Commonwealth v. Ramirez (Lawyers Weekly No. 11-017-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1580 Appeals Court COMMONWEALTH vs. WILLIAM J. RAMIREZ. No. 16-P-1580. Essex. October 6, 2017. – February 9, 2018. Present: Wolohojian, Maldonado, & Wendlandt, JJ. Firearms. Search and Seizure, Protective frisk, Threshold police inquiry, Reasonable suspicion, Arrest. Constitutional Law, Search and seizure, Investigatory stop, Stop and frisk, Reasonable suspicion, Arrest. Threshold Police Inquiry. Arrest. Practice, Criminal, Motion to suppress. Complaints received and sworn to in the Haverhill Division of the District Court Department on April 2 and 7, 2015. A pretrial motion to suppress evidence was heard by Patricia A. Dowling, J., and the case was heard by Stephen S. Albany, J. Suzanne Lynn Renaud for the defendant. Philip A. Mallard, Assistant District Attorney, for the Commonwealth. MALDONADO, J. After a bench trial, the defendant was convicted of carrying a loaded firearm without a license and defacing a firearm serial number.[1] The defendant appeals only from the denial of his motion to suppress the firearm. The issue before us is whether a police officer was justified in stopping the defendant, who was walking with a man for whom the officer had an active arrest warrant involving the use of a firearm in the commission of a violent felony. Concluding that under these narrow circumstances police and public safety concerns outweighed the minimal intrusion on the defendant’s liberty for the time it took for police to take control of the scene and effectuate the other individual’s arrest, we affirm. Background. The judge made the following factual findings. In the afternoon of March 25, 2015, shots were fired down Winter Street in Haverhill and struck and wounded a passerby. Haverhill police officers received reports that a man named Joshua Perez had fired the shots, and they obtained a warrant for his arrest.[2] A few days later, on April 1, at approximately 5 P.M., local, State, and Federal law enforcement officers converged on Brook Street and Hilldale Avenue in Haverhill believing that Perez was in that area. Detective Glen Fogarty, who was alone in an unmarked police cruiser, heard a radio transmission that indicated that Perez was walking toward his position. Fogarty then saw Perez, who was walking down the street with another man — later identified as the defendant, William Ramirez. Fogarty drove his cruiser to the side of […]
Casseus, et al. v. Eastern Bus Company, Inc., et al. (Lawyers Weekly No. 10-024-18)
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-12315 IBNER CASSEUS[1] & another[2] vs. EASTERN BUS COMPANY, INC., & another.[3] Middlesex. October 2, 2017. – February 8, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Labor, Overtime compensation. Bus. Carrier, Charter service, License. School and School Committee, Transportation of students. Civil action commenced in the Superior Court Department on May 30, 2014. Motions for summary judgment were heard by Dennis J. Curran, J. An application for leave to prosecute an interlocutory appeal was allowed by Gabrielle R. Wolohojian, J., in the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Damien M. DiGiovanni (Joseph P. McConnell also present) for the defendants. Ian O. Russell for the plaintiffs. Peter J. Pingitore, for School Transportation Association of Massachusetts, Inc., amicus curiae, submitted a brief. LENK, J. This case requires us to construe an exemption to the Massachusetts overtime statute. The overtime statute generally requires employers to pay an overtime premium to employees who work more than forty hours in a given week. G. L. c. 151, § 1A. The statute, however, “shall not be applicable to any employee who is employed . . . by an employer licensed and regulated pursuant to [G. L. c. 159A],” which governs motor vehicle common carriers of passengers in Massachusetts. See G. L. c. 151, § 1A (11); G. L. c. 159A. The plaintiffs are bus drivers whose employer, the defendant Eastern Bus Company, Inc. (Eastern Bus), provides two types of transportation: charter service, for which Eastern Bus must hold a license under the common carrier statute; and transportation of pupils between home and school, which does not constitute charter service. See G. L. c. 159A, § 11A. The bus drivers perform both of these services. They claim that they are entitled to overtime payment. Their argument is twofold. The bus drivers first assert that Eastern Bus is only “licensed and regulated” under the common carrier statute during the hours when it is providing charter service. The exemption, then, only applies during those hours, and not when Eastern Bus is providing school transportation. The bus drivers further argue that this overtime exemption should be interpreted in the same manner as two similarly structured Federal overtime exemptions. These Federal exemptions, for certain employees of air and rail common carriers, are not applied to employees who spend a substantial […]
Gifford v. Burke, et al. (Lawyers Weekly No. 11-015-18)
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 17-P-341 Appeals Court JOHN A. GIFFORD vs. ANDREW J. BURKE & another.[1] No. 17-P-341. Suffolk. December 6, 2017. – February 8, 2018. Present: Milkey, Henry, & Wendlandt, JJ. Contempt. Practice, Civil, Contempt, Appeal, Attorney’s fees, Costs. Civil action commenced in the Land Court Department on December 30, 2008. A complaint for contempt, filed on July 20, 2016, was heard by Alexander H. Sands, III, J. Michael J. Traft for the plaintiff. Robert J. Cotton, pro se. MILKEY, J. John A. Gifford and Debra F. Gifford, who are married, together held a fifty percent, undivided interest in waterfront property in Revere (property). In 2008, the Giffords filed a petition for partition in Land Court against their coowner, Andrew J. Burke. A Land Court judge appointed a partition commissioner (intervener Robert J. Cotton, henceforth, the commissioner) to assist the parties and the judge in resolving the matter. See G. L. c. 241, § 12. Nevertheless, the process did not go smoothly. Indeed, the case, together with related litigation spawned in the Land Court, the Superior Court, and the United States Bankruptcy Court, took a path that best can be described as tortuous. The current appeal, which is the third one having come before this court, is limited in scope. In it, John Gifford appeals a contempt judgment that, in pertinent part, required him to pay certain fees and costs to the commissioner.[2] We agree that the majority of the contested fees and costs are not recoverable, and we therefore vacate the contempt judgment and remand for further proceedings consistent with this opinion. Background. We begin by summarizing only those milestone events relevant to the current appeal. In 2011, the Land Court judge ordered the Giffords to sell their share of the property to Burke and to pay off their mortgage on it. In an unpublished memorandum and order issued on December 7, 2012, pursuant to our rule 1:28, that Land Court order was affirmed on appeal. Gifford v. Burke, 83 Mass. App. Ct. 1101 (2012). After the Giffords failed to comply, Burke filed a contempt complaint, but the matter was stayed after each of the Giffords filed for bankruptcy protection. Once the bankruptcy of John Gifford concluded, the property was in fact conveyed to Burke and the mortgage was discharged. After […]
Commonwealth v. Dinardo (Lawyers Weekly No. 11-014-18)
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-816 Appeals Court COMMONWEALTH vs. CHARLES DINARDO. No. 16-P-816. Middlesex. November 3, 2017. – February 7, 2018. Present: Hanlon, Massing, & Wendlandt, JJ. Sex Offender. Evidence, Sex offender, Expert opinion, Medical report. Witness, Expert, Psychologist. Practice, Civil, Sex offender, Instructions to jury. Civil action commenced in the Superior Court Department on July 5, 2012. The case was tried before Kenneth W. Salinger, J. David H. Erickson for the defendant. Jessica Langsam, Assistant District Attorney, for the Commonwealth. WENDLANDT, J. This appeal presents the question whether, in connection with a trial to civilly commit an individual as a sexually dangerous person,[1] the written report of a qualified forensic psychologist (who is neither a designated qualified examiner nor the defendant’s treating psychologist) is admissible as a “psychiatric and psychological record[] and report[] of the person named in the petition.” G. L. c. 123A, § 14(c), inserted by St. 1999, c. 74, § 8. Concluding that it is and that the defendant’s other arguments lack merit, we affirm. Background. We briefly summarize the relevant facts as found by the trial judge. In 1989, the defendant, Charles Dinardo, was convicted in Connecticut of aggravated sexual assault, sexual assault of a child, and risk of injury to a minor. The victim was the defendant’s daughter, whom he sexually abused continuously from when she was six years old until she was eighteen, with the exception of a one year hiatus when the victim’s mother took her abroad. The abuse began when she was six or seven years old. He would place a wire in his own and then the victim’s anus while he masturbated. When she was eight or nine years old and continuing until she was twelve, he engaged in weekly oral and anal sex with her. Over the next six years, he engaged in weekly sexual contact with the victim. On one occasion, the defendant told an adult male friend that he could have sex with the victim; the friend proceeded to have oral sex with her. The defendant expressed disappointment that he was not afforded the opportunity to watch. The victim was afraid to tell anyone about the abuse, but when she was eighteen, she began to resist the defendant and ultimately reported the sexual abuse to her therapist. The defendant was arrested, […]
Millis Public Schools v. M.P., et al. (Lawyers Weekly No. 10-023-18)
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-12384 MILLIS PUBLIC SCHOOLS vs. M.P. & others.[1] Norfolk. October 2, 2017. – February 6, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Child Requiring Assistance. Statute, Construction. Words, “Wilfully.” Petition filed in the Norfolk County Division of the Juvenile Court Department on November 30, 2016. The case was heard by Mary M. McCallum, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Katrina McCusker Rusteika, Committee for Public Counsel Services, for M.P. LENK, J. The children requiring assistance (CRA) statute, G. L. c. 119, §§ 21, 39E-39I, confers jurisdiction upon the Juvenile Court to intervene in the custody arrangements of children who are, inter alia, “habitually truant,” meaning that they “willfully fail[] to attend school for more than [eight] school days in a quarter.” G. L. c. 119, § 21. The statute is aimed at children who exhibit “misbehavior which is not violative of any criminal statute, but which is the cause for concern that it is indicative of problems or tendencies that may eventually lead to delinquent or criminal activity.” R.L. Ireland & P. Kilcoyne, Juvenile Law § 4.1 (2d ed. 2006 & Supp. 2017) (Ireland & Kilcoyne, Juvenile Law). In such cases, the Juvenile Court is tasked with examining the children’s circumstances and determining whether changing or placing conditions on their custody arrangements will help deter their potentially harmful behaviors. Id. The party that initiates a CRA proceeding must prove the allegations beyond a reasonable doubt. G. L. c. 119, § 39G. In this case, we decide whether a child, M.P., who has failed continually to attend school due to a combination of physical and mental disabilities, including a severe bladder condition and autism, was properly adjudicated as a child requiring assistance on the basis of a habitual truancy CRA petition filed by the Millis public schools (school district).[2] To make this determination, we must address the novel question of what it means for a child to “willfully fail[] to attend school.” In light of the CRA statute’s goal of deterring delinquency, the statutory requirement that a child’s failure to attend school be wilful reflects legislative concern as to why the child is regularly skipping school: it contemplates purposeful conduct by the child. The wilfulness requirement thus necessitates judicial inquiry into and assessment […]
Commonwealth v. Carlson (Lawyers Weekly No. 11-013-18)
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 17-P-35 Appeals Court COMMONWEALTH vs. JASON C. CARLSON. No. 17-P-35. Worcester. November 15, 2017. – February 6, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Larceny. Identification. Constitutional Law, Identification. Due Process of Law, Identification. Evidence, Identification. Practice, Criminal, Motion to suppress. Indictment found and returned in the Superior Court Department on January 21, 2014. A pretrial motion to suppress evidence was heard by Daniel M. Wrenn, J., and the case was tried before Richard T. Tucker, J. Geraldine C. Griffin for the defendant. Donna-Marie Haran, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. A pawnbroker, after a single-photograph identification procedure, identified the defendant as the man who had some days earlier pawned certain items of stolen jewelry. The pawnbroker’s identification was an important part of the evidence at the defendant’s jury trial, which resulted in his conviction of larceny over $ 250.[1] The central issue on appeal is whether the defendant’s motion to suppress the pawnbroker’s identification should have been allowed because the single-photograph identification procedure violated the defendant’s rights under art. 12 of the Massachusetts Declaration of Rights. Concluding that the motion should have been allowed, we reverse the judgment. We summarize the facts found by the motion judge, supplemented by undisputed evidence introduced at the evidentiary motion hearing. See Commonwealth v. Dew, 478 Mass. 304, 305 (2017). Pauline and Emile Daigle, a couple in their seventies, hired a professional moving company to move from their single-family home in Templeton to a condominium unit in Hubbardston on August 31, 2013. The next day, Pauline Daigle reported to police that seventeen pieces of jewelry valued at approximately $ 30,000 were missing; only empty boxes remained in the dresser drawers where she had stored the jewelry. Templeton police Detective Derek Hall opened an investigation into the theft. He learned that two moving men had handled the move: Ronny Norton and the defendant. Norton was a long-time employee of the moving company; the defendant, by contrast, had been employed for the day. Norton told Hall that the defendant had been alone in the Templeton bedroom where the jewelry had been stored and also when he (the defendant) had unpacked the bedroom dresser drawers at the end of the move in Hubbardston. Norton also said that when he […]
Commonwealth v. Newton N., a juvenile (Lawyers Weekly No. 10-019-18)
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-12354 COMMONWEALTH vs. NEWTON N., a juvenile. Berkshire. November 7, 2017. – February 5, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Delinquent Child. Probable Cause. Insanity. Mental Impairment. Juvenile Court, Delinquent child. Practice, Criminal, Juvenile delinquency proceeding, Complaint, Arraignment, Dismissal. Complaint received and sworn to in the Berkshire County Division of the Juvenile Court Department on June 2, 2016. A motion to dismiss was heard by Judith A. Locke, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kyle G. Christensen, Assistant District Attorney (Joseph A. Pieropan, Assistant District Attorney, also present) for the Commonwealth. Laura Chrismer Edmonds for the juvenile. The following submitted briefs for amici curiae: Miriam H. Ruttenberg, Jennifer Honig, & Phillip Kassel for Mental Health Legal Advisors Committee & others. Ryan M. Schiff, Committee for Public Counsel Services, & Joseph N. Schneiderman for Youth Advocacy Division of the Committee for Public Counsel Services. Daniel F. Conley, District Attorney for the Suffolk District, & John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. GANTS, C.J. This case presents two important issues relevant to a Juvenile Court judge’s consideration of a prearraignment motion to dismiss a delinquency complaint. First, we hold that a judge, in weighing whether the information contained within the “four corners” of the complaint application and related exhibits constitutes probable cause, may not consider whether a juvenile was criminally responsible for the charged offenses or whether the juvenile’s mental impairment rendered the juvenile incapable of having the requisite criminal intent. Second, we hold that, where a prosecutor exercises his or her discretion to proceed to arraignment on a delinquency complaint supported by probable cause, the judge may not dismiss the complaint before arraignment on the grounds that dismissal of the complaint is in the best interests of the child and in the interests of justice. Because the judge in this case dismissed the delinquency complaint before arraignment where the complaint was supported by probable cause and where the prosecutor wished to proceed to arraignment, we vacate the dismissal and remand the case to the Juvenile Court.[1] Background. On May 25, 2016, a police officer applied for and obtained a delinquency complaint from a clerk-magistrate, charging the […]
Commonwealth v. Orbin O., a juvenile (Lawyers Weekly No. 10-020-18)
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-12314 COMMONWEALTH vs. ORBIN O., a juvenile. Berkshire. November 7, 2017. – February 5, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Delinquent Child. Probable Cause. Juvenile Court, Delinquent child. Practice, Criminal, Juvenile delinquency proceeding, Complaint, Show cause hearing, Dismissal. Complaint received and sworn to in the Berkshire County Division of the Juvenile Court Department on April 14, 2016. A motion to dismiss was heard by Judith A. Locke, J. The Supreme Judicial Court granted an application for direct appellate review. Kyle G. Christensen, Assistant District Attorney (Joseph A. Pieropan, Assistant District Attorney, also present) for the Commonwealth. Afton M. Templin for the juvenile. The following submitted briefs for amici curiae: Miriam H. Ruttenberg, Jennifer Honig, & Phillip Kassel for Mental Health Legal Advisors Committee & others. Ryan M. Schiff, Committee for Public Counsel Services, & Joseph N. Schneiderman for Youth Advocacy Division of the Committee for Public Counsel Services. Daniel F. Conley, District Attorney for the Suffolk District, & John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. GANTS, C.J. In Commonwealth v. Newton N., 478 Mass. , (2018), also decided today, in which a police officer applied for and obtained a delinquency complaint, we held that, “where a prosecutor exercises his or her discretion to proceed to arraignment on a delinquency complaint supported by probable cause, the judge may not dismiss the complaint before arraignment on the grounds that dismissal of the complaint is in the best interests of the child and in the interests of justice.” We consider here whether that same limitation on judicial authority in deciding a motion to dismiss applies to a delinquency complaint brought by a private party under G. L. c. 218, § 35A, where a clerk-magistrate issued the complaint after finding probable cause. We conclude that this same limitation applies only where the prosecutor has affirmatively adopted the private party’s complaint by moving for arraignment. In cases where the prosecutor has not so moved, a judge considering a juvenile’s motion to dismiss prior to arraignment may consider whether the clerk-magistrate abused his or her discretion in issuing the complaint and, in doing so, may consider whether dismissal is in the best interests of the child and in the interests of justice.[1] Background. On […]
Tavares v. Commonwealth (Lawyers Weekly No. 10-021-18)
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-12211 PAULO TAVARES vs. COMMONWEALTH. February 5, 2018. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Discovery, Postconviction relief, Capital case. Paulo Tavares appeals from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3. We affirm the judgment. Tavares has been convicted by a jury of murder in the first degree and other offenses. Before trial, Tavares successfully moved to suppress evidence of surreptitiously recorded conversations between him and a confidential informant. We affirmed the suppression order on the Commonwealth’s interlocutory appeal. Commonwealth v. Tavares, 459 Mass. 289, 303 (2011). After he was convicted, Tavares moved for a new trial and for postconviction discovery of copies or transcripts of the recorded conversations.[1] The trial judge denied both motions. Tavares’s appeal from his convictions and from the denial of his posttrial motions is pending in this court and has not yet been briefed. In his G. L. c. 211, § 3, petition, Tavares sought relief from the denial of his motion for postconviction discovery. A single justice of this court denied the petition as well as a subsequent motion for reconsideration. “[R]elief under G. L. c. 211, § 3, is properly denied where the petitioning party has or had an adequate and effective avenue to seek and obtain the requested relief other than G. L. c. 211, § 3.” Donald v. Commonwealth, 437 Mass. 1007, 1007 (2002), quoting Hunt v. McKendry, 434 Mass. 1025, 1026 (2001). “An established route for the petitioner to obtain appellate review of the denial of his motion for postconviction discovery would be in connection with an appeal from the denial of his motion for a new trial . . . .” Donald, supra. We regularly address postconviction discovery issues in connection with such appeals. See, e.g., Commonwealth v. Morgan, 453 Mass. 54, 61-64 (2009); Commonwealth v. Martinez, 437 Mass. 84, 97-98 (2002); Commonwealth v. Stewart, 383 Mass. 253, 261 (1981). Tavares has not carried his burden of “demonstrat[ing] the absence or inadequacy of other remedies.” Callahan v. Superior Court Dep’t of the Trial Court, 432 Mass. 1023, 1023 (2000). The single justice did not err or abuse her discretion by denying relief under G. L. c. 211, § 3. Judgment affirmed. Janet Hetherwick Pumphrey for the petitioner. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. […]
Commonwealth v. Gomes (Lawyers Weekly No. 10-022-18)
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-12290 COMMONWEALTH vs. JEREMY D. GOMES. February 5, 2018. Practice, Criminal, Assistance of counsel, Request for jury instructions. Identification. Evidence, Identification. In 2015, we affirmed Jeremy D. Gomes’s convictions of mayhem and breaking and entering a vehicle in the nighttime with intent to commit a felony. Commonwealth v. Gomes, 470 Mass. 352, 378 (2015). At trial, “[t]he defendant requested that the judge provide a jury instruction regarding eyewitness identification that essentially mirrored a model instruction that had become effective in New Jersey approximately one week before the defendant’s trial commenced.” Id. at 357 & n.10, citing State v. Henderson, 208 N.J. 208, 219, 228-229 (2011). The judge instead gave the model jury instruction regarding eyewitness identification that we adopted in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979) (Appendix). Gomes, supra at 353. We concluded that the judge did not abuse his discretion in doing so where the defendant failed to furnish “any expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine whether the principles in the defendant’s proposed instruction were ‘so generally accepted’ that it would be appropriate to instruct the jury regarding them . . . and where there was an instruction approved by this court that was not erroneous but, at worst, inadequate and incomplete.” Id. at 359-360. In that opinion, however, “[a]fter reviewing the scholarly research, analyses by other courts, amici submissions, and the [Report and Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence], we conclude[d] that there are various principles regarding eyewitness identification for which there is a near consensus in the relevant scientific community and that it is appropriate to revise the Rodriguez instruction to include them.” Id. at 367. We therefore proposed a provisional model eyewitness identification instruction to be given in trials commencing after the date of the Gomes opinion. Id. at 376 (new instruction intended to have no retroactive application). The defendant subsequently moved for a new trial, arguing that he was deprived of the effective assistance of counsel because his trial counsel failed to furnish the judge with the expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine that the principles in the defendant’s proposed instruction were generally accepted in the relevant scientific community. The motion […]