Bellermann, et al. v. Fitchburg Gas and Electric Light Company (Lawyers Weekly No. 10-110-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11979 MARCIA D. BELLERMANN & others[1] vs. FITCHBURG GAS AND ELECTRIC LIGHT COMPANY. Worcester. March 10, 2016. – July 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Electric Company. Public Utilities, Electric company. Practice, Civil, Class action, Consumer protection case. Consumer Protection Act, Class action, Unfair or deceptive act. Civil action commenced in the Superior Court Department on January 7, 2009. Following review by this court, 470 Mass. 43 (2014), a renewed motion for class certification was heard by Richard T. Tucker, J., and a decision allowing class certification was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Gavin J. Rooney, of New Jersey (Anne W. Chisholm & Eric R. Passeggio with him) for the defendant. Deborah Phillips (Barry M. Altman & Edwin H. Howard with her) for the plaintiffs. Robin L. Main, for Massachusetts Electric Company & others, amici curiae, submitted a brief. DUFFLY, J. In Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43 (2014) (Bellermann I), we affirmed a Superior Court judge’s denial of a motion for class certification of residential and business customers of the defendant, Fitchburg Gas and Electric Light Company (FG&E).[3] In that case, the plaintiffs, who lost electric power during a major winter ice storm in 2008 that struck significant portions of the northeast (Winter Storm 2008), sought class certification under G. L. c. 93A, §§ 9 (2) and 11, for themselves and other users of electricity who were injured by FG&E’s assertedly inadequate preparation for and response to Winter Storm 2008. See Bellermann I, supra at 44-46. The plaintiffs’ efforts to obtain class certification in that case were premised on FG&E’s asserted failure properly to prepare and plan for Winter Storm 2008, which prolonged the power outages the plaintiffs experienced, and on FG&E’s deceptive communications made before and during the storm that resulted in the plaintiffs’ inability to plan for the extended outages.[4] See id. at 45, 54. We concluded that there was no abuse of discretion in the judge’s determination that the record did not support class certification on these theories, because the asserted injuries suffered by class members were too dissimilar. See id. at 53-57. We also observed, however, that the plaintiffs had proposed […]
Commonwealth v. Philbrook (Lawyers Weekly No. 10-109-16)
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-11615 COMMONWEALTH vs. GEORGE PHILBROOK. Middlesex. December 11, 2015. – July 28, 2016. Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Homicide. Evidence, Prior violent conduct, State of mind, Intent. Practice, Criminal, Capital case, Argument by prosecutor, Mistrial, Jury and jurors, Conduct of juror. Jury and Jurors. Indictments found and returned in the Superior Court Department on September 27, 2007. The cases were tried before Kathe M. Tuttman, J. Elizabeth Caddick for the defendant. Bethany Stevens, Assistant District Attorney, for the Commonwealth. DUFFLY, J. The defendant was convicted of murder in the first degree on a theory of deliberate premeditation in the shooting death of his former wife, Dorothy Philbrook.[2] The defendant and his former wife were divorced in 1975, but had been living together for many years when, on August 17, 2007, the defendant shot her five times on the street in front of their house in Everett, in view of some of their neighbors. The defendant does not dispute that he was the shooter. His defense at trial was that he was not criminally responsible because the prescription medications that he was taking exacerbated an underlying brain disease, creating a mental disease or defect that caused him to be unable to conform his actions to the law.[3] On appeal, the defendant contends that the judge abused her discretion in allowing the admission of evidence of prior bad acts shortly prior to and immediately following the killing. The defendant also claims that the judge erred in denying his motion for a mistrial after learning that three jurors had discussed the case before deliberations began. Finally, while conceding that the evidence was sufficient to support his conviction of murder in the first degree, the defendant argues that a reduction in the verdict would be more consonant with justice, and asks that we exercise our power pursuant to G. L. c. 278, § 33E, to reduce the verdict of murder in the first degree to a lesser degree of guilt. We affirm the convictions, and discern no reason to exercise our power under G. L. c. 278, § 33E. Background. a. Commonwealth’s case. We summarize the facts the jury could have found. The defendant and the victim, who had divorced in 1975, renewed their relationship in 1980. They did […]
Commonwealth v. Abdallah (Lawyers Weekly No. 10-108-16)
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-12001 COMMONWEALTH vs. JARED ABDALLAH. Bristol. February 11, 2016. – July 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Constitutional Law, Search and seizure. Search and Seizure, Inventory. Indictments found and returned in the Superior Court Department on June 19 and 20, 2013, and March 6, 2014. A pretrial motion to suppress evidence was heard by Raymond P. Veary, Jr., J. An application for leave to prosecute an interlocutory appeal was allowed by Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. Michael J. Fellows for the defendant. DUFFLY, J. After causing a disturbance, the defendant was arrested outside his hotel room in the town of Raynham on an outstanding warrant for larceny of $ 250 or less. Raynham police took possession of a small backpack (a cloth drawstring bag with shoulder straps made of rope) that the defendant had been carrying on his person and transported the bag, along with the defendant, to the police station, where it was searched pursuant to the Raynham police department’s inventory policy. The search of the bag uncovered several thousand dollars in cash, glassine bags containing what appeared to be cocaine, and several hundred Percocet pills. The defendant was indicted on charges of trafficking in a class B substance (cocaine), G. L. c. 94C, § 32E (b) (1); trafficking in a class B substance (Percocet), G. L. c. 94C, § 32E (c) (2); and possession with the intent to distribute a Class B substance (Percocet), G. L. c. 94C, § 32A (a).[2] Following an evidentiary hearing, the defendant’s motion to suppress the items found during the search was allowed by a Superior Court judge. A single justice of this court granted the Commonwealth’s application for interlocutory appeal and reported the matter to the Appeals Court. We transferred the case to this court on our own motion. We conclude that, in the circumstances presented here, there was no error in the allowance of the defendant’s motion to suppress. Accordingly, we affirm the allowance of the motion, although for reasons that differ somewhat from those relied upon by the motion judge. […]
Weiss v. City of Cambridge (Lawyers Weekly No. 11-093-16)
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 15-P-1439 Appeals Court MIKEL WEISS vs. CITY OF CAMBRIDGE. No. 15-P-1439. Middlesex. May 12, 2016. – July 28, 2016. Present: Rubin, Milkey, & Neyman, JJ. Negligence, Motor vehicle, Pedestrian, Contributory, Violation of statute. Statute, Construction. Practice, Civil, Instructions to jury, New trial. Civil action commenced in the Superior Court Department on February 14, 2013. The case was tried before Peter B. Krupp, J., and a motion for a new trial was considered by him. Keplin K. U. Allwaters, Assistant City Solicitor, for the defendant. Christopher C. Mathers for the plaintiff. MILKEY, J. During the evening rush hour of December 7, 2011, Mikel Weiss was walking across 2nd Street in Cambridge, at its intersection with Binney Street. Before she reached the other side, Weiss was struck by a truck that was making a left-hand turn onto 2nd Street from Binney Street. The driver of the truck (driver) was an employee of the city of Cambridge (city), who was completing a ten-plus hour shift.[1] As a result of the accident, Weiss suffered serious long-term injuries to both knees, incurred significant medical bills, and missed several weeks of work. In the personal injury action that Weiss brought against the city in Superior Court, the main disputed issue was the relative degree of fault between pedestrian and driver. Weiss was in a marked crosswalk when she was struck, but there was evidence that she was not obeying the pedestrian signal at the time. The jury found Weiss thirty-five percent at fault, and therefore her damages award was reduced by that percentage.[2] On appeal, the city challenges the instructions the judge gave to the jury regarding the responsibilities that drivers face pursuant to G. L. c. 89, § 11, to yield to pedestrians in marked crosswalks. The city argues that under its plain language, the statute does not apply to the circumstances of this case. We disagree and therefore affirm. Background. The accident. According to undisputed trial testimony, Binney Street is a “major traffic artery” that is four to five lanes wide at its intersection with 2nd Street. For its part, 2nd Street is “more of a side street” that measures only twenty-four feet across. At the intersection, there is both a crosswalk across 2nd Street and a pedestrian signal (commonly known […]
Bowers v. P. Wile’s Inc. (Lawyers Weekly No. 10-107-16)
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-11923 LINDA S. BOWERS vs. P. WILE’S, INC.[1] Middlesex. January 7, 2016. – July 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Negligence, Retailer. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 24, 2012. The case was heard by Paul D. Wilson, J. on a motion for summary judgment, and a motion to vacate judgment was also heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph T. Black for the defendant. David McCormack for the plaintiff. The following submitted briefs for amici curiae: William P. Mekrut for Massachusetts Defense Lawyers’ Association. Carol A. Kelly for Property Casualty Insurers Association of America. Annette Gonthier Kiely, Michael C. Najjar, Tomas R. Murphy, & Elizabeth N. Mulvey for Massachusetts Academy of Trial Attorneys. DUFFLY, J. In this case we are called upon to determine whether the “mode of operation” approach to premises liability, see Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 683 (2015) (Sarkisian), and Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788 (2007) (Sheehan), is applicable with respect to the operation of a garden store. The plaintiff, Linda Bowers, suffered a displaced fracture of her right hip after she slipped and fell on a walkway leading into a Cape Cod garden store owned by the defendant, P. Wile’s, Inc., doing business as Agway of Cape Cod (Agway). Agway maintains what the parties refer to as a “gravel area” near the concrete walkway leading into the store, where landscaping items are displayed for sale. Customers may enter the gravel area, which consists of small stones less than one inch in diameter,[3] and shop for products displayed there without assistance from any Agway employee. After she fell on Agway’s premises, Bowers filed a complaint in the Superior Court asserting that she tripped on a stone that had migrated from the gravel area to the walkway, and that Agway knew that the movement of the stones from the gravel area created a risk of tripping on the walkway, but failed to take reasonable steps to mitigate that risk. Agway moved for summary judgment, arguing that, under the traditional theory of premises liability, where […]
Martinez v. Commonwealth (Lawyers Weekly No. 10-106-16)
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-12071 JONATHAN MARTINEZ vs. COMMONWEALTH. July 26, 2016. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Discovery, Subpoena. Jonathan Martinez appeals from a judgment of a single justice in the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. Martinez stands indicted for several drug offenses. Pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), he moved for issuance of a subpoena, seeking certain statistical data maintained or controlled by the registry of motor vehicles, which he claimed would be relevant to support his claim that he was subjected to selective enforcement and racial profiling.[1] A judge in the Superior Court denied the motion. Martinez’s G. L. c. 211, § 3, petition followed. We affirm the judgment. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Martinez to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Martinez has not done so. If Martinez is convicted of any offense, he will have the opportunity to raise his issues in the ordinary appellate process.[2] Discovery matters such as this are routinely addressed on direct appeal. See Deming v. Commonwealth, 438 Mass. 1007, 1007 (2002), citing Carr v. Howard, 426 Mass. 514, 517 n.3 (1998) (discovery disputes generally not appropriate for review under G. L. c. 211, § 3). The single justice neither erred nor abused his discretion by denying extraordinary relief. In addition, Martinez has not filed a memorandum pursuant to rule 2:21, but has filed only what appears to be a copy of the petition he filed in the county court. This does not comply with the rule. S.J.C. Rule 2:21 (2) (“The record appendix shall be accompanied by eight copies of a memorandum . . . in which the appellant must set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal . . . or by other available means” [emphasis added]). “The purpose of this requirement is to focus the court’s and counsel’s attention on the narrow question whether, regardless of the merits of the substantive claim of error, the petitioner has an adequate remedy apart […]
Great Woods, Inc., et al. v. Clemmey (Lawyers Weekly No. 11-092-16)
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 15-P-657 Appeals Court GREAT WOODS, INC., & another[1] vs. KARL D. CLEMMEY. No. 15-P-657. Middlesex. January 15, 2016. – July 26, 2016. Present: Green, Wolohojian, & Henry, JJ. Injunction. Judgment, Relief from judgment, Consent judgment. Practice, Civil, Relief from judgment, Judicial discretion. Civil action commenced in the Superior Court Department on November 21, 1994. After review by this court, 86 Mass. App. Ct. 1115 (2014), a motion for clarification or for modification or dissolution of a permanent injunction was heard by Kathe M. Tuttman, J. Nicholas P. Shapiro (Robert K. Hopkins with him) for the defendant. Jeffrey S. King for the intervener. WOLOHOJIAN, J. After a series of disruptive and threatening incidents, Great Woods, Inc. (Great Woods), brought suit to enjoin Karl Clemmey from entering its property, a large entertainment venue in Mansfield. The suit was resolved when, in 1996, Clemmey agreed to the entry of a permanent injunction that provided: “Clemmey, whether acting personally or through any other person acting under his direction or control, is hereby strictly and permanently ORDERED to desist and refrain (1) from entering upon or crossing over the property in Mansfield, Massachusetts, under the control of Great Woods, Inc. (owned by Time Trust, or Sherman Wolfe,) for any reason whatsoever without the express written consent of Great Woods, Inc. and (2) from accosting, harassing, intimidating or threatening any owner, manager, employee or agent of Great Woods, Inc.” Seventeen years later, in 2013, Clemmey moved to “clarify” that Great Woods’s successor in interest, Live Nation Worldwide, Inc. (Live Nation), had no right to enforce the permanent injunction. In the alternative, Clemmey moved, pursuant to Mass.R.Civ.P. 60(b)(5), 365 Mass. 828 (1974), to modify or dissolve the injunction based on changed circumstances.[2] A judge of the Superior Court (who was not the judge who entered the original injunction) denied Clemmey’s motion and modified the injunction to, in essence, substitute Live Nation for Great Woods. Clemmey appealed, and in an unpublished memorandum and order issued pursuant to our rule 1:28, we vacated the modification order and remanded for findings of fact on the ground that the modification was essentially a new injunction requiring explicit findings. Great Woods, Inc. v. Clemmey, 86 Mass. App. Ct. 1115 (2014). On remand, the judge made findings […]
Commonwealth v. Castillo (Lawyers Weekly No. 11-091-16)
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 15-P-289 Appeals Court COMMONWEALTH vs. DOMINGO CASTILLO. No. 15-P-289. Suffolk. January 20, 2016. – July 25, 2016. Present: Trainor, Agnes, & Massing, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Findings by judge, Interlocutory appeal. Probable Cause. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on July 25, 2013. A pretrial motion to suppress evidence was heard by Debra Shopteese, J. An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by her to the Appeals Court. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Bradford R. Stanton for the defendant. TRAINOR, J. The Commonwealth appeals from the allowance of a motion to suppress evidence in the Roxbury Division of the Boston Municipal Court. The Commonwealth argues that three of the judge’s factual findings are clearly erroneous because they were not supported by the evidence presented at the suppression hearing. The Commonwealth also argues that the judge erred in allowing the motion to suppress because the police officer had probable cause to believe that the defendant had sold heroin to another individual. We vacate and remand. Background. “We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the judge.” Commonwealth v. Oliveira, 474 Mass. 10, 11 (2016).[1] Officer Shawn Grant[2] testified that on the afternoon of July 24, 2013, he saw two individuals, later identified as Cesar Caban and James Niemczyk, on Washington Street in the Roxbury section of Boston walking back and forth while talking on cellular telephones (cell phones). Officer Grant alerted other officers in the area of the behavior and parked his unmarked police vehicle on the same side of Washington Street as the two individuals. After about fifteen minutes, Officer Grant saw the defendant cross Washington Street walking toward Caban and Niemczyk, who were now standing near a tree, and place an item into a residential mailbox[3] not more than twenty-five feet from the tree. The defendant then walked to the tree and took money which Caban had wedged into the branches. Caban then walked to and reached […]
Commonwealth v. Resende (Lawyers Weekly No. 10-105-16)
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-11981 COMMONWEALTH vs. ADMILSON RESENDE. Plymouth. April 4, 2016. – July 25, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea, Disclosure of evidence, Presumption. Practice, Criminal, Plea, New trial, Conduct of government agents, Disclosure of evidence, Presumptions and burden of proof. Evidence, Guilty plea, Certificate of drug analysis, Presumptions, Disclosure of evidence. Indictments found and returned in the Superior Court Department on November 9, 2006. A motion to withdraw a guilty plea, filed on October 2, 2012, and supplemented on March 20, 2014, was heard by Paul A. Chernoff, J., special judicial magistrate, and an order affirming the proposed order of the special judicial magistrate was entered by Frank M. Gaziano, J. The Supreme Judicial Court granted an application for direct appellate review. Patrick Levin, Committee for Public Counsel Services, for the defendant. Laurie Yeshulas, Assistant District Attorney (Lisa J. Jacobs, Assistant District Attorney, with her) for the Commonwealth. SPINA, J. The present case is the most recent in a series of cases concerning the egregious misconduct of Annie Dookhan, a chemist who was employed in the forensic drug laboratory of the William A. Hinton State Laboratory Institute (Hinton drug lab) from 2003 until 2012. On January 23, 2007, the defendant, Admilson Resende, pleaded guilty on indictments charging distribution of a class B controlled substance (cocaine), G. L. c. 94C, § 32A (c) (five counts); violation of the controlled substances laws in proximity to a school or park, G. L. c. 94C, § 32J (three counts); and possession of a class B controlled substance (cocaine) with intent to distribute, G. L. c. 94C, § 32A (c) (one count).[1] He completed service of his sentences.[2] On October 2, 2012, the defendant filed in the Superior Court a motion to withdraw his guilty pleas pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), based on Dookhan’s malfeasance. Prior to the issuance of a ruling on the defendant’s motion, this court decided Commonwealth v. Scott, 467 Mass. 336 (2014), in which we articulated, in reliance on Ferrara v. United States, 456 F.3d 278, 290-297 (1st Cir. 2006), a two-prong framework for analyzing a defendant’s motion […]
Commonwealth v. St. George (Lawyers Weekly No. 11-090-16)
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 15-P-948 Appeals Court COMMONWEALTH vs. BRADLEY J. ST. GEORGE. No. 15-P-948. Norfolk. April 14, 2016. – July 22, 2016. Present: Green, Trainor, & Milkey, JJ. Controlled Substances. Constitutional Law, Investigatory stop, Reasonable suspicion. Threshold Police Inquiry. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Practice, Criminal, Assistance of counsel, Plea. Complaint received and sworn to in the Quincy Division of the District Court Department on May 17, 2010. A pretrial motion to suppress evidence was heard by Kevin J. O’Dea, J.; the case was tried before Robert P. Ziemian, J., and a motion for postconviction relief, filed on March 26, 2014, was heard by him. Dana Alan Curhan for the defendant. Susanne M. O’Neil, Assistant District Attorney, for the Commonwealth. TRAINOR, J. The defendant, Bradley J. St. George, appeals his convictions of distribution of a class D substance, see G. L. c. 94C, § 32C, and violating the drug laws near a school zone or park, see G. L. c. 94C, § 32J. The defendant contends that the judgments should be reversed for three reasons. First, the defendant argues that his motion to suppress should have been allowed. Second, the defendant maintains that the evidence was insufficient to support his convictions. Third, the defendant claims that the trial judge erred in denying his motion for new trial because his trial counsel deprived him of effective assistance of counsel. We affirm. Background. The defendant challenges the motion judge’s decision on his motion to suppress, as well as the sufficiency of evidence at trial. We will, therefore, first summarize the evidence presented at the hearing on the motion to suppress. We will then summarize the additional evidence presented at trial. On May 14, 2010, at approximately 7:45 P.M., Quincy police Detectives William O’Brien and Dennis Keenan were working in the drug control unit. Detective O’Brien noticed a man, later identified as Robert Fitzmorris, standing in front of an apartment building. He talked on his cellular telephone, then sat in front of the building and appeared to be waiting. Detective O’Brien placed him under surveillance and contacted Detective Keenan for assistance. Less than one minute later, Detective O’Brien observed a vehicle, driven by the defendant, pick up Fitzmorris. Detective O’Brien followed the defendant as he drove into the parking lot of the St. Mary School […]