text:
    ADOPTION OF ESME (and a Companion Case ).
    18-P-60
    Appeals Court of Massachusetts.
    Entered: October 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of John. The children's names are pseudonyms.

   The mother appeals from decrees of the Juvenile Court finding her unfit and terminating her parental rights to her children, Esme and John. The father appeals from a Juvenile Court decree terminating his parental rights to John. After careful consideration, we conclude that there was sufficient evidence to establish the parents' unfitness, and that termination of parental rights was proper. Also, there was no error in leaving the decision for posttermination and postadoption visitation to the discretion of the children's legal custodians. We affirm.

Background. The judge found the following facts. Esme was born in May, 2011; no father was listed on her birth certificate. The Department of Children and Families (department) became involved due to concerns by hospital staff that the mother was unable to care for Esme. The mother worked with the department in learning parenting skills, and the case was closed, according to the mother, after approximately one month. Esme has attention deficit and hyperactivity disorder (ADHD), and wears braces on her legs because she walks on the tips of her toes. She has an individualized education plan to address her speech and cognitive delays.

John was born in August, 2014; he was six months old at the time of removal. He suffers from asthma and eczema, both of which are controlled by care and medication. At the time of removal, John's eczema was bleeding and cracked despite the pediatrician's treatment instructions to the mother. After placement in foster care, John was enrolled in early intervention services due to cognitive, social, and speech delays. The children do not reside in the same foster home.

The mother has cognitive delays, and has been diagnosed with ADHD and posttraumatic stress disorder. The mother completed high school but did not graduate due to her inability to pass the required standardized testing; at the time of trial she was taking classes to obtain her general education diploma. The mother has never been employed; her sole source of income is supplemental security income from the Social Security Administration. The mother has complied with a majority of her department service plan tasks. Although she participated in the required psychological evaluation, she did not provide the department with the results.

The father is a level three sex offender, which designates him as a high risk of reoffense and requires that he must be supervised while in the presence of any child under the age of eighteen. This classification resulted from his 2002 convictions of the forcible rape, on multiple occasions, of his then six year old daughter, indecent assault and battery of his then eight year old niece, and the attempted kidnapping of, and assault and battery on, a fourteen year old girl who was a stranger to the father. The father, like the mother, did not provide the results of the required psychological evaluation to the department. He did not participate in the required parenting assessment.

The parents met in 2010 when the mother was pregnant with Esme. She knew at that time that the father was on probation, but he did not explain why. The father later told the mother about the charge of raping his daughter, but that his daughter had lied about the allegations. He acknowledges that he lied to the mother. On October 24, 2011, the father's probation officer, during an unannounced visit, found the mother with Esme hiding in the father's apartment after the father had just reported he was alone. The probation officer informed the mother of the father's sex offender classification, but the mother believed the father's assertion that the children had lied about the allegations. Due to concerns of the father's classification, the department reopened the mother's case and continued working with the family.

In January, 2015, the father bought a multifamily home. The department approved of the following living arrangement: the mother and children lived on the first floor, the maternal grandmother and mother's brother lived on the second floor, and the father on the third floor. The father was never to be alone with the children. Chain and bolt locks were on the doors of the mother's apartment to prevent the father from entering when he should not be there. The maternal grandmother agreed to supervise any visits between the father and the children anytime the mother was not present, even when the mother used the bathroom. The mother testified at trial that she would like to resume this arrangement if the children are returned to her custody. Both parents express the hope of marrying.

The incident prompting the department to remove the children occurred on February 23, 2015. On that day, the parents, the maternal grandmother, and the children drove to the pediatrician's office to treat John's "out of control" eczema. The mother brought John inside while everyone else waited in the car. The father telephoned the mother when Esme needed to use the restroom. While the maternal grandmother waited at the car, the father walked Esme approximately twenty to thirty feet along the sidewalk from the parked car to the doctor's office. The mother met the father and Esme in the building lobby, took Esme to the restroom, and returned her to the father, who walked Esme to the car.

The mother testified that the father was alone with Esme "only for three seconds," but the maternal grandmother "was watching," and the mother could see the sidewalk and parked car from the office. The father testified that he did not consider himself to be alone with Esme when he was walking her to the office. Evidence admitted at trial showed that the entrance to the doctor's office was located behind a bush. The department's filing of the underlying action was based on the father being alone with Esme while walking to and from the doctor's office, and the parents' failure to properly treat John's eczema.

In March, 2015, the department informed the mother that Esme was "acting up" and exhibiting sexualized behavior in her foster home, which the department believed to be a sign of sexual abuse. In May, 2015, Esme was moved from her foster home to an intensive foster placement due to the sexualized behavior. Two Sexual Abuse Intervention Network (SAIN) interviews were conducted as a result of comments Esme made to her social worker, Trisha Morris; Esme made no verbal disclosures in either interview. When the father was mentioned during a SAIN interview, Esme started sucking her thumb and crying.

The mother does not believe the father sexually abused Esme. Instead, she believed that Esme's behavior indicated that she wanted to be with the mother and maternal grandmother. The mother informed the court investigator that she both trusted the father and was concerned that he could do the same thing to her children and that such concern kept her carefully supervising the father's access to the children. The father insisted he had never been left alone with Esme. The mother learned at trial for the first time that the charges against the father involved three girls and the details of those convictions.

The judge, in his findings after trial, expressed concerns with the mother's ongoing relationship with the father. The mother had maintained the relationship throughout the pendency of this action despite learning of the father's sex offender status, the allegations that he had sexually abused Esme (which the mother disbelieved), and knowing that her relationship with the father hindered the return of her children. The judge concluded that the mother's "continuing relationship" with the father demonstrated "her indifference towards her children, especially Esme, and her incapacity to appreciate the obligations that rest upon her as a parent." The judge also expressed concerns with the mother's ability to provide the necessary care for the children's special needs. With respect to the father, the judge expressed concerns regarding his history of sexual offenses against his own family members, the father's high risk of reoffense, and his inability "to control these unparental traits." Based on the evidence, and in considering the fourteen factors listed in G. L. c. 210, § 3 (c ), the judge concluded that both the mother and the father were currently unfit, and terminated their parental rights. Each timely appealed.

Discussion. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). In determining whether the best interests of the child are served by a termination of parental rights, we "shall consider the ability, capacity, and readiness of the child's parents ... to assume parental responsibility." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c ). In doing so, "[w]e give substantial deference to a judge's decision ... and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). We see no error.

a. The mother. The mother raises essentially three arguments. First, she argues that the termination was grounded in speculation about unproven sexual abuse. However, the judge did not speculate that Esme was sexually abused. The judge specifically concluded that "[n]o direct evidence that Esme was sexually abused was presented at trial." Rather, based on reports to the department of Esme's sexualized behavior, Morris's testimony of Esme's statements about "papa" kissing her "S," and Esme's nonverbal actions of sucking her thumb and crying at the mention of "papa" during a SAIN interview, the judge found there was circumstantial evidence that Esme was sexually abused. See Care & Protection of Laura, 414 Mass. 788, 793-794 (1993) (finding of sexual abuse need only be supported by preponderance of evidence); G. L. c. 233, § 83. "[O]ur cases have routinely recognized a child's sexualized behavior or age- inappropriate knowledge of sexual matters as corroborative of an allegation of sexual abuse, without imposing an additional requirement that corroborative evidence corroborate the identity of the alleged perpetrator." Adoption of Olivette, 79 Mass. App. Ct. 141, 150 (2011).

The mother argues that the judge should not have admitted evidence pertaining to the reports of Esme's sexualized behavior on hearsay grounds. The judge admitted certain hearsay statements to show notice of Esme's behavior to the department and to the mother. See Albright v. Boston Scientific Corp., 90 Mass. App. Ct. 213, 222 (2016), citing Mass. G. Evid. § 801(c) note (2016). The judge admitted other hearsay statements to show Esme's state of mind when the statements were made. However, the mother failed at the close of evidence to renew her objections to the evidence of sexual abuse allegations admitted de bene during trial. See Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 355-356 (2013) ("The duty to strike [de bene] evidence rests with the party that objected to its admission"). As a result, those statements properly remain as evidence in this case. Id. at 355.

The mother's second argument is that the finding of the mother's current unfitness was not supported by clear and convincing evidence. We disagree. The mother's contention that some of those findings were not supported by the evidence is belied by the record and is largely based on the fact that the mother views the evidence differently from the judge. The judge is not required to view the evidence from the mother's perspective. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984).

The judge acknowledged the mother's consistent weekly visits with the children, her completion of a majority of her service plan tasks, and her ongoing work with her long-time therapist. However, there was ample evidence to support her current unfitness. The mother entered a relationship with the father without determining his complete criminal history after she knew that he was on probation. She then remained in a relationship with the father after she became aware of his complete criminal history, despite the apparent risk he posed to Esme. She knew that her ongoing relationship with the father was a barrier to the return of her children. The parents' ongoing relationship presents a high risk of sexual abuse, especially of Esme, and demonstrates the mother's indifference to the welfare of her children and her incapacity to appreciate her parental obligation to keep her children safe. See Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973). The mother's failure to appreciate this obligation is an " 'appropriate and relevant' consideration in the judge's determination of the mother's fitness." Adoption of Anton, 72 Mass. App. Ct. 667, 673 (2008), quoting Care & Protection of Isabelle, 33 Mass. App. Ct. 548, 549 (1992). Additionally, the mother's lack of understanding of the significant safety risk the father poses due to his sex offender status at the very least demonstrates her incapacity and inability to act as a fit parent for the children and their particular needs. See Adoption of Elena, 446 Mass. at 31-32 ; G. L. c. 210, § 3 (c ).

Further, both children have specialized needs and the mother has cognitive limitations. Despite receiving care instructions and medicated creams to treat John's eczema, his condition worsened in the mother's care. In contrast, John's foster parents followed the same instructions, and John's eczema improved "tremendously" with only occasional flare ups. In addition, during postremoval visits, the mother needed "to be directed on what to do" with the children. "A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child, ... as well as current parental unfitness." Adoption of Elena, 446 Mass. at 33.

The mother's third argument is that the judge abused his discretion in leaving the decision about posttermination and postadoption visitation to the children's legal custodians. "Whether such contact in any given case is wise is a matter that should be left to the discretion of the judge." Adoption of Garret, 92 Mass. App. Ct. 664, 679 (2018), quoting Youmans v. Ramos, 429 Mass. 774, 783 (1999).

By the end of trial, the children had been in the custody of the department for more than two years, and no adoptive parents had yet been identified. Although some evidence was presented disclosing the relationship between the mother and the children, there were no "compelling reason[s] requiring that a visitation order be entered in order to protect the best interests of the child[ren]." Adoption of Ilona, 459 Mass. at 66, citing Adoption of Vito, 431 Mass. 550, 553 (2000). See Adoption of Rico, 453 Mass. 749, 754 (2009). After approving the department's permanency plan to recruit an adoptive home that can accommodate both children and their individual needs, the judge did not abuse his discretion in leaving the issue of posttermination and postadoption visitation to the discretion of the legal custodians to better serve the children's best interests. See Adoption of Garret, 92 Mass. App. Ct. at 679 ; Adoption of Cadence, 81 Mass. App. Ct. 162, 168 (2012).

b. The father. The father's current unfitness was supported by clear and convincing evidence. Contrary to the father's argument, the judge did not rely on stale evidence, but rather, relied on the father's current status as a level three sex offender, designating him as a high risk to reoffend, and the prognostic value of his criminal history earning him this classification. See Adoption of Jacques, 82 Mass. App. Ct. at 607. Because the father targeted prepubescent victims, he "pose[s] an even higher risk of reoffense and degree of dangerousness." 803 Code Mass. Regs. § 1.33(3) (2016). In addition, as the judge noted, the father's sex offender classification allows him to be with John "only at times when Mother or someone else in the household was available to supervise."

The father adopts the mother's argument in proving her fitness, in the hope that John will be returned to her custody and that his supervised visits may continue in the future. However, because we here affirm the termination of the mother's parental rights to John, the father's argument is futile. Alternatively fashioning this argument as his proposed adoption plan is no more successful, as the judge found the department's proposed adoption plan represented the best interests of the children. See Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001), citing Adoption of Hugo, 428 Mass. 219, 226 & n.9 (1998), cert. denied, Hugo P. v. George P., 526 U.S. 1034 (1999). See also G. L. c. 210, § 3 (c ).

The judge's decision not to order posttermination and postadoption visitation between John and the father was proper. Despite acknowledgement of the consistency of the father's weekly visits, the judge found that no further evidence demonstrating a substantial bond between the father and John was presented to support an order of visitation. Cf. Adoption of Rico, 453 Mass. at 754.

Conclusion. We are satisfied, based on this record, that the department met its burden of proving the parents' unfitness by clear and convincing evidence, Adoption of Jacques, 82 Mass. App. Ct. at 606, and that the judge did not abuse his discretion (1) in determining that it is in Esme's best interests to terminate the mother's parental rights, and John's best interests to terminate the mother's and the father's parental rights, and (2) in declining to order posttermination and postadoption visitation for either parent. See Adoption of Garret, 92 Mass. App. Ct. at 679.

Decrees affirmed.

      The mother is the biological parent of both children; the father is the biological parent of John. Our use of "father" in this memorandum and order refers only to John's father. Our use of "parents" in this memorandum and order refers to the mother and John's father.

      At the outset of trial, Esme's putative father was identified but the mother did not acknowledge his paternity and he was never legally adjudicated. As a result, Esme's putative father did not participate in the trial, nor is he part of this appeal.

      The department first became involved in the mother's life when she was a child, due to allegations that the maternal grandmother physically abused the mother, and because of the mother's poor hygiene.

      Additionally, the father was the defendant in three domestic violence actions involving his former wife and daughter, resulting in the issuance of separate G. L. c. 209A abuse prevention orders.

      When performing a home visit in January, 2015, Trisha Morris, the department's social worker, observed in the father's bedroom two pictures -- one of the mother when she was approximately ten to twelve years old, the other of the father's daughter at the age at which he was sexually abusing her. Morris worried that the father may be using the pictures to sexually fantasize about young girls; the department did not remove Esme at that time but remained "mindful of their concerns" with the family.

      The first disclosure occurred on March 4, 2015, while Morris was transporting Esme in her car. Morris observed Esme making "kissy faces" while in the back seat; upon asking her who gives her kisses, Esme responded that "papa" (the father) gives her kisses. Esme also responded that "papa" kisses her cheeks and "S"; when asked what her "S" was, Esme, with both hands, "grabbed her crotch area and thrusted [it] forward into her hands and into the car seat restraint." A G. L. c. 119, § 51A, report (51A report) was filed by the department due to suspected sexual abuse, which led to the first SAIN interview. The second SAIN interview occurred in December, 2015, after another 51A report was filed by the department expressing an ongoing suspicion, based on Esme's behavior, that she had been sexually abused. The behavior consisted of "touching her private areas openly while looking at other people or under blankets, humping furniture, [engaging] in sexual play with her dolls, putting crayons in her underwear, and putting her leg underneath her body and rocking back and forth on her foot." After the second interview, a referral was made to the District Attorney's office regarding allegations of sexual abuse; no charges resulted.

      General Laws c. 233, § 83 (a ), states, in relevant part, that "[a]ny out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child ... offered in an action brought under subparagraph C of section twenty-three or section twenty-four of chapter one hundred and nineteen shall be admissible; provided, however that the person to whom the statement was made, or who heard the child make the statement testifies, and the judge finds that the statement is offered as evidence of a material fact."

      The mother did timely renew her objection to the admission of hearsay of unidentified utterers contained in the investigator's report; the objection was denied.

      Of the 165 findings made by the judge, the mother challenges only factual findings 90 through 92, and 102 through 103.

      The judge admitted, without objection, a draft report from the mother's nontestifying expert, Dr. Sacco, which contained information relating to the mother's relationship with her children. The judge did not give weight to the doctor's opinions contained in the report due to his unavailability at trial. Substantial deference is given to the fact finder to "evaluate [the] witness's credibility and to weigh the evidence." Adoption of Gillian, 63 Mass. App. Ct. 398, 403 (2005).

      The father's unfitness and termination of parental rights applies only to John.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Crystal D. GOODIS.
    17-P-1457
    Appeals Court of Massachusetts.
    Entered: October 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted by a District Court jury of assault and battery, and indecent assault and battery on a child under the age of fourteen. On appeal, the defendant argues that the trial prosecutor committed "egregious misconduct" when she allegedly displayed to the jury highly prejudicial photographs of the defendant that had been excluded from evidence. The defendant's argument, however, is not supported by any evidence in the trial record. Moreover, the defendant's postverdict motion under Commonwealth v. Fidler, 377 Mass. 192 (1979), is not properly before us on this direct appeal. We accordingly affirm.

Background. The case was tried for three days in June of 2013. The defendant had been a regular babysitter of the victim, C.B., and her younger brother, for three months when the victim was four years old. The victim testified that while babysitting her the defendant touched her inappropriately on several occasions and also struck her. The defendant testified and denied any such actions.

The issue with the photographs arose because the victim testified that while babysitting, the defendant had dressed up in "costumes that scared [her]" and acted so as to scare both C.B. and her younger brother. On cross-examination of the defendant, the prosecutor sought to bolster this testimony by introducing photographs taken from the defendant's Facebook page, which showed the defendant in spooky costumes. Defense counsel objected, and the judge excluded the photographs because they had not been provided to defense counsel in advance. The photographs the prosecutor sought to introduce were never marked for identification and are not part of the record.

The defendant's argument on appeal centers on these excluded photographs. The defendant urges that the prosecutor engaged in egregious misconduct because, during defense counsel's closing argument, the prosecutor deliberately displayed these same photographs to the jury, while the prosecutor was sitting at counsel table. There is nothing in the trial record, however, that reflects this alleged event. There was no objection, or comment, from anyone in the court room. There is thus nothing in the trial record to indicate that the event occurred.

In January, 2016, more than two years after the jury verdicts, the defendant filed a motion under Fidler seeking to question the jury regarding the alleged actions of the prosecutor during defense counsel's closing. The defendant's motion was accompanied by two affidavits -- one from the defendant's mother, and one from a friend of the defendant -- both of whom attested that they witnessed the prosecutor displaying the photographs to the jury during the closing. The motion was never acted upon. Moreover, the defendant never followed up in writing after filing the motion, by seeking a hearing or a ruling on the motion.

Discussion. The defendant's contention that the judgments should be vacated on this direct appeal must be rejected, as her argument based on prosecutorial misconduct has no support in the trial record. As noted, there is no basis in the trial record from which an appellate court could conclude that the prosecutor committed egregious misconduct during the closing. The matter was not brought to the judge's attention at the time. There accordingly is not even an action by the trial judge that this panel could review as to the alleged prosecutorial misconduct.

The defendant seems to believe that this panel can consider the affidavits filed with her Fidler motion in 2016, but that is incorrect. We do not consider such affidavits in the first instance. To the extent the defendant is seeking our review of the Fidler motion on its merits, we decline because it has never been acted upon. We will not decide the motion in the first instance, nor do we think the circumstances are such that we can say it was implicitly denied. And in any event, there is no notice of appeal with respect to the Fidler motion. The motion accordingly is not properly before us. See, e.g., Gibney v. Commonwealth, 375 Mass. 146, 148 (1978).

Judgments affirmed.

      Although the transcript is unclear, it appears that the prosecutor may have displayed the photographs to the jury in some way before they were excluded. The judge stated, "(Inaudible) while you were at the table, just because of the way you picked it up." Defense counsel did not seek to make any further record of this occurrence, and she did not ask for any instruction from the judge.

      We note that the Fidler motion itself was not a motion for new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001); it merely sought to interrogate the jurors.


text:
    COMMONWEALTH v. Adam LARSEN.
    18-P-76
    Appeals Court of Massachusetts.
    Entered: October 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      As is our custom, we spell the defendant's name as it appears in the indictment.

   This is an interlocutory appeal from an order of a judge of the Superior Court allowing the defendant's motion to dismiss an indictment for misleading a police officer. See G. L. c. 268, § 13B (1) (c ). We affirm.

The defendant moved to dismiss the indictment on the ground, among others, that there was insufficient evidence before the grand jury that the defendant's statements could reasonably have caused an investigating officer to change the course of the investigation in a material way. See Commonwealth v. Paquette, 475 Mass. 793, 800-801 (2016). "To sustain an indictment, the grand jury must be presented with 'sufficient evidence to establish the identity of the accused ... and probable cause to arrest him' for the crime[ ] charged," Commonwealth v. Rakes, 478 Mass. 22, 29 (2017), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). "Our review of a judge's determination of probable cause is de novo." Commonwealth v. Coggeshall, 473 Mass. 665, 667 (2016), citing Commonwealth v. Long, 454 Mass. 542, 555 (2009).

Background. We summarize the evidence presented to the grand jury. The defendant, Adam Larsen, is a Plymouth police officer. On April 8, 2016, Larsen arrested an intoxicated woman for disturbing the peace. The woman suffered a fractured skull during an incident that occurred while Larsen was escorting her to a holding cell. The holding cell was monitored by a surveillance camera. On April 11, 2016, while investigating the incident, Captain John Rogers reviewed the surveillance video and determined that "[d]etailed review shows [the woman] backing into the cell when it appears that she was pushed by someone outside the cell which caused her to fall striking her head."

After watching the video, Captain Rogers requested that all the officers on duty that night complete reports "outlining their knowledge and actions during this incident." All of those incident reports were completed by April 14. In his incident report, Larsen stated that "[the woman] walked into her cell [but] then charged forward as [he] was attempting to close the cell door. [He] placed [his] arm out, in a locked position to stop [her] forward progress from exiting the cell. [The woman] walked into [his] hand and immediately lost her balance. [She] fell backwards and struck the back of her head on the edge of the concrete cell block bed."

On April 25 and 28, Captain Rogers conducted interviews with Lieutenant Paul Higgins and Sergeant Christopher Butler -- two officers who were on duty at the time of the incident. On April 29, Captain Rogers interviewed Larsen -- before Larsen had the opportunity to view the video recording. At the interview, Larsen substantially echoed the version of events he laid out in his incident report. Captain Rogers, however, determined that Larsen's account of the incident was inconsistent with what the video showed. Specifically, Rogers described the video as showing that the woman "backed into the cell and never appear[ed] to try and leave," and stated the "[v]ideo surveillance shows [Larsen's] black latex gloved hand moving through the plane of the door as [the woman] falls back into the cell." This description of the video differed from Larsen's account that the woman ran into his locked-out arm. After Rogers conducted follow-up interviews, this indictment was sought. As clarified by the Commonwealth's bill of particulars, Larsen's statements on April 29 formed the basis of the charge.

Discussion. The elements of the offense of misleading a police officer are "(1) wilfully misleading, directly or indirectly, (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with (4) a criminal investigation" (footnote omitted). Paquette, 475 Mass. at 797. "[T]o find the defendant guilty of misleading a police officer with a lie, the jury would need to find not only that the statement was false, but that it reasonably could have led law enforcement officers to pursue a materially different course in their investigation from one they otherwise would have pursued because it sent them in the wrong direction, i.e., a 'wild goose chase.' " Commonwealth v. Tejeda, 476 Mass. 817, 819 (2017), quoting Paquette, supra at 800-801.

The Commonwealth contends that Larsen's statements to the investigating officer were misleading because a grand jury could find probable cause that at the time she was pushed, the woman was backing into the cell and did not charge toward Larsen. For this reason, the Commonwealth asserts, the grand jury heard sufficient evidence to support a finding of probable cause that the defendant intended to mislead Captain Rogers.

We agree that the evidence was sufficient to establish probable cause to believe that Larsen's statements were false and intended to mislead. However, the evidence also shows that the statements could not reasonably have caused an investigating officer to be misled in such a way as to affect the course of the police investigation. See Paquette, 475 Mass. at 805. We consider the "timing of the defendant's statements and what police already knew, and ... the absence of other evidence indicating that the statements reasonably could have affected the police investigation in a material way." Id.

Captain Rogers viewed the cell block surveillance footage on April 11 in advance of his initial interviews with Larsen and the other officers. By that time Captain Rogers had already seen the video and formed the opinion as to what it showed. At the time he interviewed Larsen, Captain Rogers knew that Larsen's account was at odds with the video footage. Larsen's account of the incident could not reasonably have led Captain Rogers to pursue a materially different course in his investigation. See Tejeda, 476 Mass. at 819.

Rather, Larsen's account led Captain Rogers to hone in on Larsen's alleged wrongdoing. See Paquette, 475 Mass. at 805. Following Larsen's April 29 interview, Captain Rogers conducted follow-up interviews, but he did not shift the focus of the investigation. Captain Rogers re-interviewed Larsen, but he was not tempted to pursue a "wild goose chase." "[I]n the absence of other evidence indicating that the statements reasonably could have affected the police investigation in a material way," the indictment was not supported by sufficient evidence to establish probable cause. Id.

Alternatively, the Commonwealth contends that the judge erred as a matter of law in declining to permit the Commonwealth to proceed on a lesser included offense of attempt to mislead a police officer. "[M]aking a mere 'effort' or 'attempt' is plainly not enough" under the statute. Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 54 (2011). The Legislature included attempt language in subparagraph (a ) of G. L. c. 268, § 13B (1), but omitted it from subparagraph (c ), the subparagraph relevant here. "The omission of particular language from a statute is deemed deliberate where the Legislature included such omitted language in related or similar statutes." Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014). See Commonwealth v. Gagnon, 439 Mass. 826, 833 (2003) ("[W]here the legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded" [citation omitted] ). See also Commonwealth v. G.F., 479 Mass. 180, 202 (2018). The omission of the word "attempt" was deliberate. The judge did not err in dismissing the indictment.

Order allowing motion to dismiss affirmed.

      In a separate indictment, the defendant was also charged with assault and battery causing serious bodily injury, G. L. c. 265, § 13A (b ).

      The surveillance camera took pictures at short intervals, and did not capture sound. The video recording at issue was submitted to the grand jury.

      For example, during the interview Larsen described the incident as follows:
      "She then walked into the cell, and as I was getting ready to close the door, she turned around and she was kinda coming right at me in a fast, very aggressive, angry look on her face. So I put my hand straight out just to stop her from exiting the cell and hitting me, she was coming right at me, cause I was right there. Lt. Higgins was right next to me. At that time, she hit my hand, she fell back and then she fell back and hit her head on the cell bed."

      We have carefully viewed the video recording, consistent with the standard of review.

      On May 12, Rogers interviewed Larsen a second time to "review surveillance video of the incident in question and have Officer Larsen respond to what was observed based on inconsistencies [between] the video and what was initially reported by Officer Larsen."


text:
    Jill S. BECKER v. Mont Andrew PHELPS.
    17-P-938
    Appeals Court of Massachusetts.
    Entered: October 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Since their 2010 divorce, the parties have filed at least four complaints for modification and ten complaints for contempt. The docket reflects over 600 entries spanning eight years. In this appeal, which is the third addressed by our court, the parties continue to litigate the financial terms of their divorce. The wife appeals from various judgments and orders that dismissed her complaints for modification and found her in contempt of the divorce judgment. The husband cross appeals from a judgment of modification. Discerning no error or other abuse of discretion, we affirm.

Background. 1. Procedural history of divorce action. On November 9, 2010, during the trial of the husband's divorce complaint, the parties executed a hand-written agreement (agreement) that was read into the record and later memorialized in a writing signed by both parties. Pursuant to paragraph two of the agreement, both parties waived their right to receive periodic alimony payments from the other. In consideration of the husband's alimony waiver, the wife agreed to pay the husband $1 million in two lump sum payments on or before December 1, 2013, and December 1, 2018. In addition, the wife agreed to pay annually to the husband "an amount for alimony equal to four percent of the outstanding indebtedness" on any unpaid amounts of the lump sum. The wife asserted that she planned to make these payments using money she earned through her business, Cambridge NanoTech (CNT).

The agreement set forth the parties' respective financial obligations following the divorce. It divided marital assets, provided for health insurance and education expenses for the parties' minor children, and set forth the parties' obligations to maintain life insurance. The parties agreed that the terms of the agreement would survive the judgment of divorce, "except as to provisions relating to the children." Before the agreement was read into the record at trial, the judge advised the parties that its terms were binding and that "what is read into the record is what is going to be found as part of the judgment" of divorce. After hearing its terms, the judge concluded that the agreement was "fair and reasonable."

A bifurcated judgment of divorce nisi entered which did not address custody and visitation of the children. On February 17, 2011, a supplemental judgment entered with respect to custody and visitation. Both parties appealed. Following a remand from this court, a judge of the Probate and Family Court issued findings of fact, conclusions of law, and an amended rationale that was affirmed by a different panel of this court in an unpublished decision issued pursuant to our rule 1:28. Phelps v. Becker, 84 Mass. App. Ct. 1105 (2013) (Phelps I ). Neither party challenged the terms of the agreement in that appeal.

In 2012, the husband remarried. That same year, CNT was sold and its assets were dispersed to creditors. On August 2, 2012, the wife filed a complaint seeking a declaration that her alimony obligation under the agreement was terminated by law pursuant to the Alimony Reform Act of 2011, G. L. c. 208, § 49 (a ). On August 22, 2014, this court held that the four per cent interest payments identified in the agreement constitute alimony that is not modifiable under the Alimony Reform Act because the parties agreed that those provisions survived the judgment of divorce. Becker v. Phelps, 86 Mass. App. Ct. 169, 172 (2014) (Phelps II ). By contrast, the lump sum payments were part of the overall division of marital property and were not modifiable because the judge found the agreement to be "fair and reasonable."

2. Postdivorce litigation. The parties filed numerous postdivorce actions and motions. Many complaints were filed before other complaints had been resolved. As best we can discern, the following actions are the subject of this appeal.

a. August 13, 2013, complaint for modification. On August 13, 2013, the wife filed a complaint for modification of her child support obligation. On October 17, 2016, following six days of trial, a second judge of the Probate and Family Court found a material change in circumstances based upon (1) the failure of CNT and the wife's continued unemployment, and (2) the husband's increased income. Insofar as is relevant here, the judge attributed a gross annual income to the wife of $30,000. Although the judge's findings of fact, conclusions of law, and rationale on the wife's complaint for modification entered on October 17, 2016, judgment did not enter until July 3, 2017. On July 6, 2017, the husband filed a notice of appeal from the modification judgment. On August 4, 2017, the wife also filed a notice of appeal from the judgment.

b. November 19, 2013, complaint for contempt. On November 19, 2013, the husband filed a complaint for contempt asserting that the wife had received tax refunds from CNT but had not paid the husband his proportionate share as required by the agreement. Following an evidentiary hearing, the judge who had granted the divorce found the wife in contempt and ordered her to pay fifty percent of the tax refunds to the husband, along with his costs and attorney's fees. A subsequent motion by the wife to vacate the contempt order was allowed because there was no finding regarding the wife's present ability to pay. On August 9, 2017, a judgment of not guilty entered on the complaint for contempt. The judgment explicitly did not relieve the wife "of her obligation to make two lump sum payments in the amount of $500,000 each in lieu of alimony." The wife timely appealed.

c. August, 2014, actions. On August 12, 2014, the wife filed a "complaint for modification of alimony due to countervailing equities." The wife claimed that she lacked the financial means to make the alimony payments called for in paragraph two of the agreement; specifically, she could not pay the husband $1 million without becoming a public charge. She requested that her obligations under the agreement be terminated and that the husband be ordered to pay her support in the amount of $2,000 per week.

On August 25, 2014, three days after the decision in Phelps II, the wife moved to vacate the agreement and an August 16, 2011, contempt judgment. She claimed that the husband had misrepresented his income and the value of his business at the time of the divorce and in postdivorce proceedings.

On October 22, 2014, the wife's motion to vacate the agreement was denied in a margin endorsement. On October 30, 2014, the husband moved pursuant to Mass. R. Dom. Rel. P. 12 (b) (6), to dismiss (1) the modification complaint, (2) the motion to vacate the agreement, and (3) the motion to vacate the April 16, 2011, contempt judgment. On January 21, 2015, the husband's motion was allowed. Relying on our decision in Phelps II and the parties' submissions, the judge concluded that the lump sum payments were not modifiable because the lump sum payments do not constitute spousal support. On January 23, 2015, judgment entered dismissing the wife's modification complaint, the motion to vacate the agreement, and the motion to vacate the April 16, 2011, contempt judgment. The wife timely appealed.

d. May 26, 2015, complaint for modification. On May 26, 2015, the wife filed a complaint for modification alleging that the husband refused to co-parent with her, was drinking heavily, and was scaring the children. The wife sought, among other things: (1) sole custody of the children, (2) an order that the husband pay all expenses incurred on behalf of the children, (3) appointment of a guardian ad litem, and (4) appointment of a parenting coordinator (to be paid for by the husband). The wife further requested that she be relieved of her obligation to make the lump sum payments, that the husband be ordered to pay her alimony, that the husband provide for the children to receive at least fifty percent of his estate upon his death, and that the husband be liable to her for child support in the amount of $965 per week. On September 10, 2015, the wife moved to amend her complaint by adding a claim for authorization to remove the children from the Commonwealth. That same day, the husband moved to dismiss portions of the complaint pursuant to Mass. R. Dom. Rel. P. 12 (b) (6). Among other things, the husband asserted that the financial relief sought by the wife was precluded by the principle of res judicata.

On June 22, 2016, a third judge of the Probate and Family Court issued a partial judgment of modification that dismissed those portions of the mother's complaint which sought relief from her financial obligations to the husband. The judge noted that the wife repeatedly had sought to avoid her obligations under the parties' surviving agreement, and held that "[h]er arguments have already been litigated in this [c]ourt and she should not be allowed to continue to seek the same relief."

On July 21, 2016, the wife filed a motion for entry of separate and final judgment and/or to vacate those portions of the June 22, 2016, partial judgment that (1) dismissed her financial claims, and (2) prohibited her from further filings. She also filed a notice of appeal from the June 22, 2016, partial judgment.

Discussion. 1. Complaint for modification based on countervailing equities. We review the sufficiency of the wife's complaint for modification de novo, taking the wife's factual allegations as true and drawing all reasonable inferences in her favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In doing so, "we look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Id. We also may consider the Probate and Family Court records in the parties' related actions. Jarosz v. Palmer, 49 Mass. App. Ct. 834, 835-836 (2000), S.C., 436 Mass. 526 (2002).

In her complaint, the wife alleges that, due to the failure of CNT, she lacks the financial resources to make the alimony payments called for in the agreement and will become a public charge if required to pay the husband $1 million. She claims she has no income or assets except for $40,000 held in escrow for the benefit of the husband and $17,000 in a retirement fund. The marital home is leveraged, she has paid $1.5 million in legal fees since 2008, and she requires spousal support to "keep the marital home and meet her primary responsibility to continue to take excellent care of the children."

The judge dismissed the wife's modification complaint, reasoning that the countervailing equities doctrine only applies to alimony obligations in a surviving separation agreement and the lump sum payments are not alimony. See Phelps II, 86 Mass. App. Ct. at 172. It is well settled that property division is not modifiable. See Taverna v. Pizzi, 430 Mass. 882, 886 (2000) ; Drapek v. Drapek, 399 Mass. 240, 244 (1987) ("Unlike alimony, a property settlement is not subject to modification"); DuMont v. Godbey, 382 Mass. 234, 238 (1981) ("The provision for modification of alimony judgments, G. L. c. 208, § 37, has not been made applicable to modification of assignments of property"). See also Silverman v. Spiro, 438 Mass. 725, 737 (2003) ("[T]he provisions of the separation agreement ... concerning distribution of marital property remain an independent contract between the parties, which the judge could not alter"); Heins v. Ledis, 422 Mass. 477, 483 (1996) ("While alimony is modifiable on the showing of a material change in circumstances, see G. L. c. 208, § 37 (1994 ed.), property settlements are not"). Because the countervailing equities doctrine is a basis for modification, it does not apply to nonmodifiable property settlements. As there appears to be no genuine dispute that the lump sum payments were part of the property settlement, they are not subject to modification and dismissal of the wife's modification complaint was proper.

Even assuming arguendo that the lump sum payments could be modified on the basis of countervailing equities, which we do not suggest, dismissal of the wife's modification complaint would still have been proper. To be entitled to relief on this ground, the wife's complaint must support an inference that (1) the wife is or will become a public charge, (2) the husband has not complied with the provisions of the agreement, or (3) there exists some other countervailing equity "at least as compelling as these two grounds." Stansel v. Stansel, 385 Mass. 510, 515-516 (1982).

The wife's complaint does not allege that the husband has failed to comply with the provisions of the agreement. While it does allege that the wife will become a public charge if required to pay the husband $1 million, this conclusory allegation is not borne out by the factual allegations or the wife's March 24, 2014, financial statement. The wife has assets in the form of the marital home, a vehicle, a checking account in her name, $40,000 held in escrow, and $33,854.98 in a retirement account. The judge was not required to accept her assertion that she has no assets. See Jarosz v. Palmer, 49 Mass. App. Ct. at 836 (judge is "not required to accept as true those facts which the court could take judicial notice are not true" [quotation omitted] ). The wife's allegations simply do not support an inference that there has been "a deterioration in the economic situation of the more dependent spouse which renders that spouse unable to meet basic needs, so that public support is likely to be required in behalf of the dependent spouse and children in turn dependent upon her or him." McCarthy v. McCarthy, 36 Mass. App. Ct. 490, 494 (1994).

"In the absence of fraud, coercion, or countervailing equities, a signatory to an agreement is bound by its terms." DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 624 (2016). "To hold otherwise would negate the integrity and inviolability of the innumerable surviving agreements relied upon by parties across the Commonwealth." Id. Because the wife's complaint fails to state a claim for relief from the lump sum provision of the agreement on the basis of countervailing equities, her complaint for modification was properly dismissed. See Hayes v. Lichtenberg, 422 Mass. 1005, 1006 (1996) ; Broome v. Broome, 43 Mass. App. Ct. 539, 545-546 & 545 n.14 (1997).

The wife's contract-based theories of impossibility of performance, frustration of purpose, and unconscionability are equally unavailing. "[T]he doctrine of frustration of purpose is a companion rule to the doctrine of impossibility." Karaa v. Kuk Yim, 86 Mass. App. Ct. 714, 717 (2014). See Mishara Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 128-129 (1974). "Both doctrines concern the effect of supervening circumstances upon the rights and duties of the parties." Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371, 374 (1991). In determining whether either doctrine applies, the principal question is "whether an unanticipated circumstance, the risk of which should not fairly be thrown on the promisor, has made performance vitally different from what was reasonably to be expected" (quotation omitted). Id.

Here, the wife was aware of CNT's precarious financial position before she entered into the agreement. She knew that she was barred from removing any funds from CNT beyond her fixed salary, and she executed the agreement even though there was "no other foreseeable or conceivable source of payment other than from CNT." The wife sought the lump sum payment provision even though she was insolvent at the time, and her obligation was not contingent upon the success of CNT. She should not have been surprised that her obligation continued even if CNT did not. "[A] contracting party cannot be excused where the only 'frustration' consists in the fact that known risks assumed by [her] have turned out to [her] disadvantage." Baetjer v. New England Alcohol Co., 319 Mass. 592, 602 (1946). Where the wife knew of CNT's precarious financial position when she entered into the agreement, its failure "was a risk [she] assumed." Essex-Lincoln Garage, Inc. v. Boston, 342 Mass. 719, 722 (1961).

"Under Massachusetts law, '[t]o prove that the terms of a contract are unconscionable, a plaintiff must show both substantive unconscionability (that the terms are oppressive to one party) and procedural unconscionability (that the circumstances surrounding the formation of the contract show that the aggrieved party had no meaningful choice and was subject to unfair surprise).' " Machado v. System4 LLC, 471 Mass. 204, 218 (2015), quoting Storie v. Household Int'l, Inc., U.S. Dist. Ct., No. 03-40268 (D. Mass. Sept. 22, 2005). Such unconscionability is not present here, where the wife sought the lump sum payment provision in order to negate periodic alimony. The wife was represented by counsel, she understood the agreement, she was satisfied with its terms under all circumstances, and she signed it of her own free will. Thus, "[o]n this record, there is no viable claim of unconscionability." Miller v. Cotter, 448 Mass. 671, 680 (2007).

2. Motion to vacate the agreement. The wife moved to vacate the agreement pursuant to Mass. R. Dom. Rel. P. 60 (b), claiming that the husband had misrepresented his income and the value of his business at the time of the divorce and in postdivorce proceedings. A motion for relief from a judgment on the basis of fraud, misrepresentation, "or other misconduct of an adverse party" must be brought within one year after the judgment was entered. Mass. R. Civ. P. 60 (b) (3), 365 Mass. 828 (1974). The wife did not file her motion to vacate the 2010, agreement until 2014. The motion was not timely and was properly denied. Sahin v. Sahin, 435 Mass. 396, 400 (2001).

3. Husband's cross appeal. After hearing six days of testimony and considering several exhibits, including evidence of the wife's finances and her efforts to find employment, a judge of the Probate and Family Court concluded that "[t]he evidence at trial did not support attribution to [m]other at a higher level of income" than $30,000 per year. In a cross appeal, the husband claims error in the judge's evaluation of the evidence; specifically, he argues that the judge ignored a full-time job offer that the wife declined. The argument is unavailing.

The judge specifically discussed the offer from Picosun and found that it had been withdrawn on December 6, 2014. Thus, the judge found, "there was no evidence ... to suggest that [m]other ever turned down a legitimate offer in her field after losing her position with Ultratech." We defer to the judge's credibility determinations and assessment of the weight of the evidence, Lundgren v. Gray, 41 Mass. App. Ct. 451, 457 (1996), and see nothing clearly erroneous in his findings. See Mass. R. Dom. Rel. P. 52 (a).

4. Request for attorney's fees. Finally, the husband seeks an award of appellate attorney's fees, claiming that the wife's appeal is frivolous. While the wife's unrelenting attempts to undo the financial terms of the agreement give us pause, and her legal arguments have failed to persuade us, we decline to exercise our discretion to award attorney's fees and costs. See Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325, 330 n.11 (1997).

Conclusion. The January 23, 2015, judgment dismissing the wife's complaint for modification on the ground of countervailing equities is affirmed. So too is the October 22, 2014, order denying the wife relief from so much of the parties' agreement as requires the wife to pay the husband $1 million. Finally, the July 3, 2017, judgment of modification is affirmed.

So ordered.

Affirmed

      The complaint is not in the record.

      We decline to address the wife's appeal from this judgment because her notice of appeal was not timely and she makes no argument regarding the judgment in her brief. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013) (notice of appeal must be filed within thirty days after entry of the judgment); Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975) ("appellate court need not pass upon questions or issues not argued in the brief").

      We decline to address this appeal because the wife makes no argument in her brief regarding this judgment. Mass. R. A. P. 16 (a) (4).

      On April 15, 2011, the husband filed a complaint for contempt. The wife answered and asserted a counterclaim. On August 16, 2011, a judgment of guilty entered on the contempt. The basis of the contempt is unclear as none of the pleadings have been included in the record. The wife did not appeal from the judgment of contempt.

      The judge wrote that "the allegations do not rise to the level of fraud as defined by case law under Mass. R. Dom. Rel. P. 60 (b)."

      Specifically, the judge stated: "Since the countervailing equities standard only applies to alimony obligations in a surviving [s]eparation [a]greement, and the lump sum payments are not considered alimony, as recognized by both parties and the Appeals Court, the Court is unable to consider a [c]omplaint for [m]odification of [a]limony."

      We decline to address the wife's appeal from the denial of her motion to vacate the April 16, 2011, contempt judgment because the judgment has not been included in the record. Therefore, we are unable to review the judge's decision. See State Line Snacks Corp. v. Wilbraham, 28 Mass. App. Ct. 717, 720 (1990).

      The motion to amend was allowed and the mother filed an amended complaint. The amended complaint is not in the record.

      The June 22, 2016, partial judgment that has been included in the record does not contain these additional provisions. A "further temporary order" issued by the same judge on February 29, 2016, provides that "[n]either party shall be able to file any further pleadings with this Court without express written permission of the trial judge."

      We decline to address this appeal because the wife makes no argument regarding the partial judgment in her brief. Mass. R. A. P. 16 (a) (4).

      Because the text of Mass. R. Dom. Rel. P. 12 (b) (6), is identical to that of Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we may look to cases under the rule of civil procedure when analyzing the mother's complaint. DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 621 n.5 (2016).

      See, e.g., Ames v. Perry, 406 Mass. 236, 241 (1989) ; Stansel v. Stansel, 385 Mass. 510, 512-514 (1982) ; Knox v. Remick, 371 Mass. 433, 434 (1976).

      The wife's counsel conceded at oral argument that the lump sum payments were part of the property division.

      Although the wife filed a financial statement on August 14, 2014, and her complaint for modification refers to that statement, she did not include that statement in the record on appeal. The husband has included the wife's March 24, 2014, financial statement in a supplemental appendix, which he sought permission to file. We allow his motion and consider the documents in the supplemental appendix.

      We note that these defenses are available in an action for breach of contract, which the husband has not brought.

      The provisions of Mass. R. Dom. Rel. P. 60 (b) (3) are identical to those of Mass. R. Civ. P. 60 (b) (3). See Sahin v. Sahin, 435 Mass. 396, 398 n.4 (2001).

      The wife fares no better on the merits, for we agree that "the allegations do not rise to the level of fraud as defined by case law." The figures used by the parties in 2010, to determine the value of the husband's business were financial estimates, not statements of fact, Sahin v. Sahin, 435 Mass. at 403, and the tax returns upon which the wife relies for her claim that the husband misrepresented his weekly income have not been included in the record. Accordingly, we discern no abuse of discretion in the judge's reasoning. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979) ("[t]he exercise of the power to grant relief from a judgment rests within the sound discretion of the judge").

      The wife has claimed in a filing after oral argument that the cross appeal is not properly before us. However, the record shows that the husband timely appealed after judgment entered on July 3, 2017.


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    COMMONWEALTH v. Shawn MACBARRON.
    17-P-1150
    Appeals Court of Massachusetts.
    Entered: October 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a probation violation hearing in the Superior Court, the defendant, Shawn MacBarron, was found in violation of his probation and sentenced to four to five years in State prison. In this appeal, the defendant claims that there was insufficient evidence to support the violation and that his counsel provided ineffective assistance. We affirm.

Background. The defendant is a level three registered sex offender, who was on probation for possession of child pornography. As a condition of probation, the defendant was to have no unsupervised contact with a child under the age of fourteen. The probation department filed a notice of surrender alleging that the defendant violated this term of probation and a hearing was conducted in November, 2015.

The evidence at the revocation hearing established that in July, 2015, the defendant was working at his father's booth at the Fall River Flea Market. Ronald Durand, another probationer who participated in group therapy with the defendant, was also present at the flea market. Durand observed the defendant sitting face-to-face with a young boy who appeared to be between seven and ten years old. The two were sitting close enough to each other to allow their knees to almost touch. The defendant was talking to this child periodically throughout the day, without any other persons present. In total, the defendant spoke to the child for approximately five minutes. At the following group therapy session, Durand told the defendant that the defendant had to disclose his contact with the child to their therapist. The defendant did so, claiming that he knew the child's parents and that the child's father asked the defendant to speak to his son because he was having problems with anxiety and depression. The defendant also claimed that the child's father was present at the flea market, although the father was not close enough to hear their conversation. The evidence at the revocation hearing also included video surveillance from the flea market where the defendant is seen conversing with the child four separate times throughout the day.

Discussion. 1. Insufficient evidence. The defendant argues that the evidence at his revocation hearing was insufficient to support a finding by a preponderance of the evidence that he violated his probation by having unsupervised contact with a child under the age of fourteen. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). We disagree. There was evidence which, if believed, established that the defendant met with a child between the ages of seven and ten while unsupervised. Durand's eyewitness testimony was corroborated by video surveillance of the flea market, where the defendant is seen conversing with the child throughout the day, unsupervised. At group therapy, the defendant himself admitted to speaking with the child, and his therapist testified at the hearing as to his disclosure. The defendant claimed that he was supervised at the time he was with the child; the hearing judge "was not required, however, to accept any of the exculpatory reasons offered by the defendant." Commonwealth v. Tate, 34 Mass. App. Ct. 446, 449 (1993). Further, "[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court." Commonwealth v. Moon, 380 Mass. 751, 756 (1980). The testimony of the witnesses, coupled with the video surveillance, and the defendant's history of sexual offenses, provided sufficient evidence to warrant the finding that the defendant violated his probation and should be committed. See Tate, 34 Mass. App. Ct. at 451 ("Revoking probation is a decision within the sound discretion of the judge in the trial court"). Due to the defendant's history and underlying offense for child pornography, there is no merit to the defendant's argument that the hearing judge failed to fully consider the circumstances of his violation. Once a violation has been found, the nature of the violation is only one of many factors that could be considered by the judge. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 577 (2001) (when sentencing defendant for violation of probation, "the judge will take into consideration the traditional factors relevant to any sentencing decision"). The defendant's sentence, however, is not "punishment for the act or acts that prompted revocation of probation. Rather, the probationer is being punished for the underlying offense for which a probationary sentence originally was imposed." Commonwealth v. Odoardi, 397 Mass. 28, 30 (1986). See Holmgren, 421 Mass. at 227 n.1 ; Commonwealth v. Doucette, 81 Mass. App. Ct. 740, 744 (2012) ("Once the sentence of straight probation was revoked, the judge was permitted to impose any sentence recognized under law for the original offense"). We conclude there was no abuse of discretion in the sentence imposed on the defendant's underlying charge of possession of child pornography.

2. Ineffective assistance of counsel. The defendant claims he received ineffective assistance of counsel because his defense counsel failed to call witnesses at the violation hearing who could verify the defendant was supervised while talking to the child. We review claims of ineffective assistance of counsel using the two-prong test outlined in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant bears the burden of establishing that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer" and that such behavior has deprived him "of an otherwise available, substantial ground of defence." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 760 (2002), quoting Saferian, 366 Mass. at 96.

Here, the defendant has failed to meet his burden of proof because he did not file an affidavit from defense counsel explaining counsel's strategy at the revocation hearing. Without such a statement, we cannot conclude that defense counsel's failure to call these witnesses at the revocation hearing was a manifestly unreasonable tactical decision. See Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made"); Commonwealth v. Hernandez, 63 Mass. App. Ct. 426, 430 (2005).

Nor has the defendant produced an affidavit from the child's father, or the man who allegedly agreed to supervise the defendant at the flea market, indicating that the testimony of these witnesses would have benefited his case. See Commonwealth v. Ortega, 441 Mass. 170, 178 (2004) ("the defendant must show that the purported testimony would have been relevant or helpful"). Further, the defendant's allegation that the hearing judge "took the word" of Durand that the defendant was unsupervised is without merit, where the parties watched the video surveillance of the flea market at the hearing, and where the video was submitted in evidence for the judge. Therefore, the defendant has not proved that his defense counsel fell "measurably below" that of an "ordinary fallible lawyer." Saferian, 366 Mass. at 96. See Ortega, 441 Mass. at 178-179 (defense counsel's failure to call certain witnesses not ineffective where defendant provided no affidavits from prospective witnesses setting forth their testimony).

Lastly, assuming arguendo that the decision not to call these witnesses was manifestly unreasonable, the defendant cannot meet the second prong for an ineffective assistance claim. Even if these witnesses had testified at the hearing, the record indicates other sufficient evidence that the defendant had unsupervised contact with the minor. Accordingly, the defendant has not shown that failure to procure these witnesses deprived him of a "substantial ground of defence." Saferian, 366 Mass. at 96.

Order revoking probation affirmed.

      Given the sufficiency of this evidence, and the judge's careful findings made at the hearing, the defendant's argument that the judge failed to consider the minimal nature of his violation and speculative arguments made by the Commonwealth, thereby violating his rights to due process, is without merit. See Commonwealth v. Durling, 407 Mass. 108, 113-114 (1990) (explaining due process rights at revocation hearings); Commonwealth v. Morse, 50 Mass. App. Ct. 582, 592-594 (2000).


text:
    COMMONWEALTH v. Darryl MCCLURE.
    17-P-1309
    Appeals Court of Massachusetts.
    Entered: October 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Darryl McClure, appeals from his convictions on charges of violating an abuse prevention order, see G. L. c. 209A, § 7, intimidation of a witness, see G. L. c. 268, § 13B, and carrying a dangerous weapon, see G. L. c. 269, § 10 (b ).

1. The defendant's first argument is that the judge erred in not allowing his motion for a required finding of not guilty on the charge of intimidation of a witness. In particular, the defendant argues that the Commonwealth failed to prove that the defendant acted wilfully to intimidate or to mislead his mother not to testify against him, and that he did so with the specific intent to interfere with her participation as a witness at his trial. "The purpose of the statute, rather obviously, is to protect witnesses from being bullied or harried so that they do not become reluctant to testify or to give truthful evidence in investigatory or judicial proceedings." Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998).

Here, the evidence was that while he was in jail awaiting trial, the defendant learned that his mother, whom he had not seen for many years, had identified him as the robber from a surveillance video recording and still images. The defendant believed that his mother was a very important potential witness because he did not believe the victim would be able to identify him. The defendant telephoned and sent letters to his former girl friend asking her to contact his brother to ask him to tell their mother "not to come to trial." The evidence showed that the defendant's brother contacted their mother and explained that the defendant did not want her to identify him and that she should tell the police that "it wasn't [the defendant]." The defendant arranged for his requests to be relayed to his mother after he had been served with a restraining order that barred him from having any contact with his mother. When his mother received the defendant's request, she became nervous and contacted the police. She testified, "I was frightened that maybe someone would come to my door and say something to me." It was a reasonable inference from the defendant's conduct that he acted wilfully to interfere with his trial by putting his mother in fear of testifying against him.

"The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered[;] ... the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances." Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007), quoting Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001). The Commonwealth is not required to prove an "overtly threatening" (citation omitted) act. Commonwealth v. Perez, 460 Mass. 683, 703 (2011). Certainly, his mother's reaction to his instruction from jail in violation of the restraining order (i.e., "frightened") lends support to the inference that the statement the defendant directed others to deliver to his mother was a threat. Because the jury were warranted in finding that this threat was intended to achieve the ultimate goal of preventing his mother from testifying at trial, the intimidation prong of G. L. c. 268, § 13B, is satisfied. The sufficiency of the evidence on this prong is such that we need not reach the misleading prong of § 13B.

2. With regard to the conviction of carrying a dangerous weapon, the Commonwealth concedes that the judgment should be vacated because the judge did not instruct the jury that in the case of a weapon that is not dangerous per se, such as the folded pocket knife involved in this case, the jury must find beyond a reasonable doubt that as used by the defendant, the weapon was capable of causing serious bodily injury. See, e.g., Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 81-82 (2014). However, the defendant's argument goes further. The defendant contends that the discovery of a folding pocket knife with a dime wedged in it in the lining of the defendant's shorts during the booking process, which took place at the police station, is not sufficient, as a matter of law, to support a finding by the jury that the defendant made use of the knife in a manner that could cause serious bodily injury. We agree. "[F]olding knives typically are not regarded as dangerous weapons, at least while unopened." Commonwealth v. Allen, 76 Mass. App. Ct. 9, 12 n.5 (2009). There was no evidence indicating that the knife had been hidden by the defendant in the lining in such a way that the defendant was capable of ready access to it with the blade in the open position. In fact, there was no evidence that the defendant was even aware of the presence of the knife in the lining of his shorts. In these circumstances, the evidence did not permit the jury to find that the pocket knife was a dangerous weapon.

3. During her redirect examination of the defendant's mother, the prosecutor asked a brief series of questions about how she (the mother) had been treated by the prosecutor and the police. The mother replied "[p]rofessionally." We agree with the Commonwealth that this brief exchange was entirely appropriate as it was relevant to rebut the suggestion by the defense that the defendant's mother had been pressured into making an identification.

4. The defendant objects to several portions of the prosecutor's closing argument. First, the argument that the defendant's testimony that he did not have a bicycle and did not borrow a bicycle mattered "very little" was not a veiled effort to claim that the defendant had stolen a bicycle, but rather a fair rebuttal of the defendant's faulty logic that this must be a case of mistaken identity because the robber fled the scene on a bicycle and the defendant did not own or borrow one that day. The prosecutor also argued that it was "difficult" for the defendant's brother and mother to come to court to testify and that "[t]hey're good people." These comments should not have been made and constitute error on the part of the prosecutor because they could have been understood as an expression of the prosecutor's belief in the credibility of the witnesses. See Mass. G. Evid. § 1113(b)(3)(B) (2018). Also, it was error for the prosecutor to comment that the defendant "is indeed a criminal. You can hear it in his voice and in his recorded calls." Assertions by prosecutors as to the credibility of witnesses or the guilt of the accused are impermissible. See Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). Nonetheless, upon a consideration of the trial in its entirety, neither this erroneous comment, nor the others made by the prosecutor, which were not the subject of an objection, rise to the level of creating a substantial risk of a miscarriage of justice, especially when we consider that this is a case in which there is strong evidence of the defendant's guilt.

5. For the above reasons, we vacate the judgment on the charge of carrying a dangerous weapon, set aside the verdict, and order that judgment enter for the defendant. The remaining judgments are affirmed.

So ordered.

Vacated in part and set aside; affirmed in part.

      The defendant does not appeal from his conviction of armed robbery, see G. L. c. 265, § 17A, to which he pleaded guilty.

      "Straightness of a blade, like its length, a locking mechanism, a serrated edge, or any other individual feature is not dispositive of the question whether a knife is dangerous per se under the common law. Rather, the question is whether the knife is designed for the purpose of bodily assault or defense and to produce death or great bodily harm, or whether it has some other useful purpose and is only dangerous when used in a dangerous fashion" (quotation marks and citations omitted). Commonwealth v. Wynton W., 459 Mass. 745, 754 n.5 (2011).

      Remand for resentencing is unnecessary.


text:
    COMMONWEALTH v. Winston MCGHEE.
    16-P-1250
    Appeals Court of Massachusetts.
    Entered: October 25, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this direct appeal from his conviction, after a jury trial, of one count of assault and battery, the defendant argues that it was error to deny his motion to dismiss because the Commonwealth failed to preserve a potentially exculpatory photograph. We affirm.

On April 27, 2014, the defendant had an altercation with his former girl friend during which he admittedly punched her in the face. She testified that after this, he ran into the street, brandished a firearm, fired a single shot into the air, and then ran away. A bystander saw a man run past her, pull a gun from the waistband of his pants, and fire a shot. Police who responded to the scene showed the bystander a "selfie" photograph of the defendant on the girl friend's cellular telephone (cell phone), but the bystander was unable to say whether the photograph was of the person she saw run by. The police did not preserve the photograph, and the officer was instructed by a detective not to mention the photograph in his report. The prosecutor, who learned of the photograph before trial, notified defense counsel, who moved to dismiss the indictments. It is the denial of this motion and the defendant's motion to reconsider that are at issue on appeal.

The Commonwealth acknowledges that the photograph should have been preserved and that an instruction not to include mention of it in the police report would be improper. We are of the same view on both points. However, that does not end the analysis. Instead, our task is to determine whether, in the circumstances, the judge abused her discretion in concluding that dismissal of the indictments was not required. See Commonwealth v. Kee, 449 Mass. 550, 555 (2007).

"[W]hen potentially exculpatory evidence is lost or destroyed, a balancing test is employed to determine the appropriateness and extent of remedial action. The courts must weigh the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant. To establish prejudice, the defendant must show 'a reasonable possibility, based on concrete evidence rather than a fertile imagination,' that access to the [material] would have produced evidence favorable to [the defendant's] cause."

Commonwealth v. DiBenedetto, 427 Mass. 414, 419 (1998), quoting Commonwealth v. Willie, 400 Mass. 427, 432, 433 (1987). "If remedial action is required, the judge has the discretion to fashion a remedy that will protect the defendant's rights." Mass. G. Evid. § 1102 note, at 389 (2018). Dismissal is required only where the harm is irremediable. See Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 28 (1993).

Here, the judge accepted that the photograph should have been preserved and that it was potentially exculpatory, but found no bad faith on the part of the Commonwealth in permitting the victim to retain her cell phone without asking that the photograph be preserved. The judge stated that she was convinced that the defendant would be able to establish at trial that the bystander was unable to identify the defendant (the man in the photograph) as the person she saw run by, and implicitly concluded that no prejudice therefore would result. We agree. Preservation of the photograph would have added little, if anything, to the case: the jury heard that the victim provided police with a photograph of the defendant, that the photograph was shown to the bystander, and that the bystander was unable to identify the defendant as the person who ran by her on the night in question.

To the extent we were to assume that the photograph's absence nonetheless carried some prejudice, the judge's remedial actions sufficed to dissipate it; the bystander was not permitted to identify the defendant in court, the defendant was allowed to cross-examine police witnesses about the missing photograph, the defendant was permitted to argue in closing about the failure to preserve the photograph, and the judge gave a missing evidence instruction to the jury, permitting them to draw negative inferences from its loss.

For all of these reasons, the judge did not abuse her discretion in denying the motion to dismiss, or the defendant's motion to reconsider, and we affirm.

Judgment affirmed.

      The defendant was indicted on multiple counts of assault and battery by means of a dangerous weapon, assault and battery, and various firearms charges. He was acquitted of all but the single assault and battery charge he now appeals.

      The Commonwealth moved to dismiss this appeal on the ground that the defendant was a fugitive. See Commonwealth v. Hurley, 391 Mass. 76, 78-79 (1984) ; Commonwealth v. Green, 353 Mass. 687, 690 (1968). At oral argument the Commonwealth withdrew this motion because the defendant is no longer a fugitive.


text:
    COMMONWEALTH v. Mark RICHARD.
    17-P-1376
    Appeals Court of Massachusetts.
    Entered: October 25, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of possession with the intent to distribute heroin, and possession of cocaine. On appeal, he claims he received ineffective assistance from his trial counsel, and that there was insufficient evidence to support his convictions. We affirm.

1. Ineffective assistance. The defendant claims that trial counsel was ineffective for mentioning his post-Miranda invocation of his right to remain silent, for not requesting a limiting instruction, for referring to a prior hearing as a dangerousness hearing, and for not objecting to testimony about the defendant having been the target of the investigation. We disagree.

The defendant properly raised his ineffective assistance claim in a motion for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). A judge may grant such a motion "if it appears that justice may not have been done." Id. We review the denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). And, because the motion judge was also the trial judge, his decision to deny the motion is entitled to "special deference." Commonwealth v. Shanley, 455 Mass. 752, 767 (2010), quoting Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996).

During cross-examination of Detective Gracia, counsel impeached his credibility by showing that his testimony at trial differed from his testimony at a preliminary hearing as to who provided the defendant with Miranda warnings. In the process, counsel mistakenly revealed that the defendant had invoked his right to remain silent after receiving Miranda warnings. This, the defendant claims, amounted to ineffective assistance because it allowed the jury to draw an impermissible inference of guilt. We disagree.

In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the United States Supreme Court held that the due process clause of the Fourteenth Amendment to the United States Constitution prohibits impeachment on the basis of a defendant's silence following Miranda warnings. The Court held that such impeachment was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. Id. at 618. "The animating concern in Doyle was that a defendant's silence in the wake of receiving the Miranda warnings may be nothing more than an exercise of those rights, which renders his silence 'insolubly ambiguous' on questions of guilt or innocence." Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 112-113 (2011), quoting Doyle, supra at 617.

Thus, while counsel could have impeached Gracia regarding his prior inconsistent statement without mention of the defendant's exercise of his right to remain silent, there was no impeachment relative to that silence. In other words, albeit improper, counsel's misstep did not touch on the animating concern of Doyle because the defendant's silence was ancillary to, and not the focus of, the impeachment. This was not a situation where the defendant's post-Miranda silence was elicited to suggest he was guilty. Contrast Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983). Moreover, the mention of the defendant's silence was brief, and it was not argued by the prosecutor in his closing argument. In this light, and in light of the strong evidence of the defendant's guilt outlined infra, the defendant was not likely deprived of a substantial ground of defense, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), nor was there a substantial risk of a miscarriage of justice. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016).

The defendant also claims that counsel's decision to not request a curative instruction constituted ineffective assistance. We disagree. As an initial matter, it is important to note that counsel did not fail to request such an instruction. In fact, the judge offered to give a curative instruction, and counsel asked if she could have the night to consider the matter. The next day, counsel reported that she did not want the judge to give an instruction, and to just "leave it where it's at and not bring attention to it." Counsel then agreed with the judge's remark about letting "[s]leeping dogs lie."

In this posture, the question becomes whether counsel's strategic decision to forgo the instruction was manifestly unreasonable at the time the choice was made. See Commonwealth v. Velez, 479 Mass. 506, 512 (2018). As the judge properly determined, it was not. As the record reflects, counsel made a reasonable determination that a curative instruction would only serve to highlight the improper remark. This was not manifestly unreasonable, especially in light of the fact that there was no attempt to impeach the defendant with his silence. See Commonwealth v. Fredette, 396 Mass. 455, 466 (1985) (not manifestly unreasonable for counsel to conclude that "further pursuit of the matter in the hearing of the jury would only add emphasis and importance to the matter").

During counsel's attempt to impeach Gracia with his prior testimony regarding what address the defendant gave during booking, counsel inadvertently referred to the prior hearing as a "dangerousness hearing." This, the defendant claims, also constituted ineffective assistance. We disagree. While counsel's unintended remark was not strategic, it also did not deprive the defendant of a substantial ground of defense. See Saferian, 366 Mass. at 96. Indeed, the remark was isolated and unadorned with any prejudicial detail as to the outcome of the hearing. Moreover, as the judge noted, the jury's acquittal of the defendant on the firearms charges lends credence to the notion that the jury were not influenced by any inference that the defendant was dangerous. See Commonwealth v. Dupont, 2 Mass. App. Ct. 566, 572 (1974). Furthermore, in his charge to the jury, the judge instructed that the fact that there were any preliminary hearings leading up to the trial was not evidence and not for the jury's consideration.

Finally, the defendant claims that counsel was ineffective for not objecting to the admission in evidence of the testimony that the defendant was the target of the search warrants and that Gracia had been conducting surveillance of the defendant for weeks prior to the execution of the search warrants. We disagree. Any objection to this testimony would have been overruled. See Commonwealth v. Cohen, 412 Mass. 375, 392 (1992) (failure to make futile objection cannot amount to ineffective assistance of counsel). As the judge noted, "the disputed testimony involved background information that was necessary to provide context for why the defendant and the Maxfield Street residence were of interest to the police." In fact, an investigating officer should be allowed "some explanation of his presence and conduct." Id. at 393, quoting McCormick, Evidence § 249, at 734 (3d ed. 1984). The admission of such information falls well within the judge's discretion. See Commonwealth v. LaVelle, 33 Mass. App. Ct. 36, 43 (1992), S.C., 414 Mass. 146, 155-156 (1993).

2. Sufficient evidence. The defendant also claims there was insufficient evidence that he constructively possessed the drugs found at the Maxfield residence. To prove constructive possession of drugs, the Commonwealth must establish the defendant's "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Here, the evidence was sufficient.

In the weeks leading up to the search, the police saw the defendant on several occasions coming and going from the Maxfield Street residence, and he showed up at the residence when the search was underway. The defendant's wallet was found on the bed, and the wallet contained his credit card. On top of the dresser was a prepaid loadable Walmart MoneyCard addressed to the defendant at the Maxfield residence. In a dresser located in the closet, the police found a black folder containing photographs of the defendant, and a white binder with correspondence addressed to the defendant and his girl friend, photographs of the defendant, and his birth certificate. There were also men's clothing and the defendant's expired identification card found in the same drawer where the container that held the heroin was discovered. Another one of the defendant's expired identification cards was discovered in a bureau drawer that also contained a digital scale and additional photographs of the defendant and his girl friend.

Given the above evidence, viewed in the light most favorable to the Commonwealth, the jury were entitled to draw the reasonable inference that the defendant had knowledge of the narcotics in the bedroom. See Brzezinski, 405 Mass. at 409. Also, based on the above, the jury could infer that the defendant had the ability and intention to exercise dominion and control over the narcotics. See Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986). The motion for required findings of not guilty was properly denied.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The defendant was acquitted of unlawful possession of a firearm without a firearm identification card, and of unlawful possession of ammunition.

      The evidence was also properly admitted to establish, in part, that the defendant lived at the Maxfield residence, and why a search warrant issued for that address.

      Contrary to the defendant's claim, which fails to view the evidence in the light most favorable to the Commonwealth, the fact that his identification cards were expired does not diminish the reasonableness and permissibility of the inference that they connect the defendant to the area where the narcotics were discovered.


text:
    CLAUSE v. ERIE COUNTY MED. CTR.
    Court of Appeals of New York.
    Decided September 12, 2018
    APPEALS WITHDRAWN AND DISCONTINUED


text:
    Matter of HOGAN v. ANNUCCI
    Court of Appeals of New York.
    Decided September 11, 2018
    APPEALS DISMISSED PURSUANT TO RULES OF PRACTICE OF COURT OF APPEALS OR ON CONSENT


text:
    MORGAN STANLEY MTGE. LOAN TRUST 2006-13ARX v. MORGAN STANLEY MTGE. CAPITAL HOLDINGS LLC
    Court of Appeals of New York.
    Decided September 10, 2018
    APPEALS WITHDRAWN AND DISCONTINUED


author: DiFiore, J.

text:
    PEOPLE v. BUCALO (Liz)
    Court of Appeals of New York.
    September 28, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BAYNES (Lynell)
    Court of Appeals of New York.
    September 28, 2018
    Applications in Criminal Cases for Leave to Appeal Denied


author: ( Wilson, J.)

text:
    PEOPLE v. BIRTH (James)
    Court of Appeals of New York.
    September 28, 2018
   ( Wilson, J.)

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BUCALO-LINGERFELT (Elizabeth)
    Court of Appeals of New York.
    September 28, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied.


author: Feinman, J.

text:
    PEOPLE v. ATKINS (Edward)
    Court of Appeals of New York.
    September 26, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Fahey, J.

text:
    PEOPLE v. BROWN (Willie)
    Court of Appeals of New York.
    September 25, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Dismissed.


author: Rivera, J.

text:
    PEOPLE v. ALEXANDER (Steven)
    Court of Appeals of New York.
    September 25, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BARNETT (Antonio)
    Court of Appeals of New York.
    September 21, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Fahey, J.)


text:
    PEOPLE v. CABRERA-GALDAMES (Selvin)
    Court of Appeals of New York.
    September 21, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CARSTON (Allahvelle)
    Court of Appeals of New York.
    September 20, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. BUCHANAN (Anthony)
    Court of Appeals of New York.
    September 20, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. BOY (Boy)
    Court of Appeals of New York.
    September 20, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ASH (Connor)
    Court of Appeals of New York.
    September 14, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. ARIASPACHO (Juan)
    Court of Appeals of New York.
    September 13, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Rivera, J.)


text:
    PEOPLE v. BALL (Raymond)
    Court of Appeals of New York.
    September 13, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Stein, J.

text:
    PEOPLE v. BISHOP (Edward)
    Court of Appeals of New York.
    September 11, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. AUSTIN (Rashawn)
    Court of Appeals of New York.
    September 10, 2018
   DiFiore, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. ANONYMOUS ( )
    Court of Appeals of New York.
    September 6, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. CASTRO (John)
    Court of Appeals of New York.
    September 4, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. DIXON (Steven)
    Court of Appeals of New York.
    September 28, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: Rivera, J.)

text:
    PEOPLE v. CROCHRAN (Lenwood)
    Court of Appeals of New York.
    September 27, 2018
   Rivera, J.)

Applications in Criminal Cases for Leave to Appeal Denied.


author: Wilson, J.

text:
    PEOPLE v. ELLIOTT (Lawrence)
    Court of Appeals of New York.
    September 27, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. FLAX (Newnon)
    Court of Appeals of New York.
    September 27, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. CRUMPLER (Sherrita)
    Court of Appeals of New York.
    September 26, 2018
    Applications in Criminal Cases for Leave to Appeal Denied (Feinman, J.)


text:
    PEOPLE v. DEANE (Akeem)
    Court of Appeals of New York.
    September 26, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. ELLIS (Malik)
    Court of Appeals of New York.
    September 26, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. COUNCIL (Sedrick)
    Court of Appeals of New York.
    September 26, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. EDWARDS (John)
    Court of Appeals of New York.
    September 26, 2018
   ( Wilson, J.)

Applications in Criminal Cases for Leave to Appeal Denied


author: ( Rivera, J.)

text:
    PEOPLE v. COOK (Tyrell)
    Court of Appeals of New York.
    September 25, 2018
   ( Rivera, J.)

Applications in Criminal Cases for Leave to Appeal Granted


text:
    PEOPLE v. CHILDS (Jeffrey)
    Court of Appeals of New York.
    September 21, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. FIGUEROA (Rosendo)
    Court of Appeals of New York.
    September 21, 2018
   Fahey, J.

Applications in Criminal Cases for Leave to Appeal Denied


author: ( DiFiore, J.)

text:
    PEOPLE v. EVELYN (Carlos)
    Court of Appeals of New York.
    September 20, 2018
   ( DiFiore, J.)

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. COLEMAN (Donnell)
    Court of Appeals of New York.
    September 18, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. CREDELL (Darnell)
    Court of Appeals of New York.
    September 14, 2018
   Stein, J.

Applications in Criminal Cases for Leave to Appeal Denied.


text:
    PEOPLE v. EIGHT ( )
    Court of Appeals of New York.
    September 13, 2018
   Rivera, J.

Applications in Criminal Cases for Leave to Appeal Denied Reconsideration


text:
    PEOPLE v. CHADICK (Christopher)
    Court of Appeals of New York.
    September 12, 2018
   Wilson, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. CHEESEBORO (Andre)
    Court of Appeals of New York.
    September 12, 2018
   ( DiFiore, J.)

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. COLE (Terrance)
    Court of Appeals of New York.
    September 12, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied


text:
    PEOPLE v. COTTON (Robert)
    Court of Appeals of New York.
    September 11, 2018
   Feinman, J.

Applications in Criminal Cases for Leave to Appeal Denied