Apfel, et al. v. Miller (Lawyers Weekly No. 11-065-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1508 Appeals Court DANIEL J. APFEL & another,[1] trustees,[2] vs. WAYNE A. MILLER. No. 13‑P‑1508. Suffolk. April 10, 2014. ‑ June 13, 2014. Present: Grainger, Rubin, & Hanlon, JJ. Real Property, Registered land, Restrictions. Mistake. Practice, Civil, Summary judgment. Civil action commenced in the Land Court Department on June 4, 2009. The case was heard by Karyn F. Scheier, J., on motions for summary judgment. David J. Apfel (Maren Klawiter with him) for the plaintiffs. Joel Z. Eigerman for the defendant. GRAINGER, J. The plaintiffs, trustees of the Penny Apfel-Rechtschaffen Nominee Trust (trust), brought a declaratory judgment action in the Land Court seeking the application of certain restrictive covenants to a parcel of registered land owned by the defendant Wayne A. Miller.[3] The judge denied the plaintiffs’ motion for partial summary judgment, allowed the defendant’s motion for summary judgment, and entered a declaratory judgment resolving all of the issues in favor of the defendant. See Boston v. Massachusetts Bay Transp. Authy., 373 Mass. 819, 829 (1977). The plaintiffs filed a timely appeal. 1. Background. The facts are undisputed. The parties are abutting landowners. The trust holds title to registered land designated as lot 1 of the Boldwater residential subdivision in Edgartown. Miller owns lot 7 in the subdivision. a. The parties’ chains of title. The trust acquired title to lot 1 as the high bidder at a foreclosure sale conducted by Plymouth Savings Bank (bank). The owner and mortgagor at the time of sale was Thomas C. Wallace, the president of Boldwater, Inc., an entity which had originally held title to the land now comprising the subdivision. Wallace took title to lot 1 when the subdivision was created. Thereafter he also acquired title to what is now denominated lot 7, land that was originally a portion of lot 2 at the time of the creation of the subdivision. To finance these real estate acquisitions, Wallace borrowed money, not only from the bank, but also from the defendant Miller. As collateral Wallace granted Miller a second mortgage on lot 1, subordinate to the bank. Miller also received a third mortgage on lot 7, subordinate to the bank (second position) and subordinate to Clifford Meehan (first position). The proceeds derived from the plaintiffs’ purchase of lot 1 were sufficient […]
Commonwealth v. Morse (Lawyers Weekly No. 10-103-14)
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‑11433 COMMONWEALTH vs. STEVEN J. MORSE. Hampshire. February 3, 2014. ‑ June 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Homicide. Misleading a Police Officer. Vessel, Homicide. Evidence, Intent. Indictments found and returned in the Superior Court Department on December 7, 2010, and July 19, 2011. The cases were tried before Daniel A. Ford, J. The Supreme Judicial Court granted an application for direct appellate review. Merritt Schnipper for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. Linda J. Thompson, for Committee for Public Counsel Services, amicus curiae, submitted a brief. Monica R. Shah, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. LENK, J. The defendant was piloting a motorboat in the late afternoon of August 17, 2010, when it struck a kayak.[1] Ten year old Augustus Adamopoulos, who was in the kayak fishing with his father, died as a result of the collision; his father sustained serious injuries. The defendant was charged with manslaughter, G. L. c. 265, § 13; serious bodily injury and homicide by vessel, G. L. c. 90B, §§ 8A, 8B; and three counts of child endangerment while operating a vessel while under the influence of alcohol or drugs, G. L. c. 90, § 24V. In an interview with police following the collision, the defendant admitted to having drunk beer before operating the boat, but responded negatively to the question whether he had “consume[d] any other, you know, substances that could’ve impaired [his] ability to, you know, be aware of what was going on around [him].” Because police later discovered that the defendant had smoked marijuana before the collision, the defendant also was charged, under the witness intimidation statute, G. L. c. 268, § 13B (§ 13B), with misleading a police officer. Evidence of his negative response to the question was admitted against him at trial; the jury were instructed to consider such evidence only in relation to the § 13B misleading charge. A Superior Court jury convicted the defendant of misleading a police officer and misdemeanor homicide by vessel, and acquitted him of the other charges. The defendant appealed, and we granted his application for direct appellate review. The defendant challenges the validity of both convictions. He argues that his conviction of misleading a police officer should be reversed because […]
Polay, et al. v. McMahon (Lawyers Weekly No. 10-104-14)
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‑11460 JANE T. POLAY & another[1] vs. JOSEPH S. McMAHON. Middlesex. February 6, 2014. ‑ June 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Actionable Tort. Privacy. Emotional Distress. “Anti‑SLAPP” Statute. Practice, Civil, Attorney’s fees, Motion to dismiss. Words, “Incurred”. Civil action commenced in the Superior Court Department on October 26, 2011. A motion to dismiss and a special motion to dismiss were heard by Joseph M. Walker, III, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Phillip M. Eliopoulos (Angelique M. Eliopoulos with him) for the plaintiffs. Richard M. Moynihan for the defendant. Alex G. Philipson, amicus curiae, submitted a brief. DUFFLY, J. The genesis of this case is an escalating series of disputes between neighbors who live across the street from each other in Lowell. The plaintiffs, Jane T. Polay and William Morse, brought suit against the defendant, Joseph S. McMahon, alleging (1) abuse of process, (2) malicious prosecution, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) invasion of privacy. McMahon filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and a special motion to dismiss pursuant to the anti-SLAPP statute, G. L. c. 231, § 59H. A judge of the Superior Court allowed the motion to dismiss as to all claims; he also allowed the special motion to dismiss with respect to the abuse of process and malicious prosecution claims, but denied the special motion as to the other three claims. Having partially succeeded on his special motion to dismiss, McMahon moved for costs and attorney’s fees pursuant to G. L. c. 231, § 59H, and the judge granted the motion. The plaintiffs appealed, challenging only the dismissal of their invasion of privacy and intentional infliction of emotional distress claims, and the award of attorney’s fees. We reverse the dismissal of the invasion of privacy claim, remand the issue of attorney’s fees in light of our decision, and otherwise affirm. Background. The plaintiffs’ verified complaint contains the following allegations. Around April, 2008, McMahon and other neighbors entered into a common plan to harass the plaintiffs. On April 4, McMahon met with certain identified neighbors to discuss taking concerted action against the plaintiffs. After […]
Randall, et al. v. Haddad, et al. (Lawyers Weekly No. 10-102-14)
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‑11402 ROBERT J. RANDALL & another[1] vs. MARION HADDAD & others.[2] Suffolk. February 3, 2014. ‑ June 12, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Judgment, Satisfaction. State Board of Retirement. Attorney General. Governmental Immunity. Retirement. Public Employment, Retirement. Commonwealth, Trustee process. Trustee Process. Practice, Civil, Judgment, Attachment, Trustee process. Civil action commenced in the Superior Court Department on November 19, 2008. A motion to dismiss was heard by Regina L. Quinlan, J., and entry of corrected judgment on the motion to dismiss was ordered by Thomas E. Connolly, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Michael J. Walsh for the plaintiffs. Daniel G. Cromack, Assistant Attorney General, for Attorney General & another. Gerald W. Mead, Jr., for Marion Haddad, was present but did not argue. BOTSFORD, J. In this case, the plaintiffs, a monk of the Greek Orthodox church and the monastery of which he is currently a resident, seek to satisfy a judgment they obtained in a separate action in the Superior Court in Middlesex County against the defendants Marion Haddad and The Holy Annunciation Monastery Church of the Golden Hills (Holy Annunciation). The amount of the judgment represents the proceeds from the sale of property in Melrose on which stands a monastery and a church, title to which at the time of sale stood in the name of Holy Annunciation. Despite a court order requiring Haddad and Holy Annunciation to hold the proceeds from the sale of this property in escrow, Haddad deposited $ 40,000 of those proceeds in her retirement account with the State Board of Retirement (board). Having received no payment on the judgment in that action, the plaintiffs brought this case in part to name the board as trustee for the $ 40,000 Haddad had deposited with it. The board and the Attorney General, both named as defendants, moved to dismiss on grounds that Haddad’s funds held by the board were not subject to attachment and, in any event, principles of sovereign immunity barred the suit against the board. A Superior Court judge (motion judge) agreed and allowed the motion to dismiss. On the plaintiffs’ appeal, a panel of the Appeals Court also agreed with […]
Commonwealth v. Cole (Lawyers Weekly No. 10-097-14)
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‑11316 COMMONWEALTH vs. CASEY L. COLE. Plymouth. November 5, 2013. ‑ June 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Community Parole Supervision for Life. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Separation of powers, Sentence, Sex offender, Parole, Severability. Due Process of Law, Sentence, Sex offender, Parole. Parole. Imprisonment, Parole. Practice, Criminal, Sentence, Parole. Statute, Validity, Severability. Complaint received and sworn to in the Brockton Division of the District Court Department on March 22, 2010. A motion to correct sentence, filed on July 12, 2012, was considered by Mary L. Amrhein, J. The Supreme Judicial Court granted an application for direct appellate review. Beth L. Eisenberg, Committee for Public Counsel Services (Laura M. Banwarth with her) for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. Jeffrey G. Harris, Margaret Fox, Elizabeth A. Lunt, & Patricia Garin, for Massachusetts Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief. GANTS, J. The issue presented on appeal is whether community parole supervision for life (CPSL) violates our separation of powers doctrine, articulated in art. 30 of the Massachusetts Declaration of Rights, by improperly delegating to the parole board, an entity of the executive branch, the exercise of the judicial power to impose sentences. We conclude that CPSL grants to the parole board a quintessential judicial power, the power to determine whether a defendant should be sentenced to additional terms of imprisonment, and therefore violates art. 30. Because the imposition of a CPSL sentence by the parole board constitutes an unconstitutional violation of our separation of powers doctrine, the defendant’s CPSL sentence must be vacated. Background. The defendant, Casey Cole, was classified as a level two sex offender by the Sex Offender Registry Board (SORB), and therefore was required to register as a sex offender and provide SORB with notice of any change of address. See G. L. c. 6, § 178E (h). See also G. L. c. 6, §§ 178C-178P. On March 22, 2010, a complaint issued charging the defendant with failing to provide notice of a change of address, as a level two or level three sex offender, in violation of G. L. c. 6, § 178H (a) (1). Among the potential penalties identified in the complaint was “lifetime community parole supervision.” On August 23, […]
Ferreira v. Chrysler Group LLC, et al. (Lawyers Weekly No. 10-098-14)
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‑11450 MATTHEW FERREIRA vs. CHRYSLER GROUP LLC & another.[1] Bristol. February 6, 2014. ‑ June 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Indemnity. Motor Vehicle, Defect, Dealer, Franchise. Statute, Construction. Negligence, Defective product, Design, Manufacturer of motor vehicle, Retailer. Civil action commenced in the Superior Court Department on December 4, 2009. Cross claims were heard by Richard T. Moses, J., on motions for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Sara A. Decatur Judge (Paul Marshall Harris with her) for Somerset Auto Group. Keith B. Rose (Mark W. Skanes with him) for Chrysler Group LLC. GANTS, J. The issue on appeal is one of statutory construction: under what circumstances does a motor vehicle manufacturer owe a duty under G. L. c. 93B, § 8 (a), to defend a motor vehicle dealer against a claim “predicated upon the negligent design or manufacture of a new motor vehicle, or any part or component thereof?“ We conclude that a manufacturer owes such a statutory duty where a dealer promptly notifies it in writing that a claim has been asserted alleging damages arising from a defective motor vehicle or part caused solely by the fault or neglect of the manufacturer, and not by any fault or neglect of the dealer. Because the plaintiff’s allegations here alleged the fault or neglect of both the manufacturer and the dealer, the manufacturer did not have a duty to defend under § 8 (a), in the circumstances of this case. Background. The plaintiff, Matthew Ferreira, purchased a new Jeep Wrangler (Jeep) from the defendant Somerset Auto Group (Somerset) on April 7, 2007. The vehicle was manufactured by the predecessor entity of the defendant Chrysler Group LLC (Chrysler), and was subject to Chrysler’s limited warranty, which covered all costs for parts and labor necessary to repair any defects on the vehicle for a period of thirty-six months or 36,000 miles, whichever occurs first. On September 25, 2009, Ferreira’s attorney sent a demand letter to Chrysler and Somerset alleging that the Jeep had been repaired at least six times and been out of service for forty-two days for unspecified “nonconformities that continue to exist.” He alleged that Chrysler’s inability to repair the Jeep after six attempts despite […]
Singh v. Capuano (and a consolidated case) (Lawyers Weekly No. 10-099-14)
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‑11491 SJC‑11565 ANEETA SINGH vs. SCOTT CAPUANO (and a consolidated case[1]). Middlesex. February 3, 2014. ‑ June 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Abuse Prevention. Witness, Self‑incrimination. Practice, Civil, Moot case. Complaint for protection from abuse filed in the Somerville Division of the District Court Department on February 14, 2013. Hearings to extend the abuse prevention order were had before Neil J. Walker, J., and Joseph W. Jennings, III, J. The Supreme Judicial Court granted applications for direct appellate review. Michael J. Licker (Kevin J. Conroy with him) for the plaintiffs. Cindy T.K. Palmquist for Women’s Bar Association of Massachusetts, Inc., & others, amici curiae, submitted a brief. IRELAND, C.J. The plaintiff, Aneeta Singh, appeals from two District Court orders extending for three months certain portions of an abuse prevention order that had issued against the defendant, Scott Capuano. Singh had sought to have the original order extended in its entirety for a full year. We granted Singh’s applications for direct appellate review and consolidated the appeals. While the appeals have been pending, the underlying orders were succeeded by other orders, to which Singh does not object. We therefore dismiss these appeals as moot. Considering the importance of “proper judicial administration of . . . restraining orders,” Uttaro v. Uttarro, 54 Mass. App. Ct. 871, 873 n.2 (2002), however, we exercise our discretion to comment on some of the issues presented. Facts. On February 14, 2013, Singh filed a complaint in the District Court seeking an abuse prevention order against Capuano pursuant to G. L. c. 209A. After an ex parte hearing, a temporary order issued granting custody of the parties’ minor child to Singh and directing Capuano to have no contact with, to stay at least fifty yards away from, and not to abuse Singh or the child. The matter was scheduled to be heard next on February 22, 2013. Shortly after the ex parte hearing, Singh filed a report with the police concerning the events underlying the c. 209A complaint and also applied for criminal complaints against Capuano that eventually issued. Both parties appeared with counsel before a second District Court judge on February 22, 2013. Despite Singh’s request for an evidentiary hearing and to have the abuse prevention […]
Gangi v. Massachusetts Parole Board (Lawyers Weekly No. 10-100-14)
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‑11505 DAVID GANGI vs. MASSACHUSETTS PAROLE BOARD. Suffolk. November 5, 2013. ‑ June 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Community Parole Supervision for Life. Constitutional Law, Sentence, Sex offender, Parole. Due Process of Law, Sentence, Sex offender, Parole. Practice, Criminal, Sentence, Parole. Practice, Civil, Sex offender. Parole. Imprisonment, Parole. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 30, 2013. The case was reported by Duffly, J. John Fennel, Committee for Public Counsel Services, for the plaintiff. Ryan E. Ferch, Assistant Attorney General, for the defendant. CORDY, J. In 2013, while serving a sentence of community parole supervision for life (CPSL), the petitioner, David Gangi, produced a positive drug test result in violation of a condition of his CPSL. During the CPSL revocation proceedings that followed, he was confined pursuant to parole board regulations authorizing temporary custody pending a hearing on the violation. While he was so confined, the Commonwealth filed a petition in the Superior Court alleging that the petitioner was a sexually dangerous person (SDP), pursuant to G. L. c. 123A, § 12 (b). After a CPSL violation was found by the parole board, the petitioner’s confinement continued as a sanction for the CPSL violation, and at the conclusion he was civilly committed pending the outcome of the SDP petition. The petitioner then filed a complaint for declaratory and injunctive relief with the single justice of the county court, pursuant to G. L. c. 231A, § 1, seeking a declaration that his due process rights were violated in the CPSL revocation proceeding because the parole board did not disclose the evidence against him, that his CPSL sentence was unconstitutional under the separation of powers principles of art. 30 of the Massachusetts Declaration of Rights, and that because his CPSL sentence was unconstitutional he was not a prisoner for purposes of the SDP statute when the SDP petition was filed. After a hearing, the single justice reserved and reported the case to the full court. We heard the case concurrently with other cases also raising questions regarding the constitutionality of the CPSL sentence. We conclude that the petitioner’s CPSL sentence and his confinement pursuant to G. L. c. 127, § 133D (c), were unlawful. See Commonwealth v. Cole, ante (2014). As a […]
Commonwealth v. Parrillo (Lawyers Weekly No. 10-101-14)
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‑11414 COMMONWEALTH vs. JOHN J. PARRILLO. Bristol. November 5, 2013. ‑ June 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Community Parole Supervision for Life. Constitutional Law, Sentence, Sex offender, Double jeopardy. Practice, Criminal, Sentence, Double jeopardy. Sex Offender. Open and Gross Lewdness and Lascivious Behavior. Indecent Assault and Battery. Complaint received and sworn to in the Attleboro Division of the District Court Department on December 4, 2006. A motion to correct sentence, filed on November 17, 2010, was considered by Robert E. Baylor, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Beth L. Eisenberg, Committee for Public Counsel Services (John J. Connors with her) for the defendant. Owen J. Murphy, Assistant District Attorney (Roger L. Michel, Jr., Assistant District Attorney, with him) for the Commonwealth. CORDY, J. The defendant, John J. Parrillo, was convicted in 2008 of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H, among other charges. He was sentenced to a period of imprisonment, probation, and community parole supervision for life (CPSL). He appeals the denial of his motion to correct an illegal sentence, CPSL, pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), on various grounds, including that his CPSL sentence is unconstitutional. We transferred the case on our own motion from the Appeals Court and heard the case concurrently with Commonwealth v. Cole, ante (2014), and others raising questions regarding the constitutionality of the CPSL sentence. The court held today in Cole that G. L. c. 127, § 133D (c), violates our separation of powers principles by delegating the distinctly judicial power to impose sentences to the parole board, an agency of the executive branch. The court further concluded that this unconstitutional provision is not severable from the remainder of the CPSL scheme, thereby rendering the CPSL sentence unconstitutional. See Cole, supra at . Pursuant to the holding in Cole, we vacate the defendant’s CPSL sentence and remand for resentencing. Background. In 2008, a jury found the defendant guilty of indecent assault and battery on a person over the age of fourteen, G. L. c. 265, § 13H; simple assault and battery, G. L. c. 265, § 13A; and open and gross lewdness, G. L. […]
Commonwealth v. Torres (Lawyers Weekly No. 10-096-14)
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‑11498 COMMONWEALTH vs. CARMELO TORRES. Franklin. April 7, 2014. ‑ June 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Abuse Prevention. Assault and Battery. Practice, Criminal, Double jeopardy, Duplicative convictions, Lesser included offense, Required finding. Constitutional Law, Double jeopardy. Complaints received and sworn to in the Greenfield Division of the District Court Department on November 3, 2011 and December 9, 2011. The cases were tried before William F. Mazanec, III., J., and a posttrial motion for a required finding of not guilty was heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Stephen P. Kelly for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. We granted the defendant’s application for further appellate review to determine whether a defendant’s conviction of violating of an abuse prevention order pursuant to G. L. c. 209A, § 7, is a lesser included offense of assault and battery on a person protected by an abuse prevention order, pursuant to G. L. c. 265, § 13A (b) (iii). Because we conclude that a violation of an abuse prevention order that contains a mandate to refrain from abuse is not a lesser included offense of assault and battery on a person protected by an abuse prevention order, and that there was sufficient evidence for the jury to determine that the defendant had committed both offenses, we affirm. Background. At a trial in 2011, the parties stipulated that an abuse prevention order had issued against the defendant, who had proper notice and knew of the order. The order contained the sole directive that the defendant refrain from abusing the victim. Two witnesses, a police officer and the defendant’s neighbor, testified for the Commonwealth as follows. Late in the evening on November 2, 2011, the defendant and the victim engaged in an altercation, and both were injured. A neighbor who was outside listened to the altercation for forty-five minutes. She heard the victim screaming, the defendant’s repeated shouts of “you hit me,” “go to bed,” and “shut your mouth,” and the recurring sound of a “fist to skin”. The neighbor saw the defendant push the victim into a rack that held digital video discs (DVDs). The defendant then left the apartment. The neighbor […]