GRASSO, J. This is the Commonwealth's interlocutory appeal from an order allowing a motion to suppress statements that the defendant, Jose A. Bermudez, then seventeen years old, made to the police during a recorded interview at the Holyoke police station. A Superior Court judge ruled that (1) the interview amounted to custodial interrogation, necessitating a waiver of Miranda rights, and (2) the defendant's waiver of his Miranda rights was not knowing, intelligent, and voluntary. We reverse,...
GRAHAM, J. After a bench trial in the South Boston Division of the Boston Municipal Court Department, the defendant, Peter Damelio, was acquitted of possession with intent to distribute a class D substance and a school zone violation, but convicted of the lesser included offense of possession of more than one ounce of marijuana, a class D substance. He filed a timely appeal of the conviction arguing that (1) the motion judge erred in denying his motion to suppress evidence and statements...
SULLIVAN, J. This is an appeal from decisions of the Superior Court concerning a parolee's constitutional and statutory challenges to the conditions of parole imposed on sex offenders. Among the conditions John Doe challenges is the requirement that he wear a global positioning system (GPS) monitoring device. We vacate the portion of the judgment that dismissed Doe's constitutional challenge to the imposition of GPS monitoring. In all other respects the judgment is affirmed. Background. 1....
GREEN, J. During a motor vehicle stop of a car in which the defendant was riding as a passenger, the defendant gave a State trooper a false name in response to an inquiry concerning his identity. Unfortunately for the defendant, the person whose name he gave was the subject of an outstanding arrest warrant. As the first trooper, and another who happened to arrive on the scene shortly thereafter, continued their inquiry of the defendant, the defendant tried to flee. In response to attempts by...
BROWN, J. By judgments of divorce nisi that were issued on the former wife's complaint for divorce and the former husband's counterclaim for divorce, a judge of the Probate and Family Court ordered, among other things, that the husband pay the wife in their short term marriage (1) alimony in the amount of $2,100 per month for a period of one year, and (2) the sum of $29,500 as his "contribution to the debt and diminished assets incurred during the marriage." Each party has appealed. We affirm...
BROWN, J. By judgments of divorce nisi that were issued on the former wife's complaint for divorce and the former husband's counterclaim for divorce, a judge of the Probate and Family Court ordered, among other things, that the husband pay the wife in their short term marriage (1) alimony in the amount of $2,100 per month for a period of one year, and (2) the sum of $29,500 as his "contribution to the debt and diminished assets incurred during the marriage." Each party has appealed. We affirm...
GRAHAM, J. The defendant, Christian Karl Gerhartsreiter, was indicted by a grand jury on September 26, 2008, and charged with parental kidnapping, in violation of G. L. c. 265, 26A; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, 15A; assault and battery, in violation of G. L. c. 265, 13A; and furnishing a false name to a law enforcement officer, in violation of G. L. c. 268, 34A. At trial, the defendant did not dispute that he committed the crime of...
MILLS, J. The events underlying this case arose in the context of a teenage dating relationship between the complainant, whom we shall refer to as Alice, and the defendant. The defendant was charged with one count of aggravated rape, G. L. c. 265, 22( a ), and two counts of assault by means of a dangerous weapon, G. L. c. 265, 15B( b ). A jury convicted him of rape as a lesser-included offense of aggravated rape, and one count of assault by means of a dangerous weapon. On appeal, he...
KAFKER, J. In 2008, the defendant, Daneroy Gordon, pleaded guilty to charges including firearms offenses and assault and battery on a police officer (ABPO). His sentences included eighteen months committed in the house of correction for illegally possessing a firearm and, as relevant here, a concurrent sentence of one year for ABPO. As the defendant is not a United States citizen, the firearms convictions made it possible he would be deported. However, the conviction of ABPO, given the one-...
SIKORA, J. Shriver Nursing Services, Inc. (Shriver), employs and places professional nurses in the homes of patients for the delivery of skilled care. From June of 2003 to March of 2009, Shriver employed Renne Milinazzo, a licensed practical nurse. It then terminated her. She applied to the Division of Unemployment Assistance (DUA) for benefits. G. L. c. 151A, 22, 23, 24. Shriver opposed the application. At the conclusion of DUA's adjudicatory process, its board of review (board) awarded...
RESCRIPT The defendant appeals an order from a judge of the District Court, pursuant to G. L. c. 258E, commanding the defendant, inter alia, not to abuse or harass the plaintiff, not to contact her, and to stay away from her residence; the defendant argues that the facts offered by the plaintiff were insufficient to support the judge's decision. The order was scheduled to expire on August 19, 2011, but provided for a further hearing on that day. The record does not indicate that any additional...
KAFKER, J. The defendant, Mark Sullivan, was convicted of one count of possession of child pornography, G. L. c. 272, 29C(vii), and possession of child pornography as a subsequent offense, G. L. c. 272, 29C. 1 He argues on appeal that the photograph of a naked adolescent girl that he printed from a computer at the Hingham public library (library) did not contain a lewd exhibition of the pubic area of the girl or of her breasts as required by G. L. c. 272, 29C(vii). He contends that the...
SULLIVAN, J. Paula Tartarini appeals from a judgment of the Superior Court, issued pursuant to G. L. c. 30A, 14(7), upholding a determination of the Department of Developmental Services, formerly the Department of Mental Retardation (department), finding Tartarini to be a person with borderline intelligence, not mental retardation, and therefore ineligible for services. See G. L. c. 123B, 1, inserted by St. 1986, c. 599, 39; 115 Code Mass. Regs. 2.01 & 6.04(1) (2006). 1 We reverse...
CARHART, J. The defendant, as trustee of the Monica T. Graveline Trust (trust), appeals from a Land Court judge's decision that (1) the plaintiffs, nonwaterfront lot owners in the Hyannis Park subdivision, have an implied easement allowing them to use a beach on Lewis Bay adjoining property owned by the trust, and (2) said easement has not been abandoned or extinguished. 3 We affirm. Background. This case involves a long-standing dispute concerning the rights of successors in title to...
TRAINOR, J. This is an appeal from a corrected judgment of the Superior Court confirming an award following the arbitration of a claim by the plaintiff, Diane P. Bolman, as executrix of the estate of Natalie S. Parker, for damages against the defendant, Plymouth Rock Assurance Corporation (Plymouth Rock). The claim sought underinsured motorist benefits pursuant to a Massachusetts automobile insurance policy (the Plymouth Rock policy) issued to Parker. Background. The claim arises out of a...
SULLIVAN, J. In Bernier v. Bernier, 449 Mass. 774 , 799 (2007) ( Bernier I ), the Supreme Judicial Court vacated that portion of the third amended supplemental judgment of divorce of the Probate and Family Court valuing the parties' S corporations and remanded the matter for further proceedings concerning, among other things, the issue of "tax affecting." More specifically, the court directed the probate judge to employ "the tax affecting approach" adopted in Delaware Open MRI Radiology...
CARHART, J. The defendant appeals from his conviction of trafficking in cocaine in violation of G. L. c. 94C, 32E( b ). On appeal, he argues that the trial judge erroneously excluded another individual's statement that the drugs found in the defendant's apartment were hers, denying the defendant due process of law and the ability to present a defense. We affirm. Background. On June 23, 2007, members of the Brockton police department executed a search warrant at the defendant's apartment....
SIKORA, J. A Superior Court jury convicted the defendant, Luis Velez, of unlawful possession of a firearm, G. L. c. 269, 10( a ), and of unlawful possession of ammunition, G. L. c. 269, 10( h ). The defendant then pleaded guilty to part of the enhanced sentencing portion of each charge, i.e., to two prior convictions of violent crimes or serious drug offenses, G. L. c. 269, 10G( b ). Upon each of the two enhanced charges the judge imposed the agreed, recommended, concurrent sentence...
In January of 2005, Jacqueline Carlin began this action in the Land Court to enjoin the construction of a large single-family dwelling on the property of her neighbor, Edwin C. Cohen, in the town of Chilmark (town). 3 She alleged a zoning by-law violation related to the issuance of his building permit in September of 1999. 4 The town zoning enforcement officer and board of appeals (board) had denied Carlin's multiple enforcement requests. A judge of the Land Court ordered the entry of summary...
BROWN, J. The plaintiff was formerly the superintendent of public schools in the town of Sandwich. On April 28, 2010, the school committee (collectively, defendants) held a live broadcast meeting in which the plaintiff's contract extension, among other matters, was to be discussed. Concerned about time, the defendants announced their intention to revisit the plaintiff's contract on April 30, 2010, at 6:00 P.M. In addition to the oral announcement, the school committee posted a notice on its...
