Commonwealth v. DeJesus (Lawyers Weekly No. 11-027-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-903 Appeals Court COMMONWEALTH vs. EMMANUEL DeJESUS. No. 13-P-903. Middlesex. October 1, 2014. – March 23, 2015. Present: Rapoza, C.J., Katzmann, & Wolohojian, JJ. Evidence, Best and secondary, Hypothetical question. Witness, Police officer. Entrapment. Complaint received and sworn to in the Malden Division of the District Court Department on March 10, 2010. The case was tried before Dominic J. Paratore, J. Merritt Schnipper for the defendant. Erin J. Anderson, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. Police officers working undercover arranged to purchase “crack” cocaine from a man known as “Paulie,” whom they suspected of operating in tandem with the defendant. A photocopy of the currency to be used for the purchase was made beforehand. The primary issue on appeal is whether the best evidence rule required that the currency, rather than the photocopy, be admitted at trial. Concluding that it does not, we affirm the defendant’s convictions.[1] Background.[2] Officers of the Everett police department were conducting an undercover operation to purchase crack cocaine. The operation was focused on a man known as “Paulie,” whom they suspected of working with the defendant. On March 9, 2010, Sergeant Paul Strong photocopied six twenty-dollar bills and then gave five of them to Detective Robert Hall, who was to arrange the undercover purchase from Paulie. Strong, who was part of the team assigned to surveil the defendant, kept a photocopy of the bills in his pocket.[3] Hall and Paulie arranged to meet near the corner of Broadway and Gladstone Street in Everett. Hall arrived by car at the arranged time and place; Paulie arrived on foot and got into Hall’s car. A purchase was arranged, and Hall gave Paulie five of the bills that had been photocopied. Paulie proceeded to make two telephone calls. After the second call, Paulie left the car and walked up Gladstone Street. Five minutes later, Paulie returned and removed five plastic baggies of crack cocaine from his mouth; he gave four of them to Hall. Paulie was then arrested. Meanwhile, Strong had been watching the defendant’s residence. He observed the defendant drive away from his home, pick up a passenger, meet briefly with a woman who approached his (the defendant’s) car, and then drive to the corner of Gladstone and School Street, where he stopped. This […]
Commonwealth v. DeJesus (Lawyers Weekly No. 10-086-14)
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‑11392 COMMONWEALTH vs. ELAN DeJESUS. Suffolk. January 7, 2014. ‑ May 19, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Practice, Criminal, Plea, Assistance of counsel. Constitutional Law, Plea, Assistance of counsel. Due Process of Law, Plea, Assistance of counsel. Alien. Indictment found and returned in the Superior Court Department on February 3, 2009. A motion for a new trial, filed on February 27, 2012, was heard by Charles J. Hely, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Zachary Hillman, Assistant District Attorney, for the Commonwealth. Eduardo Antonio Masferrer (Oriosto Medrano Santana with him) for the defendant. Emma Winger & Wendy Wayne, Committee for Public Counsel Services, for Committee for Public Counsel Services Immigration Impact Unit, amicus curiae, submitted a brief. DUFFLY, J. We are asked in this case to consider whether defense counsel’s advice to his noncitizen client that if the client pleaded guilty to drug possession charges he would be “eligible for deportation” was constitutionally deficient. Because, under applicable immigration law, the conviction of a noncitizen of possession with intent to distribute cocaine makes deportation or removal from the United States automatic or “presumptively mandatory,” see Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010) (Padilla), citing 8 U.S.C. § 1227(a)(2)(B)(i) (2006), we conclude that counsel’s advice was constitutionally deficient and that the defendant suffered prejudice as a result. Accordingly, we affirm the decision of the Superior Court judge allowing the defendant to withdraw his guilty plea. Background. The defendant pleaded guilty to possession with intent to distribute a class B substance (cocaine), G. L. c. 94C, § 32A (a), and received a sentence of probation. After a subsequent arrest for driving without a license, the defendant was taken into custody by immigration authorities; he then filed a motion for a new trial in the Superior Court seeking to withdraw his guilty plea. A Superior Court judge, who also had been the plea judge, conducted an evidentiary hearing on the defendant’s motion, at which the defendant and his plea counsel both testified. The judge thereafter made detailed findings and issued a comprehensive memorandum of decision and order allowing the motion. He determined that, under applicable immigration law, it is clear […]