Posts tagged "Weekly"

Commonwealth v. Suriel (Lawyers Weekly No. 11-068-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-254                                        Appeals Court

COMMONWEALTH  vs.  JUAN G. SURIEL.

No. 16-P-254.

Hampden.     March 1, 2017. – May 26, 2017.

Present:  Green, Wolohojian, & Sullivan, JJ.

Firearms.  Practice, Criminal, Motion to suppress.  Constitutional Law, Search and seizure, Reasonable suspicion.  Search and Seizure, Automobile, Reasonable suspicion.

Complaint received and sworn to in the Springfield Division of the District Court Department on December 2, 2013.

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Posted by Stephen Sandberg - May 26, 2017 at 9:47 pm

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Commonwealth v. Lydon (Lawyers Weekly No. 10-089-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12289

COMMONWEALTH  vs.  DAVID LYDON.

May 26, 2017.

Imprisonment, Credit for time served.  Practice, Criminal, Sentence, Judicial discretion.

The defendant, David Lydon, appeals from an order denying his motion for credit for time being served in a house of correction for one set of offenses, while he was awaiting trial and sentencing in the Superior Court on a second, unrelated set of offenses.  The Appeals Court affirmed the denial of the motion in a unpublished memorandum and order issued pursuant to its rule 1:28, see Commonwealth v. Lydon, 90 Mass. App. Ct. 1118 (2017), and this court granted further appellate review.  Although the defendant is not entitled as of right to the credit he seeks, we recognize that in appropriate circumstances a judge has discretion to impose a concurrent State prison sentence nunc pro tunc to the commencement of a house of correction sentence then being served.  Because the judge did not consider whether to exercise his discretion in that regard, we vacate the order, and remand for further consideration.

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Posted by Stephen Sandberg - May 26, 2017 at 6:12 pm

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Padmanabhan v. Yout (Lawyers Weekly No. 10-090-17)

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-12266

BHARANIDHARAN PADMANABHAN  vs.  KIMBERLEY YOUT.

May 26, 2017.

Supreme Judicial Court, Superintendence of inferior courts.

The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.

In 2013, the respondent, Kimberley Yout, commenced a product liability action in the Superior Court against Biogen Inc. and Elan Pharmaceuticals, LLC, related to a medication used to treat multiple sclerosis.  She subsequently amended her complaint to include Padmanabhan, a medical doctor, and his company, Scleroplex, Inc., claiming medical malpractice stemming from Padmanabhan’s treatment of her multiple sclerosis with that medication.  Padmanabhan moved to dismiss the claims against both him and, purportedly, Scleroplex, on several bases:  that venue was improper, that service was improper and ineffective, and that the claims were barred by the applicable statute of limitations.[1]  The motion was denied.  Padmanabhan then filed his G. L. c. 211, § 3, petition, which the single justice denied without a hearing.

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Posted by Stephen Sandberg - May 26, 2017 at 2:37 pm

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Commonwealth v. Connolly (Lawyers Weekly No. 11-066-17)

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-107                                        Appeals Court

COMMONWEALTH  vs.  DAVID A. CONNOLLY.

No. 16-P-107.

Middlesex.     December 14, 2016. – May 25, 2017.

Present:  Wolohojian, Milkey, & Shin, JJ.

Assault and Battery.  Evidence, Videotape, Best and secondary, Cross-examination, Authentication, Identification, Opinion.  Identification.  Witness, Cross-examination.  Fair Trial.

Complaint received and sworn to in the Malden Division of the District Court Department on August 19, 2014.

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Posted by Stephen Sandberg - May 26, 2017 at 11:03 am

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Commonwealth v. Cooper (Lawyers Weekly No. 11-067-17)

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-697                                        Appeals Court

COMMONWEALTH  vs.  ROBERT F. COOPER.

No. 16-P-697.

Middlesex.     March 8, 2017. – May 25, 2017.

Present:  Green, Wolohojian, & Sullivan, JJ.

Controlled Substances“School Zone” StatuteWords, “Accredited.”

Complaint received and sworn to in the Cambridge Division of the District Court Department on March 29, 2012.

The case was tried before Michelle B. Hogan, J.

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Posted by Stephen Sandberg - May 26, 2017 at 7:28 am

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Commonwealth v. McGrath (Lawyers Weekly No. 10-085-17)

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-11909

COMMONWEALTH  vs.  George McGrath.

May 25, 2017.

Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Capital case.

George McGrath purports to appeal from the decision of a single justice of this court, pursuant to the gatekeeper provision of G. L. c. 278, § 33E, denying leave to appeal from the denial of his motion for a new trial on charges of murder in the first degree and assault with intent to rob.[1]  “A defendant who is denied leave to appeal from a single justice acting as a gatekeeper . . . has no right to appeal from the single justice’s ruling denying leave.  The single justice’s ruling is ‘final and unreviewable.’”  Commonwealth v. Companiono, 472 Mass. 1004, 1005 (2015), quoting Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010), .C., 459 Mass. 480, cert. denied, 565 U.S. 868 (2011).  We see no reason to depart from this longstanding rule.  See Commonwealth v. Robinson, 477 Mass.     (2017).

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Posted by Stephen Sandberg - May 26, 2017 at 3:53 am

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In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 10-086-17)

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-12249

IN THE MATTER OF A GRAND JURY INVESTIGATION.

May 25, 2017.

Supreme Judicial Court, Superintendence of inferior courts.  Moot Question.

The petitioner, R.C., appealed from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3.  R.C. has been indicted for possessing and distributing child pornography.  In his petition, he sought relief from an order of a Superior Court judge authorizing computers and digital storage devices (digital material) seized from his home to be searched for child pornography.  R.C., who is an attorney, argued that the digital material may contain privileged data provided to him by his clients and that the Superior Court judge’s order did not adequately protect any such privileged data because it does not conform to the protocol set forth in Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810 (2013).  After the single justice denied relief, R.C. moved to stay the Superior Court order pending this appeal.  We denied that motion, thereby allowing the search to proceed.  The Commonwealth has moved to dismiss this appeal as moot.  It represents that the search has taken place pursuant to the protocol set forth in the Superior Court order, that files allegedly containing child pornography were transmitted to R.C.’s counsel, and that R.C. does not claim that any of those files are protected by the attorney-client privilege.  R.C. has not disputed these representations or filed any response to the motion within the time set forth in Mass. R. A. P. 15 (a), 365 Mass. 859 (1974).  R.C.’s challenge to the Superior Court order has become moot, as that order has been fully carried out.  See Lenardis v. Commonwealth, 452 Mass. 1001, 1001 (2008).  No effective relief can be provided.  Moreover, we see no reason to believe that the issue is capable of repetition, yet evading review, and R.C. has offered none.

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Posted by Stephen Sandberg - May 26, 2017 at 12:19 am

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In the Matter of an Application for a Criminal Complaint (Lawyers Weekly No. 10-088-17)

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; SJCReportersjc.state.ma.us

SJC-12062

IN THE MATTER OF AN APPLICATION FOR A CRIMINAL COMPLAINT.

May 25, 2017.

Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Complaint, Standing.  Police Officer.

The petitioner appeals from a judgment of the county court denying her petition for relief under G. L. c. 211, § 3.  We affirm the judgment.

The petitioner, who was a Boston police officer, filed an application for a criminal complaint in the West Roxbury Division of the Boston Municipal Court (BMC), alleging that the respondent, her supervisor, committed an assault and battery against her.  The respondent was the commander of the police station falling within that court’s jurisdiction.  After a hearing, a clerk-magistrate denied the application for lack of probable cause.  G. L. c. 218, § 35A.  The petitioner moved for reconsideration and change of venue.  The application was transferred to the Charlestown Division of the BMC for rehearing by a clerk-magistrate, although it appears that the application was not docketed until almost one year later.  The petitioner requested that the matter be transferred out of Suffolk County to Bristol County.  That request was denied.  The respondent also requested a new hearing and change of venue on the ground that he had a business relationship with all the divisions of the BMC.  As a result, the application was transferred to the Dedham Division of the District Court Department, nearly three years after the application was transferred to the Charlestown Division of the BMC.[1]  A clerk-magistrate of that court denied the application, finding no probable cause.  The petitioner then filed her G. L. c. 211, § 3, petition, seeking both a rehearing on her application and a broader ruling requiring that applications for criminal complaints made against police officers be automatically transferred to a judge outside the police officer’s jurisdiction, rather than being heard by a clerk-magistrate in the first instance.  The single justice denied relief without a hearing.

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Posted by Stephen Sandberg - May 25, 2017 at 8:44 pm

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Commonwealth v. Robinson (Lawyers Weekly No. 10-087-17)

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-11907

COMMONWEALTH  vs.  PAUL ROBINSON.

May 25, 2017.

Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Capital case.

Along with a codefendant, Paul Robinson was convicted of two counts of murder in the first degree and two counts of assault with intent to rob in 1969.  After plenary review, this court affirmed the convictions.  Commonwealth v. McGrath, 358 Mass. 314 (1970), .C., 408 Mass. 245 (1990) and 437 Mass. 1002, cert. denied, 537 U.S. 980 (2002).  Robinson has since filed several motions for a new trial, all of which have been denied.  After the denial of his most recent (seventh) such motion, Robinson sought leave to appeal pursuant to the gatekeeper provision of G. L. c. 278, § 33E.  A single justice of this court concluded that the motion failed to present a “new and substantial question” and therefore denied such leave.  Robinson filed a notice of appeal to the full court from the single justice’s ruling, and the Commonwealth moved to dismiss.  Robinson asserted in opposition that his appeal ought to be permitted to proceed despite the longstanding rule that the decision of the gatekeeper is “final and unreviewable.”  E.g., Commonwealth v. Vinnie, 475 Mass. 1011, 1011 (2016), and cases cited.  We gave Robinson an opportunity to explain the basis for his position in a preliminary statement of no more than five pages.  Robinson has responded with an eleven-page statement of issues, in which he argues essentially that the gatekeeper process leads to arbitrary results and, more particularly, that his appeal was not allowed to proceed whereas other defendants’ appeals were.[1]  This is merely a recasting of the equal protection challenge we rejected in Napolitano v. Attorney Gen., 432 Mass. 240, 241-242 (2000).  We reject it again here.  Robinson received plenary review of his convictions under § 33E on direct appeal, and he has offered no reason to suppose that his seventh motion for a new trial raised any new and substantial issue that was not or could not have been presented in any of the previous six.  There is no hint of arbitrariness in this case.  He also has not offered any reason to believe that the “single justice erred by denying [his] gatekeeper petition on procedural grounds.”  Commonwealth v. Nassar, 454 Mass. 1008, 1009 n.2 (2009).  Finally, we reject Robinson’s argument that § 33E does not bar an appeal from the decision of the gatekeeper.  “The special function of the single justice mandated by the statute would be futile and meaningless if his or her rulings were subject to appeal before the full court.”  Commonwealth v. Companiono, 472 Mass. 1004, 1005 (2015), quoting Leaster v. Commonwealth, 385 Mass. 547, 548 (1982).  We see no reason to depart from our longstanding and well-established rule.  See Companiono, supra, and cases cited.[2]

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Posted by Stephen Sandberg - May 25, 2017 at 5:09 pm

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Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)

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-12121

DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1]  vs.  ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT.

Suffolk.     November 9, 2016. – May 24, 2017.

Present:  Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.

Committee for Public Counsel Services.  District Court, Drug court session.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016.

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Posted by Stephen Sandberg - May 24, 2017 at 7:41 pm

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