Commonwealth v. Garcia (Lawyers Weekly No. 11-016-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1238 Appeals Court COMMONWEALTH vs. DOUGLAS GARCIA. No. 14-P-1238. Essex. September 11, 2015. – February 16, 2016. Present: Vuono, Agnes, & Maldonado, JJ. Rape. Evidence, Conversation between husband and wife, First complaint. Indictment found and returned in the Superior Court Department on August 4, 2010. The case was tried before Richard E. Welch, III, J. Michelle Menken for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. VUONO, J. This appeal raises the issue whether the spousal disqualification set forth in G. L. c. 233, § 20, First, which bars a spouse from testifying “as to private conversations with the other,” applies when one spouse has disclosed the substance of a private conversation to a third party. The defendant was convicted by a jury of rape, G. L. c. 265, § 22 (b). The victim, whom we shall call Sally,[1] is the defendant’s stepdaughter. Sally was nineteen years old at the time of the offense, which occurred at the defendant’s home, where Sally was spending the night. Among several challenges to his conviction, the defendant claims that the judge erred by permitting the Commonwealth to introduce testimony about a conversation between himself and his wife, who also is Sally’s mother, in which he allegedly apologized to the mother and explained that he had been tired and, as a result, had confused Sally for the mother on the night of the incident. For the reasons that follow, we conclude that, even though the evidence of the conversation was admitted for the limited purpose of impeaching the mother’s credibility, the defendant is entitled to a new trial. Background. a. The Commonwealth’s case-in-chief. The jury could have found the following facts. On April 18, 2010, Sally was living with her boy friend in North Andover. The couple were arguing. Upon the advice of her mother, who was on vacation in Florida, Sally drove to her mother’s home in Lynn.[2] The house is a duplex; Sally’s family lived on the top floor and Sally’s aunt lived on the first floor. Sally arrived at about 11:00 P.M. and let herself into the house. She had a brief conversation with the defendant, who was in bed in his bedroom watching television. Sally was wearing a shirt and capri-style pants. She did not change before getting into bed in the spare room as […]
Commonwealth v. McWilliams (Lawyers Weekly No. 10-020-16)
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-11900 COMMONWEALTH vs. ROBERT McWILLIAMS. Middlesex. October 8, 2015. – February 12, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Robbery. Attempt. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, Motion to suppress, Admissions and confessions, Discovery, Defendant’s decision not to testify, Prior conviction. Evidence, Admissions and confessions, Prior conviction, Identification. Identification. Indictments found and returned in the Superior Court Department on October 25, 2011. The cases were tried before Elizabeth M. Fahey, J., and motions for a required finding of not guilty, for a new trial, and for postconviction discovery, filed on March 13, 2014, were considered by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Timothy St. Lawrence for the defendant. Crystal L. Lyons, Assistant District Attorney, for the Commonwealth. SPINA, J. In this case, we address the question left open in Commonwealth v. Fortunato, 466 Mass. 500, 509 (2013): whether voluntary, unsolicited statements that are not the product of police questioning, made more than six hours after arrest, must be suppressed under the safe harbor rule established in Commonwealth v. Rosario, 422 Mass. 48, 56-57 (1996). Robert McWilliams, the defendant, was convicted of robbery while armed and masked, occurring on July 7, 2011; and of attempted robbery, occurring on July 26, 2011. On appeal, he argues that the judge erred by (1) denying his motion for a required finding of not guilty; (2) denying (without a hearing) his motion for a new trial, in which he asserted several claims of ineffective assistance of counsel; and (3) denying his motion for postconviction discovery. For the following reasons we affirm the judge’s rulings. 1. Background. The jury could have found the following facts. On July 7, 2011, a bank located in the Kendall Square area of Cambridge was robbed at gunpoint of $ 2,614. Prior to the robbery, Edward Grigoryants, an employee of a business located at One Broadway, the same building as the bank, was taking a smoking break around midday in the designated smoking area located in front of the bank. He noticed a tall African-American man wearing a “doo rag” on his head, leaning against a column near the smoking section. The man had broad shoulders and short […]
Categories: News Tags: 1002016, Commonwealth, Lawyers, McWilliams, Weekly
DiCarlo v. Suffolk Construction Co., Inc., et al. (Lawyers Weekly No. 10-019-16)
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-11854 SJC-11853 ROBERT M. DiCARLO vs. SUFFOLK CONSTRUCTION CO., INC., & others;[1] PROFESSIONAL ELECTRICAL CONTRACTORS OF CONNECTICUT, INC., third-party defendant. BERNARD J. MARTIN & another[2] vs. ANGELINI PLASTERING, INC., & others.[3] Suffolk. Middlesex. October 8, 2015. – February 12, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer. Lien. Statute, Construction. Civil action commenced in the Superior Court Department on March 29, 2007. A petition for settlement was heard by Frances A. McIntyre, J. A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Civil action commenced in the Superior Court Department on September 15, 2011. A petition for settlement was heard by Dennis J. Curran, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Wystan M. Ackerman for Twin City Fire Insurance Company & another. Charlotte E. Glinka for Bernard Martin & another. Thomas R. Murphy for Robert M. DiCarlo. Paul M. Kessimian & David J. Pellegrino, for American Insurance Association, amicus curiae, submitted a brief. Annette Gonthier Kiely, Michael C. Najjar, & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. LENK, J. Under Massachusetts law, employees who receive workers’ compensation benefits may not sue their employers for claims arising from work-related injuries. See G. L. c. 152, § 24.[4] Employees may, however, file claims against third parties for damagesarising from those injuries. See G. L. c. 152, §§ 15, 24. When an employee recovers damages from a third party, the workers’ compensation insurer is statutorily entitled to a lien on the recovery in the amount that the insurer paid to the employee in benefits. See G. L. c. 152, § 15. In these two cases, we are asked to ascertain the extent of this lien and, in particular, to clarify whether the lien attaches to damages paid by a third party for an employee’s pain and suffering. The cases involve two employees, Robert M. DiCarlo and Bernard J. Martin, who were injured in the course of their employment, collected workers’ compensation benefits, and then reached settlement agreements with third parties including damages for, […]
Commonwealth v. Johnson (Lawyers Weekly No. 10-018-16)
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-11876 COMMONWEALTH vs. KYLE L. JOHNSON. Plymouth. October 6, 2015. – February 12, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Evidence, Identification. Practice, Criminal, Identification of defendant in courtroom. Indictments found and returned in the Superior Court Department on March 11, 2013. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J. An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant. Karen A. Newirth, James L. Brochin, & Jennifer H. Wu, of New York, & R.J. Cinquegrana, for The Innocence Project & another, amici curiae, submitted a brief. Lisa Kavanaugh, Benjamin H. Keehn, Patrick Levin, Radha Natarajan, & Paul R. Rudof, Committee for Public Counsel Services, & David Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. GANTS, C.J. The issue presented in this case is whether the motion judge, applying the common-law principles of fairness in Commonwealth v. Jones, 423 Mass. 99, 109 (1996), committed an abuse of discretion in allowing the defendant’s motion to suppress the victim’s identifications of the defendant as the intruder he had struggled with in his home. The judge found that, through no fault of the police, the identifications were “impermissibly tainted by the suggestive circumstances.” We provide guidance regarding the application of the Jones standard and conclude that the judge did not abuse his discretion in allowing the motion to suppress.[1] Background. We summarize the facts found by the motion judge, supplemented where necessary with undisputed evidence that was implicitly credited by the judge. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On September 21, 2012, Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open. He returned to his home and encountered a stranger, who was armed with […]
Skawski, et al. v. Greenfield Investors Property Development LLC (Lawyers Weekly No. 10-017-16)
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-11926 MICHAEL SKAWSKI & others[1] vs. GREENFIELD INVESTORS PROPERTY DEVELOPMENT LLC. Hampden. January 7, 2016. – February 11, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Jurisdiction, Land Court, Housing Court. Land Court, Jurisdiction. Housing Court, Jurisdiction. Statute, Construction, Repeal. Civil action commenced in the Hampden Division of the Housing Court Department on June 7, 2011. A motion to dismiss was heard by Dina E. Fein, J., and the ruling was reported by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas Lesser (Michael E. Aleo with him) for the plaintiffs. Marshall D. Senterfitt (David S. Weiss with him) for the defendant. Isaac J. Mass, for Citizens for Growth, amicus curiae, submitted a brief. Ashley Grant, for Massachusetts Fair Housing Center, amicus curiae, submitted a brief. GANTS, C.J. On August 2, 2006, the Legislature enacted G. L. c. 185, § 3A, which established the permit session of the Land Court department and provided that “[t]he permit session shall have original jurisdiction, concurrently with the superior court department,” over civil actions adjudicating the grant or denial of permits for “the use or development of real property” where “the underlying project or development involves either [twenty-five] or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area.” St. 2006, c. 205, § 15. At the time § 3A was enacted, G. L. c. 40A, § 17, authorized “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority” to appeal to the Land Court, the Superior Court, the Housing Court, or the District Court.[2] The issue before us is whether the Legislature, by enacting G. L. c. 185, § 3A, intended to grant exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear this subset of major development permit appeals, or intended simply to create a permit session in the Land Court to hear these cases without eliminating the subject matter jurisdiction of the Housing Court to adjudicate this subset of appeals. We conclude that the Legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior Court. We […]
Categories: News Tags: 1001716, Development, Greenfield, Investors, Lawyers, Property, Skawski, Weekly
Commonwealth v. Firmin (Lawyers Weekly No. 11-015-16)
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-1873 Appeals Court COMMONWEALTH vs. KRISTIE L. FIRMIN. No. 14-P-1873. Middlesex. November 6, 2015. – February 10, 2016. Present: Katzmann, Milkey, & Carhart, JJ. Constitutional Law, Jury. Jury and Jurors. Practice, Criminal, Instructions to jury. Complaint received and sworn to in the Framingham Division of the District Court Department on February 29, 2012. The case was tried before Douglas W. Stoddart, J. Jin-Ho King for the defendant. Charles Koech, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from her conviction by a District Court jury of operating under the influence of alcohol, second offense, G. L. c. 90, § 24(1)(a)(1), on the basis that the trial judge gave a coercive jury instruction.[1] We agree.[2] Background. In the early morning hours of February 29, 2012, a Framingham police officer stopped a vehicle he had been following after he observed it making some erratic movements. The officer determined that the defendant was driving, and that she was under the influence of alcohol. The defendant was arrested and tried for operating a motor vehicle under the influence of alcohol. After closing arguments and following his general instructions on the law, the trial judge stated: “If I can give you some helpful hints — because we do this every day — it’s not fun or easy to be a juror, we know that. So, to the extent that you could create a collegial atmosphere in the room, that would be great. So, when the door shuts, it would be very helpful if people didn’t make pronouncements, you know, ‘This is the way I’m going to vote’, because then it’s hard to extract somebody from a corner and our goal is to get a unanimous verdict. “If we don’t get a unanimous verdict, it’s called a mistrial or a hung jury and we have to do this case all over again and we’re booked out until May now.[[3]] So, we’d really appreciate it if you guys could resolve this. So, I guess I would suggest that, maybe let everybody, you know, just chat informally, not take formal votes right away and then, at some point during the deliberations, if you see a ground swell of support in one direction or the other, then do whatever voting or whatever you need to do to get […]
Commonwealth v. Celester (Lawyers Weekly No. 10-016-16)
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-07874 COMMONWEALTH vs. JERMAINE CELESTER. Plymouth. October 9, 2015. – February 10, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Constitutional Law, Assistance of counsel, Confrontation of witnesses, Public trial. Evidence, Spontaneous utterance. Practice, Criminal, Capital case, New trial, Assistance of counsel, Confrontation of witnesses, Conduct of prosecutor, Argument by prosecutor, Public trial. Indictments found and returned in the Superior Court Department on April 19, 1994. A pretrial motion to suppress evidence was heard by Robert L. Steadman, J.; the cases were tried before Gordon L. Doerfer, J.; a motion for a new trial, filed on November 2, 2005, was heard by Robert C. Rufo, J.; and a second motion for a new trial, filed on June 20, 2013, was considered by Thomas F. McGuire, Jr., J. Chauncey B. Wood for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. Kirsten V. Mayer, Maria M. Carboni, David J. Derusha, Mark S. Gaioni, & David Lewis, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. BOTSFORD, J. In September, 1995, a Plymouth County jury convicted the defendant, Jermaine Celester, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty and of armed assault with intent to murder. The victims, Wakime Woods and Derek Gibbs, were shot while walking with the defendant on the night of February 18, 1994. Woods died as a result of his injuries; Gibbs lived, but was rendered a quadriplegic. On appeal, the defendant challenges the admission in evidence of the decedent’s out-of-court statement about who had shot him; the admission of the defendant’s statement to police; the prosecutor’s conduct, and in particular her closing argument; and the closure of the court room during jury empanelment. For the reasons discussed in this opinion, we affirm the defendant’s convictions, but vacate the order denying his first motion for a new trial and remand the case to the Superior Court for an evidentiary hearing on that motion. Background. From the evidence presented at trial, the jury could have found the following facts.[1] On the evening of February 18, 1994, Wakime Woods and Derek Gibbs were shot near the corner of Green and Newbury Streets in Brockton. The Commonwealth’s theory of the […]
Zenon v. Commonwealth (Lawyers Weekly No. 10-015-16)
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-11953 ABINEL ZENON vs. COMMONWEALTH. February 4, 2016. Supreme Judicial Court, Superintendence of inferior courts. Abinel Zenon appeals from a judgment of a single justice of this court denying his petition for relief from a protective order issued by a judge in the District Court. Zenon was charged with assault and battery and other offenses. He sought certain third-party records in support of his claim that the alleged victim was in fact the first aggressor. See Commonwealth v. Adjutant, 443 Mass. 649 (2005). The judge issued the protective order concerning these records, apparently following the Dwyer protocol. Commonwealth v. Dwyer, 448 Mass. 122, 139-147 (2006). See id. at 147-150 (Appendix). Zenon filed various motions in the District Court for relief from the protective order; these motions were only partially successful. Zenon’s petition followed. Treating the petition as one filed pursuant to G. L. c. 211, § 3, the single justice denied relief without a hearing. Zenon has since pleaded guilty to the charges.[1] We affirm the judgment of the single justice. Zenon has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a petitioner seeking relief from an interlocutory ruling of the trial court to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Passing the question whether the rule applies here, where the criminal case was resolved after the single justice made her decision, it is clear that Zenon had an adequate alternative remedy. At the time of the single justice’s decision, the charges were still pending. Had Zenon been tried and convicted of any offense, he could have challenged the protective order on direct appeal. See Rodriguez v. Commonwealth, 449 Mass. 1029, 1030 (2007) (discussing postconviction relief available under Dwyer protocol). If Zenon believes that the records have any continuing significance now that the charges have been resolved, he could move in the District Court for termination or modification of the protective order and, if such a motion is denied, appeal in the ordinary course from that ruling. Similarly, if he has a basis to do so, Zenon remains free to file a motion for a new trial pursuant to Mass. R. Crim. […]
EventMonitor, Inc. v. Leness (Lawyers Weekly No. 10-014-16)
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-11920 EVENTMONITOR, INC. vs. ANTHONY LENESS.[1] Suffolk. November 3, 2015. – February 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Employment, Termination. Contract, Employment, Performance and breach, Termination, Indemnity. Indemnity. Massachusetts Wage Act. Damages, Employment contract. Civil action commenced in the Superior Court Department on April 30, 2008. The case was heard by Jeffrey A. Locke, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ronald W. Dunbar, Jr. (Andrew E. Goloboy with him) for the plaintiff. Shana I. Kaplan (James E. O’Connell, Jr., with her) for the defendant. David J. Fried, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. DUFFLY, J. The plaintiff, EventMonitor, Inc. (EventMonitor), is a Delaware corporation, established in 2000, with headquarters in Boston. It develops and markets software for the financial industry. The defendant, Anthony Leness, was one of the early employees of the company. Leness was hired as EventMonitor’s vice-president for business affairs in June, 2001, upon his graduation from Harvard Business School. He served in that position for approximately six years, until he was terminated on December 5, 2007, two months after he had proposed a plan to restructure EventMonitor into two related entities, a proposal that Sheldon Chang, EventMonitor’s president and executive director, believed would undermine the future of the company. The termination was characterized as “without cause.” Under the terms of Leness’s employment contract, EventMonitor therefore was required to pay him one year’s salary and benefits, plus the value of any accrued but unused vacation time. Section 6(b) of the employment agreement provided that, upon termination, Leness was to return “all items containing or embodying Proprietary Information (including all copies).” Before his departure, Leness returned, among other things, a company laptop computer containing proprietary information that he had used in the course of his work at EventMonitor. Soon after Leness’s termination, through a forensic examination of the laptop computer, EventMonitor discovered that Leness had copied all of the data on the computer, including EventMonitor’s customer information and proprietary business plans, to a data backup and storage service accessed over the Internet. Leness had not informed EventMonitor about this backup before his termination was effective. To the contrary, Leness had paid the subscription for […]
Commonwealth v. Perez (Lawyers Weekly No. 11-014-16)
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-2166 Appeals Court COMMONWEALTH vs. GLORIA PEREZ. No. 11-P-2166. Essex. December 10, 2015. – February 3, 2016. Present: Kafker, C.J., Milkey, & Sullivan, JJ. Larceny. Bank. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses. Evidence, Hearsay, Verbal conduct, Business record, Authentication of document. Indictments found and returned in the Superior Court Department on April 30, 2008. The cases were tried before Leila R. Kern, J. Andrew S. Crouch for the defendant. Philip Anthony Mallard, Assistant District Attorney, for the Commonwealth. MILKEY, J. “[W]here’s Phyllis?” A bank teller posed that question to the defendant who was seeking to withdraw $ 300 from the checking account of an absent bank customer. The defendant, who worked as a customer service representative at the bank, had presented a withdrawal slip purportedly signed by Phyllis Wall, an elderly customer who relied on a walker and was well known to the employees at that particular branch. In response to the question, the defendant stated that Wall had signed the withdrawal slip earlier that day and that she planned to give the money to Wall later. The teller gave the defendant the money, but then notified the branch manager about the transaction.[1] An internal investigation ensued, and the defendant ultimately was indicted for twenty-six property offenses, all related to alleged theft from customer accounts. After trial, a Superior Court jury convicted the defendant of six of those offenses: two counts of larceny over $ 250, one of which was from a person sixty years or older (G. L. c. 266, § 30[1], [5]), two counts of forgery (G. L. c. 267, § 1), and two counts of uttering (G. L. c. 267, § 5). On appeal, she challenges the admission of various bank records, and she claims that the evidence for one of the larceny charges was insufficient in one respect. We affirm. Background. The Phyllis Wall withdrawals. Five of the six convictions involved Wall. The defendant frequently assisted Wall with her transactions, such as obtaining money orders to pay all of her bills. The five convictions related to Wall involved two cash withdrawals, including the one described above, which took place on July 21, 2006. As noted, the withdrawal slip that the defendant presented during that transaction was purportedly signed by Wall. Wall was not available to testify as to whether the signature on […]