text:
    COMMONWEALTH v. Jason SLAMIN.
    17-P-403
    Appeals Court of Massachusetts.
    Entered: January 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In May of 2016, the defendant pleaded guilty to breaking and entering, motor vehicle larceny, and other charges arising out of his theft of vehicles owned by Zipcar. The judge imposed a sentence of four to six years in State prison and a consecutive four-year term of probation. He then held an evidentiary hearing in accordance with Commonwealth v. Henry, 475 Mass. 117 (2016), to determine the defendant's ability to pay restitution. Following the hearing the judge ordered the defendant to pay restitution in the total amount of $4,800, while waiving all court fees, including probation supervision fees. The defendant appeals.

The judge found the following facts, none of which have been shown to be clearly erroneous. At the time of the hearing, the defendant was twenty-nine years old, single, and "able-bodied," with no children. He did not graduate from high school but was enrolled in a "GED" program at Massachusetts Correctional Institution at Shirley, where he was incarcerated. He reported no substance abuse or mental health problems and was "articulate and thoughtful about himself and his difficult prospects upon his release from custody."

The defendant has been incarcerated since his arrest. Prior to his incarceration, he was not employed and received approximately $200 in food stamps per month. He lived with his brother, who did not charge the defendant rent, paid for his food, and occasionally gave him spending money. The defendant has no assets and has been "basically homeless" since his mother died in 2004. He also has an extensive criminal record and has served time on some of his convictions.

Although the defendant has never been steadily employed, he has worked odd jobs. For instance, he has occasionally passed out flyers to promote club performances and was paid cash in exchange, although not "enough ... to meet his daily needs." He also worked in construction in 2007 or 2008. In addition, while incarcerated, he received an "OSHA certificate" and a certificate in culinary arts, which he "hopes to use ... to land a job when he leaves prison." The chef in the culinary program was impressed with the defendant's abilities and offered to help him find a job upon his release. The defendant does not know how long the offer will remain open, however, and he has no current job leads.

Based on these findings, the judge concluded that the defendant "is not likely to be able to pay restitution immediately upon his release from prison." But the judge further concluded that the defendant is "employable" and "reasonably likely to be able to pay" a total of $4,800 "over the course of his probation"-i.e., "$100/month for the 48 months of [the] defendant's probation"-so long as his court fees are waived. The judge stated that this was "[his] best assessment at this time" of the defendant's potential future earning capacity, but acknowledged that it was "a prediction fraught with uncertainty."

We recognize the difficulties the judge faced in this situation. Under Henry, 475 Mass. at 122, the judge had "to consider the defendant's ability to pay when initially setting the restitution amount," which required the judge to prognosticate what the defendant's financial circumstances would be when he is released from prison in several years. Nonetheless, we conclude that the matter must be remanded for two reasons.

First, although the judge found that the defendant will not be able to pay restitution immediately upon his release, the order appears to require monthly one-hundred-dollar payments "for the 48 months of [the] defendant's probation." Even assuming, as the Commonwealth argues, that the order requires only that the defendant pay a total of $4,800 over the course of his probation, the judge should have set a payment schedule that reflects the defendant's inability to make immediate payments. The judge could not "delegate to the probation department the responsibility of establishing a payment schedule," to the extent that was his intent. Id. at 128.

Second, in attributing potential future income to the defendant, the judge did not make the finding required by Henry that "the defendant is earning less than he ... could through reasonable effort." Id. at 127. Although the Commonwealth argues that such a determination is implicit in the order, Henry requires the judge to make a "specific[ ] finding" in this respect. Ibid. The judge must therefore articulate the grounds on which he is attributing income to the defendant, after considering his "employment history and financial prospects" and any other relevant circumstances. Ibid., quoting from Commonwealth v. Nawn, 394 Mass. 1, 9 (1985).

If the judge makes the required finding, he may then order restitution so long as it would not cause the defendant "substantial financial hardship." Ibid. In making this determination, "the judge must consider the financial resources of the defendant, including income and net assets, and the defendant's financial obligations, including the amount necessary to meet minimum basic human needs such as food, shelter, and clothing for the defendant and his ... dependents." Id. at 126. The judge may also take into account that it is the defendant who "bears the burden of proving an inability to pay." Id. at 121.

The order requiring the defendant to pay restitution is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated.

      The judge found that Zipcar's actual loss was $31,413. The defendant does not challenge that finding.

      The defendant testified that he received "$50 for the day."


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Quinton K. WILLIAMS.
    17-P-376
    Appeals Court of Massachusetts.
    Entered: January 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Quinton K. Williams, was convicted of one count of carrying a firearm without a license and one count of carrying a loaded firearm without a license. On appeal, the defendant challenges only the denial of his motion to suppress, and argues that the patfrisk of his jacket was unsupported by reasonable articulable suspicion. We agree.

Standard of review. When reviewing the denial of a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error, 'but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Woods, 466 Mass. 707, 717 (2014), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "The Commonwealth bears the burden of demonstrating that the actions of the police officers in stopping and frisking the defendant were within constitutional limits." Commonwealth v. Gomes, 453 Mass. 506, 509 (2009), citing Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).

Background. We accept all the motion judge's findings, summarized as follows. In February, 2013, two police detectives on patrol in an unmarked police cruiser observed the defendant and another man walking through a high crime area where there were recent incidents of shots fired. Neither man was known to the detectives. The detectives pulled over in the cruiser and identified themselves as police officers. One detective requested that both men remove their hands from their pockets for officer safety. After the detective's second request, the defendant quickly removed his hands. The second detective described the defendant as appearing nervous, and as looking like a "deer in the headlights." He further observed that the defendant's right pocket looked heavy and weighted down. Both detectives were experienced officers trained in the investigation of violent crimes. One of the detectives conducted a patfrisk of the defendant for officer safety and removed a loaded firearm from the defendant's jacket pocket.

The motion judge found that the patfrisk was justified for officer safety "[o]nce this experienced officer observed the defendant's right pocket was heavy and weighted down when he removed his hands."

Discussion. "[P]olice officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous." Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010). Both requirements are satisfied when there is "a reasonable belief that an individual has a weapon and appears inclined to use it." Id. at 9. "The facts and inferences underlying the officer's suspicion must be viewed as a whole when assessing the reasonableness of his acts." Commonwealth v. Sykes, 449 Mass. 308, 314 (2007), quoting from Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).

The parties are in agreement that the detectives' initial stop of the defendant and his companion was consensual and that he was seized when the police announced their intention to pat frisk him. The disputed question is whether the detectives had reasonable suspicion at that point.

Even considering the factual context and the detectives' training, the mere fact that one of the detectives observed something heavy in the defendant's pocket does not provide a reasonable belief that the defendant had a weapon or that he appeared inclined to use it. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 434-436 (2015) (officer's training, combined with defendant ignoring officer's questions, defendant's flight, and hand inside of pants did not create reasonable suspicion that defendant possessed weapon); Commonwealth v. Martin, 457 Mass. 14, 20-21 (2010) (nervousness and silence in response to officer's questions in high crime neighborhood did not create reasonable suspicion that defendant possessed firearm). See also Commonwealth v. Mock, 54 Mass. App. Ct. 276, 282-283 (2002) (reasonable suspicion to stop defendant lacking where defendant fit description of suspect in attempted breaking and entering, was carrying bulky object under his clothing, and, upon police inquiry, increased his pace away from police). Contrast DePeiza, supra at 371-372 (defendant's "straight arm" walk, together with nervous behavior and shielding of bulge in jacket pocket that appeared to hold a heavy object, at midnight in an area of recent escalation in firearm violence, furnished reasonable suspicion to conduct a patfrisk). The defendant's conduct was insufficient to raise the detectives' beliefs beyond a "mere 'hunch.' " Commonwealth v. Silva, 366 Mass. 402, 406 (1974). We therefore agree with the defendant that the detectives did not have reasonable suspicion to conduct a patfrisk and the motion to suppress should have been allowed.

Conclusion. The judgments are therefore reversed, and the verdicts are set aside.

So ordered.

Reversed.

      At trial, the trial judge dismissed one count of possession of ammunition at the close of the Commonwealth's case.

      One detective testified about his familiarity with the area, including that he lives nearby and knows "most of the people in that area."

      The motion judge did not make a finding about when the detectives exited the vehicle, but the detectives testified that they exited the cruiser after asking if they could speak with the defendant and the other man.

      The Commonwealth properly agrees that, in this factual scenario, the defendant did not need to remove his hands from his pockets at all. See Commonwealth v. Barros, 435 Mass. 171, 178 (2001).


text:
    COMMONWEALTH v. Thomas R. ESTEP.
    16-P-712
    Appeals Court of Massachusetts.
    Entered: January 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in 1990, the defendant was convicted of murder in the second degree for killing his girl friend, Leisha "Lee" Sanford. He comes before this court for a fourth time, arguing that he is entitled to a new trial because the trial judge's instructions to the jury on the third prong of malice were erroneous and because counsel was ineffective. The motion judge denied the motion. Although we agree that the instructions were erroneous, we affirm nonetheless because we are persuaded that the error did not create a substantial risk of a miscarriage of justice, nor was counsel ineffective. We also affirm the judge's implicit denial of the defendant's motion to reduce the verdict to involuntary manslaughter.

Procedural history. The events leading to the victim's death in 1989 were recited in our 1995 decision affirming the defendant's conviction on direct appeal. See Commonwealth v. Estep, 38 Mass. App. Ct. 502, 503-504 (1995). In that appeal, among other arguments, the defendant contended that the trial judge, in jury instructions defining third prong malice, improperly included language referring to "grievous bodily harm." Id. at 507-508. The instructions are recited below, with emphasis added to highlight the language at issue.

At the beginning of his charge, the judge told the jury, "[m]alice may be proven by evidence of any unexcused intent ... to do an act creating a plain and strong likelihood that either death or grievous harm will follow." Shortly thereafter, the judge gave a slightly different instruction, informing the jury that they could infer malice "where a reasonable person under the circumstances known to the defendant would have known that, according to common human experience, ... there was a probability of causing grievous bodily harm and a plain likelihood of death as a result of the defendant's act." He repeated the substance of the latter definition once more during that charge, but this time referred to a "plain and strong likelihood" of death.

The following day, after the jury requested "a clarification of first degree murder, second degree murder and manslaughter," the judge instructed the jury several more times on third prong malice, again giving inconsistent definitions. First, he stated that malice is the intent "to do an act creating a plain and strong likelihood that either death or grievous bodily harm would follow." However, he then indicated that malice "may be inferred where a reasonably prudent person in the circumstances known to the defendant would have known that according to common experience there was a probability of causing grievous bodily harm and a plain likelihood of death." Finally, he instructed the jury that malice requires conduct toward another "which will probably do grievous bodily harm to that other or will create a plain and strong likelihood [of death]."

The portions of the instructions which contained the disjunctive "or," if followed, would have allowed the jury to return a verdict of guilty of murder in the second degree upon proof that the defendant's conduct created a probability of causing only grievous bodily harm. As we will discuss in detail infra, these portions of the instructions incorrectly stated the law. On direct appeal, the defendant argued that these erroneous instructions, to which his counsel did not object at trial, created a substantial risk of a miscarriage of justice. This court rejected that argument at the time, reasoning that the instructions given "were in accord with Commonwealth v. Delaney, 418 Mass. 658, 666 (1994), and Commonwealth v. Sama, 411 Mass. 293, 298 (1991)." Estep, 38 Mass. App. Ct. at 508. Further appellate review was denied. Commonwealth v. Estep, 420 Mass. 1105 (1995).

After the defendant's direct appeal, the Supreme Judicial Court decided Commonwealth v. Vizcarrondo, 427 Mass. 392 (1998), S.C., 431 Mass. 360 (2000), and Commonwealth v. Azar, 435 Mass. 675 (2002), S.C., 444 Mass. 72 (2005). In both cases, the court set aside guilty verdicts based on erroneous jury instructions on third prong malice. In so doing, the court made it clear that including "or grievous bodily harm" in a third prong malice instruction "improperly permitted the jurors to infer malice on proof that the defendant committed an act that he knew (or should have known) would result in grievous bodily harm," when what is required instead is "a plain and strong likelihood of death." Vizcarrondo, 427 Mass. at 395. See Azar, 435 Mass. at 682. The court acknowledged that some of its earlier opinions had incorrectly included such language, which potentially "misled" trial judges and caused "confusion." Azar, 435 Mass. at 684 n.5. See Vizcarrondo, 427 Mass. at 396 n.5. Nonetheless, the court reiterated that the instructions in Azar, which was tried in 1989 and contained precisely the same error as that at issue in this case, "were erroneous when given." Azar, 435 Mass. at 684 n.5. In addition, the court in Commonwealth v. Sires, 413 Mass. 292 (1992) -decided prior to the defendant's direct appeal-had "reject[ed] any suggestion that ... something less than a plain and strong likelihood of death [is] sufficient for proof of the third prong of malice." Id. at 303 n.14.

In both Vizcarrondo and Azar, the court concluded that the error, in light of trial evidence that permitted, but did not compel, a finding of a plain and strong likelihood of death, created a substantial risk of a miscarriage of justice and warranted a new trial. See Vizcarrondo, 427 Mass. at 397-398 ; Azar, 435 Mass. at 687-690. The Azar opinion cited several more cases involving the same erroneous instruction, each requiring reversal and a new trial. See, e.g., Commonwealth v. Williams, 428 Mass. 383, 385, 387-388 (1998) (substantial risk of miscarriage of justice, where "a reasonable jury might have found that the defendant's acts created a plain and strong likelihood of grievous bodily injury, but not a plain and strong likelihood of death"); Commonwealth v. DiRenzo, 44 Mass. App. Ct. 95, 99-101 & n.6 (1997) (prejudicial error); Commonwealth v. Pichardo, 45 Mass. App. Ct. 296, 299-301 (1998) (substantial risk of miscarriage of justice). In the case before us now, on the defendant's third motion for a new trial, the defendant argues that these decisions require that same conclusion here.

Discussion. 1. Direct estoppel. As a threshold matter, the Commonwealth asserts that the defendant's claim is barred by the doctrine of direct estoppel, as the argument was raised and rejected in his direct appeal. See Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005) (where issue was actually litigated and decided on direct appeal, and was essential to decision, direct estoppel barred relitigation of issue through motion for new trial). This is a fair argument. However, upon consideration, we are persuaded that we should address the issue even now, given the unusual appellate history of this case and other cases raising this same issue, combined with the fact that this court, in the direct appeal, did not have an opportunity to review all of the trial transcript, including the portion with the supplementary jury instructions at issue here.

Specifically, although this court upheld the challenged instruction in this case in 1995, and further appellate review was denied, the Supreme Judicial Court later stated, in Azar, that, despite the fact that "some opinions of [that] court ... incorrectly included grievous bodily harm language in the description of the third prong of malice," "the instructions were erroneous when given." Azar, 435 Mass. at 684 n.5. See Vizcarrondo, 427 Mass. at 395-396 & n.5. Furthermore, this court's opinion in Commonwealth v. Azar, 50 Mass. App. Ct. 767 (2001), with which the Supreme Judicial Court agreed on further appellate review, specifically cited this defendant's case among others where this erroneous instruction had been given. Id. at 770, citing Estep, 38 Mass. App. Ct. at 507-508. The Vizcarrondo court also identified Delaney, 418 Mass. at 666-667, upon which this court relied in affirming the defendant's conviction on direct appeal, see Estep, 38 Mass. App. Ct. at 508, as a case involving the offending language. See Vizcarrondo, 427 Mass. at 395 n.5. The other case this court relied upon in affirming the conviction, Sama, 411 Mass. at 298, see Estep, 38 Mass. App. Ct. at 508, was recognized as erroneous in DiRenzo, 44 Mass. App. Ct. at 99-100 & n.7. See Avellar v. Dubois, 30 F. Supp. 2d 76, 79 (D. Mass. 1998).

"[R]elitigation of [an] issue in a subsequent action between the parties is not precluded [when] ... (2) ... (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws." Restatement (Second) of Judgments § 28 (1982) ( section 28 ). This "intervening change in the applicable legal context" exception to the rule of issue preclusion applies in both the direct estoppel and collateral estoppel settings. An attempt to relitigate an issue previously resolved on direct appeal raises a question of direct, rather than collateral, estoppel. See Rodriguez, 443 Mass. at 709-711.

Although neither the Supreme Judicial Court nor this court has yet adopted this exception, the court cited it with apparent approval in Commonwealth v. Williams, 431 Mass. 71 (2000), referring to "the discretionary exception that permits a reviewing court to authorize re-litigation of an issue because of an intervening change in the applicable law. See Restatement (Second) of Judgments § 28(2) & Reporter's Note at 286 (1982)." Id. at 76. Also, in Rodriguez, without citing section 28(2), the court assumed without deciding that, notwithstanding the principle of direct estoppel, an issue decided against a defendant on direct appeal could be relitigated through a motion for a new trial, if, in the interim, the court had determined that the issue had been wrongly decided in the direct appeal. Rodriguez, 443 Mass. at 711. And in Fidler v. E.M. Parker Co., 394 Mass. 534 (1985), the court recognized section 28(2)'s "change in the applicable legal context" exception, but found it inapplicable. See id. at 544.

Finally, albeit without citing section 28(2), the court rejected a direct estoppel argument, based at least in part on a change in legal context, in Commonwealth v. Bolden, 470 Mass. 274 (2014). There, Bolden's convictions of three counts of aggravated burglary had been affirmed by this court on direct appeal, rejecting his contention that two of his convictions were duplicative. See id. at 275, 280 n.4, citing Commonwealth v. Bolden, 42 Mass. App. Ct. 1105 (1997). While his application for further appellate review was pending, this court decided Commonwealth v. Gordon, 42 Mass. App. Ct. 601 (1997), which "thoroughly analyzed" a similar claim of duplicative aggravated burglary convictions and agreed that the convictions were duplicative. See Bolden, 470 Mass. at 277-278, 280 n.4. The Supreme Judicial Court denied further review in Bolden's direct appeal. 425 Mass. 1103 (1997). See Bolden, 470 Mass. at 277. Bolden then moved for postconviction relief; the trial court denied the motion, and this court affirmed. See id. at 277, citing Commonwealth v. Bolden, 84 Mass. App. Ct. 1106 (2013). On further appellate review of that decision, see Bolden, 470 Mass. at 277, the Commonwealth argued that Bolden's duplicative-conviction argument was barred by direct estoppel. See id. at 280 n.4. However, the Supreme Judicial Court rejected that argument, stating that Bolden "was entitled to the benefit of the decision in Commonwealth v. Gordon...." Ibid. The court went on to vacate one of Bolden's convictions as duplicative and ordered the underlying indictment dismissed. Id. at 280-281. In short, in a procedural position parallel to that in this case, despite the fact that the issue was resolved adversely to Bolden on direct appeal to this court, and despite the fact that further appellate review was denied, Bolden was entitled to raise the issue in a motion for postconviction relief, and direct estoppel did not bar him from benefiting from a decision, albeit one issued after we affirmed his conviction, that changed the legal context in his favor.

In light of these decisions suggesting that section 28(2)'s "change in the applicable legal context" exception would apply in an appropriate case, and because section 28's other exceptions have been cited with approval in both criminal and civil cases, we conclude that the section 28(2) exception applies here. That is, given this case's extraordinary appellate history-the fact that, after the defendant's direct appeal, Vizcarrondo and Azar made it clear that the third prong malice instruction given at trial was erroneous, and both of the decisions (Delaney and Sama ) upon which this court relied in the defendant's direct appeal when upholding the third prong of malice instruction were determined to have decided the issue erroneously, see supra-we are persuaded that the legal context has changed so significantly that direct estoppel should not apply. We therefore consider whether the erroneous instruction created a substantial risk of a miscarriage of justice warranting a new trial.

2. Substantial risk of a miscarriage of justice. "The substantial risk standard requires us to determine 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.' " Azar, 435 Mass. at 687, quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). As the Supreme Judicial Court said in another case involving an erroneous third prong malice instruction, "we consider four questions: (1) whether there was error, (2) whether the defendant was prejudiced by the error, (3) '[c]onsidering the error in the context of the entire trial,' whether it would be 'reasonable to conclude that the error materially influenced the verdict,' and (4) whether we may infer from the record that counsel's failure to object was not a reasonable tactical decision." Commonwealth v. Russell, 439 Mass. 340, 345 (2003), quoting from Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). Here, we assume the first, second, and fourth questions to be answered in the defendant's favor, and so we focus on whether it would be reasonable to conclude that the error materially influenced the verdict. See Russell, 439 Mass. at 345. That question must be analyzed considering the error in the context of the entire trial, with reference to the evidence and the case as a whole. Ibid. "A new trial will be ordered only in the extraordinary situation where, after such a review, we are left with uncertainty that the defendant's guilt has been fairly adjudicated." Azar, 435 Mass. at 687, quoting from Commonwealth v. Chase, 433 Mass. 293, 299 (2001).

a. Analysis of effect of erroneous instructions on malice. Many cases involving erroneous third prong malice instructions have approached the question of the error's influence on the verdict by examining whether the evidence, viewed in the light most favorable to the defendant, "required the jury, at a minimum, to find that 'in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience,' 'a plain and strong likelihood of death would follow the defendant's actions.' " Commonwealth v. Gilbert, 447 Mass. 161, 173-174 (2006) (footnote omitted), quoting from Azar, 435 Mass. at 682, 689. See Commonwealth v. Childs, 445 Mass. 529, 534 (2005). Put differently, "a new trial is unnecessary where the presence of malice, as it is correctly understood, can be 'ineluctably inferred' from the evidence." Azar, 435 Mass. at 688, quoting from Vizcarrondo, 427 Mass. at 397.

This is not, however, the only approach to the question. As demonstrated by Commonwealth v. Proulx, 61 Mass. App. Ct. 454 (2004), if the main issue at trial was not whether the defendant acted with third prong malice, but instead whether it was the defendant or someone else who caused the fatal injuries, then we may doubt whether the erroneous instruction materially influenced the verdict. See id. at 462-464. "[W]hether a particular element of a crime was contested at trial is important to a determination whether a trial error resulted in a substantial risk of a miscarriage of justice. We have held previously that no harm accrues to a defendant if an error [in instruction] does not relate to an issue actively contested at trial." Id. at 464, quoting from Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986).

In Gabbidon, where the only live issue at trial was the identity of the perpetrator, an erroneous instruction on specific intent to kill was held not to create a substantial risk of a miscarriage of justice. 398 Mass. at 5. The Supreme Judicial Court has repeatedly applied this principle in the context of erroneous instructions on malice, where the main or only issue at trial was the identity of the perpetrator. See Commonwealth v. Puleio, 394 Mass. 101, 109 (1985) ; Commonwealth v. Bembury, 406 Mass. 552, 562-563 (1990) ; Commonwealth v. Avellar, 416 Mass. 409, 421-422 (1993) ; Commonwealth v. Richardson, 425 Mass. 765, 768 (1997) ; Commonwealth v. Gagnon, 430 Mass. 348, 350 (1999).

We think this principle applies here. In this case, as in Proulx, "[e]ven after examining the record in the light most favorable to the defendant, we conclude that identity of the perpetrator was the main issue at trial." Proulx, 61 Mass. App. Ct. at 462. "This defense, when viewed in the context of the entire trial, was not sufficient to support a claim that the element of malice was in dispute. Any error in the third prong of malice instruction did not, therefore, create a substantial risk of a miscarriage of justice." Id. at 463. We add that we would reach the same conclusion even if, unlike in Proulx, we were to view the evidence in the light most favorable to the Commonwealth, which presented the defendant as having attacked the victim far more severely than in the defendant's version. The theory of the defense was the same, regardless of the lens through which the evidence is viewed in retrospect.

b. The evidence in the light most favorable to the defendant. The victim, twenty-eight years old, died of multiple blunt impact injuries to the head and neck. She was killed in the apartment she shared with the defendant, sometime in the early morning hours of November 10, 1989, after they hosted a party attended by neighbors and their guests, at which considerable alcohol was consumed. The principal theory of the defense was that the victim's injuries were not inflicted by the defendant, and could have been inflicted by Milton Tripp, the victim's former boy friend and the father of some of her children.

The defendant's first witness, Edward Caine, testified that, on the evening of the party, a man he later identified as Tripp had approached him at a liquor store near the apartment, asked him for money, swore at him, and pushed him. The defendant testified that he, too, had seen Tripp outside a nearby liquor store shortly before the party; Tripp came over to the car in which the defendant and the victim were parked and spoke to the victim through the window. Tripp did not attend the party.

The defendant testified that at the party, the victim had made a lewd remark to a guest. When the guests left at about 12:30 a.m., both the defendant and the victim were drunk; he confronted her in the kitchen, asked why she had made the remark, and then slapped her two or three times while she was seated on a chair. After she kicked him and stood up, he shoved her against a wall, and threw her to the floor. Although testimony from the Commonwealth's witnesses indicated that the defendant had attacked the victim using a closed fist, an axe handle, and an electric cord or other neck ligature, the defendant denied having done so.

The defendant testified that he saw no blood on the victim, although she was "a little red." He saw her walk from the kitchen to her bedroom under her own power and lie down on her bed in a normal position. The defendant then fell asleep on the parlor couch at about 1 a.m.

The defense witness Caine testified that he spent the night in the apartment across the hall from the one occupied by the victim and the defendant. At about 5 a.m. the next morning, he heard the noise of a door slamming across the hall, opened the door of the apartment where he was staying, and saw Tripp going down the stairs.

The defendant testified that when he awoke the next morning, a small light in the victim's bedroom, which had been on when he went to sleep, was now off. He called out to her but received no response. He went into the bedroom and discovered the victim with her legs hanging off the bed. He saw blood on her lip; he spoke to her but she did not respond; he did not realize she was dead. He spoke to a neighbor and an ambulance was called. When police and medical personnel responded to the scene at about 8:20 a.m., the victim was observed to have bruises around her eyes, face, neck, arms, hand, and thighs, and dried blood around her nose and mouth.

Human blood stains were found in the kitchen (on a cabinet), and either a cabinet door or a wall; the hallway floor; and in the bedroom (on a comforter underneath the victim, a pillow case, two different walls, and a rug under the bed). Blood was also found on one of the victim's toes. No blood was found on the clothing the defendant was wearing at the time of the incident. The blood stains were not tested to determine their age or whether they matched the blood of the victim, the defendant, or someone else.

The most severe injuries observed at the autopsy were six separate bruises on the victim's scalp, with blood pooling between the scalp and the top of the brain, indicating forceful blows to the head. Also, inside the neck there was bruising and hemorrhaging, indicating that force had been applied to the neck area close to the time of death. There were multiple abrasions and bruises on the front portion of the neck, and pinpoint hemorrhages in the small vessels of the victim's left eye, known as petechiae, which indicated trauma "about the neck or going partially around the neck."

Based on this evidence, the principal theme of defense counsel's closing argument was that Tripp, the former boy friend, could have been responsible for the beating that caused the victim's death. Tripp had been seen in the neighborhood earlier, "looking for a fight with anybody," and had been seen walking down the stairs from the victim's apartment early on the morning she died. Counsel acknowledged the defendant's admission that he had thrown the victim against a wall, but repeatedly stressed that if the defendant had beaten the victim severely enough to cause her death, there would have been blood on his clothes, yet there was none. Nor did it make sense that the defendant, if he had killed the victim, would have waited around until the next morning and called out to her to wake her up. The defendant was drunk and asleep, he argued, and so did not hear the fatal attack on the victim. Counsel further argued, with limited support from the testimony of Caine, that the prosecutor had unsuccessfully attempted to get Caine to change his account of the events, but that Caine's testimony as the jury heard it should be believed.

In sum, counsel urged the jury to find reasonable doubt, based on questions such as, "Did Milton Tripp do it? ... If [the defendant] beat her up, where's the blood on him?" Although counsel touched on other themes as well, nowhere did he suggest that the killer's conduct at most created some likelihood of bodily harm rather than a plain and strong likelihood of death. He did not argue that the killer acted without third prong malice and thus, at most, had committed manslaughter. Instead, his argument was that the defendant was not the killer.

Because the theory of the defense had nothing to do with distinctions between various levels of criminal intent, the erroneous third prong malice instruction created no substantial risk of a miscarriage of justice. Compare Puleio, 394 Mass. at 109 ; Bembury, 406 Mass. at 562-563 ; Avellar, 416 Mass. at 421-422 ; Richardson, 425 Mass. at 768 ; Gagnon, 430 Mass. at 350. That is, we have no "serious doubt whether the result of the trial might have been different had the error not been made." Azar, 435 Mass. at 687, quoting from LeFave, 430 Mass. at 174. Given that conclusion, unlike the court in Proulx, we see no need to go further to decide whether the evidence, viewed in the light most favorable to the defendant, "was such that a jury could find nothing less than a plain and strong likelihood of death." Proulx, 61 Mass. App. Ct. at 462.

3. Ineffective assistance of counsel. The defendant's motion for a new trial also claimed ineffective assistance of both trial and appellate counsel. He asserted that trial counsel's performance was constitutionally defective in choosing not to request a jury instruction on involuntary manslaughter as a death unintentionally caused by a battery. In the same vein, he argued that it was ineffective for appellate counsel to fail to raise that issue on direct appeal. We disagree.

The jury did hear an instruction on involuntary manslaughter under the alternative theory of wanton or reckless conduct. That instruction correctly informed the jury that wanton or reckless conduct is that involving "a high degree of likelihood that substantial harm will result to another." The defendant does not explain why he would have benefited from an instruction informing the jury specifically of involuntary manslaughter resulting from a battery, since the battery at issue was precisely the same conduct that the jury could have found (but apparently did not find) to be wanton or reckless. We see no reason to conclude that the failure to request the instruction on involuntary manslaughter as a battery satisfied the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).

4. Motion to reduce the verdict. The defendant moved in the alternative to reduce the murder verdict to involuntary manslaughter pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). Although the motion judge did not expressly address that issue, we see no abuse of discretion in her implicit denial of the motion.

The power to reduce a verdict is to be used "sparingly," see Commonwealth v. Woodward, 427 Mass. 659, 667 (1998), and we are not persuaded that the verdict in this case is "markedly inconsistent with verdicts returned in similar cases." Commonwealth v. Gaulden, 383 Mass. 543, 556 (1981). See, e.g., Commonwealth v. Hicks, 356 Mass. 442, 444-445 (1969) (upholding murder in second degree conviction where victim was kicked in stomach with such force as to cause death by internal bleeding); Commonwealth v. Tavares, 385 Mass. 140, 157-159 (1982) (reducing verdict from murder in first degree to murder in second degree where victim died of blunt force injuries sustained during spontaneous fight); Gilbert, 447 Mass. at 174-175 (upholding murder in second degree conviction on third prong malice theory where victim died of blunt neck trauma). Considering all of the evidence, we see no error or abuse of discretion in the judge's decision to let the jury's verdict stand.

Order denying motion for new trial affirmed.

Order denying motion to reduce verdict affirmed.

      For reasons that are not clear in the record, the transcript of proceedings on that day, September 20, 1990, was not produced until August 29, 2000, when the defendant requested it pro se in preparation for his second motion for a new trial. Thus this court did not have the benefit of that transcript in considering the defendant's direct appeal and therefore could not have evaluated the errors contained therein.

      The defendant later filed two motions for a new trial; both were denied, and both denials were affirmed in unpublished decisions pursuant to our rule 1:28. See Commonwealth v. Estep, 46 Mass. App. Ct. 1126 (1999) ; Commonwealth v. Estep, 51 Mass. App. Ct. 1111 (2001). In neither of those motions did the defendant again argue error in the malice portion of the judge's instructions to the jury, nor did he argue ineffective assistance of counsel in relation to that issue.

      The Commonwealth also maintains that the instructions considered as a whole were not erroneous. But even if (as was arguably the case here) there are as many correct as incorrect instructions on an issue, the charge as a whole will avoid triggering review for a substantial risk of a miscarriage of justice only if the "correct instructions make it clear to the jury ... that [they] carry more weight than the ... incorrect ones." Commonwealth v. Fickling, 434 Mass. 9, 20 (2001). See Commonwealth v. Lapage, 435 Mass. 480, 484-485 (2001). That did not occur here. Further, even the more nearly "correct" instructions still omitted, in two out of three instances, the requirement that the likelihood of death be not merely "plain" but also "strong." This was not "a steady progression toward a correct and thorough instruction," but instead a "repetitive oscillation between correct and incorrect instructions ...." Commonwealth v. Silva, 455 Mass. 503, 524-525 (2009).

      The general rule of issue preclusion is: "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27 (1982) ( section 27 ). "Exceptions to this general rule are stated in § 28." Ibid. See id. § 17(3) & comment c (recognizing that section 27's general rule of issue preclusion is subject to exceptions of section 28 and encompasses both direct and collateral estoppel).

      Notably, in Bolden, the legal-context-changing decision in Gordon was issued on May 13, 1997, see 42 Mass. App. Ct. at 601, before the denial of further appellate review in Bolden's direct appeal on May 27, 1997, see 425 Mass. 1103, yet even that denial of further review did not cause direct estoppel to deprive Bolden of the benefit of Gordon. Here, in contrast, the context-changing Vizcarrondo decision was issued in 1998, see 427 Mass. 392, three years after the denial of further appellate review in this defendant's direct appeal. See Commonwealth v. Estep, 420 Mass. 1105 (1995).

      Section 28 sets forth a variety of exceptions to the general rule of issue preclusion, including, e.g., where "(1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action"; or where "(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action."

      See Commonwealth v. Bunting, 401 Mass. 687, 691-692 (1988) ( sections 27 and 28 [4] ); Pierce v. Morrison Mahoney, LLP, 452 Mass. 718, 731-732 (2008) (sections 28 and 29 ); York Ford, Inc. v. Building Inspector & Zoning Administrator of Saugus, 38 Mass. App. Ct. 938, 941-942 & n.10 (1995) (section 28 [1], [5] ); Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 639-640 (1998) ( section 28 [1] ). See also Commonwealth v. Scala, 380 Mass. 500, 506-507 & n.8 (1980) (prior version of section 28 [1] ).

      This standard is subject to two qualifications: the court examines only the evidence "that is consistent with the jury's verdict" and also considers medical evidence, e.g., as to the cause of death, if "not challenged on appeal." Commonwealth v. Gilbert, 447 Mass. 161, 174, 175 n.18 (2006).

      We thus rely on an alternative ground for affirming the judge's denial of the defendant's motion for a new trial; the judge relied on the approach discussed in Gilbert, 447 Mass. at 173-174, and similar cases.

      Tripp had died by the time of trial.

      These included that the defendant had limited mental capacity and that certain statements he had made to the police should be disregarded because he did not understand the waiver of Miranda rights he had signed and was mentally incapable of resisting police suggestions or coercion.

      Nor do we have such a doubt based on the jury's request here for "a clarification of first degree murder, second degree murder and manslaughter," in response to which they received the same erroneous instruction as before. As the Proulx court said in regard to a similar claim, "[T]he case was not tried on the theory now advanced on appeal; thus any error, even if it was repeated, did not create a substantial risk of a miscarriage of justice." Proulx, 61 Mass. App. Ct. at 464.

      Proulx was decided before Gilbert added two qualifications to this standard. See Gilbert, 447 Mass. at 174, 175 n.18. See also note 8, supra.


text:
    COMMONWEALTH v. Pasquale R. COSENZA.
    17-P-48
    Appeals Court of Massachusetts.
    Entered: January 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of assault and battery upon a family or household member, in violation of G. L. c. 265, § 13M, and of strangulation or suffocation, in violation of G. L. c. 265, § 15D. On appeal, the defendant claims that there was insufficient evidence to support his strangulation conviction, his assault and battery conviction was duplicative of this strangulation conviction, and the judge erred in her jury instructions. We affirm.

1. Strangulation. When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Rather, the relevant "question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, supra at 319. Indeed, "[o]ur inquiry centers upon 'whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.' " Commonwealth v. Taskey, 78 Mass. App. Ct. 787, 798 (2011), cert. denied, 565 U.S. 1159 (2012), quoting from Commonwealth v. Brown, 401 Mass. 745, 747 (1988).

The defendant claims there was insufficient evidence to support his strangulation conviction. More particularly, he claims that the Commonwealth's evidence failed to establish that he intentionally interfered with the victim's "normal breathing or circulation of blood by applying substantial pressure on [her] throat or neck." G. L. c. 265, § 15D(a ), inserted by St. 2014, c. 260, § 24. We disagree.

The reconstructed record of the trial reveals that the defendant and the victim were engaged in a fight outside a convenience store and a nearby hotel. When police officers approached the two, one of the two officers saw the defendant push the victim and the victim "swat[ ] him away." The defendant then hit the victim in the head, and the victim threw coffee at the defendant. The defendant became "enraged and put his left arm around [the victim's] neck, 'swinging her from side to side' by the neck." The police officers identified themselves and ran toward the couple. To one of the officers, "it appeared that the defendant was choking [the victim], who "yelped" and "let out a couple of screams." The victim had "red marks" around her neck and face.

The defendant claims that this evidence does not offer a basis to conclude that his conduct interrupted the victim's breathing or blood circulation. However, in the light most favorable to the Commonwealth, the officer saw the defendant put his arm around the victim's neck, with enough force to "swing her from side to side" and to leave red marks. From this observation, it was apparent to the officer that the defendant was "choking" the victim. As a transitive verb, the first definition of "choke" in Merriam-Webster's Collegiate Dictionary 218 (11th ed. 2007), is to "check or block normal breathing of by compressing or obstructing the trachea." Moreover, "choking" is defined as "producing the feeling of strangulation." Ibid. Given the plain meaning of these words, it was a reasonable inference for the jury to conclude that the defendant interfered with the victim's "normal breathing." G. L. c. 265, § 15D(a ). See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ( "[I]nferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable"). To the extent the defendant claims that the victim's ability to "yelp" disproves strangulation, we note only that her ability to make sounds affects only the weight of the evidence and not its sufficiency because the crime is achieved by "interference" with breathing and complete strangulation is not required. G. L. c. 265, § 15D(a ).

2. Duplicative convictions. The defendant also claims that his domestic assault and battery conviction is duplicative of his strangulation conviction and, thereby, violates the double jeopardy clause. In support, the defendant argues that the assault and battery must be treated as a lesser included offense of strangulation because both convictions stem from a single indivisible course of conduct. We disagree.

The defendant makes this claim for the first time on appeal. "Where the defendant neither raised the issue of duplicative convictions before the trial court, nor filed a motion to revise or revoke the sentence under Mass.R.Crim.P. 29, 378 Mass. 899 (1979), we review his claim only to determine if a substantial risk of a miscarriage of justice occurred." Commonwealth v. Vick, 454 Mass. 418, 430 n.13 (2009).

As an initial matter, we must determine whether domestic assault and battery and strangulation are cognate offenses. If "each offense requires proof of an additional element that the other does not, 'neither crime is a lesser-included offense of the other, and the convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].' " Id. at 431, quoting from Commonwealth v. Jones, 382 Mass. 387, 393 (1981). "Where the elements differ, even if the two offenses arise from the same conduct, the defendant may be convicted of and sentenced on both offenses." Commonwealth v. Porro, 458 Mass. 526, 532 (2010). See Vick, supra.

Assault and battery on a family member is not a lesser included offense of strangulation. Strangulation does not require that the defendant and victim are in a substantive dating or familial relationship. Compare G. L. c. 265, § 13M, with G. L. c. 265, § 15D. The defendant agrees that these are not "authentic" cognate offenses. However, he nonetheless claims that they are duplicative in the sense that his conduct in the commission of these offenses was "so closely related in fact as to constitute in substance but a single crime." Commonwealth v. Morin, 52 Mass. App. Ct. 780, 787 (2001), quoting from Commonwealth v. St. Pierre, 377 Mass. 650, 662-663 (1979).

Putting aside that the two offenses were committed with separate and distinct acts, outside the context of cognate offenses, the traditional, elements-based Morey rule "remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative." Vick, supra. The "elements-based approach recognizes 'the role of the Legislature as the primary body that creates, and defines, crimes, and the fact that, in punishing related offenses, the Legislature usually intends to further distinct policies.' " Id. at 431-432 (quotation omitted). The conduct-based approach plays no role here. See Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010) (observing that "the siren song of the conduct-based approach has been silenced"). There was no error and, thus, no risk that justice miscarried.

3. Jury instructions. Finally, the defendant claims that, in addition to the judge's instructions on intentional assault and battery, the judge instructed the jury, over his objection, on an unsubstantiated reckless assault and battery theory, which left a fatal uncertainty as to which theory the jury employed to convict. We disagree. Even if the jury were required to be unanimous as to which theory it utilized, which is not true in all circumstances and may not have been the case here, see Commonwealth v. Santos, 440 Mass. 281, 288-289 (2003) ; Commonwealth v. Zanetti, 454 Mass. 449, 466-468 (2009) ; Commonwealth v. Arias, 78 Mass. App. Ct. 429, 431-433 (2010), the jury indicated its unanimous choice of intentional assault and battery on a special verdict slip. There was no error.

Judgments affirmed.

      On appeal, the Commonwealth has conceded that there was insufficient evidence of strangulation. Our independent review of the record leads us to conclude otherwise and, therefore, we do not accept the concession.

      Because the means of strangulation is defined in the disjunctive, the Commonwealth was not required to prove both interference with breathing and blood flow. See G. L. c. 265, § 15D(a ). See also Commonwealth v. Clark, 472 Mass. 120, 135 (2015) ("The word 'or' has a disjunctive meaning unless the context and the main purpose of all the words demand otherwise" [quotation omitted] ). The defendant does not claim otherwise.

      The evidence demonstrated that the defendant's hitting the victim's head (assault and battery on a family member) was separated spatially and temporally from the defendant's putting his arm around her neck and choking her (strangulation).

      Morey v. Commonwealth, 108 Mass. 433 (1871).


text:
    COMMONWEALTH v. Timothy M. LAVECK.
    16-P-998
    Appeals Court of Massachusetts.
    Entered: January 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Timothy M. Laveck, was convicted of indecent assault and battery on a person fourteen years of age or older. On direct appeal, the defendant contends that he is entitled to a new trial on grounds of ineffective assistance of counsel. We affirm.

Background. On a late summer afternoon, the defendant invited his then nineteen year old adopted sister, the victim, to go fishing with him in an area known as the Northampton Meadows. The victim testified that during the drive to the Meadows in the defendant's Jeep he offered her vodka "in two little nips," which she declined. The victim further testified that while at the Meadows, the defendant took a twenty-dollar bill out of his wallet, folded it in his hand, and "placed his left hand on [her] crotch while she was sitting in the Jeep." The victim quickly made an excuse to leave and asked the defendant to take her home.

Once home, the victim telephoned her boyfriend and recounted what had happened. He told her to call the police. Testifying as the "first complaint" witness, the boyfriend related the substance of the victim's allegations to the jury.

The defense called Easthampton police Officer Eric Alexander as a witness. Responding to the victim's call, Alexander went to her home to interview her about her sexual assault allegation. The victim told Alexander that the defendant had driven her to the Meadows. She never mentioned vodka or nips of vodka. She told Alexander what happened at the Meadows; however, Alexander did not testify about the substance of the victim's account. Testifying on his own behalf, the defendant denied offering the victim any alcohol and denied ever touching her inappropriately.

The defendant was tried before a jury in the District Court. The trial, from opening statements to jury instructions, was completed in less than three hours. After about three hours of deliberations, the jury reported they were deadlocked with a four-two split in favor of conviction. The next morning, before sending the jury out for further deliberations, the judge gave a Tuey-Rodriquez instruction. The jury returned after one and one-half hours with a guilty verdict.

Ineffective assistance of counsel. The defendant contends that two decisions of counsel amounted to ineffective assistance: the decision to call Alexander as a witness, and counsel's request that the judge give a Tuey-Rodriquez instruction after learning that the jury were split in favor of conviction.

The defendant raises his claims of ineffective assistance for the first time in this direct appeal. "[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). An ineffective assistance of counsel claim raised on the "trial record alone is the weakest form of such a challenge," Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002), and "[f]or such a claim to be successful, counsel's inadequate performance 'must appear indisputably on the trial record.' " Commonwealth v. Morales, 461 Mass. 765, 785 (2012), quoting from Zinser, supra at 811.

To prevail on his ineffective assistance of counsel claims, the defendant bears the burden of establishing that "(1) defense counsel's conduct fell 'measurably below that which might be expected from an ordinary fallible lawyer' (performance prong), and (2) he was prejudiced by counsel's conduct in that it 'likely deprived the defendant of an otherwise available, substantial ground of defence' (prejudice prong)." Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Thus, a defendant must prove both deficient performance and prejudice." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).

Moreover, "[t]actical judgments do not lead to a finding of ineffective assistance of counsel unless they are 'manifestly unreasonable.' " Commonwealth v. Jones, 42 Mass. App. Ct. 378, 380 (1997), quoting from Commonwealth v. McMaster, 21 Mass. App. Ct. 722, 734 (1986). "Only 'strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent' are manifestly unreasonable." Commonwealth v. Burgos, 462 Mass. 53, 69 (2012), quoting from Commonwealth v. Zagrodny, 443 Mass. 93, 98 (2004). The manifestly unreasonable test is "essentially a search for rationality in counsel's strategic decisions, taking into account all the circumstances known or that should have been known to counsel in the exercise of his duty to provide effective representation to the client and not whether counsel could have made alternative choices." Commonwealth v. Kolenovic, 471 Mass. 664, 674-675 (2015). See Commonwealth v. Johnson, 435 Mass. 113, 133-134 (2001), quoting from Commonwealth v. Haley, 413 Mass. 770, 777-778 (1992) ("Trial tactics which may appear questionable from the vantage point of hindsight do not amount to ineffective assistance unless 'manifestly unreasonable' when undertaken").

a. Police officer testimony. Defense counsel called Alexander as a witness in order to impeach the victim's testimony that the defendant had offered her vodka while driving to the Meadows. The defendant now argues that this decision was manifestly unreasonable because it corroborated the victim's accusation, "providing the jury with 'a second first complaint witness,' " and that any competent attorney would have known that the cost of corroborating the victim's account far outweighed any benefit from this impeachment.

The case boiled down to the defendant's and victim's conflicting reports of what happened that afternoon. Calling the victim's credibility and memory into question was essential to any defense. Thus, defense counsel argued in summation that although the victim's recollection of the events was selective, she did specifically recall the two nips of vodka, yet she failed to mention this detail to the first officer she spoke with. Counsel's choice to impeach the victim through Alexander's testimony was "clearly a matter of strategy and not manifestly unreasonable." Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 537 n.8 (2012).

Even if it could be said that defense counsel's strategic decision indisputably fell below that of an ordinary, fallible lawyer, the defendant has failed to demonstrate prejudice. While counsel was able to obtain helpful impeachment evidence from Alexander, any damage that Alexander's testimony did to the defendant's case was minimal. The jury were aware that the victim reported the assault to the police. Alexander's testimony focused on the victim's omissions and did not convey the details of her accusations. The decision to call Alexander to testify does not constitute ineffective assistance of counsel.

b. Tuey-Rodriquez instruction. After the jury reported their deadlock, the judge pondered whether to send them home for the day and "tomorrow if there's a problem, we give Tuey-Rodri[q]uez," or whether to give the instruction then and "keep them here x amount of time." Defense counsel suggested that, in any event, the judge should give the instruction before the jury deliberated further. The defendant now contends that defense counsel's urging the judge to give a Tuey-Rodriquez instruction after the jury reported a four-two split in favor of conviction was a manifestly unreasonable decision. We disagree.

As the defendant raises the issue for the first time on direct appeal, no affidavit of defense counsel is available to explain counsel's rationale. Nothing evident on the record indisputably demonstrates that counsel's decision fell below that of an ordinary fallible lawyer. We cannot rule out the possibility that counsel had a strategic reason for suggesting that the judge give the instruction before permitting the jury to continue deliberations. See Commonwealth v. Smith, 427 Mass. 245, 258 (1998).

Even if the request was manifestly unreasonable, nothing in the record indisputably demonstrates that it prejudiced the defendant's case. We recently rejected the notion that the giving of a Tuey-Rodriquez charge after the jury have reported a split in favor of conviction has any coercive effect on the jurors in the minority position. See Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 173 (2017). The defendant has made no showing that the instruction coerced a verdict in this case.

Judgment affirmed.

      The victim was twenty years old at the time of the trial; the defendant was forty-one.

      In a note to the judge, the jury reported, "The jury is currently unable to come to unanimous agreement regarding guilty or not guilty verdict in this case. The two sides are firm in their convictions, 4 finding defendant guilty & 2 not guilty. Neither side is willing to shift and change their decisions."

      See Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851) ; Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973).

      In assessing a claim of ineffective assistance, the absence of an affidavit of counsel, without an explanation, is a "negative factor." Lys, 91 Mass. App. Ct. at 722.

      The defendant suggests that the Tuey-Rodriquez charge encouraged unanimity and reduced the chance of a hung jury. The Commonwealth suggests, not without some force, that the opposite is true. The giving of the Tuey-Rodriquez instruction would imply that the judge had found a first communication of a deadlock under G. L. c. 234, § 34. See Commonwealth v. Jenkins, 416 Mass. 736, 738 (1994). Thus, defense counsel may have wanted the judge to give the Tuey-Rodriquez charge to the jury before they continued their deliberations to ensure that the next report of a deadlock would prevent the jury from being sent back into deliberations without their consent.


text:
    COMMONWEALTH v. Christopher BRUNET.
    16-P-1041
    Appeals Court of Massachusetts.
    Entered: January 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Christopher Brunet, appeals from his convictions of aggravated rape of a child, assault with the intent to rape a child, indecent assault and battery of a child under the age of fourteen, enticement of a child under the age of sixteen, and dissemination of matter harmful to a minor. We affirm.

Background. When the victim was nine years old, the defendant moved in with the victim's mother. Because the mother had an early work shift, the defendant assumed responsibility for getting the victim and her younger brothers ready to be picked up by the bus for school. Soon thereafter, he began rubbing his penis on the victim's genital area on repeated mornings, once unsuccessfully trying to penetrate her. He told the victim, a recent cancer survivor, that the mother would no longer be able to bring her to cancer treatments if she revealed what he was doing.

After a few weeks of this abuse, the victim experienced severe genital pain during a party at her aunt's home. After her mother asked her what was wrong, she reluctantly disclosed the abuse. The next day, the mother brought the victim to MetroWest Hospital. There, Dr. Susan Mahoney, a pediatric emergency room doctor, examined her and noticed swelling, redness, and abraded skin in the victim's genitalia. Six days later, Dr. Kimberly Schwartz of the University of Massachusetts Memorial Hospital examined the victim and observed superficial abrasions and signs that the injuries observed by Dr. Mahoney had healed.

1. Witness bias. The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights entitle a defendant to cross-examine prosecution witnesses for bias or prejudice. Commonwealth v. Avalos, 454 Mass. 1, 6-7 (2009). A judge may not "bar all inquiry into the subject" if the defendant demonstrates "a possibility" of bias. Commonwealth v. Magadini, 474 Mass. 593, 604 (2016). Nonetheless, a judge retains broad discretion both in "[d]etermining whether the evidence demonstrates bias" and in otherwise imposing reasonable restrictions on cross-examination. Avalos, supra at 7, quoting from Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993). See Commonwealth v. Garcia, 470 Mass. 24, 35 (2014). "A defendant must make a 'plausible showing' of alleged bias, with a factual basis for support"; otherwise, the judge may restrict or entirely exclude the inquiry. Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), quoting from Commonwealth v. Tam Bui, 419 Mass. 392, 401, cert. denied, 515 U.S. 861 (1995). See Commonwealth v. Johnson, 431 Mass. 535, 538 (2000) (affirming exclusion of cross-examination where "the import of the question was too attenuated to create a remote possibility of ... bias"). On appeal, the defendant bears the burden of showing that the judge abused his discretion in restricting cross-examination, Garcia, supra, and must establish that error from the record. Avalos, supra.

The defendant did not meet his burden here. The judge did not bar the defendant from all inquiry into his theory of bias on cross-examination. Rather, the judge specifically allowed the defendant to question the victim's mother on (1) the prior involvement of the Department of Children and Families (DCF) with her children, including the finding that her children were in need of services; and (2) the difficulty of raising her three children as a single mother. See Avalos, 454 Mass. at 7-8. Contrast Commonwealth v. Elliot, 393 Mass. 824, 826-828, 832 (1985) (reversing on the entire exclusion of witness bias questioning).

The judge acted within his discretion in restricting further questioning given the lack of supporting evidence. The defendant's theory rested on incidents with DCF that occurred over two years prior to the allegations. There was no ongoing DCF involvement when the instant allegations were brought, and no evidence suggested further involvement by DCF was likely to occur. In particular, there was no evidence that the victim's mother ever feared, or had any reason to fear, losing custody of her children.

In this regard, the defendant's reliance on Commonwealth v. Kowalski, 33 Mass. App. Ct. 49 (1992), is misplaced. There, the victim specifically testified that her boy friend had beaten her, providing a plausible basis to demonstrate her existing fear of the boy friend as the motive for fabricating rape charges. Id. at 51-52. The judge could find that the defendant's theory in this case was not similarly plausible. The record fails to establish a logical connection between the discovery of the victim's physical condition and an immediate need for the mother to fabricate rape charges to avoid losing custody of her children. The defendant's theory that the mother, acting on a remote, unprompted fear, would take the drastic step of accusing the defendant of such a horrific crime fell into the realm of speculation. The judge did not err, accordingly, by restricting the defendant's inquiry on the subject.

2. Vouching by expert witnesses. A judge has "broad discretion with respect to the admissibility of expert testimony," Commonwealth v. Morris, 82 Mass. App. Ct. 427, 431 (2012), quoting from Commonwealth v. Mamay, 407 Mass. 412, 421 (1990), and the "decision to admit expert testimony is subject to review only for abuse of discretion." Commonwealth v. Roderiques, 462 Mass. 415, 428 (2012). Although the defendant failed to properly object to some of the challenged testimony in this case, for simplicity's sake we review all of the claimed errors as if preserved, as they are without merit.

Testimony is inadmissible where any witness, including an expert, is asked to assess the credibility of another witness's testimony. Commonwealth v. Quinn, 469 Mass. 641, 646 (2014). Although expert testimony "on the typical symptoms or signs and general behavioral characteristics of sexually abused children is admissible and does not, of itself, constitute an opinion on the credibility of the complaining witness," Commonwealth v. Colon, 49 Mass. App. Ct. 289, 291 (2000), an expert "may not 'directly opine on whether the victim was in fact subject to sexual abuse,' or directly refer or compare the behavior of the complainant to general behavioral characteristics of sexually abused children." Quinn, supra at 647, quoting from Commonwealth v. Federico, 425 Mass. 844, 849 (1997). Even without direct comparison, expert testimony "may be inadmissible where a reasonable jury would think the expert was implicitly vouching for the credibility of the complainant." Quinn, supra. Where, however, the expert testimony is "appropriately generalized," Morris, 82 Mass. App. Ct. at 434, or concerns "physical signs of sexual abuse," instead of comparative "patterns of disclosure" by sexual abuse victims, it is admissible. Colon, 49 Mass. App. Ct. at 292. See Commonwealth v. Colon, 64 Mass. App. Ct. 303, 312 (2005) (expert may testify that injuries are " 'consistent with' penetration").

a. Dr. Schwartz's testimony. The judge properly admitted the testimony of Dr. Schwartz. Regarding her credentials as a board-certified child abuse pediatrician, the testimony properly established her qualifications, see Morris, 82 Mass. App. Ct. at 431, and did not concern, let alone comment on, the victim's credibility. Her testimony on potential causes of the victim's injuries was also admissible. Taking a victim's "history" referred to general medical procedure, not the specific victim. See Morris, supra at 433-434. Commenting that a "roll of carpet" could cause frictional burns provided nothing beyond an alternative, hypothetical interpretation of the victim's physical injuries. See Colon, 49 Mass. App. Ct. at 292-293. Similarly, the statement that "most children won't do things that hurt them intentionally" neither concerned sexual abuse, see ibid., nor referred to specific behavior of sexually abused children, but rather to children in general. See Morris, supra at 433-434. Contrast Quinn, 469 Mass. at 647-648 (testimony by treating therapist about postabuse behavior of abused children constituted implicit vouching under the circumstances). Testimony that "an intact hymen is normal and doesn't mean nothing happened" was also admissible, as it "did no more than give the jury information concerning the medical interpretation of an absence of any physical evidence of penetration; namely, such a finding does not exclude that sexual abuse occurred." Colon, 49 Mass. App. Ct. at 293. See Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 570 (2015) (no error to allow expert testimony "conveying to the jury that it was merely possible the abuse occurred but not that it had occurred").

b. Dr. Mahoney's testimony. The judge also properly admitted the testimony of Dr. Mahoney. First, the mere fact that Dr. Mahoney referred the victim to the University of Massachusetts child protection team did not impermissibly imply that Dr. Mahoney believed the victim's account, given that (1) Dr. Mahoney stated she was not an expert in child sexual assault; (2) her referral came after a medical examination revealed physical injuries; and (3) she clarified that the University of Massachusetts team specialized in "potential child abuse cases" (emphasis supplied). Second, Dr. Mahoney properly opined that the "degree of excoriation" and "atrophic changes" found on the victim exceeded the amount from a "typical child" who itched or scratched herself. This was proper testimony about the significance of the victim's physical condition and was similarly the subject of considerable testimony by the defense expert. See Colon, 49 Mass. App. Ct. at 293.

3. Improper opinion evidence. "Although it is for the court to determine whether a witness is qualified to testify as an expert, there is no requirement that the court specifically make that finding in open court ...." Commonwealth v. Richardson, 423 Mass. 180, 184 (1996), quoting from United States v. Bartley, 855 F.2d 547, 552 (8th Cir. 1988). Rather, "[t]he crucial issue is whether the witness has sufficient education, training, experience, and familiarity with the subject matter of [her] testimony," and the decision "will not be disturbed absent an abuse of discretion." Morris, 82 Mass. App. Ct. at 431, quoting from Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 642 (1997). Given Dr. Mahoney's qualifications and extensive experience as a board-certified, emergency room pediatric doctor, the judge did not err by allowing such opinion testimony from the witness.

4. Ineffective assistance of counsel. To make a successful claim of ineffective assistance of counsel, the defendant "must demonstrate that (1) defense counsel's conduct fell 'measurably below that which might be expected from an ordinary fallible lawyer' ... and (2) he was prejudiced by counsel's conduct in that it 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Although it is a "well-established principle that the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial[,]" Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), we are able to evaluate the defendant's claim that the apparently inadvertent redaction of the victim's medical records deprived the defendant of a substantial ground of defense; it did not.

Under G. L. c. 233, § 79, hospital medical records are exempted from the common-law rule against hearsay where the recorded statement relates "to the treatment and medical history of such cases." Commonwealth v. Cole, 473 Mass. 317, 321 (2015), quoting from c. 233, § 79. The mother's statement in the victim's medical records denying prior involvement with DCF is hearsay, see Commonwealth v. Cassidy, 470 Mass. 201, 216-217 (2014), and does not bear any apparent relationship to the victim's treatment, diagnoses, or medical history. "Thus, without testimony or additional evidence," the mother's statement was not admissible under the hearsay exception provided by § 79. Commonwealth v. Irene, 462 Mass. 600, 616 (2012). Because the admission of the unredacted records would have been in error, the defendant cannot show he was prejudiced by his counsel's conduct. Cf. Commonwealth v. Domino, 465 Mass. 569, 578 (2013) (analyzing claim of prejudice while disregarding "the likelihood of a legal misstep by the judge").

5. Leading questions and other errors. The decision to allow leading questions on direct examination, especially when handling young children, is well within the discretion of the trial judge. See Commonwealth v. Ridge, 455 Mass. 307, 326 (2009) ; Commonwealth v. Federico, 70 Mass. App. Ct. 711, 718 (2007). We discern no error here; the record reveals nothing improper about the questioning, nor in the breaks allowed by the judge. As the victim specifically stated that she was testifying based on her own memory and was subject to cross-examination on what happened during the breaks, there was no indication of unfairness.

Finally, the prosecutor did not misstate the evidence in closing argument. Both the victim and the mother testified that the victim was scared to disclose the defendant's abuse to her mother, but did in fact do so. The prosecutor properly argued that the victim and the mother were consistent on this and was entitled to choose the mother's version of the disclosure for quotation. Commonwealth v. Urrea, 443 Mass. 530, 546 (2005).

Judgments affirmed.


text:
    In the Matter of Richard Sunday IFILL, Appellant, v. Warden SAUNDERS, etc., et al., Respondents.
    Motion No: 2018-160
    Court of Appeals of New York.
    Decided March 29, 2018
    Motion for leave to appeal denied.


text:
    Nella MANKO, Appellant, v. LENOX HILL ANESTHESIOLOGY, PLLC, et al., Respondents.
    Motion No: 2018-49
    Court of Appeals of New York.
    Decided March 29, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    The PEOPLE etc., Respondent, v. Richard NOEKER, Appellant.
    2018-56
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    The PEOPLE etc., Respondent, v. Robert O'CONNOR, Appellant.
    2018-114
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied.


text:
    In the MATTER OF SEAN P.
    Onondaga County Department of Children and Family Services, Respondent; v. Brandy P., Appellant, et al., Respondent.
    2018-222
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    Juan QUIJANO, Respondent, v. AMERICAN TRANSIT INSURANCE COMPANY, Defendant,
    First Eight Grand Corp. et al., Appellants.
    2018-29
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    The PEOPLE etc., Respondent, v. Eric QUINONES, Appellant.
    Motion No: 2018-159
    Court of Appeals of New York.
    Decided March 29, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


author: Judge Feinman took no part.

text:
    In the Matter of ARLINGTON CENTRAL SCHOOL DISTRICT, Respondent, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Appellant.
    Motion No: 2018-96
    Court of Appeals of New York.
    Decided March 29, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.
   Judge Feinman took no part.


text:
    The PEOPLE etc., Respondent, v. Billy Joe ARNOLD, Appellant.
    2018-166
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied.


text:
    The PEOPLE etc., Respondent, v. Richard James AUGSBURY, Appellant.
    Motion No: 2018-168
    Court of Appeals of New York.
    Decided March 29, 2018
    Motion for leave to appeal denied.


text:
    Arthur BRATONE, et al., Appellants, v. Linda CONFORTI-BROWN et al., Respondents.
    2018-66
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    The PEOPLE etc., Respondent, v. Van Phu BUI, Appellant.
    2018-139
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    Kristin DUPREE, Appellant, v. Oliver Raymond VOORHEES III, Defendant,
    Karyn A. Villar et al., Respondents.
    Motion No: 2018-80
    Court of Appeals of New York.
    Decided March 29, 2018
    Motion for leave to appeal denied.


text:
    Mark FREEDMAN, etc., Plaintiff, v. Uri HASON, Appellant;
    Chicago Title Insurance Company, Nonparty-Respondent.
    2018-23
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied.


text:
    The PEOPLE, etc., EX REL. Cedric GOLSTON, Appellant, v. Michael KIRKPATRICK, etc., Respondent.
    Motion No: 2018-104
    Court of Appeals of New York.
    Decided March 29, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of Shawn GREEN, Appellant, v. Anthony J. ANNUCCI, etc., et al., Respondents.
    2018-108
    Court of Appeals of New York.
    March 29, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the MATTER OF NEW YORK CITY ASBESTOS LITIGATION.
    Charles D. North, etc., Respondent, v. Air & Liquid Systems Corporation, etc., et al., Defendants,
    National Grid Generation, LLC, Respondent,
    O'Connor Constructors, Inc., Appellant.
    2018-164
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.
   Judge Feinman took no part.


text:
    Pauline OKPO, Appellant, v. CITY OF NEW YORK, Defendant,
    District Council 37 et al., Respondents.
    2018-202
    Court of Appeals of New York.
    Decided April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    In the Matter of Michael PARIETTI et al., Appellants, et al., Petitioner, v. TOWN OF RAMAPO, et al., Respondents.
    2018-201
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of Joel PROVIDENCE, Appellant, v. Anthony ANNUCCI, etc., Respondent.
    2018-197
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied.


text:
    The PEOPLE etc., Respondent, v. Gregory SANTOGUAL, Appellant.
    2018-141
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied.


text:
    TAG MECHANICAL SYSTEMS, INC., Respondent, v. DWORKIN CONSTRUCTION CORP. (USA), Appellant.
    2018-147
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied.


text:
    NORTH v. AIR & LIQUID SYS. CORP.
    Court of Appeals of New York.
    Decided April 3, 2018
    Motion For Leave to Appeal denied


text:
    APOGEE HANDCRAFT, INC., Respondent, v. VERRAGIO, LTD., Appellant.
    Motion No: 2018-129
    Court of Appeals of New York.
    Decided on April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.
   Judge Feinman took no part.


text:
    In the Matter of STATE of New York, Respondent, v. DAVID B., Appellant.
    Motion No: 2018-149
    Court of Appeals of New York.
    Decided April 3, 2018
    Motion for leave to appeal denied.


text:
    Patricia BARNES, etc., Appellant, v. STATE of New York, Respondent.
    2018-134
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    In the Matter of Patricia E. CHU, Appellant, v. Robert J. JONES, etc., et al., Respondents.
    2018-130
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    ENCORE PROPERTIES OF ROCHESTER, LLC, Appellant, v. WELLS FARGO BANK, N.A., etc., Respondent, et al., Defendant.
    2018-144
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    Cynthia L. CHAN, Appellant, v. ONYX CAPITAL, LLC, Defendant,
    SRP 2012-4, etc., Respondent.
    2018-196
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    Cheryl JACOBUS, Appellant, v. Donald J. TRUMP, et al., Respondents.
    2018-97
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    Harvey KEITEL, Appellant, v. E*TRADE FINANCIAL CORPORATION, Respondent.
    2018-110
    Court of Appeals of New York.
    April 3, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    The PEOPLE etc., Respondent, v. Samuel MORALES, Appellant.
    2018-198
    Court of Appeals of New York.
    Decided April 3, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the Matter of KRISTINA L., Respondent, v. ELIZABETH M., Appellant.
    2018-133
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    The PEOPLE etc., Respondent, v. Luis LEMA, Appellant.
    2018-187
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    In the MATTER OF KALAH O., a Person Alleged to be a Juvenile Delinquent, Appellant.
    2017-1204
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.
   Judge Feinman took no part.


text:
    In the Matter of Kermitt PARKER, Appellant, v. Greta HENNESSEY, Respondent.
    2018-74
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    Vijayapraveena PARUCHURI, Respondent, v. Jahlani AKIL, Appellant.
    2018-77
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of QUEENS COLLEGE SPECIAL PROJECTS FUND, INC., Respondent, v. Samara NEWMAN, etc. et al., Appellants.
    2018-1
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    In the Matter of RAVENA-COEYMANS-SELKIRK CENTRAL SCHOOL DISTRICT, Appellant, v. TOWN OF BETHLEHEM et al., Respondents, et al., Respondent.
    2018-72
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    The PEOPLE etc. EX REL. Sidiki WEAY, Appellant, v. Daniel MARTUSCELLO, etc., Respondent.
    2018-84
    Court of Appeals of New York.
    Decided March 22, 2018
    Motion for leave to appeal denied.


text:
    GUTIERREZ v. VARGAS
    Court of Appeals of New York.
    Decided March 22, 2018
    MOTION FOR LEAVE TO APPEAL DENIED


text:
    The PEOPLE etc., Respondent, v. Eddy ARISTILDE, Appellant.
    2018-14
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the MATTER OF JASON B., et al.
    Yates County Department of Social Services, Respondent; v. Gerald B., Appellant, et al., Respondent.
    2017-1223
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    In the MATTER OF KH'NIAYAH D.
    Onondaga County Department of Children and Family Services, Respondent; v. Niani J., Appellant, et al., Respondent.
    2018-65
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the Matter of Richard B. DEVITA et al., Respondents, v. Marie DEVITA, Appellant.
    (And Two Other Proceedings)
    2018-155
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the MATTER OF May DINGER, Deceased.
    David Thompson, Jr., Respondent, v. Mary Ann Dinger Gunther, Appellant.
    2017-1207
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    The PEOPLE etc., Respondent, v. Nelson GENAO, Appellant.
    2018-53
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    The PEOPLE etc., Respondent, v. Roberto GONZALEZ, Appellant.
    2018-140
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    The PEOPLE etc., Respondent, v. Peter HABERSHARN, Appellant.
    2018-31
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the Matter of Robert HAIGLER, Appellant, v. William KEYSER, etc., Respondent.
    2018-50
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of Jonathan PERRY et al., Appellants, v. PATRICIA A. BRENNAN QUALIFIED PERSONAL RESIDENCE TRUST, etc., et al., Respondents.
    Motion No: 2018-128
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    In the Matter of RETAIL ENERGY SUPPLY ASSOCIATION, et al., Appellants, v. PUBLIC SERVICE COMMISSION OF the STATE of New York, et al., Respondents.
    (And Two Other Related Proceedings.)
    Motion No: 2018-99
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal granted.


text:
    In the Matter of Sholom SCHEINER, Respondent, v. Yehudit HENIG, Appellant.
    2018-105
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied.


text:
    Anil SEHGAL et al., Respondents, v. WWW.NYAIRPORTSBUS.COM, INC. et al., Appellants.
    Motion No: 2018-109
    Court of Appeals of New York.
    Decided on March 27, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of Joel THORN, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
    Motion No: 2018-92
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied.


text:
    In the MATTER OF the DISSOLUTION OF TWIN BAY VILLAGE, INC.,
    Vladimir Chomiak et al., Respondents; v. Tatiana Chomiak Kasian, etc. et al., Appellants.
    Motion No: 2018-60
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    The PEOPLE etc., Respondent, v. Salamea WILSON, Appellant.
    Motion No: 2018-82
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied.


text:
    The PEOPLE etc., Respondent, v. Paul WOODSON, Appellant.
    Motion No: 2018-101
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the MATTER OF SARAH J. A.
    Putnam County Department of Social Services, Respondent, v. Ramadan G. O.-A., Appellant.
    2018-68
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of Luetricia SELLERS, Appellant, v. Cornell BROWN, Respondent.
    2018-135
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of Carlos ABREU, Appellant, v. Tina M. STANFORD, etc., et al., Respondents.
    Motion No: 2018-33
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    In the Matter of Rochylin T. VARGAS, Respondent, v. Yali GUTIERREZ, Appellant. (And Another Proceeding)
    2018-52
    Court of Appeals of New York.
    Decided March 22, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of Debora WINN, Respondent, v. Naim DIAZ, Appellant.
    2018-102
    Court of Appeals of New York.
    March 22, 2018
    Motion for leave to appeal denied.


text:
    In the Matter of STATE of New York, Respondent, v. JAMEEK B., Appellant.
    2018-9
    Court of Appeals of New York.
    March 27, 2018
    Motion for leave to appeal denied.


text:
    Amy BRAUNSTEIN, Respondent, v. David J. BRAUNSTEIN, Appellant.
    Motion No: 2018-93
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    Eve DEMIAN, Appellant, v. Stephanie CALMENSON, Respondent.
    Motion No: 2018-118
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    The PEOPLE etc., Respondent, v. Eric HEADWELL, Appellant.
    2018-75
    Court of Appeals of New York.
    March 27, 2018
    Motion for leave to appeal denied.


text:
    HERITAGE PARTNERS LLC, et al., Appellants, v. STROOCK & STROOCK & LAVAN LLP, Respondent.
    Motion No: 2018-48
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied.


text:
    The PEOPLE etc., Respondent, v. Albert CARINI, Appellant.
    Motion No: 2018-90
    Court of Appeals of New York.
    Decided on March 27, 2018
    Motion for leave to appeal denied.
    Motion for poor person relief dismissed as academic.


text:
    GENEVA ASSOCIATION OF RETIRED TEACHERS, et al., Appellants, v. GENEVA CITY SCHOOL DISTRICT, Respondent.
    Motion No: 2018-32
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    In the Matter of NATIONAL ENERGY MARKETERS ASSOCIATION, et al., Appellants, v. NEW YORK STATE PUBLIC SERVICE COMMISSION, Respondent. (And Two Other Related Proceedings.)
    2018-100
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal granted.


text:
    In the Matter of VILLAGE OF GARDEN CITY, Appellant, v. PROFESSIONAL FIREFIGHTERS ASSOCIATION OF NASSAU COUNTY, LOCAL 1588, Respondent.
    Motion No: 2018-88
    Court of Appeals of New York.
    Decided March 27, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    Camille WILLIAMSON, Appellant, v. LONG ISLAND UNIVERSITY, Respondent.
    Motion No: 2018-111
    Court of Appeals of New York.
    Decided on March 27, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


author: Wilson, J.

text:
    PEOPLE v. AMANKWAH (Kofi)
    Court of Appeals of New York.
    March 21, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Stein, J.

text:
    PEOPLE v. ABDALLAH (Muhammad)
    Court of Appeals of New York.
    March 21, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: DiFiore, J.

text:
    PEOPLE v. ANDUJAR (Cesar)
    Court of Appeals of New York.
    March 21, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ALSTON (Timothy)
    Court of Appeals of New York.
    March 19, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ALMANZAR (Rafael)
    Court of Appeals of New York.
    March 19, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Rivera, J.

text:
    PEOPLE v. ARMENDARIZ (Ramiro)
    Court of Appeals of New York.
    March 16, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Garcia, J.

text:
    PEOPLE v. ATKINS (Edward)
    Court of Appeals of New York.
    March 14, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Dismissed


author: Fahey, J.

text:
    PEOPLE v. BABY
    Court of Appeals of New York.
    March 14, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Feinman, J.

text:
    PEOPLE v. AFOLABI (Kayode)
    Court of Appeals of New York.
    March 13, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BAILEY (Carrien)
    Court of Appeals of New York.
    March 12, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ABDUR-RAHMAN (Rashad)
    Court of Appeals of New York.
    March 30, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ALLEN (Nicholas)
    Court of Appeals of New York.
    March 29, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ALFIERE (Henri)
    Court of Appeals of New York.
    March 29, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. AMAY (Paul)
    Court of Appeals of New York.
    March 29, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ARPI (Pablo)
    Court of Appeals of New York.
    March 29, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied Reconsideration


text:
    PEOPLE v. BAILEY (Wilbur)
    Court of Appeals of New York.
    March 29, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ADGER (Gerald)
    Court of Appeals of New York.
    March 22, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CAMBRIDGE (Devin)
    Court of Appeals of New York.
    March 22, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CAMPBELL (Glen)
    Court of Appeals of New York.
    March 21, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CALDERON (Rolando)
    Court of Appeals of New York.
    March 21, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BALDWIN (Taiwan)
    Court of Appeals of New York.
    March 21, 2018
   Garcia, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CARTER (James)
    Court of Appeals of New York.
    March 16, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Dismissed