G6 Hospitality Property LLC v. Town of Braintree Board of Health (Lawyers Weekly No. 12-107-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION 17-0882 G6 HOSPITALITY PROPERTY LLC vs. TOWN OF BRAINTREE BOARD OF HEALTH MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION In its complaint in this action, Plaintiff G6 Hospitality Property LLC (“G6”), which operates a Motel 6 located at 125 Union Street, Braintree, Massachusetts (“the Motel”), seeks certiorari review under G.L. c. 249, § 4 of a decision made by the defendant, Town of Braintree Board of Health (“the Board”), to revoke G6’s license to operate the Motel under G.L. c. 140, §32B and c. 111, §122.[1] At issue before the Court is G6’s application for a temporary restraining order and motion for a preliminary injunction, enjoining the Board from enforcing its July 13, 2017, decision to revoke G6’s license while this case is litigated. For the reasons that follow, the Court concludes that G6 has not shown that it is entitled to a temporary restraining order or a preliminary injunction, as it cannot show that it is likely to succeed on the merits. Its application and motion are thus DENIED. FACTS The relevant facts in the administrative record provided to this Court are as follows: Procedural History: On May 12, 2017, the Board notified the Motel that an emergency license revocation hearing would be held on May 18, 2017, to determine whether, pursuant to G.L. c. 140, §§30 and 32B, G.L. c. 111, §122 and 105 C.M.R. 410, the Motel had “violated certain provisions of [its] license” because of “concerns relating to public health and safety … as the result of the exorbitant number of police-related responses to the motel since 2010, including but not limited to sudden deaths, sexual assaults/offenses, drug overdoses, warrant services, as well as the most recent shooting of a Braintree police officer and apparent suicide [of the officer’s assailant] that took place at Motel 6 on Friday, May 5, 2017.” Representatives of G6 and Braintree Mayor Joseph Sullivan (“the Mayor”) agreed that the Board would not oppose G6’s request to continue the hearing if G6 agreed to voluntarily close the Motel for 45-days, from June 1 to July 15, 2017, during which time G6 would work on improving the Motel’s security protocol. Accordingly, G6 requested a continuance of the hearing. The Board approved the Motel’s request. The Motel voluntarily closed June 1. The hearing was rescheduled for July 13, 2017. Prior to the July 13 hearing, a public notice was published in the local newspaper. Facts Disclosed at the July 13, 2017 Hearing: At the July 13, 2017 hearing (“the Hearing”), the Board heard testimony […]
Connor v. District Attorney for the Norfolk District (Lawyers Weekly No. 12-109-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 14-01322 MYLES J. CONNOR vs. DISTRICT ATTORNEY FOR THE NORFOLK DISTRICT MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION The plaintiff, Myles J. Connor (“Connor”), brought this action for declaratory relief pursuant to G. L. c. 231A, seeking a declaration that he is the owner of certain property (“the Property”) which was seized by the District Attorney for the Norfolk District (“District Attorney”) during execution of a search warrant in 1985. On June 12, 2017, this Court denied the District Attorney’s motion for summary judgment. Now before the Court is the District Attorney’s motion for reconsideration. For the reasons contained herein, the motion for reconsideration is DENIED. BACKGROUND The facts surrounding how the District Attorney came to possess the Property, and Connor’s efforts to reclaim the Property, have already been described in detail in this Court’s earlier Decision and Order on Defendant’s Motion for Summary Judgment. Connor v. District Attorney for the Norfolk District, 2017 WL 2979108 (Mass. Super. 2017). Those facts are incorporated by reference into this decision. The District Attorney has submitted additional exhibits to supplement the summary judgment record. The additional exhibits include deposition testimony of Kathryn M. Perry-Dougan, who pled guilty to a charge of drug possession following the 1985 search of her apartment where the Quincy police seized drugs as well as the Property. DISCUSSION A party seeking reconsideration of a prior ruling must show newly discovered evidence, a change of circumstances, a change of law, or a plain error of fact or law in the original ruling. See Mass. R. Civ. P. 60(b); Audubon Hill South Condominium Assoc. v. Community Assoc. Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012). The District Attorney has shown none of these, nor has explained why arguments made in its motion for reconsideration were not made earlier. In its motion, the District Attorney re-hashes its argument that the doctrine of laches applies to Connor’s claim. The District Attorney has failed to point out any reason that would require reconsideration on this point. Fundamentally, the District Attorney’s argument remains flawed in that it is premised on the notion that the burden of initiating action in this case rested on the Plaintiff. It did not – the law places that burden squarely on the shoulders of the District Attorney. The District Attorney’s attempts to shift that burden are plainly misplaced. Even were the Court to leave this point aside and reconsider the laches argument, it would still conclude that the District Attorney is not entitled to prevail on summary judgement on this record. “Laches is […]
JG Wentworth Origination, LLC, Transferee, and N. Laudano, Payee (Lawyers Weekly No. 12-110-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 17-2188-C J.G. WENTWORTH ORIGINATIONS, LLC Transferee -and- LAUDANO Payee DECISION AND ORDER ON AMENDED APPLICATION TO AUTHORIZE AND APPROVE TRANSFER OF PAYMENT RIGHTS Transferee JG Wentworth Originations, LLC (“Wentworth”) has purchased a $ 27,395.90 structured settlement from payee N. Laudano (“Ms. Laudano”). The original structured settlement arose from the resolution of a personal injury lawsuit, and contemplates 49 monthly payments of $ 559.00 from annuity issuer Prudential Assigned Settlement Services Corporation. Wentworth has agreed to purchase these payments from Ms. Laudano for the discounted price of $ 17,165.00, and seeks judicial approval of this transaction in accordance with the requirements of G.L. c. 231C, _ 2. For the reasons stated in open court during the hearing held on August 11, 2017 and those set forth below, the Court cannot agree. What Wentworth proposes is for Ms. Laudano to take a 34.2% discount on her overall settlement payout, effectively paying interest to Wentworth at a rate of 29.99% per year. The Court agrees with Judge Salinger’s thoughtful reasoning in In Re Stone Street Capital, 31 Mass. L. Rptr. 171 ( Mass. Super. Ct. 2013), that this transaction is in function and economic substance – if not nominally in form – a loan. Calling upon Ms. Laudano, the payee-debtor, to pay a rate of interest that far exceeds our criminal usury law’s limit of 20%, see G.L. c. 271, _ 49, the transaction cannot be considered “fair, just and reasonable.” G.L. c. 231C, _ 2(a)(7). See In Re Stone Street Capital, supra (holding that analogous Lottery Assignment Statute required disallowance of proposed purchase of lottery prize payments at a discount rate of 24%); Derochea v. Kane, 29 Mass. L. Rptr. 311 (Mass. Super. Ct. 2012) (Macdonald, J.) (holding that Chapter 231C, _ 2 compelled disallowance of child transferor’s assignment of structured settlement at 16% discount rate: “In this era of historically low interest rates, a 16% discount rate for determining present value borders on the unconscionable,” and is “neither fair, nor just, nor reasonable”).[1] Further to the above, the Court finds, after giving due consideration to the testimony of Ms. Laudano at hearing, that this proposed transfer of payment rights is not “in the best interests of the payee.” G.L. c. 231C, _ 2(a)(3). Counsel for Wentworth has forthrightly acknowledged that 25% represents the very high end of discount rates that are applied in these transactions. For her part, the payee testified that she did not have the benefit of either legal counsel or advice from a financial professional before entering into […]
Categories: News Tags: 1211017, Laudano, Lawyers, Origination, Payee, Transferee, Weekly, Wentworth
Hartman v. Town of Stoughton, et al. (Lawyers Weekly No. 12-108-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION 17-0880 MICHAEL J. HARTMAN vs. TOWN OF STOUGHTON, et al. MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Plaintiff Michael J. Hartman brings suit against the Town of Stoughton and the members of its board of Selectmen (collectively, the “Town”), alleging that he was not validly terminated from his positon as Stoughton Town Manager and has been wrongfully prevented from performing his duties. Before the Court is Hartman’s motion for a preliminary injunction, seeking to restrain and enjoin the Town from preventing Hartman from performing his duties as Town Manager unless and until he is dismissed from that position in accordance with Article 4, §C4-1, of the Town Charter. In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, Hartman’s motion for a preliminary injunction is DENIED. FACTS The following relevant facts are alleged by Hartman or revealed in the records submitted by the parties, concerning which there appears to be no dispute. By an employment agreement dated October 30, 2012, Hartman was engaged for a three-year period to serve as Town Manager for the Town. By a subsequent employment agreement dated April 1, 2014 (“the 2014 Agreement”), Hartman’s employment as Town Manager was extended until June 30, 2017. Section 3 of the 2014 Agreement set forth Hartman’s term of employment as running from July 1, 2014 to June 30, 2017. Section 1 of the 2014 Agreement stated: The Town Manager agrees to continue employment until June 30, 2017 … unless termination or resignation is effected as provided in Section 14 below. Should the Town fail to notify the Town Manager that the agreement will not be extended within six (6) months of the expiration of the Agreement, then the Agreement shall continue in full force and effect for another one (1) year term and all compensation and benefits shall remain in effect. Section 14 of the 2014 Agreement, entitled “Termination,” outlined the steps that Hartman agreed to follow to resign his position, but added “[n]otwithstanding any provision of this Agreement, the Town Manager shall serve at the will of the Board of Selectman and may be discharged from his employment in accordance with Section C4-1 of the Town Charter of Stoughton.” In the event Hartman was discharged by the Town without cause, the Town was obligated to pay him six months’ salary. Article 4, §C4-1, of the Town Charter, states: The Town Manager shall serve at the will of the Selectman except that a vote of a majority, plus one, of the full membership of Selectmen shall be required to discharge […]
Passero v. Fitzsimmons, et al. (Lawyers Weekly No. 11-105-17)
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 16-P-1314 Appeals Court ELAINE PASSERO vs. PAULA LIA FITZSIMMONS, trustee,[1] & another.[2] No. 16-P-1314. Essex. May 3, 2017. – August 17, 2017. Present: Massing, Shin, & Ditkoff, JJ. Trust, Breach of trust, Trustee’s discretion, Exemption of trustee from liability, Removal of trustee, Trustee’s compensation, Beneficiary, Distribution. Damages, Breach of fiduciary duty. Probate Court, Removal of fiduciary, Fiduciary’s fees, Judicial discretion. Practice, Civil, Bias of judge, Waiver. Waiver. Civil action commenced in the Essex Division of the Probate and Family Court Department on August 23, 2013. The case was heard by Peter C. DiGangi, J. George P. Lordan, Jr., (Anthony S. Porcello & Dennis P. Derrick also present) for the defendants. Stefan L. Jouret (Rebecca Royer also present) for the plaintiff. SHIN, J. This case involves a dispute over the administration of a share of a trust established for the benefit of the plaintiff and two of her three children. The plaintiff brought suit against the defendant trustees, claiming, among other things, that they committed a breach of trust by paying for fifteen years of storage fees out of trust assets. A judge of the Probate and Family Court agreed, ordered the defendants to repay the storage fees and other unaccounted-for sums to the trust, and removed the defendants as trustees. We discern no error in these determinations and reject the various challenges that the defendants raise on appeal. Nevertheless, we conclude that remand is required for two reasons. First, the judge should not have appointed the plaintiff’s children as successor trustees because they are themselves beneficiaries of the trust. As such, they are interested parties and are barred by the trust document from exercising certain powers, including distributions. Second, the judge was without authority to order the successor trustees to make monthly distributions to the plaintiff in a specified amount. We therefore vacate the judgment as to the appointment of the successor trustees and the distribution of the trust’s assets and remand for appointment of a disinterested successor trustee, who shall have the discretion to make distributions in accordance with the trust instrument. We affirm the judgment in all other respects. Background. We summarize the detailed findings of fact made by the judge, reserving some facts for later discussion. The settlor — who is the father […]
Commonwealth v. Asenjo (Lawyers Weekly No. 10-131-17)
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-12227 COMMONWEALTH vs. GAUDY ASENJO. Essex. February 6, 2017. – August 15, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Budd, JJ. Rape. Evidence, First complaint, Expert opinion. Witness, Expert. Battered Woman Syndrome. Indictments found and returned in the Superior Court Department on May 22, 2013. The cases were tried before James F. Lang, J. The Supreme Judicial Court granted an application for direct appellate review. Emily A. Cardy, Committee for Public Counsel Services, for the defendant. David F. O’Sullivan, Assistant District Attorney (Jennifer S. Kirshenbaum, Assistant District Attorney, also present) for the Commonwealth. HINES, J. In January, 2015, the defendant, Gaudy Asenjo, was convicted by a Superior Court jury of three counts of aggravated[1] rape of a child.[2] The complainant was the defendant’s niece, Sara,[3] who was fourteen years of age at the time of the rape. The defendant appeals from the convictions, claiming that the judge erred in (1) interpreting the first complaint rule to require the disclosure of the perpetrator’s identity to the first complaint witness and allowing a police officer to testify as the first complaint witness; (2) allowing the complainant to testify to multiple disclosures of the sexual assault in violation of Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006), and its progeny; and (3) precluding expert testimony in support of her defense based on battered woman syndrome. We conclude that the essential feature of first complaint evidence is the report of a sexual assault, not the identity of the perpetrator. Consequently, the admission of the police officer’s testimony as first complaint evidence was error, which, after viewing the evidence as a whole, was prejudicial. We conclude also that the judge erred in admitting the complainant’s testimony as to her multiple disclosures of the rape. Last, we conclude that a defendant asserting duress under G. L. c. 233, § 23F, based on battered woman syndrome, is not required to present affirmative evidence of abuse as a predicate to the defense. The judge erred in excluding the proffered expert testimony on this ground. Therefore, based on the foregoing, we reverse and order a new trial. Background. We summarize the evidence the jury could have found. In February, 2011, Sara and her twin sister spent most of their February […]
Holland v. Kantrovitz & Kantrovitz LLP, et al. (Lawyers Weekly No. 11-104-17)
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 16-P-705 Appeals Court LORI HOLLAND vs. KANTROVITZ & KANTROVITZ LLP & others.[1] No. 16-P-705. Suffolk. January 10, 2017. – August 15, 2017. Present: Grainger, Wolohojian, & Neyman, JJ.[2] Practice, Civil, Summary judgment. Attorney at Law, Malpractice, Negligence. Negligence, Attorney at law. Limitations, Statute of. Bankruptcy, Discharge. Judicial Estoppel. Civil action commenced in the Superior Court Department on April 29, 2013. The case was heard by Linda E. Giles, J., on a motion for summary judgment. Luke Rosseel for the plaintiff. Daniel R. Sonneborn for the defendants. WOLOHOJIAN, J. In September 2009, the plaintiff retained the defendants as personal injury counsel to represent her with respect to serious injuries she sustained when she slipped and fell on ice the year before. Approximately one month later, acting pro se, she filed for bankruptcy protection, and received a bankruptcy discharge in early 2010. Thereafter, in 2011, the defendants allowed the statute of limitations on the personal injury claim to expire without filing suit. This legal malpractice suit followed. The question on appeal is whether the plaintiff’s malpractice claims were properly dismissed on summary judgment on the ground that the bankruptcy action (or the position the plaintiff took in it) foreclosed them. We reverse. Reserving additional facts to the analysis that follows, we recite here only the core facts, and do so in the light most favorable to the plaintiff, drawing all reasonable inferences in her favor. See, e.g., Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005). On January 15, 2008, the plaintiff, a State employee, was seriously injured when she slipped and fell on ice outside the building in which she worked. The building was owned and/or maintained by a private entity, Northland Investment Corporation. The ice had accumulated because of a defective gutter and had not been salted. The plaintiff’s injuries were sufficiently severe that she lost 410 scheduled work days, and even as late as September 2012, she remained unable to work full time. During the workers’ compensation proceedings relating to her injuries, the plaintiff was approached by defendant Martin Kantrovitz’s associate, who told her that the defendants would like to represent her. She agreed and, by September 9, 2009, had retained the defendants to represent her as personal injury counsel. The plaintiff alleges […]
Commonwealth v. Mauricio (Lawyers Weekly No. 10-130-17)
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-12254 COMMONWEALTH vs. KEVIN A. MAURICIO. Bristol. April 4, 2017. – August 14, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. Firearms. Receiving Stolen Goods. Constitutional Law, Search and seizure. Search and Seizure, Search incident to lawful arrest, Inventory, Fruits of illegal search. Complaint received and sworn to in the Taunton Division of the District Court Department on July 10, 2014. A pretrial motion to suppress evidence was heard by Thomas L. Finigan, J., and the case was tried before him. The Supreme Judicial Court granted an application for direct appellate review. Mathew B. Zindroski for the defendant. Stephen C. Nadeau, Jr., Assistant District Attorney (Shawn Guilderson, Assistant District Attorney, also present) for the Commonwealth. HINES, J. After a jury trial in the Taunton Division of the District Court Department, the defendant, Kevin A. Mauricio, was convicted of carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a); and receiving stolen property with a value in excess of $ 250, in violation of G. L. c. 266, § 60. The charges stem from a search of the defendant’s backpack after he was arrested for possession of a controlled substance and breaking and entering a residence in Taunton. During the course of the search, the police discovered a digital camera, a ring, and other items. The firearm conviction was based on images retrieved after a warrantless search of the digital camera. The images depicted the defendant next to firearms later determined to have been stolen. The receiving stolen property conviction was based on the ring discovered in the defendant’s backpack. The defendant appealed from the convictions, arguing that the judge erred in denying the motion to suppress the images discovered as the result of the warrantless search of the digital camera, and that the evidence offered at trial was insufficient to sustain the conviction of receiving stolen property with a value in excess of $ 250. We granted the defendant’s application for direct appellate review, and conclude that the warrantless search of the digital camera constituted neither a valid search incident to arrest nor a valid inventory search. Accordingly, the images discovered in the unlawful search should have been suppressed. We conclude further that, although the […]
Malden Police Patrolman’s Association v. City of Malden (Lawyers Weekly No. 11-103-17)
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 16-P-494 Appeals Court MALDEN POLICE PATROLMAN’S ASSOCIATION vs. CITY OF MALDEN. No. 16-P-494. Middlesex. February 7, 2017. – August 11, 2017. Present: Trainor, Blake, & Shin, JJ. Practice, Civil, Motion to dismiss, Summary judgment. Superior Court. Rules of the Superior Court. Administrative Law, Primary jurisdiction, Exhaustion of remedies. Unjust Enrichment. Contract, Collective bargaining contract, Unjust enrichment, Promissory estoppel. Public Employment, Collective bargaining. Police, Collective bargaining. Massachusetts Wage Act. Civil Service, Collective bargaining, Municipal finance. Municipal Corporations, Collective bargaining, Municipal finance. Civil action commenced in the Superior Court Department on January 21, 2015. The case was heard by Bruce R. Henry, J., on motions to dismiss and for summary judgment. Christopher G. Fallon for the plaintiff. Albert R. Mason for the defendant. BLAKE, J. The plaintiff, Malden Police Patrolman’s Association (union), is a labor organization comprised of approximately seventy-nine police officers employed by the defendant, the city of Malden (city). The union and the city were parties to a collective bargaining agreement (CBA) covering three fiscal years from July 1, 2010, through June 30, 2013. The CBA set forth the provisions governing, among other matters, paid detail work performed by the officers.[1] During the summer of 2014, the union notified the city that it was in arrears on the payment of compensation to officers for detail work, requested a written explanation for the nonpayment, and demanded the outstanding detail pay. The city took the position that, because the officers earned the detail pay for work performed for third parties, the city was exempt from the provisions of the Massachusetts wage and hour laws, requiring timely payment of earned wages. On January 21, 2015, the union filed a complaint in the Superior Court against the city,[2] alleging that the city owed the officers approximately $ 410,000 in compensation for the performance of past detail work.[3] The complaint requested relief under theories of breach of contract (count I), breach of an implied covenant of good faith and fair dealing (count II), promissory estoppel (count III), unjust enrichment (count IV), and violation of the Massachusetts Wage Act, G. L. c. 149, § 148 (Wage Act) (count V). The union then filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The city moved to dismiss the union’s complaint or, in […]
Categories: News Tags: 1110317, Association, City, Lawyers, Malden, Patrolman’s, Police, Weekly
Commonwealth v. Francis (Lawyers Weekly No. 10-129-17)
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-12118 COMMONWEALTH vs. ROGER D. FRANCIS. Plymouth. April 3, 2017. – August 11, 2017. Present: Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ. Practice, Criminal, Plea. Indictment found and returned in the Superior Court on May 11, 1967. Following review by this court, 355 Mass. 108 (1969), a motion for a new trial, see 411 Mass. 579 (1992), and the withdrawal of a plea of guilty and a second trial, see 450 Mass. 132 (2007), a motion for a new trial, filed on August 5, 2013, was heard by Linda E. Giles, J. A request for leave to appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk. Mary E. Lee, Assistant District Attorney, for the Commonwealth. Leslie W. O’Brien for the defendant. LOWY, J. The Commonwealth claims that an order granting the specific performance of a plea agreement constituted error. We agree. Background. In 1967, the defendant, Roger Francis, was convicted of murder in the first degree for killing his fifteen year old girl friend. See Commonwealth v. Francis, 355 Mass. 108, 108-109 (1969). In 1989, a Superior Court judge allowed the defendant’s motion for a new trial because of errors in the reasonable doubt jury instruction given in his 1967 trial. Thereafter, this court, considering the Commonwealth’s appeal on report of a single justice pursuant to the gatekeeper provisions of G. L. c. 278, § 33E, affirmed. Commonwealth v. Francis, 411 Mass. 579, 580 (1992). In May, 1994, the defendant reached a plea agreement with the Commonwealth: The defendant would plead guilty to murder in the second degree in exchange for the opportunity to immediately seek parole, which the Commonwealth would not oppose.[1] If the parole board declined to grant the defendant parole, the agreement allowed the defendant to withdraw his guilty plea and proceed to trial on the murder in the first degree charge. After the plea agreement had been reached, the defendant pleaded guilty on May 25, 1994, before a Superior Court judge (plea judge). At the plea hearing, the defendant’s counsel made representations that there was an understanding between the parole board and the defendant that the defendant would not be required to be in custody to be considered for parole.[2] To effectuate the understanding […]