Commonwealth v. Camblin (Lawyers Weekly No. 10-096-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11774 COMMONWEALTH vs. KIRK P. CAMBLIN. Middlesex. February 5, 2015. – June 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Motor Vehicle, Operating under the influence. Evidence, Breathalyzer test, Scientific test. Complaint received and sworn to in the Ayer Division of the District Court Department on April 28, 2008. A pretrial motion to exclude evidence as scientifically unreliable was considered by Mark A. Sullivan, J., and a motion for reconsideration was considered by him; and the case was tried before Peter J. Kilmartin, J. The Supreme Judicial Court granted an application for direct appellate review. John Fennel for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. Evan M. Levow, of New Jersey, & Gregory D. Oberhauser, for DUI Defense Lawyers Association, amicus curiae, submitted a brief. BOTSFORD, J. In 2013, the defendant, Kirk P. Camblin, was convicted in the District Court of operating a motor vehicle while under the influence of liquor (OUI) on theories that alcohol affected his ability to drive safely and that he operated the vehicle with a blood alcohol percentage of 0.08 or greater.[1] Before trial, he, along with sixty-one other defendants in other OUI cases pending in the District Court, moved to exclude admission of breath test evidence derived from the use of a particular model of breathalyzer, the Alcotest 7110 MK III-C (Alcotest), on the basis that errors in the Alcotest’s source code as well as other deficiencies rendered the breath test results produced by the Alcotest unreliable. The judge specially assigned to these cases denied the motion without a hearing, evidentiary or otherwise. We conclude that because breath test evidence, at its core, is scientific evidence, the reliability of the Alcotest breath test result had to be established before evidence of it could be admitted, see Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994), and, in this case, a hearing on and substantive consideration of the defendant’s challenges to that reliability were required. Because no such hearing was held and the Alcotest breath test result of 0.16 was before the jury as evidence, we vacate the judge’s order denying the motion to exclude the breathalyzer evidence, remand the case to the District Court for a hearing on that motion, and retain jurisdiction […]
Commonwealth v. Silva (Lawyers Weekly No. 10-094-15)
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-11096 COMMONWEALTH vs. ROBERT SILVA. Plymouth. February 6, 2015. – June 11, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ. Homicide. Robbery. Felony-Murder Rule. Joint Enterprise. Search and Seizure, Warrant, Expectation of privacy, Clothing. Constitutional Law, Search and seizure, Privacy. Malice. Intent. Practice, Criminal, Capital case, Motion to suppress, Instructions to jury, Argument by prosecutor, Presumptions and burden of proof. Indictments found and returned in the Superior Court Department on March 23, 2007. A pretrial motion to suppress evidence was heard by Paul E. Troy, J., and the cases were tried before Richard J. Chin, J. Chauncey B. Wood for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. The defendant, Robert Silva, stands convicted of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, and also of armed robbery.[1] He appeals the convictions, arguing that (1) his motion to suppress evidence of his sneakers and evidence derived from blood found on his sneakers was improperly denied; (2) the trial judge erred in instructing the jury on the theory of joint venture liability where the Commonwealth’s exclusive argument was that the defendant was guilty as a principal; (3) the judge also erred in denying the defendant’s request for an instruction on involuntary manslaughter; and (4) the prosecutor improperly shifted the burden of proof in her closing argument. Finally, the defendant argues that he is entitled to relief under G. L. c. 278, § 33E. We affirm the defendant’s convictions. Background. 1. Facts. We summarize the facts that the jury could have found at trial.[2] During the afternoon of June 9, 2004, the defendant and Eric Pimental, both eighteen years old, were walking together on a path in the woods in Wareham. They encountered Thomas Loftus, the victim, who was intoxicated,[3] and they agreed that they would “roll” him.[4] After Pimental knocked the victim down to the ground, both Pimental and the defendant began to kick the victim, and the defendant jumped on the victim’s chest. The defendant later stated to David Belmore, a fellow inmate of the Plymouth County correctional facility (PCCF), “You should have seen [the victim’s] eyes bug out when I jumped on his chest,” and that he and Pimental knew the victim was […]
Commonwealth v. Jewett (Lawyers Weekly No. 10-093-15)
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-11796 COMMONWEALTH vs. ERIC A. JEWETT. Essex. March 3, 2015. – June 11, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Arrest. Search and Seizure, Arrest, Exigent circumstances, Probable cause, Pursuit. Probable Cause. Constitutional Law, Probable cause. Motor Vehicle, Operating under the influence. Complaint received and sworn to in the Newburyport Division of the District Court Department on February 16, 2010. A pretrial motion to suppress evidence was heard by Peter F. Doyle, J.; a motion for reconsideration was heard by him; and the case was tried before Michael A. Uhlarik, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Todd C. Pomerleau (Chase A. Marshall with him) for the defendant. Philip A. Mallard, Assistant District Attorney, for the Commonwealth. John M. Collins, for Massachusetts Chiefs of Police Association, Inc., amicus curiae, submitted a brief. CORDY, J. In this case we consider whether the hot pursuit of a suspect who has fled to a private home and who an officer has probable cause to believe has committed a misdemeanor for which imprisonment is possible, creates a sufficient exigency such that a warrantless arrest is lawful. We conclude that it does in the circumstances of this case. Background. We summarize the facts as found by the motion judge, and as supplemented by the testimony at the suppression hearing which he credited, see Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), reserving certain details for our analysis of the issues raised on appeal. On February 14, 2010, at approximately midnight, Officer Richard Holcroft[1] of the Merrimac police department was on a routine patrol in a marked police cruiser. While traveling west on East Main Street he observed a male and female walking to a pickup truck in the parking lot of a bar. There were only a few vehicles in the lot and no other vehicles near where the truck was parked. All other businesses in the area were closed. Shortly thereafter, Holcroft’s attention was drawn to a different vehicle, traveling at a high rate of speed in the opposite direction on East Main Street. He reversed direction to pursue this speeding motor vehicle. While passing the bar again, Holcroft observed the first vehicle (the […]
Commonwealth v. Warren (Lawyers Weekly No. 11-060-15)
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-820 Appeals Court COMMONWEALTH vs. JIMMY WARREN. No. 13-P-820. Suffolk. October 2, 2014. – June 10, 2015. Present: Rapoza, C.J., Cypher, Green, Rubin, & Agnes, JJ.[1] Firearms. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on December 19, 2011. After transfer to the Central Division, a pretrial motion to suppress evidence was heard by Tracy-Lee Lyons, J., and the case was heard by Annette Forde, J. Nelson P. Lovins for the defendant. Michael Glennon, Assistant District Attorney, for the Commonwealth. GREEN, J. On appeal from his conviction of carrying a firearm, the defendant claims error in the denial of his motion to suppress a firearm. The firearm was recovered near the sidewalk on which the defendant ran from police who sought to question him concerning a breaking and entering that had occurred at a nearby residence earlier that evening. At issue is whether there was reasonable suspicion to justify the directive to stop issued by one of the officers during his pursuit of the defendant. We conclude that reasonable suspicion justified the stop, and therefore affirm. Background. We summarize the facts from the motion judge’s careful findings, supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the motion judge.[2] See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On Sunday, December 18, 2011, Boston police Officer Luis Anjos was on duty and in uniform, traveling alone in a marked police cruiser, in area B-2 in the Roxbury section of Boston. At 9:20 P.M. he received a radio call “that there was a breaking and entry in progress and the suspects were fleeing the area.” The dispatcher gave “several paths of flight” from Hutchings Street — where the breaking and entering had occurred — one toward Seaver Street and one toward Jackson Square.[3] Anjos went to the scene of the breaking and entering and spoke with the victims, a teenage male and his foster mother. The male victim told Anjos that he had left his room to go to the bathroom and that, when he was returning, […]
Hays v. Ellrich (Lawyers Weekly No. 10-092-15)
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-11743 MOLLY A. HAYS vs. DAVID J. ELLRICH & others.[1] Suffolk. February 3, 2015. – June 10, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Uniform Securities Act. Securities, Sale. Fraud. Fiduciary. Limitations, Statute of. Evidence, Fraud. Practice, Civil, Fraud, Statute of limitations. Civil action commenced in the Superior Court Department on September 11, 2006. The case was heard by Christine M. Roach, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David B. Mack (Stephanie R. Parker with him) for the defendants. Patrick J. Dolan for the plaintiff. GANTS, C.J. In January, 2001, in reliance on the advice of her investment advisor, the plaintiff, Molly A. Hays, invested approximately three-quarters of her retirement savingsin a hedge fund that became insolvent in 2003, resulting in the loss of her entire investment. In 2006, Hays filed suit in the Superior Court, alleging that her investment advisor, Morgan Financial Advisors, Inc. (MFA), and David J. Ellrich, the sole owner and officer of MFA, had, among other claims, violated the Massachusetts Uniform Securities Act (act), G. L. c. 110A, § 410 (a) (2), committed fraud, and committed a breach of their fiduciary duty to her. After a jury-waived trial, the judge ruled that Ellrich and MFA were liable under § 410 (a) (2), and entered judgment in Hays’s favor for $ 381,354.80 plus interest.[2],[3] MFA and Ellrich appealed, and we transferred the case to this court on our own motion. On appeal, Ellrich and MFA claim that they were not “sellers” of securities within the meaning of § 410 (a) (2), and therefore cannot be liable under the act. They also argue that the claims on which Hays prevailed are barred by the statute of limitations. In addition, they contend that the judgment must be vacated because it is contrary to the great weight of the evidence.[4] We affirm the judgment. Background. We summarize the findings of fact made by the judge, supplemented where necessary by uncontested evidence in the record that the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). We reserve certain facts that directly relate to the legal issues we address. In approximately 1991, when Ellrich was employed by another investment advisory firm, […]
Commonwealth v. Asher (Lawyers Weekly No. 10-091-15)
9OTICE: 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-11663 COMMONWEALTH vs. JEFFREY ASHER. Hampden. February 4, 2015. – June 9, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Assault and Battery by Means of a Dangerous Weapon. Assault and Battery. Police Officer. Threshold Police Inquiry. Self-Defense. Evidence, Self-defense. Defense of Others. Practice, Criminal, Instructions to jury. Complaint received and sworn to in the Holyoke Division of the District Court Department on October 14, 2010. The case was tried before Maureen E. Walsh, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Andrew J. Gambaccini for the defendant. Elizabeth Dunphy Farris, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, with her) for the Commonwealth. BOTSFORD, J. This case concerns the beating of an unarmed civilian by the defendant Jeffrey Asher, a police officer who responded to another officer’s request for assistance with a traffic stop in Springfield. The defendant was charged with assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b), and assault and battery in violation of G. L. c. 265, § 13A (a). At trial, the defendant contended, and presented evidence seeking to show, that the beating was justified based on the need for self-defense and defense of others present. The jury found him guilty of both charges. We affirm the convictions. Background. 1. Facts. Based on the evidence presented at trial, the jury could have found the following. On the evening of November 27, 2009, Officer Michael Sedergren and Lieutenant John Bobianski of the Springfield police department were on patrol in a cruiser when they observed a black Honda Civic automobile dragging its muffler and causing sparks to fly behind it. The officers stopped the vehicle, and Bobianski spoke to the driver, Malika Barnett. While Bobianski was speaking to Barnett, Sedergren observed Barnett’s companion, Melvin Jones, who was the sole passenger in the vehicle (and the victim in this case), slide toward the floor in the right front passenger’s seat and stuff something in his waistband. Concerned that the victim could be hiding a weapon or other contraband, Sedergren requested assistance over the police radio from Officer Theodore Truoiolo and the defendant, who were together on patrol that night in a separate vehicle. Once Truoiolo and […]
Commonwealth v. Tavares (Lawyers Weekly No. 11-059-15)
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-190 Appeals Court COMMONWEALTH vs. DANIEL D. TAVARES. No. 14-P-190. Barnstable. December 9, 2014. – June 5, 2015. Present: Cypher, Wolohojian, & Blake, JJ. Uttering Forged Instrument. Tendering a False Note. Larceny. False Pretenses. Practice, Criminal, Required finding. Evidence, Inference, Identity. Complaints received and sworn to in the Barnstable Division of the District Court Department on October 31, 2011. The cases were tried before Joan E. Lynch, J. Kevin S. Nixon for the defendant. Julia K. Holler, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Daniel D. Tavares, of possessing counterfeit currency, uttering a counterfeit note, and larceny by false pretenses of property not exceeding $ 250 in value. The defendant appeals and asks us to hold that the judge erred by denying the defendant’s motion for a required finding of not guilty. The defendant argues, as he did below, that there was insufficient evidence of identity, when viewed in the light most favorable to the Commonwealth, to support the conclusion beyond a reasonable doubt that the defendant was the person who had uttered a counterfeit note and committed larceny by false pretenses. The defendant also argues, for the first time on appeal, that there was insufficient evidence to prove that he knew the $ 100 bills in question were counterfeit.[1] We disagree. 1. Factual background. The jury could have found the following facts. On October 30, 2011, at approximately 9:00 P.M., a man asked for $ 30 of gasoline at West Main Gas, a gasoline station in Barnstable. The man was driving a black sport utility vehicle (SUV). There was a woman in the passenger seat. The gasoline station employee, Sherif Nakhla, pumped the gasoline as requested. The man had a $ 100 bill in his hand. Nakhla gave the man $ 70 in cash, and then the man handed Nakhla the $ 100 bill. Nakhla examined the $ 100 bill and realized “it d[id]n’t look like money at all.” Nakhla told the man that the $ 100 bill was not real. The man responded by saying, “I don’t know, man,” and then drove off. Nakhla tried to catch the SUV but was unable to do so. At trial Nakhla did not identify the defendant as the gasoline station customer, and provided only a very general […]
Nantasket Beachfront Condominiums, LLC v. Hull Redevelopment Authority (Lawyers Weekly No. 11-058-15)
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-222 Appeals Court NANTASKET BEACHFRONT CONDOMINIUMS, LLC vs. HULL REDEVELOPMENT AUTHORITY. No. 14-P-222. Plymouth. November 7, 2014. – June 5, 2015. Present: Rapoza, C.J., Milkey, & Hanlon, JJ. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Damages, Provision for liquidated damages, Termination. Practice, Civil, Summary judgment, Damages, Waiver. Redevelopment Authority. Administrative Law, Conflict of interest. Conflict of Interest. Public Employment, Unethical conduct. State Ethics Commission. Waiver. Damages, Breach of contract, Liquidated damages. Civil action commenced in the Superior Court Department on February 8, 2012. The case was heard by Robert C. Cosgrove, J., on motions for summary judgment. Brian K. Bowen for the plaintiff. Denise A. Chicoine (Edward S. Englander with her) for the defendant. MILKEY, J. In 2004, plaintiff Nantasket Beachfront Condominiums, LLC (Nantasket) and defendant Hull Redevelopment Authority (authority) entered into a contract for the purchase and development of certain land in Hull. Under that “LAND DISPOSITION AGREEMENT” (LDA), Nantasket was to purchase the land, construct seventy-two units of housing, and develop a new public park. Subsequently, the proposed project encountered robust neighborhood opposition, and this in turn led to significant delays in the anticipated closing. Eventually, the authority terminated the LDA and notified Nantasket that it was retaining as liquidated damages $ 857,500 in deposits that Nantasket had made. This action ensued. In a comprehensive and thoughtful decision, a Superior Court judge ruled in the authority’s favor on summary judgment. He concluded that Nantasket indisputably stood in breach of the LDA, and that the authority was within its rights to terminate the agreement and to retain the deposits. On Nantasket’s appeal, we affirm, albeit on somewhat different grounds. Background.[1] The parties execute the LDA. In order to spur the development of twelve acres of land that it owned, the authority in October of 2003 issued a detailed “Request for Proposals” (RFP). According to the RFP, the property “provides the transition between the [State-owned] . . . Nantasket Beach Reservation and a major residential area of the Town of Hull along Nantasket Avenue.” The RFP set forth a preferred development scenario in which approximately three-quarters of the land would be developed into “primarily passive public open space,” with the rest (approximately three acres) developed as “residential dwelling units, or other uses, as […]
Categories: News Tags: 1105815, Authority, Beachfront, Condominiums, Hull, Lawyers, Nantasket, Redevelopment, Weekly
Commonwealth v. Freeman (Lawyers Weekly No. 11-057-15)
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-172 Appeals Court COMMONWEALTH vs. RONALD FREEMAN. No. 14-P-172. Middlesex. December 4, 2014. – June 3, 2015. Present: Kafker, Grainger, & Agnes, JJ. Controlled Substances. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure. Probable Cause. Search and Seizure, Probable cause, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Indictments found and returned in the Superior Court Department on January 17, 2012. A pretrial motion to suppress evidence was heard by Garry V. Inge, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Eric A. Haskell, Assistant District Attorney, for the Commonwealth. Rebecca Kiley, Committee for Public Counsel Services, for the defendant. AGNES, J. This is an interlocutory appeal arising out of indictments charging the defendant, Ronald Freeman, with unlawful possession of heroin with the intent to distribute in violation of G. L. c. 94C, § 32(a), second or subsequent offense, G. L. c. 94C, § 32(b); and unlawful possession of heroin in a school zone in violation of G. L. c. 94C, § 32J. The sole question presented for our consideration is whether the observation of an exchange between two men in the street made by an experienced narcotics investigator provided him with probable cause to believe a drug transaction had occurred. Based on the investigator’s observation of two men on a street corner counting money, one of whom was known to be a drug user, the nature of the exchange that took place moments later between one of those two men and the defendant, and the location in which the events took place, we conclude the detective had probable cause to make an arrest. We therefore reverse the order allowing the defendant’s motion to suppress. Background. On July 26, 2011, at approximately 6:30 P.M., Detective Brian Hussey, an experienced narcotics investigator, was conducting surveillance with his partner, Detective Kevin Donofrio, in an area of Cambridge bordering Cambridgeport and Central Square. Within the past two months, there had been more than a dozen reports of increased drug activity in that area. The location is a densely populated residential area with numerous small businesses and parks. Detective Hussey initially observed two men, […]
Petriello v. Indresano (Lawyers Weekly No. 11-056-15)
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-135 Appeals Court 14-P-136 ROSE PETRIELLO vs. ALBERT INDRESANO (and a companion case[1]). No. 14-P-135. Norfolk. October 9, 2014. – June 3, 2015. Present: Berry, Hanlon, & Carhart, JJ. Harassment Prevention. Civil Harassment. Practice, Civil, Standing, Findings by judge. Agency. Complaints for protection from harassment filed in the Dedham Division of the District Court Department on July 29, 2013. The cases were heard by Robert P. Ziemian, J. Sarah W. Peterson for the defendants. Frank Hadley Wright, III, for the plaintiff. HANLON, J. The defendants, Albert Indresano, Jr. (Albert), and Joseph Indresano (Joseph), seek review of G. L. c. 258E harassment prevention orders (orders) issued against them.[2],[3] They argue that Veronica Higgins-Sullivan, acting under a power of attorney (POA) executed by the plaintiff, Rose Petriello, lacked standing to apply for these orders on Petriello’s behalf. The defendants also claim that the abusive conduct that Higgins-Sullivan alleged did not meet the requirements for issuing the orders. Although we are satisfied that Higgins-Sullivan had standing to apply for the orders, due to the very sparse record before us, we are constrained to conclude that there was insufficient evidence to support issuance of the orders under G. L. c. 258E. Background. The judge heard the following evidence, largely based on the testimony of Higgins-Sullivan, which the judge apparently credited. Petriello lived with Albert Indresano Sr. as a domestic partner, for approximately forty-five years, beginning in 1956; Albert, Sr., had four children, Albert, Joseph, Rosemary Indresano, and Joanne McKeage. After Albert Sr.’s death, Petriello moved to 51 Smith Street in Wellesley, a property belonging to a trust that Albert Sr. had established for her benefit. On December 6, 2005, Petriello executed a health care proxy, appointing Albert as her health care agent; she named Joseph as the alternate. In April, 2013, Petriello, then approximately eighty-eight years old, had a knee operation at Newton-Wellesley Hospital. Afterwards, she went to Elizabeth Seton Residence, a rehabilitation facility in Wellesley Hills. On May 22, 2013, Petriello executed a new health care proxy, appointing Higgins-Sullivan as her health care agent.[4] Petriello left Elizabeth Seton Residence on June 6, 2013, and moved directly to Waterstone, an assisted living facility in Wellesley Hills (Waterstone). Higgins-Sullivan testified that Petriello wanted to move from her 51 Smith Street home because “the trust was broken” -– her […]