International Brotherhood of Electrical Workers Local No. 129 Benefit Fund v. Tucci, et al. (and eight companion cases) (Lawyers Weekly No. 10-038-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12137 International Brotherhood of Electrical Workers LOCAL NO. 129 BENEFIT FUND[1] vs. JOSEPH M. TUCCI & others[2] (and eight consolidated cases[3]). Suffolk. November 7, 2016. – March 6, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Corporation, Stockholder’s derivative suit, Merger, Sale of assets, Valuation of stock, Board of directors. Practice, Civil, Class action, Dismissal. Civil actions commenced in the Superior Court Department on October 15, October 16, October 19, October 20, October 23, October 28, and October 29, 2015. After consolidation, a motion to dismiss was heard by Edward P. Leibensperger, J. The Supreme Judicial Court granted an application for direct appellate review. Jason M. Leviton (Michael G. Capeci, of New York, & Joel A. Fleming also present) for International Brotherhood of Electrical Workers Local No. 129 Benefit Fund & others. Thomas J. Dougherty (Kurt Wm. Hemr also present) for Joseph M. Tucci & others. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Ian D. Roffman & Matthew J. Connolly, for Associated Industries of Massachusetts, amicus curiae, submitted a brief. BOTSFORD, J. In these consolidated cases, shareholders of a publicly traded corporation claim that a merger transaction proposed by the board of directors will result in the effective sale of the corporation for an inadequate price. The question we consider is whether they may bring that claim directly against the board members, or must bring it as a derivative claim on behalf of the corporation. We answer that the claim must be brought derivatively.[4] Background. The plaintiffs appeal from the dismissal of their first amended class action complaint (complaint)[5] alleging breaches of fiduciary duty by the board of directors of EMC Corporation (EMC) arising from a merger between EMC and Denali Holding Inc. and Dell Inc. (collectively, Dell). At the time that they commenced these actions, the plaintiffs were shareholders of EMC; the proposed merger would result in the shareholders receiving a cash payment in exchange for their EMC stock. The plaintiffs’ complaint alleges that they bring the actions on behalf of a class consisting of “all other shareholders of EMC . . . who are or will be deprived of the opportunity to maximize the value of their shares of EMC […]
Categories: News Tags: 1003817, Benefit, Brotherhood, cases, companion, Eight, Electrical, Fund, International, Lawyers, Local, Tucci, Weekly, Workers
Commonwealth v. Unitt (and six companion cases) (Lawyers Weekly No. 11-017-17)
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-29 Appeals Court COMMONWEALTH vs. PETER J. UNITT, THIRD (and six companion cases[1]). No. 16-P-29. Middlesex. December 7, 2016. – February 28, 2017. Present: Cypher, Maldonado, & Blake, JJ. Bail. Forfeiture Proceeding. Practice, Criminal, Restitution. Restitution. Indictments found and returned in the Superior Court Department on September 23, 2010. A bail forfeiture proceeding was had before Sandra L. Hamlin, J. Dennis M. Toomey for Peter J. Unitt, III. James E. McCall for Lee Peck Unitt. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth. BLAKE, J. The married defendants, Peter J. Unitt, III (Peter), and Lee Peck Unitt (Lee), jointly operated a law office in Woburn prior to their arraignment on numerous crimes related to the theft and embezzlement of their clients’ funds.[2] Their adult children, Jade Unitt (Jade) and Peter Unitt, IV (Peter, IV), posted bail on their behalf.[3] Neither defendant defaulted, and each subsequently was convicted of a subset of the charged crimes. This appeal presents the question whether, where no default occurred, a judge of the Superior Court had the authority to order that the bail posted on the defendants’ behalf be forfeited and applied toward the restitution they owed. Because we conclude that under the circumstances presented by this case, the judge did not have such authority, we reverse the order of forfeiture. Background. On October 18, 2010, both Peter and Lee were arraigned on multiple indictments in the Superior Court, at which time bail was set at $ 50,000 cash for each defendant. On December 9, 2010, Jade, the defendants’ adult daughter, posted bail on behalf of Lee and was named as surety on the recognizance. On February 16, 2011, Peter, IV, the defendants’ adult son, posted bail on behalf of Peter and was named as surety on the recognizance. Both recognizance forms, which are identical, warn the surety of the risk of forfeiting the money posted for bail if the defendant defaults, but list no other potential risks of forfeiture. Between their arraignments in 2010, and their convictions in 2013, each of the defendants appeared for court as required under the recognizances, thereby satisfying the conditions of their bail. In April of 2013, a jury convicted Lee of four counts of larceny and one count of embezzlement. Thereafter, the judge adjudicated her […]
Commonwealth v. Mendez (and 11 companion cases) (Lawyers Weekly No. 10-034-17)
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-11869 SJC-11870 COMMONWEALTH vs. CHARLES MENDEZ (and eleven companion cases[1]). Bristol. October 11, 2016. – February 22, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ. Homicide. Firearms. Robbery. Assault and Battery by Means of a Dangerous Weapon. Felony-Murder Rule. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Reasonable suspicion. Practice, Criminal, Capital case, Motion to suppress, Trial of indictments together, Argument by prosecutor, Instructions to jury. Witness, Credibility. Jury and Jurors. Indictments found and returned in the Superior Court Department on January 7, 2011, and February 11, 2011. Pretrial motions to suppress were heard by Renee P. Dupuis, J., and a motion for joinder was also heard by her; and the cases were tried before D. Lloyd Macdonald, J. Cathryn A. Neaves for Charles Mendez. Jennifer H. O’Brien for Tacuma Massie. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. BUDD, J. On the evening of November 18, 2010, Edward Platts was shot and killed while sitting in his motor vehicle at a housing complex in Fall River. The defendants, Charles Mendez and Tacuma Massie, were each indicted on charges of (1) murder in the first degree[2]; (2) carrying a firearm without a license; (3) carrying a loaded firearm without a license; and (4) armed robbery. They additionally were charged with assault and battery by means of a dangerous weapon and armed robbery on separate indictments in connection with a separate incident involving a different individual. The motion judge denied the defendants’ motions to suppress evidence seized in connection with their warrantless stop. At the conclusion of a joint jury trial in September, 2013, the defendants were convicted of all charges. Each defendant filed a timely notice of appeal. Both assert the following errors: the denial of his motion to suppress; the joinder at trial of the indictments for two separate incidents; and portions of the prosecutor’s closing argument. Massie further argues that there was insufficient evidence to convict him of the armed robbery and felony-murder. Each defendant separately asserts additional errors pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981). We affirm the defendants’ convictions and decline to exercise our extraordinary power under G. L. c. 278, § 33E. Background. We summarize the facts in the light most favorable to […]
Adoption of Yadira (and two companion cases) (Lawyers Weekly No. 10-030-17)
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-12113 ADOPTION OF YADIRA (and two companion cases).[1] Suffolk. November 7, 2016. – February 14, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Adoption, Dispensing with parent’s consent. Minor, Adoption. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Regulation. Practice, Civil, Adoption, Report. Petitions filed in the Suffolk Division of the Probate and Family Court Department on March 20, 2014. A motion to deny the petitions was heard by Virginia M. Ward, J. The Supreme Judicial Court granted an application for direct appellate review. Jeanne M. Kaiser for the mother. Brian Pariser for Department of Children and Families. Nena S. Negron for Yadira & others. Michael F. Kilkelly, for the father, was present but did not argue. BUDD, J. We granted an application for direct appellate review in this case to determine whether the Code of Federal Regulations, 45 C.F.R. § 400.115(c) (1998), allows the Department of Children and Families (department) to petition for termination of parental rights on behalf of unaccompanied refugee minors whose parents also are present in the United States. We hold that the regulations do allow such petitions. Background. In December, 2010, four minor siblings arrived in Massachusetts from a Nepalese refugee camp through the Federal Unaccompanied Refugee Minors Program (minor refugee program). See Custody of Victoria, 473 Mass. 64, 65 n.1 (2015). The department placed two of the children in a foster home in Fitchburg and the other two in a foster home in Ashby.[2] No later than April, 2013, the children’s mother and father had entered the United States and settled in North Dakota and Ohio, respectively. Since coming to the United States, both the mother and the father have had “very limited contact” with the children. In March, 2014, the department petitioned the Probate and Family Court to free the children for adoption by terminating parental rights pursuant to G. L. c. 210, § 3.[3] The mother moved to deny the department’s petition. The judge denied the mother’s motion and subsequently reported the matter to the Appeals Court. In her report, the judge framed the following question for the court’s consideration: “Is it permissible under the Code of Federal Regulations for the [department] to proceed to seek a termination of parental […]
Adoption of Zak (and two companion cases) (Lawyers Weekly No. 11-004-17)
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-393 Appeals Court ADOPTION OF ZAK (and two companion cases).[1] No. 16-P-393. Norfolk. October 7, 2016. – January 9, 2017. Present: Hanlon, Sullivan, & Blake, JJ. Adoption, Visitation rights, Standing. Parent and Child, Adoption. Minor, Adoption, Visitation rights. Practice, Civil, Adoption, Standing. Petitions filed in the Norfolk County Division of the Juvenile Court Department on May 19, 2010, and September 9, 2011. Following review by this court, 87 Mass. App. Ct. 540 (2015), the cases were heard by Dana Gershengorn, J. Julia A. B. Pearson for the mother. Sherrie Krasner for the father. Kari B. Kipf Horstmann for Department of Children and Families. Steven B. Rosenthal for Zak. Yvette L. Kruger for Carol & another. SULLIVAN, J. In this case we consider whether a mother and father, whose parental rights have been terminated, have standing to participate in a hearing on posttermination visitation under the following circumstances. Termination of parental rights and posttermination visitation were originally litigated in a single trial. The termination of parental rights was affirmed on appeal, but the matter was remanded to the Juvenile Court on the question of posttermination visitation. The parents were not notified of the remand hearing and did not participate. Following the entry of an “amended order for posttermination/adoption visitation” (posttermination visitation order), the parents appealed again to this court. We now conclude that the remand hearing was a continuation of the original proceeding, and that the parents had standing to participate in the remand hearing. Accordingly, we vacate the posttermination visitation order and remand for further proceedings. Background. In Adoption of Zak, 87 Mass. App. Ct. 540 (2015) (Zak I), we affirmed the entry of decrees by a judge of the Juvenile Court terminating parental rights and dispensing with consent to adoption, but remanded on the question of posttermination visitation. Although the judge had considered the effect of domestic violence on the question of termination of parental rights, her order on the visitation issue was silent as to the impact of domestic violence on the question of posttermination visitation.[2] We remanded the case for further findings and rulings in order to permit the judge to consider that issue. We also noted the authority of the judge to consider whether circumstances had changed since the issuance of the original […]
Commonwealth v. Cawthron (and three companion cases) (Lawyers Weekly No. 11-003-17)
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 15-P-1751 Appeals Court COMMONWEALTH vs. KEITH CAWTHRON (and three companion cases[1]). No. 15-P-1751. Middlesex. November 10, 2016. – January 6, 2017. Present: Trainor, Meade, & Hanlon, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Admissions and confessions. Evidence, Admissions and confessions. Constitutional Law, Admissions and confessions, Investigatory stop. Due Process of Law, Police custody. Indictments found and returned in the Superior Court Department on April 24, 2014. Pretrial motions to suppress evidence were heard by Kenneth W. Salinger, J., and a motion for reconsideration was considered by him. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Timothy Ferriter, Assistant District Attorney, for the Commonwealth. Thomas M. Glynn for Keith M. Cawthron. Daniel E. Callahan, Committee for Public Counsel Services, for Craig Flodstrom. MEADE, J. A Middlesex County grand jury indicted the defendant, Keith M. Cawthron, and the codefendant, Craig Flodstrom, for trafficking in an amount more than eighteen and less than thirty-six grams of oxycodone, in violation of G. L. c. 94C, § 32E(c)(1), and conspiracy to traffic oxycodone, in violation of G. L. c. 94C, § 40. Prior to trial, the defendants moved to suppress the oxycodone and statements they made at the time they were stopped by the police. After conducting an evidentiary hearing, the motion judge issued findings and an order that allowed Cawthron’s motion to suppress in full, and allowed Flodstrom’s motion to suppress in part and denied it in part.[2] The Commonwealth timely noticed an appeal, and a single justice of the Supreme Judicial Court allowed the Commonwealth’s application for leave to pursue an interlocutory appeal and reported the matter to this court. See G. L. c. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). This appeal presents the question whether the conduct of the police officers, during the course of an investigatory stop, elevated that stop to one of custodial interrogation requiring the recitation of Miranda rights. The motion judge determined that it did. We reverse. Background. Detective Michael Donovan and Detective Lieutenant Ryan Columbus of the Tewksbury police department testified at the motion hearing.[3] The motion judge made detailed findings of fact to support his order, as […]
Commonwealth v. Suters (and two companion cases) (Lawyers Weekly No. 11-145-16)
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-622 Appeals Court 15-P-623 15-P-624 COMMONWEALTH vs. MONIQUE L. SUTERS (and two companion cases[1]). Nos. 15-P-622, 15-P-623, & 15-P-624. Berkshire. May 9, 2016. – October 7, 2016. Present: Agnes, Massing, & Kinder, JJ. Search and Seizure, Probable cause, Fruits of illegal search, Consent, Emergency. Evidence, Result of illegal search. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Complaints received and sworn to in the Northern Berkshire Division of the District Court Department on January 10 and June 12, 2014. Pretrial motions to suppress evidence were heard by Michael J. Ripps, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth. James F. Petersen for the defendants. AGNES, J. In this case we consider the applicability of the attenuation exception to the exclusionary rule. Under this exception, evidence that would not have been obtained by the police but for an unlawful search or seizure is nonetheless admissible because the connection between the unlawful police conduct and the evidence seized is separated by an independent act by the defendant that is sufficient to dissipate the taint of the initial unlawful search or seizure. See Commonwealth v. Martin, 457 Mass. 14, 22-23 (2010).[2] The cases come to us by interlocutory appeals from the allowance of the defendants’ motions to suppress evidence of unlawful amounts of raw marijuana and related paraphernalia discovered in the basement of the defendants’ home. For the reasons that follow, we agree with the motion judge that the initial entry by the police into the defendants’ home without a warrant was justified based on voluntary consent by an occupant, as well as the emergency exception. We also conclude, contrary to the judge’s ruling below, that the police were justified in entering a basement room, where a large quantity of marijuana was observed, to effect the arrest of one of the defendants for assault and battery on a police officer. Because the exclusionary rule should not be applied in such circumstances, we reverse. Background. We summarize the facts as found by the motion judge, supplemented with uncontroverted testimony […]
Commonwealth v. Iacoviello (and three companion cases) (Lawyers Weekly No. 11-125-16)
OTICE: 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-1818 Appeals Court COMMONWEALTH vs. ROBERT IACOVIELLO (and three companion cases[1]). No. 13-P-1818. Suffolk. April 8, 2016. – September 15, 2016. Present: Cypher, Katzmann, & Massing, JJ. Homicide. Practice, Criminal, Instructions to jury. Self-Defense. Wanton or Reckless Conduct. Intoxication. Evidence, Prior violent conduct. Accessory and Principal. Indictments found and returned in the Superior Court Department on December 20, 2007. The cases were tried before Patrick F. Brady, J., and a motion for a new trial, filed on May 6, 2014, was heard by him. Sara A. Laroche (Patricia L. Garin with her) for Robert Iacoviello. Willie J. Davis for James Heang. Cailin M. Campbell, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth. CYPHER, J. In the early morning hours of September 29, 2007, two groups converged in the dark near a baseball field behind Revere High School. One group consisted primarily of off-duty Revere police officers dressed in civilian clothes. The other group consisted of four local young men who were either members of or affiliated with a gang. Both groups had been drinking for much of the night. Heated, gang-related words were exchanged. Guns were fired from both sides. One person, off-duty Revere police Officer Daniel Talbot, was fatally wounded. A second person, defendant Robert Iacoviello, was charged with murder in the first degree, carrying a firearm without a license, and possession of a firearm without a firearm identification card. A third person, defendant James Heang, who had not been present during the fateful encounter, was charged with being an accessory after the fact in aid of Iacoviello and carrying a firearm without a license. In a joint trial, a jury found Iacoviello guilty of murder in the second degree, G. L. c. 265, § 1, and carrying a firearm without a license, G. L. c. 269, § 10(a).[2] The jury found Heang not guilty of carrying a firearm without a license, G. L. c. 269, § 10(a), but guilty of being an accessory after the fact, G. L. c. 274, § 4. The defendants appeal, raising issues they preserved during the proceedings below. Iacoviello primarily argues that the trial judge erred by declining to instruct the jury on self-defense, voluntary manslaughter, and involuntary manslaughter. Heang primarily argues that the trial judge erred by prohibiting […]
Categories: News Tags: 1112516, cases, Commonwealth, companion, Iacoviello, Lawyers, three, Weekly
Commonwealth v. Balboni (and three companion cases) (Lawyers Weekly No. 11-078-16)
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-697 Appeals Court 14-P-698 COMMONWEALTH vs. SCOTT BALBONI (and three companion cases[1]). Nos. 14-P-697 & 14-P-698. Middlesex. December 4, 2015. – July 1, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Burning of Property. Destruction of Property. Practice, Criminal, Motion to suppress, Affidavit. Search and Seizure, Probable cause, Affidavit. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Cellular Telephone. Witness, Cross-examination. Indictments found and returned in the Superior Court Department on July 14, 2009. Pretrial motions to suppress evidence were heard by Christine M. Roach, J., and the cases were tried before Elizabeth M. Fahey, J. Mark G. Miliotis for Samuel Doxsey. Patrick J. Noonan for Scott Balboni. Eric A. Haskell, Assistant District Attorney, for the Commonwealth. CYPHER, J. In these appeals from convictions of malicious burning of property, G. L. c. 266, § 5, and malicious destruction of property over $ 250, G. L. c. 266, § 127, the defendants, Samuel Doxsey and Scott Balboni, argue that (1) their motions to suppress documentary evidence obtained from third parties should have been allowed; (2) their motions to strike certain witness testimony were erroneously denied; and (3) the evidence of wilful and malicious burning was insufficient.[2] We affirm. 1. Background. We recite the evidence in the light most favorable to the Commonwealth. Additional details will be set forth in later sections as necessary. On the evening of April 4, 2009, Daniel Feehan threw a party at his apartment; Doxsey’s younger sister was in attendance. At the party, Feehan sexually assaulted Doxsey’s sister. As she attempted to leave the party, Feehan pulled down her shirt, exposing her chest to the other partygoers. After Doxsey’s sister left Feehan’s apartment, she telephoned Doxsey and told him that she had been assaulted at a party. Doxsey was a student at the University of New Hampshire, living at a fraternity house in Durham, New Hampshire. At around 4:00 A.M., after the party, the Lexington fire department responded to an alarm at an apartment complex where they found a pickup truck engulfed in flames.[3] Fire Captain John Wilson observed fire coming from the rear passenger compartment of the vehicle and flames rising from the exterior doors. On the side of the truck, Captain Wilson discerned “pour patterns” — uneven liquid patterns running down the vehicle’s surface — […]
Commonwealth v. Mattier (and five companion cases) (Lawyers Weekly No. 10-065-16)
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-11924 SJC-11960 COMMONWEALTH vs. BRANDEN E. MATTIER (and five companion cases[1]). Suffolk. January 7, 2016. – May 13, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Larceny. False Impersonation & Identity Fraud. Fraud. Conspiracy. Attempt. Search and Seizure, Arrest. Evidence, Identity, Fraud, Conspiracy. Jury and Jurors. Practice, Criminal, Motion to suppress, Jury and jurors, Argument by prosecutor. Indictments found and returned in the Superior Court Department on August 29, 2013. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J., and the cases were tried before Jeffrey A. Locke, J. The Supreme Judicial Court granted applications for direct appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for Branden E. Mattier. William S. Smith for Domunique D. Grice. Randall E. Ravitz, Assistant Attorney General (Gina M. Masotta, Assistant Attorney General, with him) for the Commonwealth. HINES, J. The defendants, Branden E. Mattier and his half-brother Domunique D. Grice, were convicted by a jury on indictments charging one count each of conspiracy to commit larceny, G. L. c. 274, § 7, and attempted larceny, G. L. c. 274, § 6. Mattier also was convicted on an indictment charging one count of identity fraud, G. L. c. 266, § 37E. The charges stemmed from an attempt by the defendants to defraud The One Fund Boston (One Fund) of approximately $ 2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon.[2] The judge imposed on each defendant a State prison sentence of from three years to three years and one day on the conspiracy count and three years’ probation on the attempted larceny count, to run from and after the committed sentence. Mattier was sentenced to an additional concurrent probationary term for his conviction of identity fraud. The defendants appealed, and we granted their applications for direct appellate review.[3] Although the appeals were not formally consolidated, we have treated them as such, given the substantial congruence of the issues raised by the defendants.[4] Mattier contends that his conviction of identity fraud fails as a matter of law because the charged conduct is insufficient to meet the elements of the statute. Both defendants claim that the judge erred in (1) denying the motion to suppress evidence obtained […]