author: LOWY, J.

text:
    COMMONWEALTH v. Edwin GOITIA.
    SJC-11572
    Supreme Judicial Court of Massachusetts, Hampden..
    Argued April 6, 2018 Decided October 18, 2018
    Theodore F. Riordan (Deborah Bates Riordan also present), Quincy, for the defendant.
    Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.
   LOWY, J.

Just after 10 P.M. on July 29, 2009, six month old Naiden Goitia (child) was pronounced dead at a hospital in Holyoke. The defendant, Edwin Goitia, was indicted for his murder. A jury in the Superior Court convicted the defendant of murder in the first degree on the theory of extreme atrocity or cruelty. The defendant appeals from his conviction and from the denial of his motion for a new trial.

The defendant's arguments in his direct appeal are nearly identical to those he asserted in his motion for a new trial. He argues that defense counsel rendered ineffective assistance at trial by failing to impeach the credibility of the child's mother adequately, including that she also had been indicted for the child's murder, and that she was testifying pursuant to a cooperation agreement with the Commonwealth. The defendant also claims that his right to due process was violated by the Commonwealth's failure to disclose that it allegedly agreed to dismiss criminal charges against the mother's father and step mother in exchange for the mother's cooperation; that the Commonwealth failed to produce certain photographs and a video recording; that evidence of injuries the child sustained in February, 2009, was admitted improperly and that a limiting instruction should have been given; and that the prosecutor improperly vouched for the credibility of the child's mother in her closing argument. We discern no reversible error, and decline to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt or order a new trial. Accordingly, we affirm the defendant's conviction of murder in the first degree and affirm the denial of the motion for a new trial. Background. We summarize the facts as the jury could have found them, reserving certain details for later discussion. See Commonwealth v. Mendez, 476 Mass. 512, 513, 69 N.E.3d 968 (2017).

The mother and the defendant were involved in a relationship, and she became pregnant. Although she briefly stayed with the defendant, in approximately November, 2008, the mother moved into a third-floor apartment with another woman (roommate). The defendant came by the apartment "sometimes." After the child was born in January, 2009, the defendant was an infrequent visitor to the apartment.

In February, the child was hospitalized with bruises and other injuries on his body. The child was taken from the mother's custody by the Department of Children and Families (department) and ultimately placed in the custody of the maternal grandfather. After the mother completed parenting classes, she was allowed daily unsupervised visits with the child. In June, 2009, she took the child to live with her without informing the department.

During the one to two months before the child's death, the roommate, and a neighbor who lived in the building, saw the child almost every day. The neighbor became "fast friends" with the mother, and she babysat for the child several times. The child was a good, loving, happy, smiling, "bubbly" baby boy, who laughed a lot. When the defendant visited, however, the child screamed, cried, was "shaking and red, like he had been crying," and his lips would quiver.

On the day he died, several witnesses testified that the six month old behaved like "his normal self, happy and playful." After being given his dinner at the neighbor's apartment, he, his mother, and the neighbor and her children went to a nearby store for ice cream, where he interacted with the store employee, who testified that the child was normal in every respect, and smiled.

As the group returned to the apartment building between 6 and 6:45 P.M. , they met the defendant, who told the mother that he wanted to walk with her to a local liquor store to get something for them to drink that night. He wanted to leave on the walk soon, but wanted to put the child to bed first. He declined to take the child along on the walk. Even though it was "really hot" outside, the defendant refused multiple offers of a ride, saying, "I want to walk with [the mother]." Although the neighbor offered to babysit the child in her apartment, the defendant refused, saying, "We will do the [baby] monitor like last time."

The defendant carried the child upstairs to the mother's apartment, while the mother remained downstairs; the roommate was not at home. After about five minutes, the mother went upstairs to retrieve something, returning within two minutes. Meanwhile, the roommate returned home, and she also went upstairs while the defendant was there, staying just long enough to get some clothes. She saw the defendant standing in the living room, holding the child so that his head was on the defendant's shoulder, with a blanket covering all but his legs, which were "hanging out," or "dangling." She moved to touch the child, but the defendant turned away without her being able to see the child's face. The defendant then walked into the mother's room and closed the door.

Within one minute of returning downstairs, the roommate went back to the apartment to retrieve her forgotten keys. The mother's bedroom door was still closed. Shortly after the roommate left, the defendant came downstairs. He reported that the child had not cried, was sleeping, and that he was "knocked out." When asked for the keys to the mother's apartment so that the door could be locked, the defendant went upstairs by himself, and returned "very quickly." He asked to use the neighbor's bathroom, and then he and the mother left for the liquor store. He never gave the neighbor the keys to the mother's apartment so that she could check on the child.

At approximately 7:30 P.M. , the mother and the defendant arrived at the liquor store. While the mother chatted with the store employee, the defendant remained standing, three or four feet behind her, by the door, standoffish and aloof, pacing and glaring, as if he were ready to leave.

While the defendant and the mother were away, the neighbor sat in the hallway of her apartment, where she could hear if the child made any sound; she heard nothing. Eventually, the mother appeared at the neighbor's apartment, reporting that she and the defendant had returned. A short while later, between 8 and 8:30 P.M. , the neighbor went up to the mother's apartment to return the child's diaper bag and some toys. When she went inside, the mother and the defendant were sitting on separate couches in the living room. The defendant seemed jumpy or antsy, like he could not sit still. Before she left, the neighbor asked to "peek at [the child]," but the defendant responded, "No, you might wake him up."

At about 10 P.M. , the mother's father (grandfather), arrived at the apartment building in his truck. The grandfather and a different neighbor who had been outside ran up to the mother's apartment. When they entered, the mother and the defendant were on either side of the child, who was on the floor, not breathing. The neighbor picked him up and started cardiopulmonary resuscitation (CPR). Instead of telephoning 911, the grandfather began driving the group to the hospital while the neighbor continued to perform CPR. The mother and the defendant sat in the backseat. The child remained limp, his condition unchanged. During the drive, the defendant stated, "They're going to blame me. I've been drinking." Before reaching the hospital, the grandfather stopped the truck so that the defendant could get out.

The child was pronounced dead a short time after arriving at the hospital. No external signs of trauma were observed. When an autopsy was performed, the cause of death was determined to be craniocervical trauma resulting from two distinct blunt force traumatic injuries -- a force comparable to that sustained from a fall from a five-story building or in a motor vehicle crash. The Commonwealth presented the testimony of a forensic pathologist and the medical examiner who examined the child's brain injuries and skull fractures, and of a pediatrician with a subspecialty in child abuse pediatrics, which demonstrated that the injuries occurred the night the child died. In addition, because of the severity of the injuries, the child would not have acted normally after sustaining them. Instead, within minutes the child would have developed symptoms ranging from irritability, unusual balance, difficulty remaining awake, vomiting, seizures, changes in breathing, and, ultimately, coma. A caregiver would have recognized that the child was not well. Because the child had exhibited normal behavior at approximately 7 P.M. , and was discovered unresponsive at 10 P.M. , the injuries were sustained between those hours.

The defense stressed that many others had more access to the child than the defendant did. Through the defendant's medical expert, the defendant sought to show that the child suffered his injuries prior to the night he died. However, his expert also admitted that the multiple fractures resulted from two separate impacts to the child's head and appeared fresh, and that the child would "probably not" have acted normally after receiving the skull fractures.

After the defendant was convicted, he filed a motion for a new trial. The motion judge, who was also the trial judge, denied the motion.

Discussion. Where we consider, as we do here, a defendant's direct appeal from a conviction of murder in the first degree together with an appeal from the denial of a motion for a new trial, we review the whole case under G. L. c. 278, § 33E. See Commonwealth v. Alicea, 464 Mass. 837, 840, 985 N.E.2d 1197 (2013). We give "special deference to factual determinations made by [the] motion judge who also was the trial judge." Id., quoting Commonwealth v. Leng, 463 Mass. 779, 781, 979 N.E.2d 199 (2012).

1. Ineffective assistance of counsel. Because the defendant was convicted of murder in the first degree, we evaluate his claim of ineffectiveness of counsel to determine whether there exists a substantial likelihood of a miscarriage of justice. See Alicea, 464 Mass. at 845, 985 N.E.2d 1197, citing Commonwealth v. Gonzalez, 443 Mass. 799, 808, 824 N.E.2d 843 (2005). In this context, "we consider a defendant's claim even if the action by trial counsel does not constitute conduct 'falling measurably below that ... of an ordinary fallible lawyer.' " Gonzalez, supra at 808-809, 824 N.E.2d 843, quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517, 597 N.E.2d 1037 (1992). Our task is to determine "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014). Where the claimed error is one involving trial counsel's tactical or strategic decisions, see Commonwealth v. LaCava, 438 Mass. 708, 713, 783 N.E.2d 812 (2003), those decisions "will not be deemed ineffective unless manifestly unreasonable when made." Commonwealth v. Vao Sok, 435 Mass. 743, 758, 761 N.E.2d 923 (2002).

The defendant argues that counsel was ineffective in failing to cross-examine the mother concerning her cooperation agreement with the Commonwealth or effectively to expose a number of lies and inconsistencies in her testimony.

The agreement stated that, in exchange for the mother's provision of truthful and complete information, the Commonwealth would "engage in a results oriented review of the nature, extent and significance of [her] cooperation." It also provided:

"In exchange for your cooperation and assistance, this office will reflect the results of your cooperation and your role in bringing them about, in its charging and/or sentencing decisions. At your request, this office will bring the nature and extent of your cooperation to the attention of the court. This office agrees to be reasonable in its exercise of discretion in charging and sentencing recommendations under this agreement. This office will not give you any consideration in its charging and/or sentencing decisions if your cooperation fails to produce significant results."

Although he was aware of the agreement, defense counsel inexplicably failed to impeach the mother with either its existence or contents. This was error. In her memorandum of decision and order denying the defendant's motion for a new trial, the judge accepted co-counsel's admission that the decision was an "omission" rather than a tactical decision. She concluded, however, that the evidence of the defendant's guilt was overwhelming and that the error did not give rise to a substantial likelihood of a miscarriage of justice. We agree.

Although informing the jury of the existence of a cooperation agreement would have been a "powerful impeachment tool," the error in failing to do so does not, by itself, require a new trial. See Commonwealth v. Ellison, 376 Mass. 1, 23, 379 N.E.2d 560 (1978) ; Commonwealth v. O'Neil, 51 Mass. App. Ct. 170, 180-181, 744 N.E.2d 86 (2001), S.C., 436 Mass. 1007, 765 N.E.2d 767 (2002) ; Mass. G. Evid. § 1104 (2018). To require reversal, the error must have been "likely to have influenced the jury's conclusion" (citation omitted). Commonwealth v. Mercado, 466 Mass. 141, 147, 993 N.E.2d 661 (2013). Here, the mother's testimony was not essential to the Commonwealth's case.

The Commonwealth focused on proving that the fatal injuries were sustained the night the child died, and establishing that only the defendant was alone with him at the time he was being put to bed. The Commonwealth offered evidence from multiple medical experts that the child sustained two separate skull fractures that were caused by blunt force impacts, and that these impacts occurred between 7 and 10 P.M. on the night the child died. In addition, other witnesses -- who were unhampered by discernable bias -- corroborated the mother's account that only the defendant was alone with the child that evening, and that the child had appeared happy and healthy before the defendant arrived, including during the visit to the ice cream store, where the employee observed him to be perfectly normal and smiling. The defendant was described as "standoffish" and unwilling to permit others to see the baby's face, at a time the child was reportedly sleeping. Further, the defendant emphatically denied being alone with the child, despite substantial evidence to the contrary. In short, the Commonwealth's case was compelling, separate and distinct from the credibility of the mother's testimony.

Moreover, we have reviewed the evidence without relying on any of the mother's uncorroborated testimony, and conclude that any failure to impeach the mother with evidence of her written cooperation agreement with the Commonwealth did not create a substantial likelihood of a miscarriage of justice. Without the mother's testimony, the remaining evidence supporting the defendant's conviction was overwhelming. In these circumstances, we cannot conclude that a more expansive cross-examination would have "accomplished something material for the defense" (citation omitted), Commonwealth v. Egardo, 426 Mass. 48, 52, 686 N.E.2d 432 (1997), or that the verdict would have been different. See Commonwealth v. Shea, 401 Mass. 731, 744, 519 N.E.2d 1283 (1988), citing Commonwealth v. Florentino, 396 Mass. 689, 690, 488 N.E.2d 403 (1986). Contrast O'Neil, 51 Mass. App. Ct. at 180, 744 N.E.2d 86 (case depended entirely on credibility).

Concerning the defendant's argument that his counsel was ineffective for not eliciting the mother's bias and motive to lie, there was no error. Defense counsel was successful in impeaching the mother's credibility and in conveying to the jury that the mother had a motive to lie.

"[A] defendant is entitled to reasonable cross-examination of a witness for the purpose of showing bias," Commonwealth v. Hardy, 464 Mass. 660, 667, 984 N.E.2d 727, cert. denied, 571 U.S. 903, 134 S.Ct. 248, 187 L.Ed.2d 184 (2013), but failure to use particular methods of impeachment at trial rarely rises to the level of ineffective assistance of counsel. See Commonwealth v. Fisher, 433 Mass. 340, 357, 742 N.E.2d 61 (2001).

"Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations, to which we will, even on § 33E review, still show deference. Furthermore, absent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." (Footnote omitted.)

Id.

Here, defense counsel's cross-examination of the mother provided a substantial basis for defense counsel to plant the seed with the jury that it was the mother (or a third party) who caused the child's death, and that it was her desire to shift the blame to the defendant that motivated her testimony. He elicited that she also had been charged with murder and reckless endangerment of the child, failed to telephone 911 when she found the child unresponsive, and implied that she regularly endangered her child by allowing him to sleep in her bed instead of in his crib. She admitted that she had been convicted of larceny and was on probation when the child died. Defense counsel garnered the mother's admission that, in June, 2009, she knowingly violated the terms of the existing custody order by failing to return the child to his grandfather. He highlighted that she lied about the custody arrangement in her first statement to the police after the child's death, and that she failed to implicate the defendant in the child's death in her statement to the police. Defense counsel's examination of other witnesses served further to impeach the mother's credibility. See Commonwealth v. Garuti, 454 Mass. 48, 59, 907 N.E.2d 221 (2009) ("trial counsel, in essence, touched on all the issues the defendant raises, albeit in different form than the defendant would have liked").

Moreover, defense counsel effectively elicited from the mother testimony that supported the defendant's theory at trial: that the defendant lacked access to the child when he was fatally injured days before he died. The mother's testimony, more than any other witness, supported the theory, because she specifically testified that he was not alone with the child during that period. Defense counsel used the word "access" in his opening statement no less than fifteen times to emphasize that people other than the defendant had access to the child. If the jury had credited the defense's medical evidence that the child's injury was a few days old, then the mother's testimony would have provided critical factual support for the defendant's theory. See Commonwealth v. Garvin, 456 Mass. 778, 789 n.13, 926 N.E.2d 169 (2010) (decision not to highlight issue during cross-examination reasonable where it would harm own theory of defense); Commonwealth v. Knight, 437 Mass. 487, 502-503, 773 N.E.2d 390 (2002). See also Commonwealth v. Mosher, 455 Mass. 811, 826, 920 N.E.2d 285 (2010). Thus, counsel had a fine line to tread between impeaching the mother by insinuating that she was responsible for the murder and concomitantly eliciting favorable testimony from her. Counsel was not ineffective in his impeachment of the mother, and the decision to rely on the defense medical expert's testimony, rather than focusing on using the mother's motive to blame the defendant for the child's death, and to argue those points before the jury, was not manifestly unreasonable. See Commonwealth v. Smith, 456 Mass. 476, 482, 924 N.E.2d 270 (2010) ; Commonwealth v. Diaz, 448 Mass. 286, 288-289, 860 N.E.2d 665 (2007).

2. Due process claim. The defendant contends that his due process right to a fair trial was violated because, although the Commonwealth disclosed a cooperation agreement it had with the mother, it did not disclose purported additional rewards or inducements for her testimony. Namely, the Commonwealth supposedly agreed to dismiss charges against the mother's father and stepmother. See Commonwealth v. Burgos, 462 Mass. 53, 62, 965 N.E.2d 854, cert. denied, 568 U.S. 1072, 133 S.Ct. 796, 184 L.Ed.2d 589 (2012). See also Commonwealth v. Hill, 432 Mass. 704, 711, 739 N.E.2d 670 (2000). He argues that if the jury had been aware of these supposed additional rewards, they would have considered the mother's testimony in a different light.

There is no evidence to support the defendant's claim that the charges were dismissed as a reward for the mother's testimony. See Commonwealth v. Laguer, 448 Mass. 585, 594, 863 N.E.2d 46 (2007). In these circumstances, the judge correctly rejected the claim as "entirely speculative" and "unsupported by anything other than the defendant's presumptions." See Commonwealth v. Rebello, 450 Mass. 118, 123-124, 876 N.E.2d 851 (2007). To be sure, the Commonwealth is obligated to provide the terms of any cooperation agreement with a witness the Commonwealth intends to call at trial. See Mass. R. Crim. P. 14 (a) (1) (A) (ix), as amended, 444 Mass. 1501 (2005). See also Burgos, 462 Mass. at 62, 965 N.E.2d 854. In this case, the terms of the cooperation agreement between the Commonwealth and the mother expressly describe the charges for which the Commonwealth would take the mother's cooperation into consideration. Nothing in the agreement has an impact on the charges against her father or stepmother.

3. Failure to disclose videotape and photographs. The Commonwealth concedes that, prior to trial, it did not provide the defendant with a videotape of the crime scene, i.e., the apartment shared by the mother and her roommate. It contends, however, that a new trial is not warranted because the videotape was not used as evidence at trial, and it was cumulative of still photographs that were provided to the defendant. Other photographs, taken by the roommate, were allegedly sent to a State police trooper by the roommate and likewise not produced. However, the trooper's affidavit, which the motion judge explicitly credited, indicated that he never received them, and the Commonwealth contends that it cannot be required to produce evidence that is not within its custody or control. See Laguer, 448 Mass. at 594, 863 N.E.2d 46 ; Ellison, 376 Mass. at 22, 379 N.E.2d 560. See also Commonwealth v. Schand, 420 Mass. 783, 787-789, 653 N.E.2d 566 (1995) ;

Commonwealth v. Daye, 411 Mass. 719, 734, 587 N.E.2d 194 (1992).

There was no error in the trial judge's denial of the motion for a new trial, without an evidentiary hearing, on this issue. The only use to which the defendant suggests the photographs and videotape could have been put -- that the child slid off the mother's bed and hit his head -- would directly have contradicted the defendant's trial strategy, that the child had been injured days before his death, irrespective of the overwhelming evidence of the defendant's guilt. Because there is nothing to suggest that the videotape contained exculpatory evidence or that it would have affected the outcome of the trial, and nothing to demonstrate that the Commonwealth received photographic evidence from the roommate, a new trial is not required. See Commonwealth v. Tucceri, 412 Mass. 401, 414, 589 N.E.2d 1216 (1992).

4. Evidence of prior injury. Before trial, the Commonwealth filed a motion in limine to admit evidence of the bruising injuries the child sustained in February, 2009. The judge allowed the motion. Although the evidence was not admissible to demonstrate the defendant's propensity to commit murder, see Commonwealth v. Anestal, 463 Mass. 655, 665, 978 N.E.2d 37 (2012), the Commonwealth sought leave to use the evidence for a nonpropensity purpose: to demonstrate a pattern of behavior between the defendant and the victim, i.e., when the defendant was alone with the child, he was injured. See Commonwealth v. Beneche, 458 Mass. 61, 80-81, 933 N.E.2d 951 (2010) ; Commonwealth v. Butler, 445 Mass. 568, 573-576, 839 N.E.2d 307 (2005). See also Mass. G. Evid. § 404(b).

The judge determined that the child's injuries, sustained approximately five months before his death, were reasonably connected to the facts of this case and sufficiently proximate in time to be probative. See Butler, 445 Mass. at 574, 839 N.E.2d 307. She also determined that the probative value of the evidence was not outweighed by the risk of unfair prejudice to the defendant. See Commonwealth v. Crayton, 470 Mass. 228, 249, 21 N.E.3d 157 (2014) ; Anestal, 463 Mass. at 665, 978 N.E.2d 37. The defendant argues, however, that the judge erred in admitting the evidence because the Commonwealth failed to demonstrate by a preponderance of the evidence that a reasonable jury could find that it was the defendant who had caused the prior injuries. See Commonwealth v. Leonard, 428 Mass. 782, 785-786, 705 N.E.2d 247 (1999). Mass. G. Evid. § 104(b).

We recognize that, at the hearing on the motion, the prosecutor represented that "no one was charged" for the February, 2009, bruising, although the mother had been indicted for child endangerment. We also recognize that the mother's statement to the police indicated that the defendant was not alone with the child at the time of the February, 2009, incident. Her trial testimony, however, indicated that the defendant was alone with the child the day the injuries were discovered, and that she heard the child cry. She also testified that the defendant visited him only once while he was hospitalized. The judge was correct in determining that a reasonable jury could find that the defendant inflicted the injuries the child sustained in February, 2009. See Mass. G. Evid. § 104(b).

Although evidence of prior bad acts "carries with it a high risk of prejudice to the defendant," Commonwealth v. Barrett, 418 Mass. 788, 795, 641 N.E.2d 1302 (1994), and a limiting instruction directing the jury not to consider evidence of the defendant's culpability in the child's prior injuries as proof of his character or propensity to commit the crime at bar would have been warranted, trial counsel failed to request such an instruction. See Commonwealth v. Leonardi, 413 Mass. 757, 764, 604 N.E.2d 23 (1992). In this case, the judge found that counsel's decision not to request an instruction was a tactical one: it would have drawn the jury's attention to the bruising, just before they began deliberation. See Commonwealth v. Washington, 449 Mass. 476, 488, 869 N.E.2d 605 (2007) (limiting instruction could have undermined defense strategy). In the circumstances, the lack of an instruction did not give rise to a substantial likelihood of a miscarriage of justice. See id. See also Commonwealth v. Mercado, 456 Mass. 198, 205 n.14, 922 N.E.2d 140 (2010).

5. Prosecutor's closing argument . During his closing argument, the prosecutor stated that the "credible, believable" evidence told the jury what had happened. Because the judge overruled the defendant's objection, we consider whether the prosecutor's comments were improper and, if they were, whether the error was prejudicial. See Commonwealth v. Pearce, 427 Mass. 642, 644, 695 N.E.2d 1059 (1998). We conclude there was no error.

As we have said, "[w]ithin the bounds of the evidence and the fair inferences from the evidence, great latitude should be permitted to counsel in argument." Commonwealth v. Gilmore, 399 Mass. 741, 745, 506 N.E.2d 883 (1987). Counsel may not, however, "express[ ] a personal belief in the credibility of a witness ... or ... indicate[ ] that he or she has knowledge independent of the evidence before the jury verifying a witness's credibility." Pearce, 427 Mass. at 644, 695 N.E.2d 1059, quoting Commonwealth v. Ciampa, 406 Mass. 257, 265, 547 N.E.2d 314 (1989). In this case, although the prosecutor referred to the "credible evidence" and "credible, believable evidence," the choice of a particular word or words is not determinative.

To be sure, "prosecutors are held to a stricter standard than are errant defense counsel and their clients" (citation omitted). Commonwealth v. Arroyo, 442 Mass. 135, 147, 810 N.E.2d 1201 (2004). The evidence presented to the jury required them to decide between conflicting versions of events, and the prosecutor properly could argue which version of the evidence was more credible. See Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53, 794 N.E.2d 613 (2003). In that context, the prosecutor challenged the evidentiary underpinnings of the defendant's argument concerning the timing of the child's injuries, and the argument was within the right of retaliatory reply. See Commonwealth v. O'Connell, 432 Mass. 657, 660, 738 N.E.2d 346 (2000), citing Commonwealth v. LeFave, 407 Mass. 927, 939, 556 N.E.2d 83 (1990). See Commonwealth v. Ortega, 441 Mass. 170, 180-182, 804 N.E.2d 345 (2004). The trial judge was within her discretion to determine that, in the circumstances presented, the statements neither vouched for the credibility of a particular witness, nor implied that the prosecutor had any personal knowledge outside the evidence at trial to assert that the witness was believable.

Conclusion. Considering the case as a whole, we conclude that the conviction was amply supported by the evidence and decline to exercise our power under G. L. c. 278, § 33E. The judgment is affirmed, as is the order denying the motion for a new trial.

So ordered.

      The defendant also was convicted of reckless endangerment of a child and assault and battery. Those indictments were dismissed on the ground that they were subsumed within the defendant's conviction of murder.

      The child's mother also was indicted for reckless endangerment of a child, based on injuries her child sustained in February, 2009. Two days after the defendant was convicted of murder in the first degree, the Commonwealth entered a nolle prosequi with respect to the murder indictment against her. Weeks later, the Commonwealth was permitted to amend the date of the offense on the reckless endangerment indictment to July 29, 2009, the date of her child's death.

      The judge conducted a hearing concerning the motion for a new trial, the evidentiary portion of which was limited to issues relating to the Department of Children and Families. In the circumstances, a broader evidentiary hearing was not required. See Commonwealth v. Lopez, 426 Mass. 657, 663, 690 N.E.2d 809 (1998) (evidentiary hearing required only where substantial issue raised, supported by substantial evidentiary showing).

      If defense counsel had made known to the jury the mother's cooperation agreement, the defendant would have been entitled to a jury instruction in accordance with Commonwealth v. Ciampa, 406 Mass. 257, 264, 547 N.E.2d 314 (1989).

      The defense strategy of casting the mother in culpable light was supported by the testimony of the neighbor who performed CPR on the child. She testified that, while the group was en route to the hospital, the mother was focused on obfuscating her culpability for violation of the custody order rather than on the child's condition. Further, when the defendant said that authorities were going to blame him, the mother responded that he had not done anything. Defense counsel also elicited the testimony of this witness that, while at the child's bedside, the mother only cried and became emotional while other people were present.


source: Caselaw Access Project

author: SACKS, J.

license: Public Domain

text:
    Phillip CUCCHI & another v. CITY OF NEWTON & others.
    No. 17-P-1290
    Appeals Court of Massachusetts, Suffolk..
    Argued June 4, 2018. Decided August 16, 2018.
    Patrick N. Bryant, Boston, for the plaintiffs.
    Jonah M. Temple, Assistant City Solicitor, for city of Newton.
    Douglas S. Martland, Assistant Attorney General, for Civil Service Commission & another.
    Present: Maldonado, Sacks, & Lemire, JJ.

      Ed Melendez.

      The Civil Service Commission and the human resources division of the Commonwealth.

   SACKS, J.

In Curley v. City of Lynn, 408 Mass. 39, 41-42, 556 N.E.2d 96 (1990), the court held that a person seeking judicial review of a Civil Service Commission (commission) decision under G. L. c. 31, § 44, as then in effect, was required to file a petition seeking such review within thirty days of receipt of the commission's decision, and that such time was not tolled by filing a request for reconsideration with the commission. Section 44 was subsequently amended in 1992, primarily to shift jurisdiction to conduct judicial review to the Superior Court, but also to include a cross-reference to judicial review under G. L. c. 30A, § 14. Section 14(1) provides that the timely filing of a petition for rehearing with an agency tolls the time for seeking judicial review of the agency decision.

The question we face here is whether § 44, as now in effect, continues to impose the strict thirty-day deadline for seeking review of commission decisions identified in Curley, or instead whether its cross-reference to § 14 means that the time for seeking review is tolled by the timely filing of a petition for rehearing. We conclude that § 44 continues to impose a strict thirty-day deadline and, thus, we affirm the portion of the judgment dismissing, as untimely, the plaintiffs' claim for judicial review. As for the plaintiffs' claim for declaratory relief, however, which was dismissed without explanation, we vacate that portion of the judgment and remand for further proceedings.

Background. The complaint alleged that the plaintiffs, fire fighters for the city of Newton (city), were on a list issued in 2014 by the human resources division (division) of persons eligible for promotion to the position of captain. In March of 2016, shortly before the list was scheduled to expire and to be replaced by a new list, the city promoted another candidate, Gregory Gentile, to a captain position. Gentile was ranked higher than the plaintiffs on the expiring list, but lower than them on the new list. The plaintiffs alleged that the city's use of the expiring list violated a division rule known as Personnel Administration Rule (rule) 08 and that Gentile's appointment reflected improper favoritism; they asked the commission to conduct an investigation under G. L. c. 31, § 2(a).

The commission received submissions from the parties and held a show cause hearing. On September 1, 2016, the commission issued a decision concluding, among other things, that the city had not violated rule 08, as the commission interpreted that rule, and "that an investigation, beyond that already conducted here, is not warranted." On September 7, the plaintiffs filed a motion for reconsideration. On October 13, the commission denied the motion.

On November 10, the plaintiffs filed a complaint in Superior Court, seeking judicial review of the commission's September 1 decision (count I) and a declaratory judgment that the commission's interpretation of rule 08 was erroneous and adversely affected the plaintiffs' rights (count II). On the defendants' motion, a judge ordered dismissal of the entire complaint. The judge concluded that the claim for judicial review was untimely under G. L. c. 31, § 44, because it was filed more than thirty days after the plaintiffs received the commission decision and because the plaintiffs' motion to reconsider did not toll the running of that thirty-day period. The judge did not separately discuss the claim for declaratory relief. The plaintiffs appeal the resulting judgment of dismissal.

Discussion. 1. Claim for judicial review. In 1990, when the Supreme Judicial Court concluded in Curley that a motion for reconsideration did not toll the thirty-day deadline of § 44, that section provided in pertinent part:

"Within thirty days after receiving notice of the decision of the commission following a hearing requested by him pursuant to section forty-two or section forty-three, a person may, if he is aggrieved by such decision, file a petition to review the commission's decision in the municipal court of the city of Boston or in the district court for the judicial district wherein such person resides."

G. L. c. 31, § 44, inserted by St. 1978, c. 393, § 11. See Curley, 408 Mass. at 40, 556 N.E.2d 96.

The Legislature adopted new versions of § 44 in 1991 and, more relevant here, in 1992. The 1992 version, which remains in effect, provides in pertinent part:

"Any party aggrieved by a final order or decision of the commission following a hearing pursuant to any section of this chapter or chapter thirty-one A may institute proceedings for judicial review in the superior court within thirty days after receipt of such order or decision. Any proceedings in the superior court shall, insofar as applicable, be governed by the provisions of section fourteen of chapter thirty A, and may be instituted in the superior court for the county (a ) where the parties or any of them reside or have their principal place of business within the commonwealth, or (b ) where the commission has its principal place of business, or (c ) of Suffolk. The commencement of such proceedings shall not, unless specifically ordered by the court, operate as a stay of the commission's order or decision."

G. L. c. 31, § 44, as appearing in St. 1992, c. 133, § 351.

The requirement for filing within thirty days after receipt of the commission decision remains essentially unchanged since the court decided Curley. Unless some other language in the current § 44 has relaxed that requirement, the judge here correctly dismissed the plaintiffs' claim for judicial review. "With extremely rare exceptions not relevant here, failure to timely file is ... typically an absolute bar to a plaintiff's ability to obtain judicial review of a final agency action." Herrick v. Essex Regional Retirement Bd., 68 Mass. App. Ct. 187, 190, 861 N.E.2d 32 (2007).

The plaintiffs argue that the thirty-day requirement is now modified by the reference in § 44 to proceedings in the Superior Court being governed by G. L. c. 30A, § 14, which the plaintiffs view as incorporating § 14 in its entirety into § 44. It follows, the plaintiffs argue, that § 44 is subject to the provision in § 14(1)

that an action for judicial review

"shall, except as otherwise provided by law, be commenced in the court within thirty days after receipt of notice of the final decision of the agency or if a petition for rehearing has been timely filed with the agency, within thirty days after receipt of notice of agency denial of such petition for rehearing" (emphasis added).

G. L. c. 30A, § 14(1), as amended through St. 1998, c. 463, § 33.

We see numerous difficulties with the plaintiffs' interpretation. First, § 44 suggests that the only provisions of § 14 intended to apply with respect to the commission are those that concern court proceedings after, not before, an action for judicial review is filed. In one sentence, § 44 states that an aggrieved party "may institute proceedings for judicial review in the superior court within thirty days after receipt of [the commission's final] order or decision." This sentence governs when judicial proceedings must be instituted, and it contains no tolling provision and no reference to § 14. The next sentence governs how such proceedings, if instituted, are to be conducted: "Any proceedings in the superior court shall, insofar as applicable, be governed by [ G. L. c. 30A, § 14,] ...." This reference to § 14 is not naturally read as addressing matters (such as the filing of a motion to reconsider) that arise before any court proceedings are instituted.

Second, § 44 includes not one but three provisions that, although similar to the corresponding provisions in § 14, depart from them in material ways. Most obviously, the § 44 thirty-day time limit for seeking judicial review omits any tolling provision like the one in § 14. In addition, § 44 is patterned on, yet differs from, § 14 on the issues of venue and stays of agency decisions. If the plaintiffs were correct that § 44 was nevertheless intended to incorporate the entirety of § 14, then these three differing provisions of § 44 would be rendered superfluous. This would violate a basic tenet of statutory construction: "Wherever possible, we give meaning to each word in the legislation; no word in a statute should be considered superfluous." International Org. of Masters, Mates & Pilots, Atl. & Gulf Maritime Region, AFL-CIO v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 392 Mass. 811, 813, 467 N.E.2d 1331 (1984).

Third, language in both statutes suggests that not all of § 14 applies to judicial review proceedings under § 44. Specifically, § 44 states that "proceedings in the superior court shall, insofar as applicable, be governed by [ § 14 ]" (emphasis added). And § 14, as appearing in St. 1973, c. 1114, § 3, states that "[w]here a statutory form of judicial review or appeal is provided[,] such statutory form shall govern in all respects, except as to standards for review" (emphasis added). Furthermore, the language of § 14(1), as amended through St. 1998, c. 463, § 33, concerning the time limit for seeking judicial review applies "except as otherwise provided by law." Moreover, to whatever extent there may be a conflict between § 44 and § 14, it is § 44, as the later-adopted statute and the one more specific to the commission, that would control. See Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215, 680 N.E.2d 92 (1997).

Fourth and finally, shortly after the court held in Curley that the time under § 44 for seeking judicial review of commission decisions was not tolled by filing a request for reconsideration with the commission, the Legislature adopted two new versions of § 44, in 1991 and again in 1992. See discussion, supra. "We presume that the Legislature enacts legislation with 'an aware[ness] of the prior state of the law as explicated by the decisions of [the Supreme Judicial Court].' " Commonwealth v. Mogelinski, 466 Mass. 627, 646, 1 N.E.3d 237 (2013), quoting from Commonwealth v. Callahan, 440 Mass. 436, 441, 799 N.E.2d 113 (2003). If the Legislature had intended to alter prospectively the result reached in Curley, we would expect the Legislature to have done so in clear terms. It would have been a simple matter to add specific tolling language to § 44, similar to the language in § 14(1) on which the plaintiffs now rely. Or, if the Legislature had intended (as the plaintiffs argue) to make all of § 14 applicable to commission decisions, § 44 could have been amended simply to provide, without elaboration, that judicial review of commission decisions was to be governed by § 14. The Legislature did neither of these things. Instead, it settled upon a version of § 44 that adopted some language, but changed or rejected other language, from the corresponding provisions of § 14.

The foregoing considerations, taken together, persuade us that the filing of a motion to reconsider a commission decision does not toll the time for seeking judicial review of that decision. We do not decide whether any of those considerations would be dispositive standing alone, nor do we decide any other question about the interpretation of § 44 or § 14. We conclude only that the plaintiffs' claim for judicial review was correctly dismissed as untimely filed.

2. Claim for declaratory relief. The judge dismissed the plaintiffs' claim for declaratory relief but gave no reason for doing so. On appeal, the commission asks us to affirm that portion of the judgment on the ground that, as to its decision not to investigate further the city's March, 2016, promotion of Gentile, there is no actual controversy and the plaintiffs lack standing. See Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100, 106, 571 N.E.2d 361 (1991) ("To secure declaratory relief in a case involving administrative action, a plaintiff must show that [1] there is an actual controversy; [2] he has standing; [3] necessary parties have been joined; and [4] available administrative remedies have been exhausted").

Unlike the commission, we do not read the plaintiffs' claim for declaratory relief as focused exclusively on the promotion of Gentile. The plaintiffs also challenge the commission's interpretation of rule 08, a matter that the plaintiffs argue is significant to their own future promotional opportunities and to the obligations of the city (and many other municipalities). A dispute about an agency's interpretation of a regulation may be an appropriate subject for declaratory relief if that interpretation is "consistently repeated" and applied and the other requirements for declaratory relief are met. G. L. c. 231A, § 2, inserted by St. 1974, c.

630, § 1. See Frawley v. Police Commr. of Cambridge, 473 Mass. 716, 725, 46 N.E.3d 504 (2016) ; Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 135-136, 981 N.E.2d 730 (2013).

The parties have not fully addressed in this appeal whether the plaintiffs' challenge to the commission's interpretation of rule 08 meets all of the requirements for declaratory relief. In these circumstances, we express no view on the question and instead remand the matter for further consideration in the Superior Court.

Conclusion. So much of the judgment as dismissed the claim for declaratory relief (count II) is vacated, and the matter is remanded for further proceedings consistent with this decision. The remainder of the judgment is affirmed.

So ordered.

      The commission styled its determination as a "response," seemingly to avoid any suggestion that the commission viewed the determination as a "decision" judicially reviewable under § 44, as appearing in St. 1992, c. 133, § 351 (providing for review of "final order or decision" of commission). For convenience, we use the term "decision," without expressing any view on the reviewability issue. See note 13, infra.

      The standard adjudicatory rules of practice and procedure for State agencies, adopted under G. L. c. 30A, § 9, provide in pertinent part: "A motion for reconsideration shall be deemed a motion for rehearing in accordance with ... G. L. c. 30A, § 14(1) for the purposes of tolling the time for appeal." 801 Code Mass. Regs. § 1.01(7)(l) (1998). The record reflects that the commission, although excluded from the definition of "agency" under G. L. c. 30A, § 1, has chosen to operate under these rules, while recognizing that the provisions of G. L. c. 31 take precedence over any conflicting rules. See Curley, 408 Mass. at 41-42, 556 N.E.2d 96 (absent statutory authorization, commission may not, through adopting procedural rules, modify statutory time limit for seeking judicial review of its decisions).

      The complaint also requested review of the October 13 order denying reconsideration. On appeal, the plaintiffs make no separate argument regarding that order.

      The 1991 version provided:
      "Any party aggrieved by a final decision of the commission following a hearing pursuant to any section of this chapter or chapter thirty-one A may institute proceedings for judicial review in the appeals court within thirty days after receipt of such decision. The proceedings in the appeals court shall, insofar as applicable, be governed by the provisions of section fourteen of chapter thirty A."
      G. L. c. 31, § 44, as appearing in St. 1991, c. 138, § 113.

      Hereinafter, we refer to this version of c. 31, § 44.

      Section 44 makes venue proper in "the county (a ) where the parties or any of them reside or have their principal place of business within the commonwealth, or (b ) where the commission has its principal place of business, or (c ) of Suffolk" (emphasis added). Section 14(1), as amended through St. 1998, c. 463, § 33, in contrast, makes venue proper in "the county (a ) where the plaintiffs or any of them reside or have their principal place of business within the commonwealth, or (b ) where the agency has its principal office, or (c ) of Suffolk" (emphasis added).

      Section 44 provides: "The commencement of [judicial review] proceedings shall not, unless specifically ordered by the court, operate as a stay of the commission's order or decision" (emphasis added). Section 14(3), as appearing in St. 1973, c. 1114, § 3, in contrast, provides: "The commencement of an action [for judicial review] shall not operate as a stay of enforcement of the agency decision, but the agency may stay enforcement, and the reviewing court may order a stay upon such terms as it considers proper" (emphasis added).

      Section 14, as appearing in St. 1973, c. 1114, § 3, continues, "The standards for review shall be those set forth in paragraph (7) of this section, except so far as statutes provide for review by trial de novo." The standards for review of commission decisions are not at issue here.

      Since the adoption of the current version of § 44 in 1992, § 14 has been amended twice. The first amendment, see St. 1998, c. 463, § 33, removed from § 14(1) the reference to G. L. c. 6, § 32, and added the phrase "except as otherwise provided by law," a phrase that does not aid the plaintiffs' argument. The second amendment, see St. 2015, c. 108, added to § 14(3) certain language concerning the sex offender registry board, which also does not aid the plaintiffs.

      The plaintiffs argue with some force that this conclusion will result in wasteful and duplicative proceedings. They note our previous observation, in a case governed exclusively by § 14, that "[i]f a party determines to seek reconsideration of an agency ruling, it is a pointless waste of judicial energy for the court to process any petition for review before the agency has acted on the request for reconsideration." Paquette v. Department of Envtl. Protection, 55 Mass. App. Ct. 844, 849, 774 N.E.2d 1174 (2002), quoting from TeleSTAR, Inc. v. Federal Communications Commn., 888 F.2d 132, 134 (D.C. Cir. 1989). It is not universally the case, however, that a motion for reconsideration tolls the time for seeking judicial review. See, e.g., Malone v. Civil Serv. Commn., 38 Mass. App. Ct. 147, 151, 646 N.E.2d 150 (1995) (motion for reconsideration did not extend period to file complaint under certiorari statute, G. L. c. 249, § 4 ). The plaintiffs' argument is best directed to the Legislature.

      We therefore need not reach the commission's and the division's alternative arguments that (1) the commission's decision not to investigate further was so discretionary as to be unreviewable and (2) the plaintiffs were not aggrieved by that decision.


author: RUBIN, J.

text:
    The LANDING GROUP, INC. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.
    No. 17-P-893.
    Appeals Court of Massachusetts, Suffolk..
    Argued May 9, 2018 Decided August 21, 2018
    Richard A. Nylen, Jr., Boston, for the plaintiff.
    Louis M. Dundin, Assistant Attorney General, for the defendants.
    Present: Rubin, Desmond, & Singh, JJ.

      Commissioner of the Department of Environmental Protection.

   RUBIN, J.

This case arose when the plaintiff, The Landing Group, Inc., applied to the Department of Environmental Protection (DEP) for a license amendment under G. L. c. 91 and 310 Code Mass. Regs. §§ 9.00 et seq. (2008), to construct a residential and commercial development with maritime aspects, such as a dock, on private and Commonwealth tidelands in Pigeon Cove Harbor in Rockport. The application sought an amendment of a license issued in 2008 by the DEP to the previous owner of the property. A public hearing was held on the plan the plaintiff submitted with the application, and the plans were twice revised during the public comment and hearing process.

After the second amendment was accepted by the DEP, an additional hearing was held on that amended plan because, by that point, the DEP had found that the proposal was so different from the one originally submitted that a new public comment period was required. In each of the two cases of amendment, new plans were submitted by the plaintiff, all including both waterside and nonwaterside uses.

After the second hearing was held on the "revised final project plans" submitted in March, 2014, the plaintiff sent an electronic mail message (e-mail) to the DEP purporting to "withdraw[ ] the pending license amendment application as being reviewed pursuant to any procedure other than [§] 20 of [G. L. c.] 91."

General Laws c. 91, § 20, provides a more limited DEP review of plans for building bridges, wharves, piers, and dams over tidewaters under legislative authorizations of which several hundred were enacted in the late Eighteenth and early Nineteenth Centuries. See Trio Algarvio, Inc. v. Commissioner of the Dept. of Envtl. Protection, 440 Mass. 94, 95, 795 N.E.2d 1148 (2003). After private development spurred by these authorizations became "rapid and chaotic," the Legislature in 1866 passed a statute creating a board of harbor commissioners -- the DEP's predecessor -- whose permission would be required for building on tidelands where the authority to build derived from past legislative authorizations. See id. at 99-100, 795 N.E.2d 1148. See also St. 1866, c. 149. According to the current version of § 20, the DEP may review plans with respect to these tidelands only for their consistency with the legislative authorization, and may only alter them "consistent with the legislative grant." This contrasts with the DEP's review of most other projects, according to which the DEP may issue a license or permit only if the project "serves a proper public purpose which provides greater benefit than detriment to the rights of the public in said lands." 310 Code Mass. Regs. § 9.31(2) (1996).

The plaintiff's e-mail was apparently intended to convey that it now sought review only under G. L. c. 91, § 20. For the first time the plaintiff suggested that there was legislative authorization for development of the property under an 1831 statute which is denominated "An Act to incorporate the Pigeon Cove Harbor Company." St. 1831, c. 34. A further e-mail reiterated that § 20 applied and that the DEP review was limited to determining whether there was "conformance with the authorizing legislation."

Finally, on August 20, 2014, plaintiff's counsel sent a five-page letter to the DEP which stated more clearly that the plaintiff purported to withdraw its plans seeking approval of the land-based development, and that it sought approval only of the "in-water work" aspect of the plans it had filed. No new plans showing only these so-called "waterside" uses -- the nomenclature used by DEP before us and that we will also employ for present purposes -- were filed with any of these e-mails or the letter.

In December, 2014, the DEP issued an order signed by the program director of the DEP's wetlands and waterways regulation program denying the amended application for a license amendment. That decision reviewed the amended plan submitted in March, 2014. That is, the DEP did not review only the waterside portion of the plan under G. L. c. 91, § 20, but reviewed the amended plan on which the hearing had been held.

On appeal first to the office of appeals and dispute resolution of the DEP, and now before the courts, the plaintiff argues primarily that the DEP erred in failing to evaluate only the waterside portion of its plan. For the first time, the plaintiff presented a plan showing only the waterside development, the development of which it claims it seeks approval, as an attachment to its rebuttal brief before the office of appeals and dispute resolution.

We agree with the detailed and thoughtful memorandum and decision of the judge of the Superior Court who ruled on the plaintiff's motion for judgment on the pleadings, that the DEP was not bound to accept the midstream partial withdrawal of the plaintiff's March, 2014, plan and to review the waterside-only portions of the far more comprehensive plans submitted by the plaintiff as requested in the e-mails and the letter sent to the DEP. The plaintiff points to no provision of law requiring the DEP to accept an amendment of an application sought by this irregular process. Further, among other things, the plaintiff did not even provide a plan showing only the work for which it purports to have been seeking approval, and the DEP cannot be faulted for failing to evaluate a plan that was never even put before it. See 310 Code Mass. Regs. § 9.11(3)(c)(1) (2008) (complete application to DEP must contain "a set of final plans which are prepared in accordance with the format standards required for recording of licenses in the appropriate Registry of Deeds or Land Court for the district in which the licensed activity is to be performed; and which are certified by a Registered Professional Engineer or Land Surveyor," and which meet further requirements); 310 Code Mass. Regs. § 9.24(1) (1996) (license amendment application requires submission of "appropriate plans").

This does not mean the plaintiff's opportunity for evaluation of its waterside-only proposal has been waived. As the judge found, and as the DEP conceded at oral argument before us, the plaintiff remains free to submit a waterside-only proposal, with an accompanying plan that satisfies the regulations, to the DEP for review. But at no time since the Superior Court judgment entered over seventeen months ago, indeed, at no time since the DEP ruled on the plaintiff's amended proposal over three years ago, has it done so.

To the extent the plaintiff asks us to cut to the chase and approve under G. L. c. 91, § 20, the plan attached to its rebuttal brief before the office of appeals and dispute resolution, we decline the invitation. We agree with the DEP that the doctrine of primary jurisdiction requires the DEP to undertake the review of any proposal in the first instance. See Department of Envtl. Quality Engr. v. Cumberland Farms of Conn., Inc., 18 Mass. App. Ct. 672, 676, 469 N.E.2d 1286 (1984). Among other things, there are unresolved legal and factual issues at least some of which must be addressed in an appropriate DEP proceeding in order properly to complete § 20 review, including the nature of the grant in the 1831 statute; whether that grant runs with the land or was personal to the Pigeon Cove Harbor Company; whether the separation of ownership between a breakwater whose maintenance was required of the Pigeon Cove Harbor Company by the 1831 act, and the shoreline on which the plaintiff seeks to build, limits the plaintiff's entitlement to any benefits conferred by that statute; what development exactly was permitted by the statute; and whether the proposed project is in conformance with the legislative authorization.

Judgment affirmed.


author: Judge Feinman took no part.

text:
    Danielle BITON, etc., et al., Appellants, v. STATE of New York, et al., Respondents.
    (And Three Other Actions)
    2018-636
    Court of Appeals of New York.
    August 30, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 1105, 80 N.Y.S.3d 207, 105 N.E.3d 346 (2018) ].
   Judge Feinman took no part.


text:
    The ALLIANCE TO END CHICKENS as Kaporos, et al., Appellants, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents, et al., Defendants.
    2018-819
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion by Animal Legal Defense Fund for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. The brief must be submitted in digital format within seven days.
   Judge Feinman took no part.


text:
    In the Matter of AZIMJON A. Administration for Children's Services, Respondent v. ADOLAT K., Appellant, et al., Respondent.
    (And Another Proceeding)
    2018-610
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of Cheryl ACKERMAN, Appellant, v. NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.
    2018-650
    Court of Appeals of New York.
    August 30, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 905, 2018 WL 2012953 (2018) ].


text:
    James H. BRADY, Appellant, v. NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE et al., Respondents.
    2018-722
    Court of Appeals of New York.
    August 30, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 909, 2018 WL 2915094 (2018) ].


text:
    In the MATTER OF the Accounting by Donald K. CZEIZINGER, as Administrator of the Estate of Frederick D. Czeizinger, Deceased, Respondent.
    Tina Chambliss-Partee, Appellant v. Robert F. Baldwin, Jr., Guardian Ad Litem of Frederick Donald Czeizinger, Deceased, Respondent.
    2018-577
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


author: Judge Garcia took no part.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, solely in its capacity as Trustee FOR the HARBORVIEW MORTGAGE LOAN TRUST SERIES 2007-7, Appellant, v. FLAGSTAR CAPITAL MARKETS CORPORATION, Defendant,
    Quicken Loans, Inc., Respondent.
    2018-781
    Court of Appeals of New York.
    August 30, 2018
    Motion by LNR Partners, LLC, et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.
   Judge Garcia took no part.


text:
    James H. BRADY, Appellant, v. STATE of New York, et al., Respondents.
    2018-674
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 909, 2018 WL 2915094 (2018) ].


text:
    IGS REALTY CO., L.P., Respondent, v. James H. BRADY, Appellant.
    2018-603
    Court of Appeals of New York.
    August 30, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 1036, 76 N.Y.S.3d 498, 100 N.E.3d 837 (2018) ]. Motion for a stay dismissed as academic.


text:
    In the MATTER OF LACEE L., etc.
    Stephanie L., Appellant; v. Administration for Children's Services, Respondent,
    Dekodia L., Respondent.
    2018-799
    Court of Appeals of New York.
    August 30, 2018
    Motion by The Arc, et al. for leave to file a briefamicicuriae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    In the MATTER OF LACEE L., etc.
    Stephanie L., Appellant; v. Administration for Children's Services, Respondent,
    Dekodia L., Respondent.
    2018-806
    Court of Appeals of New York.
    August 30, 2018
    Motion by SisterSong Women of Color Reproductive Justice Collaborative, et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    In the MATTER OF JAYDEN M. A.-M.
    Jennifer A., Appellant; v. Gregory M. et al., Respondents.
    (And Another Proceeding)
    2018-607
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion for reargument of motion for leave to appeal denied.
   Judge Feinman took no part.


text:
    Vladimira KOCH, etc., Appellant,
    Michael Koch, et al., Plaintiffs, v. SHERESKY, ARONSON & MAYEFSKY LLP, et al., Respondents.
    2018-643
    Court of Appeals of New York.
    August 30, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the MATTER OF LACEE L., etc.
    Stephanie L., Appellant; v. Administration for Children's Services, Respondent,
    Dekodia L., Respondent.
    2018-789
    Court of Appeals of New York.
    August 30, 2018
    Motion by Brooklyn Defender Services, et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    In the MATTER OF LACEE L., etc.
    Stephanie L., Appellant; v. Administration for Children's Services, Respondent,
    Dekodia L., Respondent.
    2018-809
    Court of Appeals of New York.
    August 30, 2018
    Motion by American Civil Liberties Union Foundation et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    In the MATTER OF NEW YORK CITY ASBESTOS LITIGATION.
    Mary Juni, etc., Appellant, v. A.O. Smith Water Products Co., et al., Defendants,
    Ford Motor Company, Respondent.
    2018-638
    Court of Appeals of New York.
    August 30, 2018
    Motion by Military-Veterans Advocacy, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.
   Judge Feinman took no part.


text:
    In the Matter of NEW YORK CIVIL LIBERTIES UNION, Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents.
    2018-785
    Court of Appeals of New York.
    August 30, 2018
    Motion by Advance Publications, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    In the MATTER OF LACEE L., etc.
    Stephanie L., Appellant; v. Administration for Children's Services, Respondent,
    Dekodia L., Respondent.
    Motion No: 2018-798
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion by Human Rights and Gender Justice Clinic of the City University of New York School of Law, et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    The PEOPLE etc., Respondent, v. Michael CUBERO, Appellant.
    2018-666
    Court of Appeals of New York.
    August 30, 2018
    Motion for assignment of counsel granted and George J. Hoffman, Jr., Esq., P.O. Box 264, East Greenbush, NY 12061 assigned as counsel to the appellant on the appeal herein.


text:
    The PEOPLE, etc., Respondent, v. Clinton BRITT, Appellant.
    2018-834
    Court of Appeals of New York.
    August 30, 2018
    Motion for assignment of counsel granted and Justine M. Luongo, Esq., Attorney-in-Chief, Criminal Defense Practice, The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of 141 AVENUE A ASSOCIATES, Respondent, v. Jay KLEIN, Appellant.
    2018-579
    Court of Appeals of New York.
    August 30, 2018
    Motion for leave to appeal dismissed upon the ground that this Court does not have jurisdiction to entertain a motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in the Civil Court of the City of New York (see N.Y. Const., art. VI, § 3 [b][7]; CPLR 5602[a] ).


text:
    Ada OPARAJI, Appellant, v. CITIBANK, N.A., Respondent.
    2018-605
    Court of Appeals of New York.
    August 30, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 1062, 77 N.Y.S.3d 331, 101 N.E.3d 972 (2018) ].


text:
    The PEOPLE etc., Respondent, v. Omar DELEON, Appellant.
    2018-726
    Court of Appeals of New York.
    August 30, 2018
    Motion for assignment of counsel granted and Justine M. Luongo, Esq., Attorney-in-Chief, Criminal Defense Practice, The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The PEOPLE etc., Respondent, v. Winston GAJADHAR, etc., Appellant.
    2018-811
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The PEOPLE etc., Respondent, v. Jakim GRIMES, Appellant
    2018-774
    Court of Appeals of New York.
    August 30, 2018
    Motion by New York County Lawyers Association, Appellate Courts Committee for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    The PEOPLE etc., Respondent, v. David MAIRENA, Appellant.
    2018-802
    Court of Appeals of New York.
    August 30, 2018
    Motion for assignment of counsel granted and Paul Skip Laisure, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Ivan SMITH, Appellant, v. Monique MURPHY, Respondent.
    2018-641
    Court of Appeals of New York.
    August 30, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    The PEOPLE of the State of New York, Respondent, v. Ramee MCCULLUM, Appellant.
    2018-815
    Court of Appeals of New York.
    Decided August 30, 2018
    Motion for assignment of counsel granted and Paul Skip Laisure, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The PEOPLE of the State of New York, Respondent, v. Ganesh RAMLALL, Appellant.
    2018-865
    Court of Appeals of New York.
    August 30, 2018
    Motion for assignment of counsel granted and Justine M. Luongo, Esq., Attorney-in-Chief, Criminal Defense Practice, The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The PEOPLE of the State of New York EX REL. Cory REID, Appellant, v. Robin BEAULIUE, etc., Respondent.
    2018-692
    Court of Appeals of New York.
    August 30, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 912, 2018 WL 3118188 (2018) ].


text:
    Deidre Holmes CLARK, Appellant, v. ALLEN & OVERY, LLP, Respondent.
    2018-405
    Court of Appeals of New York.
    September 6, 2018
    Motion, insofar as it seeks leave to appeal from the portion of the Appellate Division order that affirmed the parts of the August 2016 Supreme Court order dismissing the complaint and awarding sanctions for frivolous conduct, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order do not finally determine the action within the meaning of the Constitution.


text:
    In the MATTER OF JONATHAN S., an attorney and counselor-at-law.
    Attorney Grievance Committee for the First Judicial Department, Respondent, v. Jonathan S., Appellant.
    2018-696
    Court of Appeals of New York.
    September 6, 2018
    Motion for reargument and/or clarification of this Court's January 16, 2018 dismissal order dismissed as untimely (see Rules of Ct of Appeals [ 22 NYCRR] § 500.24 [b] ). [see 30 N.Y.3d 1083, 69 N.Y.S.3d 850, 92 N.E.3d 1240 (2018) ]. Motion for renewal of this Court's January 16, 2018 dismissal order denied. Motion for a stay dismissed as academic. Motion for other relief denied.


text:
    Daniel WILLIAMS et al., Appellants, v. BEEMILLER, INC. &c, et al., Defendants,
    Charles Brown, Respondent.
    2018-740
    Court of Appeals of New York.
    August 30, 2018
    Motion by Everytown for Gun Safety for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served, an original and nine copies filed, and the brief submitted in digital format within seven days.


text:
    In the MATTER OF Daryll Boyd JONES, a Suspended Attorney.
    Daryll Boyd Jones, Appellant v. Attorney Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Court of Appeals of New York.
    September 6, 2018
    Appeal dismissed without costs, by the Court sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of KEVIN MCK., Appellant, v. ELIZABETH A.E., Respondent.
    2018-568
    Court of Appeals of New York.
    September 6, 2018
    Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the dismissal of so much of the petition that sought enforcement of a visitation order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the MATTER OF Melvin M. MARIN, a Suspended Attorney.
    Attorney Grievance Committee for the Third Judicial Department, Respondent; v. Melvin M. Marin, Appellant.
    Court of Appeals of New York.
    September 6, 2018
    Appeal dismissed without costs, by the Court sua sponte, upon the ground that the February 2018 Appellate Division order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the MATTER OF MATHESON KK.
    Ulster County District Attorney, Appellant v. Matheson KK., Respondent.
    2018-617
    Court of Appeals of New York.
    September 6, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    The PEOPLE etc. EX REL. Victor MCKEEVER, Appellant, v. WARDEN, NASSAU COUNTY JAIL, Respondent.
    2018-719
    Court of Appeals of New York.
    September 6, 2018
    Motion, insofar as it seeks leave to appeal from the April 2018 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    In the MATTER OF NEW YORK CITY ASBESTOS LITIGATION.
    (All NYCAL Cases.)
    Cleaver-Brooks, Inc., et al., Appellants.
    Court of Appeals of New York.
    September 6, 2018
    Appeal dismissed without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    Kevin PHILLIP, Appellant, v. STATE of New York, Respondent.
    Court of Appeals of New York.
    September 6, 2018
    Appeal dismissed without costs, by the Court sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    TRIBECA LENDING CORPORATION, Respondent, v. Gregory M. BARTLETT, etc., Appellant,
    NYS Department of Taxation et al., Defendants.
    2018-640
    Court of Appeals of New York.
    September 6, 2018
    On the Court's own motion, defendant's appeal from the December 2017 Appellate Division order dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for reargument granted. Upon reargument, motion for leave to appeal from the December 2017 and February 2018 Appellate Division orders dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the MATTER OF Anthony Jacob ZAPPIN, an Attorney.
    Attorney Grievance Committee for the First Judicial Department, Respondent; v. Anthony Jacob Zappin, Appellant.
    Court of Appeals of New York.
    September 6, 2018
    Appeal dismissed without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.