Commonwealth v. Sylvain (Lawyers Weekly No. 10-036-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11896 COMMONWEALTH vs. KEMPESS SYLVAIN. Suffolk. November 5, 2015. – March 14, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Alien. Practice, Criminal, Plea, Judicial discretion, Affidavit. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 17, 2007. Following review by this court, 466 Mass. 422 (2013), further proceedings on a motion to vacate, filed on January 12, 2012, were had before James W. Coffey, J. The Supreme Judicial Court granted an application for direct appellate review. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Laura Mannion Banwarth (Wendy S. Wayne, Committee for Public Counsel Services, with her) for the defendant. DUFFLY, J. Relying on advice from his attorney that a plea agreement would not result in his deportation, the defendant, who is not a citizen of the United States, pleaded guilty to one count of possession of cocaine.[1] The attorney’s advice was incorrect, and Federal authorities eventually placed the defendant in a removal proceeding. The defendant moved to vacate his guilty plea pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), claiming ineffective assistance of counsel. That motion was denied, and we granted the defendant’s motion for direct appellate review. We concluded in Commonwealth v. Sylvain, 466 Mass. 422, 423-425 (2013) (Sylvain I), that the defendant received ineffective assistance from his plea counsel when counsel provided erroneous advice that the defendant would not be subject to deportation if he received a suspended sentence of less than one year in connection with a guilty plea to possession of cocaine. In our decision in Sylvain I, we noted that “[a]lthough the defendant’s affidavit [in support of the motion to vacate was] highly suggestive that he would have elected to go to trial but for his attorney’s erroneous advice,” we could not make such a determination in the absence of additional findings and credibility determinations. Id. at 439. We therefore remanded the matter to the Boston Municipal Court “with instructions to provide findings relating to the issue of prejudice and, if necessary, to hold an additional evidentiary hearing.” Id. On remand, the matter went before the judge who had accepted the defendant’s guilty plea, and who earlier had denied his motion to vacate that plea. […]
Goe v. Commissioner of Probation (Lawyers Weekly No. 10-035-16)
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-11841 GEORGE GOE[1] vs. COMMISSIONER OF PROBATION & another.[2] Suffolk. November 2, 2015. – March 14, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Practice, Criminal, Probation. Interstate Compact for Adult Offender Supervision. Global Positioning System Device. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 29, 2015. The case was reported by Cordy, J. Beth L. Eisenberg, Committee for Public Counsel Services (Lily Lockhart, Committee for Public Counsel Services, & Spencer Lord with her) for the petitioner. Steven R. Strom, of Connecticut, for the intervener. Sarah M. Joss, Special Assistant Attorney General, for Commissioner of Probation. U. Gwyn Williams, Laura Carey, & Charles Stones, for Citizens for Juvenile Justice & another, amici curiae, submitted a brief. GANTS, C.J. This case comes to us on a reservation and report from the single justice asking the following questions: “(1) Whether the Massachusetts courts are the appropriate forum for challenging additional probation conditions imposed on a probationer transferred to Massachusetts pursuant to the Interstate Compact for Adult Offender Supervision; and, if so, what is the proper mechanism for mounting such a challenge? “(2) Whether a transferee probationer is entitled to actual notice of mandatory [global positioning system (GPS)] monitoring pursuant to G. L. c. 265, § 47[,] from the sentencing judge, or whether such notice is implied or waived by a petitioner’s voluntary transfer to Massachusetts[?] “(3) Whether mandatory GPS monitoring for crimes committed as a minor constitutes cruel and unusual punishment, where the minor was convicted as an adult in another jurisdiction? “(4) Whether the Commissioner of Probation’s Policy on the Issuance of Travel Permits is ultra vires; and, if not, whether the application of that policy to the petitioner violated his right to interstate travel?” In answer to the first question, we conclude that, where a probationer whose supervision is transferred to Massachusetts under the Interstate Compact for Adult Offender Supervision (compact) contends that a special condition of probation that was added by Massachusetts is not mandated by Massachusetts law or is unconstitutional, this determination is appropriately made by a Massachusetts court, and the appropriate mechanism to obtain such a determination is through a complaint for declaratory relief. We also conclude that […]
Commonwealth v. Smith (Lawyers Weekly No. 10-034-16)
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-11723 COMMONWEALTH vs. DONOVAN K. SMITH. Worcester. November 6, 2015. – March 11, 2016. Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ. Homicide. Robbery. Attempt. Felony-Murder Rule. Constitutional Law, Admissions and confessions, Assistance of counsel. Evidence, Admissions and confessions, Videotape. Practice, Criminal, Admissions and confessions, Assistance of counsel, Capital case. Indictments found and returned in the Superior Court Department on December 7, 2010. A pretrial motion to suppress evidence was heard by Janet Kenton-Walker, J., and the cases were tried before John S. McCann, J. Aziz Safar for the defendant. Susan M. Oftring, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. A Superior Court jury found the defendant guilty of the attempted armed robbery and murder in the first degree of Michelle Diaz on theories of extreme atrocity or cruelty and felony-murder. In this direct appeal from his convictions, the defendant challenges the admission in evidence of his videotaped statement to the police, and the admission of an enhanced recording of a statement made by the defendant while he was left alone during the police interrogation. He requests relief pursuant to G. L. c. 278, § 33E. We conclude that the failure of the police to honor the defendant’s right to terminate questioning, a claim the defendant did not raise below, created a substantial likelihood of a miscarriage of justice and requires the reversal of the defendant’s convictions; the defendant is entitled to a new trial. 1. Background. From the evidence presented at trial, the jury could have found the following. On August 24, 2010, at approximately 12:45 P.M., Sara Ventura parked her automobile on Fairfax Road in Worcester. As she was getting out of the vehicle, she heard a loud scream and looked in the direction of the scream. She saw nothing, but a few seconds later, she heard what sounded like a gunshot. She then saw a young African-American man running very quickly down the street.[1] Around the same time, Carlos Tumer, who was in his apartment on Fairfax Road, heard a “pop” and looked outside the window, where he saw a woman, later identified as the victim, sitting in the driver’s seat of a Lexus automobile with the front passenger’s door open. Tumer also noticed a dark-skinned man wearing a black shirt […]
New England Precision Grinding,l Inc. v. Simply Surgical, LLC, et al. (Lawyers Weekly No. 11-026-16)
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-1637 Appeals Court NEW ENGLAND PRECISION GRINDING, INC. vs. SIMPLY SURGICAL, LLC[1] & another.[2] No. 14-P-1637. Worcester. November 2, 2015. – March 9, 2016. Present: Milkey, Carhart, & Massing, JJ. Uniform Commercial Code, Acceptance of goods, Revocation of acceptance. Indemnity. Judgment, Interest. Practice, Civil, Instructions to jury, Judgment notwithstanding verdict, Verdict. Civil action commenced in the Superior Court Department on August 7, 2006. The case was tried before Richard T. Tucker, J., and motions for the entry of separate and final judgment and to reach the proceeds of the judgment were heard by him. Barry A. Bachrach for the plaintiff. Matthew R. Johnson for Simply Surgical, LLC. Dale C. Kerester for Iscon Surgicals, Ltd. CARHART, J. This Superior Court contract action stems from the sale by defendant Simply Surgical, LLC (Simply Surgical) to plaintiff New England Precision Grinding, Inc. (NEPG) of medical device parts manufactured by defendant Iscon Surgicals, Ltd. (Iscon). All three parties appeal from an amended judgment entered on January 8, 2013, in favor of Simply Surgical; Iscon also appeals from an order entered on January 18, 2013, denying its motion for entry of a separate and final judgment and to reach the proceeds of the judgment due to Simply Surgical from NEPG.[3] On appeal, NEPG argues that the judge wrongly declined to instruct the jury that, under the Uniform Commercial Code (U.C.C.), codified in Massachusetts at G. L. c. 106, NEPG had the right to revoke its acceptance of parts once they were rejected by its customer Kyphon, Inc. (Kyphon). It also complains that the jury’s verdict was against the weight of the evidence and its award excessive. Simply Surgical argues that the judge erroneously prevented it from presenting its claim for common-law indemnification against Iscon. Iscon contends that the judge should have corrected the amount of the damages awarded by the jury to include the total unpaid balance sought by Iscon on its account stated. We affirm the amended judgment, and the order entered January 18, 2013, denying Iscon’s motion. Background. We summarize the trial evidence. NEPG is a Massachusetts-based manufacturer of precision medical components. In or around 2004, NEPG contracted with Kyphon and agreed to supply Kyphon with medical device parts referred to as stylets and nozzles.[4] In 2005, Kyphon ordered six lots from […]
Commonwealth v. LaBrie (Lawyers Weekly No. 10-031-16)
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-11836 COMMONWEALTH vs. KRISTEN A. LaBRIE. Essex. November 2, 2015. – March 9, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Attempt. Homicide. Assault and Battery. Reckless Endangerment of a Child. Intent. Evidence, Intent. Practice, Criminal, Assistance of counsel. Indictments found and returned in the Superior Court Department on July 3, 2009. The cases were tried before Richard E. Welch, III, J., and a motion for a new trial, filed on June 6, 2013, was heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michelle Menken for the defendant. Marcia H. Slingerland, Assistant District Attorney (Kate Berrigan MacDougall, Assistant District Attorney, with her) for the Commonwealth. BOTSFORD, J. The defendant, Kristin LaBrie, was charged with the attempted murder of her young son and related assault and battery and child endangerment crimes. The Commonwealth contends that the defendant, with the intent to kill her son, did not give him prescribed chemotherapy and other medications designed to treat the cancer from which he suffered and ultimately died. At a trial before an Essex County jury, the defendant was convicted on these charges; before us is her appeal from these convictions and also from the denial of her motion for a new trial. The defendant claims that her conviction of attempted murder must be reversed because the Commonwealth was required, and failed, to prove that the substantive crime of murder was not achieved, and because the judge’s instructions to the jury on this crime were erroneous. She further claims that the evidence also was insufficient to permit convictions of the two assault and battery charges, and again that the judge’s instructions were legally incorrect. Finally, the defendant argues that the judge erred in denying her motion for a new trial and in particular in rejecting her claims concerning the ineffective assistance provided by trial counsel. For the reasons discussed below, we affirm the defendant’s conviction of reckless endangerment of a child under G. L. c. 265, § 13L; reverse the judgments on both assault and battery charges and order judgment for the defendant on those charges; and reverse the order denying the defendant’s motion for a new trial on the charge of attempted murder. Background. […]
Esler v. Sylvia-Reardon, et al. (Lawyers Weekly No. 10-032-16)
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-11899 MARIE ESLER vs. MARY SYLVIA-REARDON & another.[1] Suffolk. November 3, 2015. – March 9, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Family & Medical Leave Act. Employment, Retaliation, Termination. Civil action commenced in the Superior Court Department on March 11, 2010. The case was tried before Linda E. Giles, J., and a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was heard by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Herbert L. Holtz (Thomas A. Reed with him) for the defendants. Jonathan J. Margolis for the plaintiff. Meghan Hayes Slack & Chetan Tiwari, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. BOTSFORD, J. Only one count of the plaintiff Marie Esler’s eight-count complaint against her former employer, defendant Massachusetts General Hospital (hospital), and her former supervisor, defendant Mary Sylvia-Reardon, survived for purposes of trial.[2] In answer to special questions, a jury returned a verdict in Esler’s favor on her claim that the hospital terminated her employment in retaliation for her exercise of the right to take medical leave under the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. (2012), and awarded her damages consisting of $ 567,500 in back pay and $ 672,686 in front pay. The defendants thereafter filed a motion for judgment notwithstanding the verdict (judgment n.o.v.)[3] or, in the alternative, for a new trial. See Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998). The trial judge allowed the motion for judgment n.o.v. but took no specific action on the defendants’ alternative request for a new trial.[4] The judge also ruled that the issue of front pay should not have been submitted to the jury, and she concluded that there was insufficient evidence to provide for such an award in this case. In a decision issued pursuant to its rule 1:28, the Appeals Court reversed the entry of judgment for the defendants on the motion for judgment n.o.v. and affirmed the judge’s order with respect to front pay. The case is now before us for further appellate review. Like the Appeals Court, we reverse the allowance of the defendants’ motion […]
Katz, Nannis & Solomon, P.C., et al. v. Levine, et al. (Lawyers Weekly No. 10-033-16)
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-11902 KATZ, NANNIS & SOLOMON, P.C., & others[1] vs. BRUCE C. LEVINE & another.[2] Norfolk. December 10, 2015. – March 9, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Massachusetts Arbitration Act. Arbitration, Judicial review, Scope of arbitration, Confirmation of award, Authority of arbitrator, Damages, Attorney’s fees. Contract, Arbitration. Practice, Civil, Attorney’s fees, Costs. Damages, Attorney’s fees. Civil action commenced in the Superior Court Department on February 27, 2013. A motion to confirm an arbitration award was heard by Patrick F. Brady, J.; a motion for attorney’s fees and costs was heard by him; and entry of separate and final judgments was ordered by him. The Supreme Judicial Court granted an application for direct appellate review. Thomas J. Carey, Jr. (Daniel J. Cloherty & Victoria L. Steinberg with him) for Bruce C. Levine. Warren D. Hutchison (Nancy M. Reimer with him) for the plaintiffs. Joseph S.U. Bodoff, for Levine, Caufield, Martin & Goldberg, P.C., was present but did not argue. BOTSFORD, J. The central question presented in this appeal is whether parties to a commercial arbitration agreement may alter by contract the scope or grounds of judicial review of an arbitration award that are set out in the Massachusetts Uniform Arbitration Act for Commercial Disputes (MAA), G. L. c. 251. We decide that the grounds of judicial review are limited to those delineated in G. L. c. 251, §§ 12 and 13. Background. The defendant Bruce C. Levine and the plaintiffs Allen G. Katz, Lawrence S. Nannis, and Jeffery D. Solomon were members of an accounting firm known as Levine, Katz, Nannis & Solomon, P.C. (LKNS or firm). They were each a shareholder in the firm, and a party to a stockholder agreement dated October 1, 1998 (agreement), that governed their professional association and relationship.[3] In 2011, Katz, Nannis, and Solomon, purporting to act pursuant to the agreement, voted to require the withdrawal of Levine as a director and stockholder in LKNS; Levine disagreed that the termination of his stockholder interest and position was in accordance with the agreement’s terms, and the arbitration at issue in this case concerned that dispute. We summarize the relevant provisions of the agreement, the parties’ dispute leading to arbitration, and the arbitration award, followed by a summary of the proceedings in the […]
Commonwealth v. Royal (Lawyers Weekly No. 11-025-16)
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-1902 Appeals Court COMMONWEALTH vs. TITUS T. ROYAL. No. 14-P-1902. Suffolk. December 1, 2015. – March 7, 2016. Present: Rubin, Maldonado, & Massing, JJ. Motor Vehicle, License to operate. License. Registrar of Motor Vehicles, Records. Evidence, Hearsay, Business record. Notice. Practice, Criminal, Hearsay. Complaint received and sworn to in the Charlestown Division of the Boston Municipal Court Department on December 11, 2013. The case was heard by Lawrence E. McCormick, J. Rachel T. Rose for the defendant. Priscilla Guerrero (Cailin M. Campbell, Assistant District Attorney, with her) for the Commonwealth. MASSING, J. The defendant, Titus T. Royal, appeals from his conviction, after a bench trial in the Charlestown Division of the Boston Municipal Court Department, of driving with a suspended license in violation of G. L. c. 90, § 23. He claims that the Commonwealth relied on inadmissible hearsay evidence to prove the element of license suspension, that the Commonwealth failed to prove that the registry of motor vehicles (registry) mailed him notice of its intent to suspend his license, and that the evidence was insufficient to sustain his conviction. Because the Commonwealth’s evidence of license suspension — an officer’s testimony that he “ran . . . the [defendant’s driver’s] license number through the Registry of Motor Vehicles” and it “came with a status of suspended” — was inadmissible hearsay, we reverse the conviction. Background. On the morning of November 4, 2013, State Trooper Jeffrey Morrill, who was the only witness to testify at trial, stopped the car the defendant was driving for having an expired registration decal. Using the laptop computer in his cruiser, Morrill “activated C[J]IS”[1] and ran the car’s registration and the defendant’s driver’s license through the registry database. Over the defendant’s objection that the testimony was hearsay, Morrill stated, “The registration came back as status expired, non-renewable. And the Massachusetts license came with a status of suspended.” In addition, the Commonwealth introduced in evidence four certified registry documents. These included two notices of the registry’s intent to suspend the defendant’s license, both dated August 5, 2013, addressed to the defendant. The first notice informed the defendant that on the basis of “3 Surchargeable Events,” the registry would suspend his license on November 3, 2013, unless he timely completed a driver retraining program.[2] The second notice informed him that his license would be suspended on […]
Insurance Company of the State of Pennsylvania v. Great Northern Insurance Company (Lawyers Weekly No. 10-030-16)
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-11897 INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA vs. GREAT NORTHERN INSURANCE COMPANY. Suffolk. November 2, 2015. – March 7, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Workers’ Compensation Act, Insurer, Coverage, Election of remedies. Insurance, Workers’ compensation insurance, Contribution among insurers, Insurer’s obligation to defend. Contribution. Tender. Election of Remedies. Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts. Barbara I. Michaelides, of Illinois (Aaron S. Bayer, of Connecticut, with her) for the plaintiff. Jennifer C. Sheehan (Richard J. Shea with her) for the defendant. Laura Meyer Gregory, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief. GANTS, C.J. The United States Court of Appeals for the First Circuit certified the following question to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): “Where two workers’ compensation insurance policies provide coverage for the same loss, may an insured elect which of its insurers is to defend and indemnify the claim by intentionally tendering its defense to that insurer and not the other and thereby foreclose the insurer to which tender is made from obtaining contribution from the insurer to which no tender is made?” We answer “no” to the question. Where, as here, two primary workers’ compensation insurance policies provide coverage for the same loss arising from injury to an employee, the insurance company that pays the loss has a right of equitable contribution to ensure that the coinsurer pays its fair share of the loss. The employer of the injured employee may not prevent the insurance company that pays the loss from exercising its right of equitable contribution by intentionally giving notice of the injury only to that insurer.[1] Background. We set forth below the relevant background and procedural history of the case contained in the certification order from the First Circuit, occasionally supplemented by undisputed information in the record. In January, 2010, an employee of Progression, Inc. (Progression), was severely injured in an automobile accident while traveling abroad on a business trip. Progression had purchased two workers’ compensation policies from two different insurers, one providing compulsory workers’ compensation coverage from the Insurance Company of the State of Pennsylvania (ISOP), […]