text:
    COMMONWEALTH v. Andrew L. MCMULLEN.
    17-P-443
    Appeals Court of Massachusetts.
    Entered: April 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI); he then admitted to a second offense charge at a subsequent hearing before the same judge. He now appeals, arguing that the judge erred in denying his motion to suppress, because the Commonwealth failed to justify the initial stop of his car. He also appeals the denial of his motion to revise and revoke his sentence, claiming he was improperly sentenced under G. L. c. 90, § 24, rather than § 24D. We affirm.

1. Motion to suppress. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). During the motion hearing, Sergeant Robert Schnitzer of the Eastham police department testified that, on May 31, 2015, while traveling north along Route 6 in Eastham in his marked patrol car, he saw a white Volkswagen Jetta traveling in the opposite direction "at a high rate of speed." Schnitzer estimated, without using radar, that the vehicle was traveling approximately sixty-five miles per hour, obviously considerably greater than the forty mile per hour posted speed limit on that particular section of Route 6. Schnitzer opined that the defendant's Jetta was traveling in the left lane at such a speed that it appeared he was having a difficult time staying in the marked travel lane. Schnitzer also testified that the defendant was traveling "comparably faster than the other vehicles that [the defendant] was traveling in the same direction with." Based on his observations, Schnitzer immediately activated his emergency lights, reversed direction, and signaled to the defendant to stop his car. Schnitzer identified the defendant as the driver of the Jetta and, in response to Schnitzer's query, the defendant stated that he was traveling "[fifty-two] or [fifty-four]" miles per hour; Schnitzer eventually gave him a citation for speeding.

At the conclusion of the hearing, defense counsel argued only that the stop was improper because the sergeant's estimation of the defendant's speed did not provide probable cause for the stop and therefore any later observations should be suppressed. The judge found that Schnitzer had a valid basis to stop the defendant for speeding, concluding that "a police officer-I don't think you have to be a police officer. I think the average motoring public can observe speed. And if one vehicle seems to be moving faster than all the others and beyond the speed limit-beyond the speed that the cruiser's going-even if he's going [forty] in a [forty] and the other vehicle's going faster, you can make a judgment that someone's speeding even without an exact measurement." The judge concluded "that the defendant was speeding which is a valid basis to stop [a] vehicle."

We are persuaded that the judge properly denied the defendant's motion to suppress because Schnitzer's stop of the defendant's vehicle was lawful. "Where police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Feyenord, 445 Mass. 72, 75 (2005), cert. denied, 546 U.S. 1187 (2006), quoting from Commonwealth v. Santana, 420 Mass. 205, 207 (1995). The Supreme Judicial Court recently has reiterated this principle in Commonwealth v. Buckley, 478 Mass. 861, 865-866 (2018), stating:

"In Santana, 420 Mass. at 209, we articulated the current State constitutional standard for evaluating the validity of a traffic stop. Under that rule, called the authorization approach, a traffic stop is reasonable for art. 14 purposes 'so long as the police are doing no more than they are legally permitted and objectively authorized to do,' regardless of the underlying intent or motivations of the officers involved. Santana, supra, quoting [from] United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989), cert. denied sub nom. Cummins v. United States, 502 U.S. 962 (1991). Stated differently, under the authorization test, a stop is reasonable under art. 14 as long as there is a legal justification for it. We have long held that an observed traffic violation is one such justification. See, e.g., Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) ('Where the police have observed a traffic violation, they are warranted in stopping a vehicle'); Commonwealth v. Amado, 474 Mass. 147, 151 (2016) (valid stop where 'unlit registration plate'); Commonwealth v. Feyenord, 445 Mass. [at] 75... (valid stop where inoperable headlight in daylight); Santana, supra at 207 (valid stop where defective taillight). Cf. Commonwealth v. Lora, 451 Mass. 425, 436 (2008), quoting [from] Whren v. United States, 517 U.S. 806, 810 (1996) ('the decision to stop an automobile is reasonable for Fourth Amendment purposes "where the police have probable cause to believe that a traffic violation has occurred" ')."

In addition, while the parties argue whether the appropriate standard for making a traffic stop is probable cause or reasonable suspicion, we need not resolve that issue here because the opinion of the experienced officer that the defendant's car was traveling twenty-five miles per hour over the posted speed limit clearly established probable cause for the stop-particularly when the sergeant compared the defendant's speed to that of other vehicles on the road. See Bacon, supra.

2. Revise and revoke sentence. The defendant also argues that his sentence is controlled by G. L. c. 90, § 24D, as amended through St. 2002, c. 302, § 5, because the defendant's prior OUI conviction was more than ten years old. This, in his view, qualified him for sentencing under § 24D. We disagree.

After he was convicted of OUI, the defendant waived his right to a jury for the second portion of the bifurcated trial-relating to the second offense charge; he then admitted to committing a second offense. Accepting the Commonwealth's recommendation, the judge sentenced the defendant to incarceration for six months in the house of correction, and suspended the sentence for two years of probation (until June 22, 2018). An express condition of probation was that the defendant complete a fourteen-day residential alcohol treatment program, along with various monetary assessments, and a license revocation for two years. See G. L. c. 90, § 24(1)(a )(4), (1)(b ), and (1)(c )(2).

On July 6, 2016, the defendant filed a motion to revise and revoke his sentence, arguing that he had a "minor record, consisting of just one conviction" (in 2004) that was more than eleven years old and, thus, he was eligible for sentencing in line with a "Cahill Disposition" under G. L. c. 90, § 24D. See Commonwealth v. Cahill, 442 Mass. 127, 130 (2004). On February 14, 2017, in written findings, the judge denied the motion without a hearing, stating that even though a second offender may be eligible for a "Cahill" disposition under § 24D, "sentencing remains discretionary with the trial judge with a possible sentence of up to [two] and one-half years in the house of correction. The Court did find that the defendant was a suitable candidate for the second offender fourteen day in-patient treatment program and made written findings for same at sentencing."

The judge was well within his discretion here to sentence the defendant, who was convicted of an OUI second offense, under § 24(1)(a )(1) of chapter 90, rather than § 24D. Although we agree with the defendant that, in these circumstances, he was eligible for sentencing under § 24D, that discretionary sentence is not mandatory. See G. L. c. 90, § 24D, as amended by St. 2002, c. 302, § 5. Further, the defendant's reliance on Cahill is misplaced. In Cahill, the Supreme Judicial Court, resolving a statutory ambiguity, held only that "second offenders who qualify for a disposition under § 24D should be treated no differently from first offenders. Limiting their loss of license to a maximum of ninety days comports with the plain wording of § 24D... as well as that section's historical purpose ...." Cahill, 442 Mass. at 134. That case in no way strips a judge of discretion to choose to sentence an otherwise qualifying defendant under § 24(1)(a )(1). For this reason, the judge did not abuse his discretion in denying the defendant's motion to revise and revoke.

Judgment affirmed.

Order denying motion to revise and revoke sentence affirmed.

      A charge of negligent operation was dismissed on the defendant's motion. The judge also found the defendant responsible on two civil motor vehicle infractions-speeding and possessing an open container of alcohol; those charges were placed on file with the defendant's consent.

      The defendant did not challenge Schnitzer's credibility.

      Schnitzer testified that he was "headed to another assignment and did not have [his] radar activated, powered up or ready to measure speed."

      Schnitzer was certified as a radar operator, where "estimating speed is part of the process of being certified as a radar operator."

      On the front of the citation form, Schnitzer indicated that he "estimated" the defendant's traveling speed as fifty-four miles per hour, based on the defendant's "honesty."

      The defendant admitted prior to sentencing that he had been convicted in 2004 in the Orleans District Court of an OUI offense.

      In Cahill, supra at 131, 134, focusing primarily on the license penalty imposed by a § 24D disposition, the Supreme Judicial Court held that "[§] 24D expressly applies to first-time drunk driving offenders, as well as offenders with a single prior conviction or assignment to an alcohol education or treatment program for a similar offense that occurred ten or more years earlier, once in their lifetime," thus qualifying a second offender, if the judge chooses to sentence under § 24D, to a loss of license for a maximum of ninety days.

      Section 24D provides that "[a]ny person convicted of or charged with operating a motor vehicle ... while under the influence of intoxicating liquor ... may if such person consents, be placed on probation for not more than two years and shall, as a condition of probation, be assigned to a driver alcohol education program as provided herein ..., and such person's license or right to operate shall be suspended for a period of no less than forty-five nor more than ninety days .... This section shall also apply to any person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor who has been convicted of such offense or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a single like offense by a court of the commonwealth or any other jurisdiction 10 years or more before the date of the commission of the offense for which he is to be sentenced, once in his lifetime." (Emphasis supplied.)


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Angel Junior VILLANUEVA.
    17-P-818
    Appeals Court of Massachusetts.
    Entered: April 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Angel Junior Villanueva, entered a guilty plea in Superior Court to the charge of attempted escape from a penal institution, G. L. c. 268, § 16. He later moved to withdraw his plea, asserting both that there was no basis in fact for the conviction and that his plea counsel was ineffective. A judge, who was also the plea judge, denied that motion and a subsequent motion for reconsideration. This appeal followed, and we affirm.

Background. At his plea colloquy, the defendant agreed to the following facts.

"[O]n June 15, 2015, this defendant was being housed ... at the Hampshire County House of Corrections in Cell 35. He was alone in that cell at that time. A cell inspection was conducted of his cell. During that time frame, the correctional officer doing the inspection discovered several pieces of broken nail clippers which had been secreted between the window screen and the frame. Several of them appeared to have been altered to be used to remove some tamper-resistant screws that were in the screen frame and there were screens removed from the window screen frame. They also observed that other pieces of the nail clippers appeared to have been worn down from scraping.
"When the officer further inspected the cell, he observed that in the ceiling of the cell above the sink there was a hole covered, approximately 18 inches in diameter, that had been covered with white plaster material, as well as a piece of paper. When they removed that material, they could see that a hole had been created in the ceiling of [the defendant's] cell approximately six to eight inches at that time. There was a wire mesh that's in the plaster of the ceiling that also had been broken through and was an open ceiling, and the officers were able to see at that point into the crawl space above [the defendant's] cell."

The judge specifically asked, "Did the defendant do it?" The prosecutor replied, "Yes," explaining:

"[T]he defendant was the only person who was in the cell at that period of time. It appeared that it actually had been over the course of several days to create that type of hole, but he was the only person that had access or was housed in that cell during that period of time."

The prosecutor also described the defendant's history of fleeing from police custody, beginning in late 2009, when the defendant was charged with various crimes, including "negligent operation and leaving the scene of property damage based on his flight from the police, both in a vehicle and also on foot." In early 2013, when the defendant was seen driving a stolen car, he "fled from the police in a high-speed chase, and then fled again from [the police] on foot." Finally, on October 11, 2014, police arrested and handcuffed the defendant, but he escaped from the police cruiser.

Discussion. We review the judge's denial of the defendant's motions for "an abuse of discretion that produces a manifestly unjust result." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). "A judge may not accept a guilty plea 'unless there are sufficient facts on the record to establish each element of the offense.' " Commonwealth v. Hart, 467 Mass. 322, 325 (2014), quoting from Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986). In reaching that determination, the judge may consider the Commonwealth's recitation, "any information [the judge] has obtained in the plea hearing, ... [and] reasonable inferences which may be drawn therefrom." Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015), quoting from Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987).

The substantive crime of escape occurs when "[1] [a] prisoner of any penal institution[,] ... jail or correctional institution under a lawful order of a court ... [2] [intentionally] [3] escapes ... from any such institution." G. L. c. 268, § 16, as amended through St. 1989, c. 313. See Commonwealth v. Meranda, 2 Mass. App. Ct. 890, 891 (1974) (wrongful intent "necessary element" of escape). Since the defendant never completed his escape, we must determine whether his actions amount to a punishable attempt. "The elements of attempt ... are (1) the specific intent to commit the substantive crime at issue, and (2) an overt act toward completion of the substantive crime." Commonwealth v. LaBrie, 473 Mass. 754, 764 (2016). The defendant contends the facts recited do not demonstrate an intent to escape or the commission of an overt act. We disagree.

A judge may infer a person's intent "from his actions in light of all the surrounding circumstances." Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978). Evidence of intent may come from events outside those spelled out in charging documents. See Commonwealth v. Peaslee, 177 Mass. 267, 274 (1901).

Here, in the ceiling of the defendant's cell, a correction officer discovered a hole eighteen inches wide that broke through to the crawl space above it. The defendant had been the sole occupant of the cell. The officer also discovered that the screws securing the cell's window screen had been removed, and wedged between the window screen and the frame was a pair of nail clippers that had been altered. The clippers appeared worn down from scraping. In addition to evidence supporting the creation of an escape route and the secreting of cutting implements, the judge heard evidence of the defendant's history of flight from police custody, which included fleeing twice from police initially by car and then on foot, and escaping while handcuffed from a police cruiser. Together this evidence and the reasonable inferences to be drawn therefrom, see Armstrong, 88 Mass. App. Ct. at 758-759, were sufficient to establish the defendant's intent to escape from custody.

They also supported a finding of an overt act. In cases where "a person is still in preparatory mode and has not committed the last act necessary to achieve the [substantive] crime," the determination as to whether a preparatory act is "overt" depends on its proximity to the completed substantive crime. Commonwealth v. McWilliams, 473 Mass. 606, 611 (2016). In determining proximity in such cases, three factors must be considered: (1) the gravity of the substantive crime; (2) the uncertainty of the crime's completion given the defendant's preparation; and (3) the seriousness of the threatened harm. Ibid., citing Commonwealth v. Bell, 455 Mass. 408, 414 (2009). All three factors support proximity here.

First, the substantive crime of escape is a grave felony offense punishable by up to ten years in prison. See G. L. c. 268, § 16. Second, the defendant's excavation of an eighteen inch hole in the ceiling of his cell demonstrates that the defendant's attempt to escape from custody was underway when the officer found it-diminishing, thereby, any uncertainty regarding the defendant's plan to escape. See McWilliams, supra at 611-612 (evidence sufficient for attempted robbery where defendant seated "just outside" bank he had robbed previously, wearing same clothing and carrying disguise and pellet gun). Last, a prisoner's escape from custody is a dangerous crime that poses a serious public safety risk. Accordingly, we conclude there was ample support for each of these three factors and a finding of the defendant's commission of an overt act in furtherance of an escape. We discern no error.

Orders denying motion to withdraw plea and for reconsideration affirmed.

      The defendant had waived his right to be indicted and allowed the Commonwealth to proceed by way of a district attorney's complaint.

      At the plea hearing the defendant had also pleaded guilty to various other criminal charges. However, his motion to withdraw plea addresses only his plea of attempted escape from a penal institution.

      The Commonwealth must also "prove the identity of the person who committed the crime charged." Commonwealth v. Montez, 450 Mass. 736, 744 (2008). Here, although identity is questionable, proof comes from two sources. First, the Commonwealth showed identity with evidence of the defendant's consistent course of conduct in escaping custody and that he was the sole occupant of the cell. See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) (evidence of prior misconduct may be admissible to show identity). Cf. United States v. Bari, 750 F.2d 1169, 1180 (2d Cir. 1984), cert. denied sub nom. Benfield v. United States, 472 U.S. 1019 (1985) (evidence of prior and subsequent escape attempts may be admissible to establish intent or identity where defendant charged with attempt to escape from prison). Second, the defendant agreed with the prosecutor's assertion that he cut the hole in his cell's ceiling. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640 (2007) ("professions under oath at the time of plea ... have consequence").

      The defendant's one-sentence contention that his plea counsel was ineffective does not rise to the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and, therefore, is waived.


text:
    Heather J. HUE v. Evan A. SODERSTROM.
    17-P-615
    Appeals Court of Massachusetts.
    Entered: April 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In a child custody modification judgment dated December 5, 2016, a Probate and Family Court judge ordered the parties' minor child to transfer to a school district centrally located between the parties' homes. Evan A. Soderstrom (father) appeals only the school transfer order, alleging that the judge failed to consider the best interests of the child in ordering the transfer, and instead, only considered Heather J. Hue's (mother) commute between her home, the child's school, and her place of employment. We affirm.

1. School transfer. The father claims that the judge erred in ordering the child to be transferred to the Sharon school district without making a finding that such a transfer would be in the child's best interests. We disagree.

Under the parties' former custody arrangement, as ordered on January 10, 2013, the father had sole physical custody of the child and the mother had parenting time with the child. This arrangement remained in place for three years. In 2015, the parties each moved for modification of custody, which resulted in the judge's December 5, 2016, judgment at issue in this appeal. In addition to ordering shared legal and physical custody of the child, the judge ordered the parties to transfer the child from her Mendon elementary school to "the Sharon public school system effective January 2017, unless the parties agree otherwise."

Pursuant to G. L. c. 208, § 28, as amended by St. 1993, c. 460, § 61, a judge is permitted to modify an earlier judgment related to the care and custody of a child "provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the [child]." "A trial court's broad discretion to fashion an appropriate custody or visitation arrangement will not be disturbed on appeal unless clearly wrong." Austin v. Austin, 62 Mass. App. Ct. 719, 722 (2004), citing Rolde v. Rolde, 12 Mass. App. Ct. 398, 403 (1981). "The best interests of a child is the overarching principle that governs custody disputes in the Commonwealth." Charara v. Yatim, 78 Mass. App. Ct. 325, 334 (2010). This inquiry may involve the judge's consideration of a variety of factors "depend[ing] upon the particular needs of the child." Ibid. Furthermore, a judge should "consider the welfare of the child in reference not merely to the present, but also to the probable future, and it is a subject peculiarly within the discretion of the judge." Jenkins v. Jenkins, 304 Mass. 248, 250 (1939).

Although the judge did not expressly reference the best interests standard in his school transfer order, he summarized his findings of fact and conclusions of law in a thoughtful memorandum that demonstrated his consideration of the child's best interests. The judge found that the child's Mendon school was located ten minutes from the father's home in Mendon and forty minutes from the mother's home in Sharon. At the time of trial in March and April of 2016, the mother had not yet begun her employment in Brockton. Once the mother began working, in order to transport the child to the Mendon school and then drive to work for her 8:00 A.M. start time, her "morning commute would be more than two hours and require her to leave home before 6:00 A.M. " As the mother testified at trial, she would most likely need to have someone other than herself transport the child to school.

In light of these findings and evidence, it was not an abuse of discretion to order the transfer of the child to the Sharon school district. First, as the judge found, it is in the child's "best interest that both of her parents have significant time with [her] on a regular basis in order for [the child's] relationship with them to continue to flourish." The school transfer enables that goal, since, presumably, the Sharon school's centralized location will enable the mother herself, rather than a secondary caretaker, to transport the child to school or to the bus stop near her house. Second, in ordering joint legal custody of the child, the judge found that the "parties [did] not agree on one specific major issue affecting [the child], namely, which school [the child] should attend," but because he resolved that issue within his judgment, he found that this disagreement would "not be an obstacle to joint decision-making going forward." It was within the judge's discretion to fashion a remedy that better enables the parties to cooperate in the future in the best interests of the child. See Jenkins v. Jenkins, supra; Rolde v. Rolde, supra.

2. Mother's request for appellate legal fees and costs. The mother requests appellate legal fees and costs because, she claims, the father's appeal presented no reasonable expectation of reversal. Although we affirm the judgment, we cannot conclude that the father's appeal was frivolous. Therefore, we decline to exercise our discretion to impose attorney's fees and costs. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 160 (1996).

Judgment dated December 5, 2016, affirmed.

      The mother had physical custody of the child from February of 2010 until January of 2013, but the father was granted physical custody after the mother left the Commonwealth with the child in December of 2012.

      During this time, the mother appealed the January 10, 2013, judgment to this court. We vacated and remanded for further proceedings. See Hue v. Soderstrom, 87 Mass. App. Ct. 1120 (2015).

      The parties did not request the school transfer in their pleadings, and the father did not object when the judge brought it up at trial.

      The parties do not dispute the judge's finding that a material change in circumstances had occurred.

      Even still, on two occasions, she arrived late to pick up the child from school.

      The father expressed concern that changing the child's school will deprive her of the opportunities both to further her Spanish language studies and to foster her existing friendships. It would not have been an abuse of discretion for the judge to take these concerns into consideration and nevertheless conclude that they were outweighed by other factors in the judge's best interests analysis. For instance, the Mendon school's Spanish language program only continues until fifth grade (at the time of trial, the child was in first grade), and the child's nanny regularly speaks Spanish with the child. Furthermore, the child has friends in the mother's neighborhood and has playdates outside of school with her Mendon school friends.


text:
    Thomas DENAPOLI & another v. Clarence W. HART, Jr., & others.
    17-P-868
    Appeals Court of Massachusetts.
    Entered: April 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Pamela DeNapoli.

      Lewis and Weldon Custom Cabinetry, LLC; Lewis and Weldon Custom Kitchens, LLC; and Lewis and Weldon Custom Builders.

   Following a bench trial, a Superior Court judge found for the plaintiffs on their claim of breach of contract against the defendants and awarded the plaintiffs $139,707.08 in damages, which the judge then doubled due to the defendants' violation of G. L. c. 93A. The defendants appeal on several grounds. We affirm.

Background. We summarize the facts pertinent to this appeal, as found by the trial judge. In 2010, the plaintiffs entered into written agreements with the defendants, under the terms of which the defendants were to enlarge and renovate the plaintiffs' kitchen and construct a barn on their property. The parties entered into two separate agreements, one for the renovation of the kitchen, and one for the kitchen addition and barn construction. The cost of the kitchen renovation was $48,337.50, and the cost of the kitchen addition and barn construction was $296,179.14. Each agreement included scheduled payment dates and stated that the work would be completed "in a workmanlike manner." This appeal concerns only the agreement for the kitchen addition and barn construction project (the project).

The project was scheduled to begin on July 1, 2010, and be completed by November 15, 2010. The work was delayed, "primarily and substantially [because of] a lack of manpower and supervision at the site." As the project encountered delays that left it uncompleted through the summer of 2011, several defects in the work presented themselves. In response, and because the defendants stopped communicating with the plaintiffs and the work was not being done on the house, the plaintiffs contacted another contractor, Sean DiCataldo, to inspect the project. The town building inspector, an architect, and two engineers all also inspected the project, and each agreed that the construction of the barn deviated from the building plan and that multiple aspects of the construction were done "in a substandard manner."

As a result, the plaintiffs sent the defendants a demand letter pursuant to G. L. c. 93A on September 1, 2011, alleging violations of both c. 93A, and G. L. c. 142A (governing regulation of home improvement contractors). The plaintiffs demanded the return of all funds they had paid the defendants plus additional damages. Specifically, the plaintiffs' demand letter accused the defendants of abandoning the project, cited the defendants' ongoing lack of communication with the plaintiffs, and noted several structural and aesthetic defects in the work. Defendant Clarence Hart, on behalf of all the defendants, responded by claiming they had not abandoned the project and that they were awaiting the plaintiffs' response on options for portions of the project before progressing. He further offered to remedy a defective portion of the project and stated that the project was nearly complete, that they were willing and able to complete the project, and that they were owed $50,000 for past services and materials.

The plaintiffs terminated the defendants and hired DiCataldo to complete the project. The complaint against the defendants was filed in the Superior Court on November 23, 2011, and the case ultimately proceeded to a bench trial. Regarding the plaintiffs' claims of breach of contract and negligence, the judge found for the plaintiffs and ordered the defendants to pay $139,707.08 in damages; the judge concluded that Hart was personally liable for the damages. The judge determined the measure of damages to be the cost to complete the project and correct mistakes made by the defendants less the amount left unpaid on the original contract. The judge further found for the plaintiffs on their claims of violation of G. L. c. 93A, specifically § 9, and violation of G. L. c. 142A, and he doubled the damages award. The judge awarded the plaintiffs reasonable attorney's fees and costs pursuant to c. 93A.

Discussion. The defendants advance several arguments on appeal: (1) the judge's finding that the plaintiffs suffered damages was an error of law; (2) Hart was incorrectly held personally liable for the damages because he had signed the agreement with the plaintiffs as an agent for Lewis and Weldon Custom Builders; (3) the plaintiffs' demand letter was deficient under G. L. c. 93A; (4) the judge made erroneous factual findings which gave rise to the double damages under G. L. c. 93A; (5) the judge erred in determining the barn construction was covered by G. L. c. 142A; (6) the judge improperly found the defendants violated the implied covenant of good faith and fair dealing; and (7) the judge abused his discretion in denying the defendants' motion to enlarge the time for discovery.

Having reviewed the record and considered the defendants' arguments, we affirm.

1. Standard of review. We briefly discuss our standards of review. For questions of law, we review de novo. U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 427 (2014). We are bound by the judge's findings of fact so long as they are supported by the evidence and will only disturb the challenged findings if clearly erroneous to the extent that we are "left with the definite and firm conviction that a mistake has been committed" after considering the record. White v. Hartigan, 464 Mass. 400, 414 (2013) (quotation omitted). Finally, the judge's denial of the defendant's motion to enlarge the discovery period is reviewed for an abuse of discretion, where we address whether the judge made a "clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

2. Questions of law. We first address the defendants' asserted errors of law. The defendants contend that the plaintiffs' G. L. c. 93A demand letter was fatally noncompliant with the statutory requirements. At issue is the reasonableness requirement for demand letters, which calls for the plaintiffs to provide "a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered." G. L. c. 93A, § 9(3).

In their demand letter, the plaintiffs described the grounds for their claims and requested the defendants return "all the monies [the plaintiffs] have paid you to date, together with compensation for their damages so that they can complete the project, correcting all the defects, re-building it in compliance with state codes, and completing it in its entirety as originally envisioned." That would have amounted to a $387,444 refund, in addition to remedial damages, and the judge noted that "demand for a full refund of the contract price was excessive" before awarding $139,707.08 in damages.

The question before us then is whether a demand letter with an "excessive" request for relief violates the reasonableness requirement of G. L. c. 93A, § 9(3). "The purposes of the [demand] letter are twofold: (1) to encourage negotiation and settlement by notifying prospective defendants of claims arising from allegedly unlawful conduct and (2) to operate as a control on the amount of damages which the complainant can ultimately recover." Spring v. Geriatric Authy. of Holyoke, 394 Mass. 274, 288 (1985) (quotation omitted). We conclude that the plaintiffs' demand letter was statutorily sufficient.

We find support in a previous case before this court, Fredericks v. Rosenblatt, 40 Mass. App. Ct. 713 (1996). In Fredericks, the plaintiff's G. L. c. 93A demand letter made a settlement demand of $35,000 on a claim that ultimately settled for $1,694.15-the cost to repair the plaintiff's vehicle after a collision. Id. at 715-716. A Superior Court judge sua sponte dismissed the plaintiff's c. 93A claim for failing to comply with the demand letter requirements, noting that the letter failed to describe the plaintiff's injury and the demand amount was unreasonable. Id. at 714. This court reversed, concluding that the plaintiff complied with the c. 93A demand letter requirements because "[t]he purpose of a § 9 demand letter is 'to give the defendants an opportunity to review the facts and the law involved to see if the requested relief should be granted or denied and to enable them to make a reasonable tender of settlement in order to limit the recoverable damages.' " Id. at 717, quoting from York v. Sullivan, 369 Mass. 157, 162 (1975). Since the demand letter "concretely described the purported injury ... and ... the amount of damages claimed was reasonably ascertainable," the demand letter served its purpose. Id. at 717-718.

Similarly, the demand letter in the present case adequately detailed the injury suffered so that an appropriate damages calculation remained "reasonably ascertainable." Ibid. While we agree with the judge that a demand for a full refund was excessive, we conclude that such demand was not fatal to the G. L. c. 93A award.

The defendants also contend that the judge erred in finding that the plaintiffs had personally suffered damages. We disagree. The defendants' contention is that since payments to them were made by TRD Consulting, Inc., rather than the plaintiffs individually, the plaintiffs suffered no financial damage. The argument is without merit. TRD Consulting is owned by plaintiff Thomas DeNapoli, and he is the sole interested party in that entity. Further, as the ultimate damages calculation was the plaintiffs' cost to repair and complete the project, the manner in which the defendants were paid is irrelevant. That Thomas DeNapoli did not take the step to first transfer funds to a personal account before making payment to the defendants does nothing to undermine the damages suffered by the plaintiffs. The judge undertook a proper damages calculation, and the plaintiffs were the appropriate recipients. Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 543 (2014) ("The fundamental premise of contract damages is that the aggrieved party should be put in as good a position as if the other party had fully performed" [quotation omitted] ).

The defendants further assert that the judge erred in holding Clarence Hart personally liable for the damages owed to the plaintiffs, arguing instead that he was acting as an agent for Lewis and Weldon Custom Builders. The judge determined that the entity did not exist and was effectively a sole proprietorship of Hart's, a factual finding that is amply supported by the record. See White, 464 Mass. at 414. See also Ladd v. Scudder Kemper Invs., Inc., 433 Mass. 240, 243 (2001) (sole proprietorship refers to business owned and operated by single individual). We must determine, therefore, whether Hart can be shielded from personal liability as an agent to a nonexistent principal or to his own sole proprietorship. The answer is no. See Atlantic Salmon A/S v. Curran, 32 Mass. App. Ct. 488, 492 (1992) ("It is the duty of the agent, if he would avoid personal liability on a contract entered into by him on behalf of his principal, to disclose not only that he is acting in a representative capacity, but also the identity of his principal"). See also Ladd, supra ("[T]he sole proprietor is solely liable for all debts of the business" [quotation omitted] ). There was no error.

3. Findings of fact. The defendants urge us to conclude that the judge's factual findings that gave rise to his G. L. c. 93A award were clearly erroneous, and the award of double damages must be reversed. The judge found that the defendant wilfully and knowingly violated G. L. c. 93A, § 9, which prohibits unfair and deceptive acts. The issue before us is whether adequate support exists for the judge's finding that the defendant's unfair or deceptive acts were wilful and knowing. See Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 182 (2013) (multiple damages appropriate where c. 93A violation was wilful or knowing).

The judge concluded that the defendants' deviation from building plans, failure to timely complete the project, and defective work were indeed wilful and knowing. Further, the judge found that the defendants' response to the plaintiffs' demand letter-in which the defendants' offered to repair one portion of the shoddy work, denied that they had breached the contract, and contended that the plaintiffs owed an additional $50,000 under the agreement-was in bad faith and contrary to the purpose of G. L. c. 93A. These facts found by the judge, which we conclude are supported by the record and therefore not clearly erroneous, provided an adequate basis for the award of multiple damages.

4. Request to extend discovery. The defendants finally contend that the judge abused his discretion by denying their motion to enlarge the time period to request discovery. Notably, the defendants did not participate in any discovery for more than two and one-half years, and filed the motion roughly six months before the trial was set to begin. As justification for the motion, the defendants argued that they did not obtain the case file or retain counsel until after the tracking order deadlines had already passed and that enlarging the discovery period would not prejudice the plaintiffs. The defendants, however, did not offer any reasonable excuse for this neglect, and the judge was justified in declining to further extend long-running litigation without good cause. As we conclude the denial of the motion was well within the reasonable range of alternatives available to the judge, there was no abuse of discretion. See Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987) ; L.L., 470 Mass. at 185 n. 27.

Appellate attorney's fees. The plaintiffs have requested, and are entitled to, an award of attorney's fees and costs in connection with this appeal. See Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989) ("The statutory provisions [of G. L. c. 93A] for a 'reasonable attorney's fee' would ring hollow if it did not necessarily include a fee for the appeal"). In accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiffs may file documentation in support of their request for fees and costs within fourteen days of the date of the rescript, and the defendants shall have fourteen days thereafter to respond.

Judgment affirmed.

      We decline to address the defendants' argument regarding whether the project was subject to G. L. c. 142A as we conclude, among other reasons, that the judge was correct in deeming the defendants' actions to be unfair and deceptive under G. L. c. 93A. Where the G. L. c. 142A violation merely provides an additional, separate ground for the G. L. c. 93A award, it need not be discussed independently. Similarly, we have reviewed the defendants' asserted error relating to the implied covenant of good faith and fair dealing and "found nothing [there] that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471-472 (1991).

      "The conduct and scope of discovery is within the sound discretion of the judge.... While discovery orders are reviewable on appeal from entry of a final judgment, we do not interfere with the judge's exercise of discretion in the absence of a showing of prejudicial error resulting from an abuse of discretion." Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987).


text:
    L.G. v. A.I.
    17-P-1303
    Appeals Court of Massachusetts.
    Entered: April 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a brief hearing on July 31, 2017, a District Court judge extended for one year a harassment prevention order, issued pursuant to G. L. c. 258E, against the defendant. He appeals, claiming that there was insufficient evidence to show that the messages at issue were harassing and that the plaintiff was not the intended recipient of the messages. We agree and vacate the order.

"In reviewing a civil harassment order under G. L. c. 258E, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed acts that constituted one of the enumerated forms of harassment." A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 274 (2017). As defined in G. L. c. 258E, § 1, inserted by St. 2010, c. 23, harassment is "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." See Gassman v. Reason, 90 Mass. App. Ct. 1, 7-8 (2016). "The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended." A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015).

Here, in her complaint for protection from harassment, the plaintiff indicated that she had suffered harassment from September of 2015, to July 15, 2016, the date of her complaint. In support of her complaint, she submitted an affidavit stating, in full:

"For the past 10 months [the defendant] has been leaving nasty crude and borderline threatening messages on my husband['s] ... cell phone. We have blocks on our cell phones however he is now calling our landline via (text to landline) all hours day and night with these messages. We did try to block home [number] but not able to through Verizon. It is very unsettling ... due to his mental state."

The order was granted ex parte on July 15, 2016. At the extension hearing on August 1, 2016, the plaintiff appeared, but the defendant did not, and the order was extended until July 31, 2017. At the extension hearing on July 31, 2017, both parties were present. The plaintiff testified only that she was a friend of the defendant's former wife. She did not present any additional information about the content of the messages or their effect on her. Nevertheless, the judge found that the plaintiff had satisfied her burden and, "given the history of the situation," it was best to extend the order until July 30, 2018. When the defendant inquired as to what evidence supported the judge's decision, the judge twice responded, "It's in the file."

On these facts, the basis on which the judge extended the order cannot be discerned. In its entirety, the record contains the complaint and affidavit for the harassment prevention order, the order itself, the extension order, and the hearing transcript. Absent from the record are any description or copies of messages sent from the defendant to the plaintiff or her husband. Without additional information, the plaintiff has not established three distinct incidents to constitute harassment as defined in § 1. As such, the plaintiff failed to meet her burden.

Accordingly, the order entered on July 31, 2017, extending the harassment prevention order is vacated.

So ordered.

Vacated.

      There is a second definition contained within § 1, involving forcible sexual relations and certain enumerated sexual offenses, however, this definition is not relevant to the facts of this case. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599 (2015). Unless otherwise noted, we refer to the first definition when referring to § 1.

      Because we find that the order entered on July 31, 2017, was not supported by sufficient evidence, we need not reach the defendant's additional arguments, i.e., whether the messages were harassing or whether they were intended for the plaintiff or her husband.


text:
    COMMONWEALTH v. Richard A. TROTT, Sr.
    16-P-265
    Appeals Court of Massachusetts.
    Entered: April 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a Superior Court jury trial, the defendant, Richard A. Trott, Sr., was convicted of three counts of larceny over $250, in violation of G. L. c. 266, § 30(1). On appeal, the defendant argues that: (1) there was insufficient evidence to support the convictions; (2) the judge abused his discretion by admitting in evidence a financial spreadsheet that summarized the defendant's alleged use of embezzled funds; (3) the defendant was prejudiced by the venue of his trial; and (4) the order for restitution should be vacated. We affirm the defendant's convictions, but remand the case for a determination regarding the defendant's ability to pay restitution. See Commonwealth v. Henry, 475 Mass. 117 (2016).

Discussion. 1. Sufficiency of the evidence. To support a conviction of larceny the Commonwealth must prove "(1) the unlawful taking and (2) carrying away ... (3) of personal property of another (4) with the specific intent to deprive the person of the property permanently." Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27 (2003), citing Commonwealth v. Mills, 436 Mass. 387, 394 (2002). The defendant, who was the commander of chapter 96 of the Disabled American Veterans charitable organization (DAV 96 ), claims that the evidence was insufficient to prove that he took funds without authorization and with the intent to permanently deprive DAV 96 of the funds. Upon review, we look at the facts adduced at trial in the light most favorable to the Commonwealth and determine whether any rational trier of fact could have found that all elements of the crime had been proved. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

a. Indictment 15-031-01 and 15-031-02. The first two indictments allege that the defendant stole money in the form of four checks, totaling $36,000, written on an account held by DAV 96. The Commonwealth presented evidence that the defendant signed four checks with values of $2,500, $5,500, $18,000, and $10,000, drawn from a DAV 96 account, payable to the Disabled Veterans Association of Cape Cod and the Islands (DVA Cape Cod). The defendant opened an account, without authorization from DAV 96, in the name of the DVA Cape Cod. He listed himself as the only authorized signer, and his personal address was given for the account. The defendant then withdrew money from the DVA Cape Cod account and made similar deposits into his personal account. The jury could permissibly find that the transactions were unauthorized and that the defendant did not intend to return the money.

b. Indictment 15-031-03. The third indictment alleged further instances where the defendant embezzled funds from DAV 96. The defendant asserts that the Commonwealth was obligated to provide affirmative evidence that each and every transaction was unauthorized. We disagree. The evidence that the defendant had taken funds in excess of $250 during the stated time period was sufficient for several reasons.

First, DAV 96 was suspended by the DAV effective October of 2010. All transactions after that point were unauthorized. In September of 2010, Daniel Stack, chief executive officer of the national department of the DAV, informed the defendant that DAV 96 could not expend funds while on suspension. After DAV 96 was placed on suspension, the defendant used the DAV 96 debit card for numerous cash withdrawals and retail and restaurant purchases. The evidence presented would permit a rational jury to conclude that the defendant took money from DAV 96 after October 1, 2010, for his own use and enjoyment, without the knowledge or consent of DAV 96, and with the intent to permanently deprive the organization of the use of it.

Second, a rational trier of fact could infer that the defendant intended to permanently deprive DAV 96 of its property when he drew a check in the amount of $15,000 from DAV 96 account 2918, made payable to "Wilson and Associates," and then, twenty-four days later, when the majority of the funds were refunded to the defendant, he did not deposit the funds back into the DAV 96 account.

Third, the defendant did not comply with the organization's financial controls and authorization procedures. All checks required the signature of the commander and the treasurer, but when the treasurer was unable to attend the majority of the meetings, the defendant told him that his duties would be covered. Furthermore, he made liberal use of a bank debit card linked to DAV 96 account 2918, a checking account at the Cooperative Bank of Cape Cod. Although the debit card obviated the signature requirement, the organization still required that payments be authorized by a vote of the membership. The defendant used the DAV 96 debit card in his name to withdraw money from DAV 96 account 2918 and deposit that money in his personal account. He also used the DAV 96 debit card for scores of purchases at retail establishments (e.g., Toys R Us, Wal-Mart, Bath and Body Works) and restaurants (e.g., IHOP, McDonalds, KFC), totaling in the thousands of dollars.

With respect to all the transactions, but especially the latter group, the defendant maintains that there is insufficient evidence that the defendant was not authorized to make any transactions. Although there was testimony from the former treasurer of DAV 96 that the defendant was allotted some discretion in spending, Stack testified that, under the DAV bylaws, "no one individual within a chapter could ... automatically just disperse funds," and that the defendant was not allowed any discretion to "expend money without a vote." Wolfgang Fattler, a member of the DAV 96, testified that DAV 96 never voted to approve the $15,000 Wilson and Associates check. While he did not testify to every single one of the scores of expenditures that were put in evidence, the import of his testimony permitted the jury to conclude that the defendant had not sought the authorization of the membership, and indeed had kept the membership in the dark. It was for the jury to decide which testimony to credit. See Commonwealth v. Martin, 467 Mass. 291, 314 (2014) ("credibility and weight of evidence are for jury").

Finally, there was evidence that tended to show that the defendant was hiding these transactions, evidence from which the jury could infer consciousness of guilt. The defendant was required to submit annual financial reports for DAV 96 to the DAV. These reports were reviewed to "ascertain if all of the monies being donated to the ... [DAV] [were] being wisely utilized." The defendant last filed a financial report in 2006. The DAV 96 was placed on suspension from the DAV in October of 2010 for failure to file the annual reports. Stack offered to help, and the defendant broke several appointments with Stack. The jury were permitted to infer that the defendant failed to comply with yearly filings because he was disbursing DAV 96 funds without authority. See Commonwealth v. Toney, 385 Mass. 575, 584 (1982) (inference of consciousness of guilt "may be drawn from evidence of ... concealment").

2. Spreadsheet. The defendant contends that the judge abused his discretion in admitting a financial spreadsheet that summarized the defendant's use of the DAV 96 debit card. "Summary charts of voluminous evidence are permissible if they are accurate and fair, although care must be taken to insure that summaries accurately reflect the contents of the underlying documents and do not function as pedagogical devices that unfairly emphasize part of the proponent's proof." Commonwealth v. Mimless, 53 Mass. App. Ct. 534, 538 (2002) (quotations omitted).

The Commonwealth's financial investigator, Stephen Bethoney, reviewed the spreadsheet, which accurately summarized hundreds of pages of records, including "hundreds" of debit card transactions. The spreadsheet was not cumulative of Bethoney's lengthy and thorough testimony, but was a concise, clarifying, representation of the voluminous transactions involving DAV 96 account 2918. See Commonwealth v. Greenberg, 339 Mass. 557, 582 (1959) ("[C]oncise statements to their content verified by persons who had prepared them from the originals were the only means for presenting to the jury an intelligible view of the issues involved"); Commonwealth v. Carnes, 457 Mass. 812, 825 (2010) (spreadsheet is admissible "provided that the underlying records have been admitted in evidence and that the summaries accurately reflect the records"); Commonwealth v. Walter, 10 Mass. App. Ct. 255, 264 (1980) ; Mass. G. Evid. § 1006 (2017) ("The proponent may use a summary, chart, or the like to prove the content of voluminous writings or records that cannot be conveniently examined in court"). "[The spreadsheet] was admissible, in the discretion of the judge, as a matter of convenience." Commonwealth v. Wood, 90 Mass. App. Ct. 271, 276 (2016), quoting from Dyecraftsmen, Inc. v. Feinberg, 359 Mass. 485, 487 (1971). See Commonwealth v. Baker, 368 Mass. 58, 84-85 (1975).

The defendant also maintains that the judge abused his discretion by failing to "caution the jury to evaluate the evidence independently." The defendant did not request such an instruction at trial and the judge was not required to give a limiting instruction sua sponte. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). Moreover, the judge instructed the jury that they "decide the facts in this case solely from the evidence and nothing but the evidence presented inside of this courtroom," and that each of the three indictments "are entitled to your full, fair and separate and individual consideration."

3. Venue. The defendant maintains that pretrial and trial publicity deprived him of a fair trial. The defendant did not object to the empanelment of any of the questioned jurors, nor did he request a change of venue or a mistrial. We review to determine whether the judge abused his discretion by not ordering a change of venue sua sponte. Commonwealth v. Clark, 432 Mass. 1, 5-6 (2000).

"A judge may, on his or her own motion or on motion of a party, order a change of venue where there exists in the community where the prosecution is pending so great a prejudice against the defendant that he may not there obtain a fair and impartial trial." Ibid. (quotation omitted). A change of venue should be ordered in the judge's discretion "only after a solid foundation of fact has been first established." Commonwealth v. McCowen, 458 Mass. 461, 476 (2010) (quotation omitted). A defendant's right to a fair and impartial jury does not require that jury members have no prior knowledge of the crime, Commonwealth v. Morales, 440 Mass. 536, 542 (2003), and the existence of pretrial publicity alone, even "[s]ubstantial publicity," may not necessitate a change of venue. Commonwealth v. Simpson, 434 Mass. 570, 576 (2001).

Here, the defendant cites incidents of media coverage which he claims may have had an impact on the jury. To the extent we can review this claim, none of these instances appear to represent anything but routine media coverage of a trial of local interest. When empanelling the jury, the judge conducted an individual voir dire of jurors who stated that they had previous knowledge of the case. Although three jurors indicated that they had seen an article in a local newspaper, the judge found them impartial. See Morales, supra; Commonwealth v. Leahy, 445 Mass. 481, 495 (2005). The finding was fully supported by the record and the defendant made no objection at trial. Other articles were published during the trial, but the judge instructed the jurors daily to avoid any press coverage related to the trial. The jury are presumed to follow a judge's instructions. Commonwealth v. Williams, 450 Mass. 645, 651 (2008). Defense counsel indicated that he was satisfied with the judge's instruction to the jury to avoid any media coverage of the case. See Morales, supra at 543. The judge did not abuse his discretion.

4. Restitution. The defendant contends that the restitution order in the amount of $92,931.10 was improper and that the judge abused his discretion by failing to consider the defendant's ability to pay the restitution.

We review a judge's restitution order for abuse of discretion or error of law. Commonwealth v. McIntyre, 436 Mass. 829, 836 (2002). A judge ordering restitution must first "determine the amount of the victim's actual economic loss causally connected to the defendant's crime." Commonwealth v. Henry, 475 Mass. at 121. "Restitution may be ordered only for those economic losses adequately documented by the victim and established by the Commonwealth" and "[t]here must be a sound basis in the evidence for the calculation." Commonwealth v. Buckley, 90 Mass. App. Ct. 177, 184 (2016) (quotation omitted).

The judge held an evidentiary hearing, and excluded questionable expenses. There was a "sound basis in the evidence" for the judge's finding. Ibid.

However, this case was decided before the Supreme Judicial Court's decision in Henry, 475 Mass. 117, which held that the judge must consider the defendant's ability to pay restitution when determining whether to order the defendant to pay restitution. Id. at 127. The Commonwealth concedes, and we agree, that the restitution order must be remanded for the judge's consideration in accordance with Henry.

Conclusion. The judgments are affirmed. The restitution order is vacated and that matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Affirmed in part; vacated in part and remanded.

      The Disabled American Veterans (DAV) is a federally chartered nonprofit veterans organization. DAV 96 is a local chapter which engages in a variety of advocacy and volunteering on behalf of local veterans on Cape Cod.

      The defendant was not entitled to compensation for his role as commander of DAV 96. According to the bylaws, "By accepting an elected or appointed office, each member agrees that his service shall be rendered gratuitously; and that he shall not be entitled to reimbursement for any sums advanced, incurred or spent unless expressly authorized by the chapter at a regular chapter meeting."

      There was evidence that some of the membership of DAV 96 were aware that a corporation named Disabled Veterans Association of Cape Cod and the Islands had been formed to collect money for a building fund.

      Stack testified that when "a chapter is not providing you with the information that is required, the department commander can go ahead and place a chapter in suspension." "[T]he chapter that's in suspension cannot conduct any business whatsoever" "or ... spend any funds whatsoever of the chapter."

      Wolfgang Fattler, a DAV 96 member, testified that he did not recall voting to issue a check for $15,000 to Wilson and Associates.

      Stack testified that a motion must be made when any chapter wanted to pay a bill or expend funds to indigent veterans. When that motion was approved the check would have to be signed by the commander and the treasurer.

      On redirect examination the Commonwealth elicited testimony from the treasurer that the defendant's discretion was limited to emergency situations.

      Bethoney testified that he would be able to "walk through the account statements" for DAV 96 account 2918 and identify each transaction, but that it would take "a very long time."

      The spreadsheets contained the dates, amounts, and types of each transaction associated with the DAV 96 account.

      The defendant also contends that the spreadsheet implied that the listed transactions were unauthorized. The spreadsheet simply listed the transactions, and the Commonwealth's witness did not express any opinion on the subject of authorization.

      None of the articles or broadcasts are in the record.


text:
    COMMONWEALTH v. Vito RESTO.
    17-P-548
    Appeals Court of Massachusetts.
    Entered: April 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this consolidated appeal, the defendant appeals from his convictions and the denial of his motion for new trial. He raises several arguments on appeal: (1) his motion to dismiss the indictments should have been allowed because of the Commonwealth's destruction of a cross that was an important piece of evidence; (2) he was prejudiced by the Commonwealth's late disclosure of a second statement by the victim; (3) the judge erred in permitting the Commonwealth to introduce "bad act" evidence about the defendant's gang and drug activity; (4) the jury were misinformed about the nature of the victim's "informal" oral cooperation agreement; and (5) it was abuse of discretion for the trial judge to deny his motion for new trial without an evidentiary hearing. We affirm.

The jury could have found that the defendant, the head of a drug distribution organization operating in the area of Orchard Street in Springfield, constructed a wood cross bearing the legend "la falla se cobra" ("the one who makes the mistake will pay"), for the purpose of punishing people who failed to follow his instructions, and as a cautionary message to the neighborhood. The defendant placed the cross in the open courtyard of an apartment complex on Orchard Street. After Carmello Rivera (a low-level underling) was reported to have stolen a knife, the defendant tied him to the cross with velcro straps and struck him three times with a fiberglass stick (a form of punishment the defendant had previously observed and condoned). Sometime later, the defendant punished in similar fashion someone accused of "unauthorized" selling of drugs in the defendant's territory. The defendant pulled this second victim's pants down and struck him about ten times with the fiberglass stick, leaving him bleeding.

Thereafter, on December 3, 2014, Springfield police were speaking to someone about unrelated events. In the course of that conversation, the individual conveyed a second-hand report that an unknown drug lackey had been beaten on a cross on Orchard Street. The police investigated, and located a cross in a courtyard on Orchard Street. Observing no physical evidence on the cross, the police threw the cross in a dumpster after taking photographs of it. Approximately one week later, Rivera (who had undergone drug treatment) reported the beatings we described above.

First, the defendant argues the judge abused his discretion in denying his motion to dismiss given the destruction of the cross, an important piece of physical evidence that he contends was potentially exculpatory. Where a defendant seeks a remedy "on a claim that potentially exculpatory evidence has been lost or destroyed by the government ... the defendant must demonstrate the exculpatory nature of the destroyed evidence, by establishing a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [material] would have produced evidence favorable to his cause." Commonwealth v. Sanford, 460 Mass. 441, 447 (2011) (internal quotations omitted). We see no error in the judge's conclusion that the defendant failed to meet his burden here. Although the defendant contends that inspection of the cross could have yielded DNA, fibers, or other testable materials, " 'could have' is merely an introduction to speculation and is not a substitute for 'concrete evidence.' " Commonwealth v. Dinkins, 440 Mass. 715, 718 (2004) (citation omitted). Although the defendant argues that such evidence "might have identified either the victim or the person who built the cross," he does not argue that the presence of such evidence would have been exculpatory. Instead, he contends that its absence would have been. He also argues that neither the dimensions of the cross nor its precise method of construction (screws or nails) could be accurately assessed from the photographs, both areas that might have yielded information with which to impeach Rivera's testimony. While we agree with the motion judge that the police should not have disposed of the cross, and we are also of the view that the defendant identified specific types of possible exculpatory evidence the cross might have yielded had it been preserved, the question on appeal is whether the judge abused his discretion in concluding that those possibilities did not rise above the level of speculation. There was no concrete evidence that the cross would have yielded material evidence of value to the defense, and we cannot conclude that the judge abused his discretion in denying the motion.

"If a defendant is unable to meet this threshold burden, he may be independently entitled to a remedy of exclusion if the loss or destruction of evidence was due to the bad faith or reckless acts of the Commonwealth." Sanford, 460 Mass. at 447. Even were we to accept the defendant's argument that the police were reckless rather than negligent (as the judge found), neither dismissal nor exclusion were necessarily required. See id. at 446, quoting from Commonwealth v. Carney, 458 Mass. 418, 427 (2010) ("the imposition of sanctions under [Mass.R.Crim.P.] 14 (c), [as appearing in 442 Mass. 1518 (2004),] is governed by these principles: 'First, sanctions are remedial in nature. Second, sanctions should be tailored appropriately to cure any prejudice resulting from a party's noncompliance and to ensure a fair trial' "). Given the absence of concrete evidence that destruction of the cross resulted in the loss of exculpatory evidence and the absence of bad faith on the part of the police, we cannot say that the judge abused his discretion in concluding that neither dismissal of the indictments nor exclusion of the photographs was required. See Commonwealth v. Cronk, 396 Mass. 194, 198 (1985) ("[t]he dismissal of a criminal case is a remedy of last resort").

Second, the defendant argues it was abuse of discretion for the trial judge to allow evidence concerning statements made by Rivera during a three-hour interview (second statement) with the State police the previous year because they were not disclosed to the defendant until the weekend before trial. The second statement was largely redundant of Rivera's earlier (timely disclosed) statements but added additional details, including the defendant's affiliation with the Latin Kings gang, which we recognize as a potent piece of information. A "prosecutor's obligation to disclose information [includes] that in the possession of the ... police," Commonwealth v. Liebman, 379 Mass. 671, 675 (1980), and it is a duty that is ongoing. Mass.R.Crim.P. 14(a), as amended by 444 Mass. 1501 (2005). Thus, the late disclosure was a discovery violation. That said, "[a] defendant seeking relief as a result of delayed disclosure has the burden of showing that he was prejudiced by the delay." Commonwealth v. Brien, 67 Mass. App. Ct. 309, 310 (2006). In this regard, "we inquire whether 'the defendant is able to make effective use of the evidence in preparing and presenting the case.' " Commonwealth v. Felder, 455 Mass. 359, 367 (2009), quoting from Commonwealth v. Cronk, 396 Mass. at 200. Here, the judge limited the potential prejudice by directing the Commonwealth to "stay away" from the detail of the second statement, and by prohibiting the Commonwealth from using the second statement to rehabilitate Rivera after defense counsel elicited on cross-examination that Rivera did not mention gang affiliations in his initial statement. See Commonwealth v. Felder, 455 Mass. at 367, quoting from Mass.R.Crim.P. 14(c)(1) (judge has "considerable discretion" to fashion an appropriate remedy, including " 'mak[ing] a further order for discovery, grant[ing] a continuance, or enter[ing] such other order as [the judge] deems just under the circumstances' "). In addition, the defendant had earlier notice from the Commonwealth's motion in limine that the judge would permit evidence of the defendant's narcotic activity and gang affiliation. For these reasons, we discern no prejudice from the late disclosure that requires reversal.

Third, the defendant argues the judge abused his discretion by admitting "bad acts" evidence relating to the defendant's gang and drug activity without weighing its prejudicial effect. "The long-standing rule is that 'the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose.' " Commonwealth v. McClendon, 39 Mass. App. Ct. 122, 127-128 (1995), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). "Such other relevant purposes include intent, knowledge, state of mind, identity, motive, pattern of conduct, common scheme, or absence of mistake or accident." Id. at 128. If the evidence "has probative value, the trial judge in his discretion must decide if such evidence is admissible by determining whether its probative value outweighs the risk of undue prejudice." Ibid. Because the defendant preserved the issue by raising it as a motion in limine, see Commonwealth v. Grady, 474 Mass. 715, 719 (2016), we review for prejudicial error. "An error is nonprejudicial only [i]f ... the conviction is sure that the error did not influence the jury, or had but very slight effect .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (quotations omitted).

We discern no reversible error here. The trial judge strongly instructed the jury, both during the trial and during his final charge, that the evidence regarding gang affiliation and drug activity was not to be used "as a substitute for proof" on the charges the defendant faced or "to conclude that if the defendant was involved in these activities, he must also have committed" the charged crimes. The jury were permitted only to use the evidence "on the limited issues of the defendant's state of mind, motive, intent, and/or nature of relationship with the complainant." We "presume that a jury follows all instructions given to it." Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). Moreover, the jury acquitted the defendant of three of the six charges he faced, showing that the jury were not carried away by the evidence and suggesting that they limited its use for its proper purpose. See Commonwealth v. Butler, 445 Mass. 568, 576 (2005) ("the jury appear to have paid attention to the judge's warnings about misuse of the evidence because they acquitted the defendant on the serious assault and battery charge").

Fourth, the defendant argues the prosecutor and the judge improperly referenced Rivera's agreement to testify, resulting in a substantial risk of a miscarriage of justice. The defendant contends the prosecutor gave Rivera transactional immunity but falsely represented to the jury that such immunity was informal and therefore not binding. There is nothing in the record that shows an agreement for transactional immunity between Rivera and the Commonwealth. What the record reflects is what the defendant now contends was false-an informal, nonbinding assurance that, in exchange for testimony, the Commonwealth would not prosecute Rivera based on that testimony. Although it is true that the judge during his final jury charge stated that Rivera "testified under an agreement with the prosecution ... in exchange for his truthful testimony" and that there was no direct evidence that the agreement required Rivera to be truthful, we are not persuaded that this one-word insertion in the charge carried any particular weight with the jury, especially since it is hard to imagine that a cooperation agreement would require anything other than a witness's truthful testimony.

Finally, the defendant argues that the judge abused his discretion by denying the defendant's motion for new trial without an evidentiary hearing. "We typically review the grant or denial of a motion for a new trial under the abuse of discretion or other error of law standard." Commonwealth v. Sanchez, 476 Mass. 725, 741 (2017). "The motion judge's discretion includes the decision whether to conduct an evidentiary hearing. The guideline for its exercise is 'whether a substantial issue necessitating a hearing' has arisen from the submitted affidavit material." Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014), quoting from Commonwealth v. Shuman, 445 Mass. 268, 278 (2005). Where, as here, the defendant's new trial motion is presented to a motion judge who was also the trial judge, "we pay special deference" to the judge's decision. Commonwealth v. Myers, 51 Mass. App. Ct. 627, 632 (2001). Our deference extends to the judge's evaluation of trial counsel's performance. Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995). With these principles in mind, we consider the defendant's argument that counsel was ineffective for failing to request an evidentiary hearing on his motion to dismiss the indictments, and discern no abuse of discretion in denying his motion. The judge had the police report in hand, the relevant facts were essentially undisputed (i.e., the cross should not have been disposed of, but there was no bad faith), and the defendant has failed to show what the officer's testimony would have added materially to the consideration of his motion to dismiss.

Judgments affirmed.

      The defendant was convicted of kidnapping, G. L. c. 265, § 26 ; assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b ) ; and assault and battery, G. L. c. 265, § 13A(a ). He was acquitted of similar charges relating to a second victim who did not testify.

      The defendant also argues that the cumulative impact of the errors created a substantial risk of a miscarriage of justice. Although a combination of errors may, in certain circumstances, present a substantial risk of a miscarriage of justice, see Commonwealth v. Cancel, 394 Mass. 567, 568 (1985), there is no such risk here for reasons we discuss below.

      When the police arrived, it appeared to them that the cross was being used as a prop in a rap video.

      There is no evidence of bad faith on the part of the Commonwealth.

      The defendant also contends that the prosecutor falsely represented to the jury that the destroyed cross was not important evidence. To begin with, the defendant's argument rests on a faulty premise that the prosecutor's questions are evidence. Beyond that, the argument also fails because there is nothing in the record to suggest or show that the witnesses' answers were false.

      Here, the trial judge made no explicit finding regarding the probative value of the evidence or the prejudicial effect it may have. Better practice would have been to make such an explicit statement, even if only delivered orally. However, a finding to that effect is implicit in the judge's decision to admit the evidence, and we review on that basis.

      For the reasons discussed above, the judge also did not err in rejecting the defendant's argument that a new trial was required because the prosecutor presented "false and misleading evidence" to the jury regarding the cross.


text:
    COMMONWEALTH v. Pedro A. VASQUEZ.
    17-P-510
    Appeals Court of Massachusetts.
    Entered: April 30, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted, after a jury trial, of trafficking in fourteen to twenty-eight grams of heroin, G. L. c. 94C, § 32E(c )(1), and trafficking in fourteen to twenty-eight grams of cocaine, G. L. c. 94C, § 32E(b )(1). He raises two arguments in this direct appeal. First, he contends that it was an abuse of discretion to deny his motion for mistrial. Second, he contends that his pretrial motion to disclose the identity of a confidential informant should not have been denied without an in camera hearing. Because we conclude that under Roviaro v. United States, 353 U.S. 53 (1957), and its progeny, the averments of the defendant's affidavit, if credited, required "the judge to engage in Roviaro's 'balancing [of] the public interest in protecting the flow of information against the individual's right to prepare his [or her] defense,' taking into account 'the crime charged, the possible defenses, the possible significance of the [privileged] testimony, and other relevant factors," we remand for reconsideration of the defendant's motion under the framework set out in Commonwealth v. Bonnett, 472 Mass. 827, 848 (2015), but affirm the judgments.

Background. The charges were based on the discovery on December 10, 2010, of drugs in a vehicle (car) registered to the defendant's uncle. The defendant was known to use the car, and he was its driver and sole occupant on the date in question. The car was stopped by Worcester police, who had received information from Trooper George Berrios that a reliable confidential informant had reported that the defendant had a large amount of drugs in the car, and identified the car's make and license number with specificity, together with its approximate location.

The defendant moved in limine to exclude evidence concerning the reason for the motor vehicle stop. That motion was allowed after the judge heard that the parties agreed that the Commonwealth would not elicit evidence about the confidential informant's tip, and that the defendant "would not be able to infer or imply about the legality of the stop." The Commonwealth requested, and the defendant agreed, that the jury be instructed that "[t]he reason for the motor vehicle stop is not material to the issue to be decided. Consistent with this, the judge instructed the jury at the beginning of the trial that they were not to speculate about the reason for the motor vehicle stop.

1. Motion for mistrial. The defendant argues that the trial judge abused his discretion when he denied the defendant's motion for mistrial, which was based on the following exchange that occurred during the direct examination of Officer Terence Gaffney, who located the defendant's car:

Q: "Did you make an observation of anyone approaching that vehicle?"
A: "Yes."
Q: "What did you observe about the person who approached the vehicle?"
A: "He fit the description of-"
Q: "What did you observe-in other words, height, weight, whatever?"
A: "He matched the-"
Q: "Let's move on."

No objection was lodged to the prosecutor's questions and, in any event, the questions were in our view unobjectionable. Nor did the defendant contemporaneously move to strike the officer's answers, a decision he described as tactical so as not to draw the jury's attention to the testimony. However, at the conclusion of the prosecutor's direct examination, the defendant moved for a mistrial because "despite the district attorney doing his best to cause the witness to stop answering, [the officer] referenced the defendant matching a description. And I think that there may have been some reaction from the jury. Or it didn't go unnoticed, I thought, as far as the jury was concerned." Defense counsel later stated that, although neither he nor his co-counsel observed any jury reaction to the testimony, his wife, who was a spectator in the courtroom, had. Neither the judge nor the prosecutor observed any jury reaction, but it appears that the prosecutor was not in a position to do so and the judge noted that he had deliberately avoided looking at the jury so as not to draw attention to the testimony.

After considering a variety of factors, which included that the prosecutor did not deliberately elicit the testimony and indeed twice cut the witness off, the brevity of the testimony, the absence of explicit reference to an informant, and the lack of contemporaneous objection, the judge denied the motion for mistrial, but struck the officer's answers and gave a commendably clear, direct, and comprehensive curative instruction. That instruction told the jury that the evidence from the officer was struck and not to be considered, that the reason for the stop was immaterial to the case, that they were not to speculate about the reason for the stop, and that the they were to focus only on whether the Commonwealth proved beyond a reasonable doubt that the defendant possessed the drugs in the car. The judge also repeated aspects of these instructions during his final charge.

"Whether to declare a mistrial is within the trial judge's discretion." Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). Here, the judge weighed all pertinent factors and carefully crafted a comprehensive and thoughtful response designed to preserve the defendant's right to a fair trial. See Commonwealth v. Copney, 468 Mass. 405, 415 (2014) (trial judge is "in the best position to assess any potential prejudice and to tailor an appropriate remedy"). "Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may rely on curative instructions to correct any error and to remedy any prejudice.... As long as the judge's instructions are prompt and the jury do not again here the inadmissible evidence, as here, a mistrial is unnecessary." Commonwealth v. Garrey, 436 Mass. 422, 435 (2002).

2. Pretrial discovery motion. We next turn to the defendant's argument that his pretrial discovery motion seeking disclosure of the confidential informant's identity was erroneously denied without an in camera hearing. The predicate for the defendant's motion was his contention that he had no knowledge of the drugs in the car and that they must, therefore, have been planted there either by the confidential informant or by the police. The motion was supported by an affidavit from the defendant in which he attested to the following. During the summer of 2010 (several months before the events at issue here), the defendant had been stopped by a State trooper. The defendant was smoking marijuana while driving and, moreover, had "about ten bags of marijuana in [the] car in the open." The trooper told the defendant that he could go to jail for the marijuana and that he could get deported. The trooper suggested, however, that "this could be ironed out if [the defendant] cooperated." The trooper then placed a call to Trooper Berrios, and handed the phone to the defendant. This was the first time the defendant had spoken to Trooper Berrios, whom he noted spoke with a Puerto Rican accent. According to the defendant, Trooper Berrios stated that if the defendant cooperated with police, he would not be charged with the marijuana. Having been caught in possession of a large quantity of marijuana, the defendant was nervous and he accordingly agreed to work with Trooper Berrios and provided his cellular telephone (cell phone) number. The defendant was allowed leave and was not placed under arrest. The defendant later had second thoughts about cooperating and threw away his phone.

The defendant further attested that several days following his arrest, he received a call from Trooper Berrios at approximately 3:00-4:00 A.M. on a telephone with a different number from the one he had previously provided. The trooper said that he knew the defendant's location at that moment and that he needed the defendant to cooperate with him, and mentioned a list of people the trooper identified as drug dealers. When the defendant denied knowing the people on that list, the trooper threatened to have the defendant's wife and children deported. As soon as the defendant hung up, the trooper called the defendant's wife's telephone, another number the defendant had not provided to Trooper Berrios. Early the following morning, Trooper Berrios called the defendant's father as well, threatening to arrest him for helping the defendant.

Based on these allegations, the defendant stated that he believed the drugs (about which he claims he otherwise had no knowledge) were planted in his car in order to pressure him to become an informant for the police, and that the identity of the confidential information (if such a person existed) was material to this defense. Adopting the Commonwealth's argument that the confidential information was only a "tipster" and therefore that person's identity was not material to the Commonwealth's case, the judge denied the motion in a margin endorsement without addressing either whether the information was material to the defense or engaging in a balancing of interests.

"What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.... The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Roviaro, 353 U.S. at 59. The privilege, however, is not impregnable. Its scope "is limited by its underlying purpose," and "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61.

Where, as here, a defendant requests that the privilege be set aside on the ground that it "interferes with a fair defence," Commonwealth v. Johnson, 365 Mass. 534, 544 (1974), he "is required to present 'some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case and the defense offered thereto.' " Bonnett, 472 Mass. at 847, quoting from Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013). This is a "relatively undemanding" standard, ibid., in which the factual assertions in the defendant's affidavit are accepted as true for these purposes. See United States v. Pesaturo, 519 F. Supp. 2d 177, 184 (D. Mass. 2007) (accepting allegations of defendant's affidavit). See also Commonwealth v. Mello, 453 Mass. 760, 762 n.1 (2009).

The assertions of the defendant's affidavit, if credited, adequately raised a potential defense that the drugs were planted, because he had refused to become a police informant. See Commonwealth v. Healis, 31 Mass. App. Ct. 527, 530 (1991) (confidential informant's identity necessary where defense was that defendant had been "set up" by informant and police and drugs had been planted). The affidavit was not merely general or conclusory, but rather revealed a detailed basis for the potential defense. As a result, the judge was required to "engage in Roviaro's 'balancing [of] the public interest in protecting the flow of information against the individual's right to prepare his [or her] defense,' taking into account 'the crime charged, the possible defenses, the possible significance of the [privileged] testimony, and other relevant factors.' " Bonnett, supra at 848, quoting from Commonwealth v. Dias, 451 Mass. 463, 468-469 (2008).

As we have noted, no such balancing occurred here. "[T]here was no attempt by the judge at orderly appraisal of the actuality of any threat and the materiality of the [information] sought. Nor was any compromise considered that might allow disclosure while minimizing danger to the [informant]." Commonwealth v. Johnson, 365 Mass. at 546. For this reason, a remand is necessary to conduct the required orderly appraisal of the relevant factors in accordance with the framework set out in Bonnett. See Bonnett, supra at 850-851. We note that it is within the judge's discretion to determine what form those proceedings should take, including whether all or some of those proceedings should be in camera and whether defense counsel should be present. We do not mean to suggest what the outcome of the required balancing should be; our decision is simply that the allegations of the defendant's affidavit were sufficient to raise the materiality of the confidential informant's identity to his defense such that the defendant was entitled to have the required balancing of interests performed.

For these reasons, the judgments are affirmed, and the matter is remanded for further proceedings consistent with this decision.

So ordered.

Affirmed.

      The defendant's earlier motion to suppress was denied.