In the Matter of Burnbaum, Michael W. (Lawyers Weekly No. 10-188-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11352 IN THE MATTER OF MICHAEL W. BURNBAUM. November 14, 2013. Attorney at Law, Reciprocal discipline, Disbarment. Following his Federal felony drug conviction, the Supreme Court of Florida granted the petition of the respondent, Michael W. Burnbaum, for disciplinary resignation from the Florida bar. Approximately twelve years later, bar counsel petitioned, pursuant to S.J.C. Rule 4:01, § 16, as appearing in 425 Mass. 1319 (1997), for reciprocal discipline in Massachusetts. After a hearing, a single justice of this court ordered that the respondent be suspended for three years from the practice of law in Massachusetts. Bar counsel appeals. We conclude that the respondent should be disbarred. Background. The respondent was admitted to the bar in Massachusetts on June 7, 1977, and in Florida on November 27, 1984. In 1995, he was indicted in the United States District Court for the Southern District of Florida on charges of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. He eventually pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), admitting that he had met with an incarcerated client and received from the client a map to a warehouse where 145 kilograms of cocaine were located. The respondent sent that map to another client by facsimile transmission. In June, 1999, the respondent was sentenced to a 105-month term of incarceration, with four years of supervised release to follow. The respondent did not report the conviction to bar counsel in Massachusetts. S.J.C. Rule 4:01, § 12 (8), as appearing in 425 Mass. 1313 (1997). On November 12, 1999, the Supreme Court of Florida allowed the respondent’s petition for disciplinary resignation, and granted him leave to seek readmission after five years.[1] The respondent did not report the discipline to the Board of Bar Overseers (board) or to bar counsel, as he was required to do by S.J.C. Rule 4:01, § 16 (6). After learning of the conviction and discipline in Florida, on November 23, 2011, bar counsel filed a notice of conviction and petition for reciprocal discipline in the county court. A single justice of this court suspended the respondent from the practice of law for three years, declining to apply the suspension retroactively to the date of his […]
Lourie v. Lourie (Lawyers Weekly No. 10-189-13)
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‑11347 SUSAN D. LOURIE vs. DAVID S. LOURIE. November 14, 2013. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Susan D. Lourie, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3. We affirm. The petitioner sought relief from various orders of the Probate and Family Court, including at least one contempt order and an order directing her to meet with a guardian ad litem, to liquidate an asset, and to pay her share of the cost of the guardian ad litem from the proceeds. The single justice denied the petition on the basis that the petitioner has or had other avenues of relief available. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). The petitioner has not made such a showing. She has filed neither a memorandum in accordance with rule 2:21 nor a brief. In a two-page letter filed in this court, which she states she is submitting in lieu of a brief “for fear of full retaliation” against her and her children, she states that “the laws were not adhered to in [her] case,” but she does not elaborate; nor does she address the single justice’s judgment from which she appeals.[1] Nothing in the petitioner’s submission suggests that the single justice erred or abused his discretion in denying her petition or that this case presents the type of exceptional circumstances that require the exercise of this court’s extraordinary power of general superintendence. Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Susan D. Lourie, pro se. [1] Several months prior to filing this letter, the petitioner also filed a two-sentence document that she indicated was her “appeal” from the judgment of the single justice, which stated that “[t]his matter in its numerous initial, modified, unissued, reissued, orders has been brought to the attention of the Appeals Court to no avail. The petitioner, Mother, seeks to Appeal the decision of the Single […]
Commonwealth v. Cartagena (Lawyers Weekly No. 10-187-13)
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‑11382 COMMONWEALTH vs. ANGEL CARTAGENA. November 12, 2013. Practice, Criminal, Plea. Constitutional Law, Plea. More than a decade after accepting the defendant’s guilty pleas on two criminal complaints, the same judge allowed the defendant’s motion to withdraw his pleas. The Appeals Court reversed. Commonwealth v. Cartagena, 82 Mass. App. Ct. 1118 (2012). We granted the defendant’s application for further appellate review. Commonwealth v. Cartagena, 464 Mass. 1102 (2013). We now vacate the judge’s order and remand for further proceedings. Background. In a complaint filed in the Central Division of the Boston Municipal Court Department in 1995, the defendant was charged with various offenses, including uttering a false instrument, larceny, and receiving stolen property; a separate complaint filed in 1996 also charged the defendant with larceny and uttering a false instrument. In 1996, a judge of the Boston Municipal Court accepted the defendant’s guilty pleas to the charges. Approximately fifteen years later, the defendant filed a motion to withdraw his guilty pleas on the ground that the plea judge did not “conduct a sufficient colloquy regarding his rights to a trial by a jury or by a judge.” An audio recording of the plea proceeding no longer exists. See Rule 15 of the Special Rules of the Boston Municipal Court Department Sitting for Criminal Business (LexisNexis 2012-2013) (referencing Rule 308 of the Special Rules of the Boston Municipal Court Department Sitting for Civil Business).[1] The defendant’s motion was accompanied by his own affidavit, but not by an affidavit from plea counsel nor by affidavits from other attorneys who practiced before the plea judge during the relevant period. At a hearing on the motion, the judge stated that he had no memory of the particular colloquy in this case, but declined to apply a presumption of regularity to the proceeding because he lacked confidence that his plea colloquy had been adequate. Discussion. “A judge should . . . not accept a plea unless satisfied that the plea is voluntary and that the defendant understands the nature of the charges.” Commonwealth v. Quinones, 414 Mass. 423, 431 (1993). When a guilty plea is challenged, it is ordinarily the Commonwealth’s burden to demonstrate that a plea was knowingly and voluntarily made. Commonwealth v. Lopez, 426 Mass. 657, 660 (1998), quoting Commonwealth v. […]
Commonwealth v. Quint Q., a juvenile (Lawyers Weekly No. 11-135-13)
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‑1154 Appeals Court COMMONWEALTH vs. QUINT Q., a juvenile. No. 12‑P‑1154. Suffolk. May 8, 2013. ‑ November 12, 2013. Present: Cypher, Vuono, & Meade, JJ. Constitutional Law, Admissions and confessions, Parent and child, Voluntariness of statement, Waiver of constitutional right by juvenile. Practice, Criminal, Motion to suppress, Waiver, Voluntariness of statement. Waiver. Words, “Interested adult.” Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on March 29, 2011. A pretrial motion to suppress evidence was heard by Peter M. Coyne, J. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk; and the appeal was reported by him to the Appeals Court. Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth. Michael A. Contant for the juvenile. CYPHER, J. A complaint issued in the Suffolk County Division of the Juvenile Court Department charging the juvenile with breaking and entering in the daytime with the intent to commit a felony therein, G. L. c. 266, § 18. The juvenile filed a motion to suppress statements he made at the police station during an interrogation. During the interrogation, the juvenile, age fifteen years and eight months at that time, made oral admissions that earlier that day, he had taken a tool from his high school and, in the company of two friends, used it to pry open the door to a house located at 35 Darling Street in the Mission Hill area of Boston, which the three then entered. Later in the fifty-minute interview, the juvenile admitted to breaking into five other homes on earlier dates. The statement was electronically recorded with his consent, and that audio recording was admitted in evidence at the suppression hearing. In the juvenile’s motion papers, he argued that he was not afforded an opportunity to consult with an interested adult, i.e., his mother, and that the police use of an interrogation technique known as “minimization,” combined with implied promises of leniency, rendered his statement involuntary. After a review of the exhibits and an evidentiary hearing, a judge allowed the motion, concluding that the juvenile’s statement was not voluntary because he had been coerced by the “domineering” conduct of his mother throughout the interview, […]
Commonwealth v. Canty (Lawyers Weekly No. 10-186-13)
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‑11315 COMMONWEALTH vs. JOSEPH J. CANTY. Worcester. September 3, 2013. ‑ November 6, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Motor Vehicle, Operating under the influence. Intoxication. Evidence, Intoxication, Opinion, Indictment, Guilty plea. Practice, Criminal, Witness, Indictment, Plea. Witness, Police officer. Due Process of Law, Elements of criminal offense, Notice, Plea. Constitutional Law, Indictment, Plea. Indictments found and returned in the Superior Court Department on July 23, 2009. The cases were tried before Janet Kenton-Walker, J., and a motion to vacate conviction was considered by her. The Supreme Judicial Court granted an application for direct appellate review. James P. Vander Salm for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. GANTS, J. This case presents two issues. First, where a defendant is charged with operating a motor vehicle while under the influence of alcohol, may a police officer offer testimony that, in his opinion, the defendant’s ability to drive was diminished by the consumption of alcohol, or that the defendant was “probably impaired” by alcohol? Second, where an indictment identifies the statute that a defendant has allegedly violated but fails to allege an essential element of proof in describing the offense, does due process require that a guilty plea to that indictment be vacated because the indictment fails to charge a crime? As to the first issue, we conclude that a police officer who observed the defendant may offer an opinion as to the defendant’s level of intoxication arising from the consumption of alcohol, but may not offer an opinion as to whether the defendant’s intoxication impaired his ability to operate a motor vehicle. As to the second issue, we conclude that an indictment may charge a crime without alleging all the essential elements of proof, and that due process does not require vacating the defendant’s conviction arising from his guilty plea where the defendant has fair notice of the crime charged and fails to show that he did not understand that he was pleading guilty to that crime. Background. At approximately 1:38 A.M. on March 8, 2009, Leicester police Officer Frank Bulman was parked on Main Street monitoring traffic when he saw a motor vehicle traveling in the westbound lane come within four inches of striking the curb. He followed […]
Vintimilla v. National Lumber Company (Lawyers Weekly No. 11-134-13)
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‑1101 Appeals Court MIGUEL VINTIMILLA vs. NATIONAL LUMBER COMPANY. No. 12‑P‑1101. Plymouth. April 5, 2013. ‑ November 6, 2013. Present: Vuono, Carhart, & Agnes, JJ. Negligence, Entrustment, Forklift truck. Contract, Equipment lease. Bailment. Practice, Civil, Summary judgment. License. Civil action commenced in the Superior Court Department on April 10, 2008. A motion to amend the complaint was heard by Thomas F. McGuire, Jr., J., and the case was heard by him on a motion for summary judgment. Douglas Smith for the plaintiff. Joseph G. Yannetti (Christian A. Young with him) for the defendant. CARHART, J. The plaintiff appeals from the allowance of the defendant’s motion for summary judgment on his claim for negligent entrustment and the denial of his motion to amend his complaint. We affirm. Background. The plaintiff, Miguel Vintimilla, filed a complaint against National Lumber Company (National Lumber) alleging negligent entrustment. Subsequently, Vintimilla moved to amend his claim by adding a count alleging unfair or deceptive acts or practices pursuant to G. L. c. 93A. The judge, in a detailed memorandum, allowed summary judgment in favor of National Lumber. At the same time, the judge denied Vintimilla’s motion to amend the complaint to add a c. 93A count on the grounds that the motion was futile in light of his allowance of summary judgment on the negligent entrustment count. The facts are not in dispute and in order to frame the issue on appeal, we recite them as stated by the judge in his memorandum of decision: “On November 26, 2007, National Lumber leased a forklift to Vermont Construction [Company (Vermont Construction)]. The lease agreement stated that the lessee ‘shall use the equipment in a careful and proper manner and shall comply with all national, state, municipal, police and other laws, ordinances and regulations in anywise [sic] relating to the possession, use, or maintenance of the equipment.’ This was the first time National Lumber leased equipment to Vermont Construction. National Lumber’s officers and employees did not know, and did not inquire, whether Vermont Construction’s employees had a license to operate the forklift or whether they were competent to operate forklifts. National Lumber’s officers and employees were unaware of any practice of using a forklift to lift a person into the air. Michael Gosselin, a sales representative of National […]
Commonwealth v. Gorman (Lawyers Weekly No. 11-133-13)
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‑743 Appeals Court COMMONWEALTH vs. SAQUAN I. GORMAN. No. 12‑P‑743. Norfolk. April 12, 2013. ‑ November 1, 2013. Present: Rubin, Fecteau, & Hines, JJ. Home Invasion. Armed Assault in a Dwelling. Assault by Means of a Dangerous Weapon. Constitutional Law, Search and seizure. Due Process of Law, Seizure of motor vehicle. Search and Seizure, Motor vehicle. Practice, Criminal, Motion to suppress, Required finding, Instructions to jury. Evidence, Joint venturer. Firearms. Indictments found and returned in the Superior Court Department on August 13, 2009. A pretrial motion to suppress evidence was heard by Janet L. Sanders, J., and the cases were tried before Kenneth J. Fishman, J. Judith Ellen Pietras for the defendant. Kevin J. Powers, Assistant District Attorney, for the Commonwealth. RUBIN, J. On August 13, 2009, a grand jury in Norfolk County returned indictments charging the defendant and two codefendants[1] with a number of offenses in connection with an incident at a home in Randolph. Police had apprehended them after stopping the vehicle in which they were driving away from the scene of the incident. The defendant moved to suppress evidence gathered as a result of the vehicle stop, but this motion was denied. After a jury trial in Superior Court, the defendant was convicted as a joint venturer of home invasion, armed assault in a dwelling house, and assault by means of a dangerous weapon. He was acquitted of the charge of possession of a firearm while committing a felony. On appeal, the defendant challenges the denial of his motion to suppress evidence obtained in connection with the vehicle stop, the sufficiency of the evidence demonstrating both his intent to commit the offenses as a joint venturer and his knowledge that the principal had a weapon, and the omission of a jury instruction that he could only be convicted as a joint venturer in the charged offenses if the Commonwealth proved he knew that the principal was armed. We hold that the defendant’s motion to suppress was correctly denied, and that the evidence presented was sufficient to support the convictions. We conclude, however, that, on the facts of this case, the trial judge’s failure to instruct the jury with respect to the requirement that the defendant knew that the principal was armed created a substantial risk […]