text:
    COMMONWEALTH v. Ricco L. MURPHY.
    17-P-1623
    Appeals Court of Massachusetts.
    Entered: September 24, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted after a bench trial of assault and battery on a family or household member and violating an abuse prevention order. The sole issue on appeal is whether the judge erred in admitting out-of-court statements made by the victim to a testifying officer. We affirm.

On February 2, 2017, two Lowell police officers responded to an apartment after a report of an ongoing domestic incident. The incident was between the defendant and his girl friend, the victim. When the two responding officers arrived, the victim's son directed them to the second-floor apartment. As they climbed the stairs, the officers heard a male and female "screaming" at each other inside the apartment, and upon entry of the apartment they noticed blood on the walls. The officers found the victim in the living room, "borderline hysterical[,] ... crying[,] and holding the right side of her face," while "trying to form words." One of the officers, Officer Jason Gatto, asked the victim, "What happened? What's going on? Why is there blood everywhere?" The victim responded that the defendant had grabbed her by the hair and punched her in the face, and that she had stabbed him with a pocket knife to escape from him. While Gatto was speaking with the victim, the officers saw more blood in the kitchen, which was "in complete disarray," and could hear the defendant in the "back" of the apartment. The officers then called for backup and an ambulance because they "didn't know what [they] had at that point." Once backup arrived, officers apprehended the defendant, who was in a bedroom and bleeding from the arm. At that point, according to Gatto, the "scene was made safe and secure" because the officers had identified everyone in the apartment and no one was armed. Upon receiving medical treatment, the victim spoke to Gatto again and stated that the altercation started in the back bedroom area, that the defendant pulled her up by the hair and punched her in the face, and that she stabbed him with a pocket knife she kept under her pillow. She also stated that the defendant chased her from the bedroom into the kitchen area, where another struggle began, and she stabbed him a second time.

The Commonwealth filed a motion in limine to admit the statements made by the victim to police at the apartment. The defendant objected and filed a motion to exclude the statements, arguing in part that the statements were testimonial. The judge reserved judgment on the motions until Gatto testified. Over the defendant's renewed objection, the judge allowed Gatto to testify to the victim's initial statements that the defendant had grabbed her by the hair and punched her in the face as nontestimonial spontaneous utterances. He excluded the second set of statements the victim made to Gatto "later on after everything calmed down." On appeal, the defendant argues that the admission of the initial statements, which were testimonial, violated his right to confrontation and was therefore erroneously admitted.

Since the defendant's objection at trial preserved this issue for appeal, we review for prejudicial error. See Commonwealth v. Gomes, 475 Mass. 775, 787 (2016). "A statement is '[a] spontaneous utterance if (A) there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.' " Commonwealth v. Barbosa, 477 Mass. 658, 672 (2017), quoting Mass. G. Evid. § 803(2) (2017). "[S]tatements admissible as spontaneous utterances must also satisfy the confrontation clause of the Sixth Amendment to the United States Constitution, [which] bars the admission of testimonial out-of-court statements by a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had an earlier opportunity for cross-examination." Commonwealth v. Imbert, 479 Mass. 575, 580 (2018), quoting Commonwealth v. Mulgrave, 472 Mass. 170, 180 (2015).

The defendant asserts that the statements made by the victim to Gatto were "made when there was no emergency" and were "procured with the primary purpose of being used ... for trial testimony." The statements, he argues, were therefore testimonial in nature and cannot be admitted without violating the confrontation clause.

Factors that help distinguish testimonial statements from nontestimonial statements include:

"(1) whether the [declarant] was talking about 'events as they were actually happening rather than describ[ing] past events'; (2) whether any reasonable listener would recognize that the [declarant] was facing an 'ongoing emergency'; (3) whether what was asked and answered was, viewed objectively, 'necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past,' including whether it was necessary for [police] to know the identity of the alleged perpetrator; and (4) the 'level of formality' of the interview (emphasis in original)."

Commonwealth v. Galicia, 447 Mass. 737, 743 (2006), quoting Davis v. Washington, 547 U.S. 813, 827 (2006). While statements made in response to police questioning are often considered testimonial, such statements are nontestimonial where, when objectively assessed from the perspective of the parties at the time, there is an "ongoing emergency[ ] and the primary purpose of the interrogation [is] to meet that emergency, not to prove past events that may be relevant to criminal investigation or prosecution." Commonwealth v. Beatrice, 460 Mass. 255, 259 (2011).

The parameters of an ongoing emergency may depend on the "type and scope of danger posed to the victim, the police, and the public." Commonwealth v. Middlemiss, 465 Mass. 627, 634 (2013), quoting Michigan v. Bryant, 562 U.S. 344, 371 (2011). The duration of an ongoing emergency has no "concrete physical or temporal limits," and, because of the context-dependent nature of the determination, it is a finding "properly left to the trial courts." Middlemiss, supra at 635. The Davis Court acknowledged that a police officer's initial approach in domestic disputes "may often" produce nontestimonial statements because of the officer's need to assess the situation and any threat to responders, the victim, and the public at large. Davis, supra at 832. See Beatrice, supra at 262.

Here, the clear purpose of the initial questioning was to respond to an ongoing emergency. As the two police officers climbed the stairs to the apartment, they had only limited knowledge of an ongoing domestic dispute. Both officers could hear a male and female screaming at each other. After entering the apartment, they saw blood on the walls and in the kitchen, which was "in complete disarray." The victim, described by Gatto as "borderline hysterical," was sitting in the living room and was struggling to speak. The defendant's location, condition, and threat level were all unknown. A reasonable person, viewing the scene, could conclude that there was an ongoing emergency at that time. Gatto's questions for the victim were concerned with settling the situation at hand, not investigating past events, and the victim's answers were necessary for the police to respond appropriately. Notably, the judge properly excluded the victim's later statements made after the immediate crisis had passed.

In sum, the victim's initial statements given to an officer in the course of an ongoing emergency were nontestimonial. As a result, the judge's admission of those statements was not in error.

Judgments affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. James W. BENNETT.
    15-P-674
    Appeals Court of Massachusetts.
    Entered: September 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, James W. Bennett, of two counts of assault and battery, as lesser included offenses of assault and battery by means of a dangerous weapon, see G. L. c. 265, § 13A (a ). On appeal, the defendant argues that (1) the motion judge erred in denying his motion to suppress a victim-witness's out-of-court and in-court identifications of the defendant as the assailant, and (2) trial counsel provided ineffective assistance. We affirm.

Background. The following facts are drawn from the motion judge's memorandum of decision and order. On December 9, 2013, Dymphana Jeffers was in a parking lot standing near a car with three men: her boy friend, Keith Barnett, Keith's brother, Timothy Barnett, and the defendant. An argument ensued, during which Jeffers was struck in the face and Keith was shot. The shooter ran into a nearby apartment building.

Following the shooting, in the presence of police at the scene, Jeffers, who was hysterical, stated several times that the shooter's name was "James Bennett." At the police station, Jeffers viewed a single photograph of the defendant and confirmed that the person in the photograph shot Keith.

Before trial, the defendant moved to suppress Jeffers's identifications. On January 7, 2015, the motion judge held an evidentiary hearing and denied the motion as to Jeffers's December 9, 2013, identification, as well as to Jeffers's in-court identification at trial.

Discussion. 1. Motion to suppress out-of-court identification. In reviewing a motion to suppress, the appellate court "conduct[s] an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). One-on-one identification procedures are "generally disfavored as inherently suggestive." Commonwealth v. Dew, 478 Mass. 304, 306 (2017). To exclude a one-on-one identification, the defendant must prove, "by a preponderance of the evidence," that the identification was "so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [the defendant] due process of law." Id. at 306-307, quoting Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006). However, police are permitted to use one-on-one identification procedures when there is a "good reason." Dew, 478 Mass. at 307. When conducting a good reason analysis, we consider the following factors:

"[T]he nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track."

Commonwealth v. Austin, 421 Mass. 357, 362 (1995).

The defendant argues that the motion judge erroneously denied his motion to suppress Jeffers's December 9, 2013, out-of-court identification because it was unnecessarily suggestive. We disagree. This was a serious crime of violence and, at the time of the identification, the shooter had not yet been apprehended. The identification occurred shortly after the shooting when the incident was still fresh in Jeffers's mind. See Commonwealth v. Crayton, 470 Mass. 228, 235-236 (2014). Moreover, Jeffers repeated the defendant's name at the scene, identifying him as the shooter; thus, it was reasonable for the police to conclude that Jeffers knew the assailant. Under the totality of the circumstances, the police had good reason to show Jeffers a single photograph of the defendant shortly after the shooting, utilizing an identification procedure that was not unnecessarily suggestive.

2. Motion to suppress in-court identification. Even if the defendant had met his burden of establishing that the December 9, 2013, identification procedure was unnecessarily suggestive, we conclude that the motion judge did not err in denying the defendant's motion to suppress Jeffers's in-court identification.

When a defendant meets his or her burden of showing that an out-of-court identification was unnecessarily suggestive, the Commonwealth must establish by clear and convincing evidence that a "proffered identification has a source independent of the suggestive confrontation." Commonwealth v. Botelho, 369 Mass. 860, 868 (1976).

The defendant argues that there was no independent source for the in-court identification because Jeffers did not know the defendant and her opportunity to observe the shooter on December 9, 2013, was limited by the fact that the altercation occurred at night, in a dark parking lot, and the individuals involved were "bundled up" due to the cold weather. We disagree.

As the motion judge concluded, Jeffers had ample opportunity to observe the defendant, as she was in his presence for four to five minutes and she was standing next to him when the altercation occurred. Shortly after the altercation, Jeffers positively identified the defendant in a single photograph. Jeffers did not err in previous descriptions or identifications of the defendant, nor did the police make any suggestions about the defendant's identity as the assailant.

Finally, even if the motion judge erred in denying the defendant's motion to suppress Jeffers's December 9, 2013, out-of-court identification and in-court identification, such an error would have been harmless beyond a reasonable doubt. See Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). At trial, it was never disputed that the defendant was present at the scene and was one of three men outside of the motor vehicle. Jeffers knew the other two males -- Keith and Timothy. In addition, the attack was captured on a videotape recording (video). In addition, Keith knew the defendant and identified him as the assailant.

3. Ineffective assistance of counsel. The defendant also argues that he received ineffective assistance of counsel, arguing that his trial attorney abandoned his misidentification defense during closing argument, and instead, conceded the defendant's guilt on the lesser included charges of assault and battery, of which the defendant was ultimately convicted.

Generally, we do not reach an ineffectiveness claim when it is raised for the first time on direct appeal. 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." See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). This case does not fit into the exception where "the factual basis of the claim appears indisputably on the trial record." Id. at 811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Where the claim of ineffectiveness is based on a tactical decision, a "challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Id., quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). On this record, we cannot say that it was manifestly unreasonable to concede that the defendant did strike the two victims where (1) Jeffers and Keith identified the defendant as the assailant, and (2) the video of the altercation supports trial counsel's contentions. Indeed, the strategy ultimately succeeded, as the defendant was acquitted of more serious charges, including armed assault with intent to murder, illegal possession of a firearm, unlawful possession of ammunition without an FID card, and two counts of assault and battery by means of a dangerous weapon.

Judgments affirmed.

      Because the victim and his brother, who witnessed the altercation, share the same surname, we shall refer to them by their first names.

      The defendant also moved to suppress an identification Jeffers made on December 20, 2013, when a police officer again showed Jeffers the single photograph of Bennett. The motion judge allowed that motion.

      The defendant argues that Jeffers did not tell the police the defendant's name, as she only learned the defendant's full name when the police showed her his photograph at the police station. However, the motion judge credited the police officer's testimony that Jeffers stated the defendant's name at the scene several times, identifying him as the shooter.

      To determine whether there is an independent source, we consider the following factors:
      "(1) The extent of the witness' opportunity to observe the defendant at the time of the crime; prior errors, if any, (2) in description, (3) in identifying another person or (4) in failing to identify the defendant; (5) the receipt of other suggestions, and (6) the lapse in time between the crime and identification."
      Commonwealth v. Botelho, 369 Mass. 860, 869 (1976), quoting Commonwealth v. Ross, 361 Mass. 665, 671 n.2 (1972).

      The motion judge found that "lights illuminated the parking lot."

      Keith's brother, Timothy, fathered a son with the defendant's mother. Accordingly, the defendant is Keith's nephew's half-brother.

      This argument is brought pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).


text:
    COMMONWEALTH v. Sylvia E. COLON.
    16-P-73
    Appeals Court of Massachusetts.
    Entered: September 24, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle under the influence of drugs (OUI marijuana). On appeal, the defendant claims she is entitled to a new trial due to errors in the admission of certain evidence following the decision in Commonwealth v. Gerhardt, 477 Mass. 775 (2017). We affirm.

1. The application of Gerhardt. The defendant claims that she is entitled to the benefit of Gerhardt and therefore certain evidence regarding the purpose and use of field sobriety tests (FSTs) should not have been admitted at trial. The Commonwealth contends that Gerhardt does not apply, but even if it did, there was no error. Here, counsel for the defendant made an oral motion at the start of trial to exclude evidence of FSTs. The judge denied the motion and said, "As to those I save your rights[.]" This case was pending on direct appeal at the time that Gerhardt was decided. "Where multiple cases await appellate review on precisely the same question, it is inequitable for the case chosen as a vehicle to announce the court's holding to be singled out as the 'chance beneficiary' of an otherwise prospective rule." Galiastro v. Mortgage Elec. Registration Sys., 467 Mass. 160, 167-169 (2014). Accordingly, the defendant is entitled to the benefit of Gerhardt.

2. Discussion. The defendant contends that she is entitled to a new trial due to errors in the admission of FST evidence and in the jury instructions. There is some dispute over whether each claimed error was preserved. However, whether viewed through the lens of prejudicial error or substantial risk of a miscarriage of justice, the result is the same. On this record, we cannot say that any alleged error prejudiced the defendant. See Commonwealth v. Morales, 464 Mass. 302, 313 n.19 (2013) ; Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1980).

First, the defendant claims error in the repeated use of the phrase "field sobriety test" throughout the trial. Gerhardt did not eliminate the use of the word "test" or the term "field sobriety tests." Rather, the court held that in OUI marijuana cases, FSTs are to be referred to as "assessments," but also recognized that "it is not practicable to eliminate the concept of testing entirely from trial testimony." Gerhardt, supra at 784-785. Here, it is unlikely that the use of the term "test" or the term "FST" played much of a role, if any, in the jury's verdict.

Next, the defendant contends that police Officer Nathan Derby should not have been permitted to testify that he was looking for "clues of impairment" in her performance of the FSTs. FSTs are "relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle[.]" Id. at 776. Derby testified to his observations of the defendant during the FSTs which included that she had difficulty balancing, poor coordination, and was unable to follow instructions. He explained that he was looking for clues of impairment, without any reference to marijuana. This was proper. Indeed, the defendant seized on this testimony to suggest that Derby arrested her after forming the wrong opinion -- that she was under the influence of alcohol.

The defendant also claims that it was error to allow Derby to testify that he formed an opinion. However, when Derby was asked what his opinion was, the defendant's objection was properly sustained. Derby then testified, without objection, that he placed the defendant under arrest. Prior to this series of questions, Derby testified as to his observations of the defendant's driving. These observations included that the defendant traveled thirty-five to forty miles per hour in a fifty mile-per-hour speed zone, repeatedly applied her brakes despite a smooth flow of traffic, drove up to half of her vehicle over the dividing line on three occasions, and, upon being signaled to stop by Derby, pulled over in the middle of an on-ramp. Derby also testified about the odor of marijuana on the defendant's person and in his police cruiser following her placement in the back seat, her bloodshot eyes, and her admission that she smoked marijuana earlier in the day. On these facts, even if there was error, there was no prejudice. See Commonwealth v. Canty, 466 Mass. 535, 545 (2013).

Finally, the defendant claims that the jury instructions failed to communicate to the jury that "roadside tests are not scientific tests of impairment by marijuana use." She did not, however, ask for such an instruction and failed to object to the given instructions. As such, we review for error, and if so, whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The defendant was not entitled to the now proposed instruction, either before or after Gerhardt. The judge properly instructed the jury and clarified that the defendant was charged with OUI marijuana, not OUI alcohol. There was no error.

Judgment affirmed.

      The defendant was found not responsible for two civil infractions.


text:
    COMMONWEALTH v. John PATTERSON.
    17-P-858
    Appeals Court of Massachusetts.
    Entered: September 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was charged with operating a motor vehicle with a suspended license, G. L. c. 90, § 23, and two civil motor vehicle equipment infractions, G. L. c. 90, § 7. After the case was continued multiple times because the defendant had not been transported to the court house from the Massachusetts Correctional Institution at Cedar Junction (Cedar Junction), a District Court judge dismissed the case, sua sponte, over the Commonwealth's objection. We agree with the Commonwealth that the judge exceeded her authority when she dismissed the case. Accordingly, we vacate the judgment of dismissal.

Background. We summarize the relevant procedural history. The complaint issued on August 2, 2016, and the defendant was arraigned the following day. On September 8, 2016, the defendant failed to appear for a pretrial conference and an arrest warrant issued. When the defendant next appeared in court on December 14, 2016, the warrant was recalled and bail was set at $200, which the defendant did not post. In January, 2017, the case was continued to February 10, 2017. At the hearing on February 10th, the judge was informed that the defendant was being held at Cedar Junction and had not been transported. Consequently, the case was continued to March 15, 2017, for a pretrial hearing.

On that date, the defendant again failed to appear because he had not been transported from Cedar Junction. The following discussion ensued.

THE COURT : "What's the story?"
THE CLERK : "Well, the charge here is operating after suspension. I don't know what he's in jail for or how long he's doing."
DEFENSE COUNSEL : "It's going to be --"
THE COURT : "Commonwealth?"
THE PROSECUTOR : "He's in jail for rape of a child. We're not dismissing this one, Your Honor."
THE COURT : "It's an operating after suspension, Commonwealth."
THE PROSECUTOR : "I understand, Your Honor."
THE COURT : "So it's dismissed over the Commonwealth's objection."
DEFENSE COUNSEL : "Thank you, Your Honor."
THE COURT : "Is that a strenuous objection, Commonwealth?"
THE PROSECUTOR : "No, Your Honor."

Discussion. "It is well established that the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor." Commonwealth v. Manning, 75 Mass. App. Ct. 829, 831-832 (2009). This precept "rests on the principle of separation of powers, set forth in art. 30 of the Massachusetts Declaration of Rights, which does not 'permit judges to substitute their judgment as to whom and what crimes to prosecute, for the judgment of those who are constitutionally charged with that duty.' " Id. at 832, quoting from Commonwealth v. Cheney, 440 Mass. 568, 575 (2003). "Absent a legitimate basis that appears from the record, ... sanctioned by statute or rule," a judge may not dismiss a valid complaint over the Commonwealth's objection. Commonwealth v. Kardas, 93 Mass. App. Ct. 620, 625 (2018). See Commonwealth v. Morgan, 476 Mass. 768, 780 (2017).

Here, the record does not reflect a legitimate basis for the dismissal. The defendant did not file a motion to dismiss, the judge did not explain her reasoning, and the docket entry for March 15th indicates only the following: "[Defendant] not transported again. Dismissed over [Commonwealth's] objection." While the judge may well have concluded that the interests of judicial economy warranted dismissal in light of multiple continuances on this relatively minor charge, that judgment was not hers to make. Absent a motion to dismiss, it was for the prosecutor, and not the judge, to assess the merits of prosecution.

Judgment vacated.

      Although the record is not clear, the defendant's incarceration at Cedar Junction appears to have resulted from some combination of prior convictions and other pending charges.

      We are not persuaded by the defendant's argument that the Commonwealth did not properly object to the dismissal. The transcript and the docket sheet indicate otherwise. "By consistently expressing its desire and intent to prosecute [the defendant], the Commonwealth preserved its rights to challenge the judge's dismissal." Cheney, supra at 573 n.11.


text:
    Gail CHENELL v. CENTRAL WHEELCHAIR & VAN TRANSPORTATION, INC. & another.
    17-P-1352
    Appeals Court of Massachusetts.
    Entered: September 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Brendan Michael Cross.

   The plaintiff, Gail Chenell, sued the defendants, Central Wheelchair and Van Transportation, Inc. (Central) and its employee, Brendan Michael Cross, seeking damages for personal injuries that she sustained in a motor vehicle accident. At a trial in the District Court, the judge allowed the defendants' motion for a directed verdict pursuant to Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). The only question before us is whether, when the plaintiff submitted in evidence only medical treatment records but no medical bills or testimony about the bills, there was an absence of evidence proffered by the plaintiff to show that her medical costs incurred in treating her accident-related injuries exceeded $2,000, the threshold requirement, under G. L. c. 231, § 6D, for recovery of pain and suffering damages. The Appellate Division affirmed the outcome in all respects. We reverse.

1. Background. On May 17, 2011, the plaintiff, who used an electric wheelchair, was traveling in a handicap accessible van owned by Central and driven by Cross. As a result of an abrupt stop, the plaintiff fell partly out of her wheelchair, her knees hit the floor, and her wheelchair tipped on top of her.

At trial, the plaintiff introduced certified medical records evidencing her course of treatment for injuries as a result of the fall in the van. These records document a visit to a hospital emergency room during which the plaintiff was examined and underwent numerous imaging tests (including multiple x-rays and a computerized tomography scan). She had follow up visits with her primary care physician related to the back injury, and, within a month of the incident underwent diagnostic magnetic resonance imaging (MRI) for the lumbar sprain and strain, and received at least two prescriptions to treat the injury.

Some four years after the accident, on April 9, 2015, the plaintiff presented to an orthopedic specialist, Dr. David C. Morley, who prepared a report of his findings. Based on his examination of the plaintiff and a review of her medical history, Morley determined, "within a reasonable degree of medical certainty," that the plaintiff had suffered an "acute flexion/extension injury" to her neck and lumbosacral spine, injuries that were, in Morley's informed opinion, causally related to the May 17, 2011, accident. Morley's written report was admitted in evidence at trial with no objection by the defendants.

2. Discussion. In reviewing the allowance of the defendants' motion for a directed verdict, pursuant to rule 50(a), we "evaluate whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant].' " O'Brien v. Pearson, 449 Mass. 377, 383 (2007), quoting from Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992).

General Laws c. 231, § 6D, "conditions a plaintiff's recovery for pain and suffering on the determination that his [or her] reasonable and necessary medical expenses are in excess of [$2,000], unless the accident-related sickness or injury falls into one of five defined categories." Vieira v. Schupp, 383 Mass. 739, 742-743 (1981).

The core question at trial reduced to whether the plaintiff adduced sufficient evidence to show that her necessary and reasonable medical expenses exceeded $2,000. See Victum v. Martin, 367 Mass. 404, 407 (1975) ; Lima v. Marshall, 70 Mass. App. Ct. 424, 427 (2007). While it was not the best practice to fail to offer itemized medical bills, it was not inherently fatal to the plaintiff's claim in this particular case. Under Massachusetts law, the trier of fact may reasonably infer, based on certified medical records of the plaintiff's treatment, that his or her medical expenses, necessitated solely by and causally related to the subject motor vehicle accident, was (or was not) in excess of the $2,000 threshold under G. L. c. 231, § 6D. See Holmgren v. LaLiberte, 4 Mass. App. Ct. 820, 821 (1976). Viewed in the light most favorable to the plaintiff, given the emergency room visit, numerous imaging tests, including an MRI, and prescriptions, the jury could have concluded that the plaintiff's medical costs incurred in treating her accident-related injuries exceeded $2,000, the threshold requirement, under G. L. c. 231, § 6D. The lack of expert testimony, or lay testimony from the plaintiff, does not foreclose the same. Victum v. Martin, supra at 408-409. It was error not to submit the case to the jury.

The order of the Appellate Division is reversed. The judgment of the District Court that entered in favor of the defendants is reversed. The case is remanded to the District Court for a new trial.

So ordered.

Reversed and remanded.

      Morley summarized the plaintiff's medical history and noted that the plaintiff had not encountered significant back pain prior to the 2011 motor vehicle accident.

      No challenge was made to the sufficiency of the evidence as to the defendants' alleged negligence.


text:
    COMMONWEALTH v. Ricardo ARGOMAS.
    17-P-1560
    Appeals Court of Massachusetts.
    Entered: September 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On December 20, 2002, the defendant, Ricardo Argomas, pleaded guilty to two charges of possession of a Class B substance with intent to distribute, alleged in two separate criminal complaints. The Commonwealth simultaneously dismissed a charge of trafficking in cocaine, a charge of possession of a Class D substance, and two school zone charges associated with the charges to which the defendant pleaded guilty. Fourteen years later, the defendant filed a motion for new trial, seeking to revoke his guilty pleas on the ground that his attorney at the time did not advise him that he risked deportation by pleading guilty. See Padilla v. Kentucky, 559 U.S. 356 (2010). The motion judge, who was not the plea judge, denied the motion, as well as a subsequent motion for reconsideration. We affirm.

Discussion. To be entitled to relief, the defendant had the burden to show that plea counsel failed to give him adequate advice with respect to the immigration consequences of his plea, and that he was prejudiced by counsel's constitutionally deficient advice. See Commonwealth v. Sylvain, 466 Mass. 422, 437-438 (2013) ; Commonwealth v. Henry, 88 Mass. App. Ct. 446, 451-452 (2015). In the context of a Padilla claim, the defendant has three avenues for demonstrating prejudice: he can show (1) that he had a viable defense to the charges, (2) a reasonable probability of negotiating a plea bargain that would not have exposed him to immigration consequences, or (3) "the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Henry, 88 Mass. App. Ct. at 455, quoting from Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). In his motion, as on appeal, the defendant pressed only a special circumstances argument.

The judge denied the motion, finding that the defendant made "no showing that plea counsel's performance was ineffective" and that the defendant had "failed to convince the court that special circumstances apply in this matter." We review a judge's action on a motion to withdraw a guilty plea to determine whether the judge committed an abuse of discretion or made a significant error or law. See Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). The defendant bears the burden of proof, "and a judge is entitled to discredit affidavits he or she does not find credible." Commonwealth v. Marinho, 464 Mass. 115, 123 (2013).

Attempting to show that he was not advised of the immigration consequences of his plea, the defendant offered the affidavit of plea counsel, who professed "no recollection of discussing immigration consequences with the defendant" fourteen years earlier. In his own affidavit, the defendant asserted that his attorney did not advise him that his guilty plea "would automatically make [him] deportable" and bar him from citizenship. The judge discredited the defendant's affidavit -- not for the generic reason that it was self-serving, but rather based on a specific statement and further criminal activity that the judge found to undermine the defendant's credibility. We discern no error or abuse of discretion in the judge's conclusion that the defendant failed to prove that he received deficient legal advice.

Nor do we discern any error or abuse of discretion in the judge's determination that the defendant failed to demonstrate special circumstances. In this regard, the defendant had the burden to show that when he pleaded guilty in 2002, "he placed, or would have placed, particular emphasis on immigration consequences." Clark, 460 Mass. at 47-48. The affidavit he provided, however, focused on his situation in December, 2016, when he was almost thirty-eight years old and had lived in the United States for seventeen years: his immediate family members all resided in the United States, and his father, two sisters, brother, fiancée, and three children (ages fourteen, eleven, and two) were all United States citizens. While the defendant's affidavit may have explained why he wanted to remain in the United States at the present time, it provided almost no information about his circumstances in 2002, when he was twenty-four years old, had lived in the United States only four years, had not yet met his fiancée, and none of his children had been born. The record supported the judge's determination that the defendant had failed to demonstrate "special circumstances" in his motion.

The defendant attempted to cure the defect in his original affidavit with a new affidavit, which he filed in connection with his motion for reconsideration. In the second affidavit he stated that his mother, father, sisters, brother, uncles, aunts, and cousins were all living in the United States at the time of his plea, and that his "then girlfriend was pregnant with [his] oldest child." The judge, who had good cause not to credit the defendant's first affidavit, was not obligated to accept his second one, and, in any event, the judge could fairly conclude that the second affidavit did not sufficiently demonstrate prejudice.

Order denying motion for new trial affirmed.

Order denying motion for reconsideration affirmed.

      One of the complaints included civil and criminal motor vehicle violations, which were also resolved by the plea proceedings. Those charges are not relevant to this appeal.

      His bare assertion that he "also had a viable defense to the charges against him," for which he provided no factual support whatsoever, does not warrant further attention.

      In his affidavit, the defendant stated that he "currently ha[d] [his] own cell phone and computer repair business in Worcester, MA." The Commonwealth presented unchallenged evidence that two years earlier, the Worcester police had executed a search warrant at the very same business, where they discovered an illegal handgun, ammunition, and heroin, resulting in serious criminal charges against the defendant, which were pending at the time of the motion hearing.


text:
    In the Matter of Wayne SPENCE, as President of the New York State Public Employees Federation, AFL-CIO, et al., Appellants, v. NEW YORK STATE DEPARTMENT OF AGRICULTURE AND MARKETS et al., Respondents.
    No. 128 SSM 16
    Court of Appeals of New York.
    Decided September 18, 2018
    Edward J. Aluck, New York State Public Employees Federation, AFL-CIO, Albany (Jessica C. Caggiano of counsel), for appellants.
    Barbara D. Underwood, Attorney General, Albany (Jonathan D. Hitsous, Andrew D. Bing and Victor Paladino of counsel), for respondents.
    OPINION OF THE COURT
   On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11 ), order, insofar as appealed from, affirmed, without costs. The challenged policy has not been shown to be unconstitutional (see United States Civ. Serv. Commn. v. National Assn. of Letter Carriers , 413 U.S. 548, 564, 93 S.Ct. 2880, 37 L.Ed.2d 796 [1973] ; see also United States v. National Treasury Employees Union , 513 U.S. 454, 467, 115 S.Ct. 1003, 130 L.Ed.2d 964 [1995] ).

Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur. Judge Rivera dissents in an opinion. Judge Wilson dissents in a separate dissenting opinion.

I would reverse and remand to the Appellate Division for consideration of the claims raised herein as it appears its decision may be based on an erroneous legal standard. As discussed in Judge Wilson's thoughtful dissent, petitioners raise important questions of constitutional rights that should be fully considered by the Appellate Division in the first instance.

Respondents New York State Department of Agriculture and Markets and its Commissioner denied the requests to run for county legislator of two state dairy products specialists, petitioners Gregory Kulzer and Ronald Brown. Petitioners, along with their union, New York State Public Employees Federation (AFL-CIO) and its president, Wayne Spence, filed this hybrid declaratory judgment/CPLR article 78 proceeding challenging the constitutionality of those individual determinations and the Department's revised policy prohibiting employees responsible for inspection of regulated entities-like Kulzer and Brown-from campaigning for or holding elected office. Supreme Court and the Appellate Division both rejected petitioners' constitutional arguments.

In United States v. National Treasury Employees Union. 513 U.S. 454, 466-468 and n. 11, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), the United States Supreme Court clarified that a heightened standard, one less deferential to government than the test established in Pickering v. Board of Education of Township High School District 205, Will County, Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) applies to public employee First Amendment challenges involving a generally applicable law. In Janus v. State, County and Municipal Employees, --- U.S. ----, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018), the Court reaffirmed that across-the-board limitations on public employee speech are subject to considerably greater and critical examination. The Court explained:

"A speech-restrictive law with 'widespread impact,' we have said, 'gives rise to far more serious concerns than could any single supervisory decision. Therefore, when such a law is at issue, the government must shoulder a correspondingly 'heav[ier]' burden, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights. The end product of those adjustments is a test that more closely resembles exacting scrutiny than the traditional Pickering analysis." ( 585 U.S. at ----, 138 S.Ct. at 2472 [citations omitted], quoting Treasury Employees , 513 U.S. at 466, 468 [115 S.Ct. 1003 ).

The Appellate Division resolved petitioners' appeal before Janus was decided, and the opinion below relies expressly on Pickering for its conclusion that petitioners failed to establish the unconstitutionality of the Department's policy, without reference to the exacting scrutiny required by National Treasury . In fact, National Treasury is cited once without discussion or elaboration, as part of a "see generally" string citation at the end of the court's analysis ( Spence v. New York State Dept of Agriculture and Mkts. , 154 A.D.3d 1234, 1238, 64 N.Y.S.3d 328 [3d Dept. 2017] ). It is therefore unclear whether the Appellate Division applied the proper standard to petitioners' claims. Accordingly, I would remand to the Appellate Division so that it may consider under the standard in National Treasury , and with the benefit of the Supreme Court's directive in Janus that courts apply "exacting scrutiny" to widespread legislative limits on public employee speech, whether the Department here sustained its heavy burden, and whether its policy is entitled to the less deferential standard afforded laws passed by the legislature.

For the reasons discussed above and in Judge Wilson's dissent, recent Supreme Court decisions are relevant to the analysis of petitioners' constitutional claims. I would remand for consideration of these decisions and therefore dissent.

For the past 34 years, Gregory Kulzer has worked for the Department of Agriculture as a dairy products specialist, responsible for inspecting milk plants to ensure the quality and safety of milk, cheese, butter and yogurt we consume. In 2013, Mr. Kulzer decided he would like to serve as a local legislator in Lewis County. He submitted an outside activity request to the Department, which approved his request. Mr. Kulzer ran as a Republican, and the voters elected him to a two-year term later that year. When, as the Department annually required, Mr. Kulzer renewed his outside activity request in 2014, the Department denied it "based upon a conflict of interest and/or an appearance of a conflict of interest pursuant to ... Public Officers Law § 74." On April 6, 2015, the Department revised its Employee Policies Handbook to include a revised "Political Activities" policy. As part of the policy, "[a]ny employee that holds a position that requires him or her to conduct inspections of regulated parties may not campaign for or hold elected office (e.g., County Legislator)."

The First Amendment protects campaigning for elected office (see Castine v. Zurlo , 756 F.3d 171, 176 [2d Cir. 2014] ). The United States Supreme Court has recognized the importance of the Constitution's protections for political participation (see Williams v. Rhodes , 393 U.S. 23, 32, 89 S.Ct. 5, 21 L.Ed.2d 24 [1968] ["Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms"]; Illinois State Bd. of Elections v. Socialist Workers Party , 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 [1979] ["By limiting the choices available to voters, the State impairs the voters' ability to express their political preferences. And for reasons too self-evident to warrant amplification here, we have often reiterated that voting is of the most fundamental significance under our constitutional structure"] ). Government employees do not "relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest" upon entering public service ( United States v. National Treasury Employees Union , 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 [1995], quoting Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 [1968] ). I believe the majority fully agrees with the above.

Determining the validity of a restraint on speech by public employees requires a "balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees" ( Pickering , 391 U.S. at 568, 88 S.Ct. 1731 ). Here, the Department's outside activities policy is categorical and prophylactic, not individual and post hoc ; that is, the policy "chills potential speech before it happens" ( National Treasury , 513 U.S. at 468, 115 S.Ct. 1003 ). As such,

"the Government's burden is greater with respect to this [type of] statutory restriction on expression than with respect to an isolated disciplinary action. The government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the government" ( id. ).

The majority cites to National Treasury but fails to engage with its "heavy" burden at all ( id. at 466, 115 S.Ct. 1003 ).

To be sure, the United States Supreme Court has upheld similar restraints imposed by the Hatch Act (see United Public Workers of America v. Mitchell , 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 [1947] ; US Civil Service Commission v. National Association of Letter Carriers, AFL-CIO , 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 [1973] ). The majority appears to take the results from those cases as outcome-determinative here, but it is their analytical method - not their result - that pertains. The rule set out in those cases -as well as in longstanding Supreme Court doctrine concerning impingement of First Amendment rights involves a balancing of the degree of impingement against the particular interest the government seeks to address through the restrictions. Congress' purposes underlying the Hatch Act are very different from those underlying the Department's policy here. The constitutionally required balance must be performed with the Department's purposes in mind, and the restrictions - though sufficiently narrowly tailored to address Congress' Hatch-Act concerns - are not narrowly tailored as to the Department's.

Mitchell and Letter Carriers upheld restrictions contained in the Hatch Act. The policy goals underlying the Hatch Act, as identified by the United States Supreme Court, were "an efficient government, faithful to the Congress rather than to party"; "avoiding the danger of a powerful political machine" because of "the large and growing federal bureaucracy and its partisan potential"; and "ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity" (see Magill v. Lynch , 560 F.2d 22, 27-28 [1st Cir. 1977] [discussing Letter Carriers ] ). "[T]he Supreme Court stressed on almost every page of the Letter Carriers opinion that the central purpose of the Hatch Act was to prevent the corruption of federal employment by political party activity" ( Blaylock v. U.S. Merit Sys. Prot. Bd. , 851 F.2d 1348, 1353 [11th Cir. 1988] ). The Supreme Court later distinguished the Hatch Act from other restrictions, noting that the Hatch Act "aimed to protect employees' rights, notably their right to free expression, rather than to restrict those rights" ( National Treasury , 513 U.S. at 471, 115 S.Ct. 1003 ).

The Department's rule in this case is motivated by quite dissimilar concerns. The Department has consistently asserted that the justification for its outside activities policy is eliminating the risk of actual or apparent conflicts of interest. The Department has never suggested that elimination of partisan political influence or the fear of partisan takeover of the Department of Agriculture makes up any part of the Department's motivation for its policy, nor is there any support in the record for such a contention. Indeed, the Department has asserted that partisanship is irrelevant to the concerns motivating its restraints on speech, insisting that its "concern exists regardless of whether the employee is running for the county legislature, a school board, or any other publicly elected position." (Even if the Department were genuinely concerned about a partisan takeover of milk inspection, or New York agriculture more generally, its policy applies to partisan and nonpartisan elections alike, rendering it overbroad.)

Here, because of "the absence of substantial party involvement ... the interests identified by the Letter Carriers Court lose much of their force" ( Magill , 560 F.2d 22 at 29 ; see also National Treasury , 513 U.S. at 471, 115 S.Ct. 1003 ["Unlike partisan political activity, however, honoraria hardly appear to threaten employees' morale or liberty"] ). Thus, the fact that Mr. Kulzer won a partisan election is of no moment. It is not the partisan/nonpartisan nature of the office sought that brings this case outside the realm of Letter Carriers and Mitchell . It is that the government's justification in those cases relied on partisanship, which concern is concededly absent here.

So long as the Department's rationale is not pretextual, we must consider the justification advanced by the Department at the time of the policy's enactment - not any different post hoc justification (though none is offered here) (see e.g. , Wallace v. Jaffree , 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 [1985] [rejecting post hoc secular justifications for an Alabama statute authorizing moments of silence in schools, where the legislative history clearly indicated that the goal was non-secular - a "return to voluntary prayer"] ). Merely because Congress had a sufficient legislative purpose in 1939 to justify the Hatch Act's restrictions does not mean that any other governmental entity can lawfully impose identical restrictions on speech, irrespective of whether that governmental entity has a completely different purpose, no purpose, or an invidious purpose.

As the Court recognized in National Treasury , avoiding the appearance of impropriety can be a legitimate government interest. However, legitimate interests alone do not make a rule constitutional: "Our cases do not support the notion that the bare assertion of a laudable purpose justifies wide-ranging intrusions on First Amendment liberties" ( National Treasury at 483, 115 S.Ct. 1003 [O'Connor, J., concurring in part, dissenting in part] ).

"When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply 'posit the existence of the disease sought to be cured.' It must demonstrate that the recited harms are real, not merely conjectural , and that the regulation will in fact alleviate these harms in a direct and material way ." ( Id. at 475, 115 S.Ct. 1003 [emphasis added], quoting Turner Broad. Sys., Inc. v. Federal Commc'ns Comm'n , 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 [1994] ).

In National Treasury , the Court struck down the ban on executive employees receiving honoraria for speeches. In addressing the weight to give the government's interest, the Court noted that the government relied "on limited evidence of actual or apparent impropriety by legislators and high-level executives" ( id. at 472, 115 S.Ct. 1003 ). In contrast, the Court upheld the provisions of the Hatch Act in Mitchell because Congress enacted them "only after canvassing nearly a century of concrete experience with the evils of the political spoils system" ( id. at 483-484, 115 S.Ct. 1003 [O'Connor, J., concurring in part, dissenting in part, citing FCC v. League of Women Voters of Cal. , 468 U.S. 364, 401, 104 S.Ct. 3106, 82 L.Ed.2d 278 [1984] [the Hatch Act "evolved over a century of governmental experience with less restrictive alternatives that proved to be inadequate to maintain the effective operation of government"] ). Here, the Department's posited justification was based on one incident - the circumstances of which are disputed - and has since resulted in a rule that restricts inspectors from campaigning for and holding a range of elected offices. The Department does not offer any additional evidence. In fact, in its Appellate Division briefing, the Department claimed that it "grounded its actions in the appearance of conflict," and as such, "the Department did not need to identify a 'real' conflict with particularity." To the contrary, "a 'reasonable' burden on expression requires a justification far stronger than mere speculation about serious harms" ( National Treasury , 513 U.S. at 475, 115 S.Ct. 1003 ).

Additionally, it is important to note that the outside activities policy was created by the New York State Department of Agriculture; not Congress, not the New York State Legislature, not any legislative body. In National Treasury , the Court recognized: "We normally accord a stronger presumption of validity to a congressional judgment than to an individual executive's disciplinary action" ( 513 U.S. at 468, 115 S.Ct. 1003 ; see also Harman v. City of New York , 140 F.3d 111, 122 n. 5 [2d Cir. 1998] ["executive orders such as those at issue here are entitled to less deference than legislative determinations such as the Hatch Act"] ). Mitchell and Letter Carriers both emphasized the importance of Congress' role in considering the public policies behind the Hatch Act (see Mitchell , 330 U.S. at 99-100, 67 S.Ct. 556 ; Letter Carriers , 413 U.S. at 556, 561-63, 93 S.Ct. 2880 ). Here, a non-legislative body has adopted a broad speech restraint, concededly based on a single experience, amounting to a "bare assertion of a laudable purpose."

But let us assume that the need to avoid conflicts and the appearance of conflicts is as great for milk inspectors or Lewis County legislators as it is for judges or state legislators. Even so, the Department's restrictions are not narrowly tailored to serve that end; numerous less-restrictive alternatives are available. The narrow-tailoring analysis must be different for conflict-of-interest concerns than for the partisan takeover concerns, because a restriction's breadth must depend on the harm to be avoided (see National Treasury , 513 U.S. at 472, 115 S.Ct. 1003 ["Instead of a concern about the 'cumulative effect' of a widespread practice that Congress deemed to 'menace the integrity and the competency of the service,' Mitchell , 330 U.S. at 103, 67 S.Ct. 556, the Government relies here on limited evidence of actual or apparent impropriety by legislators and high-level executives, together with the purported administrative costs of avoiding or detecting lower level employees' violations of established policies"] ).

Thus, because the Department's stated justification here is based on potential conflicts of interest, such conflicts could be - and routinely are - dealt with by recusal rules, such as those that apply to judges (see e.g. , N.Y. Judiciary Law § 14 [disqualification/recusal], 16-17 [part-time judges], 471 [judicial clerks] ), or state legislators (see e.g. , N.Y. Senate Rule § 10.1; NY Public Officer Law § 74 ). Persons violating those types of rules face disciplinary proceedings and criminal prosecution (for example, Sheldon Silver, the former Speaker of the State Assembly, and Dean Skelos, the former State Senate majority leader, were charged with corruption for engaging in bribery and conflicted transactions ). The partisan takeover concerns Congress addressed through the Hatch Act could not have been addressed by recusal rules, and perhaps not even by the threat of criminal prosecution, where the fear was control of the entire government by a single ruling party. Likewise, where avoidance of partisan takeover might justify a ban on campaigning for office, prohibiting a public employee from running for elective office, contingent upon resigning if elected, serves no purpose articulated by the Department.

The Department's policy is not a "reasonable response to the posited harms" ( National Treasury , 513 U.S. at 476, 115 S.Ct. 1003 ). The policy does not provide a definition of elected office that would restrict the policy's scope, nor does it set out any exceptions or procedures for recusal. Instead, the Department nakedly asserts it could not tailor the rule more narrowly: "the Department reasonably determined that there was no way to remove the taint of dual office-holding" as "[a]ny inspectors who campaigned for elected office would be susceptible to claims that they were soliciting special favors from supporters." (Of course, the same would be true for judges or legislators.) The fact that the policy is limited to inspectors does not make the policy sufficiently tailored. The policy must be a reasonable response to the legitimate government interest at stake . In the context of the Hatch Act, the Supreme Court held that the law was constitutional even when applied to a large number of federal employees, because it was based on the "conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine" ( Letter Carriers , 413 U.S. at 565, 93 S.Ct. 2880 ). Here, however, the Department's posited interest is the potential for conflicts of interest, yet the restriction would prevent Mr. Kulzer from running for school board, water commissioner or dog catcher.

The "speculative benefits" of the Department's outside activities policy "are not sufficient to justify this crudely crafted burden on respondents' freedom to engage in expressive activities" (see National Treasury , 513 U.S. at 477, 115 S.Ct. 1003 ). The Department has, without the benefits of the legislative process, created a broad rule that impermissibly curtails First Amendment rights. Without analysis, the majority affirms simply because the Hatch Act is constitutional. Following the holding instead of the outcome of United States Supreme Court precedent requires us to determine that the Department's rule is unconstitutional. Accordingly, I dissent.

      The Appellate Division treated as abandoned petitioners' state constitutional claims and limited its decision to the First Amendment challenge. On appeal to this Court, petitioners assert both federal and state constitutional claims (Pets' SSM Ltr, at 4-5), but note that "most courts simply conduct the First Amendment analysis and dispense with all free speech claims accordingly" (id. at 6 n. 3). Since I conclude that the matter should be remanded for further consideration, I do not address whether, assuming the Department's policy survives scrutiny under the proper federal legal standard, our state constitution's more expansive free speech protections would result in a different outcome.

      The Department claims that Mr. Kulzer, though citing Pickering , did not cite National Treasury , and therefore did not preserve any argument that National Treasury imposes a heightened level of scrutiny for restrictions on speech of government employees that have a potential to chill expression. We must follow binding precedent even if the parties do not mention it; indeed, "we [cannot] ignore binding Supreme Court precedent simply because the parties purportedly 'agree' that we should-even if applying the wrong law would somehow produce the right result." (Paramount Pictures Corp. v. Allianz Risk Transfer AG , 31 N.Y.3d 64, 70 n. 3, 73 N.Y.S.3d 472, 96 N.E.3d 737 [2018].)

      See Thornhill v. State of Alabama , 310 U.S. 88, 96, 60 S.Ct. 736, 84 L.Ed. 1093 [1940] ; National Association for Advancement of Colored People v. Button , 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 [1963] ; Broadrick v. Oklahoma , 413 U.S. 601, 611, 93 S.Ct. 2908, 37 L.Ed.2d 830 [1973] ; Pickering , 391 U.S. at 568, 88 S.Ct. 1731.

      I assume the continuing validity of the Hatch Act cases as controlling federal constitutional law. No challenge under New York's Constitution is made here.

      The plaintiffs in National Treasury (unions representing a class of Executive branch employees below grade GS-16) challenged the broad application of the honoraria ban. The Court addressed the relief sought, and agreed with the Government that the remedy should be limited to the class of employees before the Court, but disagreed that the Court should sever the legislation and hold it constitutional where a "nexus" exists between the speech and the speaker's official duties, i.e., where it might be constitutional (see National Treasury at 478-479, 115 S.Ct. 1003 ). The Court rejected the narrower application because of an "obligation to avoid judicial legislation"; instead, the Court agreed that the lower court "properly left to Congress the task of drawing a narrower statute." (id. at 479, 115 S.Ct. 1003 ). Justice O'Connor, however, would have tailored the relief to "invalidation of the statute insofar as it applies to honoraria [received] for speech without nexus to Government employment" (id. at 485, 115 S.Ct. 1003 ).

      See Vivian Wang, Guilty, Again: Dean Skelos, Former Senate Leader, Is Convicted of Corruption in Retrial , N.Y. Times, July 17, 2018, available at https://www.nytimes.com/2018/07/17/nyregion/dean-skelos-corruption-son-senate-ny.html; Benjamin Weiser, Sheldon Silver Is Convicted in 2nd Corruption Trial , N.Y. Times, May 11, 2018, available at https://www.nytimes.com/2018/05/11/nyregion/sheldon-silver-retrial-guilty.html


text:
    BANK OF AMERICA, N.A., etc., Respondent, v. Yaffa SNYDER, etc., et al., Defendants,
    Shabbir Mohammad, Appellant.
    2018-619
    Court of Appeals of New York.
    September 18, 2018
    Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v. Rogerson , 35 N.Y.2d 751, 753, 361 N.Y.S.2d 916, 320 N.E.2d 650 [1974] ).


text:
    In the Matter of Rahdee BENNETT, Appellant, v. Anthony J. ANNUCCI, etc., et al., Respondents.
    Motion No: 2018-735
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of David Brian BRASHER, Appellant, v. SAM DELL'S DODGE CORPORATION, et al., Respondents.
    Workers' Compensation Board, Respondent.
    (And Another Related Claim.)
    2018-744
    Court of Appeals of New York.
    September 18, 2018
    On the Court's own motion, appeal dismissed, without costs, upon the ground that the March 2018 Appellate Division order appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the June 2018 Appellate Division order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


author: Judge Feinman took no part.

text:
    Kelly COFFEY, Respondent, v. CRP/EXTELL PARCEL I, L.P., et al., Appellants, et al., Defendant.
    2018-695
    Court of Appeals of New York.
    Decided September 18, 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.
   Judge Feinman took no part.


text:
    In the Matter of Elaine DEVERA, etc., et al., Petitioners,
    Susana Taveras, etc., et al., Respondents, v. Maryellen ELIA, etc., et al., Appellants.
    2018-914
    Court of Appeals of New York.
    September 18, 2018
    Motion by Joel Klein 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 Elaine DEVERA, etc., et al., Petitioners,
    Susana Taveras, etc., et al., Respondents, v. Maryellen ELIA, etc., et al., Appellants.
    Motion No: 2018-922
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion by Achievement First Brooklyn Charter Schools, et al. for leave to appear amici curiae on the appeal herein granted only to the extent that 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:
    Luisa C. ESPOSITO, Appellant, v. Allen H. ISAAC, etc., et al., Respondents.
    Motion No: 2018-693
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 1071, 78 N.Y.S.3d 268, 102 N.E.3d 1050 (2018) ].


text:
    In the Matter of Miguel GONZALEZ, Appellant, v. Anthony J. ANNUCCI, etc., Respondent.
    Motion No: 2018-923
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion by The Legal Aid Society 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:
    Johnathan JOHNSON, Appellant, v. Donald DAVID, etc., Respondent.
    Motion No: 2018-725
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for reargument denied [see 31 N.Y.3d 1138, 81 N.Y.S.3d 362, 106 N.E.3d 745 (2018) ]. Motion for poor person relief dismissed as academic.


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.
    Motion No: 2018-916
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion by John Henderson Duffus, 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.
    Judges Garcia and Feinman took no part.


text:
    FENG LI, et al., Appellants, v. Diana PENG, etc., et al., Respondents.
    Motion No: 2018-682
    Court of Appeals of New York.
    Decided September 18, 2018
    On the Court's own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The PEOPLE etc., Appellant, v. Doran ALLEN, Respondent.
    Motion No: 2018-733
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion to vacate this Court's May 17, 2018 preclusion order granted.


text:
    The PEOPLE etc., Respondent, v. Emmanuel ALMONTE, Appellant.
    Motion No: 2018-902
    Court of Appeals of New York.
    Decided September 18, 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:
    OPTION ONE MORTGAGE, Plaintiff, v. Jose Luis RODRIGUEZ-CARDONA, Appellant, et al., Defendants;
    21st Mortgage Corporation, Intervenor-Respondent.
    2018-738
    Court of Appeals of New York.
    September 18, 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.


text:
    The PEOPLE etc., Respondent, v. Steven BERREZUETA, Appellant.
    Motion No: 2018-728
    Court of Appeals of New York.
    Decided on September 18, 2018
    Motion for reargument denied [see 31 N.Y.3d 1091, 79 N.Y.S.3d 622, 104 N.E.3d 726 (2018) ]. Motion to expand the record denied.


text:
    The PEOPLE etc., Respondent, v. Steven BERREZUETA, Appellant.
    Motion No: 2018-790
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion by Gideon Yaffe, et al. for leave to appear amici curiae on the motion herein denied.


text:
    The PEOPLE etc., Respondent, v. Steven BERREZUETA, Appellant.
    Motion: 2018-804
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion by Ken Onion et al. for leave to file a brief amici curiae on the motion herein denied.


text:
    The PEOPLE etc., Respondent, v. Damian JONES, Appellant.
    Motion: 2018-903
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion by Center for Appellate Litigation, et al. for leave to appear amici curiae on the appeal herein granted only to the extent that 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. Clarence ROUSE, Appellant.
    Motion No: 2018-899
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The PEOPLE etc., Respondent, v. Saylor SUAZO, Appellant.
    Motion No: 2018-929
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion by The Bronx Defenders, 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. Carlos TAPIA, Appellant.
    Motion No: 2018-750
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion to dismiss appeal denied.


text:
    The PEOPLE etc., Respondent, v. George TSINTZELIS, Appellant.
    2018-867
    Court of Appeals of New York.
    September 18, 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:
    Anna PEZHMAN, Appellant, v. CHANEL, et al., Respondents.
    Motion No: 2018-698
    Court of Appeals of New York.
    Decided September 18, 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.
   Judge Feinman took no part.


text:
    The PEOPLE etc. EX REL. Jose RAMIREZ, Appellant, v. Joseph APONTE, etc., et al., Respondent.
    Motion No: 2018-779
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for reconsideration of this Court's June 26, 2018 dismissal order denied. [see 31 N.Y.3d 1129, 81 N.Y.S.3d 353, 106 N.E.3d 736 (2018) ].


text:
    In the Matter of Jose Joaquin RAMIREZ, Appellant, v. George GRASSO, etc., Respondent.
    Motion No: 2018-780
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for reconsideration of this Court's June 26, 2018 dismissal order denied. [see 31 N.Y.3d 1129, 81 N.Y.S.3d 353, 106 N.E.3d 736 (2018) ].


text:
    In the Matter of Walter J. ROACHE, Appellant, v. Ann Marie T. SULLIVAN, etc., Respondent.
    2018-794
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for reargument of motion for leave to appeal denied. [see 31 N.Y.3d 1108, 80 N.Y.S.3d 210, 105 N.E.3d 349 (2018) ].


text:
    Avraham GOLD, et al., Respondents, v. NEW YORK LIFE INSURANCE CO., et al., Appellants.
    143 SSM 21
    Court of Appeals of New York.
    Decided October 11, 2018
    Morgan, Lewis & Bockius LLP, Princeton, New Jersey (Sean P. Lynch of counsel), for appellants.
    Sanford F. Young, P.C., New York City (Sanford F. Young of counsel), for respondents.
    OPINION OF THE COURT
   On review of submissions pursuant to section 500.11 of the Rules, order, insofar as appealed from, reversed, without costs, and defendants' motion to compel plaintiff Melek Kartal to arbitrate granted. The parties now agree that the arbitration clauses in Kartal's agreements are enforceable (see Epic Sys. Corp. v. Lewis, --- U.S. ----, 138 S.Ct. 1612, 200 L.Ed.2d 889 [2018] ), and ask that we reverse.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.


text:
    TOWN OF AURORA, etc., Respondent, v. VILLAGE OF EAST AURORA, etc., Appellant.
    2018-930
    Court of Appeals of New York.
    September 18, 2018
    Motion by New York State Conference of Mayors and Municipal Officials 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 and the brief submitted in digital format within seven days.


text:
    In the Matter of Michelle WIDRICK, Appellant; v. Michael CARPINELLI, etc., et al., Respondents.
    2018-757
    Court of Appeals of New York.
    September 18, 2018
    Motion for reargument denied with one hundred dollars costs and necessary reproduction disbursements [see 32 N.Y.3d 975, 84 N.Y.S.3d 816, 109 N.E.3d 1116 (2018) ].


text:
    Shahla ZAR, Appellant, v. Nasser YAGHOOBZAR, Respondent.
    (And a Related Proceeding)
    Motion No: 2018-597
    Court of Appeals of New York.
    Decided September 18, 2018
    Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the consolidated action and proceeding within the meaning of the Constitution.


text:
    The PEOPLE of the State of New York, Respondent, v. Steven BAISLEY, Appellant.
    No. 104
    Court of Appeals of New York.
    Decided October 23, 2018
    Richard L. Herzfeld, P.C., New York City (Richard L. Herz- feld of counsel), for appellant.
    David M. Hoovler, District Attorney, Goshen (Andrew R. Kass of counsel), for respondent.
    OPINION OF THE COURT
   MEMORANDUM.

The order of the Appellate Term should be affirmed.

Defendant's challenge to the authority of Justice Court over criminal charges arising from his noncompliance with a child support order is not properly before this Court. Contrary to the parties' mistaken representation below, the underlying support order was not issued by Family Court but by Supreme Court in the context of defendant's contested matrimonial proceeding. As defendant concedes, Supreme Court has constitutional authority to issue such an order (see N.Y. Const Art VI, § 7 ; Family Court Act § 114 ; see generally Merril Sobie, Practice Commentaries, McKinney's Cons.Laws of N.Y., Family Court Act § 411 ["Family Court is ... powerless to determine those issues which comprise a [pending] matrimonial action, including child support, unless the matter is specifically referenced to the Family Court by the Supreme Court"] ). As a consequence, we have no occasion to opine on defendant's claim that, pursuant to the Family Court Act, Family Court has exclusive and continuing jurisdiction over any criminal charges based on violations of its own support order.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.

Order affirmed, in a memorandum.


text:
    Marie BRADLEY, Individually and as Administratrix of the Estate of Edward Bradley, Deceased, Appellants, v. HWA 1290 III LLC, et al., Respondents.
    No. 144 SSM 19
    Court of Appeals of New York.
    Decided October 16, 2018
    Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), for appellants.
    Sabatini & Associates, New York City (Richard J. Sabatini of counsel), for respondents.
    OPINION OF THE COURT
   On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11 ), order affirmed, with costs. To the extent that a violation of standards of the American National Standards Institute (ANSI) constitutes evidence of negligence (see Sawyer v. Dreis & Krump Mfg. Co. , 67 N.Y.2d 328, 502 N.Y.S.2d 696, 493 N.E.2d 920 [1986] ; Trimarco v. Klein, 56 N.Y.2d 98, 451 N.Y.S.2d 52, 436 N.E.2d 502 [1982] ), plaintiffs' reliance on those standards was proper. However, plaintiffs nevertheless failed to raise a triable question of fact as to whether defendants had either actual or constructive notice of the alleged dangerous condition.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson and Feinman concur. Judge Garcia took no part.


text:
    The CITY OF NEW YORK, Respondent, v. GRANITE STATE INSURANCE COMPANY, Appellant.
    No. 2016-774.
    Court of Appeals of New York.
    Sept. 20, 2016.
    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.