Cantell, et al. v. Commissioner of Correction, et al. (Lawyers Weekly No. 10-166-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12015 ROBERT CANTELL & others[1] vs. COMMISSIONER OF CORRECTION & others.[2] Suffolk. March 10, 2016. – October 21, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[3] Commissioner of Correction. Administrative Law, Regulations. Imprisonment, Segregated confinement. Due Process of Law, Prison classification proceedings, Prison regulation. Moot Question. Practice, Civil, Moot case, Dismissal of appeal, Class action. Civil action commenced in the Superior Court Department on January 20, 2012. Motions to dismiss and for class certification were heard by Elizabeth M. Fahey, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Bonita Tenneriello for the plaintiffs. Sheryl F. Grant for the defendants. The following submitted briefs for amici curiae: Amy Fettig & Jamelia N. Morgan, of the District of Columbia, Phillip Kassell, Matthew R. Segal, & Jessie J. Rossman for American Civil Liberties Union & others. Ruth A. Bourquin, Deborah Harris, Margaret E. Monsell, & Jamie A. Sabino for Massachusetts Law Reform Institute & others. Adam Sanders, pro se. BOTSFORD, J. The named plaintiffs in this putative class action are inmates serving criminal sentences in various Massachusetts prison facilities. For varying lengths of time, each of them has been placed in a “special management unit” (SMU) in nondisciplinary administrative segregation. In January, 2012, the plaintiffs commenced this action against the Commissioner of Correction (commissioner) and the superintendents of the correctional institutions in which the plaintiffs were housed (collectively, defendants). The plaintiffs allege that their placements in the SMUs, essentially in conditions of solitary confinement, violate their State and Federal constitutional rights to due process as well as regulations of the Department of Correction (department), and they seek to represent a class of similarly situated prisoners confined in SMUs. In early 2013, following the release of this court’s decision in LaChance v. Commissioner of Correction, 463 Mass. 767 (2012) (LaChance I), a judge in the Superior Court denied the plaintiffs’ motion for class certification and allowed the defendants’ motion to dismiss the plaintiffs’ amended complaint. The plaintiffs appealed to the Appeals Court.[4] A divided panel of that court dismissed the appeal as moot because by then it was undisputed that no named plaintiffs remained in SMUs. Cantell v. Commissioner of Correction, 87 Mass. App. Ct. 629 […]
Categories: News Tags: 1016616, Cantell, Commissioner, Correction, Lawyers, Weekly
Brown, et al. v. Kalicki, et al. (Lawyers Weekly No. 11-153-16)
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-923 Appeals Court PETER R. BROWN, trustee,[1] & others[2] vs. JAN H. KALICKI & another.[3] No. 15-P-923. Suffolk. June 13, 2016. – October 20, 2016. Present: Cohen, Milkey, & Massing, JJ. Real Property, Registered land, Littoral property, Certificate of title, Easement. Land Court, Registration proceedings. Adverse Possession and Prescription. Civil actions commenced in the Land Court Department on September 29, 2011. The cases were heard by Alexander H. Sands, III, J., on a motion for summary judgment. Diane C. Tillotson for the defendants. Brian M. Hurley for the plaintiffs. COHEN, J. The plaintiffs are the respective owners of three parcels of registered land located at 3, 7, and 11 Davis Lane, a private way in the town of Harwich (town). These parcels extend in a more or less southerly direction from Davis Lane to the shoreline of Nantucket Sound. Over time, the shoreline has changed, and the parcels have accreted[4] significant portions of formerly submerged land. On September 29, 2011, the parcel owners filed supplemental petitions in the Land Court, seeking to amend their certificates of title. Jan H. Kalicki and John Michael Hershey (interveners) moved to intervene as defendants, alleging that they had acquired prescriptive rights over the accreted land. Upon informal consolidation of the cases for decision on the plaintiffs’ motions for summary judgment, the motion judge rejected the objections of the interveners and granted summary judgment to the plaintiffs. The question for the judge was whether the accreted beachfront took on the status of registered land as it formed, or whether registered status could be obtained only through court proceedings to amend the certificates of title. The judge ruled that the accreted beachfront automatically became registered, and, therefore, was protected from the interveners’ claims that they have a prescriptive easement to use the beach area on the plaintiffs’ land. Applying well-established standards of review,[5] we affirm. Background. The material facts are not in dispute. The land comprising the plaintiffs’ parcels was registered in the 1920’s and 1930’s.[6] Under the terms of each certificate of title, “[a]ll of said boundaries, except the water lines, are determined by the Court to be located as shown on” the associated Land Court plan. Each of the registration plans shows and identifies the southern boundary of the subject […]
Commonwealth v. White (Lawyers Weekly No. 10-165-16)
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-11919 COMMONWEALTH vs. ROBERT E. WHITE. Plymouth. February 9, 2016. – October 19, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Rape. Limitations, Statute of. Evidence, Indictment, Corroborative evidence, Prior misconduct. Practice, Criminal, Indictment, Instructions to jury. Indictment found and returned in the Superior Court Department on October 3, 2008. The case was tried before Richard J. Chin, J. The Supreme Judicial Court granted an application for direct appellate review. Kathryn Hayne Barnwell for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. LENK, J. The defendant was convicted in 2014 of one count of rape of a child, G. L. c. 265, § 23. The underlying indictment, returned in 2008 and amended in 2014, alleged that he had raped his daughter on “diverse dates” between September 29, 1979, and 1981, when she was between four and six years old. On appeal, the defendant chiefly raises two sets of claims, both of which concern the statute of limitations, G. L. c. 277, § 63. First, he argues that the Commonwealth did not meet its burden at trial of proving beyond a reasonable doubt that the indictment was timely brought, and, in addition, that the trial judge incorrectly instructed the jury as to that issue. Second, he maintains that, even if the indictment were timely brought, the Commonwealth failed to provide the requisite independent corroboration of any incidents of rape that occurred more than twenty-seven years before the indictment was returned. See G. L. c. 277, § 63. He maintains, in this regard, that the corroboration provided by the Commonwealth at trial — consisting exclusively of evidence of uncharged sexual misconduct — was insufficient. He argues also that the judge failed to instruct the jury as to the corroboration requirement. We conclude, with respect to the first set of issues, that the Commonwealth presented sufficient evidence from which the jury could determine, beyond a reasonable doubt, that the indictment was timely returned. We also conclude, however, that the jury instruction concerning how to make this determination was incorrect, that the erroneous instruction precluded the jury from properly ascertaining whether the indictment was timely, and that the incorrect instruction resulted in a substantial risk of a miscarriage of justice. Accordingly, on this basis alone, the defendant’s conviction must be vacated and set […]
Fehrm-Cappuccino v. Cappuccino (Lawyers Weekly No. 11-152-16)
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-484 Appeals Court CAROLYN FEHRM-CAPPUCCINO vs. GARY J. CAPPUCCINO. No. 15-P-484. Norfolk. April 11, 2016. – October 18, 2016. Present: Cypher, Agnes, & Massing, JJ. Divorce and Separation, Modification of judgment, Child support. Parent and Child, Child support. Contempt. Practice, Civil, Contempt. Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on July 14, 2008. A complaint for modification, filed on January 12, 2012, and a complaint for contempt, filed on November 20, 2013, were heard by George F. Phelan, J. Karen W. Stuntz for the mother. Jonathan E. Fields for the father. CYPHER, J. In this appeal from a “judgment on complaint for modification and complaint for contempt” entered by a judge of the Probate and Family Court on February 21, 2014, Carolyn Fehrm-Cappuccino (mother), the former wife of Gary J. Cappuccino (father), challenges the downward modification of child support and the lack of a contempt finding against the father. We address the mother’s arguments in turn. Modification. The parties were divorced on January 4, 2010, pursuant to a judgment of divorce that incorporated their separation agreement. Pursuant to the separation agreement, the mother received primary physical custody of the parties’ four children and the father was required to pay weekly child support of $ 577. The first two years of the father’s child support payments were deemed “prepaid” in exchange for the mother’s receipt of the marital home, with the father’s weekly child support payments scheduled to “resume” in January, 2012. On January 12, 2012, the father filed a complaint for modification of his child support obligation. On February 21, 2014, a judge of the Probate and Family Court entered a judgment reducing the father’s weekly child support obligation to $ 371, retroactive to January 24, 2012. On appeal, the mother challenges the reduced child support amount, asserting that it was the result of several errors made by the judge when determining the parties’ respective incomes.[1] Exclusion of the father’s rental income. The mother first contends that the judge improperly excluded the father’s rental income from Canton Lanes Limited Partnership (Canton Lanes) of approximately $ 507 per week when calculating child support.[2] The Child Support Guidelines (guidelines) “have presumptive application to actions to modify existing [child support] orders.” […]
Categories: News Tags: 1115216, Cappuccino, FehrmCappuccino, Lawyers, Weekly
Commonwealth v. Williams (Lawyers Weekly No. 10-164-16)
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-11656 COMMONWEALTH vs. DEMERY WILLIAMS. Hampden. November 6, 2015. – October 17, 2016. Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.[1] Homicide. Robbery. Assault and Battery by Means of a Dangerous Weapon. Joint Enterprise. Felony-Murder Rule. Evidence, Joint venturer, Wiretap, Admissions and confessions, Expert opinion. Electronic Surveillance. Constitutional Law, Speedy trial, Confrontation of witnesses. Witness, Expert, Unavailability. Cellular Telephone. Deoxyribonucleic Acid. Search and Seizure, Warrant. Practice, Criminal, Capital case, Speedy trial, Admissions and confessions, Confrontation of witnesses, Instructions to jury, Assistance of counsel, Loss of evidence by prosecution. Indictments found and returned in the Superior Court Department on September 26, 2011. The cases were tried before John J. Agostini, J. Kathleen M. McCarthy for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. LENK, J. The defendant was convicted as a joint venturer of murder in the first degree, armed robbery, and assault and battery by means of a dangerous weapon in connection with the death of William Jones in January, 2010. On direct appeal from that conviction, he argues that his motions for required findings of not guilty should have been granted, and that his case should have been dismissed on speedy trial grounds. In addition, he argues that certain evidence, including his statements to police, should not have been admitted at trial. The defendant also seeks relief under G. L. c. 278, § 33E. Having reviewed the entire record, we affirm the convictions and discern no reason to exercise our authority to grant extraordinary relief. Factual background. We recite the facts the jury could have found, reserving certain details for later discussion. At approximately 8 A.M. on January 22, 2010, the defendant, an employee at a tomato processing plant in Hartford, Connecticut, told his supervisor that he needed to leave work in order to conduct a drug deal. The supervisor gave him permission to leave, and the defendant was picked up by Jones in a white Saturn sport utility vehicle (SUV). The pair drove to a house on Florida Street in Springfield, where Jones, a drug dealer, had been led to believe that he would buy drugs from Curtis Combs, an acquaintance of the defendant. The defendant, however, knew that Jones was going to be robbed. He went into the house to introduce Jones […]
Commonwealth v. Laltaprasad (Lawyers Weekly No. 10-163-16)
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-11970 COMMONWEALTH vs. IMRAN LALTAPRASAD. Suffolk. April 5, 2016. – October 14, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Massachusetts Sentencing Commission. Practice, Criminal, Sentence, Judicial discretion. Supreme Judicial Court, Superintendence of inferior courts. Controlled Substances. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on August 20, 2015. The case was reported by Cordy, J. Thomas C. Maxim, Assistant District Attorney, for the Commonwealth. Matthew R. Segal (Keith J. Nicholson, Adriana Lafaille, & Nancy Gertner with him) for the defendant. Benjamin H. Keehn & Paul R. Rudof, Committee for Public Counsel Services, & Barbara J. Dougan, Michael B. Keating, Daniel N. Marx, & Daniel McFadden, for Committee for Public Counsel Services & others, amici curiae, submitted a brief. Emma Quinn-Judge, Monica R. Shah, & Daniel K. Gelb, for The Constitution Project & others, amici curiae, submitted a brief. BOTSFORD, J. In this case we consider whether G. L. c. 211E, § 3 (e), authorizes a sentencing judge to depart from the mandatory minimum terms specified by statute for subsequent drug offenses. We conclude that because the Legislature has not yet enacted into law sentencing guidelines recommended by the Massachusetts Sentencing Commission (commission), a sentencing judge currently may not impose a sentence that departs from the prescribed mandatory minimum term. We do not reach in this case the constitutional claims that the defendant has raised for the first time in this court.[2] Background. In August, 2013, a Middlesex County grand jury indicted the defendant, Imran Laltaprasad, on a charge of possession with intent to distribute heroin, subsequent offense, G. L. c. 94C, § 32 (a), (b); and two charges of possession with intent to distribute cocaine, subsequent offense, G. L. c. 94C, § 32A (c), (d). In July, 2015, a jury found the defendant guilty of possession with intent to distribute heroin, and one count of possession with intent to distribute cocaine; the defendant was found not guilty on the other count of that crime.[3] The defendant pleaded guilty to the subsequent offense portion of each of these charges. See G. L. c. 94C, §§ 32 (b) (heroin), 32A (d) (cocaine). Both counsel presented their sentencing recommendations,[4] and after hearing, the trial judge stated that she would depart downward […]
Categories: News Tags: 1016316, Commonwealth, Laltaprasad, Lawyers, Weekly
Commonwealth v. Nicoleau (Lawyers Weekly No. 11-151-16)
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-1015 Appeals Court COMMONWEALTH vs. JAHLIEL M. NICOLEAU. No. 15-P-1015. Suffolk. May 16, 2016. – October 14, 2016. Present: Agnes, Massing, & Kinder, JJ. Constitutional Law, Search and seizure. Search and Seizure, Inventory. Practice, Criminal, Motion to suppress. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on September 5, 2014. A pretrial motion to suppress evidence was heard by Catherine K. Byrne, J. An application for leave to prosecute an interlocutory appeal was heard by Fernande R.V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Michael A. Lafleur, Assistant District Attorney, for the Commonwealth. John M. Corridan for the defendant. AGNES, J. The question presented in this case is whether it was reasonable for police to seize and inventory the contents of a backpack found in the back seat of a vehicle operated by the defendant, Jahliel M. Nicoleau, upon his arrest. The vehicle was parked in front of his home where he lived with his grandmother, who was present at the scene, and to whom the police gave other personal belongings of the defendant. Based on the reasoning in Commonwealth v. Abdallah, 475 Mass. 47, 52-53 (2016), we conclude that although the police had a right to impound and tow the unregistered, uninsured vehicle that the defendant was operating, there was a practical, available alternative to the seizure of the defendant’s backpack — namely, turning it over to the defendant’s grandmother — which would have precluded the police from seizing it and subjecting it to an inventory search. Accordingly, we affirm the order allowing the defendant’s motion to suppress a knife that the police found inside the backpack. Background. On review of “a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). We recite the facts as found by the motion judge, supplemented with uncontested testimony from the hearing on the motion to suppress. On September 4, 2014, Officer Brian Tracey and his […]
Kalu v. Boston Retirement Board, et al.
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-1148 Appeals Court OBIDIYA KALU vs. BOSTON RETIREMENT BOARD & another.[1] No. 15-P-1148. Norfolk. May 4, 2016. – October 14, 2016. Present: Katzmann, Carhart, & Sullivan, JJ.[2] Contributory Retirement Appeal Board. Public Employment, Accidental disability retirement, Retirement. Retirement. Practice, Civil, Appeal. Administrative Law, Decision, Judicial review, Official notice, Substantial evidence. Civil action commenced in the Superior Court Department on July 21, 2014. The case was heard by Peter B. Krupp, J., on motions for judgment on the pleadings. Charles E. Berg for the plaintiff. Elizabeth Kaplan, Assistant Attorney General, for Contributory Retirement Appeal Board. Edward H. McKenna for Boston Retirement Board. SULLIVAN, J. The plaintiff, Obidiya Kalu, appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB). CRAB had determined that while Kalu’s appeal from the denial of accidental disability retirement benefits by the Boston Retirement Board (BRB) was timely, she was not entitled to those benefits.[3] We conclude that the appeal was timely, but we vacate the judgment affirming the denial of benefits and remand the case for further proceedings. Timeliness of appeal from retirement board decision. The first issue presented is whether the fifteen-day appeal period from an adverse decision of a retirement board set forth in G. L. c. 32, § 16(4), begins to run when a represented applicant receives proper notice of the retirement board’s decision, or when an applicant’s legal counsel receives such notice. We defer to CRAB’s reasonable interpretation of its enabling statute and conclude that the appeal period begins to run when notice is received by the applicant’s counsel. After a hearing, an administrative magistrate of the Division of Administrative Law Appeals (DALA) made factual findings on the issue of when notice was received, and by whom, all of which were adopted by CRAB. “We accept the facts found by CRAB when there is substantial evidence to support them, and also accept the reasonable inferences CRAB draws from the facts.” Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. 434, 438 (2010) (citation omitted). We summarize the pertinent findings, all of which were supported by substantial evidence. Attorney James Ellis filed the claim for accidental disability retirement benefits on Kalu’s behalf on December 30, 2006. In October, 2008, the BRB held a hearing on Kalu’s […]
Categories: News Tags: Board, boston, Kalu, Retirement
Commonwealth v. Ferreira (Lawyers Weekly No. 11-149-16)
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-13 Appeals Court COMMONWEALTH vs. MICHAEL FERREIRA. No. 15-P-13. Middlesex. February 2, 2016. – October 14, 2016. Present: Vuono, Grainger, & Massing, JJ. Collateral Estoppel. Practice, Criminal, Collateral estoppel, Dismissal. Perjury. Homicide. Indictment found and returned in the Superior Court Department on May 26, 2011. A motion to dismiss was heard by Richard T. Tucker, J. Robert J. Bender, Assistant District Attorney, for the Commonwealth. Eric R. Wilson for the defendant. VUONO, J. The issue in this case concerns the proper application of the doctrine of collateral estoppel, as embodied in the double jeopardy clause of the Fifth Amendment to the United States Constitution and in Massachusetts statutes and common law. See Ashe v. Swenson, 397 U.S. 436 (1970); Commonwealth v. Benson, 389 Mass. 473 (1983). See also G. L. c. 263, § 7; Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 734 (2012). In 2011, nearly forty-two years after the body of fifteen year old John McCabe was found in a field near the railroad tracks in the city of Lowell, the defendant, Michael Ferreira, and Walter Shelley each were indicted by a grand jury on one count of murder. A third individual, Edward Brown, was indicted on one count of manslaughter.[1] The defendant also was charged with perjury arising from allegedly false testimony he gave on April 16, 2008, before a grand jury investigating the murder, specifically, testimony denying any knowledge of what happened to McCabe.[2] Following a jury trial on the murder indictment at which Brown testified for the Commonwealth pursuant to a cooperation agreement, the defendant was acquitted. In a separate trial, Shelley was convicted of murder in the first degree by extreme atrocity and cruelty. After his acquittal, the defendant moved to dismiss the perjury indictment on the ground of collateral estoppel. He asserted that the not guilty verdict was based on the jury’s rejection of Brown’s testimony and claimed that, because the Commonwealth could not prove the perjury charge without presenting Brown’s testimony, the Commonwealth is estopped from prosecuting the perjury charge. In a thoughtful memorandum of decision and order, a Superior Court judge (motion judge), who was not the trial judge, allowed the motion, from which the Commonwealth now appeals.[3] Because we conclude that the defendant failed to satisfy his […]
Commonwealth v. Burnham (Lawyers Weekly No. 11-148-16)
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-826 Appeals Court COMMONWEALTH vs. CHRISTOPHER J. BURNHAM. No. 15-P-826. Hampshire. April 13, 2016. – October 13, 2016. Present: Wolohojian, Agnes, & Neyman, JJ. Motor Vehicle, Operating under the influence, Citation for violation of motor vehicle law. Practice, Criminal, Citation for violation of motor vehicle laws, Dismissal. Indictment found and returned in the Superior Court Department on May 6, 2014. A motion to dismiss was heard by Mary-Lou Rup, J. Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth. James Petersen for the defendant. NEYMAN, J. The defendant, Christopher J. Burnham, was involved in a single-car accident, and indicted for operating a motor vehicle while under the influence of intoxicating liquor (OUI), subsequent offense. The defendant filed a motion to dismiss the charge, claiming that the citation for OUI was not issued in compliance with G. L. c. 90C, § 2. Following an evidentiary hearing, a Superior Court judge allowed the motion. The sole issue on appeal is whether the issuance of a citation to the defendant, more than four and one-half months after the police officers had concluded their investigation, violated the provisions of G. L. c. 90C, § 2, and mandated dismissal of the indictment. Where the defendant did not have prompt and definite notice of the offense for which he was charged, and the delay in issuing the citation was not justified under any of the exceptions to the statutory requirement to provide the citation at the time and place of the violation, dismissal was warranted. Background. We summarize the judge’s findings.[1] In the early morning of November 24, 2013, Officers Kyle Gribi and Eric Alexander of the Easthampton police department arrived at the scene of a single-car accident. Officer Gribi, trained as an emergency medical technician, observed and attended to the driver (the defendant), who “was unresponsive, but later regained consciousness.” Officer Gribi stabilized the defendant’s cervical spine and maintained his airway. Approximately ten minutes after the officers’ arrival, an ambulance arrived and took the defendant to Baystate Medical Center (Baystate). The officers did not accompany the defendant to the hospital. The judge credited testimony that “neither officer detected any indicia of the defendant being intoxicated during their investigation of the scene.” While at the scene, Officer Alexander learned that the defendant’s license had been suspended, and Officer […]