WOLOHOJIAN , J. On December 1, 2004, the defendant tendered a plea in which he admitted to sufficient facts to support a charge of assault and battery by means of a dangerous weapon, and received a continuance without a finding (CWOF). 1 Approximately one month earlier, G. L. c. 278, 29D, had been amended to require that defendants be specifically advised by the plea judge that an admission to sufficient facts may have adverse immigration consequences if the defendant is not a United...
BERRY , J. After a jury trial in Superior Court, the defendant was convicted on ten counts each of armed robbery while masked, G. L. c. 265, 17; home invasion, G. L. c. 265, 18C; and kidnapping, G. L. c. 265, 26. On appeal, he argues that (1) the judge erred in not — sua sponte, and without a defense request — giving the five factors concerning eyewitness identifications set forth in Commonwealth v. Rodriguez, 378 Mass. 296 (1979) ( Rodriguez ); (2) his trial attorney's...
CARHART , J. Paul Mendonca appeals from the entry of judgment in favor of the defendants following a Superior Court judge's denial of his motion for judgment on the pleadings. Mendonca had sought review pursuant to G. L. c. 31, 44, of a decision by the Civil Service Commission (commission) upholding his layoff by the Executive Office of Labor and Workforce Development (EOLWD). Mendonca alleged that the layoff violated his rights as a disabled veteran. We agree and reverse. Background....
KAFKER , J. The primary issue presented in this landlord-tenant case is the proper application of the security deposit provisions in G. L. c. 186, 15B. The residential property was owned by Shoreh Karaa and Fadi Karaa (collectively, the Karaas), and rented by China Real Estate Development Investment & Trust Fund Corporation (CREDIT), Kuk Yim, and Chiung Fong (collectively, the tenants). After a bench trial, the Superior Court judge found that the tenants had breached their lease with the...
GREEN , J. We are called upon to address a question raised but not resolved in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014) ( Schumacher ): whether a notice of a mortgagor's right to cure a mortgage loan default, sent pursuant to G. L. c. 244, 35A, is deficient if it is sent by the mortgage servicing agent (rather than the record holder of the mortgage), or if it identifies the servicing agent as the mortgage holder. We conclude that the notice in the present case...
BERRY , J. This appeal involves a workers' compensation insurer's lien under G. L. c. 152, 15, and poses the question whether, in cases where an injured employee receives workers' compensation benefits and then sues and successfully negotiates the allocation of noneconomic damages to the employee in a lawsuit against a third-party tortfeasor, the 15 lien attaches to the noneconomic damage recovery, such as for pain and suffering. We conclude that this interlocutory appeal 3 from an...
VUONO , J. Cases concerning the custody of children are often difficult and emotionally charged, and may be rendered even more complex when domestic violence is involved. This appeal presents us with such a case. Following a five-day trial on a complaint for divorce filed by K.A. (the former husband; hereinafter, the father), a Probate and Family Court judge concluded that although the father had engaged in a pattern of abuse towards T.R. (the former wife; hereinafter, the mother) within...
CYPHER , J. The plaintiff, administrator of the estate of Sophal Chan Chin (decedent), appeals from a Superior Court judgment dismissing his malpractice action against the defendant doctor, Joseph Russo, following an adverse decision of a medical malpractice tribunal and the plaintiff's failure to post a bond. See G. L. c. 231, 60B. We agree with the plaintiff that his offer of proof was sufficient. Background. 2 The decedent died from cardiac arrest after liposuction and...
HANLON , J. Donald Brisson appeals from an order of the Superior Court finding him in civil contempt for failing to produce certain documents pursuant to Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979). Brisson is an attorney who was representing four potential witnesses who were cooperating with the Commonwealth in the pending murder charges against the defendant, Derek Hunt. Counsel for the defendant asked for permission to subpoena the documents, and the judge ordered them produced;...
GRAHAM , J. This is an appeal from an Appellate Tax Board (board) decision upholding the denial by the Commissioner of Revenue (commissioner) of a request for an abatement of double taxes assessed to George and Sandra Schussel (Schussels) for filing false or fraudulent income tax returns for the calendar years 1993, 1994, and 1995 (tax years at issue). The case presents three issues: first, whether the board erred as a matter of law in upholding the commissioner's double tax assessment...
KAFKER, J. Nataly Minkina contends that her former counsel, Laurie A. Frankl, Jonathan J. Margolis, and Rodgers, Powers and Schwartz, LLP (hereinafter, collectively, RPS), committed legal malpractice during their representation of her in an employment discrimination action. More particularly, she claims that RPS mishandled its opposition to a motion to compel arbitration by failing to recognize that the reasoning in a then-controlling decision of this court, Mugnano-Bornstein v. Crowell,...
COHEN, J. After a jury trial in Superior Court, the defendant was found to be a sexually dangerous person (SDP), pursuant to G. L. c. 123A, 12. The defendant's appeal presents two issues: (1) whether his motion for a directed verdict should have been allowed on the ground that the Commonwealth failed to establish that he is likely to reoffend sexually; and (2) whether the admission (without objection) of evidence that he terminated his participation in sex offender treatment entitles him to...
CARHART, J. The defendant appeals from his convictions of seven counts of indecent assault and battery on a child and eight counts of rape of a child, and from the denials of his motions for a new trial and to reconsider. The defendant argues that the trial judge erred in concluding that the court room was not closed to the public, failing to sever the counts sua sponte, admitting improper first complaint testimony, and making various evidentiary rulings. We affirm. Background. The jury were...
SIKORA, J. These appeals, consolidated for briefing and decision, arrive after a long and tortuous procedural history. They present questions of sentencing. One of them requires us to consider the purposes of restitution as a criminal law sanction. In 1993, the defendant, Wajahat Q. Malick, pleaded guilty to nine indictments charging him with an elaborate scheme of larceny and embezzlement in the course of his employment as the financial comptroller of a substantial automobile dealership. The...
KAFKER, J. The enforceability of arbitration agreements signed on behalf of family members being assisted in the nursing home admission process has been the subject of a recent constellation of cases. See, e.g., Miller v. Cotter, 448 Mass. 671 , 679-684 (2007); Johnson v. Kindred Healthcare, Inc., 466 Mass. 779 , 781-789 (2014); Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793 , 796-799 (2014). Here, the plaintiff, Scott R. Barrow, signed such an arbitration agreement on behalf...
GRAHAM, J. In this case, we are asked to consider whether a child born in 1963 while her mother was married to a man who is not the child's father is an "issue" of the mother as that term is used in the wills of the mother's grandparents, drafted in 1951. We conclude that on the particular facts presented, she is. Background. In 1951, Francis J. Oakes, Jr., and his wife, Mary P. Oakes (collectively, testators), executed reciprocal wills leaving the bulk of their property in trust for the...
SULLIVAN, J. This is an appeal from an abuse prevention order issued on an ex parte basis, and extended after notice and a hearing by a judge of the Worcester Division of the Probate and Family Court Department. The defendant contends that the Worcester Probate and Family Court lacked jurisdiction to enter the orders, and that the plaintiff failed to establish that she was in reasonable fear of imminent serious physical harm. We affirm. 1. Background. This case has a complex procedural...
CYPHER, J. The defendant, Miguel Lopez, was convicted by a jury of rape, G. L. c. 265, 22( b ), and assault and battery, G. L. c. 265, 13A( a ). He appeals, claiming that he was prejudiced by the lack of a speedy trial and that the Commonwealth failed to provide mandatory discovery. We affirm. Background. On July 27, 2011, a Hampden County grand jury returned indictments against the defendant on the underlying charges. The defendant was arraigned on August 9, 2011, and counsel was...
GREEN, J. In Commonwealth v. Draheim, 447 Mass. 113 , 119 (2006), the Supreme Judicial Court held that "so long as the Commonwealth satisfies the requirements of both the Fourth Amendment [to the United States Constitution] and Mass. R. Crim. P. 17(a)(2), 378 Mass. 885 (1979), it should be permitted the same access as defendants to potentially beneficial evidence from third parties," including third parties who are not suspects in a crime. Accordingly, in Draheim, the Commonwealth was...
GRAINGER, J. Following a jury-waived trial in the Superior Court, the defendant was convicted of possession of a machine gun while in the commission of a felony (G. L. c. 265, 18B), two counts of possession of a machine gun (G. L. c. 269, 10[ c ]), and possession of a silencer (G. L. c. 269, 10A). 1 The judge found that the defendant had participated in an exchange of drugs for firearms with an undercover special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)....
