Commonwealth v. Rosado (Lawyers Weekly No. 11-109-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1778 Appeals Court COMMONWEALTH vs. JESUS M. ROSADO. No. 11‑P‑1778. Hampden. May 10, 2013. ‑ August 30, 2013. Present: Grasso, Kantrowitz, & Sikora, JJ. Search and Seizure, Automobile, Reasonable suspicion. Constitutional Law, Search and seizure, Reasonable suspicion. Practice, Criminal, Motion to suppress. Complaint received and sworn to in the Holyoke Division of the District Court Department on January 3, 2011. A pretrial motion to suppress evidence was heard by Bethzaida Sanabria‑Vega, J. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Katherine E. McMahon for the Commonwealth. Merritt Schnipper for the defendant. GRASSO, J. Before us is the Commonwealth’s interlocutory appeal from an order of a District Court judge allowing the defendant’s motion to suppress evidence seized during a warrantless stop of a motor vehicle. After an evidentiary hearing at which Massachusetts State Trooper David Pinkham was the sole witness, the judge concluded that Pinkham lacked constitutional justification to (1) open the door to the defendant’s vehicle, (2) seize an item that was not an illegal weapon, and (3) remove the defendant from the vehicle and restrain him. We conclude that the judge erred in applying the law to the facts found and reverse. 1. Background. Charged with various drug and other offenses, the defendant moved to suppress the evidence seized during a motor vehicle stop that occurred in the early morning hours of January 2, 2011, in Holyoke. The defendant contended that Pinkham (1) impermissibly opened the door to his vehicle based on the observation of an item Pinkham believed was an illegal weapon, (2) improperly removed the defendant from the vehicle, and (3) used more force than the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights permit in a Terry stop.[1] 2. Facts. In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).[2] The assessment of witness credibility is […]
Commonwealth v. Felt (Lawyers Weekly No. 10-163-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11370 COMMONWEALTH vs. RICHARD FELT. Middlesex. May 7, 2013. ‑ August 30, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Practice, Civil, Sex offender, Dismissal. Evidence, Sex offender. Witness, Expert, Psychiatric examination. Statute, Construction. Civil action commenced in the Superior Court Department on July 13, 2011. A motion to dismiss was heard by Garry V. Inge, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. James D. Kerr, Assistant District Attorney (Heidi Lyn Gosule, Assistant District Attorney, with him) for the Commonwealth. David Hirsch, Committee for Public Counsel Services, for the defendant. BOTSFORD, J. The defendant, Richard Felt, is the subject of a petition for commitment under G. L. c. 123A, § 12. A judge in the Superior Court allowed a motion for the defendant’s counsel to be present during interviews conducted by qualified examiners pursuant to G. L. c. 123A, § 13 (a) (§ 13 [a]).[1] One of the two qualified examiners refused to conduct the interview with counsel in the room and submitted to the court her qualified examiner report based on her review of the defendant’s records only. The questions we consider in this case are whether the “examination” that a qualified examiner must undertake under § 13 (a) as the first step of a sexually dangerous person commitment process must include a personal interview of the defendant in accordance with the terms of a court order permitting his counsel to be present; and, if so, what consequences flow from the failure of the qualified examiner to conduct such an interview. We conclude that a personal interview is generally a required component of a § 13 (a) examination, regardless of whether counsel is present. Nevertheless, in the circumstances of this case, dismissal of the Commonwealth’s petition was not warranted as a remedy for the refusal of one of the qualified examiners to conduct the interview with counsel in attendance, where the other qualified examiner personally interviewed the defendant as part of his § 13 (a) examination and filed with the court a report expressing the opinion that the defendant is a sexually dangerous person. On remand, however, the Commonwealth may not use at trial the report or testimony of the qualified examiner who refused to interview the defendant. 1. Background. In 1988, a […]
South End Brothers Indicted on Charges of Defrauding One Fund
Branden Mattier, 22, was arrested at his South End home earlier this summer. He and his brother, Domunique Grice, 27 were indicted on fraud charges Thursday by the Massachusetts Attorney General. South End Patch News
South End Brothers Indicted on Charges of Defrauding One Fund
Branden Mattier, 22, was arrested at his South End home earlier this summer. He and his brother, Domunique Grice, 27 were indicted on fraud charges Thursday by the Massachusetts Attorney General. South End Patch News
Attention Artists: Grants Available from Boston Cultural Council
Grants support a variety of artistic programs and activities such as exhibits, festivals, field trips, short-term artist residencies or performances in schools, workshops and lectures. South End Patch News
Commonwealth v. Hanright (Lawyers Weekly No. 10-161-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11404 COMMONWEALTH vs. SCOTT HANRIGHT. Middlesex. May 6, 2013. ‑ August 28, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Joint Enterprise. Homicide. Felony‑Murder Rule. Intent. Robbery. Assault and Battery. Assault and Battery by Means of a Dangerous Weapon. Assault and Battery on Certain Public Officers and Employees. Firearms. Practice, Criminal, Capital case, Dismissal, Instructions to jury. Probable Cause. Evidence, Joint venturer, Intent. Indictments found and returned in the Superior Court Department on March 31, 2011. A motion to dismiss was considered by Thomas P. Billings, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Casey E. Silvia, Assistant District Attorney (Marian T. Ryan, District Attorney, with her) for the Commonwealth. John P. Osler, Committee for Public Counsel Services, for the defendant. SPINA, J. A grand jury returned twenty-two indictments against the defendant, Scott Hanright, including indictments charging murder in the first degree and various counts of masked armed robbery. The charges arose out of a robbery, perpetrated by Domenic Cinelli, of a jewelry counter at a department store in Woburn on December 26, 2010, and from other offenses Cinelli committed while attempting escape, including shooting a police officer to death. The Commonwealth is proceeding against the defendant as a joint venturer and coconspirator. In relevant part, the defendant moved to dismiss indictments relating to Cinelli’s offenses committed outside the department store as Cinelli tried to flee the scene of the armed robbery on the ground that the charges were not supported by sufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). These charges include: (1) assault and battery with a deadly weapon against a person over sixty years or older against Officer John Maguire, G. L. c. 265, § 15A; (2) assault and battery on a public employee against Maguire, G. L. c. 265, § 13D; (3) assault by means of a dangerous weapon against Officer Glenn Grammar, G. L. c. 265, § 15B; (4) assault by means of a dangerous weapon against Douglas Matney, G. L. c. 265, § 15B; and (5) discharge of a firearm within 500 feet of a building, G. L. c. 269, § 12E. In addition, the defendant moved to dismiss so much of the indictment alleging the murder of Maguire as included any theory of murder other than felony-murder. The […]
Massachusetts Teachers’ Retirement System v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-162-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11287 MASSACHUSETTS TEACHERS’ RETIREMENT SYSTEM vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & another.[1] Suffolk. May 6, 2013. ‑ August 28, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Contributory Retirement Appeal Board. Retirement. Public Employment, Retirement. School and School Committee, Retirement benefits. Interest. Administrative Law, Regulations, Agency’s interpretation of regulation, Agency’s interpretation of statute. Regulation. Statute, Construction. Civil action commenced in the Superior Court Department on August 20, 2010. The case was heard by Janet L. Sanders, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. James C. O’Leary (James H. Salvie, Special Assistant Attorney General, with him) for the plaintiff. Kirk G. Hanson, Assistant Attorney General, for Contributory Retirement Appeals Board. Timothy J. Smyth, for Boston Retirement Board, amicus curiae, submitted a brief. DUFFLY, J. We are called upon to settle a dispute between two administrative agencies, the Massachusetts Teachers’ Retirement System (MTRS) and the Contributory Retirement Appeal Board (CRAB), concerning the validity of a regulation promulgated by MTRS. James T. Walsh had been a professional electrician for many years when, in 1980, he was certified by the Department of Education to teach in his occupational field. In October, 1987, he began full-time employment at a vocational school and became a member of MTRS. In December, 2005, before the effective date of his retirement the following June, Walsh applied to MTRS to increase his anticipated retirement allowance by adding to his “creditable service” (his years of service as a member of MTRS) through the “buyback” of three years of creditable service, based on his work experience as an electrician. Walsh sought credit for service performed from February 1, 1977, through January 31, 1980. This buyback required Walsh to pay certain “makeup payments” into the annuity savings fund of MTRS, in accordance with a formula set forth in G. L. c. 32, § 4 (1) (h1/2) (trade service credit statute). That statutory formula calls for “buyback interest” to be paid on such makeup payments. Pursuant to 807 Code Mass. Regs. § 14.05 (2005), a regulation promulgated by MTRS, MTRS assessed buyback interest to commence as of February 1, 1977, the beginning of the three-year period for which Walsh sought trade service credit. […]
Categories: News Tags: 1016213, Appeal, Board, Contributory, Lawyers, massachusetts, Retirement, System, Teacher's, Weekly
Commonwealth v. Marques (Lawyers Weekly No. 11-107-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑662 Appeals Court COMMONWEALTH vs. PAULO A. MARQUES. No. 12‑P‑662. Plymouth. May 7, 2013. ‑ August 28, 2013. Present: Kafker, Green, & Wolohojian, JJ. Practice, Criminal, Plea, Admission to sufficient facts to warrant finding, Presumptions and burden of proof. Alien. Complaint received and sworn to in the Brockton Division of the District Court Department on March 28, 2005. A motion to withdraw a guilty plea was heard by Paul C. Dawley, J. Edward P. Harrington for the defendant. Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. In 2005, the defendant admitted to sufficient facts to support a complaint charging him with assault by means of a dangerous weapon (glass bowl), assault and battery, and threats to commit a crime.[1] A judge of the District Court accepted the defendant’s change of pleas, continued the cases without a finding, and imposed eleven months of probation. Six years later, following a trip to Cape Verde, the defendant was denied reentry into the United States because of the disposition of the earlier criminal charges. The defendant consequently filed a motion to withdraw his pleas, arguing that the judge did not comply with G. L. c. 278, § 29D, in that he did not advise the defendant that the particular disposition of his case, i.e., an admission to sufficient facts, could have immigration consequences., After a nonevidentiary hearing, a judge (who was not the plea judge) denied the motion in an endorsement order. We reverse because the Commonwealth did not meet its burden of establishing that the defendant received the mandatory statutory immigration warning. At the time of the defendant’s pleas, G. L. c. 278, § 29D, required that defendants be advised by a judge, “If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States” (emphasis added). G. L. c. 278, § 29D, as amended through St. 2004, c. 225, § 1. “To comply with the statute, the judge must give the alien warning, preferably by reading the single quoted sentence directly from the statute.” Commonwealth v. Hilaire, 437 Mass. 809, 819 (2002). […]
How Do You Use Credit: For Richer or For Poorer?
Learn how to reap the benefits associated with certain credit cards and increase your gains. South End Patch News
Sano, et al. v. Tedesco, et al. (Lawyers Weekly No. 11-108-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑746 Appeals Court JOSEPH M. SANO & another[1] vs. PATRICIA A. TEDESCO, trustee,[2] & others.[3] No. 12‑P‑746. Essex. January 2, 2013. ‑ August 28, 2013. Present: Trainor, Brown, & Milkey, JJ. Condominiums, Common area, Common expenses, Master deed. Real Property, Condominium, Deed. Deed, Construction. Civil action commenced in the Superior Court Department on February 7, 2011. The case was heard by Timothy Q. Feeley, J., on motions for summary judgment. Robert J. Gizmunt for the defendants. Joseph M. Sano for the plaintiffs. BROWN, J. At issue in this case is whether the costs associated with repair of balconies affixed to the Portland Condominium Trust (Portland) building are a common expense or the responsibility of individual unit owners. The plaintiffs, Joseph and Susan Sano, owners of a unit without an adjacent balcony, commenced this action seeking a judgment declaring that the individual owners whose units are adjacent to each balcony are responsible for its repairs. The defendant trustees, each of whom owns a unit with an adjoining balcony, contend the repairs to the balconies are to a “common area” and the cost of repairs should be paid from the common fee assessments. On cross motions for summary judgment, a Superior Court judge ruled that the balconies and the beams supporting them are part of the units they serve and are not common areas. We affirm in part and reverse in part. Background. The essential facts are not in dispute. Portland, comprising a single residential building on land located in Lynn, was organized in 1980 as a condominium, pursuant to G. L. c. 183A, inserted by St. 1963, c. 493. Putting aside the basement containing a single unit, each of the three main floors of the building has an identical rectangular layout with eight units per floor. The units on each floor are adjacent to a single central interior hallway, four on each side of the hallway. On the exterior of each floor, two balcony structures are affixed, one on each side of the building that is parallel to the central hallway. Although the record does not contain their dimensions, the floor plans recorded with the condominium master deed show that the center of each balcony is adjacent to the interior wall that separates two middle units, and the […]