Miles-Matthias, et al. v. Zoning Board of Appeals of Seekonk, et al. (Lawyers Weekly No. 11-010-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13‑P‑635 Appeals Court PAUL MILES-MATTHIAS & another[1] vs. ZONING BOARD OF APPEALS OF SEEKONK & another.[2] No. 13‑P‑635. Bristol. November 14, 2013. ‑ February 11, 2014. Present: Rapoza, C.J., Cypher, & Fecteau, JJ. Zoning, Timeliness of appeal, Accessory building or use, Board of appeals: decision, By‑law. Notice, Timeliness. Civil action commenced in the Superior Court Department on August 16, 2010. The case was heard by Robert J. Kane, J. Marc E. Antine for John Dias. Gregory D. Lorincz (John Jacobi, III with him) for the plaintiffs. FECTEAU, J. Defendant John Dias appeals from a Superior Court judgment in favor of the plaintiffs, Paul Miles-Matthias and Linda Coffin, which overturned a zoning board decision that Dias’s proposed common driveway was permissible under the town of Seekonk’s zoning by-law. Specifically, Dias claims the judge erred in finding (1) that the Superior Court and the zoning board had jurisdiction because the plaintiffs’ appeal to the zoning board was timely, (2) that the plaintiffs, as abutters, had the requisite standing to bring the action, and (3) that Seekonk’s zoning by-law prohibits common driveways. The judge correctly concluded that the plaintiffs, as abutters, have standing to prosecute the appeal. However, because the plaintiffs’ appeal was untimely and the decision below relied upon misinterpretation of the zoning by-law, we reverse. 1. Background. The basic facts found by the judge and which underlie this appeal are not disputed. The plaintiffs own and reside at premises known as 363 Ledge Road in the town of Seekonk, which they purchased on June 28, 1985. The plaintiffs and another neighbor share an easement in common over a pathway of land owned partially by the plaintiffs and partially by Dias. This common driveway was in existence before Seekonk adopted its first zoning by-law in 1942. After the plaintiffs purchased their land, a home was constructed on what is now known as lot 4 and on December 21, 2007, Dias purchased property to the south and east of the plaintiffs, including lot 4 and what are now known as lots 1-3. On March 11, 2008, the Seekonk planning board endorsed Dias’s plan to divide his land off Ledge Road into six lots as an approval not required plan (ANR plan) pursuant to G. L. c. 41, § 81P. Although lots […]
Commonwealth v. Bernard (Lawyers Weekly No. 11-009-14)
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 13‑P‑682 Appeals Court COMMONWEALTH vs. MICHAEL BERNARD. No. 13‑P‑682. Essex. November 7, 2013. ‑ February 7, 2014. Present: Wolohojian, Agnes, & Sullivan, JJ. Motor Vehicle, Registration. Practice, Criminal, Motion to suppress, Findings by judge. Evidence, Photograph, Credibility of witness. Complaint received and sworn to in the Lawrence Division of the District Court Department on June 10, 2011. A pretrial motion to suppress evidence was heard by Debra Shopteese, 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. Ronald E. DeRosa, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant. WOLOHOJIAN, J. The Commonwealth appeals from a District Court judge’s ruling allowing the defendant’s motion to suppress. At issue is a State trooper’s decision, based on G. L. c. 90, § 6, to stop a vehicle because it had a tinted plastic cover over its rear license plate. The statute requires that “number plates shall be kept clean with the numbers legible and shall not be obscured in any manner by the installation of any device obscuring said numbers.” G. L. c. 90, § 6, as appearing in St. 1968, c. 293. After briefing and an evidentiary hearing, which included introduction by the Commonwealth of a color photograph showing the license plate and its cover, the judge found that the license plate was clear, with all numbers and letters visible and that “[a]s such, the license plate was not obstructed when the defendant was stopped pursuant to” G. L. c. 90, § 6. Because there was no other basis for the stop, the judge allowed the defendant’s motion to suppress. We affirm. We set out the judge’s findings and rationale: “Based on the credible evidence presented at an evidentiary hearing held on July 17, 2012, the Defendant’s motion is allowed and the Court finds as follows: “On June 9, 2011, while on a routine patrol in a marked cruiser, State Trooper Sweeney[] observed the Defendant operating a motor vehicle on Route 495 at approximately 4:40 p.m. “The operator drove appropriately and no moving violations were observed. “Trooper Sweeney observed a plastic cover over the rear license plate of the Defendant’s motor […]
Claudio v. Commonwealth (Lawyers Weekly No. 10-018-14)
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‑11489 PEDRO CLAUDIO, JR. vs. COMMONWEALTH. February 5, 2014. Supreme Judicial Court, Superintendence of inferior courts. Pedro Claudio, Jr., appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. We affirm. Claudio pleaded guilty in 1995 to multiple charges. On three separate occasions thereafter, he filed motions to withdraw his pleas, each of which was denied by the plea judge. In 2011, he appealed from the denial of the third such motion. The Appeals Court affirmed, and we denied further appellate review. Commonwealth v. Claudio, 83 Mass. App. Ct. 1108 (2013), S.C., 466 Mass. 1103 (2013). Along the way Claudio filed two petitions in the county court pursuant to G. L. c. 211, § 3 — one before his appeal was docketed in the Appeals Court, and one after the appeal had been decided and his application for further review was pending. Both petitions were denied. This is his appeal from the denial of the second petition.[1] The single justice was correct to deny the petition. Claudio’s recourse, after his motion to withdraw his pleas was denied in the trial court, was to appeal to the Appeals Court and, if dissatisfied with the result there, to apply for further appellate review. See Mass. R. A. P. 27.1, as amended, 441 Mass. 1601 (2004). That is the normal appellate process; he fully availed himself of it. This court’s extraordinary power of general superintendence is not meant to be used in lieu of the normal process or to obtain an additional layer of review after the normal process has run its course. See Cruthird v. Commonwealth, 444 Mass. 1002 (2005); Votta v. Police Dep’t of Billerica, 444 Mass. 1001 (2005). Judgment affirmed. The case was submitted on briefs. Pedro Claudio, Jr., pro se. Elin H. Graydon, Assistant District Attorney, for the Commonwealth. [1] In his brief before the full court, he also appears to be asking, once again, for further appellate review of the Appeals Court’s decision. Further review has already been denied. Full-text Opinions
Commonwealth v. Labadie (and a companion case) (Lawyers Weekly No. 10-017-14)
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‑11321 SJC-11322 COMMONWEALTH vs. GEORGE LABADIE (and a companion case[1]). Worcester. October 8, 2013. ‑ February 5, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Embezzlement. Credit Union. Bank. Larceny. Practice, Criminal, Lesser included offense. Jurisdiction, Superior Court, Federal preemption. Superior Court, Jurisdiction. Federal Preemption. Indictments found and returned in the Superior Court Department on November 10, 2005, and December 5, 2006. The cases were tried before Peter W. Agnes, Jr., J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Paul C. Brennan for Susan Carcieri. Patricia A. DeJuneas for George Labadie. Donna-Marie Haran, Assistant District Attorney, for the Commonwealth. GANTS, J. The issue presented in this case, before the court on further appellate review, is whether an employee of a credit union “authorized by federal law” may be found guilty under G. L. c. 266, § 52 (§ 52), of embezzlement of the credit union’s funds, and, if not, whether the employee may be found guilty of larceny by embezzlement, in violation of G. L. c. 266, § 30 (§ 30). Because the Commonwealth must prove beyond a reasonable doubt under § 52 that the victim was a “bank, as defined in [G. L. c. 167, § 1],” and because a Federal credit union is not a “bank” within this definition, we conclude that the defendants are entitled to judgments of acquittal as to this charge and vacate the convictions. We also conclude, however, that larceny by embezzlement, in violation of § 30, is a lesser included offense of embezzlement of a bank, in violation of § 52, and that Federal preemption doctrine does not bar State prosecution of a Federal credit union employee for larceny by embezzlement. Because the jury’s verdicts demonstrate that they found the defendants guilty of all the required elements of larceny by embezzlement, we remand for entry of convictions of this lesser included offense and for resentencing. Background. On August 27, 2002, defendant Susan Carcieri was employed part time as an assistant manager of the Wyman Gordon Federal Credit Union (credit union) in Worcester and lived with her husband, codefendant George Labadie, in a home across the street. A Superior Court jury concluded that Carcieri, aided and abetted by Labadie, embezzled credit union funds through the ruse of a fake robbery and convicted them […]
Commonwealth v. Garcia (Lawyers Weekly No. 11-008-14)
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‑831 Appeals Court COMMONWEALTH vs. PEDRO GARCIA, JR. No. 11‑P‑831. Hampden. September 10, 2013. ‑ February 4, 2014. Present: Cohen, Katzmann, & Agnes, JJ. Jury and Jurors. Practice, Criminal, Jury and jurors, Deliberation of jury, Substitution of alternate juror. Indictment found and returned in the Superior Court Department on February 25, 2009. The case was tried before Peter A. Velis, J., and a motion for a new trial, filed on August 30, 2011, was considered by him. Ellen A. Jawitz for the defendant. Katherine A. Robertson, Assistant District Attorney, for the Commonwealth. COHEN, J. After a Superior Court jury trial, the defendant and a codefendant were found guilty of armed robbery, in violation of G. L. c. 265, § 17.[1] The charges arose from the theft at knifepoint of four dollars and two packages of cigarettes from a resident of a homeless shelter. In this appeal from his conviction, the defendant’s sole contention is that the judge’s discharge of a deliberating juror was procedurally defective.[2] We agree that the applicable protocols were not followed, and conclude that reversal is required. Background. On December 17, 2009, at 12:31 P.M., the jury were sent out to begin their deliberations. After the jurors left the courtroom, the judge was informed that a court officer had observed a juror taking notes during the charge. The juror in question, no. 31 (Juror 31), was brought into the courtroom. In response to questioning by the judge, Juror 31 acknowledged that he had taken notes during the judge’s instructions, explaining that he “didn’t think [he] would actually have the chance to remember much of it, and [he] was trying real hard to stay awake.” He also stated that, although he had not taken notes while witnesses were actually testifying, he had “jot[ted] down a few things” during breaks. He told the judge that he had not shared his notes with the other jurors and that he had never fallen asleep during the trial. He also said that on the first day of trial, the jury had asked one of the court officers whether they could take notes, but that no one had gotten back to them. He stated that they had discussed how they were “going to remember all these things and the jargon and all […]