Vinnie v. Superintendent, Massachusetts Correctional Facility, Norfolk (Lawyers Weekly No. 10-044-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12299 RAYMOND P. VINNIE vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTE, NORFOLK. March 21, 2018. Supreme Judicial Court, Superintendence of inferior courts. In 1993, Raymond P. Vinnie was convicted of murder in the first degree. After plenary review, we affirmed the conviction and the denial of his motion for a new trial. Commonwealth v. Vinnie, 428 Mass. 161, cert. denied, 525 U.S. 1007 (1998), overruled on another ground by Commonwealth v. Paulding, 438 Mass. 1 (2002). In 2016, Vinnie filed a petition for a writ of habeas corpus pursuant to G. L. c. 248, § 1, in the county court, arguing that he was unlawfully imprisoned pursuant to a void mittimus. A single justice of this court transferred the petition to the Superior Court. A judge in that court denied relief. Vinnie then filed a motion in the county court, seeking to reinstate his petition on the ground that the Superior Court judge made various procedural and substantive errors. The same single justice denied the motion without a hearing. Vinnie appeals from that ruling. The single justice properly denied Vinnie’s motion to reinstate the petition. The Superior Court judge’s decision denying habeas relief was reviewable in the ordinary appellate process. After habeas relief was denied in the Superior Court, Vinnie “could have obtained review by this court only if he was granted leave by a single justice pursuant to the gatekeeper provision of G. L. c. 278, § 33E. He cannot circumvent the gatekeeper provision by filing his petition in the county court in the first instance.” Tyree v. Commonwealth, 449 Mass. 1034, 1034 (2007), cert. denied, 554 U.S. 926 (2008). There was no basis to “reinstate” the petition in the county court. Judgment affirmed. Raymond P. Vinnie, pro se. Eric A. Haskell, Assistant Attorney General, for the respondent. Full-text Opinions
Categories: News Tags: 1004418, Correctional, Facility, Lawyers, massachusetts, Norfolk, Superintendent, Vinnie, Weekly
Commonwealth v. G.F. (Lawyers Weekly No. 10-043-18)
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; SJCReportersjc.state.ma.us SJC-12388 COMMONWEALTH vs. G.F. Suffolk. November 9, 2017. – March 20, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Sex Offender. Constitutional Law, Sex offender. Due Process of Law, Sex offender. Practice, Civil, Sex offender, Civil commitment, Verdict. Civil action commenced in the Superior Court Department on December 24, 2010. A motion to modify the temporary order of confinement and for an order of custody conditions, filed on October 17, 2016, was heard by Douglas H. Wilkins, J., and questions of law were reported by him to the Appeals Court. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 24, 2016. The case was heard by Gaziano, J., and the matter was reported by him to the Appeals Court. After consolidation in the Appeals Court, the Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph M. Kenneally (Michael F. Farrington also present) for G.F. John P. Zanini, Assistant District Attorney, for the Commonwealth. GAZIANO, J. This case concerns G. L. c. 123A, the statute governing civil commitment of sexually dangerous persons (SDP). Prior to civilly committing an individual under this statute, the Commonwealth must obtain a unanimous jury verdict finding that the individual is sexually dangerous.[1] G. L. c. 123A, § 14 (d). Subject to certain exceptions, the trial to determine sexual dangerousness must be held within sixty days after the Commonwealth files a petition for trial. G. L. c. 123A, § 14 (a). During this time, the individual is to be temporarily confined. See G. L. c. 123A, § 14 (e); Commonwealth v. Pariseau, 466 Mass. 805, 808 (2014). In this case, the Commonwealth filed a petition seeking to commit the petitioner as an SDP in December, 2010. Following years of delay and three mistrials, the petitioner remains confined without a finding that he is sexually dangerous. He contends that substantive due process and the SDP statute require dismissal of the Commonwealth’s petition. A judge of the Superior Court concluded that continued confinement violated the petitioner’s substantive due process rights, ordered his release, and then stayed that order and reported a number of questions. We conclude that the SDP statute permits a fourth trial in the circumstances of this case. While due process would impose a limit on the number of retrials […]
Charlie’s Project LLC, et al. v. T2B LLC, et al. (Lawyers Weekly No. 09-028-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV03350-BLS2 ____________________ CHARLIE’S PROJECT LLC and ANNA K. HERNANDEZ v. T2B LLC, BRANDON McDANIEL, and NICOLE McDANIEL ____________________ MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND DISMISS Charlie’s Project LLC (“CP”) and its founder Anna Hernandez have sued T2B LLC for allegedly breaching two contracts that concern the sale and delivery by T2B of clothes designed by Ms. Hernandez. Plaintiffs also claim that T2B, its founder Brendon McDaniel, and his spouse Nicole McDaniel have engaged in unfair and deceptive acts or practices in violation of G.L. c. 93A, that all three Defendants misappropriated CP’s designs, logos, marketing materials, and name, and that T2B and Nicole McDaniel have defamed Plaintiffs. Defendants have moved to dismiss this action. Their main argument is that all of Plaintiffs’ claims are subject to a mandatory arbitration clause contained in a third contract among T2B, Hernandez, and others. They also assert, in the alternative, that this action must be filed in Delaware under an allegedly mandatory forum selection clause in the LLC Agreement. The Court will DENY the motion to dismiss. The question whether the parties’ dispute must be arbitrated is for the Court to resolve. Though the parties to the third contract adopted the American Arbitration Association’s rules, and thereby agreed that the arbitrability of disputes arising under that contract must be decided by an arbitrator, that provision is not implicated here. Hernandez never agreed that the arbitrability of disputes arising under or out of the first two contracts would be decided by an arbitrator. Nor did she agree to arbitrate claims under those contracts, neither of which contains an arbitration provision. Finally, Defendants’ arguments regarding choice of forum are unavailing because the forum selection clause in the LLC Agreement does not apply here and, in any case, it is permissive not mandatory. 1. Factual Background. In 2012 Ms. Hernandez started a business that she called “Charlie’s Project.” Her aims, on behalf of her son Charlie, were to design and – 2 – sell children’s and women’s clothing that would help raise awareness about autism and Down syndrome, and to support charitable organizations with proceeds from selling such clothing. Although Hernandez did business under the name “Charlie’s Project” for several years, she did not form the corporate entity Charlie’s Project LLC (“CP”) until January 17, 2017, shortly after entering into the contracts at issue here. 1.1. The Distribution and Services Agreements. In the fall of 2016, Branden McDaniel proposed that he help distribute Charlie’s Project products. Ms. Hernandez agreed. Mr. McDaniel and two other people formed defendant T2B LLC as a Delaware limited liability company on December 1, 2016. Three days later T2B and Hernandez entered […]
Silva v. Todisco Services, Inc. (Lawyers Weekly No. 09-027-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Todisco Services, Inc., towed Christopher Silva’s motor vehicle without his consent from a private parking lot. This was a “trespass tow,” made at the request of the property owner or manager pursuant to G.L. c. 266, § 120D. Silva alleges that the mileage charge and fuel surcharge imposed by Todisco were illegal because the invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a Department of Public Utilities (“DPU”) regulation that establishes maximum rates for involuntary tows. Silva asserts claims for violation of G.L. c. 93A, declaratory relief, negligent misrepresentation, intentional fraud, and unjust enrichment. Silva has moved to certify a class of plaintiffs whose passenger vehicles were towed without their consent by Todisco, either as a trespass tow or as a “police tow” made at the request of a local police department, and who were assessed similar surcharges without being provided information required by the DPU regulation. Todisco asserts that this action is moot because Todisco tendered payment of the full treble damages Silva seeks for himself under G.L. c. 93A. In the alternative Todisco urges the Court either to deny class certification completely or to certify a narrower class consisting only of people subjected to trespass tows. The Court concludes that Todisco’s attempt to “pick off” the named plaintiff did not moot Silva’s individual claims or the class action. It will allow the class certification motion in part and, in the exercise of its discretion, will certify a class of “trespass tow” plaintiffs for the purposes of the claims asserted under c. 93A and for declaratory relief. But it will deny the motion to the extent that Silva seeks to include “police tow” plaintiffs in the class, and to the extent that he seeks to certify a class with respect to the misrepresentation, fraud, and unjust enrichment claims. – 2 – 1. Effect of Tender to Named Plaintiff. Todisco argues that Silva’s individual claims are moot, and that therefore class certification is inappropriate,1 because Todisco has already tendered the maximum amount of compensation that Silva himself could possibly recover in this action. Silva (or his son acting on his behalf) paid Todisco $ 169.00 to regain his vehicle after Todisco had towed it. In May 2017, almost 20 months after Silva filed this suit, Todisco sent Silva a check for three times that amount ($ 507.00). Todisco said in its cover letter that it tendered this payment “without any conditions and/or restrictions.” Silva responded by saying […]
Commonwealth v. Harris (Lawyers Weekly No. 11-031-18)
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-123 Appeals Court COMMONWEALTH vs. JESSE HARRIS. No. 17-P-123. Suffolk. December 18, 2017. – March 19, 2018. Present: Green, C.J., Vuono, Wolohojian, Kinder, & Englander, JJ. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Firearms. Evidence, Firearm, Knife, Flight. Practice, Criminal, Stipulation, Motion to suppress. Indictments found and returned in the Superior Court Department on November 13, 2015. A pretrial motion to suppress evidence was heard by Robert N. Tochka, J., and the cases were heard by Robert B. Gordon, J., on a statement of agreed facts. Rosemary Daly for the defendant. Meghan Joyce, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth. ENGLANDER, J. This case raises an issue as to the reasonableness of police conduct when the police engaged with, and ultimately stopped and seized, persons walking in a public area. The defendant appeals from his convictions of illegal possession of a firearm and carrying a loaded firearm without a license, claiming that (1) the firearm was seized in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, and (2) the trial judge failed to conduct the necessary waiver colloquy before convicting the defendant based upon stipulated facts. Because, as the Commonwealth acknowledges, the required colloquy did not occur, the judgments must be vacated and the findings set aside. That leaves the search and seizure issue, which has been fully briefed and argued and which bears on any future proceedings. See Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 289 (2009). The seizure of the gun resulted from what began as a “casual” encounter between the defendant, his two companions, and the Northeastern University (university) police, outdoors on a September afternoon in the middle of the university’s campus. The defendant contends that he and his companions were stopped or seized, for constitutional purposes, without the required reasonable suspicion, and that the gun accordingly must be suppressed. A Superior Court judge denied the defendant’s pretrial motion to suppress the gun, concluding that the initial conversations with police were consensual and that no stop occurred until after the police officers had observed a knife on the defendant’s person, at […]
Bruno, et al. v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 11-032-18)
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-174 Appeals Court WILLIAM A. BRUNO, trustee,[1] & another[2] vs. ZONING BOARD OF APPEALS OF TISBURY & others.[3] No. 17-P-174. Suffolk. November 9, 2017. – March 19, 2018. Present: Meade, Shin, & Ditkoff, JJ. Subdivision Control, Approval not required, Zoning requirements. Zoning, Enforcement, Nonconforming use or structure. Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations. Limitations, Statute of. Civil action commenced in the Land Court Department on May 2, 2014. The case was heard by Gordon H. Piper, J., on motions for summary judgment. Douglas A. Troyer for the plaintiffs. Howard M. Miller for Samuel Goethals & another. Jonathan M. Silverstein for Zoning Board of Appeals of Tisbury. DITKOFF, J. The plaintiffs, William A. Bruno and Lynne Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty Trust (Brunos), appeal from a Land Court judgment upholding the denial by the zoning board of appeals of Tisbury (board) of the Brunos’ request to enforce the zoning law against the defendants, Samuel Goethals and Mary Goethals, as trustees of the Goethals Family Trust (Goethals). The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot. We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan. As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board. Background. The Goethals and Brunos separately own adjoining real property parcels, held in trust, located on Goethals Way in the town of Tisbury. The Goethals’ property (Lot 1) and the Brunos’ property (Lot 2) formerly comprised a single parcel (original lot), first purchased by the Goethals family in or around the 1930’s. The original lot contained a single-family dwelling when the Goethals purchased it, and they added a separate garage sometime prior to 1960. In 1978, the planning board of Tisbury […]
Citadel Realty, LLC v. Endeavor Capital North, LLC, et al. (Lawyers Weekly No. 11-033-18)
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-735 Appeals Court CITADEL REALTY, LLC vs. ENDEAVOR CAPITAL NORTH, LLC, & others.[1] No. 16-P-735. Suffolk. November 7, 2017. – March 19, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Practice, Civil, Interlocutory appeal, Motion to dismiss, Declaratory proceeding. Lis Pendens. Declaratory Relief. Mortgage, Foreclosure, Discharge. Notice, Foreclosure of mortgage. Real Property, Mortgage. Civil action commenced in the Superior Court Department on January 29, 2016. A special motion to dismiss was heard by William F. Sullivan, J. Jonas A. Jacobson for the plaintiff. Scott K. DeMello (Rosemary A. Traini also present) for the defendants. WENDLANDT, J. This appeal presents occasion to clarify the scope of this court’s review of an interlocutory order denying a special motion to dismiss brought pursuant to G. L. c. 184, § 15, the lis pendens statute. Here, the defendants sought to dismiss the entire action, including (1) one claim supporting the memorandum of lis pendens and affecting title, and (2) other claims that were not the basis for the lis pendens. We hold that our review is limited to those portions of the interlocutory order supporting the memorandum of lis pendens. Citadel Realty, LLC (Citadel), filed a complaint in the Superior Court against the defendants, seeking to void the foreclosure sale of Citadel’s real property in the Dorchester section of Boston (property). In addition, Citadel sought damages and reformation of the underlying mortgages. Following the filing of its verified amended complaint, Citadel filed a motion for approval of a memorandum of lis pendens, pursuant to G. L. c. 184, § 15(b), which was allowed. The defendants filed a motion opposing the approval of the memorandum of lis pendens and seeking to dismiss the complaint, which was, in part, a special motion to dismiss pursuant to G. L. c. 184, § 15(c). The motion was denied. The defendants filed the present interlocutory appeal from the denial of their motion to dismiss, purporting to appeal the motion judge’s decision declining to dismiss both the claim supporting the lis pendens and affecting title, and the claims that did not support the lis pendens. Background. We set forth the facts from the verified pleadings and affidavits that were before the judge. G. L. c. 184, § 15(c). In 2011, Mario Lozano approached Endeavor Capital, LLC (Endeavor),[2] seeking a loan in connection with the property. […]
Commonwealth v. Sutherland (Lawyers Weekly No. 11-034-18)
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; SJCReportersjc.state.ma.us 17-P-44 Appeals Court COMMONWEALTH vs. ADMIRAL SUTHERLAND. No. 17-P-44. Hampden. January 19, 2018. – March 19, 2018. Present: Blake, Neyman, & Ditkoff, JJ. Controlled Substances. Evidence, Profile, Expert opinion, Authentication, Chain of custody. Witness, Expert. Practice, Criminal, Required finding, New trial, Assistance of counsel. Indictment found and returned in the Superior Court Department on October 13, 2010. The case was tried before John A Agostini, J., a motion for a new trial was considered by him, and a motion for reconsideration was considered by him. Barbara J. Sweeney for the defendant. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. BLAKE, J. Following a jury trial in the Superior Court, the defendant, Admiral Sutherland, was convicted of possession with intent to distribute heroin. Thereafter, he pleaded guilty to a charge that it was a subsequent offense. His motions for a new trial and for reconsideration were denied without a hearing. On appeal, the defendant claims that the admission of improper so-called “negative profiling” evidence amounted to reversible error, that there was insufficient evidence that the substance was heroin, and that it was an abuse of discretion to deny his motion for new trial. We affirm. Background. The jury could have found the following facts. On September 11, 2010, Massachusetts State police Trooper Luis Rodriguez was conducting a community walk through[1] in Springfield. Rodriguez noticed a black Nissan being driven by the defendant, who he knew did not have a valid driver’s license. After the defendant parked the Nissan, Rodriguez arrested him for driving with a suspended license. While searching the defendant, Rodriguez found a package of cigarettes, which contained three bundles. Each bundle contained ten bags of what Rodriguez believed to be heroin. Rodriguez also found a small bag of what he believed to be marijuana in the defendant’s possession. Within earshot of the defendant, Rodriguez discussed with another trooper his intention to apply for a warrant to search the defendant’s home. Upon their arrival at the State police barracks, the defendant asked to use the telephone to arrange transportation for his daughter. Rodriguez dialed the telephone number provided by the defendant and handed him the telephone. The defendant said into the receiver, “They’re coming. They’re coming.” Rodriguez immediately ended the telephone call and asked the […]
Categories: News Tags: 1103418, Commonwealth, Lawyers, Sutherland, Weekly
Rafferty v. Merck & Co., Inc., et al. (Lawyers Weekly No. 10-041-18)
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; SJCReportersjc.state.ma.us SJC-12347 BRIAN RAFFERTY vs. MERCK & CO., INC., & another.[1] Middlesex. November 6, 2017. – March 16, 2018. Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ. Negligence, Pharmaceutical manufacturer, Adequacy of warning, Duty to warn, Standard of care. Actionable tort. Public Policy. Consumer Protection Act, Unfair or deceptive act, Trade or commerce. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on October 10, 2013. A motion to dismiss was heard by Kenneth J. Fishman, J., and entry of separate and final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Emily E. Smith-Lee for the plaintiff. Richard L. Neumeier (Aaron Rice, of Mississippi, & David L. Johnson, of Tennessee, also present) for Merck & Co., Inc. The following submitted briefs for amici curiae: Michael X. Imbroscio & Gregory L. Halperin, of the District of Columbia, & Paul W. Schmidt for Pharmaceutical Research and Manufacturers of America & others. Mark C. Fleming & Tyler L. Sparrow for International Association of Defense Counsel. Hugh F. Young, Jr., of Virginia, & David R. Greiger & Richard G. Baldwin for Product Liability Advisory Council, Inc. Kannon K. Shanmugam, Allison Jones Rushing, & Connor S. Sullivan, of the District of Columbia, & Jennifer G. Wicht for Chamber of Commerce of the United States of America. Lawrence G. Cetrulo, Kyle E. Bjornlund, Elizabeth S. Dillon, & Brian D. Fishman for Massachusetts Defense Lawyers Association. GANTS, C.J. Under Federal law, a manufacturer of a generic drug must provide its users with a warning label that is identical to the label of the brand-name counterpart. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 613 (2011) (PLIVA). The issue on appeal is whether a plaintiff who alleges that he was injured from his use of a generic drug, because of a failure to warn of the drug’s side effects, may bring a common-law general negligence claim and a statutory claim under G. L. c. 93A against the brand-name drug manufacturer that created the warning label. Applying our general principles of tort law and as a matter of public policy, we conclude that the plaintiff may not bring a negligence claim against the brand-name manufacturer for a failure to warn. We […]
Commonwealth v. Brown (Lawyers Weekly No. 10-042-18)
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; SJCReportersjc.state.ma.us SJC-12313 COMMONWEALTH vs. JOHNELLE M. BROWN. Middlesex. November 7, 2017. – March 16, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Assault and Battery. Intimidation of Witness. Witness, Intimidation. District Court, Jurisdiction. Practice, Criminal, New trial, Assistance of counsel, Instructions to jury, Sentence, Allocution, Restitution. Restitution. Complaint received and sworn to in the Cambridge Division of the District Court Department on May 2, 2014. The case was tried before Michele B. Hogan, J.; a restitution hearing was held before Daniel C. Crane, J.; and a motion for postconviction relief was heard by Hogan, J. The Supreme Judicial Court granted an application for direct appellate review. Luke Rosseel for the defendant. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury in the District Court convicted the defendant, Johnelle M. Brown, of assault and battery and witness intimidation. After beginning the sentencing hearing, the trial judge revoked the defendant’s bail and delayed sentencing for four days. After reconvening, the judge imposed a sentence of a one-year commitment to a house of correction, suspended for two years, probation, and restitution. The defendant disputes the District Court’s jurisdiction over the witness intimidation prosecution. The defendant also appeals from the denial of her motion for a new trial, revocation of bail, and order of payment of restitution. We affirm. Facts. We recite the facts as the jury could have found them, reserving certain facts for later discussion. Mahboobe Aria and Mehdi Aria[1] managed a restaurant. On April 6, 2014, the restaurant closed at 2:30 A.M. At approximately 2:40 A.M., Mahboobe and Mehdi were completing tasks relevant to closing the restaurant. Mehdi was outside, cleaning the outdoor seating. Mahboobe was inside. The defendant and a man arrived in an automobile and parked outside the restaurant. The man was not identified by name at trial, but the defendant’s motion for a new trial, appellate brief, and affidavits identify this man as Tyrell Carr. Carr remained in the automobile while the defendant went into the restaurant. Mahboobe was near the cash register when the defendant walked into the restaurant. Mahboobe told the defendant that the restaurant was closed. The defendant said that she needed to use the bathroom. Mahboobe refused to allow the defendant to […]