Posts tagged "Lopez"

Guardianship of Yosselin Guadalupe Penate; Department of Revenue v. Lopez, et al. (Lawyers Weekly No. 10-102-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12138 SJC-12184   GUARDIANSHIP OF YOSSELIN GUADALUPE PENATE.   DEPARTMENT OF REVENUE[1]  vs.  MANUEL MORALES LOPEZ & another.[2]       Suffolk.     January 6, 2017. – June 9, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Alien.  Probate Court, Jurisdiction.  Jurisdiction, Probate Court.       Petition for appointment of a guardian filed in the Suffolk Division of the Probate and Family Court Department on September 14, 2015.   A motion for special findings of fact was heard by Virginia M. Ward, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.   Complaint to establish paternity filed in the Suffolk Division of the Probate and Family Court Department on November 25, 2014.   A motion for special findings of fact was heard by Virginia M. Ward, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Valquiria C. Ribeiro for Marvin H. Penate. Jennifer B. Luz (Joshua M. Daniels also present) for E.G. Elizabeth Badger for Kids in Need of Defense & others, amici curiae. The following submitted briefs for amici curiae: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, William C. Peachey, Erez Reuveni, & Joseph A. Darrow, of the District of Columbia, for the United States. Mary K. Ryan & Meghan S. Stubblebine for American Immigration Lawyers Association, New England Chapter, & others.          HINES, J.  In these appeals brought by E.G., an eight year old undocumented immigrant from Guatemala, and Yosselin Guadalupe Penate, a nineteen year old undocumented immigrant from El Salvador, we consider for the second time[3] the statutorily mandated role of the Probate and Family Court (and the Juvenile Court) in a juvenile’s application for special immigrant juvenile status (SIJ) under 8 U.S.C. § 1101(a)(27)(J) (2012).  Congress established the SIJ status classification “to create a pathway to citizenship for immigrant children,” Recinos v. Escobar, 473 Mass. 734, 737 (2016), who have been abused, neglected, or abandoned by one or both parents.  The issue presented in these appeals is whether a judge may decline to make special findings based on an assessment of the likely merits of the movant’s application for SIJ status or on the movant’s motivation for seeking SIJ status.  The judge implicitly determined that neither child would be entitled to […]

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Posted by Massachusetts Legal Resources - June 9, 2017 at 2:56 pm

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Commonwealth v. Lopez (Lawyers Weekly No. 11-065-17)

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   15-P-1183                                       Appeals Court   COMMONWEALTH  vs.  AUGUSTO LOPEZ.     No. 15-P-1183.   Middlesex.     March 6, 2017. – May 24, 2017.   Present:  Carhart, Massing, & Lemire, JJ.[1]     Rape.  Child Abuse.  Enticement of Minor.  Evidence, First complaint, Relevancy and materiality, Credibility of witness.  Witness, Credibility.       Indictments found and returned in the Superior Court Department on May 17, 2012.   The cases were tried before Kenneth W. Salinger, J.     Jane Larmon White, Committee for Public Counsel Services, for the defendant. Jessica Langsam, Assistant District Attorney, for the Commonwealth.     MASSING, J.  The defendant was convicted of two counts of rape and abuse of a child under sixteen years of age, aggravated by an age difference of ten years or more, see G. L. c. 265, § 23A(b), two counts of rape of a child by force, G. L. c. 265, § 22A, and one count of enticement of a child, G. L. c. 265, § 26C.  The charges arose from a single incident involving a twelve year old girl.  The only evidence of the crime was the testimony of the child, who was fifteen years old at the time of trial.  At issue is the judge’s decision to admit the testimony of the child’s “therapeutic mentor” that the child lacked the ability to engage in “imagination play.”  We conclude that the testimony was improperly admitted to prove that the child was incapable of telling lies and that its use for this purpose was prejudicial, warranting a new trial. Background.  a.  The crime.  When the child was twelve years old she lived next door to the defendant, whom she called “Pachoo.”  The defendant lived with Chrissy, who was a friend of the child’s mother, and Chrissy’s three children, two of whom were younger than the child.  The defendant was Chrissy’s boy friend and was fifty-five years old at the time. According to the child, one night she went next door to babysit for Chrissy’s two younger children while Chrissy went out to play bingo.  The child had just finished using the upstairs bathroom when the defendant called her into Chrissy’s bedroom.  The defendant pushed her onto the bed, took off her pants and underwear, got on top of her, and “sticked his dick in [her] vagina.”  At some point he stopped, and the child put her underwear and pants back on.  Then the defendant […]

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Posted by Massachusetts Legal Resources - May 24, 2017 at 4:06 pm

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Commonwealth v. Lopez (Lawyers Weekly No. 11-056-17)

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   15-P-1207                                       Appeals Court   COMMONWEALTH  vs.  WILLIAM A. LOPEZ.     No. 15-P-1207.   Bristol.     February 28, 2017. – May 10, 2017.   Present:  Wolohojian, Milkey, & Shin, JJ.     Moped.  Motor Vehicle, Moped, License to operate.     Complaint received and sworn to in the Fall River Division of the District Court Department on October 22, 2013.   The case was heard by Cynthia M. Brackett, J.   Kelly M. Costa for the defendant. Brenna C. Ferrick, Assistant District Attorney, for the Commonwealth.     MILKEY, J.  For operating a moped while his driver’s license was suspended, the defendant was charged with violating G. L. c. 90, § 23, as a subsequent offense.  After a bench trial in District Court, he was found guilty of the underlying offense, and he then pleaded guilty to the subsequent offense portion.  The judge sentenced him to ninety days in a house of correction.  On appeal, the defendant argues that although his operating the moped with a suspended license may have been a violation of G. L. c. 90, § 1B (which allows for fines but no incarceration), as a matter of law, it cannot be a violation of G. L. c. 90, § 23.  Because we agree, we reverse his conviction. Background.  It is undisputed that the defendant was driving his moped while his driver’s license was suspended.  The factual dispute at trial was whether the moped met the statutory definition of a “motorized bicycle” (as the defendant maintained) or whether instead it was a “motorcycle” (as the Commonwealth maintained).  See G. L. c. 90, § 1, as amended by St. 1992, c. 286, § 153 (definitions).  This distinction potentially mattered because the defendant was charged with violating G. L. c. 90, § 23, as amended by St. 2009, c. 27, § 67, which, by its express terms, applies to “motor vehicles.”  Motor vehicles, in turn, are defined to include motorcycles but to exclude motorized bicycles.  G. L. c. 90, § 1. Whether a motorized two-wheeled vehicle qualifies as a motorized bicycle generally depends on the size of its engine, the nature of its transmission, and the maximum speed the vehicle is capable of achieving.  G. L. c. 90, § 1 (definition of motorized bicycle).[1]  Based on the evidence adduced at trial, the judge accepted the defendant’s position that his moped qualified as a motorized bicycle, and the Commonwealth has abandoned any argument to the contrary. With the taxonomic issue […]

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Posted by Massachusetts Legal Resources - May 10, 2017 at 3:48 pm

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Commonwealth v. Flores Lopez (Lawyers Weekly No. 10-120-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12116   COMMONWEALTH  vs.  RAFAEL FLORES LOPEZ.     August 9, 2016.     Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Interlocutory appeal.       Rafael Flores Lopez has been indicted for several crimes including trafficking in cocaine, in violation of G. L. c. 94C, § 32E (b) (4); and committing a drug violation near a school or park, in violation of G. L. c. 94C, § 32J.  After a judge in the Superior Court denied his motion to suppress, he applied to a single justice in the county court for leave to pursue an interlocutory appeal pursuant to Mass. R. Crim. P. 15, as appearing in 422 Mass. 1501 (1996).  The single justice denied the application, and Lopez now purports to appeal.   The appeal is not properly before us.  “A defendant in a criminal case has no right to appeal to the full court from a single justice’s denial of an application for leave to appeal.”  Commonwealth v. Santry, 469 Mass. 1001, 1001 (2014), and cases cited.[1]   Appeal dismissed.   The case was submitted on the papers filed, accompanied by a memorandum of law.   Veronica J. White for the petitioner.             [1] Lopez mistakenly claims that the court “does allow Rule 15 motions and motion to suppress denials to proceed under Rule 2:21.”  The authority that Lopez cites in support of this proposition is either inapposite or directly to the contrary.  See, e.g., Commonwealth v. Bertini, 466 Mass. 131, 135-136 (2013). Full-text Opinions

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Posted by Massachusetts Legal Resources - August 10, 2016 at 2:35 am

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Commonwealth v. Lopez (Lawyers Weekly No. 10-095-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11551   COMMONWEALTH  vs.  GREGORIO LOPEZ.       Suffolk.     March 11, 2016. – July 8, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.     Homicide.  Evidence, Prior violent conduct, State of mind, Self-defense.  Self-Defense.  Defense of Others.  Practice, Criminal, Capital case, State of mind, Argument by prosecutor.       Indictments found and returned in the Superior Court Department on May 15, 2009.   The case was tried before Patrick F. Brady, J.     David Keighley for the defendant. Sarah Montgomery Lewis, Assistant District Attorney (David Fredette, Assistant District Attorney, with her) for the Commonwealth.     SPINA, J.  The defendant, Gregorio “Mikey” Lopez,[1] appeals from his conviction of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.[2]  The defendant shot and killed his girl friend’s former boy friend in the early morning hours of March 11, 2009.  On appeal, the defendant argues that a new trial is required because (1) the trial judge abused his discretion when he refused to permit evidence of the victim’s prior violence against the defendant’s girl friend to be admitted and, by doing so, denied him his constitutional right to present a defense; (2) the prosecutor’s comments in his closing argument severely prejudiced the defense; and (3) this court should require the defendant’s state of mind to be considered in determining whether a murder is committed with extreme atrocity or cruelty and, by applying such a requirement to this case, the defendant’s conviction of murder in the first degree based on the theory of extreme atrocity or cruelty should be overturned.  We affirm the conviction and decline to exercise our powers under G. L. c. 278, § 33E. Background.  The jury could have found the following facts.  At the time of the shooting, the defendant was staying with his girl friend, Desirae Ortiz, in one bedroom of a five-bedroom apartment on Mozart Street in the Jamaica Plain section of Boston.  Four additional people lived in the apartment, each renting a separate bedroom.  The tenants shared a kitchen and a bathroom.  Insofar as relevant here, Ortiz lived, and the defendant stayed, in one bedroom, Jenicelee Vega lived in another bedroom, Moises Rivera lived in a third bedroom, and Gricelle Alvarado and her infant son lived in a fourth bedroom.  Vega and Alvarado are cousins.  […]

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Posted by Massachusetts Legal Resources - July 8, 2016 at 9:47 pm

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Commonwealth v. Lopez (Lawyers Weekly No. 11-079-15)

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   13-P-1730                                       Appeals Court   COMMONWEALTH vs. DANIEL LEE LOPEZ.     No. 13-P-1730. Essex.     November 10, 2014. – July 29, 2015.   Present:  Rubin, Brown, & Maldonado, JJ. Homicide.  Felony-Murder Rule.  Robbery.  Practice, Criminal, Required finding, Instructions to jury, Lesser included offense.  Evidence, Consciousness of guilt, Identification, Testimony before grand jury.  Grand Jury.  Witness.       Indictments found and returned in the Superior Court Department on October 2, 2009, and February 28, 2011.   After review by this court, 80 Mass. App. Ct. 390 (2011), the cases were tried before David Lowy, J.     Amy M. Belger for the defendant. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth.     RUBIN, J.  The defendant was indicted on charges of first degree murder and unarmed robbery.  After the trial court allowed a motion to dismiss so much of the murder indictment as was grounded on a theory of felony-murder, the Commonwealth appealed.  We reversed that order, see Commonwealth v. Lopez, 80 Mass. App. Ct. 390 (2011) (Lopez I), and reinstated the indictment.  An additional indictment was then brought against the defendant, charging manslaughter.  On remand, after a jury trial, the defendant was acquitted of felony-murder, and was convicted of involuntary manslaughter on a theory of wanton and reckless conduct, and of unarmed robbery.  On the involuntary manslaughter charge, he was sentenced to fifteen to eighteen years in State prison, and on the unarmed robbery charge he was sentenced to a subsequent five years of probation.  He now appeals.  We address each issue presented in turn. 1.  Sufficiency of the evidence.  The defendant argues first that the evidence was insufficient on the charge of involuntary manslaughter.  The defendant’s argument is that the conduct that formed the basis of his involuntary manslaughter conviction (a single punch to the victim’s head) did not “involve[] a high degree of likelihood that substantial harm [would] result to another.”  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944) (internal citations omitted).  This argument is difficult to maintain in light of our prior decision in Lopez I.  We need not rehearse in detail the facts that the jury might have found viewing the evidence in the light most favorable to the Commonwealth, as they turned out to be essentially the same as those outlined in Lopez I, where the court examined the evidence before the grand […]

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Posted by Massachusetts Legal Resources - July 29, 2015 at 10:48 pm

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Commonwealth v. Lopez (Lawyers Weekly No. 11-091-14)

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   13-P-750                                        Appeals Court   COMMONWEALTH  vs.  MIGUEL LOPEZ. No. 13-P-750. Hampden.     February 6, 2014. – July 30, 2014. Present:  Cypher, Graham, & Carhart, JJ. Rape.  Assault and Battery.  Constitutional Law, Speedy trial. Evidence, Hospital record, Disclosure of evidence.  Practice, Criminal, Speedy trial, Discovery, Disclosure of evidence.      Indictments found and returned in the Superior Court Department on July 27, 2011.   A motion to dismiss was heard by C. Jeffrey Kinder, J., and the cases were tried before Bertha D. Josephson, J.     David M. Skeels, Committee for Public Counsel Services, for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth.     CYPHER, J.  The defendant, Miguel Lopez, was convicted by a jury of rape, G. L. c. 265, § 22(b), and assault and battery, G. L. c. 265, § 13A(a).  He appeals, claiming (1) that he was prejudiced by the lack of a speedy trial and (2) that the Commonwealth failed to provide mandatory discovery.  We affirm. Background.  On July 27, 2011, a HampdenCounty grand jury returned indictments against the defendant on the underlying charges.  The defendant was arraigned on August 9, 2011, and counsel was appointed.  On November 15, 2012, the defendant filed a motion to dismiss on speedy trial grounds, with a supporting memorandum.  After a hearing on the motion five days later, the judge denied the motion. A jury trial began on December 11, 2012, after which the defendant was found guilty on both charges.  On December 19, 2012, the defendant was sentenced on the rape conviction to a term of not more than ten years, and not less than nine years, to be served at the Massachusetts Correctional Institution at Cedar Junction.  On the assault and battery conviction, the defendant was sentenced to the Hampden County house of correction for two and one-half years, the sentence to run concurrently with the sentence to be served on the rape conviction. Facts.  A jury could have found the following facts.  On July 11, 2010, the victim, Valerie,[1] was living in an apartment with her stepdaughter.  The defendant lived upstairs in the same apartment building with his wife, who was out of town at the time.  Valerie knew the defendant because he was a good friend of Valerie’s former boyfriend, Frank,[2] who had recently ended their relationship.  Valerie was also a friend of the defendant’s wife. At 6:00 A.M. on the […]

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Posted by Massachusetts Legal Resources - July 30, 2014 at 6:19 pm

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