Commonwealth v. Feliz (Lawyers Weekly No. 12-041-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CRIMINAL ACTION 16-00077 COMMONWEALTH vs. ERVIN FELIZ FINDINGS OF FACT, RULINGS OF LAW, AND ORDER OF DECISION ON DEFENDANT’S OPPOSITION TO GPS MONITORING AS CONDITION OF PROBATION Defendant Ervin Feliz (“Feliz” or the “defendant”) has brought the present motion, by which he seeks to have the Court’s imposition of GPS monitoring as a condition of his probation stricken as an unconstitutional search and seizure under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. For the reasons that follow, the defendant’s motion shall be DENIED. BACKGROUND On April 22, 2016, Feliz pleaded guilty to two counts of possession of child pornography in violation of G.L. c. 272, _ 29C, and five counts of dissemination of child pornography in violation of G.L. c. 272, _ 29B(a). The subject crimes entailed Feliz’s possession and online posting of large amounts of child pornography, in which prepubescent (in some instances toddler-aged) male children were depicted engaged in explicit sex acts with adult males.[1] For the two possession offenses, the Court (Krupp, J.) sentenced Feliz to two concurrent terms of 2 ½ years in the House of Corrections, suspended for five years. For each of the dissemination charges, the Court sentenced Feliz to concurrent five-year terms of probation. Among the conditions of the defendant’s probation, the Court ordered Feliz to have no contact with children under the age of 16, to remain at least 300 feet from schools, parks and day care facilities, and to wear a Global Positioning System (“GPS”) device at all times during the pendency of his probationary term. Mandatory GPS monitoring throughout the course of this convicted sex offender’s probation sentence was in accordance with the express requirements of G.L. c. 265, _ 47 (“Section 47”). Pursuant to the terms of his probationary sentence, Feliz was outfitted with a GPS ankle bracelet and placed under the supervision of the Suffolk County Superior Court Probation Department. In this connection, Feliz signed an Order of Probation Conditions Form, an Electronic Monitoring Program Enrollment Form, and an Equipment Liability Acceptance Form. Feliz now asserts that the imposition of GPS monitoring as a condition of probation, both on its face and as applied to him, violates his right to be free from unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. On February 10, February 17 and February 24, 2017, and in accordance with the dictates of Grady v. North Carolina, 135 S. Ct. 1368, 1370 […]
Perullo v. Advisory Committee on Personnel Standards (Lawyers Weekly No. 10-064-17)
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-12095 RENEE PERULLO vs. ADVISORY COMMITTEE ON PERSONNEL STANDARDS. Suffolk. January 9, 2017. – April 24, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.[1] Public Employment, Removal. Trial Court. District Court. Due Process of Law, Employment, Termination of employment. Civil action commenced in the Superior Court Department on January 12, 2015. The case was heard by Elizabeth M. Fahey, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. John F. Tocci (Cary P. Gianoulis also present) for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for the defendant. BOTSFORD, J. In 2014, the clerk-magistrate of the Salem Division of the District Court Department (Salem District Court) removed the plaintiff, Renee Perullo, from her position as an assistant clerk-magistrate of that court. Perullo’s removal followed a lengthy series of disciplinary reprimands and suspensions for misconduct that included abuse of leave time and other inappropriate behavior. Perullo brought this action in the nature of certiorari in the Superior Court to challenge her removal, and contends that the decision to remove her exceeded the statutory authority of the clerk-magistrate, in any event was arbitrary or capricious, and also violated her constitutional guarantee of due process. In ruling on cross motions for judgment on the pleadings, a Superior Court judge rejected Perullo’s contentions and upheld the removal decision. Given Perullo’s history of misconduct, we agree that it was appropriate for the clerk-magistrate to factor in the whole of Perullo’s disciplinary record in deciding that removal was the appropriate level of discipline. We affirm the judgment of the Superior Court. Background.[2] Perullo began her employment with the Commonwealth’s trial court system in 1989. At the time of her removal in June, 2014, Perullo served as an assistant clerk-magistrate of the Salem District Court. According to § 2.000 of the Massachusetts Trial Court Personnel Policies and Procedures Manual (Jan. 7, 2013) (Manual), an assistant clerk is a “managerial employee.” Perullo maintained a clean disciplinary record until 2006. Thereafter, she was disciplined numerous times by various District Court clerks. As detailed below, Perullo’s disciplinary infractions generally fell into two categories — excessive absenteeism and inappropriate behavior. In February, 2006, Perullo agreed to a ten-day suspension without pay due to […]
Commonwealth v. Garcia (Lawyers Weekly No. 10-062-17)
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-12125 COMMONWEALTH vs. DOUGLAS GARCIA. Essex. December 6, 2016. – April 21, 2017. Present (Sitting at Lawrence): Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Rape. Evidence, Conversation between husband and wife, Impeachment of credibility. Witness, Impeachment. Indictment found and returned in the Superior Court Department on August 4, 2010. The case was tried before Richard E. Welch, III, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. Michelle Menken for the defendant. LOWY, J. A Superior Court jury convicted the defendant of raping his nineteen year old stepdaughter, Sally.[1] The defendant was married to Sally’s mother. At trial, in response to a question that should not have been asked, the mother denied that she told Sally that the defendant had confessed to the crime in a private conversation between the spouses. Then, to impeach the mother, Sally was improperly permitted to testify to the contrary. We reverse because the trial judge’s admission of such highly prejudicial evidence regarding the defendant’s purported confession created a substantial risk of a miscarriage of justice. Background. The Commonwealth introduced the following evidence at trial. We reserve the circumstances of the erroneously admitted testimony for our analysis of the issue. After an argument with her boy friend, Sally spoke with her mother on the telephone and asked to stay at her apartment, where the defendant also lived. Although out of town, her mother told Sally that she could. Sally arrived at the apartment, greeted the defendant briefly, and went to bed in the spare bedroom. Several hours later, Sally was awakened by the feeling of someone’s hand in her vagina. She turned over to see the defendant, naked, lying next to her. Sally realized her pants and underwear were pulled down around her ankles. The defendant stood up, wrapped a towel around himself, and said, “I’m so sorry, . . . it’s all my fault.” He then left the room. Sally dressed, gathered her belongings, and left. At trial, in response to a question by the Commonwealth, the mother denied that she had told Sally that the defendant had confessed to her. Then, to impeach the mother, the Commonwealth […]
Commonwealth v. Baldwin (Lawyers Weekly No. 10-063-17)
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-12188 COMMONWEALTH vs. SHAWN A. BALDWIN. Evidence, Spontaneous utterance. April 21, 2017. The defendant, Shawn A. Baldwin, is awaiting trial in the District Court on charges involving alleged domestic violence. Both the Commonwealth and the defendant filed motions in limine concerning the admissibility of a recording of a 911 call placed by the six year old son of the defendant and the alleged victim. The Commonwealth argued that the boy’s statements — including, “my dad just choked my mom” — were admissible as nontestimonial excited utterances. The defendant asserted that the statements were not excited utterances and that their admission would violate his right of confrontation. After a hearing at which the recording was played, the judge ordered that the recording be excluded on the ground that the boy’s voice appeared “calm,” and that the statements on the recording therefore were not “excited” utterances. A single justice of this court granted the Commonwealth’s petition for relief pursuant to G. L. c. 211, § 3, vacated the judge’s order excluding the recording, and remanded the case to the District Court for further proceedings.[1] The defendant appeals. We affirm. When a single justice has granted relief under G. L. c. 211, § 3, “we will not disturb the judgment absent an abuse of discretion or clear error of law.”[2] Commonwealth v. Narea, 454 Mass. 1003, 1004 (2009). See Commonwealth v. Lucero, 450 Mass. 1032, 1033 (2008) (affirming single justice’s grant of relief on Commonwealth’s G. L. c. 211, § 3, petition, where judge improperly entered required finding of not guilty). In this case, the single justice, citing Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015), correctly concluded that the motion judge erred because, although the “degree of excitement displayed by the declarant is one factor suggestive of a spontaneous reaction, it is not the only factor.” Because it appears that the motion judge failed to consider other factors relevant to the determination whether an out-of-court statement qualifies as an excited utterance, her order relative to the 911 recording must be vacated. A statement meets the test for admissibility as an excited utterance if “(1) there is an occurrence or event ‘sufficiently startling to render inoperative the normal reflective thought processes of the observer,’ and (2) if the declarant’s statement was a ‘spontaneous reaction to the occurrence or event […]
Commonwealth v. Gallagher (Lawyers Weekly No. 11-046-17)
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-192 Appeals Court COMMONWEALTH vs. JUDITH A. GALLAGHER. No. 16-P-192. Hampden. February 7, 2017. – April 21, 2017. Present: Green, Meade, & Agnes, JJ. Motor Vehicle, Operating under the influence. Intoxication. Evidence, Intoxication, Opinion. Practice, Criminal, Witness. Witness, Police officer. Complaint received and sworn to in the Chicopee Division of the District Court Department on June 30, 2014. The case was tried before Bethzaida Sanabria-Vega, J. Colin Caffrey for the defendant. Kelsey A. Baran, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury trial, the defendant was convicted of operating while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24(1)(a)(1). On appeal, she claims that the judge improperly admitted a State trooper’s testimony concerning her impairment to operate a motor vehicle, and that the evidence was insufficient to support her conviction. We affirm. Background. a. The incident. In the early morning hours of June 29, 2014, the Massachusetts State police were conducting an OUI checkpoint on Route 33 in Chicopee.[1] State Trooper John Haidousis, who had ten years of experience working in law enforcement,[2] was assigned to work the secondary location, i.e., the parking lot of Monroe Muffler, a business located directly off of Route 33.[3] The business parking lot was brightly lit, the ground was flat and paved, and individual parking spots were marked visibly by painted lines on the pavement. At about 12:15 A.M., the defendant, as directed by another trooper, drove her vehicle into the secondary location parking lot without incident. Trooper Haidousis directed her to park in one of the marked parking spots. The defendant failed to do as instructed, instead parking her vehicle “crooked[ly]” or “diagonally across two parking spots.” Upon request, the defendant produced a driver’s license and perhaps a registration; Trooper Haidousis determined that she was seventy-one years old. As Trooper Haidousis spoke to the defendant he detected an odor of alcoholic beverage coming from her mouth, and observed her eyes to be “bloodshot and glassy.” Trooper Haidousis asked the defendant whether she had consumed any alcohol, to which she replied that she had consumed three beers, and had started drinking around midnight. Her speech was “a bit slurred.” Based on these observations, Trooper Haidousis asked the defendant to perform field sobriety tests, to […]
Caira v. Zurich American Insurance Co. (Lawyers Weekly No. 11-045-17)
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-927 Appeals Court MICHAEL CAIRA vs. ZURICH AMERICAN INSURANCE CO. No. 16-P-927. Essex. February 2, 2017. – April 21, 2017. Present: Grainger, Sullivan, & Lemire, JJ. Motor Vehicle, Insurance. Insurance, Unfair act or practice, Settlement of claim. Consumer Protection Act, Unfair act or practice, Insurance. Practice, Civil, Consumer protection case, Summary judgment, Continuance, Discovery. Civil action commenced in the Superior Court Department on April 9, 2015. A motion for a continuance was heard by Timothy Q. Feeley, J., and the case was heard by him on a motion for summary judgment. Mark T. Rumson (Paul F.X. Yasi also present) for the plaintiff. Jane A. Horne (Allen N. David also present) for the defendant. LEMIRE, J. In this case, we consider whether a judge in the Superior Court erred in granting summary judgment to Zurich American Insurance Co. (Zurich) on a complaint alleging that Zurich committed unfair claim settlement practices in violation of G. L. c. 176D, § 3(9)(f), and G. L. c. 93A, § 2. We conclude that Zurich did not violate these statutory provisions when it conditioned the payment of its primary insurance policy limit on a release of all claims against its insureds, notwithstanding the availability of excess insurance. Accordingly, we affirm. Background. Shortly after midnight on September 14, 2013, Daniel Madigan-Fried was driving a rental car in Swampscott when he was involved in a one-vehicle accident. The plaintiff, Michael Caira, who was a passenger in the front seat, suffered life-threatening injuries, and the two passengers in the back seat sustained serious injuries. A few weeks before the accident, Madigan-Fried had rented the vehicle in his capacity as an employee of Groom Construction Co., Inc. (Groom). Zurich had issued to Groom the primary commercial automobile insurance policy that was in place at the time of the accident. The bodily injury coverage under the policy was $ 1 million. In addition, Groom had two excess insurance policies issued by Starr Indemnity & Liability Company (Starr Indemnity) and Navigators Insurance Company (collectively, excess insurers) that provided coverage of $ 5 million each.[1] On October 29, 2013, Caira filed a complaint in the Superior Court against Madigan-Fried and Groom, alleging negligence.[2] Caira claimed that excessive speed caused Madigan-Fried to lose control of the vehicle and to crash into a granite wall. Zurich undertook […]
Commonwealth v. Tejeda (Lawyers Weekly No. 10-061-17)
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-12187 COMMONWEALTH vs. JOSEFA TEJEDA. Suffolk. December 8, 2016. – April 20, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Misleading a Police Officer. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on October 8, 2014. A motion to dismiss was heard by David Weingarten, J., and a motion for reconsideration was considered by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jason Shaffer (Robert E. Proctor & Colin Doyle also present) for the defendant. Zachary Hillman, Assistant District Attorney (Alexandra I. Halprin also present) for the Commonwealth. BUDD, J. This case presents an opportunity to further clarify the meaning of “misleads” in the context of G. L. c. 268, § 13B, specifically as it relates to nonverbal conduct. Here, a complaint issued charging the defendant, Josefa Tejeda, with misleading a police officer after she picked up a small bag of what was believed to be heroin and swallowed it as the officer watched.[1] A Boston Municipal Court judge dismissed the count. The defendant sought further appellate review after the Appeals Court vacated the dismissal. See Commonwealth v. Tejeda, 89 Mass. App. Ct. 625 (2016). We affirm the order of the trial court judge, concluding that the defendant’s actions were not misleading within the meaning of the statute. Background. We summarize the facts included in the application in support of the complaint against the defendant. A police officer approached the defendant and a male whom the officer had observed earlier trying to purchase heroin with food stamps. The two made eye contact with the officer and began to walk away. A third person, a known heroin user, was squatting behind an automobile where the other two had been standing. Concerned that the man behind the vehicle was concealing a needle in his hand, the officer ordered him to reveal what he was holding. When the man refused, the officer grabbed his arm, causing a small plastic bag of a light brown powdery substance to fall from his hand to the ground. As the officer began to take the man into custody, he simultaneously observed the defendant return to the scene, pick up the plastic bag […]
Commonwealth v. Holland (Lawyers Weekly No. 10-060-17)
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-08737 COMMONWEALTH vs. DANIEL L. HOLLAND. Norfolk. November 10, 2016. – April 19, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ. Homicide. Armed Home Invasion. Constitutional Law, Assistance of counsel, Fair trial. Practice, Criminal, Capital case, Postconviction relief, Assistance of counsel, Fair trial, Comment by judge. Mental Impairment. Insanity. Indictments found and returned in the Superior Court Department on November 18, 1998. The cases were tried before Thomas E. Connolly, J., and motions for a new trial, filed on April 3, 2006, and December 18, 2008, were heard by him. Kevin S. Nixon for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. HINES, J. On October 13, 1998, the victim was shot to death in her home. A jury convicted the defendant, the victim’s estranged husband, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and armed home invasion. The defendant appealed from his convictions and from the denial of his two motions for a new trial. In his brief on appeal, the defendant argues that the trial judge erred in denying his first motion for a new trial on the ground that his trial counsel was constitutionally ineffective in failing to investigate and present a defense of lack of criminal responsibility. We affirm his convictions as well as the orders denying the motions for a new trial. Background. 1. The trial. Based on the evidence adduced at trial, the jury could have found the following facts. The defendant and the victim were married in 1989, and their son was born later that year. A few years later, the couple moved into their family home, located in Quincy. As time progressed, the marriage became turbulent and tension grew between the couple. In February, 1998, the victim sought and was granted a restraining order against the defendant, the terms of which required him to vacate the marital home. For a number of months, the defendant stayed with family or friends and later moved into an apartment in the Dorchester section of Boston. In September, 1998, the defendant and his then girl friend moved to Richmond, New Hampshire, to live with the defendant’s uncle. On the afternoon of the day of the murder, the defendant […]
Gannon v. City of Boston (Lawyers Weekly No. 10-059-17)
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-12136 SEAN GANNON vs. CITY OF BOSTON. Suffolk. December 8, 2016. – April 18, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Anti-Discrimination Law, Handicap, Employment, Burden of proof. Employment, Discrimination. Handicapped Persons. Municipal Corporations, Police. Public Employment, Police. Practice, Civil, Summary judgment, Burden of proof. Civil action commenced in the Superior Court Department on September 27, 2012. The case was heard by Douglas H. Wilkins, J., on a motion for summary judgment, and a motion for reconsideration was considered by him. Harold L. Lichten (Adelaide H. Pagano also present) for the plaintiff. Nicole I. Taub, Senior Special Assistant Corporation Counsel, for the defendant. Simone R. Liebman & Constance M. McGrane, for the Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Robert S. Mantell, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. GANTS, C.J. The issue presented on appeal is whether a city is entitled to summary judgment on a handicap discrimination claim under G. L. c. 151B, § 4 (16), where the police department limits an officer to desk duty based on an informed, good faith belief that the officer can no longer safely patrol the streets because of his perceived handicap. We conclude that summary judgment is not appropriate where there are facts in dispute as to whether the officer is a qualified handicapped person capable of performing the full duties of a patrol officer without posing an unacceptably significant risk of serious injury to himself or others. The city at trial may present the evidence that caused the department to believe that the officer cannot safely assume the full duties of a police officer, but that determination rests with the fact finder based on the preponderance of the evidence, not with the department based on its informed, good faith belief. Therefore, we vacate the motion judge’s entry of summary judgment in favor of the city of Boston (city) and remand the case for a trial.[2] Background. The plaintiff, Sean Gannon (Gannon or plaintiff), began working for the Boston police department (department) in 1996. For the first decade of his employment, Gannon was a patrol officer performing the full range of patrol officer duties. Gannon is an avid practitioner of mixed martial arts (MMA) who has trained since his teenage […]
Commonwealth v. Morgan (Lawyers Weekly No. 10-058-17)
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-12114 COMMONWEALTH vs. JOEL D. MORGAN. Middlesex. December 6, 2016. – April 18, 2017. Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Veteran. Motor Vehicle, Operating under the influence. Controlled Substances. Practice, Criminal, Continuance without a finding, Dismissal. Complaint received and sworn to in the Lowell Division of the District Court Department on October 3, 2014. A motion for pretrial diversion was heard by Barbara S. Pearson, J., and questions of law were reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth. Elizabeth Hugetz, Committee for Public Counsel Services (Benjamin H. Keehn, Committee for Public Counsel Services, also present) for the defendant. John C. Mooney, for John C. Mooney & another, amici curiae, submitted a brief. LENK, J. This case comes to us on two reported questions and calls upon us to construe for the first time the so-called VALOR Act, St. 2012, c. 108, entitled “An Act relative to veterans’ access, livelihood, opportunity and resources.” The VALOR Act was enacted in 2012 in the aftermath of protracted American military engagements in Afghanistan and Iraq. In recognition of the toll thereby taken on many who served in the military, the VALOR Act, among other things, amended the statute providing young adults with pretrial diversion, G. L. c. 276A (pretrial diversion statute), to include qualifying veterans and active duty members of our armed forces facing criminal charges in the District and Boston Municipal Courts. We address first whether, under the pretrial diversion statute, as amended by the VALOR Act, a judge is authorized to dismiss or to continue such charges without a finding upon a defendant’s successful completion of an approved pretrial diversion program. We conclude that the judge is so authorized, rejecting the Commonwealth’s view that the VALOR Act amendments permit only a continuance of court proceedings, on the flawed view that, while military defendants could seek treatment through court-approved programs, they would face resumed prosecution of the charged offenses even after the successful completion of such a program. We go on to address the reported questions and consider whether the pretrial diversion statute, as amended by the VALOR Act, permits a […]