Commonwealth v. Dragotta (and one companion case) (Lawyers Weekly No. 11-021-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1796 Appeals Court COMMONWEALTH vs. HEATHER DRAGOTTA (and one companion case[1]). No. 14-P-1796. Essex. January 12, 2016. – February 25, 2016. Present: Kafker, C.J., Cohen, & Blake, JJ. Assault and Battery. Wanton or Reckless Conduct. Parent and Child, Duty to prevent harm. Child Abuse. Practice, Criminal, Hearsay, Witness. Evidence, Expert opinion, Hearsay. Witness, Expert. Indictments found and returned in the Superior Court Department on October 1, 2010. The cases were heard by Richard E. Welch, III, J. Jacob B. Stone for Steven Amos. Patrick Levin, Committee for Public Counsel Services, for Heather Dragotta. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. After a joint jury-waived trial in the Superior Court, defendant Heather Dragotta was convicted of wantonly or recklessly permitting another to commit an assault and battery upon her infant daughter causing bodily injury (head injury), and defendant Steven Amos was convicted on three indictments charging assault and battery upon the same child causing bodily injury (two rib fractures, head injury, and arm fracture).[2] On appeal, Dragotta and Amos both claim that the evidence was insufficient to sustain their convictions, and Amos adds that the expert testimony exceeded the permitted scope of such evidence. Sufficiency of the evidence. Viewing the evidence in the light most favorable to the Commonwealth, the judge was warranted in finding the following. E.g., Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The victim was born on April 27, 2010, without any complications. Dragotta is the victim’s mother. Amos was Dragotta’s boyfriend but not the father of the child. On the evening of June 3, 2010, Dragotta and Amos brought the five and one-half week old infant to the Lawrence General Hospital emergency room because she was not using her right arm and cried when it was touched. The X-rays taken at the hospital showed that not only was the victim’s right arm fractured, but that her left arm was bowing. The fracture of the right arm was a displaced transverse fracture, meaning that the fracture went entirely across the bone and the two ends were slightly offset. These findings prompted the hospital to file a report of abuse with the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A (51A report). The victim was transferred to Boston Children’s Hospital, and Dr. […]
Commonwealth v. Henry (and a companion case) (Lawyers Weekly No. 11-155-15)
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 13-P-894 Appeals Court COMMONWEALTH vs. LISTON G. HENRY (and a companion case[1]). No. 13-P-894. Barnstable. June 3, 2015. – October 2, 2015. Present: Kafker, C.J., Rubin, & Milkey, JJ. Abuse Prevention. Alien. Practice, Criminal, Plea, Assistance of counsel, Findings by judge. Constitutional Law, Plea, Assistance of counsel. Due Process of Law, Plea, Assistance of counsel. Complaint received and sworn to in the Barnstable Division of the District Court Department on July 29, 2004. A motion to withdraw a guilty plea and for a new trial, filed on February 28, 2013, was considered by H. Gregory Williams, J., and a motion for reconsideration was heard by him. Complaint received and sworn to in the Barnstable Division of the District Court Department on March 17, 2005. A motion to withdraw a guilty plea and for a new trial, filed on February 28, 2013, was considered by Joan E. Lynch, J., and a motion for reconsideration also was considered by her. Maurice A. Reidy, III, for the defendant. Elizabeth Anne Sweeney, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. The defendant, Liston G. Henry, appeals from the denials of his motions to withdraw his 2004 and 2005 guilty pleas to two violations of G. L. c. 209A abuse prevention orders and one count of witness intimidation. He claims to have received ineffective assistance of counsel regarding the immigration effects of pleading guilty to the charges, as he was not informed that the abuse prevention order violations were deportable offenses and because the defendant, then a lawful permanent resident of the United States, was consequently deported to Jamaica in 2013 and thereby separated from his extended family in the United States. We vacate the orders denying the defendant’s motions to withdraw his pleas and remand for further factual findings on both motions. 1. Background. According to the application for the first complaint, on July 29, 2004, Yarmouth police officer Sean Brewer was dispatched to the home of Robin Edwards. Edwards reported that she had an active restraining order against the defendant, who is her former boy friend and the father of her son. The restraining order in question, which included a no-contact provision, had been issued from the Probate and Family Court and served in-hand on the defendant the previous day, July 28, 2004. Edwards […]
Schechter v. Schechter (and a companion case) (Lawyers Weekly No. 11-135-15)
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 13-P-1035 Appeals Court KARINA SCHECHTER vs. YAN SCHECHTER (and a companion case[1]). No. 13-P-1035. Suffolk. September 9, 2014. – September 9, 2015. Present: Rapoza, C.J., Carhart, & Agnes, JJ.[2] Divorce and Separation, Child custody, Modification of judgment, Findings, Visitation, Attorney’s fees. Parent and Child, Custody. Minor, Custody, Guardian ad litem, Visitation rights. Abuse Prevention. Contract, Antenuptial agreement. Husband and Wife, Antenuptial agreement. Practice, Civil, Attorney’s fees. Complaints for divorce and for protection from abuse filed in the Suffolk Division of the Probate and Family Court Department on June 8, 2009, and September 14, 2009, respectively. After consolidation, the cases were heard by John M. Smoot, J. Lawrence F. Army, Jr. (William S. Smith with him) for the father. Alanna G. Cline for the mother. Jerome Aaron, for National Parents Organization, Inc., amicus curiae, submitted a brief. AGNES, J. These are consolidated appeals by the defendant Yan Schechter (the father) from a judgment of divorce nisi and an abuse prevention order. One child, a son who is still a minor (the child), was born of the marriage. The judgment awarded sole legal and physical custody of the child to the plaintiff Karina Schechter (the mother). The father’s appeal presents four principal issues for our consideration. First, we review the custody determination and the validity of a judgment provision suspending the father’s visitation rights for one year, along with a corresponding G. L. c. 209A order precluding any contact between the father and child during that period. Second, we review the judgment’s removal provision (see G. L. c. 208, § 30), which provides that the mother has the right to remove the child “from the Commonwealth of Massachusetts to the state of New York or another state if the opportunity for employment and security is more readily available elsewhere.” Third, we review the judge’s determination that the parties’ prenuptial agreement was not “fair and reasonable” at the time of its execution and was thus not valid. Finally, we consider the judge’s award of attorney’s fees to the mother. For the reasons that follow, we affirm the judge’s orders relating to custody and visitation, the invalidity of the prenuptial agreement, and attorney’s fees, but conclude that the removal provision was not in compliance with G. L. c. 208, § 30, and that the issue must be reconsidered after an evidentiary […]
Commonwealth v. Wallace (and a companion case) (Lawyers Weekly No. 10-105-15)
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-11705 SJC-11707 COMMONWEALTH vs. NICKOYAN WALLACE (and a companion case[1]). Suffolk. February 4, 2015. – June 30, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Homicide. Constitutional Law, Speedy trial, Delay in commencement of prosecution. Due Process of Law, Delay in commencement of prosecution. Practice, Criminal, Speedy trial, Delay in commencement of prosecution, Capital case. Indictments found and returned in the Superior Court Department on May 22, 2002. Motions to dismiss, filed on June 18 and 28, 2010, were heard by Charles J. Hely, J. An application for leave to prosecute an interlocutory appeal in the companion case was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were consolidated and reported by him to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Norman S. Zalkind (Ruth O’Meara-Costello with him) for Timi Wallace. Matthew A. Kamholtz for Nickoyan Wallace. Sarah Montgomery Lewis, Assistant District Attorney, for the Commonwealth. J. Anthony Downs, Samuel Sherry, Catherine Curley, Matthew R. Segal, Jessie Rossman, & Chauncey B. Wood for American Civil Liberties Union Foundation of Massachusetts & another, amici curiae, submitted a brief. SPINA, J. In this consolidated interlocutory appeal, we consider whether the Commonwealth’s delay in obtaining custody of the defendants Nickoyan Wallace (Nickoyan) and Timi Wallace (Timi),[2] brothers, from Federal prison authorities impermissibly affected their right to a speedy trial. In considering this question in motions to dismiss due to delays totaling more than nine years,[3] a judge of the Superior Court found that Timi’s right to a speedy trial had not been violated but that of Nickoyan had. A single justice of this court allowed the interlocutory appeals of Timi and the Commonwealth, consolidated the cases, and reported them to the Appeals Court. The Appeals Court held that the Commonwealth had not violated the speedy trial right of either brother, affirming the denial of Timi’s motion and reversing the allowance of Nickoyan’s. Commonwealth v. Wallace, 85 Mass. App. Ct. 123 (2014). This court granted the brothers’ applications for further appellate review. We affirm the decision of the trial court to deny Timi’s motion and to allow Nickoyan’s motion.[4] 1. Background. The essential facts are not in dispute, and […]
Sebago, et al. v. Boston Cab Dispatch, Inc., et al. (and a consolidated case) (Lawyers Weekly No. 10-068-15)
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-11757 BERNARD SEBAGO & others[1] vs. BOSTON CAB DISPATCH, INC., & others[2] (and a consolidated case[3]). Suffolk. January 8, 2015. – April 21, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ. Taxicab. Independent Contractor Act. Massachusetts Wage Act. Minimum Wage. Tips. Labor, Wages, Minimum wage, Overtime compensation. Civil actions commenced in the Superior Court Department on March 6 and September 14, 2012. After consolidation, the case was heard by Linda E. Giles, J., on motions for summary judgment, and the case was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Shannon Liss-Riordan (Adelaide Pagano with her) for Bernard Sebago. Andrew Good (Philip G. Cormier with him) for Edward J. Tutunjian. Albert A. DeNapoli (Emily C. Shanahan with him) for USA Taxi Association, Inc. Nathan L. Kaitz, for John Byda, was present but did not argue. The following submitted briefs for amici curiae: Norman M. Leon, of Illinois, & Matthew Iverson for International Franchise Association. Nicole Horberg Decter & Don Siegel for Massachusetts AFL-CIO. Stevan Johnson, pro se. Helen G. Litsas, Special Assistant Corporation Counsel, for city of Boston. CORDY, J. In this case, we must determine whether licensed taxicab drivers in the city of Boston (city) may be classified properly as independent contractors, see G. L. c. 149, § 148B (independent contractor statute), in accordance with Boston Police Department Rule 403, Hackney Carriage Rules and Flat Rate Handbook (2008) (Rule 403). Rule 403 is a comprehensive set of regulations for the Boston taxicab industry, promulgated by the city’s police commissioner (commissioner) pursuant to an express delegation of authority by the Legislature. St. 1930, c. 392, as amended by St. 1931, c. 408, § 7, and St. 1934, c. 280. The plaintiffs in these consolidated cases, Bernard Sebago, Pierre Duchemin, Ahmed Farah, and Yves Bien-Aime, are licensed taxicab drivers in the city. They contend that they were employees of the defendants but were misclassified as independent contractors, thereby depriving them of minimum wages, overtime pay, tips, and the protections afforded by the Wage Act, G. L. c. 149, § 148. The defendants include taxicab owners, radio associations, and a taxicab garage. They argue that their relationships with the plaintiffs must be considered in the context of Rule 403, which explicitly permits drivers to […]
Commonwealth v. Brown (and a companion case) (Lawyers Weekly No. 10-020-15)
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-11570 COMMONWEALTH vs. ENFRID BROWN, JR. (and a companion case[1]).[2] Suffolk. October 9, 2014. – February 11, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Practice, Criminal, Double jeopardy, Capital case, Verdict. Constitutional Law, Double jeopardy. Indictments found and returned in the Superior Court on May 16, 1973. Following review by this court, 367 Mass. 24 (1975) and 378 Mass. 165 (1979), motions for a new trial, filed on September 23, 2009, and July 26, 2012, were considered by Frank M. Gaziano, J. A request for leave to appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk. Ryan M. Schiff, Committee for Public Counsel Services, for William J. Johnson. Matthew Sears, Assistant District Attorney, for the Commonwealth. Robert L. Sheketoff, for Enfrid Brown, Jr., was present but did not argue. HINES, J. The defendants, Enfrid Brown, Jr., and William J. Johnson, were indicted on charges of murder and armed entry with the intent to commit a felony in connection with the 1973 death of the victim, Hakim A. Jamal.[3] The defendants were convicted by a jury of murder in the first degree at their first trial.[4] We reversed the first convictions on grounds not pertinent to this appeal and remanded for a new trial. Commonwealth v. Brown, 367 Mass. 24, 32 (1975) (Brown I). They were retried and again convicted. We affirmed the second convictions. Commonwealth v. Brown, 378 Mass. 165, 166 (1979) (Brown II). After various proceedings, which we detail below, the defendants filed a third[5] motion for a new trial in July, 2012, arguing that the jury’s initial report of not guilty verdicts in the first trial was in fact an acquittal of murder in the first degree on the theory of deliberate premeditation and the retrial on that same theory in the second trial violated their double jeopardy rights. In a thoughtful memorandum of decision, a Superior Court judge denied the motion. The defendants petitioned a single justice of this court, pursuant to the “gatekeeper” provision of G. L. c. 278, § 33E, for leave to appeal. The single justice allowed the appeal to proceed on the question whether the jury’s initial verdict has the double jeopardy consequence, under Federal constitutional law and the statutory and […]
Commonwealth v. Johnson (and a companion case) (Lawyers Weekly No. 10-202-14)
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-11660 COMMONWEALTH vs. WILLIAM P. JOHNSON (and a companion case[1]). Essex. September 3, 2014. – December 23, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Criminal Harassment. Constitutional Law, Freedom of speech and press. Practice, Criminal, Required finding, Discovery, Disclosure of evidence, Loss of evidence by prosecution, Promise by prosecutor, Argument by prosecutor, Speedy trial, Venue. Evidence, Authentication. Complaints received and sworn to in the Lawrence Division of the District Court Department on October 16, 2008. Motions to dismiss were heard by Anthony P. Sullivan, J., Mark A. Sullivan, J., and James D. Barretto, J.; and the cases were tried before Michael A. Uhlarik, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert S. Sinsheimer (Lisa A. Parlagreco & Ronald J. Ranta with him) for William P. Johnson. Valerie A. DePalma (Susan H. McNeil with her) for Gail M. Johnson. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. Daniel J. Lyne & Theodore J. Folkman, for Eugene Volokh, amicus curiae, submitted a brief. CORDY, J. This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A (a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets can be constitutionally proscribed by the statute. We also consider whether, to the extent that this pattern of conduct includes speech, that speech is protected by the First Amendment to the United States Constitution or is unprotected speech integral to the commission of the crime. The defendants, William and Gail Johnson, were both convicted of criminal harassment. William[2] was also convicted of making a false, or “frivolous,” report of child abuse, G. L. c. 119, § 51A (c). Among other things, the defendants’ conduct included posting information about the victims online along with false statements about items that the victims allegedly either had for sale or were giving away, with the object of encouraging unwitting third parties to repeatedly contact and harass the victims at their home and on their telephone. The […]
In the Matter of the Estate of Rosen (and a companion case) (Lawyers Weekly No. 11-165-14)
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 13-P-221 Appeals Court IN THE MATTER OF THE ESTATE OF FRED S. ROSEN (and a companion case[1]). No. 13-P-221. Suffolk. December 10, 2013. – December 30, 2014. Present: Berry, Meade, & Agnes, JJ. Will, Testamentary capacity, Power of appointment, Construction. Devise and Legacy, Power of appointment. Probate Court, Attorney’s fees. Practice, Civil, Attorney’s fees, Summary judgment. Power of Appointment. Petition for probate of a will filed in the Suffolk Division of the Probate and Family Court Department on June 8, 2005. Complaint in equity filed in the Suffolk Division of the Probate and Family Court Department on October 14, 2005. After consolidation, the cases were heard by Elaine J. Moriarty, J., on motions for summary judgment; the cases were heard by her; and a motion for attorney’s fees was considered by her. Susan E. Stenger for William P. Girard. Michael H. Riley for Rachelle A. Rosenbaum & others. BERRY, J. William P. Girard,[2] will contestant and plaintiff in an equity action consolidated in the Probate and Family Court, appeals from (1) a decree allowing the will of Fred S. Rosen (decedent or testator), (2) a judgment dismissing Girard’s complaint in equity against Mayya Geha, Mirna Geha Andrews, and Tanya Geha (Geha sisters), which challenged the decedent’s beneficiary designation for his Teachers Insurance and Annuity Association of America – College Retirement Equities Fund (TIAA-CREF) account, (3) a judgment on a counterclaim brought in the equity action by the Geha sisters that held the TIAA-CREF beneficiary designation valid. Girard first argues that the testator lacked testamentary capacity when, on May 12, 2005, the testator executed his will and changed the beneficiary designation on his TIAA-CREF account. He also argues that regardless of the allowance of the will, article II (tangibles remainder provision) is invalid for lack of sufficiently identifiable beneficiaries. He further contends that the award of attorney’s fees should be vacated because it is excessive and was entered before he was allowed an opportunity to respond to the petition. We affirm. Background. The testator, who had been a physician, never married, he had no children or siblings, and his parents were both deceased. However, during his seventy-four years he formed many close friendships with various colleagues and their families,[3] as well as Girard and his brother (John Girard), long-time patients he had […]
Litchfield’s Case (Lawyers Weekly No. 11-106-14)
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 13-P-1044 Appeals Court ROBERT M. LITCHFIELD’S CASE. No. 13-P-1044. Suffolk. February 12, 2014. – August 28, 2014. Present: Trainor, Katzmann, & Hanlon, JJ. Workers’ Compensation Act, Injuries to which act applies, Coverage, Emotional distress. Mental Impairment. Appeal from a decision of the Industrial Accident Reviewing Board. Charles E. Berg for the employee. Paul M. Moretti for the insurer. TRAINOR, J. Robert M. Litchfield appeals the decision of the reviewing board of the Department of Industrial Accidents (department) which affirmed a decision of an administrative judge of the department. The administrative judge determined that G. L. c. 152, § 36(1)(j), benefits for permanent loss of psychiatric function were not available to Litchfield. We affirm. Factual and procedural background. The following facts are taken from the administrative judge’s subsidiary findings of fact and are not in dispute. Litchfield “worked as a heavy equipment mechanic for the [t]own of Westford, the employer . . . , from 1984 until suffering an industrial injury to his elbow and shoulder in 2001.” Litchfield “never suffered from anxiety and depression prior to his industrial injury but has since. His depression prevents him from working or doing the things he used to enjoy including interacting with his family. . . . He spends his days watching television, playing computer games and performing light housework. He does get out of the house each day and works as a municipal poll worker on election days. His elbow and shoulder pain are always present. . . . The pain and inability to work, directly caused by the physical injuries, have caused his psychiatric conditions of depression and anxiety.” He has received compensation for these injuries under various sections of G. L. c. 152. In 2004, he was awarded § 35 partial incapacity benefits for his physical injuries. In 2007, he was awarded § 34 temporary total incapacity benefits for these injuries. A panel of this court affirmed that award in Litchfield’s Case, 74 Mass. App. Ct. 1115 (2009). Also in 2007, his § 36 claim for loss of function benefits for his shoulder and elbow was adjusted. Finally, in 2009, he was awarded § 34A permanent and total benefits for these injuries. Later, he filed a claim for permanent loss of psychiatric function under G. L. c. 152, § 36(1)(j). The denial of this claim is now before us on appeal.[1] Discussion. Authority to determine which version of the American Medical Association […]
Commonwealth v. Malick (and a companion case) (Lawyers Weekly No. 11-102-14)
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 09-P-1292 Appeals Court 11-P-973 COMMONWEALTH vs. WAJAHAT Q. MALICK (and a companion case[1]). No. 09-P-1292. Plymouth. October 1, 2013. – August 25, 2014. Present: Graham, Sikora, & Hanlon, JJ. Practice, Criminal, Appeal, Appellate Division, Probation, Restitution, Sentence. Restitution. Indictments found and returned in the Superior Court Department on March 26, 1991. A proceeding for revocation of probation was heard by Jeffrey A. Locke, J., and a motion to revise and revoke sentence was considered by him. Michael J. Traft for the defendant. Thomas E. Bocian, Assistant Attorney General, for the Commonwealth. SIKORA, J. These appeals, consolidated for briefing and decision, arrive after a long and tortuous procedural history. They present questions of sentencing. One of them requires us to consider the purposes of restitution as a criminal law sanction. In 1993, the defendant, Wajahat Q. Malick, pleaded guilty to nine indictments charging him with an elaborate scheme of larceny and embezzlement in the course of his employment as the financial comptroller of a substantial automobile dealership. The plea judge adjudicated him a common and notorious thief[2] and imposed a prison term of from eighteen to twenty years. Upon related counts the judge added a consecutive sentence of from twelve to fifteen years suspended on condition of successful performance of a ten-year period of probation. A primary condition of probation was the accomplishment of restitution to the dealership or its owner, Helmut Schmidt. After a lengthy hearing, the plea judge set the restitution figure at $ 1,016,714.16. He placed six other related indictments on file. After approximately ten years of incarceration (1993 to 2003), the defendant began the probationary term. Approximately five years later, a second judge (probation judge)[3] found that the defendant, who had paid about $ 291,700 in restitution, or less than thirty percent of the amount owed, had obtained a mortgage loan under a different name, was concealing assets, and was not making a good faith effort to achieve restitution. In 2009, the judge revoked probation and imposed the suspended sentence of from twelve to fifteen years.[4] Meanwhile the dealership and Schmidt had pursued civil claims against banks allegedly negligent or reckless in their tolerance of the defendant’s deception. The civil litigation was still pending at the time of the revocation of probation in 2009. It later resulted in […]