Commonwealth v. Gupta (Lawyers Weekly No. 11-002-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 10‑P‑921 Appeals Court COMMONWEALTH vs. BIRENDAR GUPTA. No. 10‑P‑921. Middlesex. September 11, 2013. ‑ January 15, 2014. Present: Kantrowitz, Sikora, & Hines, JJ. Stalking. Practice, Criminal, Instructions to jury, Lesser included offense, Duplicative convictions, Discovery, Assistance of counsel, Argument by prosecutor. Telephone. Evidence, Relevancy and materiality. Indictment found and returned in the Superior Court Department on November 13, 2008. The case was tried before Maureen B. Hogan, J., and a motion for a new trial, filed on March 1, 2011, was considered by her. Tatum A. Pritchard for the defendant. Hallie White Speight, Assistant District Attorney, for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant of stalking in violation of a restraining order, G. L. c. 265, § 43(b). As a central argument in this consolidated appeal, he contends that the judge’s instruction to the jury misconstrued the statutory definition of stalking and that under a correct definition the evidence did not establish his guilt beyond a reasonable doubt. He presents several subsidiary arguments. For the following reasons, we affirm the judgment and the order denying the defendant’s motion for new trial. Background. 1. Factual. Through the course of six days and the testimony of twelve witnesses (ten presented by the Commonwealth and two by the defendant), the jury received the following evidence.[1] The defendant and the victim, whom we shall call Manorma M. (Manorma), married in India in 2000. At that time Manorma was a widow and the mother of four children from her prior marriage. Through the ensuing seven years of marriage, the defendant physically, verbally, and sexually abused Manorma. The abuse involved batteries, forced sexual relations, and threats to harm and to kill her. She became afraid of him. During this time span the defendant regularly traveled to other countries for business purposes. The couple came to Massachusetts in April, 2007. The defendant rented an apartment in Somerville and began work at a restaurant; Manorma started work at a nearby salon. On May 21, 2007, Manorma obtained a restraining order pursuant to G. L. c. 209A, § 3, from the District Court. The court extended the order first to June 4, 2007, then to May 30, 2008, and again to May 29, 2009. In pertinent part and by the standard language, it commanded the […]
Commonwealth v. Labroad (Lawyers Weekly No. 10-006-14)
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 SJC‑11421 COMMONWEALTH vs. BERNARD LABROAD. January 13, 2014. Evidence, Privileged communication, Communication between patient and psychotherapist, Right to obtain evidence, Relevancy and materiality. Rape. Practice, Criminal, Record, Subpoena. Due Process of Law, Access to evidence. Privileged Communication. After his first trial ended in a mistrial, the defendant was convicted by a jury at a second trial of rape of a child, in violation of G. L. c. 265, § 23. He appealed, arguing that a Superior Court judge erred in denying his pretrial motion to compel the production of psychological records of the complainant, in accordance with Mass. R. Crim. P. 17 (a) (2), 378 Mass. 886 (1979). The Appeals Court affirmed the judgment of conviction, Commonwealth v. Labroad, 83 Mass. App. Ct. 1104 (2012), and we granted further appellate review.[1] We remand the case to the Superior Court for further proceedings. Background. Prior to trial, pursuant to Mass. R. Crim. P. 17, the defendant moved for the production of records related to the care of the complainant that were in the custody of her psychologist. He alleged that the complainant had been referred to the psychologist by an unidentified physician for potential attention deficit disorder. According to a police report, the psychologist told the police that during his first meeting with the complainant, she disclosed to him an alleged incident regarding the defendant. He referred her to the Middlesex County district attorney’s office, and thereafter was contacted and interviewed by police. Defense counsel’s supporting affidavit stated that a police interview of the psychologist “indicated that the alleged victim disclosed to him that the [d]efendant talked the alleged victim into pulling her pants down and digitally penetrated her.” During a hearing on the motion, defense counsel described the report as including the complainant’s disclosure to the psychologist about the details of the incident, and represented that the psychologist also had notes concerning what the complainant had recounted to him. The motion judge denied the motion, as well as a motion for reconsideration, concluding that statements by the victim to her psychologist concerning the alleged assault, without more, did not meet the threshold requirements of Commonwealth v. Dwyer, 448 Mass. 122, 141-142 (2006), and Commonwealth v. Lampron, 441 Mass. 265, 269 (2004). Discussion. Where, as here, “a defendant seeks pretrial inspection of statutorily privileged records […]
Commonwealth v. Demers (Lawyers Weekly No. 10-007-14)
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 SJC‑11588 COMMONWEALTH vs. JOSEPH DEMERS, JR. January 13, 2014. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Joseph R. Demers, Jr., was convicted in 1990 of murder in the second degree. Representing himself, he filed a motion in the Superior Court in 2013 seeking a new trial, claiming that the court room was improperly closed during his trial. His motion was denied, as was his motion for reconsideration. He then filed a petition in the county court attempting to invoke this court’s extraordinary power of general superintendence to address his claim of court room closure. A single justice summarily denied the petition, and the petitioner appeals. The single justice correctly denied relief. The petitioner was not entitled to extraordinary relief under G. L. c. 211, § 3, because he had an adequate alternative remedy, namely, an appeal as a matter of right to the Appeals Court from the denial of his motions. See McGuinness v. Commonwealth, 420 Mass. 495, 497-498 (1985).[1] Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Joseph Demers, Jr. pro se. [1] It appears from the material before us and from the Superior Court docket that the defendant filed a notice of appeal from the denial of his motions, and that the record was duly assembled, but that his appeal was misdirected to this court, instead of the Appeals Court, by the Superior Court clerk. The clerk of this court will work with the clerks of the Superior Court and the Appeals Court to ensure that the appeal is properly entered in the Appeals Court, where it can be briefed and decided. We express no view on the substantive merits of the appeal. Full-text Opinions
Commonwealth v. Gentile (Lawyers Weekly No. 10-011-14)
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 SJC‑11372 COMMONWEALTH vs. CONAN GENTILE. Worcester. November 7, 2013. ‑ January 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Search and Seizure, Arrest, Warrant, Reasonable suspicion, Consensual entry by police, Fruits of illegal search. Constitutional Law, Search and seizure, Arrest, Reasonable suspicion. Evidence, Result of illegal search. Practice, Criminal, Motion to suppress. Receiving Stolen Goods. Indictments found and returned in the Superior Court Department on August 13, 2010. A pretrial motion to suppress evidence was heard by James R. Lemire, J., and the cases were tried before Janet Kenton-Walker, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Cathryn A. Neaves for the defendant. Jane A. Sullivan, Assistant District Attorney, for the Commonwealth. GANTS, J. The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that police who enter an individual’s residence to execute an arrest warrant “have a reasonable belief that the location to be searched is the arrestee’s residence, and a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed.” Commonwealth v. Silva, 440 Mass. 772, 778 (2004). See Payton v. New York, 445 U.S. 573, 603 (1980) (“an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives where there is reason to believe the suspect is within”). In Silva, supra at 776-777, we stated that the “reasonable belief” standard is “less exacting than probable cause.” The issue presented in this case is how much less exacting. We conclude that a “reasonable belief” requires more than was known here at the time of entry. Therefore, the entry was unconstitutional under both the Fourth Amendment and art. 14, and the observation and subsequent seizure of the stolen property allegedly received by the defendant in this case should have been suppressed as a fruit of the illegal entry. Because both of the defendant’s convictions for receipt of stolen property, in violation of G. L. c. 266, § 60, rest entirely on this illegally seized property, we vacate the convictions and remand the case to the Superior Court for entry of an order of dismissal. Background. We summarize the relevant evidence in the Commonwealth’s […]
Commonwealth v. Pariseau (Lawyers Weekly No. 10-008-14)
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 SJC‑11302 COMMONWEALTH vs. ELI PARISEAU. Berkshire. September 9, 2013. ‑ January 13, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Constitutional Law, Sex offender, Delay in rendering decision. Due Process of Law, Sex offender, Adjudicatory proceeding, Delay in rendering decision. Civil action commenced in the Superior Court Department on September 2, 2009. The case was heard by John A. Agostini, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Brad P. Bennion for the defendant. Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth. David E. Sullivan, District Attorney, & Steven Greenbaum, Assistant District Attorney, for District Attorney for the Northwestern District & others, amici curiae, submitted a brief. DUFFLY, J. Several months after the conclusion of a jury‑waived trial, a Superior Court judge issued a decision determining that the defendant is a sexually dangerous person (SDP) and ordering him committed to the Massachusetts Treatment Center (treatment center) for an indeterminate period. G. L. c. 123A, § 14 (d).[1] The judge’s decision issued after our opinion in Commonwealth v. Blake, 454 Mass. 267, 268-260 (2009), which required that, absent extraordinary circumstances, a judge must issue a decision on an SDP petition within thirty days of the conclusion of a jury-waived trial. The defendant appealed, claiming that the evidence was insufficient to support a determination that he is sexually dangerous and that, because the trial judge’s decision was not rendered within thirty days of the end of the trial, he is entitled to dismissal of the Commonwealth’s petition or, in the alternative, a new trial. The Appeals Court affirmed. See Commonwealth v. Pariseau, 81 Mass. App. Ct. 705, 712 (2012). We allowed the defendant’s petition for further appellate review, “limited to the issue of what remedy, if any, is available when a judge who has presided over a jury‑waived trial pursuant to G. L. c. 123A, § 14, does not render a decision within thirty days of the end of the trial, pursuant to [Blake, supra].” Although the trial judge’s decision was not issued within thirty days as required by Blake, supra at 268, we conclude that neither dismissal nor a new trial is warranted in circumstances such as those present here. Although such remedies may be appropriate […]
Johnson, et al. v. Kindred Healthcare, Inc., et al. (Lawyers Weekly No. 10-009-14)
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 SJC‑11335 BARBARA JOHNSON & another,[1] as co-administratrices,[2] vs. KINDRED HEALTHCARE, INC., & others.[3] Plymouth. September 4, 2013. ‑ January 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Nursing Home. Health Care Proxy. Contract, Arbitration, Parties, Validity, Construction of contract. Arbitration, Arbitrable question. Agency, Scope of authority or employment. Statute, Construction. Words, “Health care decision.” Civil action commenced in the Superior Court Department on October 3, 2011. A motion to stay the proceedings and to compel arbitration was heard by Charles J. Hely, J. A proceeding for interlocutory review was heard in the Appeals Court by Gabrielle R. Wolohojian, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John Vail, of the District of Columbia (David J. Hoey with him) for the plaintiffs. Christopher R. Lavoie for the defendants. Kelly Bagby, of the District of Columbia & Rebecca J. Benson & Debra Silberstein, for National Academy of Elder Law Attorneys (Massachusetts Chapter) and another, amici curiae, submitted a brief. DUFFLY, J. This case presents the question whether a health care agent’s agreement with a health care facility to arbitrate disputes arising from the principal’s stay at that facility constitutes a “health care decision” binding on the principal pursuant to G. L. c. 201D, § 5.[4] The plaintiffs, administrators of the estate of Dalton Johnson, filed a complaint in the Superior Court against a national operator of nursing and rehabilitation centers, one of its subsidiary nursing homes and the operator of that nursing home, and two health care professionals, alleging, inter alia, negligence and seeking damages under the wrongful death statute, G. L. c. 229, § 2, as a result of the defendants’ care of Dalton[5] while he was a resident at the nursing home.[6] On May 24, 2007, Dalton executed a health care proxy pursuant to the Massachusetts health care proxy statute, G. L. c. 201D, §§ 1-17 (health care proxy statute). In it, he authorized his wife, Barbara Johnson, “as my Health Care Agent to make any and all health care decisions for me, except to the extent that I state otherwise.” Dalton was admitted to the nursing facility operated by Braintree Nursing, LLC, doing business as Braintree Manor Rehabilitation and Nursing Center (Braintree Nursing), in September, 2007. On August 6, 2008, Barbara, in her […]
Licata v. GGNSC Malden Dexter LLC (Lawyers Weekly No. 10-010-14)
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 SJC‑11336 SALVATORE LICATA, JR., administrator,[1] vs. GGNSC MALDEN DEXTER LLC. Suffolk. September 4, 2013. ‑ January 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Arbitration. Health Care Proxy. Nursing Home. Agency, Scope of authority or employment, What constitutes, Ratification. Consent. Incompetent Person, Consent to medical treatment. Contract, Arbitration, Parties, Validity, Third party beneficiary. Estoppel. Civil action commenced in the Superior Court Department on August 1, 2011. A motion to dismiss the complaint and to compel arbitration was heard by Paul E. Troy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph M. Desmond (Thomas T. Worboys with him) for the defendant. Michael R. Rezendes (Patricia J. Rezendes with him) for the plaintiff. Kelly Bagby, of the District of Columbia, & Rebecca J. Benson & Debra Silberstein, for National Academy of Elder Law Attorneys (Massachusetts Chapter) & another, amici curiae, submitted a brief. DUFFLY, J. The plaintiff, Salvatore Licata, Jr., commenced this wrongful death action in the Superior Court as the administrator of the estate of his deceased mother, Rita Licata.[2] The defendant nursing home operator moved to compel arbitration based on an arbitration agreement that Salvatore signed purportedly on his mother’s behalf. Because we conclude that Salvatore lacked authority to execute an arbitration agreement on Rita’s behalf, and the arbitration agreement does not otherwise bind Rita’s estate, we affirm the Superior Court judge’s denial of the defendant’s motion.[3] Background. On August 19, 2008, the day after Rita was admitted to a medical center for evaluation of increased confusion, she signed a health care proxy designating Salvatore as her health care agent, pursuant to G. L. c. 201D, § 5, in the event of her incapacity to make health care decisions. Three days later, on August 22, 2008, Rita was discharged from the medical center and transferred to a nursing facility operated by the defendant GGNSC Malden Dexter LLC (GGNSC). Rita’s attending physician at the medical center authored a transfer report containing a three-page summary of Rita’s condition upon entering and exiting the medical center and the treatment Rita received while a patient there. Upon her arrival at the nursing facility, Rita was taken to her room. The nursing facility’s admissions director meanwhile brought Salvatore to […]
Silva v. Silva (Lawyers Weekly No. 10-005-14)
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 SJC‑11560 ROBERT SILVA vs. HEATHER SILVA. January 10, 2014. Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Divorce and Separation, Visitation. Robert Silva[1] appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm. In connection with divorce proceedings, Robert filed a complaint for contempt against his wife, Heather Silva, alleging that she disobeyed an order of the Probate and Family Court concerning visitation with the parties’ child. After a hearing, a judge in that court found that Heather was not guilty of contempt and entered judgment accordingly. Robert’s G. L. c. 211, § 3, petition sought relief from that judgment. Robert has filed, in the full court, a motion to reconsider, which appears intended as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule does not apply, as Robert is challenging a final judgment of contempt, not any “interlocutory ruling in the trial court.” (Emphasis added.) S.J.C. Rule 2:21 (1). “Regardless whether rule 2:21 applies, however, ‘[r]elief pursuant to G. L. c. 211, § 3, is not available where the alleged error or abuse can be adequately and effectively remedied through the normal appellate process or through some other available method of review.’” DeFeudis v. DeFeudis, 449 Mass. 1030, 1031 (2007), quoting Hines v. Superior Court, 423 Mass. 1005, cert. denied, 519 U.S. 984 (1996). It is clear on the record before us that Robert had an adequate remedy in the ordinary appellate process, as he could have taken a direct appeal from the judgment on his complaint for contempt. See, e.g., Freudis v. Hartwell, 80 Mass. App. Ct. 496, 501 (2011) (appeal from judgment that former spouse not guilty of contempt); Ainslie v. Ainslie, 6 Mass. App. Ct. 692, 693 (1978) (immediate appeal, during pendency of divorce proceedings, from judgment of contempt). The fact that Robert claims that he is being prevented from visiting with his child does not mean that the Appeals Court could not resolve the matter fairly and expeditiously. Accordingly, he was not entitled to extraordinary relief. Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Robert Silva, pro se. [1] […]
Commonwealth v. Berry (Lawyers Weekly No. 10-004-14)
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 SJC‑11190 COMMONWEALTH vs. SHEILA BERRY. Plymouth. September 10, 2013. ‑ January 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Mental Impairment. Evidence, Expert. Practice, Criminal, Witness, Capital case. Witness, Psychologist, Expert. Intoxication. Indictment found and returned in the Superior Court Department on January 24, 2003. Following review by this court, 457 Mass. 602 (2010), the case was tried before Linda E. Giles, J. Kevin S. Nixon for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. In March of 2006, a jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty.[1] See Commonwealth v. Berry, 457 Mass. 602 (2010). This court reversed the defendant’s conviction because of an error in the jury instructions on lack of criminal responsibility, and we remanded the case for a new trial. Id. at 615-618. The defendant was tried again in October, 2011, and again was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. Before us is the defendant’s appeal from that conviction. The defendant argues that the trial judge erred in refusing to strike an expert’s testimony that the defendant was criminally responsible; she argues also that in the circumstances of this case, pursuant to G. L. c. 278, § 33E, we should reduce the degree of guilt or order a new trial. For the reasons set forth below, in the exercise of our responsibility under § 33E, we conclude that the interests of justice require a reduction of the degree of guilt to murder in the second degree. Background. The evidence presented in the defendant’s second trial was substantially similar to the evidence in the first, and it is summarized in Commonwealth v. Berry, 457 Mass. at 603-605. A major focus of both trials was on the defendant’s mental state at the time of the crime; her defense was lack of criminal responsibility. We summarize here the basic outline of the events leading up to and including the death of the victim, and reserve additional facts for later discussion in connection with our consideration of the entire case under § 33E. 1. The homicide. On the night of August 14, 2002, after having dinner with a friend during which she drank two or […]
Commonwealth v. Denehy (Lawyers Weekly No. 10-002-14)
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 SJC‑11296 COMMONWEALTH vs. EDWARD J. DENEHY. Hampden. September 3, 2013. ‑ January 8, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Recording of proceedings, Waiver, Assistance of counsel, Speedy trial, Restitution. Constitutional Law, Assistance of counsel, Speedy trial. Restitution. Complaint received and sworn to in the Springfield Division of the District Court Department on August 21, 2008. A pretrial motion to dismiss was heard by Jacques C. Leroy, J., and the case was tried before Nancy Dusek-Gomez, J. The Supreme Judicial Court granted an application for direct appellate review. Merritt Schnipper for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth. Martha Coakley, Attorney General, & Randall E. Ravitz, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief. CORDY, J. The defendant, Edward J. Denehy, was convicted of disorderly conduct in violation of G. L. c. 272, § 53, and assault by means of a dangerous weapon in violation of G. L. c. 265, § 15B, on May 10, 2011, nearly three years after his initial arraignment on August 21, 2008. On appeal, he makes two primary arguments. First, he contends that he was not afforded a speedy trial under Mass. R. Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996), and therefore he is entitled to dismissal of the charges against him with prejudice. Second, he avers that the trial judge’s order of restitution to compensate a police officer whose glasses were damaged during his interaction with the defendant was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny, which require certain factual findings relevant to sentencing to be made by a jury. Further, he contends that, where he was acquitted of assault and battery on a police officer, the restitution award did not have a sufficient nexus to the crimes for which he was convicted. We granted the defendant’s application for direct appellate review to clarify ambiguities regarding the Mass. R. Crim. P. 36 calculus and restitution orders. We conclude that the defendant was denied a speedy trial, and any failures by his trial counsel to perfect that claim constituted the ineffective assistance of counsel. Although we resolve this matter on those grounds, we further conclude that the trial judge’s determination of a restitution award did […]