Shannon was stopped in a high-crime area for speeding and running a red light. Four police officers were present. They smell of marijuana was emanating from the car. When Shannon exited the car, they patted him down, searched inside the car where they found crack cocaine, cocaine and marijuana. They arrested Shannon, handcuffed and placed him in the back seat of a police car.
Defendant filed a motion to supress evidence. The trial court denied the order and the defendant appealed. The Appellate Court reversed.
Finding no exigency, the Court of Appeals held that the police reasonably could have obtained a telephonic warrant before searching the defendant's car. The court relied on the following factors:
1) The stop was unexpected and caused by motor vehicle infractions.
2) There was no indication that the police officers did not have sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b).
3) It was not late at night, the stop was in a residential area, and four police officers were initially present at the scene with defendant, who was alone.
4) No one had approached the vehicle during the stop.
5) There was no evidence that the police officers or potential evidence in the car were in danger.
6) Defendant was cooperative and had stepped away from the passenger compartment of the vehicle.
Tuesday, January 31, 2012
Monday, January 30, 2012
Consecutive Sentences & Parole Ineligibility
This week the New Jersey Appellate Division ruled that when a defendant is sentenced to consecutive sentences as a result of two separate charges in one indictment, for separate offenses arising out of the same set of circumstances, the trial court did not abuse its discretion and require two separate periods of parole ineligibility.
In State vs. Friedman the defendant pled guilty to three separate counts of second degree aggravated assault. The court sentenced the defendant three consecutive periods of incarceration for the three distinct crimes. As a result the defendant is required to serve three separate periods of parole ineligibility under NERA for each distinct guilty plea. The Appellate Division found this acceptable. See this NJ criminal case its entirety.
In State vs. Friedman the defendant pled guilty to three separate counts of second degree aggravated assault. The court sentenced the defendant three consecutive periods of incarceration for the three distinct crimes. As a result the defendant is required to serve three separate periods of parole ineligibility under NERA for each distinct guilty plea. The Appellate Division found this acceptable. See this NJ criminal case its entirety.
Saturday, January 28, 2012
State v. Shannon, 2011 WL 1562610 (App. Div. 2011)
Shannon was stopped for speeding. As the trooper approached the car, he could smell marijuana. Another trooper arrived as backup and the car was searched revealing a large quantity of marijuana, cocaine and heroin. Defendant was then placed under arrest, given his Miranda rights, and placed in the back of the police car. The trial judge found that there was probable cause to conduct the search and that exigent circumstances existed.
The main issue on appeal was whether there were sufficient circumstances that ripened into the exigency necessary to conduct a warrantless search. The Appellate Division rejected the finding of exigent circumstances justifying the warrantless search of the vehicle and suppressed the contraband.
Distinguishing Pena-Flores from this case, the Appellate Court considered the following factors in making the exigency determination:
1) There was no indication that the State Trooper lacked sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b);
2) It was not late at night, nor was the police officer impeded by tinted windows. He did not have to look through any windows because the odor of raw marijuana apparently was pungent enough for him to smell.
3) No one approached the vehicle during the stop. Nor was there any suggestion that any confederates were aware of the stop.
4) The officer did not even confiscate the contraband once he located it in the center console, but left it to be later secured. There was no concern that the evidence would not be preserved.
5) The State did not show that it was impracticable to obtain a telephonic warrant or that defendant could not have been placed under arrest.
6) The State did not show that the exigent circumstances were such that “ ‘law enforcement officers [did] not have sufficient time to obtain any form of warrant.’ “ Pena–Flores, supra, 198 N.J. at 30 (emphasis omitted) (quoting State v. Johnson, 193 N.J. 528, 556 n. 7 (2008).
Reversing the trial court’s decision, the Appellate Division held that there was no urgent need for the State Trooper to conduct a full search of the automobile during a daylight stop with another State Trooper assisting while defendant was outside of the vehicle and being watched over by the second trooper. The State made no effort to show that a telephonic warrant could not have been sought with expedition.
The main issue on appeal was whether there were sufficient circumstances that ripened into the exigency necessary to conduct a warrantless search. The Appellate Division rejected the finding of exigent circumstances justifying the warrantless search of the vehicle and suppressed the contraband.
Distinguishing Pena-Flores from this case, the Appellate Court considered the following factors in making the exigency determination:
1) There was no indication that the State Trooper lacked sufficient time to obtain a telephonic warrant pursuant to Rule 3:5–3(b);
2) It was not late at night, nor was the police officer impeded by tinted windows. He did not have to look through any windows because the odor of raw marijuana apparently was pungent enough for him to smell.
3) No one approached the vehicle during the stop. Nor was there any suggestion that any confederates were aware of the stop.
4) The officer did not even confiscate the contraband once he located it in the center console, but left it to be later secured. There was no concern that the evidence would not be preserved.
5) The State did not show that it was impracticable to obtain a telephonic warrant or that defendant could not have been placed under arrest.
6) The State did not show that the exigent circumstances were such that “ ‘law enforcement officers [did] not have sufficient time to obtain any form of warrant.’ “ Pena–Flores, supra, 198 N.J. at 30 (emphasis omitted) (quoting State v. Johnson, 193 N.J. 528, 556 n. 7 (2008).
Reversing the trial court’s decision, the Appellate Division held that there was no urgent need for the State Trooper to conduct a full search of the automobile during a daylight stop with another State Trooper assisting while defendant was outside of the vehicle and being watched over by the second trooper. The State made no effort to show that a telephonic warrant could not have been sought with expedition.
Friday, January 27, 2012
Summary Judgment granted to wrongfully convicted client
Sexual Assault Charges in New Jersey Ineffective -
Assistance Finding Is Held Basis for Legal Malpractice Judgment
As re-posted from, New Jersey Law Journal
Mary Pat Gallagher
January 19, 2012
A former client of the Public Defender's Office won summary judgment in a malpractice suit after a Mercer County judge gave collateral-estoppel effect to a finding that he received ineffective assistance of counsel.
Superior Court Judge Darlene Pereksta granted the motion on liability and causation in Hagan v. Office of the Public Defender, L-1346-10, on Jan. 6, leaving only damages to be litigated.
The ineffective-assistance finding led another judge to vacate Lewis Hagan's 2004 convictions of fourth-degree criminal sexual contact and third-degree child-welfare endangerment.
After direct appeals failed in 2007, Hagan petitioned for post-conviction relief, claiming his trial counsel, Assistant Deputy Public Defender Robert White III, failed to explore evidence that accusations made against him by the child's mother were retaliatory.
In October 2003, Hagan told the school principal of the 13-year-old, D.B., that her mother F.B., his girlfriend, was physically abusing her. When the principal informed him that D.B. was cutting class, he authorized giving her detention. The principal notified the Division of Youth and Family Services of Hagan's allegations, resulting in an investigation.
Hagan obtained a temporary domestic violence restraining order against F.B. on Nov. 17, 2003. She then obtained a similar order against him, claiming he made terroristic threats and burglarized her home.
On Dec. 4, 2003, F.B. reported to the police that D.B. claimed Hagan propositioned her sexually and touched her inappropriately a month earlier. Hagan was questioned and arrested. About a month later, Hagan was granted a final restraining order against F.B.
During a December 2004 trial, Hagan testified about his deteriorating relationship with F.B., but White did not present evidence about Hagan reporting F.B. for child abuse or the involvement of DYFS, despite Hagan's assertion that he told White about the DYFS referral in a May 2004 letter. White also failed to mention the restraining order against F.B., except briefly in his summation.
At the PCR hearing before Judge James Mulvihill, Hagan testified that he repeatedly told White about the restraining order and asked him to look into the DYFS report because it would show he was a responsible parent, but that White never answered his letters.
The report, obtained in the PCR case, confirmed Hagan's account.
Hagan also claimed he told White about a possible witness, Derrick Williams, who claimed he heard F.B. brag about setting him up.
White testified that he did not investigate the restraining orders for fear it would open the door for the state to mention the terroristic threat and burglary charges initially brought against Hagan but dismissed.
White said he was not aware of the DYFS referral but would not have used it because D.B.'s credibility was so weak he did not need to.
He also said he tried to contact Williams and learned he was in prison, and the public defender representing Williams refused to allow an interview.
White claimed that his defense strategy was to attack D.B.'s credibility and portray Hagan as a man who had a healthy relationship with his girlfriend and her children and that Hagan undermined that defense when he took the stand against his advice.
Mulvihilll vacated the conviction based on ineffective assistance, finding White should have used the evidence of Hagan's child-abuse report and the restraining order and should not have been deterred from speaking with Williams, and a reasonable probability existed that the outcome would have been different if he had done so.
Appellate Division Judges Joseph Yannotti and Thomas Lyons affirmed on Aug. 7, 2009, finding "substantial credible evidence" supported Mulvihill's decision.
Hagan was retried and acquitted on March 16, 2010. By then, he had been in custody for six years, mostly at the Adult Diagnostic and Treatment Center in Avenel.
In his motion for summary judgment in the malpractice case, Hagan contended that ineffective assistance is tantamount to malpractice, that the issues had been litigated to a final judgment to which the public defender and White were privy, and that fundamental fairness barred requiring him to relitigate them.
The public defender argued against issue preclusion on the grounds that the issues — whether Hagan was guilty in the PCR case and whether White was negligent in the civil case — were not identical, nor were the parties, because White and the office were not defendants in the PCR proceeding and had no lawyers representing them.
With summary judgment granted on liability and causation, Hagan's lawyer, Cherry Hill solo Jeffrey Hark, says he has moved for lost wages under a state law that allows wrongfully convicted people to recover $20,000 for each year of incarceration, plus legal fees. He also will seek noneconomic damages.
Public Defender spokesman Tom Rosenthal referred questions to the Attorney General's Office. Its spokesman, Lee Moore, declines comment.
White, now with Morris Starkman's Cherry Hill firm, did not return a call.
Assistance Finding Is Held Basis for Legal Malpractice Judgment
As re-posted from, New Jersey Law Journal
Mary Pat Gallagher
January 19, 2012
A former client of the Public Defender's Office won summary judgment in a malpractice suit after a Mercer County judge gave collateral-estoppel effect to a finding that he received ineffective assistance of counsel.
Superior Court Judge Darlene Pereksta granted the motion on liability and causation in Hagan v. Office of the Public Defender, L-1346-10, on Jan. 6, leaving only damages to be litigated.
The ineffective-assistance finding led another judge to vacate Lewis Hagan's 2004 convictions of fourth-degree criminal sexual contact and third-degree child-welfare endangerment.
After direct appeals failed in 2007, Hagan petitioned for post-conviction relief, claiming his trial counsel, Assistant Deputy Public Defender Robert White III, failed to explore evidence that accusations made against him by the child's mother were retaliatory.
In October 2003, Hagan told the school principal of the 13-year-old, D.B., that her mother F.B., his girlfriend, was physically abusing her. When the principal informed him that D.B. was cutting class, he authorized giving her detention. The principal notified the Division of Youth and Family Services of Hagan's allegations, resulting in an investigation.
Hagan obtained a temporary domestic violence restraining order against F.B. on Nov. 17, 2003. She then obtained a similar order against him, claiming he made terroristic threats and burglarized her home.
On Dec. 4, 2003, F.B. reported to the police that D.B. claimed Hagan propositioned her sexually and touched her inappropriately a month earlier. Hagan was questioned and arrested. About a month later, Hagan was granted a final restraining order against F.B.
During a December 2004 trial, Hagan testified about his deteriorating relationship with F.B., but White did not present evidence about Hagan reporting F.B. for child abuse or the involvement of DYFS, despite Hagan's assertion that he told White about the DYFS referral in a May 2004 letter. White also failed to mention the restraining order against F.B., except briefly in his summation.
At the PCR hearing before Judge James Mulvihill, Hagan testified that he repeatedly told White about the restraining order and asked him to look into the DYFS report because it would show he was a responsible parent, but that White never answered his letters.
The report, obtained in the PCR case, confirmed Hagan's account.
Hagan also claimed he told White about a possible witness, Derrick Williams, who claimed he heard F.B. brag about setting him up.
White testified that he did not investigate the restraining orders for fear it would open the door for the state to mention the terroristic threat and burglary charges initially brought against Hagan but dismissed.
White said he was not aware of the DYFS referral but would not have used it because D.B.'s credibility was so weak he did not need to.
He also said he tried to contact Williams and learned he was in prison, and the public defender representing Williams refused to allow an interview.
White claimed that his defense strategy was to attack D.B.'s credibility and portray Hagan as a man who had a healthy relationship with his girlfriend and her children and that Hagan undermined that defense when he took the stand against his advice.
Mulvihilll vacated the conviction based on ineffective assistance, finding White should have used the evidence of Hagan's child-abuse report and the restraining order and should not have been deterred from speaking with Williams, and a reasonable probability existed that the outcome would have been different if he had done so.
Appellate Division Judges Joseph Yannotti and Thomas Lyons affirmed on Aug. 7, 2009, finding "substantial credible evidence" supported Mulvihill's decision.
Hagan was retried and acquitted on March 16, 2010. By then, he had been in custody for six years, mostly at the Adult Diagnostic and Treatment Center in Avenel.
In his motion for summary judgment in the malpractice case, Hagan contended that ineffective assistance is tantamount to malpractice, that the issues had been litigated to a final judgment to which the public defender and White were privy, and that fundamental fairness barred requiring him to relitigate them.
The public defender argued against issue preclusion on the grounds that the issues — whether Hagan was guilty in the PCR case and whether White was negligent in the civil case — were not identical, nor were the parties, because White and the office were not defendants in the PCR proceeding and had no lawyers representing them.
With summary judgment granted on liability and causation, Hagan's lawyer, Cherry Hill solo Jeffrey Hark, says he has moved for lost wages under a state law that allows wrongfully convicted people to recover $20,000 for each year of incarceration, plus legal fees. He also will seek noneconomic damages.
Public Defender spokesman Tom Rosenthal referred questions to the Attorney General's Office. Its spokesman, Lee Moore, declines comment.
White, now with Morris Starkman's Cherry Hill firm, did not return a call.
Thursday, January 26, 2012
Internet services providers and communications data warrants
All internet service providers are required to keep a list for law enforcement to obtain of every person that is assigned at very unique and specific IP address for the computers that are provided internet services.
This process was created for unique billing for the computer IP companies. However, the unique IP address also enable law enforcement community to obtain the billing address and owner of each and every computer connected to their service. As a result, when the individual IP address shows up as a result of an KAZA, LIMEWIRE, or other file sharing program search for specific codes embedded in child pornography videos, law enforcement know where to go and get the billing and address information associated with the IP address.
Please call the Law Office of Hark & Hark at 866-HARK-LAW to discuss the ramifications of your actions in greater detail or visit our criminal lawyer website.
This process was created for unique billing for the computer IP companies. However, the unique IP address also enable law enforcement community to obtain the billing address and owner of each and every computer connected to their service. As a result, when the individual IP address shows up as a result of an KAZA, LIMEWIRE, or other file sharing program search for specific codes embedded in child pornography videos, law enforcement know where to go and get the billing and address information associated with the IP address.
Please call the Law Office of Hark & Hark at 866-HARK-LAW to discuss the ramifications of your actions in greater detail or visit our criminal lawyer website.
Tuesday, January 24, 2012
US V. Jones, 565 U.S.
(Decided January 23, 2012)
The US Supreme court has held that the attachment of GPS tracking devise on a vehicle travelling on the public highways is considered a search subject to 50 years of search and seizure case law. Accordingly, with out a warrant executed by a neutral and detached magistrate, the use of same violates the 4th Amendment of the US Constitution. The key to the court's decision was the invasion of the individual's right to privacy.
Holding:
The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.
Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
(a) The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Here, the Government’s physical intrusion on an "effect" for the purpose of obtaining information constitutes a "search." This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.
The US Supreme court has held that the attachment of GPS tracking devise on a vehicle travelling on the public highways is considered a search subject to 50 years of search and seizure case law. Accordingly, with out a warrant executed by a neutral and detached magistrate, the use of same violates the 4th Amendment of the US Constitution. The key to the court's decision was the invasion of the individual's right to privacy.
Holding:
The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.
Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
(a) The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Here, the Government’s physical intrusion on an "effect" for the purpose of obtaining information constitutes a "search." This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.
Tracking child pornography through the internet
The Federal Adam Walsh Act created a FBI department responsible for the identification and tagging of all possible videos containing child pornography with hidden computer codes which can be searched for from remote FBI locations through out the country.
State and Federal authorities will execute a search over the internet for the hidden codes they have imbedded in the videos which that have positively identified as actual abducted, or missing children who are performing the child pornography. Once their pier to pier searches identified IP addresses that contain the coded files through KAZA and LIMEWIRE and other file sharing programs, the law enforcement community will obtain search warrants to learn the identification of the owner of the IP address. Law enforcement will then come to the home with a search warrant, seize the computer in questions, and arrest the owner(s) for possession of illegal pornography.
Please call the Law Office of Hark & Hark at 866-HARK-LAW to discuss the ramifications of your actions in greater detail or visit our comprehensive sex crime website.
State and Federal authorities will execute a search over the internet for the hidden codes they have imbedded in the videos which that have positively identified as actual abducted, or missing children who are performing the child pornography. Once their pier to pier searches identified IP addresses that contain the coded files through KAZA and LIMEWIRE and other file sharing programs, the law enforcement community will obtain search warrants to learn the identification of the owner of the IP address. Law enforcement will then come to the home with a search warrant, seize the computer in questions, and arrest the owner(s) for possession of illegal pornography.
Please call the Law Office of Hark & Hark at 866-HARK-LAW to discuss the ramifications of your actions in greater detail or visit our comprehensive sex crime website.
Monday, January 23, 2012
File Sharing and child pornography
File Sharing: What it is and why it can lead to criminal charges related to Child Pornography
Federal & State law prohibits the possession of child pornography. In addition, the laws absolutely prohibit the distribution of any pictures. Current file sharing programs that allow the use of remote connected computers to act as pier-to-pier networks which distribute child pornography over the internet create a means of distribution of child pornography. If anyone has downloaded 'free' programs, such as KAZA, or LIMEWIRE, with the intentions of downloading music or adult porn, but also download child pornography, they will be subject to criminal charges.
Please call the Law Office of Hark & Hark at 866-HARK-LAW or visit our criminal website to discuss the ramifications of your actions in greater detail.
Federal & State law prohibits the possession of child pornography. In addition, the laws absolutely prohibit the distribution of any pictures. Current file sharing programs that allow the use of remote connected computers to act as pier-to-pier networks which distribute child pornography over the internet create a means of distribution of child pornography. If anyone has downloaded 'free' programs, such as KAZA, or LIMEWIRE, with the intentions of downloading music or adult porn, but also download child pornography, they will be subject to criminal charges.
Please call the Law Office of Hark & Hark at 866-HARK-LAW or visit our criminal website to discuss the ramifications of your actions in greater detail.
Wednesday, January 18, 2012
NJ Voluntary Prescription Monitoring Program ( PMP)
Effective September 1, 2011 New Jersey has instituted a 'voluntary' prescription monitoring program (PMP) for all licensed medical providers who are empowered with the ability to prescribe CDS and Human Growth Hormone dispensed on an out-patient basis. The intent of the program is to monitor those individuals who are attempting to obtain prescription medications through more than one source with the same single CDS prescription. Although the Medical Board and the Division of Consumer Affairs is couching this program and one to protect the patient, the real motive is more along the lines of BIG BROTHER.
The PMP will allow the Board of Medical Examiners and Attorney General's Office to monitor (1) ALL narcotic prescriptions any one doctor written based on your DEA AND NPI number, (2) the volume and regularity of the NARCOTIC prescriptions being written to any one patient, and (3) who and where the NARCOTIC prescription are being filled. Also, the program will allow a physician to investigate who else is writing any prescriptions for the patient under the doctor's care.
The effects of this monitoring program are significant in two ways. On the surface it looks like the patient will now not be able to lie to the doctor about his prescription history. Secondly, the doctor will be able to see who else is writing the narcotic prescription for the same patient. However, the monitoring program and access to this clearing house of patient information has created an additional standard of care. Now an attorney will be able to argue that if the patient's prescription history is not checked prior to any narcotic medication being prescribed, and there is an overdose or other illegal activity, the doctor may have criminal or civil culpability.
This clearing house location will primarily assist the DEA, FBI, Board of Medical Examiners, Attorney General's Office and local law enforcement prosecute doctors for writing illegal prescriptions which are filled by different locations and at a greater frequency that indicated by the medication in questions. FBI and DEA can not get the patient info, especially when cash is involved, as a result they are seeking to obtain the info from the source; where the narcotic prescription is originating.
For further details on matters such as these, please visit our Professional License Defense website.
The PMP will allow the Board of Medical Examiners and Attorney General's Office to monitor (1) ALL narcotic prescriptions any one doctor written based on your DEA AND NPI number, (2) the volume and regularity of the NARCOTIC prescriptions being written to any one patient, and (3) who and where the NARCOTIC prescription are being filled. Also, the program will allow a physician to investigate who else is writing any prescriptions for the patient under the doctor's care.
The effects of this monitoring program are significant in two ways. On the surface it looks like the patient will now not be able to lie to the doctor about his prescription history. Secondly, the doctor will be able to see who else is writing the narcotic prescription for the same patient. However, the monitoring program and access to this clearing house of patient information has created an additional standard of care. Now an attorney will be able to argue that if the patient's prescription history is not checked prior to any narcotic medication being prescribed, and there is an overdose or other illegal activity, the doctor may have criminal or civil culpability.
This clearing house location will primarily assist the DEA, FBI, Board of Medical Examiners, Attorney General's Office and local law enforcement prosecute doctors for writing illegal prescriptions which are filled by different locations and at a greater frequency that indicated by the medication in questions. FBI and DEA can not get the patient info, especially when cash is involved, as a result they are seeking to obtain the info from the source; where the narcotic prescription is originating.
For further details on matters such as these, please visit our Professional License Defense website.
Friday, January 6, 2012
NJ Lawyers Soliciting Traffic Ticket Offenders
In the last ten years New jersey lawyers have been soliciting citizens who have been
issued traffic tickets though computer access to the NJ court system records.
This week several local representatives have prepared a bill that would criminalize
any such solicitation.
The legislative intent reflects that that public has come to dislike the intrusion
to private lives the solicitation of attorney services when none have been sought
after. Unfortunately, this bill will not past constitutional muster because there
are several significant free speech issues involved. Commercial advertising has
helped to be a constitutionally protected form of speech by individuals and
corporations alike. As well, other states have attempted to regulate this type
of advertising and those state supreme courts have run into the same issues!
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