Pisano v. Pisano (Lawyers Weekly No. 11-054-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1758 Appeals Court JUDITH BELUSHI PISANO vs. VICTOR RENO PISANO. No. 13-P-1758. Dukes. October 6, 2014. – May 29, 2015. Present: Cypher, Grainger, & Maldonado, JJ. Divorce and Separation, Alimony, Appeal, Judgment. Husband and Wife, Antenuptial agreement. Contract, Antenuptial agreement. Practice, Civil, Bifurcated trial, Interlocutory appeal. Complaint for divorce filed in the Dukes County Division of the Probate and Family Court Department on October 20, 2010. The case was heard by Spencer M. Kagan, J. Robert J. Rutecki for the husband. Sharon D. Meyers for the wife. CYPHER, J. In October, 2010, Judith Belushi Pisano (hereinafter, wife), after some twenty years of marriage to Victor Reno Pisano (hereinafter, husband), filed a complaint for divorce from the husband. The wife also moved, successfully, to bifurcate the issue of the scope and validity of a premarital agreement executed by the parties on October 6, 1990, the day prior to the parties’ wedding. Following a trial on the wife’s “bifurcated complaint for divorce,” a judge of the Probate and Family Court issued a “Bifurcated Judgment” dated April 2, 2012, supplemented by findings, in which he determined that the premarital agreement was valid and binding on the parties, and that it limited any claim of the husband for alimony in a manner we shall discuss more fully below. With the assent of the parties, additional issues were referred to a master, who was instructed to conduct an evidentiary hearing, make findings of fact and conclusions of law, and prepare a judgment of divorce nisi addressing all outstanding issues. Among the issues considered by the master was whether the wife was entitled to the repayment of temporary alimony ordered earlier by the court and whether a certain debt should be treated as a liability of the wife or a joint marital liability to be shared by the parties. Following a hearing, the master issued his report (including recommendations that the wife recover the temporary alimony she paid to the husband and that the loan be treated as the wife’s sole liability), and a subsequent amended report. The master’s recommendations were incorporated into the supplemental judgment of divorce nisi dated February 5, 2013.[1] The husband has appealed, challenging portions of the “bifurcated judgment” as they pertain to alimony as well as the order contained in the […]
Walter E. Fernald Corporation v. The Governor, et al. (Lawyers Weekly No. 10-087-15)
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-11801 WALTER E. FERNALD CORPORATION vs. THE GOVERNOR & others.[1] Suffolk. February 5, 2015. – May 29, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Corporation, Charitable corporation. Real Property, Ownership. Governmental Immunity. Agency, Public agent. Civil action commenced in the Land Court Department on September 8, 2010. The case was heard by Keith C. Long, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph Callanan, Assistant Attorney General (John M. Donnelly, Assistant Attorney General, with him) for the defendants. Thomas J. Frain (C. Alex Hahn with him) for the plaintiff. LENK, J. The Walter E. Fernald Corporation (corporation), established in 1850, is a charitable organization devoted to serving the needs of the developmentally disabled. The corporation brought an action in the Land Court, seeking, among other things, a declaration under G. L. c. 231A, § 1 (declaratory judgment act), that it is the owner of certain parcels of recorded land. The parcels are located on Norcross Hill in Templeton (Templeton parcels). As defendants in its suit, the corporation named the Governor, the Department of Developmental Services, and the Division of Capital Asset Management (collectively, the Commonwealth); the Commonwealth had asserted ownership of the Templeton parcels by, among other things, naming several of them in a statute designating an expanse of land for conservation and public recreational purposes. See St. 2002, c. 504. A judge of the Land Court denied the Commonwealth’s motion to dismiss the corporation’s suit on grounds of sovereign immunity. Subsequently, the judge allowed the corporation’s motion for summary judgment. The judge concluded that there could be no genuine dispute that, although a school established by the corporation became an agency of the Commonwealth in the early Twentieth Century, the corporation itself remained independent of the Commonwealth, and purchased the Templeton parcels on its own behalf. The judge therefore entered judgment declaring the corporation’s ownership of the parcels. We affirm, holding that sovereign immunity does not apply to the particular type of action brought here and adopting the same analysis of the facts taken by the judge below. 1. Background. We outline the facts that gave rise to this litigation, reserving the details for later discussion. The corporation was created by […]
Kimbroughtillery v. Commonwealth (Lawyers Weekly No. 10-085-15)
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-11699 KEIAL KIMBROUGHTILLERY vs. COMMONWEALTH. Suffolk. February 3, 2015. – May 26, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Practice, Criminal, Probation, Revocation of probation, Collateral estoppel. Collateral Estoppel. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 24, 2014. The case was reported by Cordy, J. Rebecca Kiley, Committee for Public Counsel Services, for the petitioner. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. SPINA, J. In this case, here on a reservation and report from a single justice of the county court, we consider whether principles of collateral estoppel bar a second probation revocation proceeding on the same charged misconduct that was litigated in an earlier probation revocation proceeding in a different county and was resolved in favor of the petitioner, Keial Kimbroughtillery. We conclude that principles of collateral estoppel bar the second proceeding. 1. Background. On February 28, 2013, the petitioner was charged by criminal complaint in the New Bedford Division of the District Court Department (New Bedford District Court) with unarmed robbery, G. L. c. 265, § 19 (b), and assault and battery, G. L. c. 265, § 13A (a) (new offenses). The complaint was based on allegations that on February 26, 2013, while the victim was sitting in the driver’s seat of her vehicle, the petitioner leaned over her, grabbed an envelope containing $ 630 from her right coat pocket, and fled the scene. At the time the complaint issued, the petitioner was serving probationary sentences imposed by the Dorchester Division of the Boston Municipal Court Department (Boston Municipal Court), the New Bedford District Court, and the Fall River Division of the District Court Department (Fall River District Court).[1] A notice of probation violation and hearing was issued to the petitioner from the Boston Municipal Court on March 4, 2013. Similar notices were issued to him from the New Bedford District Court on March 5, 2013, and from the Fall River District Court on May 15, 2013. Each notice alleged that the petitioner had violated the terms of his probation by committing the new offenses.[2] The first probation revocation hearing was held in the Boston Municipal Court on June 12 and August 20, 2013. During the hearing, the petitioner’s probation officer testified, as did the alleged victim of […]
Categories: News Tags: 1008515, Commonwealth, Kimbroughtillery, Lawyers, Weekly
Felix F. v. Commonwealth (Lawyers Weekly No. 10-086-15)
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-11644 FELIX F., a juvenile vs. COMMONWEALTH. Suffolk. February 5, 2015. – May 26, 2015. Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Youthful Offender Act. Controlled Substances. Grand Jury. Practice, Criminal, Grand jury proceedings, Indictment. Evidence, Grand jury proceedings, Threat. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 9, 2013. The case was heard by Spina, J. Paul R. Rudof, Committee for Public Counsel Services (Joseph D. Mulhern, Jr., Committee for Public Counsel Services, with him) for the juvenile. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. HINES, J. The defendant, a juvenile, was indicted as a youthful offender under G. L. c. 119, § 54, for possession of heroin with intent to distribute, in violation of G. L. c. 94C, § 32 (a). Under the youthful offender statute, a juvenile may be prosecuted as an adult if the charge involves the “infliction or threat of serious bodily harm.” G. L. c. 119, § 54. Arguing that the evidence presented to the grand jury was insufficient to establish this requirement, the juvenile moved to dismiss the indictment. A judge in the Juvenile Court denied the motion,[1] and the juvenile filed a petition for relief pursuant to G. L. c. 211, § 3. This appeal, from the denial of the juvenile’s petition, presents the issue whether evidence of the generalized potential for harm from the distribution and use of heroin meets the probable cause standard for “infliction or threat of serious bodily harm.”[2] We conclude that it does not and reverse the decision of the single justice denying the defendant’s G. L. c. 211, § 3, petition.[3] Background. Only one witness, a Taunton police officer, testified before the grand jury. We summarize that testimony as background for our discussion. On August 27, 2013, at approximately 2:45 P.M., the officer observed two males on an all-terrain, off-road vehicle traveling at a high rate of speed in the opposite direction on Oak Street in Taunton. He was concerned for the safety of the males and other motorists because of the speed of travel and because the males were not wearing helmets, a requirement of all-terrain vehicle use. The males looked directly at the officer and then turned onto railroad tracks running perpendicular to the road. The officer drove down various crossroads to the railroad […]
Commonwealth v. Colon (Lawyers Weekly No. 11-053-15)
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-774 Appeals Court COMMONWEALTH vs. GABRIEL COLON. No. 13-P-774. Hampden. December 9, 2014. – May 22, 2015. Present: Cypher, Wolohojian, & Blake, JJ. Firearms. Practice, Criminal, Motion to suppress. Search and Seizure, Reasonable suspicion. Constitutional Law, Search and seizure, Reasonable suspicion. Indictments found and returned in the Superior Court Department on October 18, 2011. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J., and the cases were heard by Cornelius J. Moriarty, II, J. Elaine Fronhofer for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Gabriel Colon, was convicted after a jury-waived trial of unlawful possession of a firearm, possession of a defaced firearm, and unlawful possession of ammunition.[1] On appeal from the ensuing judgments, he argues error in an order denying his motion to suppress evidence, contending that the judge erred when he found that the defendant was lawfully seized. Only one witness testified at the hearing on the motion to suppress, Detective William Delgado. The salient facts are not in dispute.[2] We accept the motion judge’s findings of fact unless they are clearly erroneous, but we undertake an independent review of the application of the constitutional principles. Commonwealth v. Hoose, 467 Mass. 395, 399-400 (2014). The motion judge found the following facts, which we recite verbatim. “At approximately 5:30 P.M. on September 18, 2011, Holyoke Police Detective William Delgado received a telephone call from a friend, Manuel Alicea. Alicea informed Detective Delgado that five Hispanic males were loitering in front of Manny’s Market near the intersection of Sergeant and Walnut Streets in Holyoke. Alicea, the owner of the property, asked Detective Delgado to respond to address the problem. “Manny’s Market is in a high crime area, well known to Detective Delgado for drug dealing, firearms offenses and shootings. A Holyoke [p]olice [o]fficer had been killed recently in that area. “Detective Delgado had been a Holyoke police officer for ten years. At the time, he was assigned to the Holyoke [p]olice [d]epartment [n]arcotics and [v]ice [u]nit and also the Western Massachusetts [g]ang [t]ask [f]orce. He was familiar with firearms, having made firearms arrests approximately [forty] to [fifty] times. Many of those arrests involved illegal possession of firearms on the street. “At approximately 5:45 P.M., […]
Commonwealth v. Magdalenski (Lawyers Weekly No. 10-084-15)
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-11701 COMMONWEALTH vs. CHRISTOPHER G. MAGDALENSKI. May 22, 2015. Evidence, Cross-examination, Bias, Impeachment of credibility. Witness, Cross-examination, Bias, Impeachment. After a jury trial in the Northampton Division of the District Court Department, the defendant, Christopher Magdalenski, was convicted of one count of assault and battery in violation of G. L. c. 265, § 13A, against his sister, Bethany Magdalenski.[1] In an unpublished memorandum and order pursuant to Appeals Court rule 1:28, the Appeals Court affirmed the conviction. Commonwealth v. Magdalenski, 85 Mass. App. Ct. 1104 (2014). We granted Christopher’s application for further appellate review to address whether the trial judge abused his discretion in excluding evidence of the Commonwealth witnesses’ alleged bias, prejudice, and motive to prevaricate. We reverse and remand for a new trial. Christopher claims that he did not assault Bethany. Instead, he alleges that he was the victim of an unprovoked attack by Bethany’s boyfriend, William Graham, an off-duty Worthington police officer, and that Bethany was accidentally injured in the process. His principal contention is that Bethany and Graham fabricated their allegations against him in order to justify Graham’s actions, specifically, that they were motivated to prevaricate because of Graham’s concern that his own actions would have criminal consequences and professional consequences for his career as a police officer. The trial judge, however, precluded Christopher from impeaching Bethany’s and Graham’s testimony with an application for a criminal complaint that was filed at Christopher’s behest against Graham regarding the incident; evidence suggesting that Christopher was coerced to withdraw the application because of threats and other statements made essentially by Bethany and Graham; and related evidence. The trial judge ruled that, because no criminal charges were pending against Graham, there was no occasion to consider the application, the circumstances under which it was withdrawn, or related matters. “It is a basic rule that reasonable cross-examination for the purpose of showing bias and prejudice is a matter of right.” Commonwealth v. Martin, 434 Mass. 1016, 1017 (2001), quoting Commonwealth v. Martinez, 384 Mass. 377, 380 (1981). Although a trial judge has discretion to limit cross-examination when necessary, “he or she has no discretion to prohibit all inquiry into [a subject that could show bias or prejudice on the part of the witness]” (citation omitted), Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 […]
Categories: News Tags: 1008415, Commonwealth, Lawyers, Magdalenski, Weekly
Vale v. Valchuis, et al. (Lawyers Weekly No. 10-083-15)
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-11744 MICHAEL A. VALE vs. DAVID J. VALCHUIS & another.[1] Middlesex. February 4, 2015. – May 22, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Corporation, Close corporation, Valuation of stock, Transfer of shares. Massachusetts Arbitration Act. Uniform Arbitration Act. Arbitration, Appeal of order compelling arbitration, Arbitrable question. Civil action commenced in the Superior Court Department on July 8, 2013. A motion to compel arbitration was heard by Kenneth V. Desmond, Jr., J. The Supreme Judicial Court granted an application for direct appellate review. Euripides D. Dalmanieras (James W. Bucking with him) for New England Cleaning Services, Inc. Robert R. Berluti (Edward F. Whitesell, Jr., with him) for the plaintiff. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. CORDY, J. In this case we decide whether the valuation of stock, pursuant to a stock transfer restriction, is a proper subject for arbitration and, if so, whether and when a selling shareholder may terminate the arbitration process. The transfer restriction in this case required the shareholder first to offer his stock to the company at his desired price, and then, if the company rejected it, to offer it at a price to be determined by arbitrators. The plaintiff, Michael A. Vale, invoked this process by tendering an offer to the defendant, New England Cleaning Services, Inc. (NECS). After doing so, however, he changed his mind regarding his desire to sell and sought to withdraw from the process of valuing his stock. NECS moved to compel arbitration. A judge in the Superior Court denied the motion to compel, relying on the doctrine of Palmer v. Clark, 106 Mass. 373, 389 (1871), which distinguishes arbitration from appraisal. The judge concluded that a mere disagreement over the value of stock was legally insufficient to give rise to arbitration. On appeal, NECS argues that Palmer and its progeny were abrogated by G. L. c. 251, inserted by St. 1960, c. 374, § 1, as amended (Arbitration Act), which, among other things, provides that a written contract providing for the arbitration “of any existing controversy” is “valid, enforceable and irrevocable” except on grounds that exist for “the revocation of any contract.” See G. L. c. 251, § 1. We conclude that the distinction between arbitration […]
Borden v. Progressive Direct Insurance Company (Lawyers Weekly No. 11-052-15)
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 14-P-449 Appeals Court RITA BORDEN vs. PROGRESSIVE DIRECT INSURANCE COMPANY. No. 14-P-449. Bristol. November 10, 2014. – May 21, 2015. Present: Rubin, Brown, & Maldonado, JJ. Insurance, Business exclusion. Contract, Insurance. Motor Vehicle, Insurance. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on October 9, 2012. The case was heard by Robert J. Kane, J., on motions for summary judgment. Joseph A. Keough, Jr., for the plaintiff. Hillary J. Giles for the defendant. BROWN, J. The single issue presented for review is whether the “automobile business” exclusion contained in a standard Rhode Island automobile policy applies in the circumstances of this case as to preclude coverage. Ruling on cross motions for summary judgment, a judge of the Superior Court concluded that it did, and ordered judgment to enter for the defendant, Progressive Direct Insurance Company (Progressive). We agree and, accordingly, affirm the judgment.[1] To prevail on appeal, the plaintiff must convince us that there is a dispute of material fact which precludes summary judgment or that the undisputed material facts entitle her to a judgment as matter of law. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Our review is de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). 1. Facts. The material facts necessary to decide the legal issue before us are undisputed. In 2008, Geraldina Melo purchased a Dodge tow truck solely for the use of her boy friend, Davidson Lues Bucco. On behalf of automobile dealerships, Bucco transported used automobiles by means of the tow truck either (1) from dealer lots to sales auctions or (2) from the auctions to dealer lots. Bucco called his business “David’s Towing.” He hired Eduardo A. Silva to assist him with the work.[2] Whenever Silva’s help was needed, someone from David’s Towing would notify Silva that he was needed on a designated day. Silva performed services for David’s Towing once or twice per week, earning $ 100 per day. On the date of the accident, Silva arrived at the garage used by David’s Towing at 9 A.M. and parked his 2007 Nissan Altima (the vehicle insured by Progressive). After retrieving the keys to the tow truck, the only one used in the business, he inspected it to make sure […]
Wells Fargo Bank, N.A. v. Cook, et al. (Lawyers Weekly No. 11-051-15)
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 14-P-381 Appeals Court WELLS FARGO BANK, N.A. vs. NANCY B. COOK & another.[1] No. 14-P-381. Suffolk. January 7, 2015. – May 19, 2015. Present: Kafker, Meade, & Maldonado, JJ. Summary Process. Mortgage, Foreclosure, Acceleration clause. Real Property, Mortgage. Regulation. Practice, Civil, Summary judgment, Summary process. Summary Process. Complaint filed in the Boston Division of the Housing Court Department on August 6, 2012. The case was heard by MaryLou Muirhead, J., on motions for summary judgment. Julia E. Devanthery for the defendants. David E. Fialkow for the plaintiff. KAFKER, J. Nancy and Abena Cook appeal from the judgment entered in favor of Wells Fargo Bank, N.A. (Wells Fargo), in its postforeclosure summary process action against them in the Boston Housing Court. The Cooks contend that the judge erred in granting summary judgment for Wells Fargo on its claim for possession because (1) the judge should have considered the United States Department of Housing and Urban Development (HUD) Handbook No. 4330.1 REV-5, Administration of Insured Home Mortgages (1994) (HUD Handbook), as interpretive guidance to discern the meaning of the HUD regulations incorporated into the mortgage, and (2) the August 12, 2008, meeting Wells Fargo held at Gillette Stadium for defaulting mortgagors did not satisfy the procedural or substantive requirements set out in the HUD regulations at 24 C.F.R. § 203.604(b) (2008), as the Gillette Stadium event was untimely and did not provide for a face-to-face meeting with a representative of the lender authorized to negotiate modification of payment provisions. We conclude that the HUD Handbook should have been considered, that the meeting was untimely, and most importantly, that there are material disputed facts regarding whether the meeting satisfied the substantive face-to-face meeting requirements of the HUD regulations. Therefore, we vacate the judgment of the Boston Housing Court in favor of Wells Fargo.[2] 1. Background. The facts, construed in the light most favorable to the Cooks, are as follows. See DiPietro v. Sipex Corp., 69 Mass. App. Ct. 29, 30 (2007). In 1971, Nancy Cook purchased property at 38-40 Rosewood Street in Mattapan, and in 2006 became co-owner of the property with her daughter Abena Cook. In March, 2008, the Cooks refinanced the property with a loan from Fairfield Financial Mortgage Group, Inc. To secure the loan, the Cooks granted a mortgage, including […]
Commonwealth v. Tarjick (Lawyers Weekly No. 11-050-15)
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-932 Appeals Court COMMONWEALTH vs. AARON M. TARJICK. No. 13-P-932. Hampshire. December 3, 2014. – May 18, 2015. Present: Kantrowitz, Green, & Meade, JJ. Practice, Criminal, Motion to suppress, Warrant. Constitutional Law, Search and seizure. Search and Seizure, Warrant, Plain view. Evidence, Digital image, Photograph, Prior misconduct. Indictments found and returned in the Superior Court Department on September 22 and December 17, 2010. A pretrial motion to suppress evidence was heard by Mary-Lou Rup, J., and the cases were tried before C. Jeffrey Kinder, J. Elaine Fronhofer for the defendant. Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth. KANTROWITZ, J. This matter involves the interplay between twenty-first century technology and twentieth century search and seizure principles. We hold that the police, while executing a search warrant for nude images of the defendant’s thirteenyear old stepdaughter on a video camera, cellular telephone (cell phone), and computer, were justified in seizing three memory cards from digital cameras that they came across.[1] The defendant challenges the propriety of the order denying his motion to suppress the contents of a memory card removed from one of the digital cameras. He also challenges the admission at trial of enlarged photographs of one young female victim at various ages, the Commonwealth’s references to the defendant’s status as a prisoner, and the playing of two recordings of telephone calls that he made from jail. We affirm. Background.[2] Carla was the defendant’s stepdaughter. She lived with her biological mother and the defendant, who were living together and were married when Carla was about seven or eight years old. Carla testified that in 2006, the defendant began sexually abusing and raping her. At one point, she indicated that the defendant took at least one sexually explicit photograph of her using his cell phone and made sexually explicit video recordings of her with a video camera. The police suspected that the defendant transferred or copied the images to the family computer because Carla told authorities that her mother had said that the defendant was viewing sexually explicit images of young girls on the computer. After Carla disclosed the abuse, she went to live with her biological father. The second victim, Nina, was Carla’s ten year old friend from school. The defendant sexually abused Nina on multiple occasions when she visited. […]