Opinion
No. 11–P–889.
2012-06-25
COMMONWEALTH v. Domenic TOLEDO.
By the Court (BERRY, KAFKER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On October 29, 2009, the defendant was convicted of several criminal offenses, on one of which he was given a two-year committed sentence, suspended with probation for three years. Ten months later, the defendant was arrested and charged with two counts of possession of a firearm without a license and other offenses. At the probation violation hearing, the judge found that the defendant violated the terms of his probation by possession of a firearm, revoked his probation, and imposed the sentence of two years in the house of correction. We affirm.
1. Factual background. The following facts are taken from the evidence at the probation violation hearing. On August 31, 2010, two police officers patrolling Blue Hill Avenue in Dorchester saw a car fail to stop at a stop sign. When the officers attempted to stop the car, it continued moving, then seemed to stop. However, when one of the officers exited the cruiser, the car again began moving forward. There ensued a car chase, during which the car was driven onto the sidewalk in an effort to circumvent traffic. Ultimately, the car stopped.
The officers saw two men exit from the passenger side of the vehicle. One was the defendant. The officers pursued the two men who had fled. The defendant and the other fleeing suspect were caught and arrested. Also arrested were the driver and a man found crouching behind the driver's seat. The officers searched the car and discovered two loaded firearms on the floor of the rear passenger-side seat, which were only partially covered by a towel and bottles of alcohol.
Contrary to the defendant's contentions, we conclude that there was sufficient evidence to establish by a preponderance that the defendant constructively possessed a firearm. See Commonwealth v. Sadberry, 44 Mass.App.Ct. 934, 936 (1998); Commonwealth v. Blevins, 56 Mass.App.Ct. 206, 211–212 (2002); Commonwealth v. Elysee, 77 Mass.App.Ct. 833, 846–848 (2010). Accordingly, revocation of the defendant's probation was warranted.
Order revoking probation and imposing sentence affirmed.