Opinion
11-P-1055
05-16-2012
COMMONWEALTH v. JOSEPH SILVESTRI.
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
This is the defendant's appeal from the denial of his fourth motion for new trial. His direct appeal was decided on October 19, 2004, Commonwealth v. Silvestri, 62 Mass. App. Ct. 1106 (2004), and the Supreme Judicial Court denied further appellate review, 443 Mass. 1103 (2005). Here, the defendant's case was tried and his conviction became final before Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Melendez-Diaz I), was decided; the Supreme Judicial Court has determined that Melendez-Diaz I announced a new rule and does not apply retroactively to cases where the convictions became final before the decision in Melendez-Diaz I. Commonwealth v. Melendez-Diaz, 460 Mass. 238, 248 (2011). Appellate counsel cannot, therefore, be faulted for failing to argue error in the admission of the drug certificate of analysis.
Order denying motion for new trial affirmed.
By the Court (Cypher, Smith & Fecteau, JJ.),