To be argued by
Henry P. DeVine
Court of Appeals
State of New York
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The People of the State of New York,
Respondent,
against
Francis E. Dec,
Defendant-Appellant.
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Respondent’s Brief
Statement
Defendant
appeals from an order of the Supreme Court, Appellate Division,
First Department,
affirming unanimously a judgment of the Nassau County Court wherein
defendant was convicted after
a jury trial of Forgery in the Second Degree (two counts), Grand
Larceny in the Second Degree and
a violation of Section 1820-a, subdivision 2 of the Penal Law (Fraud
or Deceit by Notary Public). The
indictment was returned by the Grand Jury on February 11, 1958 and
trial was held in the Nassau
County Court on November 5, 6, 12, 13, 14, 17, 18, 19, and 20, 1958
in the Nassau County Court
before the Hon. William J. Sullivan, County Judge of Nassau County,
and a jury and the accused
was convicted by a verdict of the jury as charged in the pleading.
On December
23, 1958, the appellant was sentenced upon each of his convictions
for the crimes
of Forgery in the Second Degree (two counts) and Grand Larceny in
the Second Degree to Sing Sing
Prison to indeterminate terms, the maximum of each term being five
years and the minimum two and
one-half years, which the direction that such sentences were to run
concurrently. Execution of each
of these sentences was suspended and the apellant was placed upon
probation for the maximum
period allowed by law. Upon his conviction for the crime of
violation of Section 1820-a, subdivision 2,
of the Penal Law (Fraud or Deciet by Notary Public) The Apellant
recieved a suspended sentence.
Leave to
appeal to the Court of Appeals was granted by Hon. Adrian P. Burke
of this Court by
certificate dated February 17, 1961 and a notice of appeal, dated
February 27, 1961 was served and
filed.
This Court
granted permission to appeal on the original record and typewritten
briefs on or about
April 20, 1961.
Upon the
trial and upon the appeal, the appelant represents himself. The
People are represented
by Manuel W. Levine, District Attorney of Nassau County (Arthur V.
Nixon, Assistant District
Attorney, on the trial and Henry P. DeVine, Assistant District
Attorney, on this appeal).
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The
Evidence
The People's Case
Elizabeth
Wirschning, involved in an automobile accident in Westbury, New York
(s.m. pp. 33-34)*
on January 9, 1956, retained the appellant that day for her claim
against the operator of the other car
(s.m. pp. 36-39). Mrs. Wirschning was neither hospitalized for her
injuries (s.m. p. 41) nor treated nor
examined by any physician other than her family doctor, Dr. Azzara,
and a doctor for the insurance
company (s.m. pp. 39-43). She was never treated nor examined by a
Dr. Milton E. Robbins
(s.m. p. 43).
After
retaining the appellant as her attorney she only saw him once again
- sometime in February
of 1956 (s.m. p. 44). However, a few months later she telephoned the
appellant about a possible
separation action against her husband. The appellant declined to
handle such action and referred
Mrs. Wirschning to "another lawyer" (s.m. p. 45).
Mrs.
Wirschning never recieved any money for the injuries she sustained
in the accident (s.m. p.
46). At all times since the accident she lived at the same adress
and had a telephone (s.m. p. 46).
She telephoned the appellant "quite a few times" in 1956 and 1957 as
to the status of her claim (s.m.
pp. 47-48) but the appellant told her that it was a "nuisance claim"
and he never disclosed that it had
been settled (s.m. p. 48).
The
signature on a general release [People's Exhibit 2] was never signed
by her (s.m. p. 56) nor
had she authorized anybody to sign it for her (s.m. p. 57). In fact,
the letter "c" was omitted from the
handwritten signature of her last name which appeared on this
instrument. She never appeared before
the appellant to acknowledge that she signed this general release
nor did she authorize her husband
to sign on her behalf (s.m. pp. 57-58).
Similarily,
she had never endorsed, nor signed in any manner, her name on a
settlement check
in the sum of $400 [People's Exhibit 4] (s.m. pp. 58-59). In fact,
she had never known, prior to June,
1957, that her claim had been settled (s.m. pp. 62, 63).
On
cross-examination, Mrs. Wirschning insisted that she only visisted
Dr. Azzara, on
approximately four occasions, for treatment of her wrist injury (s.m.
pp. 71-73). The appellant,
together with her husband and her child, accompanied her to the
physical examination conducted by
the insurance carrier's physician (s.m. pp. 76-78). She didn't
remember whether or not she told the
physician for the insurance carrier of visits to her family doctor
or of injuries other that those she had
described on her direct examination (s.m. pp. 81-83).
She had
"probably made mistakes in spelling [her] new married name" at first
(s.m. pp. 218-219).
Her name had not been misspelled on any of the five places it had
been typewritten on the general
release (s.m. pp. 220-221). She could have left out the letter "c"
when she signed her name when first
married (s.m. p. 222). The hand-written endorsement of Mrs.
Wirschning's signature on the settlement
check bore the middle initial "A" but this initial did not appear on
the face of the check (s.m. pp. 226-
227). Mrs. Wirschning had not been treated for any nervous condition,
nor was she recieving any
sedation, at the time she consulted the appellant with reference to
a possible separation from her
husband (s.m. p. 239).
On redirect
examination, Mrs. Wirschning again testified that she had never
signed either People's
Exhibit 2 [the general release], nor endorsed People's Exhibit 3
[the check] (s.m. pp. 251-252), nor
had she recieved any money whatsoever as a result of the accident (s.m.
p. 253).
Frederick P.
Wirschning retained the appellant on January 9, 1956 in connection
with the accident
earlier that day (s.m. p. 263). He took his wife to Dr. Azzara on
four or five occasions (s.m. p. 268).
He never took his wife to a Dr. Milton Robbins nor had he ever heard
of Dr. Robbins until May, 1957
(s.m. pp. 268-270). He had not signed his wife's name to People's
Exhibit 2 [the general release] nor
ever authorized the appellant to do so (s.m. pp. 273-274). He had
not endorsed his wife's name on
People's Exhibit 3 [the check], nor ever authorized the appellant to
do so (s.m. p. 274). He did not
recieve any money as a result of the accident (s.m. p. 274).
Mr.
Wirschning telephoned the appellant "a few times" and went to his
office in 1956 and 1957
concerning the status of the case (s.m. pp. 274-275). The appellant
never revealed that the case
had been settled nor that $400 had been recieved in November, 1956 (s.m.
pp. 275-276).
On
cross-examination Mr. Wirschning admitted that he had not been
informed by his wife that
she had consulted the appellant in a separation action (s.m. p 280).
Mr. Wirschning also consulted
the appellant about income tax matters (s.m. p. 282) and as to a
claim for property damage to his
automobile (s.m. p. 292). He did not remember whether he had given
the appellant a paid bill for $160
for repairs to his car (s.m. pp. 303-304).
Mr.
Wirschning never recieved any bill or statement from the appellant
for services rendered to Mrs.
Wirschning in connection with the proposed separation (s.m. p. 330)
nor any letter from the appellant
concerning the separation (s.m. p. 332)
Nathan
Birchall, Nassau County Court Reporter, testified that People's
Exhibits 5 and 6 were true
and correct transcripts of the question and answer statements made
by the appellant to Assistant
District Attorney Edward Robinson on July 2nd and July 22nd, 1957 (s.m.
pp. 108, 109).
Dr. Milton
E. Robbins testified that the appellant, prior to July 5, 1957, had
referred accident
cases to him (s.m. pp. 336-337). On July 5, 1957 the appellant
requested Dr. Robbins to copy "in
his own handwriting" a typewritten bill "on a Mrs. Wirschning" (s.m.
p. 338). Dr. Robbins did so even
though he had never seen Mrs. Wirschning, nor treated her, nor
X-rayed her (s.m. pp. 339-340).
On July 8,
1957 the appellant visited Dr. Robbins and told him that he "decided
to retain some
money in this particular case" (s.m. p. 345). The appellant told Dr.
Robbins that he, the appellant,
had made out a false bill because "I had to get the money" (s.m. p.
345). When Dr. Robbins "became
panic-stricken" as to the possible consequences of the false bill,
he acquiesced in the appellant's
suggestion to destroy all of the doctor's X-rays to conceal the fact
that he had never X-rayed Mrs. Wirschning (s.m. pp. 346-348). He
delivered several hundred X-rays to the appellant (s.m. p. 349).
After consulting his brother-in-law, an attorney (s.m. p. 352), Dr.
Robbins told the full facts, in the
appellant's presence, to Assistant District Attorney Edward Robinson
(s.m. p. 355).
Dr. Robbins
had not signed or written the bill for alleged services rendered to
Mrs. Wirschning
which was submitted to the insurance company [People's Exhibit 9] (s.m.
pp. 356-357) and had never
seen Mrs. Wirschning at all prior to the trial (s.m. p. 359).
On
cross-examination Dr. Robbins testified that he made out the bill
for the alleged professional
services to Mrs. Wirschning "as a favor to the appellant" (s.m. p.
361) but had never done so for any
other lawyer. He reiterated that he made out the bill on July 5,
1957 - a year and a half after the time
when the alleged services had been rendered (s.m. pp. 365-366) - but
that he kept no records of bills
he had made (s.m. pp. 368-369). He never recieved any money for
these alleged services even though
he marked the bill "paid" (s.m. p. 374). Dr. Robbins admitted that
he had previously lied to the District
Attorney (s.m. p 385), but told the truth after consulting two
lawyers (s.m. p. 391).
Joseph
Rubacka, operator of a garbage truck, testified that the appellant
asked him, on July 8,
1957, to take some X-rays from the appellant (s.m. pp. 393-395). The
appellant paid him a dollar for
carting them away (s.m. p. 395).
Charles
Martino, who had been employed as a claim examiner by the Allstate
Insurance
Company, kept the files of all claims against the company which were
handled by him (s.m. pp. 399-
402). He worked on the file, until it was settled, of Mrs.
Wirschning's claim against one of the company's insured (s.m. pp.
406-408). On September 24, 1956 the appellant telephoned Martino
and told Martino that he had a $48 medical bill for Mrs. Wirschning
(s.m. p. 413). The amount of the
medical bill was a material consideration in Martino's offer to
settle the claim for $400 (s.m. p. 415).
On October 26, 1956 the appellant forwarded to Martino four general
releases and some medical bills
with a covering letter (s.m. pp. 415-417). After reciept of these
documents, Allstate Insurance
Company drew a check for $400 to the order of Mrs. Wirschning and
appellant (s.m. p. 419). Martino
ascertained that the general release was properly acknowledged and
relied on the genuineness of the
signature on the release before authorizing payment of the
settlement (s.m. p. 422). Martino would
not have issued the settlement check for $400 if he knew that Dr.
Robbin's bill was false (s.m. p. 428).
On
cross-examination Martino testified that the report made by the
physician for the insurance
carrier showed that there were "no objective findings" of the
claimed injuries sustained by Mrs.
Wirschning (s.m. pp. 448-449), but that Mrs. Wirschning claimed, to
this doctor, that she suffered
bursitis of the right shoulder and bruises of the right thigh (s.m.
p. 456). Moreover, the doctor's report
did not indicate that Mrs. Wirschning made any complaint of a wrist
injury (s.m. pp. 459-460). As the
report made by the physician for the insurance carrier revealed no
objective findings, Martino relied
more than usually on the doctor's bill submitted by the appellant as
to the fact of the claimed injuries
(s.m. p. 484).
Russell K.
Casey, claim manager for Allstate Insurance Company, had custody and
control of all
claims filed in the Flushing office during 1956 (s.m. pp. 497-498).
The file involving the claim made by
Mrs. Wirschning remained in the custody of the Allstate Insurance
Company until it was turned over to
the District Attorney in 1957 (s.m. p. 499).
George W.
Young, the Treasurer of the Island Savings and Loan Association in
Hempstead, New
York, testified that People's Exhibit 3 [the settlement check] was
cashed at his bank on November 14,
1956. He had compared the endorsement of appellant's name with the
appellant's signature on file with
the bank and it was his opinion that the appellant personally
endorsed this check.
George E.
Vincent, in charge of the Notary Department in the Nassau County
Clerk's Office,
testified that the records of his office showed that the appellant
was qualified as a Notary Public during
the years 1956 and 1957 (s.m. pp. 505-506).
Russell F.
Scott, a detective of the Nassau County Police Department, was
qualified as an expert
in questioned documents (s.m. pp. 507-508). He gave, as his opinion,
that Mrs. Wirschning did not
write the signatures which appeared on either the general release or
the settlement check (s.m. p.
513). Moreover, it was his opinion that Frederick Wirschning had not
written his wife's signature on
either the general release or the endorsment on the settlement check
(s.m. pp. 518-519). The
appellant conceded that Dr. Robbins had not signed the medical bill
for the alleged services rendered
Mrs. Wirschning which was sent to the insurance company (s.m. pp.
523-527).
---------------
*Page numbers not otherwise identified refer to the stenographer's
trial minutes.
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Point I
Guilt was established beyond
a reasonable doubt.
Evidence
of the defendant’s guilt was overwhelming. Mrs. Wirschning
testified in effect that
she did not sign the general release or endorse the check and didn’t
authorize anyone to sign her
name. She also testified that she didn’t receive any money from the
defendant in connection with the
accident.
Mrs.
Wirschning’s husband, Frederick, also testified that he did not sign
his wife’s name to the
general release and he didn’t endorse his wife’s name on the check,
and he did not authorize the
defendant to sign his wife’s name to either of the two instruments.
Detective
Russell Scott, the handwriting expert for the Nassau County Police
Department, testified
that in his opinion, Mrs. Wirschning did not sign either the general
release or the settlement check
and neither did her husband, Frederick.
Defendant
contended that Mrs. Wirschning did, in fact, sign both instruments.
He contended
generally that he kept the proceeds of the settlement check because
of a prior debt in relation to
legal services rendered Mrs. Wirschning in a separation action and
in the alternative, defendant
contended that he still had the money and he had been unable to
reach Mrs. Wirschning to give her
her share of the proceeds of the check.
The jury, by
their verdict, unanimously rejected the contentions of the defendant.
The jury, by their
verdict, have found as a fact that this defendant did utter the
forged general release and the
forged check and did, in fact, steal the money belonging to his
client, Mrs. Wirschning.
The weight
of the evidence was reviewed by the Appellate Division, First
Department, and the Court
unanimously affirmed the judgment of conviction.
The People
most respectfully submit to this Court that the evidence was legally
established beyond
a reasonable doubt.
Point II
Defendant
received a fair trial.
The
appellant’s brief makes it somewhat difficult for this District
Attorney to come
squarely to grips with the errors which the defendant claims
deprived him of a fair trial. We
shall do our best to answer all of the objections as we understand
them in connection with this trial.
The first
two pages of the appellant’s brief would correspond to the statement.
Pages 3 to 5
represents an outline of the opening to the jury by the trial
Assistant District Attorney.
Pages 5
through 13 are devoted to a summary of the defendant’s opening to
the jury.
Pages 13
through 15 make reference to certain pre-trial motions. In one
instance, the defendant
made a motion in the Supreme Court to inspect the Grand Jury minutes
and to dismiss the indictment.
The order denying the motion to inspect the Grand Jury minutes is
not appealable. (People v. Howell
[1958] 3 N.Y. 2d 672) The motion to dismiss the indictment was
made in the Supreme Court but the
indictment had already been transferred by order of the Supreme
Court to the County Court so the
motion to dismiss the indictment was not properly made in the
Supreme Court (Matter of Scheider v.
Aulisi [1954] 307 N.Y. 376) and so it was properly denied.
Thereafter,
the defendant made a motion to dismiss the indictment in the County
Court which
the Court treated as a demurrer. The demurrer was disallowed. The
Court will have a copy of the
indictment before it on the appeal and it is readily ascertainable
that the indictment adequately
identifies the crime so as to permit this defendant to know the
offense he is charged with and to
enable him to prepare for trial. Nowhere does the defendant
demonstrate that any of the pretrial
orders in relation to the indictment were improperly decided.
On page 15
the defendant commences a discussion under the heading "Judgment
contrary to the
weight of evidence". Of course, the weight of evidence is a question
for the trial jury and the Appellate
Division and is not open for consideration by this Court. (Art. VI,
Sec. 7, Const, N.Y.).
Apparently,
the first claim of error appears on page 21 if the appellant’s brief
wherein defendant
contends there was an abusive discretion by the trial Judge whereby
defendant was prevented from
a thorough cross-examination of some of the People’s witnesses (Defendant’s
brief, pp. 21-24). The
trial record consists of 991 pages, most of which was taken up by
cross-examination. There is
absolutely no proof that this defendant was deprived of a fair trial
because of any ruling by
the trial Judge in relation to cross-examination.
Cross-examination in this connection related
largely to secondary matters and consequently, the extent of the
cross-examination was largely a
matter of discretion for the trial Judge. (People v. Ramistella
[1954] 306 N.Y. 379). In particular, the
defendant claims that he was prevented a full opportunity to
cross-examine his former client, Elizabeth
Wirschning. The evidence shows that Mrs. Wirschning’s direct
examination ran from pages
33 of the record to 63, whereas the cross-examination ran from pages
63 to 249. It could
hardly be said that defendant was prevented from cross-examination.
Defendant
then discusses the testimony of Dr. Robbins (Defendant’s brief pp.
21-23), with no
apparent reason. Nowhere during this discussion does he
demonstrate the he was deprived of a fair
trial.
Page 23 of
the defendant’s brief contains a reference to certain motions for a
mistrial and as best
we can determine, one of the motions is based upon the
representation that the trial Judge testified
to the good character of Nat Birchall, who was a court stenographer.
The fact of the matter is, the trial
Judge did not, at any stage of the proceeding, testify as to the
good character of Nat Birchall. In fact,
the trial Judge did not testify in relation to any fact. Mr.
Birchall was the official court reporter for the
Nassau County Court with over thirty years of experience in this
capacity. He has transcribed, until
his retirement, all of the most important criminal cases prosecuted
in the Nassau County Court, many
of which have been reviewed by this Court. The unwarranted and
unsupported attack on the
integrity and reputation of Mr. Birchall as revealed by this record
was not justifiable.
Defendant
also claims that a motion for mistrial should have been granted
because of an
adjournment at the outset of the trial (Defendant’s brief, p.25).
The record shows that the trial was
adjourned from Thursday, November 6th until Wednesday November 12th
(124-127). Other business
of the Court made the Friday adjournment necessary and Tuesday was
an official holiday, so the trial
Judge decided, in his wisdom, to adjourn the case until Wednesday.
The adjournment was at the
discretion of the trial Judge and there is absolutely no showing
that there was an abuse or that
the adjournment deprived this defendant of a fair trial.
Defendant
once again turns his attack on Nat Birchall, the official
court stenographer, and
once again contends the Birchall’s stenographic notes should not
have been received into evidence (Defendant’s brief, pp. 26-27). The
substance of the defendant’s claim (Defendant’s brief, pp. 24-27)
is that Nat Birchall forged or altered the transcript of the
examination of the defendant
conducted by the Assistant District Attorney, Edward Robinson.
Birchall denied that he altered the
minutes and there was absolutely not one scintilla of evidence to
controvert this evidence
except the unsupported and uncorroborated testimony of the defendant,
himself. Birchall’s
part in the case and in particular, the authenticity or correctness
of the transcript of the Question
and Answer statement of the defendant was, at best, a question of
fact for the jury. The trial jury have
resolved this question of fact against the defendant and he has
failed to demonstrate that the trial jury
were in error.
The next
claim of error is that Arthur Nixon, the trial Assistant District
Attorney, during he
summation told the jury that Birchall’s recorded statements of the
defendant constitute a confession
(Defendant’s brief, pp. 27-29). The fact is the District Attorney
did not contend that the defendant had
confessed his guilt and this is not a fair implication to draw from
the record. The two statements of
the defendant which were recorded by Birchall contain some very
damaging admissions
against interest by the defendant although they do not raise to
the level of confession.
Defendant
also contends that the trial Court committed reversible error for,
like the trial Assistant,
they treated Birchall’s recorded statement of the defendant as a
confession, when, in truth and in fact,
it was not a confession (Defendant’s brief, pp. 28-31). The trial
Judge, during the course of instruction,
did not specifically label the statements as a confession although
he did say (p.949): "With respect to
that type of evidence, our law provides that a statement of a
defendant, whether in the course of
prejudicial proceedings or given to a private person, can be
introduced in evidence against him, but
that statement alone is not sufficient to warrant a defendant’s
conviction without additional proof that
the crime charged has been committed." Defendant’s exceptions and
requests (pp. 971-976) do not
contain any exception to this direction by the trial Judge and under
the circumstances of this case,
it certainly could not be said that the trial instruction was
prejudicial. (People v. Kingston [1960], 8
N.Y. 2d 384).
Defendant
also contends that prejudicial error was committed because the
prosecution failed to
call Dr. Azzara, who is the family physician of the Wirschnings and
who, incidentally, examined Mrs.
Wirschning as a result of the accident that led to this prosecution.
Defendant also claims that pre-
judice occurred because the People failed to call Detective Alva
Becker and finally, he was deprived
of a fair trial because the People failed to call James D. C.
Murray, who, according to the defendant,
is "an old Nassau County lawyer and friend of Frank Gulotta" (Defendant’s
brief p. 35) and who, in
this case, appeared to represent Dr. Robbins.
All of
these witnesses were readily available to the defendant and if he
wanted to prove
a fact through any one of the three witnesses, he was free to call
them to testify. As the case
developed before the jury, there was no necessity for the People to
call Mr. Murray or Detective Becker
or, for that matter, Dr. Azzara. The claim that the People
represented to the jury that these witnesses
had testified for the People and proved a fact against the defendant
is not borne out by the trial record.
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The Charge
(In Answer to Defendant’s Brief, pp.
36-41)
Defendant
contends that the instruction was unlawful in that the trial Judge
improperly marshaled
the evidence. The People contend the trial Judge discussed the
evidence and both summarized and
marshaled the evidence in a way that was both complete and fair to
the accused (951-959).
Defendant
also claims the instruction is defective in that the trial Judge
failed to instruct the jury on
the effect of character evidence. In this connection the defendant
contends that he took the stand and
testified as to his own good character. It is our understanding of
the law that a defendant does not
necessarily put his character at issue by testifying (People v.
Nuzzo [1945] 294 N.Y. 227; People v.
Johnston [1920] 228 N.Y. 332; People v. Richardson [1917]
222 N.Y. 103), and the general rule is
that if the defendant wishes to have his character weighed in
determining his innocence, he may
produce evidence of his good character by calling qualified
witnesses who can testify to his good
reputation in the community. There was no testimony in the record
by the defendant himself
and certainly no testimony by others called by the defendant as to
his reputation in the
community (People v. Van Gaasbeck[1907] 189 N.Y. 408).
Accordingly, it would seem that the
trial Judge made no mistake in omitting to instruct the jury in the
effect of character testimony on the
outcome of the trial.
In a similar
vein, defendant also contends that the trial Court committed
prejudicial error in failing
to charge as to the bad character of the People’s witnesses. The
People most respectfully submit the
trial record reveals a slanderous attempt by this appellant to
destroy by innuendo and
suggestion Mrs. Wirschning and everyone else connected with the
trial or the investigation.
The outrageous charges made by this defendant regarding the
reputation or character of the
Wirschnings or the public officials are unsupported and without any
basis in fact. There is not one
scintilla of evidence available to prove the bad character of the
Wirschnings or any other
witness who testified against the accused.
Defendant
also argues generally that error was committed in denying certain of
the defendant’s
requests to charge. The People contend the trial Judge ruled
properly in each case. Either the
substance of the charge had already been covered or the request was
clearly improper.
Finally, the
defendant contends that the record of the trial was fraudulently
altered by the Court
reporter, who, in this instance, is Michael Wowk and that his
conviction was brought about by a
vicious conspiracy including District Attorney Frank Gulotta and the
Chief Assistant, Edward
Robinson, both of whom were paid off with a Supreme Court judgeship.
There is no
support in the proof for these allegations.
This
defendant had a fair trial. The trial Judge gave the accused what
amounted to almost
unlimited leeway in conducting his trial. His contentions were
fairly presented to the jury and the
issue of fact has been clearly and fairly resolved against him.
In
conclusion, the judgments appealed from should be affirmed.
Respectfully submitted,
MANUEL W. LEVINE,
District Attorney, Nassau County,
Attorney for the Respondent.
HENRY P. DEVINE,
Assistant District Attorney,
of Counsel.
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