Opinion
21-P-636
04-13-2022
COMMONWEALTH v. Anthony M. GARAFOLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion to reconsider the denial of his second petition for expungement pursuant to G. L. c. 276, § 100K, inserted by St. 2018, c. 69, § 195. On appeal, he claims that his criminal record should have been expunged due to demonstrable error by law enforcement, and that, accordingly, the motion judge abused his discretion in denying the motion to reconsider. We affirm.
On September 5, 2006, the defendant was charged by complaint in the Lawrence Division of the District Court Department with assault and battery in violation of G. L. c. 265, § 13A (a ). On December 4, 2006, that charge was dismissed for failure to prosecute. On August 29, 2008, a judge allowed the defendant's motion to seal his record. See G. L. c. 276, § 100C.
On March 25, 2019, the defendant filed his first petition for expungement, which was denied. A panel of this court affirmed the denial of the defendant's petition in Commonwealth v. A.G., 97 Mass. App. Ct. 1126 (2020). Thereafter, the defendant moved to unseal his record, and that motion was allowed on September 25, 2020. The defendant then filed a second expungement petition, and on March 16, 2021, that petition was again denied. On April 7, 2021, the defendant filed a motion to reconsider, which was denied on May 24, 2021. The defendant then filed an additional motion to reconsider on June 7, 2021, which was denied on June 14, 2021. The defendant noticed an appeal from the denial of this last order.
As it does not affect the outcome, we will assume the defendant's appeal is from the denial of his second motion to expunge as well as the denials of his motions to reconsider.
A judge has discretion to expunge a criminal record only, as applicable here, "if the court determines based on clear and convincing evidence that the record was created as a result of ... demonstrable errors by law enforcement." G. L. c. 276, § 100K (a ). Only if that showing is made, will the judge decide whether to expunge the record "based on what is in the best interests of justice." G. L. c. 276, § 100K (b ).
Here, the defendant claims that the responding police officer committed demonstrable error in arresting him for the assault and battery on his mother, and for failing to arrest other members of his family on the night of his arrest. However, as the prior panel held, the first judge was entitled to find that the defendant did not produce clear and convincing evidence of demonstrable error by law enforcement. The defendant's mother told police that he pushed her. Although the defendant told the police that he acted in self-defense, the mother's report provided probable cause for his arrest, and the officers were not required to credit his version of the event. See Commonwealth v. Geordi G., 94 Mass. App. Ct. 82, 85 (2018) (probable cause for assault complaint based on police report in which two witnesses described defendant "pushing" victim). Also, the dismissal of the defendant's criminal case for failure to prosecute does not in and of itself indicate that there was demonstrable error. Finally, the police had the discretion to decide whether to arrest the defendant's sister, or issue an all-points bulletin for her apprehension. The same is true for the instant petition.
Because the defendant did not establish by clear and convincing evidence the threshold finding that there had been a "demonstrable error[ ] by law enforcement," G. L. c. 276, § 100K (a), the judge did not err in denying the defendant's second petition for expungement. Since the record does not support that threshold finding, the judge was not required to reach the question of whether expungement was in the best interests of justice. Given the propriety of the judge's decision, it was not an abuse of discretion for him to deny the defendant's motions to reconsider.
The defendant also makes a vague claim of being denied due process of law. Given the multiple motions, hearings, and now a second appeal, the defendant has received all the process he was due.
Orders denying second petition for expungement and motions to reconsider affirmed.