text:
    COMMONWEALTH v. Mark A. STACY.
    17-P-1215
    Appeals Court of Massachusetts.
    Entered: October 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his second motion for new trial based on his assertion that there was newly discovered evidence and on a claim of ineffective assistance of counsel. We affirm.

The defendant was convicted, after a jury trial, of breaking and entering a building in the daytime with intent to commit a felony, G. L. c. 266, § 18, and larceny from a building, G. L. c. 266, § 20. In a consolidated appeal from his convictions and from the order denying his first motion for new trial, we affirmed the judgments and the order denying the motion for new trial. Commonwealth v. Stacy, 87 Mass. App. Ct. 1129 (2015). The current appeal springs from the order denying, without an evidentiary hearing, the defendant's second motion for new trial, which was factually supported only by the defendant's own affidavit.

The defendant argues that the judge abused his discretion because newly discovered evidence merits a new trial. He bases this argument on his allegation that, after he was released from jail, Mary Briggs told him that she had planted the stolen items in the white van (rather than finding them there), and that she had lied to police when she told them that the white van belonged to the defendant. Further, the defendant alleges that Briggs lied to police because she was angry at him for dating other women. "A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986). We review to determine whether the judge made a significant error of law or abused his discretion in ruling on the motion. See id. at 307. The abuse of discretion standard is not altered when, as here, the newly discovered evidence is an alleged recantation by a material witness. See Commonwealth v. Waters, 410 Mass. 224, 231 (1991).

We see no error in the judge's denial of the motion. The judge was not required to credit the allegations in the defendant's affidavit, but instead may consider them "in light of factors pertinent to credibility, including bias, self-interest, and delay." Commonwealth v. Buckman, 461 Mass. 24, 43 (2011). In this case, the defendant's affidavit was not only self-serving, see Commonwealth v. Lopez, 426 Mass. 657, 661 (1998) (judge not required to credit self-serving affidavit), it was uncorroborated by an affidavit from Briggs. A supposed recantation presented, as here, only via the defendant who serves to benefit from it does not, on its face, require a new trial. Moreover, the defendant does not contend that he was unaware of Briggs or unable to explore her version of events before trial; indeed the record reflects the opposite. See Grace, 397 Mass. at 306 (newly discovered evidence must "have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial [or at the time of the presentation of an earlier motion for a new trial]"). Further, the fact that Briggs was not available to testify at trial because of her invocation of the Fifth Amendment to the United States Constitution makes no difference for this purpose. See Commonwealth v. Evans, 439 Mass. 184, 203 (2003).

The defendant also argues that trial counsel failed to argue that Briggs waived her right to invoke her Fifth Amendment privilege not to testify. This argument is made without citation to the record or to legal authority and, therefore, does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).

For these reasons, we affirm the order denying the defendant's second motion for new trial.

So ordered.

Affirmed.

      The motion was denied without holding an evidentiary hearing. The judge was entitled to rule on the motion "on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). "Assessment of whether the motion and supporting materials suffice to raise a 'substantial issue' involves consideration of the seriousness of the issue itself and the adequacy of the showing that has been made with respect to that issue." Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Todd M. FESTA.
    17-P-1348
    Appeals Court of Massachusetts.
    Entered: October 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this direct appeal from his conviction, after a bench trial, of assault, the defendant's only argument is insufficiency of the evidence. We affirm.

"[A]n assault may be accomplished in one of two ways -- either by an attempted battery, or by putting another in fear of an immediately threatened battery." See Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000). An assault is thus "defined as either an attempt to use physical force on another, or as a threat of use of physical force." Id. at 248. In the first form of assault, the Commonwealth need not prove that the victim be placed in fear; in the second, the Commonwealth must prove that "the defendant engaged in 'objectively menacing' conduct with the intent to put the victim in fear of immediate bodily harm." Id., quoting Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 524 n.7 (1995).

Viewed under the standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence permitted the judge to find the following. The defendant had been in a tumultuous on-and-off relationship with the victim for over three years. Arguments were a regular feature of their relationship. The defendant was a six foot tall personal trainer weighing 220 pounds who worked out twice a day. He was, in his words, "humongous." The victim was forty-one years old, five feet two inches tall, and weighed 120 pounds. The day before the events at issue, the victim and the defendant had (once again) broken up. They arranged that the defendant would come to the victim's apartment the following day at three o'clock to pick up his humidor. Instead, he arrived without warning at nine o'clock in the morning. Although he did not have keys to the premises, he somehow managed to get through the outer locked door of the apartment complex. He then got into the victim's apartment by knocking loudly and telling the victim's nineteen year old son to open the door. The son did not know the state of affairs between his mother and the defendant, and so complied. An argument ensued, during which the victim repeatedly told the defendant to leave but he did not. The argument can be heard -- and its duration, its vehemence, and the victim's fear can be appreciated -- by listening to the various 911 telephone call recordings (which we have done). Instead, the defendant refused to leave, and proceeded to the victim's small bedroom where the humidor was located. A struggle ensued; the victim attempted to prevent the defendant from getting the humidor, while the defendant tried to push past her. The defendant laid hands on the victim, and as a result of the conflict, she sustained bruising on her leg. The argument was sufficiently heated that multiple calls were placed to 911, including one by the victim's younger son. When police arrived, the defendant opened the door, raised his arms up instead of turning around as instructed, and was uncooperative. The officer felt he needed to use his taser gun to subdue him.

On this record, the evidence amply supported either form of assault.

Judgments affirmed.

      The defendant was charged with the greater offense of assault and battery on a household member. The judge acquitted him of that charge, but convicted him of simple assault as a lesser included offense. See Commonwealth v. Porro, 458 Mass. 526, 534 (2010) (both forms of assault are lesser included offenses of assault and battery).

      The defendant does not challenge his conviction for trespass.


text:
    Jeffrey DICKERSON v. MASSMUTUAL LIFE INSURANCE CO.
    18-P-52
    Appeals Court of Massachusetts.
    Entered: October 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      The defendant insurer's correct name is Massachusetts Mutual Life Insurance Company. For ministerial reasons, we retain the case caption which the plaintiff used to institute the underlying action and which the parties continued to employ in the proceedings below and on appeal.

   The plaintiff, Jeffrey Dickerson, brought this action in Superior Court for breach of contract and related claims after the defendant, Massachusetts Mutual Life Insurance Company (MassMutual), refused to pay out to him the proceeds of a life insurance policy. Following the entry of summary judgment in favor of MassMutual, the plaintiff appealed. We affirm.

Background. Since 2001, the plaintiff's wife had been a covered insured on a rider to the plaintiff's life insurance policy with MassMutual. At the request of the plaintiff and his wife, the rider was converted to a stand-alone policy in February, 2013. This policy insured the life of the plaintiff's wife and named the plaintiff as the sole beneficiary. The plaintiff's wife was to make quarterly premium payments to keep the policy in force. The policy provided a death benefit if the insured died while the policy was in force, but would terminate without value if MassMutual did not receive payment of the required amount by the end of a grace period. The policy stated: "We will send a written notification to you if the policy enters the Grace Period."

The plaintiff's wife paid the initial premium in March, 2013, but made no other payments. In August, 2013, the plaintiff separated from his wife and moved out of the home. In May, 2014, MassMutual notified the plaintiff's wife that the policy had entered a grace period and would terminate if payment were not received by July 21, 2014. As MassMutual did not receive any further payment, it sent a further notice to the plaintiff's wife, confirming that the policy had been terminated as of July 21, 2014.

The plaintiff's wife died on September 7, 2014. Subsequently, with the aid of his independent insurance broker, the plaintiff made several requests of MassMutual to reinstate the 2013 policy and pay his claim; MassMutual refused.

Discussion. We review the grant of summary judgment de novo. See Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715, 718 (2012). Summary judgment is appropriate if, viewing the facts in the light most favorable to the nonmoving party, there are no genuine issues of material fact in dispute and the undisputed facts establish that the moving party is entitled to judgment in its favor. Id.

The plaintiff does not dispute the facts. Instead, he argues that the judge erred in allowing summary judgment in favor of MassMutual, because the undisputed facts establish that MassMutual breached its obligation to provide notice to him and his broker that the policy was entering a grace period. The plaintiff contends that the MassMutual promise in the policy to provide notice to "you" refers, not only to his wife, but also to the plaintiff and the broker who signed the application (converting the policy into a stand-alone one). Putting aside the fact that this theory was never placed before the motion judge, we concur with the judge that the term "you" unambiguously refers to the plaintiff's wife, as the owner of the policy. See Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 281 (1997) (where terms of policy are unambiguous, they must be given their usual and ordinary meaning).

Although the term "you" is undefined, the policy identifies the parties to the policy as "us" (MassMutual) and "the Owner." Indeed, in the consolidated statement of facts, the plaintiff himself substituted "the Owner" for "you" in citing the notification provision of the policy. Additionally, the term "you" is used throughout the policy; construing the term to refer to the plaintiff, his wife, and their broker in each of these instances would lead to a nonsensical interpretation. See Cadle Co. v. Vargas, 55 Mass. App. Ct. 361, 366 (2002) (common sense is as much part of contract interpretation as arsenal of canons).

Nevertheless, in support of his argument on appeal that "you" also refers to him, the plaintiff argues that he was not effectively removed as an owner of the policy during the 2013 conversion. Again, this argument was not placed before the motion judge and is therefore waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue not raised or argued below may not be argued for first time on appeal).

In support of his argument that "you" also refers to the broker, the plaintiff argues that MassMutual's custom and practice of notifying the broker when payments were late was incorporated into the policy. Although custom and practice may assist in policy interpretation, it may not be used to contradict or vary the terms of a policy. See Somerset Sav. Bank v. Chicago Title Ins. Co., 420 Mass. 422, 428 (1995). As the motion judge noted, MassMutual's obligation to notify "you" (i.e., the owner), could not reasonably be construed as an obligation to also notify the broker. Any incorporation of a past practice of notifying the broker would vary the terms of the policy. Additionally, the policy itself indicates that "[t]he entire contract consists of the policy, which includes the application and any rider(s) and endorsement(s) the policy has." The motion judge therefore correctly rejected the plaintiff's argument and ruled in favor of MassMutual on the breach of contract claim.

We agree with the motion judge that the plaintiff's remaining claims were dependent on the validity of the breach of contract claim or upon some misrepresentation by MassMutual which the plaintiff failed to establish. See Surabian Realty Co., 462 Mass. at 723.

Judgment affirmed.

      For example, the policy states that "[w]e will notify you if you fail the Guaranteed Death Benefit Safety Test and this policy will lapse." The plaintiff's interpretation would read this provision to require the life insurance beneficiary and the broker to meet the test in order to keep the policy in force.

      The plaintiff argues that his required signature of consent is missing from the version of the insurance application submitted on summary judgment. In response to this argument, MassMutual moved to expand the record to include what it characterizes is a "fully executed" application. The plaintiff countered that any expansion of the record to include a second version of the application should also include a third version. As we decline to address this issue raised for the first time on appeal, we deny that portion of MassMutual's motion to expand the record seeking to include any other version of the application. We allow, however, the portion of the motion seeking to expand the record to include the complaint, answer, and consolidated statement of material facts.

      MassMutual's request for appellate attorney's fees and double costs is denied.


text:
    APEM, INC. v. APPLIED RESOURCES CORPORATION.
    18-P-180
    Appeals Court of Massachusetts.
    Entered: October 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Applied Resources Corporation, appeals from the denial of its motion to vacate a default judgment and from an order denying its motion for reconsideration of that denial. A judge of the Superior Court concluded that notwithstanding a defect in the service of process on the defendant, the defendant had actual notice of the legal action that had been filed against it and therefore was not entitled to relief from the judgment. We affirm.

Background. In October, 2016, counsel for the plaintiff, APEM, Inc., filed a complaint against the defendant for breach of contract, violation of G. L. c. 93A, account stated, unjust enrichment, and breach of the covenant of good faith and fair dealing. Service was made on Mark Colello, the president and registered agent of the defendant, on November 3, 2016. In serving the defendant, the plaintiff included the wrong complaint. However, Colello was served with the correct civil action sheet, summons, tracking order, and cover letter. The summons and cover sheet indicated the names of and other information concerning the parties, the type of action involved, and a brief description of the claims.

In December, 2016, the plaintiff filed a request for default, after receiving no response from the defendant. The plaintiff mailed a copy of this request and a cover letter to the court and to the defendant. On December 27, 2016, a default entered against the defendant, and the court sent a copy of the order to the defendant. In January, 2017, the plaintiff filed a motion for default judgment, and a hearing was scheduled for April 27, 2017. By letter dated April 5, 2017, the plaintiff mailed to the defendant copies of the motion for entry of a default judgment, the affidavit in support of the request for entry of a default judgment and assessment of damages, and the notice of the hearing on the assessment of damages. The defendant did not respond or appear at the hearing. Accordingly, on May 1, 2017, a default judgment entered against the defendant in the amount of $165,876.45 (an amount that included interest).

In September, 2017, the defendant filed a motion to vacate the default judgment, requesting relief pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). On October 18, 2017, the judge denied the defendant's motion because he found that the defendant was "aware of the pending suit against it" and was "aware of the imposition of the default," the plaintiff's request for a default judgment, and the scheduled hearing for the assessment of damages, yet took no action. The defendant filed a motion for reconsideration and a hearing was held on November 1, 2017. On November 13, 2017, the judge again denied the defendant's request to vacate the judgment, finding no valid basis for reversing the initial denial. This appeal followed.

Standard of review. In reviewing a motion for relief from judgment under Mass. R. Civ. P. 60 (b) (4), the court must determine "whether the record shows that the judgment from which relief is sought is void." Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527, 529 (1997). The reviewing court "look[s] to the pleadings, affidavits, and exhibits to determine whether they show that the judgment in the underlying action is void and whether the judge erred in denying [the defendant's] request for relief." Id. at 529-530. A judgment is void if the court "lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law." McIntire, petitioner, 458 Mass. 257, 264 (2010), quoting Harris v. Sannella, 400 Mass. 392, 395 (1987). See O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 455 (1991) ("the concept of void judgments is narrowly construed"). If the judgment is void, the court must vacate it because "[n]o discretion is granted by the rule." Field v. Massachusetts Gen. Hosp., 393 Mass. 117, 118 (1984). Here, the defendant argues that because service was deficient pursuant to Mass. R. Civ. P. 4, as amended, 402 Mass. 1401 (1988), the default judgment entered against it is void as a matter of law. We conclude that despite being served with the incorrect complaint, the defendant had sufficient notice of the nature of the claims against it and an opportunity to be heard prior to the entry of the default judgment.

Discussion. A default judgment may be void if the defendant is not properly served with process. See Fleishman v. Stone, 57 Mass. App. Ct. 916, 916 (2003). Even where service is not properly made, however, a default judgment should not be set aside if the party still had "adequate notice of the complaint and a meaningful opportunity to be heard in answer to the claims raised." Jones v. Boykan, 79 Mass. App. Ct. 464, 469 (2011), S.C., 464 Mass. 285 (2013). See Atlas Elevator Co. v. Stasinos, 4 Mass. App. Ct. 285, 288 (1976).

The defendant claims that merely receiving notice of the plaintiff's identity, and the identity of the court where the claim is pending, does not satisfy Mass. R. Civ. P. 4 (e). Although it is true that service was not complete, due to the inclusion wrong complaint, this does not render the judgment void unless the defendant was also deprived of an "adequate notice of the complaint and a meaningful opportunity to be heard in answer to the claims raised." Jones, 79 Mass. App. Ct. at 469. The defendant does not dispute being served with the summons, tracking order, and civil action cover sheet which set forth the names of the parties, the type of suit the plaintiff filed against the defendant, and where it was filed. More importantly, the defendant received copies of the plaintiff's motion for entry of a default judgment, the affidavit in support of the request for entry of a default judgment, and a notice of the hearing on assessment of damages. Accordingly, the defendant was aware that the plaintiff was moving for default judgment against it and when and where the hearing would be held. These materials were sufficient to put the defendant on notice that the plaintiff filed suit against it in Essex Superior Court for breach of contract, and provided the defendant with an opportunity to be heard prior to any entry of a default judgment. Despite this notice and opportunity, however, the defendant "did not attend duly-noticed hearings, neglected to provide discovery, and offered no excuse for ignoring the case at hand." Id. at 467.

The defendant emphasizes the point that Colello attempted to obtain the correct complaint from the plaintiff by leaving a message with a receptionist at the plaintiff's counsel's office. However, this was not done until after the defendant received notice of the hearing, which was five months after being served with the summons, tracking order, and cover sheet. The defendant took no other action despite being put on notice of the suit against it in November, 2016. Therefore, we conclude that the judgment entered against the defendant is not void under Mass. R. Civ. P. 60 (b) (4).

Orders denying motions to vacate default judgment and for reconsideration affirmed.

      The civil action cover sheet shows that the plaintiff's suit was a breach of contract action for goods sold and delivered, and specifically says that the "[d]efendant has failed and refused to pay without excuse after demand."

      Likewise, we determine that the judge did not abuse his discretion in denying the defendant's motion to reconsider that included claims by the defendant that it had meritorious defenses and colorable counterclaims. The judge's ruling that the judgment was not void for lack of service reflects that the defendant failed to show the existence of "good cause or excusable neglect" necessary to permit the issuance of relief under rule 60 (b). See Jones, 79 Mass. App. Ct. at 468-469 (explaining the standards under Mass. R. Civ. 60 [b] versus rule 60 [b] [4] and stating that "[e]ven though rule 60 [b] allows for a considerable measure of discretion in its application, a judge is not permitted, in exercising that discretion, to grant relief to a party absent a showing of good cause or excusable neglect ... and the existence of a meritorious defense").


text:
    COMMONWEALTH v. Janena E. WILLIAMS.
    17-P-1083
    Appeals Court of Massachusetts.
    Entered: October 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Janena E. Williams, was tried before a jury in the Dorchester Division of the Boston Municipal Court and was convicted of assault and battery by means of a dangerous weapon. On appeal from her conviction, the defendant raises several claims of error. We discern no cause to disturb the conviction and affirm the judgment, addressing the defendant's claims in turn.

1. Background. The defendant was charged with stabbing her neighbor. According to the Commonwealth, the defendant attacked the victim, whom she had accused of stealing her cellular telephone (cell phone). A prolonged confrontation ensued, in which the victim was stabbed. A knife was recovered, along with other items, when the police saw the defendant giving the items to a neighbor. The defense was that the defendant fell asleep and awoke to find the victim attempting to perform oral sex on her. She pushed him away and he fell on broken glass, and later dripped blood on the knife.

At trial the Commonwealth introduced, among other things, the results of deoxyribonucleic acid (DNA) tests on a pubic swab of the defendant and a red substance on the tip of the knife. The DNA test of the pubic swab was inconclusive. The serology expert found amylase on the swab, which indicated the possible presence of saliva, but the DNA expert could neither include nor exclude the victim as one of two minor contributors. The DNA test on the knife included the victim as the source of blood on the knife.

2. Closing argument. The defendant contends that the prosecutor improperly implied during closing argument that the DNA test for saliva on a pubic swab, which was inconclusive, disproved the defendant's self-defense claim.

"Remarks made during closing arguments are considered in the context of the entire argument." Commonwealth v. Martinez, 476 Mass. 186, 200 (2017), quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). The prosecutor said, "[t]he results of that test I would suggest are very important in helping you find the truth in this case." In context, it is clear that the prosecutor's closing argument referred to the conclusive DNA test for blood on the knife, not the inconclusive DNA test for the defendant's saliva on the pubic swab. The statement was a permissible response to defense counsel's closing argument that the possible presence of saliva on the pubic swab corroborated the defendant's claim of self-defense. After describing the care taken in collecting and testing the DNA, the prosecutor noted that both the defendant and victim had credibility issues, before calling the jury's attention to evidence tending to show that the victim's DNA was on the knife. The prosecutor acknowledged that some evidence was equivocal, but focused the jury's attention on the DNA on the knife. We can detect no error in this line of reasoning.

The defendant also submits that the prosecutor's argument that the defendant made up a story about the rape was fundamentally unfair because of the absence at trial of a possible first complaint witness, the neighbor to whom the knife was given. The witness was scheduled to appear for the Commonwealth, but failed to appear through no fault of either party; the prosecutor did not take unfair advantage of the witness's absence. In addition, both the prosecution and the defense referred (favorably) to what they expected the missing witness to say in their opening statements. The defendant was not "sandbagged"; both parties had relied on the anticipated testimony of the neighbor. Both sides were disadvantaged, and there was no "adverse inference ... warranted on the facts of the case" from the failure of the witness to appear. Commonwealth v. Saletino, 449 Mass. 657, 670 (2007).

3. Jury question instruction. In response to a jury request for clarification on "the three things [they] have to believe beyond a reasonable doubt," the judge reiterated the elements for assault and battery by means of a dangerous weapon. The defendant maintains that the judge should have reinstructed on self-defense, in part because the Commonwealth also has the burden of disproving self-defense, and because the jury's question about the "three elements" could have referred to three elements of self-defense, rather than the elements of the offense. We review the judge's response for an abuse of discretion. Commonwealth v. Waite, 422 Mass. 792, 807 n.11 (1996).

We find no error in the judge's clarification of the elements of the offense but not the elements of self-defense. Had the jury intended to request clarification about self-defense and not the elements of assault and battery by means of a dangerous weapon, they surely would have informed the judge of their continuing confusion after receiving a reinstruction on an issue about which they had not inquired. Although it may have been the better practice to remind the jury that the Commonwealth also carried the burden of proving the absence of self-defense, the judge was not required to repeat the self-defense instruction. Where a "jury's question [is] a limited one, ... 'the judge [is] not required to repeat the whole or any part of his original instructions to them.' " Commonwealth v. Barros, 425 Mass. 572, 577 (1997), quoting Commonwealth v. King, 366 Mass. 6, 11 (1974), cert. denied sub nom. McAlister v. Massachusetts, 419 U.S. 1115 (1975).

Even if there were some error, which there was not, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 544 (2008). The defendant's and the victim's stories were diametrically opposed, and the jury's verdict necessarily rejected the defendant's version of events.

4. Impeachment by evidence of prior conviction. The defendant contends that the judge erred by failing to give an agreed upon limiting instruction after the defendant testified on direct examination about a prior conviction. Defense counsel raised the prior conviction to blunt its impact on cross-examination. In response to a defense motion, the judge agreed to give the instruction, but inadvertently omitted it. Defense counsel did not object at the close of the instructions.

Although the prosecutor had filed a motion to enter evidence of the defendant's prior conviction and had offered to provide the certified conviction to the judge, the prosecutor never raised the issue of a prior conviction or entered the certified conviction in evidence. As a result, we are faced with the threshold question whether the defendant was impeached by the acknowledgment of a prior conviction, and therefore entitled to a limiting instruction. Because the defendant raised her prior conviction prophylactically in response to the prosecutor's stated intention to discuss the conviction on cross-examination, we conclude that her claim to a limiting instruction does not turn on whether the prosecution actually followed through with its stated plan to impeach. The defendant was entitled to a limiting instruction. See Commonwealth v. Hurley, 32 Mass. App. Ct. 620, 622 (1992) ("a defendant who anticipatorily introduces [her] own prior conviction[ ] on direct examination is entitled to a limiting instruction should [she] request it").

Because the omission of a limiting instruction was error and because the defendant did not timely object, we assess the error to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Johnson, 431 Mass. 535, 542 (2000). Here, there is little risk because the defendant's prior crime (theft of a purse) is dissimilar to the charged crime (assault and battery by means of a dangerous weapon). See Commonwealth v. Leftwich, 430 Mass. 865, 869 (2000), quoting Commonwealth v. Drumgold, 423 Mass. 230, 250 (1996) ("Generally, in order for the prejudicial effect to outweigh the probative value of prior conviction evidence, the 'prior conviction must be substantially similar to the charged offense' "). Moreover, the only reference to the defendant's prior conviction was made by the defendant and her attorney using terms intended to minimize the prior offense ("[Y]ou had a little run in with the law?"). This admission was not mentioned by the prosecutor on cross-examination or in closing argument. Consequently, the absence of a limiting instruction did not create a substantial risk of a miscarriage of justice.

Judgment affirmed.

      The defendant was the major contributor.

      Moreover, we see no substantial risk of a miscarriage of justice. See Commonwealth v. Brown, 479 Mass. 600, 609-610 (2018), citing Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). The trial judge twice instructed jurors that counsels' arguments were not evidence. Additionally, the Commonwealth's evidence was strong. See Commonwealth v. Russo, 49 Mass. App. Ct. 579, 584 (2000).

      The prosecutor had attempted to secure the testimony of the neighbor by issuing a subpoena, arranging and paying for the witness's cab, and verifying that the witness was in the court room when the trial began. The witness left court midtrial. The judge granted a recess to try to locate the witness, who did not return.


text:
    COMMONWEALTH v. Raynel BAYNE.
    17-P-1206
    Appeals Court of Massachusetts.
    Entered: October 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Raynel Bayne, appeals the denial of his first and second motions for new trial based upon the alleged ineffective assistance of trial counsel. A jury convicted the defendant of home invasion, armed robbery, and armed assault in a dwelling. At trial, the defendant claimed his entry was consensual and for the purpose of purchasing drugs from the victim, which led to the defendant's threatening the victim with a weapon when the illicit transaction went awry. The defendant claims trial counsel was ineffective for failing to seek to introduce certain telephone records that would have undermined the victim's testimony and version of events. We disagree and affirm the denial of both of the defendant's motions for new trial.

1. Background. The following facts emerge from the briefs and appellate record, and are undisputed. At trial, the victim testified that he returned home and found the defendant attempting to enter the apartment through the back porch and, when confronted, the defendant forced his way into the home, pulled out a firearm, and demanded money. The victim also stated he had not been in contact with the defendant since 1998. The defendant did not testify, but sought to prove through his statement to the police that was introduced in evidence that he had entered for the purpose of purchasing drugs and with the victim's consent, as he had been doing for months. In his second motion for new trial, the defendant argued that certain telephone records would have impeached the victim and supported his defense theory. The motion judge determined the phone records would be inadmissible hearsay because they were modified business records and pertained only to a collateral matter, possible impeachment of the victim-witness on the alleged contact between the defendant and the victim approximately five months before the date of the offenses.

2. Discussion. We review the denial of a motion for new trial to determine "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). An ineffective assistance of counsel claim requires a showing that counsel's performance (a) fell measurably below that which is expected of an ordinary fallible attorney and (b) deprived the defendant of an otherwise available and substantial defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

We begin by observing that the motion judge, applying the principle that the burden of proof is on the defendant, see Commonwealth v. Comita, 441 Mass. 86, 93 (2004), determined that the telephone records were not given to trial counsel; we discern no reason to disturb this finding. Both the defendant's initial counsel and his trial counsel have no recollection of having received the telephone records, and, although most of the attorneys' records from this period were destroyed, to the extent records from that time are still available, neither was able to locate the telephone records within them. The defendant and his then girl friend submitted affidavits stating the records were discussed with and provided to the defendant's attorneys. The motion "judge is entitled to discredit affidavits he or she does not find credible." Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). The defendant has not provided this court with any additional reason to conclude the records were in fact given to trial counsel. The motion judge's finding that trial counsel was not provided with the records was not clearly erroneous, and therefore failure to seek to admit the records does not amount to performance below that of the ordinary fallible attorney. See Saferian, 366 Mass. at 96.

To the extent the telephone records may have been provided to or known of by trial counsel, counsel was not ineffective for not attempting to have the records admitted because it was unlikely the trial judge would have admitted them. A "victim's testimony on matters not relevant to contested issues in the case cannot, as of right, be contradicted by extrinsic evidence." Commonwealth v. Sherry, 386 Mass. 682, 693 (1982). The defendant claims the telephone records show he contacted the victim several times over a two-month period six months before the home invasion and armed robbery, which contradicts the victim's claim that he had not seen or heard from the defendant since 1998. The telephone records would not contradict the victim's account of the home invasion or armed robbery, at best refuting an immaterial statement on the defendant and victim's relationship. Failure to impeach a witness generally "does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Bart B., 424 Mass. 911, 916 (1997).

Apart from impeachment purposes, the defendant argues the telephone records were relevant to the material issue whether or not he entered the apartment with the victim's consent. The defendant argues proving he and the victim had spoken within the last six months would provide some support for his claim that he entered the home with permission and to purchase drugs. A defendant is generally entitled to present exculpatory evidence, but when the evidence is remote or speculative and will divert the jury's attention to collateral matters it is well within a trial or motion judge's discretion to exclude such evidence. See Commonwealth v. Linton, 456 Mass. 534, 554 (2010). Here, testimony casting the victim as a drug dealer and explaining the telephone records, which were in a woman's name, would confuse the jury and divert its attention to collateral matters. Given the fact that the telephone records in their present form were inadmissible hearsay, or that the additional testimony required to authenticate and explain them would have caused confusion, we conclude the motion judge did not abuse his discretion in finding the records inadmissible and that counsel was not ineffective for not seeking to admit them.

Even were the records admissible, failure to seek to admit them hardly denied the defendant a substantial defense. The defendant argues the records would provide inferential support for his defense, which was that he entered the victim's apartment with permission and for the purpose of purchasing drugs, i.e., not by force. In closing, defense counsel made this argument based upon the defendant's postarrest statements to the police. The records do not pertain to the date of the home invasion and would not show whether or not the defendant called the victim on the day in question. In light of the substantial evidence presented against the defendant, the jury would have had to brave a vast inferential leap to find these alleged contacts overcame the evidence against the defendant and proved his version of events.

Orders denying motions for new trial affirmed.

      The defendant initially filed a pro se motion for new trial, which was denied. The defendant appealed the denial, but then obtained counsel and leave from this court to file a second new trial motion in the Superior Court. The second motion was substantially the same as the first and was also denied. The defendant appealed and the earlier, stayed appeal was consolidated with this appeal.

      This court affirmed the defendant's convictions on direct appeal in a memorandum and order pursuant to our rule 1:28. Commonwealth v. Bayne, 83 Mass. App. Ct. 1119 (2013).

      The telephone records contain several handwritten markings attempting to indicate calls made by the defendant to the victim. Therefore, the records as presented would not fall under the "Business Records" exception to the rule against hearsay because they were not made in the "regular course of business." Mass. G. Evid. § 803(6)(A) (2018). Nevertheless, because we conclude the motion judge correctly determined the matter was collateral, we assume counsel could have obtained a new copy of the records and used testimony to authenticate and explain them.

      The telephone records are in the name of a woman and would have required testimony from that woman to show that the defendant sometimes used that phone to call the victim. In fact, the motion judge also found the defendant failed to establish that the phone number highlighted as his in the records was used by the defendant, and we discern no reason to upset that finding.


text:
    COMMONWEALTH v. Mark A. STACY.
    17-P-1028
    Appeals Court of Massachusetts.
    Entered: October 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Mark A. Stacy, appeals from an order denying his motion to withdraw his guilty plea and for a new trial. Because the motion judge did not abuse his discretion and the defendant has not established constitutional error, we affirm.

Background. On March 23, 2015, the defendant pleaded guilty in the District Court to a single-count complaint charging breaking and entering a building in the daytime with the intent to commit a felony therein, G. L. c. 266, § 18. The judge sentenced him to a two-year term of probation. In October, 2015, a judge found the defendant in violation of the terms of probation and committed him to the house of correction for six months.

On February 6, 2017, after having been discharged from his sentence, the defendant filed his motion to withdraw his guilty plea and for new trial. In his motion and a supplemental motion filed shortly thereafter, he claimed that the judge did not inform him of the maximum sentence, that a sentence of probation was unjust given his unsuitability for probation, that counsel was ineffective, and that the factual basis for the plea was inadequate. The same judge who had accepted the guilty plea denied the motion on March 21, 2017.

On appeal, the defendant maintains that his plea was involuntary because he was not told the maximum sentence, and that a sentence of probation was unfair to him. He no longer argues ineffective assistance. His claim of evidentiary insufficiency is now twofold: he argues that his plea was unintelligent because he was not informed that "fingerprints at a crime scene, alone, are insufficient for a conviction," and, for the same reason, that the complaint should have been dismissed for lack of probable cause.

Discussion. "The defendant's postconviction motion to withdraw a guilty plea is treated as a motion for a new trial, is addressed to the sound discretion of the trial judge, and, absent constitutional error, will not be reversed unless it appears that justice may not have been done" (citation omitted). Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 581 (2001).

The defendant is correct, and the Commonwealth concedes, that the plea colloquy did not strictly adhere to Mass. R. Crim. P. 12 (c) (3) (B), as appearing in 442 Mass. 1514 (2004), because the judge did not "inform the defendant on the record, in open court ... where appropriate, of the maximum possible sentence on the charge." When a defendant is sentenced to a term of straight probation, the judge must inform the defendant of the maximum possible sentence he might receive if he violates probation. See Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 65-67 & n.10 (2008) ; Rodriguez, 52 Mass. App. Ct. at 579-580 (advising defendant of maximum sentence "appropriate" when sentencing defendant to straight probation on guilty plea).

This error does not automatically require a new trial. See Murphy, 73 Mass. App. Ct. at 66-67. "We will not assume that the defendant's plea was involuntary and unknowing and say as a matter of law that justice was not done simply because the record reflects noncompliance with rule 12." Rodriguez, 52 Mass. App. Ct. at 580. Rather, "[t]he defendant has the burden of showing any special circumstances relating to his plea that demonstrate that denial of his motion to withdraw his plea would work an injustice." Id. at 581.

The defendant made no such showing. He alleged only that he would not have pleaded guilty if he had been told the possible sentence he would face if he violated probation. The judge was not required to credit this allegation. The defendant stated in his affidavit that he accepted the plea offer because his attorney advised him that he would serve no jail time and would not be put on supervised probation; the sentence he received satisfied these conditions. Furthermore, the defendant had a lengthy criminal record, including two recent prior convictions for breaking and entering in the daytime with the intent to commit a felony: one in Brockton District Court in 2013, for which he received a five-year term of probation, and one in Plymouth District Court in 2012, for which he received the maximum house of correction term of two years. The defendant was familiar enough with the criminal justice system, the charge of breaking and entering, and its consequences in District Court that he surely understood the possible results of his probationary sentence. See Murphy, 73 Mass. App. Ct. at 68.

The remaining claims do not require extended discussion. The defendant's contention that his "incredible plea deal" was an abuse of discretion because the judge should have known that he was not amenable to rehabilitation provides no basis for withdrawing the plea. Nor was the judge required to inform the defendant of the nuances of the law concerning fingerprint evidence. A defendant's plea is intelligent when made with an understanding of the elements of the crime charged and the consequences of the plea. Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 638 (2007). "A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action." Brady v. United States, 397 U.S. 742, 757 (1970).

Finally, even if the fingerprint evidence would not have been sufficient to convict the defendant of the crime beyond a reasonable doubt after a jury trial, it was sufficient to establish probable cause and survive a motion to dismiss. See Commonwealth v. French, 476 Mass. 1023, 1024-1025 (2017) (fingerprint evidence permitted reasonable inference of guilt, but did not prove guilt beyond a reasonable doubt); Commonwealth v. Morris, 422 Mass. 254, 259 (1996) (same).

Order denying motion to withdraw guilty plea and for new trial affirmed.

      The quoted version of the rule was in effect at the time of the defendant's plea. The rule was revised, effective May 11, 2015, to delete the words "where appropriate." See Mass. R. Crim. P. 12 (c) (3) (A) (ii), as appearing in 470 Mass. 1503 (2015).

      Although the crime is a felony punishable by a maximum term of ten years in State prison, the District Court has concurrent jurisdiction with the Superior Court, see G. L. c. 218, § 26, with a maximum term of "imprisonment in jail for not more than two years." G. L. c. 266, § 18.


text:
    COMMONWEALTH v. John T. BANGERT.
    17-P-1406
    Appeals Court of Massachusetts.
    Entered: October 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, John T. Bangert, was convicted of rape and incest. Thereafter he filed a motion for new trial claiming that he received constitutionally ineffective assistance of counsel. The motion was denied without a hearing. This consolidated appeal from his convictions and from the denial of his motion for new trial followed. We affirm.

Background. The defendant's convictions stem from the digital penetration of his incapacitated mother who was a resident in a nursing home. The defense was that the nurse who witnessed the assault had fabricated the allegations, or that she was honestly mistaken in what she thought she saw.

Discussion. a. Denial of evidentiary hearing on new trial motion. The defendant contends that it was error to deny the motion without an evidentiary hearing. We disagree. "The decision to hold an evidentiary hearing on a motion for a new trial is 'left largely to the sound discretion of the judge.' " Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015), quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). "Indeed, [ Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001),] encourages the denial of a motion for a new trial on the papers, without hearing, where no substantial issue is raised." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). The defendant's motion was not accompanied by an affidavit from trial counsel nor did he describe his efforts to secure one. He also failed to detail the evidence to be adduced at a hearing that was not otherwise set forth in his motion and affidavit. This was inadequate to raise a substantial issue necessitating an evidentiary hearing. See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 638-639 (2001).

b. Ineffective assistance of counsel. The defendant claims that his counsel was ineffective for (1) not requesting an instruction on justification, (2) presenting a defense of denial of the touching, and (3) not impeaching a witness on a discrete issue. The standard that the defendant must meet is a familiar one. The question is "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Mere speculation, without more, is insufficient to establish ineffective assistance of counsel. Commonwealth v. Duran, 435 Mass. 97, 103 (2001). We accord substantial deference to the motion judge who was also the trial judge. Commonwealth v. Delong, 60 Mass. App. Ct. 122, 127 (2003).

The common-law defense of necessity is only available where the danger was clear and imminent, the defendant's actions could be reasonably expected to abate the danger, there was no legal alternative to abate the danger, and the Legislature has not clearly precluded the defendant's choice. Commonwealth v. Kendall, 451 Mass. 10, 13-14 (2008), citing Commonwealth v. Hood, 389 Mass. 581, 591 (1983). A trial judge should only provide a necessity instruction where the defendant has presented evidence on each condition for the defense and there is at least a reasonable doubt whether the crime was justified by necessity. Kendall, supra at 15. Here, the defense lacked its foundation. Viewing the evidence in the light most favorable to the defendant, no view of the evidence supported such a defense. As such, trial counsel's decision not to request a necessity instruction was reasonable.

Similarly, it was not an unreasonable trial tactic to forgo a futile necessity defense. Here, defense counsel acknowledged at trial that she was pursuing an "all or nothing" strategy. She discarded a necessity defense in favor of an outright denial defense. Consistent with this strategy and after a detailed colloquy with the judge, the defendant elected not to have the jury instructed on a lesser included offense of assault and battery. "Simply because the strategy was unsuccessful does not mean it was 'manifestly unreasonable.' " Commonwealth v. Choeurn, 446 Mass. 510, 521 (2006), quoting Commonwealth v. Conceicao, 388 Mass. 255, 265 (1983).

The defendant's final claim is that trial counsel was ineffective for failing to impeach a witness's testimony on a discrete issue with a report that she wrote the night of the assault. Generally, "failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance" of counsel. Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), quoting Commonwealth v. Bart B., 424 Mass. 911, 916 (1999). As the judge noted, the witness's credibility was challenged "on a number of other grounds." Defense counsel also elicited evidence regarding the tense relationship between the witness and the victim's family through cross-examination as well as the failure of the witness to contact the police as a mandated reporter. The motion was properly denied.

Judgments affirmed.

Order denying motion for new trial affirmed.

      On appeal the defendant only raises issues pertaining to the denial of his motion for new trial.


text:
    Roderick MCLAREN & another v. Sofia CESPEDES.
    17-P-1468
    Appeals Court of Massachusetts.
    Entered: October 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Kenyia McLaren.

   Sofia Cespedes (tenant) appeals from a summary process judgment that awarded possession of the apartment in which she lived to plaintiffs Roderick and Kenyia McLaren (landlords). We affirm.

The tenant's lease permitted only specified family members -- the tenant and her three younger children -- to live in the apartment. Neither Sofia White, the tenant's oldest daughter, nor Tom Washington, the father of the tenant's younger children, was permitted to live in the apartment under the lease. The tenant does not contest the terms of the lease.

What was contested at trial was whether unauthorized persons were living in the apartment in violation of the lease. Roderick McLaren testified he saw that Sofia White's boy friend had parked his car at the apartment essentially "every day" between early January and May, 2017. McLaren also observed that Tom Washington was present at the apartment perhaps as many as 100 times over the course of two to three years and that he had seen Tom Washington leaving the apartment several times in the two months before trial, on one occasion after dark "looking at the back door for a pillow or something of the sort" and on another occasion "probably around maybe seven in the morning or so." Although the tenant denied that either Sofia White or Tom Washington lived at the apartment, she admitted that Sofia White "sometimes ... stays with" the tenant at the apartment "at least three times, some weeks four times, other weeks depending on how she's needed with my sister." She also admitted that Tom Washington has no regular residence, that he stayed with her between two and four times per week when he was in Massachusetts, and that Tom Washington stayed with her as recently as two nights before trial. The tenant also admitted that both Sofia White and Tom Washington keep clothing at the apartment.

As an appellate court we do not find facts. We review the trial judge's decision to determine if the factual findings were based on the evidence, and whether the law was properly applied. We are satisfied that, on this testimony, the judge's finding that both Sofia White and Tom Washington lived in the apartment in violation of tenant's lease was supported. "It was for the judge to weigh the evidence and assess credibility." Goddard v. Goucher, 89 Mass. App. Ct. 41, 50 (2016).

We do not address the tenant's argument that the landlords breached par. 13 of the lease (and violated applicable Federal law) when they allegedly failed to give a copy of the thirty-day notice to quit to the Boston Housing Authority (BHA). For the first time on appeal the tenant maintains that service of a copy of the notice on the BHA is required by Federal law, and the failure to strictly follow the lease provisions regarding notice to the BHA renders the eviction invalid. However, the trial judge found that the tenant admitted at trial the "receipt of the notice and [she] does not challenge the sufficiency thereof." See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue not raised or argued below may not be argued for the first time on appeal). The tenant correctly notes that the Housing Court may issue a judgment of possession only upon a showing by the landlord that the tenancy was terminated "by notice to quit or otherwise." See G. L. c. 239, § 1 ; Ryan v. Sylvester, 358 Mass. 18, 19 (1970). The landlords carried their burden when they introduced, without objection, the notice to quit, all other objections to the sufficiency of the notice having been waived. See Carey, supra; Pierce v. DeQuattro, 299 Mass. 533, 534-535 (1938).

Judgment affirmed.

      The tenant informed us, pending appeal, that she vacated the apartment on or about March 1, 2018. The landlords have not appeared. While the appeal may in some respects be moot, the tenant has requested a ruling because of the collateral consequences of the judgment.

      The lease specifies in par. 13(b) that the lease may be terminated "for 'other good cause' upon thirty (30) days written notice by the Owner to the Tenant (with a copy to the BHA)." The lease goes on to provide that the tenant may be evicted "only by instituting a court action. The Owner must notify the BHA in writing of the commencement of procedures for termination of tenancy, at the same time that the Owner gives notice to the Tenant under State or local law. The notice to the BHA may be given by furnishing the BHA a copy of the notice to the Tenant.... To terminate this Lease, Owner shall give Tenant 14 days' notice in the case of nonpayment of rent and 30 days' notice in all other cases." Lease par. 13(d)-(e).

      For this reason we also do not reach the tenant's related argument that the Federal law preempts any lesser notice requirement imposed by G. L. c. 239, § 1. The tenant's argument touches on the applicability of Federal law, an argument that was waived. On this record, it has not been made to appear that the tenant's preemption argument implicates the subject matter jurisdiction of the court.


text:
    ADOPTION OF HIROSHI.
    17-P-1612
    Appeals Court of Massachusetts.
    Entered: October 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals from a decree by a judge of the Juvenile Court terminating her parental rights to her son, Hiroshi, and declining to order posttermination and postadoption visitation. She argues that several of the judge's findings of fact are clearly erroneous and that the judge failed to adequately consider positive evidence of her ability to parent Hiroshi. She also contends that the judge abused his discretion in rejecting her proposed placement plan for Hiroshi. We affirm.

Background. We summarize the relevant facts as set forth in the judge's decision and as supported by the evidence. Hiroshi was born in July, 2013. At that time, the mother and the father were in a volatile relationship. The Department of Children and Families (department) became involved with Hiroshi in April, 2014, as a result of a G. L. c. 119, § 51A, report alleging that the mother and the father were arguing over the presence of a friend in the house who was using heroin. The allegations were supported, after which Hiroshi was removed from the home and placed in foster care. The department filed a care and protection petition and was awarded temporary custody.

The department arranged for weekly visits between the mother and Hiroshi beginning in June, 2014. Initially, the visits went well and the mother brought appropriate toys, snacks, and clothes for Hiroshi and, as a result, visits were increased. However, within one year's time, the mother's visits became increasingly less successful, and she missed eight visits with Hiroshi between July, 2015, and January, 2016. She had only one visit with Hiroshi between March, 2016, and October, 2016. During this time, the mother's relationship with the department deteriorated. For example, after one supervised visit at the mother's apartment in September, 2015, during which the social worker became alarmed due to the odor of gas (it was discovered that the mother had turned on the stove without igniting it), the mother claimed nothing was wrong and then threatened the social worker.

At the same time, the mother's mental health declined, and she was hospitalized involuntarily and voluntarily on three occasions in early 2016, including once for attempted suicide. The mother was diagnosed with schizoaffective disorder bipolar type, depression, posttraumatic stress disorder, and stable mood. The mother also had difficulty maintaining stable housing after February, 2016, and was essentially homeless at the time of trial.

The trial was scheduled to commence on August 10, 2016, and was continued to August 17, 2016. However, the mother did not appear. She claimed, through counsel, that she was ill as a result of having suffered a concussion. The mother was present for the next scheduled trial date, October 17, 2016. She also was present on the second day of trial, October 18, 2016. The case was continued to October 25, 2016, at which time the mother was scheduled to resume her direct testimony and be cross-examined, but she did not appear. After discussion with the mother's attorney, the judge proceeded with the trial in the mother's absence. The judge ruled that if the mother wanted to complete her testimony, she could file a motion to reopen the evidence on or before November 25, 2016, but she did not file such a motion or seek to be heard further.

Discussion. 1. Alleged erroneous findings. The mother challenges four of the judge's findings of fact, numbers 26, 98, 109, and 110, as clearly erroneous. Our review of the record reveals that three of those challenged findings, numbers 98, 109, and 110, are supported by the evidence. The remaining challenged fact, number 26, contained only immaterial errors not central to the ultimate finding of unfitness.

In finding number 26, the judge addressed the mother's relationship with her boy friend, Brian. Although this finding contains minor discrepancies about the relationship and the circumstances surrounding the mother's departure from Brian's home, these errors were not central to the ultimate issue of unfitness and were immaterial. More importantly, even without this fact, there was ample support for the ultimate finding of unfitness. Care & Protection of Olga, 57 Mass. App. Ct. 821, 824-825 (2003).

In finding number 98, the judge stated that the mother failed to provide adequate written verification for medical treatment, which she alleged prevented her from appearing for trial in August. The mother's challenge to this finding fails. First, the judge did not find that the mother had submitted no documentation of the injuries that led to her concussion; the mother is correct that she provided a Signature Healthcare report. However, the judge determined that the report was not sufficient to excuse the mother's absence from court. The judge's conclusion in this regard is supported by the record.

Findings numbers 109 and 110 concern the mother's progress in completing tasks on her service plan. The judge found that the mother had "not made any progress towards ... any of her tasks on her service plan," and that "in the 8-10 months preceding this trial Mother made no progress towards any of the tasks on Mother's service plan." Contrary to the mother's claim, both findings are supported by the record. The department social worker testified that the mother failed to meet with the department monthly after late 2015. The mother missed a significant number of visits with Hiroshi. She had not seen a psychiatrist for some time prior to the trial and was not consistent in meeting with her counsellor. The judge was entitled to credit this testimony. See Adoption of Rhona, 63 Mass. App. Ct. 117, 125 (2005).

The mother correctly contends that she made partial progress toward some tasks, for example, those requiring her to sign releases of information to allow the department to have open discussions with her medical professionals and to maintain stable housing. However, it was within the judge's discretion to determine that the mother's failure to complete some of the tasks amounted to insufficient overall compliance with the service plan. Where a judge makes one of several possible choices of what facts are supported by the evidence, that choice is not clearly erroneous. Guardianship of Jackson, 61 Mass. App. Ct. 768, 774 (2004).

2. Ultimate finding of unfitness. The mother argues that if the clearly erroneous findings are not considered, the evidence merely shows homelessness and mental illness, and not any "grievous shortcomings or handicaps ... which place the child at serious hazard." Petition of Boston Children's Serv. Ass'n to Dispense with Consent to Adoption, 20 Mass. App. Ct. 566, 567 (1985). We disagree.

The judge found that the combination of the mother's "mental health issues, her instability and lack of [a] stable home for herself and the subject child; Mother's failure to consistently engage in services, consistently visit with the subject child, and consistently cooperate with the [department]" together constituted her unfitness. While homelessness and mental illness alone do not constitute unfitness, see Adoption of Quentin, 424 Mass. 882, 888-889 (1997) ; Adoption of Virgil, 93 Mass. App. Ct. 298, 303 (2018), the judge appropriately considered these factors in light of his other findings, namely, the mother's failure to obtain regular, consistent mental health treatment, complete certain service tasks, and attend visits with Hiroshi. The rationale for the judge's ultimate finding, therefore, was not based solely on the mother's struggle to obtain stable housing or on her mental illness, but on how these factors impacted her ability to care for Hiroshi and "on a constellation of [other] factors that pointed to termination as being in the best interests of the child." Adoption of Greta, 431 Mass. 577, 587-588 (2000).

More fundamentally, the mother's mental health issues were relevant to the judge's finding of unfitness because, as the judge stated, they "have impacted her parenting ability" and prevented "her from providing a stable home environment for [Hiroshi]." See Adoption of Rhona, 63 Mass. App. Ct. at 125. In addition, as the judge further observed, "[the mother's] mental health issues continued to appear to grow worse."

Furthermore, contrary to the mother's argument, the judge did not ignore evidence of her positive gains, as evidenced by the judge crediting the mother's success in addressing her substance abuse issues. The judge also acknowledged that the mother ended the volatile relationship with the father. These positive gains, however, did not outweigh the mother's shortcomings at the time of the trial. See Adoption of Paula, 420 Mass. 716, 728-730 (1995).

3. Posttermination and postadoption visitation. The judge concluded that posttermination and postadoption visitation with the mother was not in Hiroshi's best interests. The mother claims that the judge abused his discretion in this regard when he ordered posttermination and postadoption visitation for the father pursuant to the terms of his agreement with the department, see note 2, supra, and approved the department's adoption plan, which included visits with the maternal grandmother and current foster family.

Once it is established that a parent is unfit, the decision whether to grant posttermination or postadoption visitation is left to the sound discretion of the trial judge. Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). The decision must be grounded in the best interests of the child. Adoption of Terrance, 57 Mass. App. Ct. 832, 839 (2003). An order for posttermination or postadoption visitation is not warranted in the absence of a finding that a significant bond exists between the child and a biological parent and that continued contact is currently in the best interests of the child. Adoption of Vito, 431 Mass. 550, 563-564 (2000).

Here, the judge determined that posttermination and postadoption visits with the mother would not be in Hiroshi's best interests. Hiroshi has not lived with the mother since he was eight months old. Although many of the visits between the mother and Hiroshi were successful in the beginning, later, as the judge observed, "[the mother] only had two visits in the nine (9) months prior to trial," and there was "no evidence of any bond between Mother and Hiroshi." The mother did not have "significant or consistent contact with [Hiroshi] since 2015." These findings support the judge's determination that there was no substantial bond between the mother and Hiroshi. In contrast, Hiroshi had developed a bond with the maternal grandmother and with his foster family. Given these circumstances, we discern no abuse of discretion in the judge's visitation order. See Adoption of Betsy, 69 Mass. App. Ct. 907, 909 (2007).

4. The mother's proposed plan. Finally, the mother claims that it was error for the judge to reject her proposed plan for Hiroshi to be placed in a guardianship with the maternal grandmother. A judge's ruling on competing placement plans is entitled to substantial deference and will not be reversed in the absence of an abuse of discretion. Adoption of Odetta, 87 Mass. App. Ct. 576, 577 (2015). When alternative plans are presented, the judge must choose the plan that is in the child's best interests after an "even handed" assessment of all the facts surrounding both plans. Id.

Here, the judge's findings demonstrate that he thoroughly considered the mother's proposed plan to place Hiroshi with the maternal grandmother and the department's plan to recruit a preadoptive family. At the time of trial, the maternal grandmother was seventy-one years old and lived in a one-bedroom apartment, although she had been on the waiting list for a two-bedroom apartment for two years prior to trial. The mother's older son, Kevin, lived with the maternal grandmother and slept on her couch. There was evidence that Kevin had a history of mental health issues. The maternal grandmother testified that Kevin planned to move in with a friend, but she was unable to provide a plan for him if that arrangement fell through. In sum, the maternal grandmother did not have a suitable home for Hiroshi. In addition, the judge questioned the maternal grandmother's ability to comply with his visitation order and restrict the mother's access to Hiroshi. Given Hiroshi's age (three years old at the time of trial), the judge found that the department's plan to seek a permanent preadoptive home that would permit ongoing contact with the maternal grandmother best met his long-term needs. The judge's decision reflects the requisite careful consideration of the facts surrounding each plan and Hiroshi's best interests, and accordingly, we discern no error. See Adoption of Lars, 46 Mass. App. Ct. 30, 31-33 (1998).

Decree affirmed.

      The father stipulated to the termination of his parental rights and waived his rights to appeal. He entered into an agreement with the Department of Children and Families for posttermination and postadoption visitation with Hiroshi.

      The mother reported that the father abused her physically and emotionally. At different points in their relationship, both the mother and the father were arrested for domestic violence. The mother ended her relationship with the father in October, 2014.

      The mother had a prior history with the department involving her first child, Kevin (a pseudonym). Kevin was born when the mother was twenty-five years old; his father is not the father of Hiroshi. As a result of numerous incidents, including physical abuse of Kevin by the mother's boy friend, the department obtained custody of Kevin.

      A pseudonym.

      We note that the judge's order includes posttermination and postadoption visitation only with the father, consistent with the terms of his agreement with the department, but does not contain any order for visitation with the maternal grandmother or the current foster family. The judge found that the department is "looking for a family who is open to [Hiroshi] maintaining a relationship with maternal grandmother, [and] his foster family," consistent with the department social worker's testimony. The department's plan does not reflect this intention, however.


text:
    Roland BATHORY v. Matthew ABEGUNDE.
    17-P-1327
    Appeals Court of Massachusetts.
    Entered: October 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Matthew Abegunde appeals from an amended summary process judgment awarding possession, back rent, and costs to his landlord, Roland Bathory. We affirm.

Abegunde contends that the trial judge abused his discretion by denying his motion for appointment of counsel or, in the alternative, for a continuance of the trial. See E.H. v. S.H., 59 Mass. App. Ct. 593, 597 (2003). Abegunde's motion was neither in writing nor served upon Bathory's attorney before trial. See Rule 6 of the Uniform Summary Process Rules (1993). Instead, the motion was made on the day of trial, long after Abegunde had received notice that Bathory was terminating his tenancy. Abegunde did not represent that he had attempted to retain counsel prior to trial, and he made no attempt -- either below or here -- to explain why he had not yet retained counsel. Notwithstanding, the trial judge initially agreed to continue trial upon Abegunde's payment, in escrow, of the unpaid rent then claimed due. When Abegunde indicated that he could remit only a portion of that amount, the trial judge denied Abegunde's motion.

The summary process procedure is intended to "secure the just, speedy, and inexpensive determination of every summary process action," Rule 1 of the Uniform Summary Process Rules (1980), because " 'time is of the essence' in eviction cases." Hodge v. Klug, 33 Mass. App. Ct. 746, 755 (1992). We see no error in the judge's apparent conclusion that in these circumstances, continuing the trial to allow Abegunde additional time to retain an attorney would frustrate the "design" of the summary process rules, namely, "to bring the case to trial within a prescribed period." Id. at 756.

Amended judgment affirmed.

      Because the amended judgment entered nunc pro tunc to January 6, 2017, the date of the original judgment, we deem Abegunde's January 13, 2017, notice of appeal to be both timely and to reference the amended judgment.


text:
    Shaun MILLER & another v. DJL DEVELOPMENT NARDELL, LLC.
    17-P-1110
    Appeals Court of Massachusetts.
    Entered: October 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Beth Miller.

   Shaun Miller and Beth Miller (collectively, Millers) brought suit in Superior Court against DJL Development Nardell, LLC (DJL), raising claims for damages relating to defects in the newly built house they purchased from DJL. A limited warranty appended to the purchase and sale agreement (agreement) contained an arbitration clause, pursuant to which the parties stipulated to binding arbitration. Once the arbitration proceedings concluded, the parties returned to Superior Court, the Millers seeking to confirm the arbitrator's final award and DJL seeking to vacate it. A Superior Court judge allowed the Millers' motion to confirm the award, and DJL appeals.

DJL's sole argument on appeal is that the award should be vacated because the arbitrator exceeded the scope of her authority. See G. L. c. 251, § 12 (a ) (3). More specifically, DJL appears to be arguing that, because the arbitration clause is contained in the limited warranty, the arbitrator exceeded her authority by finding that DJL breached other parts of the agreement and awarding damages to the Millers accordingly. We disagree.

The arbitration clause, while appearing in the limited warranty, applies broadly to "future disputes which may arise between [the parties] relative to their [a]greement." "[W]here [a] contract contains an arbitration clause, there is a presumption of arbitrability," which is overcome only if "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. ... Such a presumption is particularly applicable where the clause is ... broad." Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666 (2002), quoting Local No. 1710, Int'l Ass'n of Fire Fighters v. Chicopee, 430 Mass, 417, 421 (1999). See Barletta v. French, 34 Mass. App. Ct. 87, 93 (1993), quoting Danvers v. Wexler Constr. Co., 12 Mass. App. Ct. 160, 163 (1981) ("a broad agreement to arbitrate 'should be construed as broadly as it was intended' "). Here, the arbitration clause by its terms encompasses disputes concerning the parties' "[a]greement," not just disputes concerning the limited warranty. DJL fails to explain why the presumption of arbitrability does not apply in this situation. See Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 795-796 (2016) (assessment of damages "[fell] squarely within the broad arbitration clause," which provided for arbitration of "any dispute concerning any aspect of this Agreement").

Moreover, even assuming that the arbitration clause covers only claims under the limited warranty, DJL still would not be entitled to vacatur of the award because DJL agreed -- indeed, insisted -- that all of the Millers' claims, including potential claims, would be decided by the arbitrator. DJL made its intention known through statements it made during the arbitration proceedings. In a motion to strike the Millers' statement of claim, DJL argued that a clearer statement was required so that DJL would "not be subject to relitigating the same matters in a Superior Court action, should the [Millers] not like the results of arbitration." After a hearing on the motion, the arbitrator issued a procedural order, which provided that "[b]y agreement of the parties, all claims currently pending in Middlesex Superior Court ... shall be joined with the [s]tatement of [c]laim." Not satisfied that this order covered potential claims, DJL filed a motion to clarify, in which counsel for DJL set forth his understanding that "all claims, in general, that could have been brought by the [Millers], whether or not now pending in the Middlesex Superior Court" would be decided by the arbitrator, "thereby effectively leaving nothing left to try in Middlesex Superior Court upon the conclusion of the arbitration proceedings." At the request of the arbitrator, counsel for the Millers then confirmed by electronic mail message that "following the arbitration proceeding there will be nothing more to litigate in the [S]uperior [C]ourt action."

This procedural history makes clear that DJL agreed to arbitrate all claims that the Millers asserted or could have asserted in Superior Court, regardless of whether such claims fell within the scope of the arbitration clause. As the arbitrator stated in the final award, the parties' agreement to arbitrate "was further amended" during the course of the proceedings, as "memorialized" in the procedural order. Having submitted the entire dispute to the arbitrator for resolution, DJL cannot now complain that she exceeded her authority by deciding claims arising outside of the limited warranty. See American Fed'n of State, County, & Mun. Employees, Council 93, AFL-CIO v. School Dep't of Burlington, 462 Mass. 1009, 1010 (2012) ("Where there was no objection, we think the arbitrator did nothing wrong by deciding the issue"); Barletta, 34 Mass. App. Ct. at 95, quoting Grobet File Co. of Am., Inc. v. RTC Sys., Inc., 26 Mass. App. Ct. 132, 135 (1988) ("Absent clear evidence that the arbitrators, over the objections of the ... party [seeking to vacate the award], decided issues outside the 'arena of arbitration[,]' ... the award of the arbitrators is binding upon the parties").

Judgment affirmed.

      We read much of DJL's brief to be arguing that the arbitrator misconstrued the agreement by concluding that DJL's original contractual obligations survived delivery of the deed and the limited warranty was simply an "additional protection negotiated between the parties." Despite DJL's insistence to the contrary, this argument amounts to an assertion of mere legal error, which is not a ground for vacating the award. See Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 790 (2016). See also id. at 796 ("Interpreting the agreement is the role of the arbitrator, not this court").


text:
    TOWN OF HINGHAM v. Wanpen FLORENTINE & others (and a companion case ).
    17-P-1407
    Appeals Court of Massachusetts.
    Entered: October 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and as trustee of the Twenty Three Ridgewood Realty Trust.

      Laciga Rachaisi; Joseph Collins, as trustee of the Seally Investment Trust; and Penny Collins Siridee, as trustee of the Twenty Three Ridgewood Crossing Lending Trust.

      Commonwealth vs. Wanpen Florentine, also known as Laciga Rachaisi, and others.

   These two consolidated cases involve but one controversy concerning the defendant Wanpen Florentine, who, in 2008, bought a newly built condominium unit in the town of Hingham under the auspices of the Commonwealth's Local Initiative Program (LIP). The LIP, a State program administered by the Department of Housing and Community Development (DHCD), fosters the creation of affordable housing in local communities. At the closing for her purchase of unit 23 of the Ridgeway Crossing Condominium, the defendant executed, among other documents, an affordable housing deed rider restricting her rights as owner to let, encumber, or sell the unit, and granting a beneficial interest to the DHCD and the town, including enforcement rights vis-à-vis the deed rider restrictions.

As it happened here, indisputably, without prior written consent of DHCD and the town, the defendant pledged unit 23 to obtain mortgage loans; transferred legal title to a real estate trust, for which she was a named trustee; and let certain space in unit 23 to a third party. Subsequently, by separate actions, commenced in the Superior Court, the town and the Commonwealth sued the defendant, seeking remedial relief, including but not limited to monetary penalties, for the latter's breach of the affordable housing deed rider restrictions. The court consolidated these actions. After a hearing, a judge allowed the summary judgment motions filed by the town and the Commonwealth, based on uncontroverted documentary evidence establishing the defendant's violations of the deed rider restrictions.

The defendant appeals from the final judgments that entered in favor of both governmental plaintiffs. Substantially for the reasons stated by the motion judge in his decision granting summary judgment to the town and the Commonwealth, and for the reasons outlined by the plaintiffs in their respective briefs filed in this appeal, we uphold the outcome in the Superior Court in all respects.

Just as the defendant's oppositions in the trial court to the plaintiffs' summary judgment motions failed to engage the legal issues raised, her appellate submissions are not responsive at all to the contested summary judgment rulings. We discern no reasonable basis, on appeal, to disturb the same.

Judgments affirmed.

      Given our decision, we need not address the town's separately filed motion for dismissal of this appeal on the ground of standing tied to the defendant's bankruptcy proceeding.


text:
    COMMONWEALTH v. Juan J. RIZ.
    18-P-88
    Appeals Court of Massachusetts.
    Entered: October 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a probation surrender hearing, the defendant was found in violation of the conditions of his probation by committing new crimes as charged and failing to make restitution payments. As a result, his probation previously imposed on March 30, 2017, was revoked and he was sentenced. On appeal, he claims that he was deprived of his due process right to receive adequate notice of the conditions of his probation. We affirm.

Notice of probation conditions. The defendant claims that he did not receive adequate fair notice of the conditions of his probation because he did not sign the probation contract that set forth those conditions. He claims further that there is no corroborated reliable evidence that he was notified in Spanish of the conditions of his probation. We disagree.

Due process "requires that a defendant sentenced to probation receive fair warning of conduct that may result in the revocation of probation." Commonwealth v. Ruiz, 453 Mass. 474, 479 (2009). "A judge's inquiry whether a defendant has received the required 'fair notice' is not 'confined to the four corners of the probation order'; rather, the order's meaning may be illuminated by the judge's statements and other events that are part of the notification process." Id. at 479-480, quoting United States v. Gallo, 20 F.3d 7, 12, 13 (1st Cir. 1994). "[B]efore a defendant's term of probation can be modified or revoked on the basis that he violated a probationary condition, he must have adequate notice that the condition of probation is in effect." Commonwealth v. Bunting, 458 Mass. 569, 573 (2010).

Here, on September 14, 2017, the defendant's final probation surrender hearing was held and included testimony from the defendant and probation officer Etienne. The defendant's probation was revoked following the judge's finding by "a preponderance of the credible evidence" that the defendant had violated probation. At the hearing, probation officer Etienne testified that the defendant was placed on probation on March 30, 2017, but that she did not meet with the defendant on that date. Etienne testified that it was standard practice for the duty probation officer to review the conditions of probation with the defendant on the date the plea occurs and then have the defendant sign the contract. On May 9, 2017, she was assigned to be the defendant's probation officer and met with the defendant that day and explained to him orally in Spanish each condition of his probation and that he appeared to understand. Etienne testified she forgot to have him sign the probation contract and acknowledged there was some confusion on who was assigned to the case previously.

Against that backdrop, the defendant claims that Etienne's sworn testimony that she went over each condition of his probation orally in Spanish with him and that she forgot to have him sign the probation contract on May 9 is uncorroborated and unreliable. However, there is no requirement that a probation officer's testimony be corroborated. The "judge was in the best position to determine matters of credibility" and "[f]indings that are based on credibility assessments are uniquely the province of the trial judge and we will not disturb them on appeal." Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 756 (2006). It is also "the exclusive province of the hearing judge to assess the weight of the evidence." Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).

The defendant further claims that because he did not sign the probation contract, he did not have fair notice of the conditions. However, there is no requirement in statute or in case law that a probationer must sign the probation contract in order for the conditions of probation to be in effect or to prove notice. "The enforceability of probation is derived not from the agreement of the defendant, but from the force of the judge's order." Commonwealth v. MacDonald, 50 Mass. App. Ct. 220, 223 (2000), S.C., 435 Mass. 1005 (2001). The obligation under G. L. c. 276, § 85, that "every person released upon probation shall be given by the probation officer a written statement of the terms and conditions of the release" was satisfied when Etienne met with the defendant on May 9, 2017.

Here, the judge was in the best position to determine whether the defendant had fair notice of what the conditions of his probation were and whether they were in effect. The judge could credit probation officer Etienne's testimony that the defendant received the conditions of probation orally translated in Spanish on May 9, 2017, twenty-two days prior to his alleged probation violation of a charged subsequent offense that occurred on May 31, 2017. The docket also indicates that the defendant was made aware on the date he pleaded guilty that he was on probation and that both standard and special conditions were in effect. Additionally, the defendant acknowledged at the surrender hearing that he understood that if he violated his probation, he could potentially face a twenty-year sentence. Furthermore, the "defendant, like all members of society, is on notice that he may not violate the criminal law at any time. Thus, no additional or special notice is required." Ruiz, 453 Mass. at 484.

Order revoking probation and imposing sentence affirmed.


text:
    COMMONWEALTH v. Rula JONES.
    17-P-880
    Appeals Court of Massachusetts.
    Entered: October 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Rula Jones, appeals from a Superior Court judge's order revoking his probation and imposing sentence after the judge found that the defendant violated the terms of his probation. We affirm.

Discussion. At his probation violation hearing, the defendant requested new counsel. The judge denied his request. On appeal, defendant argues that the judge committed a structural error by failing to further inquire into counsel's preparedness for the hearing and into counsel's communications with the defendant prior to the hearing. The defendant asserts that the alleged lack of communication between himself and his counsel constructively denied his right to counsel. We disagree.

"A structural error is one that so infringes on a defendant's right to basic components of a fair trial that it can never be considered harmless." Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 906 (1999), citing Arizona v. Fulminante, 499 U.S. 279, 309 (1991). "[C]onstructive denials of counsel rising to a level of structural error occur only where the defendant essentially is denied the assistance of any qualified attorney who could theoretically represent him in a way that does not undermine our trust in the adversary system." Commonwealth v. Valentin, 470 Mass. 186, 197 (2014). In this case, the judge spoke to defense counsel the morning of the hearing, before the defendant's request. As a result of that conversation, the judge already knew defense counsel had summonsed witnesses, spoken to the probation department and the prosecutor, and planned a strategy. Indeed, defense counsel had represented the defendant for three months prior to the surrender hearing, was present for at least three hearings in this case prior to the final surrender hearing (at least one of which the record indicates the defendant attended), and had spoken to the defendant about strategy the day before the hearing. Further communication between counsel and the court also demonstrated that defense counsel was familiar with the expected testimony of various witnesses and limitations in that testimony. Accordingly, we do not conclude that the defendant was constructively denied his right to counsel. There was no structural error.

Instead, we review the judge's decision to deny the defendant's request for new counsel for abuse of discretion. See Commonwealth v. Carsetti, 53 Mass. App. Ct. 558, 561, 563 (2002). Where a defendant requests new counsel, "[t]he preferred practice is to hear the defendant's reasons for wanting new counsel so that the judge's discretion will be exercised on an informed basis." Id. at 563. See Commonwealth v. Moran, 388 Mass. 655, 659 (1983). While it may be "appropriate to ask counsel for a response," questioning counsel is not required. Carsetti, 53 Mass. App. Ct. at 563 (holding that the judge did not abuse his discretion where the judge's rationale for denying the defendant's motion was supported by the record). See Commonwealth v. Flowers, 5 Mass. App. Ct. 557, 565 (1977) (stating a judge may decline further inquiry if "defendant's request was solely a dilatory tactic").

In this case, the judge both inquired into the defendant's reasons for his request and personally observed defense counsel's preparedness for trial. When the judge denied the defendant's request, she knew that defense counsel had been representing the defendant for several months prior to the hearing, that defense counsel was also representing the defendant with regard to the underlying charges on which this probation violation was based, and that defense counsel had taken several steps to prepare for trial. Moreover, the judge found that witnesses were present at the surrender hearing and that the case had been pending for some time. See Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976), quoting Commonwealth v. Gilchrest, 364 Mass. 272, 276-277 (1973) (when considering a request for new counsel, a judge must "give due weight to the interest of the judicial system in avoiding delays which would not measurably contribute to the resolution of a particular controversy"). The record supports the judge's finding that defense counsel was prepared for the hearing and that the defendant's request was solely a dilatory tactic. Accordingly, we conclude that the judge did not abuse her discretion in denying the defendant's request for new counsel.

Order revoking probation and imposing sentence affirmed.

      The judge also found that defense counsel was "zealously representing" the defendant and "putting up a fight."

      The defendant does not challenge his attorney's performance during the probation violation hearing.