Opinion
12-P-1855
12-05-2014
COMMONWEALTH v. JANE NOE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with assault and battery in connection with an altercation with her then-boyfriend on March 14, 2011. A District Court judge granted a general continuance and placed the defendant on unsupervised, pretrial probation for a period of three months. The case was dismissed at the completion of the probationary period upon the recommendation of the probation department. Thereafter, the defendant moved to seal her record pursuant to G. L. c. 276, § 100C, second par. The motion was denied, as was a motion to reconsider the denial and a renewed motion to seal. The defendant submitted an affidavit in support of her renewed motion in which she averred that her employment as a cancer research scientist and her plan to obtain a faculty position following the completion of a Ph.D. program were placed at risk by the inclusion of the dismissal in her criminal offender record information.
On appeal, the defendant argues that the judge failed to adequately consider the facts she presented in connection with her renewed motion. She also claims that the judge abused his discretion by not holding a hearing before denying the renewed motion. We affirm.
The defendant has not established that "the value of sealing to [her] clearly outweighs the constitutionally-based value of the record remaining open to society." Commonwealth v. Doe, 420 Mass. 142, 151 (1995). Nor has the defendant demonstrated that she "risks suffering specific harm if the record is not sealed." Id. at 152. While we agree with the defendant that "the actual likelihood of immediate harm is [not] a necessary component of a defendant's proof," ibid., the defendant has not met her burden where, as here, the alleged harm is speculative or consists of no more than "a general threat to reputation or privacy," id. at 153.
In sum, upon considering all relevant information within the record before us, we conclude, as did the judge, that the defendant failed to make a prima facie case in favor of sealing.
Order denying renewed motion to seal criminal record affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 5, 2014.