Opinion
16-P-698
03-28-2017
COMMONWEALTH v. Ezekquiel M. SANTIAGO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion to withdraw his guilty pleas to charges of armed robbery, G. L. c. 265, § 17, and assault by means of a dangerous weapon, G. L. c. 265, § 15B(b ). In essence, the defendant argues that, because he admitted to using a BB gun during the robbery, rather than a firearm, the elements of the crime were not satisfied and the judge should not have accepted the pleas. We affirm.
The defendant also pleaded guilty to two counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b ), arising out of the same episode, but he raises no argument on appeal concerning those convictions.
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Consistent with the language of the statute, the armed robbery indictments charged the defendant with being "armed with a dangerous weapon, namely a gun." See G. L. c. 265, § 17, amended by St. 1943, c. 250, § 1 ("Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property ..."). This is not a case where the Commonwealth limited itself by specifically pleading in the indictment that the defendant violated the statute by carrying a firearm. Contrast Commonwealth v. Garrett , 473 Mass. 257, 267 n.12, 267-268 (2015). In any event, the defendant has not provided any authority for the proposition that a BB gun is not a gun.
The order denying the defendant's motion to withdraw his guilty pleas is affirmed.
Judgments affirmed .
Order denying motion to withdraw guilty pleas affirmed .