decision
MP1: $25.50 (102 bb)
MP2: $4.65 (18.6 bb)
MP3: $4.65 (18.6 bb)
CO: $17 (68 bb)
BTN: $32.80 (131.2 bb)
SB: $4.75 (19 bb)
BB: $23.70 (94.8 bb)
Hero (UTG): $25 (100 bb)
UTG+1: $24.90 (99.6 bb)
Pre-Flop: Hero is UTG with J A[image: http://www.stoxpoker.com/hand_history_converter/images/emoticons/heart.gif]
Hero raises to $1, 5 folds, BTN calls $1, 2 folds
Flop: ($2.35) 4[image: http://www.stoxpoker.com/hand_history_converter/images/emoticons/diamond.gif] 9[image: http://www.stoxpoker.com/hand_history_converter/images/emoticons/spade.gif] 7[image: http://www.stoxpoker.com/hand_history_converter/images/emoticons/club.gif] (2 players)
Hero bets $1.60, BTN calls $1.60
Turn: ($5.55) 3[image: http://www.stoxpoker.com/hand_history_converter/images/emoticons/spade.gif] (2 players)
Hero checks, BTN bets $0.50, Hero calls $0.50
River: ($6.55) A[image: http://www.stoxpoker.com/hand_history_converter/images/emoticons/diamond.gif] (2 players)
Hero ??
Not much reads on villain except that he doesn't seem to be very good at first glance. Saw him call a min 4 bet bb vs a sb raiser with J3s earlier, flop 2 pair and get it vs QQ.
What is our river action ? What will a bet accomplish and is this the best approach ?
Easy bet/fold. Unless villain is a spaz you'll never ever be bluff raised here and a river raise is almost always a4/a9/a7.
c/c is HORRIBLE ABSOLUTELY HORRIBLE. Villain will never value bet worse on the river unless he somehow has like AT or A8 and these will call a bet on the river anyways. W/o reads there isn't any reason for you to think villain has 86 here and will bluff the river (esp. given the turn action). Villain would have to have a huge flop peeling range and have a super high bluffing freq. on the river for c/c to even cross your mind.
Villain's calling range on the river is probably way wider than his river vbetting + bluffing range, which means b/f>>>>>>>>>>>>>c/c.
And i also think AJo is a fold in FR. I'd open AJs, and AQo+.
re: Poker & [25nl FR] AJ River decision
They shove JJ+ and AQ+ imo so it's not like every hand a shortstack is pushing.
I think the river against a bad player here is more interesting and warrents a little more thought than OMG b/f as a standard line.
Villian has prooven himself an extremly bad and bluffy player already as prooven by his crazy preflop action with J3, and we simply cannot call a raise if we bet. Surely in this spot giving a little rope is worth a little consideration ? Checking here will almost always induce a bet from this guy with the vast majority of his range, even if it is a whiffed draw.
a 4B pre w/J3 doesn't give us any idea about his postflop play. If we did think that villain had a very wide range here and was inclined to bluff if checked to then absolutely c/c is a good line. But given the 50c bet on the turn it doesn't really look like villain has a draw (would be the worst bet ever if he did) and it also doesn't make me think that villain is inclined to then throw out $5 on the river with air. If we think villain probably has a 9x or 7x type of hand here and will call a river bet then c/cing is not good coz we miss out all value on his one pair hands that villain checks behind and we call all his 2 pair+ range that he vbets on river.
w/ reads that villain has a high river bluffing frequencies and preferrably a very wide flop peeling range (so that alot of air will be in his range - means alot of his range will be bluffs) then this is a c/c and i did point that out in my OP. But vs a relative unknown who is more likely to call down with garbage than bluff air (for all we know) then this is a clear bet on the river.
And who cares if we can't call a river raise? What is even worse is missing value from one pair hands and paying off 2 pair hands and better. Villain's river bluffing frequencies have to be quite high for us to overcome this fact.
You've got HEM right? Filter it to when you're UTG (you may only be able to do EP, just do that then) and have AJ and raise preflop. For most people it's gonna be a losing play. If you're winning with it then just keep doing it but I have a feeling you'll be surprised with what you see.
Anyway I agree with above, just bet/fold this river for like $4.
re: Poker & [25nl FR] AJ River decision
Like $8 after 35k ish hands of 10nl I think.
It now is a marginal loser. -1$ with 245 hands returned.
Villain here was a complete fish imo, it was just unlucky he had 2 pair here as he would minbet river with 7 high as well. His stats and the way he played J3 didn't lie..
I still like c/c especially since he minbet it I think.
The basis behind c/c is this. Villain MUST have a high bluffing frequency and we must have a reasonable expectation that villain will bet river (in this case) when checked to. Related to this is the fact that we typically need villain to have a wide preflop and flop peeling range - because if this is the case villain will have alot of air hands and if we reasonably expect villain to bluff with a decent portion of these then villain's range is heavily weighted towards bluffs when he bets river.
Another reason might be if we think metagame is such that villain can value bet us very light, but might not call down as light (very rare that this would happen - you'd need to be a bad loose passive in villain's eyes). So in this case villain might vbet 9K thinking he can get called down by a worse 9 and a 7, but if you bet you almost always have an A or 2 pair so villain will fold. But you don't encounter thinking players at nl25 so don't worry about this last one.
So, we have to consider 2 things on the river. Villain's range for betting the river and villain's range for calling the river. Villain's range for betting the river here will be 2 pair + hands and bluffs - and almost never anything else. This kinda villain isn't going to vbet a nine on the river nor is villain likely to turn a hand like K4 into a bluff. So frankly we might as well be calling down with a 7 on this river, since a 7 is going to beat as many of villain's bluffs as will AJ. So the only time c/c can be good is if villain will bluff river alot or turn some of his weak made hands into a bluff (like K4 realising it probably isn't good - but again this villain won't do that). Where AJ>>>>>>>>>>>7x is when it comes to villain's river calling range. You can't vbet a weak 7 on this board, but you can vbet AJ and get called down by 9x and sometimes 7x.
So in this case villain's river calling range probably is much wider than villain's river betting range, since weak made hands check behind so we have a polarized 2 pair or better + bluffs range --> and when villain probably doesn't have that many bluffs in his range (and lets face it we have ABSOLUTELY NO idea about villain's river bluffing frequencies at this stage so it is a blind guess at best) c/c is just so bad.
I think i know why you like c/c. You want to see showdown and you don't want to have to fold to a river raise. But who cares? If he raises this river he almost always rivered 2 pair so it is an easy fold knowing you aren't ahead. You absolutely must be looking to extract the most value, not just getting to showdown by all means necessary even if it means that you take a bad line (c/c) that will never be good vs villain's vbetting range and you might as well be snapping off whatever portion of villain's range is a bluff with a much worse hand. You are turning your strong AJ into 32 for all intensive purposes by choosing to c/c (except in the cases where villain has a worse A high on the turn for some reason).
But honestly enty read this until you understand it because it is extremely important to understand.
One thing all you guys who are playing a bit lower and trying to figure things out is to really really analyze why you are thinking of takign a certain line. Why do you want to c/c? Is it just to see showdown and to keep the pot small? Coz if so that is really bad logic to take coz you aren't thinking about villain's ranges (and how they change depending on your line) and what your range is in the eyes of villain.
In this case for example, I think b/f>>>>>>>>>>>>>>c/f >>>> c/c (unless it is a silly bet that gives you excellent odds) unless you have a reasonable expectation that villain has a high river bluffing frequency (which we don't). That is how bad i think c/cing is here. If you don't think villain can call you down on this river with some worse one pair hands and have no reason to think villain has a very wide range of which a large portion will bluff, then you should never c/c but c/f.
But Enty did you say this guy minbet the river? Because if you're planning to C/F this river then villain min-bets calling is fine. I do agree though that checking with the intention of calling a reasonably sized bet is just plain spew and as I said above I prefer bet/fold.
nice post feitr, if we check call we are giving him the chance to determine bet size if he puts in like a pot size bet then are we still calling?
On the flip side he could thin value you to try and induce a re raise so we really put ourself in an awkward spot if we check call. I think b/f is the best line
@ enty And also when it comes to analysing hands you should try more to put ppl into a box if you will and analyze how you would play the hand GIVEN your reads/preconceived notions and obviously the best line changes depending on the reads. But the most important things to get out of hand analysis threads is the logic behind why you are making a certain move (like i fully concede that c/c is a perfectly fine lines IF certain tendencies are met by villain - which i don't think is the case on this hand).
re: Poker & [25nl FR] AJ River decision
A little much to take in at once but I'll come back to this thread when I have more time. Thanks anyway for the great posts Feitr.
From what I have understood so far () I understand that b/f is much better than c/c. But: this was one truly bad villain.
The way he played and minbet almost anything and everything, he could have ATC really. Maybe this is not fair, because it could be I know this due to the hands we played AFTER this hand.
But that's what it is. He could have a draw, 1 pair, 2 pair, or any high card even. So that being said, I don't know if betting the river is still better. I'm leaning towards it now.
Maybe my thinking is just screwed because Tenbob said, c/c is best on rivere here during our sweat.
I don't know, I'll get back to this thread tomorrow.
I don't understand how this is even a decision. We have a player who doesn't look very good, we've got top pair. Bet that river!
OK I got it now.
Basically what I need to really do when playing is go through a decent thought process. Something more extensive than, I has AJ J on flop, bet RAWR.
Put opponents on ranges, think before I act. Probably cut down the tables and really force myself to THINK.
6 tabling now till I have a decent game.
It's pretty hard not to fall into bad FPS tho.


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The Reverend PeytonŌĆÖs Big Damn Band
The Vogue
6259 North College Avenue
Indianapolis, IN, 46220
Doors 8:00 PM / Show 9:00 PM
This event is 21 and over
Watch & Listen
BROWN COUNTY, IN ŌĆö The Rev. PeytonŌĆÖs Big Damn Band bridges genres and eras with an intensity and effortlessness few contemporary artists possess. And their new album So Deliciouselevates the trioŌĆÖs work to a new level. Produced by Rev. Peyton, So Delicious offers the bandŌĆÖs most diverse collection of songs buoyed by the Rev.ŌĆÖs supercharged six-string virtuosity ŌĆö a unique style of fingerpicking inspired by his Delta blues heroes, but taken to new, original heights.
The fifth full-length original album by the group ŌĆö which includes Breezy Peyton on washboard and supporting vocals and Ben Bussell on drums and supporting vocals ŌĆö is their debut on Yazoo Records, a label known for the historic reissues of blues and other old time American music that are the bedrock inspiration for the Rev.ŌĆÖs sound and approach.
ŌĆ£Yazoo was my favorite record label growing up,ŌĆØ he explains. ŌĆ£For fans of old country blues and all manner of early American music, they are the quintessential label. And for me, itŌĆÖs like being on the same label as Charley Patton and ŌĆśMississippiŌĆÖ John Hurt. To think that Yazoo believes we are authentic enough to stand with the other people in their catalog means a lot.ŌĆØ
The Rev. PeytonŌĆÖs Big Damn Band has always been strong on authenticity, playing music that blends blues, ragtime, folk, country and other traditional styles with the sleek modern energy of do-it-yourself, homespun, punk fueled rock. And performing tunes plucked from their lives, their community or from the canonical songbook that fed the Rev. PeytonŌĆÖs formative creative identity. ItŌĆÖs a mix thatŌĆÖs allowed the band to win fans from all corners of the Americana and rock worlds, and bring a new generation to blues and other forms of American roots music.
So Delicious is a perfect Rev. PeytonŌĆÖs Big Damn Band album, with songs that speak from the heart and capture the trio ŌĆö whose sound has been honed over 250 annual tour dates during the last eight years ŌĆö playing at their peak. The charging, anthemic ŌĆ£Raise a Little Hell,ŌĆØ also the setŌĆÖs first video, lays out the bandŌĆÖs live modus operandi, thriving on BussellŌĆÖs and BreezyŌĆÖs chugging beat and the Rev.ŌĆÖs resonator guitar riffs and mantra-like singing. The song was inspired by a show at a folk festival, where one of the promoters ŌĆö struck by the Big Damn BandŌĆÖs raucous, juke joint power ŌĆö told the Rev., ŌĆ£YŌĆÖall sure raise a lot of hell.ŌĆØ
ŌĆ£I said, ŌĆśNaw we donŌĆÖt,ŌĆÖ ŌĆ£ the Rev. recalls. ŌĆ£And then I thought, ŌĆśWell, maybe we do raise alittle hell.ŌĆÖ
ŌĆ£The sweet, joyful ŌĆ£Pot Roast & Kisses,ŌĆØ which the band has also committed to video, was written for Breezy. The Rev. was developing the finger-busting main riff after enjoying one of her pot roast dinners when the lyrics naturally fell into place. ŌĆ£Some people donŌĆÖt believe that we really live the way we sing about in our songs,ŌĆØ he explains, ŌĆ£but itŌĆÖs true. Breezy and me are together and really love each other. We try to keep things simple, like people have in Brown County, Indiana for a long time. And we really do live in the woods and forage for some of our food ŌĆö like I sing about in ŌĆśPickinŌĆÖ Paw PawsŌĆÖ on this album.ŌĆØ
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ŌĆ£IŌĆÖve been obsessed with the idea of taking fingerstyle guitar to a place itŌĆÖs never been before,ŌĆØ the Rev. says. And heŌĆÖs gotten there by blending the foundational playing of great country bluesmen like Charley Patton and John Hurt with the early-rock vigor of Chuck Berry and the licks played by old timey fiddle players who recorded in the 1920s and ŌĆÖ30s. In fact, that school of fiddle ŌĆö enshrined in YazooŌĆÖs catalog ŌĆö is often reflected in the Rev.ŌĆÖs slide playing, which adds to the uniqueness of his virtuosity.
As producer, the Rev. adopted a strategy that let the Big Damn BandŌĆÖs strengths shine on So Delicious. BussellŌĆÖs drums were pared down to the essentials to showcase the Rev.ŌĆÖs guitar and ebullient singing, and to allow the beefy melodies on the 11 songs to flex their muscles. Plus Breezy and Bussell deliver their strongest harmony singing, with Breezy in particular elevating numbers like the workingmanŌĆÖs ode ŌĆ£DirtŌĆØ with her soaring voice.
The RevŌĆÖs fascination with country blues began at the age of 12, when he started dipping into his fatherŌĆÖs album collection and his dad brought a beaten Kay guitar into the PeytonsŌĆÖ Indiana home. In addition to mirroring the guitar playing he heard on recordings of early blues artists like Robert Johnson and Patton ŌĆö who the Rev. paid tribute to with 2011ŌĆÖs solo acoustic Peyton On Patton ŌĆö he also started assimilating more modern recordings from Muddy WatersŌĆÖ Chess Records catalog and blues-rock players like Johnny Winter. Those recordings often featured multiple guitar players and overdubs, but Peyton blended all the six-string lines he heard into one fluid part. ŌĆ£That forced me to start thinking outside the box right from the start,ŌĆØ he notes.
At one point the Rev. briefly walked away from guitar, when the tendons in his hands were plagued with cysts that inhibited his ability to play. Shortly after a surgeon removed them, he met Breezy and the coupleŌĆÖs whirlwind romance and shared love of music inspired him to pursue his potential. Breezy took up the washboard, and by 2006 the members of the Rev. PeytonŌĆÖs Big Damn Band had sold their possessions and taken to the road. That same year their initial album Big Damn Nation was released and The Gospel Album followed in 2008.
With 2009ŌĆÖs The Whole Fam Damily ŌĆö and hundreds of thousands of touring miles in the U.S. and abroad under their belts ŌĆö the Rev. PeytonŌĆÖs Big Damn Band was hitting stride, but the Rev. considers 2010ŌĆÖs The Wages, which entered the Billboard blues chart at number two and featured the buoyant airplay and YouTube winner ŌĆö with 728,000 views and counting ŌĆö ŌĆ£Clap Your Hands,ŌĆØ his breakthrough as a songwriter. ŌĆ£That album came at a point when I decided I really wanted to work on myself as a writer and as a guitarist, because it was the great stories in the songs of my country blues heroes and their playing that brought me here in the first place,ŌĆØ he avows. ŌĆ£If I wanted to follow in their footsteps, I had to step up.ŌĆØ
By the time the Rev. recorded Peyton On Patton in four hours with a single microphone, the band had received the ŌĆ£Best Band of the Warped TourŌĆØ award and performed at the famed Austin City Limits, Glastonbury, Bonnaroo, WOMAD, Telluride, All Good, King Biscuit, Juke Joint and Riot festivals, among many other prestigious gigs.
Between the Ditches, which debuted at number one on the iTunes blues chart and landed on BillboardŌĆÖs pop albums chart in 2012, continued that momentum, bringing the Rev. PeytonŌĆÖs Big Damn Band to an even larger, demographic-leaping audience thanks to the powerhouse songs ŌĆ£Devils Look Like AngelsŌĆØ and ŌĆ£Something For Nothing,ŌĆØ which were video and radio hits. And now So Delicious offers a feast of new music from the Rev. and his accomplices.
ŌĆ£When people hear So Delicious and see us play live, I think they understand that what weŌĆÖre singing about is real to us,ŌĆØ the Rev. says. ŌĆ£We believe in the stories weŌĆÖre telling and in the way we play. And when weŌĆÖre on stage or off, thereŌĆÖs nothing fake about us. We are what we do, and IŌĆÖm proud of that.ŌĆØ
WhoŌĆÖs Going
Upcoming Events
The Vogue
Sat, December 3
"Stolen Faces" A Grateful Dead Experience
Sat, December 3
"Stolen Faces" A Grateful Dead Experience
Wed, December 7
Too Short
Thu, December 8
Lupe Fiasco
Fri, December 9
Zoso - The Ultimate Led Zeppelin Experience


text:
Backpackers to pay more for working holidays
Backpacker performance is in the firing line.
Updated May 03, 2016 11:51:42
Backpacker performance is in the firing line.
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