ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 12-172-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-1367-BLS2 ABCD HOLDINGS, LLC, Plaintiff vs. PATRICK HANNON, SOFIA GAGUA, PATRICK (“P.J.”) HANNON, RHR, LLC, SIMILAR SOILS, INC. and AGRITECH, INC., Defendants And J.DERENZO CO., SOFIA GAGUA, RHR, LLC, PATRICK (“P.J.”) HANNON, SIMILAR SOILS, INC., IMMANUEL CORP., AGRITECH INC., and L-5 INC., Reach and Apply Defendants MEMORANDUM OF DECISION AND ORDER ON MOTIONS TO DISMISS This is an action seeking to collect on a personal guaranty and to recover for other allegedly wrongful conduct following the execution of that document. The guaranty was executed by defendant Patrick Hannon on a loan for $ 219,759. The lender, Bright Horizons Finance, LLC, subsequently assigned its rights under the promissory note and under the guaranty to the plaintiff ABCD Holdings, Inc. Plaintiff has sued not only Hannon but various other individuals and entities on a variety of legal theories. Now before the Court are motions to dismiss by: 1) Hannon, as to some (but not all) counts against him; 2) defendants P.J. Hannon and RHR, LLC; and 3) defendant Agritech, Inc. This Court concludes that Hannon’s Motion must be Denied but that the other two Motions must be Allowed. 2 BACKGROUND This action was instituted on June 6, 2016. Plaintiff tried and failed to obtain a preliminary injunction against Hannon. See Memorandum of Decision dated June 24, 1016 (Salinger, J.) The case was once again before the Court in connection with various motions to dismiss, which were allowed in part and as to other counts reserved, since plaintiff’s counsel indicated that he would amend the complaint. The Amended Complaint was filed on October 7, 2016. The allegations as set forth in the Amended Complaint, together with attachments thereto, are as follows. The loan which is at the heart of this case was made on July 21, 2011. It was made by Bright Horizons, an entity owned by Boston attorney George McLaughlin. The loan was made to two companies, Ware Real Estate (Ware) and ABC&D Recycling (Recycling). Ware owns real property in Ware, Massachusetts improved with a waste transfer station; at the time, it was wholly owned by defendant Hannon. Recycling was in the business of recycling debris from construction sites and operated the waste transfer station in Ware. Hannon was its president and sole officer. Hannon was also a long time client of McLaughlin. The loan to Ware and Recycling was payable in full on demand, pursuant to terms set forth in a promissory note (the “W&R Note”) with payments of interest to be made on a monthly basis. The W&R Note is attached to the Amended Complaint as Exhibit A. In addition to requiring payment on demand, the W&R Note gave Bright Horizon the […]
Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 12-174-16)
-1- COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Premises). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the land, defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the land and the Grantor of the Conservation Restriction. Plaintiffs allege that the Foundation made a $ 3 million gift to Ballou Channing in exchange for Ballou Channing’s agreement to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”). The case is now before this Court on the defendants’ motions to dismiss pursuant to Mass. R. Civ. P. 12(b) (1) and Mass. R. Civ. P. 12(b)(6). Ballou Channing moves to dismiss all -2- counts asserted against it; Cedar Hill moves to dismiss some but not all of the counts against it. The motions raise difficult questions, some of which would benefit from discovery and cannot be decided at this early stages in the case. Still, there are certain claims that are not supported by the facts alleged in the Complaint or the applicable law, and which must therefore be dismissed, for reasons set forth below. BACKGROUND The Complaint contains the following allegations which, for purposes of these motions, are assumed to be true. The Foundation is a private charitable foundation created by John and Cynthia Reed. The Reeds are abutters to the Premises, which consists of 12.23 acres of land. Ballou Channing is a nonprofit religious corporation organized pursuant to Chapter 180 of the General Laws. Ballou Channing acquired the Premises in 1980 through a Deed of Gift that imposed certain restrictions on its use. Located on the Premises are a building and improvements that have historically been known as the Cedar Hill Retreat Center. Ballou Channing would periodically permit the center to be used by its member congregations. In 2007, the Reeds learned that the restrictions imposed on the Premises through the Deed of Gift were to expire within the next couple of years. Thee Reeds wished to preserve the Premises in conformity with those original restrictions; negotiations with Ballou Channing […]
Columbia Plaza Associates, et al. v. Northeastern University (Lawyers Weekly No. 12-175-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-2392-BLS 2 COLUMBIA PLAZA ASSOCIATES, et al. Plaintiffs vs. NORTHEASTERN UNIVERSITY Defendant FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT This case arises from a series of agreements between the defendant Northeastern University (Northeastern) and the plaintiff Columbia Plaza Associates (CPA), a minority owned general partnership. The agreements related to the development of land known as Parcel 18 adjacent to Northeastern’s main campus. Northeastern owned the parcel, and plaintiffs held certain development rights. Plaintiffs allege that that Northeastern reaped unbargained for benefits in developing the parcel without adequately compensating them, and also convinced the Boston Redevelopment Authority (BRA) to approve plans needed to allow that development by misrepresenting to the BRA that it had the plaintiffs’ participation. This matter came before the Court in October 2016 for jury-waived trial on the sole remaining count of the Verified Complaint, Count VII, alleging a violation of Chapter 93A. This Court concludes that judgment should enter for the defendant. 2 FINDINGS OF FACT1 Parcel 18 is located in the Roxbury neighborhood of Boston next to Northeastern’s main campus. It consists of five sub parcels: 18-1A, 18-1B, 18-2, 18-3A and 18-3B. The BRA designated Parcel 18 as a Planned Development Area (PDA), specifically PDA 34. A PDA is a zoning overlay district and is one of the tools used by the BRA to impose certain controls on commercial development. Those tools include Cooperation Agreements, Sales and Construction Agreements, Master Plans and Development Plans. In June 1989, the BRA adopted a Master Plan and a Development Plan for Parcel 18. The Master Plan provided for the development of multiple buildings on four of the sub parcels, 18-1A, 18-1B, 18-3A, and 18-3B (collectively the “Development Parcels”). The remaining sub parcel, 18-2, was to be the site of a parking garage (the “Garage Parcel”). At the time, Parcel 18 was owned by various government entities, although Northeastern would ultimately become the owner of all of Parcel 18. CPA was formed for the purpose of participating in Boston’s “linkage plan,” a program created to promote development in areas of Boston in need of revitalization by linking together a commercial developer with a minority partner. CPA held certain development rights on Parcel 18. The commercial developer with whom CPA was paired was Metropolitan Structures, an Illinois-based general partnership. From its inception until December 2008, CPA had two general partners: plaintiff Ruggles-Bedford Associates Limited Partnership, (Ruggles-Bedford LP) comprised primarily of 1 In ruling on a motion for summary judgment in this case, another Superior Court judge outlined in the “Background” section of his decision certain facts contained in the summary judgment record, with all inferences drawn in favor of the […]
Categories: News Tags: 1217516, Associates, Columbia, Lawyers, Northeastern, Plaza, university, Weekly
Stemgent, Inc. v. Orion Equity Partners, et al. (Lawyers Weekly No. 12-176-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2013-2212-BLS2 STEMGENT, INC., Plaintiff vs. ORION EQUITY PARTNERS, ORION EQUITY PARTNERS, LLC and MARK CARTHY, Defendants FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT This case arises from events leading up to plaintiff Stemgent Inc.’s acquisition of another company, Asterand. The defendant Mark Carthy through Orion Equity Partners (Orion) was one of the competing bidders for Asterand’s business.1 Stemgent brought this lawsuit alleging that Carthy tortiously interfered with an exclusive negotiation agreement between Stemgent and Asterand and that as a result of Carthy’s improper conduct, Stemgent was forced to pay a higher price for Asterand’s assets than it would have without such interference. Stemgent alleges that this conduct also constituted an unfair and deceptive business practice in violation of Chapter 93A. The case came before this Court for jury waived trial in October 2016. This Court concludes that judgment should enter for the defendants, the plaintiff having failed to prove that Carthy had an improper motive or used improper means in connection with his competing bid. 1 Because Carthy and Orion are one and the same, and Orion did not become a limited liability company until after events in this case, this Court sees no reason to distinguish between the three defendants and will refer only to Carthy. 2 FINDINGS OF FACT Asterand is a leading provider to scientists of high quality human tissue and tissue based research solutions. At the time of events in this case, it had two parts to its business, one located in Detroit, Michigan where human tissue was collected, stored, and prepared for shipping (the Tissue Business) and a second research arm located in the United Kingdom known as Bioseek. In 2011, Asterand received notices of default on $ 9 million of debt to two secured lenders. With insufficient funds to pay off the debt, Asterand made a decision to sell its assets. Initially, it sought to sell both parts of its business, then elected to sell each part separately on parallel tracks. To assist it in the sale, Asterand engaged Covington Associates (Covington), a Boston based investment banking firm. Steven Mermelstein was the Covington employee assigned to Asterand, although its managing director Chris Covington also played a role. On January 8, 2012, Covington sent out an instruction letter to potential bidders that outlined the bidding process. Among other things, the letter instructed bidders not to contact Asterand or its affiliates directly but to work through Covington. One of the potential bidders receiving this letter was the defendant Mark Carthy. Carthy had worked in various corporate positions before ending up at Oxford Biosciences (Oxford) in 2000. There, Carthy was involved in making venture capital investments […]
In re Ovascience, Inc. Stockholder Litigation (Lawyers Weekly No. 12-177-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIV. NO. 15-03087 BLS 2 (Consol. With 16-0645) IN RE OVASCIENCE, INC. STOCKHOLDER LITIGATION MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This is a putative class action brought pursuant to Sections 11, 12 and 15 of the Securities Act of 1933. Plaintiffs are investors who purchased stock in the defendant Ovascience, Inc. (Ovascience or the Company). They allege that a Registration Statement issued in connection with a secondary offering of Ovascience stock on January 8, 2015 (the January 8 Offering), contained false statements and material omissions of fact concerning an experimental fertility treatment (AUGMENT) that Ovascience was in the process of developing. In addition to suing Ovascience, plaintiffs have also named as defendants certain of the Company’s officers and directors (collectively, the Ovascience defendants) as well as three investment banks, J.P. Morgan, Credit Suisse and Leerink Partners, which were the underwriters in the January 8 Offering (the Underwriters). The case is now before the Court on the defendants’ Motion to Dismiss pursuant to Rule 12(b) (6), Mass.R.Civ.P. After careful review of the parties’ submissions, the Court concludes that the Motion should be DENIED. This memorandum sets forth a brief explanation of the reasons for that decision. The defendants makes two argument in support of their motion. First, they contend that the Complaint fails to allege sufficient facts, under the standard set forth in Iannachino v. Ford Motor Co., 451 U.S. Mass. 623 (2008), that the Registration Statement contained material 2 misrepresentations.1 This Court disagrees. The Complaint sets forth detailed allegations that the Registration Statement contained misleading statements or failed to include material facts regarding: 1) the science behind AUGMENT; 2) the success rate; 3) the reason why the Company undertook its studies outside of the United States; and 4) the profitability of the Company. Plaintiffs allege that, as a result of the falsely optimistic picture the Registration Statement painted regarding AUGMENT’s prospects as a fertility treatment, stocks prices for Ovascience briefly shot up (with certain of the individual defendants profiting from that rise), then sharply declined when the facts regarding AUGMENT emerged just a few months later – facts that were known at the time the Registration Statement issued. This more than satisfies the requirement that the Complaint set forth facts “plausibly suggesting (not merely consistent with) an entitlement to relief…” Iannacchino, supra, quoting Bell Atl. Corp. v. Twombly, 550 Mass. 544, 555 (2007). The second argument concerns the issue of standing. The claims are brought pursuant to Section 11, 12 and 15 of the Securities Act. In order to have standing to bring a claim under Section 11, a plaintiff must have purchased shares either in the offering […]
Categories: News Tags: 1217716, Inc., Lawyers, Litigation, Ovascience, Stockholder, Weekly
Feeney v. Wave Systems Corp., et al. (Lawyers Weekly No. 12-173-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-01938-BLS2 GERARD T. FEENEY, Plaintiff vs. WAVE SYSTEMS CORP., WILLIAM M. SOLMS, & WALTER A. SHEPHARD, Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT This is an action alleging a failure to pay accrued vacation time in violation of the Massachusetts Wage Act, G.L.c. 149 §148. Plaintiff, a former Chief Financial Officer for Wave Systems Corp. (Wave), has sued not only Wave but two of its officers, CEO and President William M. Solms and CFO Walter A. Shephard. Wave is in bankruptcy, so the claims against it are stayed. Now before the Court are plaintiff’s Motion for Summary Judgment and defendants’ Motion for Partial Summary Judgment. This Court concludes that both motions must be DENIED, except as to the issue of notice raised by the defendants’ motion. Although certain facts in the summary judgment record are undisputed, the record also contains many fact disputes on critical issues. Briefly summarized, the record reveals the following. When Feeney was first hired by Wave in June 1998, the terms of his employment were set forth in an Employment Agreement. In addition to salary, Feeney was entitled to four weeks of vacation “in accordance with such executive benefit plans and policies as have been or may be established by Wave.” Upon termination, Feeney was entitled to be paid for all vacation 2 accrued as of the date of termination. In 2002, however, Wave issued an Employee Handbook which capped vacation pay at a total of 320 hours. There is a dispute of fact as to whether this applied to Feeney. Plaintiff relies heavily on the affidavit submitted by Wave’s former CEO Stephen Sprague in which Sprague states that he decided in or around 2004 not to apply the vacation cap in the Employee Handbook and to permit employees to accrue their vacation time without limitation. However, Solms has submitted a competing affidavit which states that the Handbook controlled and that a vacation cap has been and continued to be applied to employees, including executives like Feeney. Although plaintiff correctly notes that Solms joined the company only in October 2013 and therefore would have no personal knowledge about company policies before that date, there is other evidence in the summary judgment record which backs him up. Specifically, Kathleen Donovan, who worked in the Human Resources Department at Wave and was Wave’s Controller during the relevant time period, states in an affidavit that Sprague never informed her that he was changing what was contained in the Employee Handbook and that it was her understanding that a cap applied. Emails dated in 2007 and 2008 by other […]
Commonwealth v. Doe (Lawyers Weekly No. 11-180-16)
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 15-P-348 Appeals Court COMMONWEALTH vs. JUAN DOE.[1] No. 15-P-348. Middlesex. October 4, 2016. – December 28, 2016. Present: Cypher, Cohen, & Green, JJ. Criminal Records. Criminal Offender Record Information. Practice, Criminal, Record, Nolle prosequi. Indictment found and returned in the Superior Court Department on June 10, 2010. After the entry of a nolle prosequi, a petition to seal the record, filed on October 7, 2014, was heard by Kathe M. Tuttman, J. J.W. Carney, Jr., for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. COHEN, J. Juan Doe appeals from an order of a judge of the Superior Court denying his petition to seal his criminal record in a case terminated by a nolle prosequi. We infer from the order that, in balancing the interests of the public and the defendant, as required by Commonwealth v. Pon, 469 Mass. 296 (2014), the judge may have relied upon a factor that is inconsistent with Pon‘s revised standard for discretionary sealing, and may have placed too much importance on another factor that was of limited concern in the circumstances. For those reasons, and for the additional reason that there has been a material change in circumstances since the petition was denied,[2] we vacate the order and remand for reconsideration. Background. In June, 2010, Doe was indicted for murder in the first degree in connection with the death of his six month old son. The Commonwealth’s theory was that the child had died as a result of abusive head trauma commonly known as shaken baby syndrome;[3] however, while the case was pending, it was learned that Doe’s wife and her family had a previously unknown history of collagen vascular disease, a genetic condition that was relevant to determining the child’s cause of death. This information was supplied to the prosecution and the medical examiner, who, in August, 2014, revised his ruling on the manner of death from “homicide” to “could not be determined.” Shortly thereafter, on September 18, 2014, the Commonwealth filed a nolle prosequi, stating that it could not “meet its burden of proving cause of death beyond a reasonable doubt when the revised ruling is considered in light of all the circumstances of this case.” On October 7, 2014, Doe filed a petition, pursuant to […]
Categories: News Tags: 1118016, Commonwealth, Lawyers, Weekly
Commonwealth v. Roe (Lawyers Weekly No. 11-181-16)
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 15-P-878 Appeals Court COMMONWEALTH vs. JOSHUA W. ROE. No. 15-P-878. Plymouth. October 13, 2016. – December 28, 2016. Present: Cypher, Cohen, & Green, JJ. Indecent Assault and Battery. Evidence, Prior misconduct, Relevancy and materiality, Grand jury proceedings. Grand Jury. Practice, Criminal, Instructions to jury, Grand jury proceedings. Indictment found and returned in the Superior Court Department on July 20, 2012. The case was tried before Charles J. Hely, J. Thomas Dougherty for the defendant. Keith Garland, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Joshua W. Roe, appeals from his conviction by a Superior Court jury on January 8, 2015, of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B. The defendant raises four arguments in this appeal: (1) that the inadvertent disclosure of the defendant’s alleged prior sexual assault unduly prejudiced the defendant; (2) that the judge abused his discretion by allowing the victim’s father to testify about the defendant’s possible sexual interests; (3) that the judge erred in denying the defendant’s motion to dismiss the grand jury’s indictment; and (4) that the judge erred by denying the defendant’s motion in limine regarding the delayed disclosure of unexpected testimony by the victim. Due to multiple errors, as discussed infra, including the admission in evidence of an inadmissible prior bad act, the conviction must be reversed. Background. We summarize the facts that the jury could have found, reserving some details for later discussion of the issues raised by the defendant. The defendant was an assistant Boy Scout leader for a troop in Wareham. The victim, a thirteen year old boy, was a member of the defendant’s troop. The defendant would sometimes bring the victim to and from scout meetings to help the victim’s family, whom he grew to know through a working relationship with the victim’s father. In November, 2011, while driving the victim home, the defendant stated that he could stop the vehicle and have his way with the victim. The victim asked whether the defendant was homosexual, and the defendant replied that he was bisexual. In December of that year, the defendant stated to the victim, “you know I could turn you on.” Later, in March, 2012, the defendant, his mother, and the victim were returning […]
Categories: News Tags: 1118116, Commonwealth, Lawyers, Weekly
Commonwealth v. Douglas, et al. (Lawyers Weekly No. 12-170-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1184CR10964 1184CR10978 ____________________ COMMONWEALTH v. JASON DOUGLAS and WAYNE STEED ____________________ MEMORANDUM AND ORDER ALLOWING DEFENDANTS’ MOTIONS TO DISMISS PURSUANT TO RULE 36 Jason Douglas and Wayne Steed are accused of constructively possessing a loaded firearm. The police searched a vehicle and found a loaded handgun under the front passenger seat where Douglas had been sitting and immediately in front of the right rear seat where Steed had been sitting. Both men were indicted for unlawfully possessing a firearm, a loaded firearm, and the ammunition in the gun.1 Several years passed while the legality of the vehicle search was litigated. Judge Sanders suppressed the firearm and ammunition. The Appeals Court affirmed, but the Supreme Judicial Court granted further appellate review and reversed.2 The Superior Court magistrate held a status conference in July 2016 and scheduled trial for October 12, 2016. Twelve days before trial the Commonwealth moved for a continuance so that its ballistician witness could attend a training program. Defendants objected, but the trial was continued to January 13, 2017. Defendants now move to dismiss all indictments against them on the ground that the twelve-month speedy trial time limit imposed by Mass. R. Crim. P. 36 has been exceeded. The Court concludes that it must ALLOW these motions because the Commonwealth has not met its burden of showing that continuing the trial from 1 The charges for possessing a loaded firearm and possessing the ammunition found in the gun are duplicative. See Commonwealth v. Johnson, 461 Mass. 44, 51-54 (2011). The charges for possessing a firearm and for possessing a loaded firearm are not duplicative, because the latter charge carries an enhanced penalty in addition to that imposed for the former charge. See Commonwealth v. Rivas, 466 Mass. 184, 189 n.7 (2013) (dictum); Commonwealth v. Charles, 81 Mass. App. Ct. 901, 902, rev’d in part, 461 Mass. 1108 (2012). 2 See Commonwealth v. Douglas, 86 Mass. App. Ct. 404 (2014), rev’d, 472 Mass. 439 (2015). – 2 – October 2016 to January 2017 was justified or required by the unavailability of an essential witness, and as a result the Rule 36 speedy trial clock has run out. The Commonwealth has not proved that the ballistician whose schedule it was seeking to accommodate was essential (because the Commonwealth could have proved its case with a substitute expert witness or with no ballistician at all) or that this witness was unavailable within the meaning of Rule 36 (because a police department employee is not unavailable merely because she or he would prefer to go to an out-of-state training program). 1. Legal Background. “Rule 36 ensures that defendants are brought to trial within a reasonable […]
Commonwealth v Polizzotti (Lawyers Weekly No. 12-171-16)
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CRIMINAL ACTION No. 1581-CR-0436 COMMONWEALTH vs. KYLE POLIZZOTTI, Defendant. MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS IDENTIFICATIONS Shortly after two men fled from Lowell police detectives during an investigative stop, two detectives separately identified the defendant, Kyle Polizzotti (“Polizotti”), as one of the men who had fled, based on a single booking photograph. Polizzotti moved to suppress the two identifications as unnecessarily suggestive and therefore in violation of his due process rights. The Court held a hearing on December 6, 2016, at which Lowell police detectives David Kew (“Detective Kew”) and Nicholas Dokos (“Detective Dokos”) testified. For the below reasons, the defendant’s motion is DENIED. FINDINGS OF FACT On September 24, 2015, around 11:30 p.m., Detective Kew, Detective Dokos and a third Lowell police officer were riding in an unmarked police vehicle on Perry Street in Lowell.[1] Perry Street is in a neighborhood that was known to the officers as having recently experienced repeated incidents of auto theft. Detective Kew was driving, and Detective Dokos was in the front passenger seat. Detectives Kew and Dokos were both experienced police officers who worked with the police department’s gang unit. Detectives Kew and Dokos noticed two men around 50 yards down Perry Street circling a vehicle and looking into it. Neither man was using a key to open the car door. As the police officers approached the two men, Detective Dokos recognized one of them as Luis Morales, a suspected gang member. Neither officer recognized the second man, Polizzotti, at that time.[2] Detective Kew stopped the car around 5-10 feet from where the two men were standing. Detective Dokos rolled down his car window and asked Polizzotti and Morales if they would talk to him. Dokos stated that there had recently been car thefts in the area. The men’s response did not indicate that either of them had a key or authority to use the vehicle that they had been circling. Detective Dokos asked the two men where they were going. Morales said they were going to Smith Street, which is a few miles from the scene of the stop. Other conversation followed for a couple minutes.[3] As Detective Dokos was talking to Polizzotti and Morales, Detectives Kew and Dokos both noticed that Polizzotti and Morales were “hip checking.” i.e., checking their hip area in a way that suggests possession of a firearm. Detective Dokos knew from his police work that Morales did not have a license to carry a firearm. Based upon their belief that both men had firearms, Detectives Kew and Dokos decided to exit the police vehicle. As […]
Categories: News Tags: 1217116, Commonwealth, Lawyers, Polizzotti, Weekly